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40fd149d-deb0-4f47-9bca-1ef30f31221f | Black v. Black | 238 So. 2d 861 | N/A | Alabama | Alabama Supreme Court | 238 So. 2d 861 (1970)
Richard L. BLACK
v.
Gladstone S. BLACK et al.
4 Div. 388.
Supreme Court of Alabama.
August 13, 1970.
*862 Ramsey & Johnson, Dothan, for appellant.
R. A. Norred, Birmingham, for appellee Mildred H. Black.
LAWSON, Justice.
This is an appeal from a final decree of the Circuit Court of Geneva County, in Equity.
Myrus L. Black died on June 18, 1956, survived by his wife, Mary Eugenia Sellers Black, and six children.
On July 6, 1956, a written instrument, which will be set out hereafter, was admitted to probate in the Probate Court of Geneva County as the last will and testament of Myrus L. Black. On the same day letters testamentary were granted to Dr. M. Eldridge Black, Jessie Black Hagan and Gladstone Sellers Black, as executors of the last will and testament of Myrus L. Black.
The pertinent provisions of the instrument admitted to probate as the last will and testament of Myrus L. Black read as follows:
"STATE OF ALABAMA
COUNTY OF GENEVA
"I, Myrus L. Black, a resident citizen of the State and County aforesaid, and over the age of twenty-one years, being of sound mind and disposing memory, do hereby make and publish this my last Will and Testament, revoking all former wills which may have been made heretofore by me.
"I direct that all my just debts and funeral expenses shall be paid by my Executors as soon after my death as practical.
"I own several tracts of land and have several pecan groves growing thereon, in addition to other property. It is my desire that all my property be held intact for a number of years after my death as will be more fully set forth hereinbelow, and I direct that my three joint Executors shall make adequate provision for the support and maintenance of my wife, Mary Eugenia Sellers Black, out of the profits of my said estate each year so long as she may live. I further direct that after all expenses have been paid for the caring for and operation of my said estate, including adequate support for my said wife, that the remaining net income therefrom, at the end of each year, shall be divided equally between my six children, viz: Dr. M. Eldridge Black, Mrs. Stella Black Nation, Gladstone Sellers Black, Mrs. Annie Black Ward, Mrs. Jessie Black Hagan, and Mrs. Mary Black Johnson, or to the heirs of any of those who may not be living.
"At any time that a majority of the three Executors hereinafter named, or their successors, shall deem it advisable and to the best interest of all concerned, they are hereby authorized to dispose of my said estate in whatever manner they deem best, either at private or public sale, and to give whatever notice they may see fit, and to make conveyances to the purchasers, and to divide the proceeds of said sale or sales equally between my immediate heirs or their decendents [sic], but the disposal of my said estate and the division of the proceeds derived therefrom shall not be postponed to a date later than twenty-one years after the death of all my immediate heirs.
"I hereby nominate and appoint Gladstone Sellers Black, Dr. M. Eldridge Black and Mrs. Jessie Black Hagan as Executors of this my last Will and Testament, and hereby exempt them from the responsibility of making a bond for the faithful performance of their duties arising hereunder, and I direct them to take full charge of all my property of every kind, character and description, and I direct that said Executors, by a majority vote, shall formulate a policy or program for the management of the affairs of said estate, and that the said Gladstone Sellers Black shall be the one who will carry out said policy or program, and further that the said Gladstone Sellers Black may act by himself in his capacity as Executor in any emergency that might arise.
"I direct that my said Executors shall pay to the said Gladstone Sellers Black, who is to be in the active management and control of my estate, a reasonable salary each year for his personal services, said amount to be agreed upon by the entire group of Executors, but in case of the death of the said Gladstone Sellers Black, then the remaining Executors shall have the right and it shall be their responsibility to select a manager to personally look after said estate. I further direct that at the end of each calendar year my said Executors shall be furnished with an itemized report of the income and expenses of said estate for the year just closing. It shall be the duty of said Executors to make provisions for the normal expenses of the operation of said estate, managers salary, the upkeep of the estate, including taxes, and the care of my said wife, Mary Eugenia Sellers Black.
"In case a vacancy occurs among my said Executors by the death of either one of them, it is my will and I hereby direct that the remaining Executors shall fill said vacancy by selecting some person to fill said vacancy out of my surviving immediate heirs or their decendents [sic], and I further direct that my said Executors shall not be required to file any inventory of my said estate with any Court or to make any report of their conduct of my said estate with any Court.
"Witness my hand this the 24th day of June, 1947.
Mrs. Mary Eugenia Sellers Black, the widow of Myrus L. Black, to whom we will hereinafter sometimes refer as testator, died on November 22, 1962.
Dr. M. Eldridge Black, one of testator's sons and one of the beneficiaries named in his will, died testate on February 16, 1966, survived by his widow, Mildred H. Black, and by his son, Richard L. Black. We are not advised as to whether Mildred H. Black is the mother of Richard L. Black. Dr. Black apparently was a resident of Pinellas County, Florida, at the time of his death. In his will, which was "Filed For Record" in Pinellas County, Florida, on March 11, 1966, Dr. Black devised and bequeathed all of his estate, real, personal and mixed, to his wife, Mildred H. Black, and she was appointed the sole executrix of his last will and testament.
On October 4, 1967, Gladstone Sellers Black and Jessie Black Hagan, as Executors of the last will and testament of Myrus L. Black, filed their bill in the Circuit Court of Geneva County, in Equity, against Richard L. Black, Mildred H. Black, Stella Black Nation, Mary Black Johnson and Annie Black Ward.
As pertinent here the bill, aside from a general prayer, prayed:
*864 The respondents Richard L. Black and Mildred H. Black filed separate answers. The other respondents made no appearance.
The answer of Richard L. Black, filed on November 4, 1967, although not made a cross bill, in its concluding paragraph prays:
Mildred H. Black filed her answer on December 5, 1967, wherein she admitted the averments of each paragraph of the bill except Paragraph VII, which paragraph reads:
As to Paragraph VII of the bill, Mildred H. Black averred in her answer as follows:
The cause was submitted for final decree on the pleadings, on a deposition of the complainant Gladstone Sellers Black, which the parties agreed should be "treated as evidence * * * and be given the same weight and effect, subject to the provisions of Title 7, Section 372(1), Code of Alabama, as Recompiled, as had the witness testified in open Court," and on the following stipulation:
The trial court rendered a final decree on March 18, 1969, which the court modified by a decree rendered on March 28, 1969.
From the decree, as modified, the respondent Richard L. Black has appealed to this court.
The decree of March 18, 1969, was in the breast of the trial court for a period of thirty days thereafter and, hence, that court had the right to modify it ex mero motu on March 28, 1969.§ 119, Title *865 13, Code 1940; North Birmingham Trust & Savings Co. v. Hearn, 211 Ala. 18, 99 So. 175.
The provisions of the decree, as modified, with which we are concerned on this appeal read:
Construction of a will is always started with the proposition that the province of the court is to ascertain the intent of the testator from the language of the will, in connection with attending facts and circumstances which may shed light upon any apparent uncertainty arising from its terms or existing by reason of such facts and circumstances.Patterson v. First Nat-Bank of Mobile, 261 Ala. 601, 75 So. 2d 471.
We have said that only where testator's intent cannot be ascertained by the words of the will and attendant circumstances does the law undertake to ascertain certain rules for the determination of the will's true meaning, as a result of human experience and a knowledge of human nature. "Such rules are never thought to be arbitrary, but are stated by the courts as the effect of the natural bent of the normal mind."Roberts v. Cleveland, 222 Ala. 256, 259, 132 So. 314, 316.
Despite the imperfections therein, we are of the opinion that when the will is carefully read in the light of the circumstances surrounding its execution, including the idiosyncracies of the testator, it was the intention of the testator to create an active trust, with his executors as trustees, charged with the duty and responsibility of caring for and operating the trust property to the end that testator's wife be cared for, and in the event the profits derived from the operation of the trust property during any given year were not exhausted in making adequate provision for the support and maintenance of testator's wife and in paying "all expenses * * * for the caring for and operation" of the estate, the then remaining net income to be divided equally between the six children named in Item Two of the will "or to the heirs of any of those who may not be living." (Emphasis supplied)
A devise to the executors is not formally expressed in the will but it is generally held that in order to carry out the intention of a testator and prevent the will from failing of effect, a devise or bequest may be implied, although it has not been formally expressed in the will, unless the implication violates public policy or some settled rule of law and such an implication does not make a new will, but merely gives effect to the testamentary plan and purpose.95 C.J.S. Wills § 595, pp. 783, 784. See Myrick v. Williamson, 190 Ala. 485, 67 So. 273; Meglemry v. Meglemry, 222 Ala. 229, 131 So. 906.
The word "trust" is not found in the will, but the fact that testator did not use express words creating a trust is not controlling.Howison v. Baird, 145 Ala. 683, 40 So. 94; Wolosoff v. Gadsden Land & Building Corp., 245 Ala. 628, 18 So. 2d 568.
*866 In Hodge v. Joy, 207 Ala. 198, 205, 92 So. 171, 177, we said:
See Gordon v. Central Park Little Boys League, 270 Ala. 311, 119 So. 2d 23.
The words, "It is my desire that all my property be held intact for a number of years after my death, as will be more fully set forth hereinbelow," we do not consider as altogether precatory. We think the testator intended for those words to be treated by the executors-trustees as constituting direct and imperative instructions until the executors-trustees disposed of the trust estate as authorized in Item Three of the will. See Parrish v. Gamble, 234 Ala. 220, 174 So. 303; Thomas v. Reynolds, 234 Ala. 212, 174 So. 753; Smith v. Nelson, 249 Ala. 51, 29 So. 2d 335.
There is no express provision in the will stating when or upon what contingency the trust shall terminate. We are of the opinion that the discretionary power conferred upon the executors-trustees to sell the trust property shows that the testator intended for the trust to terminate when the last of the trust property has been sold and the proceeds distributed in compliance with the terms and provisions of Item Three of the will. See Moss v. Brown, 253 Ala. 380, 44 So. 2d 561. The will does not expressly provide that the executors-trustees could not sell the trust property until after the death of testator's wife, but such was his intent, in our opinion. In Item Two testator director his executors to provide adequate support and maintenance for his wife "out of the profits of my said estate each year so long as she may live." And in Item Three of his will, testator provided that the proceeds from the sale or sales of his property be divided equally between "my immediate heirs or their decendents [sic]," thereby not including his wife, who was unquestionably the person whose needs came first. In Miller v. Flournoy's Heirs, 26 Ala. 724, we said:
We have heretofore indicated that it is our view that the testamentary trust created by the will in question was an active, not a passive or naked trust.Gaddy v. Mullens, 215 Ala. 664, 112 So. 133; Atkins v. Stacy-Nolan Home Building Co., 217 Ala. 167, 115 So. 153. Being an active trust, the provisions of § 144, Title 47, Code 1940, have no application.Henderson v. Henderson, 210 Ala. 73, 97 So. 353. Cf. § 145, Title 47, Code 1940; Nixon v. Nixon, 245 Ala. 43, 15 So. 2d 561.
The fact that the persons named as executors (trustees) are also beneficiaries does not affect the validity of the trust. It is true that the same person cannot be at the same time sole trustee and sole beneficiary of the same identical interest, but a cestui que trust, a beneficiary, is not prohibited from occupying the position of trustee for his own benefit where he is a trustee for others as well as for himself.Sisson v. Swift, 243 Ala. 289, 9 So. 2d 891.
The question remains as to when the testator intended for the interest of his children named in Item Two to vest.
As we interpret the decree under review, the trial court construed the will as giving to testator's wife a life estate in the trust property, with the interest of his children vesting in them upon the death of the wife.
The provisions of Item Two of the will gave the testator's wife at least an interest for support during her lifetime. We see no *867 occasion to decide the question as to whether the wife received a life estate as distinguished from an interest for support during her life.
We are unable to find any language in the will which tends to show an intention on the part of testator that the interest of his children named in Item Two should vest upon the death of his wife. The children's right to receive income from the operation of the trust property during a given year was secondary to the needs of the wife during her lifetime, but her death did not terminate or create any new right in the children, even though they were no longer secondary as to the distribution of income from the operation of the trust property.
We recognize the principle that in the absence of a clear showing of a contrary intent, estates will vest and intent to postpone vesting must be clearly established. Stratford v. Lattimer, 255 Ala. 201, 50 So. 2d 420. In other words, the law favors a construction by which an estate will become vested at the earliest moment, and this is usually at death of the testator.Pearce v. Pearce, 199 Ala. 491, 74 So. 952.
But the rule that the law favors the early vesting of estates will not be permitted to defeat testator's intention.Bingham v. Sumner, 206 Ala. 266, 89 So. 479. See George v. Widemire, 242 Ala. 579, 7 So. 2d 269.
We think the intention of Myrus L. Black would be defeated if we affirm the decree here under review by simply applying the rule that the law favors the early vesting of estates. In our opinion, Mr. Black, by concluding Item Two of his will with the words, "or to the heirs of any of those who may not be living," clearly showed that when the time came for dividing the net income derived from the operation of his lands in a given year, "after all expenses have been paid for the caring for and operation of my said estate, including adequate support for my said wife," he wanted the share that would have gone to a deceased child to go to that child's "heirs" and such intention would be defeated by a holding that the children's interest vested either upon the death of testator or that of his wife. We see no justification for ignoring the words last quoted above and we can conceive of no other reason why they were used. Those words were not necessary to enable a child of a deceased child to get the deceased child's share in the event he or she predeceased testator.§ 16, Title 61, Code 1940. Moreover, the words last quoted above were not used in the sense of preventing a lapse but to identify those persons to whom anticipated profits should be paid.
In Item Three of the will testator provided that after his property is sold, the proceeds of the sale or sales are to be divided "equally between my immediate heirs or their decendents [sic]." Here again is language which we think shows that the testator did not intend that his property vest in his children prior to termination of the trust.
In view of the foregoing, we hold that the provisions of the decree of the trial court which we have heretofore set out are erroneous except for the last sentence thereof. It follows, therefore, that the decree of the trial court is reversed and the cause is remanded.
Reversed and remanded.
MERRILL, HARWOOD, MADDOX and McCALL, JJ., concur. | August 13, 1970 |
e86edc16-2b60-4cde-867c-634fb8b6de05 | Jones v. Butler | 237 So. 2d 460 | N/A | Alabama | Alabama Supreme Court | 237 So. 2d 460 (1970)
Susie W. JONES
v.
Emma W. BUTLER.
6 Div. 599.
Supreme Court of Alabama.
July 2, 1970.
*461 Dempsey F. Pennington, Birmingham, for appellant.
Harry Asman, Birmingham, for appellee.
LIVINGSTON, Chief Justice.
The record in the above case presents an appeal from a judgment for plaintiff (appellee) in a statutory ejectment suit to recover possession of a small area of land (with improvements). The suit was filed in the Circuit Court of Jefferson County *462 and heard by the trial court without the aid of a jury.
We make reference to pertinent facts. In August, 1962, defendant (appellant here) purchased the subject property (the South 50 feet of the East 140 feet of the North Half of Block 42 according to the Walker Land Company's survey near Elyton in Jefferson County, Alabama, from plaintiff (appellee), Emma W. Butler, who prior to the sale to appellant had mortgaged the same for $16,800.00 to Burchwell Company, Inc. This note and mortgage were duly transferred and assigned to Guaranty Savings and Loan Association.
Appellee sold this property to appellant, and as a part of the consideration for the deed conveying said property to her, appellant assumed and agreed to pay the mortgage debt of $16,800.00 assigned to Guaranty Savings and Loan Association. Also, in consideration of said conveyance by deed to her, appellant executed and delivered to appellee a (second) mortgage on said land for $6,000.00 to secure a promissory note of $6,000.00, a part of the purchase price, payable at the monthly rate of $45.12, beginning September 1, 1962. Appellee contends that only six of these notes were paid when appellee began foreclosure proceedings of said purchase money mortgage of $6,000.00. Some more payments were made after foreclosure.
Appellee introduced in evidence in the ejectment suit the original note for $6,000.00 and the mortgage securing the same. This introduction of the note cast on appellant the burden of proving payment. Kilgore v. Arant, 25 Ala.App. 356, 146 So. 540, 541; Green v. Nabors, 222 Ala. 367, 132 So. 889; Selma Compress Co. v. Parker, 38 Ala.App. 628, 91 So. 2d 240.
The evidence, as viewed by the nisi prius court and here, supports appellee's contention that appellant did not keep up payment of the installments on the $6,000.00 note, but made default. Upon such default, appellee, after notice to appellant, proceeded to foreclose the mortgage given to secure the $6,000.00 installment note. It appears that the foreclosure was regular and advertised for three successive weeks in a newspaper published in Jefferson County, Alabama, where the mortgaged real estate was located. Title 47, Section 171, Code 1940, Recompiled in 1958.
At the sale under the mortgage, appellee, the mortgagee, became the purchaser for $4,000.00, which sum was credited on the purchase money note for $6,000.00. The auctioneer executed and delivered to appellee a mortgage foreclosure deed to the property.
We here note that when this, the original mortgage and foreclosure deed, or certified copies of the record thereof, were introduced in evidence, coupled with proof of demand for possession, and failure to deliver possession, such introduction made out a prima facie case for appellee in the ejectment trial. Title 62, Sec. 129, Code 1940, Recompiled in 1958; Act No. 327, General Acts 1931, p. 370; Ex.Sess.1933, pp. 122, 183.
The execution and delivery by appellee of her note and mortgage to Burchwell & Company conveyed to said mortgagee appellee's legal title to the property subject to the conditions of said mortgage. R. W. Allen & Co. v. Sands, 216 Ala. 106, 112 So. 528, 529; Cook v. Benton, 245 Ala. 683, 18 So. 2d 405.
Mortgagor, Mrs. Butler, having retained possession of the subject property which she mortgaged to Burchwell & Company (as the evidence shows) was possessed of legal title against all the world except Burchwell & Company, or its assignee. Cowart v. Aaron, 220 Ala. 35, 123 So. 229, 230; Hamilton v. Griffin, 123 Ala. 600, 26 So. 243; Allen v. Kellam, 69 Ala. 442. Mortgagor, Mrs. Butler, conveyed this title to appellant, who in turn reconveyed the title when she executed and delivered the (second) mortgage to secure the purchase price or purchase money note *463 of $6,000.00. R. W. Allen & Co. v. Sands, supra.
This mortgage, as we have noted above, was foreclosed and appellee purchased the mortgage property at such foreclosure sale. This foreclosure gave appellee a right to immediate possession of the property, if she did not already have the same, against all the world except the holder of the first mortgage. Suit in statutory ejectment in exercise of this right of immediate possession was proper and available to appellee. Title 7, Sections 937 and 938, Code 1940, Recompiled in 1958; Cofer v. Schening, 98 Ala. 338, 13 So. 123; Slaughter v. McBride and Latimer, 69 Ala. 510.
Appellant contends that she had leased part of the subject property to a tenant who was in possession and not joined as a party to this suit; that such joinder was an absolute essential in this possessory action, citing Title 7, Sec. 939; Ex parte Mason, 213 Ala. 279, 104 So. 523; Morris v. Beebe, 54 Ala. 300; Leath v. Cobia, 175 Ala. 435, 57 So. 972; 19 C.J. p. 1097, Sec. 101; 28 C.J.S. Ejectment § 52.
Here, appellant filed a plea of the general issue. Appellant in her "Statement of the Case," says in her brief: "Defendant filed her plea of General Issue." Such a plea in an action as here is "not guilty," and is an admission that defendant (appellant) is in possession of the premises sued for. Title 7, Sec. 941, Code 1940, Recompiled in 1958; Seaboard Air Line Ry. Co. v. McFry, 221 Ala. 296, 128 So. 239.
This admission of possession made irrelevant and immaterial appellant's contention that a portion of the subject premises was leased, at the time of suit, to another who was in possession at such time. Appellant did not file a disclaimer as authorized by Title 7, Sec. 942, Code 1940, Recompiled in 1958. The contention here that another was in possession of a part of the premises at the time of suit is without merit.
If after foreclosure of the mortgage and the delivery of the foreclosure deed, appellant made delayed payments to appellee on the mortgage debt, which appellee accepted, such payments are not available in this suit as a defense, but, if available at all, would be in a court of equity, as effecting statutory redemption or some other status.
There is no merit in appellee's motion to affirm or dismiss the appeal in this cause because appellant failed to comply with the mandates of Revised Rule 1, 279 Ala. p. XXIII, requiring that "* * * each assignment shall list the page or pages of the transcript of the record on which the ruling is recorded." The record shows that on the date of submission of this cause appellant complied with the above rule by listing the pages where the rulings were recorded in the transcript.
We find that the argued assignments of error are without merit and hold that the judgment of the trial court should be affirmed.
Affirmed.
SIMPSON, BLOODWORTH and McCALL, JJ., concur.
COLEMAN, J., concurs in the result. | July 2, 1970 |
65bb5d08-31d6-4792-9990-79f33bab78ed | Rogers v. Singleton | 237 So. 2d 473 | N/A | Alabama | Alabama Supreme Court | 237 So. 2d 473 (1970)
Henry W. ROGERS
v.
Lawrence C. SINGLETON et al.
3 Div. 443.
Supreme Court of Alabama.
July 10, 1970.
*474 James D. Straiton, Montgomery, for appellant.
Howard & Dunn, Wetumpka, for appellees.
McCALL, Justice.
The trial court rendered its final decree in this case on April 11, 1969, establishing by a land survey the true and correct boundary line between separately described parcels of real property, owned respectively by the appellant and the appellees. The appellant filed a motion for a new trial which was overruled by the trial court on June 11, 1969. He then filed the following written: "Notice of Appeal" on August 20, 1969, viz.:
Nothing was done from the date when the appellant's motion for a new trial was overruled, and the date of filing the transcript of record in this court on December 1, 1969, to show in the record the giving and approval of any type of bond or security for cost of appeal. On February 11, 1970, after the transcript of record and the appellant's brief were filed in the Supreme Court, the appellees filed a motion to dismiss the appeal because of the appellant's failure to give security for costs of the appeal. The case was submitted on brief in this court on May 11, 1970.
An appeal must be taken in the manner prescribed in the statute, Tit. 7, § 766, Code of Alabama, 1940, otherwise there is no appeal. In Hildebrand v. First National Bank of Fairfield, 221 Ala. 216, 128 So. 219, we said:
The appellant has not complied with the manner of taking an appeal as set out in Tit. 7, § 766, Code of Alabama, 1940, the pertinent requirement of which is: "(b) By giving security for the costs of the appeal to be approved by the * * * register * * *." Giving written notice of appeal did not meet the essentials of this statute. Quoting from Journequin v. Land, 235 Ala. 29, 177 So. 132, this court said in the case of Gray v. State, 279 Ala. 333, 339, 185 So. 2d 125, 131:
It is clear under our decisions that this appeal has not been perfected, because of appellant's failure to file good and sufficient security for costs of appeal. Gray v. State, 279 Ala. 333, 185 So. 2d 125; Whiteside v. McGuire, 281 Ala. 86, 199 So. 2d 164; American Federation of Musicians v. Moss, 277 Ala. 169, 168 So. 2d 12. For the reasons stated we are obliged to hold that nothing occurred in this case to transfer jurisdiction from the circuit *475 court to this court. Gray v. State, supra. The appellees' motion to dismiss the appeal is therefore granted and the appeal is dismissed.
Appeal dismissed.
LIVINGSTON, C. J., and SIMPSON, COLEMAN and BLOODWORTH, JJ., concur. | July 10, 1970 |
fbf38a28-718b-418f-9573-90d7864bb2cb | Ex Parte McCleney | 239 So. 2d 311 | N/A | Alabama | Alabama Supreme Court | 239 So. 2d 311 (1970)
Ex parte Robert J. McCLENEY and Lester Leon Whitsett.
In re W. S. DICKEY CLAY MANUFACTURING COMPANY, a Corporation
v.
Robert J. McCLENEY and Lester Leon Whitsett.
6 Div. 592, 592-A.
Supreme Court of Alabama.
September 3, 1970.
*312 C. V. Stelzenmuller, Birmingham, Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, Corretti, Newsom & Rogers, Birmingham; Brobston & Brobston, Bessemer, of counsel, for petitioners and cross-respondents and respondents and cross-petitioners.
John J. Coleman, Jr., A. H. Gaede, Jr., Birmingham, Bradley, Arant, Rose & White, Birmingham, of counsel, amici curiae.
MERRILL, Justice.
Petition of Robert J. McCleney and Lester Leon Whitsett for certiorari to the Court of Appeals in the case of W. S. Dickey Clay Manufacturing Co. v. Robert J. McCleney and Lester Leon Whitsett; and petition for certiorari of W. S. Dickey Clay Manufacturing Co. to the Court of Appeals in the same cases, 239 So. 2d 304. Amici curiae brief was filed on behalf of the Alabama State Chamber of Commerce and Associated Industries of Alabama, also supporting certiorari.
On certiorari, the Supreme Court will not enter into a redetermination of facts as found by the Court of Appeals. State Dept. of Industrial Relations v. Ford, 278 Ala. 352, 178 So. 2d 190 (1965).
The facts as reported by the then Court of Appeals were substantially as follows: On February 8, 1965, Local No. 827 of the United Brick and Clayworkers of America, consisting of 17 employees of Dickey Company, commenced a strike at about 5:30 A. M. *313 Dickey employed about 200 men in the manufacture of clay pipe, most of whom are represented by the United Steelworkers of America. The two claimants for unemployment compensation were members of the steelworkers union which did not go out on strike. The plant superintendent stated that the plant would not operate during a strike. The first acts of violence occurred on February 17, 1965. Then on February 18, 1965, the superintendent mailed a letter to all non-striking employees informing them that they were to report to work on February 22, 1965. The opinion of the Court of Appeals stated that "During this period some of the non-striking employees had returned to work and it was against them that the initial acts of violence occurred," apparently referring to a period between February 8 and February 18, 1965. The superintendent, McCroskey, mailed out a second letter to non-striking employees which stated that failure to report to work by March 1, 1965 would result in termination of their employment. The claimants' employment was then terminated as they failed to report for work.
According to the opinion, McCleney testified that he reported for work on February 8, where he found about 150 people milling around; that there were threats not to go into the plant, and that he never saw any violence. McCleney had testified that he never thought it was proper to cross any man's picket line. Whitsett had also found the same situation on February 8 and he, too, did not go into the plant. Both Whitsett and McCleney registered for unemployment compensation on February 8, 1965, under Tit. 26, § 214(A), Code 1940. They never returned to work. Eighty of the non-striking employees reported for work on February 17, 1965, and 117 on February 18, 1965. The strike was finally settled on February 4, 1966.
The opinion of the Court of Appeals set out more facts than we have stated in this opinion, but we deem our statement to be sufficient to show that this case deals with the requirements for eligibility for unemployment compensation under Tit. 26, § 214(A), when the claimants did not cross a picket line because of "an intervening cause which was his fear of consequences if he went to work and thus ignored the picket line," and our holding is confined to a consideration of the "violence exception" in picket-line cases.
The issue presented in this case is whether the claimants were disqualified from receiving unemployment compensation by virtue of Tit. 26, § 214(A), which provides in pertinent part:
The trial court found that the petitioners were entitled to the benefits. The Court of Appeals conditionally affirmed and remanded with instructions to hold hearings into the period of time elapsing from the end of the violence for the duration of all claims. The claimants argued that there is a "violence exception" to Tit. 26, § 214(A). This exception to the statute is a judicial interpretation which provides that if a claimant for unemployment compensation can show a well-founded fear of personal violence, his refusal to cross a picket line would not entail his disqualification. This exception was first mentioned in Speagle v. United States Steel Corporation, 268 Ala. 3, 105 So. 2d 717 (1958), in the court's preliminary observation to several questions which had been certified to it from the Court of Appeals. This court there noted *314 in a remark which is correctly termed as dictum that there are many cases which hold that refusal to cross a picket line does not disqualify an employee for benefits when such refusal results from a well-founded fear of personal violence to do so, where his job continues to be open to him by his employer. See also, 28 A.L.R.2d 333. In Speagle, this court did hold that a voluntary refusal by an employee to cross a peaceful picket line set up by a union of which claimant was not a member would disqualify him under Tit. 26, § 214(A), where his job remained open to him by his employer. The dictum in Speagle reappeared in Pledger v. Department of Industrial Relations, 40 Ala.App. 127, 108 So. 2d 697 (1959), where Judge Cates wrote that if the trial court had determined that the claimant had a well-founded fear of personal violence, then his refusal to cross a picket line would not result in his disqualification for benefits. But in that case, the picket line was peaceful.
In the instant case, the Court of Appeals held that a violence exception exists. It is urged in the brief amici curiae that such an exception does not exist in Alabama because it has only been mere rhetoric of the courts in the Speagle and Pledger cases. It is further urged that this court reappraise our decision in Usher v. Department of Industrial Relations, 261 Ala. 509, 75 So. 2d 165 (1954), which held (4-3) in effect that a claimant would not be denied unemployment benefits because of a "labor dispute" in which he was in no way involved where the employer closed the plant because of a strike by another union. Usher reaffirmed the rule as earlier announced in Department of Industrial Relations v. Drummond, 30 Ala.App. 78, 1 So. 2d 395 (1941), where the statute, Tit. 26 § 214(A), had not then been amended to define a "labor dispute." The majority in Usher quoted the following from Drummond:
We refused to reappraise Usher in United States Steel Corp. v. Goodwin, 267 Ala. 612, 104 So. 2d 333 (1958). The Court of Appeals followed Usher at least nine times and we tacitly accepted it unanimously in Speagle, 268 Ala. 3, 105 So. 2d 717.
Since the Usher decision was announced in 1954, Tit. 26, § 214 has been amended three times, in 1955, 1965 and 1969. Our interpretation remains unchanged by the legislature.
We revert to the dicta in Speagle and Pledger. In Speagle, all the Justices concurred in the following:
In Pledger, the Court of Appeals said:
Neither statement was required to decide the question before the court in either case, but it is clear that both this court and the *315 then Court of Appeals felt that the answer to the question should at least be qualified by the "violence exception." The cases cited by this court in Speagle support the exception and the annotation, 28 A.L.R.2d, § 20, p. 333, states, before citing cases from twelve states:
We think that the "violence exception" is reasonable and that the legislature never intended that an employee be denied unemployment benefits if his unemployment was involuntary because he was prevented by personal violence or a well-grounded fear of same from entering the premises of his employing establishment.
Having decided that the "violence exception" is included in our law on the subject here involved, we move to a consideration of what is required to come within the exception.
Unless the exception is narrowly restricted, its recognition, without more specificity, would tend to encourage violence on the picket line because a member of a nonstriking union could say that violence on the picket line caused him to refuse to cross it and begin to draw compensation. In a large multi-union plant, this procedure could go on and on and the insurance funds would be seriously depleted and the rates would rise sharply.
To qualify for unemployment compensation, the burden of proof is on the claimant to show (1) that he was willing to cross a peaceful picket line, Speagle v. United States Steel Corp., 268 Ala. 3, 105 So. 2d 717; Mancini v. Administrator, 24 Conn.Sup. 461, 194 A.2d 540; (2) that he made a reasonable attempt to cross the picket line in question, Achenbach v. Review Board of Ind. Employment Sec. Div., 179 N.E.2d 873, Sup.Ct. of Indiana; Baldassaris v. Egan, 135 Conn. 695, 68 A.2d 120; Franke v. Unemployment Comp. Bd. of Review, 166 Pa.Super. 251, 70 A.2d 461; (3) that claimant's sole reason for failing to cross the picket line was a well-founded and reasonable apprehension of violence to his person. See Lanyon v. Administrator, 139 Conn. 20, 89 A.2d 558; Sangamo Electric Co. v. Donnelly, 26 Ill. 2d 348, 186 N.E.2d 230; Marczi v. Board of Review, 63 N.J. Super. 75, 163 A.2d 723. We use the word "sole" as contrasted with refusing to cross a picket line because of union beliefs, sympathy with other strikers, pangs of conscience, or adherence to union principles. This court has already said that a claimant's "refusal to cross the picket line is solely because of his adherence to a tenet of his trade unionism" disqualifies him for benefits under Tit. 26, § 214(A), Code 1940; Speagle, 268 Ala. 3, 105 So. 2d 717. And we have here approved the "violence exception." But a combination of the two in any percentage would impair and practically nullify both rules. This explains why the refusal to cross the picket line must be solely one or solely the other, without any combination of each.
Applying these rules to the instant case, we find under (1), supra, that there was evidence that both McCleney and Whitsett refused to cross the picket line to continue work although both crossed it to vote in their own union's election. Under practically all the authorities cited supra, this was a voluntary refusal to cross the picket line and disqualified them for benefits.
Under (2) supra, there is no evidence that either made any attempt to cross the picket line to return to work.
Under (3) supra, there is no proof that the sole reason for their failure to return to work was because of a real and genuine fear of personal violence. There was evidence (listed in the opinion of the Court of Appeals) that 117 steelworkers crossed the picket line to work during a *316 period where it was shown that there was some violence, but neither McCleney nor Whitsett testified as to seeing any violence, and even though they went to the picket line they heard only "threats not to go into the plant" or that one Williams' car "was shot into before the strike" and Williams told Whitsett "to not cross the picket line." This does not come near meeting the burden of proof on the claimant to show that he was stopped from work by fear of violence on his person.
In Steamship Trade Ass'n of Baltimore v. Davis, 190 Md. 215, 57 A.2d 818, the court said that: "The fear of violence must be real and not nebulous. Just because claimants say that they are afraid of the pickets is not enough and the mere presence of the pickets is not enough to excuse claimants from crossing picket lines." Followed in Abshier v. Review Board of Indiana, 122 Ind.App. 425, 105 N.E.2d 902.
And the fact that violence erupted after these claimants had refused to cross the picket line cannot bolster their claim for benefits. This was settled in Badgett v. Department of Industrial Relations, 30 Ala.App. 457, 10 So. 2d 872, cert, denied 243 Ala. 538, 10 So. 2d 880. In that case, Judge (now Justice) Simpson wrote:
In denying certiorari, a majority of this court said: "* * * the opinion of Judge Simpson of the Court of Appeals fully treats the question of the change in the statute as applicable to this case, and his views thereon suffice for all purposes here and are expressive of our own conclusions."
This court has established the criterion of reasonableness as the test whether an employee "left his employment voluntarily without good cause," Tit. 26, § 214, subd. B. in the following language in Andala Co. v. Ganus, 269 Ala. 571, 115 So.2d 123:
This test was followed in Evergreen Textiles, Inc. v. State Dept. of Ind. Rel., 42 Ala.App. 364, 165 So. 2d 716, cert, denied 276 Ala. 704, 165 So. 2d 723.
A good statement of the application of the reasonableness test and other principles already stated is found in Schooley v. Board of Review, Etc., 43 N.J.Super. 381, 128 A.2d 708, where a decision by the Board of Review that the claimants were ineligible to compensation was affirmed. The court said, in part:
Here, there were only 16 men in the union that called the strike. There were about 160 men in the steelworkers union. It is unreasonable to think that 160 men would be afraid of 16 men, when during the first 10 days of the strike, there was no violence and claimants were unable to supply the names of any persons who uttered any threats or participated in any violence.
We hold that the claimants did not carry the burden of proof necessary for them to come within the "violence exception" and that the trial court erred in failing to affirm the decision of the Board of Appeals of the State Department of Industrial Relations dated July 26, 1965.
The claimants, in their brief requesting certiorari, say one of the pivotal questions on this appeal is "Whether or not legal evidence upon which the violence exception is grounded vanishes simply by virtue of the issuance of an injunction against violence." They find fault with the statement of the Court of Appeals that "However, when legal evidence upon which such exception is grounded ceases to exist, the exception likewise ceases to exist and at that time it is incumbent upon the employee to seek reinstatement to his position of employment with the company. Failure to do so within a reasonable time after the `violence exception' ceased to exist would constitute a voluntary refusal to work notwithstanding the company's letter of February 24, 1965, threatening discharge if he did not report for work." Claimants argue that "violence does not cease to exist automatically upon the issuance of an injunction." Theoretically, it should. We know that it does not always do so. We do not hold that evidence of violence is inadmissible after the issuance of an injunction, but that the burden is still on the claimant to show that he was willing to cross the picket line, that he attempted to or that the sole reason for his failure to return to work was because of a real and genuine fear of personal violence.
Fortunately, in most cases, violence ceases when the injunction is issued, but legal evidence of the presence or absence of violence after the issuance of an injunction is admissible. The injunction should be obeyed and a new status or condition is set from and after its issuance. Evidence *318 of violence which occurred prior to the issuance of the injunction alone is not sufficient to support a claim of fear of violence as the basis for not crossing a picket line after the issuance of the injunction.
In the absence of proof to the contrary, we must indulge in the presumption that a picket line is maintained and conducted in an orderly manner and with no intention to violate the law. Meyer v. Industrial Commission of Missouri, 240 Mo.App. 1022, 223 S.W.2d 835, and cases there cited.
In the instant case, both claimants did not cross the picket line, except to vote, when it was admittedly peaceful and their jobs were open to them. They had made their decision prior to the outbreak of violence. They did not return after the violence had subsided and a majority of their own union members had returned to work. They did not meet their burden of proof to bring themselves within the "violence exception."
The trial court should have affirmed the decision of the Board of Appeals of the Department of Industrial Relations.
The Court of Appeals is no longer in existence, and the personnel of that court now constitutes the Court of Criminal Appeals. The Court of Civil Appeals is now the proper court to handle cases of this nature. But the members of that court did not participate in this case as it came up the appellate ladder.
Without establishing a precedent for ordinary cases, we are reversing the judgment of the Court of Appeals and are remanding this cause to the Court of Civil Appeals, with directions to that court to direct the trial court to set aside its judgments and to affirm the decisions of the Board of Appeals of the Department of Industrial Relations denying the claims of each of the claimants.
This case was originally assigned to another member of the court and was recently reassigned to the author of this opinion.
Reversed and remanded with directions.
All the Justices concur. | September 3, 1970 |
40d156e5-6d8a-4a7d-b233-9e9f9b82b971 | Union Central Life Insurance Company v. Scott | 236 So. 2d 328 | N/A | Alabama | Alabama Supreme Court | 236 So. 2d 328 (1970)
The UNION CENTRAL LIFE INSURANCE COMPANY
v.
Mrs. Willie E. SCOTT.
6 Div. 539.
Supreme Court of Alabama.
May 28, 1970.
*329 Spain, Gillon, Riley, Tate & Ansley and Foster Etheredge, Birmingham, for appellant.
No brief for appellee.
LAWSON, Justice.
The suit below was for payments allegedly due under a double indemnity provision in a life insurance contract.
The defendant insurance company, which is the appellant here, had issued a life insurance policy covering the life of Charles W. Scott. The policy was in the amount of $2,000 with a supplemental provision for double indemnity benefits for death by accident as defined in the policy. The policy provided that:
The policy, issued in 1924, was in full force at the time of Mr. Scott's death on August 15, 1963, and the insurance company paid to the beneficiary, Mrs. Willie E. Scott, the widow of Charles W. Scott, the $2,000 called for in the face of the policy, but declined to make any payment under the double indemnity provision, taking the position that Mr. Scott's death resulted from encephalomalacia and cholesterosis, and not as a result of an accident. Thereafter, this suit was instituted by Mrs. Scott against the insurer, The Union Central Life Insurance Company, a corporation.
In the trial below, the jury returned a verdict in favor of the plaintiff and judgment was entered pursuant to such verdict.
The defendant's motion for a new trial being overruled, it appealed to this court.
We will refer hereinafter to the parties as plaintiff and defendant, just as they appeared in the court below.
Defendant insists that it was entitled to the general affirmative charge with hypothesis on the theory that "the only testimony in the case, which stands uncontradicted and undisputed, is that a disease" directly or indirectly caused the death of Mr. Scott, the insured.
In construing clauses similar to the clause, "The double indemnity benefit shall be payable only if the death of the insured shall result directly, independently and exclusively of all other causes, from bodily injury effected solely through accidental, external and violent means," which clause appears in the policy with which we are presently concerned, we have held that if an accident aggravated a disease and hastened the death of the insured, the accident is yet considered the proximate cause of the insured's death, notwithstanding the gravity of the disease, or that the accidental injury would not have been fatal but for the infirmity.First Nat. Bank of Birmingham v. Equitable Life Assur. Soc. of United States, 225 Ala. 586, 144 So. 451, and cases cited; Adkins v. Metropolitan Life Ins. Co., 235 Ala. 417, 179 So. 382; Liberty Nat. Life Ins. Co. v. Reid, 276 Ala. 25, 158 So. 2d 667; Independent Life & Acc. Ins. Co. of Jacksonville, Fla., v. Maddox, 284 Ala. 532, 226 So. 2d 315.
But the cases last cited lay down a different rule where the policy sued on not only contains a clause similar to that quoted in the preceding paragraph, which is sometimes referred to as the general clause, but also contains a clause similar to the following clause found in the policy here involved: "* * * provided that death occurring * * * as a result directly or indirectly of any bodily * * * infirmity * * * is not an accident hereby insured against." The provisions last quoted are sometimes referred to as the additional clause. Where the policy contains the socalled additional clause, as well as the general clause, the cases last cited above indicate that if the disease, in cooperation with the accidental injury, is an efficient cause of death, then there can be no recovery for accidental death.
But in the Equitable case, supra, after stating the effect of the presence in the policy of the additional clause, we said:
*331 In Liberty Nat. Life Ins. v. Reid, supra, where the policy sued on contained an additional clause, we observed:
In Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837, where the policy sued on also contained a so-called additional clause, we said on rehearing as follows:
In New York Life Ins. Co. v. McGehee, 5 Cir., 260 F.2d 768, the defendant insurance company took the position that at the time of the accident the insured had arteriosclerosis, among other conditions, which contributed to or caused his death. The policy sued on in that case contained both a general clause and the additional clause.
In Independent Life & Acc. Ins. Co. of Jacksonville, Fla., v. Maddox, supra, we quoted approvingly the language hereafter set out from the opinion in New York Life Ins. Co. v. McGehee, supra:
*332 The rule in this state is that in civil cases the question must go to the jury if the evidence or the reasonable inferences therefrom furnish a mere gleam, glimmer, spark, the least bit, the smallest trace, a scintilla, in support of the theory of the complaint. Lankford v. Mong, 283 Ala. 24, 214 So. 2d 301, and cases cited; Payne v. Jones, 284 Ala. 196, 224 So. 2d 230. And such is the rule if the scintilla of adverse evidence is developed by the cross-examination of any witness, thus presenting a jury question. Jones v. Bell, 201 Ala. 336, 77 So. 998; Chestang v. Kirk, 218 Ala. 176, 118 So. 330.
It is equally well established by our cases that in determining the propriety of a general affirmative charge when requested by the defendant, the evidence most favorable to the plaintiff must be accepted as true.Purity Ice Co., Inc. v. Triplett, 257 Ala. 116, 57 So. 2d 540; Key v. Dozier, 252 Ala. 631, 42 So. 2d 254.
We come now to a summation of the evidence adduced at the trial below.
On August 15, 1963, Mr. Scott, the insured, was injured in an automobile accident on U. S. Highway 31 approximately 3.7 miles north of the city limits of Clanton in Chilton County, Alabama. Mr. Scott was driving a 1961 Falcon station wagon, which was hit in the rear by another automobile. The accident occurred in the main traveled portion of the highway. After the accident Mr. Scott was found lying on the shoulder of the highway. He was conscious and upon request he showed his driver's license to a state trooper who had arrived at the scene shortly after the accident. The trooper made no examination of Mr. Scott's person at the scene of the accident, but he called for an ambulance, which arrived within a short time. Mr. Scott was taken to a Clanton hospital in the ambulance. He was dead upon arrival at the hospital.
The plaintiff, the widow of the insured, the beneficiary in the policy sued on, testified substantially as follows:
Mr. Scott died on his sixty-sixth birthday. He had been married forty-two years. Mr. Scott operated a wholesale dry goods business in Birmingham known as Birmingham Wholesale Hosiery, where he had worked every day for about fifteen years. He was in a hospital at age twenty-two when his tonsils were removed. But he had "never been sick from anything in the forty-two years we were married, never been in the hospital." He had never made any complaints to her about his health. She was at their place of business when Mr. Scott left on the morning of April 15, 1963. He made no complaint about his health before leaving. He appeared to feel fine. After being notified of the accident, she was driven to the hospital in Clanton, where she was informed that the body of her husband had been removed. While in Clanton she saw the automobile which Mr. Scott had been driving. It was in a junk yard and was completely demolished. She could not get anything for the automobile, not even for junk. The automobile was in good condition when Mr. Scott left in it on the morning of the accident. After she returned to Birmingham she visited a funeral home where she saw the body of her husband. He had "marks" on his body. His knee was "split open," his leg was "split," and his body, including his chest, was bloody. He was "hurt in his chest and in his neck." His clothes "were torn off of him."
The plaintiff offered into evidence the certificate of death. Under the medical certification part of that certificate, the cause of death was fixed as follows:
"Interval between onset and death
*333 "Condition, if any, which gave rise to above cause (a), stating the underlying cause last.
No entry was made in Section 20a of the Certificate of Death as to any finding of accident, suicide or homicide.
The only witness for defendant was Dr. Lamar C. Meigs, a pathologist, who performed an autopsy on the body of Charles W. Scott after it had been embalmed and after it had undergone a "certain amount of restoration prior to the funeral arrangements." Dr. Meigs testified that he graduated from the Medical College of Alabama in 1951 and after interning at Cincinnati General Hospital for one year, he began the general practice of medicine at Dadeville, Alabama, where he remained until sometime in 1962, when he joined Dr. Albert E. Casey in the practice of pathology at the West End Baptist Hospital in Birmingham. Dr. Casey is the chief pathologist of that hospital.
On direct examination Dr. Meigs explained in some detail the manner in which the autopsy was performed, which we do not need to delineate here.
Dr. Meigs testified on direct examination that the only trauma which he observed on the body of Mr. Scott during an external examination were "* * * a small abrasion on the surface of the left knee and a small bruise on the front portion of the left leg * * *" He further testified that the autopsy failed to reveal any "evidence that trauma caused Mr. Scott's death."
In fact, on direct he testified, in substance, that a disease caused Mr. Scott's death, namely, encephalomalacia, a softening or dying of the tissues of the brain, which resulted from arteriosclerosis, commonly referred to as hardening of the arteries. Dr. Meigs testified on direct that one of the arteries leading to the brain was completely occluded and that another artery leading to the brain was ninety per cent occluded. The occlusion was caused by the presence of cholesterol, which was calcified to such an extent that the witness was unable "to cut a cross-section with a scapel, it required more sections from the scissors."
Also on direct Dr. Meigs testified, in effect, that the presence of cholesterol in arteries is usually "concurrent with increasing age" but that "in some instances it may occur at early stages at the age of 20 * * *"
Dr. Meigs testified on direct examination that his postmortem examination revealed signs of scarring, which are usually compatible with an old coronary occlusion and that he discovered ecchymosis (bruising) of the pericardium and of the epicardium, which ecchymosis or bruising was produced by "blood force."
The pericardium is "the fibroserous sac that surrounds the heart" and the epicardium is "the layer of the pericardium which, is in contact with the heart."Dorland's Illustrated Medical Dictionary, 24th Edition.
On cross-examination Dr. Meigs testified in pertinent part as follows:
At the time he performed the autopsy he had been specializing in pathology for about fourteen months. He did not perform any autopsies while he was in the general practice. Dr. Casey assigned the witness to do the autopsy on the body of Mr. Scott. Dr. Casey did not see the "external body" but he did see the "organs" and tissue used in the microscopic examinations.
The witness's examination of the body of Mr. Scott disclosed that the front surface of "the artery and of the sac of the heart" were bruised.
In another trial he had testified that he did not know what had "precipitated" Mr. *334 Scott's death. He explained, however, that on that occasion he did not use the word "precipitated" as being synonymous with "cause." The word "precipitated," according to the witness, "means such events that may trigger off the cause." Dr. Meigs, in answer to the question as to the cause of death, stated "The cause of death was occlusion of the left internal caratoid artery and with occlusion of the left side of the brain."
The witness stated that he was familiar with the "medical terminology for shock"; that "it might be correct to say that primary shock is a type of shock which is manifested after an injury * * *"; that primary shock might result from fright or just the shock of an accident; that he did not know of a documented case, but a person might receive shock from "something as simple as a sudden fall in the water." Witness stated that there are many causes of shock but the definition of the word and "the route by which they [apparently either shock or its causes] are produced is not completely understood."
In response to the question, "* * * when you have shock, the circulatory system is clogged up, is it not?," the witness replied, "That is one way to put it, yes." The witness was asked what happens to the walls of an artery when a person goes into shock, to which question he replied: "In general, they lose their own ability to contract and there is a certain amount of that between the vessels and certain arteries and muscles in the body." He stated that when one goes into shock an artery may tend to close up and "* * * you have got pressure on a place * * *" According to the witness, blood carries oxygen to the brain and without oxygen the cells of the brain cannot survive; that lack of adequate circulation of blood through the arteries would cause the brain cells "to starve for lack of oxygen." When the brain cells starve for lack of oxygen they will eventually die. The thing that was wrong with Mr. Scott was "the cells of the brain died." The witness found fluid in the "tissues" which are "constant features of the cause of death after shock * * *"
On further cross-examination, Dr. Meigs testified in substance that "one cause among many" of the "circulatory" slowdown" caused by shock is a "neurological change"; that shock could cause the death of a person who had nothing wrong with his arteries; that the various types of shock "varies with any individual"; that a person could die of shock because of "slowed circulation of the blood" whether "he had pinpoint holes through his vessels or through his arteries or whether he had clear arteries."
The defendant offered in evidence the report of the autopsy from which Dr. Meigs refreshed his recollection during the course of his testimony. The report, which was signed "Albert E. Casey, M. D. Pathologist" and "L. C. Meighs, M. D.," (sic) need not be summarized here in that its contents were substantially stated by Dr. Meigs.
In this case, the evidence is without dispute that the insured was involved in an accident shortly before his death; hence our recent case of National Life and Accident Insurance Company, Inc., a Corporation, v. Catherine L. Allen, as Executrix, etc., 285 Ala. 551, 234 So. 2d 567, is not apposite here.
The death certificate was not conclusive against the beneficiary as to the cause of the insured's death. It has only prima facie effect as to the facts stated therein.§ 42, Title 22, Code 1940, as amended. See Act No. 492, approved July 9, 1943, Acts of Alabama 1943, p. 454; Aetna Life Ins. Co. v. Beasley, 272 Ala. 153, 130 So. 2d 178; Jefferson Standard Life Ins. Co. v. Wigley, 248 Ala. 676, 29 So. 2d 218, and cases cited; United Security Life Ins. Co. v. Clark, 40 Ala.App. 542, 115 So. 2d 911.
The plaintiff had the right to try to contradict the facts as stated in the *335 death certificate. Jefferson Standard Life Ins. Co. v. Wigley, supra. Her testimony to the effect that insured was apparently in good health prior to the accident was not without evidentiary value and was contradictory of the certificate of death.Scott v. National Life & Acc. Ins. Co., (Kansas City Court of App., Mo.), 281 S.W. 67.
The defendant's expert witness, as we have shown above, testified on direct examination to the effect that the insured's death resulted from the death of brain cells, which was caused by the inability of the arteries to transport blood to the brain because the arteries were clogged with cholesterol.
On the basis of this evidence, defendant relies upon our decisions holding the affirmative charge with hypothesis should have been given upon the clear, unimpeached and uncontradicted evidence of expert witnesses, such as practitioners of the medical profession, rested on facts ascertainable by the aid of instruments, learning and experiencefacts outside the knowledge of laymen.Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 153 So. 755; New York Life Ins. Co. v. Zivitz, 243 Ala. 379, 10 So. 2d 276, 143 A.L.R. 321.
But the weight of such testimony is subject to all the rules appertaining to the testimony of other witnesses within the realm of their knowledge. And the jury is not bound by the testimony of such experts unless uncontradicted and pertaining to subjects for experts alone.Commonwealth Life Ins. Co. v. Harmon, supra; Pollard v. Treadwell, 234 Ala. 615, 176 So. 452. As is epitomized in the fifth headnote in National Life & Accident Ins. Co. v. McGhee, 238 Ala. 471,472, 191 So. 884:
This case is ruled by the last-stated principle, in view of the plaintiff's testimony that the insured was apparently in good health and worked daily without any complaint of physical disability.Commonwealth Life Ins. Co. v. Harmon, supra; Ball v. National Life & Acc. Ins. Co. of Nashville, Tenn., 270 Ala. 265, 118 So. 2d 724; Shaw v. American Ins. Union (St. Louis Court of App., Mo.), 33 S.W.2d 1052. Also it was the jury's prerogative to evaluate the testimony given by defendant's expert witness on direct examination in the light of testimony elicited from him on cross-examination to the effect that primary shock could so affect arteries as to prevent them from conveying blood to the brain, which would result in the death of brain cells, which, as shown above, the defendant's expert witness testified on direct examination caused the death of the insured.
In Police & Firemen's Ins. Ass'n v. Mullins, 260 Ala. 173, 69 So. 2d 261, we affirmed a judgment in favor of the plaintiff rendered in a suit brought on a fraternal benefit insurance policy which contained clauses similar to those with which we are concerned on this appeal. In that case the experts testified that the insured died as a result of coronary occlusion with antecedent atherosclerosis of long standing and that there was no indication of carbon monoxide poisoning, which the plaintiff contended caused the death of the insured. There was no expert testimony to the contrary. Based on the testimony of lay witnesses as to the apparent good health of the insured prior to the time he became ill and on testimony going to show the circumstances existing in the home of the insured at the time he was stricken, we held that the trial court did not err in refusing to give the general affirmative charge with hypothesis requested by the defendant. To like effect is American Nat. Ins. Co. v. Reed, 26 Ala.App. 350, 160 So. 543.
*336 In view of the foregoing, we hold that the trial court did not err in refusing the defendant's requested affirmative charge with hypothesis, nor in denying its motion for a new trial because of the insufficiency of the evidence to support the verdict.
Error is assigned as to the refusal of the trial court to give defendant's requested Charge 12, which reads:
This is what is sometimes referred to as a "single juror" charge. Under the recent decisions of the appellate courts of this state the refusal of such a charge does not constitute reversible error.Greyhound Corporation v. Brown, 269 Ala. 520, 113 So. 2d 916, and cases cited.
Moreover, the substance of Charge 12 was covered in the court's oral charge where it was said: "It is the law of the Court, Gentlemen, that the verdict may be returned by you only if all twelve of you agree to the verdict."§ 273, Title 7, Code 1940; City of Birmingham v. Bowen, 254 Ala. 41, 47 So. 2d 174.
Assignments of Error 25, 26 and 27 are argued in bulk. They are to the effect that the trial court erred in refusing to give at the request of the defendant certain written charges. Assignment 25 relates to refused Charge 18. Assignment of Error 26 relates to refused Charge 19 and Assignment of Error 27 deals with the refusal of Charge 20.
Charges 18 and 19 read:
In our opinion, Charges 18 and 19 were refused without error. They deal with the provisions of the so-called general clause which, as we have heretofore shown, we have construed "to mean that the accident shall be the proximate cause of death and not exclusive of other conditions, means or circumstances."Benefit Ass'n of Ry. Employees v. Armbruster, 217 Ala. 282, 284, 116 So. 164, 166; Independent Life & Acc. Ins. Co. of Jacksonville, Florida, v. Maddox, supra. Charges 18 and 19, in our opinion, are misleading in that they are subject to the construction that plaintiff could not recover unless the accident was the exclusive cause of the death of insured.
Charge 20 reads:
Charge 20 relates to the so-called additional clause and is not related to Charges 18 and 19, which are concerned with the general clause. We have held many times that where unrelated assignments of error are argued in bulk, that is, are grouped and argued together, and one is found to be without merit, the others will not be considered.State v. Barnhill, 280 Ala. 574, 196 So. 2d 691, and cases cited. Since we consider Assignments 25 and 26 *337 to be without merit, we need not consider Assignment 27, which deals with Charge 20.
We will observe, however, that the matter with which Charge 20 is concerned was substantially and fairly given to the jury in defendant's given Charges 22 and 23.§ 273, Title 7, Code 1940; Pybus v. McKinney, 277 Ala. 419, 171 So. 2d 235.
The judgment is affirmed.
Affirmed. LIVINGSTON, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | May 28, 1970 |
cf0753dc-759f-4a7f-af61-d218e95ca4bc | Universal Underwrit. Ins. Co. v. Marriott Homes, Inc. | 238 So. 2d 730 | N/A | Alabama | Alabama Supreme Court | 238 So. 2d 730 (1970)
UNIVERSAL UNDERWRITERS INSURANCE CO., a Corp.
v.
MARRIOTT HOMES, INC. and Lloyds of London.
6 Div. 683.
Supreme Court of Alabama.
August 6, 1970.
*731 James F. Berry, Cullman, for appellant.
Tweedy & Beech, Jasper, for appellees.
SIMPSON, Justice.
The dependents of William H. Ryan, Jr., brought an action to recover the benefits provided by the Workmen's Compensation Act, the complaint alleging that he was employed by Marriott Homes, Inc., a corporation owned or controlled by Winston Mobile Homes, Inc.
Universal Underwriters Insurance Company was permitted to intervene and alleged that it had issued to Marriott a policy of Workmen's Compensation insurance effective on the date of Mr. Ryan's death. Universal's intervention seeks a declaratory judgment of its liability to the Ryan dependents and Marriott. Universal's pleading alleged that Marriott and Winston had obtained a certificate of self-insurance as provided by Tit. 26, § 309(2), Code of Alabama (Recomp.1958); and that Marriott and Winston had reinsured with Lloyds of London their potential liability as self-insurers of Workmen's Compensation claims. Lloyds of London was joined as a party to the proceedings.
The controversy was submitted to the court below on the following written stipulation of the attorney for Universal and the attorneys representing Marriott and Lloyds of London:
The two insurance policies were made a part of the stipulation.
A judgment was entered holding Universal to be liable for the defense of the action against Marriott and for Marriott's liability to the Ryan dependents. The judgment absolved Lloyds of London of any liability. This point is not contested.
Apparently Winston and Marriott, along with other mobile home manufacturers, became self-insurers for Workmen's Compensation purposes and obtained the Lloyds *732 policy which would indemnify the association members to the extent of 31% of any liability incurred on November 15, 1967, while coverage under the Universal policy commenced on May 18, 1967. The accident causing Mr. Ryan's death took place on November 25, 1967.
Universal contends that the liability to the Ryan dependents should be prorated equally between Universal and Marriott as a self-insurer; Universal relies upon that condition of its policy which provides:
It is Universal's contention that becoming self-insurers under the Alabama Workmen's Compensation Statute was the same as obtaining "other insurance" as that term is employed in Universal's policy and hence Marriott should bear 50% of the loss in this case.
We do not agree. We believe the words used in this provision of the Universal policy should be given their usual and ordinary meaning. Tested by this standard, we think "other insurance" means a policy of insurance of like kind issued by an insurance company in exchange for premium charged. It would be a contortion of the term insurance to hold that its meaning as employed here is broad enough to include "self insurance", which while commonly referred to in that fashion is actually the antithesis of insurance as that term is commonly used.
While as pointed out by appellant this court has not had occasion to decide the exact point raised here, we have frequently held that provisions of insurance policies must be construed in light of the interpretation that ordinary men would place on language used therein. Under this rule we think "other insurance" would be understood by an ordinary man as referring to another policy of insurance covering the same risks as were covered in the Universal. Ala. Farm Bureau Mut. Cas. Ins. Co. v. Goodman, 279 Ala. 538, 188 So. 2d 268, 23 A.L.R.3d 1437; Mutual Ben. Health & Acc. Ass'n. of Omaha v. Reid, 279 Ala. 136, 182 So. 2d 869.
Another well established principle precludes the construction argued for by appellant. If this clause is ambiguous and at least the parties to this appeal think soappellant contending the provisions apply where the insured becomes a self-insurer and appellee arguing contra, then it must be construed most strongly against appellant and most favorably to the insured. State Farm Mut. Auto. Ins. Co. v. Mclnnish, 284 Ala. 492, 226 So. 2d 149; Smith v. Kennesaw Life & Acc. Ins. Co., 284 Ala. 12, 221 So. 2d 372; and numerous other cases collated at Ala.Dig., Insurance, Key No. 146.7, et seq.
Our conclusion is that the judgment should be affirmed.
Affirmed.
LIVINGSTON, C. J., and COLEMAN, BLOODWORTH and McCALL, JJ., concur. | August 6, 1970 |
da5108e2-5eb1-4fba-a915-3e8130beff5d | Hewitt v. Hewitt | 234 So. 2d 283 | N/A | Alabama | Alabama Supreme Court | 234 So. 2d 283 (1970)
Ross I. HEWITT, Jr.
v.
Gladys Patterson HEWITT.
3 Div. 394.
Supreme Court of Alabama.
April 16, 1970.
*284 Harry H. Perdue, Jr., J. Paul Lowery, Montgomery, for appellant.
Hobbs, Copeland, Franco, Riggs & Screws, Montgomery, for appellee.
HARWOOD, Justice.
In the present case the husband filed his bill for divorce, asserting cruelty as the ground. The wife filed an answer, and a cross-complaint for divorce. Cruelty was also the ground on which she based her cross-complaint.
After an extended hearing, the Chancellor entered a decree granting the cross-complainant wife a divorce. He awarded to the wife alimony in gross in the amount of $12,500, and monthly alimony of $200.00 per month for 121 months, said monthly alimony to cease upon the remarriage or *285 death of the cross-complainant. The Chancellor also awarded a fee of $5,000 to the solicitor for the cross-complainant.
Neither the husband or wife were novice sailors on the sea of matrimony. The present marriage was his fourth, and her third. Neither seems to have learned too much in the art of choosing a mate from former experience however, as their present marriage, which has lasted some six years, appears to have been a wreck for some years prior to the filing of the respective bills for divorce.
We see no need to set out the voluminous evidence presented by the respective parties in support of their respective bills. We have carefully read and considered all of the evidence and are convinced that the evidence offered by the wife was sufficient to support the Chancellor's conclusions and decree granting her a divorce.
Counsel for the appellant-husband contends that the divorce granted the wife should have been denied because of the operation of the doctrine of recrimination. This doctrine is to the effect that if both parties prove a statutory, though possibly differing ground justifying a decree of divorce, such reciprocal ground will defeat the award of a divorce to each party. Stabile v. Stabile, 203 Ala. 635, 84 So. 801; Downs v. Downs, 260 Ala. 88, 69 So. 2d 250; Maddox v. Maddox, 281 Ala. 209, 201 So. 2d 47.
Counsel bases his argument in aspect on the testimony of the parties as to occurrences during the last quarrel which led to the wife's departure from the marital abode.
Mr. Hewitt had gone to the home of a married couple, mutual friends of both parties. The hostess issued an invitation for both Mr. and Mrs. Hewitt to have dinner that night. Mr. Hewitt replied that he and Mrs. Hewitt had been on bad terms that day. Mr. Hewitt testified this was really not true, as he and Mrs. Hewitt had enjoyed a peaceful day, and he did not know why he made this statement. He then left for his home. The hostess meantime called Mrs. Hewitt to renew the invitation for dinner, and told Mrs. Hewitt of Mr. Hewitt's statement. Mrs. Hewitt went into the bathroom to put makeup on before going to the friend's home for dinner. During this time, Mr. Hewitt came into the house. According to Mrs. Hewitt he used "a very ugly tone" and with much profanity told her he knew what was the matter with her, that she was full of pills, and began to shove her around. She went to another room to get her purse. Mr. Hewitt followed her, twisted her jacket on her and repeatedly slapped her. She picked up a chrome pipe, part of a collapsible clothes hanger because: "I wanted to have something, because my husband goes insane." Her husband took the pipe from her and "lashed" at her. She ran out of the house with Mr. Hewitt following her. She got in an automobile, but Mr. Hewitt got her out and hit her on the chin with his fist. She then ran "down the road" with Mr. Hewitt following and telling her he was going to "finish" her.
Mrs. Hewitt testified that she never struck Mr. Hewitt with the pipe, but "I would have."
According to Mr. Hewitt, when he entered the house he saw that his wife was furious, and he asked her what was wrong. This seemed to enrage her more. When she went into the room where her purse was, he stood in the door and told her she was not going to get out until she calmed down. She then picked up the chrome pipe and he slapped her as he took the pipe away. When she ran out of the house she said she was going to cause a lot of trouble. He followed her and tried to grab her arm. She swung her purse and hit him, and he slapped her.
The doctrine of recrimination requires a denial of relief only if the complainant has been guilty of conduct which would entitle the opposite spouse to a divorce, that is, the misconduct should be of *286 the degree recognized by law as a sufficient cause for granting a divorce to the other party. Nelson, Divorce and Annulment, Sec. Ed., Vol. 1, Sec. 10.03; Rankin v. Rankin (Mo.App.), 17 S.W.2d 381.
Further, where the one spouse has provoked the misconduct of the other, it would require a much stronger case to authorize a divorce in favor of the provoking party than if his or her conduct had been blameless. David v. David, 27 Ala. 222.
Under the testimony of Mr. Hewitt, the Chancellor as trier of fact could, we think, have reasonably concluded that Mrs. Hewitt's conduct was provoked by, and justified by Mr. Hewitt's actions, and no sound basis existed for application of the doctrine of recrimination.
It appears without contradiction that divorce proceedings previous to the present action had been instituted by Mrs. Hewitt, and dismissed. During this previous proceedings, Judge Thetford, before whom the matter was pending, had recommended to both parties that they consult a psychiatrist. This they both did.
In the present proceedings the complainant had called the respondent-wife as a hostile witness.
During cross-examination by her counsel, she was asked if she had not discontinued her visits to the psychiatrist because Mr. Hewitt had discontinued his visits. She answered: "That is right."Counsel for complainant then objected to the question as being a leading one. The court at first sustained the objection, but after some colloquy between the court and counsel for both parties, overruled the objection. Mrs. Hewitt was then dismissed from the witness stand.
Counsel for appellant argues at length that this ruling constitutes reversible error in that where an adverse party is called as a witness, there is no justification for permitting leading questions on cross-examination since such witness is obviously biased toward his, or her, own side. An annotation on this point may be found in 38 A.L.R.2d at pp. 952-955. This annotation reveals that a number of jurisdictions hold that the matter is within the discretion of the trial court, while others tend to support appellant's argument. We have found no Alabama case on the question.
We see no need to belabor this point, however, since there are two rather obvious reasons why a reversal should not be cast upon the trial court in this instance.
First, the objection came after the question had been answered, and no motion to exclude the answer was made. McBee v. McBee, 265 Ala. 414, 91 So. 2d 675.
Secondly, the question and answer was completely innocuous insofar as affecting the material points to be decided by the Chancellor, that is, whether a decree of divorce should be awarded, and if awarded, the granting of alimony, and the amount thereof. Certainly no substantial right of the appellant was probably injured as a result of the ruling now questioned. Supreme Court Rule 45.
Lastly, we come to the question of alimony and solicitor's fee awarded by the Chancellor.
The evidence shows that the home place is owned jointly by Mr. and Mrs. Hewitt. The value of their equity in this home is $25,000.00. The Chancellor decreed that Mrs. Hewitt convey her interest in this house and lot to Mr. Hewitt. It would appear therefore that the gross alimony awarded should be deemed to represent the value of Mrs. Hewitt's interest in the house.
The evidence shows that Mr. Hewitt has a net estate, mostly in "blue chip" securities, of $200,000.00 to $209,000.00. Mrs. Hewitt is a qualified dental hygienist. She worked at this calling prior to her marriage, and has resumed such work since her separation from Mr. Hewitt. She earns *287 usually around $80.00 per week. She works on an hourly basis, and her income varies with the number of people she attends. Mrs. Hewitt testified she is able to work though she has a hiatus hernia, some arthritis in her hands, and a myelogram indicated some damage to the discs in her spine. She is forty-nine years of age.
The awarding of alimony, and the amount thereof, as well as awarding a solicitor's fee for the wife is largely in the discretion of the Chancellor, but the exercise of this discretion is judicial, and must not be arbitrary, and is subject to review. Owens v. Owens, 281 Ala. 239, 201 So. 2d 396; White v. White, 278 Ala. 682, 180 So. 2d 277; Fitts v. Fitts, 283 Ala. 369, 217 So. 2d 81.
The factors going into the fixing of alimony and solicitor's allowances are numerous and variable. They have been often stated in many cases. No useful purpose would be served in reviewing the oft repeated and well understood principles enunciated in such determinations. Suffice to say that such matters must be decided case by case upon the facts of each case.
We have carefully considered the allowances awarded in this case, and are not prepared to say that the discretion exercised by the Chancellor in these matters was abused by arbitrariness.
We note as to the award of the solicitor's fee, an experienced attorney of the Montgomery bar, taking into consideration the time and efforts of the solicitor for Mrs. Hewitt in representing her in these proceedings, and the other factors shown, testified that a fee of $5,000 would be a reasonable fee to be awarded the solicitor for Mrs. Hewitt. No evidence was offered tending to contradict this testimony.
Counsel for appellee have petitioned this court for the allowance of an additional fee for representing her on this appeal. We have considered this petition fully and are of the opinion that, in view of the ample fee allowed for representation in the proceedings below, the petition is due to be denied.
The decree appealed from is due to be affirmed, and it is so ordered.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and MADDOX, JJ., concur. | April 16, 1970 |
4352850d-4625-4903-87ca-e2fec8a970c8 | Hill v. Taylor | 235 So. 2d 647 | N/A | Alabama | Alabama Supreme Court | 235 So. 2d 647 (1970)
Paralee HILL et al.
v.
J. P. TAYLOR.
7 Div. 844.
Supreme Court of Alabama.
May 15, 1970.
Rains, Rains & McCurley, Gadsden, for appellants.
Roy D. McCord, Lusk, Swann, Burns & Stivender, Gadsden, for appellee.
SIMPSON, Justice.
This case arises out of the following facts.
On August 15, 1963, appellant Paralee Hill executed a mortgage to Homeowners Mortgage Company, Inc., to secure a debt of $6,251.95 with interest at the rate of 6% per annum. The mortgagor testified that she received from the mortgage company $4,000.00. The mortgage covered the property which is the subject of this suit.
Thereafter on the 13th of October, 1964, Mrs. Hill entered into a new contract with the assignee of the mortgagee, Southeastern Fund, a corporation, under which the original mortgage was cancelled. At this time Mrs. Hill executed a deed to the property to Southeastern Fund and the parties executed a contract for the purchase of the land, whereby it was agreed that Mrs. Hill could re-purchase her property upon the payment of $91.94 per month for 120 months. This deed was recorded.
Mrs. Hill had lived on the property involved all of her life, having been born *648 there. It was her testimony that she paid on the mortgage for about a year. She continued to pay taxes on the property.
On January 28, 1966, the property was deeded to John W. Brown by North American Acceptance Corporation, which had merged with Southeastern Fund; and the contract between North American Acceptance Corporation, the successor to Southeastern Fund through merger, and Paralee Hill was transferred to Brown. This deed and assignment were recorded.
The evidence indicated that Brown paid $5,500.00 for the property and contract.
On February 28, 1967, Brown executed a warranty deed to the property to appellee J. P. Taylor for a consideration of $2,000.00 and a mortgage in favor of Brown in the amount of $2,500.00, which mortgage was subsequently paid on March 30, 1967.
Sometime after March 31, 1967, Mrs. Hill tendered to Taylor $100.00, which was refused.
This lawsuit was commenced by an action of ejectment brought by Taylor against Mrs. Hill (and other tenants on the land) May 30, 1967.
The appellants here, who were the defendants in the ejectment action, filed a motion to transfer the cause to the equity side of the court. This motion was granted. Thereupon they filed a bill in which it was alleged that Paralee Hill had conveyed the property in question to North American Acceptance Corporation and had entered into a contract with North American Acceptance Corporation on the 13th day of October, 1964, which provided for the sale of the property to her upon payment of the amounts provided for therein; that thereafter the property had been conveyed to John W. Brown and the contract for the sale and purchase of the land assigned to him. The deed to Brown and the assignment were on record in the office of the Judge of Probate. The bill further alleged that on February 28, 1967 the property had been transferred to J. P. Taylor, and that Taylor had constructive, if not actual, notice of the sale contract. The bill further alleged that Paralee Hill had been in possession of the real estate for many years, paid taxes on it each year, etc.
The bill alleged that Paralee Hill had paid a sum equal to the amount of the payments as set out in the contract, and that she was able to continue to make the payments, that she had tendered to Taylor $100.00 "to bring the payments current up to the date of the offer and that the amount was past due at the time because she had been unable to contact the defendant."
The complaint further alleged that by reason of the sales contract, she was entitled to exercise her right to make payments, or to pay the full contract price and when paid to obtain a deed from the defendant in the cause and she offered to do equity in that she will either bring the payments up to date and continue to pay them, or to pay the full amount found by the court to be due, which, according to Paralee Hill, was $4,500.00.
The complaint asked the court to make a determination that she had a right by virtue of the sale contract to complete the purchase of the property from Taylor by paying the balance of the purchase price; and further that the court determine the amount due under the contract.
The appellee Taylor relied upon his warranty deed from Brown, contending that he knew nothing about any sale contract at the time he purchased the land from Brown.
The court entered a decree in favor of Taylor, holding that Paralee Hill, Etta Smith, and Floyd Martin have no interest or title in the property involved.
The effect of this decree was to find in favor of Taylor in his ejectment action. The court awarded no damages for detention.
The effect of this decree must be that the court found that Taylor was a *649 bona fide purchaser for value and took perfect title from Brown under the warranty deed. The facts do not support this finding.
It has long been established that when one purchases property with notice of an interest of another in such property, then the purchaser takes the property subject to the interest of the third person. Such notice, according to our cases, could be "`actual or constructive, or knowledge of facts sufficient to put a reasonable person on notice, which, if followed up, would have discovered * * *'" the interest of the third party. Shubert v. Lacy, 257 Ala. 629, 60 So. 2d 442; Reeder v. Cox, 218 Ala. 182, 118 So. 338; Stone v. Lacy, 245 Ala. 521, 17 So. 2d 865; Hatter v. Quina, 216 Ala. 225, 113 So. 47; Ely v. Pace, 139 Ala. 293, 35 So. 877; Alexander v. Fountain, 195 Ala. 3, 70 So. 669.
Here the appellee took title from Brown. There was on record the following assignment of the contract to purchase between Paralee Hill and Southeastern Fund (which became through merger North American Acceptance Corporation):
In addition to this recorded assignment to his grantor, which surely would have been revealed by a title search, and which surely under our cases is sufficient to put one on notice, the appellee testified himself that on the day he purchased the property, he was aware that Paralee Hill lived on the property, and had known so for quite some time.
We believe that the fact that the assignment was on record showing the existence of a contract for the sale of the land involved was sufficient to put appellee on notice of the equities held by Mrs. Hill under that contract. It has frequently been pointed out in our cases that "It is an established rule of this court that equity as well as law charges a party with such knowledge as is gained by an inspection of the record as provided or suggested by ordinary prudence." Sisson v. Swift, 243 Ala. 289 (301), 9 So. 2d 891; Alabama Coal & Coke Co. v. Gulf Coal & Coke Co., 171 Ala. 544, 54 So. 685.
Here the appellee admitted that he knew that Mrs. Hill had long been in possession of the property, he knew she was in possession of it at the time he took the deed from Brown. It was not disputed that Mrs. Hill had paid taxes on the land for more than 30 years, and a title search would have revealed that a contract for the sale of this land was in existence in favor of Mrs. Hill. These facts defeat appellee's contention that he was a bona fide purchaser of this land without notice of the claim asserted by Mrs. Hill. We think all of these facts were sufficient to charge the appellee with knowledge which due inquiry would have revealed, such facts being sufficient to have led an ordinarily prudent purchaser to inquire. Dewyer v. Dover, 222 Ala. 543, 133 So. 581. Surely these facts supplied appellee with sufficient information to stimulate inquiry, and having failed to do so, he is not under our cases a bona fide purchaser without notice. In fact, his knowledge alone that Mrs. Hill was in possession was, under Alabama law, sufficient to charge him with notice of the nature of her claim to possession. Alexander v. Fountain, 195 Ala. 3, 70 So. 669.
Since the record will not support the conclusion that appellee took title to the *650 land involved without notice of the contract for the sale of that land to appellant, Paralee Hill, it follows that he took title subject to her rights under the contract. He took only the interest which his grantor had, incumbered with every equity to which the grantor's interest was subject.
The only remaining basis upon which the trial court's decree finding that Taylor was the legal owner of the property and entitled to the immediate possession of the same would have to be a conclusion that the rights of Paralee Hill under the contract had been forfeited.
The contract contained the following provision:
The undisputed facts in this case are that Taylor's predecessor, Brown, accepted a payment in the amount of $70.00 from Paralee Hill some 15 days before the conveyance of the property by Brown to Taylor. As indicated earlier in this opinion Taylor had notice of the existence of the contract, which means that he stands in exactly the same position as does Brown. The essential question is, therefore, has Paralee Hill's delinquency in making payments under the contract worked a forfeiture of her rights thereunder? We think not. In construing an identical clause in a contract for the sale of land, the court in Gatewood v. Hughes, 214 Ala. 674, 108 So. 562, said:
In that case the contention was made by the vendor that the purchaser had defaulted and that a forfeiture had been worked. The evidence showed that over a long period of time the vendor had accepted part payments. The court said:
In this case the evidence is undisputed that every payment made by Paralee Hill had been accepted by North American Acceptance Corporation and by its assignee, Brown, and further that infrequently, if at all, did Paralee Hill pay the precise amount called for in the contract. In some months she paid more than the installment called for; in others she paid less. However, at no time was any objection made to the fact that the payments submitted were not in the precise amount called for by the contract. The evidence tends strongly to show that North American Acceptance Corporation and Brown treated the contract as continuing in force. To the extent that neither North American Acceptance Corporation nor Brown ever insisted upon payments in the precise amount called for under the contract, they treated Mrs. Hill with leniency. They accepted installment payments on the contract when they were past due. They consistently accepted partial payment on the installments. The *651 facts and circumstances were obviously calculated to lead Mrs. Hill to believe that strict performance of the agreement was not required. Clearly under our cases, therefore, she was not in default and the contract was not forfeited at the time of the conveyance from Brown to Taylor. See Murray v. Webster, 256 Ala. 248, 54 So. 2d 505.
The real issue in the case on the question of default is not whether Paralee Hill was in technical default at the time of the conveyance by Brown to Taylor, but rather whether her failure to make payments precisely as provided for in the contract worked a forfeiture. In Adams v. Smith, 208 Ala. 498, 94 So. 521, it was held that no forfeiture was worked where on the evidence the court found that the whole course of dealing between the parties prior to the date of the alleged forfeiture was calculated to impress the appellant with the idea that no forfeiture would be declared on account of delay in payment. The same is true here. The vendee, Mrs. Hill, under the evidence, having consistently made payments, some of which were late, and which were in many instances less than the amount of the monthly installments called for under the contract, sometimes making semi-monthly payments, never encountered any objection, all payments at all times being accepted, was justified in treating the contract as a subsisting contract of purchase. See also Eason v. Roe, 185 Ala. 71, 64 So. 55; E. Rose & Co. v. Woods (Ala.), 39 So. 581. Brown so treated it just 15 days before the conveyance to Taylor. Taylor is therefore bound by his predecessor, who treated the contract as a subsisting one 15 days before the conveyance to Taylor.
It follows, therefore, that the case must be reversed and remanded for a determination of the balance due under the contract.
Reversed and remanded.
LIVINGSTON, C. J., and COLEMAN, BLOODWORTH, and McCALL, JJ., concur. | May 15, 1970 |
f7f59c8e-c1fa-486a-8ad7-082fa2438de2 | Sims v. Reinert | 235 So. 2d 802 | N/A | Alabama | Alabama Supreme Court | 235 So. 2d 802 (1970)
Howard G. SIMS
v.
George L. REINERT et al.
6 Div. 749.
Supreme Court of Alabama.
May 28, 1970.
*803 Tommy E. Hill, and Gordon & Cleveland, Birmingham, for appellant.
Morel Montgomery, Birmingham, for appellees.
MADDOX, Justice.
The appellant, as administrator of the estate of one Celia C. Morris, filed this action seeking to set aside a deed executed by Mrs. Morris and seeking to recover certain funds allegedly belonging to her estate.
The evidence, taken nearly all ore tenus, tended to show that Celia Morris was born December 30, 1880. In 1963, when she was 82 years old and having some medical problems, she became dependent upon her brother, William Sims, who lived in Bessemer, and her sister, Anne Reinert (late wife of the appellee George Reinert), who lived about a block and one-half away from her in Birmingham. Mrs. Morris was particularly close to, and dependent upon, Mrs. Reinert, and the evidence shows that Mrs. Reinert visited her often and handled other matters for her such as taking her to the doctor and getting her situated in a nursing home and making application for welfare assistance.
In September, 1963, Mrs. Morris owned her home in Birmingham and had savings accounts in two banks. One of the accounts was in her and her brother's name in the First Federal Savings and Loan Association in Bessemer and had a balance of $9,930.17. The other account was in her and her sister's name in the First Federal Savings and Loan Association of Birmingham and had a balance of approximately $10,000.
On September 7, 1963, Mrs. Morris' brother died suddenly, and the account in the Bessemer bank was transferred to an account in the same bank in the names of her and her sister, Mrs. Reinert. On October 1, 1963, a deed was executed by Mrs. Morris which conveyed her home to Mrs. Reinert, but Mrs. Morris continued to live in the home until she was placed in a nursing home in August of 1965.
In September of 1964 while Mrs. Morris was in the hospital receiving treatment for a broken leg, Mrs. Reinert had all the funds in the Birmingham bank transferred to an account in her own name. Hospital records indicated that Mrs. Reinert had agreed to be responsible for the hospital bill and that Mrs. Reinert did pay Mrs. Morris' hospital bill. In February of 1965 *804 the funds in the Bessemer bank were also transferred to an account in Mrs. Reinert's name only. After these transfers, Mrs. Reinert continued to make withdrawals for Mrs. Morris' use. Mrs. Reinert also applied forand Mrs. Morris receivedwelfare assistance and social security which paid all of the nursing home care except $15.30 per month, which Mrs. Reinert paid.
Mrs. Reinert predeceased Mrs. Morris by approximately six months and George Reinert (appellee here) continued to handle Mrs. Morris' affairs in much the same manner as had his wife during her lifetime.
In his suit against Reinert, the administrator prayed for an accounting of the funds which Reinert received from his late wife and also asked that the deed executed by Mrs. Morris be set aside. Complainant claimed that the respondent and his wife held the money in the bank accounts in trust for the use and benefit of Mrs. Morris, who the complainant alleged was old, ill, senile and of unsound mind. Regarding the deed, complainant said that it should be cancelled on the grounds that:
(1) no consideration was paid; and
In sum, complainant alleged that Mrs. Morris reposed confidence and trust in her sister and made transfers of personal and real property to her in order that her sister could take care of her business and personal affairs and that the sister took advantage of the relationship and appropriated the funds and property for her own use and benefit. Of course, the respondent denied these allegations and sought to show that Mrs. Morris knew what she was doing and that Mrs. Reinert was a companion and helper to Mrs. Morris during her last illness and that the transfers were not the result of undue influence, and no constructive trust resulted.
At the conclusion of the testimony, the Chancellor simply found "from a consideration of all the evidence, that Complainant has failed to make proof necessary to entitle him to the relief prayed." The bill was dismissed.
The action of the court in its decree finding that the complainant had failed to make proof necessary to entitle him to relief and then dismissing the bill is assigned as error, the argument being that the trial court should have impressed a constructive trust upon the property and money of Mrs. Morris which Mrs. Reinert allegedly obtained by undue influence, fraud, and by taking advantage of her sister's weakness or through other similar means or circumstances.
Unquestionably, Chancery can compel one who unfairly holds a property interest to convey that interest to another to whom it justly belongs. This principle is recognized in our cases of Putnam v. Putnam, 274 Ala. 472, 150 So. 2d 209 (1963) and Cherpes v. Cherpes, 279 Ala. 346, 185 So. 2d 137 (1966). Appellant claims these cases are controlling here and that the trial court should have found that a constructive trust was established. The issue of whether or not a constructive trust results is one of fact, the burden being on the complainant. Vafes v. Stritikus, 218 Ala. 659, 119 So. 643 (1929). Furthermore, a constructive trust is a creature of equity, and every presumption will be indulged in favor of the findings of the Chancellor before whom the evidence was nearly all ore tenus and his findings will not be disturbed unless palpably wrong. In Cherpes v. Cherpes, supra, we said that a court of equity in decreeing a constructive trust is bound by no unyielding formula and that the equity of the transaction must shape the measure of relief, thus affording a court of equity wide powers to do what it thinks right and just.
*805 The trial court made no specific findings of fact other than the general finding that the complainant had failed to make proof necessary to show he was entitled to the relief sought. We will assume that the trial court made those findings which will justify the decree rendered. Dockery v. Hamner, 281 Ala. 343, 202 So. 2d 550 (1967). We do not think the court's findings of fact are palpably wrong or that the Chancellor abused the wide powers he enjoyed to do what he thought right and just. His judgment is therefore due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL, and HARWOOD, JJ., concur. | May 28, 1970 |
80b70237-a85e-4d5d-ba53-949a0c337992 | Waldrop v. Siebert | 237 So. 2d 493 | N/A | Alabama | Alabama Supreme Court | 237 So. 2d 493 (1970)
William H. WALDROP
v.
Erwin SIEBERT et al.
1 Div. 591.
Supreme Court of Alabama.
June 11, 1970.
*494 Delano J. Palughi, Mobile, for appellant.
Warren L. Finch, Mobile, for appellees.
McCALL, Justice.
The appellees brought this action to recover possession of leased premises from the appellant. The case was tried before the court without a jury on agreed stipulations of fact. The trial court rendered judgment for the plaintiff and the defendant has appealed therefrom. The basic question in the case being one of law, is "Does the lease between the parties give the appellant lessee the right to perpetually renew it."
On July 20, 1963, the appellees executed a written lease of the premises to the appellant for an original term of two years to run from July 20, 1963 to July 19, 1965. The rent was $720, payable in equal monthly installments of $30 on July 20, 1963, and on the 20th day of each month thereafter. The lease provides for an optional tenancy in the following language:
The record does not reveal how the appellant exercised the option to renew at the end of the two year term for the additional term. Since the parties make no issue of this matter, we will consider only the lessee's right to continue the tenancy under the lease after the additional three years.
Prior to the expiration of the three years on July 19, 1968, the appellant's attorney notified the appellees in writing on May 28, 1968, of the appellant's intention to renew the lease for a year and enclosed the latter's check for $360 to pay the rent therefor. The appellees returned the check on June 25, 1968, and sent appellant a ten day written notice to quit the premises. Neither the form, certainty or sufficiency of either of these notices, nor the mode of their service is questioned. The appellant insists however that the notice to quit is totally ineffectual to terminate his tenancy, because the lease contains an option which permits the appellant to renew the lease from year to year perpetually after the expiration of the additional three years, or, at least, to extend the terms thereafter not to exceed the period limited by Tit. 47, § 18, Code of Alabama, 1940.
The original term of this lease created a leasehold estate in the lessee for two years. The estate granted, being one limited to endure for a definite and ascertained period, fixed in advance, is what is known as a term for years. Hyatt v. Vincennes Nat'l Bank, 113 U.S. 408, 5 S. Ct. 573, 28 L. Ed. 1009; United States v. First Nat'l Bank of Birmingham, (5 Cir.), 74 F.2d 360; 49 Am.Jur.2d, Landlord & Tenant, § 65, p. 106; 51C C.J.S. Landlord & Tenant § 26, p. 61. By the provisions of the lease, the appellant is granted an option, at the end of the first term of two years, to renew or continue his tenancy "for an additional term of Three (3) years, and year to year thereafter." A *495 tenancy from year to year is a periodic tenancy, measured by the year, Tiffany, Landlord & Tenant, p. 119; 51C C.J.S. Landlord & Tenant § 130(1), p. 413. This optional tenancy is part of the original demise. In Feidelson v. Piggly Wiggly Alabama Co. Inc., 221 Ala. 81, 82, 127 So. 516, 517, this court said:
See also Maddox v. Hobbie, 228 Ala. 80, 152 So. 222.
While the language of the renewal clause may be susceptible of different meanings, we construe it to grant the appellant a single option, to renew "* * for an additional term of Three (3) years, and year to year thereafter." The renewal creates a term of three years, which thence proceeds with a year to year tenancy, constituting one leasehold estate. The words of controversial import are "and year to year thereafter." We conclude that the conjunction joins this periodic tenancy from year to year to the tenancy for three years, not to the option to renew. After the appellant exercised the option, there was no second option or consecutive options conferred for subsequent renewals from year to year. The singular, "option," is employed. These words "and year to year thereafter" indicate to us the parties' intention, at the expiration of the three years, to continue the leasehold estate as transformed from a term of years to a year to year tenancy. The year to year tenancy continues in being for successive periods of a year until terminated by either party at his will at the end of any year by giving the previous legal notice. Tiffany, Landlord & Tenant, p. 119 et seq.; 51C C.J.S. Landlord & Tenant § 131, p. 414; 49 Am.Jur.2d, Landlord & Tenant, § 73, p. 115; 50 Am.Jur.2d, Landlord & Tenant, § 1205, p. 92.
The language of the option is not in accord with expressions found in instruments held to provide for perpetual renewals which are collected in 31 A.L.R.2d 607. The general rule is that a lease will not be construed as making provision for perpetual renewal unless the language employed indicates clearly and unambiguously the intent and purpose of the parties to do so. 50 Am.Jur.2d, Landlord & Tenant, § 1171, p. 56 and cases there cited; 51C C.J.S. Landlord & Tenant § 61b, p. 188; McCreight v. Girardo, 287 P.2d 414 (Ore. 1955); Rutland Amusement Co. v. Seward, 248 A.2d 731 (Vt.). The use even of the words "from year to year" in a renewal clause of a lease does not give the lessee the right to perpetual renewals. In Hallock v. Kintzler, 142 Ohio St. 287, 51 N.E.2d 905, 27 Ohio Op. 234, where the lease was "for the term of one year" with a general option for renewal "from year to year," the court said:
Again in Tischner v. Rutledge, 35 Wash. 285, 77 P. 388 (1904), the plaintiff leased to the defendant for the term of one year "with the privilege at the same rate and terms each year thereafter from year to year." There the court said:
Also in the case of McCreight v. Girardo, supra, the provision of the lease giving *496 the lessee an option to renew was as follows:
In construing this language, the court said:
Numerous cases bearing on this subject may be found in the Annotation "Right to second or perpetual renewal under provision for renewal of lease." 31 A.L.R.2d 607 et seq.
We are of the opinion that this lease did not grant the lessee the right of perpetual renewal.
We now consider the shortest period that the lease might run under the additional term provided for therein. The renewal option when exercised created a tenancy for three definite years, and year to year thereafter, until terminated by one of the parties. If we consider that had the lease been only from year to year, the term would have been at least for one year. Therefore the additional term is at least for the three definite years plus one year, because such specifies for three years, and year to year thereafter. It is not a renewal for an additional term of three years, and then, at the end of the three years, if agreeable, it would be continued another year, but it is an absolute agreement to proceed beyond the three years for at least one year. The right of either party to terminate the tenancy does not come into being until after the continuance from year to year has begun. That allows at least one year before there can be a termination, unless mutually agreed upon. McQuinn v. Logue, 143 Mo.App. 232, 128 S.W. 516 (1910). Having decided upon this the appellant had four additional years under the renewal option rather than three. Therefore, appellees' notice to quit the premises on July 19, 1968, was premature and inefficacious to terminate the lease, Hackney v. Griffin, 244 Ala. 360, 363, 13 So. 2d 772; Crommelin v. Thiess & Co., 31 Ala. 412, 420, because the notice was given when appellant's leasehold estate was yet to run for another year, to wit, to July 19, 1969.
For this reason the case must be reversed and remanded.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON, COLEMAN and BLOODWORTH, JJ., concur. | June 11, 1970 |
9ee080ba-39e8-4cc2-ab16-a0c878de468f | Rudolph v. State | 238 So. 2d 542 | N/A | Alabama | Alabama Supreme Court | 238 So. 2d 542 (1970)
Darryl RUDOLPH
v.
STATE of Alabama.
1 Div. 631.
Supreme Court of Alabama.
August 6, 1970.
James D. Sullivan, Mobile, for appellant.
MacDonald Gallion, Atty. Gen., and Charles H. Barnes, Asst. Atty. Gen., for the State.
SIMPSON, Justice.
Three petitions were filed in the Juvenile Court of Mobile County charging appellant, *543 a boy of 15, with various acts of delinquency, including commission of the crimes of arson, burglary and grand larceny. A hearing was held in the Juvenile Court on these petitions and that court determined that the complaints were true and committed the appellant to the Alabama Industrial School for Negro Children.
Thereupon the appellant appealed to the Circuit Court of Mobile County, in Equity, under the provisions of Title 13, § 362. This statute provides that such appeals are preferred cases in the Equity Court, directs a trial de novo and gives the Chancellor directions to enter such judgment as shall seem just and for the best interests of the child.
From start to finish, the case was handled as a criminal prosecution for the felonies of grand larceny, arson, and burglary. Seven witnesses testified on behalf of the prosecution. At the conclusion of this evidence, the defendant moved to exclude the evidence, which motion was denied, and the court, noting, "This case is no different than any other", entered a decree in part as follows:
This appeal is from that decree, appellant stating in brief that "Appellant was convicted of the crimes of arson and burglary. From the judgment of guilty Appellant appeals."
These proceedings violate the very principles upon which the statutes establishing the juvenile court system in Alabama were founded. As noted by Judge Edward McLaughlin and Professor Clinton McGee in the Alabama Law Review, "The theory is that a child who has run afoul of the law, if under the statutory age, lacks the otherwise necessary criminal intent and should not be tried as a criminal in a criminal court and under ordinary criminal proceedings but should have his case heard in a special court of equity." Juvenile Court Procedure, 17 Ala.Law Rev. 226.
The statutes themselves provide that the child in a case such as this is not a criminal and acquires no criminal record, stating, "No child shall be denominated nor held to be a criminal by reason of any such adjudication [by the Juvenile Court or the Equity Court in a trial de novo], nor shall such adjudication be held to be or denominated a conviction". Title 13, § 378.
In this case, a boy of 15 was adjudicated a delinquent in the Juvenile Court. He appealed from that adjudication to the Circuit Court, in Equity. It is glaringly apparent that that court misunderstood its role and proceeded to prosecute the child for the crimes of arson, burglary and grand larceny.
The issues properly before the Equity Court in an appeal de novo from the Juvenile Court obviously are the same issues which were before the Juvenile Court. The very word de novo itself means anew, afresh, trying anew the matters involved in the original hearing as if they had not been heard before and as if no decision had been previously entered.Ballentine's Law Dictionary, 3rd Ed.
Under our statute (Title 13, § 354) the proceedings, in the Juvenile Court are had to determine whether the child so charged has committed the unlawful acts alleged in the petition. If the Juvenile Court so finds, then it *544 "* * * may take testimony for the purpose of inquiring into the habits, surroundings, conditions * * * in order to enable the court to determine whether such child is * * * delinquent, and * * * what order or judgment will best conserve the welfare of the child * * *."
Title 13, § 362 provides that any party aggrieved by the judgment entered by the Juvenile Court may appeal from the judgment and that
Surely the very terms of the statute itself, not to mention other principles which preclude it, foreclose a prosecution in the Equity Court for felonies charged in the petitions filed with the Juvenile Court.
We have provisions in our legislation setting up the juvenile court system in this state whereby minors over 14 may be transferred from Juvenile Court and tried in the court having jurisdiction over the offense with which the child is charged. (Title 13, § 364.) Before that may be done, and before such child may be subjected to criminal prosecution like an adult, the court must first decide whether the child is a delinquent child. As noted in Seagroves v. State, 279 Ala. 621, 189 So.2d 137:
Only after these questions are decided may a child be transferred to the proper court for a criminal prosecution. See also Guenther v. State, 279 Ala. 596, 188 So. 2d 594; Stapler v. State, 273 Ala. 358, 141 So. 2d 181; Duck v. State, 278 Ala. 138, 176 So. 2d 497.
This case was not a transfer case. Obviously the Juvenile Court concluded that this child could be disciplined under the provisions of Chapter 7, Title 13. It also concluded that he was delinquent. He sought, and is entitled to, a trial in the equity court on this latter issue. For failure to afford such a trial, it follows that this case must be reversed and remanded for that purpose.
Reversed and remanded.
LIVINGSTON, C. J., and COLEMAN, BLOODWORTH and McCALL, JJ., concur. | August 6, 1970 |
b5767a41-70d0-495b-b33b-7459bb2ded2d | UNITED STATES FINANCE COMPANY v. Page | 235 So. 2d 791 | N/A | Alabama | Alabama Supreme Court | 235 So. 2d 791 (1970)
UNITED STATES FINANCE COMPANY, Inc., a Corp.
v.
Richard PAGE and Janie Bell Page.
1 Div. 589.
Supreme Court of Alabama.
May 28, 1970.
Mayer W. Perloff, Mobile, for appellant.
Wilters, Brantley & Nesbit, Bay Minette, for appellees.
HARWOOD, Justice.
Janie Bell Page and Richard Page entered into a written contract with The Bell *792 Company, operated by one W. E. Bell, for certain repairs to be made on their modest home in Baldwin County, Alabama. This agreement is dated 20 May 1966.
The contract specified the repairs and improvements were to be made for a principal balance of $3124.00, with a time differential of $2185.64, or a total of $5309.64. The agreement called for payments of $63.21 per month for 84 months. The time these payments were to begin is not set forth.
Bell sent some material to the Page home, and two men, one named Blakely, worked there part of the day for about a week. The result of their efforts in allegedly improving the Page house can best be described as disastrous. We see no need to describe these counterfeit efforts.
On the day this agreement was entered into, the Pages purportedly executed a note and mortgage to William E. Bell securing an alleged indebtedness "equal to Sixtythree and 21/100 Dollars (63.21) for eightyfour (84) months as evidenced by a promissory note of even date herewith." The note does not appear in the record.
The mortgage was signed by Janie B. Page, and Richard's signature was by mark, he being unable to read or write. The names of E. D. O'Connor and L. E. Mix appear as witnesses.
The mortgage also purports to bear an acknowledgment executed by Ben F. Filligan, a Notary Public of Escambia County, Florida. Filligan certifies that Richard Page and Janie Bell Page, husband and wife, who are known to him, appeared before him and acknowledged their voluntary signatures to the instrument on 20 May 1966.
Both Janie Bell and Richard testified they had never signed or acknowledged any papers in Escambia County, Florida, but on the other hand, all papers they had signed had been signed in their home in Baldwin County, Alabama.
On 11 June 1966, William E. Bell assigned and conveyed the mortgage to United States Finance Company, Inc., for the sum of $10.00 "and other valuable considerations." Other evidence shows that United Finance paid Bell $2,895.00 for the mortgage.
The Pages made payments totaling $795.31 on the mortgage when, because of the miserable state of the work done, and after consultation with a lawyer, they discontinued payments. United States Finance then instituted steps to foreclose the mortgage.
The Pages filed a bill to enjoin United States Finance and Bell from proceeding with the foreclosure and to have the court declare that the mortgage was procured by fraud, and that United Finance was not a bona fide purchaser in due course of the mortgage.
The court issued a fiat enjoining the foreclosure of the mortgage, and in due time the matter came on for hearing, the respondent United States Finance Company having filed its answer. Bell filed no appearance.
At the hearing, Janie Bell and Richard testified as to the nature of the work and "improvements" made to the house, and the facts concerning their signing the mortgage and certificate of completion.
G. L. Faircloth, a carpenter and brick mason, testified for the Pages. He had inspected the Page house after Bell had ceased work thereon. He estimated that the materials used in doing the work were worth $400.00, but the manner in which they had been applied had not in any manner enhanced the value of the house, and in fact the value of the house was less after the work had been done than before.
Several photographs showing parts of the "repair" work and "improvements" made on the house were received in evidence. They graphically show the botched nature of the work.
*793 O. L. Williamson, the only witness presented by United Finance, testified that he was office manager for the company, and as such was familiar with its accounts, and in particular was familiar with the account of Richard and Janie Bell Page. He testified the Page note was in arrears.
He first learned of the complaint about the work on the house when he received a letter from Mr. Stone, an attorney, in April or May of 1967.
A certificate of completion of work by Bell accompanied the mortgage when his company bought the same on 11 June 1966.
This certificate of completion was received in evidence and reads as follows:
"This job is completed to our satisfaction
On the reverse side appears:
"I swear that all labor & Materials are paid in connection with the Richard Page Job.
Janie Bell testified that she had been sick and had come from a doctor's office when Mr. Blakely, who was one of the men working on the house, came to her house and told her "my boys need some money for tonight" and instructed her to sign the certificate of completion which had already been written out. She signed her name and Richard's thereto.
It is significant that the certificate of completion is undated. Since it was procured by Blakely, a reasonable inference is that the certificate was secured during the progress of the work.
Although on his direct examination Williamson had testified he was familiar with the accounts of United Finance, on cross-examination he disclaimed any knowledge as to how many Baldwin County mortgages his company had bought from Bell between 1964 and 1967, and had "no idea" as to whether this number could have been 100, and in fact he did not know how many mortgages his company had bought from Bell.
He would not say whether his company had not received some 30 complaints in connection with the Bell mortgages, and did not know as a matter of fact that he had received about ten complaints from Mr. Brantley, attorney for the appellees.
In buying the Baldwin County mortgages, his company had never examined the nature of the work done by Bell on the houses, and no attorney was ever consulted as to the validity of the mortgages.
Upon completion of the hearing, the Chancellor entered a decree finding that there was a failure of consideration for the Page mortgage and that the same was procured by fraud, and that the United Finance Company was not a holder in due course without notice. The Chancellor decreed that the mortgage to Bell, and its assignment to United Finance be set aside, and canceled, and held for naught, and that a copy of the decree be filed in the office of the Probate Judge of Baldwin County.
While the mortgage shows it was made in Baldwin County, Alabama, and bore the signatures of two witnesses, it was also acknowledged before a notary in Florida. This in itself should have aroused suspicion as to the validity of the mortgage. The mortgage and note were purchased for an amount far below its face value. While the fact that a note is purchased at a large discount is not of itself sufficient to charge the purchaser with notice of existing equities, nevertheless inadequacy of the purchase price is always a matter to be considered by the trier of fact as evidence of bad faith, and may, with suspicious circumstances, authorize a finding of bad faith. United States Finance Co., Inc. v. Jones, 285 Ala. 105, 229 So. 2d 495.
*794 It is our conclusion that under the totality of the facts presented, all of which we have not set out, the Chancellor was justified in concluding that United States Finance Company, Inc., had knowledge, or was possessed of facts, sufficient to impute such knowledge, that their action in purchasing the Bell mortgage was questionable as to good faith. Tri-D Acceptance Corp. v. Scruggs, 284 Ala. 153, 223 So. 2d 273, and see in particular, United States Finance Co., Inc. v. Jones, 285 Ala. 105, 229 So. 2d 495.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and MADDOX, JJ., concur. | May 28, 1970 |
d9352545-4a9e-486b-9c45-a9e32b2139ab | Ex Parte State Ex Rel. Attorney General | 237 So. 2d 640 | N/A | Alabama | Alabama Supreme Court | 237 So. 2d 640 (1970)
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
In re Horace E. DAVIS, alias
v.
STATE of Alabama.
3 Div. 448.
Supreme Court of Alabama.
June 11, 1970.
*641 MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for petitioner.
Hill, Hill, Whiting & Harris, Montgomery, opposed.
MERRILL, Justice.
Horace E. Davis was convicted for possessing certain narcotics and was sentenced to two years in the penitentiary. The Court of Criminal Appeals reversed because the only evidence came as a result of a search and the appellate court held that the search warrant was not based upon an adequate showing of probable cause for believing that the narcotics were on Davis' premises.
The Attorney General petitioned this court for writ of certiorari, basing the petition on the ground that the opinion was in conflict with a prior decision of this court, properly setting out excerpts from the opinion of the Court of Criminal Appeals and from the opinion of this court which appeared to be conflicting. We granted the writ, and the cause was argued May 12, 1970.
At the present time, and when we granted the writ, we do and did agree that the result reached by the Court of Criminal Appeals was correct under the recent decisions of the Supreme Court of the United States relating to search warrants, but we think the opinion put an unnecessary and heretofore unrequired additional burden on the affiant requesting the search warrant, which is contrary to our recent case of Clenney v. State, 281 Ala. 9, 198 So. 2d 293.
The full affidavit made by a narcotic agent for the State of Alabama is set out in the opinion of the Criminal Court of Appeals, and we quote here only the first paragraph:
The Attorney General, in setting out the conflicting opinion, stated in the State's petition for writ of certiorari:
Disposing of the informer's "batting average," first, we agree that Clenney says that no "batting average" is required to establish the reliability of the informer. If the affiant so desires, he may cite prior instances of proven reliability, but it is not a requirement.
Clenney says that the hearsay of the informer, which the affiant relies upon, must be supported by facts showing a substantial basis for crediting the hearsay. And Clenney adopts the methods required in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), to show such a substantial basis. These requirements are that the magistrate be informed of (a) some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and (b) some of the circumstances from which the officer concluded that the informant was "credible" or his information "reliable." The Court of Criminal Appeals did not reach the question of the informer's basis for his information but decided the case partially on the ground that the informer's reliability was not shown.
*643 However, we think that the affidavit did adequately show the basis for the officer's conclusion that the informer was reliable. The United States Supreme Court has considered affidavits presenting information from informants. In Aguilar, the officers said, "Affiants have received reliable information from a credible person." In Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), the affidavit said that the FBI "has been informed by a confidential reliable informant." In the instant case, the officer said, "Information from a person whose record of reliability for correctness has been good."
The showing here is more than the showings disapproved in Aguilar and Spinelli. We have been cited to no United States Supreme Court case condemning such a showing. The lower courts have been split on the question. The United States Second Circuit Court of Appeals has approved a statement very similar to the one in the instant case where the informant was simply characterized as "an informant of previous reliability." United States v. Freeman, 358 F.2d 459 (2 Cir. 1966); Contra, United States ex rel. Palladino v. Gable, 281 F. Supp. 69 (E.D.Pa. 1968).
We now turn to the other half of the Aguilar test for the sufficiency of an affidavit utilizing information received from an informer. The Court of Criminal Appeals stated it to be that the affiant must "furnish some observation of the officer himself of some fact or conduct perceived by him (or perhaps by another law enforcement officer) which admits of the same inference as does the statement of the informer."
As we read Aguilar and Spinelli, they do not require anything more than a showing of circumstances necessary to enable the magistrate to determine the validity of the informant's conclusion that the narcotics are where he says they are. This may be by an independent corroborative observation of the officer himself or it may be from information received from the informant himself. See Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637. Spinelli would not have become controlling without Justice White's concurrence because a vote by him to affirm "would produce an equally divided court." In his concurring opinion, Justice White stated:
Based upon his interpretation of the opinion in which he concurred, there are times when a valid search warrant can be issued without some observation of the officer himself or some other law enforcement officer "which admits of the same inference as does the statement of the informer."
We conclude that the affidavit failed to reveal sufficient circumstances to satisfy this part of the Aguilar test. It is true that the informer told the officer that Davis had stated he had a supply of narcotics at his restaurant, in his car and in a small out building. But the affidavit does not state how his informant learned of this statement, or whether it was made to him. Spinelli emphasized that it is important for the magistrate to have information before him on which he can determine that the informant's conclusions are reasonable "so that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld." The court later said, in evaluating an informant's statement, "This meager report could easily have been obtained from an offhand remark heard at a neighborhood bar."
*644 While the affidavit here does purport to contain more support for the informant's conclusion than was present in Aguilar and Spinelli, the affidavit is still deficient. For all the magistrate knew, this information was fifth hand. The informant's statement, as related by the officer, did not indicate that Davis had made this statement to the informer himself. Such a basis for the informer's conclusion would be much less persuasive than more direct support for the informer's conclusion, for example, a statement that he had seen the narcotics or had purchased narcotics from Davis at the restaurant. Thus, this one underlying circumstance, with its potentiality for being a "rumor circulating in the underworld," is not a sufficient showing of the circumstances from which the informant concluded that the narcotics were where he said they were.
Finally, we agree with the Court of Criminal Appeals that the affidavit is deficient because it fails to show that the information received from the informant was fresh as opposed to being remote. No date is stated in the affidavit other than the date it was signed before the judge of the county court.
We conclude by quoting from the next to last paragraph of the majority opinion in Spinelli:
The judgment of the Court of Criminal Appeals is affirmed.
Affirmed.
All the Justices concur. | June 11, 1970 |
6811343a-46a7-42f4-b496-f95ed56824ed | Sisco v. Empiregas, Inc. of Belle Mina | 237 So. 2d 463 | N/A | Alabama | Alabama Supreme Court | 237 So. 2d 463 (1970)
James L. SISCO and Jack Jordan d/b/a Jordan Gas Company
v.
EMPIREGAS, INC. OF BELLE MINA, a Corporation.
8 Div. 385.
Supreme Court of Alabama.
July 10, 1970.
*464 Humphrey, Lutz & Smith, Huntsville, for appellants.
Hobart A. McWhorter, Jr., Birmingham, Ralph H. Ford, Huntsville, for appellee.
*465 BLOODWORTH, Justice.
This is an appeal by respondents, Sisco and Jordan from a decree overruling demurrers to a bill seeking an injunction to enforce a "non-competition" provision in an employment contract, denying a motion to dissolve a temporary injunction, and granting a permanent injunction.
The bill of complaint filed by complainant, Empiregas, Inc. of Belle Mina, seeks to enforce by injunction the "non-competition" provision in the employment contract, and to enjoin respondent "Jack Jordan, d/b/a Jordan Gas Company" from participating with respondent Sisco in selling and distributing liquid-petroleum gas (within the prohibited time period and area) and from utilizing information imparted to him by Sisco.
The trial court granted a temporary injunction without a hearing. Whereupon, respondents filed a motion to dissolve and demurrers, and after a hearing, the trial court denied the motion to dissolve, overruled the demurrers, and "permanently" enjoined respondents Sisco and Jordan in accordance with complainant's prayer for relief.
The bill of complaint alleges that complainant Empiregas, Inc. of Belle Mina is engaged in the business of distributing and selling liquefied petroleum gas in Alabama; that Empiregas is a stockholder in and distributee of certain of the assets of Gas and Chemicals, Inc., which corporation preceded Empiregas in the LP gas business in Madison and surrounding counties; that one of the assets Gas and Chemicals transferred and distributed to Empiregas was the employment contract executed by Gas and Chemicals and James Sisco on March 24, 1967; that Empiregas has continued to conduct the business as it was conducted by Gas and Chemicals, that is, by means of route salesmen with whom customers establish a regular custom of trade and through whom customers ordinarily have their sole contact with Empiregas; that following the execution of the contract with Gas and Chemicals Sisco was employed by it as a route salesman until January, 1969; that from January, 1969 to June 30, 1969 Sisco was employed by and operated as a salesman for Empiregas in the same area in and around Madison County; that on June 30, 1969, "Sisco voluntarily terminated his employment with Empiregas, which employment up to said termination was governed by and conducted pursuant to the terms and provisions of the Employment Contract. Empiregas complied with and performed the obligation of the Employment Contract on its part during Sisco's employment with Empiregas as a salesman aforesaid." The bill further alleges that while working for Empiregas, Sisco obtained the names and addresses of their customers, called upon them and made their personal acquaintance; that he secured additional customers for Empiregas; that he gained knowledge of the business methods of Empiregas; that he has used this knowledge in competition with Empiregas in violation of the employment contract; and that, in association with Jack Jordan, Sisco has engaged in the LP gas business since the termination of his employment with Empiregas. The employment contract, made a part of the bill, contains the "non-competition provision" whereby respondent James Sisco agreed:
In addition, it provides for the termination of the employment relationship by either party on thirty days' notice.
We consider the primary issues before us on this appeal to be: I. Whether the contract (containing the "non-competition" provision) sought to be enforced against *466 Sisco was, under the pleadings and proof, one personal to Gas and Chemicals (the complainant Empiregas' purported assignor) and therefore incapable of effective assignment; and II. whether the bill alleges sufficient facts to show the creation of a new contract by and between Empiregas (the purported assignee) and Sisco by "adoption" of all the terms of the contract between Sisco and Gas and Chemicals.
For the reasons which hereinafter appear, we think that Sisco had contracted for the personal performance of Gas and Chemicals, Inc., and that therefore the duties of Gas and Chemicals, Inc., under that contract were not delegable. Consequently, complainant Empiregas, Inc. of Belle Mina had no right to performance from Sisco since his performance was conditioned on personal performance by Gas and Chemicals, Inc., and that performance was not rendered. Being further convinced that the allegations of the bill are insufficient to show an "adoption," we conclude that the trial court's overruling the demurrers to the bill constituted reversible error.
At the outset we note that Empiregas agrees with Sisco and Jordan's contention that the trial court's decree granting a permanent injunction against them must be reversed since the propriety of a permanent injunction was not before the trial court in a hearing on motion to dissolve a temporary injunction. Thus, we reverse also as to the granting of the permanent injunction.
In assignment of error 1, Sisco and Jordan urge the overruling of their demurrers as reversible error. Ground 3 of the demurrers states:
Empiregas contends that the rule forbidding the assignment of personal services contracts means only that the "duty" of a party who has contracted to perform personally (the employee) cannot be performed by another (a delegate), that the rule does not prevent the party to whom the personal performance is due (the employer) from assigning his rights and delegating his duties. Under this view, it argues, the fact that Sisco had contracted to perform personally and could not delegate his duties did not prevent Gas and Chemicals from assigning its rights and delegating its duties under the contract. It is our view, hereinafter elaborated, that the performance owed by both Sisco and Gas and Chemicals was personal, and neither could delegate his (its) "duties."[1]
We commence with the general proposition that personal service contracts are not assignable. 6 C.J.S. Assignments § 26, p. 1074; Crawford v. Chattanooga Savings Bank, 201 Ala. 282, 78 So. 58 (1917). We think this bill shows on its face that the contract here at issue involved a relationship of personal confidence between the parties. No other conclusion seems logical where the contract by its language permits the employer to discharge the employee on thirty days' notice and then to prevent him for five years from pursuing his livelihood over an area we judicially know to encompass some 7,850 square miles and to include the cities of Huntsville, Scottsboro, Guntersville, Albertville, Cullman, Hartselle, Decatur, Athens, Moulton, and a considerable portion of Middle Tennessee. Surely, one would not be presumed to have intended to commit himself into the hands of a stranger so empowered, and the bill shows on its face that Gas and Chemicals was no stranger to Sisco, having been his *467 employer for some two years and eight months prior to his execution of the contract at issue. These circumstances, we feel, demonstrate that Sisco relied upon the uniqueness of his corporate employer and their relationship of mutual confidence when he entered into this contract.
Numerous authorities support our conclusion that this is a personal contract. In Schweiger v. Hoch, 223 So. 2d 557 (District Ct. of App. of Fla. 1969), the contract of an employee of an accounting firm, entered into two or three weeks after he began work, was held to be personal and thus unassignable to a successor accounting firm upon dissolution. The court said:
quoting Smith, Bell & Hauck, Inc. v. Cullins, 123 Vt. 96, 183 A.2d 528 (1962). In the last-quoted case the corporate distributee of all the assets of a dissolved corporation sought to enforce, as assignee, the non-competition clause of a contract entered into by the employee and the dissolved corporation a few months after the employment began. The Supreme Court of Vermont held the contract to be personal and unassignable, saying further:
In Oak Cliff Ice Delivery Co. v. Peterson, 300 S.W. 107, 109 (Ct. of Civ.App. Texas 1927), a contract to drive an ice wagon was held personal and therefore unassignable by the employer Williams. The court said:
Whether a contract is personal is largely a matter of the intention of the parties thereto [Smith, Bell & Hauck, Inc. v. Cullins, supra], and the "intention of the parties to a written contract is derived from the provisions of the contract * * *." Todd v. Devaney, 265 Ala. 486, 92 So. 2d 24 (1957).
Thus, it results that the assignee's (Empiregas') right to performance from Sisco (including performance of his covenant not to compete) is conditional upon personal performance of its duties by Gas and Chemicals. 4 Corbin on Contracts, pp. 439-441. The bill does not allege that Gas and Chemicals has acted as Sisco's employer since the alleged assignment. On the contrary, it is clear that the alleged "assignment" of the contract was an attempt by Gas and Chemicals both to assign its "rights" and delegate its "duties." Indeed, the bill shows that Gas and Chemicals is in dissolution and liquidation and obviously could not perform its *468 "duties" and obligations under the contract. Therefore, the conditions of Sisco's duty to perform having failed, the bill shows that Empiregas, Inc. of Belle Mina has no right to performance from Sisco.
We do not wish to be understood as saying that an employer may not provide for assignment of its rights and delegation of its duties under a personal service employment contract. On the contrary, an employer wishing to provide for such contingency can expressly so provide in the contract.
Two cases placing great emphasis upon an assignability provision in the employment contract are Abalene Pest Control Service, Inc. v. Hall, 126 Vt. 1, 220 A.2d 717 (1966), and Orkin Exterminating Company v. Burnett, 259 Iowa 1218, 146 N.W.2d 320 (1966). However, the clause in neither case is a model of clarity. While these clauses make it clear that the employer's "rights" are assignable, they do not clearly provide that all of the employer's "duties" may be discharged by a delegate of his choosing. We think the latter provision is an essential one.
Two additional situations are frequently cited as exceptions to the so-called rule against the assignment of personal services contracts. See, e. g., 6 Am. Jur.2d, Assignments, § 11, pp. 196-197. First, it is said that the employee's "consent" to the assignment permits the attempted assignee to enforce the contract. Second, it is said that the employee's conduct in continuing in the employ of the assignee permits the assignee to enforce the contract, the theory being that the employee has thus "adopted" or "ratified" the contract. We think, however, that these two situations are improperly termed "exceptions." It appears to us that the effect of the employee's "consent" or of his continuing in the employment of the assignor ("adoption" or "ratification") is to create a new contract between employee and assignee rather than merely to permit the assignment of the old contract. Mr. Justice Holmes gave voice to this theory in American Colortype Co. v. Continental Colortype Co., 188 U.S. 104, 23 S. Ct. 265, 47 L. Ed. 404 (1903):
The gist of Justice Holmes' view is that the contract which the assignee employer seeks to enforce is a new contract between it and the employee. The employee's "consent" is taken as a manifestation of his assent to a new contract with his new employer, the detailed terms of which are determinable by reference to the old contract.
*469 These considerations are made pertinent to the case at bar by respondents Sisco and Jordan's argument under assignments of error 1 and 2, specifically, the overruling of ground 8 of their demurrers, which states:
Under these assignments, they contend that the allegations averring an "adoption" or "ratification" by Sisco and Empiregas of the contract between Sisco and Gas and Chemicals are insufficient for that purpose. We agree. The only allegations in the bill to which the theory of "adoption" could be referred are as follows:
and
To say that parties have adopted a contract, is, as pointed out by Mr. Justice Holmes, supra, merely to say that they have entered into a new contract, referable to the old for its terms. The manifestation of assent required for the creation of this new contract must be as unambiguous and unequivocal as that required to create any other contract. 1 Williston on Contracts, § 72, p. 235.
Contractual obligations partake of a solemn character, and we should be zealous to ensure that no one is fettered who has not manifested his assent to be. The bill did not expressly allege that Sisco and Empiregas entered into a new contract embracing all the terms of the contract between Sisco and Gas and Chemicals, nor did it allege conduct on the part of Sisco and Empiregas sufficiently unambiguous to constitute mutual assent to the terms of the Sisco-Gas and Chemicals contract. Indeed, as pointed out by Sisco and Jordan in their brief:
Although this contention is advanced under a rather general ground of demurrer, we think this is excusable in view of the rather general allegation of facts to show the "adoption" theory.
For the reasons given, we think the demurrers to the bill should have been sustained; consequently we reverse as to the court's overruling of the demurrerswithout prejudice, of course, to Empiregas' right to amend its bill to state a cognizable equitable theory of relief.
Since we consider the bill to be demurrable, it will not support a temporary injunction, and the decree of the trial court must be reversed and remanded for the entry of a decree not inconsistent with this opinion.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON, COLEMAN and McCALL, JJ., concur.
[1] We reserve judgment on the question whether the party who owes no "duty" of personal performance may delegate his duties to a third party. | July 10, 1970 |
7eebb4af-802f-4ff1-9d3b-dc9ccba0436a | Muscogee Construction Co. v. Peoples Bank & Trust Co. | 238 So. 2d 883 | N/A | Alabama | Alabama Supreme Court | 238 So. 2d 883 (1970)
MUSCOGEE CONSTRUCTION CO. et al.
v.
PEOPLES BANK AND TRUST CO.
3 Div. 450.
Supreme Court of Alabama.
July 16, 1970.
Rehearing Denied August 27, 1970.
*884 Richard M. Jordan, Montgomery, for appellants.
George B. Azar, Montgomery, for appellee.
MADDOX, Justice.
Peoples Bank and Trust Co., appellee here, filed a declaratory judgment action in the Circuit Court of Montgomery County, In Equity, against appellants, Muscogee Construction Co. and W. G. Salter and his wife, Dorothy Kovacs Salter.
Complainant alleged that it had obtained a judgment in a suit on a note against Muscogee Construction Co., a Georgia corporation, and against W. G. Salter through the Circuit Court of Montgomery County, and that a parcel of real estate located on South Court Street in Montgomery was sold in satisfaction of this judgment. Peoples Bank was high bidder at the sale and received a Sheriff's deed. Legal title to the property in question at the time of the sale was in the name of Dorothy Kovacs Salter.
Peoples Bank alleged that W. G. Salter had paid for the property in question, but that the original deed was in the name of Dorothy Kovacs and that all equitable interest and ownership of the property was vested in W. G. Salter at the date of the Sheriff's sale. Complainant says that by virtue of the Sheriff's deed, it obtained not only the equitable title but the legal title which was held by Dorothy Kovacs Salter. Mrs. Salter denied that Muscogee or W. G. Salter ever held or owned any right or interest in said property.
Briefly, the facts are that Dorothy Kovacs, an unmarried woman living in Montgomery, signed a purchase agreement to buy the house and lot in question. She was to pay $15,000 for the property$300 earnest money and $700 down at the time of closing. The sale was completed and Kovacs received a deed to the property on December 16, 1963, which was recorded the next day in the office of the Probate Judge of Montgomery County.
The evidence is in dispute relative to the payment of the earnest money, but Mrs. Salter (formerly Dorothy Kovacs) claims that she personally paid the $300 earnest money, borrowed the $700 down payment from W. G. Salter, her present husband, which she claims she later repaid to Salter, and executed a $14,000 note in her name individually for the balance of the purchase price and secured it with a real estate mortgage, which she executed individually.
In December of 1963 Mrs. Salter (then Dorothy Kovacs) made arrangements to have the house remodeled in order that she could open an interior decorating business. Unquestionably, the evidence shows that W. G. Salter was a close confidant in the making of the contract for the remodeling work and that Salter actually paid for the costs of the work. Mrs. Salter claims that as consideration for the payment by Salter of the cost of repairs she transferred to *885 Salter 5,000 shares of stock in a Georgia insurance corporation valued at approximately $1.15 per share. The evidence shows that the 5,000 shares were originally transferred from Salter to Dorothy Kovacs on August 30, 1963. There was no showing relative to the consideration which was paid for the transfer.
On February 20, 1964, Muscogee, acting through Salter, made a note for $5,000 with Salter endorsing the note individually at Peoples Bank. It was this note on which Muscogee defaulted, on which Salter defaulted, on which Peoples brought suit, recovered a judgment, and on which levy was made on the house and lot in question.
Kovacs and Salter were married later, and Mrs. Salter continued to make the mortgage payments on the house and lot each month. The interior decorating business was never set up and the house was rented by Mrs. Salter; and she was living in Columbus, Georgia, with her husband.
The evidence was presented solely by depositions. Two depositions taken in the trial of an action filed by Salter and Kovacs in the United States District Court for the Middle District of Alabama against the individuals doing the remodeling work on the house were also introduced into evidence.
The trial court made extensive findings. Summarized, these findings were to the effect that a justiciable controversy existed between the parties, that Muscogee and Salter paid the purchase price and the costs of repair for the house in question, that during the time when the house was purchased and the repairs were made that Salter was in poor financial shape, that the transfer of the stock by and between Salter and Kovacs was for their own purposes in "an apparent effort to hinder, delay or defraud their creditors." The court further found that Salter and Muscogee actually paid the initial $1,000 toward the purchase price and for the repairs to the house. The court then found:
Appellants assign as error the court's action in overruling their demurrer to the declaratory judgment complaint and also the court's finding that Peoples Bank, by virtue of the sheriff's deed, became vested as the owner of all the right, title, and interest in the property, both legal and equitable, of Muscogee and W. G. Salter.
It is axiomatic that in a declaratory judgment proceeding if the bill shows a bona fide justiciable controversy which should be settled, it is sufficient to withstand demurrer and a declaration of rights should be entered after demurrer and on evidence which the parties deem proper to introduce on submission for final decree. Moore v. City of Fairhope, 275 Ala. 506, 156 So. 2d 366 (1963).
As already pointed out, the evidence was presented entirely by deposition; therefore, no presumption of correctness attends the findings of fact and we review the evidence as an original proposition. Carnegie v. Carnegie, 261 Ala. 146, 73 So. 2d 556 (1954). We have carefully reviewed the evidence, especially as it relates to the finding made by the trial court that the transaction was made with an intent to hinder, delay, and defraud Peoples Bank, a creditor of Muscogee and Salter, and we find that the trial court committed error in its final decree. The deed to Dorothy Kovacs was delivered on December 16, 1963, and the remodeling work was started two months prior to the time that the note was made to Peoples Bank by Muscogee, which Salter endorsed.
We are aware that where the purchase price is paid by one person and title taken in the name of another for the purpose of defrauding the creditors of the person furnishing the consideration, the conveyance is fraudulent as to such creditors. Hewett v. Continental Supply Co. of Huntsville, Inc., 271 Ala. 660, 127 So. 2d 834 (1961).
A reading of our decisions would also indicate that where actual fraud exists, a conveyance made with intent to hinder, delay, or defraud could be set aside by a subsequent as well as an existing creditor. See L. W. & P. Armstrong v. Miller, 238 Ala. 17, 189 So. 74 (1939).
The burden of proof is upon the subsequent creditor to show actual fraud, which can be shown by the facts and circumstances of each case, but which will not be presumed; it must be proved. L. W. & P. Armstrong v. Miller, supra; Smith v. Wilder, 270 Ala. 637, 120 So. 2d 871 (1960). In fact, we have said that the right of a subsequent creditor to avoid a conveyance as fraudulent depends on the existence of fraud in the transaction, and the burden of proof is on the creditor, for such fraud must be proved and will not be presumed if the circumstances in evidence may be consonant with honesty in the parties to the conveyance. Manchuria S. S. Co. v. Harry G. G. Donald & Co., 200 Ala. 638, 77 So. 12 (1917). See also McCrory v. Donald, 192 Ala. 312, 68 So. 306 (1915).
The complainant failed to meet the burden of proving that Muscogee and Salter intended to defraud it at the time the conveyance was made to Dorothy Kovacs and the judgment of the trial court is due to be reversed and remanded.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, HARWOOD and McCALL, JJ., concur.
MADDOX, Justice.
On application for rehearing appellee says that we have substituted our findings for those of the trial court. We do not so read our original opinion. We noted many inconsistent statements in the depositions of the parties, as appellee pointed out initially and on application for rehearing, but our reversal and remandment was not made on the trial court's findings of fact, with the exception of the finding that there was fraud, but solely upon the ground that there was insufficient evidence in the record for the trial court to conclude the existence of fraud in the transaction, especially in view of the rule that fraud will not be presumed if the circumstances in evidence may be consonant with honesty in the parties to the transaction.
As we pointed out in the original opinion, fraud can be shown by circumstances surrounding a particular transaction, but is never presumed. L. W. & P. Armstrong v. Miller, 238 Ala. 17, 189 So. 74 (1939). Our reversal and remandment does not foreclose the appellee from showing, if it can, whether Salter and Muscogee were solvent at the time of the alleged fraudulent transfer, or other facts, such as circumstances surrounding the making of the loan with the bank. We cannot possibly know whether circumstances did exist which would show that fraud was present. But facts sufficient to show fraud are not in the record before us, and we have carefully reviewed it again on application for rehearing.
Appellee suggests that in our original opinion we held that the appellee was required to prove that the transaction was made with the specific intent to hinder, delay and defraud Peoples Bank. While we do not see how our original opinion could be so interpreted, we here restate the rule which we think is applicable. If there is sufficient evidence, direct or circumstantial, of actual fraud on the part of the debtor, directed toward existing creditors, contemplated creditors, or both, such transaction is void as to such creditors. We are still of the opinion, however, that the evidence in this record is insufficient to show fraud, and the evidence is certainly not of the quantity and cogency of the evidence we held to be sufficient in L. W. & P. Armstrong v. Miller, supra, strongly relied upon by the appellee. The application for rehearing is due to be denied.
Opinion extended and rehearing denied.
LAWSON, MERRILL, HARWOOD and McCALL, JJ., concur. | July 16, 1970 |
8bbef4b6-5818-4c7b-bd28-38ed432cad6d | Kingsberry Homes Corporation v. Ralston | 235 So. 2d 371 | N/A | Alabama | Alabama Supreme Court | 235 So. 2d 371 (1970)
KINGSBERRY HOMES CORPORATION, a Corporation, and Kingsberry Homes Division of Boise Cascade Corp., a Corporation, successor by reason of merger to Kingsberry Homes Corporation
v.
Howard E. RALSTON.
6 Div. 658.
Supreme Court of Alabama.
March 26, 1970.
Rehearing Denied May 15, 1970.
*372 John H. Morrow, Warren B. Lightfoot, Birmingham, for appellant.
Francis H. Hare, Birmingham, for appellee.
BLOODWORTH, Justice.
This is an appeal by the defendant Kingsberry Homes from a judgment for plaintiff, and judgment overruling motion for new trial, in an action for personal injuries which resulted in a jury verdict for $27,500.
Plaintiff, a freight train conductor, recovered a consent judgment for $40,000 against his employer, the AGS Railroad, under the Federal Employers' Liability Act for his injuries arising out of this accident. Plaintiff then brought this suit against Kingsberry Homes for negligently maintaining its loading dock in a condition not reasonably safe for the crews of railway freight trains because of such a close clearance between the loading dock and freight cars on a spur track. After a jury trial, he recovered judgment against Kingsberry Homes for $27,500. The consent judgment against AGS is subject to deduction for any recovery from Kingsberry Homes.
This accident occurred when plaintiff came on the premises on the AGS train to move three empty boxcars sitting on the spur track adjacent to the platform. While plaintiff was using the stirrup or step of a boxcar to climb upon the Kingsberry platform to see whether the cars were clear *373 of workmen before a coupling was made, his fellow crewman backed the train into the far end of that boxcar and mashed him between the side of the car and the loading platform, fracturing his acetabulum. Plaintiff related that he had not given any signal to the brakeman, but that the brakeman had taken it upon himself to signal the train back. He said that the train should not have moved without getting a signal from him to couple up. He did not expect the cars to move at all.
Kingsberry Homes operated a manufacturing plant in Fort Payne, Alabama, receiving freight at its premises on a spur track off the AGS Railroad main line. Shipments were loaded and unloaded from AGS Railroad cars to Kingsberry Homes upon its loading platform constructed adjacent to the spur track. The spur track at this point was owned by Kingsberry Homes. The loading platform was constructed after the spur track was built. It is located from 6 feet 5 inches to 6 feet 8¼ inches from the center of the track. The area between the track and the platform was dirt; it was not level but sloped. There was debris, wood and steel scattered along the area. From the side of a boxcar sitting on the spur to the edge of the platform was approximately 22 inches. Measurements of the distance from a step on a boxcar to the platform showed it to be about 13½ inches. The floor of a boxcar was about even with the level of the platform. A steel plate is used by Kingsberry to connect the platform with a railroad car to load or unload its materials with a forklift.
Defendant's predecessor company[1] entered into a contract with the railroad that it would "* * * at all times keep free and clear of any obstruction whatever * * the space twenty (20) feet in width measured ten (10) feet each way from the center of said track, all structures, facilities or property located or placed * * * parallel with the same to be safely and substantially maintained * * * to preserve said clearances; * * *."
On this appeal, appellant Kingsberry Homes argues for reversible error the actions of the trial court, viz: Overruling its motion for a new trial as to the insufficiency of the evidence; refusing to give its general affirmative charge with hypothesis; refusing to give its two charges dealing with "open and obvious" dangerous conditions, and its charge relating to a "hazard or danger" of which plaintiff's employer was fully aware; and, sustaining plaintiff's objection to a question to defendant's witness as to whether a loading platform is an "obstruction."
First, Kingsberry complains of the overruling of its motion for new trial. The only ground argued is that the verdict is contrary to the great weight of the evidence, thus it is the only one we consider. State v. McDaniel, 285 Ala. 310, 231 So. 2d 878; Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So. 2d 484; Boudrow v. H & R Construction Company, 284 Ala. 60, 222 So. 2d 154 (1969).
In Zoning Board of Adjustment, etc. v. Wright, 283 Ala. 654, 658, 220 So. 2d 261, we restated our oft-expressed rule:
We have also repeatedly held that we "will not reverse an order refusing a new trial on the ground that the evidence is not sufficient to support the verdict, or that the verdict is contrary to the evidence, `unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is *374 so decided as to clearly convince the court that it is wrong and unjust.'" Reed v. Thompson, 225 Ala. 381, 382, 143 So. 559, 560; State v. Smith, 283 Ala. 454, 457, 218 So. 2d 266 (1969). We are not so convinced. As we hereinafter indicate, we believe the trial court properly submitted the case to the jury under its instructions, and that the case was one for the jury's determination. The jury having spoken, we will not disturb its verdict. We find no reversible error here.
Next, Kingsberry urges error to reverse in the trial court's refusal to give the general affirmative charge with hypothesis. The argument here seems to be that defendant is not liable to the plaintiff on account of injury resulting from the "open and obvious" danger due to the closeness of the loading platform to the track, because plaintiff knew and was aware of it; and, that Kingsberry was under no duty to alter or reconstruct these premises to obviate the known danger. Kingsberry queries us:
Kingsberry cites McRee v. Woodward Iron Company, 279 Ala. 88, 182 So. 2d 209 (1966), and Claybrooke v. Bently, 260 Ala. 678, 72 So. 2d 412 (1954), as being cases with similar facts and authority for its contentions. It adds, "We would suggest * * * that affirmance of this case requires that this court overrule this line of long standing Alabama cases", viz: McRee v. Woodward Iron Company, supra; Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 189 So. 2d 474 (1966); Claybrooke v. Bently, supra; Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388 (1937); United States Cast Iron Pipe & Foundry Co. v. Fuller, 212 Ala. 177, 102 So. 25 (1924); Connors-Weyman Steel Co. v. Kilgore, 189 Ala. 643, 66 So. 609 (1914).
In answer to these contentions, appellee Ralston replies that Kingsberry had a duty towards him as an inviteeemployee of the railroadto provide a reasonably safe place to work under the common law, by statute (Title 26, § 12, Code of Alabama 1940), and by the contract. And, whether there was a negligent violation of that duty or whether plaintiff Ralston himself was guilty of contributory negligence because of the so-called "open and obvious" nature of the danger were jury questions. Ralston also contends this is not that kind of "open and obvious" danger which is contemplated by the rule. He says notwithstanding the "close clearance" was visible, the movement of the train was necessary to complete the act resulting in the injury, and this was not "obvious" because the plaintiff was not required to anticipate such negligent conduct on the part of his fellow servants. Likewise, Ralston argues that the "no duty" rule contended for by Kingsberry does not apply where the plaintiff is present on the premises as an employee of a common carrier or other public utility since his presence is not dependent on the landowner's permissionthe basis for the *375 rule, citing Harper and James, The Law of Torts, Vol. 2 (1956 Ed.), §§ 27.13, 27.14, p. 1489 et seq. Finally, Ralston says the "no duty" rule should not apply when the invitee-plaintiff is obliged by the "economic coercion" of his job to work at the place where there is some danger or else strike or quit.
We do not think it necessary that we attempt to reconcile all these respective contentions. We have set them out in order to demonstrate the scholarly and resourceful approaches which both counsel have taken in this case, and for such benefit as may enure to Bench and Bar in future litigation in this area of the law.
We have concluded, after careful study, that the trial court's refusal of the affirmative charge was free of error that the case was properly submitted to the jury.
We have held in numerous civil cases that "the question must go to the jury if the evidence furnishes a scintilla in support of [plaintiff's] theory"; and in considering the propriety of refusing the affirmative charge for defendant, we will review those tendencies of the evidence most favorable to plaintiff, regardless of any view we might have as to the weight of the evidence, and must allow such reasonable inferences as the jury was free to draw, not inferences which we might think to be the more probable. Orange v. Shannon, 284 Ala. 202, 224 So. 2d 236.
The amended complaint charged, inter alia, that the defendant negligently maintained its loading dock,
The pertinent portions of the contract, which we have already set out, provided that the owner would "* * * at all times keep free and clear of any obstruction whatever * * * the space twenty (20) feet in width measured ten (10) feet each way from the center of said track, all structures, facilities or property * * * located or placed * * * parallel with the same to be safely and substantially maintained * * * to preserve said clearances; * * *." [Emphasis supplied.]
We held in Blount Brothers Construction Company v. Rose, 274 Ala. 429, 437, 149 So. 2d 821 (1962), that under the provisions of a prime contractor's contract with the government to furnish safety devices for the project, such provisions enure to, and are made for, the benefit of employees of sub-contractors on the project. Such contract, we said, "imposed the duty on appellant [the contractor] to provide a reasonably safe place for Mr. Rose [employee of the sub-contractor] and his fellow workers to work on this project. Tennessee Coal, Iron and R. Co. v. Sizemore, 258 Ala. 344, 62 So. 2d 459; Evans v. Patterson, 269 Ala. 250, 112 So. 2d 194."
Both in Blount Brothers Construction Company v. Rose, supra, and in Tennessee Coal, Iron and R. Co. v. Sizemore, supra, the contract provisions provided for the safety of employees. We said, in Tennessee Coal, Iron & R. Co. v. Sizemore, supra:
Although the contract in the case at bar does not in express terms provide for safety of invitees, nevertheless, we think the jury could consider its provisions as being *376 for the plaintiff's direct benefit. It appears to us that this case is governed by the holdings in Rose, Sizemore, and particularly Evans v. Patterson, supra.
In Evans v. Patterson, supra, there was an action for injuries sustained by a passenger in an automobile which collided with another automobile at an unmarked intersection on a highway undergoing repairs made by defendant-contractor under contract with the State. The evidence established that the intersection was dangerous and constituted a hazard to the traveling public if not marked. We held that the contract between the defendant-contractor and the State Highway Department was admissible, and could be considered by the jury in determining what would be due care under the circumstances of that case although the common law duty was the only duty owed by defendant to plaintiff.
It was argued by the defendant-contractor in Evans v. Patterson, supra, that the action being in tort, the defendant owed no duty other than the common law duty to use due care to keep the highway safe for travel until the highway was turned over to the State upon completion of the contract and that "the contract cannot be looked to to determine the duty * * *."
While we did hold that there was only a common law duty to use due care to keep the highway safe for travel until the highway was turned over to the State, we also held that the contract could be considered to determine what would be such due care. In Evans v. Patterson, supra, we quoted with approval from Morgan Hill Paving Company v. Fonville, 222 Ala. 120, 130 So. 807, and said with respect to that case:
Thus, we concluded in Evans v. Patterson, supra, that "with reference to the contract between the state and the contractor * * * the plaintiff was entitled to have the benefit of a duty of due care as indicated by the contract, which, as we have pointed out, includes the placing of warning signals at the intersection here involved."
We say here the plaintiff was entitled to have the benefit of a duty of due care as indicated by the contract in this case.
As to Kingsberry's contention that it was due the affirmative charge on the theory that a landowner is not liable for injury to an invitee from "open and obvious" dangers or dangers known to the invitee and that plaintiff's testimony conclusively showed that he knew of the danger, we conclude that this contention is untenable for two independent, though similar, reasons.
As we have already mentioned, it is settled that a scintilla of evidence for the plaintiff is sufficient to warrant submission of the issues to the jury. Admitting arguendo the applicability of the "open and obvious danger" rule to the facts at bar, we think that there was at least a scintilla of evidence to show that plaintiff did not know of the danger. While plaintiff did testify that he knew that the loading platform was dangerous, he further testified that he knew it was dangerous to be between the cars and the platform while the cars were moving. The jury could consider that at the time of the accident, plaintiff had no reasonable expectation that the cars would be moved; on the contrary, he testified that his fellow employees were supposed to await a signal from him before proceeding with the coupling and that he had given no signal. Thus, the jury could say defendant's loading platform became a danger only when there appeared to be a likelihood that the cars would move.
Claybrooke v. Bently, supra, is cited as requiring the opposite conclusion. We think not, and that Claybrooke is distinquishable. In that case plaintiff's decedent, *377 an invitee, was killed when a truck driven by a fellow employee, while backing up to load some cotton seed, caught a ramp which plaintiff's decedent was holding, mashing him between the ramp and defendant-invitor's building. We reversed the trial court for its refusal to give the affirmative charge for defendant because we said the plaintiff knew of the danger or had a knowledge of it equal or superior to that of defendant. Here, plaintiff not only knew of the close clearance but also of the impending movement of the truck.
While we are not certain that we fully understand the rationale of Claybrooke, we find the factual distinctions between it and the case at bar to be so great that it made submission of plaintiff Ralston's case to the jury proper under the scintilla rule. Additionally, there was no contract in Claybrooke (as exists in the case at bar) which the jury could look to and consider as providing specific safety measures for the benefit of employees of the invitee.
The same distinction renders inapposite McRee v. Woodward Iron Company, supra; Crawford Johnson and Co. v. Duffner, supra; Lamson & Sessions Bolt Co. v. McCarty, supra; Connors-Weyman Steel Co. v. Kilgore, supra. The dictum in United States Cast Iron Pipe & Foundry Co. v. Fuller, supra, on which appellant relies supports his contentions only by the broadest inference.
We think there is yet another reason why appellant's contention must fail. It is settled that contributory negligence in an invitor-invitee situation requires not only knowledge of the dangerous condition but also an appreciation of the danger and a want of due care. F. W. Woolworth Co. v. Bradbury, 273 Ala. 392, 140 So. 2d 824 (1962); Foster & Creighton Co. v. St. Paul Mercury Indem. Co., 264 Ala. 581, 88 So. 2d 825 (1956).
In Foster & Creighton, supra, plaintiff's decedent was killed when he fell through an unguarded open hole in the third floor of a building under construction. Appellant requested the affirmative charge based on the theory that it was not liable for injury from an open and obvious danger, but it was refused. Our court affirmed the trial court and held that whether the elements of contributory negligence were present in that case was a question for the jury. In addition, defendant requested and was refused a written charge to the effect that if plaintiff knew of the unsafe condition, he could not recover. We said the trial court was correct in refusing this charge because mere knowledge of the dangerous condition unaccompanied by an appreciation of the danger and a want of due care is insufficient to constitute contributory negligence.
In F. W. Woolworth Company v. Bradbury, supra, plaintiff-invitee was injured in defendant's store when she slipped on some trash which she testified to having previously noticed. Defendant requested the affirmative charge, contending, in the language of the court, viz:
We held there was no reversible error in the denial of the affirmative charge, again noting that mere knowledge of the dangerous condition, absent appreciation of its danger, does not constitute contributory negligence. We said there, "We have long been committed to the proposition that the plaintiff's appreciation of the danger is, almost always, a question of fact for the determination of the jury." [Emphasis supplied.]
*378 We think that plaintiff's knowledge in the case at bar of the alleged dangerous condition on defendant's premises, viz., the close clearance does not necessarily import an appreciation of the danger and a want of due care. Certainly, plaintiff appreciated the danger presented by the close clearance when cars were in motion, as he himself admits, but whether plaintiff can be said to have appreciated a danger which was contingent upon the unexpected negligence of a third party and whether the plaintiff failed to exercise due care were questions for the jury.
Thus, we conclude, notwithstanding the defendant Kingsberry owed to plaintiff a common law duty to keep the premises reasonably safe for its invitees, the contract in question could be looked to and considered by the jury in its determination as to what would be a reasonably safe place under the circumstances of this case. It would then be for the jury to say what was the extent of Kingsberry's duty and whether it violated its duty. In considering these questions, it would consider whether Kingsberry negligently maintained the dock in a condition not reasonably safe for freight train crews; whether its duty to provide a reasonably safe place included a place free of obstruction for ten feet from the center of the track; whether the loading platform was such an obstruction or not; and, whether the defendant had located all "structures, facilities or property" so as "to preserve said clearances." If the jury determined these matters against the defendant, finding it had violated its duty, then it would consider whether the plaintiff's injuries and damages were proximately caused by the same, or whether the plaintiff himself in his actions and with knowledge and appreciation of the close clearance of the place in question in the event of movement of the cars was guilty of contributory negligence so as to bar his recovery.
While we do not think we have to answer Kingsberry's query, "What could defendant do to avoid this accident and liability in this case?", nor to comment on its answer to its own question that it must "tear down the platform or dismantle the track" to obviate the so-called known or obvious danger, we do feel we ought to make the following observations.
The question here is not whether Kingsberry can avoid liability only by altering or reconstructing its premises, but what is the extent of the common law duty which Kingsberry owes, and in determining this the jury can look to the contract to determine if it did exercise due care under the circumstances of this case. Evans v. Patterson, supra, followed in W. S. Fowler Rental Equipment Co. v. Skipper, (1963) 276 Ala. 593, 165 So. 2d 375.
Obviously, if the jury determines that this duty includes maintaining the ten foot clearance from the center of the track and that the platform was an obstruction within the meaning of the contract, then the defendant would have to alter the physical premises in accordance with the contract or face the future contingency of others being injured thereby. But, defendant, through its predecessors in possession, made the contract with the railroad which enured to the benefit of the plaintiff. Can it now complain of being forced to do that which it voluntarily bound itself to do by contractnamely, to maintain the required clearance?
We are of the opinion that the evidence in the case and legitimate inferences which may be drawn therefrom presented issues of fact for the jury, and the trial court correctly refused the general affirmative charge with hypothesis.
Next, Kingsberry contends for error in refusing its two requested charges dealing with "open and obvious" danger. These charges are, viz:
* * * * * *
Though we do not say whether or not these charges are in every respect correct statements of the law in this case[3], we are convinced that they were refused without error because they were substantially covered by the oral charge of the court. While we will not unduly lengthen this opinion to set out all the pertinent portions of the oral charge, we set out a part of the charge which we consider covers these charges:
* * * * * *
The next error charged is refusal of defendant Kingsberry's charge D, as follows:
We believe this charge also was amply covered by the oral charge of the court. Here again we will set out but a portion of that charge:
We might add that Kingsberry admits the oral charge contained the substance of the refused written charges, at least "in part," but maintains that other language in the oral charge qualified the rule expressed in the written charges "in such a way as to make it have virtually no application to this case." We simply point out that although Kingsberry excepted to and assigned as error portions of the oral charge, it has not argued these assignments in brief. Assignments not argued are deemed waived. Stallworth v. Doss, 280 Ala. 409, 194 So. 2d 566.
Finally, we come to the last alleged error, the sustaining of plaintiff's objection to a question directed by defendant to his own expert witness.
"THE COURT: I will sustain."
Kingsberry says this evidence is admissible on four theories: that parties to the contract did not regard the platform as an obstruction; latent ambiguities can be explained by extrinsic evidence; technical words are explainable by parol; subsequent dealings of parties to a contract are important as showing the construction put on the contract by the parties themselves.
We feel there is no merit in these contentions and that the trial court correctly sustained the objection. The question was irrelevant to begin with, as it referred to "a" loading platform instead of "the" loading platform in the case. If the question is considered to be addressed to "the" platform, it is invasive of the province of the jury as that is one of the very facts in issue.
We think two of our cases are apt authority for upholding the trial court's ruling.
Alabama Great Southern R. Co. v. Baum, 249 Ala. 442, 31 So. 2d 366, was an action for injuries sustained in alighting from a locomotive, where claim was made that a step had ice on it. The trial court sustained plaintiff's objection to the following question propounded to Mr. Farmer, the engineer, by defendant:
"* * * `Q. Was there any defect in your steps, Mr. Farmer?'"
We said:
*381 * * * * * *
In Alabama Great Southern Railroad Company v. Bishop, 265 Ala. 118, 89 So. 2d 738, there was an action against the railroad for injuries sustained when plaintiff's foot caught in a crevice at a crossing and he fell and was struck by the train. In that case:
* * * * * *
* * * * * *
We reiterate we think the jurors themselves are as capable as anyone to conclude from the evidence whether the platform was an "obstruction" within the meaning of the contract.
Having carefully considered each assignment of error and having concluded there is no error in the record, we are of the opinion that this case should stand affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, COLEMAN and McCALL, JJ., concur.
On application for rehearing, appellant argues that our original opinion misstates the respective roles of the court and the jury as to defendant Kingsberry's duty to the plaintiff. Appellant says the opinion leaves it to the jury to determine what is the defendant's duty.
The criticism seems to be directed at our choice of words in two instances when we wrote: "It would then be for the jury to say what was the extent of Kingsberry's duty and whether it violated its duty"; and, "The question here is not whether Kingsberry can avoid liability only by altering or reconstructing its premises, but what is the extent of the common law duty which Kingsberry owes * * *."
If our opinion is subject to this interpretation, we certainly did not intend it. We adhere to the long-established common law tradition that it is for the court to define the duty owed, and for the jury to say whether there has been a breach of that duty. This duty, as we pointed out in this case, is to keep the premises reasonably safe for invitees such as plaintiff. What we said in the original opinion, and we reiterate it here, is that the jury could consider the contractual obligation in determining as a matter of fact whether Kingsberry breached this common law duty, that is, what is the extent of this duty under the evidence.
*382 Counsel also indicates that our statement in the opinion: "The consent judgment against AGS is subject to deduction for any recovery from Kingsberry Homes," may reflect a misunderstanding of the facts. We do not think so. Whether our statement is correct or not is immaterial since it is neither an issue nor a relevant fact in the case. Therefore, we withdraw it from the original opinion.
In conclusion, we do not consider "the Court's opinion marks a revolutionary departure from established common law concepts" as appellant suggests. We see no need to discuss any other contentions made in support of application for rehearing since we consider they were fully and amply developed in the original opinion.
Opinion corrected and extended. Application overruled.
LIVINGSTON, C. J., and SIMPSON, COLEMAN and McCALL, JJ., concur.
[1] The original loading platform was apparently built by Elkton Export Boxing Company which changed its name to Lumber Fabricators, Inc., which in turn changed its name to Kingsberry Homes. The contract was executed by Lumber Fabricators.
[2] "Q. Well, would it be dangerous to be there with your foot on that stirrup between the platform and the car when the coupling was made at the south end of that cut of cars?
"A. Well, it would be dangerous in there anytime when those cars are moved, it is so close it is a dangerous situation and it has been dangerous since the thing was built so far as that goes." [Emphasis supplied.]
[3] We note that appellant cites no case wherein the refusal to give these written charges has been held reversible error. It does cite authority that the giving of the same is not error. | March 26, 1970 |
f325a29a-f62c-4b06-bc64-4c5e5a5a96ef | Berry v. Robertson | 235 So. 2d 657 | N/A | Alabama | Alabama Supreme Court | 235 So. 2d 657 (1970)
Hershel Wayne BERRY, the Father of Regenia Fay Berry, Deceased
v.
W. C. ROBERTSON.
7 Div. 820.
Supreme Court of Alabama.
April 9, 1970.
Rehearing Denied May 28, 1970.
*658 Clark E. Johnson, Jr., Albertville, for appellant.
Dortch, Allen, Wright & Wright, Gadsden, for appellee.
PER CURIAM.
Appeal by plaintiff from adverse verdict, directed for defendant without hypothesis, *659 by the trial court following the closing of plaintiff's case. Defendant offered no evidence.
The complaint was in three counts, 5, 6, and 7, all charging malpractice in the treatment of plaintiff's minor child, who died in the hospital following aspiration of a bean or pea into its right lung. Demurrers were sustained to Counts 1, 2, 3, 4, 8, and 9. At the conclusion of plaintiff's evidence the defendant rested and requested in writing the general affirmative charge with and without hypothesis as to Counts 5, 6, and 7, which the court gave. The court also orally charged the jury that the form of your verdict will be "We the Jury find the issues in favor of the Defendant."
On December 29, 1964, Regenia Fay Berry, age 22 months, the child of plaintiff, was playing in the kitchen and got hold of some dry beans. The mother noticed the child in some distress, and observed the beans in the child's hand and mouth. By turning the child bottom side up and shaking her, some of the beans came out, but the child had difficulty getting her breath. The mother carried the child to her mother-in-law's home close by, where further efforts to clear up the child's breathing distress were unsuccessful. They went to the City of Albertville and to the office of Dr. B. N. Lavender. The physician examined the child, heard the history, advised the mother that the child had apparently aspirated one of the beans and he was unable to assist them, suggested the services of one qualified to assist, and recommended that the child be carried to Gadsden to a hospital. The child was carried to the emergency room of Holy Name of Jesus Hospital in Gadsden by the mother and her husband's employer, Mr. Hudson. The defendant, Dr. Robertson, later went to the emergency room and examined the child. X-rays had been made prior to the arrival of the defendant. Thereafter, defendant informed the mother that the X-rays indicated a foreign body in the right branch of the child's lungs. He explained to her that he was going to prescribe a shot for the child to make her rest. The next morning before noon, defendant, with the assistance of another doctor, would attempt to remove the object from the child's lung. At this time, the child was wheezing. The mother took the child to the fifth floor. A bed, with a tent and oxygen tank, was provided. Later, and after defendant had apparently left the hospital, the child had a choking spell and the mother requested assistance from the nurse at the desk. Shortly thereafter, Dr. Turnage, the anesthetist, scheduled to assist the defendant the next day in performing the operation, came into the room. The nurse had given the child a shot and Dr. Turnage also gave her a shot. Thereafter, the child went to sleep and slept normally in the croup tent until after five o'clock the next morning. About five o'clock on the morning of December 30, the child woke up and called its mother and died immediately. Artificial respiration was attempted but was unsuccessful. Dr. Robertson went to the hospital and talked to the mother and other members of the family present. He requested permission to perform an autopsy. The request was refused by the parents.
Following the jury verdict and judgment entered for the defendant, plaintiff filed a motion for new trial. This motion, presenting 30 separate allegations of error, was overuled. There are here 55 assignments of error, many of them referring (again) to (individual) grounds presented in the motion.
Appellant, in brief, states he "has three main contentions for reversal." He then lists: First, the giving of the affirmative charge as to Counts 5, 6, and 7; second, the ruling of the court in sustaining demurrers to Counts 3, 4, 8, and 9; and, third, the rulings of the court on questions asked Dr. Norman, an expert witness presented by the plaintiff.
Count 5 recites as follows:
Counts 6 and 7 are similar to 5 and charge negligent failure to treat the child. We do not find it necessary to set out the verbage of the rejected counts. All appear to be defective and subject to the demurrers interposed. Furthermore, no injury resulted and it appears from the whole record that plaintiff, under Counts 5, 6, and 7, was able to introduce all evidence surrounding the entire incident. We find no error here to reverse. Miller v. Mutual Grocery Co., 214 Ala. 62, 106 So. 396.
These assignments allege error in sustaining objections to questions propounded to plaintiff's witness, Grady Hudson.
The court sustained objection to the following question propounded to the witness Grady Hudson:
The inclusion of the word "symptoms" would ordinarily call for medical diagnosis and the witness, a layman, was not qualified to answer. We hold the ruling of the court was proper.
Objection was also sustained to the question:
We notice that the witness answered a previous question:
"Q Now, just tell what you noticed about the child.
So, to some extent the question was repititious.
We know that before leaving Gadsden the child had been examined by Dr. B. N. Lavender, who testified fully as to the condition of the child when he saw her at that time.
The mother, who held the child in her lap during the trip to Gadsden, testified with reference to the child's condition during the trip.
We hold there was no error to reverse in the ruling of the court.
The third question related to a conversation about "arrangements for the operationwhat was said about the financial arrangements" The court sustained the objection. This was without injury to the plaintiff for all of this evidence was later admitted without objection in the testimony of Mrs. Berry.
These assignments are argued in bulk and relate to alleged errors in rulings by the court on questions propounded to plaintiff's witness, Dr. Joe Norman.
It should be noted here that Dr. Joe Norman testified at length, with the witness being turned over to opposing counsel on voir dire on four separate occasions.
Objection was sustained by the court to the following question:
Objection was also sustained to the following question:
Again, objection was sustained to this question:
Objection of counsel to all three questions embraced the argument that because the witness was not familiar with the care and skill of physicians and surgeons in the same neighborhood (Gadsden, Alabama) pursuing the same general line of practice the witness could not qualify and be allowed to give expert testimony unrelated to location, and in no way relating to standards of practice or treatment required. The witness had answered that he was not familiar with the practice of medicine in that particular community.
The evidence showed Dr. Joe Norman was a graduate of the University of Alabama Medical College. Thereafter, he was a senior teaching resident in medicine at Boston University. Later, he went to Harvard Medical School and Massachusetts General Hospital where for three years he was a resident and Fellow in pulmonary diseases. He returned to Birmingham to be Chief Resident Physician in medicine and then joined the staff of the University Medical College. He was licensed to practice medicine in the State. During this period, he had performed the operation of bronchoscopy in removing foreign bodies in air passages approximately 250 times.
We feel the court's ruling in sustaining the objections to the three questions was incorrectthat the so-called "same locality" or "same general neighborhood," rule would not apply to questions of this nature.
After local counsel (Mr. McCord) took over the direct examination, the doctor was later asked and permitted to answer fully the same or similar questions without objection. We quote from the record.
"A (Witness contemplating)
"Q I know you wouldn't know the exact number, but
"A Sir, around two hundred.
"A Yes, sir, I have.
"A Yes, sir, I am.
"A Yes, sir.
"A Yes, sir, I think so.
"Q You think you would?
"A I do.
"Q You do know, absolutely?
"A Yes, sir.
"Q All right."
And also we find:
"MR. CHARLES WRIGHT: We object to that, if the Court please.
"THE COURT: Yes, I will overrule it.
"MR. CHARLES WRIGHT: We except.
"A Would you repeat the question, please, sir?
"THE COURT: Do you renew your objection?
"MR. CHARLES WRIGHT: Yes, sir.
"THE COURT: I will overrule it.
"MR. CHARLES WRIGHT: We except.
"A I would say that vegetable material, sir.
"Q Such as what, name some of them?
"A All forms of food, corn, beansthis is, of course, * * *.
"* * *.
"A Yes, sir, that is correct.
"Q All right, sir, will you explain to the Court why?
"A Well, in the first place
"THE COURT: Speak up.
*663 "Q Now, have you observed that on children?
"A Have I actually seen one swell? No, sir.
"Q Have you actually seen beans in their bronchial tubes?
"A Yes, sir, I have.
"Q And you say that beans swell, is that right?
"A Yes, sir, that is correct.
"Q State whether or not that endangers the life of the child?
"Q And you say one of the most dangerous is a bean?
"A Yes, sir, that is correct.
"Q For the reasons that you have explained?
"A Yes, sir.
"A Of an aspirated bean?
"Q Yes, sir.
"A What is the general recognized therapy
"Q Yes, sir, yes.
"A Removal.
"Q How?
"A Removal by bronchoscopic removal."
We hold that any error in the original ruling of the court in sustaining the objections to the questions first propounded to the witness was cured by the admission of the evidence above quoted.
Objection was sustained to plaintiff's offer to introduce Exhibit "X", being a part of a compendium, Cyclopedia of Medicine, edited by John Moyer, a surgeon. The part offered deals with effects and reactions of individuals who have vegetable substances in their lungs. It should be noted here that the author of Exhibit "X" was Dr. Chevilar Jackson.
We recognize the general principle that a treatise, essay, or pamphlet on a subject of science which is testified to by an expert as being a standard and trustworthy on the subject, is admissible. Law of Evidence in Alabama, McElroy, 2nd Edition, Vol. 2, pages 268-9.
We hold that the writing offered, (Exhibit "X"), was sufficiently identified as being written by a recognized authority in the field of medicine here considered. The trial court erred in sustaining the objection. But is this error prejudicial to be reversible?
The peremptory charge was given for the defendant which we later approve on the basis of a total failure of proof of any negligence. The ruling now considered had no effect upon the result which would have been the same if the ruling had never been made, or if it had been just the opposite. Error must be prejudicial to be reversible. Rule 45, Rules of the Supreme Court of Alabama, 279 Ala. XXIII, XLI, *664 XLII; Code of Alabama 1940, Title 7, Appendix; Hambaugh v. McGraw, 211 Ala. 550, 103 So. 646; Prestwood v. Thompson Co., 272 Ala. 547, 133 So. 2d 215.
These assignments deal with the giving of the general affirmative charge as to Counts 5, 6, and 7. The assignments include the alleged errors as set out in the motion for new trial.
While the defendant did not testify, parts of a deposition taken by plaintiff of the defendant were offered and read to the jury. In this testimony he related his examination of the child along with the diagnosis of the presence of a foreign body in the lung. He related the admission of the child to the hospital and the scheduling of an operation for the following morning. He discussed with Dr. Turnage, who was the anesthetist, that they would operate before noon. Further testimony dealt with the potential danger to a child under the conditions existing and the increase of danger if the foreign object was not removed. There was no evidence from the evidence presented by the parts of the defendant's deposition to warrant the submission of the case to the jury.
The burden of proof to establish negligence was and is upon the plaintiff. Proof of an unsuccessful or unfortunate result will not suffice to show that this injury was the result of negligence. The doctrine of res ipsa loquitur does not apply. Nor does the burden of proof shift by showing an unsuccessful result has attended the treatment of the patient by the physician. Snow v. Allen, 227 Ala. 615, 151 So. 468.
In Watterson v. Conwell, 258 Ala. 180, 183, 61 So. 2d 690, 693, we said:
We recently held in Parrish v. Spink, Ala., 224 So. 2d 621, 623, that:
Also, in Parrish v. Spink, supra, we held that in the absence of expert testimony to show some negligence, the jury could not know or conclude from common knowledge that any negligence attended the operation (treatment).
The only witness qualified to give expert testimony relating to any evidence of delay or negligence resulting therefrom in deciding when to operate on the child, in an attempt to remove the foreign body, would not answer the question. He (Dr. Joe Norman) stated:
We hold there was no proof of negligence by expert testimony in this case and that the court properly directed a verdict in favor of the defendant.
The foregoing opinion was prepared by J. Edgar Bowron, Supernumerary Circuit Judge, and is adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, COLEMAN, BLOODWORTH and McCALL, JJ., concur. | April 9, 1970 |
a61ff724-fc43-4421-8fa8-d176a23993a6 | Strickland v. Strickland | 235 So. 2d 833 | N/A | Alabama | Alabama Supreme Court | 235 So. 2d 833 (1970)
Rosie Louise STRICKLAND
v.
Paul Garron STRICKLAND.
6 Div. 688.
Supreme Court of Alabama.
May 28, 1970.
*834 Richard A. Thompson, Tuscaloosa, for appellant.
Zeanah, Donald & Lee, Tuscaloosa, for appellee.
HARWOOD, Justice.
Rosie Louise Strickland filed a bill seeking a divorce from Paul Garron Strickland on the ground of cruelty. She prayed, among other things, for custody of the two minor sons of the marriage, aged 3 and 5.
Paul filed an answer in general denying the allegations in the charging part of Rosie's bill, and also filed a cross-bill praying that a decree of divorce be awarded him. He set up cruelty and adultery as grounds for his bill.
After a lengthy hearing, the Chancellor entered a decree granting Paul a divorce a vinculo on the grounds of cruelty and awarded to him the custody of the two minor children.
We have carefully read and considered the evidence produced in the hearing below. We see no useful result in setting the same out in detail. Suffice to say that there was sufficient legal and material evidence supporting the Chancellor's conclusions and decree in awarding a divorce to Paul on the grounds of cruelty.
The question of the custody of the minor sons undoubtedly was of heart searching concern to the Chancellor. As a broad generalization, it is sometimes set forth that children of tender years will be presumed to fare better with the mother, even though she be not wholly free in the matter of the marriage breakup. McLellan v. McLellan, 220 Ala. 376, 125 So. 225. But each case must be determined on its own facts, and it is settled by our decisions per adventure of doubt that the paramount and controlling consideration in the matter of awarding the custody of a child is the welfare of the child. Beasley v. Beasley, 276 Ala. 247, 160 So. 2d 863.
The evidence presented by the appellee tends to show that Paul was 18 years of age and Rosie 15 at the time of their marriage. Within three months of their marriage disagreements and quarrels had set in. For a time the couple lived in the home of Paul's parents. They then procured a two bedroom trailer, placed it near the home of Paul's parents and have lived there since.
Paul earns enough to support his family and did not want Rosie to work. At one time he broke his leg and could not work. He consented that she procure temporary work which she did. She has refused to give up this job where her work hours are from 3 to 11 P.M. Paul's mother tends the children during Rosie's absence at work, and often the children stay in the elder Strickland's home day and night. It appears that Paul's mother has contributed largely to the rearing of the children.
It further appears that for several months prior to the final separation of Rosie and Paul, she and a male co-worker began meeting each other at various secluded places on rural roads, sometimes before starting work, and at other times after completing their work at 11:00 P.M. While Rosie testified that these meetings occurred about twice a week, she denied anything more serious than a few casual kisses took place at these meetingsthey met largely to discuss their respective marital difficulties.
*835 The record also shows that Rosie went to her mother and father's home for many weekends, and frequently these visits continued on for a week at a time. The relationship between Rosie's parents and Paul was strained and he was not welcomed by her parents.
There was evidence from which the Chancellor could reasonably infer that Paul was kind to his children and fond of them. He spent time with them, and regularly took them to church when they were with him. He and the boys yet occupy the trailer, and his mother tends them during Paul's absence.
In Fowler v. Fowler, 280 Ala. 305, 193 So. 2d 748, a case almost identical in pleading and factual aspects to the present case, the custody of the two infant boys had been awarded to the father. As to this action by the Chancellor, we wrote:
Counsel for appellant contends that the Chancellor committed error in certain instances in his rulings relating to evidential matters.
Reverend Carrol Cochrane, a witness for the appellant, testified on direct examination that Paul's reputation in the community in which he lived was bad.
On cross-examination he testified he did not know where the Stricklands lived in Tuscaloosa County, nor where Paul worked, and that he knew no one who lived in Paul's community. His information had come from Rosie's relatives, and one young man who lived in Kennedy, Alabama.
The court then asked the witness, over appellant's objection, if he had heard anyone in Paul's community say anything about him, to which question the witness replied he had not.
Counsel for the respective parties then announced they had no further questions to ask Mr. Cochrane and he was excused as a witness at the request of appellant's counsel.
Counsel for appellant now argues that Cochrane, by the court's action "was prevented from further elaborating on this point" (the bad reputation of appellee).
We find no support for counsel's contention. This witness was given great leeway in his direct examination. Often his answers were discursive or unresponsive to the questions addressed to him. Certainly, he was in no way hindered in his testimony nor prevented by any ruling of the court from "elaborating" on his testimony.
During the cross-examination of Paul, he was interrogated relative to an instance where he had disciplined one of the children. He was then asked: "Tell the court how this helps a child?"
The court sustained appellee's objection to this question.
The question was palpably faulty in that it called for an answer involving the opinion of the witness; it was too general, and any answer thereto would have been speculative and of no probative force.
*836 Counsel has also argued that the Chancellor erred in overruling appellant's objections to certain other questions.
An examination of the record reveals that the questions in these instances were not in themselves objectionable, though the answers made thereto contained both admissible and unresponsive inadmissible evidence. Appellant's objections were interposed in these instances after the answers had been made. No motions to exclude the objectionable portions of the answers were made.
Where an objection is not interposed until after an answer is made, and the answer, or a portion of it is unresponsive and inadmissible, a motion to strike the answer, or to exclude the objectionable portion, is necessary. Without such motion to exclude, a waiver of the objectionable portion of the answer is implied. Thomason v. Odum, 31 Ala. 108; Howell v. Howell, 210 Ala. 429, 98 So. 630; Southern Ry. Co. v. Jarvis, 266 Ala. 440, 97 So. 2d 549; Louisville and N. R. Co. v. Arnold, 42 Ala.App. 463, 168 So. 2d 31.
The evidence presented by the parties was in many aspects contradictory. The Chancellor saw and heard the witnesses testify. He was in much better position to assess the weight of the evidence presented by the respective parties than are we. Such situation compels a presumption in favor of the Chancellor's findings and decree, unless they be palpably wrong. Long v. O'Mary, 270 Ala. 99, 116 So. 2d 563; Wilkes v. Wilkes, 270 Ala. 341, 118 So. 2d 906; Anonymous v. Anonymous, 277 Ala. 634, 173 So. 2d 797.
We find no basis that would justify our concluding that the decree entered in this case was palpably wrong or plainly erroneous. The decree is therefore due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and MADDOX, JJ., concur. | May 28, 1970 |
b4060eda-72c8-45a0-8d69-bc5a665f4946 | Dicie v. Morris | 235 So. 2d 796 | N/A | Alabama | Alabama Supreme Court | 235 So. 2d 796 (1970)
Nellie DICIE
v.
DeWayne MORRIS.
6 Div. 720.
Supreme Court of Alabama.
May 15, 1970.
*797 Izas Bahakel, Birmingham, for appellant.
Carlos E. Heaps, Birmingham, for appellee.
McCALL, Justice.
This is an appeal by the complainant from an adverse final decree in equity, rendered under a bill of complaint fixing the amounts to be paid to effect the statutory right to redeem real property sold under the power contained in a mortgage.
The appellant is the third mortgagee of the subject real property, and, as such junior encumbrancer, seeks to redeem under Tit. 7, § 727, Code of Alabama, 1940, from the appellee, who with another were the grantees in a statutory warranty deed from the mortgagee-purchaser at the foreclosure sale. The cotenant subsequently conveyed his undivided one-half interest to the appellee. Code § 727 provides that where real estate is sold under power of sale in a mortgage, the same may be redeemed by a junior mortgagee from the purchaser or his vendee, within two years thereafter in the manner provided in that chapter of the Code. Section 732 of Tit. 7 of that chapter of the Code of Alabama, 1940, states that anyone entitled to and desiring to redeem must pay or tender to the purchaser or his vendee the purchase money, with interest at the rate of ten per cent per annum thereon, and all other lawful charges with legal interest. These charges are set out in this statute.
The appellant contends that the purchase money, and the amount thereof, required to redeem under said § 732 of the Code, is that sum which the appellee and his cotenant paid the mortgagee-purchaser as consideration for the deed of conveyance of the property to them, being $4500, and not the amount which the mortgagee-purchaser bid and paid for the property at the mortgage foreclosure sale, namely, the sum of $9,664.36.
The appellant cites Estes v. Johnson, 234 Ala. 191, 174 So. 632, to support his position. We distinguish that case from the case at bar only to the extent that here, the mortgagee-purchaser bid the amount of the mortgage indebtedness at foreclosure, and thereafter conveyed to the appellee and his former cotenant for a less amount of money, while in Estes v. Johnson, supra, the mortgagee-purchaser bid a less amount at foreclosure than the mortgage debt, and later conveyed the land to the respondent without transferring the unpaid balance owing on the mortgage debt. In the Estes case, supra, the transferee of the statutory right of redemption sought to redeem by tendering the amount bid at the foreclosure sale which was less than the mortgage debt, with ten per cent interest thereon. The respondent grantee contended that the redemptor should pay him the balance of the mortgage debt which was not paid by the amount of the purchase price bid. The court said:
"* * * But this is not required under subdivision 4 of section 10145, [Tit. 7, § 732, Code of Alabama, 1940] unless `the redemption is made from a person *798 who at the time of redemption owned the debt for which the property was sold.' * * *"
In plain words, since the grantee had not had the unpaid deficiency of the mortgage debt transferred to him, he had no right to payment of the entire debt, but only the amount of the purchase money that was paid when the property was bid in at foreclosure. Thus the Estes case, supra, recognized that the grantee had the right to demand the amount of the purchase money bid at foreclosure, and by doing so, furnishes authority here for holding that the amount bid at foreclosure by the mortgagee-purchaser, constitutes the purchase money referred to in Tit. 7, § 732, Code of 1940. That amount, equaling the mortgage debt, extinguished that debt in toto. Irby v. Commercial National Bank, 203 Ala. 228, 82 So. 478; Continent Casualty Co. v. Brawner, 227 Ala. 98, 148 So. 809; Upchurch v. West, 234 Ala. 604, 176 So. 186.
The appellant's insistence that since the mortgage debt was not transferred and assigned to the appellee, the appellee cannot claim the amount bid at foreclosure as the purchase money referred to in said § 732 of the Code, overlooks, first, that the mortgage debt was extinguished by the amount of the foreclosure bid, authorities, supra, and second, that in the Estes case, supra, the court treated the amount of the bid at foreclosure as the purchase money, not what the respondent grantee paid for the property. There the court held that since the deficiency amount of the mortgage indebtedness had not been transferred and assigned to the grantee, the latter had no right to claim it. Here there is no deficiency, but as in the Estes case, supra, we likewise look to the amount of the bid at foreclosure as being the purchase money, and not to what the appellee paid the mortgagee-purchaser for the property.
Subdivision 3 of said § 732 of the Code provides as a lawful charge any other valid lien or encumbrance paid by the vendee, which must be paid or tendered to the vendee upon redeeming. The appellee is entitled therefore to charge the sums he has paid the first mortgagee, and also, legal interest thereon to the date of redemption. Lytle v. Robertson, 233 Ala. 161, 170 So. 484. The trial court ascertained the amount of this item of lawful charge, and we find no occasion to disagree with its finding.
The appellant claims money collected by the appellee for rental of the subject premises since the filing of her bill to redeem on December 26, 1968. Under the statute, Subdivision 6 of said § 732 of the Code, the purchaser is "entitled to all rents paid or accrued to date of the redemption, and the rents must be prorated to such date."
In Durr Drug Co. v. Acree, 241 Ala. 391, 2 So. 2d 903, it was held that rents collected prior to tender and offer to redeem were the property of the purchaser. Then the court said:
Admittedly, there has been no tender to redeem. The appellant insists that none was necessary, because the bill avers that the appellant, after having exercised reasonable diligence, has been unable to ascertain the true amounts necessary to redeem and she prays that the court will aid her in ascertaining the true amounts due which she offers to pay.
In Francis v. White, 160 Ala. 523, 527, 49 So. 334, this court said:
In our opinion the bill avers a valid excuse as to why these amounts were not paid or tendered before its filing, and the proof supports this averment. The parties were in bona fide disagreement as to what were lawful charges, and also, as to the amounts of some charges. A resort to equity was necessary to decide these issues, or the appellant, in the alternative, stood to either pay what she considered unlawful charges, or lose her right to redeem. This shows a valid excuse for failure to pay or tender into court the amounts required by the statute. Accordingly, we hold that the date of the filing of the original bill is the date of redemption and that the appellant is entitled to all rents paid or accrued subsequently to December 26, 1968, and to prorate the rent as of that date.
Both parties have stipulated in the record that $2,213.51 constitutes the net rents collected through April 30, 1969, so we will treat this sum as being correct. This amount, together with any subsequently paid or accrued rents to the date of appellant's perfection of her right of redemption with legal interest thereon, shall be credited to appellant and deducted from the amount of $22,708.73 with legal interest thereon from May 26, 1969 added, the latter amount being the total sum necessary to redeem as found by the trial court.
The decree of the trial court is affirmed as herein modified, and the cause is remanded to that court for the redemption to be accomplished pursuant to the modified decree within sixty days from this judgment. The appellant is taxed with two-thirds of the cost of this appeal, and the appellee with one-third thereof.
Modified in part, affirmed as modified, and remanded.
LIVINGSTON, C. J., and SIMPSON, COLEMAN and BLOODWORTH, JJ., concur. | May 15, 1970 |
6cade46a-1b33-44f9-a7d9-32d821795c4b | Fidelity and Casualty Company v. Bank of Commerce | 234 So. 2d 871 | N/A | Alabama | Alabama Supreme Court | 234 So. 2d 871 (1970)
The FIDELITY AND CASUALTY COMPANY
v.
BANK OF COMMERCE.
4 Div. 284.
Supreme Court of Alabama.
April 30, 1970.
*872 Frank Samples, Phenix City, Rushton, Stakely & Johnson, and N. T. Braswell, III, Montgomery, for appellant.
Jere L. Beasley, Clayton, for appellee.
LAWSON, Justice.
This suit was brought by Bank of Commerce, Clayton, Alabama, against the Fidelity and Casualty Company of New York to recover a loss which the Bank suffered as a result of a financial transaction which it had on January 17, 1964, with an authorized representative of Robert M. Davis, who did business as Eileen Sportswear Company.
Liability is based on a "Bankers Blanket Bond, Standard Form No. 24," in the amount of $180,000 issued by the Fidelity and Casualty Company to the Bank, which bond was in effect on January 17, 1964.
The jury returned a verdict which reads: "We the jury find for the Plaintiff and assess its damages at $4,519.00 plus $660.31 interest or a total of $5,179.31." The trial court, in accordance with the jury's verdict, rendered a judgment in favor of the Bank and against the Fidelity and Casualty Company in the sum of $5,179.31.
After its motion for new trial was denied, the Fidelity and Casualty Company appealed to this court.
The Bank, the appellee, moves that the appeal be dismissed on the ground that *873 the transcript of the record shows that there was no citation of appeal served on the Bank or on its attorney.
The transcript of the record which was originally filed in this court did not show that citation of appeal had been properly served on appellee or its attorney. But a supplemental transcript was filed here showing that citation of appeal was duly served on appellee's attorney approximately seven months before submission was had in this court on brief and argument. No injury or inconvenience to appellee is shown. It follows that the motion to dismiss the appeal must be denied. It is so ordered. Benson-Jackson-Mathers Post No. 5106 v. Donaldson, 267 Ala. 60, 99 So. 2d 688, and cases cited.
The cause went to the jury on Counts One, Two and Four of the plaintiff's amended complaint and on the defendant's plea of the general issue in short by consent with leave etc.
Appellant, the defendant below, argues its assignments of error to the effect that the trial court erred in refusing to give written affirmative charges in its favor which it requested as to Counts One, Two and Four and as to the complaint as a whole.
Appellee says that the trial court cannot be put in error in refusing the affirmative instructions requested by appellant because they are in improper form, not being based on the jury's belief of the evidence. In other words, the charges refused are affirmative charges without hypothesis. Appellee asserts that where the evidence is solely from witnesses on the side of the party holding the burden of proof, an affirmative instruction must be with hypothesis, such as, "if the jury believe the evidence." White v. State ex rel. Fowler, 262 Ala. 694, 81 So. 2d 267, cited by appellee, supports that assertion.
But the holding in the White case, supra, has no application here because the burden of proof was on appellee, the plaintiff below. In Western Ry. of Ala. v. Brown, 280 Ala. 543, 548, 196 So. 2d 392, it was observed: "It is elementary that the burden is upon the plaintiff to prove her complaint where the general issue is pleaded."
The holding of our cases is to the effect that when the party having the burden of proof fails to adduce evidence to support the cause of action or defense, or his witnesses' testimony without conflict makes out a case for the opposing side, the trial court, on request in writing, may give the affirmative charge without hypothesis. White v. State, supra; Harris v. State, 215 Ala. 56, 109 So. 291; Anniston Soil Pipe Co. v. Central Foundry Co., 275 Ala. 545, 156 So. 2d 637.
Appellee further argues that since appellant's trial attorney expressed satisfaction with the trial court's oral charge, the appellant cannot on this appeal assert error on the part of the trial court in refusing the affirmative charges on grounds which appellee says are in conflict with the oral instructions of the trial court, in that parties are restricted to the theory on which the cause is prosecuted and defended in the court below. In Inter-Ocean Insurance Co. v. Banks, 268 Ala. 25, 27, 104 So. 2d 836, cited by appellee, we said in part:
In Inter-Ocean Insurance Company v. Banks, supra, counsel for both parties stipulated that the only question for the court to determine was whether the insurance policy sued on was in force and effect *874 on the date the plaintiff was accidentally injured and the trial was so conducted.
In this case there was no stipulation. Although the appellant, the defendant below, rested without putting on any testimony after the plaintiff below had rested, it is apparent, from the cross-examination of the witnesses called by the plaintiff below, by the attorney for the defendant below, that the theories on which the appellant claims the trial court erred in refusing the affirmative instructions are the theories on which it rested its defense in the trial court.
No case has been cited and we have found none which holds that where counsel for a party fails to object to a trial court's oral charge or expresses satisfaction therewith, that party cannot on appeal assert error in the refusal of a requested written affirmative instruction, even though the oral charge may in some respects be erroneous.
In determining the propriety of a general affirmative charge when requested by the defendant, the evidence most favorable to the plaintiff must be accepted as true. Purity Ice Co., Inc., v. Triplett, 257 Ala. 116, 57 So. 2d 540; Key v. Dozier, 252 Ala. 631, 42 So. 2d 254.
Accordingly, tendencies of the evidence most favorable to the plaintiff will be stated, much of which evidence is without dispute.
In 1963 and 1964, Robert M. Davis was the sole owner of manufacturing plants in Midway and Louisville known as Eileen Sportswear Company. That company sold manufactured products to Winer Sportswear Inc., of Paterson, New Jersey.
Davis was short of money with which to meet his pay roll and other operating expenses while awaiting payment by Winer for merchandise shipped to it. In order to obtain funds with which to meet his pay roll and to pay other expenses while awaiting payment from Winer, Davis worked out an arrangement with the President of the Bank of Commerce whereby, when merchandise was shipped to Winer, Davis would present to the Bank a copy of a packing slip and a copy of an invoice. Davis would execute a note to the Bank, to which would be attached copies of packing slips and invoice. Winer agreed, upon receipt and acceptance of the merchandise from Eileen Sportswear Company, to send a check to the Bank payable to the Bank and Eileen Sportswear Company in the amount shown on the invoice to be due.
On January 17, 1964 Eileen Sportswear Company needed money. Davis was in Atlanta. He called his manager, John M. Scott, usually referred to as Max Scott, and told him to prepare two packing slips. The evidence is in conflict as to exactly what instructions Davis gave Scott on that occasion. Davis testified that he told Scott to make up packing slips, "for the amount of money we needed to cover the pay roll," and gave him the style numbers to use because "it would make the thing look a little more legitimate," but that Scott itemized the merchandise himself. On the other hand, Scott testified that in the telephone conversation Davis gave him all the information to include in the packing slips; that he did not "come up" with the figures, lots and styles. We interpret appellee's brief as showing that it considers Scott's version of the telephone conversation and of his actions to be more favorable to it, so we will consider Scott's version as being correct.
After the telephone conversation, Scott prepared two packing slips which he signed, "Max Scott." One of those slips was dated January 10, 1964, and the other January 15, 1964. Both indicated that the merchandise described thereon had been shipped by truck to Winer. An invoice was prepared, but the evidence does not show by whom. It bears the date of January 17, 1964, and on its face represents that merchandise of the kind and in the amount shown by the two packing slips *875 had been sold and shipped by Eileen Sportswear Company to Winer for the sum of $5,649.38. The invoice bears the notation: "Please make check to Eileen and Bank of Commerce."
On January 17, 1964, Mrs. Eileen Davis, the wife of Robert M. Davis, took copies of the packing slips and copy of the invoice to the Bank. She presented those instruments to the President of the Bank and obtained from the Bank the sum of $4,519 upon the execution of a note to the Bank for that amount. The note was signed, "Eileen Sportswear Co., by Eileen C. Davis." Her right to bind Eileen Sportswear Company and her husband is admitted.
The Bank usually received payment in transactions of this kind within sixty to ninety days from date of shipment. When it did not receive a check from Winer within that period of time, it contacted Winer and was later advised by Winer that it had not received the merchandise represented by the packing slips and the invoice dated January 17, 1964, and Winer further advised the Bank that the invoice of January 17, 1964, was a duplicate of a previous invoice. When contacted by the Bank, Davis admitted that the packing slips and invoice were fictitious. Neither Eileen Sportswear Company nor Davis was able to pay the note of January 17, 1964.
Thereafter, the Bank called upon Fidelity and Casualty Company to make good its loss under the terms and provisions of the aforementioned "Bankers Bond." Fidelity and Casualty Company did not comply with that request; hence this litigation.
In Count One of the amended complaint, hereinafter referred to as the complaint, the appellee sought to recover from the appellant under coverage afforded by certain provisions of Insuring Clause B and under coverage of Insuring Clause D of the bond.
We need not set out in this opinion the part of Insuring Clause B quoted in Count One. It bears the caption, "On Premises" and in rough summary covers loss of "Property," as defined, through stated causes, broadly stated "while * * * lodged or deposited within any offices or premises," with certain premises excluded. Under the evidence adduced at the trial below, which we have summarized above, appellee was not entitled to recover under Insuring Clause B. It does not so contend in brief filed here in support of the judgment of the trial court.
Insuring Clause D reads as follows:
The invoice was simply a duplicate of an old invoice. It appears to have been typed and no signature appears thereon. The packing slips are admittedly the acts of Scott and are thus the acts of the party whose acts they purport to be. Under our holding in the recent case of Tiarks v. First National Bank of Mobile, 279 Ala. 100, 182 So. 2d 366, the packing slips are not forgeries. There was no evidence of any alteration of any writing. It follows that appellee was not entitled to recover under Insuring Clause D of the bond.
Since the appellee's own testimony showed that it was not entitled to recover under Insuring Clause B or Insuring Clause D, the trial court erred in refusing to give the general affirmative charge requested by appellant as to Count One of the complaint.
Count Two of the complaint in pertinent parts reads:
The provisions of the bond set out in Count Two are those contained in the first paragraph of Insuring Clause B, which was set out in Count One. As we have said above, the evidence adduced at the trial did not warrant a recovery by appellee based on the coverage afforded by Insuring Clause B.
The averments of Count Two in the complaint which immediately follow the provisions quoted from Clause B show no more than that appellee sought to recover for the loss which it sustained by virtue of a loan to Robert Davis and Eileen C. Davis, which loan it is alleged the Davises procured by submitting to appellee "false, forged and fictitious invoices as security."
All other questions aside, the appellee in the paragraph of Count Two presently under *877 consideration averred that its loss resulted from a loan and this type of loss is affected by the provisions of § 1(d) of the "Exclusions" in the bond, which section reads:
The evidence fails to show that the loss occasioned by the loan resulted from any dishonest, fraudulent or criminal act of any employee of appellee.
We have heretofore held, in effect, that the evidence adduced by appellee shows that its loss was not covered by Insuring Clause D.
Insuring Clause E, which is captioned "Securities," reads in pertinent part as follows:
We pretermit consideration of the question as to whether the packing slips and invoice are "securities, documents or other written instruments" as those words are used in Insuring Clause E. But see Rock-land-Atlas Nat. Bank of Boston v. Massachusetts Bonding & Ins. Co., 338 Mass. 730, 157 N.E.2d 239.
Since the evidence fails to show that any counterfeited or forged signature was involved in the transaction of January 17, 1964, no recovery is afforded the Bank, the appellee, under Insuring Clause E. Tiarks v. First National Bank of Mobile, supra; First National Bank of South Carolina of Columbia v. Glens Falls Insurance Company, 4 Cir., 304 F.2d 866; First National Bank of Memphis v. Aetna Casualty and Surety Company, 6 Cir., 309 F.2d 702.
There being no coverage afforded appellee under Insuring Clause A, D or E, the exclusionary provisions of § 1(d) of the bond operate to deprive appellee of any right to recover under the allegations of Count Two of the complaint to the effect that Robert M. Davis and Eileen C. Davis, by virtue of false pretense, obtained a loan from the Bank by submitting to it a false, *878 forged and fictitious invoice as security for the loan.
We hold, therefore, that the trial court erred in refusing to give the general affirmative charge requested by appellant as to Count Two of the complaint.
Count Four of the complaint in pertinent part reads:
The provisions of the bond set out in Count Four of the complaint are found in Insuring Clause E, which we have quoted above. The allegations of Count Four show that appellee bases its right to recover under that count on the claim that the loss which it sustained as a result of its transaction with the Davises on January 17, 1964, was due to a counterfeited or forged signature on "securities, documents or other written instruments" as those words are used in Insuring Clause E.
Again we pretermit consideration of the question of whether the packing slips and invoice are "securities, documents or other written instruments" as those words are used in Insuring Clause E. Again we call attention to the case of Rockland-Atlas Nat. Bank of Boston v. Massachusetts Bonding and Ins. Co., supra.
There simply was no evidence tending to show that a counterfeited or forged signature played any part in the loss which the Bank sustained as a result of the transaction with Eileen Sportswear Company or Mr. and Mrs. Davis on January 17, 1964. Tiarks v. First Nat. Bank of Mobile, supra; First National Bank of South Carolina of Columbia v. Glens Falls Insurance Company, supra; First National Bank of Memphis v. The Aetna Casualty and Surety Co., supra.
We hold, therefore, that the trial court erred in refusing to give the general affirmative charge requested by appellant as to Count Four of the complaint.
*879 The judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
MERRILL, HARWOOD, MADDOX and McCALL, JJ., concur. | April 30, 1970 |
aed45be8-fa4e-48e4-aef6-c243461cfc58 | Mangina v. Bush | 237 So. 2d 479 | N/A | Alabama | Alabama Supreme Court | 237 So. 2d 479 (1970)
Frances E. MANGINA
v.
Betty P. BUSH et al.
6 Div. 772.
Supreme Court of Alabama.
June 18, 1970.
*480 William E. Swatek, Birmingham, for appellant.
Dempsey F. Pennington, Birmingham, for appellees.
MERRILL, Justice.
This appeal is from a decree ordering specific performance of a written contract of sale dated November 20, 1968, for a lot in Birmingham.
Appellant signed the contract for sale of the house and lot for $15,400.00 to Joe and Betty Bush. The sale was handled by John D. Rogers, a realtor, and he and his sister, an attorney who was appellant's attorney at the time of the execution of the contract, were present when appellant executed the contract, and appellant's signature was witnessed by her attorney, Mrs. Rossie Rogers Taylor.
When the time arrived for closing the transaction, appellant's attorney notified Rogers that appellant would not honor the contract.
The bill of complaint seeking specific performance was filed and, after preliminary pleading, the cause was heard and concluded on October 24, 1969. The decree, dated that same day, found that the contract was duly executed by the parties; that Rogers was appellant's agent to sell the property; that the complainants had paid $1,000.00 earnest money to Rogers, as appellant's agent; that they had offered to pay $2,000.00 more and assume the mortgage (listed in the contract as amounting to $12,400.00), but appellant had refused to accept the money or comply with the contract; that appellant had "leased the said property for a term," and that the sales contract was good, valid and binding upon the parties, and that complainants were entitled to specific performance. The order was in accord with the findings.
An application for rehearing was overruled.
Appellant's defense in the circuit court and here was that she was in the hospital for some tests and after taking some pills and shots did not know what she was doing; that she was induced to sign the contract because of fraud, misrepresentation and deceit, and that the amount of the sale was inequitable.
*481 Counsel who represented appellant at the trial was different from appellant's counsel on appeal.
Appellant argues that the decree is defective because she "is not informed by said decree as to findings on the matters which Appellant-Respondent relied as the basis of her defense." The trial court did not choose to discuss the testimony relating to appellant's specific defenses (noted supra), but the sixth finding, "That the said contract (Complainant's Exhibit A) is good, valid and binding upon the parties thereto," shows that the defenses were not proved to the satisfaction of the court.
We also do not choose to discuss the testimony in support of these defenses, but will mention only enough evidence to show that it was sufficient, if believed, to support the decree of the trial court.
The decision turns on the testimony of appellant, her agent Rogers, and that of his sister, appellant's attorney at that time.
Appellant testified that she was sick; that she remembered signing four separate papers when Rogers and her attorney, Mrs. Taylor, were present, but she did not know what they were, and that she had always said she wanted $5,000.00 above the mortgage when the property was sold.
Rogers testified that appellant listed her property with him and said she wanted $15,000.00 for it; that when she signed the contract, she read it and he pointed out the amounts to be paid; that he had visited her the day before and she asked him if he had sold the house for her; that he had had many contacts with her, and ran ads in the papers; that when she executed the contract she appeared normal, in the possession of her faculties and appeared to understand what she was doing. He also testifed that the house was twelve years old, originally sold for $16,150.00 under a full G. I. loan and was presently worth $15,000.00 with a rental value of $110.00 per month.
Mrs. Taylor testified that she was present at the hospital when appellant signed the contract, that it was already signed by Joe and Betty Bush; that Rogers went over the contract with appellant; that appellant read it and signed it in her presence. She stated twice that appellant "knew what she was doing."
The defenses of fraud and that appellant did not know what she was doing were questions of fact in this case.
Fraud is never presumed and when relied upon must be distinctly alleged and proven, Decker v. State Nat. Bank, 255 Ala. 373, 51 So. 2d 538, and he who seeks relief on ground of fraud has the burden of proof. Morrison v. Federal Land Bank of New Orleans, 232 Ala. 138, 167 So. 288.
It is clear to us that the trial court did not think the appellant had proved her pleas of fraud.
Where testimony is taken ore tenus before the trial judge who has the witnesses before him, hears their testimony and observes their demeanor on the stand, his judgment will not be disturbed on appeal unless plainly wrong. 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.
Affirmed.
LIVINGSTON, C. J., and LAWSON, HARWOOD and McCALL, JJ., concur. | June 18, 1970 |
7c7174c0-68f7-4fd8-9962-fa4a5ef5ed2a | Smiley v. Board of Com'rs of Alabama State Bar | 238 So. 2d 716 | N/A | Alabama | Alabama Supreme Court | 238 So. 2d 716 (1970)
In the Matter of Thomas L. SMILEY
v.
The BOARD OF COMMISSIONERS OF the ALABAMA STATE BAR.
3 Div. 369.
Supreme Court of Alabama.
July 16, 1970.
Rehearing Denied September 3, 1970.
*717 Warren S. Reese, Jr., Montgomery, for petitioner.
William H. Morrow, Jr., Gen. Counsel, Montgomery, for Alabama State Bar.
PER CURIAM.
The petitioner seeks reversal in proceedings wherein the Board of Commissioners of the Alabama State Bar found him guilty of 17 of 18 charges filed against him, and entered an order of disbarment.
On December 17, 1964, the Grievance Committee of the Birmingham Bar Association filed charges against Thomas L. Smiley, such charges consisting of five complaints.
Complaint One alleges:
Charge One of this complaint charges a violation of Rule 27, Section A:
Charge Two charges a violation of Rule 33, Section A:
*718 Charge Three charges a violation of Rule 34, Section A:
"`* * * any act, which, by the law of Alabama, constitutes a felony (other than manslaughter) or a misdemeanor involving moral turpitude.'"
Charge Four charges a violation of Rule 36, Section A:
Petitioner was adjudged guilty by the Board of Bar Commissioners of each of these charges.
Complaint Two alleged:
Charge One of this complaint charges a violation of Rule 27, Section A.
Charge Two charges a violation of Rule 33, Section A.
Charge Three charges a violation of Rule 34, Section A.
Charge Four charges a violation of Rule 36, Section A.
The Board of Bar Commissioners found the petitioner guilty on all four of these charges.
Complaint Three alleges:
Charge One of this complaint charges a violation of Rule 27, Section A.
Charge Two charges a violation of Rule 33, Section A.
Charge Three charges a violation of Rule 34, Section A.
Charge Four charges a violation of Rule 36, Section A.
The Board of Commissioners found the petitioner guilty on all four of these charges.
Complaint Four alleges:
This complaint includes Charge One, charging a violation of Rule 12, Section A, "Suppress or stifle any evidence or testimony"; *719 Charge Two charges a violation of Rule 36, Section A.
The Board of Bar Commissioners found the petitioner guilty on both of these charges.
Complaint Five alleges:
Based upon these allegations, Charge One charges a violation of Rule 27, Section A.
Charge Two charges a violation of Rule 33, Section A.
Charge Three charges a violation of Rule 34, Section A.
Charge Four charges a violation of Rule 36, Section A.
The Board of Bar Commissioners found the petitioner guilty of violations contained in Charge One, Charge Two and Charge Four.
The testimony in this case was not taken orally before the Board of Bar Commissioners. Rather, it was taken before a Commissioner and not orally heard by the members of the Board. Under such circumstances, it is the duty of this court to examine all of the evidence and to form our own judgment as to its probative force without any presumption in favor of the findings of the Board. Tanner v. Dobbins, 255 Ala. 671, 53 So. 2d 549; Adams v. Logan, 260 Ala. 346, 70 So. 2d 786; Carnegie v. Carnegie, 261 Ala. 146, 73 So. 2d 556; Loveman v. Lay, 271 Ala. 385, 124 So. 2d 93; Norden v. Capps, 272 Ala. 473, 131 So. 2d 679; also Acton v. Board of Commissioners of Alabama State Bar, 283 Ala. 121, 214 So. 2d 685.
This we have attempted to do. The evidence taken before the Commissioner together with the exhibits introduced there, comprise more than 1,200 pages. It includes a transcript of the proceedings had before the Probate Court in Jefferson County. The proceedings which culminated in the complaints made against Mr. Smiley with the Board of Bar Commissioners arose out of the following:
Mrs. Alta B. Smith died on December 27, 1960, survived by her husband, Clare B. Smith, and a daughter by a former marriage, Mrs. Marie B. Massey. Clare B. Smith died October 3, 1961.
The will of Alta B. Smith named Thomas L. Smiley as executor. It left a life estate to Clare B. Smith, with the entire remainder to Mrs. Marie B. Massey. The will of Clare B. Smith named Mrs. Marie B. Massey as executrix and left one-half of the estate to Marie B. Massey and the other half to certain other relatives of Clare B. Smith.
Both wills were admitted to probate at approximately the same time.
On July 26, 1963, Mrs. Marie B. Massey filed a petition in the Probate Court of Jefferson County to have Thomas L. Smiley removed as executor of the Alta B. Smith estate, the petition alleging wasting of the assets and failure to account.
At the date of the filing of the petition to remove Thomas L. Smiley as executor of *720 the estate of Alta B. Smith, Mrs. Massey as sole beneficiary of the estate, had admittedly received from Thomas L. Smiley the following sums of money and no more:
It was consistently agreed between Mrs. Massey and the petitioner that the amount which the petitioner had received as executor of the estate of Mrs. Alta B. Smith totaled some $92,000. Part of this amount was based upon the evaluation attributed to various stocks. Mrs. Massey ultimately received these stocks in kind, with the exception of stock in the Marathon Oil Company, which stock was sold by the executor and converted to cash. Nevertheless, at the time of the filing of her petition, Mrs. Massey alleged, and it was not disputed, that she had received from the executor $25,857.39. She alleged that amounts received by Thomas L. Smiley, as executor, to the extent of $40,000 belonging to the estate of Clare B. Smith had been comingled in the assets of Alta B. Smith by Thomas L. Smiley.
Following the filing of this petition, on October 3, 1963, Smiley filed a petition in the estate of Alta B. Smith for attorney's fees for extraordinary services in the amount of $21,462.03.
On January 16, 1964, Smiley filed a petition for final settlement which among other things asked the court to determine whether cash items should remain in the estate of Alta B. Smith or should be treated as assets of the Clare B. Smith estate, among such items being a savings account in the City Federal Savings & Loan Association in the amount of $10,000 and a savings account in Home Federal Savings & Loan Association in the amount of $10,000. It was not denied by Mrs. Massey nor disputed by Smiley that these were joint and survivorship accounts in the names of Alta B. Smith and Clare B. Smith, and it was never denied that Clare B. Smith was the survivor. It was further never denied by Smiley that he had possession of these funds totaling $20,000.
It is around this $20,000 that most of the proceedings in the Probate Court were had. The record in this case includes a recapitulation of all deposits and disbursements from November 9, 1961, when the executor's account in the Alta B. Smith estate was opened by Smiley in the Birmingham Trust National Bank, to March, 1964. During that period deposits to the account totaling $67,021.70 were made. These deposits were made in small denominations over a considerable period of time. The record does not indicate that deposits in lump sums of $10,000 each were ever made. Smiley acknowledged that this money passed through the estate bank account.
During the same period of time the records of the bank indicate that withdrawals were made by Thomas L. Smiley as executor by checks drawn to Thomas L. Smiley, as executor, totaling $14,453.05. Additional checks were drawn by Smiley as executor and payable to himself as attorney, totaling $3,240.00. Checks were drawn by Smiley as executor to himself individually totaling $1,018.75.
*721 On January 16, 1964, the Probate Court of Jefferson County entered a decree on final settlement determining, among other things, that there was a balance in the estate of Alta B. Smith to be distributed to Mrs. Massey in the amount of $3,876.60, and that certain items were found to belong to the estate of Clare B. Smith, and determined not to be a part of the estate of Alta B. Smith. These items included the $20,000, which had been in joint and survivorship accounts in two savings and loan associations. On February 6, 1964, Smiley filed his notice of appeal from that decree to the Supreme Court of Alabama.
Thereafter, Mrs. Massey learned from the Probate Judge that the appeal had been taken. The Probate Judge advised her that she needed a lawyer, whereupon she employed William H. Cole. On February 14, Mr. Cole filed a motion to require Smiley to post a bond and to produce certain records, the motion seeking to have the court order the executor to produce for the inspection by the court the deposit books, checking account records, statements, and any and all records of any banking institution, showing the amounts on deposit to the credit of the estate or in the name of the executor which belonged to this estate or over which he had custody or control.
In addition the motion sought to require the executor to produce deposit slips, bank records showing the disposition and whereabouts of the money formerly deposited in the two savings and loan associations referred to above. Mrs. Massey filed with the Probate Court an affidavit in which she listed all the items which she had received from Mr. Smiley and alleged that she had received only the sum of $25,857.39 in cash by a series of payments from November, 1961 to September, 1962.
A hearing was held on this motion.
Mr. Smiley was evasive, he refused to discuss the whereabouts of the money, he took several inconsistent positions when asked where the $3,876.66 was, which he had previously admitted having. His response was that he had rather not answer that. He was directed by the court to answer about any assets belonging to the estate. His answer was that those assets did not belong to this estate. He was reminded that he had said in his petition for final settlement that he had in his possession this $3,876.66. His response was that he understood that but then he said that he had been mistaken about the $10,000 theretofore in the savings and loan institution, and then asserted that the estate was insolvent. He was asked the following question: "At the time of the petition in October showing $3,800 balance, was there any balance at all in any institution in this estate?" and his reply was, "Yes, sir."
Later on he was asked "Who has got the money right today, where that money is, I don't care what was done with it, I just want you to tell me where the money went, the $10,000?" and he answered, "I don't know."
Later on at this initial hearing the following transpired:
Subsequently in this hearing the court noted:
Thereafter a subpoena was issued. The record does not disclose that at any time did Mr. Smiley produce any of the records which he was ordered to produce by the court. The records that were obtained came on a subpoena duces tecum issued to the bank.
The proceeding was continued until the 19th day of March, 1964.
At that time a discussion was had concerning the shares of Marathon Oil Co. stock, which Mr. Smiley sold in August of 1963. He received for the stock $2,941.94. In connection with that amount of money Mr. Cole asked the following:
Mr. Smiley testified that he cashed the check issued by the stock broker on the same day that he received it from the broker (August 30, 1963) and that he had kept the cash since that time. He testified that he had retained the cash money in his possession from August until the time of the hearing.
At another point during the hearing, Mr. Smiley was shown a check for $1,378.68, signed by him as executor and made payable to cash. He was asked whether he in fact cashed that check. His answer was that he did not know whether he did or not.
At another point, when shown a check dated February 23, 1962, for $1,500.00, which had been converted to cash, Mr. Smiley was asked if he put that money in any account. His answer was, "I don't know, sir."
Also, he was shown a check for $2,000.00, dated February 21, 1961, endorsed by Mr. Smiley. He was asked whether or not he deposited that amount. His answer was that he did not know.
At no point during these proceedings did Mr. Smiley ever produce all of the cancelled checks that had been written on the executor's account. His testimony was that he did not know where they were.
The record also shows this exchange:
At other points, when asked where the money was located Mr. Smiley answered, "I don't remember, I don't know; I can't explain it, I don't know".
As to checks which had been cashed, written on the executor's account and where cash was obtained, Mr. Smiley's only explanation was that most likely he had given it to Mrs. Massey.
In a space of three days checks were drawn out of the accounts payable to Mr. Smiley in various capacities which totaled $3,000. When asked where the $3,000 went his answer was, "I don't know".
At one point Mr. Smiley testified that it was possible that he had run some of his own funds through the estate account.
When asked whether or not the total amount drawn by him as executor to himself individually, in checks payable to cash, and checks payable to himself, as executor, and as attorney, came to $22,261.80, Mr. Smiley's response was that the total was $22,261.79.
*724 During the course of the hearing Mr. Smiley, when again reminded that all of the money in his possession, whether it belonged to the Alta B. Smith estate or to the Clare B. Smith estate, should be turned over to Mrs. Massey either in her capacity as sole beneficiary under the Alta B. Smith estate or in her capacity as executrix of the Clare B. Smith estate, Mr. Smiley responded that what he was appealing to the Supreme Court about was for a greater executor's fee.
At a later hearing in the matter the case having been again continued, Mrs. Margaret Powell was called as a witness. Mrs. Powell testified that she was employed by Thomas L. Smiley in December of 1962, in his capacity as an officer in the Alabama Law Enforcement Officers Association. She was shown a check signed by Thomas Smiley as executor, payable to herself in the amount of $500.00. Mrs. Powell testified that she had endorsed the check and had received cash. When asked what she had used the $500.00 for, her testimony was for the payroll of the Alabama Law Enforcement organization; it was her testimony that the money was put to this use upon the instruction of Mr. Smiley. At no point in the proceedings did Mr. Smiley offer any explanation about this check.
Subsequently a copy of a check was introduced showing the purchase of a cashier's check by Mr. Smiley as executor, the check being made payable to Mrs. Hubert Arrowood for $1,000.00. The cashier's check bore a notation "Death Benefit, Alabama Law Enforcement Officers Association, Inc."
No explanation was ever offered by Mr. Smiley as to why proceeds of the estate were put to this purpose.
Mrs. Massey testified that at one time Mr. Smiley delivered a check payable to her in the amount of $7,949.50. That check was returned because of insufficient funds.
As the hearings continued, another was held on April 8, 1964. Again the subject of discussion was the $20,000, $10,000 of which had been withdrawn from the City Federal Savings and Loan, and $10,000 which had been withdrawn from the Home Federal Savings and Loan Association. Mr. Smiley stated, "We will stipulate two $10,000 each was the City Federal and Home Federal."
The following comments were made concerning this $20,000:
Mr. Cole, who was representing Mrs. Massey at this time, and Mr. Walter W. Mims, who was representing the other heirs in the Clare B. Smith estate, and the court itself, pleaded with Mr. Smiley to account for the funds for which he had given no account. Mr. Smiley's response is typified by the following:
* * * I just ask the Court to ask him that question, which he refused to answer, where the $20,000 is. Now that is all I think the Court ought to ask him.
No purpose would be served by reciting any further evidence adduced at these hearings. The foregoing is typical of the questions put to Mr. Smiley and his responses thereto.
A petition for writ of mandamus was filed in the Supreme Court of Alabama and after hearings were conducted thereon the Supreme Court issued an order dated April 22, 1964, reciting that a rule nisi would issue to the Judge of Probate to vacate his order of April 9, 1964, provided Smiley either paid the $20,000 to the Judge of Probate or post a bond in the amount of $25,000. Pursuant to that order, Smiley paid $20,000 to the Judge of Probate on April 30, 1964. His appeal from the order entered on January 16, 1964, was dismissed for lack of prosecution, by the Supreme Court. His subsequent petition to have the appeal reinstated was denied.
The matter of the $20,000 was finally concluded by a consent settlement entered into on December 16, 1964.
Thereafter, the Grievance Committee of the Birmingham Bar Association received a complaint concerning Mr. Smiley in the form of a letter written by Walter L. Mims. The Chairman of the Grievance Committee testified that he investigated this complaint. He obtained transcripts of the testimony of Mr. Smiley of the proceedings had in the Probate Court. He also examined an affidavit furnished to the Committee executed by Mrs. Massey. The pending complaint against Mr. Smiley was considered at a meeting of the Grievance Committee which culminated in a decision by the Committee that the matter should be reported to the Executive Committee with the recommendation that disciplinary action be taken. The Grievance Committee voted to recommend to the Executive Committee that charges be filed against Mr. Smiley.
The charges so filed by the Executive Committee have heretofore been enumerated.
The only explanation which appears in more than 1,200 pages of testimony as to why the $20,000 involved in this case had been taken out of the fiduciary account and converted to cash and secreted by Mr. Smiley was to the effect that his personal income tax return was being audited by the Internal Revenue Service. He offered no explanation as to why this required secreting this cash money belonging to an estate in which he was acting as executor and attorney.
The petitioner contends in brief, and contended before the Commissioner, in the *728 disciplinary proceeding that the matters occurring in the Probate Court and all of the motions filed on behalf of Mrs. Massey by Mr. William Cole and the participation in the case by Mr. Walter Mims was prompted by the fact that the petitioner was at that time running for Circuit Judge in the 10th Judicial Circuit. Then he takes the position that the disciplinary proceedings were instituted because he won the case in the Probate Court.
It is always with a sense of dread and with an acute awareness of our responsibility that we look to these cases where we must sit in judgment upon our brothers at the bar. In most of the cases of this kind which come to us there is conflicting testimony. This case differs in that there is essentially no conflict at all. There is certainly no conflict in the evidence to the effect that the petitioner had for a long period of time in his possession some $20,000 which he had acquired in his capacity as executor of the estate of Mrs. Alta B. Smith. There is no conflict whatsoever to the effect that Mrs. Massey was entitled to possession of these funds either in her capacity as sole beneficiary in that estate or in her capacity as executrix of the estate of Judge Clare B. Smith. Before she obtained possession of those funds, however, it was necessary for her to obtain counsel pursuant to which several hearings over a long period of time were held in the Probate Court. During the course of those hearings the petitioner refused to answer questions about the whereabouts of the money. He refused to account for it in any manner. He refused to produce records reflecting bank transactions. It was necessary for Mrs. Massey to subpoena the records of the bank, in order to determine in what manner these funds had been disbursed from the fiduciary account.
The Board of Bar Commissioners, in reviewing the record in this case as compiled by the Commissioner named to take testimony, unanimously voted guilty on six of the charges made against the petitioner. These charges have been set out above. Without a great deal of further elaboration, it is not disputed that for a long period of time the petitioner withheld monies entrusted to him in his capacity as executor and attorney for the estate of Alta B. Smith. He parted with those funds only after repeated proceedings had been had in the Probate Court. It was not disputed by the petitioner that at all times Mrs. Massey was entitled to these funds in one capacity or the other. This conduct constitutes a violation of Rule 27 and Rule 36 of the Rules of the Supreme Court of Alabama governing the conduct of attorneys in Alabama. In In re Stuart, 257 Ala. 184, 57 So. 2d 874, where the attorney involved withheld monies entrusted to him for a period of time until he yielded to pressure from the Grievance Committee to pay the same over to his client, the court said:
In this case the petitioner has offered no explanation for the fact that he used the estate's money for his own purposes. No explanation whatsoever was offered for the fact that $1,000 of this money was used to pay a death benefit to a member of the Alabama Law Enforcement Association. The only explanation which the petitioner ever offered for the manner in which he handled this estate was that it was a family matter. Mrs. Massey is his cousin. Mrs. Alta B. Smith was his aunt. This relationship does not override the duty a fiduciary owes his beneficiary. The petitioner at all times knew that the money in his possession did not belong to him. Nevertheless, he treated it as if it were his own. This constitutes a violation of our rules. See Paradiso v. Board of Commissioners of Alabama State Bar, 284 Ala. 450, 225 So. 2d 855.
Without undue elaboration, we think clearly the evidence supports the conclusion reached by the Board, that the petitioner has violated Rule 36, Section A of the Rules. We think further that the evidence clearly supports the conclusion reached that Rule 27, Section A of the Rules has been violated. In addition to that we think Rule 12 has clearly been violated.
The petitioner's propositions of law in brief raise the following:
Proposition One is to the effect that it is the duty of this court to sit in judgment on the evidence of the case since the testimony was not taken orally before the Board of Commissioners.
We agree and have done so.
Proposition Two is to the effect that there is no presumption favoring the finding of the Board of Commissioners where the testimony was taken before a Commissioner and was not ore tenus.
We agree with this proposition and have so noted.
Propositions Five, Six, Seven, Eight, Nine and Ten go to burden of proof. It is the petitioner's contention that what we said in Ex parte Acton, 283 Ala. 121, 214 So. 2d 685, casts the burden on the Board of proving by the evidence to the reasonable satisfaction of the triers of fact that the petitioner acted in bad faith or with fraudulent purpose to show a violation of Rule 27, which recites that no attorney should misappropriate the funds of his client by failing to pay over money collected by the attorney for the client "`provided the circumstances attending the transaction are such as to satisfy the Board that the attorney acted in bad faith or with fraudulent purpose.'"
We agree with what was said in Ex parte Acton on rehearing. In that case the question was whether or not the attorney had an agreement with his client, under which agreement he retained money collected for that client. On rehearing the court held that under the evidence the Board of Commissioners had not carried the burden of proof in connection with that agreement.
An entirely different case is presented here. The evidence establishes without a shadow of a doubt that the petitioner in this case has withheld monies belonging to Mrs. Massey. The petitioner concedes that the money was due to be paid to Mrs. Massey in one capacity or another. Unlike Acton, he has no explanation for his failure to turn it over to Mrs. Massey other than the fact that there was some question as to which estate it belonged in. That is an insufficient answer in that he also concedes that Mrs. Massey was entitled to have it regardless of what estate it *730 belonged in. The only other explanation he offers for having secreted the funds was to the effect that his own personal income tax return was being audited. This explanation too is no answer. Under these circumstances we think that the Board has discharged its burden of proving that the petitioner acted in bad faith or with fraudulent purpose.
As we have so often said, an attorney is under an absolute duty to give his client a full, detailed, and accurate account of all money and property which has been received and handled by the attorney as such, and must justify all transactions in dealings concerning the same. General statements will not suffice. And hence it is encumbent upon the attorney to keep complete and accurate books and records. See Ex parte Thompson, 228 Ala. 113, 152 So. 229, 107 A.L.R. 671; In re Messer, 228 Ala. 16, 152 So. 244; In re Fite, 228 Ala. 4, 152 So. 246; Ex parte Lamberth, 276 Ala. 543, 165 So. 2d 93. This duty is not weakened by the fact that the attorney also is acting in a fiduciary capacity, in this case executor.
We are mindful of the fact that finally Mrs. Massey concedes that she has received all of the money to which she is entitled under the will of her mother and as executrix under the will of her stepfather. However, the restitution of funds previously misappropriated does not mitigate the offense involved in the misappropriation particularly in a case where restitution has been made under pressure.
We can find nothing in the record to authorize us to alter in any way the decision of the Board. The action taken by the Board of Commissioners of the Alabama State Bar is hereby affirmed.
Affirmed.
All the Justices concur except McCALL, J., not sitting. | July 16, 1970 |
873da675-b45e-4617-b46e-509a8179d650 | Phillips v. Prudential Insurance Co. of America | 233 So. 2d 480 | N/A | Alabama | Alabama Supreme Court | 233 So. 2d 480 (1970)
James F. PHILLIPS
v.
The PRUDENTIAL INSURANCE COMPANY OF AMERICA, A Mutual Life Insurance Company.
1 Div. 564.
Supreme Court of Alabama.
April 2, 1970.
Collins, Galloway & Murphy, James H. Lackey, Mobile, for appellant.
Thornton & McGowin, Mobile, for appellee.
HARWOOD, Justice.
The appellant sought recovery under a family hospital insurance policy. Demurrers to the complaint as amended being overruled, the defendant filed a plea and answer setting up an exclusion provision in the policy which appellee-insurer averred would prevent recovery on the policy.
The cause was submitted to the court sitting without a jury on a stipulation of facts. Thereafter, the court rendered a judgment for the defendant and this appeal followed.
The stipulated facts are to the effect that the policy in question was in effect at the time the plaintiff was injured in the due course of his employment. Plaintiff's employer, Linley Construction Company, employed more than ten employees and was duly qualified under the Elective Compensation provisions of the Alabama Workmen's Compensation Act for all its employees. The plaintiff has received medical, *481 surgical, and hospital benefits in the amount of $2,400, being the maximum amounts allowable for such services under the Alabama Workmen's Compensation Act.
Plaintiff has incurred medical expenses of $2,244 over and above the amount of $2,400 received from his employer's workmen's compensation carrier.
It was further stipulated that had the plaintiff not been under the Workmen's Compensation Act, he would have been entitled to hospital and medical payments of $2,360 under the policy in question.
The pleadings and evidence show that the policy herein sued on contained the following provision:
In considering an exclusion clause of identical import in Slomovic v. Tennessee Hospital Service Assn., 46 Tenn.App. 705, 333 S.W.2d 564, the Court of Appeals of Tennessee, Middle Section, wrote:
To the same effect see Wenthe v. Hospital Service Ins., 251 Iowa 765, 100 N.W.2d 903, where it is stated:
Counsel for appellant have cited only Hunt v. Hospital Service Plan of New Jersey, 33 N.J. 98, 162 A.2d 561, 81 A.L.R. 2d 919, in support of their argument that appellant was not "covered" by the Workmen's Compensation Act as to medical expenses in excess of the payments received under the compensation act.
In Hunt, supra, the exclusionary clause in the policy excepted from coverage liability for medical expenses:
The Deputy Director of the Division Workmen's Compensation of New Jersey had found that the insured had suffered her injury in the course of her employment, but that her medical expenses were not compensable because such expenses were not incurred upon authorization by the employer.
*482 The New Jersey court concluded that under the language of the exclusionary clause in the policy only those hospital and medical expenses were excluded which were in fact compensable. In other words, the exclusionary clause related to medical benefits compensable under workmen's compensation, and not to whether the injury was of a type covered by the compensation law.
The court pointed out that research had failed to disclose any case throughout the country identical to the one before the court.
The language of the exclusionary clause in Hunt, supra, is entirely different from the one herein considered, and removes the present case from the influence of Hunt, supra.
Where the invocation of an exclusionary clause depends upon whether the type of injury places the injured workman within the provisions of a workmen's compensation law, the cases from other jurisdictions, some of which are cited in the course of our opinion, uniformly hold that effect must be accorded the exclusionary clause.
Diligent counsel for appellee state in brief that they have found no case considering exclusionary clauses of the same import as the one now before us, in which it was not held that such clauses relate to the type of injury placing the claimant under a workmen's compensation law, rather than relating to the benefits flowing from such law. Our research convinces us of the correctness of the result of counsel's assertion.
The judgment of the lower court is due to be affirmed and it is so ordered.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and MADDOX, JJ., concur. | April 2, 1970 |
3ba8ef7d-c18f-4b90-ad6d-d6afa41dac84 | Lawson v. Garrett | 237 So. 2d 648 | N/A | Alabama | Alabama Supreme Court | 237 So. 2d 648 (1970)
Mrs. T. E. LAWSON et al.
v.
Detrolia GARRETT et al.
7 Div. 880.
Supreme Court of Alabama.
July 2, 1970.
James S. Hubbard, Anniston, Love & Love, Talladega, for appellants.
*649 John W. Coleman, Talladega, for appellees.
MERRILL, Justice.
This appeal is from a decree quieting title to one acre of land in complainants, Detrolia Garrett and wife, Mary Virginia; other complainants are Toby Deese and Farmers Home Administration.
In December, 1900, John C. Eason and A. Lawson purchased the NW ¼ of SE ¼, Section 31, Township 18, Range 4. In August, 1906, Eason and wife conveyed to A. Lawson a strip of land lying east of the public road running from the Fowler Public Road to Fredericksburg and more particularly described as the E ½ of the NW ¼ of the SE ¼ of Section 31, etc. On the same day, A. Lawson and wife conveyed to John C. Eason a strip of land lying west to the public road running from the Fowler Public Road to Fredericksburg and more particularly described as the W ½ of the NW ¼ of the SE ¼ of Section 31, etc. Complainants Garrett claim under Eason and the respondents claim under Lawson. It is undisputed that the acre involved is in the W ½ of the quarter section, but respondents claim title by adverse possession of all land lying east of the old Fredericksburg Road in the quarter section. There is a conflict in the evidence as to where the old Fredericksburg Road actually was.
The controversy arose after the Garretts had purchased the acre of land on July 1, 1968, and contracted with Toby Deese to build a house on it for them, after having the property surveyed and borrowing $9,400.00 from appellee Farmers Home Administration, and when the house was twenty-five per cent completed, two of respondents told Deese's workmen that the house was being built on their property. The work was stopped and the bill was filed. After hearing testimony under the bill, answer and a cross bill and answer, the trial court wrote an extended opinion and decree and found, inter alia, that the complainants proved the material allegations alleged in the bill, that there was an unbroken chain of title of the Garretts and their predecessors in title and that for over fifty years the Garretts and their predecessors in title "have had actual, continuous possession of said property and have regularly assessed and paid ad valorem taxes on said real estate."
The court found that the respondents had failed to offer sufficient evidence to prove adverse possession and that the evidence showed that the Garretts and their predecessors had had actual possession of the land described; that they had had their lines and corners surveyed and marked and that neither the Garrets nor any of their predecessors in title knew of any attempt on the part of respondents to claim title to the land before construction of the house was started; that the evidence of respondents failed to meet the burden of proof necessary to prove adverse possession and that "after hearing the evidence, the Court, at the request of the parties, visited the subject property and made a visual inspection of it in the presence of all the attorneys in the case. That this visual inspection of the land confirms the evidence offered by the complainants."
Assignment of error 1 charges that the court erred in sustaining an objection to a question on cross-examination of complainants' witness Swain, who evidently was being shown a picture: "Over the past 18 years have you observed that fence along the road before the fence posts began to decay?" There was objection because the witness had not testified to seeing any posts or fence. But a few questions later, the witness stated that he had never seen any fence or any posts. The error, if any, was harmless, under the rule that the exclusion of offered testimony is harmless error if the same testimony or testimony to the same effect was later allowed to be given by the witness. Garrison v. Grayson, 284 Ala. 247, 224 So. 2d 606, and cases there cited.
*650 Assignment 2 charges that the court erred in sustaining an objection to a question on cross-examination of complainants' witness, Easeley: "What if I told you I was down there and drove down it today at noon would you believe it?" The witness answered, "I don't know" before there was objection, but there was no error in sustaining the objection because it was not relevant whether or not the witness believed or would believe counsel for appellants.
Assignments 3 and 4 charge that the court erred in denying the separate motions of appellant Grace Patterson, and the other appellants, to exclude the evidence of complainants when they rested, on the ground that they had not made out a prima facie case and that the jurisdictional averments had not been proved. There was no specification as to what these averments were.
The granting of a motion to exclude the evidence of plaintiff after he has rested is never proper in civil cases in this jurisdiction, although the trial court will not be put in error in granting such motion, even though procedurally improper, where plaintiff's evidence does not make out a prima facie case. Jack Cole Co. v. Hays, 281 Ala. 118, 199 So. 2d 659; Robinson v. Morrison, 272 Ala. 552, 133 So. 2d 230; Stewart v. Peabody, 280 Ala. 5, 189 So. 2d 554; McElroy, Law of Evidence in Alabama, 2d Ed., Vol. 3, § 449.04, p. 258.
The affirmative charge is the proper method to raise the question in cases at law. Mazer v. Brown, 259 Ala. 449, 66 So. 2d 561.
Assignment of error 5 was not argued in brief and is deemed waived. Supreme Court Rule 9.
Assignment 6 charges error in the sustaining of an objection to a question on direct to appellants' witness, Parks: "Who has been in possession in any way of that area?" (This probably referred to the property involved). The objection was that the question called for a conclusion of the witness. The trial court erred in sustaining the objection if it was sustained on the ground given in the objection.
Possession is a collective fact to which a witness may testify, and a witness may properly answer a question inquiring, "Who was in actual possession of the land involved?" Burkett v. Newell, 212 Ala. 183, 101 So. 836; Cooper v. Slaughter, 175 Ala. 211, 220, 57 So. 477.
However, we are convinced that the exclusion of this evidence did not injuriously affect any substantial rights of appellants. Just a few questions prior to the one here in question, the following occurred:
Subsequent questions developed that the witness was referring to Tom Lawson, a son of A. Lawson. He further testified that it was farmed and fenced by Tom Lawson.
The question could have been properly objected to on the ground that it was repetitious; but, assuming, without deciding that the court erred, it was harmless error for the court to exclude evidence where such evidence was admitted at another time and in another form. Decker v. Hays, 282 Ala. 93, 209 So. 2d 378.
The remaining assignments of error 7, 8 and 9 read:
These assignments are argued together in brief and there are two reasons why 8 and 9 are without merit. First, appellants' deed "more particularly described" their land as the E ½ of the NW ¼ of the SE ¼ of Section 31, etc. and the disputed acre was not within that description. Secondly, the parties requested the trial judge to visit and inspect the land with all the attorneys in the case. His conclusion was "this visual inspection of the land confirms the evidence offered by the complainants." We are not told what the court saw, but this personal inspection of the property before making its findings of fact is an additional reason why the decree is reviewed here as if it were the verdict of a jury and will not be disturbed unless plainly wrong. Miles v. Moore, 262 Ala. 441, 79 So. 2d 432; McNeil v. Hadden, 261 Ala. 691, 76 So. 2d 160. We cannot say the trial court's findings were plainly wrong.
We agree with appellants that there was no averment in the bill that "no suit is pending to enforce or test the validity of such title, claim or encumbrance." Tit. 7, § 1109, Code 1940. No ground of the demurrer raises the point, but whether or not it was so raised, no assignment of error relates to the overruling of the demurrer to the bill. Appellants did charge generally that a prima facie case had not been made and that the jurisdictional averments had not been proved in their motions to exclude the evidence when complainants rested, but we have already shown that the court's ruling on the motions did not constitute reversible error. No further attempt was made to raise the point, either at the conclusion of the evidence of both sides or in the assignments of error. The first mention of the specific point is in appellants' brief.
In Seeberg v. Norville, 204 Ala. 20, 85 So. 505, where a demurrer had been sustained to a bill which could only be sustained as a bill to quiet title under the statute, this court stated that the complainant must aver that he was in peaceable possession and that no suit was pending, and then said:
Here, the averments of the bill, the answer, the cross bill and answer thereto, and all the evidence necessarily infer that no suit was pending and this was the first contest, claim or dispute that had arisen since the division of the forty acres in 1906. The cause was tried by all parties on this basis and was so treated by the court. In the absence of a specific objection, bringing the omission to the attention *652 of the trial court, we will not, ex mero motu, reverse on a point raised in brief on appeal for the first time.
The functions of this court in its appellate character are strictly confined to the action of trial courts upon questions which are presented to and ruled upon by them. We cannot put a trial judge in error for failure to rule on a matter which has never been presented to, nor decided by, him. Southern Railway Co. v. McCamy, 270 Ala. 510, 120 So. 2d 695; Prestwood v. Ivey, 275 Ala. 336, 154 So. 2d 921.
No reversible error is presented by any of the assignments of error.
Affirmed.
LIVINGSTON, C. J., and LAWSON, HARWOOD and MADDOX, JJ., concur. | July 2, 1970 |
0af781b9-a9df-4b1d-8672-b6c22cbf42ca | Kelley v. Mashburn | 236 So. 2d 326 | N/A | Alabama | Alabama Supreme Court | 236 So. 2d 326 (1970)
Ex parte Lonzo W. KELLEY
v.
Telfair J. MASHBURN, as Judge, etc.
1 Div. 621.
Supreme Court of Alabama.
May 28, 1970.
*327 Wilters & Brantley, Bay Minette, for petitioner.
J. B. Blackburn, Bay Minette, for respondent.
MERRILL, Justice.
This is an original mandamus proceeding in this court to require the circuit court to set aside its order striking petitioner's demand for a jury trial and to require that court to restore the cause to the law side of the court.
Petitioner, plaintiff below, filed an ejectment suit against the City of Bay Minette and demanded a trial by jury. The defendant City filed a petition to transfer the cause to equity, alleging that paving assessments had been made against the property of plaintiff; that it had liens for these assessments, and that the cause should be transferred to equity for the purpose of enforcing the liens.
The cause was transferred on September 5, 1969, and defendant filed its bill of complaint on October 1, 1969, alleging that plaintiff had filed his ejectment suit, that the property sued for was part of a public highway and had been in existence for many years; and that it had the above mentioned liens and sought enforcement of them. The next day, plaintiff filed his appearance and demanded a trial by jury. On October 6, he filed an answer alleging that agents of the defendant City, over his protest, entered on his property and widened a road or street, that after a survey and abstract of his property, he filed the suit in ejectment, and that the property involved had not been condemned, had not been deeded to the City and had not been dedicated.
The City moved that the jury demand be stricken and on February 9, 1970, the motion was granted. On that same day, petitioner, original plaintiff below, filed a petition in this court for a writ of mandamus to require the trial court to vacate the order of February 9.
On March 4, 1970, this court entered an order directed to the trial court requiring it to set aside its order of February 9 and restore the cause to the jury docket or appear and show cause why the peremptory writ of mandamus should not issue.
A demurrer and an answer to the petition was filed in behalf of the trial court, and petitioner filed a replication, none of which changed the facts or the question to be decided.
Ejectment is a favored action for the trial of title to land. McCormick v. McCormick, 221 Ala. 606, 130 So. 226.
Ejectment was known to the common law, Betz v. Mullin, 62 Ala. 365, and *328 it seems implicit that the right to trial by jury is preserved in causes known to the common law in Section 11, Constitution of Alabama 1901. City of Mobile v. Gulf Development Co., 277 Ala. 431, 171 So. 2d 247.
Equity will not take jurisdiction as a substitute for an action of ejectment. While there is no want of power in a court of equity to determine title to lands, it must decline jurisdiction where the remedy at law is complete and adequate, or where its jurisdiction is invoked as a substitute for an action of ejectment. Perry v. Warnock, 246 Ala. 470, 20 So. 2d 867; Miller v. Gaston, 212 Ala. 519, 103 So. 541; Hillens v. Brinsfield, 108 Ala. 605, 18 So. 604.
Here, petitioner, the original plaintiff in ejectment, has made out a case. He alleges that he is the owner of the property but the defendant is operating a road over it and has possession. Title to the property must be determined before any claim for paving assessments become involved.
The trial court erred in transferring the cause to equity over plaintiff's objection, when the transfer meant the loss of trial by jury. The writ should be granted.
We are not to be understood as holding that a suit in ejectment can never be transferred to equity. In Randolph v. Randolph, 245 Ala. 689, 18 So. 2d 555, an ejectment suit was transferred to equity by agreement of the parties, and in Jones v. Wright, 222 Ala. 530, 133 So. 275, the ejectment suit was transferred to equity because the defendant's defense would be available in equity only.
Here, the plaintiff in ejectment objected to the transfer and the matter of the defendant's pavement assessment liens would not become operative until title to the property was determined.
Writ granted.
LIVINGSTON, C. J., and LAWSON, HARWOOD, and MADDOX, JJ., concur. | May 28, 1970 |
7f8ae00e-6342-4aaa-9c0e-a74ee85f25e6 | O'RORKE v. City of Homewood | 237 So. 2d 487 | N/A | Alabama | Alabama Supreme Court | 237 So. 2d 487 (1970)
Charles O'RORKE et al.
v.
CITY OF HOMEWOOD, Alabama, etc., et al.
6 Div. 553.
Supreme Court of Alabama.
July 2, 1970.
*488 Jenkins, Cole, Callaway & Vance, Birmingham, for appellants.
Irvine C. Porter, Birmingham, for appellee on brief.
Sadler, Sadler, Sullivan & Sharp, Birmingham, for Eugene Wylie Corp.
MERRILL, Justice.
The question presented here concerns the legality of the exchange of a 7.63 acre parcel of real estate owned by the City of Homewood for a privately owned 15-acre parcel of real estate.
Ordinance No. 949 of the City of Homewood was adopted on May 22, 1967, as a means of effectuating the exchange. In effect, the ordinance stated that:
(1) The City had acquired approximately 15 acres from three grantors, with two deeds being executed in 1930 and one in 1954.
(2) The grantors agreed to release any restrictions placed on the use of the property.
(3) A portion of the property had been conveyed to the Armory Commission of the State of Alabama.
(4) A portion of the property had been conveyed to the State of Alabama for right of way.
(5) Only about 7.63 acres of the parcels of property remain available to the City for municipal purposes.
(6) The major portion of the 7.63 acres is limited in its usefulness for a public park, recreation area, or any other municipal purpose, inasmuch as the same is subject to flooding and does flood extensively at periodic intervals.
(7) The Eugene Wylie Corporation has offered to exchange for the 7.63 acres a tract of land located on high ground in the City of Homewood consisting of approximately 15 acres, which would be graded and improved pursuant to the terms and conditions of an agreement between the said Eugene Wylie Corporation and the City of Homewood.
(8) The Armory Commission has agreed to reconvey its interest in the property to the City of Homewood in exchange for the conveyance of an additional parcel of approximately 5 acres to it by the Eugene Wylie Corporation.
(9) The Eugene Wylie Corporation has agreed to construct a new armory on the 5-acre tract with a reversionary clause in favor of the City of Homewood in the event it is abandoned for armory purposes. The new armory building will be made available to the citizens of Homewood at all times when it is not needed or required for military purposes.
(10) The City Council found that the land proposed to be conveyed to the City is more suitable for use by the City and the Armory Commission for park and recreational purposes and for the construction, maintenance and operation of an armory than the 7.63-acre tract it now owns, and the exchange of the properties would be greatly in the public interest.
(11) The offer of Eugene Wylie Corporation to exchange the properties was accepted, and the offer of the Armory Commission to reconvey the property to the City of Homewood was accepted.
On June 29, 1967, the bill of complaint was filed in equity against the mayor, the City of Homewood, and the Eugene Wylie Corporation seeking to declare Ordinance *489 No. 949 of the City of Homewood null and void and seeking injunctive relief to prevent respondents from conveying any interest in the property owned by the City.
The real property which the City of Homewood sought to convey to the Eugene Wylie Corporation pursuant to the ordinance is alleged to have been a "public park" continuously until the filing of this suit. The four complainants allege that as citizens and taxpayers of the City of Homewood and as owners of property in the immediate vicinity of the "park," they are entitled to make use of the "park" as members of the general public. Further, the bill of complaint states that the agreement conveying the "park" is illegal because the respondent City failed to comply with the requirements of the statutes or Constitution of Alabama governing the alienation of park property, and that the respondents are proceeding to put into effect the terms of the agreement. Complainants allege that as property owners and members of the general public of Homewood, they will be irreparably injured and damaged by the enforcement or carrying into effect of the ordinance.
Respondents, in effect, denied the allegations charging the invalidity of the ordinance in question, and the cause came before the Chancellor for oral hearing on December 11, 1967.
The transcript consists of almost five hundred pages and of some eighty exhibits, including several photographs. Most of the testimony of complainants' witnesses concerns the history of the land and its use by the public, while the respondents sought to bring out disadvantageous characteristics of the land when used as a park and the desirability of the proposed exchange. Respondent, Eugene Wylie Corporation, planned to construct a large shopping mall on the property, and testimony was offered as to the benefits the City would receive from taxation and increased spending in the city.
The evidence tended to establish these facts about the land. The City of Homewood had acquired the fee simple title to most of the land in lieu of payment of certain municipal assessment liens exceeding the sum of $28,000.00 in 1930. The rest of the property, known as the Smyer tract, was acquired by the City in 1954. None of the instruments conveying this property to the City mentioned dedication of the land as a public park, or created an obligation for the City to hold the land as a public park. Any restrictions on the use of the property were released by the grantors prior to passage of the ordinance. (These original restrictions were that the property would not be used for residential or commercial purposes).
The land lies along the south side of Shades Creek Parkway in Homewood. Shades Creek runs through the area and floods the land several times a year. Respondents offered evidence of severe and periodic flooding. No evidence was presented of any improvement made on the property before 1933. A C.W.A. project built a pavilion, barbecue pits and a stone entrance in 1933 and cleared some of the underbrush. An attempt was made to build an amphitheater but it was washed away when the creek flooded. A shooting range was established in the late 1940's and part of the area was fenced off to keep out the public. The property remained heavily grown up in underbrush.
In 1954, a full time park superintendent was hired by the City to oversee all of its parks. The property first appeared in the budget in October, 1958. In 1957 or 1958, regular expenditures were made for the property from the budget of the Park and Recreation Board. A program of improvement was started, and a summer program with a director was conducted there, but weather conditions and flooding ended the program about 1965.
During the summer, the most useable part of the property is cleared daily and expenditures have been made for maintenance *490 and cleaning. It is generally used by groups. The pavilion may be reserved and complainants introduced evidence that it had been used often during summer months.
At the present time, the armory occupies about one-half of the property, while the cleared part of the remaining half has playground equipment and a picnic area. The uncleared wooded area is said to be low, swampy and full of snakes. One of appellants' witnesses referred to it three times as a "snake pit."
The initiative behind the attempt at alienation of the property was a proposal by the Eugene Wylie Corporation seeking an exchange of properties, so that a large shopping mall could be built on the property then owned by the City. It will suffice to say that the City would gain much in increased tax revenues from the exchange, along with a superior park area and a new armory. Respondents introduced much evidence in this regard. Other aspects of that matter have been before us. See Zoning Board of Adjustment of City of Mountain Brook v. Wright, 283 Ala. 654, 220 So. 2d 261; Cudd v. City of Homewood, 284 Ala. 268, 224 So. 2d 625.
A final decree was rendered by the trial court on December 13, 1967, stating in part as follows:
Accordingly, the court held that complainants were not entitled to the relief prayed for in their bill of complaint, and ordered the case dismissed. Thereafter, this appeal was perfected.
The only assignments of error argued by appellants are that the final decree is contrary to the great weight of the evidence.
Appellants challenge the alienation of this municipal property on the ground that the City failed to comply with the legal requirements said to be imposed upon such a transfer. Amendment 112 of the Constitution of Alabama of 1901, adopted in 1956 (listed in 1958 Recompilation, Vol. 1, p. 427), provides in part:
This constitutional provision is implemented by an Act of the legislature listed as Tit. 47, § 62(1) in the 1958 Recompilation:
Appellants contend that the property is a "public park" "playground," or "other public recreational facility" which may be alienated only by compliance with the election provision which they claim to be mandatory. Appellants concede that there is a *491 difference in the law concerning the alienation of property devoted by a city for public use and property owned by a city but not held for public use.
Appellees contend that the alienation of the property should be allowed under the general authority of a municipality to own and convey property, as provided in Act No. 843, Acts of Alabama 1953, Vol. II, p. 1135, and listed as Tit. 37, § 477(1), 1958 Recompilation, which reads as follows:
The exercise of discretion by the officials of the City in seeking to transfer the park is not attacked by appellants. They claim that no room for discretion existed because the property was in fact a park, and that the only factual issue involved in this case is whether or not the property was in fact a park. Appellants conceded in the lower court that if the property were not held to be a park, their case would fail.
Appellants cite and rely on the cases of Moore v. City of Fairhope, 277 Ala. 380, 171 So. 2d 86, and Douglass v. City Council of Montgomery, 118 Ala. 599, 24 So. 745, for the principles that (1) the legislature is powerless to authorize the sale by a municipality of a public park dedicated by an individual, and (2) that authority must be conferred by statute to enable a municipality to alienate land held and used for public park purposes. We do not think those cases are apt authority here. In Moore, the dedication had been by an individual for the benefit of the public to use as a public park and it had been so used for forty years. In Douglass, the park had been dedicated by an ordinance and had been so maintained some twenty years.
We think the following principles govern the instant case.
Municipal corporations are authorized to purchase and acquire real estate sold in settlement of municipal assessment liens, and after the expiration of the time for redemption, the municipality has good title to property so acquired. Tit. 37, § 561, Code 1940 (§ 2220, Code 1923); Messer v. City of Birmingham, 243 Ala. 520, 10 So. 2d 760; Griffin Lumber Co. v. Neill, 240 Ala. 573, 200 So. 415, 134 A.L.R. 286.
The act of dedication is in the nature of a conveyance of title and interest in the land, it can only be made by the owner, and the burden of proving it, including the ownership of the dedicator, rests upon the party asserting the dedication. State ex rel. Davis v. Meaher, 213 Ala. 466, 105 So. 562; Witherall v. Strane, 265 Ala. 218, 90 So. 2d 251.
To establish a dedication, the clearest intention on the part of the owner to that effect must be shown, and the evidence must be clear and cogent, and the acts of the owner relied on to establish a dedication must be unequivocal in their indication of the owner's intention to create a public right exclusive of his own. Witherall v. Strane, supra; Smith v. City of Dothan, 211 Ala. 338, 100 So. 501.
Where no terms or limitations upon the use of land by the city are impressed, the rules in respect to a grant or dedication with terms or conditions annexed are not applicable. Roach v. City of Tuscumbia, 255 Ala. 478, 52 So.2d 141[6].
Where lands are conveyed to a municipality free from any trusts or conditions, and afterwards used for park purposes, the municipality may sell and convey lands to any grantee that it may choose, under its charter power to sell and dispose *492 of any property owned by it, or it may devote the property to other public uses. Vol. 10, McQuillan Municipal Corporations, 1966 Revised, Sec. 28.52a, p. 175; Carlson v. City of Freemont, 180 Neb. 262, 142 N.W.2d 157; Fielding v. Board of Education of Patterson, 76 N.J.Super. 50, 183 A.2d 767.
Here, the conveyances to the City of this property contained no dedication provisions by the then owners. The City did not dedicate the property as a park by ordinance. Prior to the beginning of the present controversy, the area was reduced from 15 acres to 7.63 acres by sales for an armory and highway right of way. Half of the remaining land is not usable for park purposes. The remainder was used by the public chiefly under a recreation program, but we are not convinced that such use amounts to a perpetual dedication of the property as a public park.
Many of us can remember, in cities and towns with no organized recreation program, that vacant lots and tracts of land belonging to the municipality were used by the public for ball grounds, picnic grounds, public gatherings, political speakings and celebrations, but this use did not make the property public parks, and most of those vacant lots are now used and occupied.
While not exactly apt to this case, in Nearhos v. City of Mobile, 257 Ala. 161, 57 So. 2d 819, the City of Mobile instituted condemnation proceedings to condemn a certain tract for a "public park." After an appeal of the condemnation proceedings to the circuit court, the parties worked out an agreement and a warranty deed was given without any restrictions by the owner to the City of Mobile. The City of Mobile did not use the property for any particular purpose and, after four years, conveyed the property to the L & N Railroad for a passenger station and depot. This court held that the City of Mobile had acquired the title by purchase with no limitations and was free to convey to the L & N Railroad. See also Hall v. City and County of Denver, 115 Colo. 538, 177 P.2d 234; Newell v. City of Kenosha, 7 Wis.2d 516, 96 N.W.2d 845.
In Board of Revenue of Etowah County v. Hutchins, 250 Ala. 173, 33 So. 2d 737, the governing body of the county was held to have the authority to contract for the sale of the present courthouse site. This court said:
Here, there is no charge or suggestion of fraud or bad faith. Appellants' witnesses admit that the exchange of properties will benefit the City. The proposed culvert to govern the flow of Shades Creek would cost many times the worth of the property. One of appellants' witnesses, Lem Bryant, a Homewood business man since 1927, testified: "I told the Mayor that anybody that wanted to swap a snake pit for a well terrained piece of property, I *493 thought the man buying the snake pit was crazy."
We cannot agree that the trial court, after hearing the testimony in the cause, reached a conclusion which was contrary to the great weight of the evidence.
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. | July 2, 1970 |
9a0e9bf0-448c-4562-9c56-d72b3d867683 | Tonsmeire v. Tonsmeire | 233 So. 2d 465 | N/A | Alabama | Alabama Supreme Court | 233 So. 2d 465 (1970)
Doherty C. TONSMEIRE
v.
Arthur C. TONSMEIRE.
1 Div. 539.
Supreme Court of Alabama.
March 19, 1970.
Rehearing Denied April 16, 1970.
Howell, Johnston, Langford & Finkbohner, and Simon & Wood, Mobile, for appellant.
Ralph Kennamer, Charles B. Arendall, Jr., and W. Ramsey McKinney, Jr., Mobile, for appellee.
*466 HARWOOD, Justice.
In the action below, the plaintiff sought damages for an alleged libel published against her by the defendant.
The court below sustained the defendant's demurrers to replications filed to the defendant's plea of the statute of limitations. The plaintiff thereupon moved for a non-suit and dismissal with leave to appeal. This motion was granted.
This is the second time this cause has been before us on appeal. In the first appeal, we reversed the action of the lower court in sustaining demurrers to the complaint, it being our conclusion that the counts of the complaint were sufficient against demurrer. See Tonsmeire v. Tonsmeire, 281 Ala. 102, 199 So. 2d 645.
After remandment and overruling of the demurrers to the complaint, pursuant to our opinion, the defendant filed a number of pleas. Plea 2 reads:
Under Section 26, Title 7, Code of Alabama 1940, actions for libel and slander must be commenced within one year.
Upon consideration of the demurrers to the replications to the plea of the statute of limitations, the court entered a written order sustaining said demurrers, setting forth in this order:
After entry of the above order the court, on motions of the plaintiff, set the same aside and permitted the plaintiff to amend her complaint.
The plaintiff then added Count 5 to her complaint. This count claimed damages for false and malicious publication of the letter, allegedly on 3 July 1964, with intent to defame the plaintiff. The letter written by the defendant to the Rt. Rev. Msgr. Thomas M. Cullen is then set out in full.
It is to be noted that in the first four original counts the publication of the alleged libel is stated as being on or about 17 October 1960. The pleas, including Plea 2, were refiled to the complaint as amended, and further and additional replications to the pleas as amended were filed. In every replication the date of the publication of the letter is stated to be 17 October 1960. Demurrers to all replications being sustained, the plaintiff again moved for a non-suit and dismissal. This motion being granted, the plaintiff perfected this appeal.
Section 42, Title 7, Code of Alabama 1940, referred to in the order of the court above provides:
*467 While the above code section speaks of "actions seeking relief on the grounds of fraud," it has been applied to other torts not arising in fraud in appropriate cases, and applies to a fraudulent concealment of the existence of a cause of action. Hudson v. Moore, 239 Ala. 130, 194 So. 147.
We see no need to set out in detail the contents of the numerous replications filed by the plaintiff to the plea of the statute of limitations to which demurrers were sustained. We think it sufficient to say that several of the replications set up, in varying manner, that while the letter containing the alleged libelous matter was published on or about 17 October 1960, by sending the same to Father Cullen, the defendant at the time of publication of the letter also published it to other persons, including "at least" a son of the plaintiff and defendant, and counseled them not to reveal the contents thereof to the plaintiff, and admonished Father Cullen in the letter that the alleged libelous matter was mentioned in the letter "in strict confidence."
The replications, or some of them, further assert that at the time of the publication of the libel, the plaintiff and defendant occupied the fiduciary relationship of husband and wife, and the defendant at no time mentioned to her the contents of the letter, or its publication, and the plaintiff did not learn of the fraudulent concealment of the contents of the letter or its publication until 1 November 1963, and did within one year after the acquisition of such knowledge file her suit on 31 July 1964.
We think it so well settled as to dispense with the citation of authorities that a cause of action for libel begins to run at the time it accrues, that is, when the defamatory matter is published.
The letter written by the defendant to Father Cullen is set out in full in one or more of the counts of the complaint. It is therefore pleaded by the plaintiff.
According to this letter the plaintiff had left the marital abode long before the letter was written, and despite the defendant's continuous efforts to get her to do so, she had refused to return. She had hired detectives in an attempt to "get something" on the defendant. Divorce proceedings had been instituted prior to the writing of the letter and the intervention of Father Cullen as a counsellor. The clear inferences from the letter are that the plaintiff and defendant were completely estranged at the time of the writing of the letter, and had been for some time prior thereto. Animosity and ill feeling, and not trust and confidence, characterized their relationship.
Ordinarily the relation of husband and wife is a status calling for the exercise of utmost confidence in one for the other. Love, affection, and welfare of the family usually insure this confidential relationship. Cherpes v. Cherpes, 279 Ala. 346, 185 So. 2d 137.
Where, as here, it appears that a married couple has become utterly estranged and trust and affection has vanished from their relationship, and they can be said to be married only because the marriage has not been terminated by divorce, it would be specious to conclude that a relationship, beclouded with antagonism, was a relationship of confidence and trust. See Rash v. Bogart, 226 Ala. 284, 146 So. 814.
We hold that as a matter of law, under the facts asserted in the plaintiff's pleadings, no relationship of confidence or trust existed between the plaintiff and the defendant at the time of the publication of the alleged libel.
The question is then posed, did the actions of the defendant in requesting those to whom he published the alleged libel, not to inform the plaintiff thereof, amount to fraud sufficient to toll the running of the statute of limitations?
*468 It must be remembered that no representations of any sort were ever made by the defendant to the plaintiff. Was there then any duty on the part of the defendant to inform the plaintiff of the publication of the letter containing the alleged libelous matter?
In the absence of a confidential relationship, we know of no duty imposed by law obligating an alleged tort feasor to make known to one possibly injured by his acts the existence of a possible cause of action. Nor was there any duty on the part of those to whom the libel was published to inform the plaintiff of the alleged libel.
Since no duty to inform the plaintiff was cast either upon the defendant or those to whom he allegedly published the libel, plaintiff's reason for delay in filing her suit in reality resulted from ignorance of her alleged cause of action.
As stated in Underhill, Receiver v. Mobile Fire Dept. Ins. Co., 67 Ala. 45:
At most, the act of the defendant requesting the parties to whom the libel was published not to reveal it, was a negative and not a positive suppression of the existence of a possible cause of action.
Section 109, Title 7, Code of Alabama 1940, provides:
There was no confidential relationship between the plaintiff and defendant at the time the letter was published. Nor do the replications disclose any particular circumstances placing a duty on the defendant to speak.
To establish fraud by silence, facts should be averred from which a duty to speak arisesit should appear that the parties were not dealing at arms length. Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286; Maloney v. Fulenwider, 213 Ala. 205, 104 So. 396. In the present case of course the plaintiff and defendant were not dealing with each other at all, either confidentially or at arms length.
In brief counsel for plaintiff argues strenuously that the pronouncements of Roquemore v. Sovereign Camp, W.O.W., 226 Ala. 279, 146 So. 619, and Lehigh Chemical Co. v. Celanese Corp. of America (U.S.Dist.Ct. of Maryland), 278 F. Supp. 894, compel the conclusion that this defendant's conduct amounted to a fraudulent concealment of plaintiff's cause of action and tolled the running of the statute of limitations.
In Roquemore, supra, the defendant, an attorney for the plaintiff had received funds from the plaintiff with which to pay a claim made against the plaintiff by one Snider. Roquemore converted these funds to his own use, but upon inquiry by the plaintiff as to the settlement of Snider's claim, repeatedly wrote the plaintiff misleading letters as to the status of the settlement with Snider. It was held that Roquemore's conduct was such as to toll the running of the applicable statute of limitations.
Thus in Roquemore, supra, there was a status of confidential relationship (attorney and client), and Roquemore made positive and fraudulent misrepresentations directly to the plaintiff. These facts are so different from those in the present case as to make Roquemore inapplicable to our present consideration.
*469 In Lehigh Chemical Co., supra, the plaintiff amended its complaint to allege that the defendant knowingly and fraudulently concealed the fact that the libelous statement had been made and that the plaintiff, with due diligence, could not have discovered the fact of the libel until over two years later, that is on 31 July 1962. The defendant filed a motion to strike the amendment, but later abandoned the motion. The court therefore stated it would assume that the cause of action accrued on 31 July 1962. It cannot be gleaned from the opinion just what were the actions or conduct of the defendant in concealing the cause of action. This hiatus in the facts destroys the persuasiveness of this decision when it is attempted to be applied to the present case.
Counsel for plaintiff contends that the grounds of the demurrer to the replications were general only, and therefore not authorized by Section 236, Title 7, Code of Alabama 1940, which abolishes "general" demurrers in suits at law. (See innumerable cases annotated in the Code under this section.)
A court is fully justified in overruling general demurrers. In the present case of course the demurrer to the replications was not overruled, but sustained.
We pass over the question as to whether all of the several grounds of the demurrer raising the sufficiency of the replications as a bar to the action were, or were not, general in nature.
This for the reason that where a replication to a plea does not set forth matters sufficient to avoid the defense asserted in a plea which would bar the cause of action asserted in the complaint, there can properly be no recovery. A general demurrer that is sufficient to alert a court to such defect is sufficient, since a court ex mero motu should deny a recovery in such a situation. See Butler v. Olshan, 280 Ala. 181, 191 So. 2d 7, dealing with a general demurrer to a complaint failing to state a substantial cause of action.
That several of the grounds of demurrer to the replications were sufficient to call attention of the court to the insufficiency of the replications is evidenced by the fact that after the demurrers to the first set of replications had been sustained and the cause dismissed, the court set forth as a reason for its action that the replications did not set forth sufficient facts to establish fraud on the part of the defendant which would toll the statute of limitations. The court set aside this order of dismissal and permitted the plaintiff to file as an amendment to her complaint an additional count. The plea of the statute of limitations was again filed by the defendant, and additional replications to the plea were filed by the plaintiff again seeking to avoid the plea because of alleged fraud by the defendant in concealing the cause of action. Demurrers to these replications were filed and again sustained.
We have not set out these additional and rather lengthy replications. From our reading of them, we fail to see that any new or additional matter was set forth in them not already contained in the original replications considered at the time of the first order of the court sustaining the demurrers and dismissing the cause. We therefore find no error in the action of the court sustaining the demurrers to the replications.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and MADDOX, JJ., concur. | March 19, 1970 |
87bee515-7993-46ce-ae4d-b85a9fafeecb | Parham v. State | 231 So. 2d 899 | N/A | Alabama | Alabama Supreme Court | 231 So. 2d 899 (1970)
Cleveland PARHAM, III
v.
STATE of Alabama.
6 Div. 654.
Supreme Court of Alabama.
February 19, 1970.
*900 William T. Kominos, Birmingham, for petitioner.
MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.
PER CURIAM.
This is an appeal from the denial by the circuit court of a petition for a writ of habeas corpus filed by the defendant, Parham.
In substance, his petition alleged that he had been brought to trial upon an indictment for robbery and that a mistrial had been erroneously declared by the trial judge, thus placing him in jeopardy, and thereby acquitting him.
Petitioner alleges that the trial judge, in the absence of the jury and over the known objection of the counsel for defendant and off the record, indicated around 5:30 P.M. that if the jury failed to reach a verdict by 10:00 P.M. a mistrial would be declared and the jury would be dismissed. Further, he alleges that the jury failed to reach a verdict by 10:30 P.M., and in the absence of defendant and his counsel and over his known objection, the bailiff dismissed the jury and the next morning the trial judge declared a mistrial.
The hearing on the petition was heard on November 25, 1968, and the petition was denied. The petition was opposed there and here on the ground that habeas corpus is not the proper remedy. We agree.
Prior to the adoption of the Constitution of 1901, this court's interpretation of the common law was "that a court does not possess the power in a capital case to discharge a jury because it cannot or will not agree." Ned v. State, 7 Port. 187, 214.
Section 9 of the Constitution of 1901 was amended by substituting a semicolon for a period and adding a new clause. Section 9 reads:
The Legislature then enacted what is now Tit. 30, § 100, Code 1940:
Section 9 of the Constitution and Tit. 30, § 100, give the trial judge discretion to discharge a jury upon failure to agree. Orr v. State, 40 Ala.App. 45, 111 So. 2d 627, 633; affirmed 269 Ala. 176, 111 So. 2d 639; Andrews v. State, 174 Ala. 11, 56 So. 998.
Petitioner here attempted to show by parol evidence matters not disclosed on the face of the proceedings.
The indictment is regular on its face, the court had jurisdiction and the order of the judge, identified by him as the "Court's record," and read into the record by him, *901 was as follows: "The jury after about six hours on this case said they couldn't agree and they were hopelessly deadlocked. It was the order of the Court that a mistrial be declared and entered in this case and that it be continued to December, 1968, King, Judge."
In Ex parte Rockholt, 271 Ala. 68, 122 So. 2d 162, the petitioner in habeas corpus sought to impeach his conviction by showing by parol testimony that neither he, his counsel, nor the judge was present when the jury returned its verdict. We denied the writ and said:
In Hable v. State, 41 Ala.App. 398, 132 So. 2d 271, cert. den. 368 U.S. 883, 82 S. Ct. 136, 7 L. Ed. 2d 83, the court, per Harwood, P. J., said:
Towery v. State, 143 Ala. 59, 39 So. 310 (1904), also states this rule. See State v. Floyd, 22 N.D. 183, 132 N.W. 662, where the court dismissed the jury in the absence of petitioner's counsel and while petitioner was in jail. Petitioner's claims were assumed to be valid, but such an error was held to be a mere irregularity, not affecting jurisdiction, and not reviewable on petition for habeas corpus.
Here, the jurisdiction of the circuit court is not questioned, nor the validity of the indictment. Certain alleged irregularities on the part of the judge are urged, but we express no opinion as to them, since they can be pleaded as a defense in a future prosecution on the indictment.
We have not been cited to any decision of this court after 1901 where the discharge of a petit jury has been reviewed here in a habeas corpus proceeding. It appears that the law has been written where the question of double jeopardy was raised by proper plea on a subsequent prosecution. Cases on this point prior to 1901 are not now apt authority.
Affirmed.
LAWSON, SIMPSON, MERRILL, HARWOOD and MADDOX, JJ., concur. | February 19, 1970 |
3c86da52-1778-44c2-b617-8090a3fe122e | Centers, Inc. v. Gilliland | 234 So. 2d 883 | N/A | Alabama | Alabama Supreme Court | 234 So. 2d 883 (1970)
CENTERS, INC., a Corporation
v.
Guy GILLILAND et al.
6 Div. 365.
Supreme Court of Alabama.
April 30, 1970.
*884 Dominick, Roberts & Davidson, Tuscaloosa, for appellant.
MERRILL, Justice.
This appeal is from a decree permanently enjoining appellant, Centers, Inc., from using three lots or parts of them as parking lots, when the lots had been purchased by it subject to restrictions.
Mr. and Mrs. Guy Gilliland owned approximately twelve acres of land in the Alberta City area of Tuscaloosa and, in 1946, divided the land into a residential subdivision of forty-six lots, known as Durrett Grove, and duly recorded certain restrictions on the use of the land. The pertinent restrictions are as follows:
Various individuals purchased the Durrett Grove lots. In late 1960, appellant purchased two vacant lots and a part of another vacant lot from the then owners. The deeds given to appellant stated that the property was subject to the said restrictions. After clearing this land, appellant constructed a store building, which included three stores leased for use as a grocery store, shoe store and a fabric outlet. A common parking area was paved and spaces were marked off in front of the building.
The Durrett Grove lots, owned by appellant and subject to the restrictions, were not paved at the time of the paving of the common parking area. After appellant acquired the Durrett Grove lots, the trees on the lots were trimmed by the Alabama Power Company. Harmon B. Looney, the president of appellant corporation, testified that the trees were trimmed so closely that it was decided they should be removed. The wind began to blow dust from the exposed lots into the Durrett Grove subdivision. After some of the residents complained, appellant paved the exposed lots at a cost of $2,667.30, built sidewalks and erected a screen fence. Electric lights were installed on metal poles and shades were placed to shield the light from the houses in Durrett Grove.
Complainants, residents of the Durrett Grove subdivision, brought this suit seeking an injunction to prohibit the appellant from using the property as a parking lot for the general public in violation of the restrictive covenants placed upon the property. They alleged that the use of the land had decreased their property values because of the glaring lights, dust, fumes and noise, and that many automobiles are not removed from the land until long after the stores are closed. Further, it was alleged that the use of the land by appellant or by its tenants is such as to create a nuisance insofar as complainants are concerned.
*885 Appellant denied the allegations of the bill, and the cause was heard ore tenus by the court. Guy Gilliland, one of the complainants, testified that there are fourteen parking spaces marked off on the lots subject to the restrictions, and that he has counted as many as fifty-three cars at one time parked on the restricted lots. Appellant offered testimony that the character of the general area around Durrett Grove has changed from its fundamentally residential state when the restrictions were imposed in 1946.
The final decree granted the relief prayed for, restrained appellant from allowing its tenants, their employees and the general public to park on the lots until the expiration date set by the covenants, which was November 5, 1971.
Appellant's motion for a rehearing was overruled and an injunction bond was fixed at $750.00. Notice of appeal was filed on July 25, 1966, and upon posting of the bond, the injunction was suspended pending the outcome of this appeal.
No brief was filed for appellees and no argument was presented when the cause was orally argued for appellant and submitted to this court.
Two grounds of error are relied upon by appellant as reason for reversal of the decree.
In assignments of error 3, 4, 7, 9 and 11, appellant contends that the evidence is insufficient to show that a business was conducted on the Durrett Grove property in violation of the restrictive covenants.
The restrictions specifically state that "No business of any kind, character or description can be carried on any lot or in any building constructed on any lot." A case in point is Bennett v. Consolidated Realty Co., 226 Ky. 747, 11 S.W.2d 910, 61 A.L.R. 453, wherein a similar restriction was placed on land adjacent to a commercial enterprise, a restaurant and dance hall. The owner sought to use the adjoining land to extend his parking lot, but the court held that such a use violated the restrictive covenant, stating:
Here, there is sufficient evidence that the property was used as a part of appellant's parking lot. Harmon B. Looney, the president of appellant corporation, testified that customers of his tenants parked on the property. In brief, appellant states: "We concede that the evidence introduced shows that there are some lines for parking on the western portion of these lots." Even though some people might have parked on the property while not shopping in the stores owned by appellant, a parking lot was a necessary feature of such retail businesses. The nature of the property, being paved, lighted, partially marked off and contiguous to the original parking lot served as an invitation for customers to *886 park there. We cannot say that the trial judge erred in his determination that the land was used for business purposes. Having reached this conclusion, we find it unnecessary to consider whether the use of the land violated restriction number seven, against offensive activities which may become a nuisance.
In assignment 8, appellant contends that the injunctive relief should not have been granted because the neighborhood has changed in character from residential to commercial.
While the general neighborhood has changed, no evidence was presented concerning any change within the twelve-acre subdivision. It remains utilized exclusively for residential purposes in conformity with the restrictions. Those who have been led to buy lots or build homes in that locality by reason of the restrictive covenants are entitled to have their property preserved for the purpose for which they purchased it. Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661. The changes around the subdivision are not so great as to render the enforcement of the covenants inequitable or unreasonable. Since the original purposes of the covenants can be effectuated, we think that changes outside of the restricted area should not be allowed to defeat the purposes of the restriction. [See Chuba v. Glasgow, 61 N.M. 302, 299 P.2d 774; Morgan v. Matheson, 362 Mich. 535, 107 N.W.2d 825; Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943].
The trial court heard the evidence ore tenus and the finding of facts and the decree of the trial court in such cases will not be disturbed on appeal unless palpably and plainly wrong. Howard v. Harrell, 275 Ala. 454, 156 So. 2d 140; Meador v. Meador, 255 Ala. 688, 53 So. 2d 546.
Appellant purchased the property fully cognizant of the restrictive covenants, which will remain in effect until November 5, 1971. Appellant has not presented any reversible error in the trial court's decree.
This case was reassigned to the author of this opinion on April 9, 1970.
Affirmed.
LAWSON, HARWOOD, MADDOX and McCALL, JJ., concur. | April 30, 1970 |
a23b06c9-f8a8-4fa2-9f46-d200e9893532 | Alabama Industrial Bank v. State Ex Rel. Avinger | 237 So. 2d 108 | N/A | Alabama | Alabama Supreme Court | 237 So. 2d 108 (1970)
ALABAMA INDUSTRIAL BANK, a Corporation
v.
STATE of Alabama ex rel. C. E. AVINGER, as Superintendent of Banks, etc.
6 Div. 698.
Supreme Court of Alabama.
June 18, 1970.
*109 Alfred M. Naff and Deramus & Johnston, Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for appellee.
MERRILL, Justice.
This appeal is from a decree enjoining appellant from the use of the word "Bank" in its name anywhere in Alabama except at Florence, and involves the construction of a 1949 statute.
No testimony was taken. The cause was submitted on the petition, pleadings, stipulation and briefs. The stipulated facts show that appellant was incorporated in Lauderdale County in July, 1926, under the name of Florence Industrial Bank, and its name was changed to Alabama Industrial Bank in December, 1928. It has been continuously in business and since December, 1928, has done business under the name, Alabama Industrial Bank. It has continuously operated an office in Florence and does at the present time, and also operates offices in the cities of Tuscaloosa, Birmingham, Huntsville, Bessemer, Fort Payne and Scottsboro, under the same name. The offices, with exception of the office in Florence, were opened on or *110 about January, 1968. Appellant's certificate of incorporation provides that appellant may operate and engage in business at various points in Alabama under whatever business or trade name it may desire to assume.
Appellant is not a bank within the meaning of Tit. 5, § 1, Code 1940. The statute involved is Act No. 230, General and Local Acts of Alabama 1949, p. 333, was approved July 12, 1949, and made effective six months from that date. It is listed in the 1958 Recompilation as Tit. 5, § 1(1).
Act No. 230 was originally introduced as Senate Bill 143, and when it was taken up on third reading, an amendment was added to Section 1 of the bill. Senate Journal, 1949, Vol. I, pp. 381-382. The bill, as amended, was passed and approved. We have emphasized the words of the amendment because their interpretation is controlling in this case. Section 1 of Act No. 230 reads:
On January 17, 1969, the trial court entered a decree, the pertinent part of which is as follows:
Some legal principles applicable to the interpretation and construction of this statute follow.
In determining the meaning of an act, the paramount purpose is to ascertain the legislative intent. State v. Seals Piano Co., 209 Ala. 93, 95 So. 451.
The court looks for the legislative intent in the language of the act; that language may be explained; it cannot be detracted from or added to. The office of *111 interpretation is not to improve the statute; it is to expound it; and the court knows nothing of the intention of an act, except from the words in which it is expressed, applied to the facts existing at the time. May v. Head, 210 Ala. 112, 96 So. 869. Rodgers v. Meridith, 274 Ala. 179, 146 So. 2d 308.
All particular rules for construing statutes must be regarded as subservient to end of determining legislative intent.
The intention of the Legislature must primarily be determined from the language of the statute itself if it is unambiguous.
To justify a departure from the lan guage of the statute, there must be a moral conviction that its practical effect under existing law, the spirit of the whole statute and its legislative history, as well as the purpose to be accomplished, duly disclose the Legislature could not have intended such result under a rational, sensible construction.
The general rule is that where the language of a statute is unambiguous, the clearly expressed intent must be given effect, and there is no room for construction.
Courts can only learn what Legislature intended by what it has said, and have no right to stray into mazes of conjecture or search for an imaginary purpose, in construing statute. Dixie Coaches v. Ramsden, 238 Ala. 285, 190 So. 92; State v. Thames, Jackson, Harris Co., 259 Ala. 471, 66 So. 2d 733.
When the language is plain, it should be considered to mean exactly what it says. Ex parte Bozeman, 183 Ala. 91, 63 So. 201; Kimbrell v. State, 272 Ala. 419, 132 So. 2d 132.
We agree with appellee and the trial court that the intention of the Legislature, as shown by the bill as originally introduced, was to restrict the use of the word "Bank" (in this case) as a name or part of a name to any business in Alabama not subject to statutes relating to banks. But that intention was changed when the amendment was added. As pertinent to this case, the amendment stated that: "This Section shall not be applicable * * * to corporations incorporated under the laws of this State, with such word or words in their corporate name and engaged in business prior to the effective date of this Act."
There is nothing ambiguous in those words and the only matter not self-explanatory is "the effective date of this Act," and those words are explained in Section 2 of the Act which makes it effective six months from the date of its approval.
Appellant was and is such a corporation; it was using the word "Bank" in its name long before the passage of the Act and was plainly within the clear meaning of the amendment. And Section 2 of the Act clearly gave three optionsone, the right to continue the use of the word in the name; two, the right to eliminate the use of the word in the name, or three, the right to add the word to its name within the six months period before the effective date of the Act and continue to use the word afterward under the exemption.
In 1877, this court stated a principle which we still follow. We can only learn what the Legislature intended from what they have said. When their language is plain, no discretion is left to us. We have no right to stray into the mazes of conjecture, or to search for an imaginary purpose. When language is plain, there is no room for construction. Lehman, Durr & Co. v. Robinson, 59 Ala. 219.
Title 5, § 190, Code 1940, deals with the word "trust." That section originally came into our law with the adoption of the 1907 Code. Section 3530, Code 1907, provided in part that "all corporations now using the word `trust' in contravention of the foregoing provisions shall have six months from the adoption of this Code to comply *112 with its provisions." There, the corporations using "trust" in their names and not operating as "a trust company or as a bank" had, to stay within the law, only one option remove the word "trust" within six months after the adoption of the Code of 1907.
Here, the Legislature was far more lenient as already shown. Whether actually intended or not, the lawmakers exempted from the law those businesses which were using the word "Bank" in their name within six months after the approval of the Act.
The amendment seriously modified the Act as originally drawn. The Legislature may not have considered the full effect of the exemptions included in the amendment, but the words are clear, unambiguous and include appellant as it does business in Alabama.
The remedy to the situation here is in the Legislature, not the courts.
The decree of the trial court is reversed and one is here rendered denying the relief sought and dismissing the bill.
Reversed and rendered.
LIVINGSTON, C. J., and LAWSON, HARWOOD and McCALL, JJ., concur. | June 18, 1970 |
faf0aad2-ea47-413e-a1e5-10ce4ee5827d | Employers National Insurance Company v. Parker | 236 So. 2d 699 | N/A | Alabama | Alabama Supreme Court | 236 So. 2d 699 (1970)
EMPLOYERS NATIONAL INSURANCE COMPANY, a Corporation
v.
Helen S. PARKER et al.
7 Div. 838.
Supreme Court of Alabama.
June 11, 1970.
Lange, Simpson, Robinson & Somerville and Reid B. Barnes, Birmingham, for appellant.
Love & Love, Talladega, for appellees.
BLOODWORTH, Justice.
On original submission, this case was assigned to another justice, and has just been reassigned to the writer.
The appeal is from a final decree in equity rendered on a bill for declaratory judgment seeking a declaration of rights under an automobile liability insurance policy.
In its final decree, the circuit court of Talladega County decreed: that an insurance policy issued by complainant Employers National Insurance Company covering respondent Billie G. Parker's Volkswagen automobile was in full force and effect on December 5, 1966, the date of an accident involving that automobile and one driven by an uninsured motorist; that the prosecution to judgment of a cause of action by the wife of the insured, respondent Helen S. Parker, against the uninsured motorist did not work a forfeiture of the policy; and that the medical payments provision in the insurance policy did not affect the amount of the insurer's liability under the uninsured motorists provision.
Three issues are presented on this appeal: whether the trial court was palpably wrong in its conclusion that the insurer failed to prove the mailing of a notice of cancellation of the policy prior to the date of the accident; whether the insurer's denial *700 of liability under the policy on the ground of previous cancellation rendered inoperative a policy provision requiring that the insured obtain the insurer's written "consent to sue" before prosecuting any action to judgment against the uninsured motorist; whether payments made by the insurer to the insured under the medical payments coverage are due to be deducted from the amount for which the insurer is liable to the insured under the uninsured motorists coverage. Having resolved these issues in favor of the insured for reasons which hereinafter appear, we think the decree should be affirmed.
On August 10, 1966 Employers National Insurance Company, issued two automobile liability insurance policies to Billie G. Parker of Route 1, Eastaboga, Alabama, one numbered 213003 covering a Volkswagen and one numbered 213004 covering a pickup truck.
An automobile accident occurred on December 5, 1966, involving the Volkswagen driven by Helen S. Parker, wife of insured, and an uninsured vehicle driven by Mary Johnson. When Mrs. Parker and her passenger, Mrs. Joyce Dulaney, made claims against Employers under the uninsured motorists coverage, the latter denied coverage, contending that both policies, number 213003 and number 213004, had been cancelled on October 28, 1966, pursuant to a cancellation clause in the policy, viz:
The insured Parker admits receiving notice of cancellation for the truck policy (No. 213004) but denies receiving any notice for the Volkswagen policy (No. 213003) prior to the accident. Parker does not deny that the mailing of notice of cancellation is sufficient proof of notice, but he contends that the insurer's proof was insufficient to show that a notice of cancellation of policy number 213003 was mailed.
John Clarence Bunnell, an employee of Burnham, Luck and Hughes, Inc., a Birmingham subsidiary of Employers National Insurance Company, testified that he was authorized to cancel policies for Employers. He testified that there was a custom or procedure followed in his office as to cancellation, which consisted of: his writing a memo to his secretary, Miss Tyler, designating the policy to be cancelled; her computing the premium to be returned, typing up the notice of cancellation on a form provided by the insurer for that purpose, and, returning the original plus four carbon copies to Bunnell, who would sign the original (for the insured) and would initial two other copies (for the agent and the mortgagee, if any). Miss Tyler testified that she would then address an envelope to the insured and place the original, signed notice of cancellation in it. She would also type the name and address of the insured on a "Certificate of Mailing" form furnished by the post office and affix this form to the envelope. She would then take the envelope to the post office where, for postage, a postal employee would compare the name and address on the envelope with that on the Certificate of Mailing affixed thereto, and would postmark both the envelope and the Certificate, tearing off and returning the latter to Miss Tyler. (The postal employee did not see the contents of the envelope.) After returning to the office, Miss Tyler would affix this Certificate of Mailing to the fourth carbon copy of the notice of cancellation to be mailed to the home office of Employers in Dallas, Texas. Although Miss Tyler said that, to the best of her recollection, she followed the customary procedure she had outlined with respect to both notices of cancellation in this *701 case, the following exchange took place on cross-examination:
This answer indicates (as counsel for both parties assume) a denial by Miss Tyler of any specific recollection of the notices of cancellation at issue.
Although Mr. Bunnell testified that separate envelopes and separate mailings would have been used for the two notices of cancellation allegedly sent to Parker, Employers introduced only one Certificate of Mailing bearing the name and address of the insured and postmarked October 17, 1966. That Certificate bore the number 212003 (a number which had been added by Miss Tyler to expedite filing procedure) which fails to correspond to the number of either of the two policies alleged to have been cancelled. Miss Tyler attributed this to a typographical error.
Mrs. Hazel Poole, employee of Weatherly Insurance Company of Anniston, the local agent, testified for Employers that about October 18, 1966, she received in the office of the Weatherly Agency copies of two notices of cancellation stapled together, one for policy number 213003 and one for policy number 213004 (neither of which was signed or initialed); that handwritten notations thereon, viz: "Paid ck #666 12-5-66" on 213003 and "Paid 11-4-66 ck #620" on 213004, were hers; that she mistakenly thought $13.00 was the refund due for both policies, and on November 4, 1966, she mailed a check for that amount to Billie G. Parker together with a typed letter explaining that the check was a refund for cancelled policy number 213003 (a purported copy of this letter, introduced in evidence, referred to policy number 213003, but the check, likewise introduced, referred to policy number 213004). She denied having enclosed with the check a handwritten letter explaining that the truck policy was being cancelled because heavy traffic at Bynum where Mr. Parker worked created too great a risk. She testified further that Weatherly Agency had received an account sheet on November 14, 1966 from Burnham, Luck, and Hughes (which was introduced in evidence), which indicated that both policies, 213003 and 213004, had been cancelled. She further testified that on December 5, 1966, the date of Mrs. Parker's accident, she happened to discover that Parker was due another $13.00, and mailed him a check for that amount with a handwritten note apologizing for the delay; she denied that she had received notice of the accident at that time.
The insured Billie G. Parker testified that around the middle of October he received notice that the policy covering his pick-up truck was being cancelled; that a while later he received a check for $13.00 accompanied by a handwritten note explaining that the policy on his pick-up had been cancelled because congested traffic conditions around Bynum where he worked created too great a risk of accident; and that he received no typewritten letter from Weatherly Agency referring to cancellation of policy number 213003. He testified that he then obtained another policy of insurance for the pick-up. He further testified that on December 5, 1966, in a telephone conversation, he informed someone identifying himself as James Weatherly about the accident (which Weatherly denied); that on December 7, 1966 (two days after the accident), he received by mail a check for $13.00 along with a note apologizing for the delay in refunding the premium.
*702 This case was tried under Title 7, § 372(1)[1] and we are bound to consider only "such testimony as is relevant, material, competent, and legal * * * [but we are not] required to point out what testimony or evidence should be excluded or not considered." After a review of all the evidence we are not convinced that the decision of the trial court, which heard the evidence ore tenus, is plainly wrong or unjust. State v. City Wholesale Grocery Co., 283 Ala. 426, 218 So. 2d 140 (1969). It is well settled that where the evidence is in conflict, the decision of the trial court, which heard the evidence ore tenus, is presumed correct on appeal and will not be disturbed unless plainly wrong or unjust. State v. City Wholesale Grocery Co., supra.
We think the trial court could find that Employers failed to satisfy the burden of proof placed upon the insurer to prove the policy was cancelled. It could find that the evidence "was not of such definite and specific character as to show conclusively the mailing of the notice to plaintiff [insured]." United States Fidelity and Guaranty Co. v. Williams, 43 Ala.App. 205, 186 So. 2d 738 (1966). Such proof is required, according to the decision of the Court of Appeals, (quoting Grimes v. State Auto. Mut. Ins. Co., 95 Ohio App. 254, 118 N.E.2d 841) because:
We note that the single Certificate of Mailing introduced in evidence was specific proof only of the fact that a single piece of mail was mailed to Billie G. Parker on October 17, 1966, a fact which Parker admits.
According to the testimony of the insurer's own witnesses, there is evidence of at least four errors on its part in attempting the cancellation of the policy in this case:
Undoubtedly, such a series of errors, omissions and oversights contributed to the trial court's finding that cancellation was not proven.
The insurer next contends that Helen Parker's suit to judgment against the uninsured motorist without its written consent contravened the following policy provision and worked a forfeiture of the uninsured motorist protection:
The insurer has cited two cases as authority supporting his contention. Cotton *703 States Mutual Insurance Company v. Torrance, 110 Ga.App. 4, 137 S.E.2d 551, and Oren v. General Accident Fire and Life Assur. Corp., 175 So. 2d 581, Dist.Ct. of App.Fla. The insured has cited two cases to the effect that when an insurer denied liability on one ground, it thereby waives all other grounds of defense: Hanover Fire Ins. Co. of New York v. Salter, 35 Ala.App. 487, 49 So. 2d 188, cert. den. 254 Ala. 500, 49 So. 2d 193; and Rhode Island Ins. Co. of Providence, R.I. v. Holley, 226 Ala. 320, 146 So. 817.
We might well dispose of this assignment of error by simply adopting the very appropriate comment of the able trial judge in his final decree, viz:
Would it not require the "doing of a futile act" to say Mrs. Parker must seek written consent to sue from the insurer which has already denied there is any policy of insurance in force? See Alabama Department of Industrial Relations v. Anderson, 41 Ala.App. 267, 269, 128 So. 2d 532 (1961). The fact is that the insurer was advised in a letter from insured's attorneys that suit was being brought and judgment would be taken. It made no reply. Thus, we need to determine the effect of the insurer's action.
Of the two cases cited by insured, we think only Hanover Fire, supra, is apt. In Hanover Fire, the Court of Appeals held that an insurer, by denying liability on a policy of fire insurance, waived a policy provision that action should not be brought against the insurer on the policy until 30 days after filing of proof of loss. In that case suit was commenced within 30 days. Employers seems to argue, however, that until Mrs. Parker commenced her suit against the uninsured motorist, its defense of forfeiture did not arise.
We are not so persuaded. Hanover Fire, supra, appears to us to be authority to the contrary and to excuse the insured from performance of such a condition made for the insurer's benefit even though it arose after the repudiation of the contract by the insurer.
The Restatement of the Law of Contracts, Vol. I, § 306, pp. 451-452, answers the insurer's contention in like fashion, viz:
"§ 306. EXCUSE OF CONDITION BY REPUDIATION OR MANIFESTATION OF INABILITY
"Comment:
This doctrine is reflected in case law. In Calhoun v. State Farm Mutual Auto. Ins. Co., 254 Cal. App. 2d 407, 62 Cal. Rptr. 177, 181 (1967), the insurer denied liability under an uninsured motorist provision on the ground that a non-resident motorist who collided with the insured was not an "uninsured" motorist. The facts were that the other motorist had insurance with limits of $5,000/$10,000 but these limits were less than the $10,000/$20,000 limits of the insured's policy, the minimum required under California law. The widow of the insured settled with the other motorist's insurer for his policy limits ($5,000) without obtaining written consent of the insurer, despite a provision in that policy analogous to the one here. (The California courts had previously held that being "uninsured" means carrying insurance with limits less than that required by California law.) The court held in favor of the insured in suit on the policy. The failure to obtain "consent to sue" from the insurer was held not to deprive the widow of uninsured motorist coverage. The court said:
quoting from Estrada v. Indemnity Ins. Co., 158 Cal. App. 2d 129, 322 P.2d 294, 300 (1958). Notwithstanding Calhoun, supra, was based in part upon a California statute (which appears to follow the Restatement, supra), we think it has applicability here.
For the reasons stated, we hold that the policy provision providing uninsured motorist protection was not forfeited because of the failure to obtain written "consent to sue" from the insurer before prosecuting to judgment the action against the uninsured.
Neither of the two cases, Cotton States Mutual Insurance Company v. Torrance, supra, and Oren v. General Accident Fire and Life Assurance Corp., supra, cited by the insurer, appears to us to militate against the conclusion we have reached.
Though both Oren and Cotton States Mutual upheld the validity of a "consent to sue" provision (such as appears in the instant policy) neither case considered the effect of a denial by the insurer that the policy was in force on account of an alleged cancellation of the policy. (Other jurisdictions have refused to enforce such clauses, some holding the provision to be against public policy. See authorities and discussion in Gulf American Fire & Casualty Company v. Gowan, 283 Ala. 480, 484, 485, 218 So. 2d 688 (1969).)
In view of the result we reach, we need not decide in this case whether this "consent to sue" clause is void and unenforceable as against public policy. Perhaps, (as we mentioned in Gulf American) since the older "consent to sue" clause is being replaced by the newer "conclusive judgment" clause, cases construing the former clause may prove to be rare.
The insurer's final assignment of error is in that portion of the trial court's decree which held that medical payment made to the insured under the "Expenses For Medical Services" coverage of the policy "has no effect upon the uninsured motorist coverage." The argument is made that the insurer will be compelled to pay the insured twice for the same expenses, since medical expenses would be included in the recovery under the uninsured motorist coverage.
*705 However, the insurer candidly and quite commendably admits in brief:
Our research has disclosed only one case factually on all fours with the case at bar on this issue, Sims v. National Casualty Company, 171 So. 2d 399 (District Court of Appeal of Fla.1965). In that case it was held that the insurer was not entitled to credit its medical payments against its uninsured motorist liability. The court stated:
We find this reasoning compelling, particularly so in view of the fact that the declarations of the policy (in the case at bar) list separate premiums for medical payments and uninsured motorist coverage of $3.00 and $2.00 respectively. Having promised, in the event of accident, to provide medical payments coverage for a consideration of $3.00 and having promised to provide uninsured motorists coverage for an independent consideration of $2.00 and having failed to insert in its policy any provision relating its respective obligations under these two independent covenants, Employers cannot now be heard to complain if it is held to both promises.
Therefore, having found no reversible error in the record, the decree of the trial court is due to be affirmed.
Affirmed.
LIVINGSTON, C.J., and SIMPSON, COLEMAN and McCALL, JJ., concur.
[1] The equity rule relating to objections to, and consideration of, evidence in equity cases. | June 11, 1970 |
18b5e870-1b1e-4088-a6bc-0772efeb7355 | Divine v. State | 234 So. 2d 28 | N/A | Alabama | Alabama Supreme Court | 234 So. 2d 28 (1970)
Allen Lonzo DIVINE, alias
v.
STATE of Alabama.
4 Div. 289.
Supreme Court of Alabama.
March 19, 1970.
Rehearing Denied April 30, 1970.
B. B. Rowe, Robert E. Cannon, Elba, for appellant.
MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
MERRILL, Justice.
This appeal is from a denial of a petition for writ of error coram nobis by petitioner, who is in the penitentiary under a death sentence for first degree murder.
*29 In September, 1964, appellant's father secured a peace warrant for appellant and rode with a policeman and a deputy sheriff to his home where appellant lived with him. When they arrived at the father's home, the policeman got out of the automobile and walked a few steps toward the house. Appellant shot him from inside the house with a shotgun and he died.
Appellant was indicted, convicted and sentenced, and an appeal was taken to this court. We affirmed. Divine v. State, 279 Ala. 291, 184 So. 2d 628. Appellant's defense in circuit court was that he was insane and that he was drunk when the offense was committed.
The petition for writ of error coram nobis was filed December 15, 1966, heard in January, 1967, and the opinion and order of the trial court denying the petition was filed February 21, 1967. The opinion of Judge Eris Paul fills nine transcript pages and is a full, complete and studious answer to the petition. Since the parties to this cause are familiar with it, we will not reproduce all of it, but we are in accord with his conclusions and affirm the judgment.
On appeal, appellant presents two questions by assignments of error. Assignments 1 and 4 charge that the trial court erred in denying appellant's application for a medical examination to determine his sanity under Tit. 15, §§ 425, 428, Code 1940. The trial court appointed two practicing physicians to examine appellant and held a hearing. Both doctors testified that in their judgment, appellant was sane. This testimony and full consideration of this question is contained in our opinion in Divine v. State, 279 Ala. 291, 184 So. 2d 628, and need not be restated here. The opinion in that case followed the law and it was restated in Eaton v. State, 280 Ala. 659, 197 So. 2d 761. Since that question was settled on appeal, and this proceeding merely seeks to reopen a question already fully considered and determined on appeal to this court, it will not now be reconsidered on an appeal from a judgment denying a petition for writ of error coram nobis. Ex parte Seals, 271 Ala. 622, 126 So. 2d 474, cert. denied, 366 U.S. 954, 81 S. Ct. 1909, 6 L. Ed. 2d 1246.
Assignments 2 and 3 charge error in the denying of the petition on the basis of the newly discovered evidence presented to the court. This newly discovered evidence resulted from a clemency hearing. Appellant applied to the Governor for a clemency hearing and it was held on August 8, 1966. At that time, Governor George C. Wallace entered an executive order continuing the hearing so that appellant could be sent to Bryce Hospital for psychiatric observation and examination. On July 24, 1967, depositions of Drs. J. S. Tarwarter, T. H. Patton and W. B. Robinson, members of the examining board, and Dr. R. G. Kibbey, another doctor at the mental hospital, were taken.
In his opinion, Judge Paul quoted extensively from the testimony of the doctors at Bryce Hospital. Each of the doctors testified that it was their diagnosis and conclusion that at the time petitioner was admitted to the hospital on August 29, 1966, at the time he was discharged on September 29, 1966, and on the date of the commission of the offense, September 2, 1964, he was suffering from no psychosis, delusions, hallucinations, compulsions or any other evidence of psychosis. The gist of their testimony was that their diagnosis of appellant's condition was alcohol first and, secondly, an emotionally unstable personality; and that, based upon what he had told them, and a reading of the record of the trial and a report from a social worker in Elba, who had interviewed members of appellant's family, all concluded that appellant was so drunk that he was incapable of premeditation when he murdered the policeman. We quote from Judge Paul's opinion as he considered this facet of the case:
"The question then presents itself whether trained psychiatrists are able to examine a person on a given day, and determine *30 from the examination that he was drunk at a time two years prior thereto, in fact, so drunk that he was not able to form an intent to commit a crime or to be able to premeditate a crime. All of the psychiatrists in this case testified that they had before them the history elicited from the petitioner, and the transcript of the official record of the trial, which was forwarded to them by the Governor along with the petitioner when he came for observation. In addition to the history obtained by them from the patient himself, all of the doctors, except Dr. Kibbey, testified that they read and studied the record of the trial, including all the evidence carefully. A part of the history considered by the doctors in making their determination in this cause was obtained by a social worker of the hospital who interviewed some of the defendant's family in Elba, Alabama. The record is not exactly clear which of the defendant's family was interviewed except that it shows that a brother was talked with. A report was made from the interviews with the defendant's family and submitted to the doctors, which they took and considered along with the court record, their observation and interviews with the defendant. It is impossible to know what information, if any, that the board of doctors had before them that was not in the court record and before the jury. The defendant did not testify himself on hearing of the petition to appoint an insanity commission tried in the circuit court, nor did he testify in his behalf on the trial of the cause. But, so far as is known, all the other matters reviewed by the doctors and upon which they made their findings were in the court record and before the jury, and also before the Supreme Court on review. The record of trial contained evidence that the defendant was drinking on the date of the alleged offense. There was no evidence shedding any light on how long he had been drinking, how much, or what petitioner might have been drinking. The strongest evidence on this matter, from the petitioner's standpoint, was from D. O. Divine, petitioner's father, on direct examination by petitioner's attorneys. The witness was asked, `What was his condition relative to being sober or drunk?' He answered, `He was saying about it, but he was drinking high.' Transcript of Trial, page 189. The other witnesses who appeared in the cause and saw him near the time of the shooting testified, in substance, that he did not appear to be drunk. These witnesses were friends and neighbors of petitioner's, and the sheriff, all of whom had known him for a long period of time. The Court must conclude, therefore, that the only way the doctors could have determined that the defendant was drunk on September 2, 1964, and the degree of such drunkenness, was to rely completely on information obtained from him, the defendant, on their interviews while a patient at Bryce Hospital. It necessarily follows, that the jury was in much better position to determine the issue of drunkenness than were the doctors since they had the benefit of the witnesses appearing personally before them except the defendant who chose not to testify. To reach any other conclusion would be to establish this commission of experts as a reviewing board of the verdict of a jury on a question of fact.
"It has been recognized and accepted for many, many years by the medical profession, laymen, and the Courts that experts in mental diseases, as are the four psychiatrists who testified on this hearing, are qualified to give an opinion and to testify as to the existence or nonexistence of diseases of the mind, whether the patient is sane or insane. However, this Court knows of no precedent in law where such experts have been called upon to testify that an individual was drunk, and the degree of such drunkenness, on a date approximately two years prior to the examination.
"On the hearing of the petition for writ of error presently before this Court, the defendant testified as a witness in his own behalf. As stated before, he had not testified in any of the other hearings or at the trial before the jury. This Court feels that no purpose would be served by relating his testimony in this order. Anything that *31 he testified certainly was not unknown to him or his lawyers at the time of trial and would not be newly discovered evidence. It is not insisted that he did not understand fully his constitutional rights to testify as a witness, (see pages 232-234 Transcript of Trial) nor is it insisted that he was not diligently, adequately, and ably defended by the lawyers who represented him in all matters growing out of the offense for which he was tried, including the appeal to the Supreme Court of Alabama, and on this petition for writ of error coram nobis."
The writ of error coram nobis does not lie to enable an accused to question the merits of the case or to correct an issue of fact which has been adjudicated, even though wrongfully determined, or to review errors concerning facts known to the court with reference to which the court acted at the time of the trial. Thomas v. State, 274 Ala. 531, 150 So. 2d 387; Ex parte Seals, 271 Ala. 622, 126 So. 2d 474; Johnson v. Williams, 244 Ala. 391, 13 So. 2d 683.
Where the evidence is in conflict on the question of the defendant's intoxication, or being under the influence of drugs, or his sanity, and their effect upon intent and other elements of murder, such questions, with proper instructions, are properly submitted to the jury. Oliver v. State, 232 Ala. 5, 166 So. 615; Bowen v. State, 274 Ala. 66, 145 So. 2d 421; Carr v. State, 43 Ala.App. 642, 198 So. 2d 791, cert. denied 281 Ala. 716, 198 So. 2d 798, cert. denied, 389 U.S. 877, 880 S. Ct. 175, 19 L. Ed. 2d 165.
During the course of the trial, the jury was confronted with conflicting evidence as to the degree of appellant's intoxication on the day in question, and his mental condition. The evidence offered to the lower court on the petition for writ of error coram nobis went only to this questionappellant's intoxication at the time of the commission of the crime. It was then, in effect, merely cumulative and this court has held that alleged newly discovered evidence which is merely cumulative is not sufficient to grant a petition for writ of error coram nobis. Ex parte Cobern, 274 Ala. 354, 148 So. 2d 631, where we said:
A report of the lunacy commission provided for in Tit. 15, § 425, is evidence, but it is not mandatory that the trial court be governed solely by the report. Ex parte State, 268 Ala. 524, 108 So. 2d 448. In that case, we said:
This case was originally assigned to another member of the court and was reassigned to the author of this opinion on March 9, 1970.
Affirmed.
LIVINGSTON, C. J., and LAWSON, HARWOOD and MADDOX, JJ., concur. | March 19, 1970 |
040d596f-36e2-4e03-aed7-0fdeb5783db4 | Jackson v. State | 234 So. 2d 579 | N/A | Alabama | Alabama Supreme Court | 234 So. 2d 579 (1970)
Johnny Mack JACKSON
v.
STATE.
4 Div. 319.
Supreme Court of Alabama.
April 9, 1970.
*580 Smith & Smith, Dothan, Jackson W. Stokes, Elba, for appellant.
MacDonald Gallion, Atty. Gen., David W. Clark, Asst. Atty. Gen., for the State.
HARWOOD, Justice.
This appellant was found guilty of rape by a jury which fixed his punishment at death. Judgment was entered pursuant to the verdict. A motion for a new trial was duly filed and after a hearing was denied. This appeal followed.
The evidence presented by the state in the trial below tends to show that the victim had returned to her home in Dothan around 4:30 P.M., on 7 January 1967, after a shopping trip. She placed some groceries in the kitchen and then went into the bedroom where she removed her shoes, hose, and girdle, and lay down on a bed. She had turned on the lights in the kitchen, den, and bedroom. She soon fell asleep. She awoke later and saw the appellant in the bedroom. He came to the bed and ordered her to remove her clothes. She refused. The appellant threatened to kill her and stabbed her in the left thigh with a sharp instrument. He then tore off her clothes and raped her.
He dragged her into the dining room and struggled with her. During this struggle, the appellant stabbed the victim in the neck. She bled profusely from this wound and the appellant turned her loose. At this time the victim went out of the back door of her house and to her sister's house next door. Her sister admitted her, and hearing the victim's complaints and observing her bloody condition, called an ambulance and the police.
The ambulance, with a doctor, arrived and the victim was taken to a hospital. The victim had become cyanose and had difficulty in breathing. She was taken to the emergency room and a trachaeotomy was performed. She was then taken to an operating room where an operation was performed on her neck wound. While she was anesthetized, a pelvic examination was made. Seminal fluid was found in her vagina, which upon laboratory examination disclosed immobile spermatozoa.
Upon investigation at the victim's home shortly after their arrival, the police found a pair of black handled scissors under a table in the dining room. These, along with a shirt, trousers, and shorts which the appellant wore at the time of his arrest, were forwarded to the state toxicologist at Auburn University. Examination of these articles revealed that human blood was on all of them. Semen stains were found on the shorts. In addition to blood, grease was visible on the scissors. The victim testified the scissors did not belong to her.
Fred Green testified that on the Saturday this offense was allegedly committed, he had employed the appellant and another man that morning to clean up some restaurant equipment prior to storing it in a warehouse. A pair of scissors, similar in size, make, and color, to the scissors found in the victim's home, along with knives, meat cleavers, etc., was in the restaurant equipment. Green locked the warehouse later in the day. On Tuesday after the alleged offense, he accompanied a police officer to the warehouse, unlocked it, and made a search for the scissors, which could not be found.
In his own behalf, the appellant testified he had not been at the victim's home at any time, and was not guilty of raping her. *581 His testimony further tended to establish an alibi, and a number of witnesses were presented to corroborate the appellant's alibi testimony.
This offense was committed in Houston County. In the Circuit Court of that county the appellant filed a motion for a change of venue. This motion was granted, and the trial was removed to Coffee County.
Prior to removal of the trial to Coffee County, the appellant filed a motion to quash the indictment on the grounds that negroes were systematically excluded from the jury roll of Houston County because of their race. The motion was also filed requesting that the jury roll of Houston County be produced in court in order to enable the attorneys representing the appellant to copy or photostat the same.
At the hearing on these motions, attorneys for the appellant, and the appellant himself when questioned by the court, made known to the court that they did not desire to present any evidence in support of the motions to quash the indictment. The state did, however, present evidence showing that negroes were not systematically excluded from the jury rolls of Houston County because of race.
The court denied the motion to quash, and also the motion for the roll to be produced for copying or photostating.
Thereafter the appellant filed a motion for a change of venue, and after hearing, the court entered an order removing the case to Coffee County, Elba Division, for trial.
In Coffee County the appellant filed motions to strike or suppress the jury venire drawn to try him, a motion to examine the jury roll and photostat the same, and a motion for the production of certain evidence.
The court after a hearing, granted the motion to strike the jury venire apparently because the court considered that too few negro women were on the jury roll. The court ordered the jury commission of Coffee County to empty the jury box and make up a new jury roll for the Elba Division of Coffee County.
This was done, and another venire was drawn for the trial of the appellant.
Another motion to suppress the last drawn venire was filed. On the hearing on this motion, the evidence introduced by the appellant consisted only of the population figures of Coffee County as a whole as shown by the last federal census. These figures showed the white population, male and female, and the negro population, male and female.
The state introduced as witnesses the members of the Coffee County jury commission. The testimony of these witnesses was directed toward showing that following the court's order to refill the jury box for Coffee County, Elba Division, they had placed therein the names of citizens qualified for jury service, male and female, white and colored. They stated that in seeking the names of qualified citizens they had contacted reputable citizens in all parts of the Elba Division of Coffee County, white and negro, and had written letters to white and negro citizens seeking names and recommendations for prospective jurors. No person had been excluded from the jury box because of race, creed, or color.
The evidence also showed that the larger percentage of the negro population of Coffee County resided in Enterprise Division of the County, and that in the Elba Division several of the beats had no negroes residing therein, and other beats therein had only one or two negro families, all of whom were past the age for jury service.
Neither the jury cards nor the jury roll contained any information indicating the race of the juror.
The federal census was for Coffee County as a whole, and does not reveal separately the population of the Elba and Enterprise Divisions of the Circuit Court.
*582 The court found that the new jury roll contained 1314 names, and as nearly as could be determined from the evidence presented there were 802 white males, 408 white females, 68 negro males, and 36 negro females on the jury roll.
Under the evidence presented we think it clear that the appellant failed to establish that negroes were systematically excluded from the jury rolls of Coffee County, Elba Division. There was no error in the action of the court denying appellant's motion to suppress the last venire drawn for appellant's trial.
The court denied appellant's re-filed motion for production of the jury roll of Coffee County, Elba Division, for the purpose of enabling appellant's attorneys to photostate the same.
We think the motions to produce the jury rolls made in connection with the motion to quash the indictment in Houston County, and the same motion made in Coffee County in connection with the motion to suppress the venire summoned to try the appellant, may well be treated together.
In the hearings on the respective motions, the appellant failed to introduce any evidence tending to show that negroes had been systematically excluded from the jury rolls either in Houston or Coffee Counties. The evidence offered by the state tended to show that negroes had not been so excluded.
In fact in the hearing in Coffee County, the entire jury commission was present in court, and the District Attorney announced their presence, and that the jury roll and jury box would be made available to appellant's attorneys in open court.
The court stated that the attorneys for the appellant would be given full opportunity to examine the jury roll, and examine the jury commissioners, and the attorneys would be given the opportunity to examine the jury roll "as long as you want to examine it in open court with us here." The court then declared a recess and turned the jury roll over to the appellant's attorneys.
It was stipulated that there was no way to tell from the jury roll or jury cards whether a citizen was white or colored, other than from the personal knowledge of the jury commissioners.
The jury commissioners were examined along this line, the results of their testimony being heretofore set out above.
Section 20, Title 30, Code of Alabama 1940, provides, among other things that:
The jury roll is in no sense a public record intended to be exposed either to the general public or to those interested in the personnel of future juries by reason of their interest in pending or anticipated litigation. Otherwise, "serious evils in the administration of justice by jury trial, is hardly open to doubt." State ex rel. Denson v. Miller, 204 Ala. 234, 85 So. 700. To the same effect see Wilson v. Brown, 241 Ala. 178, 1 So. 2d 914.
It appears that the court in the Coffee County proceedings, did permit the attorneys for the appellant a full inspection of the jury roll. It did not permit a copy or photostat of the jury roll to be made. In view of the legislative policy evidenced by Section 20 of Title 30, Code of Alabama 1940, and the decisions thereunder, the court below in the exercise of its discretion, granted to the appellant every right and privilege to which he was entitled, compatible with the public interest, in permitting an inspection of the jury roll "under the eye of the court." See State ex rel. Denson v. Miller, supra.
*583 The court granted appellant's motion for production of the names of prospective witnesses, and physical objects proposed to be used by the state in the trial of the appellant.
It also appears from the record that the appellant petitioned the court to appoint physicians to determine appellant's sanity prior to trial pursuant to Section 426, Title 15, Code of Alabama 1940. This petition was granted and a hearing thereon was set. At this hearing one of the appointed physicians testified he had known the appellant for a number of years, and had examined the appellant in jail pursuant to the court's order. The second physician testified he had examined the appellant for some thirty minutes in jail.
Both physicians testified that in their opinion the appellant was sane, and suffering with no mental disease or trouble insofar as they could ascertain. The appellant offered no evidence at this hearing. Clearly, the court was correct in denying that part of the petition requesting that the appellant be taken to the Alabama Hospital for the Insane for further examination as to his mental state.
On Sunday afternoon following the occurrence on Saturday, Lieutenant Deal of the Dothan Police Department, took three photographs of three colored males to the hospital, one photograph being of the appellant. He stood in the room and these photographs were shown to the victim. She was unable to talk at this time because of her neck wound. She indicated that two of the photographs were not those of her assailant. When shown the photograph of the appellant, she became excited and indicated that this was a photograph of her assailant.
The appellant testified that he was arrested Sunday night about 10:30 P.M., and taken to the Dothan city jail.
On Monday morning, Deal returned to the hospital with another trio of photographs, one of which was of the appellant, but different from the one shown on Sunday afternoon. The victim was able to speak at this time. Again, she picked out the photograph of the appellant as being that of her assailant. Returning to the police station, Lieutenant Deal swore out a warrant against the appellant. It was also on Monday that Lieutenant Deal obtained appellant's clothes which he forwarded to the toxicologist.
On 8 March 1967, the victim viewed a lineup of six males of approximately the same size, build, and color. The victim identified the appellant in this lineup as being her assailant.
At the trial the victim, while on the witness stand, was asked if the appellant was the person who had attacked her. Counsel for appellant objected to this question on the grounds that there had been previous photographs and lineup identifications at a time when defense counsel were not present.
The jury was excused and the victim was then examined. She testified that at no time was any suggestion made to her by the police, or anyone else, relating to the identity of the appellant. At the time of the lineup identification, she was not even informed that her assailant might be in the group she viewed.
Upon questioning by the court, the victim testified that the appellant was her assailant; that the lights were on in the bedroom, dining room, and den during the entire occurrence which lasted some 30 minutes, and that her courtroom identification was entirely independent of the photographs and lineup identifications, and in no wise influenced by them.
The jury being recalled, the victim was permitted, over objection, to testify that the appellant was the man who had attacked her.
We think that the victim's testimony that her courtoom identification of the appellant was entirely independent of and uninfluenced by the prior photographic and *584 lineup identifications, and the ample opportunity the victim had of observing the appellant in well lighted rooms, and having his identity impressed upon her mind, would meet the requirements of United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149.
But we need not answer this question on this point positively since the photographs were shown the victim on 8 and 9 January 1967, and she attended the lineup on 8 or 9 March 1967. In Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199, it was held that the doctrine enunciated in Wade, supra, requiring the exclusion of evidence tainted by exhibiting the accused to identifying witnesses in the absence of counsel, affects only confrontations conducted after 12 June 1967.
This entire record reflects the meticulous and conscientious efforts of the able and experienced trial judge to fully protect every constitutional and legal right of this accused during all of the proceedings below.
A serious question is presented by the court's action in sustaining the state's challenges to four jurors solely on the grounds that they stated they had a fixed opinion against the imposition of the death penalty.
At the time this trial was entered upon, and the judgment entered, March 1968, it was well established by statute (see Section 57, Title 30, Code of Alabama 1940), and by our decisions, that a fixed opinion against the imposition of the death sentence, or against imposing a penitentiary sentence, was a valid ground to challenge a venireman for cause. The court's rulings in this regard were in conformity with these theretofore established principles.
The judgment in this case was entered on 6 March 1968.
On 3 June 1968, the United States Supreme Court rendered its decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776. Involved in that decision was the action of the trial court in excusing for cause certain jurors who had expressed opposition to the imposition of the death penalty, in reply to general questions addressed to them. At this time an Illinois statute provided that it should be a cause for challenge of any juror who, on being examined, should state that he had "conscientious scruples against capital punishment, or that he is opposed to the same." The general questions put to the jurors were in line with the statute.
The United States Supreme Court reviewed the judgment on the basis, as stated in footnote 9, that a general question as to the presence of reservations or scruples is far from an inquiry which separates those who would never vote for the ultimate penalty from those who would reserve it for the direst cases. Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it cannot be assumed that such is his position.
In footnote 22, the court made it clear that this doctrine was to apply retroactively.
In the present case the motion for a new trial, filed on 4 April 1968, came on for hearing on 2 July 1968, and on 5 July 1968, the trial court denied the motion for a new trial.
The doctrine of Witherspoon, supra, in reference to excusing jurors because of asserted opposition to capital punishment was presented to the court on grounds asserted in the motion for a new trial.
The record shows that four jurors were removed from the venire on challenge by the state in view of their answers during the qualification of the jurors.
In each instance, the record shows in substance the following:
*585 Upon the juror answering in the affirmative, the court then asked each juror in substance:
Section 57, Title 30, Code of Alabama 1940, provides that on the trial for any offense which may be punished capitally, "it is a good cause of challenge by the state that the person has a fixed opinion against capital or penitentiary punishments."
The court in denying the motion for a new trial, noted that the majority opinion in Witherspoon, supra, had described the issue relative to challenging the jurors as being a narrow one. Since the wording in the Illinois statute made "conscientious scruples" against capital punishment, or that a juror was "opposed" to it, grounds for challenge for cause, whereas the Alabama statute designated "fixed opinion" as the criterion, the court concluded:
The court concluded that the difference between the standards specified in the Illinois statute and those of the Alabama statute removed the Alabama statute from the influence of Witherspoon, supra.
During the pendency of this appeal in this court, the United States Supreme Court rendered its opinion in Boulden v. Holman, Warden, 394 U.S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433.
Boulden's conviction for murder and death sentence had been affirmed by this court. (See Boulden v. State, 278 Ala. 437, 179 So. 2d 20.) Thereafter, his petition for relief in habeas corpus proceedings alleging his conviction was based in part on an involuntary confession, was denied by Judge Frank M. Johnson of the United States Court for the Middle District of Alabama. The Court of Appeals for the Fifth Circuit affirmed. The United States Supreme Court granted certiorari.
It appeared from the record, though the issue was not raised in the U. S. District Court, nor in the Fifth Circuit Court of Appeals, nor in the certiorari, that a number of jurors had been excused on challenge because of their fixed opinions against capital punishment. The United States Supreme Court's opinion sets forth:
The Supreme Court of the United States then vacated the judgment of the Fifth Circuit Court of Appeals and remanded the case to the United States District Court "where the issue that has belatedly been brought to our attention may be properly and fully considered."
We feel that in the present case a further hearing should be had in the court below in reference to the determination of the concept of "fixed opinion" against capital punishment held by those jurors who *586 were excused upon challenge by the state upon their affirmative answers to the general question propounded to them.
Since Witherspoon and Boulden, supra, it is clear that an affirmative answer to the general question that a juror is opposed to capital punishment, or has conscientious scruples against imposing such penalty, or has a fixed opinion against capital punishment is not a sufficient ground for challenge for cause. A juror giving such answer must be examined further to determine if his opposition is such that he would not inflict a death sentence regardless of the evidence and instructions of the court as to the governing law.
Accordingly, this case is remanded to the lower court with instructions that a hearing be conducted with the appellant and his attorneys present, and those jurors who were excused upon challenge because of their affirmative answers to the general question as to a fixed opinion against capital punishment, be summonsed and examined.
This 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.
The court is further instructed that this hearing be conducted as speedily as is feasible, that a full record be made thereof, a transcript of such record be made, together with the court's conclusions 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.
All the Justices concur, except MADDOX, J., not sitting. | April 9, 1970 |
c177a976-3c6e-4132-9f06-013d106d176b | Hood v. Kelly | 231 So. 2d 901 | N/A | Alabama | Alabama Supreme Court | 231 So. 2d 901 (1970)
Margie Mann HOOD, as Administratrix of the Estate of Robin Cecil Hood, Deceased
v.
James F. KELLY.
5 Div. 896.
Supreme Court of Alabama.
February 19, 1970.
*902 Russell, Raymon and Russell, Tuskegee, for appellant.
Reneau & Reneau, Wetumpka, for appellee.
MADDOX, Justice.
This is an action by Margie Hood, as Administratrix, for the wrongful death of her 4-year-old child, who was struck and killed as he was crossing a public highway in Macon County. The case was tried before a jury which found no negligence on the part of the defendant and returned a verdict in his favor. Appellant filed a timely motion for new trial and her sole assignment of error here is the trial court's denial of this motion.
Appellant claims that the trial court should have granted her a new trial because two of the trial jurors were disqualified one because of bias and prejudice and the other because of his relationship to the defendant.
The trial court ordered a hearing on the motion for a new trial and evidence was taken touching on these questions. It was stipulated that the trial court properly qualified the jury venire on the trial as to bias and prejudice and marital relationships and kinship according to law. It was also stipulated that jurors John Wesley Boles and Kermit Ledbetter, who appellant claims were disqualified because of bias and kinship respectively, were members of the trial jury.
With respect to juror Boles, two witnesses testified at the hearing on the motion *903 for a new trial that during a noon recess of the case, Boles had stated in their presence that "he didn't think the plaintiff had any case." Boles did not deny having made such a statement. He did say that he was one of the last jurors holding out for the plaintiff.
The impropriety of Boles discussing the pending case in this manner is obvious, but to require the granting of a new trial, his misconduct should indicate bias or corruption in the performance of his duty, or the circumstances should indicate that his misconduct influenced the verdict rendered. This was certainly an untimely expression of Boles' views on the case, but the fact situation here is strikingly similar to that in Blakeney v. Alabama Power Co., 222 Ala. 394, 133 So. 16 (1931), wherein we said that the presumption is always indulged against fraud.
With regard to juror Ledbetter, it was shown that he was related to the defendant within the prohibited degree by affinity. Ironically, he was also related to plaintiff's husband, but not within the prohibited degree.
Appellant contends that since Ledbetter served on the trial jury we must reverse in accordance with the opinion of this court in Rosenbush Feed Co. v. Garrison, 251 Ala. 245, 37 So. 2d 106 (1948). In Rosenbush, supra, one Mills, a prospective juror, was related to plaintiff's counsel within the prohibited degree. He failed to respond to the inquiry made to him as to such relationship. We said:
Appellee says that we should not apply the Rosenbush rule here because plaintiff's father-in-law, Cecil Hood, assisted her counsel in striking the jury, that Hood knew of the relationship of Ledbetter to the defendant at the time the jury was being struck, and having such knowledge of facts which would have disqualified Ledbetter, plaintiff should not have remained silent and speculated on the verdict and cannot now assert prejudicial error to reverse because the verdict was adverse.
Unquestionably, there was evidence introduced on the motion for a new trial from which the trial court could find that plaintiff had allowed her father-in-law to direct the striking of the jury and that her father-in-law knew of the disqualification at the time and had stated to the plaintiff after the jury retired, "You know he (meaning Ledbetter) is kin. I knew it but I must not have realized it." It is clear, in any event, that plaintiff knew of the disqualification before the jury returned its verdict.
Juror Ledbetter testified that at the time of the trial he did not know the defendant and consequently did not know that he was related to him. The defendant also testified that he did not know juror Ledbetter at the time of trial and therefore did not know of the relationship between them.
We can find no Alabama case directly in point on the question, but we have several cases which state that a good ground for challenge under Title 30, § 55, Code of Alabama 1940 (Recompiled 1958), may be waived. Lyman v. State, 45 Ala. 72 (1871); Batson v. State, ex rel. Davis, 216 Ala. 275, 113 So. 300 (1927). In Oliver v. Herron, 106 Ala. 639, 17 So. 387 (1894), we said *904 with regard to the principle that a right to challenge may be waived:
From the evidence adduced on the motion for a new trial it appears that the only person who knew of Ledbetter's disqualification at the time of trial was the father-in-law of the plaintiff who was assisting in the striking of the jury for the trial.[1] The defendant and the affected juror both stated that they did not know each other at the time of the trial, and there was no evidence to contradict their statements. In the absence of a showing of bias and prejudice because of Ledbetter's service on the jury, we cannot say that the trial court committed reversible error in refusing to grant a new trial in this case and under the fact situation here presented. The judgment of the trial court is accordingly due to be affirmed.
Affirmed.
MERRILL, HARWOOD, BLOODWORTH and McCALL, JJ., concur.
[1] The record indicates that plaintiff may have wanted Ledbetter to serve. The following is testimony of plaintiff:
"Q. But Mr. Cecil Hood was in Court the whole time and he
A. No. Not all the time.
Q. I say, he was in Court during the whole time the jury was being impanled (sic) and struck, wasn't he?
A. Yes.
* * * * *
Q. But Mr. Hood was there
A. Uh-huh.
Q.and he consulted with Mr. Russell
A. He told Mr. Russell.
Q. He told Mr. Russell about which jurors to strike and which ones to
A. Yes. And he told me that Mr. Ledbetter was kin to him.
Q. So that you were very careful to leave Mr. Ledbetter on that jury, weren't you?
A. Well, you didn't strike him off. He wasn't kin to me.
Q. No, but you were hoping that Mr. Ledbetter wouldn't be struck, weren't you? You all decided that you wanted to leave him
A. I don't know. I didn't know but about two on the jury.
Q. I know. But you all were hoping that Mr. Ledbetter would not be struck, weren't you?
MR. RUSSELL: We object to that. It is obvious they wanted him.
MR. RENEAT': That's alright as long as you admit that you were.
A. Why shouldn't you pick someone you know?'" | February 19, 1970 |
a94fd803-ac00-4924-b9e0-e4fed600f308 | Blocker v. Lowry | 233 So. 2d 233 | N/A | Alabama | Alabama Supreme Court | 233 So. 2d 233 (1970)
Theodore BLOCKER et al.
v.
Floride G. LOWRY.
8 Div. 333.
Supreme Court of Alabama.
March 19, 1970.
*234 Hopper & Hornsby, Huntsville, for appellants.
Smith, Johnston & Walker, Harvey B. Morris, Huntsville, for appellee.
MADDOX, Justice.
The appellants, Theodore Blocker, Harold Pizitz and Henry Marsh, were purchasers under an executory contract to convey 160 acres of land owned by the appellee, Floride G. Lowry, and her late husband. The contract called for dividing the 160 acres into 5 tracts of approximately equal acreage and the parties agreed that the purchasers would pay for tract 1 on or before June 1, 1961, and the sellers would give them a warranty deed. The purchasers were to arrange for a survey and description of the tracts in each instance. On June 1 of each year after 1961 the purchasers were to pay for an additional tract and the sellers were to convey. A grace period of 90 days after June 1 of each year was given within which purchasers could pay for each respective tract. During the time before a dispute arose between the parties, 3 tracts were conveyed to the purchasers. Small sections of tracts 4 and 5 were conveyed before the actual date of performance, but there was evidence from which the trial judge could find that these conveyances were by mutual agreement of the parties and did not otherwise change the legal status of parties under the contract.
The controversy which is the subject of this appeal arose with regard to tract 4. Under the contract the purchasers had agreed to pay for tract 4 on or before June 1, 1964. The 90-day grace period extended the time within which purchasers could perform until August 30, 1964. The purchasers were required to get a survey and description of each tract prior to the date for performance. Purchasers' own evidence shows that an engineer's survey was not ordered by them until July 9, 1964, some 38 days after they had agreed to perform. In fact, the surveyor's description was not available as late as August 21, 1964, when Marsh wrote to William H. Johnston, sellers' attorney, as follows:
Attorney Johnston answered Marsh's letter as follows:
Mr. J. Tate Lowry, who executed the original contract along with his wife, was deceased at the time this dispute arose. Mrs. Floride Lowry was in a nursing home and her son, Samuel Lowry, a Colonel in *235 the United States Air Force, was given a power of attorney by her, which power was filed of record in the Probate office in Madison County on April 15, 1964.
Purchasers did not contract Samuel Lowry until September 1, 1964, at which time Lowry told them that he had declared the contract void and a letter was in the mail to that effect. He told the purchasers that they would have to discuss further questions with attorney Johnston. After their meeting with Lowry, the purchasers on September 1, 1964, mailed bank money orders to Lowry covering the purchase price of tract 4. Lowry returned these to the purchasers.
The time for performance for tract 5 was June 1, 1965. Purchasers mailed cashier's checks to pay the purchase price of tract 5 to Lowry on June 15, 1965, after the date specified for performance, but within the 90-day grace period set out in the contract. Lowry returned these checks also, claiming that the entire contract had been cancelled and declared null and void, at the option of the seller, when purchasers failed to perform as agreed with regard to tract 4.
Appellee Floride Lowry was the initial mover in this matter. She filed her original bill for declaratory judgment on September 30, 1965more than a year after the events surrounding the dispute with regard to tract 4. Appellants filed a demurrer to the complaint on January 27, 1966, but a hearing was not held on the demurrer until January 13, 1967, almost a year after its filing. The court overruled the demurrer and allowed appellants 20 days within which to file an answer. A decree pro confesso was entered against the appellants on February 3, 1967, for failure to file an answer as required, but was subsequently set aside by the court.
Appellants then filed their answer and cross-bill, generally denying the allegations of the original complaint and asking for specific performance of the contractthis occurring over two and one-half years after the performance date for the purchase of tract 4 under the terms of the contract.
We note that appellants referred to the contract as an "option." The letter from Marsh to attorney Johnston, quoted above, makes this reference to the contract as an "option." When the contract was filed of record in the Probate office, an attorney made the following certificate:
The references made to the instrument as an "option" cannot make the agreement an option, but it does have probative value on the question of the intent of the parties with regard to the exact nature of the agreement.
The issue to be decided is whether the seller had a legal right to cancel the entire agreement upon the failure of the purchasers to perform when agreed, and within the 90-day grace period provided by the contract.
Appellants say this was an executory contract for the sale of land and when a purchaser under such a contract fails to pay in accordance with the contract, a court of equity will not foreclose the equity of the purchaser by declaring it forfeited or ended if the purchaser pays the balance owed to the seller within a reasonable time as fixed by the court decree. To this argument, the appellee says that the terms of the contract control, and that the court found that time was of the essence of the contract and that the court properly found that the seller had an option to declare the entire contract null and void when the purchasers failed to pay as agreed.
In a lengthy decree, which we will summarize, the trial court found that time for performance was of the essence of the contract, that the contract provided that failure of performance by the purchasers of any of the covenants and agreements would constitute a forfeiture of the contract, *236 at the option of the sellers. In making this finding the court set out paragraph 12 of the contract which provides:
The court also found that it was required to enforce the contract as written, and under the terms of the contract the purchasers should have tendered the purchase price for tract 4 on or before midnight August 30, 1964, and having failed to do so, the sellers were entitled to terminate and cancel the entire contract.
Appellants contend also that the sellers had waived the right to insist on strict performance by failing to insist on such strict performance in prior years Evidence was introduced showing a failure of sellers to insist on strict performance in prior years, but the court found no such waiver with regard to tract 4. The court said that with regard to tract 4 the sellers had put the purchasers on notice that they would insist on strict performance. We think the court was not in error in making this finding.
The court did find that under the contract the purchasers were entitled to conveyances of small acreages in tracts 1, 2 and 3 and that the purchasers had overpaid, on prior transactions under the contract and before termination, the sum of $9,927. The court ordered these adjustments to be made. The court's finding and declaration regarding these adjustments in acreage and money due were appropriate since this was a declaratory judgment proceeding, but these findings do not affect, and are not inconsistent with, other parts of the decree which declare the contract cancelled.
The appellants are correct in asserting that generally, unless so stipulated, time is not regarded as of the essence of an executory contract for the sale of land. Mitchell v. Walker, 235 Ala. 458, 179 So. 633 (1938). We cannot, and need not, enumerate all of the situations wherein time can be of the essence of a land sale contract, but we think the trial judge had sufficient facts before him to justify his finding that time was of the essence of the contract here. The record shows that the price of the land had fluctuated in price from $1,000 per acre to $15,000 per acre and that after default and within the 90-day grace period the purchasers were notified in writing that strict performance of the contract was expected by the sellers. The trial court's order is consistent with our decisions which hold that if the subject matter of an executory contract of sale is one of rapidly fluctuating value, time is ordinarily regarded as of the essence. Isom v. Johnson, 205 Ala. 157, 87 So. 543 (1921); see also Lauderdale Power Co. v. Perry, 202 Ala. 394, 80 So. 476 (1918).
Under the terms of the contract which the parties made, the sellers had the right to avoid the sale, at their election, upon the default of the purchasers which continued for more than 90 days after the date of performance. Cf. Jones v. Hert, 192 Ala. 111, 68 So. 259 (1915); George E. Wood Lmbr. Co. v. Morris, 225 Ala. *237 281, 142 So. 508. Where a contract for the purchase of land provides that the seller may declare a forfeiture in the event of non-payment of the purchase money, a declaration of forfeiture after the default will put an end to the interest of the purchaser, and where time is of the essence of the contract the seller is at liberty to act as if the contract had ceased. Parties may make time material to the contract, the purpose of time limitations in a contract for a conveyance being to avoid speculation by either the seller or purchaser on the rise or fall of the value of property before choosing to perform.
The appellants correctly state the general rule that to rescind a land sale contract for the failure of the other party, the party complaining of such failure must call upon the other to perform and give him a reasonable time after notice in which to comply or be foreclosed. Wilson v. Thompson, 255 Ala. 165, 51 So. 2d 20 (1951), and cases there cited. But this rule does not apply when time is of the essence of the contract.
As a general rule, under an executory contract for the sale of land, the contract of itself operates as a transmutation to the vendee of the possession, entitling him to the right of entry and enjoyment, but if the contract contains stipulations to the contrary, as the contract does in this case, then this general rule does not apply. Wilson v. Thompson, supra.
We find it completely unnecessary to discuss or distinguish our cases which hold executory contracts for the sale of land to be in the nature of mortgages. Neither is it necessary to discuss situations in land contracts giving rise to a vendor's lien. This case turns solely on the contract which the parties made.
We might point out that as to tracts 4 and 5, the contract made no provisions for payment of a part of the purchase price for tracts 4 and 5 and the purchasers were not put into possession. The interests of appellants in tracts 1, 2 and 3 which had previously been conveyed to them under the terms of the contract were in no wise affected, and the sellers were not attempting to impress a vendor's lien upon any of the tracts. As we view it, before the termination of the contract the only interest which the purchasers had in tracts 4 and 5, under the provisions of the contract, was a right to purchase within a specified time. Having failed to exercise their right to purchase within the time set out in the contract, time being of the essence of the contract, they cannot now come into equity and ask that a new agreement be made for them.
The appellant's argued assignments of error fail to convince us that the trial court was in error. The judgment of the court is therefore affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and HARWOOD, JJ., concur. | March 19, 1970 |
a67b8ca6-9781-4f70-ae05-3b6eb26a81e9 | Conway v. Andrews | 236 So. 2d 687 | N/A | Alabama | Alabama Supreme Court | 236 So. 2d 687 (1970)
Maudine D. Neese CONWAY
v.
Francis J. ANDREWS et al.
1 Div. 468.
Supreme Court of Alabama.
May 28, 1970.
Rehearing Denied July 2, 1970.
*689 Gordon & House, Don Conway, Mobile, for appellant.
Coley & Coley, Mobile, for appellees.
MERRILL, Justice.
This is an appeal from a decree in equity setting aside the foreclosure of a mortgage and ordering appellant to release certain realty from a mortgage.
In 1955, Gulf Development Company (hereinafter referred to as Gulf) approached one Otto Neese and proposed that he purchase a plot of unimproved land in Mobile County and sell it to Gulf. Gulf indicated that it planned to turn this land into a subdivision by improving the lots and selling lots and houses. Neese had had some previous business dealings with the president of Gulf, E. N. Merriwether. Neese purchased the property in the name of his daughter, Mrs. Conway, for about $75,000.00 and sold the land to Gulf for $90,000.00.
As consideration for the sale, Gulf gave Mrs. Conway a note for $90,000.00 bearing interest at 6%. Mrs. Conway also took a mortgage upon the property and the mortgage was duly recorded. Payments on the note were to be $500.00 per month. The mortgage provided that the mortgagee would release individual lots from the mortgage upon the payment of a certain sum of money, later agreed by the parties to be $1,200.00, on the lots with which we are concerned. Gulf never made a monthly payment on the note but paid about *690 $60,000.00 for releases on 47 lots. Thereafter, Gulf's business activity in developing the lots apparently ceased, leaving 31 vacant lots in a second phase of the development and Lot 8 in the first phase of the development all unreleased and still subject to the mortgage.
Complainant Andrews bought the house constructed by Gulf on Lot 8 of Phase I in 1957 and has lived there since that time. He paid a total of about $35,000.00 for the house and lot. Gulf gave Andrews a warranty deed on this property. Andrews considered having the title searched but never got around to it.
In 1965, after it became clear that she could not collect the balance due on Gulf's note, Mrs. Conway decided to foreclose. She learned through her husband, who acted as her agent, that Lot 8 contained a house and that Andrews had been paying taxes on the property since 1957. Pursuant to the power of sale provision in the mortgage, Mrs. Conway published four weekly advertisements of foreclosure in a Mobile newspaper and then sold the 32 parcels at public auction. She submitted the highest bid and bought the property for $50,000.00.
Andrews lived alone on Lot 8. His job required frequent long business trips lasting several weeks. He apparently left the city on such a trip before the first advertisement was run and returned after the sale had been completed. Mrs. Conway lived in the same subdivision about a block from Andrews but did not know him. She made no effort to inform him of the impending sale of his house and lot.
After the sale of the property that secured Gulf's note, Mrs. Conway brought a statutory ejectment suit against Andrews and Gulf. Andrews filed a declaratory judgment petition in equity, seeking a declaration of his rights in the property. He then moved for a transfer of Mrs. Conway's ejectment suit to the equity side of the court and for a consolidation of that transferred case with his declaratory judgment action. The court transferred the law case to equity and later consolidated it with the declaratory judgment action.
The trial court set aside the foreclosure under the power of sale contained in the mortgage and ordered Mrs. Conway to release Lot 8 from her mortgage upon the payment to her by Andrews of $1,200.00. The court found that (1) Mrs. Conway and Gulf entered into a plan or scheme for the cooperative development of the subdivision with Mrs. Conway to provide the funds to acquire the land and Gulf to improve and promote the sale of subdivision lots; (2) that Gulf misapplied the proceeds of the sale of Lot 8 by not paying the $1,200.00 to Mrs. Conway for a release of the lot and that Mrs. Conway deliberately failed to inform Andrews of this misapplication or that she had not released the lot, although she knew that Andrews had bought the lot; (3) that, although the lots were advertised for sale in individual parcels, the property was offered at the auction en bloc and that an en bloc sale of the lots was deliberately calculated to unduly hamper the right of redemption of complainant; (4) that the conduct of Mrs. Conway and her agents in refraining from calling Andrews' attention to the existence of the lien upon his home and making misrepresentations about the existence of the lien to a neighbor of Andrews' was deliberately calculated to lull him into a "sense of security, to the end that he should not be afforded a timely opportunity to exercise his legal and equitable rights in the premises, and to insure that he not be afforded any knowledge of, or opportunity to attend or bid at the foreclosure sale of said mortgage"; (5) that Mrs. Conway and her agents engaged in conduct deliberately calculated to conceal from complainant and prevent his discovery of the lien, to the end that he should not be afforded a timely opportunity to exercise his legal and equitable rights in the premises; (6) that Mrs. Conway's failure to inform Andrews that she had not been paid for the release of his lot was for the deliberate purpose and *691 end that she be afforded an opportunity of unjust enrichment by the acquisition of Andrews' improvements to the lot by foreclosure of her mortgage lien, should Gulf fail to pay off its note; and (7) that the respondent's exercise of her power of sale constituted a perversion of the power to a purpose foreign to its intendment and that the sale was "fraught with ill motive, fraud and oppression."
Appellant argues that her demurrer to appellee Andrews' motion to transfer appellant's ejectment action from law to equity should have been sustained. She says that the motion to transfer was not verified by affidavit as required by Tit. 13, § 153, and that the motion did not assert the equitable right sought to be protected with adequate precision. She also assigns this lack of precision as support for the proposition that the trial court erred in granting the motion to transfer.
Appellant's demurrer to the motion did not raise the point that the motion was unverified. A demurrer is properly overruled where the motion is not subject to any of the grounds stated, even though it might be subject to demurrer on some other ground. Bank of Cottonwood v. Hood, 227 Ala. 237, 149 So. 676; Ala.Dig., Pleading. Thus, the trial court did not err in overruling appellant's demurrer on this issue.
Also, we do not agree with appellant that the trial court was left without "rule, compass or guide" to determine whether or not the averments in appellee's motion to transfer, relating to his equitable defense, were sufficient. Appellee's motion set forth the case number of his petition on the equity side of the court which, by the time of the filing of appellee's last motion to transfer, had been amended to show his equitable defenses. The motion specifically referred to the petition in equity and the equitable defenses contained therein. We, therefore, do not think that the trial court erred in finding that there existed in the case an equitable right which could not be disposed of on the law side of the court.
Appellant next argues that the trial court's consolidation of Andrews' original equity suit with Mrs. Conway's transferred ejectment suit was improper because consolidation could only result in confusion and complication due to different actions. However, the trial court's exercise of discretion was not error.
Upon transfer of the ejectment suit to equity, at Andrews' request, he became the complainant and had to file a bill in equity which became the initial pleading in that case. Tit. 13, § 154, Code 1940; Cornelius v. Moore, 208 Ala. 237, 94 So. 57. Thus, Andrews was complainant in both equity cases and Mrs. Conway was respondent in both cases, so that the alignment of parties was not changed by consolidation. Similarly, the two actions in equity were identical after transfer as is shown by the complaint in the two suits. Finally, Mrs. Conway's ejectment action dealt with Lot 8 plus 31 other parcels of vacant land and Andrews' original bill in equity asked the court to set aside the mortgage sale of Lot 8 and the other 31 parcels. Thus, the subject matter of the two bills was identical. And the record of the hearing on the consolidated bills shows that consolidation added no facts, issues or parties to Mrs. Conway's transferred suit that would not have been present had consolidation not been ordered.
Appellant begins her argument in brief with the following sentence: "The essence of Appellant's argument is that there is no Equity in this case." She argues that the court erred in overruling her demurrer to appellee's bill. Appellant contends that the bill contains one aspect with six alternative averments. Appellee contends that his bill has six aspects. We are not sure that we can identify six aspects of the bill, but we can identify more than one aspect.
The demurrer to the bill was addressed to the bill as a whole, and when so, *692 if any aspect of the bill states a ground for equitable relief, the demurrer should be overruled. Taylor v. Jones, 280 Ala. 329, 194 So. 2d 80; Boyett's, Inc. v. Gross, 276 Ala. 452, 163 So. 2d 610.
Without analyzing all the averments of the bill, we think one aspect clearly contained equity. This was the contention that the foreclosure should be set aside because the foreclosure sale had been conducted en bloc instead of by contiguous parcels and that such a sale hindered appellee's right to redeem and that the mortgagee had thereby abused the trust duty owed to the mortgagor and his grantees.
The case of Kelly v. Carmichael, 217 Ala. 534, 117 So. 67, is authority for the propositions that where the mortgage contemplates a subdivision of the property, as here, (1) the power of sale in the mortgage "is quickened with an element of trust"; (2) the rights, including the right to redeem part of the property without redeeming all, "inures to the benefit of a party who has acquired rights in subordination to the mortgage by a conveyance from the debtor"; and (3) that the reason for disfavoring en bloc sales is that such sale precludes a redemption of a separate part of the property taken.
In order to attack a sale en bloc in equity, the mortgagor, or his grantees must show that the trust incident to the exercise of the power of sale in the mortgage has been abused and that he has suffered detriment in the undue sacrifice of the property, or that his right of redemption has been unduly hampered. Rudisill v. Buckner, 244 Ala. 653, 15 So. 2d 333, and cases there cited. Appellee met these requirements in his bill.
In brief, appellant makes several arguments in relation to appellee's allegation in the bill that the property was improperly sold en bloc. These arguments are based on the evidence produced at the hearing. Since allegations in a bill are taken as true on demurrer, Titus v. Nieheiser, 269 Ala. 493, 114 So. 2d 242, appellant's arguments based on testimony at the hearing are inapt on the question of whether the bill has equity.
Appellant next argues that her demurrer to Andrews' bill should have been sustained because it specifically pointed out that she had never signed the mortgage attached as an exhibit to the bill, and there was no averment that she signed any written promise to release any property. It is generally acknowledged in Alabama that the Statute of Frauds may be waived by an affirmative act showing intention to affirm the contract and bringing an action based on the unsigned document is such an affirmative act. Hooper v. Reed, 211 Ala. 451, 100 So. 875. Appellee's bill alleges that Mrs. Conway wrote him a letter stating that she had foreclosed the mortgage at issue here. The bill also alleges that Mrs. Conway did in fact attempt to foreclose the mortgage by exercising her power of sale. Thus, the trial court was justified in deciding that appellee had adequately alleged a waiver of the Statute of Frauds by Mrs. Conway. We note that the record before the lower court at the time it overruled this demurrer showed that Mrs. Conway had instituted a statutory ejectment suit based upon this mortgage and that, at the hearing, Mrs. Conway made no effort to deny the validity of the mortgage and she introduced testimony that her agents had executed 47 releases under the mortgage.
Appellant next argues that the trial court erred in entering its final decree. She argues that an auctioneer's deed is entitled to a presumption of validity. However, after a decree based on ore tenus evidence presented to the trial court, this court must see clearly that the lower court was plainly wrong before it will reverse the lower court's findings. Hair v. Beall, 274 Ala. 699, 151 So. 2d 613. Appellant contends that no facts were presented justifying the trial court's action and suggests *693 that the normal presumption in favor of the findings of the equity court does not apply to the court's application of the law to the facts. We believe, however, that the lower court's finding that the presumption accompanying the auctioneer's deed was overcome by the showing made by the appellee was not plainly wrong and that the lower court's application of the law to the facts was not erroneous.
Appellee presented several theories to the court in support of his request that the foreclosure be set aside and specific performance of the release clause be ordered. The trial court made several findings as a basis for its decree. We consider only one theory and finding made by the court since we think that it alone was sufficient to sustain the decree.
The lower court found that appellant engaged in conduct "deliberately calculated to conceal from the Complainant, and prevent the discovery of the existence of a mortgage lien upon his home, to the end that he should not be afforded a timely opportunity to exercise his legal and equitable rights in the premises, * * *." We think that the trial court was saying that appellant was aware that appellee had a right under the mortgage to buy a release of Lot 8 and that appellant's purpose in foreclosing on Lot 8, along with the other lots, was to terminate that right so that appellant could acquire the house and lot for herself. There was evidence to support such a finding. Appellant's husband and agent admitted that appellant did not attempt to give actual notice of the foreclosure to Mr. Andrews because of the fear that Mr. Andrews would try to buy a release of his lot. And there was evidence that appellant had routinely given such releases in the past. We said in Collins v. Thompson, 259 Ala. 82, 65 So. 2d 491, concerning the exercise of a power of sale by the mortgagee:
We next consider appellant's arguments concerning appellee's right to purchase a release of Lot 8. Even though Mrs. Conway's agreement to sell releases was made with Gulf Development, appellee had the same right to a release as Gulf had. As we said in Title Insurance Co. v. Cowan Lumber Co., 226 Ala. 485, 147 So. 665:
Appellant contends that appellee had no right to purchase a release of Lot 8 because the appellant's obligation to release lots was conditioned upon the mortgage payments being current, whereas the mortgage had been in default for several years. The mortgage reads rather oddly. The release clause, which is in the form of a complete sentence, is inserted in the midst of a series of clauses joined by semicolons. It is set apart from what comes before and after it by several lines of white space and generally does not appear to be related to what precedes and follows it. In addition, the trial court found that the mortgagee had never held the mortgagor *694 to the payment schedule stipulated in the mortgage and that the mortgagor had never made a payment under the mortgage. Instead, all payments to the mortgagee were purchases of releases on individual lots. The construction placed on a contract by the parties and practiced by them will ordinarily be accepted by the court. Hill v. Davis, 272 Ala. 166, 130 So. 2d 39, and cases there cited. In light of the findings we have recounted above, it appears that the parties to the contract never regarded payment currency as a condition to the execution of a release and the lower court was not in error in conforming its order to the construction placed upon the contract by the parties.
Appellant next argues that if the mortgage be read as not requiring compliance with the alleged condition of payment currency, then this is evidence that the contract is not certain enough to permit specific performance. Our rule is that a contract will not be specifically enforced unless it is certain in its terms, or can be made certain under the rules of law and evidence. Rushton v. McKee & Co., 201 Ala. 49, 77 So. 343. As we have indicated, the contract was made certain under the rules of law and evidence and the lower court was not in error in ordering specific performance.
All of appellant's other assignments of error present issues already discussed in this opinion or issues which would not change the outcome of this case in light of what we have said. We find no reversible error.
This case was originally assigned to another member of the court and was reassigned to the author of this opinion on March 25, 1970.
Affirmed.
LIVINGSTON, C. J., and LAWSON, HARWOOD and MADDOX, JJ., concur. | May 28, 1970 |
670f29c2-51a2-49ba-9c96-e3390c3cd8fe | Prather v. Nashville Bridge Co. | 236 So. 2d 322 | N/A | Alabama | Alabama Supreme Court | 236 So. 2d 322 (1970)
Dola T. PRATHER et al.
v.
NASHVILLE BRIDGE CO., a Corp.
6 Div. 624.
Supreme Court of Alabama.
April 9, 1970.
Rehearing Denied June 11, 1970.
*323 George S. Brown, Birmingham, for appellants.
Sadler, Sadler, Sullivan & Sharp, Birmingham, for appellee.
SIMPSON, Justice.
This case was brought under the provisions of Title 26, § 312, Code of Alabama, by the widow and dependents of decedent Duel Prather. The complaint claimed damages in the amount of $500,000 for injuries resulting in the death of Prather, charging defendant with negligence, in that while the said Duel Prather was working as a truck driver for the Alabama Freight Lines the defendant, at the Bessemer Galvanizing Works Division of the defendant, Nashville Bridge Company, a corporation, loaded a trailer truck being operated by Prather with twelve large and heavy sections of galvanized steel pipe and then and there undertook to secure same for delivery by Prather; and that after Prather had transported said load and while standing alongside said load, one of the sections of pipe fell off and onto Prather, causing him to suffer injuries from which he died.
The complaint went on to allege that the death of Prather was the proximate consequence of the negligent failure of the defendant to properly secure the steel pipe on the trailer truck.
The case was tried to a jury which returned a verdict in favor of the defendant. Plaintiffs appealed, and while the brief sets out the evidence of each witness in narrative form, and runs to more than 190 pages, appellants concede at the outset that only two points are relied on for reversal. They are as follows:
First, that the judgment must be reversed because the court allowed members of the jury to put more than 100 different questions to various witnesses throughout the trial. No objection was interposed by either side to this interrogation of witnesses by members of the jury. It is conceded by counsel on both sides that no Alabama case *324 has been found on this precise point. Our research has revealed none. The appellant contends that no objection was made because of fear and apprehension that the interposition of any objection would prejudice the objector's case with the jury. They rely on cases from other jurisdictions which have severely criticized the practice and reversed cases on this ground, even in the absence of objection. However, an annotation at 159 A.L.R. 347 indicates that a majority take a different view. It is there stated:
The annotation goes on to analyze the rationale of the courts in dealing with this matter. Some have held that it is discretionary with the trial court; some have taken the position that the practice should be encouraged, while others take the position that it should be discouraged. While no cases in Alabama have dealt directly with the point, we are not without general authority for the disposition of the point here. Our cases have consistently held that where no objection is made, the trial court cannot be put in error. The appellate courts in Alabama review only such matters as were ruled on by the trial court Ala.Dig. 2, Appeal K. No. 206(2). Hence, we do not reach the question of whether error would have resulted had proper objection been made and overruled to the questions put by members of the jury.
We believe the statement made by the Missouri court in Ray v. Collins, Mo.App., 274 S.W. 1098, is consistent with Alabama law:
The only other point raised by appellants is based upon the refusal of the trial court to give certain requested written charges. Plaintiffs here sued Nashville Bridge Company. Their contention was that although the loading of the truck had been done by Bessemer Galvanizing Works, the latter was a wholly owned subsidiary of Nashville Bridge Company and wholly controlled by Nashville Bridge Company. On this issue the trial court charged the jury as follows:
The appellants describe the trial court's charge on the relationship between Nashville Bridge and Bessemer Galvanizing Works as "skimpy" and insist that error occurred in the refusal of the court to give several charges, the following of which is representative of those refused:
We cannot agree with the appellants that the trial court's oral charge failed to cover the matter set out in the requested charges which were refused. We think the oral charge adequately apprised the jury with respect to the law on this point. The language of the oral charge and the requested written charges is essentially the same. No error may thus be predicated on the refusal of these charges. Title 7, § 273, Code of Alabama; cases at Ala. Digest, Trial,
The judgment appealed from must be affirmed.
Affirmed.
McCALL, J., concurs.
LAWSON, MERRILL, and BLOODWORTH, JJ., concur specially.
LIVINGSTON, C. J., and COLEMAN and HARWOOD, JJ., dissent.
BLOODWORTH, Justice (concurring specially).
I concur in the result of this decision. I do not think the trial court should be reversed for permitting jurors to put more than 100 questions to witnesses during the trial when no objection is made by either counsel.
I look with disfavor on frequent questioning by the jury. While, on rare occasions, a question by a juror may serve to clear up some obscurity, misunderstanding, or uncertainty, it may place counsel (who may wish to object to a question) in a position of apprehension that his objection may prejudice his case with the jury.
Nevertheless, I consider it the duty of counsel either to object to the precise question (which he feels is objectionable), or, if he does not want to put himself in this position, to make known to the court at a side-bar out of the presence of the jury, or at a recess, and on the record, that he does object to a question or frequent questions by the jury. Unless counsel is required to take some affirmative step to make his objection known to the court, it has no way to know if either counsel has any objection to a specific question put by a juror, or to the frequency of questioning by jurors and counsel could speculate on the verdict and if adverse, insist on this ground as error. I do not believe there should be any duty on the part of the trial court sua sponte to stop occasional questioning by the jury.
*326 LAWSON, and MERRILL, JJ., concur.
HARWOOD, Justice (dissenting).
A majority of the court has this day denied the application for rehearing filed in this case.
I dissented from the opinion and judgment affirming the judgment in this cause, but did not set forth my reasons for dissenting. It was my conclusion then, and still is, that the action of the jurors in interrogating various witnesses went beyond permissible limits. If this be so, then the plaintiff did not receive a trial free of prejudicial matter. To this she was entitled.
I am dissenting from the action of a majority of my brethren in denying the application for rehearing. I would grant the same and reverse the judgment.
I agree that occasional questions by a juror are permissible, provided such questions are germane to the issues, and by inference are asked to clarify in the juror's mind the true meaning of the witness' testimony.
However, when over 100 questions are posed by jurors to various witnesses (counsel for appellant states that by actual count there were 130), then the very weight of the numbers carry the questioning by the jurors beyond the allowable range of occasional questions.
Of more serious import is the nature of some of the questions propounded by the jurors. Some indicate that the juror had in mind the doctrine of assumption of risk, totally irrelevant in the proceedings below. Others would have been subject to objection if posed by counsel. Several of the questions were clearly more argumentative than interrogative.
As stated in State v. Sickles, 220 Mo.App. 290, 286 S.W. 432:
It would appear that the conduct of the jurors in this case was palpably erroneous, and was ineradicably prejudicial to the substantial rights of the appellant. Such matter was presented on the motion for a new trial. Under such circumstances it should be available on appeal. See Bayliss Machine & Weld. Co. v. Huntsville Ice and Coal Co., 265 Ala. 383, 91 So. 2d 483; Brotherhood of Railroad Trainmen v. Jennings, 232 Ala. 438, 168 So. 173.
LIVINGSTON, C. J., and COLEMAN, J., concur. | April 9, 1970 |
ac9c6201-8e8a-4828-aaa7-f75771d43b17 | National Life and Accident Insurance Co. v. Allen | 234 So. 2d 567 | N/A | Alabama | Alabama Supreme Court | 234 So. 2d 567 (1970)
The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, Inc., a Corporation
v.
Catherine L. ALLEN, as Executrix, etc.
1 Div. 407.
Supreme Court of Alabama.
April 16, 1970.
*568 Caffey, Gallalee, Edington & Loveless, Mobile, for appellant.
Reynolds & Lauten, Mobile, for appellee.
*569 MERRILL, Justice.
This appeal is from a judgment for $2,000.00 in a suit on a life insurance policy. A motion for a new trial was overruled, the plaintiff died, the suit was revived in the name of plaintiff's executrix, the motion for a new trial was reargued and again overruled, and this appeal followed.
Count 2 of the complaint claimed $1,000.00 under the ordinary death benefits of the policy, and Count 1 claimed the $1,000.00 ordinary death benefits and an additional $1,000.00 under the death by accidental means benefits. The verdict was in favor of the plaintiff in the amount of $2,000.00.
Appellant urges in brief only one assignment of error, No. 3, which charges error in the overruling of defendant's motion for a new trial. Such an assignment justifies consideration of any ground of the motion stated with sufficient definiteness to direct the court's attention to the alleged erroneous ruling, if the clear and specific ground is adequately argued in brief. Tucker v. Cox, 282 Ala. 489, 213 So. 2d 222; Water Works and Sanitary Sewer Board v. Norman, 282 Ala. 41, 208 So. 2d 788.
First, we consider the contention of appellant that its defenses were proved and it resulted that there was no coverage. The defenses were that the insured made misrepresentations in the application that either increased the risk of loss or were made with intent to deceive, and that the insured was not in good health when the policy was delivered.
A prima facie case for the plaintiff suing on a life policy is made by showing the issuance of the policy, payment of premium and evidence of the insured's death and that notice and the required proof of death have been furnished the insurer. Metropolitan Life Ins. Co. v. James, 225 Ala. 561, 144 So. 33, and cases there cited. The policy was introduced in evidence and all these conditions were met except the notice required by the policy. This, however, is of no consequence because, even if there was no formal notice, there was a waiver of the insurer in this case.
Lack of formal notice of loss or death under an insurance policy may be waived; and where an insurer refused to pay a loss because of some alleged defense wholly apart from furnishing the prescribed proof of loss or death, it thereby waives the necessity of furnishing such proof. St. Paul Fire & Marine Ins. Co. v. Smith, 280 Ala. 425, 194 So. 2d 830; Travelers' Ins. Co. v. Plaster, 210 Ala. 607, 98 So. 909.
Here, appellant filed many special pleas as defenses but no plea raised the question of notice. Under the cited authorities, that defense was waived.
We come now to the question of misrepresentations and lack of good health on the part of the insured. Appellant contends that the insured had cirrhosis of the liver, a peptic ulcer and a heart condition, had been treated by a physician and had been hospitalized in July, 1962, yet he represented on his application for the insurance that he had not had these troubles in the last ten years and had not consulted a physician in the last five years except for his eyes.
A photostatic copy of the application, dated November 18, 1963, is in the record and the "No" box is checked for all diseases listed except his eyes and a notation is made that the applicant "Can see with glasses. Has been this way since birth." The name and address of his doctor also appear on the application.
The insured was fifty-four years of age when he applied for the policy. The listed beneficiary was his mother, who was eighty-six. The insured was an albino and had dropped out of school in the eighth grade. He had consulted the Vocational Rehabilitation Service and was, according to their standards, "legally blind," and he was sent to the Department of Rehabilitation at *570 the School for the Blind at Talladega in 1963. After his return, he had been trained to operate a small store or concession stand and was still under the supervision of the Vocational Rehabilitation Service. Wearing his thick glasses, he could see to walk around but not well enough to read the small print on the application. It is obvious from his signature on it, that he did not fill out any part of the application except to sign his name. The agent who took the application was no longer employed by appellant when the cause was tried in May, 1965, and was not a resident of Alabama.
The only case cited by appellant in support of the alleged misrepresentation and lack of good health is Miller v. Metropolitan Life Ins. Co., 214 Ala. 4, 106 So. 335. There, this court held that where the undisputed evidence showed that the insured was suffering from cancer, and within twelve months prior to taking out the policy had undergone an operation for its removal, and that it was a contributing cause of his death a few months after the policy was issued, the representation that he was in good health was necessarily false, and recovery could not be allowed. That case is not apt authority here.
Title 28, § 6, Code 1940, provides:
In Coastal States Life Ins. Co. v. Leonard, 279 Ala. 171, 182 So. 2d 913, where there was a misrepresentation in the application, this court said:
And the following appears in United Security Life Ins. Co. v. St. Clair, 41 Ala.App. 243, 130 So. 2d 213, cert. denied 272 Ala. 711, 130 So.2d 219:
Here, it was undisputed that the insured could not read, with the aid of his glasses, the application. He was obviously at the mercy of the agent.
The trial court charged the jury that, as to the nineteen special pleas of the defendant insurer, "the burden then is on the defendant to prove to your reasonable satisfaction either one or more of these pleas as a complete defense or bar to the action." We are convinced that a jury question was presented and the jury found against appellant.
*571 What we have said also applies to the assignments of error which insist that requested written charges which, in effect, were affirmative charges with hypothesis based upon the pleas raising the alleged misrepresentations, and the fact that appellee would only be entitled to the actual money paid for the premium, which was tendered in some of the pleas.
We come now to appellant's contention that it was entitled to the requested written charge No. 1, which read: "I charge you Gentlemen of the Jury, that, if you believe the evidence presented in this cause, you cannot find for the Plaintiff under Count one of her complaint."
As already noted, Count 1 sought to recover $1,000.00 under the regular death benefits of the policy and also $1,000.00 under the accidental death provisions. The applicable additional death benefit from accidental means, for the extra $1,000.00 was stated in the policy as follows: "Upon receipt of its Home Office of due proof that the death of the insured resulted, directly and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means, the Company will pay as an additional death benefit the amount defined in the second paragraph of this provision, * * *."
Appellant contends that there is no evidence in the record to show that the insured's death was caused by accidental means.
In considering the propriety of the affirmative charge, we review the tendencies of the evidence most favorable to the plaintiff, regardless of any view we may have as to the weight of the evidence; and we must allow such reasonable inferences as the jury were free to draw, not inferences which we think the more probable. Glass v. Davison, 276 Ala. 328, 161 So. 2d 811; 2A Ala.Dig., Appeal and Error.
We quote, omitting page references from appellee's brief, that evidence which it is insisted makes a jury question of the matter of death by accidental means:
To this we add that a detective testified that in his professional opinion, if the insured's billfold was stolen, or if he had $50.00 in small denominations in a paper bag when he came home and it was not on his body when found, that would indicate foul play.
*572 It was also undisputed that the proof of death, submitted by Mrs. Katie Lynch, listed the cause of death as "Heart Disease", and that the death certificate showed an autopsy was performed and that death was caused by "Arteriosclerotic Heart Disease", due to "Coronary Arteriosclerosis, severe."
A certified copy of a death certificate by the State Registrar is prima facie evidence of the facts therein stated. Tit. 22, § 42, Code 1940, as amended.
In a suit on an accidental policy provision, as here, plaintiff has the burden of proving that the death of the insured resulted, "directly and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means." Inter-Ocean Casualty Co. v. Foster, 226 Ala. 348, 147 So. 127, and cases there cited.
A prima facie case is made out when claiming under an accidental death benefit provision when plaintiff shows (1) the issuance of the policy, (2) death by accidental means and (3) notice to the insurer. To establish death by accidental means, there must be some evidence that death resulted from something unforeseen, unusual and unexpected. Aetna Life Ins. Co. v. Beasley, 272 Ala. 153, 130 So. 2d 178; Inter-Ocean Casualty Co. v. Foster, supra.
Applying these principles to the instant case, we cannot agree that there was any evidence that the insured's death was caused through "external, violent and accidental means."
True, there are unexplained features in the circumstances surrounding insured's death. We ask a few questions to illustrate the uncertainty. Was he hit over the eye or was the cut over the eye caused when he fell if he died of a heart attack? Were the groceries and the bag of money, if he had them, taken from him when he was alive or after he was dead? Did he ring the doorbell, or did someone else find him dead near the entrance of the house and ring the doorbell and leave rather than becoming involved? When and where did he die, and what happened?
From the evidence presented in this case, the answer to any of the questions can be nothing more than supposition, speculation, conjecture or guesswork.
Until there was some evidence tending to show that death resulted from accidental means, rather than design, or from natural causes such as apoplexy or heart failure, there was nothing to go to the jury. The plaintiff had not met the burden of proof nor had she established a prima facie case. "Verdicts may not be rested upon pure supposition or speculation, and the jury will not be permitted to merely guess as between a number of causes, where there is no satisfactory foundation in the testimony for the conclusion which they have reached." Colonial Life and Accident Ins. Co. v. Collins, 280 Ala. 373, 194 So. 2d 532.
In contrast with the speculation on the one hand, the defendant's evidence that the cause of death was heart failure, based on the autopsy and the death certificate, was prima facie evidence and, as we view the record, undisputed.
Where, as here, the only basis for a verdict in favor of plaintiff under the count for death from accidental means rests on "mere supposition, speculation, conjecture or guesswork", the defendant's requested affirmative charge should have been given as to Count 1. Colonial Life and Accident Ins. Co. v. Collins, 280 Ala. 373, 194 So. 2d 532.
Some of the grounds of the motion for a new trial, argued in brief, are that the verdict of the jury is "contrary to the law" or "contrary to the law and the evidence in the case."
A ground of a motion for a new trial that the verdict or judgment is contrary to law is without merit, because the body of law is tremendous and complex, *573 and the errors of law complained of, or in what respect the verdict, judgment or decree is contrary to it, should be specifically pointed out. Jones v. Wise, 282 Ala. 707, 213 So. 2d 914, and cases there cited.
An assignment of error that the verdict, judgment or decree is contrary to law also will not be considered because it is too general. Jones v. Wise, supra.
In summary, we hold that the plaintiff did not make out a case for accidental benefits, but did make out a case for recovery for the death benefits, and the defendant did not prove its pleas in the death benefit aspect of the case.
This case was originally assigned to another member of the court and was reassigned to the author of this opinion on March 30, 1970.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, HARWOOD and MADDOX, JJ., concur. | April 16, 1970 |
8dfa4e13-b3a9-41fd-87e6-49cba57ac3ba | Ex Parte State Ex Rel. Ussery | 231 So. 2d 314 | N/A | Alabama | Alabama Supreme Court | 231 So. 2d 314 (1970)
Ex parte STATE ex rel. R. Frank USSERY, as Superintendent of Insurance, etc.
In re R. Frank USSERY, etc.
v.
Honorable Eugene W. CARTER, as Judge, etc.
3 Div. 434.
Supreme Court of Alabama.
February 5, 1970.
George S. Brown, Sp. Asst. Atty. Gen., Birmingham, for petitioner.
Sam Kaufman, II, Montgomery, Doss & Gorham, Birmingham, for respondent.
MERRILL, Justice.
This particular proceeding began as an original petition in this court seeking a writ of mandamus or, in the alternative, a writ of prohibition to set aside an order of the Circuit Court of Montgomery County relating to a case which had been pending in the Circuit Court of Jefferson County for some time. A brief, but not inclusive, statement of the history of the case follows to show why the order of the Circuit Court of Montgomery County should be set aside.
In February, 1967, the Superintendent of Insurance of Alabama filed a bill in equity against United Security Life Insurance Company, a corporation, alleging that its financial statement for the year 1966 showed that it was insolvent and prayed *315 that an agent be appointed to take charge of the company and operate it until "its solvency is assured." The company admitted the allegations of the bill and the agent was appointed by Judge Barber, of Jefferson County, where the principal offices of the company were located.
Judge Barber, after investigation, felt that the company could be rehabilitated and directed the agent to proceed toward that goal.
Several matters were brought before this court in the nature of extraordinary writs and, on one occasion, Judge Barber appeared in person and told us he felt that he could protect the policyholders and the stockholders by a meaningful rehabilitation if he were given a little time and new litigation could be stopped. It appeared that a sale was in prospect and all parties seemed to be willing to await results.
But on May 19, 1969, a proceeding styled "STATE OF ALABAMA, EX REL. GEORGE LEWIS BAILES, JR., Petitioner vs. R. FRANK USSERY, AS SUPERINTENDENT OF INSURANCE OF THE STATE OF ALABAMA; and GULF AMERICAN FIRE AND CASUALTY COMPANY, a corporation, Respondents" was filed in the Circuit Court of Montgomery County, seeking a writ of mandamus to compel the United Security Life Insurance Company to cease issuing policies under the provisions of Tit. 28, §§ 58, 59 and 60, Code 1940.
The Circuit Court of Montgomery County issued a rule nisi on May 19, 1969, ordering the Superintendent of Insurance to notify the company to cease issuing policies or show cause why he should not do so.
In his demurrer, which was overruled, and in his return to the writ, the Superintendent of Insurance raised the point that the affairs of the company were under the jurisdiction of the Circuit Court of Jefferson County and the Montgomery Circuit Court was without jurisdiction to issue the writ. At a hearing on July 17, the Superintendent of Insurance was ordered to notify the company to issue no more policies as of August 1, 1969, unless by August 11, he could show a sale or an infusion of new assets of the company.
The Superintendent then filed the present proceedings here on July 25, 1969. After a hearing, we granted an alternative writ of prohibition on the theory that where two courts have equal and concurrent jurisdiction, the court that first commences the exercise of its jurisdiction in a matter has the preference and is not to be obstructed in the legitimate exercise of its powers by a court of coordinate jurisdiction. See Strother v. McCord, 222 Ala. 450, 132 So. 717; Ex parte Burch, 236 Ala. 662, 184 So. 694; Dorrough v. McKee, 264 Ala. 663, 89 So. 2d 77.
Return was made and oral argument was requested. The cause was continued by agreement and was argued on January 21, 1970. At that time, petitioner filed in this court a certified copy of a decree of the Circuit Court of Jefferson County, signed by Judge Barber, in the case before that court stating, in effect, that $6,433,576.04 worth of admissible assets had been infused into the company, that the company was purchased by Public National Life Insurance Company, that the company was dissolved as of 5:00 P. M., January 20, 1970, and the Judicial Agent would proceed to do the things necessary to close the matter and report to the court.
As can be seen, the matter is now practically moot, but since there is an order outstanding from the Montgomery County Circuit Court, which might interfere with the solution approved by Judge Barber, we issue the peremptory writ to the Montgomery Circuit Court to set aside its decree of July 17, 1969, and dismiss the cause.
Writ granted.
LIVINGSTON, C. J., and HARWOOD, MADDOX and McCALL, JJ., concur. | February 5, 1970 |
7c747e59-07cc-4108-99bc-4355c1018f9a | Patterson v. Brooks | 232 So. 2d 598 | N/A | Alabama | Alabama Supreme Court | 232 So. 2d 598 (1970)
Merle H. PATTERSON, as Executrix, etc.
v.
John BROOKS et al.
3 Div. 444.
Supreme Court of Alabama.
March 5, 1970.
Alfred W. Goldthwaite, Montgomery, for appellant.
Fred S. Ball, Montgomery, for appellees.
MERRILL, Justice.
This appeal is from a decree approving a bonus of $7,100.00 payable to the executrix of the estate of a deceased employee. We affirm.
The testator, Richard H. Patterson, had worked for Ray-Brooks Machinery Co., Inc., a corporation, the stock of which is owned by John Brooks, Jr., the President of the Company, his mother, and one outside stockholder who owns three shares. For several years prior to his death, Patterson was Sales Manager for the Company. He died on January 29, 1969, and the fiscal year of the company ended on February 28, 1969. For that fiscal year, the company lost over $90,000.00. In the three *599 preceding years, the profits of the company had been: 1966over $113,000.00; 1967over $32,000.00, and 1968over $51,000.00. For those same years, Patterson had received a bonus as follows: 1966 $13,600.00; 1967$10,800.00, and 1968 $14,200.00. The bonus for the fiscal year in which he died, 1969, was $7,100.00. Although the bonus of various officers and employees was not paid until May of each year, this suit, alleging that the bonus due Patterson was in jeopardy, was filed on April 22, 1969.
After a hearing before the court, the following decree was entered September 29, 1969:
"The court having previously sustained the demurrer of the respondents, John Brooks and Mrs. Louise Brooks, leaving only the respondent, Ray-Brooks Machinery Company, Inc., a corporation, and the cause coming on to be heard by the court and the parties and their counsel being present, and the evidence being heard orally by the court, and the issue being whether said corporation is indebted to the complainant for an additional amount due as a bonus for services rendered by the testator during the corporation's fiscal year, ending February 28, 1969, at the time of the testator's death on January 29, 1969, the court finds as follows:
"At the time of his death, the testator was employed by said corporation as its sales manager with an annual salary of $10,810.00 per year payable in monthly installments with the understanding that at the end of the fiscal year the company president, John Brooks, would discuss with the testator and obtain his views as to a bonus and he would then decide what additional amount would be paid as a bonus. The bonus would be additional compensation and serve as an incentive for future effort. This was to be done on or about May 1, after the close of the fiscal year on February 28th. There was no advance agreement to pay a sum certain or an amount to be based on a percentage of sales or percentage of profits or computed in any other mathematical way. The amount was to be entirely within the discretion of the company president. After the close of the 1969 fiscal year in this case the company president fixed the amount of the testator's bonus at $7100.00 and placed a check for that amount, less proper deductions, in the hands of the company attorney for surrender to complainant and in its answer the respondent stated in paragraph 6 that said amount was in its attorney's hands ready for delivery to complainant's attorney. Said check was offered in evidence on the trial of this matter. The bonus plus the amount of monthly salary of $9900.00 paid would make a total of $17,000.00 compensation for the testator for the eleven months service rendered prior to his death.
"The Alabama Supreme Court in Smith v. Dunlap, 269 Ala. 97, [111 So. 2d 1], held that where the amount of a bonus is within the discretion of a corporation officer, unless there is evidence of bad faith, a court will not attempt to substitute its judgment for that of the corporation officer in determining the amount of the bonus. The court finds no evidence of bad faith in this case.
"IT IS ACCORDINGLY ORDERED, ADJUDGED AND DECREED THAT the said $7100.00 check less deductions leaving a net amount of $4625.00, payable to the Estate of R. H. Patterson, which was offered in evidence, shall be held by the Register for delivery to complainant's attorney. The respondents stand discharged of any liability to the complainant for any additional bonus.
"All other relief prayed for by the complainant is denied.
"The costs of this cause be taxed against the respondent, for which let execution issue."
Only two questions are presented on appeal. Each is a question of fact. The first contention is that the "ruling of the *600 trial court is contrary to the predominance and the great weight of the testimony and the evidence."
It is undisputed that there was no contractual plan for the payment of a bonus. The only two witnesses who testified as to the arrival at the amount of the bonus to be paid were appellant's witness Blankenship, a certified public accountant whose firm made the annual audit of the company, and John Brooks, Jr., the President of the Company. Blankenship testified that "the bonuses were fixed by Mr. Brooks in recent years." Brooks testified that after the end of the fiscal year, he got the figures from Mr. Blankenship showing whether or not the company had made any money, that he talked the matter of the amount of the bonus over with each person receiving a bonus and then "I make the decision."
This amply supports the finding of fact by the trial court that "The amount was to be entirely within the discretion of the company president."
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; Great American Ins. Co. v. Railroad Furniture Salvage of Mobile, Inc., 276 Ala. 394, 162 So. 2d 488; Dunlavy v. Dunlavy, 283 Ala. 303, 216 So. 2d 281.
The first question of fact complained of in the decree was supported by the evidence and the assignments of error raising this point are without merit.
The second question of fact was raised by motion to perfect the record to show that a check for $7,100.00 had been introduced as evidence and that no check for the amount of $4,625.00, mentioned in the decree, was in the record.
It is true that reference in the testimony was made more than once to the bonus check for $7,100.00. This was the gross amount of the bonus awarded to the estate of the deceased employee. But the voucher accompanying and attached to the check shows "gross earnings" (the amount of the bonus) as $7,100.00. Also listed are Federal withholding, $1,562.00; State withholding, $284.00; F.I.C.A., $340.80; S.U.I., $17.75, and "accounts receivable" for advances and an open account, $268.90, making total deductions of $2,473.45. This explains why the check was for $4,625.00, the amount stated in the decree, rather than $7,100.00. Even though the check was referred to in the testimony as being in the amount of $7,100.00, the record shows that the check referred to in the evidence was also introduced and received in evidence (T. p. 46) as respondent's Exhibit No. 2, and the copy of the exhibit shows that the check is for $4,626.55.
At the hearing on the motion, the evidence was without conflict that no check was drawn for $7,100.00, and the only check drawn was for $4,626.55, which represented the bonus of $7,100.00 less required deductions.
The trial court held "that the check for $4626.55 to which the voucher showing deductions was attached is the original which was introduced in evidence, and it is accordingly ordered by the Court that the petition by complainant to perfect the record be and the same hereby is denied."
No reversible error has been presented.
Affirmed.
LIVINGSTON, C. J., and HARWOOD, MADDOX and McCALL, JJ., concur. | March 5, 1970 |
724e263b-72b0-4cfb-ba67-36a2b491f2c1 | Wright v. Robinson | 468 So. 2d 94 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 94 (1985)
Emil F. WRIGHT, Jr.
v.
John A. ROBINSON III.
83-715.
Supreme Court of Alabama.
February 8, 1985.
Rehearing Denied March 29, 1985.
S. Dagnal Rowe of Cleary, Lee, Morris, Evans & Rowe, Huntsville, for appellant.
*95 David H. Meginniss of Hornsby, Blankenship, Robinson & Meginniss, Huntsville, for appellee.
FAULKNER, Justice.
This is an appeal from a summary judgment entered against Dr. Emil Wright, Jr., and in favor of John A. Robinson III.
Defendant Robinson, along with Ben H. Walker and James M. Dunn, Jr., was a principal stockholder and officer of RoBen, Inc. They planned a mobile home development in Auburn, Alabama, and formed a limited partnership to finance the development of the trailer park. Several investors, including the plaintiff, Dr. Wright, were sold interests in a limited partnership known as Stonegate Development, of which RoBen, Inc. was the general partner.
Dr. Wright invested $45,000.00 in Phase I of the development and received ten percent of the shares in the limited partnership. In Phase II of the development, Dr. Wright invested $5,000.00 and a letter of credit for $67,500.00. Phase II was never developed as planned, and thereafter Dr. Wright filed suit in the United States District Court for the Middle District of Alabama against RoBen, Inc. and the principal stockholders, including Robinson.
While the federal suit was pending, the parties entered into a settlement agreement. The agreement, signed on June 8, 1978, provided, inter alia, that the federal lawsuit would be dismissed, without prejudice, and, in return, RoBen and its shareholders, individually, would purchase the limited partners' interests in Phase II of Stonegate Park Ltd. (including Dr. Wright's). Paragraph 9 of the agreement also provided:
The consent judgment, Exhibit F, is set forth in pertinent part as follows:
Approximately two and one-half years after the settlement agreement was entered into, the RoBen shareholders notified Dr. Wright that the mortgage on the mobile home park was in arrears and that foreclosure was imminent. To prevent foreclosure, RoBen and its individual shareholders, including Robinson, agreed to relinquish their rights in the limited partnership (Phase I, Stonegate Park), if Dr. Wright and the other limited partners would bail them out of the financial crisis. Accordingly, on February 14, 1981, the parties entered into another agreement, whereby the limited partners (including Dr. Wright) would release RoBen and the general partners individually from all claims against them, in exchange for title to the land formerly held by RoBen, Inc. The release agreement expressly excepted the claim underlying Exhibit F, the consent judgment, as follows:
Dr. Wright was never repaid his $5,000.00 and the letter of credit was never returned and was ultimately called by the bank. Dr. Wright then instituted the instant suit in the Circuit Court of Madison County, Alabama, against RoBen, Inc., and the principals and officers individually. He alleged that the defendants had defaulted on paragraph 9 of the 1978 "Settlement Agreement" and asked the court to enter judgment in his favor as set forth in the consent judgment. The complaint was later amended to also include a breach of contract claim. Defendants Walker and *97 Dunn thereafter filed a suggestion of bankruptcy, leaving Robinson as the only viable defendant.
Robinson moved for summary judgment based upon the alleged illegality of the consent judgment. The trial court found that Exhibit F, the consent judgment, was in reality a confession of judgment and accordingly held:
Dr. Wright appeals from the trial court's grant of summary judgment, claiming:
On appeal from a trial court's grant of summary judgment, this court must apply the same standard used by the trial court when ruling on the motion. Alabama Power Co. v. Blount Brothers Corp., 445 So. 2d 250 (Ala.1983). In Jehle-Slauson Construction Co. v. Hood-Rich, Architects and Consulting Engineers, 435 So. 2d 716 (Ala.1983), we summarized the standard as follows:
Id. at 718.
Initially, we agree with the trial court that Exhibit F, entitled "Consent Judgment," was, in reality, an agreement to confess judgment and was therefore void as a matter of law. Although the agreement of the parties was contractual in nature, it was never acknowledged or sanctioned by any court. Additionally, the agreement provided that it was not to be recorded in the county probate office or in any other state or federal public office. Moreover, the agreement called for Dr. Wright to designate any attorney at law to appear for defendants and to confess judgment against defendants without notice or service of process of any kind.
It is well settled that, in Alabama, agreements to confess judgment are void as against public policy. Section 8-9-11, Alabama Code (1975), sets forth the rule as follows:
In Fugazzoto v. Brookwood One, 295 Ala. 169, 325 So. 2d 161 (1976), this court noted:
Id. 295 Ala. at 173, 325 So. 2d at 163.
The existence of a void provision for a confession of judgment, however, does not render an entire agreement void but simply invalidates the unauthorized provision as to confessing judgment. Sales-Davis Co. v. Henderson-Boyd Lumber Co., 193 Ala. 166, 172, 69 So. 527, 529 (1915):
193 Ala. at 172, 69 So. at 529.
In the instant case, the confession of judgment provision, had it been valid, would have allowed Dr. Wright to go into court and recover under the contract without the necessity of process and a full trial. Since the clause in question is void as a matter of law, we must then construe the 1978 "Settlement Agreement" without the void confession of judgment provision. What remains is a valid and enforceable contract, which, by certain of its terms, sets forth defendants' promise to repay Dr. Wright's $5,000.00 and to return his $67,500.00 letter of credit.
The provision allowing for the confession of judgment did not set forth the claim itself, but only the method by which to enforce the claim. The method set forth was not an exclusive remedy in the event of default and did not preclude alternate remedies by suit. See Sales-Davis Co. v. Henderson-Boyd Lumber Co., supra, 193 Ala. at 173, 69 So. at 530. Since the only method of enforcement is void, the underlying breach of contract claim is preserved, but it is no longer "confessed to." Instead, Dr. Wright will have to prove at trial that a breach of contract has occurred.
Robinson, however, argues that the rules set forth in Sales-Davis, supra, are inapplicable in the instant case because, since the consent judgment marked "Exhibit F" is void as a confession of judgment and since the 1981 agreement released the breach of contract claim, there remains no other claim upon which relief could be granted. He argues that the clear language of the agreement released him from all claims except the void confession of judgment. We disagree. In Alabama Power Co. v. Blount Construction Corp., 445 So. 2d 250 (Ala.1983), this Court, in attempting to discern the meaning of a release agreement, set forth the standard as follows:
Id. at 252.
It is evident from the language of the release that the parties intended to preserve the claim for $72,500.00. However, it remains a question of fact, due to the apparent ambiguities in the release itself, whether that claim was properly preserved. The problem arises because, although, as previously discussed, the breach of contract claim would be preserved under the language "except the claim ... as agreed and consented to in that certain consent judgment ...," if read in light of the next phase, "as to the claims asserted in count four of Civil Action 78-31-E, United States District Court for the Middle District of Alabama, for the sum of $72,500.00," the ordinary language becomes ambiguous.
Whether the release agreement only preserves the federal claim or whether the breach of contract claim was properly excepted are questions of fact to be resolved by a jury. Accordingly, we find that summary judgment was improperly granted, and we therefore reverse and remand.
REVERSED AND REMANDED.
JONES, ALMON, EMBRY and ADAMS, JJ., concur. | February 8, 1985 |
f8786be9-9ba3-41ec-9d94-bbd097778179 | Roberson v. City of Montgomery | 233 So. 2d 69 | N/A | Alabama | Alabama Supreme Court | 233 So. 2d 69 (1970)
Herman R. ROBERSON, Cumi Collins & Jack Collins
v.
CITY OF MONTGOMERY.
3 Div. 395.
Supreme Court of Alabama.
January 22, 1970.
Rehearing Denied March 19, 1970.
Frank W. Riggs, III, Hobbs, Copeland, Franco, Riggs & Screws, Montgomery, for appellants.
Horace Perry, Montgomery, for appellee.
MADDOX, Justice.
The City of Montgomery filed this action, in equity, asking the court to enjoin respondents from operating automobile junk yards in two separate locations on the ground that such operations constituted "public nuisances" and that such operations violated city zoning ordinances. It was stipulated that both operations were located on land outside the corporate limits of Montgomery but within its police jurisdiction.
Upon final submission, the trial court found that the operation of the junk yards constituted public nuisances and that the city was entitled to enforce its zoning ordinances outside its corporate limits. One of the parcels was zoned "business" and the other "residential." The main question presented by this appeal, and the question which will be dispositive of this appeal, is: "Did the trial court err in finding that the City of Montgomery was entitled to enforce its zoning ordinances outside its corporate limits?" After careful study of our statutes dealing with municipal zoning and planning, we must conclude that the trial court did err and that enabling legislation from which the city derives its power to enact zoning regulations did not authorize the city to enforce zoning beyond the municipal corporate limits.
The city contends that it has authority to enforce its zoning ordinances outside its corporate limits under the provisions of Title 37, § 9, Code of Alabama 1940 (recompiled *70 1958)[1] and also under the provisions of Act No. 480, Acts of Alabama 1961, page 537; Code of Alabama 1940 (recompiled 1958), Appendix, §§ 1317(41)-1317(47).
A city or municipal corporation does not have the inherent power to enact and enforce zoning regulations. Ball v. Jones, 272 Ala. 305, 132 So. 2d 120 (1961) and cases there cited. Ordinances of the character now under review find their justification in the exercise by the municipality of its police power asserted for the protection of the public welfare, and the modern tendency is to be liberal in upholding such ordinances in order to facilitate their proper administration. Walls v. City of Guntersville, 253 Ala. 480, 45 So. 2d 468 (1950). The question then is whether the Legislature has granted extraterritorial zoning authority to the city.
Act No. 480, Acts of Alabama, 1961, grants to the Planning Commission of the City of Montgomery all the powers, duties, and responsibilities of city planning and zoning commissions as provided in Chapter 16, Title 37, Code of Alabama (1940), as amended.
Title 37, § 772, provides:
Title 37, § 776, provides that for the purpose of promoting the public peace, order, safety or general welfare, "the local legislative body may divide the municipality into districts." (Emphasis added)
While Title 37, § 9, grants to the City of Montgomery the power to enforce police or sanitary regulations in adjoining territory within three miles of the corporate limits, this power does not extend to zoning regulations which are specifically provided for in other statutes. In the absence of any enabling legislation expressly providing otherwise, zoning enactments of a municipality are limited to its territorial boundaries and are invalid to the extent that they seek to impose zoning regulations and restrictions on land outside city limits. See Smeltzer v. Messer, 311 Ky. 692, 225 S.W.2d 96 (1949); State v. Owen, 242 N.C. 525, 88 S.E.2d 832 (1955); State v. Contini, 176 N.E.2d 536, 16 O.O.2d 263 (Ohio Com.Pl., 1961).
Our own decision in City of Homewood v. Wofford Oil Co., 232 Ala. 634, 169 So. 288 (1936), seems to recognize that Title 37, § 9, is not all encompassing. We there said:
While the question of the power of a municipality to zone outside its city limits was not involved, we think a statement made *71 by this court in Chapman v. City of Troy, 241 Ala. 637, 4 So. 2d 1 (1941) is appropriate. The validity of our zoning act of 1935 was there being attacked. We said:
We now come to the city's argument that since its planning commission has all the powers, duties and responsibilities of city and regional planning and zoning commissions as provided in Chapter 16, Title 37, Code of Alabama, 1940, as amended, it has the authority to regulate the use of these two parcels outside its corporate limits under the provisions of §§ 791, 794 and 797 of Title 37.[2] These statutes do explicitly *72 grant to the city the right to do "planning" and further grant to the city some degree of control extraterritorially, especially with regard to subdivisions located within five miles of the city limits and with regard to certain "public" structures and "public" developments located within "any areas outside of its boundaries which, in the commission's judgment, bear relation to the planning of such municipality."
While the Legislature has given to municipalities certain extraterritorial control in these "planning" statutes, the general powers of a municipality to "zone" are contained in Title 37, §§ 772-785, Code of Alabama, 1940, as amended.
"Zoning" and "planning" are not synonymous, though they are sometimes so used. "Planning" and "zoning" include some common objectives, but most authorities agree that they are separate and distinct.
Broadly speaking, "planning" relates to the systematic and orderly development of a community with particular regard for streets, parks, industrial and commercial undertakings, civic beauty and other kindred matters properly within the police power. "Zoning" is primarily concerned with the regulation of the use of property, to structural and architectural designs of buildings, and the character of use to which the property or the buildings within classified or designated districts may be put. City of Carlsbad v. Caviness, 66 N.M. 230, 346 P.2d 310 (1959); Seligman v. Belknap, 288 Ky. 133, 155 S.W.2d 735 (1941); State ex rel. Kearns v. Ohio Power Co., 163 Ohio St. 451, 127 N.E.2d 394 (1955).
As we read Title 37, §§ 786-814, Code of Alabama, 1940, as amended, the Legislature primarily intended to confer upon municipalities the power to perform "city and regional planning." Section 791, which sets out the general powers and duties of a planning commission, is specific in stating that city planning commissions have the authority to draft a master plan and make recommendations for the development of territory both within the city and outside the city. The commission's recommendations may include a zoning plan for the control of the height, area, bulk, location and use of buildings and premises. Once such a master plan is adopted it attains a certain legal status. Section 794 provides that after adoption "no street, square, park, or other public way, (public) ground, or (public) open space, or public building or (public) structure, or public utility, whether publicly or privately owned, shall be constructed or authorized in the municipality or in such planned section and district until the location, character, and extent thereof shall have been submitted to and approved by the commission." (Emphasis added and word "public" in parentheses implied). It seems clear that the words "whether public or private" which appear after the words "public utility" in § 794 refer to the words "public utility" and have no reference to the other matters set out in the section. We hold that the city was without authority to enforce extraterritorially the zoning ordinance here involved.
We do not here decide the question of whether or not a city may enjoin the operation of a public nuisance located outside its corporate limits but within its police jurisdiction. Appellants candidly admit the city has such authority if a public nuisance exists. Neither do we decide the constitutional question of whether a municipality can enforce extraterritorial zoning if granted such authority by the Legislature. *73 See Extraterritorial Zoning: Reflections on Its Validity, 32 Notre Dame Lawyer 367 (1957).
In view of the fact that the trial court found that the City of Montgomery was entitled to enforce its zoning ordinances on these parcels located outside its corporate limits, and this finding is inseparably connected with the whole decree making it impossible for us to apply Supreme Court Rule 45, we must reverse the judgment of the trial court and remand the case to that court for proceedings not inconsistent with this opinion.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, MERRILL, and HARWOOD, JJ., concur.
MADDOX, Justice.
On application for rehearing, the City of Montgomery asks that we withdraw our original opinion and affirm the judgment of the trial court. The Alabama League of Municipalities and the Central Alabama Regional Planning Commission have also filed briefs as amicus curiae, each contending that our original opinion holding that the City of Montgomery did not have zoning powers beyond its corporate limits is erroneous. We have carefully reviewed our statutes on city and regional planning, and we are still convinced that the City of Montgomery was without legislative authority to enforce its zoning ordinances outside its corporate limits.
Our city and regional planning statutes follow almost verbatim "A Standard City Planning Enabling Act" published in 1928 by the United States Department of Commerce Advisory Committee on City Planning and Zoning, which was appointed by then Secretary of Commerce Herbert Hoover.[3]
The Alabama League of Municipalities candidly admits that the League has been concerned with the interpretation of our statutes on the question of the right of a city to zone extraterritorially and has attempted to secure passage of clarifying legislation by the Alabama Legislature. We take judicial notice of the Alabama House Journal which shows that a bill was introduced at the Regular Session of the Alabama Legislature in 1969 by then Representative Charles Wright (now a Judge on the Court of Civil Appeals) which would have amended Title 37, § 772, to authorize cities to zone within its police jurisdiction. If cities desire to zone outside their city limits it will be necessary to have such authority come from the Legislature.
For further study on the concept of urban development and planning, see Law and Contemporary Problems, Vol. 20, p. 351; Rathkopf, The Law of Zoning and Planning, Vol. 3, Chapter 71; Yokley, Zoning Law and Practice, Vol. 2, Chapter XI, pp. 1-24.
The application for rehearing is due to be denied.
Opinion extended and rehearing denied.
LIVINGSTON, C. J., and LAWSON, MERRILL and HARWOOD, JJ., concur.
[1] "The police jurisdiction in cities having six thousand or more inhabitants shall cover all adjoining territory within three miles of the corporate limits, and in cities having less than six thousand inhabitants, and in towns, such police jurisdiction shall extend also to the adjoining territory within a mile and a half of the corporate limits of such city or town. Ordinances of a city or town enforcing police or sanitary regulations and prescribing fines and penalties for violations thereof, shall have force and effect in the limits of the city or town and in the police jurisdiction thereof, and on any property or rights of way belonging to the city or town."
[2] "§ 791. It shall be the function and duty of the commission to make and adopt a master plan for the physical development of the municipality, including any areas outside of its boundaries which, in the commission's judgment, bear relation to the planning of such municipality. Such plan, with the accompanying maps, plats, charts, and descriptive matter shall show the commission's recommendations for the development of said territory, including, among other things, the general location, character, and extent of streets, viaducts, subways, bridges, waterways, waterfronts, boulevards, parkways, playgrounds, squares, parks, aviation fields, and other public ways, grounds and open spaces, the general location of public buildings and other public property, and the general location and extent of public utilities and terminals, whether publicly or privately owned or operated, for water, light, sanitation, transportation, communication, power and other purposes; also the removal, relocation, widening, narrowing, vacating, abandonment, change of use or extension of any of the foregoing ways, grounds, open spaces, buildings, property, utilities, or terminals; as well as a zoning plan for the control of the height, area, bulk, location, and use of buildings and premises. As the work of making the whole master plan progresses, the commission may from time to time adopt and publish a part or parts thereof, any such part to cover one or more major sections or divisions of the municipality or one or more of the aforesaid or other functional matters to be included in the plan. The commission may from time to time amend, extend, or add to the plan."
"§ 794. Whenever the commission shall have adopted the master plan of the municipality or of one or more major sections or districts thereof no street, square, park, or other public way, ground, or open space, or public building or structure, or public utility, whether publicly or privately owned, shall be constructed or authorized in the municipality or in such planned section and district until the location, character, and extent thereof shall have been submitted to and approved by the commission; provided, that in case of disapproval the commission shall communicate its reasons to council, which shall have the power to overrule such disapproval by a recorded vote of not less than two-thirds of its entire membership: Provided, however, that if the public way, ground, space, building, structure, or utility be one the authorization or financing of which does not, under the law or charter provisions governing same, fall within the province of the municipal council, then the submission to the planning commission shall be by the board, commission, or body having such jurisdiction, and the planning commission's disapproval may be overruled by said board, commission, or body by a vote of not less than two-thirds of its membership. The failure of the commission to act within sixty days from and after the date or official submission to the commission shall be deemed approval."
"§ 797. The territorial jurisdiction of any municipal planning commission over the subdivision of land shall include all land located in the municipality and all land lying within five miles of the corporate limits of the municipality and not located in any other municipality, except that, in the case of any such non-municipal land lying within five miles of more than one municipality having a planning commission, the jurisdiction of each such municipal planning commission shall terminate at a boundary line equidistant from the respective corporate limits of such municipalities; provided, however, that in all counties having a population of 400,000 or more, according to the 1940 federal census or any succeeding dicennial federal census, the county planning and zoning commission shall be invested with such authority, except and unless the municipality or municipalities in question is/are actively exercising zoning jurisdiction and control within said police and/or five mile jurisdiction, or shall actively exercise zoning jurisdiction and control therein within 180 days after the effective date of this section, or in the case of a municipality subsequently incorporated, within 180 days from the date of its incorporation."
[3] We have received a copy of the Standard Planning Act from the Library of Congress and have placed it in the Supreme Court Library because of the comprehensive section by section analysis which is set out in the publication. The analysis made should be of assistance to the bench and bar in determining the intent of our own Legislature at the time of the passage of our planning statutes. | January 22, 1970 |
c9bd59b1-37e2-4eea-953c-bc09da010ab7 | Babcock v. Smith | 234 So. 2d 573 | N/A | Alabama | Alabama Supreme Court | 234 So. 2d 573 (1970)
C. D. BABCOCK and W. J. Gordy
v.
Paul SMITH and Mary E. Smith.
5 Div. 887.
Supreme Court of Alabama.
March 26, 1970.
Rehearing Denied May 15, 1970.
*574 Robert S. Lamar, Jr., Ball & Ball, Montgomery, for appellants.
Alton, Curlee & Leavell, Montgomery, for appellees.
McCALL, Justice.
This case involves the right of the appellants to foreclose a mortgage, and the construction of two leases, on the mortgaged real property, cross-delivered between the parties. The facts are substantially as follows:
On August 31, 1962, the appellees and the appellants contemporaneously executed and delivered to each other, as the particular transaction required, the following instruments in writing, namely:
1. The appellants lent the appellees $15,000 and took in return their promissory note and mortgage on real property. The principal and interest thereunder are payable in one hundred and twenty consecutive monthly installments of $166.65 each, commencing on the 4th day of October, 1962, and continuing on the 4th day of each month thereafter until paid in full. A subsequent provision is that the mortgagors, being engaged in the operation of a motor vehicle gasoline service station and purchasing their petroleum products from the mortgagees, may pay one and one-half cents per gallon of gasoline in addition to its regular cost, and thereafter, on the 30th day of December and 30th day of June of each year, supplement these amounts so as to equal the amounts due under the mortgage for the preceding six month period.
2. The appellees executed and delivered their written lease, hereafter called the *575 prime lease, demising and leasing to the appellants so much of the mortgaged premises as is necessary for the operation of a gasoline filling station for a monthly rental of $166.65. The lease is for a term of ten years, commencing on the 4th day of September, 1962, and ending on the 3rd day of September, 1972. In this lease, the appellees license, consent and permit the appellants, as lessees, to maintain and operate a gasoline filling station on the premises and grant them 30 days after termination of the lease to remove their improvements and equipment therefrom. The appellees, as lessors, agree to pay all taxes and assessments against the premises, the building, and their equipment. The appellants are responsible for the taxes on their equipment. The appellees further agree not to compete with the appellants in the gasoline filling station business and to make all repairs to and maintain the service station, with the exception of the service station equipment placed thereon by the appellants. While the lease to maintain and operate a gasoline filling station on the demised premises would ordinarily carry with it the right of possession to the premises, King v. Reynolds, 67 Ala. 229, the appellants did not go into possession, but with the appellees' permission, painted the building a different color, painted over the gasoline pumps and changed the emblems to Phillips Sixty-Six.
3. The appellants executed and delivered to the appellees a Dealer Lease and Agreement for Purchase and Sale of Petroleum Products, hereafter called the lease-back, whereby, for the same monthly rental of $166.65, the appellants who are referred to as "Seller," lease back to the appellees, called the "Dealer," the same real property described in the mortgage for ten years, commencing on the 4th day of September, 1962, and ending on the 3rd day of September, 1972. The Dealer, appellees, continued in actual possession of the real property including the gasoline filling station, never at any time having parted with possession or with the operation of the filling station. Pertinent provisions of this lease-back are that it covers the operation of a motor vehicle filling station on the leased premises, with the Dealer agreeing to purchase all petroleum products sold there from the Seller. The Dealer retains possession of the leased premises, but failing to operate the filling station or to purchase all petroleum products from the Seller, agrees to surrender the same to the Seller upon demand, and the Seller may then use and occupy the premises or sub-let for the purposes for which the lease was made, agreeing to pay the $166.65 per month as rental in accordance with the prime lease from the appellees. The Seller agrees to place gasoline pumps and storage tanks on the premises for the sale and dispensing of petroleum products purchased from the Seller. The Seller agrees to keep an adequate supply of petroleum products in the storage tanks or other places of storage on the premises, provided the Seller will not be liable for failure to furnish petroleum products where such is due to the Seller's inability to obtain the same from its source of supply. The Seller agrees to sell at the established major dealer tank wagon prices which the Dealer agrees to pay for in cash upon receipt of said petroleum products. The Dealer, as the owner of the premises, consents to the installation and maintenance of this equipment and assures the Seller the right to remove it from said premises. This instrument further provides that the Seller is interested only in the increased volume of wholesale sales of petroleum products and securing payment of its sale price to the Dealer. Neither the Dealer nor his employees are to be deemed or to be construed to be employed by or agents of the Seller and the Dealer is not to permit any of their employees to represent themselves as agents or employees of the Seller. The Dealer is required to carry his own insurance and pay taxes and governmental assessments against the leased premises and the Seller is required to pay all taxes and assessments against the pumps, tanks and equipment, provided, however, so long as the Dealer is in possession of the premises *576 he is required to take out all licenses for the operation of the business in his own name and to pay all license fees and privileges, occupation, sales, income, social security or excise taxes of any character whatsoever. The dealer is required to keep the plumbing and gasoline pumps protected and not to damage, deface, alter or change or remove any fixture signs or trademarks.
The appellants and appellees operated under these three instruments with the appellees paying one and one-half cents per gallon on their gasoline purchases in addition to cost, as well as other payments from time to time, all of which were credited on their mortgage indebtedness to the appellants. The monthly rental due by the appellants under the prime lease was set-off by the rental due by the appellees under the lease-back. The appellants sold the appellees Phillips Sixty-Six gasoline and petroleum products under a dealership or distributorship arrangement with that petroleum company, until August 28, 1965, when the appellants lost their Phillips Sixty-Six franchise. When this occurred, the appellants requested the appellees to accept Sinclair products in the place of Phillips Sixty-Six. They agreed, but refused to sign any dealership agreement or any other type of agreement with Sinclair. Sinclair sold their petroleum products to the appellees, collecting one and one-half cents per gallon of gasoline in addition to cost which it remitted to the appellants for the account of the appellees' mortgage debt. Sinclair changed the pumps and emblems on the appellees' premises to their own kind and repainted the building. These changes were made without objection by the appellees.
Under a contract of sale with Sinclair, made on the 28th of August, 1965, the appellants sold them all of their trade fixtures and personal property, including that on the premises of the appellees, they agreed to exercise their best efforts to secure the execution of a Dealer Agreement between Sinclair and the appellees, they sold, transferred and conveyed to Sinclair their business good will, they agreed not to engage in a competing business for five years, for which Sinclair agreed to pay the appellants $1000 and one cent a gallon on all gasoline sold and delivered by Sinclair to any of seven Open Dealer Accounts, listed in the contract, which includes that of the appellees, for three years, but not to exceed $6,270, including the $1000, and finally, the appellants gave Sinclair the option and privilege to cancel and rescind the contract of sale upon certain contingencies. Appellants' lease-back to the appellees was not sold, transferred or assigned by them under this contract to Sinclair.
In addition to the cost, the appellees paid the one and one-half cents per gallon, but no more toward liquidating their mortgage indebtedness. These payments only satisfied the interest on the mortgage debt and appellees fell in arrears. It appears that this precipitated the foreclosure proceeding by the appellants which resulted in this injunction suit.
Utilizing to the greater extent the language employed by the trial court in the relevant parts of its final decree, the court found and held that the lease-back was modified by the mutual assent of the parties and their subsequent conduct so as to substitute Sinclair as a new party to the lease-back, in place of the appellees, and so as to change the compensation to be received by the appellants from the amount under the lease-back of $166.65 per month to one cent per gallon of gasoline sold by Sinclair at the station operated by the appellees; that Sinclair has been in possession of the premises of the appellees since August 28, 1965, with the consent of the appellants, and as their sub-tenants, under this modified agreement, and that the appellees have operated the filling station as the agents of Sinclair for the benefit of the appellants. The court charged the appellants with the accrued monthly rent of $166.65 under the prime lease from August 28, 1965, without the benefit of set-off by reciprocal rents from the appellees under the lease-back. The court did not hold that the lease-back had been *577 terminated or abandoned by mutual assent of the parties, but had been modified.
Upon a consideration of these findings and the court's holding, we conclude that the learned trial judge misconstrued the contractual negotiations between the appellants and Sinclair and their effect upon the lease-back between the appellants and the appellees.
We cannot agree that the legal effect of the contract between the appellants and Sinclair worked a substitution, in the lease-back, of Sinclair for the appellees. There is no evidence that Sinclair, who is not a party to this suit, bound itself to accept these contractual obligations or that it ever went into possession of the leased premises. Appellee Smith testified that he held possession of the premises and never gave it up. Sinclair bought the pumps and equipment at the station and the appellees permitted Sinclair to repaint and display its signs and emblems about the station, but Sinclair did not go into possession and operate the filling station through the appellees, so far as we can find from the evidence. In fact, appellee Smith testified that he bought his gasoline from Sinclair to sell. There is no evidence that Sinclair agreed to pay the appellants one cent on the gallon as rent for the premises. Under appellants' contract of sale with Sinclair, Sinclair agreed to pay the appellants one cent per gallon on sales of gasoline to seven filling stations as part consideration for an agreement not to engage in a competing business for five years, and not for rent. Nor can we find from the evidence where an agency relationship was established between Sinclair, as principal, and the appellees, as agents.
Nor do we find evidence of mutual assent of the parties to modify the lease-back in the manner decreed by the trial court. Any subsequent conduct of the parties in supposed observance of its terms, cannot be considered by us as aids in its construction. Twin Tree Lumber Co. v. Ensign, 193 Ala. 113, 119, 69 So. 525; Gadsden & Attalla Union Ry. Co. v. Gadsden Land & Improvement Co., 128 Ala. 510, 518, 29 So. 549; Southern Ry. Co. v. Louisville & Nashville R. R. Co., 241 Ala. 691, 4 So. 2d 400.
We think the holding that the lease-back was modified in the manner found by the trial court in its final decree, was not supported by the evidence and was tantamount to making a new and different contract for the parties, including Sinclair, who was not a party to this suit, but which binds and obligates it to considerable extent.
In Springdale Gayfer's Store Co. v. D. H. Holmes Co., 281 Ala. 267, 277, 201 So. 2d 855, 865, this court said:
The terms of the written contract here involved, the lease-back, are clear and unambiguous. This being the case, the determination of its meaning is a matter of law for the court to decide, unaided by extrinsic evidence. Air Conditioning Engineers v. Small, 259 Ala. 171, 65 So. 2d 698; Foster & Creighton Co. v. Box, 259 Ala. 474, 66 So. 2d 746; Travelers Insurance Co. v. Kernachan, 283 Ala. 96, 214 So. 2d 447; Dunlap v. Macke, 233 Ala. 297, 171 So. 721; McClendon v. Eubanks, 249 Ala. 170, 30 So. 2d 261.
This court aptly observed in Hattemer v. State Tax Commission, 235 Ala. 44, 46, 177 So. 156, 158, as follows:
While the appellate court will not ordinarily disturb findings of fact made by the trial court after a hearing ore tenus in open court, unless plainly erroneous, this court will reverse where the trial court erroneously applies the principles of law involved. St. Clair Industries, Inc. v. Harmon's Pipe & Fitting Co., 282 Ala. 466, 213 So. 2d 201.
For the reasons stated, we think that the appellees should be charged with the accrued and unpaid amount of the monthly installments due by them on the mortgage indebtedness, and unless paid forthwith, the appellants should be permitted to proceed with foreclosure, and, that the amounts due the appellees by the appellants, under the prime lease, should be set-off by the identical amounts due to the appellants by the appellees, under the lease-back, without benefit of reduction brought about by the trial court's finding and final decree in this respect.
In our opinion, the trial court erred in permitting the five character witnesses, to testify over the timely objections of the appellants' attorney that the appellee, Paul Smith, had a good general reputation, a good general reputation for truth and veracity, and a good general reputation for fair dealing and honesty.
The appellants had not impeached, or attempted to impeach, the character or the testimony of Paul Smith, either as a party or as a witness in any regard by the introduction of evidence of bad character on his part, or by any statement allegedly made by him out of court, contradictory of his testimony on the trial; nor was his character or reputation involved as an issue on the trial of the case in any manner. Rather than his character and reputation being involved, we point out that this is primarily a case involving the right of the appellants vel non to foreclose a mortgage which appellees had executed on their real property. The mere fact that Paul Smith's testimony was in conflict with that of the two appellants, and that appellants denied some of the sworn allegations of the bill of complaint in their answer, did not authorize proof of his good character. McCullars v. Jacksonville Oil Mill Co., 169 Ala. 582, 53 So. 1025; Hodges v. Davis, 199 Ala. 685, 75 So. 300; Starks v. Comer, 190 Ala. 245, 67 So. 440; Dickson v. Dinsmore, 219 Ala. 353, 122 So. 437; Phillips v. Ashworth, 220 Ala. 237, 124 So. 519; Hancock v. Hullett, 203 Ala. 272, 82 So. 522; Baggett v. State, 250 Ala. 413, 34 So. 2d 688.
The appellants offered into evidence the deposition of the adverse party, the appellee, Paul Smith, taken pursuant to Act No. 375, Acts of Ala., Regular Session 1955, p. 901 et seq., as amended, now found in Tit. 7, §§ 474(1) through 474(18), Code of Alabama, Recompiled 1958. Under § 474(4) (b) Tit. 7, of this statute the deposition of a party "may be used by the adverse party for any purpose." In our opinion, the trial court erred in sustaining the appellees' objection to the introduction of this deposition. It should have been admitted. Air Engineers Inc. v. Reese, 283 Ala. 355, 217 So. 2d 66; Harrison v. McCleary, 281 Ala. 87, 199 So. 2d 165; Dunahoo v. Brooks, 272 Ala. 87, 128 So. 2d 485.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON, COLEMAN, and BLOODWORTH, JJ., concur. | March 26, 1970 |
e12e6345-8c52-4684-8471-6a7642ac6bf7 | Roddam v. Martin | 235 So. 2d 654 | N/A | Alabama | Alabama Supreme Court | 235 So. 2d 654 (1970)
Clyde H. RODDAM et al.
v.
Rance MARTIN et al.
6 Div. 740.
Supreme Court of Alabama.
April 30, 1970.
Rehearing Denied May 28, 1970.
*655 London, Yancey, Clark & Allen, Birmingham, for appellants.
Cato & Hicks, Birmingham, for appellees.
MERRILL, Justice.
This appeal is from a decree setting aside as fraudulent a deed from appellants, Clyde H. Roddam and wife, Janet W. Roddam, to his mother, appellant Clara Belle Roddam, at the insistence of appellees, judgment creditors of appellant Clyde H. Roddam.
Clyde H. Roddam had inherited the suit property when his father died. The widow and mother, Clara Belle Roddam, continued to live in the house on the premises. On the same day, September 7, 1966, that appellants secured tort judgments against Clyde H. Roddam, he and his wife deeded the property to his mother. The consideration stated in the quit claim deed was "ONE DOLLAR and love and affection."
The bill of complaint charged "that there was no real consideration for said deed and that said conveyance was made for the purpose of hindering, delaying or defrauding your Complainants in the collection of their respective judgments." After demurrer to the bill was overruled, appellants answered by admitting some of the paragraphs of the bill and denying all of the paragraphs charging that the conveyance was fraudulent.
After an oral hearing, the trial court found "that the said instrument was voluntarily issued by the said grantors and fraudulently designed to defeat the efforts of Complainants to collect upon the said judgments." The decree was rendered in accordance with this finding.
It is only fair to say that counsel on appeal did not enter the case until after its inception.
All of appellants' assignments of error charge in different language that the court erred in decreeing that the conveyance was voluntary, and fraudulent and void as to appellants.
Two pertinent statutes read as follows:
In Galloway v. Shaddix, 197 Ala. 273, 72 So. 617 (1916), Mayfield, J., wrote:
The opinion in Galloway was not then the law because a majority of the court concurred only in the conclusion. The majority was not willing to overrule a former case, Dowling v. Garner, 195 Ala. 493, 70 So. 150, on a point not at issue in Galloway. The opinion in Dowling stated that a personal representative could not maintain an action in equity to set aside a conveyance as fraudulent until his claim under Tit. 7, § 123, Code 1940 (the wrongful death statute) was reduced to judgment. Whether a judgment was necessary was not at issue in Galloway because a judgment had been obtained before the bill to set aside the fraudulent conveyance was filed.
But in Myers v. Redmill, 266 Ala. 270, 96 So. 2d 450, a unanimous court agreed that the opinion of Justice Mayfield "correctly states the law, and that it is applicable whether or not judgments have been recovered before the bill to set aside the alleged fraudulent conveyance is filed, and irrespective of whether or not the damages sought are compensatory or punitive."
In the instant case, the judgments had been secured prior to the filing of the bill, so that point is not here present.
Based upon the opinions in Galloway and Redmill, we note some principles which are applicable here:
1. Ordinary claims for damages arising from torts are within the protection of the statute, including claims of a personal representative under the wrongful death statute.
2. It is not the judgment which creates the relation of "creditor" under the statute, but the wrong which produces the injury and gives rise to the damages which are recovered. Hence, the date of the wrongful act, and not the filing of the suit or the recovery of the judgment, fixes the status and rights of the parties.
3. Our present statute, Tit. 20, § 7, does not require the debt, claim or demand, which is protected by the statute, to be reduced to judgment before the bill to set aside a conveyance as fraudulent is filed. The action at law to reduce to judgment, and the bill to set aside are concurrent remedies in point of time, though the latter is, in fact, merely in aid of the action at law; that is, to give the plaintiff the fruits of his judgment when recovered.
When the complainant has alleged that a conveyance has been made voluntarily and made with intent to hinder, delay and defraud creditors, the burden is upon the respondents to aver and prove that there was a valuable consideration for the conveyance, in what it consisted and how it was paid. Motley v. Warren Trading Co., 279 Ala. 669, 189 So. 2d 352; Wooten v. Steele, 109 Ala. 563, 19 So. 972. These necessary allegations were made by the complainants in the instant case, but respondents alleged nothing more than the admissions and denials already noted.
Appellants contend that under the facts of this case, the expressed consideration in the deed, "ONE DOLLAR and love and affection" was sufficient to prevent the conveyance from being voluntary as a matter of law. "Love and affection" is a "good" consideration rather than a "valuable" consideration; it is sufficient consideration between the parties, and evidence going to show a consideration of a different kind is not admissible, but a different rule prevails if the deed is assailed for fraud by a creditor of the grantor. Albreast v. Heaton, 276 Ala. 185, 160 So. 2d 470, and cases there cited. It is undisputed that the grantee, Roddam's mother, knew about the Martin claims and judgments. The expressed consideration was not valuable as against a creditor.
*657 Appellants also contend that there was no proof of the allegation in the bill "that said conveyance includes all or substantially all of the property of the Respondent, Clyde H. Roddam, subject to execution for the collection of the judgments of your Complainants."
This was not necessary and such averment should be and probably was treated as surplusage by the trial court.
The concurrence of three elements is essential before a conveyance can be declared fraudulent under Tit. 20, § 7, quoted supra. It must be shown that there is: (1) a creditor to be defrauded, (2) a debtor intending to defraud, and (3) a conveyance of property out of which the creditor could have realized his claim or some portion thereof. Adkins v. Bynum, 109 Ala. 281, 19 So. 400. All of these elements are present in the instant case.
Appellants cite Brunson v. Rosenheim & Son, 149 Ala. 112, 43 So. 31, as showing that an execution was issued and returned "No property found"; and that nothing like that occurred in this case. Such a return on an execution is not a necessary element of a case where a creditor seeks to set aside a conveyance as fraudulent. It was a fact in the Brunson case, but certainly not necessary since Myers v. Redmill, 266 Ala. 270, 96 So. 2d 450. It is obvious that a proceeding like the present one may be started and completed before there is a judgment on the claim, and no execution could be issued until a judgment has been rendered.
The respondents have failed to discharge the burden cast upon them by the necessary allegations and proof. We find no reversible error in the decree of the trial court.
Affirmed.
LAWSON, HARWOOD, MADDOX and McCALL, JJ., concur. | April 30, 1970 |
aebb8f71-44aa-44e3-bd02-0f4d2606ecad | Koppers Company v. GULF WELDING AND CONSTRUCTION INC. | 231 So. 2d 896 | N/A | Alabama | Alabama Supreme Court | 231 So. 2d 896 (1970)
KOPPERS COMPANY, Inc.
v.
GULF WELDING AND CONSTRUCTION INC. et al.
1 Div. 555.
Supreme Court of Alabama.
February 19, 1970.
*897 Inge, Twitty, Duffy & Prince, Mobile, for appellant.
No brief filed, for attorney.
HARWOOD, Justice.
John W. Lowery filed a complaint in the Circuit Court of Mobile County against Koppers Company, Inc. A jury trial was demanded.
As finally amended the complaint contained four counts, and demurrers were overruled to Counts 1, 2, and 3, and sustained as to Count 4.
The three counts as to which demurrers were overruled allege that Lowery was an employee of Gulf Welding and Construction, Inc., which was a sub-contractor of Koppers; that Koppers was engaged in erecting a paper mill near Prattville, Alabama, and Gulf Welding was employed as a sub-contractor by Koppers to erect precipitators at the plant from materials supplied by Koppers.
The counts respectively further aver that Koppers negligently failed to inspect some of the materials delivered to Gulf Welding resulting in improper securing of part of the materials (Count 1), or that Koppers negligently packed some of the materials which as a consequence were improperly secured (Count 2), or negligently failed to secure some of the materials delivered to Gulf Welding (Count 3).
Each count avers that as a proximate result of the negligence as asserted in the respective counts, the plaintiff (Lowery) was injured, his physical injuries, and certain special damages being catalogued. Damages of $300,000 were claimed.
After the demurrers were overruled as to Counts 1, 2, and 3, Koppers filed three pleas to the complaint, as last amended. Pleas 1 and 2 were in effect pleas of the general issue, and plea 3 asserted that Lowery's injuries were the proximate result of his own negligence.
Apparently at the same time, Koppers filed a "Motion for Leave to Bring in Third Party Defendant." Both the pleas and the motion for leave, etc., are marked "Filed on October 19, 1967, 4:08 P. M."
A copy of Lowery's complaint against Koppers and a copy of the contract between Koppers and Gulf Welding were attached to the third party complaint as exhibits thereto, and a jury trial was demanded on the third party complaint.
*898 A copy of the third party complaint and exhibits attached thereto was served on Gulf Welding on 24 October 1967.
However, the record shows the following order entered by the court on 17 November 1967:
Nevertheless on 21 November 1967, Gulf Welding, appearing specially, and as third party defendant, filed a document labeled "Plea in Abatement." This plea was based on six grounds, which raise the point that the third party complaint fails to assert facts upon which Gulf Welding might be liable, and that the third party cause of action sought by Koppers is not within the purview of Act 854 adopted by the Alabama Legislature during its Regular Session in 1965, which Act may be found as Article 11A, Secs. 259(1)-259(3), Title 7, Code of Alabama 1940 (Pocket Part). Said Article 11A pertains to cross-claims and third party practice. It was also prayed that the third party summons and complaint be quashed, and the cause abated.
Koppers filed a demurrer to the plea in abatement on 28 March 1968. On 30 May 1968, the demurrer was overruled, following which a hearing was had on the plea in abatement and the court entered an order on the same day, i. e., 30 May 1968, sustaining the plea, dismissing the third party complaint, and decreed that Gulf Welding "go hence without day, and have and recover of the third party plaintiff (Koppers) all costs in this cause created for recovery of which let execution issue." (Par. our.)
Thereafter Koppers filed a motion to have the court reconsider its order sustaining the plea in abatement, asserting that by such order Koppers was denied its right to a jury trial on said plea, which had been demanded on the third party complaint.
After a hearing the court denied the motion for reconsideration, with an opinion, on 11 July 1968.
Koppers then filed a motion for rehearing which was denied 5 September 1968.
Thereafter Koppers filed an appeal from the orders of 30 May 1968, and 11 July 1968, and also filed in this court petitions for a writ of mandamus in the alternative directed to Hon. Will G. Caffey, as Judge, commanding him to reinstate the third party complaint, or show cause why he should not so do.
Counsel for Koppers state that this dual procedure was followed in that it was unclear as to what procedure should be used in order to have the matter reviewed.
In brief counsel for appellant contends that the court erred in abating the third party complaint in that Koppers was thereby deprived of a jury trial on the plea in abatement, and of its right to indemnity by Gulf Welding under the contract between Gulf Welding and Koppers, should Lowery recover a judgment against Koppers in his suit against Koppers. Counsel further contends that the court erred in its orders of 30 May 1968, and 11 July 1968, in holding that the third party complaint did not state a cause of action within the purview of Act 854, above mentioned.
We do not consider that any of these points are before us for the reasons hereinbelow set out.
As before stated, the third party proceedings were ordered withdrawn on Koppers' motion on 17 November 1967. From that time on Gulf Welding was out of this case.
For this reason we are baffled by the proceedings processed subsequent to the order withdrawing the third party complaint, namely, the plea in abatement, the motion for reconsideration, the motion for *899 rehearing, etc., and the orders entered pursuant to such proceedings. The childrens' jingle, "King William was King George's son, And from the royal race he run" would seem fit to describe these procedural maneuvers subsequent to the removal of the third party proceedings.
Jurisdiction is always fundamental, and if there is no jurisdiction over the person, and over the subject matter or cause of action, there is no power in the court to act. Norton v. Liddell, 280 Ala. 353, 194 So. 2d 514; B. F. Goodrich Co. v. Parker, 282 Ala. 151, 209 So. 2d 647. Jurisdiction over subject matter cannot be conferred by consent of the parties. Humphrey v. State, 1 Minor 64; Ex parte Phillips, 231 Ala. 364, 165 So. 80; City of Huntsville v. Miller, 271 Ala. 687, 127 So. 2d 606.
The third party proceedings were injected into this case by Koppers. They were removed therefrom on Koppers' motion. Thereafter there was no jurisdiction in the court to consider this facet of the case.
The court did, however, sustain the plea in abatement filed to the third party complaint and make other rulings to the same end. These orders and rulings were functus officio and of no legal significance, the matter not then being before the court. Even so, the orders which in effect abated the third party complaint merely accorded to Koppers' action in withdrawing the same. Having withdrawn the third party complaint, we can conjure up no reason why Koppers should now consider itself in position to complain of the very result it invited by its motion of withdrawal which was granted by the court.
Since in our opinion the orders of 30 May 1968, and 11 July 1968, are void, no appeal from the orders could be had. It would therefore appear that the attempted appeal in this case should be dismissed.
The petition for a writ of mandamus in the alternative is likewise due to be denied for the reasons set forth above.
Appeal dismissed; petition for writ of mandamus in the alternative denied.
LAWSON, SIMPSON, MERRILL and MADDOX, JJ., concur. | February 19, 1970 |
e6e2428d-3daf-40c7-b57b-da19034812bc | Thompson v. Havard | 235 So. 2d 853 | N/A | Alabama | Alabama Supreme Court | 235 So. 2d 853 (1970)
Nollie THOMPSON
v.
Ross HAVARD et al.
1 Div. 595.
Supreme Court of Alabama.
May 15, 1970.
*855 M. A. Marsal and Howell, Johnston, Langford & Finkbohner, Mobile, for appellant.
Richard W. Vollmer, Jr., Ralph Kennamer, Mobile, for appellees.
McCALL, Justice.
The appellant, Nollie Thompson, who was the plaintiff in the lower court, sued for personal injuries and damages to himself allegedly caused as a proximate result of the combined negligence of the owner of an automobile, Mrs. E. S. Havard, and of the driver, Ross Havard. The gravamen of the action is that the defendant, Mrs. Havard, entrusted her automobile to her son, Ross, to operate, knowing at the time that he was a dangerous and competent driver, that the said Ross Havard so negligently drove or operated the said automobile as to run it into an automobile in which the plaintiff was a passenger, and as a proximate result of the combined negligence of both defendants, the plaintiff, Thompson, sustained serious and permanent personal injuries and damages.
Judgment was rendered against Ross and in favor of the defendant Mrs. Havard. The plaintiff appeals from the latter judgment. There is no appeal by the defendant Ross Havard nor has the appellee, Mrs. Havard, cross-assigned any error upon the record brought up by the appellant Thompson.
*856 The appellant's first two assignments of error complain of the court's giving the appellee's requested written charges No. 9 and No. 12. While the appellee insists on the correctness of each of these charges, she argues more stringently that giving them was without error to the appellant, because the trial court should have given the general affirmative charge which she requested at the close of the evidence for the plaintiff in chief at which time the appellee also rested. The appellee contends that the plaintiff failed to establish his case against her even by a scintilla of evidence. She cites the rule that where a losing party is not entitled to recover in any event, he cannot complain of error in the giving of any other charges to the jury, insisting that such, at most, would be error without injury. Coe v. Louisville & Nashville R. R. Co., 272 Ala. 115, 117, 130 So. 2d 32; Cummings v. Caldwell, 276 Ala. 375, 378, 162 So. 2d 470. When the plaintiff, upon whom lies the burden of proof, fails to make out his case, it is not incumbent upon the defendant to introduce any evidence, and his failure to do so should not create inference for the purpose of making out a case for the plaintiff after he has failed to make out one for himself. Southern Ry. Co. v. Gullatt, 150 Ala. 318, 43 So. 577.
On this point of whether or not Mrs. Havard was entitled to the affirmative charge as she contends for, we have reviewed all of the plaintiff's evidence offered to the point in the trial, when he rested his case, and appellee rested her case, to determine if there was any evidence or inference therefrom, which warranted submitting the case to the jury.
Pertinent testimony introduced by the plaintiff was that the automobile which the defendant, Ross Havard, was driving when it collided with the vehicle in which the plaintiff was riding, was at that time registered in the name of the defendant, Mrs. E. S. Havard, whose address was the same as that of the defendant, Ross Havard, her son. This proof of registration created a rebuttable presumption that Mrs. Havard was the owner of that automobile. Stanley v. Hayes, 276 Ala. 532, 165 So. 2d 84; State Farm Mut. Auto. Ins. Co. v. General Mut. Ins. Co., 282 Ala. 212, 210 So. 2d 688. Our decisions hold that proof of ownership of a motor vehicle causing injury raises a rebuttable presumption that the person in the possession and control of that vehicle was the agent or servant of the owner, and was acting within the line and scope of his employment. Rogers v. Hughes, 252 Ala. 72, 39 So. 2d 578, and cases cited.
We think that if such a rebuttable presumption of agency arises from proof of ownership, it follows as a logical corollary, that a rebuttable presumption of entrustment or gratuitous bailment arises that the vehicle was rightfully in the possession of and being operated by the driver with the permission of the owner, though not necessarily for the latter's benefit. The purpose for which the vehicle is being used by the driver to whom it was entrusted is not important or controlling in such a case. What counts is that the possession and control of the vehicle was placed or entrusted to the driver with the consent of the owner.
While these presumptions, which arise from proof of ownership, are said not to be evidence in themselves, they nonetheless, serve as evidence until rebutted by strong, clear and undisputed evidence offered by the defendant that the driver of the vehicle at the time of the collision was not the agent of the defendant owner, or was not operating the vehicle with her permission or consent. Rogers v. Hughes, supra; Tullis v. Blue, 216 Ala. 577, 114 So. 185; Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897.
When the plaintiff rested, the defendant, Mrs. Havard, rested also without putting on rebuttal evidence, thus, the plaintiff had no need to offer further proof that Ross Havard was operating the automobile *857 of the defendant, Mrs. Havard, at the time of the collision with her permission.
The next question is, was there evidence that this defendant's son was a dangerous and incompetent driver when she entrusted her automobile to him with her permission to operate it, and if so, did she know of his incompetence to drive an automobile?
To prove Ross' incompetence to drive, the plaintiff, over Mrs. Havard's objection, introduced into evidence, in its deleted form as altered by the trial court, a certified document from the records in the State of Alabama Department of Public Safety, of the driving record of the defendant. This exhibit revealed that Ross Havard was nineteen years of age when the accident occurred, that his original driver license was issued to him on January 7, 1964, about three years prior to the accident and that during that period of time he was charged with, convicted of and fined for the following offenses, viz: speeding in Washington County on September 11, 1964; speeding in Mobile County on December 17, 1964; speeding in Mobile County on January 5, 1965; speeding in Mobile County on January 20, 1965; speeding in Clarke County on April 16, 1965; traffic signal violation in Baldwin County on May 9, 1965; driving without a driver license in Mobile County on November 2, 1965; speeding in Clarke County on July 15, 1966; speeding in Mobile County on March 1, 1967; speeding in Mobile County on March 22, 1967; reckless driving reduced from driving while intoxicated in Tuscaloosa County on April 17, 1967. In all there were eleven moving violations of which this defendant was convicted within approximately three years prior to the accident complained of.
As to the sufficiency of this evidence to take the issue of driver incompetency to the jury, the case of Broesche v. Bullock, 427 S.W.2d 89, 93, (Tex.Civ.App.1968) is in point. In that case the appellant driver was a minor twenty years of age. He was first licensed to drive when he was sixteen and had been driving for about three years when the accident occurred. In that brief time, the opinion states, he had been cited and paid fines for seven moving traffic violations and had received a letter from the Department of Public Safety, reprimanding him for his driving. He had received a speeding ticket in October of 1962, a speeding ticket in January of 1963, a warning letter from the Texas Department of Public Safety in April 1963, a speeding ticket in December 1963, a ticket for contest of speed in March of 1964, and a speeding ticket in October 1964. In addition, he had received a ticket for running a red light in March 1964. The court said:
The facts in that case and those of the present are not greatly different. But where there is variation, the variation weighs further against the competency of the defendant, Ross Havard. We hold under the evidence that the question of his competency or incompetency to operate the automobile, when entrusted to him, was one of fact for the jury to decide.
We pass now to the issue of scienter on the part of Mrs. Havard, that is, whether she knew of her son's driving tendencies, *858 or from the existing circumstances could or should have known of them by the exercise of due diligence.
In our judgment the rule is well stated in Gardiner v. Solomon, 200 Ala. 115, 117, 75 So. 621. We have examined the record of this case and find that the defendant's mother who was the entrusting party testified that she had had no notice that her son was a reckless, careless, negligent or heedless driver. Nor was there any proof to show she had any actual notice of such tendencies. The court said:
In the master and servant relationship, the master is held responsible for his servant's incompetency when notice or knowledge, either actual or presumed, of such unfitness has been brought to him. Liability depends upon its being established by affirmative proof that such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. It is incumbent on the party charging negligence to show it by proper evidence. This may be done by showing specific acts of incompetency and bringing them home to the knowledge of the master, or by showing them to be of such nature, character, and frequency that the master, in the exercise of due care must have had them brought to his notice. While such specific acts of alleged incompetency cannot be shown to prove that the servant was negligent in doing or omitting to do the act complained of, it is proper, when repeated acts of carelessness and incompetency of a certain character are shown on the part of the servant to leave it to the jury whether they would have come to his knowledge, had he exercised ordinary care. First National Bank of Montgomery v. Chandler, 144 Ala. 286, 307, 39 So. 822.
We think that the driving offenses, the convictions, and the fines against Ross Havard were of such nature, character, and frequency, that when considered with his child relationship and residence with his mother, Mrs. Havard, constituted circumstances justifying the submission to the jury of the question of whether the acts came to her knowledge, or would have, had she exercised reasonable care.
Having decided that the defendant was not entitled to the affirmative charge, we consider charges No. 9 and No. 12. In our opinion the trial court erred to reversal in giving the appellee's requested written charge No. 9 reading as follows:
This charge was given to the jury with the portion emphasized as indicated above. Under this charge, in order to hold Mrs. *859 Havard liable, the plaintiff would be burdened with having to prove either that she knew that Ross' driving would injure someone or that it probably would injure someone. We cannot assume that the jury accorded this charge any meaning different from the import of its plain langugage. Molloy v. Mitchell, 223 Ala. 666, 137 So. 896. The charge misstates the law of the case with respect to both the burden of proof cast on the plaintiff as a predicate to his right to recover and the measure of duty owed by Mrs. Havard to the plaintiff. In the case of Reaves v. Maybank, 193 Ala. 614, 626, 69 So. 137, it is said:
The court erred in giving at the defendant's request written charge numbered 9.
Charge 12 is bad because it requires Mrs. Havard to have knowledge of her son's past operation of motor vehicles, when the plaintiff only needs to reasonably satisfy the jury by the evidence that she knew of her son's incompetency to operate an automobile, or that had she exercised due or reasonable care, she would have known of it.
The plaintiff did not object or except to the court's deleting portions of the driving record of Ross Havard. Further, the record shows that the plaintiff had not up to that point tendered the document as an exhibit. He tendered the driving record after it was altered and it was thus received in evidence. The trial court will not be put in error unless the matter complained about on appeal was called to its attention by objection or by other appropriate method. Rice v. Hill, 278 Ala. 342, 178 So. 2d 168; State v. Boyd, 271 Ala. 584, 126 So. 2d 225.
Since the separate objections raised by appellant's assignments of error Nos. 4, 5 and 6 relate to matters which probably will not arise again on a retrial of this case, we express no opinion on them.
While we have held that wide latitude should be accorded the parties in their voir dire examination of prospective jurors touching their qualifications, interest or bias, the extent of the examination is largely discretionary with the trial court. Roan v. Smith, 272 Ala. 538, 133 So. 2d 224, and cases cited therein. We think that disallowing the questions: "* * * whether any juror's son or daughter in the family are permitted to use alcoholic beverages while under the age of twenty-one" and "* * * whether any juror has a member of the familyhas a daughter or a son that has been involved in an automobile accident" was not an abuse of discretion.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and BLOODWORTH, JJ., concur.
COLEMAN, J., concurs in the results. | May 15, 1970 |
e0183208-d2f8-4a1e-85e9-ad8da3a3d0b4 | Rabren v. Mudd | 234 So. 2d 549 | N/A | Alabama | Alabama Supreme Court | 234 So. 2d 549 (1970)
Harvey L. RABREN, etc., et al.
v.
Joseph P. MUDD.
6 Div. 648.
Supreme Court of Alabama.
April 16, 1970.
*550 MacDonald Gallion, Atty. Gen., Willard W. Livingston, Asst. Atty. Gen. and Counsel, Dept. of Revenue, and William H. Burton, Asst. Atty. Gen. and Asst. Counsel, Dept. of Revenue, for appellants.
Sirote, Permutt, Friend & Friedman, and William G. West, Jr., Birmingham, for appellee.
HARWOOD, Justice.
In the proceedings below Joseph P. Mudd filed a declaratory proceedings averring that he was a bona fide domiciliary of Delray Beach, Florida, and had been since 8 November 1963, and up to the time of the filing of the bill. He averred that the respondents, as officials of the Revenue Department of the State of Alabama, made *551 a demand on him for copies of his individual Federal income tax returns for the calendar years 1964 through 1967, asserting that he was a domiciliary of Alabama, and as such was required to file individual income tax returns with the Alabama Department of Revenue for those years.
The bill further avers that the respondents would proceed to make a final assessment against him for income tax claimed by the State of Alabama to be due by him for the above mentioned years; that the respondents would proceed to make an illegal assessment against him for income taxes for the above mentioned years unless restrained by the court; that to avoid expensive and lengthy conferences and hearings and court proceedings and to avoid irreparable damage which the complainant might sustain, the bill prayed for a declaratory judgment decreeing that the complainant was a bona fide domiciliary of Florida for the period above mentioned and to the time of the filing of the bill, and that as such non-resident of Alabama, he is not subject to the income tax laws of the State of Alabama.
It is further prayed that the respondents be restrained and enjoined from assessing or attempting to assess from the complainant income taxes under the laws of the State of Alabama for the above mentioned years. The bill further prayed for general relief.
The answer filed by the respondents in general denied the assertions in the bill that the complainant was a bona fide resident for Florida, and further denied that they had informed the complainant that he would have to pay income taxes to the State of Alabama for said years, or that the respondents, at the time of the filing of the bill, have made either a tentative or final assessment of income taxes against the complainant for the years mentioned above. The answer admits that there is a justiciable controversy existing between the complainant and the respondents.
At the hearing below Mr. Mudd testified that he had lived in Birmingham for a long number of years, and had practiced law in that city for some 50 years. He retired from the practice of law in 1963. For some time prior to 1963, he had been negotiating with a prospective purchaser the sale of his stock and the stock owned by other members of his family in the Western Grain Company. This sale was consummated on 29 February 1964, the sale price being over nine million eight hundred thousand dollars for the "Mudd" stock.
Mr. Mudd testified that in November or December 1963, he moved from Birmingham and established his domicil in Delray Beach, Florida.
As tending to show his intention to abandon his Alabama domicil and to acquire a Florida domicil, Mr. Mudd, as complainant, introduced the following evidence:
1. In November 1963, he filed with the proper officials in Florida a sworn declaration to the effect that he was a domiciliary and citizen of Florida, and had no intention of returning to his former domicil. This declaration was in connection with his desire to register to vote in Florida which could not be accomplished until he had been domiciled in Florida for one year. He did later register as a voter in Florida.
2. In 1963, he requested the First Presbyterian Church of Birmingham to transfer his membership to a Presbyterian church in Delray Beach, Florida.
3. In 1963, he had the tax assessor's office in Jefferson County, Alabama, remove the homestead exemption he had theretofore claimed on the home he had occupied in Birmingham.
4. On 3 December 1963, Mr. Mudd wrote the Board of Registrars of Jefferson County requesting that the Board remove his and his wife's name from the list of qualified voters in Jefferson County, Alabama, for the reason that they had recently *552 moved their permanent residence and domicil to Florida.
5. On 31 December 1963, Mr. Mudd opened a bank account in a bank in Delray Beach, Florida, and has continued to use this account to the time of the filing of the suit. He had no active checking account in Birmingham thereafter.
6. In November 1963, Mr. Mudd wrote the Birmingham Country Club requesting that they classify him as a non-resident member as he had moved his residence to Florida.
7. After going to Delray Beach, he joined the Seagate Beach Club in Delray Beach.
8. In December 1963, Mr. Mudd executed a written document conveying to his former associates in their law firm the office furniture, equipment, and good will, reciting in such conveyance that he had retired from the law practice and moved his permanent residence and domicil to Delray Beach, Florida.
9. On 14 March 1964, Mr. Mudd forwarded to the Alabama Department of Revenue, Income Tax Division, his income tax returns for the period 1 January 1963 to 8 November 1963. In the covering letter, with such return, Mr. Mudd stated that he had "taken up permanent residence in Florida and this will be our final income tax return."
10. In March 1964, Mr. Mudd executed before three Florida witnesses in Delray Beach, a last will and testament. In this document he described himself as being a resident of Florida.
11. In February or March 1964, after an examination, Mr. Mudd was issued a Florida driver's license.
12. From 1964 to the time of the hearing, Mr. Mudd filed his Federal income tax returns with the Director of Internal Revenue for Florida, and in such returns listed himself as a resident of Florida.
The evidence further shows that after a short stay at a hotel or motel in Delray Beach, Mr. Mudd rented a furnished home in which he and Mrs. Mudd resided from 1 January to May 1964, but returned to Birmingham in connection with litigation in which he was involved. We note here that Mr. Mudd during the period of time in question, was involved in complex and practically continuous litigation in both State and Federal courts concerning his financial affairs, and matters pertaining to the Western Grain Company. All of these matters related largely to the question of taxes to be paid either the State or the Federal government.
The title to the house in which he and Mrs. Mudd had occupied as their home in Birmingham was in Mrs. Mudd's name. This house has never been sold and Mrs. Mudd conveyed an interest therein to each of their children. The expenses of maintaining the house, such as electric bills, gas bills, yard maintenance, etc., have been paid by Mr. Mudd. The telephone in the home was not disconnected.
At the times Mr. Mudd would be in Birmingham, he would occupy the house. It also appears that the children of Mr. and Mrs. Mudd, who were non-residents of Birmingham, would also occupy the house from time to time.
The evidence presented by the respondents below was directed largely toward the fact that the home in Birmingham had never been sold after the departure of Mr. and Mrs. Mudd for Florida, but had been maintained for occupancy.
It was also shown that Mr. and Mrs. Mudd had renewed their Alabama driver's licenses first obtained in 1939, during the time they were in Florida and that Mr. Mudd's name appeared on an inner door of an office in his former law firm. However, Mr. Mudd testified he had his name removed on the entrance door of the law offices, and from the directory in the lobby of the building. The office on which his name appeared was one he used when in *553 Birmingham and for which his former associates charged him no rent. He further testified that since 1963, he has received no fees in connection with the legal business done by his former partners or associates, and has done no legal work of any sort in Alabama other than that connected with his personal affairs.
It was also shown that since May 1965, Mr. Mudd has not returned to Florida. Since that time he and Mrs. Mudd have travelled extensively in Europe, have spent some time in North Carolina, and have also been in Birmingham during which time they occupied their former home.
After hearing, the Chancellor entered a decree. He found and decreed that Mr. Mudd was domiciled in Florida, during the period in question, and further that he did not transact any business or professional activity or realize any income within the State of Alabama.
In brief counsel for the appellants state:
Appellants have made three assignments of error. Assignments 1 and 2 are to the effect that the court erred in decreeing that Mr. Mudd was a domiciliary of Florida during the period in question. Assignment 3 asserts error in the action of the court in decreeing that Mr. Mudd "did not transact any business or professional activity or realize any income within the State of Alabama."
A domicil of one sui generis is in its nature an abstract or metaphysical concept. Clearly there must be physical presence in the chosen place coupled with an intent to make such place one's home. Many factors can enter into determining the intent portion of the definition, and difficulty often arises in the relative importance to be attached to each factor. Emphasis on one or the other factor can produce differing results.
Because it embodies the intent of an individual, an inclusive definition of domicil, workable in every case, has been difficult to construct. In the leading case of Merrill's Heirs v. Morrissett, 76 Ala. 433, domicil is defined as follows:
To the same effect see Ex parte Bullen, 236 Ala. 56, 181 So. 498; Ex parte State ex rel. Altman, 237 Ala. 642, 188 So. 685; Mitchell v. Kinney, 242 Ala. 196, 5 So. 2d 788.
In order to acquire a domicil of choice there must be an intent to abandon a present domicil with no present intention to return, and the establishment of another place of residence with the intention to remain permanently, or at least, for an unlimited time, and the intent to remain permanently may be inferred from the intent to remain for an unlimited time. It consists of an act done with an intent. Holmes v. Holmes, 212 Ala. 597, 103 So. 884; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Merrill's Heirs v. Morrissett, supra.
When once established, a domicil continues until a new one is acquired. Glover v. Glover, 18 Ala. 367; Daniel v. Hill, 52 Ala. 430; McLeod v. Adams, 218 Ala. 424, 118 So. 636; Mitchell v. Kinney, supra.
Measured by the above governing principles, we think the overwhelming preponderance of the evidence dictated the court's conclusions and decree that Mr. Mudd established his domicil in Florida in the latter part of 1963, and that Florida *554 continued to be his domicil from that time until the time of the hearing below.
Counsel for appellants contend that the papers, documents, and declarations introduced in behalf of Mr. Mudd, are nothing more than self-serving declarations.
Ordinarily a party cannot make evidence for himself by his own declarations unless they constitute part of the res gestae, and such declarations if self-serving are not admissible in evidence. Mallory v. Mallory, 272 Ala. 464, 131 So. 2d 703, and cases cited therein.
However, oral or written declarations of a party whose domicil is in question, accompanying an act relative to show domicil, and in explanation of the act, such as the party's declarations on leaving his former domicil, or while journeying to his new abode, or after arriving there, are admissible as res gestae evidence. Such declarations are explanatory of his departure from his old domicil, of his presence in his alleged new domicil; such declarations shed light on his intent both to abandon his old domicil and to acquire a new one. Griffin v. Wall, 32 Ala. 149; Mitchell v. Kinney, supra; Ambrose v. Vandeford, 277 Ala. 66, 167 So. 2d 149.
Counsel for appellants further contend that heavy emphasis should be accorded inference that Mr. Mudd's change of domicil was motivated by a desire to avoid payment of income taxes in Alabama.
In Young v. Pollak, 85 Ala. 439, 5 So. 279, the lower court had charged the jury that if Young had removed to Alabama for the purpose of escaping arrest in Georgia, he would not acquire a domicil in Alabama. This charge was held erroneous, as, "men change their domicils with very varying purposes or motives," and if the move he made with the intent that the new habitation be permanent, or of indefinite duration, the motive for the change is not the pivot on which the inquiry turns.
If the evidence going to intent to establish a domicil is more or less balanced pro and con, the motive factor may be considered to the extent it may shed light on the true intent of the person to establish a domicil. See 25 Am.Jur.2d "Domicil," Section 28. It would appear from a reading of the cases that this principle has been largely limited in application to divorce actions where the stay of the complainant in the granting state was only long enough to satisfy the residence requirements required by the granting state.
We are of the conclusion that assignments of error 1 and 2 are without merit. Particularly is this so when it is remembered that this case was heard ore tenus and that there was ample relevant, material, and legal evidence to support the conclusions of the trier of fact.
In support of assignment of error No. 3, counsel for appellants contend that the court erred in decreeing that Mr. Mudd transacted no business and performed no legal services in Alabama after 1963, for which he received compensation, in that the appellants were precluded from going into these matters.
This contention arises from a statement made by the court after sustaining appellee's objection to a question as to whether the price paid for the Western Grain stock was all profit. In explaining his ruling the court stated:
Counsel for appellants then withdrew the question.
The court then pointed out that evidence of the sale of the Western Grain stock had been received in evidence, and that off hand the court could not see that the profits, if any, in the sale of the stock could be *555 material to the issue (of domicil). Counsel for appellants then stated: "I have withdrawn that part relating to any profit or anything."
We assume the court's views were influenced by the provisions of Section 384.5d of the Regulations promulgated by the Alabama Department of Revenue which provide among other things:
The record further shows, however, that during the cross examination of Mr. Mudd by counsel for the appellants, he was examined extensively as to whether he had performed any legal services, or transacted any business in Alabama after 1963, for which he received any compensation. Mr. Mudd's testimony along this line was that he had not.
At one point during this phase of Mr. Mudd's cross examination counsel for Mr. Mudd observed, "We have no objection to the services Mr. Mudd did in Alabama if it's pertinent." To this the court replied, "Well, I can see how it might be a tie in with the question we are trying to decide in this case. I admit it is tedious, but it does exist. And for this reason I will overrule your objection. Go ahead."
We cannot see that counsel for appellants were precluded from going into the question of whether Mr. Mudd had received any compensation for services or transactions rendered or done in Alabama after 1963. In fact, this issue was thoroughly injected into evidence by the cross examination of Mr. Mudd. No evidence contradicting Mr. Mudd's testimony along this line was presented by the appellants.
While there were no allegations in the bill stating that Mr. Mudd had not rendered legal services or engaged in transactions in Alabama after 1963, and had received no compensation from such endeavors, such matters were injected into, and made an issue by the appellants in the hearing. Any possible defect or error in the pleading in this regard was thus cured, the court having jurisdiction of the parties and the subject matter. Turner v. Turner, 261 Ala. 129, 73 So. 2d 549.
The court was therefor warranted in considering this aspect of the case, and entering a decree thereon.
We find no merit in assignment of error No. 3.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and MADDOX, JJ., concur. | April 16, 1970 |
adab326f-3ea0-428b-bdd3-9f0a258d3c8d | Bendall v. Home Indemnity Company | 238 So. 2d 177 | N/A | Alabama | Alabama Supreme Court | 238 So. 2d 177 (1970)
Farris Wilkerson BENDALL
v.
The HOME INDEMNITY COMPANY, a Corp.
8 Div. 269.
Supreme Court of Alabama.
June 25, 1970.
*178 Hopper & Hornsby, Huntsville, for appellant.
Ford, Caldwell, Ford & Payne, and W. Stanley Rodgers, Huntsville, for appellee.
COLEMAN, Justice.
One of the respondents, to a bill for declaratory relief, appeals from the final decree, wherein the court declared that an automobile liability insurance policy is void and that the insurer is not liable to defend the named insured, or the other defendants, in an action brought against them by appellant, or to pay any judgment which appellant may recover in the action. The reason for the trial court's holding is a finding that the named insured had no insurable interest in the liability coverage of the policy.
The complainant is a corporation, which is authorized to write automobile liability insurance policies. Complainant will sometimes be referred to as insurer.
There are four respondents. Two of them are H. O. Davis, Jr., and his wife, Susie Randolph Davis, both of whom are over the age of twenty-one years. A third respondent is Wanda Faye Randolph McCutcheon, who is a married woman and is twenty years old. She was not married at the time the policy was issued. Wanda is the sister of the respondent, Mrs. Davis. The fourth respondent is Farris Wilkerson Bendall who is over the age of twenty-one years. Bendall is the appellant. The other respondents have been cited to join in the appeal but have filed no brief.
In paragraph 4 of the bill, complainant alleges that it ".... entered into a contract of automobile liability, medical payments, comprehensive, and collision insurance with the Respondent Susie Randolph Davis, who is the wife of H. O. Davis, Jr. and is designated in the declarations of said policy as Mrs. H. O. Davis, Jr., to extend for a period of one year, beginning August 17, 1963, and expiring August 17, 1964. Said policy of insurance declares that Mrs. H. O. Davis, Jr. is the named insured....." Complainant further avers that the policy declares that the description of the "owned automobile" is a "1959 Ford 2 Dr....." identified by a stated motor number.
In paragraph 5, complainant avers that by the policy provisions, insurer agreed to pay on behalf of insured, subject to terms of the policy, all sums insured shall become legally obligated to pay as damages because of bodily injury sustained by any person and property damage arising out of ".... the ownership, maintenance or use of the owned automobile ....," and to defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the policy. The policy further provides that the insureds under the policy, with respect to the owned automobile, are the named insured and any resident of the same household and any other person using such automobile with permission of the named insured.
In paragraph 6, complainant avers that the policy defines "owned automobile" as the automobile ".... described in this policy for which a specific premium charge indicates that coverage is afforded...."
In paragraph 8, complainant avers that, at time of issuance of the policy and at all times thereafter, the named insured, Mrs. Davis, was not the owner of the automobile described in the policy and that the respondent Wanda Faye McCutcheon was the owner, having purchased the automobile from Dan C. Long in August, 1963.
In paragraph 9, complainant avers that the named insured represented and warranted to complainant that the named insured was the owner of the described automobile when she was not the owner, and that the misrepresentation or warranty was made with actual intent to deceive or increased the risk of loss.
In paragraph 10, complainant avers that on July 1, 1964, while respondent Wanda *179 Faye Randolph McCutcheon was operating the described automobile, she was involved in an automobile accident with the respondent Bendall. In paragraph 11, complainant avers that appellant, Bendall, is plaintiff in an action he has brought against the other respondents, Wanda Faye and Mr. and Mrs. Davis, and that said action arose out of the July 1, 1964 accident.
In paragraphs 12 and 13, complainant avers that there is subsisting an actual controversy between the parties on which substantial property rights are dependent, and that complainant is entitled to a decree declaring rights and duties of the parties under the policy.
Complainant prays for a declaration that the policy is void and that complainant is not liable to defend appellant's action against the other respondents or to pay any judgment rendered against them in that action.
Respondents Wanda Faye and Mr. and Mrs. Davis answered the original bill and admitted its allegations except those of paragraphs 8, 9, 12, and 13, which they denied. In their answer to paragraphs 8 and 9, they also averred that no false representations were made but further that complainant was fully aware of the true ownership of the described automobile.
In his separate answer, appellant admitted the allegations of paragraphs 1, 2, 3, 10, 11, 12, and 13 of the original bill. As to paragraphs 4, 5, 6, 7, 8, and 9, appellant answered that he did not have sufficient knowledge to admit or deny the allegations therein.
Complainant filed an amendment to the bill which made the following changes in it:
Paragraph 9 was amended so as to allege that ".... Susie Randolph Davis, H. O. Davis, Jr., or Wanda Faye McCutcheon...." misrepresented that the named insured was the owner of the automobile;
The amendment added paragraph 9-A wherein complainant alleged that the named insured, Mrs. H. O. Davis, Jr., had no insurable interest in the described automobile at time of issuance of policy or thereafter;
Paragraph 10-A was added, wherein complainant avers that at the time of the accident, Wanda Faye was operating the automobile without permission of the named insured.
The three respondents, Wanda Faye and Mr. and Mrs. Davis, ".... for answer to the complaint as amended say that they deny the averments thereof."
For answer to the amended complaint, appellant says:
After a hearing ore tenus, the court rendered the decree appealed from, in which findings and opinion are set out as follows: "Upon consideration of same the Court finds as follows: That on the 17th day of August, 1963, the Complainant entered into a contract of automobile liability insurance with the Respondent Mrs. H. O. Davis, Jr., also known as Susie Randloph Davis, said policy being for a period beginning August 17, 1963, and expiring August 17, 1964, and said policy was renewed for a period extending from August 17, 1964, to August 17, 1965. Said policy covered the 1959 Ford 2-door automobile described in the original bill of complaint. This Ford automobile covered by the policy of liability insurance was purchased by the Respondent Wanda Faye McCutcheon, was paid for by her and the premiums on the insurance policy were also paid by her. Title to the car was at all times in the Respondent Wanda Faye McCutcheon and she was the registered owner and at no time after she purchased the car was the title thereto in the Respondent, Mrs. H. O. Davis, Jr., or her husband, H. O. Davis, Jr., nor did they claim any interest therein. At the time the Ford automobile *180 was purchased by Wanda Faye McCutcheon a chattel mortgage on said automobile securing a promissory note in the sum of Six Hundred Ninety-Eight and 75/100 ($698.75) Dollars payable to the American National Bank of Bridgeport, Alabama was signed by Mrs. H. O. Davis, Jr., and her husband H. O. Davis, Jr. The president of the American National Bank of Bridgeport, Alabama, who loaned the money on the note and Chattel mortgage also represented the Complainant insurance company and issued the liability insurance policy to Mrs. H. O. Davis, Jr., on the automobile described in the chattel mortgage. He also issued the renewal policy. The policy of insurance came into the possession of the Respondent Wanda Faye McCutcheon shortly after it was issued. On the 1st day of July, 1964, the Respondent Wanda Faye McCutcheon was involved in an automobile accident with the Respondent Farris Wilkerson Bendall while she was operating the Ford automobile described in the policy of insurance issued to Mrs. H. O. Davis, Jr. At the time of said accident the Respondent Wanda Faye McCutcheon was not on any business for the Respondent Mrs. H. O. Davis, Jr., (Susie Randolph Davis) but was on her way from the place where she worked to the place where she lived. The Respondent Wanda Faye McCutcheon knew that the policy of insurance on the automobile was issued in the name of her sister, Mrs. H. O. Davis, Jr., but Mrs. Davis denies having any knowledge that the policy was issued in her name until after the automobile accident and the suit by the Respondent Farris Wilkerson Bendall.
"The Court is of the opinion that the Respondent Mrs. H. O. Davis, Jr., had no insurable interest in the automobile described in the policy of insurance issued in her name nor were the circumstances of the ownership of the car by the Respondent Wanda Faye McCutcheon such that the Respondent Mrs. H. O. Davis, Jr. would be legally responsible for any damages resulting from its use by Wanda Faye McCutcheon at the time of the accident on the 1st day of July, 1964, and the policy of liability insurance issued to Mrs. H. O. Davis, Jr., upon said motor vehicle is invalid and unenforceable. (Ocean Accident & Guarantee Co. v. Bear, 125 So. 676, 220 Ala. 491; Rogers v. Lumberman's Mutual Casualty Co., 124 So. 2d 70, 271 Ala. 348; 44 C.J.S. Insurance, Par. 198, page 896; Annotation: 1 ALR3d 1193; 7 Am.Jur. 2d Par. 13, page 307)."
Appellant has made ten assignments of error and purports to argue eight of them in brief. His argument is in two parts. In the first part he argues in support of five assignments, and, in the second part, in support of three assignments.
Assignment 4 appears to express what appellant is contending in the first part of his argument, to wit: that the court erred in finding that Mrs. H. O. Davis, Jr., the named insured, ".... had no insurable interest in the automobile described in the policy of insurance."
In support of Assignment 4, appellant asserts that the named insured, under the circumstances shown by the evidence, possessed such an interest in the automobile that she had an insurable interest under the liability coverage of the policy.
Some years ago this court had occasion to consider the matter of insurable interest under an automobile liability policy. The court said:
To like effect see: 7 Am.Jur.2d 307, Automobile Insurance, § 13; 1 A.L.R.3d 1193; and 44 C.J.S. Insurance § 198, p. 896. In Blashfield Automobile Law and Practice, Third Edition, Vol. 7, § 291.4, pages 164 and 165, the writer says:
The instant question is: Does the evidence support a finding that Mrs. Davis, the named insured, was not primarily liable for injury to persons or property that might arise out of operation of the described automobile? If the evidence supports such a finding, the court was correct in deciding that the named insured had no insurable interest which would support the liability coverage of the policy.
Mrs. Davis herself testified that she had never owned a 1959 Ford automobile; that Wanda has owned the described automobile; that Wanda purchased it and paid for it; that the car has never been used by Wanda to further any business of Mrs. Davis; that Mrs. Davis has used the car "Half a dozen times, maybe," always with Wanda's permission; that Wanda has never asked Mrs. Davis' permission to use the car; that Mrs. Davis has never limited or attempted to limit Wanda's use of the automobile; that Mrs. Davis has never purchased license plates for the car in her name; that when Wanda paid the sellers for the car, they gave her the old tag receipt and wrote on the back "Sold to Wanda Faye Randolph."
Under these circumstances we are of opinion that the evidence supports a finding that Mrs. Davis, the named insured, did not have such a relation to her sister, Wanda, or the car so that Mrs. Davis was primarily liable for injury to persons or property that might arise out of operation of the car. Clearly, Wanda was not in anywise the agent or employee of Mrs. Davis in operation of the car; the license plate was not issued in the name of Mrs. Davis or transferred *182 to her. We find nothing to show that Mrs. Davis had such abiding interest in the use of the car in her business, or otherwise, that she might become legally liable to others for injuries resulting from its operation.
Mrs. Davis, as signer of the note and mortgage, became liable for payment of the debt to the bank in case of Wanda's failure to pay the debt. If Wanda had failed to pay, and Mrs. Davis had paid the debt, then she would probably have been subrogated to the rights of the mortgagee in and to the automobile as security for the debt; Title 9, §§ 78, 87, Code 1940; Reese v. Mackentepe, 224 Ala. 372, 140 So. 550; and it might be correctly argued that, in her capacity as a surety or guarantor, Mrs. Davis had an insurable interest in the automobile and its continued existence which will support an insurance contract against damage to or loss of the car by fire, theft, or collision as appears to have been provided in the comprehensive and collision coverages D and E in the instant policy. In 48 Columbia Law Review 1162, at page 1171, the writer says:
"....A guarantor of a secured obligation, if held liable, would be subrogated to the lien against the secured property, and so he has been held to have an insurable interest in that property," citing Waring v. Loder, 53 N.Y. 581, which appears to support the writer's statement. "But an automobile liability insurance policy does not cover property loss on the part of the insured owner, as in fire or theft policies." Ocean, supra. Neither, as we see it, does an interest in the continued existence of the automobile free from damage, standing alone, constitute an insurable interest in the risk of loss which may result from liability for injury to the person or property of others resulting from operation of the automobile when the named insured is not shown to be liable for injury which may result from operation of the automobile. We are of opinion that the named insured's interest in the continued existence of the automobile, free from damage to it, standing alone as it does here, is not an insurable interest in the liability coverage of the policy.
Appellant says in brief that the policy was a combination policy covering medical payments, comprehensive, collision, and liability insurance. This appears to be true. The premium statement in the insurance certificate shows that a separate charge was made for each of the separate coverages. It further appears that the insurer had "honored the collision coverage" and had already paid for repair of the insured automobile following the accident of July 1, 1964. Appellant says also:
Appellant says, however:
Appellant cites no authority to support this contention. Appellee states as a proposition of law that:
In Hanover Fire Ins. Co. v. Crawford, 121 Ala. 258, 25 So. 912, this court considered the severability of three coverages of a fire insurance policy and affirmed a judgment allowing insured to recover the *183 value of two subjects covered by the policy but denied recovery for the third subject. The court said:
We hold it is not unconscionable in the instant case to allow payment for damage to the automobile resulting from collision, and to deny coverage under the liability portion of the instant policy where the named insured had no insurable interest in the subject matter of the liability coverage. Reversible error is not shown as to Assignments 1, 4, 6, 9, and 10.
We have carefully examined all authorities cited by appellant, especially Truck Insurance Exchange v. Hanson, 42 Wash. 2d 256, 254 P.2d 494, wherein the court found that a father did have an insurable interest in a liability policy on a truck purchased by his minor son. The court said: ".... The contingency against which the father is insured under the terms of the policy, is liability to third persons arising out of the ownership, maintenance or use of the truck....." (42 Wash. 2d at 257, 254 P.2d at 495) The authorities relied on by appellant do not appear to be contrary to our holding in the instant case.
In part two of argument, appellant argues in support of three assignments of error in which he asserts that the court erred:
The evidence shows that in August, 1963, Wanda was unmarried and under the age of twenty-one years. She desired to buy an automobile and to borrow the money to do so. She went to a bank and talked with the bank's president, F. W. Carr, Jr., who managed the bank and also operated an insurance agency.
Carr testified to the following effect. He represented the appellee. He operated his insurance agency in the bank and did not have a separate office for his insurance business.
On or about August 17, 1963, he made a loan to the respondents, Mr. and Mrs. Davis. The loan is evidenced by a note for $698.75, payable $58.23 a month, secured by the described Ford automobile, and signed by Mr. and Mrs. Davis. Carr filled out the handwritten portion of the note except a line at the bottom "where it says, `Due' ...."
The note was introduced into evidence and shows that Wanda signed her name on the back of the note.
On August 10, 1963, Carr had made a loan to Mr. Davis for $650.00 or § 651.00, without security. The August 10 note was repaid a week later on the 17th.
A few days prior to August 10, Carr had had a conversation with Wanda. She asked Carr would he help finance her purchase of a car. Because she was under 21, he suggested that it would be necessary for someone of age to make the loan, purchasing the car for her. Carr testified as follows:
"Q Do you recall on August 10, 1963, at the time Mr. Davis made a loan, in the amount of §650.00, whether or not Mrs. McCutcheon was present at that time?
"A I don't remember.
*184 "Q Do you recall whether or not at that time any discussion was had concerning the purchase of this automobile?
"A Yes, he knew he was makingnot this particular automobile, but he was making the loan to get money to buy a car and, as best I can remember, he didn't know he might have known what make or maybe he didn't know, at least he didn't know the motor number so I wasn't able to complete the data at that time and he made a temporary note with the understanding that a permanent note would be made when a complete description of the car was known.
"Q At that time, was there any discussion of insurance, that is, on August 10, 1963?
"Q And, if I understand you, on August 17, 1963, Mr. Davis came back to the bank, is that correct?
"Q You recall whether or not Mrs. Davis came to the bank?
"A I don't remember who came to the bank. The record shows one or the other or both of them came, but I don't recall.
"Q When you say the record, is that the note marked Complainant's Exhibit 1?
"A Yes, sir, the note and liability record or ledger.
"Q Prior to the time that the note was executed, had the subject of insurance been discussed with you be any of the parties, that is, Mr. and Mrs. Davis or Mrs. McCutcheon?
"A Not that I recall. Of course, it is customary when you are borrowing money on a car for it to be insured, but I don't remember specifically that subject being mentioned in this case.
"Q Now, subsequent to the time this note was executed, was there a discussion of insurance? Was there a discussion between you and any of the parties involved?
"A I am quite certain there must have been, because I issued an insurance policy.
"Q Do you recall with whom you discussed the subject of insurance?
"A I think it was with Wanda but I am not absolutely sure.
"Q Do you recall whether or not at that time, any statements were made to you concerning the ownership of this automobile?
"A I don't recall any specific statements, no, sir.
"Q Was a policy of insurance issued through your office on that occasion?
"Q Mrs. Davis never told you she was buying an automobile, did she?
"Q And Mr. Davis never just told you that he was buying an automobile, did he?
"A One of the other of them told me they were buying
"Q And you say one of the two of them told you they were buying this car?
"Q But you had talked to Wanda Faye about buying it?
"A That the sister would have to buy it or some adult would have to buy it.
"Q Are you stating that it is your opinion that Mr. and Mrs. Davis were, in fact,
"Q What did they say to you? What did Mr. Davis tell you?
"A I don't remember the conversation. I talked to one of them or both of them. I don't remember.
"Q And you cannot tell us a single word Mr. Davis told you about this transaction?
"Q Do you remember Mr. or Mrs. Randolph telling you
"MR. FORD: If your Honor please, let him finish the statement he was about to make.
"A Of course, you know a person wouldn't walk in a bank and hand me a note and say nothing. I don't remember which one came in but I am certain they said, `Here is the note for the car. I am buying it.'
"A Well, I guess I'll not have to answer. I certainly don't remember two and a half years ago what was said, but there was a conversation because nobody would walk in and hand you a note and say nothing."
Wanda testified that at the time she was in the bank; apparently August 17, 1963; she had a discussion with Carr about the insurance; that Carr filled out the certificate of insurance at that time; that she knew the certificate was being made out in the name of Mrs. H. O. Davis, Jr.; that from August 17, 1963, she had the certificate in her possession; that she purchased the car from Long on August 19, 1963, and had the license tag transferred into her name; that title to the car has never been in her sister's name.
After being shown her pre-trial deposition, Wanda testified that she did show the certificate to her sister as best she can recall.
Wanda testified that she is not sure whether at any time she told Carr that title to the automobile was in her name. She testified:
She also testified that she never told Carr that Mr. and Mrs. Davis were planning to buy the automobile.
There are conflicts in the evidence as to what was said to Carr with respect to who was buying the automobile. It may be that conflicting inferences can be drawn as to whether appellee entered into an insurance contract with the name insured, but that issue was for the trial court, sitting without a jury, to decide. We are not persuaded that his finding is plainly and palpably wrong.
As noted above, complainant alleged in paragraph 4 of the bill that complainant entered into a contract of liability insurance with the named insured. In their answer to the original bill, Mr. and Mrs. Davis and Wanda admitted the allegations of paragraph 4.
Appellant has not shown reversible error as asserted in Assignments 2, 3, and 5.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, BLOODWORTH and McCALL, JJ., concur. | June 25, 1970 |
2aa59016-bc61-4a01-b1bd-02c98b062c4c | Ex Parte Hand | 472 So. 2d 675 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 675 (1985)
Ex parte Thomas J. HAND, III.
(Re Thomas J. Hand, III v. State of Alabama).
83-971.
Supreme Court of Alabama.
February 8, 1985.
Rehearing Denied May 10, 1985.
Lee L. Hale, Mobile, for petitioner.
Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for respondent.
ADAMS, Justice.
We granted certiorari in this case to address petitioner's assertion that his constitutional rights were violated by the trial court, and later by the Court of Criminal Appeals in its affirmance, because a key witness for the defense was prohibited from testifying on his behalf. We hold that his rights were violated, and, therefore, we reverse the judgment of the Court of Criminal Appeals, 472 So. 2d 671.
Petitioner, Thomas J. Hand III, was convicted of theft of property in the first degree and sentenced to 15 years' imprisonment pursuant to the Habitual Felony Offender Act. The events leading up to this conviction are as follows.
On March 24, 1981, Hand, who had repossessed automobiles on numerous other occasions, spotted a gold-colored, 1977 Pontiac Grand Prix with a Texas license plate. Hand suspected that the car was "missing," and called the lienholder, Bob Baker Motors. Hand asked Bob Baker, owner of Bob Baker Motors, if he was missing such a car, and, after receiving an affirmative response, asked Baker if he wanted the car to be repossessed. According to the evidence *676 produced at trial, Baker told Hand not to repossess the car. Hand, however, did take the car from its owner, James Searcy, who admitted that he was behind on his payments. Searcy did not try to keep Hand from taking the car. After being informed that the car had, in fact, been taken from Searcy, Baker attempted to have the car repossessed from Hand, and had Hand arrested for stealing the car.
At trial, defense counsel called Paula Renee Turner to testify. She stated that she was in the car with Hand on March 24, 1981, when he discovered the gold Grand Prix. Further, she said she heard a conversation over the car telephone between Hand and an individual who identified himself as Bob Baker, concerning the repossession of the 1977 Grand Prix owned by James Searcy. When counsel tried to elicit testimony concerning the contents of the conversation, the prosecution objected on the grounds that such testimony was hearsay and, therefore, inadmissible. After several unsuccessful attempts by defense counsel to get the testimony before the jury, the trial court ruled that any testimony by the witness concerning the conversation was inadmissible.
Unable to get the contents of the conversation before the jury through Paula Turner's testimony, Hand then took the stand and testified that Bob Baker had authorized the taking and that he had agreed to pay Hand $500.00 to effectuate the repossession. Hand further testified that he made several attempts to secure his $500.00 payment from Baker, but that Baker refused to comply.
Based upon the evidence presented at trial, the jury found Hand to be guilty as charged.
During the hearing on the motion for new trial, Turner was allowed to testify as to the contents of the conversation between Hand and Baker. The trial court then denied the motion for new trial.
On appeal, the Court of Criminal Appeals agreed with Hand that the testimony of Paula Turner should have been admitted at trial, citing for support several of its prior decisions, as well as McElroy's Alabama Evidence. We agree with the Court of Criminal Appeals' holding in this regard. However, the court went on to say:
For the reasons set forth below, we cannot agree with the court's holding.
First, this holding by the Court of Criminal Appeals is in direct conflict with established Alabama case law. This same issue was addressed by this Court in Spicer v. State, 188 Ala. 9, 65 So. 972 (1914). In Spicer, the defendant attempted to show that he was not involved with the actual murderer in any conspiracy to kill the defendant's wife. The trial court excluded the testimony of the independent witnesses, but allowed the defendant himself to testify regarding the matter, which is the same scenario as the one in the case sub judice. Addressing the contention that the exclusion was "error without injury," this Court stated:
Spicer v. State, 188 Ala. at 32, 65 So. at 979.
To compound the effect of the error, the trial judge, in the charge to the jury, informed them that they were authorized to consider Hand's prior conviction for a crime involving moral turpitude when *677 weighing his testimony. It is very likely that the jury, after hearing such a cautionary instruction, would give the defendant's testimony far less credibility than that of an independent witness.
Not only does the Court of Criminal Appeals' opinion fly in the face of existing case law, but it also infringes upon Hand's Fifth Amendment right to refrain from taking the witness stand. This constitutional guarantee against a defendant's being forced to testify is fundamental to a defendant's right to a fair trial. The trial court excluded the testimony of the only witness, other than the defendant, who could testify on behalf of Hand that he indeed had the authority to take the car. The issue of authority is the central issue in this case. Without Paula Turner's testimony, Hand was forced to choose between remaining silent and, therefore, offering no evidence to contradict the State's contentions, which would almost certainly have led to a conviction, and taking the stand to testify, thus opening up his character to attack on cross-examination. This is not the type of unrestricted choice protected by the Fifth Amendment. Hand was, in effect, compelled to testify in this case. Without his testimony, there would have been no evidence that his actions were authorized and, therefore, not acts amounting to theft.
We cannot allow the trial court to give Hand no choice but to take the stand and testify to facts that could have, and should have, been given by an independent witness. For the reasons stated above, the judgment of the Court of Criminal Appeals is reversed, and the case remanded for a new trial.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur. | February 8, 1985 |
2fe7d7f9-3119-41c5-b171-e9a5c73e88ec | Ex Parte Tisdale | 237 So. 2d 861 | N/A | Alabama | Alabama Supreme Court | 237 So. 2d 861 (1970)
Ex parte James C. TISDALE.
In re CAROLINA CASUALTY INSURANCE COMPANY, a Corporation and Stokley "Tip" Chambers, Individually and d/b/a Stokley Chambers & Co. Insurance Adjusters
v.
James C. TISDALE.
4 Div. 399.
Supreme Court of Alabama.
July 10, 1970.
Tipler, Fuller & Melton, Andalusia, for petitioners.
Albrittons & Rankin, Andalusia, for respondent.
MADDOX, Justice.
Petition of James C. Tisdale for certiorari to the Court of Civil Appeals to review and revise the judgment and decision in Carolina Casualty Insurance Company, a Corporation and Stokley "Tip" Chambers, Individually and d/b/a Stokley Chambers & Co., Insurance Adjusters v. James C. Tisdale, 46 Ala.App. 50, 237 So. 2d 855 (4 Div. 5).
Writ denied.
All the Justices concur. | July 10, 1970 |
57d7e8c3-8727-455c-b6f8-a8a7e1dea146 | Consolidated Underwriters Insurance Co. v. Landers | 235 So. 2d 818 | N/A | Alabama | Alabama Supreme Court | 235 So. 2d 818 (1970)
CONSOLIDATED UNDERWRITERS INSURANCE COMPANY, a Corporation,
v.
Jimmy D. LANDERS et al.
CONSOLIDATED UNDERWRITERS INSURANCE COMPANY, a Corporation,
v.
Ralph MASTERSON et al.
6 Div. 768, 768-A.
Supreme Court of Alabama.
May 15, 1970.
*819 Baker, McDaniel, Hall & Parsons, Birmingham, and John Self, Hamilton, for appellant.
Bill Fite, Hamilton, for appellees.
BLOODWORTH, Justice.
This is an appeal from final decrees in two declaratory judgment actions (consolidated by agreement for trial) declaring that an automobile liability insurance policy issued by appellant Consolidated Underwriters Insurance Company to appellee Sanders Buckner Williams was in full force and effect on March 9, 1968, the date of an automobile accident involving Williams and the other appellees as a consequence of which accident the other appellees filed damage suits against Williams.
The question presented is whether the insurance policy, which on its face expired March 2, 1968, had been renewed prior to *820 March 9, 1968, the date of the automobile accident. We conclude that there is sufficient evidence to hold it had been renewed and that the trial court should be affirmed for the reasons as hereinafter appear.
On March 9, 1968, Williams was driving his 1967 Ford when it collided with a vehicle driven by Ralph Masterson which in turn collided with a vehicle driven by Jimmy Dale Landers, as a consequence of which collision various suits were brought against Williams for damages. Notice of loss was sent to Ben O. Logue Agency, general agent for Consolidated, but Logue denied that Williams was insured by Consolidated at the time of the accident. Williams then filed these two bills for declaratory judgment seeking decrees that the Consolidated policy was in full force and effect on the date of the accident.
The declarations of the policy contained the following provision:
Item 1 shows the expiration date to be March 2, 1968.
The insured, Sanders Buckner Williams, had originally obtained an automobile liability policy with Morrison Assurance Company through Lee Roy Wiginton Insurance Agency at Hamilton, Alabama. When the Morrison Company went out of business and cancelled its policies in December 1967, Ben Logue Agency at Memphis, Tennessee, as agent for Consolidated Underwriters of Kansas City, wired Wiginton that it would like to take over all of Morrison's policies which he had in force. Consolidated policies were then issued to all of Morrison's insureds through Wiginton for the unexpired terms of the Morrison policies in consideration of the return premiums refunded by Morrison.
In December of 1967 Wiginton remitted Williams' refund from Morrison to Logue to pay the premium for the Consolidated policy. Upon receiving from Logue the Consolidated policy here at issue, Wiginton stamped it "Lee Roy Wiginton Insurance Agency" and mailed it to Williams. The policy period was December 30, 1967 to March 2, 1968.
On February 20, 1968, Williams' wife went to the office of the Lee Roy Wiginton Insurance Agency, apparently in response to a letter from Wiginton's office, paid $40, and received a receipt signed "Wiginton Insurance Agency, by June Parrish." The receipt stated the payment was "For Liability Insurance." No written application for a renewal of the Consolidated policy was made at that time, nor does it appear that any written renewal application was ever made to Consolidated. Without objection, Wiginton testified that he assumed that the $40 was paid to his agency for a renewal of the Consolidated policy, though Wiginton did not recall Williams ever stating to him directly that he wanted his insurance renewed with Consolidated. There was no evidence that the offices of either the Ben O. Logue Agency or Consolidated received the $40 payment.
Prior to February 20, 1968, Wiginton received an "EXPIRATION LIST" from the Logue Agency which contained the name, policy number, and expiration date of the several Consolidated policies which had been placed through Wiginton including the Williams' policy. The expiration date given for Williams' policy was March 30, 1968. At the bottom of the "LIST" the following language appeared:
"THIS LIST IS SUBMITTED AS A COURTESY ONLY, AND WE DO *821 NOT ATTEST TO ITS ACCURACY OR COMPLETENESS.
Wiginton testified that he read this language but nevertheless relied upon the expiration dates appearing on the list, as was his custom at that time. Expiration lists were sent out by Logue whenever policy expirations were coming up.
Wiginton testified that he solicited applications for insurance and submitted them to several different insurance companies, frequently through general agents such as Ben O. Logue Agency. Wiginton said he never dealt directly with Consolidated but only through Logue and that he was not a licensed agent of Logue nor of Consolidated. He testified that he was a broker, and that he had no authority to bind coverage orally or by endorsement. Wiginton subsequently solicited applications for Consolidated policies unrelated to the Morrison policies. He sent these applications to Logue, which presumably issued the policies and sent him expiration lists from time to time.
William Langford, regional claims manager for Consolidated, testified that though Logue Agency was a general agent for Consolidated, its actual authority went beyond that of the usual general agent; Logue had authority to issue policies without the approval of Consolidated, to handle claims, and to renew policies. Logue had the responsibility to Consolidated to keep up with issuance of policies, expirations and renewals.
On this appeal, Consolidated contends that the trial court's decree holding the policy in effect on March 9, 1968, ignores the expiration date of March 2, 1968, shown on the face of the policy. Consolidated maintains that the payment of $40 to Wiginton was not effective to renew the policy because the money never found its way to the offices of either Consolidated or Logue Agency and Wiginton was not an agent of Consolidated or Logue. (If he was anyone's agent, appellant says, he was the insured's.) Appellant also seems to argue that even if Wiginton were an agent for Consolidated or Logue, the policy had not been renewed because the money was never clearly earmarked for Consolidated and Williams manifestation of intent to renew was too ambiguous and equivocal to create a contract.
Appellee Williams urges two theories in support of the trial court's decree: (1) that the erroneous date on the "EXPIRATION LIST" estopped Consolidated from denying coverage prior to March 30, 1968; and (2) that the $40 payment to Wiginton renewed the policy. Since we agree with appellee's second theory, we offer no opinion as to the first.
This case was tried before the trial judge and we are, of course, bound to follow our rule that where the trial court hears the evidence ore tenus, we indulge in strong presumptions in favor of the correctness of his decision and such presumptions can only be overcome when it is apparent from the evidence that the judge's decision was palpably wrong and unjust. State v. City Wholesale Grocery Co., 283 Ala. 426, 218 So. 2d 140 (1969); Patterson v. Brooks, 285 Ala. 349, 232 So. 2d 598 (1970).
From the facts and legitimate inferences therefrom, we think the trial court could have found: that Ben O. Logue Agency was a general agent for Consolidated Underwriters Insurance Company, soliciting business, issuing and renewing policies without Consolidated's approval, and handling claims; that the general nature of this business which Consolidated had committed to Logue was such as would necessitate the appointment of subagents to properly carry it out, and that, therefore, Consolidated could be bound by acts of subagents authorized by the general agent Logue; that Logue had given Wiginton express or, at least, apparent authority to solicit insurance, to collect premiums on its behalf, and to deliver its policies; *822 that the $40 payment was for a renewal of Williams' policy with Consolidated; that the provision in the policy concerning renewal is clear and unambiguous and constituted a continuing offer to insure on the part of Consolidated; that Williams' payment of the renewal premium in advance constituted an acceptance of that offer and created a binding contract of insurance which was effective on the date of the accident, March 9, 1968.
If the renewal provision is construed to be ambiguous, it would be subject to the rule that ambiguous language in an insurance policy is to be construed in favor of the insured. Safeco Insurance Company of America v. Banks, 275 Ala. 119, 152 So. 2d 666 (1963). And, the construction would still be in insured's favor.
In reaching our conclusion, we have treated Wiginton's testimony that he was not an agent as inconclusive of that issue. Such testimony is merely to be considered with other evidence in determining whether an agency relationship exists. Roberts & Son v. Williams, 198 Ala. 290, 292, 73 So. 502 (1916).
Consolidated has contended that Wiginton had no authority to act for it nor for Logue, its general agent, and therefore the payment of the $40 does not effect a renewal of the policy.
We have found numerous authorities containing language supporting the general proposition, found in our case of Finch v. Life & Casualty Ins. Co. of Tennessee, 253 Ala. 408, 411, 45 So. 2d 16 (1950), to the effect that the power of the general agent of an insurer to appoint subagents to act with authority for the agent and the principal depends on the general nature of the agency and whether it is such as to require the services of subagents to carry on its business. If so, such business can be conducted by subagents since it is understood that subagents being necessary for these purposes, the principal is bound to have known that subagents would be appointed for such purposes.
We quote from Appleman, Insurance Law & Practice, § 8701:
"§ 160. * * *
"§ 161. * * *
We think Consolidated's argument overlooks these authorities and the numerous cases which have held an insurer liable for the acts of subagents.
In Rommel v. New Brunswick Fire Ins. Co., 214 Minn. 251, 8 N.W.2d 28 (1943), the insurer denied liability on a fire insurance contract. There, P. F. Kelly, acting as agent for E. H. Schacht Agency of Rochester and Red Wing, Minnesota, which was local agent for R. M. Neely Company of St. Paul, which was in turn general agent of the insurer for the state, had solicited an application for fire insurance from the insured, assuring her that coverage commenced at noon on the date of application. Whether this assurance constituted an oral contract binding defendant insurer depended upon whether Kelly were an agent for the insurer and acting within the scope of his authority. The court held that, "* * * the generally accepted rule is that Schacht as such agent had implied authority to appoint such clerks, assistants, and subagents as were deemed necessary for the proper and efficient transaction of his own and defendant's business. * * *"
In Harding v. Norwich Union Fire Ins. Soc., 10 S.D. 64, 71 N.W. 755 (1897), the insured sought recovery on a fire insurance policy for the loss of certain personal property. The policy contained a clause voiding it in the event that the insured property was or became encumbered by a mortgage. There was evidence that the insured had informed the soliciting agent, one Kimball, at the time he applied for the insurance that the subject property was mortgaged. Kimball was an employee of L. W. Stillwell, general agent at Deadwood, South Dakota, for the defendant insurer. Kimball had an arrangement with Stillwell whereby he solicited applications for insurance with defendant insurer, delivered policies, and collected premiums. This was unknown to the insurer. Liability depended upon whether notice of the mortgage to Kimball was notice to the insurer, or, put differently, whether Stillwell was authorized to employ a solicitor with authority to waive the condition of the policy concerning encumbrances. The court held that whether Stillwell had such authority was properly a question for the jury, saying:
Globe & Rutgers Fire Ins. Co. of New York v. Eureka Sawmill Co., 227 Ala. 667, 151 So. 827 (1934), also supports our view. There an insurer attempted to repudiate a fire insurance contract entered into by the *824 son of the insurer's general agent, and we responded:
Here, there was evidence that the general agent, Logue, carried on a large and extensive insurance business, and we think the trial court could find from the evidence that subagents were necessary to a proper transaction of the business committed to Logue. See also, Insurance Co. of North America v. Thornton, 130 Ala. 222, 30 So. 614, 55 L.R.A. 547, 89 Am.St. Rep. 30 (1901); Westchester Fire Ins. Co. of New York v. Green, 223 Ala. 121, 134 So. 881 (1931).
It is no answer to say that the insurer Consolidated did not expressly authorize Logue to delegate any of its authority to Wiginton.[1] The Supreme Court of Appeals of Virginia answered such a contention as early as 1895 in Goode v. Georgia Home Ins. Co., 92 Va. 392, 23 S.E. 744, 745:
It is likewise no answer to say that Wiginton was only the agent for the insured and payment of the $40 was not payment until received by Loguesince we consider the evidence to be such that the trial court could find that Wiginton was a subagent, as we have heretofore pointed out. We quote from 45 C.J.S. Insurance § 629, p. 490, as a sufficient answer to this theory:
We have already indicated that we consider the renewal provision of the policy constituted a continuing offer to insure which was accepted by the insured. We have not found a case with a renewal clause exactly in point. However, other courts have interpreted similar clauses.
In Frank v. Metropolitan Life Ins. Co., 227 Wis. 613, 277 N.W. 643, 645 (1938), the insurer denied liability under an accident policy, claiming that its agent's acceptance of a renewal premium from the insured was not alone effective to renew the insurance contract in the absence of affirmative consent to renew on the part of the insurer. The Supreme Court of Wisconsin held that the following clause, inter alia, constituted a continuing offer to insure:
"* * * `This policy may, with the consent of the company, * * * be *825 periodically renewed upon each successive expiration * * * upon the payment of the premium herein stated, as the premium for such successive renewal.' * * *"
The insured's timely payment of the renewal premium, prior to any revocation of the offer to insure, was held to be an acceptance of insurer's offer, creating a contract. This interpretation of the policy prevailed, it should be noted, despite the phrase, "with the consent of the company" language having no equivalent in the policy here at issue.
In Harwell v. Mutual Ben. Health & Acci. Ass'n, 207 S.C. 150, 35 S.E.2d 160, 162 (1945), the pertinent clauses:
and
were construed even more strongly against the insurer and held to constitute the automobile accident policy there at issue "a continuous non-cancellable contract." It should be noted that this interpretation was reached despite the presence in the policy of a provision that acceptance of any renewal premium should be optional with the insurer.
We do not need to go so far as the Harwell case. We have already indicated that we consider the renewal clause, in the case at bar, constituted a continuing offer to insure on the part of Consolidated which was accepted by the insured's payment to Wiginton Agency, its subagent.
A final matter remains to be disposed of, the motion of appellant to strike a portion of appellee's brief which has to do with matters dehors the record. This motion is granted.
The decrees are due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, COLEMAN and McCALL, JJ., concur.
[1] The record is silent as to whether Consolidated did, or did not, authorize Logue to delegate any of its authority and as to whether Consolidated knew of Logue's course of business with Wiginton. | May 15, 1970 |
fbe600da-a09d-48a8-bf0c-d2f1ea6ae4e1 | Family Land & Investment Co. v. Williams | 138 So. 2d 696 | N/A | Alabama | Alabama Supreme Court | 138 So. 2d 696 (1961)
FAMILY LAND & INVESTMENT CO., Inc.
v.
William Howard WILLIAMS et al.
6 Div. 329.
Supreme Court of Alabama.
December 21, 1961.
Rehearing Denied March 22, 1962.
*697 James & Beavers, Birmingham, for appellant.
Martin & Blakey and Harold Bowron, Jr., Birmingham, for appellees.
LIVINGSTON, Chief Justice.
This appeal is from the Circuit Court of Jefferson County, Alabama, in Equity, quieting title in respondents, appellees, in a suit filed by appellant under and by virtue of the provisions of Title 7, Sec. 1109 et seq., Code of 1940.
The original bill of complaint filed by the appellant contained all of the jurisdictional averments to support a decree under the provisions of the foregoing Code sections. In addition, appellant prays for an ascertainment of the taxes due on said lands and that it be allowed to redeem.
Appellees filed an answer in which they denied the peaceful possession of the appellant and averred that they, the appellees, were in peaceful possession of the lands sued for, and set forth their claim of title thereto by virtue of two deeds from the state land commissioner conveying the land to them in August and October, 1946, said appellees being either heirs or devisees of the original grantees in the two tax deeds. They also allege that they have been in possession for over ten years prior to the filing of the bill and deny that they claim under or by virtue of a void or erroneous tax title. The answer prayed for an ascertainment of the taxes which they had paid on the lands and that they be reimbursed or given a lien for such taxes, together with interest and proper charges, in event it was decided that appellant was entitled to redeem. Appellees made their answer a cross bill.
Appellant moved the court to strike that feature of appellees' answer, making said answer a cross bill. This motion was granted by the trial court.
The record contains an agreed stipulation of facts to the effect that the chain of title purportedly made by the Title Guaranty and Trust Company covering the property described in the bill of complaint is accepted by the parties as being a true copy of the records in the Probate Office of Jefferson County, Alabama, subject to the following qualification: that a deed by the *698 state land commissioner conveying certain of the lots to George D. Maske, Sr., and Howard Williams, dated August 26, 1946, and a deed from the state land commissioner, dated October 23, 1946, covering certain other lots described in the bill of complaint, and that respondents are either the heirs or devisees of said George D. Maske, Sr., and Howard Williams; and further that the respondents have paid the taxes on all of said lots from and including the year 1946 to the date suit was filed, but that during the year beginning October 1, 1957, there has been a double payment of taxes by reason of the fact that appellant has for said year assessed and paid taxes on the property. Appellant does not admit that the tax deeds from the land commissioner were valid so as to transfer any title or interest to any of said lands or to any of the respondents. It is also stipulated by the parties that all of said lots were last assessed by E. C. Meredith, Jr., who was the true owner of the lots, subject to the qualification that one-half interest had been conveyed out of E. C. Meredith, Jr., so as to vest in J. E. Meredith (a brother of E. C. Meredith, Jr.), and that J. E. Meredith had subsequently conveyed his one-half interest to his wife, Madeline Meredith. It is further admitted that E. C. Meredith, Jr., died intestate in 1937, and his widow, Marguerite D. Meredith, and all the heirs of E. C. Meredith, Jr., and his wife, Marguerite D. Meredith, had prior to this suit executed quitclaim deeds to appellant. It is further admitted that one Mary W. Gayle had been owner of certain of the lots described in the bill of complaint prior to the tax sales to the state, and that her heirs and devisees have executed quitclaim deeds to the lands covering said lots.
In the agreed stipulation of facts, the appellant's ownership of the basic title was admitted, as was appellees' ownership of the tax title. It was further agreed that the chain of title submitted was a true record title of the property, except that appellant did not agree that the tax deeds set forth in the claim of title were valid.
The record further shows that the lands involved were sold for payment of taxes in November 1933, and purchased by the State of Alabama. This proceeding was filed January 18, 1957. It is further disclosed that no prior suit was pending to test the title to subject property.
Our cases applying the provisions of Sec. 1109 et seq. of Title 7, Code 1940, are, to say the least, confusing. We have recently had occasion to reappraise many of our decisions on this subject, and to resolve these, real or apparent, conflicts. The applicable law in respect to pleading, and many factual situations, are set forth in the cases of Myers v. Moorer, Ala., 134 So. 2d 168, and Chestang v. Tensaw Land & Timber Co., Ala., 134 So. 2d 159. But this is not to say that different factual situations may not present other and different questions in the future.
Appellant argues that it has a right to redeem the land under Title 51, Sec. 296, Code of 1940, unless the appellees have held the property in question adversely for three years under Title 51, Sec. 295, Code of 1940, which provides, in pertinent part, as follows:
So, the question presented here is whether or not there was legal evidence before the court sufficient to sustain its decree vesting all of the title to said real estate in the respondents. All the testimony was taken orally before the trial court, and where testimony is taken orally before the trial court, the court's holding has the effect of a jury's verdict and will not be disturbed on appeal unless plainly and palpably wrong. Clanahan v. Morgan, 268 Ala. 71, 105 So. 2d 429; Welch v. Lee, 265 Ala. 594, 93 So. 2d 427; Whiteside v. Brown, 266 Ala. 27, 93 So. 2d 747.
*699 We are not prepared to say that the trial court fell into error by quieting title in the appellees.
Adverse possession has been defined in many of our cases as actual occupancy, clear, definite, positive, notorious, continuous, adverse and exclusive, for the required period under claim of right of a definite tract. Walthall v. Yohn, 252 Ala. 262, 40 So. 2d 705; Moorer v. Malone, 248 Ala. 76, 26 So. 2d 558; Pfaffman v. Case, 259 Ala. 411, 66 So. 2d 890; Clanahan v. Morgan, supra.
The evidence, much of which is without conflict, shows that the property in question was a wooded, unoccupied, vacant, wild area, which had at times been used as a place to dump dirt, rocks, etc., by different persons. Also, certain persons testified that they had gone on the property and removed dogwood trees. The appellees, who have listed the property for taxes since its purchase in 1946 until the filing of this suit, leased the property in 1949 for one year. The lessee placed a fence around said property and used it to pasture a horse, and also built a small hogpen on the leased property. After the term of the lease expired, the fence was removed by the lessee, however, the hogpen was not removed. In 1955, as the general area began to develop, the appellees placed a one-strand barbed wire fence around the property, attaching it as near as possible to trees on the boundary line, and placed "no trespass" signs thereon. The appellees employed an agent living near the property to look after the property, who walked over the property on different occasions and allowed his son to hunt on the property.
In 1957, the appellant went onto the property and constructed a four-strand barbed wire fence around the area and put up "no trespassing" signs just prior to the filing of this suit.
Openness, notoriety and exclusiveness are shown by acts, which at the time, considering the state of the land, comport with ownership; viz., such acts as would ordinarily be exercised by an owner in appropriating the land to his own use and the exclusion of others. Clanahan v. Morgan, supra; Kidd v. Browne, 200 Ala. 299, 76 So. 65; W. T. Smith Lumber Co. v. Cobb, 266 Ala. 146, 94 So. 2d 763; Monteith v. Chapman, 260 Ala. 206, 69 So. 2d 866. And all acts of possessory nature committed by the adverse claimant are to be considered collectively rather than independently in determining the sufficiency of his possession. Clanahan v. Morgan, supra; W. T. Smith Lumber Co. v. Cobb, supra.
The leasing of the land in 1949 was without a doubt an act of adverse possession for all the world to observe. From this leasing in 1949, we do not consider that the evidence shows an abandonment of possession, but rather if anything, a mere interruption of actual occupation, considering the nature of the land and the use which its possession might permit. Moorer v. Malone, supra; Aldrich Mining Co. v. Pearce, 192 Ala. 195, 68 So. 900; Gary v. Woodham, 103 Ala. 421, 15 So. 840; McMillan v. Aiken, 205 Ala. 35, 88 So. 135. On the contrary, we have the appellees fencing the land in 1955 as the area around this real estate began to be developed.
We entertain the view that respondents have done what any true owner of unoccupied, wooded, uncultivated "wild land" would have done under like circumstances. These acts of appellees in contrast to what has been done by appellant or its predecessors fully substantiate a finding that the appellees have held the land adversely for the required three-year period under Title 51, Sec. 295, Code of 1940.
Nor does it affect the decision in this case in that the tax sale may have been void, because the three-year statute of limitations for recovery of land sold for payment of taxes is not rendered inapplicable to suit to redeem from tax sale because the sale was void, and also applies where land *700 bought from the state as well as tax collector. Singley v. Dempsey, 252 Ala. 677, 42 So. 2d 609; Odom v. Averett, 248 Ala. 289, 27 So. 2d 479; Quinn v. Hannon, 262 Ala. 630, 80 So. 2d 239.
Throughout the brief filed here on behalf of the appellant are statements to the effect that the trial court decided the case in favor of the appellees solely under Sec. 1123 of Title 7, Code of 1940. We cannot agree. In any event, if the decree correctly determined the equities of the case, the reasons upon which the trial court acted are unimportant, and the case will be affirmed. A correct decision will not be disturbed even if the court gave a wrong or insufficient reason therefor. Clanahan v. Morgan, supra; Cherokee County v. Cunningham, 260 Ala. 1, 68 So. 2d 507; Pitts v. Hawkins, 264 Ala. 428, 87 So. 2d 835.
Applying the principles of law stated in Myers v. Moorer and Chestang v. Tensaw Land & Timber Co., supra, we hold that a cross bill was unnecessary under the facts in the instant case. Moreover, the respondents who filed it were not injured by its being stricken. We also hold that the possession shown by complainant, appellant, in the instant case is not such peaceable possession as would justify a decree for complainant. Merely going upon lands which are at the time in the actual possession of another, and claiming title thereto, and warning such others off, is not such possession as will maintain or defeat a bill filed under the statute. Jordan v. McClure Lumber Co., 170 Ala. 289, 54 So. 415; Myers v. Moorer, supra. To such an effect is the evidence in this case.
The decree of the trial court is affirmed.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur. | December 21, 1961 |
9519264f-ea11-4d0e-be49-e72117291619 | Westbrook v. Gibbs | 231 So. 2d 97 | N/A | Alabama | Alabama Supreme Court | 231 So. 2d 97 (1970)
Hassie Mae WESTBROOK, as Admrx., etc.
v.
Homer GIBBS et al.
1 Div. 425.
Supreme Court of Alabama.
January 22, 1970.
*98 Diamond & Lattof, Mobile, for appellant.
Hand, Arendall, Bedsole, Greaves & Johnston and Jerry A. McDowell, Foreman & Brown, Moore, Moore, Downing & Layden, Mobile, for appellees.
LIVINGSTON, Chief Justice.
This is an appeal from a verdict and judgment in favor of each of the defendants below, Homer Gibbs and Louisville and Nashville Railroad Company, a corporation, in the Circuit Court of Mobile County, Alabama.
Hassie Mae Westbrook, as administratrix of the estate of Elizabeth Moten Mickles, deceased, brought suit against Homer Gibbs and Louisville and Nashville Railroad Company, a corporation, for causing the death of her intestate. Mickles met her death as the result of an accident involving an automobile being operated at the time of the accident by Homer Gibbs and a train of the defendant railroad company. The accident occurred near Grand Bay, in Mobile County, Alabama.
Defendant Homer Gibbs will hereinafter be referred to as "Gibbs," and defendant Louisiville and Nashville Railroad Company, a corporation, as "L. and N. Railroad."
The following facts are undisputed: On December 5, 1964, Wilmer White, James Alexander and Homer Gibbs left the village of Plateau, Alabama, near Mobile, and drove to the home of James Alexander in Moss Point, Mississippi, a distance of some thirty to thirty-five miles. The three men made the trip in White's two-door Pontiac Bonneville automobile, with White driving from Plateau to Moss Point. Upon arriving in Moss Point, the men unloaded from the automobile certain items which they carried there for Alexander. While at Alexander's home in Moss Point, Elizabeth Moten Mickles and Etta Ree Robinson came by Alexander's home and asked Alexander, whom they knew, if they might ride back to Mobile. The three men, after discussing the request, consented. White, who had worked the preceding night without sleep, asked Gibbs if he would drive the automobile back to Mobile, to which Gibbs agreed. When they left Moss Point, Gibbs was driving and Mickles was sitting in the front seat of the automobile between Gibbs and Alexander. White, the owner of the automobile, was sitting on the back seat directly behind Gibbs, and Etta Ree Robinson was sitting on the back seat next to White. White fell asleep soon after they left Moss Point and continued to sleep *99 up until the time of the accident. As they approached Grand Bay, they were driving in an easterly direction on Highway 90, which runs generally east and west. At the point at which the accident occurred, Highway 90 is parallel and in close proximity to the tracks of the L. and N. Railroad. Approximately one mile from Grand Bay, at what is known as Seager Road, Mickles requested that they make a rest stop. Gibbs turned off Highway 90 onto Seager Road, crossed the tracks of the defendant L. and N. Railroad, and continued for a distance of approximately fifty yards before stopping the automobile. Mickles and Alexander got out of the automobile to, and did, relieve themselves. They then got back into the automobile, occupying the same positions as they had occupied prior to the rest stop. Gibbs then turned the automobile around and, in crossing the tracks again, said automobile was struck by a locomotive of the L. and N. Railroad. Alexander and Mickles were killed.
The complaint contained two counts, each of which was directed against both of the defendants: one, a simple negligence count, and the other predicated on the willful or wanton misconduct of the defendants, Count One, and Count Two (as amended), are as follows:
"Plaintiff, who sues as Administratrix of the Estate of Elizabeth Moten Mickles, deceased, claims of the Defendants FIFTY THOUSAND AND NO/100 ($50,000.00) DOLLARS as damages, for that heretofore, on, to-wit, the fifth day of December, 1964, the agent, servant or employee of the Defendant Louisville and Nashville Railroad Company, a corporation, while acting within the line and scope of his employment, was running or operating a locomotive engine or train upon or along Defendant's tracks at a point or place approximately one mile West of Grand Bay, Mobile County, Alabama, where Seager Road (also known as Alabama Highway 188) a public street or road in Mobile County, Alabama, crosses the railroad tracks of said Defendant, and your Plaintiff alleges that Defendant Homer Gibbs was operating an automobile upon Seager Road in a Southerly direction at a place or point where it crosses the railroad tracks of the Defendant Louisville and Nashville Railroad Company, and your Plaintiff alleges that the two Defendants so negligently operated the locomotive engine or train and the automobile that they, with great force and violence, collided, and as a proximate result and consequence of said negligence, the Plaintiff's intestate, who was then and there a passenger on the `share the expense basis' of the automobile being operated by the Defendant Homer Gibbs, was thereby killed; the Plaintiff alleges that her said intestate, Elizabeth Moten Mickles, was killed as a proximate result of the negligence of the Defendants herein, hence this suit."
"Plaintiff, who sues as Administratrix of the Estate of Elizabeth Moten Mickles, deceased, claims of the Defendants FIFTY THOUSAND AND NO/100 ($50,000.00) DOLLARS as damages, for that heretofore, on, to-wit, the fifth day of December, 1964, the agent, servant or employee of the Defendant Louisville and Nashville Railroad Company, a corporation, while acting within the line and scope of his employment, was running or operating a locomotive engine or train upon or along Defendant's tracks at a point or place approximately one mile West of Grand Bay, Mobile County, Alabama, where Seager Road (also known as Alabama Highway 188), a public street or road in Mobile County, Alabama, crosses the railroad tracks of said Defendant, and your Plaintiff alleges that Defendant Homer Gibbs was operating an automobile upon Seager Road in a Southerly direction at the place or point where it crosses the railroad tracks of the Defendant Louisville and Nashville Railroad Company, and your Plaintiff alleges that the two Defendants so wantonly operated the locomotive engine or train and the automobile, *100 that they, with great force and violence, collided, and as a proximate result and consequence of said wantonness the Plaintiff's intestate, who was then and there a passenger of the automobile being operated by the Defendant Homer Gibbs, was thereby wantonly killed; the Plaintiff alleges that her said intestate, Elizabeth Moten Mickles, was killed as a proximate result of the wantonness of the Defendants herein, hence this suit."
Included in the pleas filed by the defendants to the complaint, as amended, was the following, filed by defendant Gibbs:
"Comes now Homer Gibbs, one of the Defendants in the above styled cause, separately and severally, and for additional Answer to the Plaintiff's Complaint and to each Count thereof, separately and severally, sets down and assigns the following separate and several additional Plea, separately and severally:
"7. That the accident or mishap referred to in the Plaintiff's Complaint occurred in the State of Alabama; and that in the State of Alabama there was, at the time of the said accident or mishap, in full force and effect, what is known and described as a guest statute, as follows to-wit:
"That at the time and place of said accident or mishap, the plaintiff was a guest passenger in the motor vehicle being driven by the Defendant, Homer Gibbs; that plaintiff would be subject to the terms and conditions of the said guest statute."
Court Two of the complaint, as amended, did not allege that the plaintiff's intestate, Elizabeth Moten Mickles, was riding as a guest in the vehicle being operated by Gibbs at the time of the accident; instead, it was alleged in Count Two that plaintiff's intestate was riding in the vehicle as a passenger. On its face, the complaint does not show that Count Two, as amended, is based upon the Alabama guest statute, Tit. 36, § 95, Code 1940 (Recompiled in 1958). It was, therefore, incumbent upon defendant Gibbs to plead the guest statute. Penton v. Favors, 262 Ala. 262, 78 So. 2d 278. This he did, as set out supra. No demurrer was interposed to said plea, nor is any assignment of error on this appeal directed toward said plea. However, we would be remiss in our duty were we not to attempt to clarify the use of the terms "passenger" and "guest," as those terms are construed in this state. In Wagnon v. Patterson, 260 Ala. 297, 303, 70 So. 2d 244, we quoted with approval from Hasbrook v. Wingate, 152 Ohio St. 50, 87 N.E.2d 87, 10 A.L.R.2d 1342, in which the terms "passenger" and "guest" are unmistakably defined, to wit:
Supreme Court Rule 1, Tit. 7, Appendix, Code 1940 (Recompiled in *101 1958), provides that no question is reserved for decision by this court which is not embraced in a due assignment of error. Southern Benefit Life Ins. Co. v. Holmes, 265 Ala. 48, 89 So. 2d 530; Halle v. Brooks, 209 Ala. 486, 96 So. 341; Wetzel v. Hobbs, 249 Ala. 434, 31 So. 2d 639. We have set out the above merely to illustrate the difficulties encountered in reaching the errors duly assigned and argued. It is well-settled in this state that parties may frame their own issues and thereby immaterial matters may be made material for that trial. Austin v. Clark, 247 Ala. 560, 25 So. 2d 415; Riddle v. Dorough, 279 Ala. 527, 187 So. 2d 568.
At the conclusion of the plaintiff's testimony, defendant Gibbs rested; he requested and was given the affirmative charge as to both counts of the complaint, as amended. After presenting its case, defendant L. and N. Railroad was given the affirmative charge as to the count alleging willful or wanton misconduct. The jury returned a verdict in favor of defendant L. and N. Railroad as to the negligence count. There was no improper joinder in Count One under allegations that the plaintiff's intestate was injured by the negligence of the defendants, nor of Count Two under allegations that the plaintiff's intestate was injured by the willful or wanton misconduct of the defendants. It is settled in this state that where several defendants are joined in an action, the plaintiff is entitled to go to the jury as to that defendant against whom he has made out his case, although a directed verdict may be ordered as to all the others. Tit. 7, § 139, Code 1940 (Recompiled in 1958); Roberts Construction Co. v. Henry, 265 Ala. 608, 93 So. 2d 498.
There are five assignments of error on this appeal, to wit:
"1. The Court erred in giving at the request of the Appellee Louisville and Nashville Railroad Company the following written charge:
"2. The Court erred in giving at the request of the Appellee Homer Gibbs written charge No. 1 as follows:
"3. The Court erred in instructing the jury that there was no evidence of wantonness or wanton misconduct on the part of Homer Gibbs.
"4. The Court erred in charging the jury that under the evidence in this case, the jury should return a verdict for the defendant, Homer Gibbs.
"5. The Court erred in entering an order on December 2, 1966, denying the Appellant's motion filed November 22, 1966, to set aside the verdict of the Jury and the judgment of the Court and to grant the Appellant a new trial."
First turning our attention to assignment of error 1, that portion of Tit. 48, § 182, Code 1940 (Recompiled in 1958) pertinent to our consideration is as follows:
Appellant attaches great significance to the fact that the "Mars" light, an oscillating *102 light mounted on the front of some locomotive engines, particularly the one in question here, was not functioning immediately prior to the accident. The testimony tended to show that the "Mars" light on the locomotive here had stopped functioning shortly before the accident; that the fireman had entered the nose of the locomotive engine and was connecting, or had connected, a detached cable when the impact occurred; and that the "Mars" light was functioning properly at the time the locomotive engine came to a stop after the accident. Testimony that the headlight on the locomotive engine was burning at all times up to the time of the accident was uncontradicted.
Appellant's argument in support of assignment of error 1 is to the effect that a railroad crossing over a public road may present such conditions of special hazard as to require a railroad company to provide certain warning lights on the front of its locomotives (in addition to those required by statute) to warn motorists using such public road of the approach of a locomotive engine. Appellant cites no cases, nor do we find any, which support such a position.
The rule is established in this state that, in the absence of a statute or special conditions of hazard to motorists, there is no duty on a railroad to provide special warnings of the existence of a railroad crossing. Southern Ry. Co. v. Lambert, 230 Ala. 162, 160 So. 262; Callaway v. Adams, 252 Ala. 136, 40 So. 2d 73; Louisville and Nashville Railroad Company v. Byrd, 5 Cir., 298 F.2d 586; Louisville and Nashville Railroad Company v. Williams, 5 Cir., 370 F.2d 839. A careful consideration of these cases, and the application of the stated principle therein, leads us to the conclusion that said principle is directed to the duty of a railroad company to provide special warnings where, due to environmental conditions, the presence of railway cars blocking a public road crossing or the presence of railroad tracks across a public road crossing would not be discoverable by a motorist on the public road exercising due care. The cases do not show that a railroad company is charged with the duty of providing special warning devices on a locomotive engine, in addition to those required by statute, to warn motorists of the approach of a locomotive engine where the crossing is one posing special conditions of hazard to motorists. We are unwilling to extend the application of the principle of law involved to the facts of this case. There is no error on the part of the trial court in giving at the request of the appellee L. and N. Railroad the charge made the basis of assignment of error 1.
Assignments of error 2 and 4 are argued together; appellant adopts this argument in support of assignment of error 3. These assignments of error are based upon the lower court's determination that the evidence did not provide that scintilla necessary for the submission to the jury of the question of willful or wanton misconduct on the part of defendant Gibbs.
That which constitutes wanton misconduct depends upon the facts presented in each particular case. Lewis v. Zell, 279 Ala. 33, 181 So. 2d 101; Cooper v. Watts, 280 Ala. 236, 191 So. 2d 519. This Court, in Graves v. Wildsmith, 278 Ala. 228, 177 So. 2d 448, defined wantonness 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. Does the evidence in the case at bar, when considered in the light most favorable to the plaintiff, show that the defendant Gibbs proceeded to cross the tracks of the defendant L. and N. Railroad with a knowledge and consciousness that injury might likely or probably result from such act or omission?
Appellant relies heavily on the testimony of investigating officers who questioned Gibbs at the hospital on the night of the *103 accident. Both officers testified that Gibbs stated at that time that the windows on the automobile were "fogged up" at the time of the accident. At the time Gibbs allegedly made the statement, he was undergoing treatment for injuries which he sustained in the accident. Gibbs in his testimony stated that he did not talk to any investigating officers at the hospital on the night of the accident, and that the windows were not "fogged up." The evidence presented at the time defendant Gibbs rested tended to show that defendant Gibbs was aware of the presence of the tracks of the L. and N. Railroad; that he stopped before crossing said tracks after leaving the rest stop; that he looked and could see for a distance of approximately one mile in the direction from which the locomotive approached; and that he proceeded across the tracks only after ascertaining that such action was free from peril. That which we said in Taylor v. Thompson, 271 Ala. 18, 122 So. 2d 277, is applicable here:
Assignments of error 2, 3 and 4 are without merit.
Assignment of error 5 charges error on the part of the trial court in refusing to set aside the verdict and granting appellant a new trial.
The refusal of a trial judge to grant a new trial strengthens the presumption in favor of the correctness of the verdict. Louisville and Nashville Railroad Co. v. Tucker, 262 Ala. 570, 80 So. 2d 288. We find no such error as requires the reversal of the verdict and judgment of the lower court.
Affirmed.
LAWSON, MERRILL, HARWOOD and MADDOX, JJ., concur. | January 22, 1970 |
e4e017ff-d97f-4852-813f-7a95570e8200 | Sears, Roebuck & Company v. Morris | 136 So. 2d 883 | N/A | Alabama | Alabama Supreme Court | 136 So. 2d 883 (1961)
SEARS, ROEBUCK & COMPANY
v.
William MORRIS.
6 Div. 435.
Supreme Court of Alabama.
November 2, 1961.
Rehearing Denied February 1, 1962.
Frank M. Young, and Spain, Gillon & Young, Birmingham, for appellant.
Jenkins & Cole, Birmingham, for appellee.
GOODWYN, Justice.
This is an appeal by Sears, Roebuck & Company, one of the defendants below, from a judgment of the Circuit Court of Jefferson County rendered on a jury verdict in favor of plaintiff-appellee, William Morris, and also from a judgment overruling said defendant's motion for a new trial.
This is a so-called "products liability" case, based on negligence, which appellee brought against Sears, Billy Joe Grogan and XYZ, to recover damages for personal injuries received by him when a metal wheel on a boat trailer "split, disintegrated, and flew apart" while appellee was inflating the innertube in the tire on the wheel at the service station where he was employed.
The defendant XYZ was stricken as a party by appellee.
The trial court gave the affirmative charge in favor of defendant Grogan, which action is not questioned on this appeal.
Appellee received his injuries while working as a repairman at an automobile service station in Talladega when he was placing air in a tire (with innertube) mounted on a metal wheel of a small boat trailer. The trailer was brought to the service station by defendant Grogan to have the tire checked for a leak. In order to remove the tire for checking, it was necessary to disassemble the wheel, which was made of die cast aluminum, consisting of two halves joined together with six removable bolts. The wheel was off the axle when appellee started working on the tire. He removed the six bolts, thus permitting the separation of the two halves of the wheel and the removal of the tire and innertube for checking. Grease covered the surfaces of the halves on the sides where they joined. Since the wheel had not been *884 disassembled prior to this time, it is apparent that the grease was there when the wheel was originally assembled. In addition to the six bolt holes, there were on each half of the wheel two "projections" and two "depressions," also referred to in the testimony as "pimples" and "dimples," their purpose being to prevent the two halves from slipping when bolted together by having the "projections" on one half fit in the "depressions" on the other half. From an examination of a new wheel like the one involved in this suit, which was introduced in evidence and sent up for our inspection, it is apparent that the six bolt holes in the two halves of the wheel can be matched up without the "projections" being matched with the "depressions." From an examination of the fractured or exploded wheel, also sent up for our examination, and the other evidence, it is apparent that the "projections" were not matched with the "depressions" when the wheel was reassembled by appellee. No instructions were on the wheel as to the manner of assembling it, nor was there any warning of any danger in assembling it and inflating a tire mounted on it without having the "projections" matched with the "depressions."
There were no apparent cracks or fractures in the wheel when appellee took it apart. After disassembling it, appellee checked the innertube for leaks. Finding none, he proceeded to reassemble the wheel. From the evidence, it is not clear whether appellee knew that each half contained "projections" which should be matched with "depressions" on the other half. From an examination of the fractured wheel, it appears that the grease on the two halves partially obscured the presence of the "projections" and "depressions." Appellee testified that he knew how to take the wheel apart and put it back together, but also testified to the effect that the wheel could not be put back wrong "because the holes wouldn't match up." He also gave affirmative answers to the following questions: "Did all the holes match up? Did these little projecting things in there (indicating), were those things together?" After reassembling the wheel with the tire mounted on it, appellee applied the air hose to the valve stem of the innertube and then placed his finger over the valve stem. The wheel then exploded, causing appellee's injury.
The trailer was purchased by one James Hilyer from Sears' retail store in Sylacauga in September, 1953. He sold it to defendant Grogan in the spring of 1955. Hilyer and Grogan had used the trailer frequently, Hilyer having driven it some three to five thousand miles and Grogan from two to three thousand miles. It had been driven at various speeds and over all kinds of roads before the mishap on July 30, 1956. As already noted, the wheel had not been taken apart since its purchase from Sears.
Sears purchased the trailer from Dunbar Kapple, Inc., and sold it under its trade name "Elgin." The wheels on the trailer were purchased by Dunbar Kapple from Kamin Die Casting & Manufacturing Company, located in Chicago.
A decisive question in the case concerns the liability of Sears as the retailer of the trailer (of which the exploded wheel was a part) which Sears sold under its trade name "Elgin." This is the first time we have had such a situation before us. However, we have had occasion to deal with the so-called "manufacturers' liability doctrine" as expounded by Judge Cardozo in the celebrated case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916C, 440. Among our cases are the following: Greyhound Corporation v. Brown, 269 Ala. 520, 113 So. 2d 916; Defore v. Bourjois, Inc., 268 Ala. 228, 105 So. 2d 846; Miles v. Chrysler Corporation, 238 Ala. 359, 191 So. 245; Sterchi Bros. Stores v. Castleberry, 236 Ala. 349, 182 So. 474; Altorfer Bros. Co. v. Green, 236 Ala. 427, 183 So. 415; Saunders System Birmingham Co. v. Adams, 217 Ala. 621, 117 So. 72, 61 A.L.R. 1333.
Here, as already noted, we are concerned with a question of liability based *885 on the alleged negligence of a retail vendor of a product offered by it to the public and sold by it under its own trade name. So, the first point to be resolved is: What is the effect on Sears' liability of the fact that it sold the trailer under its own trade name? This question has not been decided in this state. However, there is an applicable principle in the Restatement of the Law of Torts, Sec. 400, providing as follows:
For cases from other jurisdictions following this rule, see: Restatement in the Courts, Permanent Edition 1932-1944, pp. 715-716; Restatement of the Law (Torts, Sec. 400), 1948 Supp., p. 709; Restatement in the Courts, 1954 Supp., p. 235; Frumer and Friedman, Products Liability, Vol. 1, Sec. 10.02, pp. 190-191. As to the reason for the rule, see Comment d, Restatement of the Law (Torts, Sec. 400), 1948 Supp., p. 708. See also 46 Am.Jur., Sales, Sec. 817.
We hold, in accordance with the stated rule, that Sears' liability is to be determined on the basis that it was the manufacturer of the wheel.
In Defore v. Bourjois, Inc., 268 Ala. 228, 230-231, 105 So. 2d 846, 848, supra, it was held that the "manufacturers' liability doctrine" applies:
Applicable here also is the following from Restatement of the Law of Torts, Sec. 398:
There is ample evidence from which the jury could have found that the design of the wheel rendered it defective so as to make it imminently dangerous to one reasonably expected to work with it in so arranging the alignment of the bolt holes that the two halves could be bolted together without the "projections" being aligned with the "depressions." Certainly, it should reasonably have been anticipated that the wheel would have to be taken apart and reassembled in connection with the normal and customary use of the trailer, that is, in changing or repairing the tire and tube mounted on the wheel. There is evidence supporting findings that when the "projections" are not aligned with the "depressions" there is left an air space between the two halves of the wheel; that the fracture of the wheel resulted from the pressure in tightening the bolts, thereby causing the "projections" to be forced against the flat surfaces of the two halves rather than being inserted in the "depressions"; that the halves of the wheel were fractured in the reassembling process; and that, in such condition, the pressure of the air placed in the tire caused the explosion.
It is insisted by Sears that the evidence shows that appellee knew how to assemble *886 the wheel and, in failing to match the "projections" and the "depressions," was guilty of contributory negligence so as to deny to him a right to recover even though there should be a finding of Sears' negligence. As to this, it is our view that the question of appellee's contributory negligence was, under the evidence, a factual issue to be resolved by the jury.
The judgment is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | November 2, 1961 |
bfaf9f6e-0fd0-44ea-8ac0-a45e2c4edff8 | Ford Motor Company v. Thomas | 231 So. 2d 88 | N/A | Alabama | Alabama Supreme Court | 231 So. 2d 88 (1970)
FORD MOTOR COMPANY, a Corporation
v.
Herman Lee THOMAS.
6 Div. 685.
Supreme Court of Alabama.
January 8, 1970.
Rehearing Denied February 12, 1970.
*89 Lange, Simpson, Robinson & Somerville and White E. Gibson, Jr., Birmingham, for appellant.
George S. Brown, Birmingham, for appellee.
BLOODWORTH, Justice.
This is an appeal by Ford Motor Company from a judgment of the circuit court of Jefferson County rendered on a jury verdict in favor of plaintiff-appellee, Herman Lee Thomas, for $45,000, and also from a judgment overruling a motion for a new trial.
Plaintiff Thomas originally filed suit against one Eddie O. Gatson, and various fictitious defendants described generally to include those who placed in plaintiff's possession a wheel and tire assembly which exploded when the plaintiff slid the wheel and tire out of the rear of a service truck preparatory to installing it on Gatson's truck, after the tire had been repaired. Plaintiff was struck on both knees by a rim from the wheel, suffering injuries which included a fracture of the right knee cap.
The original complaint consisted of three counts. They alleged, in substance, that defendants requested plaintiff to repair a flat tire on the Gatson truck, that the rim and component parts were in a defective and dangerous condition, which defendants knew or should have known, while plaintiff did not, and defendants negligently failed to warn plaintiff, and that the tire and wheel exploded as a proximate result of the negligence of the defendants.
On the last day before the running of the statute of limitations of one year (after the occurrence), plaintiff filed an amendment adding fictitious defendants Q, R and S, described as "persons, firms or corporations, that manufactured the lockrim and wheel assembly that injured the plaintiff * * *." Plaintiff also added count A, charging the same negligent failure to warn plaintiff by the original defendants and charging the fictitious defendants with "negligently manufacturing said tire and wheel assembly, so that same was so defective as to be inherently and imminently dangerous * * *." At a later time, plaintiff filed another amendment substituting Ford Motor Company for defendant "Q", and adding count B, essentially the same as previous counts, but additionally charging that the combining and concurring negligence of Ford and the other defendants proximately caused plaintiff's injuries. Still later, plaintiff filed counts C, D, E and F.
The salient allegations of counts D, E, and F, with respect to defendant Ford Motor Company, are as follows:
Count D. "* * * which said defective wheel with a defective locking rim had theretofore been negligently manufactured by the defendant, Ford Motor Company, a corporation, so that the same was imminently or inherently dangerous when put to the use for which it was intended. * * *"
Count E. "* * * which said wheel with a defective locking rim had theretofore been negligently placed on said vehicle by the defendant, Ford Motor Company, so that said defective wheel with said defective locking rim was imminently or inherently dangerous when put to the use for which it was intended. * * *"
Count F. "* * * which said defectively designed locking rim had therefore been negligently placed on said vehicle by the defendant, Ford Motor Company, so that said defectively designed wheel with said defectively designed locking rim was imminently or inherently dangerous when put to the use for which it was intended. * * *"
The cause went to trial against defendants Gatson and Ford Motor Company on counts D, E and F, only. At the conclusion of the plaintiff's case, the court gave the general affirmative charge without hypothesis for the defendant Gatson. Defendant Ford offered no testimony. The jury then returned a verdict in favor of *90 plaintiff and against Ford Motor Company in the sum of $45,000, for which judgment was rendered. After a motion for new trial was filed, argued and submitted, it was overruled by the court January 14, 1969, and this appeal ensued.
The facts are that Carl Harvella operated a Texaco Service Station in Jefferson County at which plaintiff was employed. On the date plaintiff was injured and in response to a call, Harvella sent plaintiff to pick up a tire for repair from a truck owned by Eddie Gatson. At the service station, plaintiff began disassembling the tire and had taken off the lock ring when Harvella assigned him to other work, took over himself and completed the repair of the tire and remounting it. Harvella described how, after the tire and lock ring were on the wheel, a small amount of air was put in the tire, after which the ring was centered and the rest of the air was put in. He inflated the tire to 40 pounds, then put the assembled and inflated tire in his truck and sent plaintiff to put it on the vehicle. The wheel and ring were fourteen years old, being mounted on a 1950 Ford Van truck.
The wheel is so constructed that it has a detachable rim with a lock ring. The lock ring has a slot to permit insertion of a tool to pry it on and off. The rim or flange is not uniform all around, but has a cut out part apparently designed to enable the lock ring to be started on it and under which flange the lock ring fits.
Plaintiff, a 64 year old man and an automobile mechanic and service station attendant for almost 50 years, removed the wheel from the truck at the location of Gatson's vehicle. He slid the wheel and inflated tire out of the rear of his truck by hooking his hand in the center of the wheel. When it touched the ground it blew apart and the rim hit him in the knees and threw him ten feet, after which the rim went sailing across the street. It sounded like dynamite going off. The explosion blew the tube all to pieces and left the tire and wheel lying on the ground. He was helped up on the rear of the truck by two city firemen who were nearby, and later went to the hospital. He was found to have abrasions of both knees, hematoma of the right knee, a vertical fracture of the right kneecap, comminuted without displacement. His permanent partial disability was estimated to be 15% of the right lower extremity.
The testimony with respect to the defective locking rim may be briefly summarized as follows:
Witness Harvella (the service station operator who was plaintiff's employer) testified that what "permits" these wheels to separate from the ring is "that metal ring probably tends to stretch a little * * * it don't go back into position like it should" and as the last person to handle it before the accident, he says it "was not then in an unsafe condition" as far as he was able to observe.
Plaintiff (with 50 years experience as an auto mechanic service man) testified he "didn't see anything" that he considered to be a defect in the wheel before the accident, but that "it is a dangerous thing to start with * * * even when it is centered," that the wheel had distortions on it, but that he wouldn't say a ring or rim with such distortions on it would be more dangerous, "that wheel is always to me been one of the most dangerous wheels that was ever made."
Witness Fain (with 14 years experience in the wholesale wheel rim business) testified that the wheel "that goes on a 1950 Ford van" and that "was used by the Ford Motor Company on its 1950 Ford vans" was the same as plaintiff's exhibit (the alleged defective wheel), and that no other company was using that identical type wheel, that if the wheel was "out of round, it could cause a bad seating * * *" which would cause the ring to come off but that this "ring looks like it is not in too bad a shape * * *. It is not bent * * *"
*91 Witness Hill (with 21 years experience in the tire business) testified "the beating on the rim there don't hurt it * * *"; that "it is dangerous for anybody" to change such a tire; that "it is just a dangerous rim, that is all it is" and that which "causes it to blow off" is "in the ring, in the lock and in the rim itself"; that "the lock ring itself is a dangerous ring * * * all of these kind" are, although he says "a split lock ring, it is not half as dangerous as these locks, because the locks is dangerous all the way," however, "they are not dangerous if they are put on right."
Witness Gatson (owner of the truck) testified the truck with the flat tire which was to be repaired by plaintiff was a 1950 Model Ford Van.
Appellant Ford argues the following assignments of error as grounds for reversal:
(6) Error in overruling demurrers to count D, because the count fails to allege the defective and imminently dangerous condition was known or reasonably could have been known to Ford, and because it fails to allege what the defect was; (7) error in overruling demurrers to count E, because the count fails to allege what the defect was; (8) error in overruling demurrers to count F, because the count fails to allege what the defect was, and fails to allege proximate cause; (12) error in refusing to give the general affirmative charge with hypothesis as to count D, because the evidence failed to show that Ford manufactured the wheel, and since Ford (the only defendant left when the case was submitted to the jury) was a substituted defendant for defendant "Q", after the statute of limitations had, run, and "Q" was alleged to have manufactured the wheel, this worked an entire change of parties; (13) error in refusing to give the general affirmative charge with hypothesis as to count E for the same reasons as apply to count D; (14) error in refusing to give the general affirmative charge with hypothesis as to count F for the same reasons as the other two counts, and also because there was no evidence of negligent design; (11) error in overruling objection to a question to witness Harvella on the grounds that it assumed the ultimate fact in issue and invaded the province of the jury; (17) error in refusing defendant's requested charge 17, since there was no proof of manufacture of the wheel by Ford; (18) error in refusing requested charge A because it is a correct statement of law; (19) error in refusing defendant's requested charge B which correctly defined the duties of care of defendant Ford; and finally, (1) error in overruling the motion for new trial.
We need consider only assignment of error 14the contention that the proof was insufficient to go to the jury on count F. For we have concluded the case will have to be reversed and remanded for a new trial because of error in refusing the general affirmative charge as to count F.
Count F alleges in part the "defectively designed locking rim * * * [was] negligently placed on said vehicle * * * so that * * * [it] was imminently or inherently dangerous when put to the use for which it was intended. * * *"
We have carefully read the entire transcript and must conclude in the words of appellant Ford's brief that "* * * evidence of negligent [or defective] design was conspicuously absent."
We note that the strongest evidence with respect to "design" appears to be in the testimony of witness Hill (a Goodyear Service Store employee) that "the lock ring itself is a dangerous ring * * * all the way * * *" and that the thing that causes it to blow off "would be in the ring, in the lock and the rim itself." In our view, the evidence falls far short of proof of defective or negligent "design."
As observed by Ford in its brief, the evidence was uncontroverted that dislodgment of a lock ring is a rare occurrence, and that this design was in general use as standard *92 equipment by major manufacturers for many years. The so-called "split rim" referred to in the testimony is a new design, unknown to the industry in 1950 when the Gatson truck was built.
Perhaps, we should comment at this point that we do not suggest that use generally in an industry of a certain design or a lack of knowledge of a newer and safer design legally excuses a manufacturer if the design used is proved to be negligent.
Sears, Roebuck & Company v. Morris, 273 Ala. 218, 136 So. 2d 883, is mentioned and relied on in plaintiff Thomas' brief. We note that we said in Morris, at page 222, 136 So.2d at page 885:
We have gone to the record in Morris and find that the ample evidence referred to consisted of testimony by a chemical and metals engineer who personally made an analysis of the metals in the wheel in question and determined their respective tensile strengths. He testified directly that the bursting of the wheel (in that case) was caused by "First, it is poor metal and second poor design. * * * It is defective in design * * * it is a dangerous wheel * * *."
There is no evidence of similar or like import in this case. We have had no case cited to us, nor in our research have we found a case, in which a count alleging defective design was allowed to go to the jury with no more evidence than the record here discloses.
We have already indicated that evidence of negligent design was offered by plaintiff in Morris, supra. Likewise, in the recent Florida case of A. E. Finley and Associates, Inc. v. Medley, (Dist.Ct. of Appeals of Florida, 3rd District 1962) 141 So. 2d 613, evidence offered by plaintiff as to negligent design, as well as to negligent assembly, of a portable rock crusher, was held sufficient to go to the jury.
There is no room here for operation of the "error without injury" doctrine because we have held it "cannot be applied to the refusal of a charge denying the plaintiff's right to recovery under one of the counts of the complaint which was not supported by any evidence, merely because there was evidence tending to support the other count [counts] and the verdict of the jury was probably founded on them." [Emphasis supplied] Jordan v. Henderson, 258 Ala. 419, 421, 63 So. 2d 379, 381; Louisville & Nashville Railroad Company v. Johns, 267 Ala. 261, 279, 101 So. 2d 265, 74 A.L.R.2d 499.
We presume that on a retrial the other questions raised on this appeal as to whether the pleadings are sufficient to state causes of action, whether the evidence is sufficient to go to the jury on the other counts of the complaint, whether there was an "entire change of parties" working a discontinuance, whether there was error in overruling objections to a certain question propounded to a witness, and whether *93 there was error in refusing certain charges, will not reoccur.
For the error in allowing the case to go to the jury on count F, this case is reversed and remanded.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON, COLEMAN and McCALL, JJ., concur. | January 8, 1970 |
489c43c7-2e45-463a-b35f-4be3a7008bb9 | Shelby Contracting Co. v. Pizitz | 231 So. 2d 743 | N/A | Alabama | Alabama Supreme Court | 231 So. 2d 743 (1970)
SHELBY CONTRACTING CO., Inc., a Corp.
v.
Harold PIZITZ et al.
8 Div. 279.
Supreme Court of Alabama.
February 12, 1970.
*744 Bell, Richardson, Cleary, McLain & Tucker and James H. Porter, Huntsville, for appellant.
Speir, Robertson & Jackson, Birmingham, for appellees.
COLEMAN, Justice.
Complainant, a corporation, filed its bill of complaint seeking to establish and enforce a mechanic's lien. The court sustained a demurrer to the bill as amended and complainant moved to dismiss the bill as provided by § 755, Title 7, Code 1940, as amended by Act No. 72, approved September 15, 1961; 1961 Acts, Vol. II, page 1947.
From the decree granting complainant's motion to dismiss, complainant appeals. The error complained of is the decree of the court sustaining the demurrer to the bill.
The question for decision is whether the allegations of the bill show that complainant is entitled to enforce a lien, on certain contiguous lots in a subdivision in the City of Huntsville, for labor and material used by complainant to construct improvements on a street of the subdivision on which the lots abut. Complainant states the question as follows:
At the time complainant entered into the contract, the plat of the subdivision had been approved by the engineer of the City of Huntsville, although the dedication of the streets on the plat was not accepted by the city until after complainant had completed its work.
Complainant claims a lien under § 37, Title 33, Code 1940, which recites in part as follows:
*745 Both parties agree that there clearly exists a split of authority among the courts which have considered the question here presented. One court has observed:
The point on which the decision turns is whether or not an improvement, such as curbing, paving, or pipe, which is actually upon the street, is to be regarded as being upon the lot which abuts on the street.
Our statute (§ 37, Title 33) provides that the mechanic shall have a lien ". . . on such building or improvements ..." and "on the land on which the same is situated." Some courts have decided that the street is a part of the abutting lot and that the abutting lot is subject to a mechanic's lien for constructing an improvement on the street.
The Court of Civil Appeals of Texas enforced a lien on an abutting lot for construction of a sidewalk in front of the lot under a contract with the lot owners. The court said:
The Supreme Court of Arkansas, in holding that a materialman, who has furnished material for building a sidewalk, has a lien on the sidewalk and abutting lot, has this to say:
In Ladue Contracting Co. v. Land Development Co., (Mo.App.), 337 S.W.2d 578, the action was by a subcontractor to recover from the general contractor for labor and materials and to enforce a mechanic's lien against twelve contiguous residential lots in a subdivision. There were six residences on each side of the street. The subcontractor sought a lien against the buildings and the appurtenances, improvements, and land. The subcontractor alleged that the defendant general contractor was the original contractor for the erection of said buildings, appurtenances, and improvements and that the same were erected under one general contract. The St. Louis Court of Appeals held that the petition sufficiently asserted a claim by the subcontractor for a lien against the twelve lots and their owners. In reaching this conclusion, the court quoted from an earlier case, McDermott v. Claas, 104 Mo. 14, 15 S.W. 995, where the court had said:
The Supreme Court of New York, Erie County, in Application of Bradwood Realty, *746 Inc., 43 Misc.2d 374, 251 N.Y.S.2d 315, quoted at length from the Ladue opinion, supra, and held that a contractor was entitled to a lien for labor and material furnished in a subdivision for paving, storm and sanitary sewers, water mains, street curbing, rock excavation, and a sewer system. Relying on cited cases and the New York statute which provided that the mechanics' lien law should be liberally construed, the court, without stating further reasons, found ". . . that the work done by Respondent constituted an improvement to the lots and appurtenances to them was beneficial to said lots so that the lots were subjected to a mechanic's lien for such improvement." (251 N.Y.S.2d at 318)
All the cases cited by complainant thus appear to rest on the proposition that improvements constructed on the street entitle the mechanic or materialman to a lien because the street is a part of the abutting lot.
Complainant argues that we should follow the holding of the above cited cases because our cases hold that the abutting lot owner owns the fee in the street to the median line thereof, that the dedication of a street grants only an easement in the street and the fee remains in the owner of the abutting lot, citing: Cloverdale Homes v. Town of Cloverdale, 182 Ala. 419, 62 So. 712, 47 L.R.A.,N.S., 607; Snead v. Tatum, 247 Ala. 442, 25 So. 2d 162; Lybrand v. Town of Pell City, 260 Ala. 534, 71 So. 2d 797; Town of Citronelle v. Gulf Oil Corp., 270 Ala. 378, 119 So. 2d 180.
Respondents rely on the cases next discussed which hold that a mechanic or materialman is not entitled to a lien on a lot for improvements constructed on an abutting street.
In Coenen & Mentzer v. Staub, 74 Iowa 32, 36 N.W. 877, the plaintiff sought a lien against a lot in front of which he had constructed a sidewalk under a contract with the owner. The court said:
*747 In Seeman v. Schultze, supra, the owner of a lot made a contract with Steinacher to build two houses on the lot, and to build certain fences and sheds and to pave the sidewalk. The contract to build the fences, sheds, and sidewalk was subsequent to the contract to build the houses. Steinacher employed Schultze to pave the sidewalk. Schultze brought suit to enforce a lien. The trial court established the lien. The Supreme Court of Georgia reversed, saying:
In Fleming v. Prudential Ins. Co., 19 Colo.App. 126, 73 P. 752, 753, the court held that a lien on lots for construction of a sidewalk in the street in front of the lots was not authorized, saying:
In Cronin v. Tatge, 281 Ill. 336, 118 N.E. 35, the Supreme Court of Illinois denied a lien on certain premises "... for the paving of a street in front of said premises, providing ... gas and water mains in the street front, sewer and sewer connections extending inside the sidewalk line, and for the construction of a sidewalk... in front of the premises." The court held that the statute provided a lien only for work done or materials furnished for use on the lot.[1]
*748 In Pacific Rolling Mills Co. v. James Street Const. Co., 68 F. 966, the Ninth Circuit Court of Appeals, in applying the law of the State of Washington, held that one who furnished material for construction of tracks for a cable street railway acquired no lien on the power house from which the cable was operated, or the land on which the power house stood. The court said:
In Eufaula Water Co. v. Addyston Pipe and Steel Co., 89 Ala. 552, 8 So. 25, this court denied a lien on a one-acre lot, on which a pumping station was situated, for pipe furnished to be used in construction of a water system for the city. The pipe was laid between the pumping station and the reservoir about one-half mile distant. Only twenty-five feet was laid on the one-acre lot. This court said:
This court has expressed the following as a definition of the word "street":
In Cloverdale, this court said also:
It is noted that § 14, Title 56, Code 1940, recites that:
The lot owner's right in the surface and subsurface embraced in the street, *750 as defined above, is spoken of as "the ultimate fee" and as being "appurtenant to the attingent lots." We are not advised of the meaning of "ultimate fee" other than the ordinary sense that ultimate means last or final. It is true that upon abandonment of the street, absolute ownership thereof will then finally vest in the owner of abutting lot, and that such owner is entitled to the oil and minerals in that part of the land which lies under the "street," but so long as the "street" exists, the interest of the lot owner in the "street" is merely the right to enter it and to use it in common with the rest of the public. The lot owner cannot sell the "street" or lease it or control its use by other persons or control the height of the surface or the nature of objects or material to be placed in or on it so long as it remains a "street."
As to the surface of the street and so much of the depth under the surface as is or can be used not unfairly for ordinary street purposes, the lot owner's interest is, in reality, an interest in the nature of a possibility of reverter.
By whatever name called, the lot owner's interest in the street, at most, is a contingent expectancy dependent on an event which may never occur. We are of opinion that the better view is that the lot owner's interest in the "street" does not make the "street" a part of the abutting lot so that an improvement on the "street" is an improvement on the lot so as to make the lot subject to a lien for such improvement.
Complainant argues that this court has said that the mechanics' lien statute should receive a liberal construction; Mazel v. Bain, 272 Ala. 640, 133 So. 2d 44; and that we should construe the act to extend the lien on the lot to cover improvements on the street. Such a construction can result only from declaring that an improvement on the street is an improvement on the abutting lot, and we do not think this is so. It is the province of the legislature to so extend the statute if the legislature see fit to do so.
The decree of the trial court is in accord with these views and is due to be affirmed.
Affirmed.
[1] The court said:
"The Mechanics' Lien Law has been amended from time to time, and the lien in the instant case is claimed under the provisions of section 1 of the act of 1903 (Laws 1903, p. 230). Such section, in substance, provides that any person who shall by contract furnish labor, materials, etc., on any house, walk, or sidewalk on the land or bordering thereon, or on or for any driveway, fence, or improvement or appurtenance thereto on such lot or tract of land or connected therewith, and upon, over, and under any walk or street adjoining, is entitled to a lien. This section only gives a lien for work done or materials furnished for use on a lot or tract of land or a sidewalk bordering thereon, or for work done on or materials furnished for any driveway, fence, or other improvement on the lands connected with any improvement on the land, being upon, over, or under any walk or street adjoining. While the section extends the lien to work done and materials furnished for an improvement in the street, such an improvement must be connected with an improvement on the lot or tract of land. It was expressly held in Smith v. Kennedy, supra [89 Ill. 485], that under the act of 1874 no lien existed for work done and material furnished for curbing, grading, and paving a street, and, while the act has several times been amended since that opinion was filed, the present act does not expressly give a lien in such case; but substantially the same words are employed in the present act as were used in the act of 1874. The amendments made in the law from time to time were made to meet various objections urged. Had the Legislature seen fit to extend the lien to cover the present state of facts, it could have used apt words in doing so. While perhaps, the wording of section 1 and meaning of the language used are not as clear as might be desired, it does not expressly nor by necessary implication extend the application of the lien, as claimed by appellees....
"While, as before stated, the statute expressly gives a lien for the contract price of work done or material furnished in building the sidewalk, here the bill of complaint alleges but one price for all the work. There was but one contract for all the work done, to a part of which, only, the lien attached. It could not be ascertained what part of the entire contract price was for building the sidewalk and what part was for the remainder of the work. For this reason the lien cannot be enforced for any part of the work done...." (118 N.E. at 36) | February 12, 1970 |
58c2a916-0108-4dfd-81da-fb8d93f181ab | Lloyd Wood Construction Co. v. Con-Serv, Inc. | 232 So. 2d 649 | N/A | Alabama | Alabama Supreme Court | 232 So. 2d 649 (1970)
LLOYD WOOD CONSTRUCTION CO., Inc., et al.
v.
CON-SERV, INC., et al.
4 Div. 372.
Supreme Court of Alabama.
January 22, 1970.
Rehearing Denied March 5, 1970.
*650 Zeanah, Donald & Lee, Tuscaloosa, Tipler & Fuller, Andalusia, for appellants.
Harold Albritton, Albrittons & Rankin, Andalusia, and Bradley, Arant, Rose & White, Birmingham, for appellees.
MADDOX, Justice.
Lloyd Wood Construction Co., Inc., one of the appellants, was the prime contractor on a sewer system project for the City of Opelika. Con-Serv, Inc., an appellee, was the sub-contractor for the construction of three lift stations on the project. Wood executed a labor and material bond as required by Title 50, § 16, Code of Alabama 1940, with Continental Casualty Co. as surety, with condition that Wood would pay all persons supplying it with labor, materials or supplies for or in prosecution of the work provided for in the contract between Wood and the City of Opelika.
Con-Serv began work on the project, but from the very beginning, disagreements developed between Wood and Con-Serv, culminating in charges by Con-Serv and Wood that the other had breached its obligation.
Con-Serv, initially the sole plaintiff, brought this action pursuant to the provisions of § 16, Title 50, Code of Alabama, alleging a breach of the bond executed by *651 Wood, as principal, and Continental, as surety. The bond was made to the City of Opelika, with condition that Wood would pay all persons supplying it with labor, materials or supplies for or in prosecution of the work provided for in a contract between Wood and the City of Opelika for the construction of a sewer system. Con-Serv alleged that it had furnished and supplied Wood with labor, materials or supplies for or in prosecution of work on the sewer system in the sum of $43,750.60 and that Wood had failed and refused to pay for this work. Con-Serv also alleged that notice of the amount and nature of the claim had been given to Continental as surety on the bond more than 45 days before the suit was commenced. After demurrers were filed by both Wood and Continental and were overruled by the court and Wood and Continental pleaded the general issue, Con-Serv filed an amended complaint containing two additional counts. Count II-A claimed $43,750.60 with interest for the breach of the condition of the bond, alleging that Con-Serv had supplied Wood with labor, materials or supplies in that amount which was unpaid. Con-Serv also claimed attorneys' fees. Count II claimed that Con-Serv had furnished labor, supplies and materials to Wood in the amount of $107,170.60, but that Wood had paid only $46,882.12 of this amount, leaving a balance due to Con-Serv of $60,288.48.
Wood and Continental filed additional pleas to the amended complaint and alleged that Con-Serv had, prior to the commencement of the suit, transferred all of its right, title and interest in the claim sued for to the Aetna Casualty & Surety Co., and that Con-Serv had no right, title or interest in the claim.
Con-Serv then filed an amendment to the amended complaint "by adding thereto as an additional party plaintiff, the Aetna Casualty & Surety Co., a corporation." Con-Serv also amended Counts I, II-A and III of the original complaint, as amended. Count I of the complaint, as last amended, claims $43,750.60 as damages, alleging that Con-Serv supplied Wood with labor, materials or supplies for or in prosecution of the work provided for in the sub-contract and that Wood failed to make payments for such work. Con-Serv alleged that it had executed a labor and material payment bond with Con-Serv as principal and Aetna as surety, and that prior to the filing of the action, Aetna made payments to persons who had furnished Con-Serv with materials in the total amount of $40,222.33, and that Aetna was subrogated to the rights of Con-Serv to the extent of such payments.
Count II-A, as last amended, also claimed $43,750.60 for the breach of the condition of Wood's bond and alleged that Con-Serv supplied and furnished Wood with labor, materials or supplies for or in the prosecution of the work provided in the contract between Wood and the City of Opelika, and that "although Defendant, Continental Casualty Company, a corporation, was given notice by Plaintiff, Con-Serv, Inc., a corporation, more than 45 days preceding the filing of this suit of the amount and nature of said claim, to the damage of the Plaintiffs," the sum of $43,750.60 remained due and unpaid. Count II-A also claimed that Con-Serv executed a labor and material bond with Con-Serv as principal and Aetna as surety to make payment to all persons furnishing Con-Serv with labor or materials and that Aetna, as surety, made payments to certain persons who furnished Con-Serv with materials in the total amount of $40,222.33, and that Aetna became subrogated to the rights of Con-Serv in this action to the extent and amount of such payments.
Count III of the complaint as last amended claims $60,288.48 with interest for the breach of the bond by Wood and Continental and alleges that Con-Serv supplied and furnished to Wood at Wood's request labor, materials and supplies for or in prosecution of the work provided for in the contract between Wood and the City *652 of Opelika of the aggregate reasonable value of $107,170.60, and that Wood had paid to Con-Serv previously $46,882.12, but has failed to pay the balance in the amount claimed. Con-Serv further alleged that Continental, as surety, was given notice by Con-Serv more than 45 days preceding the filing of the complaint of the amount and nature of the claim. Con-Serv further alleges that Con-Serv executed a labor and material payment bond with Con-Serv as principal and Aetna as surety for the payment of all persons furnishing Con-Serv with labor or materials to be supplied to Wood, and that Aetna as surety made payments to certain persons who furnished Con-Serv with materials in the amount of $40,222.33, and that Aetna was subrogated to the rights of Con-Serv to the extent and amount of such payments.
Each count of the amended complaint claims attorneys' fees as provided for in Title 50, § 16, if the claim is not paid within 45 days after written notice is given.
To the complaint as last amended, Wood and Continental filed objections in writing and motions to strike the complaint as last amended, assigning as grounds that such amendment worked an entire change of parties plaintiff and added a new cause of action inconsistent with and a departure from the original action and that the last amendment contained a misjoinder of parties plaintiff and contained two separate and distinct causes of action by two separate and distinct parties. Both the objections and the motion to strike were denied by the court. Demurrers filed on behalf of both Wood and Continental to the complaint as last amended were overruled by the court. Wood and Continental then filed pleas alleging the general issue, payments of the debt claimed and set-off and recoupment.
After plaintiffs' demurrers to these pleas were overruled, Con-Serv and Aetna pleaded in short by consent the general issue, and the trial of the case was had before a jury, resulting in a verdict and judgment in favor of Con-Serv and Aetna and against Wood and Continental in the sum of $40,000.
Section 16 of Title 15 requires that a claimant give written notice to the surety on the contractor's bond of the amount claimed to be due and the nature of the claim 45 days prior to the institution of a suit. The action here was instituted on January 9, 1967. The only written notice of a claim which was given to Continental, as surety, were two letters, one dated November 8, 1966, and the other dated October 24, 1967, as follows:
The critical question presented which will dispose of this appeal is whether the failure of Aetna to give 45 days' written notice to Continental of the amount claimed to be due and the nature of the claim must work a reversal of the judgment. Unquestionably, there was no written notice given by Aetna to Continental before Aetna was joined as a party plaintiff.
Con-Serv and Aetna contend that whether Aetna gave notice as required by Title 50, § 16, is immaterial since Aetna was partially "subrogated" to Con-Serv's claim against Wood. In effect, appellees say that since Aetna paid certain of Con-Serv's suppliers who had furnished materials which Con-Serv in turn furnished to Wood on the project, Aetna had a right to recover from Con-Serv the amounts it was forced to pay and thereby became subrogated to Con-Serv's claim for money due from Wood to the extent of such payment.
As to subrogation rights, a surety does not stand in the shoes of the debtor whose performance he assured; rather he takes the position of the creditor who has been satisfied by the surety. United States Fidelity and Guaranty Co. v. First National Bank, 224 Ala. 375, 140 So. 755 (1932); Alabama-Tennessee Nat. Gas Co. v. Lehman-Hoge & Scott, D.C., 122 F. Supp. 314 (1954). As we said in United States *655 Fidelity & Guaranty Co. v. Yeilding Bros. Co. Dept Stores, 225 Ala. 307, 143 So. 176 (1932):
Appellees cite Maryland Casualty Co. v. Dupree, 223 Ala. 420, 136 So. 811 (1931) in support of their position. The Maryland Casualty Co. v. Dupree case does hold that a surety on a public contractor's bond has an equity akin to the doctrine of subrogation in money due under the contract. Admitting this as a sound principle of law, but not admitting Aetna was subrogated to Con-Serv here, the fact still remains that Aetna failed to give any written notice to Continental of the amount and nature of its claim as required by law before a suit could be maintained. Even assuming Con-Serv is correct in its position that Aetna was subrogated, Title 50, § 16, specifically requires written notice of the amount and nature of the claim prior to suit on the bond.
We find no similar case where this question has been decided with regard to an action on a public contractor's bond and the parties cite no case to us, but we think that the written notice required by Title 50, § 16 is a condition precedent to the maintenance of an action on the bond. We have held that compliance with similar statutory requirements of notice is a condition precedent to the maintenance of a suit. Dixon v. City of Mobile, 280 Ala. 419, 194 So. 2d 825 (1967); City of Birmingham v. Weston, 233 Ala. 563, 172 So. 643, 109 A.L.R. 970 (1937).
Ground 52 of Wood's demurrer to the complaint as last amended raised the point that the complaint failed to allege written notice by Aetna to Continental as required by § 16 of Title 50.
Assignment of Error 6 by appellant Wood claims the trial court erred in overruling the demurrer of Wood to the complaint as amended. We agree with appellant Wood. Aetna's failure to give written notice of the amount claimed to be due and the nature of the claim precluded it from instituting this action on Wood's bond.
In view of the error of the trial court in holding that Aetna could maintain an action on the bond without having given at least 45 days written notice to Continental, we must reverse.
There is one other question presented. Appellees filed a motion here on October 7, 1969, to dismiss the appeal or affirm the judgment, saying that Continental Casualty Company failed to file a brief within 30 days after the transcript was filed here as required by Supreme Court Rule 12. Appellant Wood filed a motion here within the 30 day period asking for and being granted 15 additional days within which to file its brief. The brief, as finally filed within the 45 day period, was filed on behalf of Wood and Continental. Appellees say that we should affirm the judgment of the trial court or dismiss the appeal because of Continental's failure to file its brief as required by Rule 12. We have not considered Continental's assignments of error but feel that in this case the judgment must be reversed as to both appellants.
Wood and Continental are joint appellants. The judgment was joint and we have previously held that joint judgments are to be treated as entireties on appeal. Since this was a suit on a bond with the principal and surety being both joined as defendants, it is the type of case where justice requires that the judgment appealed from, as to both Wood and Continental, be reversed, and the cause remanded for another trial. Badger v. Hollon, 27 Ala.App. 534, 175 So. 700 (1937); *656 City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276 (1936); North Alabama Traction Co. v. Hays, 184 Ala. 592, 64 So. 39 (1913). It is so ordered.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, MERRILL and HARWOOD, JJ., concur.
MADDOX, Justice.
In view of appellee's very forceful argument on application for rehearing that we have changed the law of subrogation in the State of Alabama in the original opinion, we deem it advisable to extend our opinion. The theory upon which the plaintiffs proceeded in the trial court was that there was "one claim" and that Aetna, having paid part of Con-Serv's suppliers, was "partially subrogated" to Con-Serv's claim against Wood and Continental. A close reading of the original opinion will show that while we discussed rights of subrogation generally we did not decide that Aetna was or was not subrogated, but as indicated in the opinion, the sole question decided was whether, even if partially subrogated, Aetna should have given written notice as required by statute before it sued Continental. We held that regardless of what status Aetna had, if it was making a claim against Continental under statute which authorizes such suits, the giving of notice as the statute requires was a condition precedent. We still hold this to be the law.
Since the original opinion may be misconstrued in regard to the statements we there made regarding subrogation rights, we state here that we did not intend to say in the initial opinion that a surety, having paid its principal's obligations, would not be entitled to subrogation in an equivalent amount to the right of the principal to collect balances due on the contract price. See Maryland Casualty Co. v. Dupree, 223, Ala. 420, 136 So. 811 (1931). We do point out, however, that even though a surety, in a proper case, can be subrogated to the rights of its principal, we have found no case where a subcontractor and the surety on his performance bond, who has paid a part of his principal's obligations, has been allowed to proceed against the general contractor and its surety under the Miller Act or under similar state statutes on the theory that there is but "one claim" and notice to the general contractor's surety by the subcontractor alone is sufficient to allow a claim to be filed by both the subcontractor and his surety.
We think we should point out also that Aetna was the surety on Con-Serv's performance bond. Wood was the obligee on this bond and according to the conditions of the bond no right of action accrued on the bond to or for the use of any person or corporation other than the obligee or its successors. Under such facts, it is only reasonable to assume that if Aetna is to make claim against its own obligee and its surety in connection with the subcontract it should be required to give written notice and the nature of such claim to its obligee's surety.
Hopefully, we have erased appellee's concern that we have changed the law with regard to the right of a surety, in a proper case, to become subrogated to its principal when there is a right to collect balances due on the contract price. We thought we had carefully stated in the initial opinion that the question of "subrogation" was not necessary to a decision in the case because there was no question that Aetna had not given written notice as required by statute, which we held then and still hold to be a condition precedent. The Continental bond was given pursuant to the terms of Act No. 39, General Laws of Alabama, approved February 8, 1935 (Title 50, § 16). We have said that when a bond contains conditions which incorporate the statutory law, a compliance with such conditions *657 is a prerequisite to the maintenance of an action to recover on such bond. Scott v. United States Fidelity & Guaranty Co., 252 Ala. 373, 41 So. 2d 298 (1949).
We are aware that Title 50, § 16, is to be liberally construed to effect the purpose of the statute. State for Use of Wadsworth v. Southern Surety Co., 221 Ala. 113, 127 So. 805, 70 A.L.R. 296 (1930). We are unwilling, however, to say that the Legislature intended to dispense with the notice requirement in fact situations as here presented.
The application for rehearing is due to be overruled and denied.
Opinion extended and application overruled.
LIVINGSTON, C. J., and MERRILL, HARWOOD and McCALL, JJ., concur. | January 22, 1970 |
7bb6118d-08d1-4852-9151-ab534b496ba9 | Hall Motor Company v. Furman | 234 So. 2d 37 | N/A | Alabama | Alabama Supreme Court | 234 So. 2d 37 (1970)
HALL MOTOR COMPANY, Inc. of Mississippi, a Corporation,
v.
R. W. FURMAN.
6 Div. 635.
Supreme Court of Alabama.
April 2, 1970.
Spain, Gillon, Riley, Tate & Ansley, and Ollie L. Blan, Jr., Birmingham, for appellant.
William W. Ross, Birmingham, Brobston & Brobston and J. T. Hagerty, Bessemer, for appellee.
HARWOOD, Justice.
The complaint in this case was submitted to the jury on four counts which sought *38 damages allegedly resulting from the sale of an automobile which plaintiff averred was represented to him by the defendant as a new automobile in good condition, whereas in truth and in fact the automobile was an inferior one which had been damaged or wrecked prior to plaintiff's purchase of the same.
The jury returned a verdict in favor of the plaintiff under Count 5 of the complaint and assessed his damages at $8,000.
Defendant's motion for a new trial being denied, this appeal was perfected from the judgment and from the judgment on motion for a new trial.
Count 5, in substance, avers that on 20 January 1965, the defendant was in the business of selling at retail Plymouth automobiles, and on that date the plaintiff purchased from the defendant a 1965 station wagon automobile, "which was fraudulently represented by the defendant to be a new Plymouth automobile in good condition." The count further avers that said automobile was not a new automobile and in good condition, but to the contrary, and prior to the time of sale, had been damaged or wrecked, which damages had been to some extent repaired, and were not obvious to the plaintiff on inspection, and were not made known to the plaintiff by the defendant; that such damages were known to the defendant, or by the exercise of reasonable diligence, should have been known to the defendant; "and plaintiff avers that he relied upon the representations made by the defendant that said automobile was in fact a new Plymouth automobile and in good condition, and as a result of his reliance upon said fraudulent representations by the defendant," he purchased said automobile and was thereby damaged. Both compensatory and punitive damages were claimed.
The evidence below tends to show that the plaintiff-appellee went to the defendant-appellant's place of business seeking to purchase a Plymouth station wagon of a certain type and color. The defendant did not have such an automobile in stock, but offered to order one from the factory. A price was negotiated by examination of brochures.
In a day or so the plaintiff was called by Mr. Cunningham, a salesman and agent of the defendant, and told that the defendant had located a station wagon in Selma which met his requested specifications except for the color. The station wagon had been located in Selma through the Chrysler Motor Company in Atlanta. The plaintiff was told that the station wagon could either be driven to Bessemer for his inspection, or one of defendant's salesmen would drive him to Selma in order that he might look at it and see if he wanted it.
The plaintiff elected to drive with Mr. Vines, a salesman of the defendant, to the Bailey Motor Company, an authorized Plymouth dealer in Selma. Vines had been instructed that if the plaintiff decided not to take the station wagon to return with the check given to him to pay for the transfer of the station wagon from Bailey Motor Company. In Selma, the plaintiff saw the station wagon, and saw it had air conditioning and other equipment. The color was satisfactory. He might have said in Selma he would take the station wagon, though he did not recall. If plaintiff had not indicated he would take the station wagon, it is incomprehensible that the vehicle would have been transferred by Bailey to the defendant and driven to Bessemer. Vines went in the office, and when he came out he told the plaintiff to drive the station wagon back to Bessemer, and he would follow. Vines instructed the plaintiff to drive at various speeds and to hold up his hand as he reached speeds of 50, 60, 70, and 80 miles per hour, this for the purpose of determining whether the station wagon had a "back lash" at such speeds. The plaintiff followed these instructions and noted nothing wrong.
When the plaintiff and Vines returned to defendant's place of business in Bessemer, the plaintiff looked over the station wagon "like you would any new automobile." *39 Vines told him he had a good automobile. The plaintiff then said he would take the station wagon, and a sale of it was consummated.
When the plaintiff went to a filling station shortly after purchasing the station wagon, it was discovered that the oil stick was missing. This was replaced by the defendant. From then on the plaintiff found many defects in the station wagon. The door to the glove compartment would not properly catch; there was a chip in the glass of the tailgate; he found cigarette butts in the ash tray, etc.
He took the station wagon to be examined by Clifton Baker, a mechanic and body repairman of considerable experience. Baker found that the car had been damaged on the right rear, in his opinion by considerable force applied from the right or rear of the automobile. The right rear quarter panel was out of alignment which left a gap around the right rear door post, and the floor pan inside the station wagon had been bent. In his opinion the damages to the station wagon had been repaired and the damaged portion repainted.
W. E. Bailey, of Bailey Motors in Selma, testified that he had obtained the station wagon from the Chrysler Motor Corporation. It was delivered to his place in Selma by motor transport. It was not damaged when he first saw it. He saw the station wagon several times while it was in his stock. It had never been driven while in his custody, and no repairs had been made on it prior to his transferring it to the defendant. Two men came to Selma and picked it up, and one of them gave him a check for the station wagon. The transaction took only about ten minutes.
After numerous complaints by the plaintiff, the defendant had William R. Tate, Service Representative for Chrysler Motors Corporation, examine the station wagon. He found the right rear quarter panel and right rear door out of line. In his opinion this misalignment resulted in the construction of the station wagon at the factory; it was caused by faulty timing in the jig at the factory. A jig swings part of the body in position on the assembly line. The quarter panels are swung into place by it, and welded. The doors are the last item put on the car. It is possible for the jig to be out of time and one quarter panel be placed out of line with the other. Tate saw nothing about the station wagon that would indicate it had been wrecked or damaged after it had left the factory, or that repairs or replacements had been made on it. He authorized the defendant to have work done on the station wagon, to be paid for by Chrysler under warranty. This work involved cutting the seat post and rewelding it in place.
In the proceedings below the plaintiff testified that the reasonable value of the station wagon, if free of defects, was $4,000. The reasonable value of the station wagon in the condition in which it was delivered to him was $1,800. In other words, under plaintiff's testimony, he suffered actual damages of $2,200 in the transaction. The jury returned a verdict under Count 5 of $8,000. It follows that $5,800 of the damages awarded must be considered as punitive damages.
The question with which we are presented therefore is whether, under the averments of Count 5, and the evidence presented, the plaintiff was entitled to recover punitive damages.
Three code sections are applicable to our consideration of this appeal, namely Sections 108, 110, and 111 of Title 7, Code of Alabama 1940, and are as follows:
Section 110, supra, deals with "deceit." At common law an action based on fraud was denominated an "action of deceit." This designation of fraud is to be found in our decisions apparently regardless of whether the fraud was designedly untrue, or inadvertent. "Deceit" is actual fraud. It excludes the idea of mistake. 37 Am. Jur., Fraud and Deceit, Section 1.
Under our cases there is a difference between actionable fraud by misrepresentation of a material fact and an action for actual deceit. Rudisill v. Buckner, 244 Ala. 653, 15 So. 2d 333. It would appear, however, that if the misrepresentation of a material fact was made willfully to deceive, or recklessly without knowledge, such conduct would be deceitful in fact. This is the first provision in Section 108, supra. The last alternative found in Section 108, relates to a fraud made by mistake and innocently. Such representation is a legal fraud, though it be only constructive. Hornaday v. First National Bank of Birmingham, 259 Ala. 26, 65 So. 2d 678.
Under Section 108, the good faith of a party in making what proves to be a material misrepresentation, is immaterial if the other party acted on such misrepresentation to his injury. Standard Oil Co. v. Johnson, 276 Ala. 578, 165 So. 2d 361. Only compensatory damages could be recovered in such a situation.
Section 111, defines fraudulent deceit as being a wilful deceit with intent to induce another to alter his position to his injury, for which the deceiver is liable for any damage suffered.
In Southern Building & Loan Assn. v. Dinsmore, 225 Ala. 550, 144 So. 21, it is stated that there is nothing in the language of Section 111 indicating a legislative purpose to change the theretofore existing rules as to the recovery of punitive damages in proper cases, and confine the recovery to compensatory damages. The same observation would seem equally applicable to Sections 108 and 110, supra. The court further states that in deceit (fraud) actions punitive damages may be recovered though not claimed, if the complaint discloses a gross fraud.
What are these prior existing rules?
In the often cited case of Caffey v. Alabama Machinery & Supply Co., 19 Ala. App. 189, 96 So. 454, it is pointed out that Section 108 is but a reflection of the general law on the subject of fraudulent misrepresentation, and that fraud being alleged, and established by the evidence, punitive damages may be recovered only if the fraud was malicious, oppressive, or gross, made with knowledge of its falseness, (or so recklessly made as to amount to the same thing), and made with the purpose of injuring the plaintiff. To the same effect see Boriss v. Edwards, 262 Ala. 172, 77 So. 2d 909; Treadwell Ford Inc. v. Leek, 272 Ala. 544, 133 So. 2d 24; J. Truett Payne Co. v. Jackson, 281 Ala. 426, 203 So. 2d 443.
Under Section 108 the misrepresentations must be of a material fact, made to be relied on as an inducement, and in fact relied on. Intent to deceive is not essential, since only constructive fraud may be present in such a situation. Under Section 110, knowledge of the fraud, with intent to deceive is required, and under said Section 110, the scope of liability is extended to *41 cases of concealment of the fraud, and thus "material fact" has a wider meaning under Section 110 than under 108. Cartwright v. Braly, 218 Ala. 49, 117 So. 477.
To plead a case of fraudulent concealment by silence, facts should be averred from which a duty to speak arises. Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286. Such duty to speak depends upon the fiduciary or other relation of the parties, the value of the particular fact, the relative knowledge of the parties, and other circumstances of the case. Griel v. Lomax, 89 Ala. 420, 6 So. 741.
Counsel for appellant argues strenuously that punitive damages were not recoverable under Count 5, inasmuch as the action must be deemed as having been brought under Section 108, because the count fails to allege that the representations were made with intent to deceive. Counsel for appellee, to support his argument, sets out a statement found in Cartwright v. Hughes, 226 Ala. 464, 147 So. 399, an intent to deceive and defraud having been averred, that the "only effect of the existence of such intent to deceive and defraud is to sustain a right to punitive damages."
If the evidence tends to establish an intent to deceive and defraud, it is difficult to see but that a fraud was committed grossly. This being so, punitive damages could be recovered under Count 5, even though it be considered as framed under Section 108, if the count properly averred, and the evidence established that the material misrepresentation was made knowingly and falsely, was relied on by the injured party, and the fraud was gross, malicious, oppressive, and committed with an intent to injure.
If a fraud is not perpetrated grossly, maliciously, oppressively, and with an intent to deceive, the damages to be recovered are such as will compensate for actual damages received. Foster v. Kennedy's Adm'r, 38 Ala. 359; Berry v. Wooddy, 16 Ala.App. 348, 77 So. 942.
Count 5 avers only that the station wagon was fraudulently misrepresented. This is not the equivalent of averring a wilful misrepresentation as a representation may be fraudulent, or false, and yet unintended and innocent. The Count further avers, however, that the defect in the station wagon was known to the defendant, or by the exercise of reasonable diligence, should have been known, and that the plaintiff relied upon the representations that the station wagon was in fact new. Defendant-appellant contends this averment is insufficient to support an award of punitive damages.
But we see no need to tarry over, or to base, our conclusion upon the sufficiency or insufficiency of the averments of Count 5 to support an award of punitive damages. Certainly the count is questionable. A consideration of the evidence presented necessitates the conclusion that it wholly fails to show gross, malicious or oppressive conduct on the part of the defendant, or any actions done with an intent to deceive.
The conduct of defendant or its agent, as disclosed by the evidence, affords no inference of gross or malicious misrepresentation of a material fact. Boriss v. Edwards, supra.
However, a false representation, even if made by mistake or innocently, is a legal fraud. Section 108, supra. The evidence in this case is sufficient to establish such species of fraud. The plaintiff was therefore entitled to compensatory damages. He was not entitled to punitive damages. The judgment is therefore erroneous to the extent of the amount of the punitive damages.
Appellee's counsel question the sufficiency of defendant-appellant's assignments of error to present for review the question of the award of punitive damages.
Assignment of error 12 is that the trial court erred in overruling appellant's motion for a new trial. This, of course, *42 is a vicarious assignment of every well stated ground of the motion for a new trial which is adequately brought forth and argued in brief. Lonnie Russell Ford, Inc. v. Mitchell, 279 Ala. 340, 185 So. 2d 132; Tucker v. Cox, 282 Ala. 489, 213 So. 2d 222.
Among the grounds of the motion for a new trial properly presented and argued in brief is ground 63, which reads:
This assignment is sufficiently specific and direct to invite our review of the question involved. We further note that the appellant excepted to that portion of the court's oral charge submitting the possible award of punitive damages under Count 5, on the grounds, among others, that the evidence was not sufficient to permit the jury to award punitive damages under Count 5. Further, the record shows that the appellant requested a written charge (No. 13) to this same effect, which was refused by the court.
Being of the conclusion that punitive damages could not be properly allowed in this case, and that under plaintiff's own testimony his actual damages were $2,200, this judgment will stand reversed unless the appellee shall, within thirty days after this date, file a remittitur pursuant to Section 811, Title 7, Code of Alabama 1940, reducing the judgment from $8,000 to $2,200. Let notice issue to the appellee accordingly. If the appellee shall timely file such remittitur, the judgment will be reduced and affirmed for the sum of $2,200.
Affirmed conditionally.
LIVINGSTON, C. J., and LAWSON, MERRILL and MADDOX, JJ., concur. | April 2, 1970 |
0fe3877b-cd76-4152-95a3-c539886d8e1a | First National Bank of Birmingham v. Klein | 234 So. 2d 42 | N/A | Alabama | Alabama Supreme Court | 234 So. 2d 42 (1970)
The FIRST NATIONAL BANK OF BIRMINGHAM, a Corporation, as Trustee under the Last Will and Testament of Clarence A. Leslie, deceased, and as Executor under the Last Will and Testament of Clarence A. Leslie, deceased et al.
v.
Crockett KLEIN and Sarah Jane Wilson.
8 Div. 335.
Supreme Court of Alabama.
April 2, 1970.
Rehearing Denied April 30, 1970.
*44 Bradley, Arant, Rose & White, Robert B. Donworth, Jr., Birmingham, Ford, Caldwell, Ford & Payne, Huntsville, for appellant.
Griffin & Griffin, Huntsville, for appellees.
MADDOX, Justice.
This is a will contest. The testatrix, Maude M. Leslie, died on February 24, 1965, leaving a last will and testament executed on January 21, 1953. The testatrix executed a codicil to her will in 1956, which is not pertinent here, and a second codicil in January, 1963. The second codicil is the subject of this contest.
The testatrix initially left one-third of her residuary estate to each of her three sons, William H. Leslie, Clarence A. Leslie, and Robert M. Leslie, Jr.
Item II-B of her 1953 will reads:
The second codicil changed the distribution to Clarence A. Leslie and reads, in part:
Clarence predeceased his mother by some 17 months and his will was admitted to probate. Under the terms of Clarence's will, his residuary estate was given to appellant, The First National Bank of Birmingham, as trustee. Under the trust, Clarence's second wife, Juanita Leslie, was entitled to the income of the trust and could invade the corpus. Upon the death or remarriage of Juanita Leslie, the trust was to be divided into equal partsone share to each of Clarence's two daughters by a previous marriage, Sarah Jane Wilson and Allie Crockett Klein, and to their lineal descendants if they should be dead.
The children of Clarence's first marriage, Sarah Jane Wilson and Crockett Klein, contested Maude Leslie's will and are the appellees here. They contend that the second codicil executed by their grandmother, Maude Leslie, was void and inoperative for uncertainty, or was void for patent ambiguity, apparent on its face. They also claimed that their grandmother lacked testamentary capacity at the time the second codicil was executed. The question of testamentary capacity is not before us, the trial court having severed the issues under Equity Rule 15. The trial was upon the issue of whether or not the second codicil was null and void for uncertainty or null and void because of patent ambiguity.
The First National Bank of Birmingham contended in the trial court and here that the one-third share of Maude's residuary estate, under the terms of the second codicil, became a part of the trust estate created by Clarence under his will, subject to the terms and conditions set out in the testamentary trust. The trial court did not agree with the bank, and said that to do so "would require the Court to read into the codicil an intention to create a trust which is not apparent from the wording or from the testimony considered by the Court." (Emphasis ours)
The court further found:
As we said in Mastin v. First National Bank of Mobile, 278 Ala. 251, 177 So. 2d 808 (1965), certain principles governing the construction of wills in this state are settled. They are:
A will should also be construed to uphold rather than defeat devises and bequests. Willis v. Barrow, 218 Ala. 549, 119 So. 678 (1929). The law presumes, particularly where a residuary clause is involved, that the testator intended to dispose of his entire estate by will rather than die intestate, and unless a contrary intent is clearly expressed, courts will endeavor to reconcile inconsistent or repugnant provisions and adopt any reasonable construction to this end. Marshall v. Northern Trust Co. of Chicago, 22 Ill. 2d 391, 176 N.E.2d 807 (1961).
Our statutes require certain formalities for wills, and are in the nature of statutes of frauds, and only such documents as meet the requirements of our statutes will be admitted to probate. But frequently, as here, a testator will make reference to extrinsic documents or other facts, both past and future. It was not until the enactment of the Statute of Wills providing certain formalities that problems relating to the effect of extrinsic documents upon a will were encountered. Only with the enactment of the statute requiring certain formalities did considerations of "incorporation by reference" and "independent legal significance" become pertinent. Therefore, where statutes of wills have been enacted, some courts have provided certain "escape devices" in order to give effect to the intention of the testator, while preserving the integrity of the statute of wills.
Depending upon the particular facts of each case, reference to the will of another may be given effect under any one of three theories: (1) incorporation by reference; (2) power of appointment; (3) facts of independent significance.
The trial court's finding that the testatrix here did not intend to set up a trust and that the words used in the second codicil were insufficient to establish a trust may be correct, but his order and findings completely ignore the theory that a devise can be given effect under "facts of independent significance," a doctrine recognized when facts may not justify the application of the doctrine of "incorporation *46 by reference." A testator may intend for his property to go to the same persons who are named in another person's will as devisees and legatees, and the gift of the testator's property by his will can be upheld on the ground of "independent significance"an escape mechanism from the strict requirements of incorporation by reference. Page on Wills, Bowe-Parker Rev.Ed., Vol. 2, § 19.34, p. 119.
The doctrine of incorporation by reference, strongly relied on by the appellee and the trial court is not applicable where a testator bequeaths property to be disposed of in accordance with the terms of any will which another may leave and, consequently, is not applicable here. In this case, Maude Leslie, in her original will, had given one-third of her residuary estate to Clarence A. Leslie, absolutely and in fee simple. There was evidence to the effect that Clarence was ill and that he went to see the lawyer who drafted the second codicil for Maude's will which made provision for the disposition of Clarence's part should he predecease his mother. He did die first. Clarence did not have his will at the lawyer's office when the second codicil was drawn and his mother was not present when the codicil was drafted. It was not shown that she knew who the legatees and beneficiaries of Clarence's will were or that she ever saw a copy of Clarence's will. Nevertheless, Maude made the gift and devise "to the residuary legatees and the residuary beneficiaries of his (Clarence's) estate under his last will and testament." (Emphasis ours). Words are symbols and we must compare them with things and persons and events. The words, "residuary legatees and residuary beneficiaries of his estate under his last will and testament," designate who are the recipients of Clarence's bounty and are sufficiently certain to identify the class intended and are not void for uncertainty. Leary v. Liberty Trust Co., 272 Mass. 1, 171 N.E. 828, 69 A.L.R. 1239 (1930). By executing the second codicil, Maude made provision for the contingency which occurred when Clarence died. She failed to change the disposition made by her second codicil, even though she had the right to do so, since she lived several months after Clarence died. Leary v. Liberty Trust Co., supra.
We must construe a will so as to carry out the intention of the testator. Maude Leslie, by the language of her second codicil, gave her son, Clarence, the privilege of naming the beneficiary of that part of her residuary estate which he would have taken outright but for the fact that he died first. The gift by Maude to the "residuary legatees and residuary beneficiaries" of Clarence's estate under his last will and testament can be upheld without regard to whether Maude knew who had been designated by Clarence in his last will and testament as the "legatees and beneficiaries" to succeed to that part of Maude's estate which Clarence would have taken but for the fact that he died first.
The principle of naming the "legatees" and "beneficiaries" to whom one-third of Maude's residuary estate should go was unlimited, and did not depend for its validity upon Clarence's choice being communicated to Maude. Condit v. DeHart, 62 N.J.L. 78, 40 A. 776 (1898).
The fact that the "residuary legatee" is a "trustee" cannot void the gift. Paying the trustee would carry out the provision in the second codicil to pay the "residuary legatees and residuary beneficiaries" of the estate under the last will and testament of Clarence, since he placed his residuary estate in trust with the First National Bank of Birmingham, as trustee. In Re Fowles Will, 222 N.Y. 222, 118 N.E. 611 (1918).
Several jurisdictions have upheld the validity of wills disposing of property in a manner similar to the fact situation in this case. Matter of Piffard, 111 N.Y. 410, 18 N.E. 718, 2 L.R.A. 193 (1888); *47 Rogers v. Walton, 141 Me. 91, 39 A.2d 409 (1944); Leary v. Liberty Trust Co., supra; Condit v. DeHart, supra. The situation here presented is discussed in Scott on Trusts, § 54.4, at page 388:
Clarence's will was executed for independent purposes and not for the purpose of complementing his mother's will. There is no occasion to invoke the doctrine of incorporation by reference in this case, and even if there were, since we are dealing with the will of Clarence which has been admitted to probate, the possibility of fraud is virtually non-existent, and the requirements of incorporation by reference even if applicable should be proportionately relaxed. The testatrix's will here purports to dispose of her property and also provides directions for determining the identity of the beneficiaries by giving a general description of them as well as referring to an act (the execution of Clarence's will), the sole or chief purpose of which was not that of complementing her will, but had the force and effect of an independent legal transaction.
We therefore hold that the testatrix could properly leave part of her property to such persons as may take under her son's will, whether the son predeceased her or not. The words which the testatrix used show an intent on her part to give to her son the privilege of naming the persons who would take his part of her estate should he die first.
The question of the testamentary capacity of Maude Leslie was severed by the trial court, and we pass no judgment on this aspect of the case, this decision being narrowly limited to a construction of the language used by the testatrix in the second codicil of her will and the legal effect thereof. The language used by the testatrix in her second codicil is sufficient to make a gift to the First National Bank of Birmingham, as trustee, of one-third undivided interest of the testatrix's residuary estate, and in the absence of other evidence sufficient to void such gift, the intent of the testatrix as shown by the words she used must prevail. The judgment of the trial court is therefore reversed and rendered on this aspect of the proceeding.
Reversed and rendered.
LIVINGSTON, C. J., and LAWSON, MERRILL and HARWOOD, JJ., concur. | April 2, 1970 |
6a909545-95b1-4f29-82a0-59b669650a94 | Lily Flagg Building Supply Co. v. JM Medlin & Co. | 232 So. 2d 643 | N/A | Alabama | Alabama Supreme Court | 232 So. 2d 643 (1970)
LILY FLAGG BUILDING SUPPLY CO., Inc.
v.
J. M. MEDLIN & CO. et al.
8 Div. 360.
Supreme Court of Alabama.
March 5, 1970.
*645 Watts, Salmon, Roberts & Stephens, Frank K. Noojin, Jr., Huntsville, for appellant.
Camp, Page, Williams, Utsey & Spurrier, Don T. Terrell, Huntsville, for appellees.
MADDOX, Justice.
This was an action to enforce a materialman's lien pursuant to Title 33, § 37, et seq, Code of Alabama 1940. Appellant, Lily Flagg Building Supply Co., Inc., initially filed its action against J. M. Medlin & Co. solely, and subsequently amended its complaint to add as parties Medlin's grantees, William G. Cassady and wife, Eileen Cassady, and New York Bank for Savings, assignee holder of a mortgage from Cassady and wife to Advance Mortgage Corporation.
After demurrers of each respondent were sustained to complainant's bill, as last amended, complainant took this appeal under the provisions of Title 7, § 755, Code, as amended by Act No. 72, Ex. Session, 1967, Acts of Alabama, p. 1947.
From the pleadings it appears that Medlin owned a certain lot in Madison County, that he made a contract on February 22, 1965, with Lily Flagg to furnish certain building materials which were actually used in the construction of improvements on the lot and that Medlin owed Lily Flagg $3,054.52 as of July 10, 1965, which remained due and unpaid.
Lily Flagg filed a verified statement of lien in the office of the Judge of Probate on October 25, 1965, and filed complaint against Medlin on November 2, 1965. Medlin demurred to the original bill on December 22, 1965, and assigned additional grounds of demurrer on January 12, 1967. The trial court sustained the demurrer on January 12, 1967. On February 2, 1967, more than a year after the original bill was filed, Lily Flagg amended the bill to add William G. Cassady and Eileen Cassady and New York Bank for Savings as respondents.
Prior to the commencement of the suit and prior to the filing of the verified statement of lien by the complainant, the subject lot had been conveyed by Medlin to Cassady and wife by deed dated July 16, 1965, and recorded July 19, 1965. The Cassadys gave a mortgage on the lot on July 16, 1965, to Advance Mortgage Corporation. This mortgage was recorded July 19, 1965, and was assigned to New York Bank for Savings by assignment dated September 1, 1965, and recorded September 3, 1965.
The primary question presented here is whether the amendment adding Cassady and wife and the New York Bank for Savings was barred by the limitation of six months set out in Title 33, § 42, Code of Alabama 1940.
It seems to be well settled that a materialman's or mechanic's lien created by Title 33, § 37 et seq., Code of Alabama 1940 (Recompiled 1958), is not perfected until every requirement of the statutes creating such lien has been complied with, and such lien remains inchoate and loses all force and vitality unless suit is brought and prosecuted to final judgment. United States v. Costas, 273 Ala. 445, 142 So. 2d 699 (1962), and the many cases there cited.
Appellant contends that under our lien law, as interpreted by our cases, if the contracting owner (Medlin here) is made a party respondent within the six-month period *646 as required by Title 33, § 42, a subsequent purchaser or subsequent encumbrancer whose interest is acquired after work commences on the building or improvement need not be made a party respondent during the six-month period after maturity of the entire indebtedness.
Appellant cites Benson Hardware Co. v. Jones, 223 Ala. 287, 135 So. 441 (1931); Sturdavant v. First Ave. Coal Co., 219 Ala. 303, 122 So. 178 (1929) and Grimsley v. First Ave. Coal & Lmbr. Co., 217 Ala. 159, 115 So. 90 (1928) to support its contention.
Authorities in other jurisdictions seem to be divided on the effect of an amendment as to parties on the computation of the statutory period in actions seeking enforcement of a mechanic's lien. See 75 A.L.R. 713. Unfortunately, our own cases are hard to reconcile and distinguish on this question.
We have reviewed all of our cases which have touched on the question here presented and have also reviewed cases from other jurisdictions. Our job is to try to determine what the Alabama Legislature intended and to reconcile our cases because a materialman's lien is a creature of statute. Unquestionably, the general policy of the statute is to secure to the materialman and the laborer the just reward of their material and labor, and is based upon the general equitable principle that one should not enjoy the benefit thereof without just compensation therefor. Since the lien is a creature of statute it cannot be extended beyond the purposes and plain requirements of the statutes.
What we said in Sorsby v. Woodlawn Lmbr. Co., 202 Ala. 566, 81 So. 68 (1919) can be paraphrased and is applicable here. The amended bill shows that Medlin has no interest, legal or equitable, to the property, lot or improvements; for that it shows that Medlin had conveyed the lot to the Cassadys, who in turn had mortgaged it to Advance Mortgage Corporation, which assigned its interest to New York Bank for Savings.
The Cassadys and New York Bank for Savings are the only persons or entities who by the amended bill are shown to have any title, legal or equitable, to the property in question. No relief was sought against the Cassadys or New York Bank for Savings in the original bill filed November 2, 1965. These parties were not called upon to defend against the asserted lien until February 2, 1967, when the complainant amended the original bill to add the Cassadys and New York Bank for Savings as party respondents. That they were not sooner made parties and required to defend was the fault of complainantcertainly so after the Cassadys filed their deed of record and New York Bank for Savings filed of record the mortgage assignment.[1] The complainant had ample time to have made the Cassadys and New York Bank for Savings *647 parties within six months as required by Title 33, § 42.
We have carefully studied Sturdavant, supra, and must admit to some difficulty in reconciling the reasoning used there with some of our earlier cases and some of our cases decided since Sturdavant.[2] The facts in Sturdavant are materially different from the fact situation in this case. As the parties agreed in Sturdavant, the facts were as follows:
As is readily apparent in Sturdavant, the complainant had no actual notice or knowledge at the time he commenced his suit or within the six-month period that the owners had transferred their interest to Sturdavant. We think Sorsby inferentially says the same thing and holds that unless a complainant has knowledge (actual or constructive) of the interest, either legal or equitable, of a particular party, he need not join him as a party within the six-month period, unless he acquires knowledge of such party's interest within the six-month period, enabling him to amend to add such party.
While Sturdavant can be distinguished because the lien claimant there did not have notice of the interest of the subsequent purchaser *648 during the time allowed by statute for the commencement of the suit, such is not the case in Benson Hardware Co. v. Jones, supra.
In Benson Hardware, the owner of the legal title did intervene in the action to establish the lien and later withdrew. This is a factual distinction from the case here, but the legal result reached in Benson Hardware is most difficult to reconcile.[3] In Adams Supply Co. v. United States Fidelity and Guaranty Co., 269 Ala. 171, 111 So. 2d 906 (1959), we held as follows:
We think the better view is the one announced in Adams Supply Co., quoted supra. The provisions of Title 33, § 50, regarding parties to an action to enforce a materialman's lien seem too clear for misunderstanding. If a lien claimant desires his judgment to be superior to the interest of persons who have acquired their interest in the property after commencement of the work but prior to the filing of the lien statement, he must join them as parties when he files suit to enforce his lien within the six-month period, provided he has actual knowledge or constructive notice of the interest of such persons at the time he files his suit to enforce the lien Sorsby v. Woodlawn Lumber Co., supra.
We readily agree with the principle of law stated in Grimsley v. First Ave. Coal & Lmbr. Co., supra, that a materialman's lien attaches and is created at the time the work on the building or improvement commences, and it is not defeated by a subsequent sale or conveyance of the property, provided the lienor perfects his lien in accordance with the requirements of law, and it is immaterial that the conveyance was executed before suit is brought to enforce the lien. But under our statute the lien can be lost by failure to pursue it by timely filing of suit for its enforcement. In Sorsby and in Home Federal Savings & Loan Assn. v. Williams, 276 Ala. 37, 158 So. 2d 678 (1963), we said:
The provisions of Title 33, § 50, to the effect that in such enforcement actions, all persons interested in the matter in controversy, or in the property charged with the lien, may be made parties, but such as are not made parties shall not be bound by the judgment or proceedings seem quite clear. The lien claimant has an optionhe can either join persons who have an interest in the property or he can fail to join thembut if he does not join them, they are not bound by the judgment. In other words, we think that the reasoning in Sorsby is still the better reasoning and the rule which has been followed by our later cases.
*649 In view of the fact that we cannot reconcile some of the reasoning in Benson Hardware Co. v. Jones, supra, and Jackson v. Farley, 212 Ala. 594, 103 So. 882 (1925), with cases which we have decided both prior to and subsequent to the time they were decided, we have no alternative but to overrule those cases insofar as they are in conflict with the legal points set out in this decision. We concur in the result reached in Sturdavant and feel that it is distinguishable on the facts from this case.
The growth of the State and the frequency with which the bench and bar will necessarily be called upon to determine the condition of the title to land on which improvements have been made compels us to attempt to settle as best we can the law in this area. We hope that we have done this with this decision.
In view of the above, each of appellant's assignments of error, except assignment of error No. 10, is without merit. All assignments of error, except assignments 5, 6, 7, 8, 9 and 10 deal with the action of the trial court in sustaining the demurrers of the Cassadys and New York Bank for Savings to the bill as amended. Assignments 5, 6, 7, 8, 9 and 10 claim the trial court erred in sustaining Medlin's demurrer.
Assignment 10 claims that the trial court erred in sustaining the demurrer of the respondent Medlin to that aspect of the amended bill which seeks to have the court award a money judgment in favor of the complainant and against Medlin. Appellant is right. The trial court erred in sustaining Medlin's demurrer in this respect. In this regard, the jurisdiction conferred upon courts of equity by Title 33, § 48, allows the complainant to have a general judgment against the contracting owner for the agreed price for the material furnished under the contract, though he may not be able to establish the mechanic's lien under the statute. Crosby v. Hale, 277 Ala. 542, 173 So. 2d 85 (1965); Floyd v. Rambo, 250 Ala. 101, 33 So. 2d 360 (1948).
The judgment of the trial court is affirmed in part, and reversed and remanded, in part.
Affirmed in part, reversed and remanded in part.
LIVINGSTON, C. J., and SIMPSON, MERRILL, COLEMAN, HARWOOD, BLOODWORTH and McCALL, JJ., concur.
[1] Complainant's amended bill, in part, reads:
"* * * E. The present owners of the said property are William G. Cassady and wife, Eileen Cassady. Said Respondents hold record title to said property under a deed dated July 16, 1965, of record in Deed Book 363, page 475, Office of the Probate Judge, Madison County, Alabama, said deed having been filed for record on July 19, 1965, and said Respondents have held title thereto continuously since the date of said deed.
F. There appears of record in the Office of the Probate Judge of Madison County, Alabama, the following outstanding mortgages on the above described property, to-wit:
A mortgage from William G. Cassady and wife, Eileen Cassady, to Advance Mortgage Corporation dated July 16, 1965 filed July 19, 1965 of record in Mortgage Book 843, page 685.
Said mortgage has been assigned to the Respondent New York Bank for Savings dated September 1, 1965, filed September 3, 1965 of record in Mortgage Book 859, page 755. * * *"
[2] A statement in Sturdavant, attempting to distinguish Sorsby, supra, appears to be in error. The statement reads:
"* * * After expiration of six months from accrual of complainant's indebtedness contracted for by Wilson, it was sought to make Mrs. Sorsby a defendant, and this was defeated by her plea of the six months statute in bringing the suit against her as the owner, and that as to her the amendment did not relate back to the bringing of the suit. The reason for this ruling was that King did not contract for the material or building, this being by reason of Wilson's contract with complainant and that Wilson was not before the court or bound by the decree to be rendered. In Jackson v. Farley, 212 Ala. 594, 596, 103 So. 882, 884, this defect in the pleading is adverted to as follows:
"In Sorsby v. Woodlawn Lumber Co. the owner of the property, with whom complainant had its contract, was not made a party to the proceeding to foreclose the mechanic's lien.'"
We have checked the original record in Sorsby. W. J. Wilson was named in the initial pleading as the "owner or agent or contractor of the owner." Admittedly, the original record filed in this court fails to show that Wilson was ever served with process (some of the pleadings indicate he may have been in Canada), but the statement which refers to a defect in the pleading seems to be in error.
[3] The legal conclusion reached in Benson Hardware and Sturdavant have been questioned in a legal treatise written by a former president of the Alabama Bar Association. See The Judicial Enforcement of Materialmen's Liens in Alabama, Vol. 14, Alabama Law Review, pages 341 and 345. | March 5, 1970 |
a96d69fc-b819-4754-8ebd-8fa433264657 | Billingsley v. Billingsley | 231 So. 2d 111 | N/A | Alabama | Alabama Supreme Court | 231 So. 2d 111 (1970)
Robert BILLINGSLEY
v.
Ann L. BILLINGSLEY.
6 Div. 625.
Supreme Court of Alabama.
January 22, 1970.
*112 Knight & Knight, Cullman, for appellant.
Thomas E. Snoddy, Double Springs, for appellee.
HARWOOD, Justice.
On 9 July 1966, Ann L. Billingsley, a bona fide resident of Winston County, Alabama, filed a bill for divorce against Robert Billingsley, a resident of Broward County, Florida. The divorce was sought on the grounds of abandonment.
The bill further averred that the complainant and respondent had purchased some 75 acres of land in Winston County as tenants in common on which they had built a house and which was occupied as their home at the time the respondent abandoned the complainant.
The complainant prayed for a decree of divorce, and further that the title to the 75 acres held by complainant and respondent as tenants in common, including the house, be vested in the complainant, and the respondent be divested of any right, title, or claim to the property.
Service on the respondent husband was had by registered mail on 12 August 1966.
On 26 July 1966, Robert Billingsley filed a bill in the Circuit Court of Broward County, Florida, against Ann L. Billingsley seeking a divorce on the grounds of cruelty and habitual intemperance.
Ann L. Billingsley was served constructively in this suit, and it was stipulated in the hearing in the present proceedings that each respective court had jurisdiction of the divorce proceedings filed therein.
On 30 August 1966, the Alabama attorney for Ann L. Billingsley appearing specially for the sole purpose, and for no other, filed a plea in abatement in the Florida court, basing such plea on the ground that at the time of the filing of the suit in the Florida court, the divorce suit by Ann L. Billingsley was pending in the Circuit Court of Winston County, Alabama, in Equity. The attorney for Robert Billingsley filed a motion to strike this plea in abatement.
The Florida Chancellor granted the motion to strike on the ground that the Alabama attorney was not authorized to practice in the State of Florida, and the plea was therefore a nullity. The Chancellor directed the clerk to enter a decree pro confesso against the respondent Ann L. Billingsley on 16 September 1966, unless she appear in person, or through an attorney authorized to practice in Florida, and plead to the complaint on or before 15 September 1966. The clerk was ordered to notify Ann L. Billingsley and her Alabama attorney by mailing a copy of the order to them on the day of the order.
No further appearance in the Florida proceedings was made by Ann L. Billingsley, and on 16 September 1966, the clerk of the Florida court entered an order that the bill be taken as confessed and that the cause proceed ex parte to a final hearing.
The cause was set for hearing by the Florida judge for 19 September 1966, and after a hearing on that day the court entered a judgment and decree granting to Robert Billingsley a divorce matrimonii from Ann L. Billingsley.
In the Alabama proceedings the respondent husband having filed no appearance, the cause was submitted on motion for a decree pro confesso with a proper note of submission, and on 29 September 1966, a hearing was had and a decree was entered granting the complainant wife a divorce a vinculo matrimonii. The Chancellor further decreed that the title to the described Alabama land held by the complainant and respondent be vested wholly in the complainant *113 wife, and that the respondent husband be divested of any right, title, or interest therein.
Thereafter on 2 May 1967, Robert Billingsley filed a bill in the nature of a bill of review to have the decree rendered by the Alabama Chancellor set aside. Ann L. Billingsley filed an answer to this bill, and after a hearing the Chancellor entered an order of denial. This appeal is from that order.
The appellant's assignments of error, and brief and argument, are all directed toward the contention that the Florida decree was denied its true recognition under the Full Faith and Credit provisions of the United States Constitution; that had full faith and credit been accorded the Florida decree, then that decree was res adjudicata of the Alabama proceedings, and the parties having been divorced under the Florida decree, the Alabama court was without authority to entertain the suit for divorce or to make any award affecting the Alabama land since alimony can be awarded only in connection with a divorce.
It is perfectly clear under the developed doctrines that a court may have full power to grant a divorce to a person domiciled therein even though the service on the other party be constructive. This for the reason that a sufficient part of the marriage res accompanies the domiciliary complainant, and authorizes an in rem action to determine the status of such res. Alimony, however, is a personal action and a court cannot properly award a personal judgment for alimony unless personal jurisdiction be acquired of the respondent, or, as here, property be within the jurisdiction of the granting state. The decree in the present case pertaining to the land situated in Alabama was in effect a decree affecting the res or status of the Alabama land which was within the power of the Alabama court to adjudicate.
The Alabama land having been brought within the jurisdiction of the Chancellor, he had the power to determine the interrelated equities of the interest and of the parties to the land. Owens v. Owens, 281 Ala. 239, 201 So. 2d 396.
The question with which we are now concerned has been before numerous courts on many occasions. The decisions are diverse, and the bases on which these decisions were reached are as varied as the conclusions reached. As stated by an Ohio court when considering a case involving a covenant in restraint of trade:
We refer the interested student to an annotation in 28 A.L.R.2d pps. 1378 through 1419, for a comprehensive discussion and abundant citations of authorities concerning the many faceted principles involved in the question now being considered. Due regard to brevity compels us to confine this opinion to what we consider to be Alabama law governing and directing our conclusions.
Counsel for appellant argues that our decisions are to the effect that there is no jurisdiction to grant permanent alimony except in a divorce proceeding. In this general statement counsel for appellant is correct. Penn v. Penn, 246 Ala. 104, 19 So. 2d 353; Mason v. Mason, 276 Ala. 265, 160 So. 2d 881.
A bare enunciation of this principle does not, however, answer the question of whether the Alabama court lacked jurisdiction to entertain Mrs. Billingsley's divorce action under the circumstances shown, and perforce to enter a decree affecting the title to land situated in Alabama.
*114 Jurisdiction to award permanent alimony is dependent upon the existence of a marital relation at the time the action is instituted. Boone v. Boone, 192 Ga. 579, 15 S.E.2d 868. In the present case the suit for divorce, and request that the title to the Alabama land be vested in the wife, had been instituted prior to the institution of the Florida proceedings for divorce by the husband.
When a court of equity acquires jurisdiction of a cause for any purpose, it will retain it and do complete justice between the parties, enforcing, if necessary, legal rights and applying legal remedies to accomplish that end, and that jurisdiction is not ousted because it does not have power to do all the things requested. White v. White, 181 Va. 162, 24 S.E.2d 448.
Jurisdiction of the Alabama court over the subject matter of the action continued, notwithstanding the Florida decree except in so far as recognition of the marital capacity of the parties is necessitated by the Full Faith and Credit provisions of the Federal Constitution. Esenwein v. Pennsylvania, 325 U.S. 279, 65 S. Ct. 1118, 89 L. Ed. 1608, 157 A.L.R. 1396; Estin v. Estin, 334 U.S. 541, 68 S. Ct. 1213, 92 L. Ed. 1561, 1 A.L.R.2d 1412; Williams v. North Carolina, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279, 143 A.L.R. 1273.
A century ago, in Turner v. Turner, 44 Ala. 437, this court held that a wife, having instituted a divorce proceeding in Alabama where she was domiciled, and which was the matrimonial domicile, could not be thwarted in forwarding her divorce action in this state despite a plea of res adjudicata setting up a decree of divorce awarded to the husband in an ex parte divorce proceeding in Indiana, rendered during the pendency of the Alabama proceedings. In reaching its conclusion, the court stated:
"The Indiana divorce in favor of the husband, Matthew Turner, against his wife, the complainant, may protect him upon a charge of bigamy, should he marry again in this State.Thompson v. The State, 28 Ala. 12. But without stopping to inquire whether it was obtained by him by fraud, and therefor is vicious on that account or not, it certainly cannot effect the rights of the complainant, except her right in the husband as husband. If it is valid, it unmarries him and sets him free from his marital vows to her. He is no longer the complainant's husband. But it does not settle her right to alimony; it does not settle her right to dower in his lands, and her statutory right to distribution of his property in this State, in the event she should survive him, nor any other interest of a pecuniary character she may have against him.Webster v. Reid, 11 How. [437] 460, (13 L.Ed. 761); Nations v. Johnson, 24 How. [195] 206, (16 L.Ed. 628); Boswell's Lessee v. Otis, 9 How. [336] 350, (13 L.Ed. 164); Mills v. Duryee, 7 Cranch 481, (3 L.Ed. 411); D'Arcy v. Ketchum, 11 How. 171, 172, (13 L.Ed. 648); McElmoyle v. Cohen, 13 Pet. 330, (10 L.Ed. 177); 2 Amer.Lead.Cases, 551; 3 Phill. Ev. on C. and H. notes, p. 353, note 636. It is the duty of the State to protect its own citizens, within its own borders. This is the natural compensation for allegiance. This high duty extends to all the pecuniary rights of the citizens, as well as to the rights of security of person.Foster's Cr. Cas. p. 188; Story, J., in U. S. v. Rice, 4 Wheat. 246, 254, (4 L.Ed. 562). No obligation of comity is paramount to this duty. Without a constant and effective exertion of it, citizenship would become a farce.Reid v. U. S., 3 Quart. Law Journ. p. 122; S.C. 4 Div.C.C. 21; U. S. v. More, 3 Cranch 160, (2 L.Ed. 397), note. The wife is as much the citizen of the State as the husband, and is entitled to the protection of its laws to the same extent, so long as she remains within its jurisdiction. It would be a scandal to justice to imperil her and sacrifice her most important and cherished rights upon a mere technicality; a technicality that often contradicts the truth. When her protection requires it, it would be cruelly unjust for the State, of her actual residence and domicil, to repudiate *115 its own right of jurisdiction to give her aid. I therefore think that the better opinion is, that she has the right to file her bill here, and to all the relief that the court could give her, notwithstanding her husband might not be domiciled in this State at the commencement and during the whole pendency of her litigation with him. 2 Bish.Mar. and Div. § 156, 4th ed.; Cheever v. Wilson et al., Sup.Court U.S., Dec. term, 1869, (9 Wall. 108, 19 L.Ed. 604); Ditson v. Ditson, 4 R.I. 87, 2 Bish.M. and Div. § 124, et seq."
Had the decree in this case had the effect of denying in toto the Florida decree, a different question would have been presented. It in no wise lessened the marriage capacity of either party, but rather fortified the Florida decree granted the husband by awarding a divorce to the Alabama wife. His marital capacity was not affected thereby.
The procedure of permitting the wife to continue her divorce action against a husband who secured an ex parte divorce in another state for the purpose of awarding alimony, or settling property interests, has been criticised by one court as "killing something which is already dead" and a "useless formula" since the same result could be obtained by allowing the wife to proceed for alimony alone. See Thurston v. Thurston, 58 Minn. 279, 59 N.W. 1017.
While such simplified procedure has much to recommend it, it invites other serious questions as to the propriety of its use in those jurisdictions holding the view that permanent alimony can be decreed only in connection with a divorce. We know of no constitutional objection to the procedure followed in Turner v. Turner, supra.
As stated in Wright v. Wright, 24 Mich. 180, when considering a question similar to the one now under consideration:
It is our conclusion that the decree of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and MADDOX, JJ., concur. | January 22, 1970 |
b36d6adf-cebb-4d22-9dbf-c48dd037a197 | Tell v. State | 231 So. 2d 107 | N/A | Alabama | Alabama Supreme Court | 231 So. 2d 107 (1970)
Charles Edward Lee TELL, Alias
v.
STATE of Alabama.
6 Div. 690.
Supreme Court of Alabama.
January 22, 1970.
Rehearing Denied February 19, 1970.
Thomas Seay, Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
MADDOX, Justice.
Defendant was indicted for the rape of a twenty-seven year old woman in Jefferson County. He entered a plea of not guilty, was tried and the jury returned a verdict of guilty and fixed his punishment at death. After being sentenced to death, he filed notice of appeal, which is here under the automatic appeal law applicable to cases where the death sentence is imposed. Act Number 249, approved June 24, 1943, General Acts of Alabama, 1943, p. 217; Title 15, § 382(1), Code of Alabama, 1940 (Recompiled, 1958).
We will not set out all the evidence in view of the fact that we find it necessary to reverse and remand for a new trial. Briefly, the evidence showed that the victim went to her babysitter's house at about 11:00 P.M. on April 16, 1968, to get her child, and she noticed a car stop across the street from her and a colored male get out and stand by the car. She got her three year old child and returned to her car. She did not see the colored male upon returning to her car, but as she was putting her child in the car, the colored male, who she later identified to be the accused, stuck a pistol in her mouth and told her to get into the car. During the next two or three hours, the victim testified that she was forced to give the defendant approximately seven dollars of her money, that the defendant forcibly ravished her on three separate occasions during the time and on one occasion forced her to commit an unnatural sex act upon him, all of which occurred in her car and in the presence of her small child. When she returned to the vicinity of her babysitter's house, she testified that she memorized the tag number on the automobile which was still parked in the same spot where she had first seen the accused get out of the car. This tag number was given to the police the next day and arrangements were also made to have the victim's telephone monitored. A telephone call which was made to the victim and traced to the accused led to his arrest.
*108 We consider the testimony of Detective Albert Wallace and James Alto Jones relative to the tag number on the automobile to be prejudicial.
Detective Wallace testified that the tag number given to him by the victim was the same as the tag number on a car on which the Department had a "stolen report." [1]
James Alto Jones was called and testified that the car was owned by him and that he had reported to police that the automobile had been stolen. While there was no objection to this evidence interposed at the trial and while this matter was not brought to our attention in the brief of counsel, we consider this unnecessary. In death cases, we consider any testimony that was seriously prejudicial to the rights of the appellant and we may reverse thereon even though no lawful objection or exception was made and even though our attention is not called to the matter in brief of counsel. Duncan v. State, 278 Ala. 145, 176 So. 2d 840 (1965).
The evidence here about the "stolen" automobile is strikingly similar to evidence of a "stolen" pistol which we held prejudicial in a death case in Boggs v. State, 268 Ala. 358, 106 So. 2d 263 (1958). As we said there, we cannot possibly probe into the mental processes of the jurors to ascertain whether and to what extent the incompetent evidence about the "stolen" automobile had in influencing the exercise of their discretion in fixing the punishment. We are not willing to say that it did not have some influence on them, thus affecting the substantial rights of the appellant.[2]
The judgment is reversed and the cause remanded to the circuit court for a new trial.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, MERRILL and HARWOOD, JJ., concur.
[1] "Q. Now, did you have occasion to talk to theMrs. Laura Marian Todd?
A. Yes, sir.
Q. "When and where was that?
A. That was on the morning of the 17th at a girl-friend's home.
Q. Whose home is that?
A. I don't recall her name.
Q. Is it the young lady that is out in the witness room now?
A. Yes, sir.
Q. What part of town was it in?
A. In East Lake.
Q. In East Lake?
A. Yes, sir.
Q. At that time, did she give you a piece of paper?
A. Yes, sir.
Q. With the tag number on it?
A. Yes, sir.
Q. What did you do with the tag number? Did you look at it?
A. Yes, sir.
Q. What was the tag number?
A. IA 73982
Q. All right. Now, were there any records in the City of Birmingham concerning that tag number, the automobile with that tag number at that time? Well, what did you do with it?
A. I called the Bureau and checked the tag number and found out there was a stolen report on it.
Q. A stolen report?
A. Yes, sir.
Q. Now, whoto whom was the tag issued, do you recall?
A. I believe his name was James Jones.
Q. Have you seen a young man out there in the witness room?
A. Yes, sir."
[2] In addition to the evidence of the "stolen automobile" the following testimony was given by Police Detective Charles Robert Jones concerning the arrest of the defendant:
"Q. Tell us what happened. Did you see the Defendant there?
A. Yes, sir. As I entered the bay, or set of stairs going up, I looked up, and the Defendant saw meI had talked to him previously, on another cases, and he recognized me.
Q. You could see he recognized you when your faces met?
A. Yes, sir." (Emphasis added) | January 22, 1970 |
da4b0955-87c7-41b0-9150-7fd3550e3d7a | Aniton v. Robinson | 134 So. 2d 764 | N/A | Alabama | Alabama Supreme Court | 134 So. 2d 764 (1961)
Georgia ANITON et al.
v.
Nellie ROBINSON et al.
6 Div. 634.
Supreme Court of Alabama.
November 16, 1961.
*765 J. J. Cockrell, Birmingham, for appellants.
Johnson & Randall, Oneonta, for appellees.
LAWSON, Justice.
The original bill was filed by the appellees for the sale of land for division of proceeds among alleged tenants in common and for other relief, including the cancellation of certain conveyances as clouds on appellees' title.
After demurrer was overruled the appellants filed an answer which was made a cross bill. The appellees answered the cross bill. The answer-cross bill was amended. The original bill was then amended. The answer-cross bill was again amended. The appellees answered the cross bill as last amended. The appellants, the respondents-cross complainants, then filed "Demurrer To Complaint As Last Amended," which was overruled.
*766 Following a hearing wherein the testimony was taken ore tenus, the trial court denied the relief sought in the cross bill and dismissed it. The prayer of the original bill that the subject lands be sold for division was granted and the lands ordered sold.
The respondents-cross complainants have appealed to this court.
The assignments of error which are sufficiently argued in appellants' brief to warrant consideration by this court assert that the trial court erred in the following respects: (1) in overruling demurrer to the original bill; (2) in overruling "Demurrers to Complaint as Last Amended"; (3) in denying relief under the cross bill and dismissing it; and (4) in ordering the subject lands sold for division.
The demurrer to the original bill was addressed to the bill as a whole. The only grounds of that demurrer which are insisted upon in appellants' brief are those which take the point that the bill is without equity. So if any aspect of the bill asserts matter of equitable cognizance, the decree overruling the demurrer will be affirmed. Sellers v. Valenzuela, 249 Ala. 627, 32 So. 2d 517; Cunningham v. Andress, 267 Ala. 407, 103 So. 2d 722; Adams Supply Co. v. United States Fidelity & Guaranty Co., 265 Ala. 178, 90 So. 2d 284; Shaddix v. Wilson, 261 Ala. 191, 73 So. 2d 751.
The appellants insist that the argued grounds of demurrer should have been sustained for the reason that the bill shows on its face that the complainants are mere reversioners with no right or interest in the present use and enjoyment of the property, or to the proceeds in case of sale, and, hence, cannot compel partition or sale against the respondents, some of whom hold a life estate in the subject lands, according to the appellants' construction of the bill.
If the bill be so construed, that is, as showing that complainants own only a reversionary interest in the lands in controversy, the outstanding life estate is an obstacle or impediment in the way of assertion by complainants of their legal rights. Hence, they have the right to maintain this bill to remove the clouds from their title in reversion, although out of possession. Fies v. Rosser, 162 Ala. 504, 50 So. 287; Screws v. Wall, 203 Ala. 178, 82 So. 428; Baggett Mercantile Co. v. Vickery, 213 Ala. 427, 105 So. 207.
We hold, therefore, that the trial court did not err in overruling the general demurrer to the bill as a whole.
The argued grounds of the so-called "Demurrers to Complaint as Last Amended" were directed, not to the complaint as amended, but to appellees' answer to the cross bill. Demurrer will not lie to an answer to a bill in equity or to an answer to a cross bill. See Flowers v. Auto Mutual Indemnity Co., 236 Ala. 30, 180 So. 705.
We hold that reversible error is not made to appear in connection with the court's action in overruling the so-called "Demurrers to Complaint as Last Amended."
We come now to consider the appellants' insistence that the trial court erred in denying relief under the cross bill and in dismissing it.
The subject lands were owned by Henry Clifton Aniton, who died intestate in 1948. He was survived by his wife, Georgia; by one brother, Boston; by two sisters, Nellie Robinson and Dora Coruthers; by seven nieces and nephews, children of his deceased brothers, Rafus and Greely; and by a grandnephew and two grandnieces, children of a deceased son of the deceased brother Rafus.
No children were born to Georgia and Henry Clifton Aniton.
The original bill was filed by the surviving sisters, Nellie Robinson and Dora Coruthers. Among the respondents to the *767 original bill are Georgia Aniton, the widow, and one Emogene Aniton Smith, who came to live with Henry Clifton and Georgia Aniton when she was seven or eight years of age.
In their answer-cross bill the respondents alleged in effect that Emogene Aniton Smith is the adopted daughter of Henry Clifton Aniton and inherited all of the suit property subject to the dower rights of the widow, Georgia Aniton. The answer-cross bill prayed that the court so decree. There is no claim that Georgia has any homestead rights in the suit property. The amended answer-cross bill contained the prayer for specific performance of a contract to adopt Emogene Aniton Smith as the child and heir of Henry Clifton Aniton.
The trial court in the decree here under review denied the relief sought in the cross bill as amended and dismissed it, after observing:
Where, as here, the question was with respect to title to land and the statute of frauds was pleaded, this court has denied specific performance of an alleged oral contract concerning adoption. Marietta v. Faulkner, 220 Ala. 561, 126 So. 635, followed and applied in Olive v. Olive, 221 Ala. 697, 127 So. 915. See Benefield v. Faulkner, 248 Ala. 615, 29 So. 2d 1; Luker v. Hyde, 253 Ala. 283, 45 So. 2d 32; id., 260 Ala. 248, 69 So. 2d 421. In Prince v. Prince, 194 Ala. 455, 69 So. 906, upon which counsel for appellants places so much emphasis, the statute of frauds was not pleaded.
In this case there was no written instrument introduced in evidence signed by the Anitons or either of them wherein it was agreed that Emogene was to come into their home and custody to be treated and cared for as if she were their own child, as was the situation in Benefield v. Faulkner, supra.
The appellants did introduce in evidence a letter written by Henry Clifton Aniton to Emogene in 1946 which shows that the writer was extremely fond of Emogene. The letter contained this postscript: "When I am gone I [sic] you to have everything I got."
This letter, written many years after Emogene had married and moved away, cannot be said to be sufficient to warrant a decree of specific performance as prayed for in the amended cross bill. The burden was upon appellants to prove the contract by clear and satisfactory evidence. Luker v. Hyde, 260 Ala. 248, 69 So. 2d 421. In our opinion they have not met this burden.
We have repeatedly held that where testimony was heard orally by the trial court, its finding of fact is given the same weight as a jury verdict and will not be disturbed here unless palpably wrong. Wiginton v. Milford, 271 Ala. 271, 122 So. 2d 769.
Aside from any presumption, we are impressed from a careful reading of this record that the insistence that Emogene is *768 the adopted child of Henry Clifton Aniton is but an afterthought.
As we have shown, Henry Clifton Aniton died in 1948. His estate was administered in the Probate Court of Blount County. The widow, Georgia Aniton, was appointed administratrix. In her petition for letters of administration filed on November 15, 1948, Georgia Aniton alleged that the heirs and distributees of Henry Clifton Aniton were herself, his brother and two sisters, and five nieces and nephews, all of whom were named. The nieces and nephews named are the children of the deceased brother Rafus. No mention was made of the two children of the deceased brother Greely nor of the three children of the deceased son of Rafus. Emogene Aniton Smith was not mentioned as an heir or distributee.
The order approving the final settlement of the administratrix was made and filed on November 12, 1949. It contains the statement that Henry Clifton Aniton was survived by no children.
It was not until 1958 that either Georgia Aniton or Emogene Aniton Smith asserted that the latter was the adopted daughter of the deceased. This position was not taken until after the appellees refused to convey to Georgia Aniton their interest in their brother's lands.
We are clear to the conclusion that the trial court was eminently correct in refusing to enter a decree of specific performance as prayed for in the amended cross bill and in dismissing it.
The appellants next insist that the trial court erred in ordering the suit property sold for division for the reason that the appellees, the complainants below, own only a reversionary interest without right to the present use and enjoyment of the property or the proceeds thereof in case of sale.
The rule seems to be well established that one who has a mere reversionary interest and has no right or interest in the present use or enjoyment of the land, or to the proceeds in case of sale, cannot compel partition against one owning an outstanding life estate in and to the entire property, since the right to partition land depends upon the actual or constructive possession of the land and the right to participate in the proceeds of a sale for such purpose. Fies v. Rosser, 162 Ala. 504, 50 So. 287; Letcher v. Allen, 180 Ala. 254, 60 So. 828; Shannon v. Ogletree, 202 Ala. 219, 80 So. 41; Street v. Watts, 202 Ala. 622, 81 So. 564; Chapman v. York, 208 Ala. 274, 94 So. 90; Etheredge v. Etheredge, 219 Ala. 660, 123 So. 48; Mizell v. Walley, 253 Ala. 302, 44 So. 2d 764; Compton v. Cook, 259 Ala. 256, 66 So. 2d 176; Ganus v. Sullivan, 267 Ala. 16, 99 So. 2d 204.
The appellees admit that upon the death of Henry Clifton Aniton, the widow, Georgia Aniton, was entitled to be endowed of one half of his landsthat is, a life estate in one half of the lands of which he died seized and possessed.
They concede that no court has made an assignment of dower to Georgia Aniton, the widow.
They recognize the general rule to be that heirs cannot have partition pending the paramount right of the widow to quarantine, dower or homestead. Hamby v. Hamby, 165 Ala. 171, 51 So. 732; McAllister v. McAllister, 189 Ala. 220, 66 So. 462.
The appellees insist, however, that the several conveyances which have been made since the death of Henry Clifton Aniton affecting the lands which he owned at the time of his death operate to give appellees the right to have the lands here involved sold for division.
The first conveyance which affected the Henry Clifton Aniton lands following his death was executed on May 27, 1957. It was a warranty deed wherein the widow, Georgia Aniton; the surviving brother, Boston Aniton; and the surviving sisters, Nellie Robinson and Dora Coruthers, granted, bargained, sold and conveyed to Thomas E. Whited "all our right, title and interest in and to" approximately three and one-fourth acres.
*769 The appellees having joined in that conveyance to Whited do not claim any interest in the land described therein and hence they do not seek its sale in this proceeding.
The next conveyance was a quitclaim deed executed on August 17, 1957, wherein "the undersigned heirs of H. C. Aniton" conveyed to the widow, Georgia Aniton, their "right, title, interest and claim" to all of the lands of which Henry Clifton Aniton died seized and possessed except the three and one-fourth acres covered by the deed to Thomas E. Whited. The "undersigned," that is, the grantors in the quitclaim deed to Georgia Aniton, were the surviving brother, Boston Aniton; the surviving children of the deceased brother Rafus; and the children of the deceased brother Greely. By this conveyance Georgia Aniton acquired fifty-one ninetieths of the reversion.
At this point the reversion of the Henry Clifton Aniton lands, except the three and one-fourth acres covered by the May, 1957, deed to Thomas E. Whited, was apparently owned thusly: fifty-one ninetieths by Georgia Aniton, eighteen ninetieths by Nellie Robinson, eighteen ninetieths by Dora Coruthers, one ninetieth by Emmett Aniton, Jr., one ninetieth by Eddie June Aniton Hughes, and one ninetieth by Emma Jean Aniton. The last three named persons are the children of the deceased son of Henry Clifton Aniton's deceased brother, Rafus Aniton.
On June 9, 1958, Emogene Aniton Smith for the first time took action indicating that she claimed to be the adopted daughter of Henry Clifton Aniton. On that date she joined with her husband and with Georgia Aniton in executing a warranty deed wherein the grantors purported to grant, bargain, sell and convey to Nathaniel Polk and wife, Ella Mae Polk, approximately forty acres of the Henry Clifton Aniton lands. The instrument contained this statement: "The above-named grantors are the surviving widow and daughter of H. C. Aniton, deceased, being the only surviving heirs-at-law of the said H. C. Aniton." The land covered by this conveyance will sometimes be referred to hereinafter as Tract A. The Polks later mortgaged Tract A to Georgia Aniton to secure a note in the amount of $900. The Polks were made respondents to the original bill and are among those persons who have appealed to this court.
On August 12, 1958, Emogene Aniton Smith, her husband, and Georgia Aniton executed a warranty deed wherein they purported to convey to Thomas E. Whited and Billy Whited approximately eighteen acres of the Henry Clifton Aniton land. This instrument, like the one purporting to convey the forty acres to the Polks, contained a statement to the effect that Georgia Aniton, the widow, and Emogene Aniton Smith were the only heirs at law of the said Henry Clifton Aniton. The eighteen acres covered by this instrument will be sometimes hereinafter referred to as Tract B. The Whiteds were made respondents to the original bill and are also among those who have appealed to this court.
There is an eight-acre tract which has not been included in a conveyance since the death of Henry Clifton Aniton except in the quitclaim deed to Georgia Aniton. It is here involved and will be sometimes hereinafter referred to as Tract C.
As we have shown above, the trial court concluded that Emogene Aniton Smith was not the adopted daughter of Henry Clifton Aniton and that she had not established a contract to adopt, so it found in effect that the conveyances in which Emogene Aniton Smith and her husband had joined with Georgia Aniton as grantors operated to convey to the grantees therein no more than the interest which Georgia Aniton owned in the property described in the conveyances.
The trial court found that Tract A:
*770 Aniton in the balance, but subject to a mortgage to Georgia Aniton;
In regard to Tract B, the trial court found that it is owned by the following joint owners, with their interests as follows:
As to Tract C, the trial court found that it is owned by the following joint owners, with their respective interests as follows:
The court further found that none of the tracts could be fairly and equitably divided or partitioned among the joint owners without a sale for division and, as shown above, ordered a sale.
In regard to Tract A, we understand that the court held that Georgia Aniton conveyed to the Polks an undivided fifty-one ninetieths interest in the reversion and a life estate in the entire forty acres. The reversionary interests owned by the complainants Nellie Robinson and Dora Coruthers and by the other three persons were held to be subject to the life estate of Georgia Aniton, which she conveyed to the Polks.
The trial court made no mention of a dower interest or life estate in connection with Tract B and expressly stated that Georgia Aniton had no dower interest in Tract C.
The conveyance of the widow's dower interest, before it is assigned, has different operation at law than in equity. The widow having no fixed, determinate estate in any specific part of the land until dower is allotted, her antecedent conveyance to a stranger passes no legal estate and is inoperative at law; and when made to the terre-tenant operates in the nature of a release, or extinguishment of the right of dower. Until assigned, the widow's right to dower is an equity, of which a court of law does not take cognizance; but on the principle that an assignment of a right in action, though not assignable at law, will be protected in equity, a court of equity will uphold the widow's alienation of her dower interest to a stranger, and protect the right of the alienee, there being a valuable consideration paid, and the absence of fraud, imposition and undue advantage. These principles were declared in Reeves v. Brooks, 80 Ala. 26, and reaffirmed in Wilkinson v. Brandon, 92 Ala. 530, 9 So. 187.
Consequently, we cannot agree with the decree under review in the respect that it says that the Polks acquired from Georgia Aniton a life estate in Tract A or in any part of that tract. Under the deed from Georgia Aniton, the Polks acquired her interest in the fee and a right of action to have her dower interest allotted to them. Georgia Aniton had no life estate to convey to the Polks, for her dower had not been allotted.
*771 We pause here to observe the difference between dower and the courtesy rights of the surviving husband. The latter is given a life estate in all of his deceased wife's realty. Section 12, Title 16, Code 1940. Not so in the case of the surviving wife. Sections 40 and 41, Title 34, Code 1940. As shown above, dower, before it is allotted, is in the nature of a right of action, and is not an interest or estate in land. Wilkinson v. Brandon, supra; Reeves v. Brooks, supra; Francis v. Sandlin, 150 Ala. 583, 43 So. 829. Because of this distinction between the widow's dower and the surviving husband's courtesy rights, the case of Mizell v. Walley, 253 Ala. 302, 44 So. 2d 764, is not controlling here.
The question is presented as to whether it was proper to order Tract A sold for division even though the Polks do not have a life estate in the lands conveyed to them but, in equity, do have a right of action which when assigned could give them a life estate in at least a part of that tract.
We are of the opinion that as long as that right exists the complainants cannot be said to have a right to possession and hence it was error to order Tract A sold for division.
We do not understand that the right to have the dower interest allotted has been lost by virtue of the provisions of § 63, Title 34, Code 1940. See Quicksey v. Hall, 260 Ala. 162, 69 So. 2d 698; Williams v. Anthony, 219 Ala. 98, 121 So. 89; Leddon v. Strickland, 218 Ala. 436, 118 So. 651.
The appellees, as heirs of Henry Clifton Aniton, are entitled to have allotted the dower interest held by the Polks so that the balance of the real estate may be disencumbered. Wilkinson v. Brandon, supra.
After remandment, if they so desire, the complainants below, the appellees here, may amend their bill so as to have the dower interest allotted out of Tract A if it is sufficient in area and value for that purpose.
When the dower interest has been so assigned, the remainder of the lands of which Henry Clifton Aniton died seized and possessed may then be sold for division of proceeds among the tenants in common.
We are of the opinion that the decree should be reversed in so far as it orders the three tracts of land sold for division, for we cannot say from this record that the dower interest can be carved from Tract A alone.
Affirmed in part and in part reversed and remanded.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | November 16, 1961 |
b2f5e511-18a1-44d9-8b74-56c8282043ec | American Fire and Casualty Company v. Burchfield | 232 So. 2d 606 | N/A | Alabama | Alabama Supreme Court | 232 So. 2d 606 (1970)
AMERICAN FIRE AND CASUALTY COMPANY, Orlando, Florida, a Corporation
v.
Howard BURCHFIELD, Sr., and Howard Burchfield, Jr., Partners d/b/a J. M. Burchfield & Son Wholesale Grocery.
6 Div. 613.
Supreme Court of Alabama.
February 26, 1970.
Jones, McEachin, Ormond & Fulton, Tuscaloosa, for appellant.
Hubbard & Waldrop, Tuscaloosa, for appellees.
SIMPSON, Justice.
This is a suit on an insurance policy issued by the appellant to the appellees, the effective date of the policy being August 1, 1963. The plaintiffs below sought to recover under the policy against loss sustained by plaintiffs through the fraudulent or dishonest acts of employees of the insured. From a judgment in favor of plaintiffs, the insurance company appeals. The policy insured the plaintiffs against loss of money, securities, and other property which the insured should sustain through any fraudulent or dishonest act or acts committed by any of the employees of *607 the insured acting alone or in collusion with others, to an amount not exceeding in the aggregate the sum of $10,000.00.
The policy contained the following exclusionary clause:
"Exclusions. Section 2. This Policy does not apply:
The policy also had the following provision:
"LossNoticeProofAction against company.
It is the position of the insurance company on this appeal that the trial court erred in not granting a new trial on the ground that the judgment was not supported by the evidence, in that as contended by the insurance company, the proof of loss was supplied by resorting to inventory computations and profit and loss computations in defiance of Section 2 of the policy.
Factually the situation is this. The appellees are in the wholesale grocery business. During the policy period four of their employees were discovered to be stealing from the warehouse. Three of these employees testified on the trial of this case. They admitted having stolen cases of cigarettes, cases of groceries, etc., but the amount which they admitted stealing was less than the amount of the judgment entered in favor of the plaintiffs. The appellees introduced evidence of abnormal shortages of merchandise from delivery trucks driven by three of the employees apprehended for stealing. They also introduced evidence of the abnormal disappearance from their warehouse of cigarettes on which there had been placed no State of Alabama tax stamp. In addition they put on evidence by a C.P.A., who testified that in his opinion, based upon an audit of the appellees' records and an examination of the appellees' operations, they had sustained a loss of items from merchandise inventory during the period in question of $21,683.70. The appellees then put on evidence to the effect that there had been no burglary of the warehouse during the period in question; that no one but employees was permitted in the warehouse; that access to the warehouse was available only from the front where some responsible employee was regularly stationed; and that the losses stopped after the four employees were arrested and fired.
In reliance upon the provisions of Section 2 of this policy set out above, the company contends that that provision prohibits the use of an inventory computation on determining the total amount of the insureds' loss.
This clause is a standard clause which now appears in virtually every employee dishonesty policy. It has been construed by a number of courts, the first being Tri-Motors Sales, Inc. v. Travelers Indemnity Company, 19 Wis.2d 99, 119 N.W.2d 327 (1963). In that case the insured, an automobile *608 dealer, sought to recover for loss sustained due to theft of automobile parts and accessories. An employee was apprehended taking merchandise out of the building, after which he admitted theft of merchandise amounting to $494.00. That employee had worked for the company some six months. At the trial the plaintiff's C.P.A. testified that there was a loss of $14,006.31. This was determined by checking the book value of parts and accessories against an inventory taken by counting the actual items on hand and pricing them at current cost prices. According to the plaintiff's account, the normal inventory variance should have been three per cent; the $14,006.31 represented a 13.28 per cent variance, and accordingly was the result of employee theft. In discussing the exclusionary provision the Wisconsin Supreme Court said:
In Hoboken Camera Center, Inc. v. Hartford Accident & Indemnity Co., 93 N.J.Super. 484, 226 A.2d 439, the court reviewed all of the cases which had construed this standard clause. It stated:
The court in that case went on to analyze each of the opinions which dealt with this clause. It indicated that different reasons had been given by the court but that most had concluded that the inventory exclusion clause was not a bar to the use of inventory computations as the basis for recovery under those policies.
In Tri-Motors the court found that the clause was ambiguous; in Kentuckiana Sales the court arrived at substantially the *609 same result as in Tri-Motors as to the effect of the inventory exclusion clause but based its opinion upon a different rationale.
In Fort Smith Tobacco & Candy Co. v. American Guarantee and Liability Ins. Co., 208 F. Supp. 244, the court purported to give the clause the literal reading which would preclude recovery unless the insured could produce evidence wholly apart from inventory computations, which reasonably proved a loss due to fraud or dishonesty.
The court in Hoboken Camera went on to conclude that to give the inventory exclusion clause its literal meaning would be to nullify to a considerable extent the benefits fairly contemplated by the insured when it purchased the policy. It noted, however:
Likewise Meyer Jewelry Co. v. General Insurance Co. of America, 422 S.W.2d 617 (Mo.1968) held that the policy provision under discussion did not exclude inventory computations which would tend to prove the amount of the plaintiff's loss where independent evidence first showed that an employee had stolen items from the plaintiff's merchandise inventory.
This provision of the policy has been considered by several courts as indicated. Most of those courts, on varying rationales, have concluded that inventory computations may be considered in a suit on the policy. We believe that this is just. We adopt the rationale of the Missouri Court and the New Jersey Court in that we believe that the prohibition is against recovery on proof of inventory loss alone. However, where as here the insured has offered evidence without conflict that it has suffered loss by reason of theft by four of its employees, and has offered further evidence that no other basis exists to explain the loss, we do not believe that the provisions of the policy preclude after that proof has been made, the use of inventory records to show the amount of the loss.
We hold, therefore, that the trial court is not due to be reversed for permitting this testimony.
*610 The only other point adequately raised by the appellant is to the effect that the insured failed to comply with Section 8 of the policy which required the filing of a proof of loss with the company within four months after the discovery of the loss.
The evidence shows without dispute that a sworn proof of loss was filed with the appellant on April 19, 1966, and suit was filed on August 1, 1966.
The contention of the appellant is that failure to comply with Section 8 of the policy works a forfeiture of any claim arising out of such loss. The appellees contend, on the other hand, that under the authorities of this state the failure to give proof of loss within the time prescribed is a condition precedent to the right to sue, but does not avoid the policy or work a forfeiture of the claim in the absence of a provision in the policy to that effect. We agree with the appellees.
In Vardaman v. Benefit Association of Railway Employees, 263 Ala. 236, 82 So. 2d 272, construing a policy provision which required notice of the injury to be made to the company within ten days after the commencement of disability and a further provision to the effect "`compliance on the part of the insured and beneficiary with all of the terms and conditions of this policy shall be a condition precedent to recovery hereunder'", we held that the quoted provision contained no clear stipulation compelling forfeiture upon the failure to give notice within the time prescribed. There this court said:
In its decision the court held, adopting a rule stated in Prudential Ins. Co. v. Gray, 230 Ala. 1, 159 So. 265, 266:
The court also cited with approval 29 Am.Jur., Insurance, § 1105, p. 829, which is as follows:
In this case the policy provides "No action shall lie against the company unless, as a condition precedent thereto, there *611 shall have been full compliance with all the terms of this policy." We believe that in light of what was said in the foregoing cases, this provision means that the filing of a proof of loss shall be but a condition precedent to the bringing of suit. This is in effect exactly what the policy says. Nothing in the policy expressly provides that the failure to file proof of loss works a forfeiture. It is contrary to all of our cases to read into the policy such a provision. No other assignment of error having been sufficiently argued, the judgment appealed from is affirmed.
Affirmed.
LIVINGSTON, C. J., and COLEMAN, BLOODWORTH and McCALL, JJ., concur. | February 26, 1970 |
90bdf8ac-a1fd-456a-a175-fff67c08d1c8 | Solmica of Gulf Coast, Inc. v. Braggs | 232 So. 2d 638 | N/A | Alabama | Alabama Supreme Court | 232 So. 2d 638 (1970)
SOLMICA OF The GULF COAST, INC.
v.
Louise BRAGGS, as Administratrix Of The Estate of Elaine Loretta Braggs, Deceased.
1 Div. 549.
Supreme Court of Alabama.
February 5, 1970.
Rehearing Denied March 19, 1970.
*639 Inge, Twitty, Duffy & Prince, Mobile, for appellant.
Cunningham, Bounds & Byrd, Mobile, for appellee.
MADDOX, Justice.
The sole issue in this case is whether or not at the time John Edward Cornelson ran over and killed Elaine Loretta Braggs, he was an agent, servant, or employee, acting within the line and scope of his authority as such in furtherance of the business of Solmica of the Gulf Coast.
There is agreement on the statement of the case. There is obvious disagreement over the refusal of the trial court to give the affirmative charge in favor of the appellant. The appellant assigns the refusal to give the affirmative charge as error.
The suit was brought by Louise Braggs, as Administratrix of the estate of Elaine Loretta Braggs, claiming $135,000 damages for the death of her intestate, caused by John Edward Cornelson in the operation of his pickup truck.
*640 The case was tried and submitted to a jury which returned a verdict for the plaintiff and against the defendants in the amount of $30,000. A motion for a new trial was overruled.
To recover against a defendant upon the theory of respondeat superior, it is necessary for the plaintiff to establish the status of master and servant and that the act done was within the scope of the servant's employment. United States Steel Co. v. Butler, 260 Ala. 190, 69 So. 2d 685.
It is the reserved right of control rather than its actual exercise that furnishes the true test of whether the relation between the parties is that of an independent contractor or of employer and employeemaster and servant. Moore-Hanley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757.
For one to be an employee, the other party must retain the right to direct the manner in which the business shall be done, as well as the results to be accomplished, or, in other words, not only what shall be done, but how it shall be done. Weeks v. C. L. Dickert Lumber Co., 270 Ala. 713, 121 So. 2d 894 and cases there cited.
Because this is a close case we set out considerable evidence. The evidence showed that Solmica made contracts with individual homeowners for the application of aluminum siding on their houses. Cornelson was an applicator and was paid $15.00 per square for the application of the siding and $1.00 per square for transportation expense up to 50 miles, and $2.00 per square for mileage up to 100 miles. Cornelson furnished his own truck to haul the material to the job site. He secured such additional help as he needed to apply the siding and when he got a job he would estimate how long he thought it would take to complete it; then he would select the men to do the job with him and he would make an arrangement with these helpers as to the amount they would be paid. Solmica was aware of the fact that applicators got others to assist them, but the $15.00 per square rate was the same, regardless of what arrangement an applicator might otherwise make. No social security or withholding was deducted by Solmica, but Solmica did deduct 4% of the gross sum paid to applicators for "insurance." What kind of insurance was never shown.
The accident happened around 6:30 or 6:40 P.M. on July 1, 1965. On the morning of July 1, Cornelson and the men working for hima Mr. Howell, a Mr. Coffee and his brother, Kenneth Cornelson, went to the Solmica office in Coffee's automobile shortly before 8:00 A.M. They left Solmica's office at about 9:30 A.M. after getting the job assignment in Pascagoula, Mississippi, from a Solmica employee. They went to Pascagoula and left the job site at approximately 3:30 P.M. and started back to Mobile. On the way back they stopped while Cornelson's brother-in-law bought a "couple of beers" and Cornelson had a "sip" of beer himself. They arrived at Cornelson's house in Mobile at about 4:30 or 5:00 P.M., and Coffee and Howell separated from Cornelson there. Cornelson changed clothes and took his brother Kenneth to their mother's house in his pickup truck. From 4:30 to 5:45 P.M. he had four drinks. He was drinking bourbon straight out of the bottle. He left his mother's house at about 5:45 P.M.
Cornelson testified that normal working hours for Solmica were 8:00 A.M. to 4:00 P.M., but that it was customary to be able to pick up materials after working hours if such materials were needed for a particular job.
When Cornelson left his mother's house he stopped for gas and the accident occurred shortly thereafter on Stone Street in Mobile. Police officers investigating the accident testified that Cornelson passed out in the police car after his arrest and that a pint bottle of whiskey found in the pickup truck was about half full. One of the investigating officers testified that "later in the afternoon" and while interrogating *641 Cornelson about the events leading up to the accident, in answer to a question relative to where he was going, "He said that he didn't knowthat he was probably going to his office." We set out some of the evidence with regard to the Solmica-Cornelson arrangement in a footnote below.[1]
We now come to some of the tendencies of the evidence favorable to the plaintiff. Solmica told Cornelson what supplies to take to a job, instructed that any supplies that were left over after a job were to be returned to it, would send him back to remedy a job when a customer was not satisfied, would not pay him until the customer was satisfied, solicited the jobs he worked on and assigned him to the job, could pull him off a job at any time it wanted to, furnished all the necessary material for the job, allowed him to charge additional materials needed to its account, withheld four percent of his gross wages for insurance, occasionally had him perform in their office or warehouse and had him deliver materials to his own job and other jobs on which others were working.
*642 The manager of Solmica testified that he instructed Cornelson and the other applicators as to the way he wanted the siding applied and from time to time he checked their jobs and, if the work was not done correctly, he either instructed them to change the type of work they were doing or dismiss the applicator or fired him from the job, and that he had required them to redo work.
In view of our scintilla rule, there was sufficient evidence from which the jury could find that the relationship between Solmica and Cornelson was that of master and servant.
Appellant states in brief:
Having determined that he was the agent of appellant, the question to be decided is whether Cornelson was acting within the line and scope of his authority in furtherance of the business of Solmica when the accident occurred.
The rule has many times been stated in our cases in varying language. Boiled down it is: To authorize the submission of the question to the jury, the evidence must have a tendency either directly or by reasonable inference to show that the wrong was committed by the agent while he was executing his agency, that is, undertaking to execute the duties assigned to him and not from a motive or purpose of his own having no relation to the business of the master. If the evidence tends to establish that the act was an incident to carrying out the duties assigned to him by his master, the master may be held liable though he did not authorize the agent to resort to such means in rendering the services for which he was employed and also though the agent may have sought to accomplish the master's business by improper or unlawful means or in a way unknown to his master or even contrary to his express directions. The legal aspect of such a case is not changed because the agent superadds malice or other improper motive to his otherwise wrongful act. United States Steel Co. v. Butler, 260 Ala. 190, 69 So. 2d 685, and cases there cited.
In Nelson v. Johnson, 264 Ala. 422, 88 So. 2d 358, the employee, Nelson, had the job of servicing signal flares at excavations in the streets. On Sunday morning, he blew out the flares, refilled the containers with fuel and went to the city garage. Sometime after noon, he started home where he would wait until late afternoon when he would again relight the flares. On his way home, the truck he was driving collided with the motorcycle plaintiff was riding. This court said:
The conduct of the employee, to come within the rule, must not be impelled by motives *643 that are wholly personal, or to gratify his own feelings or resentment, but should be in promotion of the business of his employment. Rochester-Hall Drug Co. v. Bowden, supra.
In the instant case, Solmica was in the business of selling and installing its materials. The materials were taken to the job by the applicators. Cornelson's truck was specially equipped to haul the materials and Solmica paid him to haul them. The evidence was that all the materials were not available that morning when Cornelson left for Pascagoula at 9:30 A.M. Cornelson testified that had they been available, he would not have had to carry more the following day. Solmica kept its lot open after regular business hours so that materials for use the next day could be picked up. This was a regular custom and "all the applicators done such as this." The materials were usually picked up in the afternoon or night because the applicators usually left Mobile before opening hours when they were working on a job out of the city.
Cornelson testified by deposition and also at the trial. In both the deposition and at the trial, he stated that he was going to Solmica's office to pick up the additional materials needed to finish the job. These materials, including corners, had not been available that morning. His procuring the materials were not incidental to his job but were a benefit to Solmica because the job could not be performed without the materials.
In Atlanta Life Ins. Co. v. Stanley, 276 Ala. 642, 165 So. 2d 731, this court said:
And we have held in other cases that under some circumstances ownership is of no consequence in determining the issue of agency. Glass v. Davison, 276 Ala. 328, 161 So. 2d 811, and Luquire Ins. Co. v. McCalla, 244 Ala. 479, 13 So. 2d 865.
Since one of Cornelson's duties was to take Solmica's material to the job he was working on and Solmica permitted him to pick the materials up after regular office hours, and it was in the furtherance of his employment and a benefit both to him and to Solmica to get the materials on the job, we think a jury question was presented as to whether he was acting within the line and scope of his employment when he was on his way to pick up the materials. No question is raised as to Cornelson's negligence. The proof is ample that he was negligent.
As we said before, this is a close case, but it appears that a jury question was presented and the trial court did not commit error in submitting the question of agency to the jury, and the judgment of the trial court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and HARWOOD, JJ., concur.
[1] Cornelson testified relative to the arrangement:
"* * * They [Solmica] didn't have to let us do it [pick up the material late] but we done it. All the applicators done such as this."
Cornelson also testified as follows:
"Q. When you were on the job at Pascagoula, you and these other men who you have named, did you sort of supervise them and tell them what to do and how to do it and all that?
A. Yes, sir, I was responsible for the job, if that's what you want.
Q. As to how the work was to be performed?
A. Yes, sir.
Q. Did you agree with those men whom you would take along with you as to when you would report for work and how long you would have for lunch and when you would come back, or knock off in the afternoon?
A. No, sir, we never had no set time at any time, not any time that I ever work with them.
Q. How would you know what time for them * * *
A. Well, we had it set up in this particular instance that we would leave out in the mornings, if it was a long ways to go, we tried to leave as early as we could, provided we had the stuff to work with; if we didn't have the stuff to work with we was always ten or eleven o'clock getting on the road.
Q. You say you would always have your understanding, you mean you would have that understanding with Dave and Tom and Kenneth as to what time you were going to leave to go down there?
A. When we didn't have the material this is relevant to this casewhen we didn't have the material, we always went to the office, or if we didn't have another job, let's put it that way, we always went to the office to find out what work we would have for that particular day and we was generally told by 9:00 or say 10:00 o'clock whether there was going to be work or not, that's the job, I mean a job to take out.
Q. When you leftyou men gathered together either at your house or at one of your friend's house to either go to a job or go to the office, you would have an understanding with each other as to what time to meet, didn't you?
A. As a general rule it was around quarter to seven or seven o'clock, if the job wasn't too far, and especially if one was here in town, see we worked in town as well as out and if we were going way out, like my brother, I'd call him and tell him to be ready at five o'clock or four thirty, whatever time we figured it would take. See, the jobs were not pushed for time, if you understand that.
Q. That's what I was getting at, you would call your brother and tell him what time to meet * * *
A. All right. I want you to be ready at five o'clock. I could do that any way I wanted to do it.
Q. And the same thing happened when you got ready to knock off in the afternoon?
A. I could knock off at twelve if I wanted to, I could knock off any time I got ready to.
Q. You were the boss on the job?
A. I was supposed to be the boss."
Relative to the practice of picking up the material after working hours, Cornelson also testified:
"A. It wasn't anything that would inconvenience the company. There would be girls working at night. It wasn't any inconvenience to anybody. There was someone there so we could sign the ticket for the material we got out." | February 5, 1970 |
73c80f95-d1b4-40c1-b8b6-cb55de3e9198 | City of Fairhope v. Town of Daphne | 241 So. 2d 887 | N/A | Alabama | Alabama Supreme Court | 241 So. 2d 887 (1970)
CITY OF FAIRHOPE, a Municipal Corporation,
v.
TOWN OF DAPHNE, a Municipal Corporation.
1 Div. 633.
Supreme Court of Alabama.
December 10, 1970.
Rufus M. King, Montgomery, for appellant.
Sam W. Pipes, Gordon B. Kahn, Mobile, Norborne C. Stone, Jr., Bay Minette, for appellee.
BLOODWORTH, Justice.
Appellant, City of Fairhope, appeals from a decree of the circuit court of Baldwin County, in equity, ordering Fairhope to convey to Daphne certain interests in two gas transmission lines constructed by Fairhope and to allow Daphne to participate in the profits and losses realized from the sale of gas from these lines.
This is the third appeal in this case, our two previous decisions being reported at 282 Ala. 51, 208 So. 2d 917, and 284 Ala. 556, 226 So. 2d 383. The decree of the trial court was rendered in accordance with our last reported opinion.
Though Fairhope lists 17 assignments of error, the thrust of its argument on this appeal is that the lower court erred in following our last decision. In other words, Fairhope contends that our decision was erroneous.
It is unnecessary to restate the facts of this case as they were amply set forth in *888 our first opinion, 282 Ala. 51, 208 So. 2d 917. In that case we affirmed the trial court in fixing the purchase price to be paid by Daphne to Fairhope for the gas distribution system constructed by Fairhope within the corporate limits of Daphne and for its proportionate interest in two gas transmission lines. However, in determining the nature of the interest which Daphne acquired in the two gas transmission lines located between the source of supply of the gas (at Bay Minette north of Daphne) and the corporate limits of Daphne, we reversed the trial court. We held that Daphne's interest amounted to an unqualified ownership of 10% in the first transmission line and a 12.15% in the second line. We remanded the case with directions to award Daphne unqualified ownership in the two transmission lines in the proportions mentioned.
The case was presented to us on the second appeal to ascertain if the trial court had correctly interpreted and followed our original decision after remandment. The trial court had, on remandment, ordered the conveyance to Daphne of the proportionate interests in the two gas transmission lines, but at the conclusion of the description in each deed had included the following sentence:
On the second appeal, at first we rendered an opinion in which we affirmed the trial court and held that it had correctly interpreted our first opinion. 3 ABR 1929 (MS. June 12, 1969). On rehearing we withdrew that opinion and reversed and remanded the case to the trial court. The substituted opinion is reported at 284 Ala. 556, 226 So. 2d 383.
Daphne had contended on rehearing that, since it owned a 10% and 12.15% interest in the gas transmission lines, it was entitled to participate in the profits realized from the sale of any natural gas to customers from the gas lines located between the source of supply and the corporate limits of Daphne. In the substituted opinion we upheld this contention and stated that:
Now, on this third appeal, Fairhope argues that our last mentioned decision was erroneous and asks us to overrule or reverse that decision.
Fairhope cites the provisions of Title 13, § 28, Code of Alabama 1940 (Recompiled 1958), which provides:
The effect of this statute is stated in First National Bank of Birmingham v. Garrison, 235 Ala. 94, 96, 177 So. 631, 633:
Under this statute, a former opinion does not conclude or influence us, upon a subsequent appeal, and, if we consider our former opinion to be erroneous, it will be overruled. Smith v. Smith, 157 Ala. 79, 47 So. 220, 25 L.R.A.,N.S., 1045. On the other hand, if upon reexamination, we determine that our previous ruling is sound, we may reaffirm our decision on former appeal. City of Birmingham v. Bouldin, 280 Ala. 76, 190 So. 2d 271; Bank of Luverne v. Reddoch, 211 Ala. 699, 100 So. 922. After careful review, we believe that our last decision in this case is correct and we adhere thereto.
On this appeal, Fairhope argues one point not previously raised or considered in our prior decisions. It suggests that the rights of the bondholders of the City of Fairhope have been affected by our last decision and it is incumbent upon us to reverse for lack of necessary or indispensable parties.
Although Fairhope has not assigned error for the failure to join these bondholders as necessary or indispensable parties, we have held that this "`* * * objection may be made at the hearing, or on error, it may be taken by the court ex mero motu.' * * *" [Emphasis supplied]. Hawkins v. Snellings, 255 Ala. 659, 662, 53 So. 2d 552, 555. The rule in equity is that all persons whose rights will be directly and materially affected by the decree must be made parties unless too numerous or beyond the reach of process. Box v. Box, 253 Ala. 297, 45 So. 2d 157.
Nevertheless, we do not see how the rights of the bondholders of the City of Fairhope have been directly or materially affected by our last decision. Our decision directly and materially affects only the rights, duties, and obligations of the Town of Daphne and the City of Fairhope under the contract which they voluntarily entered into prior to the bond issue.
We therefore conclude our previous opinion in this case is sound. We see no justification for reversing the trial court which followed our decision. In this posture of the case, we need not reach the question as to whether Fairhope's brief adequately complies with the Revised Rules of the Supreme Court, 279 Ala. XXI.
Affirmed.
SIMPSON, HARWOOD, MADDOX and McCALL, JJ., concur. | December 10, 1970 |
b845cd68-24a6-4915-94e8-8eea3e40462a | Parker v. City of Mountain Brook | 238 So. 2d 868 | N/A | Alabama | Alabama Supreme Court | 238 So. 2d 868 (1970)
B. G. PARKER et al.
v.
CITY OF MOUNTAIN BROOK, a Municipal Corporation, et al.
6 Div. 558.
Supreme Court of Alabama.
June 18, 1970.
Rehearing Denied October 22, 1970.
Thomas Seay, Birmingham, for appellants.
Brown, Pointer, Williams & Heaps, Birmingham, for appellees.
LIVINGSTON, Chief Justice.
Appellants joined with others in a suit, in Equity, against appellees to enjoin as a nuisance the use and operation of a garbage dump; and also, for like reason, the construction of a municipal garage facility, all in a residential area or district known as Cahaba Heights, an unincorporated community in Jefferson County. Not all the original complainants joined in this appeal, although notified to do so in accordance with law.
This appeal by six of the original eighteen complainants is from a final decree rendered on December 22, 1967, granting complainants partial relief, and from an amended decree, dated January 12, 1968, modifying the original decree. Such modification was at the instance of appellees. Application for rehearing on the part of appellants was denied.
*869 The suit involved in this appeal was filed on July 10, 1967. The transcribed testimony covers 671 pages of transcript paper. The record contains numerous exhibits, including moving picture films. The trial court heard the evidence ore tenus. The case was well presented to the trial court, and here, is well briefed to meet the assignments of error which are six in number.
The original decree contains paragraph ONE, (A), (B), and (C). Paragraphs (B) and (C) were amended on motion of appellees. We quote paragraphs ONE and (A) (which were not amended).
Paragraph ONE (B) as amended reads as follows:
Paragraph ONE (C) of the final decree was amended by adding at the commencement thereof the words "On and after June 1, 1968." When these words are added, said paragraph ONE (C) reads:
It appears from the pleading and the evidence that the City of Mountain Brook and Landfill Disposal, Inc., entered into a written contract whereby the latter, referred to as Lessor, leased to Mountain Brook forty acres of land, more or less, and agreed with Lessee to landfill its garbage, debris, trash, limbs, and other refuse which the city was authorized to dump on said land.
A sanitary landfill, so an expert testified, is the burying of garbage and material that is to be disposed of underneath the ground with progressive ramps or areas where the material is well compacted and covered after each day's operation with soil layer, then upon completion of the ramp, when no more garbage is to go on top, it is covered with approximately two feet of earth as a final cover for the top. Contention is made that there is no burning on the sanitary landfill. But there are no laws that give the right to control this; there are no regulations to prohibit or permit such burning.
Lessor agreed to provide all necessary labor to distribute all such garbage, debris, trash, limbs, and other refuse placed on said demised premises in an approved "landfill method," in such manner and at such times as to meet the approval and requirements of lessee and the Health Department of the County, State and United States and *870 any municipality having jurisdiction thereof. The contract contained many other provisions not here necessary to relate.
The gravamen of the Bill of Complaint is that Landfill, Inc., is not operating a "landfill method" and is maintaining fires on said property for the purpose of burning said garbage, debris, trash, limbs, and other refuse, and is not covering said garbage, debris, trash, limbs and other refuse as provided by said lease, which operations disturb, annoy, trouble and vex complainants in the enjoyment of their homes, yards, premises and neighborhood by the constant flow of obnoxious and offensive odors, smoke, fumes, ashes, flies, roaches, and rodents onto their premises from said dump and into their houses. They also allege that said operations diminish the value of their homes; also, that the procession of garbage trucks belonging to Mountain Brook, frequently overloaded, are operated in a negligent and unsafe manner and are extremely noisy and give off obnoxious fumes and vapors and constitute a nuisance.
Appellants also complain that Mountain Brook is preparing to construct on a fouracre tract of land public works facilities and buildings for storage, maintenance and repair of vehicles, equipment and supplies belonging to it, and for parking areas, garages, service buildings, stations, sheds, offices, and other municipal facilities for the purpose of storing garbage trucks, bulldozers, and other heavy equipment, resulting in constantly created noises of such volume and character as to materially distress and discomfort complainants and other residents of Cahaba Heights area in the enjoyment and use of their properties as residences.
The appellants prayed that the Court order, adjudge and decree as follows:
(a) That a permanent injunction be issued against respondent, Landfill Disposal, Inc., denying the use of the land as a dump or place for disposal of garbage, debris, trash, limbs and other refuse.
(b) That an injunction be issued against respondent, Mountain Brook, permanently enjoining it from further hauling and dumping garbage, debris, trash, limbs and other refuse on the described area.
(c) That the use of the property by respondents, or either of them, for the purposes set out in the lease be permanently enjoined and prohibited.
(d) That the use of the property by respondents, or either of them, for the purposes set out in the lease (G) be permanently enjoined and prohibited.
(e) Prays for such other, further and different relief as may be just and proper in the premises as in duty bound complainants will ever pray, etc., and for general relief.
It occurs to us, without detailing the volume of evidence, that the testimony of expert witnesses, introduced by complainants, support the decree with respect to the operation of the dump area. We realize that pollution of the atmosphere, particularly in thickly populated areas, incorporated and unincorporated, present many problems that challenge the minds and ingenuity of experts and non-experts. A complete and effective solution or answer to these problems is not always available. At present, there is much agitation and many conferences as to what should and can be done to protect the public and the health of people, as well as to protect wildlife, against pollution.
The courts will have to proceed in a practical manner, awaiting scientific developments and advancement or modifications which will soften the impact and provide the needed relief. The ever increasing population serves to aggravate health problems *871 arising from the disposal of refuse and garbage. Transfer of the disposal problem here involved to Shelby County, as advocated by complainants, would not necessarily be an answer. It could serve to transfer litigation from one point to another.
Mountain Brook, for approximately 20 years, used a 28-acre dump site located just outside the city limits. From the late 40's to 1957, it was an open dump utilized not only by Mountain Brook, but also by the City of Vestavia and by nearby unincorporated areas, with all waste being either burned or left exposed to scavengers. In 1964, it was zoned as a garbage dump by the County Commission of Jefferson County.
In 1957, residents of Cahaba Heights area near the dump site complained to the City and to the County Health Department about conditions at the dump, asking that it be closed or, in the alternative, converted to a sanitary landfill operation. A study was made and conclusion reached that conversion from open burning of garbage to a sanitary landfill method, coupled with restrictions upon access to the property, should produce an operation which will constitute no public health hazard and will not be detrimental to the residents of the surrounding areas. The conversion was made.
Mr. Paul Pate, Assistant Supervisor and Engineer in the Bureau of Sanitation, Jefferson County Department of Health, called as a witness for complainants, testified on cross-examination that he was at the landfill site on November 30, 1967; that he saw no exposed garbage; there was some debris and rubbish piled out on the east side of the roadway going to the landfill area; the site as a whole appeared to be in good condition; the garbage appeared to be disposed of with good landfill practices; he did not see any evidence of files or rodents, and there were no strong odors, only a small amount of odor right at the site itself, which is normally to be expected. Witness further stated that the recommendation he participated in during 1957, using the landfill method, had principally been followed; that in his opinion the landfill operations were being conducted in a sanitary manner, and that there were no particular practices in the disposal of garbage he would recommend that have not been carried out.
Joe W. Riley, Jr., a Jefferson County Public Health Engineer, made some fifteen inspections of the site here under consideration during the past three years. Referring to an inspection on November 29, 1966, witness stated:
Witness further testified that he had never seen rats at the property nor smelled any odors from the landfill while off the property. It was at the recommendation of the health department that the leaves, vegetation, and like refuse were accumulated and then burned.
W. H. Kittrell, an expert witness employed by the State Department of Public Health as the Director of the Vector Control Division in the Bureau of Environmental Health, testified that Vector Control means roughly the control of insects and rodents of public health importance and those conditions which have to do with breeding of them. He was introduced as a witness for complainants. He testified that he had no knowledge which would indicate that any of the recommendations that he made were not being carried out; also, that his department recognized the necessity of burning some of the refuse to reduce *872 volume of some of the larger bulky items of trash or limbs.
It appears to us from the narrated evidence that respondents have been cooperating with the experts employed by the State Department of Health and by the Jefferson County Health agencies to meet the suggestions and demands of those agencies and experts, who on the whole approve the management and operation of the landfill area, including the burning of some refuse. It is true, possibly, that such operations are not perfect and do not completely eliminate all objections, but they reasonably conform to health standards and requirements promulgated by the health agencies. We are not impressed that the burning of trash or limbs at the site constitutes a health hazard or a nuisance as to justify injunctive relief against the same.
We are unwilling to overturn the decree of the trial court which heard the witnesses, expert and non-expert, and formed a judgment as expressed in its final decree as amended. Perhaps as science progresses in solving pollution problems, more advanced and modern methods will be found to eliminate or control pollution arising from disposal of garbage et cetera.
It would not advance the results of this case for this Court to burden this opinion with details of the volume of evidence adduced before the trial court. It appears that after the nisi prius court gave all parties ample opportunity to be heard, he reached a conclusion and adjudication appearing in his final decree as amended. The decree does not meet the desires of appealing complainants, who want the site closed and moved to Shelby County. Such removal would be only a transfer of the problem from one area to anothernot necessarily a complete solution.
In Assignment of Error 6, appellants complain that the trial court erred in not issuing a permanent injunction enjoining respondent, City of Mountain Brook, from constructing public works facilities and buildings for storage, maintenance, and repair of vehicles, equipment and supplies and for parking areas, garages, service buildings, stations, sheds, offices and other municipal facilities for the purpose of storage of garbage trucks, trash trucks, street department trucks, bulldozers and other heavy equipment and for the purpose of repairing and maintaining said trucks and equipment on land described in the assignment, as prayed for in the original Bill of Complaint.
The trial court, after hearing the evidence, made a finding:
This Court, in Jackson v. Downey, 252 Ala. 649, 42 So. 2d 246, 247-248, observed:
Here, the trial court heard the evidence and concluded therefrom that the prospective use of the property to house certain facilities above mentioned was entirely proper and legally permissible.
We quote from our decision in Brammer et al. v. Housing Authority of Birmingham Dist. et al., 239 Ala. 280, 195 So. 256, 259, as follows:
See also Kirk v. McTyeire, 209 Ala. 125, 95 So. 361; Sec. 1083, Title 7, Code of Alabama 1940, Recompiled in 1958.
The decree of the trial court is affirmed.
Affirmed.
LAWSON, MERRILL, HARWOOD and McCALL, JJ., concur. | June 18, 1970 |
5c43761f-10f0-4b53-9b52-a7a8db500912 | Stain v. State | 138 So. 2d 703 | N/A | Alabama | Alabama Supreme Court | 138 So. 2d 703 (1961)
Thomas R. STAIN
v.
STATE of Alabama.
1 Div. 827.
Supreme Court of Alabama.
December 21, 1961.
Rehearing Denied March 22, 1962.
Wm. L. Green and Wm. O. Haas, Mobile, for appellant.
MacDonald Gallion, Atty. Gen., John F. Proctor and John C. Tyson, III, Asst. Attys. Gen., for the State.
LIVINGSTON, Chief Justice.
Appellant was tried and convicted in the Circuit Court of Mobile County, Alabama, of murder in the first degree and his punishment fixed at death by electrocution. This appeal comes here under the Automatic Appeal Statute, Sec. 382(1) of Title 15, Code of Alabama 1940 (Cum. Pocket Part).
Thomas R. Stain, the defendant in the lower court and hereinafter referred to as appellant, killed one Bernon T. Jenkins by shooting him with a pistol on the night of December 6, 1958.
*704 Jenkins was the manager of the Food Town Store on Old Shell Road in Spring Hill, Mobile County, Alabama. He was killed about 9:00 o'clock on the night of December 6, 1958. He closed the store, carrying out with him a bag of groceries and the day's receipts in money, amounting to $1,484, which was also in the grocery bag. He went to his car across the road, placed the groceries and money in the front seat, and was ready to get in the car when he was accosted by three men in an attempt to rob him. One of the men named Breazeale had a 38 caliber pistol which he dropped while struggling with Jenkins. At this time, the appellant, Stain, hit Jenkins on the back of the neck with an old model 32 pistol. The pistol discharged and the bullet entered Jenkins' neck and ranged upwards through the brain, killing him.
The evidence tended to prove a conspiracy to rob the deceased on the part of appellant and three others, and that they were together in the afternoon and early part of the night of the killing. The defendant confessed to the killing and claims the shooting was accidental.
Appellant claims it was error for the trial court to allow the state to introduce the revolver and cartridge that were found by the body of Jenkins and dropped by an accomplice of appellant when they attempted to rob the deceased and just before appellant killed deceased.
The appellant's confession referred to and identified a pistol dropped by an accomplice at the time of the killing. The custody of the pistol was accounted for by the state and such pistol used by his accomplice was properly admitted not only as being part of the res gestae but to corroborate appellant's confession. Blackburn v. State, 38 Ala.App. 143, 88 So. 2d 199, cert. den. 264 Ala. 694, 88 So. 2d 205 (vacated on other grounds), 354 U.S. 393, 77 S. Ct. 1098, 1 L. Ed. 2d 1423; Payne v. State, 261 Ala. 397, 74 So. 2d 630; Carter v. State, 219 Ala. 670, 123 So. 50. There was no error in the introduction of the revolver and cartridge.
Appellant also contends that the admission of testimony of a state witness detailing the movements and actions of appellant and his confederates prior to the killing and subsequent thereto was error.
The testimony objected to, in effect, tended to show that the appellant and two of his accomplices changed clothes and left Breazeale's house about 45 minutes before the killing, and that appellant and another person returned about one hour after the killing.
Appellant's confession tended to show a conspiracy to rob the deceased, therefore, evidence which tended to corroborate appellant's confession was admissible. Flanigan v. State, 247 Ala. 642, 25 So. 2d 685; Carr v. State, 21 Ala.App. 299, 107 So. 730. And any evidence going to show the ability and opportunity of the appellant to commit the crime or facts showing the circumstances leading up to and eventuating in the homicide are also admissible. Smith v. State, 253 Ala. 220, 43 So. 2d 821; Collins v. State, 138 Ala. 57, 34 So. 993. There was no error in this regard.
Testimony elicited by the state as to the dress of the appellant and his coconspirators, and others, preceding and following the crime, may have been immaterial and irrelevant, but the introduction of immaterial evidence is not reversible error unless it is injurious or prejudicial to the substantial rights of the defendant. Supreme Court Rule 45, Title 7, Code 1940, Appendix (Cum.Pocket Part).
The state introduced evidence of the confession by defendant, therefore, evidence as to the manner of his dress before and after the crime could not be prejudicial. The admission of said evidence was not reversible error.
*705 But the judgment of conviction must be reversed because of the voluntary statement of state witness, Lt. Burch, a police officer with 17 years' experience, which was so highly prejudicial that the substantial rights of the defendant were impaired.
The record discloses the following cross-examination of Lt. Burch:
In the first place, the statement made by Lt. Burch that "he told me about the time he shot two men up in Mississippi" was clearly unresponsive, incompetent, illegal and irrelevant for any purpose in this case, and the learned trial judge so ruled, and admonished the jury to disregard it, as above indicated. It must be conceded that if the situation was curable by admonition, the instructions were adequate for that purpose.
The decision of the question as to its eradicability is a delicate operation. It requires recognition of, without definitely drawing, the imponderable line where the broad legal discretion lodged in trial courts ends and the more objective review of appellate tribunals begins. Furthermore, the doctrine of harmless error must be given full play. The purpose of the doctrine is to cast upon the party complaining of technical or procedural errors the burden of showing that they have substantially affected his legal rights. In such cases, there is always the possibility, often the probability, that the prejudicial statement entered into the judgment, and the harmless error rule is not intended to save such a verdict from appellant condemnation.
Relating to harmless errors, it was said by Mr. Justice Rutledge in Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 1248, 90 L.Ed. 1557:
We have many cases on the general question of whether improper remarks of counsel, unresponsive answers to questions, statements made, or acts done in the course of a trial, etc., can be eradicated by proper instructions by the trial judge, but we see no point in attempting to analyze them here.
It was said in the case of Cassemus v. State, 16 Ala.App. 61, 75 So. 267, 268:
See also Emerson v. State, 30 Ala.App. 248, 4 So. 2d 183, cert. gr. 241 Ala. 383, 4 So. 2d 186 (reversed on other grounds); and Bozeman v. State, 25 Ala.App. 281, 145 So. 165.
On conviction of first degree murder in Alabama, the jury fixes the punishment. In the instant case, after the case was submitted to the jury, and after some deliberation, the foreman of the jury reported to the trial judge that "we have agreed on the degree of the crime * * * but I think we are hopelessly deadlocked on the degree of punishment."
The trial judge, in part, told the jury:
The jury, after eating dinner, returned to the jury room and after further deliberation, returned the verdict above indicated.
True, there was no objection or exception, by the appellant, to any part of the proceeding outlined just above, and we do not base the reversal on it, but it is indicative that the poisonous effect of the voluntary statement of Lt. Burch that "He told me about the time he shot two men up in Mississippi" may not have been eradicated from the minds of the jury. So, in this case, we cannot say with fair assurance that the jury was not substantially swayed by the officer's statement, even though the learned trial judge did all that he could to eradicate it from their minds.
This is a death case and it is not an unwarrantable assumption that the jury experienced trouble arriving at a conclusion, and we cannot be certain that the statement of Lt. Burch was not placed in the scales in the formation of the ultimate judgment. These circumstances indicate more than a possibility that appellant's legal right to a fair trial was substantially impinged by the incompetent and prejudicial testimony.
Other matters argued in brief are not likely to occur on the retrial of the case and we do not consider them.
Reversed and remanded.
LAWSON, STAKELY and MERRILL, JJ., concur. | December 21, 1961 |
16c2c083-83ef-410f-a701-b3ce6369d4c5 | Ex Parte Alabama State Bar | 230 So. 2d 519 | N/A | Alabama | Alabama Supreme Court | 230 So. 2d 519 (1970)
Ex parte ALABAMA STATE BAR.
In the Matter of Richmond M. FLOWERS.
3 Div. 437.
Supreme Court of Alabama.
January 8, 1970.
Rehearing Denied February 5, 1970.
*520 William H. Morrow, Jr., Montgomery, for Grievance Committee of Alabama State Bar.
Beddow, Embry & Beddow, and James M. Fullan, Jr., Birmingham, for appellee.
McCALL, Justice.
This is a disbarment proceeding, instituted originally in the supreme court against Richmond M. Flowers by a petition filed on behalf of the members of the Grievance Committee of the Alabama State Bar, by and through their attorney, for the issuance of an order directed to the respondent requiring him to show cause, if such exists, why his license as an attorney at law in this state should not be cancelled, and his name stricken from the rolls of the clerk of this court.
In the United States District Court for the Northern District of Alabama, the respondent was charged by indictment with conspiring to obstruct, delay and affect commerce by extortion in violation of Tit. 18, U.S.C.A. § 1951. His jury trial resulted in a verdict of guilty, and a judgment of guilt and conviction was entered pursuant to the verdict. The court imposed a sentence of imprisonment in the penitentiary, and a fine. The offense for which the respondent has been found guilty and convicted is a felony. Tit. 18, U.S.C.A. § 1. The respondent admits in his brief that he was adjudged guilty of a felony in the United States District Court for the Northern District of Alabama. A certified copy of the judgment of conviction by that court appears in the record but in his answer, the respondent denies that he has been convicted. He defends on the ground that because he has appealed from the United States District Court to the United States Court of Appeals for the Fifth Circuit, there has been no conviction upon which disbarment can be had. He insists that his appeal raises substantial questions of law and fact, and is not a frivolous appeal. The respondent contends that the word "convicted" as used in this disbarment proceeding means a conviction or an adjudication of guilt, after all legal avenues of appeal have been exhausted, and that his rights as a practicing attorney at law should be preserved and maintained in statu quo pending the outcome of his appeal. He prays that the petition in this cause be dismissed.
*521 The petitioners, in seeking the disbarment of the respondent, invoke the original jurisdiction of this court under Rule 37(b) of Section A, of the Rules Governing the Conduct of Attorneys in Alabama, 239 Ala. XXIII, XXV, the pertinent part of which provides as follows:
The petitioners further seek to invoke the inherent control and jurisdiction of this court over the admissions and disbarments of attorneys at law in the State of Alabama which is a power of the court, independent of the rules in proceeding against the respondent. Ex parte Thompson, 228 Ala. 113, 152 So. 229, 107 A.L.R. 671; Ex parte Dozier, 262 Ala. 197, 77 So. 2d 903; Ex parte Cooke, 263 Ala. 481, 83 So. 2d 195; McCord v. State, 220 Ala. 466, 126 So. 873; In the Matter of Donald McKay, 280 Ala. 174, 191 So. 2d 1; Ex parte Denson, 235 Ala. 313, 178 So. 434; Ex parte Grace, 244 Ala. 267, 13 So. 2d 178.
Each of these procedures may be considered by the court, but in so doing we must recognize that whether proceeding under Rule 37(b) or under the court's inherent power, or under both, this case turns on the meaning of the word conviction, because without a judgment of conviction, there is no evidence before us that the respondent committed the acts constituting the crime with which he is charged. Reduced to the basic issue, we are called on to decide the legal meaning of the word "conviction" as it is used in this disbarment proceeding.
The courts have given the word conviction many different legal meanings, depending on the situations in which it is used. Conviction has no fixed and inflexible meaning. As applied to criminal offenses, it is used in varied senses. Parker v. State Highway Department, 224 S.C. 263, 78 S.E.2d 382; 24 C.J.S. Criminal Law § 1556, (2), p. 383.
In Commonwealth v. Lockwood, 109 Mass. 323, 325, it is said:
So in this case, we must consider the use of the word "conviction" in the light of the plain, clear language of Rule 37(b), the context in which the word is used, the purposes the rule is intended to accomplish, and the weight of authority construing its meaning in analogous situations. Again the rule provides in part as follows:
The use of the phrase "upon his being convicted by any court" has significance, for it points out the stage in the course of a felony criminal trial when it becomes mandatory to disbar an attorneythat is when he becomes convicted. The other requirement is that the conviction must have been "in any court of record of the United States." The United States District Court for the Northern District of *522 Alabama, a court of record, has pronounced a judgment of conviction on the defendant.
In State ex rel. Sanford v. Riddle, 213 Ala. 430, 432, 105 So. 259, 260-261, this court said, in speaking of a statute similar in substance to Rule No. 37(b), Section A:
Commenting on this in the later case of Ex parte Cooke, 263 Ala. 481, 484, 83 So. 2d 195, 198, this court went further to say:
There is no reference in the rule that when an appeal is taken, there must be a delay in instituting the disbarment proceeding or a stay after its institution, or that conviction means a final conviction. The federal court in United States v. Esters, 161 F. Supp. 203, said that the presumption of innocence no longer attends the defendant after conviction, and on the contrary the presumption is that the proceedings were regular, the evidence sufficient and the trial free from error. While the appeal suspends the execution of the sentence of the criminal court pending appeal, Rule 38(a) (2) Federal Rules of Criminal Procedure, Tit. 18, U.S.C.A., Tit. 15, § 372, Code of Alabama, 1940, Recompiled 1958, the matter of the conviction remains and continues to exist. In re Kirby, D.C., 84 F. 606.
The authorities are not in harmony on the question of proceeding with disbarment when there is an appeal from a criminal conviction. The weight thereof in analogous situations however holds that an appeal from the criminal conviction is no ground for delay or postponement of disbarment.
In 7 C.J.S. Attorney and Client § 21 c. p. 740, we find the following statement:
The case of In re Minner, 133 Kan. 789, 3 P.2d 473, 79 A.L.R. 35, supports the majority view. There an attorney was convicted of a felony and in a show cause disbarment proceeding, the accused admitted the conviction and sentence, but denied guilt, showing the steps being taken by him to effect his appeal. He asked a delay in the disbarment proceeding until the determination of the appeal could be had. The statute involved provided that in case of the conviction of an attorney of a felony, the clerk must transmit to the supreme court a certified copy of the record of conviction, and the supreme court must on receipt enter an order of disbarment. Upon reversal of such conviction, or pardon by the Governor, the statute provided that the supreme court had the power to vacate such order of disbarment. In considering the timeliness of the proceeding the court said:
The respondent argues that the Minner Case, supra, holds that the clause in the statute giving the supreme court power to vacate the order of disbarment on reversal of a criminal conviction indicates a legislative intent to proceed with summary disbarment pending appeal, and conversely under Rule 37(b), there being an absence of such a provision, an intent to delay or postpone the disbarment proceeding until after the appeal. We find that a similar power to reinstate, though not contained in Rule 37(b), exists under Amended Rules Governing the Conduct of Attorneys in Alabama, 239 Ala. XXIII, Section C, Rules Governing Petitions for Reinstatement of Persons who have been Suspended, Disbarred, or otherwise Excluded from the Practice of Law, wherein it is specifically provided in part as follows:
We further think that specific provision in Rule 37(b) to vacate the disbarment upon reversal of the judgment of conviction would have no particular bearing on the meaning of the word conviction or the mandate in our rule to disbar upon conviction had in the United States District Court and would be unnecessary, because this power to vacate already exists in our Supreme Court under its inherent authority over the admissions and disbarments of attorneys in this state irrespective of a specific provision. Ex parte Cooke, 263 Ala. 481, 83 So. 2d 195; Ex parte Thompson, 228 Ala. 113, 152 So. 229, 107 A.L.R. 671.
Further we are justified in assuming that when the supreme court approved Rule 37(b) it had in mind its inherent powers over the admissions and disbarments of attorneys and considered it unnecessary to expressly provide for that which the court knew already existed.
In In re Lindheim, 187 N.Y.S. 211, an attorney was convicted in the federal court of a conspiracy to defraud the United States, a felony, and was sentenced to serve a term in the penitentiary. The Judiciary Law of New York provided that any attorney who shall be convicted of a felony shall cease to be an attorney and upon presentation of a certified copy of the judgment of conviction, his name shall be stricken from the roll of attorneys. The answer admitted the conviction and all other matters alleged in the petition. It further alleged that an appeal from the judgment of conviction was immediately taken by the respondent, and was being processed to a hearing and decision as rapidly as possible. In this case the court held:
A statement of law in Ex parte Cohen, 72 Or. 570, 144 P. 79, is in line with these decisions and is as follows:
In re Kirby (D.C.), 84 F. 606, 608 holds that the suing out of a writ of error in nowise affected the judgment of conviction against the respondent. The granting of the supersedeas simply stayed the execution of the judgment until the writ of error could be heard. The respondent was ordered disbarred.
In Barnes v. Lyons, 187 F. 881, decided by the Circuit Court of Appeals for the Ninth Circuit, a statute of Alaska provided that an attorney may be removed or suspended by the district court upon his being convicted of any felony or misdemeanor involving moral turpitude and in either case the record of his conviction is made conclusive evidence. The petitioner was convicted of the offense of mailing an obscene, lewd, and lascivious letter in violation of a federal statute. In its holding the court said:
The following observation was made by the court in In re Kirby, 10 S.D. 322, 73 N.W. 92, 93 where the statute made it a ground for disbarment or suspension when an attorney had been convicted of a felony or of a misdemeanor involving moral turpitude in which case the record of conviction was conclusive evidence.
"* * * The question of guilt is not involved. Conviction is cause for disbarment or suspension. The fact of conviction is alone in issue, and the record, the legislature declares, shall be conclusive evidence of that fact. The material inquiry is simply this: Has the accused been convicted? The term `conviction,' in its most common use, signifies the finding of the jury that the prisoner is guilty, but we think it is used in the statute under discussion as implying the judgment of a court upon a conviction or confession of guilt. Com. v. Gorham, 99 Mass. 420. Then the fact of conviction has been established in this proceeding in the manner prescribed by the statute. The existence of that fact is sufficient cause for suspension or disbarment. In a proceeding like the one at bar, under statutes substantially the same as those in this state, the supreme court of California holds that while the criminal action is pending upon appeal there is no judgment capable of being carried into effect, that it is within the range of possibilities that the judgment may be reversed, and that `there is not such a final conviction against the defendant as the law contemplates, to justify his removal.' People v. Treadwell (Cal.) [66 Cal. 400] 5 Pac. 686. With all due respect to that learned court, we must decline to follow its decision in this case. Its conclusion seems to be based upon the clearly-erroneous assumption that the judgment in the criminal action will be reversed, and it interpolates into the statute the word `final.' If the court has jurisdiction to try the criminal action, the presumption is that its judgment is right and will not be reversed. Beyond this, we think that the California court fails to observe the real issue of fact involved in the proceeding before it. As heretofore suggested, the issue was not whether the defendant was guilty of the crime charged in the criminal action, but, was he convicted? That court might possibly say that the judgment was not evidence *525 of the fact of the defendant's guilt, but it could not say it was not evidence of the fact that he had been convicted. * * *"
Whatever may be the meaning attributed to the word "conviction" with respect to its use in other situations different from the present one, it seems to us that the meaning applied in the cases cited herein, is not only the weight of authority, but also is the better reasoning. We therefore hold that under Rule 37(b), the jury verdict finding the defendant guilty and the judgment of conviction entered thereon by the United States District Court for the Northern District of Alabama constitutes a conviction under our court rule making it mandatory for this court to order the respondent disbarred and excluded from the practice of law. It is accordingly ordered and adjudged by the court that the license as an attorney at law in this state of the respondent Richmond M. Flowers be and the same is hereby cancelled and his name is ordered stricken from the rolls of the clerk of this court.
Petition granted.
SIMPSON, MERRILL, HARWOOD and MADDOX, JJ., concur.
COLEMAN and BLOODWORTH, JJ., dissent.
LIVINGSTON, C. J., and LAWSON, J., not sitting.
COLEMAN and BLOODWORTH, Justices (dissenting):
We must respectfully dissent from the majority opinion which holds that an attorney at law may be disbarred by this court upon proof of conviction of a felony by a court of record notwithstanding he has taken an appeal from that conviction which is presently pending.
With due deference to this opinion, we must state our view that the "conviction" referred to in Rule 37(b) of Section A, of the Rules Governing the Conduct of Attorneys in Alabama, 239 Ala. XXIII, XXV, means a "final conviction."
As the majority opinion points out, there are two views regarding the meaning of the word "conviction" in such disbarment cases. Some courts, perhaps a majority, hold as the majority opinion holds; others, as we would hold.
We think the better view is that the "conviction" must be a "final conviction" and when an appeal is pending it is not. | January 8, 1970 |
be178963-79c1-4b59-b339-246d731a337a | Maring-Crawford Motor Co. v. Smith | 233 So. 2d 484 | N/A | Alabama | Alabama Supreme Court | 233 So. 2d 484 (1970)
MARING-CRAWFORD MOTOR CO., Inc., a Corp.
v.
Julia Emma SMITH.
6 Div. 574.
Supreme Court of Alabama.
January 22, 1970.
Rehearing Denied March 19, 1970.
*486 Donald L. Collins, Charles L. Robinson, Deramus & Johnston, Birmingham, for appellant.
Jenkins, Cole, Callaway & Vance, Birmingham, for appellee.
HARWOOD, Justice.
The complaint in this action was in two counts.
Count I alleged that the plaintiff contracted with defendant to purchase, and did purchase, an automobile from the defendant for an agreed price of $2,780; that the servants, agents, or employees of the defendant, acting within the line and scope *487 of their authority represented to the plaintiff that the automobile was a new one and had never been sold and delivered to any previous owner; that such representations were false in that the defendant had sold and delivered the automobile to a prior owner, which prior owner had used the automobile and driven it several hundred miles.
The count further alleged that the representations made to the plaintiff were of material facts and were made with knowledge by the defendant that the representations were false and were made to deceive the plaintiff; that the plaintiff relied on the truth of such representations in purchasing the automobile, and as a proximate result of such representations and reliance thereon, she was damaged in that said automobile was substantially less valuable than it would have been if it had been as represented by the defendant.
The plaintiff claimed damages in the amount of $50,000, and also claimed punitive damages.
Count II is essentially in the same language as Count I, except that it alleges as an additional alternative that the representations made by the defendant were made recklessly without knowledge, and with intent to deceive the plaintiff; that the plaintiff was deceived and relied on such representations in purchasing the automobile and as a proximate consequence thereof she was damaged, etc. The plaintiff also claimed punitive damages in this count.
In brief counsel for appellant asserts that Count I was based on Section 110, Title 7, Code of Alabama 1940, and that Count II was based on Section 108, Title 7, Code of Alabama 1940. The court so instructed the jury in the proceedings below.
Section 108 provides that:
The alternative appearing in this section "made by mistake and innocently, and acted on by the opposite party" is an effort to enact a principle of constructive fraud. Hornaday v. First National Bank, 259 Ala. 26, 65 So. 2d 678.
Under the above alternative in Section 108, an innocent misrepresentation, if the other elements are proven, is as much a legal fraud as an intended misrepresentation. Chemical National Bank of New York v. Jackson, 214 Ala. 458, 108 So. 53. Thus, under Section 108, the good faith of a party in making what proves to be material misrepresentation is immaterial if the other party acted on such misrepresentation to his injury. Standard Oil Co. v. Johnson, 276 Ala. 578, 165 So. 2d 361; First National Bank of Auburn v. Dowdell, 275 Ala. 622, 157 So. 2d 221.
However, it appears under our decisions that the innocence or willfulness of a party in making a misrepresentation goes to the matter of damages to be awarded, for in an action of deceit punitive damages may not be awarded unless the fraud is gross, oppressive, and committed with an intent to injure. Boriss v. Edwards, 262 Ala. 172, 77 So. 2d 909. Whether such representation is gross, oppressive, or committed with an intent to deceive, is dependent upon the facts of a particular case.
The defendant filed a demurrer to the complaint which was overruled. Thereafter the pleading was in short by consent, etc.
The evidence tended to show that on Monday, 14 June 1965, Julia Emma Smith, the appellee herein, a school teacher for some 20 years in the Birmingham school system, went to the Maring-Crawford Motor Company, Inc., a new car showroom. Maring-Crawford is a Ford dealer in Birmingham. Ed Traywick, a salesman for *488 the defendant company, asked her if she were interested in buying a new car and she replied she was. After looking at the automobiles in the showroom, she became particularly interested in a two door hardtop Mustang. The hood was raised and the engine observed, as was the trunk compartment in the rear. No license tag was observed by the appellee on the automobile. Traywick took her for a demonstration ride in the automobile, and the appellee saw that the speedometer showed a mileage of six miles.
No trade was closed at this time as appellee stated she wanted to visit other automobile agencies. However, Traywick made out and gave to her a "Retail Buyers Order" which described the automobile by motor number, model, type, accessories, etc. The purchase price was shown to be $2,700, plus $58.00 tax. The space to indicate "Used vehicle license" was left blank on the "Retail Buyers Order" given the appellee. This document was dated "6-14-65."
The defendant-appellant offered into evidence a second "Retail Buyers Order" dated "6-17-65" which was kept in appellant's files. This retail order is substantially the same as the order given the appellee except that a license tag number, 1 A 92900, is shown in the space to indicate a used vehicle.
On Thursday, 17 June 1965, the appellee decided to buy the Mustang from the appellant. She took the Retail Buyers Order given to her to the office of her teachers credit union. There an application for an automobile loan was filled out in longhand by H. L. Waller, an official of the credit union, and signed by the appellee. Waller testified that the loan was to pay for a new automobile. The application was received in evidence and shows it was for the purpose of buying a new 1965 two door Mustang. Waller testified that in his best judgment he called Maring-Crawford and got information concerning the automobile. In this connection the appellee testified that she saw Waller fill in the data concerning the automobile during a phone call he made to Maring-Crawford. A loan in the amount of $2,300 was made pursuant to the application, the interest being fixed at a rate charged for loans on new automobiles. A check payable to appellee and to Maring-Crawford was issued. The credit union required an insurance policy to be taken out by the appellee covering the Mustang, and the insurance policy described the automobile as being a new one.
The appellee, after securing the check from the teachers union returned to Maring-Crawford and paid the full purchase price of the automobile with the check and apparently with an individual payment by herself of the balance due. She was given a receipt for the payment of $2,758, and the receipt bears the notation "New Car." The automobile was delivered to her that afternoon.
In a few days she received from Maring-Crawford a bill of sale covering the subject automobile. It indicated that the automobile was a used automobile. The appellee called the salesman Traywick about the word "used" on the bill of sale. He told her that he had already bought a tag for the car and for that reason "used" appeared on the bill of sale. Traywick did not tell her that the automobile had ever been sold and delivered previously to another person.
About two weeks after the delivery of the automobile, she was handed a 1965 Registered Owners Manual which she did not examine. On the back of the front binding of the manual under the legend "Ford Registered Owner Plan" Otis E. Garrison is shown as the owner of the automobile. Attached to this space is a slip showing "Ford Subsequent Owner Registration" on which the appellee is shown as the subsequent owner of the automobile.
In November 1965, the appellee went to the courthouse to purchase a new tag for the automobile. It was from information *489 in connection with this transaction that the appellee first became aware that the automobile had been sold and delivered to Mr. Garrison previous to its purchase by her.
Garrison testified that in May 1965, he "closed a deal" for a Ford Mustang from appellant (the same automobile involved in this suit). This was on a Thursday and he took delivery of the automobile on Saturday. He agreed to pay $2,868 with a trade in allowance of $1,000 for his automobile. The following week he received from the appellant a bill of sale dated 24 May 1965, which showed that he had been allowed $600.00 for his former automobile. A controversy developed over this phase of the trade which was settled by Garrison returning the Mustang and appellant returning Garrison's automobile.
Garrison further testified that the speedometer on the Mustang was disconnected at the time it was delivered to him. He connected the speedometer, and afterward when he replenished his gasoline, noted that the speedometer registered 225 miles. He drove the automobile a day or so after this before the dispute concerning the trade in allowance developed between himself and the appellant. He estimated he had driven the automobile some 247 miles when he returned it to the appellant. He had not been in a wreck or injured the Mustang during the time he had driven it.
For the appellant Robert E. Hill, a former sales manager, T. P. Pierce, former Vice President, and Don Maring, former owner and president of the appellant company, all testified to the effect that $2,740 to $2,754 would be a reasonable cash price for the Mustang automobile a week after its former sale.
The jury returned a verdict in favor of the plaintiff-appellee and assessed her damages at $15,000, and judgment was entered pursuant to the verdict. The defendant-appellant timely filed a motion for a new trial which was denied by the court. This appeal is from the judgments rendered on the verdict, and on the motion for a new trial.
This being an appeal in a civil case, the extent of our review is of course limited to those assignments of error adequately stated, and adequately specified and argued in brief.
Assignment of error 1 asserts that the court erred in overruling the appellant's motion for a new trial.
This assignment is a vicarious assignment of each properly stated ground of the motion for a new trial brought forth and argued in appellant's brief.
Under assignment of error 1, counsel has argued in brief:
* * * * * *
Counsel for appellant has omitted in brief any reference to any ground of the motion for a new trial.
The only exception reserved by counsel to any portion of the court's oral charge was as follows:
We interpolate that Clayton v. Glasscock mentioned in the exception in no wise involves any question of punitive damages, but rather intent to deceive.
The purpose of reserving an exception to the court's oral charge is to give the court an opportunity to correct any error it may have made. See Scroggins v. Alabama Gas Corp., 275 Ala. 650, 158 So. 2d 90.
The court in several instances referred to the burden on the plaintiff to prove to the required degree the fact that the misrepresentations made by the appellant were made with intent to deceive. The exception as reserved is too general to bring to the attention of the court the specific portion of the court's instructions to which the reservation was reserved in regard to intent to deceive, and is therefore deficient even in this aspect. Turner v. Mobile Infirmary Ass'n, 277 Ala. 15, 166 So. 2d 851.
But above all, the exception in no wise informed the court of any error in its instructions as to the matter of punitive damages. The only matter referred to in the exception was the element of intent to deceive. A party need not state reasons for excepting to portions of the court's oral charge, but where reasons or grounds are stated the exceptor is confined to the grounds stated. Alabama Great Southern R. R. Co. v. Morrison, 281 Ala. 310, 202 So. 2d 155; Stein v. Ashby, 30 Ala. 363. The effect of a reservation on specified grounds is to lull the court as to any infirmity in its instructions relative to other grounds.
Assignment of error 1 is therefore without merit.
Assignment of error 32 asserts error because of the court's refusal of the following charge requested in writing by the appellant:
The above charge was refused without error because of the contrapositioning of the word "they" with the word "you." American Surety Co. v. Pryor, 211 Ala. 114, 99 So. 636; Standard Cooperage Co. v. Dearman, 204 Ala. 553, 86 So. 537; Reliance Life Ins. Co. v. Garth, 192 Ala. 91, 68 So. 871; Smith v. E. T. Davenport & Co., 12 Ala.App. 456, 68 So. 545.
Assignment of error 33 pertains to the refusal of appellant's written requested charge No. 28.
Charge 28 is a "belief" charge, and instructs the jury that if from the evidence they "believe * * * then they must find for the defendant." Since the complaint contains more than one count, the charge is faulty in the directive that the jury "must find for the defendant." It should have instructed the jury they could not find for the plaintiff. General Finance Co. v. Bradwell, 279 Ala. 437, 186 So. 2d 150; Bob White Chevrolet Co., Inc., v. Hayles, 44 Ala.App. 411, 211 So. 2d 157. Further, it is not error to reverse to refuse to give a charge which employs the term "believe from the evidence" instead of the correct term "reasonably satisfied from the evidence," Osborne v. May, 270 Ala. 327, 119 So. 2d 230, and cases cited therein under paragraphs 5-7. The charge is also faulty in basing the "belief" finding of the *491 jury "from the alleged statement of the defendant." Such phrase is vague and misleading, and the charge ignores the fact that there was substantial evidence additional to the statement of the defendant-appellant tending to show fraud and deceit.
Assignment of error 37 reads:
In this material the court's rulings were invoked several times. Actually, because of the conduct of this examination it is difficult to determine if error affected any of the rulings. Certainly some of the rulings were correct.
Where an assignment of error fails to specify the precise error relied on and there are several rulings to any one of which the general language of the assignment might apply, such assignment in no way invokes a duty on us to review it. Beasley-Bennett Elec. Co. v. Gulf Coast Chapter, etc., 273 Ala. 32, 134 So. 2d 427.
Assignment of error 35 pertains to refusal of appellant's requested charge No. 30, to the effect that punitive damages, "that is, damages which are awarded to punish the defendant" cannot be awarded to the plaintiff where no actual or compensatory damages have been shown by the plaintiff, and assignment of error No. 6 pertains to the refusal of appellant's written Charge No. 1, which was affirmative in nature.
The thrust of appellant's argument under these assignments is that appellee's evidence was inadequate to show any actual or compensatory damages and therefore punitive damages could not be awarded, which must be deemed to have been included in the damages awarded because of their amount.
The appellee was the only witness whose testimony was directed toward establishing the market value of the automobile she purchased in a used state.
The appellee in response to a question seeking her best judgment as to the value of the automobile in the used condition it was at the time she purchased it, replied, "I don't have the slightest idea. You just want me to give you a figure." After one or two more questions by her counsel seeking her judgment as to the value of the automobile at the time of purchase, the court told the witness not to give a guess, idea, or estimate, but if she had a judgment as to the fair market value of the car in the condition it was in at the time she purchased it, she could state such judgment to the jury. The witness then answered, "$1,700."
On cross examination the appellee testified she really did not know the value of the car at the time in questionthat she was asked to come up with a figure, and did so.
Cross examined further as to her basis for the $1,700 figure, the witness stated, "Well, I will say this, used cars don't cost as much as new cars."
Ordinarily, nominal damages are proper where there has been a breach of legal duty, and either no damages are suffered, or there is a failure of proof of actual damages. Conner v. Hamlin, 33 Ala. App. 54, 29 So. 2d 570. See also Vol. 7, Ala. Dig., Damages, No. 9, for numerous additional authorities, although it appears that in actions of fraud and deceit, damages must be shown since injury is an essential element of such type of action.
The evidence presented by the appellee tends to show a breach of duty by the appellant toward the appellee. She was entitled to nominal damages even though her proof may have been insufficient to support compensatory damages if actual damages be reasonably inferred from the evidence.
*492 It is to be noted that the appellee did testify to the effect that "used cars don't cost as much as new cars."
Considering a question similar to the one now being considered, the Alabama Court of Civil Appeals in the recent case of Mobile Dodge, Inc. v. Ladnier (1 Div. 7), 228 So. 2d 478, wrote:
In Mobile Building and Loan Ass'n. v. Odom, 232 Ala. 19, 166 So. 698, the action was in fraud and deceit practiced upon the plaintiff in the sale of membership certificates in the defendant corporation.
There was no evidence in the case tending to show the value of the certificates at the time of the discovery of the alleged fraud or at any time after the plaintiff had purchased them.
Under this situation this court held that the defendant corporation was entitled to the affirmative charge since fraud alone without damage will not give a right of action, injury being an esssential element of the cause of action, and where a plaintiff fails to show injury sufficient to sustain an action of fraud, there can be no recovery of even nominal damages.
A court or juror cannot be deemed to know the value of membership certificates in a building and loan association, whereas, it is common knowledge that a used automobile is of less value than a new one. Such common knowledge would therefore support a reasonable inference of actual damage and an award of nominal damages in the present case. This aspect differentiates the present case from the Mobile Building and Loan Ass'n. v. Odom, supra.
In Oates v. Glover, 228 Ala. 656, 154 So. 786, this court pointed out that if a plaintiff suffered no actual damage from a fraud there would be no cause of action, and the plaintiff could not recover even nominal damages, nevertheless, "as a necessary corollary, it would follow that if the plaintiff did sustain actual damages, as a result of the fraud, though the exact amount of the same in dollars and cents may not be shown, the plaintiff would be entitled to recover nominal damages."
While some jurisdictions have held that compensatory damages are essential to support an award of exemplary or punitive damages, it is the doctrine of our cases, as well as that of a substantial number of other states, that an award of nominal damages authorizes, in the discretion of the trier of fact, the award of punitive damages where legal malice, willfulness, and a reckless disregard accompanies the invasion of the rights of another. It would appear in such situations that "nominal damages" are considered within the context of "actual damages." Louisville and Nashville R. R. Co. v. Smith, 141 Ala. 335, 37 So. 490; Goodson v. Stewart, et al., 154 Ala. 660, 46 So. 239; Alabama Great So. R. R. Co. v. Sellers, 93 Ala. 9, 9 So. 375; Burk v. Knott, 20 Ala.App. 316, 101 So. 811.
We are impressed with the excellence and adequacy of the court's oral instructions to the jury. Among other things the court instructed the jury:
We find no merit in assignments of error 6 and 35.
We have written to all the points raised by the assignments of error and are of the *493 conclusion that no error infected the proceedings below and this judgment is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and MADDOX, JJ., concur.
HARWOOD, Justice.
We extend this opinion on rehearing in deference to the insistence of counsel for appellant.
It appears that several of the grounds of the motion for a new trial attack the verdict as being a quotient verdict.
Attached to the motion as an exhibit is an affidavit by Mr. Donald L. Collins, attorney for appellant. In this affidavit Mr. Collins deposes that immediately after the rendition of the verdict and dismissal of the jury, he met Willard Jay Wilson, foreman of the jury, and questioned him as to the method by which the jury had arrived at the sum of $15,000 awarded in the verdict. Mr. Wilson stated in substance that the jurors had agreed to write a figure on separate pieces of paper which would be totaled and the total divided by twelve, which quotient would be the amount to be awarded the plaintiff. The affiant then proceeded to the jury room and found in a trash can twelve pieces of paper, each bearing a certain figure, and a thirteenth piece of paper upon which appeared the total of the figures, and the division of this sum by twelve. The total of the sums was $193,500, the one-twelfth quotient of said sum being $16,125. The thirteen pieces of paper found in the jury room were attached to the affidavit.
The appellee moved to strike those parts of the affidavit relating to the alleged conversation between Mr. Collins and the juror on the grounds that the same was hearsay, and on the further grounds that the affidavit sought to impeach the verdict of the jury.
The court reserved his ruling on this motion to strike.
The appellee offered in evidence an affidavit by the juror Wilson, counsel stating he had sent to Mr. Collins a copy of the affidavit on 2 December 1967, some 24 days prior to the hearing.
Juror Wilson's affidavit set forth that all members of the jury agreed that a verdict should be rendered in favor of the plaintiff. Thereafter each juror wrote down a figure he thought would be a fair award, "but at no time during the deliberations did the members of the jury agree in advance of writing the figures to be bound by the figures or an average thereof or a quotient or any resulting amount."
Affiant Wilson further stated that the sum of the figures when divided by twelve amounted to $16,126, as he recalled, and the amount of damages awarded was $15,000, and he had never made a statement to anyone that the jury had agreed to be bound by an average of the figures, but that the amount awarded was arrived at after a full and fair discussion and deliberation with no commitment by any member of the jury.
Objection was interposed to the admission of this affidavit on the grounds that it was "a self-serving illegal affidavit, and not subject to cross examination for either the contents of it or either any prior inconsistent statements made by the affiant to the counsel in this case."
The court reserved a ruling on this objection.
Upon completion of the hearing the court took the matter under consideration and overruled the same on 2 February 1968.
That portion of Mr. Collins' affidavit pertaining to his conversation with the juror Wilson was hearsay, and further, tended to impeach the jury verdict.
*494 Neither testimony nor affidavits of jurors are admissible to impeach their verdicts. Finney v. Newson, 203 Ala. 191, 82 So. 441; Bank of Cottonwood v. Hood, 227 Ala. 237, 149 So. 676; Fortson v. Hester, 252 Ala. 143, 39 So. 2d 649; Lackey v. Lackey, 262 Ala. 45, 76 So. 2d 761.
The affidavit of Mr. Collins as to the juror Wilson's statement to him tending to impeach the verdict would indirectly permit that to be done which could not be done directly.
In view of the court's denial of the motion for a new trial, we assume that this inadmissible portion of Mr. Collins' affidavit was not considered.
This then leaves that portion of Mr. Collins' affidavit relative to finding the above mentioned papers in the jury room.
As stated in Mobile and O. R. Co. v. Watson, 221 Ala. 585, 130 So. 199:
The affidavit of the juror Wilson submitted by the appellee, negatives the existence of the inference created by the papers found in the jury room of any agreement of the jurors to be bound by an average of the figures noted individually by the jurors. Such agreement to be bound is essential before a verdict may be declared a quotient verdict. Fleming v. Knowles, 272 Ala. 271, 130 So. 2d 326; Southern Elec. Generating Co. v. Howard, 275 Ala. 498, 156 So. 2d 359.
Clearly, the affidavit of the juror Wilson offered by the appellee was properly before the court for consideration. As set forth in the recent case of Jones v. State (Ala.Sup.), 224 So.2d 890:
We find no basis for disturbing the lower court's order denying appellant's motion for a new trial on the ground and contention that the verdict was a quotient verdict.
We have considered the other matters argued in the brief of counsel in support of the application for rehearing.
As to these matters, we adhere to our former opinion.
Opinion extended; application overruled.
LIVINGSTON, C. J., and LAWSON, MERRILL and MADDOX, JJ., concur. | January 22, 1970 |
67e229b7-4dc5-4b9d-b5ac-7adfbc37281e | Bosarge v. State | 139 So. 2d 302 | N/A | Alabama | Alabama Supreme Court | 139 So. 2d 302 (1961)
Edward Sharpe BOSARGE
v.
STATE of Alabama.
1 Div. 903.
Supreme Court of Alabama.
September 28, 1961.
Rehearing Denied April 5, 1962.
*303 Edmund R. Cannon, Jr., and Alton R. Brown, Jr., Mobile, for appellant.
*304 MacDonald Gallion, Atty. Gen., and Robt. M. Hill, Jr., Asst. Atty. Gen., for the State.
GOODWYN, Justice.
Appellant, Edward Sharpe Bosarge, was convicted in the Mobile County circuit court of murder in the first degree and sentenced to death by electrocution. The indictment charged that he, "unlawfully and with malice aforethought, killed Dorothy Grace Cash by striking her with a hammer, against the peace and dignity of the State of Alabama." He entered pleas of "not guilty" and "not guilty by reason of insanity." His appeal here is under the provisions of the automatic appeal statute. Act No. 249, appvd. June 24, 1943, Gen.Acts 1943, p. 217. See 1955 Cum.Pocket Part, Code 1940, Tit. 15, § 382(1) et seq.
Being mindful of our duty in cases of this kind, we have carefully considered all of the testimony, even though no lawful objection or exception was made thereto, and find none seriously prejudicial to the rights of appellant; nor can we say, after considering all of the testimony, that the verdict is so decidedly contrary to the great weight of the evidence as to be wrong and unjust. Act No. 249, supra. The verdict is amply supported by the evidence. In fact, appellant voluntarily testified in his own behalf and admitted killing the deceased with a hammer after she refused his sexual advances and slapped him; that he lost his senses, did not realize what he was doing, and did not intend to kill her. Under the evidence, the issues as to appellant's guilt and competency were clearly for the jury's determination. The trial court fully expounded the applicable law in its oral charge to the jury, to which no exceptions were taken.
Two members of the Mobile County Bar were appointed by the trial court to defend appellant. The same attorneys appear in his behalf on this appeal. Although, in appellant's brief, reversible errors are charged and argued, we find no merit in any of them. Nor do we find any other ground for reversal. However, the several grounds relied on by appellant merit discussion.
Error is charged in the denial of appellant's motion for a continuance and for a new venire, because of the alleged prejudicial nature of a newspaper article appearing in the April 24, 1960 Sunday edition of The Mobile Press Register. This article recited that the case was set for trial the following Wednesday; that appellant "had been paroled in August from Mississippi's Parchman Prison, where he served 14 years for manslaughter in a prior hammer slaying in Ocean Springs, Miss."; that "in that case, he was convicted of the bludgeoning of a young woman whose body was found in a hotel in the Mississippi Coast Town"; that "while at prison, an additional eight years was added to the 20-year term for a hammer attack on a prison official's wife." Also included in the article was a list of the veniremen summoned for duty as jurors during the week the case was set for trial.
The motion was based on the premise that, because of the article, appellant could not receive a fair and impartial trial at the time set for the reason that "the printing of the names of the jurors in the same article in which there appeared an account of the prior convictions of defendant unduly calls to the attention of the very jurors that are to hear the case the fact of such prior convictions, and has the further effect of singling out and giving undue emphasis of such prior convictions to such jurors."
Appellant offered only the newspaper article in support of his motion. However, the trial court, in qualifying the jurors, asked whether any of them had read the newspaper article. Fourteen answered in the affirmative. The court then directed to them the following inquiry:
Each separately answered, in effect, that the article would have no influence on him and that, if selected as a juror, he would consider only the evidence presented.
There is an established principle that the matter of continuance in a criminal case is addressed to the sound discretion of the trial court, and that the exercise of such discretion will not be disturbed unless clearly abused. Goldin v. State, 271 Ala. 678, 680, 127 So. 2d 375; Aaron v. State, 271 Ala. 70, 75, 122 So. 2d 360; Cook v. State, 269 Ala. 646, 655, 115 So. 2d 101; Walker v. State, 265 Ala. 233, 235-236, 90 So. 2d 221; Logan v. State, 251 Ala. 441, 443, 37 So. 2d 753; Riley v. State, 209 Ala. 505, 509, 96 So. 599.
In Goldin v. State, supra [271 Ala. 678, 127 So. 2d 377], it is said:
The trial court was not convinced, nor are we, that appellant could not have had a fair trial because the newspaper article was read by some of the veniremen summoned for service as jurors in this case. It is our view that appellant has failed to show such an abuse of discretion as would warrant reversal for not continuing the case. Also, it is our view that even if there was error in refusing a continuance, such error was cured when defendant voluntarily took the stand as a witness in his own behalf and testified as to his prior convictions.
It is insisted that reversible error was committed in refusing to give appellant's requested written charge No. 31, viz.:
This charge was approved in Davis v. State, 214 Ala. 273, 276, 107 So. 737. However, if appropriate in the case before us, it was not error to refuse it because the same principle was substantially covered by the court's oral charge. Code 1940, Tit. 7, § 273; Morris v. State, 268 Ala. 60, 67, 104 So. 2d 810; Walker v. State, 265 Ala. 233, 236, 90 So. 2d 221, supra. Also, the charge concludes to an acquittal without hypothesizing that result upon due consideration by the jury of all the evidence on the issue of guilt vel non. Even if otherwise correct, it was properly refused on that ground. Lee v. State, 265 Ala. 623, 629-630, 93 So. 2d 757; Coats v. State, 253 Ala. 290, 296, 45 So. 2d 35; Campbell v. State, 182 Ala. 18, 33, 62 So. 57.
Insistence is made that a proper predicate was not laid before admitting evidence of an oral confession made by appellant.
Chief Deputy Blake testified as follows:
Appellant argues, first, that Deputy Blake's testimony shows that someone other than he and Deputy Dees was in the room when the oral confession was made; that there was no proof that someone other than the witness and Deputy Dees did not make some threat or hold out some inducement to appellant to make the confession. Evidently, the trial court concluded from Deputy Blake's testimony, and we think properly so, that only Blake and Dees were in the room with appellant. Secondly, it is argued that the testimony of Deputy Blake does not show that Deputy Dees, who was in the room with appellant, did not offer appellant a reward or inducement to make the confession. We are unable to agree with this insistence. It is to be noted that the question was first asked of Deputy Blake whether he or Deputy Dees threatened appellant in any way. Although the following questions did not continue to refer specifically to both Deputy Blake and Deputy Dees, the clear import of the other questions asked was that they applied to both of them.
It is to be noted, too, that appellant, on his direct examination, testified that only Blake and Dees talked to him on the occasion when he made the oral statement. Of some significance, also, is the fact that there is no indication whatever in appellant's testimony that he made the statement other than freely and voluntarily.
As already noted, appellant was a witness in his own behalf. The following is from his direct examination, viz.:
On his cross-examination the following occurred, viz.:
Appellant insists that reversible error was committed in so cross-examining him because of: (a) The emphasis on the sameness of the crimes; (b) the eliciting of details of the crimes; (c) the failure to prove the former convictions by court records; (d) failure of the trial court to instruct the jury how evidence of the former convictions should be considered; and (e) the admission of a diagram which was "not clear and understandable to the witnesses interrogated with reference to it." Our conclusion is that none of these grounds constitutes reversible error.
(a) and (b). In 98 C.J.S. Witnesses § 401 P. 186, the rule for cross-examining an accused is stated as follows:
Since appellant had already testified on his direct examination with respect to the former convictions, we see no prejudicial error in permitting his cross-examination concerning such convictions. The cross-examination brought out nothing more of substance than had already been testified to by appellant. Indeed, the former convictions were injected into the case by appellant himself, thus opening the way to a cross-examination with respect thereto. Also, it is an established principle that the extent of cross-examination is a matter addressed to the sound discretion of the trial court, not reviewable except for abuse. Burgess v. State, 256 Ala. 5, 11, 53 So. 2d 568; Davis v. State, 240 Ala. 365, 367, 199 So. 547; Pynes v. State, 207 Ala. 413, 415, 92 So. 666. Under the circumstances of this case we see no abuse of discretion in the cross-examination of appellant.
(c). Since appellant testified to his prior convictions on his direct examination there was no necessity for the State on cross-examination to prove such convictions by a certified copy of the records of the courts showing them, under the best evidence *309 rule. As said in Harbin v. State, 210 Ala. 667, 668, 99 So. 100, 101:
(d). Undoubtedly, appellant's convictions were brought out by him to support his plea of insanity. And the trial court, in its oral charge, fully dealt with that plea. Appellant must have been satisfied with the trial court's oral instructions to the jury because he took no exception thereto; nor did he request any written charge stating to what extent consideration should be given to the evidence of appellant's former convictions. We see no reversible error in the failure of the trial court, under the circumstances of this case, to specifically charge the jury as to what bearing appellant's former convictions should have on the case.
(e). The State offered in evidence a diagram consisting of streets and various objects and buildings marked thereon. This diagram was referred to by some of the witnesses in the course of their testimony. We find no error in admitting it into evidence. Hardie v. State, 260 Ala. 75, 79, 68 So. 2d 35; Jones v. State, 181 Ala. 63, 77, 61 So. 434; Noel v. State, 161 Ala. 25, 31, 32, 49 So. 824; Burton v. State, 115 Ala. 1, 9, 22 So. 585.
As stated in Jones v. State, supra [181 Ala. 63, 61 So. 439]:
In Burton v. State, supra [115 Ala. 1, 22 So. 588], it was said:
Finding no error to reverse, the judgment of conviction is due to be affirmed.
Affirmed.
All the Justices concur. | September 28, 1961 |
688999ae-4dff-4ae2-b2e5-6733ad9c2cd7 | Grandquest v. Williams | 135 So. 2d 391 | N/A | Alabama | Alabama Supreme Court | 135 So. 2d 391 (1961)
B. O. GRANDQUEST et al.
v.
Blanchard WILLIAMS.
1 Div. 915.
Supreme Court of Alabama.
November 16, 1961.
Rehearing Denied December 21, 1961.
*392 Lyons, Pipes & Cook, Mobile, for appellants.
Cunningham & Bounds, Mobile, for appellee.
STAKELY, Justice.
Blanchard Williams (appellee) instituted this action against B. O. Grandquest individually and doing business as Gulf City Construction Co. and Carl V. Reed (appellants) claiming damages for injuries suffered by the plaintiff arising out of a motor vehicle collision on U. S. Highway 31 approximately 5 miles south of Bay Minette, Alabama, on May 5, 1959. The plaintiff's complaint charged the defendants with simple negligence.
The defendants filed pleas of the general issue and contributory negligence. The result of the trial before a jury was a verdict and judgment in the sum of $15,000.
*393 Motion for a new trial was overruled. This appeal followed.
The accident occurred in the early morning on U. S. Highway No. 31 about 5 miles south of Bay Minette, Alabama, on May 5, 1959. The weather was clear. The highway was fairly level and there was a roadside park on the east side of the highway and there was a wide shoulder on the west side.
The plaintiff's automobile was headed south and the truck of Gulf City Construction Co., driven by Carl W. Reed, was headed north when the collision occurred. Damage was done to the left front end of both vehicles. We shall consider the assignments of error in the order in which they have been argued in brief except that we shall consider assignment of error No. 50 first.
Assignment of Error No. 50
On June 30, 1960 the court reporter filed the completed transcript of evidence in this cause with the clerk of the circuit court. On July 8, 1960 the defendants filed objections to the transcript of the evidence and a motion that the alleged errors therein be corrected. On August 8, 1960 the court took the motion under consideration upon the written stipulation of the parties that the evidence in support of and in denial of the motion be by affidavit. The affidavits were accordingly filed by the parties. The court denied the defendants' motion to correct the transcript of evidence and this ruling is assigned as error.
The procedural matters specified in Title 7, Section 827(la), 1955 Cumulative Pocket Part have been complied with. It will be noticed that in this statute the ruling of the court upon such a hearing, "shall be reviewable, with error duly assigned by the dissatisfied party upon the appeal of the cause, and the evidence upon such hearing shall be duly certified by the court reporter." According to the appellants the first irregularity concerns a statement made by the prospective juror Robert C. Whiting `during the qualification of the jury. The transcript of evidence reads, "I am an insurance agent and have written through it." We think it reasonable to consider that the record is correct in that Whiting stated he had written policies through the U. S. Fidelity & Guaranty Co. because his statement is an immediate response to the following question of the trial court. "Have you any connection with this insurance company, U. S. Fidelity & Guaranty Co.? Have you any connection with it?"
The second alleged irregularity concerns a statement made by the plaintiff on direct examination. The transcript reads, "It was a total loss." According to the appellants the transcript should read, "It was a total loss. The insurance company paid for it." The court reporter has certified that "* * * the testimony and proceedings were correctly taken down by me in shorthand and correctly transcribed by me." Upon consideration of the matter in the light of the affidavits and the certificate of the court reporter we are not satisfied that the court was in error in denying the motion and accordingly we find no error in this ruling.
It is urged that the trial court erred in overruling defendants' motion for a new trial. One of the grounds of the motion is that the verdict of the jury and the judgment thereon were contrary to the great weight and preponderance of the evidence. Authorities such as King v. Brindley, 255 Ala. 425, 51 So. 2d 870, are cited to support the proposition that where the testimony of a witness is incredible, incoherent or physically impossible and unbelievable or contrary to physical facts in common observation and experience, such evidence is to be disregarded as being without evidentiary value. The plaintiff testified that, "He was over on my side of the road. First I thought he was fixing to pull over in the parkway. There was a little place where *394 he could pull in. I let up on the accelerator and applied the brakes casual like and about that time he turned and started to back across the road * * *." The appellants point out that the park was not located on the plaintiff's side of the road. However, the evidence shows that there was parking space on both sides of the road.
Furthermore, according to the appellants the plaintiff testified that the accident occurred on the crest of a hill but later testified that the highway at the scene of the accident was straight, wide and level. The testimony of the plaintiff shows that the hill in question was a slope or long grade and that the highway was fairly level and straight. This court has held in the case of Karpeles v. City Ice Delivery Co., 198 Ala. 449, 73 So. 642, that the jury can properly consider the conflict between the testimony of any witness and the "physical facts" in determining what weight should be given to the testimony. The jury should take the truth wherever found in the evidence. They may accept or reject different parts of the evidence in working out a verdict supported by any reasonable theory of the evidence. Donaldson v. Fuqua, 232 Ala. 604, 169 So. 223.
The appellants also argue that the plaintiff had ample time to bring his vehicle to a stop after he observed the defendant on the wrong side of the road, if he were traveling at a reasonable speed. Emphasis is placed on the testimony of the patrolman who found only one skid mark which, according to the appellants, indicates that the vehicle was moving at an excessive speed or that the brakes were defective. However, according to the plaintiff there was no apparent need to come to an immediate stop because he thought the defendant was pulling off the road. Furthermore, the patrolman testified that he was only concerned with finding one skid mark and did not testify that there was only one. This court has held many times that verdicts are presumed to be correct and no ground of a motion for a new trial is more carefully scrutinized than that the verdict is against the weight of the evidence. Dollar v. McKinney, 267 Ala. 627, 103 So. 2d 785. Furthermore, verdicts are presumed correct and the presumption in favor of the correctness of the verdict is strengthened when a new trial is denied by the court. Mintz v. Millican, 266 Ala. 479, 97 So. 2d 769. Furthermore, on appeal from a judgment for the plaintiff this court must review the tendencies of the evidence most favorable to the plaintiff allowing such inferences as the jury was free to draw. Jeffrey Mfg. Co. v. Hannah, 268 Ala. 262, 105 So. 2d 672.
The appellants also insist that the motion for a new trial should have been granted because the plaintiff abused his privilege of qualifying the jury by direct references to the defendants' insurance coverage. We think it well to go to the record in this respect. Prior to the qualification of the jury defendants' counsel placed a slip of paper on the clerk's desk which named the defendants' insurance carrier. We quote from the record:
It will be noted that the only statement made to the effect that this insurance company was the insurance company of the defendants was by the defendants' own counsel. After the statement of defendants' counsel there was less need to avoid any reference to the insurance company. Accordingly we consider that the references to the insurance company were for the purpose of qualifying the jury and not for the purpose of prejudicing the jury.
Another ground of the motion for a new trial which is the basis of Assignment No. 11 as well as one of the grounds of the motion for a new trial is that the trial court was in error in refusing to grant the defendants' challenge for cause when one prospective juror stated, "The plaintiff and I are personally acquainted and work for the same company." The test to be applied has been stated to be that of probable prejudice. Probable prejudice for any reason disqualifies a prospective juror. Mutual Building & Loan Ass'n v. Watson, 226 Ala. 526, 147 So. 817. For a juror to be impartial between the parties he must be "indifferent as he stands unsworn". Wilson v. State, 243 Ala. 1, 8 So. 2d 422, 430. The appellants cite as authorities to show probable prejudice the following cases: State v. Maxey, 218 S.C. 106, 62 S.E.2d 100; State v. Joiner, 163 La. 609, 112 So. 503; Johnson v. Reynolds, 97 Fla. 591, 121 So. 793; Birmingham Ry., Light & Power Co. v. Drennen, 175 Ala. 338, 57 So. 876, 882. In the Maxey case it was held that the trial court did not err in excusing a juror who stated he was a friend of the defendant and that his friendship might embarrass him in returning a true and proper verdict. In the Joiner case the juror in question was a personal friend of the state's main witness and the deceased, who met death in an attempt to prevent such witness from being maltreated by defendant and had been told purported facts in the case by such witness. In the Reynolds case the juror stated he was afraid he could not render a fair verdict because of his friendly relationship with plaintiff's attorneys and that he would give the plaintiff the benefit of any doubt. Finally, in the Drennen case the court said:
We do not think that the questions and answers in the case at bar indicate probable prejudice. If the defendants felt that there was some friendship between the plaintiff *396 and the prospective juror which would prevent him from forming a fair and impartial opinion then they should have propounded further questions in open court to determine the specific nature of the relationship.
It is also contended by the appellants that the trial judge had no right or power to allow a juror to become a member of the panel after having once discharged him. The transcript shows that there was some confusion in regard to which juror had been qualified. However, by quoting from the transcript we believe it can be readily seen that the trial judge did not intend to disqualify the juror referred to by the appellants.
It is also argued by the appellants that the motion for a new trial should have been granted in that the amount of the verdict is excessive and grossly out of proportion to the alleged injuries suffered. Tendencies of the evidence show that as a result of the accident one side of the plaintiff's face was crushed and shattered and that he sustained multiple compound fractures and a number of severe lacerations. There is also evidence tending to show that plaintiff's vision has been permanently impaired and that he is more susceptible to sinus infection and that he has an area in his face which is tender to the touch.
Prior to the accident plaintiff was employed with a basic salary of $500 per month. For a month plaintiff was unable to do any work. Tendencies of the evidence show that he had to return to a different job where he is earning only $400 per month and there was evidence tending to show that he had a life expectancy of 30 years. Tendencies of the evidence show that he incurred medical bills of at least $716.
In cases of this character the reviewing court is reluctant to substitute its judgment for that of the jury and lower court. Florence Hotel Co. v. Bumpus, 194 Ala. 69, 69 So. 566; Central of Georgia R. Co. v. White, 175 Ala. 60, 56 So. 574. The correctness of the jury's verdict was strengthened by the action of the trial court in refusing to grant a new trial. Simpson v. Birmingham Electric Co., 261 Ala. 599, 75 So. 2d 111. We are unwilling to say that the verdict was the result of passion, prejudice or partiality and we think the evidence, if believed, would authorize the verdict rendered by this jury.
*397 There was no error in overruling the motion for a new trial.
When called as a witness by the defendants, Patrolman Hughes drew a diagram of the scene of the accident on a blackboard. Some model automobiles which were produced by the plaintiff were then used by the patrolman to represent the position of the vehicles on the highway when he arrived at the scene of the accident. The defendants objected and contend that the trial court was in error in permitting these models to be used because they are not in proportion to the road and objects at the scene of the accident as portrayed in the sketch. The witness himself testified the sketch was not in proportion. The case of Walker v. State, 35 Ala.App. 167, 44 So. 2d 798, is cited as an authority to support the position taken by the appellants. This case held that the trial court did not abuse its discretion in sustaining objections to the introduction of a drawing because of misleading tendencies. The opinion shows that this drawing was very inaccurate and misleading.
This court has held that blackboards and charts are admissible in evidence for use in clarification, explanation and for use by counsel in drawing inferences or making calculations based upon matters in evidence. McLaney v. Turner, 267 Ala. 588, 104 So. 2d 315. In the State v. Crumbley, 27 N.M. 226, 199 P. 110, the witness made a rough sketch in the presence of the jury for the purpose of illustrating his testimony. The admission of the same in evidence was held not error although the witness admitted the sketch was not accurate in some particulars. In Hall v. Sera, 112 Conn. 291, 152 A. 148, a witness while on the stand drew a sketch indicating the relative position of cars as he saw them after a collision. The court explained that the accuracy of the sketch was a proper subject for cross-examination and the fact that it was not drawn to scale and was not an authenticated map of the locality did not render it inadmissible but only affected its weight. An inaccuracy, if it is misleading, is such a distortion as may be, by its very nature, corrected on cross-examination. In the case at bar the trial court said, "The jury can determine what's what." The trial court obviously did not believe the inaccuracy was misleading. See 9 A.L.R.2d pp. 1044-1047.
In his closing argument to the jury counsel for the plaintiff stated, "You just give us an adequate amount and you don't have to worry whether it goes to the Supreme Court or not." Assuming for the sake of argument that this statement is irrelevant to the cause before us, in order to justify a reversal we must conclude that substantial prejudice has resulted. In situations of this kind much must be left to the enlightened judgment of the trial court, with presumptions in favor of the ruling. Birmingham Electric Co. v. Mann, 226 Ala. 379, 147 So. 165. There is nothing in the statement to indicate that the amount returned by the jury would be disturbed on appeal nor does the statement contain anything which might cause the jurors to shirk their duty. There is no error in this ruling.
Error is based on following statement made in his closing argument by plaintiff's attorney, "You give us an adequate amount and we will collect the money." The appellants insist that this statement carries a "slightly veiled" suggestion that the defendants carried liability insurance and this being true, reversal is required. In support of their argument appellants cite Taylor v. Brownelle-O'Hear Pontiac Company, 265 Ala. 468, 91 So. 2d 828. In that case counsel for plaintiff stated in his argument that he had dismissed one defendant because he didn't wish to penalize him and that he was after someone who could pay. In that case the court granted the motion for a new trial but in the case at bar the court denied the motion for a new *398 trial. We have often said as stated in Taylor v. Brownelle-O'Hear Pontiac Company, supra, that the granting or refusal of a motion for a new trial is a matter resting largely in the discretion of the trial court and that there is presumption that the court's discretion was properly exercised.
The statement in the case at bar differs from the statement in the foregoing case in that the statement in the instant case does not suggest some invisible party "whose business it is to stand for and pay such damages" and who will come forth and bear the burden. We find no error in this ruling of the court.
During the direct examination of the plaintiff he was asked what damage was done to his car, although this was not an item of damages claimed in the complaint. Plaintiff testified that the car was a total loss. The appellee insists that this was done in order to show the force of the impact.
The appellants argue that the plaintiff also stated in his response, "The insurance company paid for it." The record does not indicate, however, that the plaintiff mentioned insurance on the direct examination. On cross-examination the defendants brought out that the plaintiff's insurance paid the damages to the car. The defendants also elicited from the plaintiff that there was no claim for damages to the car and the trial court informed the jury, "He is not suing for damages to this car." Accordingly it was not error for the trial court to sustain objections to more questions by the defendants regarding the plaintiff's insurance and whether or not plaintiff had another suit pending claiming damages for the car.
The trial court refused to give the defendants written requested charge No. D-35 which reads as follows:
It is sufficient to say that this charge was covered by the oral charge of the court and by another written charge given at the request of the defendants.
It is argued that the court was in error in refusing to give the defendants requested written charge No. D-16 which reads as follows:
It is sufficient to say that there is no error here because the plaintiff did not make any specific claim for chest injuries and no evidence was introduced as to any chest injury.
Error is predicated on the refusal of the court to give the defendants written requested charge D-13 which reads as follows:
Again we say that there was no error in the refusal of the court to give this charge since there was no specific claim for damages for any alleged back injury and no evidence introduced to support the item in question.
Upon consideration we conclude that the judgment of the lower court should be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.*812 | November 16, 1961 |
855b1971-0f4c-4f85-bf15-528a45ab61e6 | Aaron v. State | 139 So. 2d 309 | N/A | Alabama | Alabama Supreme Court | 139 So. 2d 309 (1962)
Drewey AARON
v.
STATE of Alabama.
3 Div. 955.
Supreme Court of Alabama.
September 28, 1961.
Rehearing Denied April 5, 1962.
*311 Solomon S. Seay, Jr., Montgomery, for appellant.
MacDonald Gallion, Atty. Gen., Geo. D. Mentz, Asst. Atty. Gen., and Wm. F. Thetford, Circuit Sol., Montgomery, for the State.
MERRILL, Justice.
Appellant, a negro, was tried and convicted of raping a white woman and the death penalty was adjudged. An appeal was taken and this court reversed, 271 Ala. 70, 122 So. 2d 360. The cause was again tried and the same judgment again resulted. Counsel of appellant's own choice represented him at original arraignment, and continued to represent him at both trials and on both appeals.
On the first appeal, we treated all the pertinent questions whether or not raised in brief. The second trial followed the first opinion except in the instances in which there was some disagreement with the way the matter was originally handled. Since the first opinion disposes of most of the questions which could be raised on this appeal, we treat mainly those questions argued by appellant in brief.
The jurors, regular and special, were sworn, and they were called to the rail in groups of 5, 7, 10, 12, 15 and 17. Each group was questioned as to his qualifications and the trial court then asked them thirty-three questions which had been furnished him by appellant.
One point raised in brief was that the court erred in qualifying the jury in groups. In Burns v. State, 226 Ala. 117, 145 So. 436, this court approved qualifying and impaneling the jury in groups of twelve, and in Untreiner v. State, 146 Ala. 26, 41 So. 285, in groups of six. The trial court committed no error in the instant case by qualifying the jury in groups.
Appellant sought to "personally interrogate each prospective juror." The court refused to permit this, but stated that the court would ask any questions for appellant. Counsel for appellant stated then, and here on oral argument, that it has long been the practice in the Circuit Court of Montgomery County for the court to ask all of the qualifying questions. However, when any juror would answer any question in such a way as to indicate any bias or interest, counsel for appellant was permitted to personally interrogate that particular juror *312 as to the details. In Burns v. State, 226 Ala. 117, 145 So. 436, 437, it was said:
Title 30, § 52, Code 1940, provides:
It is the rule of our cases that the limit of voir dire examination is left much to the discretion of the trial court, and we do not think the circumstances here show an abuse of that discretion. Sims v. Struthers, 267 Ala. 80, 100 So. 2d 23; Redus v. State, 243 Ala. 320, 9 So. 2d 914; Dyer v. State, 241 Ala. 679, 4 So. 2d 311; Gholston v. State, 221 Ala. 556, 130 So. 69; Rose v. Magro, 220 Ala. 120, 124 So. 296.
Appellant argues that the court destroyed the effect of two of the questions by restating or explaining them. The first such instance follows:
The first sentence was the question posed by appellant. There is a great difference between an indication of guilt and evidence of guilt. The average juror knows that no person can be tried for a felony until there has been an indictment by a grand jury. There must have been some indication of guilt to the grand jury or the defendant would not have been indicted. The question as phrased was misleading and the court could have properly disregarded it, but it was asked with an explanation by the court that removed all the misleading tendencies. In this, there was no error.
The second instance follows:
This was another question which could have properly been disregarded. As worded, it would presuppose that the jury would act without any evidence. It was proper for the court to call to their attention that the verdict must be based on the evidence. Again, no prejudicial error occurred.
Appellant argues that error is shown in the following, which occurred during the qualification of the jury:
The record shows no ruling on the motion. But we think the record does show that when the juror understood that the indictment was not evidence of guilt, he would follow the charge of the court on that subject. No error is shown in this instance.
It is charged that the court erred in failing to ask the group of seven if any of them were related by blood or marriage to the prosecutrix or any of the lawyers in the case. This question was asked all the other jurors, but was not one of the thirty-three questions requested by appellant.
The cases cited by appellant are instances where jurors withheld information and did not give the correct answer when questioned. This is not the situation here. There is no indication in this record that any juror was related to parties or attorneys. This question was not raised on the motion for a new trial and is raised for the first time on appeal.
The rule is that in failing to use reasonable diligence in testing jurors as to their qualifications or grounds of challenge, *314 there is a waiver of the ground of challenge; and the defendant cannot sit back and invite error because of a juror's qualification. Batson v. State, 216 Ala. 275, 113 So. 300; Beasley v. State, 39 Ala.App. 182, 96 So. 2d 693. The rule was applied where it was later discovered that one of the jurors should not have served on the juryin the Batson case, he was an alien, and in the Beasley case, he had been convicted of a crime involving moral turpitude. But here, there has been no showing of any incapacity to serve or the failure to answer any question correctly.
Substantial error is not presumed, but the burden is upon the appellant to show error. McCall v. State, 262 Ala. 414, 79 So. 2d 51; Washington v. State, 259 Ala. 104, 65 So. 2d 704; Kabase v. State, 244 Ala. 182, 12 So. 2d 766. Appellant did not object to the omission of the question, nor did he request that it be asked. No reversible error has been shown.
Appellant argues that the physical examination and photographs made of him after his arrest violated his constitutional rights. This question was discussed fully in the opinion on first appeal, and we held that no error was committed. Aaron v. State, 271 Ala. 70, 122 So. 2d 360. The evidence there is identical to that in the record now before us.
Finally, appellant argues that his rights under Sec. 6 of the Constitution were violated in that he was "compelled to give evidence against himself," because he was asked to repeat certain words.
The evidence on this question was fuller and more detailed than on the first trial. H. W. Mitchell, a deputy sheriff, testified that he took appellant into a room at the city jail which had a "two-way window," permitting one on the outside to see inside the room, but not permitting one in the room to see through the window. The door to this room was slightly ajar to enable prosecutrix, who was outside the room, to hear the conversation between Mitchell and appellant.
The undisputed testimony of Mitchell on cross-examination was that after a general conversation of approximately ten minutes, he asked appellant to repeat some words "turn me loose"which prosecutrix testified her attacker had said to her. It was also undisputed that no threat, coercion, hope or promise of reward was made to appellant.
Dr. Murchison, prosecutrix's physician, accompanied her on the trip to the jail and was with her when she looked into the room with the two-way glass and heard Mitchell and appellant talking. His undisputed testimony was that appellant and Mitchell were talking when he and prosecutrix walked into the room and "she identified his voice immediately." He recalled that appellant was asked to repeat one particular phrase after a general conversation of several minutes, but he was positive that prosecutrix had "identified the voice prior to any questions from anyone."
Prosecutrix identified the shirt and trousers worn by appellant at the time of his arrest as being those worn by her attacker. She identified appellant by his build, his voice and his general appearance. There is no evidence in this record by any witness that the identification of appellant by prosecutrix was based upon his repeating of the words"turn me loose." To the contrary, the undisputed evidence is that she identified him before he was asked to repeat the phrase. Also, there is no evidence that appellant was compelled to do anything.
But appellant argues that his constitutional rights under Sec. 6 were violated because he did not know that prosecutrix and Dr. Murchison were watching and listening when he was talking. This question was recently settled by us in Seals v. State, 271 Ala. 142, 122 So. 2d 513. In that case, we committed ourselves to the holding that a defendant may be required to stand in a certain place where he can be observed and *315 be required to talk so that his voice can be heard by his alleged victim when he is not aware that he is being observed or listened to.
In the Seals case the original record shows that nine persons, including the defendant, were required to participate in a lineup at police headquarters. Each person in the lineup was brought from the lineup in front of a door with a two-way glass, behind which the prosecutrix was standing, but this fact was not known to the defendant or the others in the lineup. Each person was required to "walk up to the door and pivot themselves to the right and revolve around slowly that they can be seen from all sides," and "as a suspect comes up to the door, just before he turns around, or shortly after, before he takes his original place in the line-up again, he was asked his age, his employment, the type or work he done, and the church which he might attend." The prosecutrix there identified two of the suspects as her assailants after these two had been brought around in front of the door a second time and asked the same questions. She had asked to "hear" these two a second time.
We cannot say that any substantial right of appellant was prejudiced when he was looked at and listened to for purposes of identification without his knowledge. Seals v. State, supra.
The facts surrounding the commission of the crime are fully set out in Aaron v. State, 271 Ala. 70, 122 So. 2d 360, 367. They will not be repeated here at length. It is sufficient to say that on the afternoon of June 27, 1959, after a few minutes in her yard, prosecutrix went inside her home, opened a closet door and a Negro man inside pulled her into the closet and "a terrific struggle took place therein for approximately fifteen minutes." They fell out of the closet into the room and fought there for several minutes. Finally, prosecutrix became exhausted, was tied and then raped.
As soon as her assailant had left the house, prosecutrix notified the authorities and, in a short time, appellant was seen to back an automobile from a dead end clearing in a wooded area about one mile from the home of prosecutrix. The car was driven at a high rate of speed but was overtaken, and appellant, the only occupant of the car, was arrested.
At trial, the evidence of appellant's guilt was overwhelming. He did not take the stand, nor did he attempt to account for his whereabouts during the time of the assault by alibi or otherwise. There was some lay testimony, mostly by relatives, that he had a good reputation in the community and that he was not sane. It was undisputed that appellant was one of nine illegitimate children and that his mother died in an institution for the insane.
Lay evidence by appellant's employers and fellow workers was adduced to show that appellant had been a truck driver for several months and was sane. Dr. Bazar, a practicing psychiatrist, testified that in his opinion, appellant was sane. As stated in the first opinion:
We have already mentioned Dr. Murchison's testimony that he was with prosecutrix on July 7th when she identified appellant at the jail by looking at him through the two-way window and hearing his voice. Although there was no objection to that testimony, and no question about it is raised in appellant's brief, we think a fuller discussion is required to show the circumstances under which this evidence was admitted, since it was evidence of an extrajudicial identification.
The prosecutrix positively identified the appellant at the trial, and stated without objection that she positively identified him at the jail on July 7th. In this there *316 was no error. Beavers v. State, 103 Ala. 36, 15 So. 616; Yarbrough v. State, 105 Ala. 43, 16 So. 758; Bell v. State, 227 Ala. 254, 149 So. 687.
The record shows that Dr. Murchison testified that the prosecutrix did "see this defendant and hear this defendant talk," but nowhere did he quote any statement made by the prosecutrix.
We hold that the testimony of Dr. Murchison that the prosecutrix identified appellant was admissible at the time it was adduced. It was competent because it was in rebuttal of the inference raised on cross-examination of the prosecutrix and Dr. Murchison that the identification of the appellant by the prosecutrix was manufactured.
The prosecutrix was cross-examined about her failure to identify appellant as her assailant when he was in a lineup at her home shortly after she had been attacked, and also as to her identification of him at the jail on July 7th. Dr. Murchison was also cross-examined as to the number of men in the lineup when the prosecutrix failed to identify appellant. The effect of this cross-examination was to raise the inference that, since the prosecutrix had not identified appellant in the lineup on the day of the attack, evidence of her subsequent identification of him at the jail on July 7th was manufactured.
This question was raised and settled in the case of Yarbrough v. State, 105 Ala. 43, 16 So. 758, 760. The assaulted witness, Cole, had testified that he knew and identified the defendant at the time of the assault, but he did not have the defendant arrested until several months later. Cole was cross-examined as to whether he did not swear out a warrant for the defendant until one Polly Foster had been arrested and had told Cole that the defendant and another had conspired to rob him. Then Polly Foster, a witness for the State, was cross-examined along the same lines. In rebuttal, the State showed that Polly Foster had made this same statement before she had been arrested. This court, speaking through Coleman, J., said:
The judgment of conviction was affirmed.
The general rule is that evidence by a third party of an extrajudicial identification is admissible in rebuttal of testimony tending to impeach or discredit the identifying witness, or to rebut a charge, imputation or inference of falsity. Annotation 71 A.L.R.2d 487; State v. Waggoner, 39 La.Ann. 919, 3 So. 119; Thompson v. State, 223 Ind. 39, 58 N.E.2d 112; Faulkner v. State, 104 Tex.Cr.R. 378, 283 S.W. 824; People v. Kynette, 15 Cal. 2d 731, 104 P.2d 794; People v. Slobodion, 31 Cal. 2d 555, 191 P.2d 1; State v. Neiman, 123 N.J.L. 341, 8 A.2d 713. A full annotation on extrajudicial identification is found in 71 A.L.R.2d 449.
This rule is similar to that in cases where a witness is questioned as to details of a complaint of rape.
In prosecutions for rape the State may, on the direct examination of the prosecutrix, *317 prove the bare fact that she made complaint of the injury, and when and to whom, and she may be corroborated by the person to whom she complained as to the same fact.
When the complaint does not constitute a part of the res gestae, but is received only in corroboration of the prosecutrix's testimony, the general rule is that the details or particulars cannot be introduced, in the first instance, by the State. This would exclude any statement made in the complaint pointing out the identity of the person accused, or explaining the injuries claimed to have been received, or otherwise giving the minute circumstances of the event.
But there are at least two instances where the details of such complaint can be proved: (1) They may be elicited on cross-examination by the defendant; and when this is done only in part, the State may then proceed to prove, on the rebutting examination, the whole complaint. (2) Where the testimony of the prosecutrix is sought to be impeached, by attempting to discredit her story, it is permissible, by way of corroboration, for the State to prove such details, and to prove that she told the story the same way to others, confirmatory of her first statement.
These rules were stated and affirmed in Barnett v. State, 83 Ala. 40, 3 So. 612, and have been followed or restated in other cases. See Griffin v. State, 76 Ala. 29; Bray v. State, 131 Ala. 46, 31 So. 107; Allford v. State, 244 Ala. 148, 12 So. 2d 407; Lee v. State, 246 Ala. 69, 18 So. 2d 706; Huggins v. State, 271 Ala. 428, 123 So. 2d 911.
We again stress the fact that under the reason stated for the admissibility of the testimony of Dr. Murchison, it would not have been admissible as original testimony, but was rendered admissible after the inference had been raised by cross-examination that the original testimony as to the identification had been manufactured.
As required by us in cases of this nature, we have carefully examined the record for reversible error, whether or not it was called to our attention in brief. The testimony as to the use of the bloodhounds is free from error and the objectionable pages in the hospital records were not offered in evidence on the second trial. Finding no reversible error in the record, the judgment
Affirmed.
All the Justices concur. is affirmed. | September 28, 1961 |
17359412-3a80-4024-9e0c-1f6b94193ffd | Perez v. Hester | 133 So. 2d 199 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 199 (1961)
Frances PEREZ
v.
Hulett HESTER.
5 Div. 746.
Supreme Court of Alabama.
September 21, 1961.
Hooton & Hooton, Roanoke, for appellant.
D. T. Ware, Roanoke, for appellee.
MERRILL, Justice.
Appeal from a decree overruling demurrer to a petition of the father for custody *200 of his eleven year old daughter, whose custody had been awarded to the mother in a divorce decree dated November 30, 1959.
Three principles are involved where modification of an original decree involving custody of minor children is sought. First, the controlling consideration is the welfare of the child. Second, in determining which parent it entitled to the custody of minor children, each case must stand on its own particular facts. Third, the party seeking a modification must allege and show some change of conditions or other substantial reason for modification of the previous decree. Raines v. Baucom, 270 Ala. 706, 121 So. 2d 870; Barnett v. Barnett, 270 Ala. 489, 120 So. 2d 128.
Appellant argues that no sufficient change of circumstances has been alleged in the petition.
The petition shows that the parties lived together as husband and wife until November 17, 1960 (nearly twelve months after the divorce decree was signed); that appellant filed a bill for divorce against appellee on October 17, 1959, but that they had a complete settlement and appellant told appellee that she was dropping the suit and, relying on her statement, he did not employ an attorney or make an appearance in court; that he never learned that she went forward with the suit, secured a decree pro confesso and obtained the divorce decree awarding custody of their daughter to appellant; that appellee was working on the night shift at a cotton mill at Lanett on November 17, 1960; that he came home that morning and appellant, with whom he had been living as man and wife in Roanoke, was not at home; that upon investigation, he learned that she had left during the night with some men, whose names were not known to appellee; that their daughter was living with appellee's mother and was taken away on November 17, 1960, by false representations by appellant; that neither appellant nor her present husband Perez is a fit or suitable person to have control or custody of the child; that Perez is a transient, being connected with a fair or show that travels over a large territory; that Perez has no home and the child is not attending any school and is not being properly attended.
We have consistently held that a former decree awarding custody of a minor child is conclusive of the interests of the child and the rights of the parents so long as the status at the time of the decree remains without material change, unless pertinent facts existing but not disclosed at the time of the final decree are brought to light. Burleson v. Burleson, 269 Ala. 637, 114 So. 2d 887; Parker v. Parker, 269 Ala. 299, 112 So. 2d 467.
In Sparkman v. Sparkman, 217 Ala. 41, 114 So. 580, 581, we said:
We think the pertinent facts (they are taken as facts on demurrer) already set out require the court to hear and consider proof of them in this cause.
In proceedings involving the custody of children, mere legal niceties are not required in pleadings and the court is not bound by any strict rule of pleading. Barnett v. Barnett, 270 Ala. 489, 120 So. 2d 128; Casey v. Cobb, 266 Ala. 434, 96 So. 2d 753.
The demurrer was properly overruled.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | September 21, 1961 |
009d7e83-4c2f-451a-b2f3-8fe6d4a995a8 | Reynolds v. Reynolds | 149 So. 2d 770 | N/A | Alabama | Alabama Supreme Court | 149 So. 2d 770 (1961)
John T. REYNOLDS, Jr.
v.
Frances A. REYNOLDS.
1 Div. 926.
Supreme Court of Alabama.
September 28, 1961.
Rehearing Denied February 21, 1963.
Wm. R. Lauten, Mobile, for appellant.
Vincent F. Kilborn, Mobile, for appellee.
LIVINGSTON, Chief Justice.
In May 1956, appellee was granted a divorce, awarded alimony, support monies, and custody of the three minor children of the marriage, subject to certain visitation rights of the father. Appellant subsequently sought modification of the divorce decree, and the trial court, on July 19, 1957, entered a modified decree which, in so far as is pertinent to the instant case, ordered appellant to pay $250 per month as support of the minor children born of the above marriage on the following basis: $100 per month for the care and maintenance of John Terry Reynolds, III, $75 per month for the care and maintenance of Kathleen Jeanette Reynolds, and $75 per month for the care and maintenance of Charles Peter Reynolds.
On March 28, 1960, John T. Reynolds, III, became 21 years of age, and appellant notified the proper court officer that he would no longer remit $100 per month for the support and maintenance of John T. Reynolds, III. Under the wording of the July 19, 1957 decree, and where, as here, the age of John T. Reynolds, III, was not in dispute, generally speaking, the appellant was under no duty to seek a modification of the decree with reference to support money for John T. Reynolds, III, since by operation of law he was no longer under a legal duty to support his adult child. Had the trial court not itemized the monthly payments but merely awarded a lump sum, a petition for modification would have been necessary to relieve appellant from payment of the lump sum on the grounds of changed conditions.
It must be remembered that up to the time he reached 21 years of age, there had been no adjudication of the physical or mental condition of John T. Reynolds, III.
On June 10, 1960, the appellee filed a motion for execution on judgment of the July *771 19, 1957 decree. Appellant filed a motion to strike, which motion was overruled by decree of June 30, 1960, but the trial court ordered a hearing set for July 14, 1960, in the following language:
Appellant then filed a petition for modification of the July 19, 1957 decree, seeking relief from that portion of the decree ordering support money for John T. Reynolds, III.
Appellee filed an answer alleging the physical and mental disability of John T. Reynolds, III, and facts tending to show the necessity for a continuance of support monies for the adult child, and seeking in the alternative an increase in the payment for the support of the two minor children.
The trial court, after a full hearing, entered its decree of July 28, 1960, finding John T. Reynolds, III, to be physically and mentally disabled, ordering his care and custody to remain with the appellee and ordering appellant to make past due $100 monthly payments ordered by the decree of July 19, 1957, and to continue to make payment of $100 per month for the support and maintenance of John T. Reynolds, III, until further order of the court. The father appealed.
The general rules of law of parent and child, which are based on the child's incapacity, both natural and legal, and its consequent need of protection and care, ordinarily apply only while the child is under the age of majority. 39 Am.Jur. 708, Parent and Child, Sec. 68, and generally, when a child arrives at the age of majority, the parent is no longer under any legal obligation to support him. 39 Am.Jur. 710, Parent and Child, Sec. 69. These rules are recognized and supported by many authorities. See the Annotation to Wells v. Wells, beginning on page 910 of 1 A.L.R.2d. The Wells case is also reported in 227 N.C. 614, 44 S.E.2d 31, 1 A.L.R.2d 905. And there are cases holding that even though a child is unable to care for itself after becoming of age, that in the absence of a statute imposing such a liability, a parent, even though able to do so, is under no obligation to support such child. See Annotation 1 A.L.R.2d, at page 920. There is respectable authority to the effect that where a child is of weak body or mind, unable to care for itself after becoming of age, the parental rights and duties remain thereafter practically unchanged, and that the parent's duty to support the child continues as before. See Annotation 1 A.L.R.2d, beginning on page 921. But we believe that these cases agree, almost without exception, that the equity court in a divorce action is without authority to provide for such adult child's support, in the absence of statutory authority or contract, the divorce court's control over the child or its care terminating with his attainment of majority. Borchert v. Borchert, 185 Md. 586, 45 A.2d 463, 162 A.L.R. 1078; Murrah v. Bailes, 255 Ala. 178, 50 So. 2d 735; Rife v. Rife, 1933, 272 Ill.App. 404; Chaffee v. Chaffee, 1867, 15 Mich. 184; Johnstone v. Johnstone, 1927, 130 Misc. 243, 223 N.Y.S. 744; Brunswick v. First Cent. Trust Co., 1940, 66 Ohio App. 242, 32 N.E.2d 855; Dornbusch v. Dornbusch, 1945, 75 Ohio App. 490, 62 N.E.2d 652; Bodle v. Bodle, Ohio App. 1940, 46 N.E.2d 472; Beilstein v. Beilstein, Ohio App. 1945, 61 N.E.2d 620; Blake v. Blake, 1935, 20 O.L.A. 3; Boehler v. Boehler, 1905, 125 Wis. 627, 104 N.W. 840.
But we see no point in belaboring this opinion in an attempt to analyze the many different factual situations that have been presented to the courts of other jurisdictions, and the many conflicting decisions, real or apparent, of other courts.
*772 The pivotal question presented by the appeal in the instant case is: In a supplemental proceedings to a divorce action, does the equity court have jurisdiction to order the appellant to support his adult son where the son was admittedly incompetent, both prior to the divorce decree and after reaching majority, but was not living with his father when he attained his majority?
It was said in Murrah v. Bailes, 255 Ala. 178, 50 So. 2d 735, 736:
The opinion in Murrah v. Bailes, supra, points out that Sections 35 and 79, Title 34, Code of 1940, providing for allowance to children, apply only to minor children. It was also there said that Sec. 8, Title 44, Code of 1940, cannot serve as statutory authority to assist, since, as here, the adult child is not a pauper and the suit is not brought by a county or municipality as required by that statute.
In the instant case, as in Murrah v. Bailes, supra, it is conceded that no contract for support exists. In recognizing the general rule of nonliability of the parent for the support of an adult child, it was said in Murrah v. Bailes, supra:
(In the instant case, the mother received custody of the child in a divorce action 4 years before this proceeding arose.)
Appellee relies heavily upon Wells v. Wells, 227 N.C. 614, 44 S.E.2d 31, 1 A.L.R.2d 905. The Wells case was a suit by the mother against the father, who lived apart from his family, for necessities and services furnished an incompetent adult son of the parties. It was not a divorce action or a supplemental proceeding thereto, but sought merely to recover for necessities and services furnished, and did not, as in the instant case, seek future provisions for the care and maintenance of the incompetent adult. This case falls within the classification of debtor-creditor relationship. While some of the language of the opinion with reference to the substantive question is favorable to appellee's contention, the Wells case is not apt authority upon the question here posed. Authorities, supra.
It is true that the factual situation in the instant case is not identical with the factual situation presented in Murrah v. Bailes, supra. However that may be, we are clear to the conclusion that the trial court had no jurisdiction to order the continuation of the $100 monthly support payments for the benefit of John T. Reynolds, III. This, for the simple reason that the equity court, in a divorce proceeding, or a supplemental proceeding thereto, is without jurisdiction to order a continuation of provisions for support of a child after it reaches majority. That was all that was necessary for a decision in the Murrah v. Bailes case, and is all that we decide in the instant case. The court did have jurisdiction to render a decree as to the continuation of the payments to the two minor children of the father. A decree will be here rendered as above indicated.
Appellee has filed in this Court a motion for allowance of attorney's fees to be taxed against the appellant for representing her on the appeal in this cause.
*773 The right to an attorney's fee involving the modification of a decree where child support is involved is not questioned on this appeal, but when the question arises as to the jurisdiction of a court to enforce the payment of child support, where a child has reached its majority, and where, as here, that is the only question litigated, and it is resolved in favor of the father, it is an adjudication that as of the date the child reached the age of 21 years, no further support should be granted in a divorce action, or a supplemental proceeding thereto, and we are of the opinion that an attempt to do so does not merit the awarding of counsel fees against the father.
Modified and affirmed.
STAKELY, J., concurs.
LAWSON and MERRILL, JJ., concur in the results. | September 28, 1961 |
685588ad-884c-4171-ba33-5256b39546cc | Louisville and Nashville Railroad Co. v. Crim | 136 So. 2d 190 | N/A | Alabama | Alabama Supreme Court | 136 So. 2d 190 (1961)
LOUISVILLE AND NASHVILLE RAILROAD CO.
v.
H. M. CRIM.
6 Div. 382.
Supreme Court of Alabama.
December 21, 1961.
Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
Rives, Peterson, Pettus & Conway, Birmingham, for appellee.
LIVINGSTON, Chief Justice.
This is an appeal by defendant from a judgment in favor of plaintiff for $7,000, rendered on September 27, 1958, and from an order overruling defendant's motion for a new trial, rendered on November 7, 1958, said motion being filed and presented to the trial court on October 24, 1958.
Plaintiff brought this action against the railroad under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. to recover for back injuries allegedly received *191 while carrying out the duties of his employment. Plaintiff states his claim, in the four counts submitted to the jury, on the allegations, in substance, that the injury was the proximate result, in whole or in part, of the negligence of the officers, agents, or employees of defendant, acting within the line and scope of their employment, or by reason of defective or insufficient equipment, or the failure of the employer to provide him with a reasonably safe place to work, or the failure of the employer to furnish to plaintiff sufficient and competent help to do the work assigned to the plaintiff.
Defendant interposed a plea in short by consent, with leave to both parties to give in evidence any matters admissible if well pleaded in defense to said counts, or in reply to any defense.
Plaintiff and two other employees were working in the pit at the Diesel Shop on a diesel engine part. The pit was 50 feet long, 4 feet wide and approximately 4½ feet deep. At some place in the pit, the men were unable to work in a complete upright position, but had to bend over. The men used three oak blocks, ranging in weight from 40 to 45 pounds to 85 to 90 pounds, which were placed under a jack which was then used to raise the motor of the engine. They were instructed to throw the blocks out of the pit and to clean the pit at the completion of their work. The floor of the pit had oil on it and the blocks were oil soaked. The two employees working with plaintiff both suffered from a hernia condition, one having a "double rupture" and wearing a double truss; the other having recently returned to work after undergoing an operation for hernia. Both plaintiff and defendant knew of these conditions. It was the practice in the shop to help each other and to "favor" the employees with physical handicaps. When plaintiff and the other two employees finished the work, they cleaned up the pit, plaintiff throwing the blocks out while the other two gathered up other tools and equipment. Plaintiff neither asked for nor was offered any assistance with the three blocks. It was while throwing the blocks out that he alleges he hurt his back. There was considerable testimony concerning the severity of the injury and pain, the cost of treatment, and the length of the difficulty, but since the amount of the verdict is not argued, we do not feel it necessary to set out in detail the evidence on these questions.
The contention of the appellant in his argument seems to be the failure of the plaintiff to adequately show that this injury was the proximate result of any misconduct or negligence of the defendant.
Only assignments of error 1, 2 and 17 are argued by appellant. It will be deemed that all other assignments of error are waived and, therefore, will not be considered by the Court. Supreme Court Rule 9(d).
Assignments of error 1 and 2 are directed toward the refusal of the trial court to give two written charges, each of which was the general affirmative charge with hypothesis. They are as follows:
It is argued by appellant that there is no evidence to sustain the various allegations of negligence in any of the four counts upon which plaintiff based his case. Because of this lack of evidence, the appellant contends, the defendant was entitled to have the jury instructed as above indicated.
This precise question has been discussed on many occasions by this Court, our conclusions being well stated in the case of Atlantic Coast Line R. Co. v. McMoy, 261 Ala. 66, 73 So. 2d 85, 90, in which the Court stated:
The holding in the McMoy case, supra, is amply supported in the case of Louisville & Nashville Railroad Company v. O. E. Cooke, 267 Ala. 424, 103 So. 2d 791, and Atlantic Coast Line R. Co. v. Taylor, 260 Ala. 401, 71 So. 2d 27.
This Court, in keeping with the above decisions, has held that the affirmative charge is properly given only where there is a complete absence of probative facts to support the plaintiff's claim of negligence on the part of the railroad. While we make no attempt to detail the evidence, other than as above indicated, after a careful review of all the evidence, we are to the conclusion that the general affirmative charge with hypothesis was properly refused.
Assignment of error 17 complains of the trial court's refusal to grant appellant's motion for a new trial. We have already indicated that there was some evidence to support the verdict and "the decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to 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." Cobb v. Malone, 92 Ala. 630, 9 So. 738, 740.
The verdict is strengthened when the presiding judge refuses to grant a new trial, and the verdict should not be set aside because it may not correspond with the opinion of the court as to the weight of the testimony or because it is against the mere preponderance of the evidence. Louisville & Nashville R. Co. v. Tucker, 262 Ala. 570, 80 So. 2d 288; Simpson v. Birmingham Electric Co., 261 Ala. 599, 75 So. 2d 111; Montgomery City Lines v. Davis, 261 Ala. 491, 74 So. 2d 923; Gulf, M. & O. R. Co., v. Sims, 260 Ala. 258, 69 So. 2d 449.
We find no error in the record and the case is affirmed.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur. | December 21, 1961 |
cf875e44-fb43-418c-8e2b-444db093823c | Lunney v. Southern Railway Company | 133 So. 2d 247 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 247 (1961)
Frank E. LUNNEY
v.
SOUTHERN RAILWAY COMPANY et al.
6 Div. 575.
Supreme Court of Alabama.
September 21, 1961.
*248 J. Robt. Huie and J. Terry Huffstutler, Birmingham, for appellant.
Cabaniss & Johnston, Leigh M. Clark and L. Murray Alley, Birmingham, for appellees.
LAWSON, Justice.
This is an action for personal injuries received by the plaintiff, Frank E. Lunney, in a collision, on a grade crossing, between a truck operated by the plaintiff and a railroad engine owned by the defendant, Southern Railway Company. The defendant W. V. Bell was the engineer.
The collision occurred in the daytime at the intersection of Powell Avenue and 32nd Street in the City of Birmingham. The plaintiff was proceeding in a southerly direction on 32nd Street and the railroad' engine was moving in an easterly direction, on tracks in Powell Avenue.
The complaint consists of two counts; the first charges negligence, the second wantonness.
The defendants pleaded the general issue in short by consent.
At the conclusion of the evidence the trial court gave the affirmative charge in favor of the defendants.
Plaintiff's motion for a new trial was overruled. He has appealed to this court.
The testimony offered by the plaintiff below was sufficient to indicate simple initial negligence on the part of the defendants in approaching the crossing. But the trial court concluded that the plaintiff was not entitled to recover because of such initial negligence in that the undisputed *249 evidence showed that he was himself guilty of contributory negligence, as a matter of law, which proximately contributed to the collision, in that he failed to stop, look and listen before crossing the track in violation of an ordinance of the City of Birmingham, then in effect, which ordinance read:
The original brief filed in this court by the appellant, the plaintiff below, concludes with this statement: "We submit to this Honorable Court that the question of subsequent negligence on the part of the defendants and the question of wantonness was for the jury." Those are the only questions argued in the appellant's original brief. Nowhere in that brief did he attack the trial court's action in taking from the jury the question as to his right to recover for the defendants' simple initial negligence.
Since that question is not adequately argued in appellant's original brief, it will not be treated in this opinion. American Nat. Bank & Trust Co. v. Powell, 235 Ala. 236, 178 So. 21.
Slight reference is made in appellant's reply brief to the issue of simple initial negligence charged in the first count of the complaint, but such reference does not amount to an argument that the trial court erred in taking that issue away from the jury. But in any event, questions not raised in the original brief are deemed waived and will not be considered when raised for the first time in the reply brief. Nashville, C. & St. L. Ry. v. Abramson-Boone Produce Co., 199 Ala. 271, 74 So. 350; Hughes v. Bickley, 205 Ala. 619, 89 So. 33.
As we have shown, it is urged by the appellant, the plaintiff below, that there was evidence from which the jury might have found the defendants guilty of subsequent negligence.
The burden was on the plaintiff to prove subsequent negligence, that is, that the defendants discovered that plaintiff was in peril of a collision in time to have averted it by the use of facilities at hand and, nevertheless, negligently failed to use those facilities. Young v. Woodward Iron Co., 216 Ala. 330, 113 So. 223; Louisville & N. R. Co. v. Griffin, 240 Ala. 213, 198 So. 345; Southern Ry. Co. v. Hughes, 267 Ala. 418, 103 So. 2d 324; Southern Ry. Co. v. McCamy, 270 Ala. 510, 120 So. 2d 695.
Subsequent negligence is, of course, based upon a breach of duty after the discovery of the peril of the plaintiff and there must be actual knowledge of the peril. Inadvertence or inattention on the part of the defendant is insufficient to support a charge of subsequent negligence. Bason v. Alabama Great Southern R. R. Co., 179 Ala. 299, 60 So. 922; Southern Ry. Co. v. Miller, 226 Ala. 366, 147 So. 149; Louisville & N. R. Co. v. Griffin, supra.
We are clear to the conclusion that this was not a case for the jury as to subsequent negligence, as the proof does not show any knowledge of the plaintiff's peril on the part of the enginemen in time to have averted the injury. Plaintiff approached the track from the north. The engineer was on the other side of the engine. The undisputed evidence shows the engineer did not see the truck until "the point of impact." According to the defendant Bell's answers to interrogatories, the fireman gave him "warning of the approach of the said truck immediately prior to the impact." There is nothing to indicate that the fireman did not inform the engineer as soon as he had reason to believe the plaintiff would not stop his truck before reaching the track. As soon as he was informed by the fireman of the approach of plaintiff's truck, the engineer *250 immediately placed the brakes in emergency. There is no evidence in this case to indicate the enginemen did not use all the means at their command and known to skilled trainmen to avert injury to plaintiff after discovery of his peril.
The cases of Dentral of Georgia Ry. Co. v. Ellison, 199 Ala. 571, 75 So. 159, and Central of Georgia Ry. Co. v. Lee, 227 Ala. 661, 151 So. 840, relied on by the plaintiff below in support of his insistence that the trial court should have submitted the issue of subsequent negligence to the jury, are not in conflict with our holding here. Both of those cases involve trespassers present on the track of the defendant railway from the time they came into view of the defendant's train crew.
We are of the opinion that the trial court acted correctly in giving the affirmative charge in favor of defendants on the issue of subsequent negligence. Bason v. Alabama Great Southern R. R. Co., supra; Bates v. Louisville & N. R. R. Co., 184 Ala. 655, 64 So. 298; Southern Ry. Co. v. Miller, supra.
The burden of proving the charge of wantonness was upon the plaintiff. Central of Georgia Ry. Co. v. Hardman, 226 Ala. 515, 147 So. 670.
Plaintiff failed to meet this burden in that there was no evidence tending to show that the crossing in question was such a populous one as to make the manner of passing over same, as did the defendant's train, wantonness. Bason v. Alabama Great Southern R. R. Co., supra; Liverett v. Nashville, Chattanooga & St. L. Ry., 186 Ala. 111, 65 So. 54; Lambert v. Southern Ry. Co., 214 Ala. 438, 108 So. 255.
We cannot take judicial notice of the character of the crossing in question. See Zawicky v. Flint Trolley Coach Co., Inc., 288 Mich, 655, 286 N.W. 115.
The defendants were due the affirmative charge as to the issues of subsequent negligence and wantonness. Since these are the only questions properly argued in briefs of the appellant, the plaintiff below, it follows that the judgment of the trial court must be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | September 21, 1961 |
7f4c29d0-17a2-469b-b408-f1b22dc52a0f | Tutwiler v. Etheredge | 231 So. 2d 93 | N/A | Alabama | Alabama Supreme Court | 231 So. 2d 93 (1970)
Temple W. TUTWILER, II
v.
Madrla ETHEREDGE et al.
6 Div. 585.
Supreme Court of Alabama.
January 8, 1970.
Rehearing Denied February 12, 1970.
Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellant.
Malcolm L. Wheeler, Birmingham, for appellees.
SIMPSON, Justice.
The appellees, hereinafter referred to as plaintiffs, sued the appellant, hereinafter referred to as defendant, seeking damages from the defendant, the complaint charging trespass to a 40-acre tract of land belonging to the plaintiffs in Jefferson County.
The plaintiffs' case was to the effect that the defendant without permission trespassed on their land, the nature of the trespass being that without the consent of *94 the plaintiffs the defendant bulldozed a road over the plaintiffs' property, enabling the defendant to reach an adjacent tract of land, not owned by the plaintiffs, for the purpose of drilling a well thereon.
The defendant admitted that he had bulldozed the road in question, but contended that he had a right to do so inasmuch as he owned the mineral rights under the plaintiffs' tract of land, and further that there was an existing public road over the property, which had been dedicated to the public and therefore his bulldozing of this road was not a trespass with respect to the plaintiffs.
The case was tried to a jury, which returned a verdict in favor of the plaintiffs in the amount of $2,750.00. Following the entry of a judgment against the defendant in that amount, the defendant filed his motion for a new trial and assigned as ground therefor, among other grounds, that the jury verdict was excessive. On April 16, 1968, the trial court entered an order finding the verdict and the judgment rendered thereon to be excessive in the amount of $750.00 and ordered that unless the plaintiffs filed a remittitur in that amount on or before May 7, 1968, the motion for new trial would be granted. On May 1, 1968, the plaintiffs filed the requisite remittitur and the defendant's motion for a new trial was overruled.
The defendant has appealed from the final judgment. It is the defendant's contention that the trial court erred in refusing to grant the affirmative charge in favor of the defendant as requested; in failing to grant the defendant's motion for new trial on the basis that the jury verdict in favor of the plaintiffs was contrary to the preponderance of the evidence; and in failing to grant the defendant's motion for a new trial because of the excessiveness of the jury's verdict.
These are the only propositions argued in brief and, therefore, the only issues which we are called upon to decide.
It was the pliantiffs' contention below that the defendant had bulldozed out a road over their property without their permission. The plaintiffs further testified that in so doing the defendant had defaced the property, marred it, damaged timber on it, and decreased its value. The plaintiffs testified that the defendant explained that he had to cut a road to a Mr. Rumore's property so that he could take a piece of heavy equipment to Mr. Rumore's property for the purpose of doing work for Mr. Rumore. It was conceded that there was another road not over the land of the plaintiffs, leading to the Rumore property, but the use of this road would have entailed utilizing a small bridge, and the defendant said that the bridge would not hold the weight of the equipment which he needed in connection with the work to be done for Mr. Rumore.
The defendant did not deny that he had cut the road, but contended that there was a pre-existing road, which he contended had been dedicated to the public, and further that he had the right to cut the road inasmuch as he held the mineral rights beneath the surface of the plaintiffs' property.
The evidence was conflicting with respect to the nature of the existing road, prior to the time the defendant bulldozed the same. The plaintiffs' witnesses testified that nobody had lived on the property involved for more than 40 years; that there were several old wagon trails and walking trails, but no road in the sense that vehicular traffic could traverse their property existed prior to the time the defendant bulldozed the road in question. The defendant contended that a road had existed for many, many years and that he had only leveled it and widened it to enable him to get his equipment to the adjoining tract.
The plaintiffs did not deny that the defendant owned the mineral rights beneath the surface of their land, but contended that this gave him no right to cut *95 the road through their land for the purpose of doing work on an adjacent tract. In this contention the plaintiffs are correct. It has long been the law in this state that one who acquires mineral rights under a tract of land does not acquire thereby the right to use that land to mine adjacent land. In Brasfield v. Burnwell Coal Co., 180 Ala. 185, 60 So. 382, this court held that while a mineral lease gave the lessee the right to use the lessor's land for the purpose of conducting mining operations on it, such a lease did not give the lessee the right to the use of the surface in order to mine coal on another's land. See also cases collated at 83 A.L.R.2d 670-674.
As indicated earlier, the evidence with respect to the nature of the road existing on the land prior to the action taken by the defendant was in sharp conflict. The defendant contended that it had been a public way while the plaintiffs contended that it had never been used by the public, but had been used only as walking trails or wagon trails. The plaintiffs put on evidence that the county had never maintained the road and it was not shown as a public road on any of the county's maps. In light of the conflict in the testimony with respect to this issue the trial court properly submitted the same to the jury. There was, therefore, no error in refusing the affirmative charge at the request of the defendant.
Only one issue remains and that is with respect to the defendant's argument that the jury's verdict was excessive. The trial court, in its oral charge, instructed the jury that it could consider only compensatory damages and not punitive damages. There was evidence in the case to the effect that the property had been damaged by a greater amount than the award made by the jury. The jury had the right to believe the plaintiffs' version of the case. Further, in connection with the action taken by the trial court in granting a new trial unless the plaintiffs filed a remittitur in the amount of $750.00, the trial court in effect endorsed an amount of $2,000.00 as the damages which had been suffered by the plaintiffs. We have carefully read the evidence with respect to the damages and we find that the record is replete with evidence which will support an award in this amount.
It has long been established that this court will not substitute its judgment for that of the trier of the facts where the evidence is conflicting, and particularly where the trial court has denied a motion for a new trial on the same grounds presented here, but in such instances it has consistently been held that such judgments are due to be affirmed. We find nothing in this case which justifies a departure from this well-settled principle.
Affirmed.
LIVINGSTON, C. J., and COLEMAN, BLOODWORTH and McCALL, JJ., concur. | January 8, 1970 |
27971033-62d3-40e9-b5af-7982f295f5c1 | Frazier v. Frazier | 134 So. 2d 205 | N/A | Alabama | Alabama Supreme Court | 134 So. 2d 205 (1961)
Arthur E. FRAZIER
v.
Laurice M. FRAZIER.
3 Div. 921.
Supreme Court of Alabama.
November 2, 1961.
*206 Sid C. Stuckey, Jr., and Hill, Hill, Whiting & Harris, Montgomery, for appellant.
Pilcher, Wright, Long & Booth, Montgomery, for appellee.
SIMPSON, Justice.
Appeal from a final decree of the Circuit Court of Montgomery County, In Equity, wherein appellee was granted a divorce, a vinculo, from appellant on the ground of cruelty. The decree also awarded the custody to appellee of the two minor children. Appellant was allowed the privilege of visitation to the children at reasonable times at the residence of appellee, but *207 always in the presence of appellee or some other person named by her.
The decree also awarded appellee permanent alimony in gross, viz.: The homestead; all household furnishings, etc., located in said home; a certain 1953 Buick automobile; a burial lot in Greenwood Cemetery; a sum of $50.82, to be paid to appellee for deposit to the credit of the two children; a sum of $1,021.82 to be paid appellee as reimbursement to appellee for a joint interest in a joint savings account previously maintained by the parties, but withdrawn by appellant; a certain amount of debts and accounts owed by appellee was ordered to be paid by appellant; appellant was ordered to pay to appellee the sum of $22.50 per week for the support and maintenance of the minor children and appellant was ordered to pay a reasonable attorneys' fee for appellee's counsel and was taxed with the costs. Appellant's cross bill praying for a decree of divorce from appellee on the ground of adultery was dismissed.
The assignments of error challenge the correctness of the foregoing rulings.
We recognize the long standing rule of presumption in favor of the correctness of the trial court's findings in such a case, where the evidence is taken in the presence of the court. King v. King, 269 Ala. 468, 114 So. 2d 145; Ryan v. Ryan, 267 Ala. 677, 104 So. 2d 700. In view of this rule of review, we cannot say from the evidence on the question of cruelty that the trial court's finding in this regard was plainly and palpably wrong, and, therefore, affirm the ruling granting appellee the divorce on the stated ground.
The appellant sought in his cross bill a divorce from appellee on the ground of adultery. The charge of adultery may be proved by circumstantial evidence, but the circumstances must be such as would lead the guarded discretion of a reasonable and just man to conclude that the act of adultery has been committed. Bryan v. Bryan, 271 Ala. 625, 126 So. 2d 484. The acts of appellee are wholly insufficient to prove the charge. We are of the opinion that the finding of the trial court that no credible evidence was offered supporting the alleged adultery was correct and not palpably wrong, and affirm the ruling in that regard.
It is a well settled rule in this state that in determining who should have the custody of children, the best interests and the welfare of the child or children should be the controlling and paramount interest. A careful consideration of the record persuades us that the welfare and best interests of the minors involved will be subserved in permitting their custody and control to remain in their mother, as was decreed by the trial court, and we affirm that ruling, also.
There is no objection to making an allowance of alimony in gross. Under the statute, Title 34, § 31, Code 1940, the allowance to the wife may be made in gross, payable presently or in the future, or may be payable in installments, or it may be a combination of both methods. Roubicek v. Roubicek, 246 Ala. 442, 21 So. 2d 244. When permanent alimony is awarded in gross, the amount thereof, usually, varies from one half of the husband's estate to one-third or less. Phillips v. Phillips, 221 Ala. 455, 129 So. 3.
In determining the amount of permanent alimony there is no fixed rule since each case must be decided upon its own relevant facts in the light of what is fair and reasonable. Steiner v. Steiner, 254 Ala. 260, 48 So. 2d 184. It is proper to consider the wife's income or other means of support; the joint labor and capacity for work of the husband and wife; their joint income; sources from which the common property came; whether there are children to support; the nature, extent and clearness of proof of the husband's delictum; the ability of each to earn money; the husband's condition in life, health, and *208 needs; and the ages of the parties. Pope v. Pope, 268 Ala. 513, 109 So. 2d 521; Wood v. Wood, 263 Ala. 384, 82 So. 2d 556.
Appellant lays stress upon the inequality of the division of the property between the parties and in decreeing to the appellee a substantial portion of appellant's property as alimony in gross. This argument is based upon certain facts adduced on his application for rehearing. The trial court, however, overruled this application for rehearing and of consequence these facts are not subject to consideration as basis for error on the part of the trial court in rendering the original decree. In order for appellant to be benefited by such facts they should have been presented in the main case. Whitman v. Whitman, 253 Ala. 643, 42 So. 2d 422; Rudolph v. Rodolph, 251 Ala. 317, 36 So. 2d 902.
Nevertheless, we do perceive error in the original decree with reference to the award of alimony.
Appellant was ordered by the court to pay appellee as part of the award of permanent alimony in gross the sum of $1,021.82, as one-half interest in a joint savings account at the Capitol Heights Branch of the Union Bank & Trust Company. This account was opened on April 11, 1957 in their joint names. Appellant closed the account on March 11, 1959, and withdrew the sum of $2,043.65. Appellee has been employed for approximately the last four years at a weekly salary of $65. The earnings of the wife are her separate property. Title 34, § 66, Code 1940. The preponderance of the evidence persuades us that appellant was the only party who made the deposits to the account. Appellee stated that she never personally deposited any sum to the savings account. The only evidence presented by appellee is that whatever appellant deposited was partially hers. Appellee did not even know the amount of the account, the amounts, dates, or frequency of the deposits alleged to have been made by appellant with money which she claims was partially hers. In our view the court erred in decreeing her any interest in such account and the decree will be reversed accordingly.
Appellee purchased in her own name wearing apparel and personal miscellaneous items for herself in the amount of $272.10 from the following local businesses: Lerner's, $143.53; Emily's, $23.24; and the Montgomery Fair, $105.33. The court in its final decree ordered appellant to pay these bills assuming that they were necessaries for which appellant was liable. In the light of the authorities this ruling cannot be sustained. Appellee purchased these goods on her own account, on her own contract and no credit was extended to appellant, nor was there any express or implied assent on his part to pay for these goods purchased by his wife.
The apposite principle is stated in Gafford v. Dunham, 111 Ala. 551, 553, 20 So. 346, 347:
Also, "the fact that the charge was to her, shows, prima facie at least, that the credit was given to her." Pearson v. Darrington, 32 Ala. 227, 243. See McMillan v. Fabretta, 231 Ala. 188, 163 So. 793; O'Connor v. Chamberlain, 59 Ala. 431, 436. In fact, there is no evidence to the contrary and, in our view, the learned trial court erred in decreeing that these debts incurred by appellee be paid by the appellant. This phase of the decree will also be reversed and a decree here rendered accordingly.
*209 Solicitors for appellee are entitled to a reasonable fee for their services commensurate with their labor and skill, the results of the litigation, and the earning capacity of the parties. The allowance is in the sound judicial discretion of the court which we are not willing to say was abused by the trial court in the award of $250. Ryan v. Ryan, supra; Taylor v. Taylor, 251 Ala. 374, 37 So. 2d 645. Appellee's application for an allowance for solicitors' fees for representing her in this court is also granted, and $100 appears reasonable. So ordered.
Affirmed in part, modified in part, and in part reversed and rendered.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | November 2, 1961 |
8914826f-dfa4-4df3-b8d0-91760b7845ab | Powell v. Powell | 231 So. 2d 103 | N/A | Alabama | Alabama Supreme Court | 231 So. 2d 103 (1970)
Orien R. POWELL, Wayne Powell and Mrs. Velma Mauldin
v.
Alton H. POWELL, Duey W. Powell, Mrs. Mable Boone and Mrs. Pauline Thomas.
7 Div. 815.
Supreme Court of Alabama.
January 22, 1970.
*104 Robert B. French, Jr., Fort Payne, for appellants.
J. C. Kellett, Fort Payne, for appellees.
HARWOOD, Justice.
The complainants and respondents in the proceedings below were the children of Mrs. Ollie A. Powell, who died in December 1965.
*105 The complainants filed their bill seeking to have set aside two deeds by which Mrs. Ollie A. Powell had conveyed real properties to the respondent Alton H. Powell. The first deed was executed on 27 October 1958, and recorded on 29 October 1958. The second deed was executed on 23 October 1963, and recorded the next day.
The complainants based their claims for cancellation of the deeds on the grounds that they were procured by fraud, that Ollie A. Powell was of unsound mind at the time of the execution of the deeds, and that Alton had exercised undue influence on his mother to procure the execution of the deeds.
A large number of witnesses testified for the respective parties in the hearing below. Their testimony was directed toward establishing, or denying, the mental competency of Mrs. Powell, and the exercise of undue influence by Alton to procure the executions of the deeds by his mother.
After the hearing, the court entered a decree finding that the complainants had failed to meet the burden of proof and had failed to reasonably satisfy the court that Ollie A. Powell was mentally incompetent to execute the deeds, or that Alton had unduly influenced her and thereby induced her to execute the deeds.
The Chancellor thereupon adjudged and decreed that the bill be dismissed. The complainants thereafter perfected this appeal.
Counsel for appellants has argued only two assignments of error in brief.
Assignment of error 6 is to the effect that the court erred in rendering the decree in favor of the appellees (respondents).
Where a decree is a single unit and is erroneous in any respect, the error infects the entire decree and an assignment of error in general terms is sufficient to invite review. Wiggins v. Stapleton Baptist Church, 282 Ala. 255, 210 So. 2d 814; Bryan v. W. T. Smith Lbr. Co., 278 Ala. 538, 179 So. 2d 287.
Under this assignment the appellants have argued the sufficiency of the evidence to support the decree. This is permissible. White Roofing Co. v. Wheeler, 39 Ala.App. 662, 106 So. 2d 658; Wiggins v. Stapleton Baptist Church, supra.
The evidence presented by the complainants was directed toward showing that since the death of her husband in 1949, Mrs. Powell had been in poor health, suffering from headaches, dizziness, stomach ulcers, and other deteriorating diseases, as well as mental confusion. That in this state, Alton, who made his home with her, acquired a domination over her will and exerted unduly an influence in all her decisions.
On the other hand, the respondents presented substantial evidence directed toward establishing that Mrs. Powell's health was good for a person of her age. That prior to the death of Mr. Powell, he had become a total and bed-ridden invalid and at the request of Mrs. Powell, Alton gave up his business in Arizona and returned to the Powell home in order to assist in the care of his father who lingered for some time after Alton's return. After Mr. Powell's death, Alton continued to live in his mother's home and to a large degree she relied upon him in the management of her affairs. The testimony of several of respondents' witnesses was to the effect that Mrs. Powell was entirely competent mentally at the time of the execution of the deeds, and was a woman of strong will and independence.
The attorney who drafted the deed in 1958, testified that at that time Mrs. Powell was in complete possession of her mental faculties. At the same time he drew a will for Mrs. Powell and she told him exactly what she wanted done.
Mrs. Powell had visited the clinic of Dr. J. O. Finney in Gadsden for medical examinations *106 and consultations for some twenty years. He saw her on 27 October 1958. In his judgment, she was of sound mind and in full control of her faculties at this time. Dr. Finney testified he would consider Mrs. Powell to be a person of average health for a person of her age. The only time he noted any mental condition on Mrs. Powell's part was when she was admitted to a hospital on 31 October 1965. At this time she would not appear to be oriented at times, "but this surprisingly cleared quite rapidly and rather remarkably." As before noted, Mrs. Powell died in December 1965.
We will not set forth in detail more of the voluminous evidence introduced below. The sufficiency of the evidence to support a decree of course depends upon the facts in each particular case.
While counsel for appellants reads much into the fact that Alton and his mother occupied a confidential relationship because parent and child occupy such relationship, the prima facie presumption remains that in transactions between parent and child that the parent is the dominant party and that such transactions are free from undue influence. The burden of showing that such condition has been reversed is upon the one questioning the transactions. Dillard et al. v. Hovater, 254 Ala. 616, 49 So. 2d 151.
The hearing was before the Chancellor one tenus. His conclusion on questions of disputed facts is entitled to the same presumption of correctness as is the verdict of a jury on a factual situation. It will not be disturbed unless palpably wrong. From our consideration of all the legal and admissible evidence presented below, we are of the opinion that there is ample and abundant evidence supporting the conclusions and decree of the Chancellor.
Assignment of error 6 is without merit.
Appellant's assignment of error 13 pertains to the action of the court in limiting the cross examination of the respondent Alton Powell concerning his work and earnings to a period subsequent to the death of his father. Counsel for appellees, until so limited, were apparently intent on examining Alton as to his work and earnings in Arizona, prior to the time he returned to Alabama to assist in the care of his father.
Section 443, Title 7, Code of Alabama 1940, guarantees the right of cross examination, thorough and sifting.
This section must be reasonably construed. It does not deprive the trial judge of discretion reasonably exercised to limit the range of cross examination in respect to collateral and irrelevant matter. The undue and unnecessary consumption of time in the trial of causes, and the avoidance of multiplied collateral and irrelevant issues is committed in the first instance to the wise discretion of the trial judge. Drummond v. Drummond, 212 Ala. 242, 102 So. 112; Sowell v. State, 30 Ala. App. 18, 199 So. 900; Duff v. State, 40 Ala.App. 80, 111 So. 2d 621; Nelson v. Darling Shop of Birmingham, Inc., 275 Ala. 598, 157 So. 2d 23.
The remoteness in time of evidence of Alton's work and earnings in Arizona prior to the time of the death of his father negatived its probative value in shedding light on the issues in the present case. Such evidence was therefore irrelevant and immaterial. The Chancellor did not abuse his discretion in the premises.
No merit attaches to Assignment of error 13.
The decree appealed from is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and MADDOX, JJ., concur. | January 22, 1970 |
85bcdb9c-88cd-4863-875d-6393c07ebeea | Orton v. Gay | 231 So. 2d 305 | N/A | Alabama | Alabama Supreme Court | 231 So. 2d 305 (1970)
Betty Gay ORTON
v.
Lonia Violet GAY.
6 Div. 700.
Supreme Court of Alabama.
January 29, 1970.
Rehearing Denied February 26, 1970.
*307 Rogers, Howard, Redden & Mills, Birmingham, for appellant.
Maurice Rogers, Birmingham, for appellee.
BLOODWORTH, Justice.
This is an appeal by respondent from a decree setting aside a real estate deed made to her by the complainant (her mother); entering a judgment against her for $9,932.75; and, finding reasonable grounds to believe that complainant is mentally incompetent at the present time, and in need of a guardian to conduct her business affairs.
Complainant is the widow of Henry Oscar Gay who died testate March 5, 1966, bequeathing his entire estate to her. She was 70 years old at the time of the trial. There are three children of the Gays, all of whom were over 21 years of age at the time of the trial, respondent Betty Gay Orton, Truman Gay, and Helen Cheatham.
On November 30, 1966, Mrs. Gay conveyed all her real estate by warranty deed to her youngest daughter, Mrs. Orton. On June 15, 1967, she filed a bill of complaint against her daughter seeking to set aside the deed, alleging it was procured by fraud and undue influence; and, also seeking to set aside certain transfers of personalty on account of fraud and undue influence.
The bill of complaint, as amended, alleges, in substance, as follows: That complainant is 69 years of age, a widow, and *308 considerably dependent upon the advice, counsel and assistance of respondent, her only child living in Jefferson County, Alabama; that she has very little business experience with matters such as finances, taxation, real estate management and legal procedures; that she was advised and induced by respondent to execute a warranty deed conveying her entire real estate holdings worth in excess of $50,000 to respondent; that respondent falsely represented to her, with intent to defraud her out of her real estate, that unless she conveyed the real estate to respondent, the great bulk of her property would be lost to inheritance taxes; that she should convey all of her real estate to the respondent in order to become eligible to receive old age benefits, and that she would not receive full benefits unless she did divest herself of the real estate; that respondent could more ably handle the management of the real estate; that the execution of the deed was not her own free act but was in actuality the act of the respondent and a consequence of the undue influence practiced upon her by respondent, while the two occupied the confidential relationship of mother and daughter; that the respondent by the practice of undue influence upon her mother, and by false and fraudulent representations, has taken her cash, stocks and bonds in the approximate sum of $25,000; that the deed was executed and delivered to respondent without any consideration whatever; that as a result of the confidential relationship, the complainant relied upon her daughter and believed the false representations, and therefore executed and delivered the deed; that, as a result of the confidential relationship with the complainant, respondent prevailed upon her mother to make the respondent a joint tenant on all her (complainant's) bank accounts, bonds and stocks, and then converted the personal property to her own personal use.
There are 15 assignments of error. They fall into three categories, and thus we will consider them.
First, whether the bill was demurrable (assignments of error 1-5).
Second, whether the proof was sufficient to sustain the averments of either "fraud" or "undue influence" (assignments of error 6-10).
Third, whether the trial court was in error in several of its rulings on evidentiary questions (assignments of error 12-15).
The first assignment of error charges that the court erred in overruling respondent's demurrer to the amended bill of complaint, as a whole. Respondent's argument is that the bill is multifarious. She says the bill seeks to cancel the deed, and seeks to avoid unspecific transfers of cash, stocks, and bonds which the bill alleges were both effected through fraud and undue influence.
As a general rule, a bill in equity is multifarious when it seeks relief as to two distinct subjects having no connection with each other. We think what we said in City of Marion v. Underwood, 231 Ala. 225, 227, 164 So. 296, has application here:
See also, Krieger v. Krieger, 276 Ala. 466, 163 So. 2d 623; Littleton v. Littleton, 238 Ala. 40, 188 So. 902.
With these principles in mind, we think the trial court did not err in overruling *309 the demurrer to the bill, as amended, on this ground.
Assignment of error 2 charges the court erred in overruling respondent's demurrer to that aspect of the amended bill which sought to set aside the deed on the basis of fraud, in that the averments are insufficient in failing to aver the complainant relied upon any false representation.
Respondent says, and we agree, that our rules of equity pleading do not permit fraud to be alleged as a conclusion. Rather, facts out of which it is alleged to have arisen must be averred. Springdale Gayfer's Store Co. v. D. H. Holmes Co., 281 Ala. 267, 201 So. 2d 855; Turner v. Sullivan, 272 Ala. 608, 133 So. 2d 254.
Whether the averments of the bill in the instant case sufficiently aver reliance by the complainant upon any false misrepresentation made by the respondent we do not have to decide. For, even if we assume the bill to be demurrable, we do not find that the trial court's overruling the demurrer constitutes reversible error.
We have held that where the trial court overrules a demurrer, without ruling on the demurrers to the separate aspects of the bill, the effect is a ruling only on the demurrer to the bill as a whole, and the decree must be affirmed on appeal if any aspect is good. McCary v. Crumpton, 263 Ala. 576, 83 So. 2d 309; Taylor v. Jones, 280 Ala. 329, 194 So. 2d 80.
Since we think the bill contains equity insofar as it seeks to have the deed declared invalid on the ground of "undue influence," we find no merit in this assignment.
In assignment of error 3, respondent claims the court erred in overruling respondent's demurrer to that aspect of the bill, as amended, which sought to set aside the deed for "undue influence." Respondent concedes that undue influence may be alleged as a conclusion. However, she contends that the complainant undertook to set out the facts upon which undue influence is based and that such facts are not sufficient as a matter of law.
We think the bill as amended contains sufficient allegations of "undue influence," to withstand the grounds of demurrer attacking this aspect.
We have held that a bill alleging undue influence is not subject to demurrer for failure to allege acts of undue influence in detail. Barkley v. Boyd, 211 Ala. 50, 99 So. 196.
Nor, are we convinced by the argument of respondent that the complainant, instead of relying on undue influence in general terms, has set out the quo modo and that the facts alleged are insufficient as a matter of law. We think the several allegations of undue influence are sufficient with respect to that aspect which seeks to set aside the deed.
In assignments of error 4 and 5, respondent charges the allegations of the bill are insufficient to allege "fraud" and "undue influence" as grounds for setting aside the transfers of personal property.
These allegations are meager. But, we pretermit consideration as to whether they are sufficient, in view of our conclusion, hereinafter stated, that the evidence is insufficient to support the trial court's decree setting aside the transfers of personalty.
Assignment of error 6 charges that the court erred in its final decree in setting aside the deed executed by complainant to respondent.
The trial court's decree made no finding of fact and does not point out whether it set aside the deed on the grounds of fraud or undue influence. The rule in this regard is that the reviewing court will assume that the trial court made those findings which the evidence supports and which will justify the decree rendered.
*310 Dockery v. Hamner, 281 Ala. 343, 202 So. 2d 550.
We have also said that if the trial court's decree is fairly supported by credible evidence under any reasonable aspect, we must affirm the decree, irrespective of what view we may take as to the evidence. Tyra v. Burns, 279 Ala. 84, 181 So. 2d 899.
In view of our previously announced conclusion that we do not have to decide whether the pleadings adequately aver fraud, since there is a good aspect relative to undue influence, then obviously we do not have to determine whether the evidence supports the decree setting aside the deed on the fraud theory.
At the outset, we feel we should reiterate certain legal principles which must obtain before a deed may be set aside on the ground of undue influence.
In general, the undue influence which is required to avoid a conveyance must proceed from some act of dominance or coercion over the will of the grantor. Fortune v. Boutwell, 271 Ala. 592, 126 So. 2d 116. That is, to constitute undue influence, it must be such as to dominate the grantor's will and coerce his will to serve another's in the act of conveying. Halman v. Bullard, 261 Ala. 115, 73 So. 2d 351.
What is "undue influence" depends on the facts and circumstances of each case. Jones v. Boothe, 270 Ala. 420, 119 So. 2d 203. Undue influence is said to be a species of constructive fraud, and although difficult of direct proof, much latitude is allowed in the testimony. Jones v. Boothe, supra; Tipton v. Tipton, 249 Ala. 537, 32 So. 2d 32; Barkley v. Boyd, supra.
The relationship between complainant and respondent has been shown to be that of parent and child. In this regard, we said in Dockery v. Hamner, supra, 281 Ala. at page 345, 202 So.2d at page 551:
It is clear from our decisions that complainant, Mrs. Gay, is required to sustain the burden of showing that the "order of nature" has been reversed and that respondent, Mrs. Orton, was the dominant force in procuring the deed from her. Dockery v. Hamner, supra.
We have said, the determination "as to who was the dominant party depends on the facts and circumstances of each particular case." Pitts v. Hawkins, 264 Ala. 428, 87 So. 2d 835.
We conclude, after reading the record, that there is evidence to support a finding by the trial court that the child, and not the parent, was the dominant spirit. The burden is then shifted to the child to establish the fairness of the transaction and that it was not the result of undue influence. Dockery v. Hamner, supra.
We believe the evidence supports a finding that the child (Mrs. Orton) did not sustain that burden. We see no good purpose to be served by setting out in detail the testimony which supports the trial court's decree. The evidence was in conflict. The trial court obviously chose to believe the complainant's evidence.
*311 We summarize some of the pertinent testimony which supports the trial court's decree.
Complainant, Mrs. Gay, was 70 years of age at the time of trial; her memory is very, very bad; it has gotten much worse since her husband's death; she has been in the hospital with a convulsion; her daughter lived in the same block as she, on part of the 15-acre tract, which is all the real estate left her at her husband's death; the tract included her homeplace and several rental houses; a few days after the husband's death, her daughter took her to the court house where she signed her deceased husband's name to the satisfaction of an $8,640 mortgage (given by the daughter on the daughter's homeplace); although the daughter claimed the debt was paid, she was unable to show receipts or checks evidencing that fact; her daughter accompanied her to the safe deposit box of her deceased husband and they took out savings bonds, wills, insurance policies and cash; she does not know how much money was in the box, nor the amount of the bonds, although she says it took her two hours to sign her name to the bonds; she does not know what happened to the various bank accounts, cash, and savings bonds except they went to the daughter; some $12,000 in cash was spent by the daughter; she did sign a deed which conveyed all her real estate, worth about $50,000, to her daughter; stating she understood it was a management paper for her daughter to manage her estate; there was no consideration for the deed; she trusted her daughter and left the management to her because she did trust her; her daughter told her if she signed the paper and let her manage all her affairs, then she would be able to draw her social security and wouldn't be sent to the poor house or a rest home; the daughter told her to "sign this now and I'll manage everything"; the daughter was a 17 year veteran employee of the local Social Security office being employed there as a "claims authorizer"; the respondent divorced her husband within two months after the deed was executed, married her husband's brother within a month, after the divorce decree was rendered, and left the country; the complainant testified she filed suit when "I just woke up is all, seen I had lost everything I had, didn't have anything at all, nothing."
Since the trial court heard the testimony of the witnesses ore tenus, its decree is clothed with a presumption of correctness, and it will not be reversed unless plainly and palpably erroneous. White Dairy Co. v. Davidson, 283 Ala. 63, 214 So. 2d 416.
Was the trial court plainly and palpably wrong in decreeing the deed from complainant to respondent to be null and void? We think not. We consider the trial court's decision in this respect to be free of reversible error, and supported by creditable evidence.
In assignment of error 6 respondent argues that because the trial court found, "* * * that there is a reasonable ground to believe that at the present time the complainant is mentally incompetent * * *" and "* * * that there is a reasonable ground to believe that the estate and business affairs of the complainant must be transacted through a guardian of the Court," this finding serves to disqualify the complainant as a witness and to render her testimony a nullity.
We do not agree. It is apparent from the record that the trial court did not believe complainant lacked capacity to testify, for we think it safe to conclude that without complainant's testimony there would indeed be insufficient evidence to support the trial court's decree. We think the trial court's finding as to her mental incapacity relates to complainant's age, lack of business acumen and experience, poor memory, and the apparent need for someone to manage her estate and business affairs.
*312 The applicable rule of law is concisely stated in McElroy, The Law of Evidence in Alabama, Vol. I (2d Ed.), Sec. 94.01(2), at page 237, as follows:
It is obvious that the trial court determined this issue adversely to respondent and favorably to complainant, as we have already pointed out.
In assignments of error 7, 8, 9 and 10, respondent urges error in the trial court's awarding a personal judgment against her based upon alleged fraud or undue influence in obtaining personal property from her mother some several months prior to the execution of the deed.
Likewise, we agree with respondent that complainant is not entitled to those funds paid into court by Attorney Clewis Trucks. The testimony is that these funds were paid by respondent personally to Attorney Trucks. We find no evidence the funds were complainant's. To this extent the trial court's decree must be reversed.
The final assignments deal with evidentiary questions. Notwithstanding this is an equity case and might have been tried in accordance with Act No. 101, Acts of the Legislature 1943, p. 105 (now appearing as Title 7, § 372(1), Code of Alabama 1940, as amended, recompiled 1958), specific objections were made and ruled on, and thus the act is inapplicable.
There is no argument as to assignment of error 11, therefore, it is deemed waived. Stallworth v. Doss, 280 Ala. 409, 194 So. 2d 566.
In assignment of error 12, error is urged when the following occurred during the examination of complainant, viz:
While we agree the answer may have been objectionable and should have been excluded, we do not agree that overruling the objection constituted reversible error. For, soon after the colloquy above, the following occurred, viz:
Thus, complainant's testimony is she did not sign a deed. Of course, the evidence is that she did sign the deed. We conclude that whether she "wouldn't have signed a deed" is harmless error under Rule 45, Revised Rules of the Supreme Court, 279 Ala. XXI, XLI.
Assignment of error 13 complains of testimony by Truman Gay (complainant's son) that his mother "don't know nothing about business" in the following context, viz:
We do not think this answer is objectionable on the grounds that it is testimony as to "what she knows, mental operation."
In Houston v. Grigsby, 217 Ala. 506, 116 So. 686, in a will contest, this court held there was no reversible error in not excluding the testimony of a witness that the testator "always knew what she was doing." [Emphasis supplied]
In Hale v. Cox, 231 Ala. 22, 163 So. 335, in a will contest, there was no reversible error in not excluding an answer of a witness (who overheard a telephone conversation which testator had in his office), viz: "After he got through with that conversation, he didn't understand what he had said." [Emphasis supplied] (The motion to exclude and its overruling by the court appear in the original record, but not in the reported decision.)
We see little difference in allowing a witness to testify: "She don't know nothing about business," or "she always knew what she was doing," or "he didn't understand what he said." [Emphasis supplied]
In view of the authorities mentioned, we do not consider the answer in this case to be reversible error.
Assignments of error 14 and 15 complain of the trial court's overruling objections to two questions propounded to *314 Truman Gay, but since neither question was answered, there would be no reversible error in either ruling.
Therefore, since we find the evidence to be insufficient to support the trial court's decree fixing a judgment against the respondent for $9,932.75, based on that aspect of the bill seeking to avoid certain transfers of personal property from complainant to respondent on account of fraud or undue influence, and ordering Attorney Trucks to pay $1200 into court for complainant, the cause must be reversed in part and remanded to the trial court with directions to reframe its final decree in conformity with this opinion.
In view of our finding that the evidence is sufficient to support the trial court's decree setting aside the deed as null and void, the cause is affirmed as to that aspect of the bill.
Affirmed in part, reversed in part, and remanded with directions.
LIVINGSTON, C. J., and SIMPSON, COLEMAN and McCALL, JJ., concur. | January 29, 1970 |
97a7acdd-3f48-4e7a-ab5c-20cb4bdd93ca | Sims v. Sims | 134 So. 2d 757 | N/A | Alabama | Alabama Supreme Court | 134 So. 2d 757 (1961)
J. E. SIMS
v.
Boss SIMS.
7 Div. 529.
Supreme Court of Alabama.
November 16, 1961.
*758 H. C. Orme, Jr., Gadsden, for appellant.
Hawkins & Rhea, Gadsden, for appellee.
MERRILL, Justice.
This appeal is from a judgment in favor of plaintiff in an action in the nature of ejectment. One of appellant's pleas in the lower court was disclaimer, together with a suggestion of a boundary line dispute, and the court appointed a surveyor, Homer Turner, to locate the line. The chief question in the case was the true location of the middle section line which was their common boundary.
The parties to this suit are brothers. Appellant owns the SE ¼ and appellee owns the SW ¼ of Section 22, Township 12, Range 8, in Etowah County. The land is rural, hilly, farm land and undeveloped except for a five-room wood house on the property. This house is near the line between the SE ¼ and the SW ¼ of Section 22, and the appellant has been living in the house for about four years.
The chief discrepancy in the evidence comes from surveyors. All the surveyors agreed on the southwest corner of Section 22, but there was a decided difference of opinion as to the true location of the disputed line. Two surveyors, Waldrep and Murray, called by appellee, testified that the north and south middle section line would run through the house. Appellant's surveyor, Ernest Lee, testified the house was east of the middle section line, and the court appointed surveyor, Turner, testified that the house was west of the middle section line.
The cause was tried before the court without a jury and the court accepted the Turner survey, found for appellee, and awarded him $600 as damages for the wrongful withholding of the property.
One group of assignments of error urge that the judgment of the court is contrary to the weight of the evidence.
It was the province and duty of the trial court to locate the disputed boundary line by finding and locating the true line. There were surveys with conflicting *759 results and the court had to make a decision. McLaurine v. Knowles, 257 Ala. 8, 57 So. 2d 543. The decision is supported by evidence of the Turner survey and we apply the usual presumption when the evidence is ore tenus before the court without a jury. Greif Brothers Cooperage Corp. v. Sawyer, 269 Ala. 513, 114 So. 2d 259; Holoway v. Carter, 261 Ala. 51, 72 So. 2d 728.
Assignments of error 7 through 11 are the only other assignments argued in brief. They charge error because the court failed to find whether appellant's suggestion of adverse possession for over three years was true or false under the provisions of Tit. 7, § 945, Code 1940; and that the court erred in not allowing appellant credit for necessary expenses and improvements made by appellant while occupying the house.
When appellant disclaimed any part of the land in the SW ¼ of Section 22, he cut himself off from proof of adverse possession in this type of suit at law. The principle is stated in Yauger v. Taylor, 218 Ala. 235, 118 So. 271, 272:
See Oliver v. Oliver, 187 Ala. 340, 65 So. 373; Golden v. Rollins, 259 Ala. 286, 66 So. 2d 91. Under the issues raised by the pleadings, there was no question of adverse possession to be decided.
The testimony shows that all the asserted improvements were made by appellant after he knew suit had been filed by the appellee. The case of Murray v. Barnes, 146 Ala. 688, 40 So. 348, 350, disposes of the contention of credit for improvements in the following language:
Moreover, the claim for improvements made in connection with the three years adverse possession under Tit. 7, § 945, was a controverted issue in the evidence heard by the court trying the case without a jury. A general judgment for plaintiff necessarily carried a denial of defendant's right to have the benefit of the value of the improvements. Headley v. McCall, 205 Ala. 108, 87 So. 355.
It should be borne in mind that the line to be settled is the true middle section line. The government survey of lands into sections does not establish the ground location of the interior subdivision lines, such as the one here in dispute, but provides a basis for location of interior lines, and they are none the less certain in legal contemplation. Nolin v. Parmer, 21 Ala. 66; Edwards v. Smith, 240 Ala. 397, 199 So. 811.
The ground location of section lines or of interior subdivision lines cannot be changed by agreement of the parties or by adverse possession, although possession and ownership of land in the proper section or subdivision may be so acquired. Upton v. Read, 256 Ala. 593, 56 So. 2d 644; Alford v. Rodgers, 242 Ala. 370, 6 So. 2d 409. Here, the dispute was over the proper location of the middle section line and not a claim of possession by either party to property across that line.
*760 This disposes of all assignments of error properly argued and no reversible error has been presented.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | November 16, 1961 |
38971520-ff38-4abc-95fb-73a6c269f389 | COUNTY BD. OF ED. OF COFFEE COUNTY v. City of Elba | 135 So. 2d 812 | N/A | Alabama | Alabama Supreme Court | 135 So. 2d 812 (1961)
COUNTY BOARD OF EDUCATION OF COFFEE COUNTY et al.
v.
CITY OF ELBA.
4 Div. 89.
Supreme Court of Alabama.
December 21, 1961.
Joe C. Cassady, Enterprise, for appellants.
Fleming & Stephens, Elba, for appellee.
MERRILL, Justice.
This appeal is from a final decree in a declaratory judgment suit, denying relief sought by the County Board of Education of Coffee County against the City of Elba.
The bill sought to have a written contract, executed on August 12, 1947, enforced between the parties. According to the contract, the County Board of Education issued $70,000 worth of warrants for the construction of a gymnasium and cafeteria at the Elba school and the city was to repay the board $500 per month for a period of 16 years, covering principal and interest totaling $96,000. The city was to levy an additional gasoline tax which was pledged for the repayment to the Board of Education. The tax was levied and the city paid $500 each month until April, 1953, and since that time has not paid anything.
Some testimony was taken and it was stipulated that the assessed valuation of property within the City of Elba on the date of the contract sued upon was $1,025, 646, and that the indebtedness of the city at that time was $17,000, which together with the indebtedness caused by the contract with the Board of Education would exceed the city's constitutional debt limit. The trial court denied relief, being "of the opinion that the agreement was entered into in violation of Section 225 of the 1901 Constitution, is therefore void, and that the Complainant is not entitled to enforce the same."
Appellants' assignments of error raise three points, the first being that the *813 court erred in holding the contract to be violative of Sec. 225 of the Constitution of 1901. That section prohibits municipalities from becoming indebted in excess of certain percentages of the assessed property in the municipality.
The case of Taxpayers and Citizens v. Town of Georgiana, 265 Ala. 654, 93 So. 2d 493, 497, is dispositive of the question. There, we said:
Appellants rely upon the bridge cases and a statement in Wharton v. Knight, 241 Ala. 218, 2 So. 2d 310. The statement and the bridge cases are considered in the concluding paragraphs of the Georgiana case. The statement was held not "authoritative or controlling" and the bridge cases were held to be "distinguishable" from that case, which is similar to the instant case.
Under the agreed stipulation that the debt to the appellants caused the appellee to exceed its debt limit, and under the authority of the Georgiana case and authorities there cited, we hold that the agreement was void because it was made in violation of Sec. 225 of the Constitution of 1901.
Appellants contend that even though the agreement be void, the City of Elba is estopped to deny the validity of the contract sued upon, because the appellants issued the bonds, paid for the building of the school facilities and has performed all of its part of the agreement.
This contention is answered adversely in City of Birmingham v. Lee, 254 Ala. 237, 48 So. 2d 47, 55, in the following language:
We have been cited to no case which applies estoppel where the municipality had entered into a contract which involved the *814 violation of a provision of the State Constitution.
Appellants' final contention is that appellants should be allowed to recover under the quantum meruit theory.
Our most recent and comprehensive case dealing with the quantum meruit theory is State of Alabama for Use of Russell County v. Fourth National Bank of Columbus, Ga., 270 Ala. 135, 117 So. 2d 145, 154, where we said:
One of the cases cited in the opinion under the first principle is that of Moody v. Terrell-Hedges Co., 16 Ala.App. 441, 78 So. 639, certiorari denied 202 Ala. 444, 80 So. 828. There, Jackson County entered into a contract for the installation of light fixtures in the courthouse and they were installed. At the time of the installation, the county was indebted beyond its constitutional debt limit. The Court of Appeals held that the constitution fixes the public policy of the state, and the contract, "being in violation of the public policy of the state, was illegal and void, and the petitioner acquired no rights under it." We denied certiorari in an opinion in which the majority stated that "the decision of the Court of Appeals was correct and should be affirmed."
Appellants cite cases under the second proposition, quoted from State of Alabama for Use of Russell County v. Fourth National Bank of Columbus, Ga., 270 Ala. 135, 117 So. 2d 145, but they apply to noncompliance with statutes or ordinances, not constitutional provisions. We also note that the Court of Appeals in the Moody case, supra, considered, but did not follow, the same cases cited to us in brief by appellee.
We find no reversible error in the decree of the lower court.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | December 21, 1961 |
05271b0d-f103-46aa-a457-91edb77261bf | Roan v. Smith | 133 So. 2d 224 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 224 (1961)
Fred ROAN et al.
v.
Jack C. SMITH.
1 Div. 770.
Supreme Court of Alabama.
September 21, 1961.
*225 Bart B. Chamberlain, Jr., Mobile, for appellants.
M. A. Marsal, Mobile, for appellee.
LIVINGSTON, Chief Justice.
This is an appeal from a judgment of the Circuit Court of Mobile County in a suit filed by Jack Smith, the appellee, charging Fred Roan and his two brothers, individually, separately and severally, and doing business as St. Louis Motors, a partnership, with conversion of the plaintiff's 1951 Ford automobile. To the complaint, the defendants filed a general denial. The issue was tried by a jury and a verdict was returned for the plaintiff in the amount of $1,250. From this verdict and judgment, the defendants appealed.
The evidence is in conflict. The appellee's version of the transaction, and he offered evidence to support it, is as follows:
*226 Jack Smith, the plaintiff in the lower court and appellee on this appeal, went to the St. Louis Motors used car lot looking for a used car. After finding a 1953 Chevrolet that he liked, the salesman told him to take the car home with him that night to try it out and requested the appellee to sign some blank papers so that he would be covered by insurance in case of an accident. It was understood that there was no sale and the appellee was to return the car the next day at noon and then decide on the transaction. The appellee did drive the Chevrolet home and left his Ford on the appellant's lot over night. The next day when appellee returned the Chevrolet, having decided not to trade, he was told that he had signed papers the preceding night agreeing to trade, and that in order to get his car back he would have to pay $25. Appellee and appellant discussed this matter for about two hours and then appellee paid the $25 and got his car and left. The papers which were signed by appellee were destroyed and appellants contend they were a bill of sale and that appellee knew this when he signed them, and they offered evidence to sustain this view of the transaction.
There is much conflict of testimony concerning the transaction and the agreement between the parties. The jury resolved the issues in favor of appellee and returned a verdict for the plaintiff in the court below.
There are 23 assignments of error and they will be discussed in the order in which appellant chose to argue them.
Assignment of Error No. 12:
The record shows the following:
"Court: Are there any further qualifications, gentlemen?
"Court: Are they involved in this law suit?
"Mr. Marsal: The Roans own the Cadillac Finance Company.
The inquiries directed to prospective jurors as permitted under Tit. 30, § 52, Code of 1940, should be liberal and extend to any and all matters touching the qualifications, interest or bias of prospective jurors. The extent of this examination of prospective jurors as to their qualifications is largely a matter resting within the sound discretion of the trial court. Dyer v. State, 241 Ala. 679, 4 So. 2d 311; Avery Freight Lines, Inc. v. Stewart, 258 Ala. 524, 63 So. 2d 895; Sims v. Struthers, 267 Ala. 80, 100 So. 2d 23; Alabama Clay Products Co. v. Mathews, 220 Ala. 549, 126 So. 869; Louisville & N. R. Co. v. *227 Davis, 236 Ala. 191, 181 So. 695; Ballard v. State, 28 Ala.App. 346, 184 So. 259; 236 Ala. 541, 184 So. 260; Code of 1940, Tit. 30, Sec. 52.
The attorney for the appellee stated to the court: "The Roans own the Cadillac Finance Company." This statement was not denied by appellants. Under such circumstances, we think, the trial court did not abuse its discretion in qualifying the jury as to any interest in the Cadillac Finance Company. Moreover, since no jurors answered the question in the affirmative, and not being struck as a result of such answer, it appears that even if the trial court was in error, it was error without injury.
Assignments of Error Nos. 13, 14 and 15 follow:
The above three assignments of error are so closely related that they can be disposed of together. Whether or not the offer of evidence will be denied on the ground of remoteness is a question to be decided by the trial court in the exercise of sound discretion, and such ruling by trial court will not be revised on appeal unless it is plain that error was committed. Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216; Springer v. Sullivan, 218 Ala. 645, 119 So. 851. We take judicial knowledge of our own records. Se Roan v. McCaleb, 264 Ala. 31, 84 So. 2d 358.
The evidence in question now before this court concerns previous fraudulent transactions by one of appellants in the operation of his business which were almost identical as the conduct of appellants in the instant controversy. In such a situation, evidence of such other fraudulent transactions or deceit by defendant is admissible to show fraud, motive, scheme, or intent. Great American Ins. Co. v. Dover, 221 Ala. 612, 130 So. 335; Cartwright v. Braly, 218 Ala. 49, 117 So. 477. All participants in wrongful acts, directly or indirectly, whether as principals or agents, or both, are jointly and severally liable in damages for wrong done, where injury results. Stapler v. Parker, 212 Ala. 644, 103 So. 573; Tennessee Chemical Co. v. Cheatham, 217 Ala. 399, 116 So. 420; 19 C.J.S. Corporations § 846, p. 276.
The determination of whether or not particular evidence is relevant rests largely in the discretion of the trial court. Occidental Life Ins. Co. of California v. Nichols, 266 Ala. 521, 97 So. 2d 879. A reading of the case of Roan v. McCaleb, supra, leaves no doubt as to the admissibility of the evidence offered in the instant case. There was no error here.
Assignments of error 6, 7, 8 and 9 complain of the trial court's giving Charges 1, 2, 3 and 4, and are argued in bulk. It is insisted that neither of these charges should have been given because each of them states only an abstract proposition of law. Assuming that the charges state correct abstract principles of law, which appellants do not deny, and which we do not decide, or that the charges have merely a tendency to mislead, the giving of them does not constitute error to reverse.
*228 The remedy is to request an explanatory charge. Willingham v. Wesley Hardware Co., 227 Ala. 280, 149 So. 703; Bailey v. Tennessee Coal, Iron & R. Co., 261 Ala. 526, 75 So. 2d 117; Farr v. Blackman Plumbing & Heating Co., 267 Ala. 585, 103 So. 2d 777; Jacks v. City of Birmingham, 268 Ala. 138, 105 So. 2d 121; Klein v. Harris, 268 Ala. 540, 108 So. 2d 425.
Assignment of Error No. 10 is based on the trial court's refusal to give defendants' written Charge 8, which reads:
There was sufficient evidence as to whether the automobile dealer and owner had entered into a deal to trade automobiles. There was also sufficient evidence as to whether malice was present in the conduct of the automobile dealer during the transaction in question. If there was no deal to trade entered into and the automobile dealer did convert the automobile and the conversion was committed in known violation of the law and of plaintiff's rights, with circumstances of insult, or contumely, or malice, punitive damages were recoverable in the discretion of the jury. Rhodes v. McWilson, 192 Ala. 675, 69 So. 69; Ex parte Birmingham Realty Co., 183 Ala. 444, 63 So. 67; Roan v. McCaleb, 264 Ala. 31, 84 So. 2d 358; Howton v. Mathias, 197 Ala. 457, 73 So. 92; Gowan v. Wisconsin-Alabama Lumber Co., 215 Ala. 231, 110 So. 31.
Assignments of Error 1, 2, 3, 4, 5 and 11 are argued in bulk.
In the case of Bertolla v. Kaiser, 267 Ala. 435, 103 So. 2d 736, 738, it was said:
"Assignment of error 1 recites:
It is well established that where more than one assignment of error is argued together, and one assignment is without merit, the others will not be considered. Self v. Baker, 266 Ala. 572, 98 So. 2d 10; Bertolla v. Kaiser, supra, and cases there cited.
Assignment of error No. 1 reads as follows:
"1. The verdict and judgment are contrary to the evidence."
We have repeatedly held that such an assignment of error is not sufficient. King v. Jackson, 264 Ala. 339, 87 So. 2d 623, and cases cited. Assignment of error numbered 1, being insufficient to invite review, the others argued with it must also fail. Authorities, supra.
Assignment of error No. 17 reads as follows:
Assignment of error No. 17 does not state that the court erred, nor does it show any way in which the court erred. Also, there is no showing in the record that there was a motion for a new trial.
In the case of Mulkin v. McDonough Construction Co. of Georgia, 266 Ala. 281, 95 So. 2d 921, 922, it was said:
Assignment of error 17 does not allege error by the trial court in any respect, *229 therefore, it presents nothing for review by this court.
Assignment of error No. 22 states:
Assignments of error 18, 19, 20, 22 and 23 are all argued in bulk as one. For reasons already adequately covered in this opinion, if any one of these assignments are without merit, the others will not be considered or reviewed. Assignment of error 22 is without merit. There is no showing from the record that the appellant made a motion for a new trial, and there is no showing from the record that the appellant made more than a verbal suggestion to the court that these charges were incomplete, without merit or erroneous. The appellant did not, so far as is shown by the record, submit any written charges to correct or explain the charges which he is now assigning as error. It is well established that under such circumstances, there is nothing presented to this court for review. Mullins v. Lemley, 205 Ala. 593, 88 So. 831; McPherson v. State, 198 Ala. 5, 73 So. 387; Tranholm v. State, 38 Ala.App. 57, 77 So. 2d 491.
In the case of Mullins v. Lemley, supra [205 Ala. 593, 88 So. 832], this Court said:
In regard to assignment of error 22, there is no showing that appellant did more than verbally suggest to the court that additional charges in regard to nominal damages was necessary. The same is true of all the other assignments of error argued with assignment 22. For these reasons, there is nothing presented by this argument and these assignments for our review.
Assignment of error No. 16 reads:
The record does not disclose that appellant requested the court to instruct the jury to disregard the complainedof remarks. There was an objection by appellant and the court sustained this objection. Without a request from appellant for further action by the court, there can be no review of the court's failure to so act. C. C. Hooper Cafe Co. v. Henderson, 223 Ala. 579, 137 So. 419; Wagnon v. Patterson, 260 Ala. 297, 70 So. 2d 244. In the Hooper case, supra [223 Ala. 579, 137 So. 422], this Court said:
Assignments of error not argued in brief are waived.
We find no error to reverse and the case is accordingly affirmed.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur. | September 21, 1961 |
66d0c14f-1ef4-473b-8b25-f5f8d6f2e290 | Simonetti, Inc. v. State | 132 So. 2d 252 | N/A | Alabama | Alabama Supreme Court | 132 So. 2d 252 (1961)
SIMONETTI, INC.
v.
STATE of Alabama ex rel. MacDonald GALLION, Atty. Gen.
6 Div. 415.
Supreme Court of Alabama.
June 29, 1961.
*254 Pritchard, McCall & Jones and Victor H. Smith, Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., Guy Sparks, Sp. Asst. Atty. Gen., and Wm. H. Burton, Asst. Atty. Gen., for appellee.
John J. Smith, Birmingham, for Alabama Wholesale Tobacco Association, amicus curiae.
LIVINGSTON, Chief Justice.
The State of Alabama, ex rel. its Attorney General, filed in the Circuit Court of the Tenth Judicial Circuit of Alabama, in Equity, its bill of complaint to enjoin Simonetti, Inc., a corporation, from violating the so-called Unfair Cigarette Sales Act (Act No. 805, Acts of Alabama 1951, effective September 11, 1951), by advertising, offering for sale and selling cigarettes at wholesale in the State of Alabama below cost (as defined in Sec. IV(k) 1 of said Act) of such cigarettes to the appellant, and with the intent of injuring its competitors and destroying, or substantially lessening, competition.
The appellant, Simonetti, Inc., interposed its demurrers attacking the constitutionality of said Act as a whole, but not the constitutionality of any specific section or sections thereof.
Appellant's demurrers were overruled and the constitutionality of said Act was sustained by the trial court. Simonetti, Inc., a corporation, appealed.
The grounds of demurrer assigned, and the briefs, are properly concentrated in the main upon the very serious question of the constitutional validity of Act No. 805, Reg. Sess.1951, Legislature of Alabama, and it now appears in the Pocket Part of the Code of Alabama 1940 as Secs. 83(1) through 83(14) of Title 57.
The bill of complaint is bottomed solely and squarely upon, and seeks to enforce, the so-called Unfair Cigarette Sales Act. Sec. 3(a) of the aforesaid Act contains the following provision:
It is clear that if the act is constitutional, the bill of complaint sufficiently alleges its violation by the appellant. It is equally clear that the demurrers interposed by the appellant raise the question of the equal protection of the law and the due process of law under the 14th Amendment of the Constitution of the United States, and also the question of whether the Act is violative of the 1901 Constitution of the State of Alabama. In our opinion, the Act is constitutional and we so hold and sustain the decree of the lower court overruling appellant's demurrers.
In its decree overruling appellant's demurrer, Honorable Robert C. Giles states as follows:
As to certain features of the case, the opinion of the learned Chancellor so well expresses the views of this Court that we adopt the following portions of his decree:
"The present bill directly alleges a dual or cumulative specific intent to `injure competititors and destroy or substantially lessen competition' and that respondent's advertising, offers to sell, and sale of cigarettes at wholesale have been `at less than cost *255 to said respondent.' These are considered to be allegations of ultimate, issuable facts, sufficient for the purpose of pleading, since the respondent's actual intent in fact, its costs, and its selling prices are presumably matters within its knowledge, and greater particularity would not seem to be required either to frame the issue or inform respondent of the charge against which it is required to defend. By these allegations, the State as complainant assumes a heavy burden of proof, since it must be proof of far more than mere intent of injury to competitors or `unfairness' of competition. It must also prove, under the construction placed upon the Act, a selling below cost with the specific intent of destroying or substantially lessening competition, since the Act, if valid at all, can only be held so as an exercise of the police power of the state over intrastate commerce to the end of inhibiting practices tending toward monopolization.
"As to the grounds of demurrer asserting that Section III (a) deprives complainant of equal protection of the law and denies him due process of law contrary to the Fourteenth Amendment of the Constitution of the United States, the Court is of the opinion that the demurrer is not well taken. Such probably would have been the conclusion even prior to the `new departures' in federal constitutional law of the last two decades. Rast vs. Van Deman [& Lewis Co.], 240 U.S. 342, 36 S. Ct. 37 [370], 60 L. Ed. 679.
"There is little room for doubt, indeed, since Nebbia vs. [People of State of] New York, 291 U.S. 502, 78 L. Ed. 940, 54 S. Ct. 505, 89 A.L.R. 1469. And see Great Atlantic & Pacific Tea Co. vs. Ervin [D.C.], 23 Fed. S[upp]. 70; Olsen vs. [State of] Nebraska, 313 U.S. 236 [61 S. Ct. 862], 85 L. Ed. 1305 [133 A.L.R. 1500], and Mora vs. Mejias [1 Cir.], 223 F.2d 814. In the Mora case, the First Circuit said that, insofar as the Fourteenth Amendment of the Federal Constitution is concerned, it is now undeniable that a state in the exercise of its police power may regulate the prices to be charged by an industry if its legislature determines that the public interest requires such regulation.
"The Robinson-Patman Act [15 U.S.C.A. §§ 13, 13a, 13b, 21a] prohibits sales at unreasonably low prices for the purpose of injuring and destroying competition. It would be unlikely that it would be held that the states, which have a general police power, could not similarly legislate upon a subject which Congress has so dealt with, under a police power merely concomitant with its delegated authority to regulate interstate commerce.
"It is noted that the demurrer raises no question as to a possible collision between this Act and federal anti-trust legislation such as the Sherman Act [15 U.S.C.A. §§ 1-7, 15 note], under the Commerce and Supremacy clauses of the Federal Constitution.
"The question of the validity of the basic section of this legislation under the Constitution of Alabama, however, is a different and much more difficult matter. Many states have enacted legislation similar in principle. Varied and diverse conclusions have been reached by the courts of other states upon the validity of some of the auxiliary sections of these `Below Cost Sales' Acts, and certain applications of the Acts have been held unconstitutional. See (e. g.) Cohen vs. Frey & Son (Md. 51) [197 Md. 586], 80 Atl.2d 267.
"The only decision which the Court has been able to find which strikes down the Act fundamentally and entirely is Williams vs. Hirsch (March 15, 1955Georgia) [211 Ga. 534], 87 S.W.2d 70 [87 S.E.2d 70], which was made to turn upon a finding that the merchandising of cigarettes was not a business affected with the public interest. The opinion cites a decision wherein the Supreme Court of Georgia had previously held unconstitutional the Milk Control Board law of that state [Laws 1937, p. 247 as amended]. Harris vs. Duncan [208 Ga. 561], 67 S.E.2d 692. The essential validity of this sort of legislation seems to have *256 been otherwise upheld without exception, where the sales below cost are only made unlawful when coupled with a specific intent to destroy competition. See the numerous cases cited in [Wholesale Tobacco Dealers Bureau v. National Candy & Tobacco Co., 11 Cal. 2d 634, 82 P.2d 3] 118 A.L.R. 486, 506; [Commonwealth v. Zasloff, 338 Pa. 457, 13 A.2d 67] 128 A.L. R. 1120, 1126; 87 C.J.S. [Trade-Marks, Trade-Names, and Unfair Competition § 244 and § 245] p. 716, Sections 244 and 245.
"Article I of the Alabama Constitution of 1901 sets forth the Bill of Rights, and Section 1 declares:
"The last two sections of the Bill of Rights are as follows: Section 35 provides:
"Section 36 provides:
"Section 103 of Article 4 of the Constitution provides that:
"In City [Council] of Montgomery vs. Kelly, 142 Ala. 552, 38 So. 67 [70 L.R.A. 209], the Bill of Rights of the State Constitution was considered to protect the right of the citizen to pursue any harmless occupation, and to conduct the business in his own way, so long as his manner of conducting his business did not offend public morals and work an injury to the public, even though his methods of doing business might have a tendency to draw trade to him to the detriment of his competitors, and the Court held that the City might not impose a discriminatory license exaction upon a person employing trading stamps to advertise his business by the offering of such small `gratuities.' No question of monopoly was involved, or of intentional injury to others. The ordinance merely sought to regulate competition and competitive methods of doing business as such.
"In State vs. Goldstein, 207 Ala. 569, 93 So. 308, 310, the Court only considered and held unconstitutional, as an abuse of the police power and offensive to the state Bill of Rights, that portion of the Act relating to the prevention and punishment of profiteering as defined in section 2 thereof [Acts 1919, p. 1088]. Of course the exaction of exorbitant prices for a commodity tends to invite, rather than stifle, competition, and the Court's opinion recognized the fact that the anti-profiteering provisions of the Act of September 30, 1919, were dissociated from such monopolistic situations as were dealt with in other portions of the legislation.
"Franklin vs. State, 232 Ala. 637, 169 So. 295, upholding the validity of the Milk Control Act [Gen.Acts 1935, p. 204], clearly illustrates the role of the quantity of `affectation with a public interest; in price legislation. In that case, the Act expressly declared that the dairy industry was one *257 affecting the public health and interest, and the Court states that it is a business affected with a public interest subject to regulation and control even to the extent of fixing prices, citing the Nebbia case, supra. However, this deci___ (sic) did not go to the extent of embracing the entire philosophy of the Nebbia case, as is shown by subsequent decisions of the Supreme Court of Alabama. It is significant that the opinion in the Franklin case, though quoting extensively from the Nebbia opinion otherwise, did not quote with approval that portion which has, in the federal courts and in the decisions of other state courts, served as the basis for much regulation of private business. In Nebbia, it was said `the phrase affected with a public interest can in the nature of things mean no more than that an industry, for adequate reason, is subject to control for the public good.' The writer rather thinks that the Franklin decision retained the earlier and narrower concept of affectation with a public interest, holding in effect that the importance of the dairy industry is such as to virtually constitute it a `public utility.' And, of course, the regulatory consequences of affectation with a public interest are much broader than those imposed in a `sale below cost' statute. When an industry falls within the doctrine of the Franklin case, maximum, minimum, or stated prices may be fixed, the method of conducting the business very closely regulated, and newcomers be prohibited from entering the field. It short, the legislature may regulate such a business in the same fashion that it does common carriers by motor truck, etc. If this case turned upon the question of whether or not the merchandising of tobacco was affected with a public interest, the law would probably be unconstitutional upon its face. But it would be an unusual idea to say that the power of the legislature over monopoly was limited to businesses affected with the public interest, and to say that the legislature may not prohibit one individual from diliberately injuring another individual who is in competition with him because their businesses happen to involve commodities of little importance to the public at large.
"In [City of] Mobile vs. Rouse, 233 Ala. 622, 173 So. 266, 11 A.L.R. 349, the Act [Gen.Acts 1935, p. 746], sought to confer upon municipalities power to fix minimum prices for the services of barbers and dry cleaners, with a view to prevention of `ruinous price cutting' and prevention of widespread unemployment and economic distress. It was also sought to be justified as a measure for the protection of health, and for the purpose of coping with an economic emergency. It involved an outright fixing of prices, in terms of dollars and cents, under section 2 of the ordinance. The Court held the statute and ordinance unconstitutional as fixing prices for personal services which were not affected with public interest. Presumably the prices to be fixed included an element of what was thought to be a `fair profit.'
"Most important for consideration is the case of Alabama Independent Service Station Association vs. McDowell, 242 Ala. 242 [424], 6 So. 2d 502, decided in 1942, long after the decision in the Nebbia and Franklin cases. It was a declaratory judgment at law involving the validity of an Act of 1939 [Gen.Acts 1939, p. 972], Section 1 of which required the posting of prices of gasoline and oil for motor vehicles, and Section 2 of which prohibited sale thereof except at the exact price posted, and prohibited discounts, premiums, or gratuities calculated to effect a sale of such products for other than the posted price. The act declared no legislative purpose to prevent monopoly and required no intent to injure or destroy competition. It in nowise undertook to fix prices, and apparently the dealers subject to it could fix any price whatsoever they chose upon the product so long as they posted same and sold for that exact price without the discounts or gratuities which were prohibited. As this Court understands the Act of 1939, a dealer might lawfully post a price of one *258 dollar per gallon for gasoline in the morning and post a price of one cent per gallon in the afternoon of the same day and lawfully sell at such widely variant prices, though the first might be greatly excessive, and the second might be far less than cost. Judgment was not rendered on demurrer but after the taking of testimony, upon a complaint brought by dealers averring that they were actively competitive with certain of the defendants, and that it was greatly detrimental to plaintiffs to be required to comply with this statute while the competing defendants refused to comply therewith. The violation shown by the evidence was that the defendants were giving a dish or dishes of a value of more than one cent with each purchase of three or more gallons of gasoline, which dishes were not mentioned in the price posted upon the pump from which the sale was made. Defendants asserted the federal and state unconstitutionality of the legislation. The Supreme Court noted that the Act discriminated against those who promoted their sales by the giving of premiums instead of national advertising programs. For the purpose of determining whether or not this decision is conclusive upon the validity of the Unfair Cigarette Sales Act, the opinion in the McDowell case makes the following most significant observation:
"The Court proceeded to hold that the merchandising of motor fuel was not a business affected with a public interest, that the legislation did not relate to the general welfare, but to the welfare of the particular class of dealers represented by the plaintiffs, that such class of legislation is outside the scope of the police power, and that section 2 of the Act violated sections 1 and 35 of the Constitution of Alabama 1901.
"This holding indicates to this Court that the Franklin case does not embrace the outermost extent of all the pronouncements contained in the Nebbia opinion. Certainly the merchandising of petroleum products is a matter which vitally affects our present `civilization on wheels.' It would do little good to conserve the supply of milk in the public interest if it could not be collected, marketed, and delivered by motor vehicles. And certainly there would be more adequate reason for the legislature to regulate merchandising practices in the field of the petroleum industry than in the merchandising of cigarettes. For these reasons, the Court is of the opinion that the Act now under consideration cannot be sustained solely upon the theory that the business which it concerns is `affected with a public interest.' It is interesting to note that the Court in the McDowell case did not pronounce the Act invalid under the Federal Constitution, thus tacitly, perhaps, recognizing the divergence in the `public interest' concepts exemplified in the McDowell and Olsen cases.
"In Lisenba vs. Griffin, 242 Ala. 679, 8 So. 2d 175, the Supreme Court held that a municipal ordinance authorizing a board to fix minimum prices for the services of barbers was void, that the City was without authority to declare the business to be affected with a public interest, such being inconsistent with the general law, and that it undertook to regulate a private business contrary to Section 1 of the Alabama Constitution 1901.
"In Alabama Independent Service Stations Association, Inc., vs. Hunter, 249 Ala. 403, 31 So. 2d 571, decided in 1947, our unanimous Supreme Court, through the opinion of Mr. Justice Lawson, again held the gasoline premium and discount statute unconstitutional, it having been reenacted without substantial change subsequent to the McDowell decision. The submission *259 was on application for injunction contained in the sworn bill, apparently without any other evidence, and the appeal was from the denial of the injunction. The complaint was that respondent sold gasoline to members of an association at a discount of two cents per gallon less than the posted price, and lubricating oil at five cents less than the posted price, that the violations were numerous, and constituted unfair competition. The Court reaffirmed the holding of the McDowell case to the effect that such legislation is outside the scope of police power inasmuch as operation of filling stations is not a business affected with a public interest to the extent that the legislature may regulate the price at which gasoline and oil must be sold. The Court held that the prohibition of discounts contained in section 2 of the `Gasoline Act' [Code 1940, Tit. 2, § 425(2)], was equally invalid with the prohibition of giving of premiums, etc. While the complainants complained generally of `unfair competition,' there is nothing to indicate that the respondent's practice amounted to anything more than the giving of quantity discounts. In other words, it seems to have been `competitive' rather than `destructive' price cutting.
"The Court conceives that there is a substantial and determinative difference between the `price posting' legislation of the McDowell and Hunter cases, and the `sales below cost' legislation now presented. The McDowell opinion cites, to the proposition that such legislation was outside the scope of the police power, New Jersey, Massachusetts, Michigan and Connecticut decision, courts of three of which states have subsequently taken a different view of `sales below cost' statutes.
"In Lane Distributors vs. Tilton et al. [7 N.J. 346], 81 A.2d 786 (1951), the Supreme Court of New Jersey, though striking down the Unfair Cigarette Sales Act [N.J.S.A. 56:7-1 et seq.] because of the invalidity of an inseparable section, clearly considered that the Act was not a price-fixing statute, and was essentially free of constitutional objections, stating:
"In Fournier vs. Troianello [332 Mass. 636], 127 N.E.2d 167 (1955), the Supreme Court of Massachusetts upheld the Act [M. G.L.A. c. 93 §§ 14E-14K] prohibiting the sale at retail of any item of merchandise at less than cost with the intent to injure competitors or destroy competition, distinguishing the McBride case [Sperry & Hutchinson Co. et al. v. McBride et al., 307 Mass. 468, 30 N.E.2d 269, 131 A.L.R. 1254] (cited in the McDowell opinion) with the bare statement that `the case before us is obviously quite different.'
"As to Michigan, a divided court [People v. Victor, 287 Mich. 506, 283 N.W. 666, 124 A.L.R. 316] held unconstitutional Section 6 of Michigan Act No. 282, 1937, which section forbade the giving of premiums in connection with retail sales of gasoline for the purpose of injuring or destroying competitors, and this case is cited with approval in the McDowell opinion. But it is interesting to note that the same Michigan enactment, in Section 4, also prohibited sales below cost of bakery and petroleum products with intent to injure or destroy the business of a competitor, and is apparently still the existing statutory law of Michigan and has not been brought before the Supreme Court of that state for review in the more than eighteen years of its existence.
"And as to Connecticut, in Carroll vs. Schwartz, et al. [127 Conn. 126], 14 Atl.2d 754, the Supreme Court of Errors of Connecticut upheld the basic provision of an Act prohibiting sale of any item of merchandise at less than cost with intent to injure competitors or destroy competition [Gen.St.Supp.1939, §§ 922e-924e]. This case makes no reference to the Connecticut case of Miller, [State v. Miller, 126 Conn. 373] 12 Atl.2d 192, cited in the McDowell opinion.
*260 "One of the early and leading cases upholding the validity of a statute prohibiting `sales below cost' with injurious intent was a decision of the Supreme Court of California in Wholesale Tobacco Dealers [Bureau] vs. [National] Merchants Candy & Tobacco Co., (1938) [11 Cal. 2d 634] 82 Pac.2d 3, 118 A.L.R. 486. Yet in State Board of Dry Cleaners vs. Thrift-D-Lux Cleaners (1953) [40 Cal. 2d 436, 254 P.2d 29], the Supreme Court of that state held unconstitutional an act conferring upon a state board power to fix minimum prices in the cleaning and dyeing industry [West's Ann.Bus. & Prof. Code, §§ 9560-9567]. This opinion is fairly illustrative of the difference between the two types of legislation, and is valuable in demonstrating the points of comparison and of difference between `Below Cost Acts,' consensual `Fair Trade Acts,' and outright legislative price fixing in businesses not affected with a public interest. It is interesting to note, in this connection, that we have had a `Fair Trade Act' in Alabama since 1939. Code 1940, Title 57, Sections 77 through 83, inclusive.
"It is somewhat difficult to see how the legislature can lend governmental sanction to price maintenance of trademarked or branded merchandise, which price may include substantial profits, and may not, in the exercise of the police power and as an anti-monopoly measure, prohibit sales below cost with intent to destroy competition. Of course, so far as the writer can ascertain, our fair trade statute has not been considered by our Supreme Court, and is in no sense involved in the present case, and no opinion whatever with reference to its validity is intimated.
"It is necessary to consider whether or not prohibition of intentionally destructive sales below cost is reasonable related and adapted to the declared purpose and intent of the Act to prevent monopoly. It would seem that it is. For many years, the Robinson-Patman Act has prohibited sales at unreasonably low prices for purposes of injury to competition, as part of the Federal System of `anti-trust' legislation.
"In Tooke and Reynolds vs. Bastrop Oil [Ice & Storage] Co. [172 La. 781], 135 So. 239, the Louisiana Court held that the sale of ice at less than cost of manufacture in order to eliminate competition was actionable under the treble-damages provision of the anti-trust law of that state [Act No. 11 of 1915, Ex.Sess., § 16, LSA-R.S. 51:137].
"And the Supreme Court of Mississippi, in Memphis Steam Laundry [-Cleaners] vs. Lindsey [192 Miss. 224], 5 So. 2d 227, has gone so far as to hold that deliberately injurious price-cutting below cost, to drive a competitor out of business, is actionable at common law and authorized recovery of punitive damages.
"Price legislation, including `Below Cost Acts' and `Fair Trade Acts,' has had a hectic career in the various states of the union. Once the principle is conceded, the application often becomes extremely difficult as exemplified in the Cohen-Frey case, supra.
"Other difficulties and possible inconsistencies in juridicial treatment have also appeared in Louisiana and Florida. In addition to judicial difficulties, this legislation may possibly involve fallacies in economic and accounting theory, and business administration practice. It may possibly substitute an oligarchy of the trade association for the monopoly of the old-time `trusts.'
"A critical and unsympathetic discussion is found in 57 Yale Law Journal, p. 391. And there have been instances where individuals have been enjoined in Federal Courts from actively participating in the operation of `below cost' statutes under the Sherman Act. And it could possibly be that the cost-surveys provided for in this Act may become the equivalent of agreed price lists. Code of Ala., 1940, Title 57, Section 107, prohibits agreements to regulate or fix the price of any commodity to be sold within this state. Perhaps the anti-monopoly horse has been ridden off in two opposite directions at once. As to the operation of this sort of legislation with the Sherman Act, see Food and Grocery Bureau of *261 Southern California, Inc., et al., vs. United States [9 Cir.], 139 Fed.2d 973.
"The validity of the Alabama Unfair Cigarette Sales Act has already been upheld in one of the Circuit Courts of this state (Jerry Hilliard vs. Edwards, Commissioner of Revenue, Montgomery Circuit Court decree of April 16, 1954), the learned and respected jurist who rendered that decree observing that the issue is legal and not economic, and that it was neither the function or prerogative of the court to express an opinion on the wisdom or policy of the statute, that being primarily for the legislature, the Court being limited in its inquiry to:
"1. Whether the subject of the legislation is within the police power, and
"2. Whether the means adopted to accomplish the result are reasonably designed to do so and have a real and substantial relation to the objective.
"This Court is of the opinion that there is a valid distinction between `competitive price-cutting' and `intentionally destructive' price cutting, for the purpose of application of our constitutional principles. One of the declared intentions of the legislature in this Act is to safeguard the public against creation of monopoly. Not only is that within the scope of police power, but the exercise of that power is affirmatively enjoined upon the legislature by Section 103 of the Constitution. The factual examples of the Lindsey and Bastrop cases vividly show that intentional and deliberate cutting of prices below cost has been and can be a technique or weapon of monopolization. This Court cannot say that the declared intent is so far removed from the prohibited practice as to make it a mere masquerade, upon and from the very face of the Act itself.
"But the Court is further of the opinion that, in a business not affected with a public interest, as that concept abides in the law of the State of Alabama, the legislature cannot regulate competitive pricing policies by declared standards of `fair competition,' and undertake merely to umpire pricing practices with reference to such standards above the level of selling of commodities below cost with injurious intent in a business which may be susceptible of monopolization within a community.
"If mere `injury' to competitors were to serve as the basis for invoking the police power over prices, and was the only basis for the Act's operation, it would not be constitutional under our cases. All competition is intentional and all competitors necessarily injure all other competitors in the same field, except in rare cases of unrestricted and totally elastic markets. Competition is a struggle to win. Whatever one does to attract customers to him, in inelastic markets, is necessarily `injury' to others in the field. To set a criterion of cost does not help the situation. Whether a price cutter sells below cost of acquisition, or below that plus the cost of doing business, or below both these costs plus a profit so small as to scarcely yield a living for himself and his family, some injurious result would accrue to competitors who feel that they have a right to expect a reasonable profit. When a merchant air conditions or remodels his store, or provides parking, or exceptionally pleasant treatment for his customer, or more liberal credit than is ordinarily extended, it is done, in a loose sense, to `injure' competitors, who cannot or will not meet these conditions, though such merchant be a man of however much good will.
"The giving of trading stamps in the Kelly case, the giving of dishes in the McDowell case, and the giving of discounts in the Hunter case, were intentionally done. The natural and probable consequence of those practices was to attract patronage away from competitors and thus injure them. And the plaintiffs in the McDowell and Hunter cases alleged that they were being injured by unfair competition. If the police power included prohibition of price cutting solely for the prevention of injury to competitors as such, without the prohibition *262 being further related to an intent to destroy or substantially lessen competition and thereby tend to monopoly, then it would seem that the `gasoline price posting Acts' would have been sustainable on that theory. And if the legislature could prohibit price cutting solely to conserve fair competition as an end in itself, then it would not need to confine its prohibition to sales below cost, but could extend it to sales which would yield unreasonably low profits, which would most likely be considered unfair selling, and which would have the tendency to injure competitors, or at least work a hardship upon them.
"The Court is not required to regard with enthusiasm and without dubiety the entry of what might ultimately turn out to be the nose of the price-fixing camel within the State constitutional tent. But questions of the wisdom, necessity, propriety, efficiency, practicability, consistency, economic actuality and policy, and soundness of legislation are primarily for the legislature. And if the question of adaptation of means to purpose is debatable, the Court will not undertake to say as a matter of law that it does not exist. Will the Act have, in practical operation, an end-result of price fixing? Is it fairly enforceable? Prediction is beyond the function of the Court. There have been some peculiar applications of price and price-maintenance legislation.
"In Remington Arms [, Inc.] vs. Berger [, Inc., 208 Misc. 561], 144 N.Y.S.2d 751, a dealer in brand-named ammunition, who had purchased a quantity of it at a discount at a closeout sale, was required to sell it at no less than what he regarded as an exorbitant profit.
"In Trade Comm. vs. Bush (Utah) 1953 [123 Utah 302, 259 P.2d 304], C.C.H. Trade cases, p. 60, 601, the merchant who gave trading stamps, and was sued under a `below cost' Act, prevailed in his insistence that his only intent was to increase his own business, and not to harm anyone, `frankly admitting we all knowthat any sales increase be enjoyed of necessity reduced the sales of another or others.'
"In Bristol Myers vs. Picker [302 N.Y. 61], 96 N.E.2d 177, 22 A.L.R.2d [1203] 203, which was like Remington under the New York consensual Fair Trade Act [General Business Law, McKinney's Consol. Laws, c. 20, §§ 369-a to 369-e], the Court of Appeals of that State wrestled with the problem of whether or not the giving of redeemable cash register slips constituted a violation when much less tangible `gratuities' such as parking the customer's car, minding his infant, and furnishing him with entertainment, were not violations.
"In United [Retail] Grocers' Association vs. Harrison[`s Sons, Inc.], 89 District and County 294, the Pennsylvania Common Pleas held not violative of a `below cost' statute, the giving of five pounds of free sugar with purchases, under an Act containing no provision such as Section V of the Alabama Unfair Cigarette Sales Act."
To sum up the views of the Court, the following conclusions are set forth:
Research discloses that in 38 jurisdictions of the United States which have enacted such laws (some applying to all products generally, others applying to one or more products), the courts have been practically unanimous in affirming the principles of these laws against constitutional attack. The following states have upheld the validity of sales below cost laws: Arizona, California, Colorado, Connecticut, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, Oklahoma, Tennessee, Washington, Wisconsin, Wyoming. (The reporter will set out in the report of the case the cases from these jurisdictions appearing in the Amicus Curiae brief.)
Since Judge Giles' last decree, the United States Supreme Court handed down its decision, Safeway Stores, Inc. v. Oklahoma Retail Grocery Ass'n, Inc., 360 U.S. 334, 79 S. Ct. 1196, 1201, 3 L. Ed. 2d 1280, at page 1285, upholding the constitutionality of the Oklahoma Unfair Sales Act, 15 O.S.1951 §§ 598.1-598.11, which was attacked on the grounds of violating the Fifth and Fourteenth Amendments of the Federal Constitution, and the Court there said:
It should be pointed out that since the demurrer of appellant is to the bill as a whole, if any ground for relief, as pleaded, is sufficient, then the demurrer addressed to the bill as a whole was properly overruled, even though other aspects, if any, might be defective. We are of the opinion that the court ruled correctly in stating that the bill had equity and in overruling the demurrer of appellant. Stone Container Corp. v. Stapler, 263 Ala. 524, 83 So. 2d 283; Bell v. Killian, 256 Ala. 24, 53 So.2d *264 604; Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So. 2d 11; Tyler v. Copham, 245 Ala. 151, 16 So. 2d 316.
We think the bill sufficiently charges a violation of Sec. III (a) of Act 805, Acts of Alabama 1951, effective Sept. 11, 1951, now appearing in Pocket Part of the Code of Alabama 1940 as Sec. 83(1) through (14) of Title 57, and hold that the trial court correctly overruled the grounds of demurrer properly assigned and argued.
We are not to be understood as holding that all of the provisions of the Act are constitutional because the validity of all the provisions of the Act are not here challenged.
The cause is affirmed.
Affirmed.
All the Justices concur except COLEMAN, J., who dissents.
COLEMAN, Justice (dissenting).
I do not disagree with the broad constitutional principle that the legislature has power to prevent monopolies. In the light of that principle, it may well be that the first sentence of Section III (a) of Act No. 805, 1951 Acts, p. 1402, is not, on its face, violative of any constitutional provision.
The bill of complaint here under attack, as I understand it, seeks far more than a mere declaration that the first sentence of Section III (a) is constitutional on its face. I do not understand how it can be said that the bill sufficiently alleges violation of the statute by appellant, and shows that complainant is entitled to the injunction prayed for, on the bare holding that the first sentence of Section 111(a) of the Act is not unconstitutional on its face.
As it appears to me, the respondent, in this Court at least, has, by appropriate demurrer and argument, challenged certain sections of the statute. I am not able to agree that those sections meet the constitutional test and am of opinion that the decree overruling the demurrer is in error. Therefore, I respectfully dissent. | June 29, 1961 |
486ff285-7b18-4327-9217-2cb49446b433 | Druid Homes, Inc. v. Cooper | 131 So. 2d 884 | N/A | Alabama | Alabama Supreme Court | 131 So. 2d 884 (1961)
DRUID HOMES, INC.
v.
Charles F. COOPER et ux.
1 Div. 913.
Supreme Court of Alabama.
June 29, 1961.
*885 Tonsmeire & McFadden, Mobile, for appellant.
M. A. Marsal, Mobile, for appellees.
MERRILL, Justice.
This appeal is from a judgment of $4,500 based upon a complaint claiming damages for the breach of a written agreement dated December 1, 1955, to purchase a house and lot wherein it was implied that the dwelling was of substantial construction and was built in a workmanlike manner. The breach complained of was that the house was not constructed in a workmanlike manner and that water drained from the bathroom facilities and emptied under the house without any drainage, and damage resulted.
During the trial, a second count was added to the complaint, claiming damages for breach of an oral agreement allegedly made on November 11, 1955, in which appellant impliedly warranted that the house was constructed in a workmanlike manner.
The complaint was not filed until October 6, 1958. This is important only to say that a written warranty for one year was given that the building was in substantial conformity with approved plans and specifications of the Administrator of Veterans Affairs. Plaintiff received his deed, this warranty and occupied the house in December, 1955, rendering any action on the written warranty unavailing after December, 1956.
The first argued assignments of error allege error in the overruling of the demurrer to the two counts of the complaint.
This presents a question of first impression in this state. The question may be posed: Is a warranty implied, as a matter of law, in a contract to purchase real estate, that the improvements located thereon were constructed in a good and workmanlike manner?
The great weight of authority does not support implied warranties in real estate transactions but requires any purported warranties to be in written contractual form. 92 C.J.S. Vendor & Purchaser § 578; 55 Am.Jur., Vendor and Purchaser, § 368; Thompson on Real Property, Vol. 8, § 4599. No decision has come to our attention which permitted recovery by the vendee of a house upon the theory of implied warranty.
Most of the cases on this point cite Williston on Contracts, Vol. 4, § 926 (Rev. Ed.), which states:
*886 In Dennison v. Harden, 29 Wash. 2d 243, 186 P.2d 908, 912, the court said:
To the same effect see: Allen v. Reichert, 73 Ariz. 91, 237 P.2d 818; Shapiro v. Kornicks, 103 Ohio App. 49, 124 N.E.2d 175; Kerr v. Parsons, 83 Ohio App. 204, 82 N.E.2d 303; Harmon Nat. Real Estate Corporation v. Egan, 137 Misc. 297, 241 N.Y.S. 708; Gilbert Construction Co. v. Gross, 212 Md. 402, 129 A.2d 518; Berger v. Burkoff, 200 Md. 561, 92 A.2d 376; Combow v. Kansas City Ground Investment Co., 358 Mo. 934, 218 S.W.2d 539, 8 A.L.R.2d 213; Smith v. Tucker, 151 Tenn. 347, 270 S.W. 66, 41 A.L.R. 830.
In the case of Steiber v. Palumbo, 219 Or. 479, 347 P.2d 978, 983, the court set out an Oregon statute disallowing any implied covenants in the sale of real estate; however, in the review of the action by purchaser for breach of implied warranty in the sale of a new house, the court gave a comprehensive review of many cases on the subject. The court concluded that "even apart from legislation such as ORS 93.140 the law refuses to imply in favor of the purchaser of an existing house warranties as to quality." For other comprehensive studies see: Dunham, "Vendor's Obligation as to Fitness of Land for a Particular Purpose," 37 Minn.L.Rev. 108; Selker, "Right of Purchaser in Sale of Defective House," 4 Western Reserve L.Rev. 357.
We feel that the rule of the cases cited above is sound, makes for certainty in the field of real estate law, and should prevail in this jurisdiction. Purchasers may protect themselves by express agreement embodied in their deeds, and vendors may be certain of their position as to liability for the condition of premises they have sold.
Count 2 of the complaint was also defective because it was in violation of the Statute of Frauds, Tit. 20, § 3; Dobson v. Deason, 248 Ala. 496, 28 So. 2d 418. When a complaint, or any of its several counts, does not state a cause of action, a general demurrer on that ground is sufficient to call attention to the defect, since the court should on its own motion deny any recovery thereon by the plaintiff. McCarty v. Williams, 212 Ala. 232, 102 So. 133; John E. Ballenger Const. Co. v. Joe F. Walters Const. Co., 236 Ala. 548, 184 So. 275.
Since neither count stated a cause of action, it follows that the demurrer to both counts should have been sustained.
The judgment of the circuit court is reversed and one is here rendered sustaining the demurrer.
Reversed and rendered.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | June 29, 1961 |
6807d7f1-4500-4e37-bb7b-6b795642ae16 | State v. Goodwyn | 133 So. 2d 375 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 375 (1961)
STATE of Alabama
v.
Elizabeth Hill GOODWYN and John L. Goodwyn.
3 Div. 944.
Supreme Court of Alabama.
September 21, 1961.
*376 MacDonald Gallion, Atty. Gen., Geo. B. Azar and Jos. D. Phelps, Sp. Asst. Attys. Gen., for appellant.
Hill, Hill, Stovall & Carter, Montgomery, for appellees.
MERRILL, Justice.
This is an appeal by the State from a jury verdict and judgment of $80,000 as compensation to appellees in a condemnation proceeding in which 8.5 acres of a 33.33-acre tract were taken for an interstate limited or controlled access highway. The commissioners in probate court had awarded $70,000 and both the State and the appellees appealed to the circuit court. The State's motion for a new trial was overruled.
The only question before the circuit court was the amount of damages to be awarded.
Appellant's first argued assignment of error is that the court erred in overruling the motion for a new trial. Such an assignment of error is sufficient to invite a review of the ruling on the basis of any ground well stated in the motion and properly argued by appellant. Grimes v. Jackson, 263 Ala. 22, 82 So. 2d 315.
But in the fourteen pages of appellant's brief devoted to this assignment of error, no ground of the motion for the new trial is mentioned or referred to in any way.
*377 Grounds of a motion for a new trial not argued in brief will not be considered on appeal. Chattahoochee Valley Railway Co. v. Williams, 267 Ala. 464, 103 So. 2d 762; McClendon v. McKissack, 143 Ala. 188, 38 So. 1020. Assignment No. 1 presents nothing for review'. This also applies to assignments of error 2, 3, 4 and 5.
It is difficult to determine just what remaining assignments of error are argued, but it appears that the appellant's main contention is that the court erred in rulings on the admission of evidence as to the actual values of platted lots in the tract or of lots in comparable subdivisions. In answering appellees' contention that the argument in appellant's brief was too general and confusing, appellant stated in its reply brief:
It is necessary to give a brief summary of the facts relating to the land in question.
Mrs. Goodwyn received the entire tract of 53 acres by deed of gift from her father in 1951. Planning of a subdivision was begun and the Federal Housing Administration suggested a lot layout of the subdivision in 1952, but owing to the absence of sewage the project was delayed until 1956. The overall plan of development was submitted to the Planning Commission of the City of Montgomery and was given preliminary approval in April, 1956. This was necessary as the property was within the city limits.
The south 20 acres was developed first and was known as Section 1. Water and sewage were stubbed to the border of Sections 2 and 3, the 33.33 acres in question here, and the streets in Sections 2 and 3 were grubbed out.
By 1958, it was determined that Section 1 had been a successful development and plans were begun to develop Section 2. Final approval for this section was given by the Planning Commission on February 26, 1959. The surveyor reported finding some highway engineering stakes on the north part of Sections 2 and 3 and upon inquiring, the Goodwyns were informed that the Highway Department was considering running an interstate highway through the tract. No further work was done toward the development of Section 2 because, as Mr. Goodwyn testified, "it looked pretty silly to me to go on and put improvements there, and for the State to have to come along and pay for those improvements."
Appellees introduced in evidence the overall plat showing the lots in all three sections. It was also shown that Sections 2 and 3 would yield 63 lots before the taking and 39 lots after, resulting in a loss of 24 lots.
The State introduced maps on which the lots and subdivision lines were omitted, but appellees introduced the official right-ofway map of the Highway Department showing that Section 2 was platted as a subdivision and the lots in that section that would be taken by the right-of-way.
It was shown that all the lots in Sections 2 and 3 had been fully laid off on the ground *378 with iron pins placed at the corners, and all engineering work had been completed on both sections. Final approval by the Planning Commission had been given on Section 2 and preliminary approval on Section 3.
In view of appellant's statement quoted from brief, we discuss the testimony of the first witness when the question of lot values arose. Edward Lowder, an expert witness for the State, testified, on direct examination, that he was familiar with the property, that his company had purchased 160 acres in the vicinity of the Goodwyn land for $2,350 per acre and 80 acres for $1,600 per acre, but the Goodwyn subdivision "was designed for a higher class neighborhood;" that the highest price his company paid for land to be subdivided was $3,000 per acre; and the reasonable value of the 33.33 acres was $2,500 to $3,500 per acre. On cross-examination, after some preliminary objections, the following occurred:
"The Court: Yes.
"The Witness: All right. I am supposed to answer now?
"The Court: Yes.
Appellant's position at trial and here is that the proper unit for valuation purposes was and is the entire tract of 33.33 acres and any evidence that the 33 acres were divided into 63 lots created an improper unit for valuation.
We agree with the first part of the contention, but cannot agree with the second.
It is settled that one whose property is taken under eminent domain proceedings should receive compensation based upon the use to which the property is adapted or reasonably adapted. Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So. 2d 594; Alabama Power Co. v. Herzfeld, 216 Ala. 671, 114 So. 49.
It was and is conceded, as stated by appellant's counsel at trial "that the highest and best use of this property is for subdivision purposes for residential property."
The rule of compensation in a condemnation proceeding in this state where only a part of a tract is taken is that the owner is entitled to the difference between the value of the entire tract immediately before the taking and the value of the part remaining after the taking, giving effect to any enhancement in value to the part remaining in case the condemnation was for a public highway, as provided in Tit. 19, § 14, Code 1940. St. Clair County v. Bukacek, Ala., 131 So. 2d 683; Morgan County v. Hill, 257 Ala. 658, 60 So. 2d 838.
Here was an expert witness for the condemnor, testifying that the 33 acres were worth $115,000 before the taking and $92,520 after the taking, making a difference of $22,480. It being conceded that the highest and best use of the tract was for subdivision into residential lots, it was appropriate *379 to ascertain if he had considered its worth if sold by lots.
An appraiser who testifies to his opinion as to the value of property condemned may be interrogated as to the basis of his opinion, and the extent of this examination "was addressed to the court's irrevisable discretion." Alabama Power Co. v. Berry, 222 Ala. 20, 130 So. 541, 544. Such facts are considered in support of the judgment or opinion of the witness even though they do not become independent evidence to establish the fact of inquiry. Thornton v. City of Birmingham, 250 Ala. 651, 35 So. 2d 545, 7 A.L.R.2d 773.
But we think there was a more compelling reason that the evidence as to the value of the lots was admissible in this case.
Here, we have an actual, going subdivision, the first section of which had proven successful, and, according to one of the State's experts, the subdivision "is about one of the nicest in the city." When property has reached the stage of development as has this subdivision, no competent appraiser could disregard the value of the lots, and an appraised value based solely upon acreage would not only be unrealistic, but unfair to the landowner.
Each of the State's appraisers testified that he did take the value of the lots into consideration in stating his opinion of the before and after value of the 33-acre tract. And appellant's contention that the damages assessed by the jury were based solely upon a lot basis is not substantiated. Taking the lowest appraised price per lot by the State's appraisers, and multiplying it by the 24 lots taken, the total would be over $100,000, with no consideration being given to any damages resulting to the remaining lands which were separated by the right-of-way.
All the witnesses were asked to exclude any profits or speculation from their appraisal of the value of either the tract or the lots.
Appellant argues that the affirmance of this judgment would amount to the overruling of the three cases next cited and discussed. We disagree.
The first case is Alabama Central Railroad Co. v. Musgrove, 169 Ala. 424, 53 So. 1009, 1011. There, the landowner had platted the land, in a residence section of Jasper, into blocks and lots. The landowner still owned all the land, not having sold any lots. This court said:
There is no conflict in the Musgrove case and the instant case. Here, there was no effort to prove the separate value of each lot, or the value of the front footage of each lot, and the tract was considered as a 33-acre unit. But since all parties conceded that it was best suited for development as a subdivision, the plans of which had already been filed and approved, it would have been unjust to treat the 33 acres as mere acreage without any consideration of value of the lots. The experts testifying for the appellant stated that they did consider the value of the lots in estimating the before and after value of the property.
The second case is that of Thornton v. City of Birmingham, 250 Ala. 651, 35 So. 2d 545, 7 A.L.R.2d 773. This court held that the owner, whose land was platted on paper, would not be permitted to describe a "speculative enterprise" and base his estimate of value on the "profits" he would expect to receive from the enterprise. Here, the appraisers testifying for appellees stated their estimate of the before and after value was based upon the actual value of the *380 tract with all speculative profits specifically excluded, and not on a value determined by aggregating the values of each individual lot. There is no conflict with the Thornton case in the holding here.
The third case is Etowah County v. Clubview Heights Co., 267 Ala. 355, 102 So. 2d 9, 10. There, no lots had been laid out on the ground and the assignment of error termed the map of the subdivision fictitious. We again held that "the map taken with the testimony of the witness demonstrates that the witness was testifying as to the use to which the land could be put." But there, as in the instant case, there was no attempt to show speculative profits. Again, we perceive no conflict
There was a wide discrepancy in the testimony of the experts. Appellant's witness Edward Lowder placed the damages at $22,480; the witness William Nicrosi appraised the damage at $24,890; and the witness Donald Pierce appraised the before and after difference at $27,000. Appellees' experts and their estimates of the difference in the before and after values were: Lester Hall, $95,000; Ed Dennis, $107,550; and John Haardt, $119,000.
These experts, regardless of whether called by the State or the appellees, agreed that the value of this 33-acre tract should not be based solely upon an acreage value. All considered the value of the lots within the acreage, but the before and after value was applied to the entire tract and not based upon a lot by lot value.
The trial court orally charged that "the jury is not to consider at all any speculative or imaginary uses of the property or merely speculative plans of the land owner." Also, the trial court gave some 29 written charges requested by appellant, including some that the compensation could not be based upon how many lots there were, or the price for which they could sell, or an aggregate lot basis, or the value of any subdivision, or the value of all the proposed lots, or any speculative value or for any anticipated loss of profits.
Appellant argues that it was error to permit appellee, John L. Goodwyn, to testify that the 33-acre tract was divided into 63 lots. The cases cited by appellant applied to subdivisions which had not reached the stage of development as the one here. Some of the cases cited hold that a map of a proposed subdivision could not be introduced. Those cases conflict with our case of Etowah County v. Clubview Heights Co., 267 Ala. 355, 102 So. 2d 9, 10, where we sanctioned the introduction of the map even though the land "was undeveloped and no lots had been laid out upon the ground."
Furthermore, the map or plat of the tract showing all the lots was already in evidence, as was the State's map showing some of the platted lots in Section 2. The only effect of this particular testimony was to give the total number of lots in the tract, which the jury could ascertain by counting the platted lots on the maps already in evidence. No error appears in this procedure.
We think we have shown that the tract was considered as a whole for valuation, but evidence as to the actual value of the lots was admissible because this tract was a part of a going subdivision, and the plans had already been approved by the local authorities. The evidence also shows that the lot values were set by the witnesses after excluding speculative values or anticipated profits.
The judgment of the lower court is affirmed. For a case factually similar, where the court reached the same conclusion as we have, see State Through Department of Highways v. Boyer, La.App., 130 So. 2d 738.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | September 21, 1961 |
da9ccacd-f380-4d1e-9fae-ce905ed845fc | Richards v. Eaves | 135 So. 2d 384 | N/A | Alabama | Alabama Supreme Court | 135 So. 2d 384 (1961)
Ruth RICHARDS, Administratrix,
v.
Robert Howell EAVES, Jr. et al.
4 Div. 53.
Supreme Court of Alabama.
November 16, 1961.
Rehearing Denied December 21, 1961.
*385 John C. Walters, Troy, for appellant.
John W. Gibson, Troy, and Lange, Simpson, Robinson & Somerville, Birmingham, for appellee Eaves.
Jas. G. Clower, Troy, for appellee Richards.
LAWSON, Justice.
This suit was brought in the Circuit Court of Pike County by Mrs. Ruth Richards against Robert Howell Eaves, Jr., and Jerry Dean Richards. The plaintiff sued under the so-called homicide or wrongful death statute (§ 123, Title 7, Code 1940) as administratrix of the estate of her son, Chester Richards, who lost his life as the result of a collision between the car in which he was riding, being driven by the defendant Jerry Dean Richards, and a car being driven by the defendant Eaves.
The complaint contains two counts. Count One alleges that the death of plaintiff's intestate was proximately caused by the concurring negligence of each of the defendants. That count contains the averment that at the time of the collision plaintiff's intestate was riding "as a lawful passenger, and not as a guest." Count Two alleges, in effect, that the death of plaintiff's intestate was proximately caused by the concurrent wanton conduct of the defendants.
The defendant Jerry Dean Richards pleaded the general issue in short by consent in the usual form. The defendant Eaves pleaded the general issue and contributory negligence to Count One and the general issue to Count Two.
At the close of the plaintiff's evidence the trial court directed the jury to find for the defendants by giving general affirmative charges without hypothesis, which were duly requested in writing.
The plaintiff filed a motion for a new trial. It was overruled. She has appealed to this court.
The collision occurred during the early hours of the morning of April 4, 1959, at a point approximately three miles south of Brundidge on U. S. Highway 231. At the place of collision the paved surface of the two-lane highway is from 30 to 35 feet wide, with wide level shoulders on each side. At the exact point of collision the road is level and straight and runs north and south. Pictures introduced in evidence show curves to the east both north and south of the point where the collision occurred, but there is no evidence going to show the distance from those curves to the point of impact. There is no evidence going to show that visibility was affected by inclement weather.
The car in which plaintiff's intestate was riding was owned by the plaintiff's husband, Carl Richards. It was being driven in a southerly direction by the defendant Jerry Dean Richards. The other automobile was being driven in a northerly direction by the defendant Eaves, who was accompanied by Miss Anita Barton.
No witness testified as to the point of impact or how the collision occurred. The defendant Jerry Dean Richards was called as a witness by the defendant, but he testified that he did not recall how the accident happened. He did not know whether it happened on his side of the road (the west side), on the other side of the road (the east side), in the middle of the road or off the road. He said that the last thing he remembered was that he was driving on his side of the road at a speed *386 of approximately 45 miles an hour. On cross-examination he stated that the last event prior to the accident of which he had an independent recollection occurred a half or three-quarters of a mile north of the point where the cars came to rest. On redirect the witness qualified his previous testimony by saying that the place where he remembered being on his side of the road should have been near the point of collision. He did not state that he was traveling in the proper lane, the west lane, at the time the collision occurred. The sum and substance of this phase of Richards' testimony is that he does not know how the accident happened.
The cars came to rest on the east side of the highway facing each other at a 45 degree angle with reference to the highway. The Eaves car was facing in a northwesterly direction. All of that car from the front seat aft was off the pavement resting on the east shoulder of the highway. The front part of the Eaves car was on the edge of the eastern lane, that designed for northbound traffic. Car tracks, not skidmarks, led from the northbound lane onto the eastern shoulder of the road. These tracks extended a distance of 30 yards to the point where the Eaves car came to rest. After the collision the Richards car was facing in a southeasterly direction. All of that car except the right rear wheel and the part behind that wheel were in the eastern lane of the highway, that designed for northbound traffic, although the Richards car was moving in a southerly direction. The left front area of both cars was badly damaged.
A considerable amount of debris was found partly on the edge of the eastern lane of the pavement and partly on the east shoulder of the road. Oil spots were found after the cars were moved which extended from near the center line to the eastern edge of the paved road. We observe that no oil spots were found in the western lane despite the insistence of plaintiff's counsel to the contrary. No witness said that the oil spots extended even so far as the center line and the pictures introduced show to the contrary.
The fact that there was no eyewitness does not present an insuperable obstacle, if proven circumstances suffice, for it is well established that both the cause of an injury and the question of actionable negligence may be established by circumstantial evidence, with the qualification recognized by the authorities that the circumstances must be proven and not themselves presumed. Harbin v. Moore, 234 Ala. 266, 175 So. 264.
Here the circumstances are proven, and not presumed. And from this circumstantial evidence we think it may be reasonably inferred that the impact of the two automobiles occurred in the eastern lane, that is, in the northbound lane, and that the defendant Jerry Dean Richards negligently operated his automobile on the east side of the highway while proceeding south, contrary to the rules of the road.
We conclude, therefore, that the evidence of the plaintiff was sufficient to present a jury question as to the negligence of the defendant Jerry Dean Richards as charged in Count One of the complaint. McAlexander v. Lewis, 167 Neb. 524, 93 N.W.2d 632, 77 A.L.R.2d 575; Melville v. State of Maryland to Use of Morris, 4 Cir., 155 F.2d 440; Tracy v. Guibbini, 20 Cal. App. 2d 216, 65 P.2d 675; Bokhoven v. Hull, 247 Iowa 604, 75 N.W.2d 225; Wood v. Strevell-Paterson Hardware Co., 6 Utah 2d 340, 313 P.2d 800.
We are unwilling to say as a matter of law that under the circumstances here presented the decedent, Chester Richards, while riding in his father's car was "a guest" of Jerry Dean Richards within the meaning of our guest statute (§ 95, Title 36, Code 1940) so as to entitle Jerry Dean Richards to claim the benefit of that statute. See Collie v. Aust, 173 Cal. App. 2d Supp. 793, 342 P.2d 998; Ahlgren v. Ahlgren, 152 Cal. App. 2d 723, *387 313 P.2d 88; Wilson v. Workman, D.C., 192 F. Supp. 852; Helms v. Leonard, D.C., 170 F. Supp. 143; Henline v. Wilson, 111 Ohio App. 515, 174 N.E.2d 122; Naphtali v. Lafazan, 7 Misc.2d 1057, 165 N.Y.S.2d 395; Parker v. Leavitt, 201 Va. 919, 114 S.E.2d 732. Cf. Phelps v. Benson, 252 Minn. 457, 90 N.W.2d 533; Murray v. Lang (Iowa), 106 N.W.2d 643. See Annotation, 65 A.L.R.2d 312.
We hold that the trial court was in error in directing a verdict in favor of the defendant Richards as to Count One of the complaint.
Occurrence witnesses are no more essential to the establishment of wantonness than in the proof of actionable negligence. Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So. 2d 505.
But in our opinion, the evidence in this case does not support an inference of wanton conduct on the part of the defendant Richards; that is, that with reckless indifference of the consequences he consciously and intentionally did some wrongful act or omitted some duty which produced the death of plaintiff's intestate. These essential elements of wantonness were at best left to conjecture pure and simple. Zemczonek v. McElroy, 264 Ala. 258, 86 So. 2d 824.
We hold that the court did not err in directing a verdict in favor of the defendant Richards on the second, the wanton, count.
The plaintiff elicited from her witness Jerry Dean Richards and from the latter's mother and wife testimony to the effect that the defendant Eaves told them in the hospital that the accident was not the fault of Jerry Dean Richards. Those same witnesses also testified that Eaves told them in substance that he had driven from West Palm Beach, Florida, to Ozark, Alabama, without stopping; that the girl with whom he was traveling tried to get him to spend the night in Ozark but he refused; that he remembered very little that happened between Ozark and the scene of the accident; that he did not know how the accident happened, but when he looked up automobile headlights were shining in his face.
The statement attributed to Eaves to the effect that the accident was not the fault of the defendant Richards is not tantamount to an admission that the accident was caused by Eaves' negligence or wantonness. But even if the statement was given that meaning, it does not suffice to establish a right of action against him where there is no other evidence of actionable negligence or wantonness on his part as a matter of law. McClusky v. Duncan, 216 Ala. 388, 113 So. 250.
As we have indicated, the evidence in this case does not support an inference that the collision here involved occurred at any place other than on the east side of the highway, and there is not one scintilla of evidence to support a finding that the Eaves automobile was ever west of the center line of the highway. Consequently, the other statements attributed to the defendant Eaves are not sufficient to make out a case for the jury as to him.
We are of the opinion that the trial court correctly directed a verdict in favor of the defendant Eaves on both counts of the complaint.
We have dealt with the only questions treated in appellant's brief which warrant consideration on this appeal.
The judgment in favor of the defendant Eaves is affirmed.
The judgment in favor of the defendant Richards is reversed and the cause is remanded.
Affirmed in part and reversed and remanded in part.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | November 16, 1961 |
023dc23a-3b36-4335-9b31-f9b30f1de61a | Reynolds Metals Co. v. Thorne | 133 So. 2d 713 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 713 (1961)
REYNOLDS METALS CO.
v.
Mable S. THORNE, Adm'x.
8 Div. 78.
Supreme Court of Alabama.
September 14, 1961.
Rehearing Denied November 2, 1961.
Clopper Almon and Vincent McAlister, Sheffield, for petitioner.
Cooper, Mitch, Black & Crawford, Birmingham, opposed.
SIMPSON, Justice.
Petition of Reynolds Metals Company for certiorari to the Court of Appeals to review and revise the judgment and decision in Reynolds Metals Co. v. Thorne, 133 So. 2d 709.
Writ denied.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | September 14, 1961 |
f57ac253-3b08-4f00-830e-af0e3a61f959 | Freeman v. Hall | 238 So. 2d 330 | N/A | Alabama | Alabama Supreme Court | 238 So. 2d 330 (1970)
Mrs. Irene H. FREEMAN and Ideal Mutual Insurance Co.
v.
H. J. HALL.
6 Div. 617.
Supreme Court of Alabama.
February 26, 1970.
After Remandment August 6, 1970.
*331 George S. Brown, Birmingham, for appellants.
Sadler, Sadler, Sullivan & Sharp, Birmingham, for appellee.
SIMPSON, Justice.
This case was brought by the widow and dependent children of Robert S. Freeman, deceased, under the provisions of Title 26, § 312, Code of Alabama, seeking damages for the wrongful death of Robert S. Freeman. Ideal Mutual Insurance Company, the Workmen's Compensation carrier of the deceased, intervened in the case.
*332 Essentially the facts out of which this case arose are as follows:
The decedent, at the time of the accident which resulted in his death, was a driver of a Sealtest Milk truck. He was en route to the milk plant. The accident occurred at the intersection of Third Avenue and Seventh Street, in the City of Birmingham. The bumper of the truck owned by appellee Hall struck the bumper of the milk truck, and the milk truck overturned, crushing the decedent.
The evidence is conflicting as to whether or not the milk truck which the decedent was driving observed the stop sign at the intersection or whether or not it pulled in front of the truck owned by Mr. Hall without having first stopped.
The case was submitted to a jury which returned a verdict in favor of the defendant. This appeal followed.
The appellants' brief sets out 91 pages of testimony in the narrative and they make 51 assignments of error. However, they argue only three assignments of error, none of which goes to the sufficiency of the evidence. It is first contended that the trial court erred in overruling an objection to what the appellants contend was improper argument by Mr. Hall's attorney. The closing arguments of counsel are not included in the transcript. The appellants argue that the trial court erred in overruling their objection to a statement made by the appellee's attorney wherein he said that "* * * if it was just 30 percent of his fault [Mr. Hall's fault], then he [plaintiff] would not be entitled to recover."
It is impossible for us to determine in what context this statement was made. We do not have closing arguments before us. It is contended by the appellants apparently that this was improper argument in that it failed to apprise the jury on the law of subsequent negligence. Assuming without conceding that the argument referred to was improper for this reason, there was no error to reverse in overruling the objection to this portion of the argument inasmuch as the record clearly shows that the trial court fully and completely charged the jury on every issue in the case, including the doctrine of last clear chance or subsequent negligence. We do not believe that the statement made by the appellee's attorney in closing argument was so highly prejudicial, if prejudicial at all, as to require reversal on this ground. As so often noted, control of arguments of counsel rests largely in the discretion of the trial court before whom the arguments were made. This court does not interfere with that discretion except in cases of clear abuse. We surely will not assume abuse of that discretion in a case where closing argument of counsel is not in the record. Louisville & Nashville Railroad Co. v. Tucker, 262 Ala. 570, 80 So. 2d 288; Adams v. Queen Insurance Co. of America, 264 Ala. 572, 88 So. 2d 331; Hinton & Sons v. Strahan, 266 Ala. 307, 96 So. 2d 426; Southern Railway Co. v. Jarvis, 266 Ala. 440, 97 So. 2d 549; Occidental Life Insurance Co. of California v. Nichols, 266 Ala. 521, 97 So. 2d 879; St. Clair County v. Martin, 273 Ala. 302, 139 So. 2d 617; Beavers v. Boykin, 273 Ala. 413, 142 So. 2d 10; Campbell v. Davis, 274 Ala. 555, 150 So. 2d 187.
The next argument made by the appellant is to the effect that the trial court erred in refusing to allow the appellant to put into evidence a drawing made by a draftsman of the intersection which was the scene of the accident. The drawing was admittedly made more than three years after the accident occurred. The scene depicted by the drawing was inconsistent with the testimony of witnesses in the case. The drawing positioned a witness' car at a point where the witness testified it was not. In addition, the evidence indicated that there were a telephone booth, telephone pole, and buildings which were not depicted in the drawing. The trial court, in sustaining objections to the introduction of the drawing, noted, "This is a one-sided drawing in that the dimensions *333 are on one side and it is not shown that drawings there are like the conditions existing at the time of the accident". For this reason alone the trial court was justified in excluding this evidence. In addition, there were a great many photographs of the intersection introduced which were made at the time of the accident. Even if this drawing had correctly depicted the scene at the time of the accident, it would have merely been cumulative and we cannot say that the trial court abused his discretion in disallowing it. As indicated in Crocker v. Lee, 261 Ala. 439, 74 So. 2d 429, there is a distinction between the use of a drawing or diagram for purposes of illustration and the admission of such drawings as evidence. When such a drawing is introduced as evidence, it within itself tends to establish a particular fact. When used for illustration the testimony of the witnesses is evidence and the map or diagram is merely an aid to understanding that evidence. Here the plaintiff was allowed to use blackboard illustrations, drawn by the police officer who investigated the accident. We cannot say that he was prejudiced in not being allowed to introduce into evidence a drawing made more than three years after the accident, by a person who was unfamiliar with the conditions at the time of the accident, and which drawing failed to include some of the structures which witnesses testified existed at the scene.
The only additional contention made by appellant is that the trial court erred in refusing to grant a new trial on the ground that certain jurors failed to indicate in response to questions propounded by the attorneys for the parties whether any member of the venire had been plaintiffs or defendants in a lawsuit. On motion for new trial judgment certificates were introduced which showed that persons bearing the name of jurors who served had been defendants in lawsuits. One additional juror, Mrs. Garner, testified on hearing in the motion for new trial that she was unaware at the time the questions were put that her husband had been a defendant in a lawsuit brought by his stepfather some years ago. There was no error in denying motion for new trial with respect to this juror. However, with respect to the others, we must remand for the purpose of having the trial court determine whether the persons named in the judgment certificates were the persons who served on the jury.
Judgment certificates introduced show that persons named Dupree, Maddox, and Stone had been sued. Persons by these names served on the jury. None of them responded to the question whether or not they had been plaintiffs or defendants in lawsuits. We have frequently held that the parties have a right to truthful answers to questions propounded on voir dire. Sanders v. Scarvey, 284 Ala. 215, 224 So. 2d 247, which followed Leach v. State, 31 Ala.App. 390, 18 So. 2d 285, cert. den. 245 Ala. 539, 18 So. 2d 289. The failure of prospective jurors to respond to questions properly propounded on voir dire entitles the movant to a new trial.
In this case only the judgment certificates were introduced. Identity of name is prima facie evidence of identity of person. Wilson v. Holt, 83 Ala. 528, 3 So. 321; Esco v. State, 278 Ala. 641, 179 So. 2d 766. No evidence was adduced below to rebut this presumption. For this reason we think the cause should be remanded to the trial court to ascertain whether or not Dupree, Maddox, and Stone who served on the jury are the defendants in the judgment certificates. The trial court should have its findings on this question, together with all the evidence taken on remandment, certified to this court within thirty days from this date.
Remanded with instructions.
LIVINGSTON, C. J., and COLEMAN, BLOODWORTH and McCALL, JJ., concur.
PER CURIAM.
On original submission one of the appellant's contentions was that the trial court committed reversible error in overruling his motion for new trial predicated on the failure of three jurors who sat on the venire to give affirmative responses to certain questions propounded on voir dire. Those questions were:
and
We remanded for findings of additional facts. On remandment the trial court found that jurors Dupree and Maddox are the persons named in the judgment certificates and that while juror Stone is not so named, her father was named in one of the judgment certificates. Additional findings of facts were: that juror Dupree did not consider a collection suit for rent filed against him to be a lawsuit, and that he never went to court but settled the case; that juror Maddox denied ever being sued and was both incapable of understanding the questions put to him on voir dire and incapable of persuading any other juror during the jury's deliberations; that the two jurors were not influenced in their deliberations by the collection suits filed against them; that Juror Stone did not know of her father's lawsuit at the time of trial.
In the original opinion we said:
These statements are a correct broad generalization, but certainly cannot be applied without regard to considering the factual background of a particular situation.
In Sanders v. Scarvey, supra (four personal injury suits consolidated for trial) we said:
In that case three jurors failed to respond to voir dire questions whether any jurors or immediate members of their families had brought suit for damages arising out of an accident for personal injuries. We held reversible error. We did not specify upon which of the three jurors' failure to answer we reversed, nor did we say that each resulted in prejudice. We did say "* * * some of the failures to answer on voir dire might reasonably be explained away * * *." A careful reading of that opinion will reveal that at least one of the jurors (juror York) said that he did not know until after the trial that suit had *335 been filed in his behalf. Undoubtedly, this was one failure to respond referred to in our opinion as being reasonably explained away.
In Leach v. State, supra, the Court of Appeals said that concealment by a juror that he had previously served as a deputy sheriff for fifteen years was so prejudicial that there was no need to consider whether it was deliberate or unintentional. In that case the defendant was being tried for assault with intent to murder a deputy sheriff.
Neither Sanders v. Scarvey, Leach, nor the original opinion in the instant case, is authority for the proposition that on voir dire any failure of any prospective juror to respond properly to any question regardless of the excuse or circumstances automatically entitles a party to a new trial or reversal of the cause on appeal.
We hold that the proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by prospective jurors on voir dire, is whether this has resulted in probable prejudice to the movant. This appears to be the general rule throughout the country [see Annotations, 38 A.L.R.2d 624, and 63 A.L.R.2d 1061]. In Leach v. State, 31 Ala.App. 390, 18 So. 2d 285 (1944), the then Court of Appeals said:
There is broad support for the proposition that the trial court's application of the probable prejudice test is subject to review only for abuse of discretion. See Annotation, Effect of juror's false or erroneous answer on voir dire as to previous claims or actions against himself or his family, 63 A.L.R.2d 1061, 1063, where it is said:
In Peterson v. Skiles, 173 Neb. 470, 113 N.W.2d 628, 636-637 (1962), the Supreme Court of Nebraska held, in a similar fact situation to the case at bar:
See also Beggs v. Universal C. I. T. Credit Corporation, 387 S.W.2d 499 (Mo.1965); Pearson v. Gardner Cartage Co., 148 Ohio St. 425, 76 N.E.2d 67 (1947), (Syllabus 2).
This rule comports with logic and common sense. The trial judge heard the questions posed on voir dire and answers thereto. He is in the best position to make findings on the question of probable prejudice after the testimony is developed orally, or by affidavit, on new trial motion. His conclusions are then subject to our review for abuse of discretion.
We said in Morris v. Zac Smith Stationery Co., 274 Ala. 467, 470, 149 So. 2d 810, 813:
In the instant case appellant has not shown that the trial court abused its *336 discretion in determining that there was no probable prejudice to appellant by virtue of these jurors' failure to respond to questions propounded on voir dire. The evidence adduced on this issue supports the findings of the trial court on remandment.
Although the factors upon which the trial court's determination of prejudice is made must necessarily vary from case to case, some of the factors which other courts have considered pertinent are: temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror's inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about.
We are mindful of the heavy responsibility placed on the trial court to maintain the statutory right[1] which parties have to a full and truthful disclosure by jurors on voir dire. However, we must also be aware of inadvertent concealment and failure to recollect on the part of prospective jurors.
To re-emphasize, we say that we will review the trial court's ruling on motion for new trial predicated on jurors' improper answers to (or failure to answer) questions propounded on voir dire only for abuse of discretion in its determination as to probable prejudice.
As to the effect of an improper answer, or failure to answer, questions on voir dire, which had they been answered properly would have disclosed a challenge for cause, we offer no opinion since this issue was not raised in this case.
This case is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON, SIMPSON, MERRILL, HARWOOD, BLOODWORTH, MADDOX and McCALL, JJ., concur.
COLEMAN, J., dissents.
[1] Title 30, § 52, Code of Alabama 1940 (as Recompiled 1958). | August 6, 1970 |
f1dd0b8e-6c99-4b9b-8a32-d47a3020cd66 | Mayo v. MOBILE ASPHALT COMPANY | 131 So. 2d 881 | N/A | Alabama | Alabama Supreme Court | 131 So. 2d 881 (1961)
Edward C. MAYO
v.
MOBILE ASPHALT COMPANY, Inc.
1 Div. 933.
Supreme Court of Alabama.
June 29, 1961.
*882 Herndon H. Wilson, Mobile, for appellant.
Lyons, Pipes & Cook, Mobile, for appellee.
MERRILL, Justice.
This appeal follows an involuntary non-suit taken by plaintiff after a demurrer was sustained to Counts 1 and 2 of his complaint. The two assignments of error are that the court erred in sustaining the demurrer to Count 1 on June 13, 1958, and in sustaining the refiled demurrer to Counts 1 and 2 on July 15, 1959. The judgment of non-suit was entered March 8, 1960, and the appeal was taken September 7, 1960.
Count 1 alleges that in May, 1956, "off Wolf Ridge Road" there had been for a long time an unused or abandoned well or cistern on the premises of defendant; that it was not covered or filled up, nor was a substantial enclosure being maintained, and that plaintiff's minor son was either killed by falling into the well or cistern, or died after falling into it, being unable to extricate himself therefrom. It was further averred that the presence of this cistern was in violation of Tit. 14, § 384, Code 1940, which reads:
Plaintiff argues that this allegation was sufficient to show negligence per se on the part of the defendant.
The trial court correctly sustained the demurrer to Count 1 if we continue to follow the case of Alabama Great Southern R. Co. v. Cummings, 211 Ala. 381, 100 So. 553, 556, 33 A.L.R. 439. Count 1 closely follows Count 2 in the Cummings case. The same statute, now Tit. 14, § 384, was the basis of the suit. The Cummings case holds that:
(1) Title 14, § 384, Code 1940, is an attempt on the part of the legislature to denominate abandoned or unused wells, cisterns and mining shafts as public nuisances.
(2) The plaintiff's complaint relying on the failure to comply with the terms of the statute is based on the theory of a public nuisance causing special injury.
(3) The constitutionality of the code section must rest upon the authority of the legislature to exercise the police power for the suppression of public nuisances.
*883 (4) A legislative enactment which unreasonably interferes with a private citizen's use of his property is a taking of property without due process of law and is unconstitutional.
(5) An excavation on private premises may become a nuisance only where the excavation adjoins a public highway in such a manner as to render the way unsafe to those who used it with ordinary care.
(6) Title 14, § 384, denounces all abandoned or unused wells, cisterns and mining shafts without regard for their location with reference to highways, or other public places, or the premises of adjoining proprietors, and is, therefore, unconstitutional as violative of the due process clause of the Alabama and United States Constitutions. Const.1901, § 6; U.S.Const. Amend. 14.
(7) The plaintiff's complaint does not state facts showing a duty unless it alleges that the abandoned or unused well, cistern or mining shaft was adjoining a public highway.
Here, the complaint merely places the well or cistern "off Wolf Ridge Road." This could mean several miles off the road.
Appellant insists that there is a decided difference in the Cummings case and the instant case because there, a cow drowned, and here, a child drowned. That fact was also noted in the Cummings case in the following language:
This court also said in the Cummings case:
Under this authority, the demurrer to Count 1 was properly sustained because the complaint does not remove the deceased minor from the class of a trespasser, or a mere volunteer, or a bare licensee, and no legal duty is shown to be owed by the defendant to plaintiff's minor son.
This holding still seems proper and practical when we consider the great increase in ponds and lakes in this state. We are convinced that the Cummings case should be followed.
Count 2 was similar to Count 1 except that it alleged that defendant knew or should have known that children had been, for a long period of time, accustomed to playing on the property and that defendant knew or should have known the dangerous condition of the premises, and knew or should have known that one or more of the children were likely to be injured.
Plaintiff in brief says: "With regard to Count 2 of the complaint, appellant respectfully submits that said count was not drafted upon, nor should it be considered upon an attractive nuisance basis." He bases his theory of negligence on the principle that defendant has allowed a "dangerous instrumentality" to remain in position *884 where children, who are known to frequent the premises, might get hurt.
We have held that water hazards are not dangerous instrumentalities and no legal duty is imposed on the owner of property to erect barriers, or other safeguards to protect children, not invitees, from water hazards. Cobb v. Lowe Mfg. Co., 227 Ala. 456, 150 So. 687.
Finally, appellant argues that the allegations that the well or cistern "had shallow water near the edges but dropped off extremely a few feet from the edge giving the water a great depth; that said drop off was invisible to the eye and the edges thereof were extremely slippery," together with the allegation that children were accustomed to playing on the property near the excavation, showed negligence on the part of defendant.
Still appellant has not shown the deceased to be an invitee. In Cox v. Alabama Water Co., 216 Ala. 35, 112 So. 352, 356, 53 A.L.R. 1336, it was alleged that "defendant allowed a slime to accumulate on the sloping sides of its reservoir, thus * * * setting a trap for boys who might fall into the reservoir." This court said:
The Cox case and the cases cited therein are ample authority to justify the sustaining of the demurrer to Count 2.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | June 29, 1961 |
b25bba4a-0667-4d03-92fb-2961914faf4c | Treadwell Ford, Inc. v. Leek | 133 So. 2d 24 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 24 (1961)
TREADWELL FORD, INC.
v.
Elmer H. LEEK.
1 Div. 929.
Supreme Court of Alabama.
June 29, 1961.
Rehearing Denied September 21, 1961.
*25 Alex T. Howard, Jr., Chas. B. Bailey, Jr., and McCorvey, Turner, Johnstone, Adams & May, Mobile, for appellant.
J. Glenn Cobb, Jr., Mobile, for appellee.
LAWSON, Justice.
Elmer H. Leek purchased a 1958 used Plymouth automobile from Treadwell Ford, Inc., of Mobile, on or about December 3, 1958.
The automobile proved unsatisfactory to Leek. Being unable to adjust his differences, Leek brought this suit against Treadwell Ford, Inc., claiming damages in the amount of $5,000. We will sometimes hereinafter refer to the defendant, Treadwell Ford, Inc., simply as Treadwell.
The complaint contained three counts. Count 1 charged deceit substantially in Code form, Title 7, § 223, Form 21. Count 2 was for breach of warranty and was substantially in Code form, Title 7, § 223, Form 24. Count 3 was for deceit. It charged the defendant with the willful misrepresentation of a material fact made with intent to deceive and averred that plaintiff relied upon said representation, etc. See People's Auto Co. v. Staples, 225 Ala. 372, 143 So. 553.
Treadwell filed two pleas. The first was, "Not guilty." The second was, "The allegations of the complaint are untrue."
The case was tried on the issues so made. The jury returned a verdict in favor of the plaintiff, Leek, in the sum of $5,000. Treadwell, the defendant, filed a motion for a new trial. It was overruled. Treadwell has appealed to this court.
The trial court gave plaintiff's requested written charge No. 9. It reads:
Aside from the fact that punitive damages were not recoverable under Count 2 of the complaint, which was ex contractu (Western Union Tel. Co. v. Rowell, 153 Ala. 295, 45 So. 73), the giving of plaintiff's Charge 9 was erroneous in that it asserts that plaintiff would be entitled to recover punitive damages under the circumstances hypothesized in the charge.
Punitive damages are not recoverable as a matter of right except as provided by statute. Lehigh Portland Cement Co. v. Sharit, 234 Ala. 40, 173 So. 386.
The imposition of such damages in cases of fraud and deceit is discretionary with the jury, acting with regard to the enormity of the wrong and the necessity of preventing a similar wrong. Louisville & N. R. Co. v. Bizzell, 131 Ala. 429, 30 So. 777; Coleman v. Pepper, 159 Ala. 310, 49 So. 310; First National Bank of Huntsville v. Stewart, 204 Ala. 199, 85 So. 529, 13 A.L.R. 302; Birmingham Electric Co. v. Shephard, 215 Ala. 316, 110 So. 604; Lehigh Portland Cement Co. v. Sharit, supra; Schock v. Bear, 250 Ala. 529, 35 So. 2d 97.
The effect of this error cannot be obviated by reference to the oral charge of the court. The oral charge could have corrected the error of the written charge in question only by some manner of statement or other treatment tantamount to an instruction that the jury were not to accept the written charge as a correct statement of the law. First National Bank of Huntsville v. Stewart, supra. The record shows no recognition or correction of the error of the charge pointed out above. See Shock v. Bear, supra.
It cannot be said from a reading of this record that the jury verdict of $5,000 did not include punitive damages.
*26 Written Charge 1, given for the plaintiff, reads:
Charge 1, like Charge 9, does not limit the awarding of punitive damages to the counts in deceit as it should have done. Aside from that defect, Charge 9 does not state the correct rule relative to the recovery of punitive damages in an action for deceit. The rule is that punitive damages may not be recovered in such an action (deceit) unless the fraud is gross, malicious, oppressive, and is committed with an intention to so injure and defraud. Southern Building & Loan Ass'n v. Bryant, 225 Ala. 527, 144 So. 367; Southern Building & Loan Ass'n v. Dinsmore, 225 Ala. 550, 144 So. 21; Boriss v. Edwards, 262 Ala. 172, 77 So. 2d 909. Charge 1 would authorize the jury to award punitive damages under the counts charging deceit without the jury finding the necessary accompanying intent on the part of the defendant to injure and defraud the plaintiff.
The error in giving a prejudicially erroneous charge is not obviated by a correct conflicting instruction. Harris v. Schmaeling, 270 Ala. 547, 120 So. 2d 731.
For the giving of plaintiff's written Charges 9 and 1, the judgment of the trial court must be reversed.
The other argued assignments of error are governed in the main by what we have said in regard to Charges 9 and 1 and hence those assignments need not be separately treated.
The judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | June 29, 1961 |
814825d0-da34-486b-bda7-e55d8509f31d | Gosa v. State | 139 So. 2d 321 | N/A | Alabama | Alabama Supreme Court | 139 So. 2d 321 (1961)
Wilmon GOSA
v.
STATE of Alabama.
6 Div. 650.
Supreme Court of Alabama.
September 28, 1961.
Rehearing Denied April 5, 1962.
*322 deGraffenried, deGraffenried & deGraffenried, Tuscaloosa, for appellant.
MacDonald Gallion, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.
COLEMAN, Justice.
This is an appeal from a judgment whereby defendant was found guilty of murder in the first degree and sentenced to death by electrocution.
The evidence tended to show that defendant killed his five-year-old daughter by stabbing her. Defendant and his wife had been divorced, remarried, and again divorced. They were living apart at the time of the homicide. Their two children, the deceased daughter and an eleven-year-old son, were living with the mother.
About 5 p. m., January 27, 1959, when it was beginning to get dark, defendant came to the front door of the mother's house. She saw defendant through glass in the door. He "was ramming at the door." The mother told the children to follow her out the back door. The girl went back in the house and the boy followed the mother who heard the girl calling. The mother went to a neighbor's house and called the police. The boy testified that he went back into the house and saw defendant running out the door and the daughter lying on the floor. On returning to the home, the mother found the daughter on her knees in the living room, dead.
The coroner testified that he went to the house about 6 p. m., found the screen door latch pulled loose and on the floor, the bedroom door had been splintered, the closet door was standing open and the jamb behind it was splintered. A blood stained butcher knife was found in the front yard. The knife belonged to the kitchen of defendant's uncle's house where defendant was living and where he ate supper about 5 p. m. on the day of the homicide. The child's body showed one stab wound, extending into the body six or seven inches. The wound severed the breast bone and went through the heart and liver into the stomach. The aorta was severed.
By order of the court dated March 2, 1959, defendant was committed to the State Hospital for the Insane at Mt. Vernon for observation. In April, 1960, the Superintendent of the Hospital and two assistants filed their report, which states in pertinent part as follows:
On the night of the homicide, and shortly thereafter, defendant wrecked his automobile and was hospitalized. A deputy sheriff testified that defendant said he was trying to get away and that he had stabbed his daughter for "revenge from his wife," and that defendant also told the deputy that defendant had been drinking rubbing alcohol, "about half a bottle," on the night of the homicide. A week or two later defendant was again hospitalized with a head injury, allegedly caused by attempted suicide.
Defendant offered evidence to show that his general reputation was good. Defendant testified concerning his military service, his marriage, his divorces and his work.
He testified that on the day he was arrested he worked, that he was worried about something, that he had been concerned about his former wife and children and had financial problems, that after work that day he went to his uncle's house, that he did not know whether he tried to eat, that he did not think he ate anything, that he did remember drinking a pint of rubbing alcohol and a pint and a half of mouthwash, and that he remembered nothing after drinking the alcohol and antiseptic until he was in a jail cell where some man asked defendant "Did you go to your daughter's funeral?"
On cross-examination, defendant testified that he did not remember anything about being at the hospital, or talking to a deputy sheriff who had testified as to a statement made by defendant, or signing his name to a statement, or making a statement, or the night his daughter met her death, or leaving his place of employment that day. In the record of the cross-examination of defendant the following appears:
Defendant argues that the court erred in overruling appellant's motion for a mistrial based on the "highly prejudicial questions or statements made by the solicitor" to the defendant.
The question objected to was not answered. The rule is that improper questions not answered are harmless. Plant v. State, 140 Ala. 52, 37 So. 159; Strickland v. State, 269 Ala. 573, 114 So. 2d 407. If the question be regarded as a statement, as appellant insists, it does not assume the existence of an independent fact as did the question in Wright v. State, 247 Ala. 180, 23 So. 2d 519, where the question tended to show defendant's conviction of a separate offense. In Bell v. State, 140 Ala. 57, 37 So. 281, 283, it was held not improper cross-examination to ask defendant's father: "Has the defendant ever been *324 crazy?", and "Is the defendant crazy now?" In Miller v. State, 21 Ala.App. 495, 109 So. 528, it was held not error to ask a witness, on cross-examination, if he had not faked sickness in order to keep from being brought to trial, where the answers were favorable to defendant and the solicitor withdrew the questions. In the case at bar, defendant was asked if he was not trying to "play crazy," in other words, to fake insanity, and the question was not answered. Defendant had elected to testify. He had placed his sanity in issue. He had repeatedly testified that he did not remember events at the time of the homicide but remembered events before and afterwards. We think it was not improper on cross-examination to ask him whether his symptoms of insanity were pretended instead of real. We are of opinion that error cannot be predicated on the denial of the motion for mistrial or on overruling the motion to exclude the question.
Counsel for defendant insist that the great preponderance of the evidence clearly established that defendant was so intoxicated that he was unable to form the intent, deliberation, or premeditation necessary to constitute murder in the first degree, and, therefore, under Easley v. State, 246 Ala. 359, 20 So. 2d 519, it is our duty to reverse on the ground that the great weight of the evidence goes to show that the punishment is excessive. We are of opinion that the evidence of drunkenness in this case was sufficient to make a question for the jury as to whether defendant was so intoxicated as to be incapable of forming a specific intent essential to a malicious killing so as to reduce the killing to manslaughter or murder in the second degree. Helms v. State, 254 Ala. 14, 47 So. 2d 276.
Assignment 19 is predicated on an exception to the court's oral charge and takes the point that the part of the oral charge excepted to failed to instruct that drunkenness may reduce the degree of homicide. We are of opinion that the deficiency in the oral charge was supplied by Charges 27, 28, 28A, 39, and 41, and perhaps others, which were given at defendant's request, and that Assignment 19 is not well taken.
Assignments 23 and 24 are based on an exception to a part of the oral charge wherein the court instructed the jury that if the facts were like the State claimed, then a verdict of murder in the first degree would be justified. The defendant argues that the part of the charge excepted to "is misleading in that it seems to eliminate the defense of insanity or intoxication to the charge of murder."
The rule is well established that where a portion of the oral charge is erroneous, the whole charge may be looked to and the entire charge must be construed together to see if there be reversible error. Wright v. State, 269 Ala. 131, 111 So. 2d 596. Looking to the entire charge here, we find that the portion here excepted to followed statements wherein the court outlined separately the respective contentions of the State and of the defendant. After stating the acts which the State claimed defendant had done, the court said to the jury, inter alia, "And the State claims that he did that after premeditation and deliberation." The court had further stated the contention of defendant, inter alia, "that his mind had become weakened through disease * * * that he got this rubbing alcohol and drank it, and that he did not realize the nature of the act * * * that he was so far affected by his diseased mind that he did not realize that he was doing an act of that kind * * *." On consideration of the entire charge we are of opinion that the portion of the charge excepted to did not eliminate the defense of insanity or intoxication and that the exception is not well taken.
Refused Charges 16 and 21 are substantially the same as Charge Y2 which was held bad in Smith v. State, 182 Ala. 38, 62 So. 184, and were correctly refused.
*325 Charge 20 was correctly refused. See Charges 1 and 4 which were held bad in Braham v. State, 143 Ala. 28, 38 So. 919.
Charges 24 and 43, if correct statements of the law, were covered by the oral charge and their refusal was not error.
Charge 25 is bad and was correctly refused. See Charge 2 in Porter v. State, 140 Ala. 87, 37 So. 81.
Charge 26 is bad and was correctly refused. Reynolds v. State, 154 Ala. 14, 45 So. 894; French v. State, 25 Ala.App. 53, 141 So. 713.
Refused Charges 30, 31, and 32 recite as follows:
Charge 30 was held bad in Ellis v. State, 246 Ala. 300, 20 So. 2d 512, and was correctly refused.
Charge 31 is identical with Charge 30 except that Charge 31 applies to manslaughter in the first degree. Charge 30 was held good in Heninburg v. State, 151 Ala. 26, 43 So. 959, and Hill v. State, 9 Ala. App. 7, 64 So. 163, and later held bad in Cagle v. State, 211 Ala. 346, 100 So. 318, and Ellis v. State, supra. Charge 30 was held bad because it permits drunkenness to reduce homicide to manslaughter in the second degree, whereas the correct rule in this jurisdiction is that drunkenness may reduce the degree of the homicide from murder to manslaughter but is no defense as to either degree of manslaughter; Cagle v. State, supra; Laws v. State, 144 Ala. 118, 42 So. 40. Charge 31, however, does not contain this fault. We are nevertheless of opinion that Charge 31 was refused without error because it is misleading.
Charge 31 declares that defendant cannot be convicted of any offense higher than manslaughter in the first degree if he was incapable of "forming the purpose" to do a voluntary act. The words "forming the purpose" are misleading. Purpose and design are synonymous; Webster's New International Dictionary, 1925, page 1739; Roush v. Patton, 30 Ohio App. 328, 165 N.E. 363; and "forming the purpose" is equivalent to "forming the design." Charge 31 in effect charges that if defendant was incapable of forming the design to do a voluntary act, he cannot be convicted of murder in the second degree which is an offense higher than manslaughter in the first degree.
In Wilson v. State, 128 Ala. 17, 29 So. 569, this court held it was not error to refuse the following charge, to wit:
The term "forming the purpose" is subject to the same criticism. The jury might be led to believe that defendant could not be convicted of murder in the second degree unless he was capable of premeditation, and, therefore, refusal of Charge 31 was not error.
We find no fault in Charge 32 but its refusal was not error because it was fairly covered by Given Charge 41.
Charge 36 is bad and was correctly refused. Cagle v. State, supra; Ellis v. State, supra.
Charge 40 was fairly covered by the oral charge.
Charge 42 recites as follows:
The words "form a design" render Charge 42 misleading for the same reason that Charge 31 is misleading. Wilson v. State, supra; Davis v. State, 209 Ala. 409, 96 So. 187.
As is required of us, we have carefully examined the entire record and are of opinion that reversible error does not appear. It follows that the judgment appealed from is due to be and is affirmed.
Affirmed.
All the Justices concur. | September 28, 1961 |
f2b537c1-5adb-49a1-89fa-853746d54c03 | Orso v. Cater | 133 So. 2d 864 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 864 (1961)
Z. C. ORSO, Jr.
v.
J. B. CATER et al.
1 Div. 927.
Supreme Court of Alabama.
June 29, 1961.
Rehearing Denied October 26, 1961.
*865 Garet Van Antwerp, III, Van Antwerp & Rector, Mobile, for appellant.
Grady W. Hurst, Jr., Chatom, for appellees.
MERRILL, Justice.
This appeal is from a final decree holding complainants to be the owners of certain described lands and ordering respondent to pay $213.04 as damages for trespass and cutting timber on the lands.
The bill of complaint prayed that an injunction issue against appellant, restraining him from cutting or removing any timber from the lands, and prayed that title to the lands be declared to be in complainants, that appellant's deed be removed as a cloud on title of appellees, and for general relief.
And injunction was issued when the bill was filed, but no motion was made to dissolve. Demurrer to the bill having been overruled, an appeal was taken to this court. The only grounds of demurrer argued in brief on that appeal were that the lands were not sufficiently described in the bill. We affirmed the decree overruling the demurrer. 268 Ala. 130, 105 So. 2d 108.
The case was then tried on the merits and the decree was in favor of the complainants.
The complainants are J. B. Cater, who claims a life interest in the lands, and his son, J. F. Cater, who claims the fee, subject to his father's life estate.
The lands in question were patented in 1901 to Thomas Bradford, who died around 1911. His heirs lived on the land or nearby. J. B. Cater, 90 years of age, testified that William Bradford, a son of Thomas Bradford, had borrowed $100 from him to pay a fine, and finally, between 1911 and 1913, William Bradford and all the other *866 heirs of Thomas Bradford executed a deed to the property and delivered it to him. He testified that the deed was never recorded and was lost. His safe at his store was burglarized in 1916 and his store building burned in 1934, and he kept his papers at the store.
J. B. Cater began assessing and paying taxes on the lands in 1914, and he or his sons have continued to pay the taxes since that time. In 1926, J. B. Cater deeded the property to his wife, and when she died in 1946, her title vested in her sons, J. F. and W. F. Cater, subject to her husband's life estate. W. F. Cater later conveyed all of his interest to his brother, J. F. Cater.
The respondent, Orso, secured a deed from William Bradford and the other heirs of Thomas Bradford in January, 1957. He immediately went upon the land and started cutting timber. The original bill was filed and he was enjoined from cutting the timber.
At trial, complainants claimed title under two theories, first, the lost deed executed in 1913 by the Bradford heirs, and second, exclusive assessment and payment of taxes and possession of the land from 1914 to the date of the suit was filed in 1957.
Appellant defendant by denying the lost deed, denying the possession by appellees and claimed to be an innocent purchaser for value. The trial court found the issues in favor of complainants. Counsel for appellant on this appeal did not participate in the trial in circuit court.
Much discussion is made in brief of the lost deed, but we lay aside that question, because the decision here can be rested on the second theory advanced by appellees.
The evidence is without dispute that William Bradford stayed on the land during most of the time from 1913 until 1957. He was away two years in 1916 and 1917 when he went to Ohio, but when he returned he moved back on the property.
The main question in the case is the status of William Bradford's occupancy of the land. The appellant contends that Bradford owned the land or a part of it and his occupancy was the occupancy of all the heirs of Thomas Bradford. Appellees contend that his occupancy was that of a tenant and their evidence tends to show that they have assessed and paid taxes on the land for 45 consecutive years preceding the trial; that all the Bradford heirs moved off the property except William, who remained as a tenant; that J. B. Cater cut timber off the land on numerous occasions and had it surveyed twice; he gave a mortgage on it in 1920, deeded it to his wife in 1926, posted the land during 1950, gave William Bradford permission to move part of the house he was living in off the land, leased hunting rights in 1956, leased a boat landing, and offered several witnesses who testified that William Bradford had told them the land was Mr. Cater's and that he was living there with Mr. Cater's permission. It was also shown that the land was reputed in the community to belong to the Caters.
Appellant produced witnesses showing that the land was known as the Bradford land, that they used boats by permission of William Bradford, got hunting and fishing permission from William Bradford; that William Bradford occupied and farmed part of the land for over 20 years, kept a few head of stock on it, and they did not know the Caters claimed the land. Some relatives of William Bradford testified on each side, but William Bradford did not testify although the testimony showed that he was living in Mobile at the time of trial.
Whether William Bradford was a tenant of the Caters was a question of fact and it was resolved in favor of appellees by the court, after seeing and hearing more than 32 witnesses testify. Applying the usual rule in such cases, the equity court's conclusion on the facts has the force and effect of a jury verdict. We see no plain or palpable error in the decision *867 on the question of fact. Spradling v. May, 259 Ala. 10, 65 So. 2d 494.
But appellant argues that appellees cannot claim adverse possession under the statute because they have no color of title if the alleged lost deed is not recognized. Assuming, arguendo, that this be correct, complainants did have color of title from the deed of J. B. Cater to his wife, which was executed and recorded in 1926. They had paid taxes from 1914 to 1957, or 31 years after color of title was recorded and before suit was filed. This is sufficient to support a claim of adverse possession under Tit. 7, § 828, Code 1940.
It is elementary that, as between landlord and tenant, possession of the tenant is possession of the landlord. Stephens v. Stark, 232 Ala. 485, 168 So. 873. Since William Bradford's possession was that of the Caters, it could not be the possession of the heirs of Thomas Bradford. Therefore, we have the Caters in possession of the lands for 43 years and they were the only people listing and paying taxes on the lands for that period.
The rule of prescription also applies. For more than twenty years prior to appellant's claim, appellees had been in possession without recognition of right or admission of liability in anyone else. This operates as an absolute rule of repose. Morris v. Yancey, 267 Ala. 657, 104 So. 2d 553, and cases there cited.
We mention briefly appellant's defense that he was an innocent purchaser for value when he secured the deed from the Bradford heirs in 1957. We have held that to constitute one a bona fide purchaser without notice and entitle him to the protection against a prior equity or conveyance, it is essential (1) that he is the purchaser of the legal as distinguished from an equitable title; (2) that he purchased the same in good faith; (3) that he parted with value as a consideration therefor by paying money or other thing of value, assuming a liability or incurring an injury; (4) that he had no notice, and knew no fact sufficient to put him on inquiry as to complainant's equity, either at the time of his purchase, or at or before the time he paid the purchase-money, or otherwise parted with such value. Holgerson v. Gard, 257 Ala. 579, 60 So. 2d 427, 33 A.L. R.2d 1315; Larkins v. Howard, 252 Ala. 9, 39 So. 2d 224, 7 A.L.R.2d 541.
According to the testimony of several witnesses, the property in question was worth between $5,000 and $6,000. Appellant said he paid $375 for his deed while one witness, William Bradford's daughter, with whom he lived, testified that William Bradford did not receive any money for his deed to appellant. It was questionable that appellant was a purchaser for value.
One of appellant's witnesses testified on cross-examination that appellant paid her and her husband $75 to sign the deed and said he was going to have to take the matter to court. This, with other circumstances, would indicate that the purchase was not made in good faith. Leslie v. Click, 221 Ala. 163, 128 So. 170, 172.
The other circumstances were the exclusive payment of taxes by the Caters for 43 years, their recorded deeds and mortgages to the property, the evidence of previous timber cuttings from the land, and the community reputation of the Cater ownership. We said in Leslie v. Click, supra:
Appellant raises the question that appellees were not in peaceable possession *868 because the bill showed appellant was cutting timber on the land; and the statute, Tit. 7, § 1109, Code 1940, requires that the party filing the bill be in peaceable possession. It is true that the complainant cannot recover under the statute unless his proof shows his peaceable possession, as contradistinguished from a contested, disputed or scrambling possession. Motley v. Crumpton, 265 Ala. 565, 93 So. 2d 413; McGowin v. Felts, 263 Ala. 504, 83 So. 2d 228; 16 Ala.Dig., Quieting Title.
But the jurisdiction of the equity court does not depend upon Tit. 7, § 1109, to entertain this suit. In addition to the allegations supporting the injunction and those seeking the quieting of title, there was the independent equity involving the removal of appellant's deed as a cloud on appellees' title.
Having decided that appellees have title, we apply Tit. 7, § 86, Code 1940, which provides:
Under this statute, appellees had possession and appellant was a trespasser.
This court is committed to the equitable right of injunction by the owner of land in possession when the trespass consists in the destruction of the substance of a material portion of that which is its chief value, or trespass is of a continuous or repeated nature, so that actions at law would be inadequate. Green v. Mutual Steel Co., 268 Ala. 648, 108 So. 2d 837; Lewis v. Hicks, 264 Ala. 440, 87 So. 2d 867, 60 A.L.R.2d 307.
Also, if one is in possession of land claiming title, he may usually maintain an injunction to prevent another not in possession from entering upon it and destroying its substance or erecting a permanent structure upon it, or committing continuous trespasses, without conceding in him possession by reason of such acts of trespass so as to require complainant to sue for possession as a condition to relief. Birmingham Trust & Savings Bank v. Mason, 222 Ala. 38, 130 So. 559; Acker v. Green, 216 Ala. 445, 113 So. 411.
In Camp v. Conner, 205 Ala. 468, 88 So. 578, a bill for injunction was filed by parties who had been in possession of property for 35 to 40 years against a party who had secured a deed to the property from one who had not owned it, and had entered on the property, cutting trees and doing irreparable injury. The court held there was equity in the bill, that complainants owned the land, the defendants had no interest in or right to the land, and possession should be restored to the complainants. Such is the effect of the holding in the instant case.
Appellant argues that the land is not correctly described. There is no argument as to the land which is claimed by appelleesthe property allegedly misdescribed is an exception which appellees do not claim. We think the property is sufficiently described in the decree to enable an officer executing the decree to locate the land involved without having to exercise discretion in the matter. Puryear v. Smith, 233 Ala. 505, 173 So. 17; Orso v. Cater, 268 Ala. 130, 105 So. 2d 108.
Assignments of error 26 through 30 cannot be considered because they are too general. We illustrate by quoting No. 26:
"The Court erred in sustaining the objections of the Appellees (Complainants below) to testimony sought to be offered by Appellant (Respondent below) that William Bradford, from whom Appellant acquired an interest in the lands in question, was claiming to own said lands or an interest therein, at the time said Bradford executed his deed, and prior thereto." *869 Such an assignment of error does not state concisely in what the error consists. Errors assigned in this way will not be considered by the court. Jackson Lumber Co. v. Butler, 244 Ala. 348, 13 So. 2d 294; Thompson v. State, 267 Ala. 22, 99 So. 2d 198. Supreme Court Rule 1. Furthermore, there was no citation in the assignment of error of the transcript page on which the alleged error could be found. Brooks v. Everett, Ala., 124 So.2d 105[6]. This disposes of all the argued assignments of error.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | June 29, 1961 |
ed9f8e84-5527-4623-90e3-88afd35e21a6 | VALLEY HEAT., COOL. & ELEC. CO. v. Alabama Gas Corp. | 237 So. 2d 470 | N/A | Alabama | Alabama Supreme Court | 237 So. 2d 470 (1970)
VALLEY HEATING, COOLING & ELECTRIC CO., Inc., et al.
v.
ALABAMA GAS CORPORATION, a Corporation.
6 Div. 754.
Supreme Court of Alabama.
June 18, 1970.
Rehearing Denied July 30, 1970.
*471 John W. Cooper, Birmingham, for appellants.
Douglas Arant, Thad G. Long, James P. Alexander, Birmingham, for appellee.
MERRILL, Justice.
This is an appeal from an interlocutory decree denying appellants' "application for temporary injunction, or injunction pendente lite," by the circuit court.
Appellants are five dealers who sell and install electric and gas air conditioners, furnaces and other appliances. Their suit was filed under two of our anti-monopoly statutes. Tit. 7, § 124, provides:
Title 57, § 108, provides:
The bill of complaint requested that appellee be enjoined:
A hearing was had on September 9, 1969, at which arguments were heard and the cause was submitted by complainants on the verified bill and affidavits and by respondent on demurrer, verified answer, amendment to demurrer and affidavits. The decree denying the temporary injunction was entered September 18, 1969.
Appellants' first assignment of error is that the decree "is contrary to the law in the case," and assignment of error three is that the decree "is contrary to the law and the facts in the case." Assignment 2 charges that the "order of the court * * * is contrary to the admitted facts in the case."
These assignments of error are the same as assignments 1, 2 and 3 in Smith v. McCain Boiler and Engineering Co., Inc., 284 Ala. 618, 227 So. 2d 131, except that assignment 2 there used the term "contrary to the evidence in the case" and here it was "contrary to the admitted facts in the case." There is no material difference in the two expressions when applied to assignments of error because both generally describe the evidence in the case. In the Smith case, supra, also in equity, we held that assignments of error of this type are "without merit and present(s) nothing for review." Other equity cases so holding are Vickers v. Vickers, 273 Ala. 645, 144 So. 2d 8, and Thompson v. State, 267 Ala. 22, 99 So. 2d 198; Taggart v. Weinacker's, Inc., 283 Ala. 171, 214 So. 2d 913.
Assignment of error 4 is not argued in brief and is thereby waived. Supreme Court Rule 9; Russell v. Crenshaw, 283 Ala. 59, 214 So. 2d 333.
Assignment 5 charges that the court erred in denying the application for temporary injunction. We have approved a like assignment of error. Taggart v. Weinacker's, Inc., 283 Ala. 171, 214 So. 2d 913.
The following principles are applicable when we review a trial court's decree denying a temporary injunction:
1. Each case for injunctive relief must be considered in the light of the rule that an injunction, whether permanent or temporary, cannot, as a general rule, be sought as a matter of right, but the power to grant or refuse it rests in the sound discretion of the trial court, under the facts and circumstances of the particular case. Corte v. State, 259 Ala. 536, 67 So. 2d 782.
2. An abuse of this discretion has been defined, in a legal sense, as exceeding the bounds of reason, all the circumstances before the lower court being considered. Clayton v. State, 31 Ala.App. 106, 13 So. 2d 411.
3. To establish abuse of discretion, it is essential to show that the trial court committed a clear or palpable error, without the correction of which manifest injustice will be done. Ex parte Jones, 246 Ala. 433, 20 So. 2d 859.
4. In order to justify the issuance of a temporary injunction, the applicant must show that, in the absence of an injunction, he will suffer irreparable damage resulting from the proposed illegal and wrongful conduct of respondents. State v. Mobile & O. R. Co., 228 Ala. 533, 154 So. 91.
5. In the exercise of its discretion when a temporary injunction is requested, the court may consider and weigh the relative degree of injury or benefit to the respective parties, and in the absence of abuse of that discretion, this court will not disturb the finding made. Southern Rock Products Co., Inc. v. Self, 279 Ala. 488, 187 So. 2d 244.
6. Where there is grave doubt as to complainant's right, preliminary relief will generally be denied. Williams v. Prather, 239 Ala. 524, 196 So. 118.
*473 7. When a temporary injunction is requested, "the right of complainant must be clear and unmistakable on the law and the facts; and there must exist an urgent and paramount necessity for the issuing of the writ in order to prevent extreme or other serious damage which would ensue from withholding it." City of Decatur v. Meadors, 235 Ala. 544, 180 So. 550.
Since this case may continue to be litigated, and our concern is only with the temporary injunction, and since we do not want to influence the trial court as to its ultimate decision in the event there should be a final hearing in this matter, we do not list a full statement of the facts but only those sufficient to show that we think the trial court correctly denied the application for a temporary injunction.
The practices of appellee sought to be enjoined are not new, but have existed for a good many years. Some of them are not used by appellee alone, but are also employed by larger and stronger competitors of appellee. All the complainants except Valley Heating, Cooling and Electric Co., Inc. state that they "are unable to pinpoint any specific job that we have lost and has specifically caused the individual Complainant a specific loss." Valley said it was unable to specify but one job lost due to appellee's promotional activities and that was in the Parade of Homes "year before last." The affidavit concluded with this statement:
Appellee's evidence showed that Valley Heating had grown from a small partnership in 1959 to a company grossing over one million dollars in 1969, and on four days in August, 1969, a radio commercial apologized to the people of metropolitan Birmingham for being behind with their surveys and estimates for air conditioning.
Appellee's evidence showed that the granting of a temporary injunction would cause it serious injury through the loss of future gas revenues, loss of goodwill and possible attrition of its sales and service staffs. It also stated that it had sold many units under a liberal warranty and the granting of the temporary injunction would deprive many customers of their rights under the warranties.
Applying the law enunciated to the facts stated, we do not think the trial court abused its discretion in denying this extraordinary remedy, especially since appellee's practices were not new or novel, but had been employed for several years.
Affirmed.
LIVINGSTON, C. J., and LAWSON, HARWOOD and McCALL, JJ., concur. | June 18, 1970 |
2478a263-8f4a-444d-94b6-16b47ff21649 | Shores v. Terry | 232 So. 2d 657 | N/A | Alabama | Alabama Supreme Court | 232 So. 2d 657 (1970)
Maud P. SHORES
v.
Mary S. TERRY.
Joe F. SHORES
v.
Mary S. TERRY.
6 Div. 626, 626-A.
Supreme Court of Alabama.
March 5, 1970.
*658 Walter Cornelius, Birmingham, for appellants.
Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
HARWOOD, Justice.
Three automobiles were involved in a collision, or collisions, on the Green Springs Highway in Birmingham. All three automobiles were proceeding in a northerly direction on the four lane highway, which has a median separating the northbound lane from the southbound lane. The collision occurred around 8:35 A.M., as most users of the highway were proceeding to their work.
Mrs. Maud P. Shores was driving what we will designate as the lead automobile, with Dr. Dan Lester McKeslin's automobile following, which in turn was followed by an automobile driven by Miss Mary S. Terry.
The Terry automobile struck Dr. McKeslin's automobile in the rear which was knocked into the Shores' automobile by the force of the impact.
Thereafter, Mrs. Shores filed a suit against Miss Terry seeking damages for the alleged negligence of Miss Terry in proximately causing her claimed damages. Mr. Shores also filed suit against Miss Terry seeking damages for loss of his wife's consortium, and certain catalogued special damages.
The suits were consolidated for trial. The jury returned a verdict for the defendant in each case, and judgments were entered pursuant to the verdict. The plaintiffs' motions for new trials being overruled, appeals were perfected to this court.
In the trial below Mrs. Shores testified on direct examination that at the time of the collision she was in a line of traffic proceeding north on the highway "at a snail's pace, maybe 10 to 15 miles per hour. I don't have any idea."
"Q. Had you come to a stop?
On cross examination, Mrs. Shores testified she could not really say whether she had come to a stop or not. The automobiles in front of her were barely moving, or moving at a snail's pace because of a bottleneck condition of a curve up in front.
When Dr. McKeslin's automobile struck her automobile, it traveled ahead one or two spaces up close to, but not against, the automobile in front of hers.
After the accident, Mrs. Shores remained in her automobile. She was stunned and nauseated.
In a short while her husband arrived and drove her, in her automobile, to a hospital.
Mrs. Shores testified at length as to her hospitalization, bed rest at home in traction, and her pain and suffering since the accident. Dr. Meyer, her attending physician, also testified as to his observation and treatment of Mrs. Shores. Mr. Shores gave testimony along the same line, and as to Mrs. Shores' inability to work, either at her job or at home for some weeks after the collision. Such evidence is of no material importance in this review if the verdict of the jury, in effect finding Miss Terry free of negligence, is due to be affirmed. We therefore refrain from detailing this evidence.
For the plaintiff-appellants, Dr. McKeslin testified that at the time of the collision he was driving in the right lane. Traffic was moving along at a usual rate with the automobiles spaced pretty close. The traffic slowed as it approached a curve and he began putting on his brakes slowly. At this time he was hit from the rear "pretty hard." He was driving 15 to 20 miles per hour at the time of the impact which caused him to lose control of his automobilehe was not able to keep his foot on the brake pedel. His automobile was knocked into the Shores' automobile which was moving at about the same speed as his. Dr. McKeslin further testified he *659 had settled his claim "with the insurance companywith the defendant."
Miss Terry, the defendant below, testified that just prior to the accident she had been driving in the right lane back of Dr. McKeslin's automobile. The traffic was moving at about 15 to 20 miles per hour. The lane to her left was clear. She looked in the rear view mirror of her car, and glanced over her shoulder to the left to see if any automobiles were in the "blind spot" as she was preparing to move into the left lane. She did not know how fast Dr. McKeslin's automobile was traveling when she again looked ahead as he had hit his brakes and she had applied her brakes preparatory to turning into the left lane. Counsel for appellant have narrated Miss Terry's testimony in brief, and we quote the following portion of Miss Terry's testimony as accurately narrated in brief:
The appellants have made two assignments of error. The first is that the court erred in overruling appellants' motion for a new trial.
Under this assignment the thrust of appellants' argument relates to those grounds of the motion for a new trial asserting that the verdict is contrary to the great preponderance of the evidence; that it was the result of bias and prejudice on the part of the jury, and was a gross miscarriage of justice.
A jury verdict carries with it a presumption of correctness and when, as here, the trial judge refuses to grant a motion for a new trial, such presumption is strengthened. Pearson v. Fountain, 280 Ala. 1, 189 So. 2d 551.
A reviewing court must consider the evidence in the light most favorable to the party prevailing below. Cooper v. Watts, 280 Ala. 236, 191 So. 2d 519; The Jeffrey Mfg. Co. v. Hannah, 268 Ala. 262, 105 So. 2d 672. Where different inferences may reasonably be drawn from facts, the right of both parties in a negligence action to have a jury pass upon the question of liability is paramount. Patterson v. Seibenhener, 273 Ala. 204, 137 So. 2d 758, and authorities therein cited.
In view of the principles and presumptions above alluded to, we do not feel we would be justified in saying that the evidence, or reasonable inferences therefrom was so strong in tendencies establishing the defendant's conduct as the proximate cause of the collision, or that the plaintiff's conduct in bringing her automobile to a sudden slowing down, or stopping, under the conditions shown by defendant's testimony, was not the proximate cause of plaintiff's injuries. This being so, we are not in position to say that the verdict and judgment are palpably wrong and unjust.
Appellant's second assignment of error asserts error in the action of the court in sustaining defendant-appellee's objection to the following question propounded by the appellants to the witness Dr. McKeslin:
The objection to the above question was properly sustained. It sought to elicit an answer that would amount to nothing more than a speculative and impressionistic opinion on the part of the witness.
*660 We note that the evidence sought by the question was not in that uncertain twilight zone wherein the distinction between opinion evidence and factual evidence by a lay witness is difficult if not impossible to describe. The varying opinions in this area are often impossible of reconciliation. In fact the elder Mayfield, J., in Central of Georgia R. Co. v. Jones, 170 Ala. 611, 54 So. 509, stated:
A full review and discussion of the decisions relating to opinion evidence by a lay witness, and the impossibility of reconciling them may be found in Judge McElroy's "Law of Evidence in Alabama," Vol. 1, 2nd Ed., pp. 296-305, and we refer interested parties to this text material.
Additionally, Dr. McKeslin had testified to facts from which the jury could reasonably infer the "magnitude" of the impact. He stated in his testimony:
Thus the appellants had the full benefit of factual testimony tending to establish the opinion evidence sought by the question to which the objection was sustained. For this reason no injury probably injurious to any substantial right of the appellants could have resulted in any event from the ruling complained of in assignment of error No. 2.
Affirmed.
LIVINGSTON, C. J., and MERRILL, MADDOX and McCALL, JJ., concur. | March 5, 1970 |
86edcab1-4a46-4332-81e1-3750bbeb6b27 | Haden v. Olan Mills, Inc. | 135 So. 2d 388 | N/A | Alabama | Alabama Supreme Court | 135 So. 2d 388 (1961)
Harry H. HADEN, Commissioner of Revenue,
v.
OLAN MILLS, INC.
3 Div. 937.
Supreme Court of Alabama.
November 16, 1961.
Rehearing Denied December 21, 1961.
MacDonald Gallion, Atty. Gen., Guy Sparks, Sp. Asst. Atty. Gen., and Wm. H. Burton, Asst. Atty. Gen., for appellant.
Hunt & Thompson, Chattanooga, Tenn., and Rushton, Stakely & Johnston, Montgomery, for appellee.
LAWSON, Justice.
This is a suit by Olan Mills, Inc., a Tennessee corporation, brought in the Circuit Court of Montgomery County, in Equity, against Harry H. Haden, as Commissioner of Revenue of the State of Alabama, for a declaratory judgment as to whether the complainant is liable for the license tax required of transient or traveling photographers by § 569, Title 51, Code 1940, which reads, in pertinent part, as follows:
The contention of complainant below is that if the italicized part of § 569, supra, be construed to cover its so-called transient operations in this state, then it is invalid because it imposes an undue burden upon interstate commerce in violation of the commerce clause, Art. 1, § 8, of the Constitution of the United States.
The trial court agreed with the complainant and so decreed. Harry H. Haden, as Commissioner of Revenue of the State of Alabama, has appealed to this court.
Olan Mills, Inc., has its principal office and manufacturing plant in Chattanooga.
It has two methods of doing business in Alabama, one of which it calls its branch or permanent studio operation and the other it refers to as its road or traveling operation.
The so-called branch operation is conducted in several counties where permanent *389 studios are located. Customers are solicited from the studios and pictures are taken there. The exposed film is sent to Chattanooga where it is processed and proofs made. The proofs are then sent to the studios in Alabama from which the exposed film was received. The customer is then requested by the studio to come by to see the proofs. The order is taken at the studio and sent to Chattanooga, where the pictures are made. After the pictures are made, they are forwarded to the studio for delivery to the customer.
The so-called road or traveling operation is conducted in this state by the use of three groups of employees, all of whom are residents of Alabama but who are under the supervision and control of the principal office in Chattanooga and who have no connection with the permanent studios located in this state.
The city where Olan Mills plans to get business is first visited by a group of advance salesmen who solicit orders for photographs, collect deposits and arrange for sittings to be held at a later date at a specified hotel.
At the arranged time, a cameraman appears at the hotel where he takes pictures and collects additional deposits. The cameraman mails the exposed film to the plant at Chattanooga, where it is developed and proofs are made.
The customers are then notified from Chattanooga that the company's proof salesman will be at the same hotel on a given date. When the proof salesman arrives, he assists the customer in the selection of proofs and pictures to be ordered.
The ordered photographs when completed in Chattanooga are mailed to the customer "Collect on Delivery" if the customer has not theretofore paid the proof salesman in full, as is sometimes the case.
The facts here are in all material respects the same as those presented in the case of Graves v. State, 258 Ala. 359, 62 So. 2d 446, in so far as they relate to the so-called road or traveling operation. The record in the Graves case did not show how the branch operation was conducted, although the record in another case then before us did show that Olan Mills, Inc., did the same sort of business from fixed locations in this state.
In the Graves case, supra, which the lower court refused to follow, we held that the tax was due by Olan Mills, Inc., on its so-called transient operation in this state.
We refused to apply the rule of the "drummer cases" as reaffirmed in Nippert v. City of Richmond, 327 U.S. 416, 66 S. Ct. 586, 90 L. Ed. 760, because Olan Mills, Inc., in carrying on its transient operation in this state did much more than solicit business within this state.
In the Graves case we expressed the view that the Supreme Court of the United States had not extended the principle of the drummers' license cases to a situation where there is performed locally an essential physical act and where the license is directed solely at that local activity, and where the license is not laid on interstate transportation nor is an undue burden on it.
The opinion in the Graves case shows that liability for the license was not based on any act of the solicitors used by Olan Mills, Inc., in obtaining customers, but was based on the conduct of its photographer who moved about in this state from place to place pursuing his profession. We said that the photographer was performing some of the essentials of the art of photography in Alabama and that it was not necessary to perform all of the essentials of that art in this state to constitute one a photographer subject to license as such in Alabama.
Olan Mills, Inc., did not attempt to have the decision of this court in the Graves case, supra, reviewed by the Supreme Court of the United States.
But since the Graves case was decided, Olan Mills, Inc., has litigated the same question in several states and in each instance *390 it has been successful. The courts have struck down the license tax sought to be imposed on the theory that each of the operations of Olan Mills, Inc., within the state constituted an inseparable link in the chain of events, and that there is no separate and distinct incident in the operation of its transient operation upon which the license tax could fall. Olan Mills, Inc. v. City of Cape Girardeau, 364 Mo. 1089, 272 S.W.2d 244; Olan Mills, Inc. v. City of Nicholasville, Ky., 280 S.W.2d 522; Commonwealth of Virginia v. Olan Mills, Inc., 196 Va. 898, 86 S.E.2d 27; Olan Mills, Inc. v. City of Tallahassee, Fla., 100 So. 2d 164; cert, denied 359 U.S. 924, 79 S. Ct. 604, 3 L. Ed. 2d 627; Olan Mills v. Town of Kingstree, 236 S.C. 535, 115 S.E.2d 52.
The Supreme Court of the United States has not written to that effect in so far as we are advised. That court did deny the City of Tallahassee's petition for writ of certiorari to review the Florida court's decision and judgment in Olan Mills, Inc., v. City of Tallahassee, supra. But we do not believe that such act should be considered as an application by the Supreme Court of the United States of the drummers' license cases to the traveling operation of Olan Mills, Inc., as shown by the record before us. The Supreme Court of the United States has said that writs of certiorari are matters of grace in that court and that matters relevant to the exercise of that court's certiorari discretion frequently result in denials of writs without any consideration of the merits. The constitutional issue, it has been pointed out, may have no bearing upon the denial of the writ. Wade v. Mayo, 334 U.S. 672, 68 S. Ct. 1270, 92 L. Ed. 1647. See Philadelphia & Reading Coal & Iron Co. v. Gilbert, 245 U.S. 162, 38 S. Ct. 58, 62 L. Ed. 221.
The Florida court in Olan Mills, Inc. v. City of Tallahassee, supra [100 So. 2d 164, 165], was dealing with a municipal ordinance which levied a license not only upon photographers but upon "every person engaged in the occupation of a salesman or solicitor for any photographer, cameraman or other person engaged in the business of portrait enlarging, copying, coloring or finishing, ferotyper, or crayon artist, etc." The action of the Supreme Court of the United States in denying certiorari may well have been based on this feature of the ordinance.
As we have shown above, we feel that the conduct of the photographer in this state is a separate and distinct incident upon which the license tax falls.
We recognize that the courts of other states are not in agreement, but we are not disposed to depart from our holding in Graves v. State, supra, until the Supreme Court of the United States has expressed itself on the factual situation before us.
We feel that the so-called traveling operation of Olan Mills, Inc., is very similar to its so-called branch operation. True, in the branch operation there is a fixed location. But it sends its films back to Chattanooga to be processed and pictures are ultimately made in Chattanooga. In the socalled traveling operation there is no permanent location in this state, but on several occasions during the year the employees of Olan Mills, Inc., maintain a temporary office or studio, of a kind, in a hotel within the bounds of the city where the business is done.
We hold that the license tax required of transient or traveling photographers by § 569, Title 51, Code 1940, should be collected from Olan Mills, Inc., because of its so-called traveling operation in this state until the Supreme Court of the United States has held to the contrary.
Reversed and remanded.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | November 16, 1961 |
2f63e4ef-b814-42d8-bfdb-993b6c1bd2dd | Butler v. State | 232 So. 2d 631 | N/A | Alabama | Alabama Supreme Court | 232 So. 2d 631 (1970)
Robert BUTLER
v.
STATE of Alabama.
7 Div. 690.
Supreme Court of Alabama.
March 5, 1970.
*632 Oscar W. Adams, Jr., U. W. Clemon, Demetrius C. Newton, Birmingham, Norman C. Amaker and Jack Greenberg, New York City, for appellant.
MacDonald Gallion, Atty. Gen., and Herbert H. Henry, Asst. Atty. Gen., for the State.
McCALL, Justice.
This case was argued orally before the entire court and was submitted on several motions and on the merits for a decision.
The appellant, a Negro male of mature adult age, was indicted for the rape of an unmarried white woman twenty years of age. He was tried and convicted by a jury which fixed his punishment at death.
An appeal was entered on behalf of the appellant at the conclusion of the trial by the court ex meru moto under the Automatic Appeal Act, Act No. 249, § 10, General Acts of Alabama, Regular Session, 1943, p. 217 et seq. Therefore we will consider carefully all of the evidence, even though no lawful objection or exception may have been made thereto, in order to determine if any testimony that was seriously prejudicial to the rights of the appellant *633 was admitted, and whether the verdict of guilty is so decidedly contrary to the great weight of the evidence as to be wrong and unjust. No assignment of error is necessary to raise such questions. Tit. 15, § 389, Code of Alabama, 1940.
The evidence at the trial was that on the night of August 26, 1964, the victim was parked in an automobile with her date, a young man nineteen years of age. The location was on the hard surfaced recessed area of the wide shoulder adjoining the public highway coming off Lookout Mountain toward the city of Gadsden. It was in a heavily wooded section where there were no houses. While seated in the automobile around 11:15 p. m., four Negro men suddenly confronted the couple. One in the group of Negroes held a pistol at the neck of the young man and ordered him to get out of the automobile, which he did. As he straightened up after getting out, he was struck in the jaw and knocked across the automobile. Then he was dragged off the crest of the mountain about thirty feet where he was held subdued at pistol point, being threatened with death from time to time. The woman was dragged from the automobile by one of the men who put one arm around her mouth to muffle her cries, and the other around her waist to pull her with him. While she was resisting her captors, she tripped and fell down the embankment from where the automobile was parked. There she first was sexually assaulted by the man who dragged her from the automobile. She identified the appellant, an older man, as the one who tore her clothes from her person and struck her in the face some three times before raping her. He held her down on the ground while the first Negro sexually assaulted her. The appellant then sexually assaulted her. Following these attacks, the first assailant then sexually assaulted her a second time. After this, a third Negro man in the group raped her. After about forty-five minutes, these attacks were completed and the group of Negroes ran into the woods. The victim made her way up the mountain and walked for some distance to the home of a married couple. She appeared there crying and in a highly emotional state, asking for help. She complained to this couple of being sexually attacked. That same night, about two hours later, she was examined by a physician who obtained a specimen of secretion from the reproductive organs of the victim's person. A microscopic examination of this specimen revealed the presence of multiple male spermatozoa, as well as large quantities of blood. The woman testified that on the night of the attacks, the moon was real bright, that she could see well, and that she could see the appellant. She identified him in a police line-up two days after the rape as being the second man who ravished her on the occasion. Five or six line-ups were held with about five men in each line-up. She picked the appellant out of the last one. Her companion made a voice identification of the appellant, after the latter repeated phrases he was given to speak. He also identified the appellant by the appearance of his hands and bare chest. The appellant sought to establish by several witnesses as an alibi that on the night in question they had seen him at particular times and at places so distant from the scene that he could not have been present when the crime occurred about 11:15 p. m.
In the appellant's motion to quash the indictment and the amendments to the motion, his stated grounds are that Negroes were systematically excluded from the jury rolls and from the grand jury that indicted him on February 12, 1965, and that the said grand jury was not organized in accordance with the Supreme Court decisions, relating to Negro participation on state grand juries, all of which he contends were in violation of his constitutional rights, also that women were excluded from the grand jury and the petit jury, further, that Negroes were systematically included on the jury rolls and in the jury box of the county, and finally, that infliction of the possible death sentence upon conviction would constitute cruel and inhuman punishment. This motion was denied *634 by the court and the ruling is now before us for review.
Appellant implies by the allegations in his said motion, that the jury box must be filled with all of the qualified Negro male population in the county of twenty-one years and over. Such contention is not supported by the decisions of this court or of the courts of the United States. Fikes v. State, 263 Ala. 89, 81 So. 2d 303, rev'd on other grounds 352 U.S. 191, 77 S. Ct. 281, 1 L. Ed. 2d 246. Nor is a defendant in a criminal case entitled to demand a proportionate number of his race on the jury which tries him, nor on the venire or jury roll from which petit juries are drawn. Swain v. State, 275 Ala. 508, 156 So. 2d 368, aff'd 380 U.S. 202, 208, 85 S. Ct. 824, 13 L. Ed. 2d 759, reh. den. 381 U.S. 921, 85 S. Ct. 1528, 14 L. Ed. 2d 442.
While very decided variations in proportions of Negroes and whites on jury lists from racial proportions in the population, which are not explained and are long continued, have been held to furnish sufficient evidence of systematic exclusion of Negroes from jury service, the United States Constitution does not require an exact proportion between the percentages of Negroes in the population and of those on the jury list, nor does it require that any particular panel of jurors in a criminal trial include members of the race of the accused person. Swain v. State, supra, Akins v. State of Texas, 325 U.S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692. It is required, however, that no qualified person be excluded from jury service because of race. Norris v. Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074. "Excluded" means a systematic, purposeful non-inclusion based solely on race. Cassell v. Texas, 339 U.S. 282, 70 S. Ct. 629, 94 L. Ed. 839.
The burden of proof is on the person attacking selection procedure to show "the existence of purposeful discrimination" by the exclusion of Negroes on account of race from jury participation. Whitus v. State of Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599, Fay v. People of State of New York, 332 U.S. 261, 285, 67 S. Ct. 1613, 1626, 91 L. Ed. 2043. Purposeful discrimination may not be assumed or merely asserted. It must be proved. Swain v. State, supra. In the case at bar, there was no evidence introduced at the hearing or during the trial, that we can find from reading the record, which shows that the jury was not drawn from a fair cross section of the community, or which shows the variation, in percentages, between Negroes and whites on the jury list of the county. The motion to quash alleges that according to the 1960 Federal Census, the male population in Etowah County, twenty-one years and over, was 84.6 percent white and 15.4 percent Negro. The appellant states that the jury rolls contain less than five percent of the names of the total of the Negro males eligible for jury duty, but he neither alleges or proves anything with respect to what percent of the eligible white male population is on the jury roll, so that the variation in proportions of Negroes and whites on jury lists from racial proportions in population can be ascertained. We therefore find that the appellant failed to meet the burden of proof cast on him to establish discrimination. Swain v. State, supra, 16A C.J.S. Constitutional Law § 540, pp. 467-474. This ground of appellant's motion to quash the indictment was properly overruled. Taylor v. State, 249 Ala. 130, 30 So. 2d 256; Shine v. State, 44 Ala.App. 171, 204 So. 2d 817; 24A C.J.S. Criminal Law § 1787, p. 360.
Next appellant argues that he was deprived of due process of law and the equal protection of the law as guaranteed by the United States Constitution because women were excluded from the grand jury that indicted him and from the petit jury that tried him on April 13 and 14, 1965. This question has already been decided adversely to the appellant in our decisions of Philpot v. State, 280 Ala. 98, 190 So. 2d 291, and Beverely v. State, 281 Ala. 325, 202 So. 2d 534, which hold that a defendant *635 in a criminal case who is not a member of the group which he contends has been illegally excluded from jury service, is in no position to say that he has been denied a jury of his peers. In addition, White v. Crook, D.C., 251 F. Supp. 401, holding unconstitutional the Alabama statute excluding women from jury service, was not decided until February 17, 1966, which was after the appellant's trial and conviction. The court expressly provided in that decision that it should have no retrospective effect. Taylor v. State, 282 Ala. 673, 213 So. 2d 836; Swain v. State, Ala.Sup., 231 So. 2d 737 (decided February 5, 1970); Juelich v. United States, 5 Cir., 403 F.2d 523.
The appellant complains that the trial court abused its discretion in not granting him a continuance because of newspaper publicity given racial disturbances, and demonstrations by Negroes allegedly throughout Alabama, particularly at Selma and the counties adjoining thereto. No evidence was offered, in point of time, as to when these conditions existed, if at all, with relation to the date of appellant's trial. No evidence was offered before or at the appellant's trial, or subsequently, on motion for a new trial that the general public in Etowah County was so adverse to the Negro race that the appellant could not or did not receive a fair and impartial trial. No atmosphere of ill will, prejudice, passion, violence, harm or threats of harm, or reports thereof, local or widespread, was shown by any evidence to have existed against the appellant or his race as a result of any news publicity. The burden was on the appellant to prove to the reasonable satisfaction of the court that an impartial trial and unbiased verdict could not be reasonably expected. Riley v. State, 209 Ala. 505, 96 So. 599, Goldin v. State, 271 Ala. 678, 680, 127 So. 2d 375.
Had the appellant's attorneys sensed such a condition, they should have probed into the matter on the voir dire examination of the jury panel and of the individual jurors. Then again, when the jurors were being impaneled, the trial court evidently ascertained from them, under oath, the statutory requirements that they had no fixed opinion as to the guilt or innocence of the accused, and would render a true verdict according to the evidence. Collins v. State, 234 Ala. 197, 174 So. 296.
It is settled law that the matter of a continuance rests in the sound discretion of the trial court, and its ruling will not be disturbed unless a gross abuse of the court's prerogative is shown. Goldin v. State, supra; Smith v. State, 282 Ala. 268, 210 So. 2d 826; Hendricks v. State, 281 Ala. 376, 202 So. 2d 738; Divine v. State, 279 Ala. 291, 184 So. 2d 628, and additional cases6A Ala.Dig., Key 583, p. 76. The trial judge was an on-the-scene observer, and after reviewing the record and noting the complete candor and care which he exercised while presiding over the trial and in going about securing the appellant's rights, we will not say, without evidence, that he put the appellant to trial in an atmosphere prevalent with prejudice and bias. There is nothing in the facts of this case to show any abuse of discretion on the part of the trial court to warrant a reversal for denying the motion to continue the case.
Two of the attorneys for appellant have made separate ex parte affidavits to the effect that at the voir dire examination of prospective jurors in this case, several jurors were excused by the State on the ground that they were opposed to the death penalty. They seek to have these affidavits made part of the record or as addenda thereto and to have the court treat them as conclusive evidence of what took place on the voir dire qualification of jurors. Appellant would then have us hold that some unnamed jurors bore conscientious scruples against the death penalty and were excluded for cause from service on the jury panel. The record containing the transcript of evidence, was filed in this court on August 22, 1969. Neither the record nor the transcript of evidence contains any matter concerning *636 the voir dire examination of prospective jurors. The affidavits in question were filed on January 13, 1970, four years and nine months after the trial. This court is bound by the contents of the record. James v. State, 246 Ala. 617, 21 So. 2d 847; Taylor v. State, 249 Ala. 130, 30 So. 2d 256; Griffin v. State, 30 Ala. App. 194, 2 So. 2d 921; Lokos v. State, 278 Ala. 586, 591, 179 So. 2d 714. Ex parte affidavits of the nature in question cannot be made a part of the record and therefore cannot be considered by the court. Ragsdale v. State, 134 Ala. 24, 35, 32 So. 674; Lewis v. State, 42 Ala.App. 166, 169, 157 So. 2d 38.
The appellant argues that under Alabama law, Tit. 14, § 395, Code of Alabama, 1940, the jury has unlimited, undirected and unreviewable discretion in determining whether the death penalty shall be imposed, with no legal or uniform standards for making this determination being set forth "by statute, judicial decision, administrative or executive pronouncement," and without the accused having an opportunity to present circumstances in extenuation or mitigation, which therefore constitutes the punishment cruel and inhuman. He also attacks the single verdict procedure, whereby the jury ascertains the guilt of an accused, as well as the punishment to be imposed. The appellant contends that because of these objections § 395, supra, is unconstitutional. The statute provides as follows:
The appellant's argument is fully answered by the opinion of this court in Swain v. State, Ala.Sup., 231 So. 2d 737 (decided February 5, 1970); Seals v. State, 282 Ala. 586, 596, 213 So. 2d 645; Taylor v. State, 282 Ala. 673, 678, 213 So. 2d 836.
In Taylor v. State, supra, the court also held:
See also Boykin v. State, 281 Ala. 659, 661, 207 So. 2d 412, 414, where the court said:
This case was reversed by the Supreme Court of the United States on other grounds. See Boykin v. State, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274.
The appellant's Proposition of Law No. X is as follows:
"The failure of the trial court to allow petitioner to undertake [sic] discovery relative to the racially discriminatory imposition of the death penalty in rape cases violated petitioner's rights under the due process clauses of the Fourteenth *637 Amendment to the Constitution of the United States."
The proposition was not argued in appellant's brief. Further, there is nothing in the record in this case of a discovery proceeding either on oral examination of witnesses, or on propounding written interrogatories, or pursuant to issuance of subpoenas duces tecum, or on motions to produce documents. There is no record of a request or a motion to have subpoenas issued, nor of a court order suppressing, striking or quashing any subpoenas.
The appellant assigns as a ground of his motion for a reduction of sentence, which was overruled and denied by the trial court, that convicted Negro defendants are discriminated against by juries who impose the death penalty against them, but not against white defendants when so convicted. He has attached as part of the record a survey of rape convictions in the state which he contends shows that Alabama juries practice racial discrimination in favor of whites and against Negroes in capital sentencing for the crime of rape. The same issue raised here by the appellant was decided against him in our recent case of Swain v. State, Ala.Sup., 231 So. 2d 737 (decided February 5, 1970); Maxwell v. Bishop, 8 Cir., 398 F.2d 138.
There was no error in admitting into evidence the Astronomical Daily Calendar for August of 1964, found in the bound World Almanac Book of Facts for 1964, published by the New York World Telegram, Scripps-Howard Newspapers. Assignment of Error No. 1. The library custodian testified that the almanac was a standard book of facts and a most comprehensive source of miscellaneous information found in all libraries and many homes. This was in our opinion sufficient preliminary proof of authenticity to permit the introduction of the excerpt tendered by the state. Mobile & Birmingham R. R. v. Ladd, 92 Ala. 287, 9 So. 169; Law of Evidence in Alabama, McElroy, 2d Ed., Vol. 2, § 259.05, p. 275; 32 C.J.S. Evidence § 718, p. 1025, note 97; Tit. 7, § 413, Code of Alabama, 1940. Courts take judicial notice of things properly belonging to a standard almanac. 31 C.J.S. Evidence § 12, p. 837, note 49; 31A C.J.S. Evidence § 100, p. 148, note 55.
We do not think the court abused its discretion in permitting the prosecution to closely cross-examine the witness, Dan Jelks, on his knowledge of road routes and distances in the area of the crime, Tit. 7, § 443, Code of Alabama, 1940, and to propound leading questions to him. Tit. 7, § 444, Code of Alabama, 1940. This point was raised by Assignment of Error No. 2, but was not argued by the appellant.
There was no error (Assignment of Error No. 5) in the trial court's refusal to give appellant's requested written Charge VI, reading as follows:
The subject matter of this charge was covered by appellant's requested Charge VII which was given by the court, and the court likewise covered the law that jury verdicts must be unanimous in its oral charge. McDonald v. State, 165 Ala. 85, 51 So. 629; 6A Ala.Dig., Key 829, p. 610.
*638 The appellant's Proposition of Law No. V is that he was deprived of his constitutional rights by the admission of testimony based on a voice identification of the appellant made while he was in a line-up and without the assistance of counsel, citing United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149; Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178; Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 1199. The appellant has made no argument in his brief on this proposition or point of law. In Stovall v. Denno, supra, decided on June 12, 1967, the Supreme Court of the United States held that Wade, supra, and Gilbert, supra, affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel. In the case at bar, the line-up was held on or about August 28, 1964, and appellant's trial was had on April 13 and 14, 1965, all of which was prior to the Wade and Gilbert cases that were decided by the Supreme Court of the United States on June 12, 1967. Therefore, these decisions have no retroactive effect on this case. Johnson v. State, 282 Ala. 584, 213 So. 2d 644; Seals v. State, 282 Ala. 586, 604, 213 So. 2d 645; Embrey v. State, 283 Ala. 110, 115, 214 So. 2d 567.
The court has carefully considered the trial court's overruling and denying appellant's motion for a new trial. We likewise have considered appellant's other grounds for a reduction of sentence. All of the points so raised have been covered in this opinion. We find no error in the rulings of the trial court. We are of the further opinion that the verdict of the jury was amply supported by competent evidence and that no testimony seriously prejudicial to the rights of the appellant was admitted or that the verdict of guilty was contrary to the great weight of the evidence.
The judgment of conviction is therefore affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, MERRILL, COLEMAN, HARWOOD, BLOODWORTH, and MADDOX, JJ., concur. | March 5, 1970 |
99ab87fb-0cde-40a9-8cc1-cd5cdc16d3ad | Beasley-Bennett El. Co. v. Gulf Coast Ch. of Nec Ass'n | 134 So. 2d 427 | N/A | Alabama | Alabama Supreme Court | 134 So. 2d 427 (1961)
BEASLEY-BENNETT ELECTRIC COMPANY, Inc.
v.
GULF COAST CHAPTER OF the NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION et al.
1 Div. 931.
Supreme Court of Alabama.
November 2, 1961.
*428 Otto E. Simon of Moore, Simon & Layden, Mobile, for appellant.
Caffey, Gallalee & Caffey, Mobile, for appellees.
SIMPSON, Justice.
Appellant filed a bill in the Circuit Court in Equity of Mobile County against the appellees, enjoining respondent "from engaging in a continuing * * * conspiracy * * * for the purpose of hindering, delaying or preventing the Complainant from carrying on his lawful business by continuing acts of blacklisting, threats and intimidation * * *".
The trial court sustained the demurrer of the respondents to the bill and complainant brings this appeal.
The bill, as last amended, shows that the complainant, an Alabama corporation situated in Mobile County, is engaged in the electrical contracting business in said city, and that respondents are the Gulf Coast Chapter of the National Electrical Contractors Association, an unincorporated association, and the other respondents are electrical contractors doing business in Mobile, the latter being members of the Gulf Coast Chapter of the National Electrical Contractors Association; that the complainant was at one time a member of the Gulf Coast Chapter of said association, but that in 1956 it withdrew and refused to pay dues set by the association; that after complainant had withdrawn from the association, the respondents during the years 1957 and 1958 and up until the time of this suit did wilfully, unlawfully, and by intimidation and unlawful inducement and blacklisting, cause various contractors to refuse to do business with the complainant and to deal with them in the electrical contracting business.
We quote from the pertinent portion of the last amended bill:
Of the same substance is the following allegation:
We are at the conclusion that the trial court ruled correctly in sustaining the demurrer. As we view the bill, the charges made against the appellees of "unlawful and by intimidation" or "unlawful inducement" or "blacklisting" are mere conclusions of *429 the pleader. The complainant contends that the respondents were violating Title 14, § 54 et seq., Code 1940, which was designed to prevent unlawful interference with a lawful business "without a just cause or legal excuse". The bare allegation of the alleged wrong is not a sufficient allegation to withstand the asserted grounds of demurrer. There must be sufficient facts alleged with specificity to give adversary parties reasonable notice of what they must be prepared to meet. Woodward Iron Co. v. Marbut, 183 Ala. 310, 313-4, 62 So. 804; Ex Parte Gilbert, 253 Ala. 232, 43 So. 2d 816. Quite evidently the bill is lacking in this respect. The acts alleged in the complaint are that the respondents (not specifying which respondents) at some unspecified time in 1957, 1958, or 1959, up to February 6 when the bill was filed "called numerous construction companies", also not specified, on one or many occasions, not specified, that "the electrical contractors", unidentified, would not submit any bids to these unidentified contractors in the future. These indefinite conclusions are not sufficient. By analogy see also Singer Sewing Machine Co. v. Teasley, 198 Ala. 673, 676 (3, 7), 73 So. 969.
But these technical reasons aside, for aught appearing from the allegations of the bill, the charges against the respondents do not rise to the dignity of a violation of any law for which they could be enjoined other than by conclusions unsupported by any sufficient allegations of fact. The most that can be said for the bill, construing its allegations most strongly against complainant, is that the respondents were seeking by lawful competition to increase their own businesses by lawful means.
The principle is thus exposited: It is the policy of this state, as well as others, so far as we know, to encourage rather than suppress competition. This Court some time ago gave expression to that policy when it observed "`that competition is the life of trade has passed into a proverb of the law'". Alabama Independent Service Station Association et al. v. McDowell, Sheriff et al., 242 Ala. 424, 430, 6 So. 2d 502, 507. Citizens' Light, Heat & Power Co. v. Montamery Light & Water Power Co., 171 F. 553, 562.
As stated in 30 Am.Jur., p. 88, § 48: "Competition in business, even though carried to the extent of ruining a rival, constitutes justifiable interference in another's business relations, and is not actionable, so long as it is carried on in furtherance of one's own interests". Also see 30 Am.Jur., pp. 83-84, § 41.
This principle seems to have been upheld in this jurisdiction as well as in others. In Denton v. Ala. Cotton Co-op., 30 Ala.App. 429, 432, 7 So. 2d 504, 507, the Court of Appeals, speaking through the late, lamented Judge Rice, stated the apposite principle:
And this Court observed earlier in City Council of Montgomery v. Kelly, 142 Ala. 552, 559, 38 So. 67, 69, 70 L.R.A. 209:
See also Alabama Independent Service Station Ass'n v. McDowell, supra; 15 C.J.S. Conspiracy § 12(e), p. 1016; Deon v. Kirby Lumber Co., 162 La. 671, 111 So. 55, 52 A.L.R. 1023, 9 A.L.R.2d 260.
We have perhaps written more than the brief of appellant should invite, since we may have transgressed some of our rules. The appellant's assignments of error apply equally to three orders of the trial court sustaining demurrer to three amendments to the bill of complaint. There are three amended bills of complaint and three decress sustaining demurrers thereto, but appellant's brief does not specify the precise error relied on in the assignments of error, merely stating that "the court erred in sustaining the demurrer to the amended bill of complaint", etc. Such an assignment of error is violative of the principle that the assignment must specify the precise error relied on. "Precision is of the essence of this rule of practice" and without it review will not be undertaken. Wetzel v. Hobbs, 249 Ala. 434, 31 So. 2d 639.
Where there are several rulings to any one of which the language of the assignment might equally apply, the assignment manifestly fails to designate the precise error so as to be reviewed. "If the assignment of error is uncertain and indefinite as to the particular error complained of, this court will decline to consider it." Provident Life & Accident Ins. Co. of Chattanooga, Tenn. v. Priest, 212 Ala. 576, 578(2), 103 So. 678, 680. Other cases dealing with the pertinent subject are: Kinnon v. Louisville & N Railroad, 187 Ala. 480, 482, 65 So. 397; Globe & Rutgers v. Jones, 213 Ala. 656, 657, 106 So. 172; Giardina v. Stagg, 214 Ala. 301, 302, 107 So. 857; Murphy v. Pickle, 264 Ala. 362, 87 So. 2d 844.
In view, however, of the earnest argument made by appellant in brief, with reference to the decree overruling the bill as last amended, we have exercised our discretion and considered it, but entertain the view that the lower court ruled correctly in sustaining the demurrer.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | November 2, 1961 |
d1866be4-e161-44af-b493-99d6b7d6eb27 | State v. Harris | 141 So. 2d 175 | N/A | Alabama | Alabama Supreme Court | 141 So. 2d 175 (1962)
STATE of Alabama ex rel. Huston CARTER
v.
Ben H. HARRIS, as Chairman, et al., etc.
1 Div. 920.
Supreme Court of Alabama.
September 14, 1961.
Rehearing Denied May 10, 1962.
Wm. H. McDermott, Mobile, for appellant.
Fred G. Collins and Thos. M. Galloway, Mobile, for appellees.
Gessner T. McCorvey, Chas. B. Bailey, Jr., McCorvey, Turner, Johnstone, Adams & May, Caffey, Gallalee & Caffey, Ralph G. Holberg, Jr., Wm. R. Lauten and Ralph Kennamer, Mobile, amici curiae in behalf of appellees on rehearing.
SIMPSON, Justice.
This is an appeal from a judgment of the Circuit Court of Mobile County in an *176 action in the nature of quo warranto filed in the name of the State on the relation of Huston Carter, appellant (see Code 1940, Title 7, § 1136) holding Act No. 631, 1959 Acts of Alabama, Vol. 2, p. 1535 constitutional and valid as against the proscriptions of §§ 104(6), (17), (18), and 105, Article 4 of the Constitution of 1901.
Trial was had upon an agreed statement of facts. The Act under attack is local applying to the City of Mobile.
The most serious challenge to the Act is that it violates subdivision 6 of § 104 of the Constitution which prohibits the Legislature from passing any special, private, or local law granting a charter to any corporation, association, or individual. In our view, the argument supporting this challenge is well taken and we will pretermit discussing the other constitutional proscriptions argued as invalidating the Act.
Said Act 631 was obviously intended to supplant Chapter 2, Title 25, of the Code of Alabama of 1940 by authorizing the creation of another agency should it be deemed advisable by the governing body of the City of Mobile, to carry out substantially the duties and responsibilities formerly exercised by the Mobile Housing Board, a public corporation created and established pursuant to the provisions of said Chapter 2 of Title 25, Code. The Mobile Housing Board created pursuant to the authority contained in Chapter 2 as amended is a public body and body corporate and politic. Section 7, Title 25, supra. The Mobile Urban Renewal Agency, created under the provisions of Act 631, is likewise a public corporation, but a local act applying to the City of Mobile alone.
As stated, subsection 6 of § 104 prohibits the passage of any special, private or local law "granting a charter to any corporation, association, or individual". It is contended by appellant that Act 631 does grant a charter to a corporation and is admittedly a local law applying only to the City of Mobile. Appellees take the position first that the constitutional prohibition does not apply to a corporation of the type here involved, and in the second place that Act No. 631 does not grant a charter to the corporation designated as Mobile Urban Renewal Agency.
There is no merit in the suggestion that the constitutional prohibition does not apply to corporations such as the one designated in Act 631. The subsection says any corporation, which necessarily includes public as well as private corporations. It has been in terms applied to a municipal corporation. State ex rel. Britton v. Harris, 259 Ala. 368, 373, 67 So. 2d 26. According to the accepted classification of corporations, they are first divided into public and private. Municipal corporations are public corporations. Black's Law Dict., 1891 Ed. Act 631 itself declares the Mobile Urban Renewal Agency, when created, to be a "public body politic". The first contention of appellee, therefore, is without merit.
Does the Act "grant a charter" to the corporation in violation of said subsection (6)? An act of the legislative department of government under which a corporation is created becomes a part of the charter of the corporation. State ex rel. Britton v. Harris, supra; Trailway Oil Co. v. City of Mobile, 271 Ala. 218, 122 So. 2d 757. Otherwise stated, the charter of a corporation consists of its articles of incorporation taken in connection with the law under which it was organized; or a charter is an act of a legislature whereby a corporation is created and its franchise is defined. See Black's Law Dict., Words and Phrases.
Section 1 of Act No. 631 reads:
Clearly the Act authorizes the creation of the Mobile Urban Renewal Agency by name. Granted that such corporation comes into existence only at the instance of the city governing body, it may only exist by virtue of the statute. Its franchises, its powers are either conferred by the statute or by other statutes adopted by reference. As stated, the Act is clearly a local law. And as also stated, creation of and granting of a charter to a corporation cannot be accomplished by local law. Const. § 104(6).
As we interpret Act 631, the effect of it is to do away with an existing corporate body, created by general law, and authorize the creation of (create) an entirely new one in its stead, by local law. It is provided that after formation of the Urban Renewal Agency, the existing municipal housing authority (or Housing Board) of the City of Mobile "shall no longer have power to plan, undertake, or carry out any redevelopment project", and that the Mobile Urban Renewal Agency "shall thereafter have sole power to plan", etc.
In State ex rel. Britton v. Harris, supra [259 Ala. 368, 67 So. 2d 30], we said:
These observations, it seems to us, apply with equal force to the corporate agency here attempted to be created by local law. For, as we have said, the inhibition prescribed in subsection (6), § 104 is the granting of a charter to any corporation.
We perforce conclude that Act No. 631 is void as in violation of § 104(6) of the Constitution.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.
SIMPSON, Justice.
We have given studious attention to the briefs submitted in support of the application for rehearing. Able counsel for appellees and for interested parties, agencies, associations and individuals asked to be heard in the capacity of amici curiae, have presented forceful and persuasive argument to the effect that the Mobile Urban Renewal Agency is a public corporation and as such is not within the provision of § 104 of the Constitution prohibiting a local or special act granting a charter to a corporation. It is urged on rehearing, as it was on original submission, that the words "any corporation" mean private business corporations. On original submission no Alabama decision was called to our attention sustentative of this view and none has since been brought forward. Counsel have drawn analogy between corporations or commissions set up as adjuncts to county governing bodies and those set up as ancillary to municipal governing bodies. One of the briefs collects local acts passed between the year 1907 and the present time, creating public corporations or commissions. Few of these acts were ever judicially tested and the repeated employment of local legislation to create such agencies manifests, it is argued, a legislative interpretation of §§ 104 and 105 as inapplicable to such statutes as that here involved. Most of such local acts brought to our attention related to county rather than municipal agencies.
*178 One of the acts (Local Acts 1927, p. 249) created the Morgan County Court House Commission. This act was attacked primarily as offensive to § 105 of the Constitution. The validity of this local act was affirmed by this Court in State ex rel. Day v. Bowles, 217 Ala. 458, 116 So. 662.
In the Bowles case, this Court observed:
In Montgomery v. City of Athens, 229 Ala. 149, 155 So. 551, we said:
And in Askew v. Hale County, 54 Ala. 639, we said that a county is not a corporation proper, but a quasi corporation. In the Athens case, we pointed out that a municipal corporation, strictly speaking, exercised not only governmental powers, but also proprietary or business powers as to which it was subject to the same rules of law applicable to persons or ordinary business corporations engaged in like business.
In pointing out the distinction between municipal corporations and county governing bodies, we have had only the purpose of answering the argument advanced by the champions of the local act here involved. We are not to be understood as holding or suggesting that the mere fact of county application of a special or local statute, rather than municipal application is the deciding factor on the question of validity, vel non, of such a statute. Nor do we pass or intimate judgment upon those cited to us and which have not been judicially tested.
Some cases have been called to our attention which have upheld special statutes creating state corporationssuch as Alabama State Bridge Corporation, The Department of Docks and Terminals of the State, and the likeas not offending other constitutional prohibitions than §§ 104 and 105. The State, itself, is not embraced within these limitary provisions. On the contrary, it is constitutionally permitted to create *179 corporations or other agencies to act for and on behalf of the State when authorized by the legislature. In brief, decisions from many other states have been cited as authority for the proposition that a public corporation is not comprehended by § 104(6). That the Mobile Urban Renewal Agency is a public corporation we readily concede, but we do not regard the foreign cases relied upon as lending support to the proposition that this agency is without the prohibition of § 104(6). Several of the cited cases deal with corporations or agencies created to serve areas other than cities or towns, such as a levee district, a state hospital for the insane, a reclamation district, a city park district (created under specific constitutional permit), library boards, toll roads and toll road commissions, a state office building commission, a medical college association, authorizing a county or school district to issue bonds, a metropolitan authority for several counties, among others. This class of cases is in harmony with our own decisions dealing with agencies or corporations generally characterized as state agencies, rendering state-wide services, or to a segment of the public at large, albeit localized as to situs. Some other of the cases deal with agencies to perform primarily local services in a city or town. These have been sustained as falling into the category of municipal corporations and not within the purview of constitutional provisions prohibiting local or special acts creating or chartering corporations generally. None of the cases involves the situation here before us, that is, constitutional proscriptions against local or special laws incorporating or amending the charter of a municipal corporation, or granting a charter to any corporation, and a local act chartering a corporation to perform a purely municipal function.
While on original consideration we confined ourselves to the single question of violation of § 104(6), we are clear to the conclusion that we might well have condemned Act No. 631 upon a different ground of attack made on the trial and on appeal. Not only does the local act grant a charter to the corporation created (or authorized to be created by the city governing body), another inescapable effect of the act is to alter or amend the charter of the City of Mobile by granting to it the added power of creating a corporation with enlarged powers, to issue bonds, etc. Treating Act No. 631 as altering the charter of the City of Mobile it must necessarily fall under the proscription of § 104(18).
It is always with reluctance that we strike down any statute enacted by the legislature. We have uniformly observed the rule that every doubt or intendment be resolved in favor of the validity of a statute. There should be borne in mind the reason underlying the adoption of §§ 104 and 105 of the Constitution. Prior to the Constitution of 1901 it was the common practice to pass local or special laws to accomplish the purposes listed in § 104. Cities and towns were incorporated by local laws. All manner of corporations and associations were created by special laws. There was of necessity a lack of uniformity. There was as well a burden resting upon the legislature. It was to remove these evils that § 104 was framed. To sustain Act No. 631 in its present formnot in anywise to reflect upon its meritswould be to throw open the door to an uncalculated deluge of local legislation. For one thing, any municipality now operating or desiring to operate under what constitutes Title 25 of the Code might, ignoring the general laws relating to housing authorities and urban renewal agencies, obtain special legislation to accomplish its peculiar desires or convenience. Anyone familiar with the legislative processes must perforce recognize the different attitude of members of the legislature in considering laws of general application and those of purely local operation. In the one, each and every member has an interest; in the other what is termed legislative courtesy takes the place of composite deliberation. In matters such as that *180 here involved, uniformity, rather than multiple difference, commends itself.
Although we are reluctant to strike down the act, we are at the conclusion that our original opinion should be adhered to.
Rehearing overruled.
GOODWYN, MERRILL and COLEMAN, JJ., concur. | September 14, 1961 |
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