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d7cfa35e-ebad-4f3b-a7fe-8497a6493f0e | Danford v. Dupree | 132 So. 2d 734 | N/A | Alabama | Alabama Supreme Court | 132 So. 2d 734 (1961)
Myrtle Irene DANFORD
v.
Bailey DUPREE.
4 Div. 37.
Supreme Court of Alabama.
June 29, 1961.
Rehearing Denied September 14, 1961.
J. Hubert Farmer, Dothan, for appellant.
Lee & McInish, Dothan, for appellee.
SIMPSON, Justice.
This is an appeal from a decree rendered by the Houston County Circuit Court in a habeas corpus proceeding instituted by appellant against appellee seeking the custody of her minor child, James Earl Kelley, born out of wedlock, custody of which appellant had voluntarily reliquished to the appellee when the child was ten and one-half months old. The child is now about three and onehalf years of age and petitioner has since married a man who is gainfully employed, who owns a comfortable three bedroom home in the city of Dothan, with modern conveniences, ect., with whom appellant is living.
When the case came on for hearing, and after the testimony of the appellant on cross examination, the following proceedings occurred which resulted in this appeal:
No further testimony was taken and the court entered a decree declaring that appellant was not a fit and proper person to have the custody of the minor child, and awarded custody to appellee and his wife. From this decree appellant appeals. Assignments of error argued are to the effect that the trial court concluded the hearing without permitting appellant by her witnesses to adequately present all of the facts pertinent to the issues in the case. We are at the conclusion that the assignments are well taken.
The rules governing in such a case have many times been stated and need little repetition here. While the best interest of an illegitimate child is the important factor, the mother of such child has a superior claim as against the world to its custody if she is fit and proper. Griggs v. Barnes, 262 Ala. 357, 362, 78 So. 2d 910, citing with approval In Guardianship of Smith (Howes v. Cohen), Cal., 255 P.2d 761, 762.
True, the parent may forfeit the right to custody of the child by her conduct and the relinquishment of such custody to another and continued acquiescence therein should be, and is, a factor to be considered in determining custody. Blevins v. Underwood, 232 Ala. 100, 166 So. 801.
But no agreement by the parent for the custody of a child is binding on the court, nor is the question of custody ever res judicata. Horton v. Gilmer, 266 Ala. 124, 94 So. 2d 393; Jackson v. Farmer, 247 Ala. 298, 24 So. 2d 130.
And although the testimony might disclose "one or more acts of each parent, which if considered alone would stamp each of them as an improper person to have the custody of this child, * * * the right of a parent, the mother or the father, to the custody and control of a child must not be concluded by one unbecoming or immoral act". Whitten v. Whitten, 214 Ala. 653, 654, 108 So. 751, 752.
In dealing with such a delicate and difficult questionthe welfare of a minor childdue process of law in legal proceedings should be observed. These settled *736 courses of procedure, as established by our law, include due notice, a hearing or opportunity to be heard before a court of competent jurisdiction. Tillman v. Walters, 214 Ala. 71, 108 So. 62.
It seems apparent from the record that the learned trial court failed to give recognition to these governing principles and in effect stopped the proceedings and prejudged the case without having a full hearing. It seems, also, the trial court placed the burden on the appellant to show that appellees were not fit persons to have custody of the child, whereas the burden, as stated in Esco v. Davidson, supra, was on the appellees contesting the parent's right to custody.
So considered, the decree was laid in error.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | June 29, 1961 |
d95132c9-344e-4cb1-88a7-cd67699b7f39 | Bedsole v. Bedsole | 133 So. 2d 237 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 237 (1961)
Vergil L. BEDSOLE et al.
v.
C. Wilmer BEDSOLE et al.
4 Div. 79.
Supreme Court of Alabama.
September 21, 1961.
*238 A. A. Smith, Hartford, for appellants.
Jas. W. Kelly, Geneva, for appellees.
LAWSON, Justice.
The appeal is from a decree overruling demurrer to a bill in equity.
The bill seeks the sale, for division of proceeds, of a tract of land in Geneva County which is alleged to be owned in equal parts by the complainant C. Wilmer Bedsole and the respondents, Vergil L. Bedsole, Blanche Bedsole Woods, and George Bedsole, Jr., subject to the homestead and dower interests of the complainant Banney L. Bedsole.
It is averred in the bill that the complainant Banney L. Bedsole desires that the property be sold.
The bill prays, in substance, that the land be sold; that the homestead and dower interests of the complainant Banney L. Bedsole be ascertained and paid to her in cash out of the proceeds of the sale; that certain costs, including attorney's fee, be paid out of the proceeds of the sale; and that the remainder be distributed among the complainant C. Wilmer Bedsole and the respondents.
Cotenancy is an indispensable element of compulsory partition for a sale for division and a remainderman cannot maintain a bill for sale for division against a life tenant. Ganus v. Sullivan, 267 Ala. 16, 99 So. 2d 204; Mizell v. Walley, 253 Ala. 302, 44 So. 2d 764.
But we have approved bills for sale for division where the widow joins with an heir or remainderman in seeking to have lands sold for division to divide the proceeds among the owners of the fee after payment to the widow of her homestead and dower interests. Tipton v. Tipton, 268 Ala. 497, 108 So. 2d 348; Compton v. Cook, 259 Ala. 256, 66 So. 2d 176.
The complaint in each of the cases just cited contained allegations of fact going to show the extent of the homestead and dower interests of the widow.
No such facts are averred in the bill presently under consideration. It simply avers that the complainant Banney L. Bedsole "has a homestead and dower interest in and to the above described real estate." Such averment is not sufficient to enable the court to distribute the proceeds of the sale between the complainant Banney L. Bedsole and the other parties to the suit who, as we have shown above, each allege to own an undivided one-fourth interest in the fee. See McDonald v. Mobile Life Ins. Co., 56 Ala. 468; Stephens v. Pleasant Hill Baptist Church et al., 264 Ala. 394, 88 So. 2d 570, and cases cited.
Homestead exemptions and dower are determined by the statutes in force at the time of the husband's death. Tipton v. Tipton, supra. This bill does not even allege that the complainant Banney L. Bedsole ever had a husband, much less aver the time of his death. It is well established that in a bill to sell land for division, the interest of each joint owner and tenant in common must be alleged so that the court can know how to distribute the proceeds of the sale. Case v. Pfaffman, 253 Ala. 511, 45 So. 2d 453; Finlay v. Kennedy, 250 Ala. 33, *239 32 So. 2d 883; Martin v. Cannon, 196 Ala. 151, 71 So. 996.
The same reasoning applies where the dower and homestead interests are involved. Cf. Finlay v. Kennedy, supra.
As we have shown, the present bill fails to aver facts going to show the homestead and dower interests claimed by the complainant Banney L. Bedsole.
The infirmity was pointed out by the demurrer and the trial court erred in overruling the demurrer.
The decree of the trial court is reversed and one is here rendered sustaining the demurrer. The cause is remanded and complainants are given twenty days after the decree of this court reaches the register of the Circuit Court of Geneva County within which to amend if they are so advised.
Reversed, rendered and remanded.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | September 21, 1961 |
253ff0bb-9930-480b-b9ed-d401345fd4df | Fleming v. Knowles | 130 So. 2d 326 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 326 (1961)
Marion Ernie FLEMING et al.
v.
Melissa Alice KNOWLES, pro ami.
1 Div. 785.
Supreme Court of Alabama.
May 25, 1961.
*327 J. B. Blackburn, Bay Minette, for appellants.
Telfair J. Mashburn, Jr., Bay Minette, for appellee.
COLEMAN, Justice.
This is an appeal by defendants from a judgment rendered for the plaintiff in an action to recover damages for personal injury suffered by plaintiff in a motor vehicle collision. The complaint is in one count for simple negligence.
Plaintiff, an infant, was injured while riding in an automobile with her mother, in a westerly direction on Seventh Street in *328 Bay Minette. Plaintiff contends that the collision was caused by the negligence of defendant Fleming in failing to stop at the intersection of Seventh Street and Moog Avenue, where there was a stop sign, when Fleming drove a truck going south into the intersection where the automobile and truck collided.
It appears that at the time of the collision, Fleming was an employee of the defendant City of Bay Minette so as to render the City liable under the doctrine of respondeat superior.
The defendants contend that Fleming did not enter Seventh Street at the Moog Avenue intersection. Defendants contend that Fleming entered Seventh Street one block east of Moog Avenue and was driving west along Seventh Street, without negligence, when plaintiff's mother drove the automobile into the rear of the truck. The errors insisted on are as follows:
1. Defendants assert that the court erred in overruling defendants' motion to strike from the complaint the following allegation:
Defendants argue that the expense of medical treatment incurred by plaintiff after commencement of the action is an improper element of damages, citing Alabama Lime & Stone Company v. Adams, 218 Ala. 647, 119 So. 853, where this court held demurrer was not the proper mode of objecting to a claim for salary earned after the action was commenced.
Assuming arguendo that defendants pursued the correct method of raising objection to the inclusion of medical expenses occurring after action was commenced as an element of damages, we are nevertheless of opinion that the motion to strike was correctly overruled because the expense of future medical treatment required for the injury sustained by plaintiff is a proper element of damages in an action for injury to the person. This court has said:
"* * * when the injury is to the person, and the wrong which causes it is not continuous in its nature, then there can be but one action for its redress, no matter how permanent or lasting the disability, pain or suffering may be. Hence, in such action, the party injured may recover in one and the same suit compensation for the disabling effects of the injury, whether past or prospective. In estimating the damages, the jury may consider the expenses of the cure; and if the injury is permanent or irremediable, or will require future treatment or nursing, the proper costs of this may be added. * * *." South & North Alabama Railroad Co. v. McLendon, 63 Ala. 266, 272, 273. See also: Alabama Great Southern R. Co. v. Flinn, 199 Ala. 177, 74 So. 246; Armour & Co. v. Cartledge, 234 Ala. 644, 176 So. 334.
2. Defendants assert that the court erred in permitting the plaintiff's father to testify that the child was "more nervous" after the accident, and in permitting the plaintiff's mother and grandmother to testify that the child was "extremely nervous" after the accident and was not "nervous" prior to the accident. Defendants argue that admission of this testimony, over objection, was error because the question objected to called for a conclusion of the witness, and was invasive of the province of the jury.
In Bradley v. Lewis, 211 Ala. 264, 100 So. 324, this court refused to reverse for failure to exclude testimony that plaintiff had been "very nervous" since the injury and might be called "a nervous wreck." In Gadsden General Hospital v. Hamilton, 212 Ala. 531, 103 So. 553, 40 A.L.R. 294, it was held not error to admit testimony that plaintiff was "nervous" after the occasion complained of. In another case it was said:
Defendants argue further that the testimony to effect that child was more nervous was erroneously admitted because "* *. There was no evidence by any of the three witnesses as to the condition of the appellee before the accident or after the accident, or their opportunity to observe her before the accident or after the accident."
The specific ground of objection made in the trial court was that the question called for "the conclusion and opinion of the witness." The ground now urged, to wit, failure to show that the witness had been afforded opportunity to observe the plaintiff, was not presented to the trial court and was waived. When specific objection is made, all other objections are waived. Circuit Court Rule 33; Smith v. Bachus, 195 Ala. 8, 12, 70 So. 261; Fuller v. State, 269 Ala. 312, 113 So. 2d 153.
We are of opinion that the trial court did not err in admitting this testimony.
3. Defendants assign as error the giving, at plaintiff's request, of the following written charges:
It is to be noted that the plaintiff was an infant, less than two years old at the time of injury, and no question of contributory negligence is here involved.
Defendants argue that Charges 1 and 2 are bad because they invade the province of the jury, overemphasize testimony of plaintiff's witnesses which was disputed by defendants' witnesses, are misleading for failure to describe the stop sign or its location, and are silent as to whether verdict should be against one or both defendants.
It is true that the testimony was in dispute and it was the jury's province to decide which testimony was true, but the charges are hypothesized on the jury's being reasonably satisfied from the evidence. The charges leave to the jury the decision as to whether the defendant, Fleming, did or did not stop, and also whether the failure to stop was the proximate cause of the injury.
The charges do present plaintiff's theory of her right to recover. Plaintiff contended that defendant, Fleming, did not stop the truck at the stop sign before entering the street on which plaintiff was riding, that in failing to stop Fleming failed to do what the law required, and that the *330 failure to stop proximately caused the collision and injury to plaintiff. We do not think these charges are to be condemned as unduly emphasizing the testimony of one witness or one phase of the evidence. In Harris v. Blythe, 222 Ala. 48, 130 So. 548, 549, this court held that it was not erroneous to charge:
In Mobile City Lines v. Orr, 253 Ala. 528, 45 So. 2d 766, 768, this court held it was not error to charge that one entering a public street at which a stop sign has been erected, shall bring the vehicle to a complete stop before entering into such intersection "`* * * and it is, as a matter of law negligence for the driver of a vehicle to merely slow up but not come to a complete stop before entering the same.'" The instant charges are to the same effect.
Under the evidence in this case, there is nothing misleading in the failure to further describe the sign or its location. Charge 1 refers to "a stop sign, at the time and place complained of in the complaint," and Charge 2 says if the defendant, Fleming, "at the time and place complained of, failed to stop for a stop sign." The complaint, in a single count, alleges that "at the intersection of Seventh Street and Moog Avenue, Public Highways, in the City of Bay Minette * * *" the defendant negligently operated an automobile truck. From the testimony there is no doubt as to what the stop sign looked like or where it was located. Photographs of the intersection where the collision occurred were introduced in evidence. The stop sign at the intersection is plainly visible in the pictures. There is no uncertainty as to the sign referred to in the charges.
Defendants complain that the charges do not state whether the verdict should be against one or both defendants. Defendants state in brief, "It was not disputed by the City of Bay Minette * * * that Mr. Fleming * * * was its agent * * * acting within the line and scope of his authority at the time of the accident * *." If this be conceded, clearly the verdict, if for plaintiff, should have been against both defendants, as it was. Both defendants, or none, were liable. There was no reason to instruct the jury otherwise. We are of opinion that Charges 1 and 2 were given without error.
4. Defendants assign as error the giving of plaintiff's requested Charge 3 as follows:
We note again that plaintiff was an infant and that contributory negligence of plaintiff is not here involved. Aside from the matter of contributory negligence, Charge 3 is substantially the same as the charge given for plaintiff and made the basis of the fourth assignment in St. Louis-San Francisco R. Co. v. Norwood, 222 Ala. 464, 133 So. 27. See also Smith v. Crenshaw, 220 Ala. 510, 126 So. 127; Nelson v. Lee, 249 Ala. 549, 560, 32 So. 2d 22; Waters v. Anthony, 252 Ala. 244, 247, 40 So. 2d 316. Giving Charge 3 was not error.
5. We are of opinion that if plaintiff's Charges 5 and A be subject to the objections urged by defendants, the giving of the charges was error without injury under Supreme Court Rule 45.
6. Defendants argue that the verdict was contrary to the law of the case in *331 that the court gave defendants' requested Charge 2, which is the affirmative charge with hypothesis for defendants, but the jury returned a verdict for the plaintiff. This proposition was presented as grounds of defendants' motion for new trial which was overruled, and overruling the motion is assigned as error.
The oral charge of the court cannot be reconciled with defendants' Charge 2. The oral charge, in pertinent part, recites: "If after considering all of the testimony in the case, and the law as I have given it to you, you are reasonably satisfied that the Plaintiff should recover, you should return a verdict for Plaintiff * * *. Likewise, after considering all of the evidence, you are not satisfied that the Plaintiff should recover, then your verdict would be for the defendant * * *." The written charges given for plaintiff, which we have already considered, are clearly opposed to the proposition that the evidence, if believed, required the jury to find for defendants. The evidence was in conflict as to the negligence of defendant Fleming, and defendant was not entitled to have Charge 2 given. Ground 14 of the motion for new trial asserts that the court gave Charge 2 and then "erred in failing to deliver the said written charge to the jury to be considered by it with the other written charges * * *." In opposing the motion for new trial, plaintiff offered an affidavit by plaintiff's attorney which states that affiant was present in the courtroom during the entire trial of said cause, including the time during which the court charged the jury, and that "The Court did not read to the jury defendants' written charge Number 2 * * * that, despite the fact that said charge is marked `Given' by the Trial Judge, it was not actually given by the said trial judge * * *."
We do not understand defendants to insist that Charge 2 was, in fact, read to the jury or that the jury received the paper on which Charge 2 was written. The record does show that Charge 2 was endorsed "Given," and signed by the trial judge. The proposition now insisted on by defendants was presented to the trial court by the motion for new trial, and was rejected by the trial court in overruling the motion.
The circumstances shown by this record lead us to conclude that Charge 2 was inadvertently endorsed given, but was neither read to the jury by the court nor physically delivered to the jury with other given charges. In short, although marked given, the charge was not given. Since the charge was not given, the verdict was not contrary to the charge, and this assignment of error is not sustained.
7. On the hearing of the motion for new trial, defendants offered in evidence a list of twelve figures on the back of one of the given charges. It appears conclusively that these figures were written by one of the jurors during the jury's deliberation. The figures were added and the total was divided by 12. The quotient appears as 7666. The verdict was for $8,000. Defendants say the verdict was a quotient verdict and should be set aside and a new trial granted.
A number of cases have been considered by this court on the matter of quotient verdicts. One of the older cases cited frequently is Southern Ry. Co. v. Williams, 113 Ala. 620, 21 So. 328, 329. This court there stated the following rule:
Verdicts were set aside as quotient verdicts in International Agri. Corp. v. Abercrombie, 184 Ala. 244, 63 So. 549, 49 L.R.A.,N.S. 415; New Morgan County Building & Loan Ass'n v. Plemmons, 210 Ala. 286, 98 So. 12; George's Restaurant v. Dukes, 216 Ala. 239, 113 So. 53. Cases *332 holding that a quotient verdict had not been shown are: Birmingham Ry., Light & Power Co. v. Clemons, 142 Ala. 160, 37 So. 925; Birmingham Ry., Light & Power Co. v. Moore, 148 Ala. 115, 42 So. 1024; Alabama City, G. & A. Ry. Co. v. Lee, 200 Ala. 550, 76 So. 908; City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264, 122 A.L.R. 637; Harris v. State, 241 Ala. 240, 2 So. 2d 431; Sanders v. State, 243 Ala. 691, 11 So. 2d 740; Montgomery City Lines v. Davis, 261 Ala. 491, 74 So. 2d 923.
The pertinent principles are stated in the cited cases. The vitiating fact seems to be the agreement in advance to abide by the result of the calculation. Data of this kind here shown have been held prima facie sufficient to impeach the verdict as a quotient verdict. While jurors are not permitted to impeach their own verdict, they may by affidavit disclose facts to sustain their verdict. It was competent for plaintiff to prove by the jurors themselves that the figures were written and the calculations were made without previous agreement that the result should be the verdict, but tentatively only, and to afford a basis for subsequent consideration and discussion by the jury.
The affidavits of jurors Golden and Fuqua are positive that no agreement was made in advance to be bound by the result of the calculation and that it was made to get a figure as a basis for discussion in determining the amount of the verdict. On the facts stated in the affidavits, the verdict was not a quotient verdict and was not due to be set aside on that ground. Birmingham Ry., Light & Power Co. v. Clemons, supra.
8. We are of opinion that the court did not err in overruling the ground of motion for new trial taking the point that the verdict is excessive. Medical expenses of $316 were shown. Dr. Gaston testified that plaintiff had received scars which he thought were permanent. We understand that these scars disfigured plaintiff's face. The scars were shown to the jury. We do not have this advantage which the court and jury had, and are not persuaded that the verdict was so excessive as to indicate such bias, passion, or prejudice as would justify us in setting the verdict aside after the trial court has refused to do so. Brandwein v. Elliston, 268 Ala. 598, 109 So. 2d 687.
Error to reverse not being shown, the judgment of the circuit court is due to be and is affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | May 25, 1961 |
80eed5b9-928a-41e5-854b-4a67d8782d1d | Mazel v. Bain | 133 So. 2d 44 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 44 (1961)
Henry MAZEL
v.
J. W. BAIN, d/b/a Bain Construction Company.
1 Div. 952.
Supreme Court of Alabama.
June 22, 1961.
Rehearing Denied September 28, 1961.
*45 J. B. Blackburn, Bay Minette, for appellant.
Wilters, Brantley & Nesbit, Robertsdale, for appellee.
MERRILL, Justice.
This is an appeal from a decree overruling the demurrer of Henry Mazel, appellant, to the bill of complaint of J. W. Bain, doing business as Bain Construction Company, appellee. The bill sought to enforce a mechanic's lien for clearing eighty acres of land.
The bill alleged that appellee cleared the land under a contract with the owners, Richard and Eva Trester, executed February 20, 1959, and a balance of $881.25 was still owed for the work; that on April 9, 1959, appellant Mazel recorded a mortgage on the lands executed by the Tresters on January 6, 1958; and that the lien claimed by appellee was superior to the lien of the mortgage. The Tresters were not served with summons.
The sole question, one of first impression here, to be decided is whether clearing land, which included "pushing stumps and scrub oaks, raking and leveling the said lands," is an improvement on land under Tit. 33, § 37, Code 1940, which grants a lien to "every * * * person * * * who shall do or perform any work, or labor upon * * * any building or improvement on land, or for repairing, altering, or beautifying the same, * * *," under or by virtue of any contract with the owner.
In 1899, this court, in Bates v. Harte, 124 Ala. 427, 26 So. 898, 899, in holding that the drilling of a well was such an "improvement" as would support a lien, said:
Warvelle on Ejectment, § 557, defines improvement: "An improvement, generally speaking, is anything that enhances the value of the land." The word is defined in Black's Law Dictionary, Fourth Edition:
The Supreme Court of Oklahoma, in construing its lien statute, 42 O.S.1951, § 141, which gives a lien to any person who performs labor "for the erection, alteration or repair of any building, improvement or structure thereon," held that "labor performed * * * with tractor and bulldozer and scraper in leveling and building up certain vacant lots to improve [same] for future construction of building thereon was a lienable item," and "the general word `improvement' cannot be reasonably construed to have been used with the limitation *46 in its meaning to buildings and things ejusdem generis" (of the same kind, class or nature). Green v. Reese, Okl., 261 P.2d 596, 39 A.L.R.2d 861, and annotation 39 A.L.R.2d 866.
Some states, California, Florida, Hawaii, Iowa, Minnesota, Tennessee, Texas, Wisconsin and Washington, have defined the word improvement in their statute, and include excavating or grading in the definition.
In 1889, Justice McClellan, speaking for the court in Eufaula Water Co. v. Addyston Pipe & Steel Co., 89 Ala. 552, 8 So. 25, 26, said: "The whole theory of the statute is to give the material-man a preferred claim on a lot of land for the amount he has contributed in improving that particular land or the buildings situated thereon."
Again, in Crawford v. Sterling, 155 Ala. 511, 46 So. 849, 850, McClellan, J., wrote:
This court said in Floyd v. Rambo, 250 Ala. 101, 33 So. 2d 360, 362:
And in our late case of Wilkinson v. Rowe, 266 Ala. 675, 98 So. 2d 435, 437, we quoted from Montandon & Co. v. Deas, 14 Ala. 33, as follows:
It is argued that since a mechanic's lien is of statutory origin and "is in derogation of the common law, it is to be strictly construed, all matters of substance of necessity to be complied with." Tanner v. Foley Bldg. & Mfg. Co., 254 Ala. 476, 48 So. 2d 785, 787. This strict construction is not applied to the theory of the statute but to the technical requirements of the statute to make the lien effective, such as, certainty as to the description, allegations that the claim has been properly filed in the office of the probate judge, and that the wording of the claim and the notices substantially follow the statute. There is no conflict in the case of Montandon & Co. v. Deas, 14 Ala. 33, and the principle enunciated in the Tanner case.
It is also argued that our statute does not give a lien for work on land in the absence of an improvement or building thereon. We think that construction of the statute is too strict and narrow. Under such an interpretation, a brick mason who built the foundation for a building, which was never built, would not have a lien. Yet in 1890, in Scott v. Goldinghorst, 123 Ind. 268, 24 N.E. 333, work done in excavating earth and constructing a brick foundation for a barn which was never completed was held to be lienable.
*47 Again, construing the statute so strictly, the digging of a well would not be an improvement, but the adding of a well curb or a shelter over the well would be subject to the lien because it was added to the improvement (the well) which was already there. But that is not what this court held in Bates v. Harte, 124 Ala. 427, 26 So. 898, cited supra. There, the digging of a well was held to be an improvement.
The clearing, grading or excavation of land is a permanent improvement upon land, and since this question has not been previously presented to this court, it seems practical, useful and sensible to hold that this type of permanent improvement upon land in lienable under the statute.
We would still adhere to the holding in Bates v. Harte, 124 Ala. 427, 26 So. 898, quoted in Wilkinson v. Rowe, 266 Ala. 675, 98 So. 2d 435, that "the scope of term improvement is left for determination in particular cases as they may arise." This question of first impression in this state having arisen, we hold that the work described comes within the scope of the term "improvement" in the statute.
It follows that the trial court correctly overruled appellant's demurrer to the bill of complaint.
Affirmed.
LAWSON, SIMPSON and GOODWYN, JJ., concur.
LIVINGSTON, C. J., and STAKELY and COLEMAN, JJ., dissent.
STAKELY, Justice (dissenting).
The suit was filed by J. W. Bain, doing business as Bain Construction Company, against Richard Trester, Eva Marie Trester and Henry Mazel, to enforce a mechanic's lien for clearing eighty acres of land. The two Tresters were not served. The relevant part of the bill of complaint is as follows:
The question for decision is whether the allegations of the bill show that complainant performed services which entitle him to the lien claimed.
We think we can safely say that if the complainant has the right to a mechanic's lien for the services which he alleges that he performed in clearing the land described in the bill of complaint, it must be under § 37, Title 33, Code of 1940. We set out the pertinent part of § 37, Title 33, Code of 1940, as follows:
Without question the foregoing statute gives a lien for work on an improvement on land but we do not think that the statute gives a lien for work on land in the absence of an improvement or building thereon. The statute gives a lien "on such building or improvements and on the land on which the same is situated." [Emphasis added.] If the graded land is the improvement, then there is a lien on the graded land on the land. In other words, there is a lien on land on land. We do not believe the statute warrants such a construction.
In this case it is well to remember that the right to a mechanic's lien is purely statutory. Wilkinson et al. v. Rowe, 266 Ala. 675, 98 So. 2d 435. There is no right to an equitable lien for work and labor done. Lindsey v. Rogers, 260 Ala. 231, 69 So. 2d 445; Emanuel v. Underwood Coal & Supply Co., 244 Ala. 436, 14 So. 2d 151.
In Tanner v. Foley Bldg. & Mfg. Co., 254 Ala. 476, 48 So. 2d 785, this court said: "and since such a statutory lien is in derogation of the common law, it is to be strictly construed, all matters of substance of necessity to be complied with.", and cases cited. Richards v. William Beach Hardware Co., 242 Ala. 535, 7 So. 2d 492, and cases cited.
It is clear that the clearing, grading or leveling, which the complainant did on the land, was not done in connection with the construction of any building or other improvement on the land. Does the clearing, grading and leveling of land constitute an improvement within the meaning of § 37, Title 33, Code of 1940 and entitle one who does such work to a mechanic's lien under the provisions of the statute? In the recent case of Wilkinson v. Rowe, supra, this court had occasion to consider whether the services rendered by a surveyor in surveying in part a subdivision was an improvement within the meaning of the statute now under consideration. In the case here referred to this court held that such services were not an improvement and that the party who rendered them was not entitled to a mechanic's lien. This court said:
In other words before there can be a lien, there must be an improvement and the lien does not attach in the absence of an improvement or building.
In Wilkinson v. Rowe, supra, reference is made to the fact that some states have what is referred to as graders' statutes which give a lien on realty to one who clears, grades, fills or otherwise improves real property or any street or road in front of or adjoining the same. See Daugherty v. Gunther, 88 Wash. 378, 153 P. 336. In Wilkinson v. Rowe, supra, this court further said:
Section 37, Title 33, Code of 1940, does not entitle J. W. Bain, doing business as Bain Construction Company to a mechanic's lien for clearing land for the reason that there are no improvements on the land to which such a lien can attach.
As fortifying our view that the word "improvement" in § 37 does not include leveling or grading of the land, we refer to § 38, Title 33, Code of 1940, which provides the method by which priority between a mechanic's lien and a mortgage on the property may be determined. The mechanic's lien provided for in § 37 as to the land, buildings or improvements thereon "shall have priority over all other liens, mortgages or incumbrances created subsequent to the commencement of work on the building or improvement; * * *". But "as to liens, mortgages or incumbrances created prior to the commencement of the work, the lien for such work shall have priority only against the building or improvement, the product of such work which is an entirety, separable from the land, building or improvement subject to the prior lien, mortgage or incumbrance, and which can be removed therefrom without impairing the value or security of any prior lien, mortgage or incumbrance; and the person entitled to such lien may have it enforced by a sale of such buildings or improvement under the provisions of this article and the purchaser may, within a reasonable time thereafter, remove the same."
Assuming that the mortgage on the land was made prior to the work and labor for which the mechanic's lien was given, then the lien may be enforced by a sale of such buildings or improvement. There is no provision in the statute in this event for the sale of the land. Accordingly, if the improvement is the grading or leveling of the land, how can such grading and leveling be sold under section 38 without a sale of the land itself? We think this indicates that the Alabama statutes were not intended to give a lien for merely leveling or grading the land.
We quite understand that an equity court where there was a mortgage on the land in a *50 suit to enforce a mechanic's lien can, under certain circumstances, order a sale of the entire property, adjusting priorities in the proceeds on equitable principles. Baker Sand & Gravel Co. v. Rogers Plumbing & Heating Co., 228 Ala. 612, 154 So. 591, 102 A.L.R. 346. But the power of an equity court in this regard still does not determine the meaning of the word "improvement" in the statute.
It should be added that the demurrer raises no question of priority as between the lien claimed and the mortgage to Henry Mazel.
Of course, the legislature has the power to extend the right to a lien to cover clearing or grading land but the courts do not have the power to establish such a lien by judicial decree.
Since the views expressed by me are not in accordance with the majority opinion of the court, I respectfully dissent.
LIVINGSTON, C. J., and COLEMAN, J., concur. | June 22, 1961 |
a0ca413a-7299-4893-9b04-4bc2c74dadcb | Morris v. Yancey | 132 So. 2d 754 | N/A | Alabama | Alabama Supreme Court | 132 So. 2d 754 (1961)
J. D. MORRIS
v.
Claude YANCEY.
1 Div. 963.
Supreme Court of Alabama.
June 29, 1961.
Rehearing Denied September 21, 1961.
*755 Cecil G. Chason, Foley, and Thompson & White, Bay Minette, for appellant.
Wilters & Brantley, Bay Minette, for appellee.
MERRILL, Justice.
This is the third appeal by the plaintiff, J. D. Morris, in an ejectment suit against appellee. On the first appeal, we reversed a judgment in favor of appellee because the trial court had given the general charge for appellee, and we held that a jury question was presented. 266 Ala. 54, 94 So. 2d 195. At the second trial, the court submitted the question to the jury and verdict was in favor of the appellee. We affirmed the judgment based upon the verdict. 267 Ala. 657, 104 So. 2d 553.
Appellant filed another ejectment suit for the same lands. Verdict and judgment were again for appellee and this appeal followed. This is the final ejectment suit between these parties relating to these lands. Tit. 7, § 959, Code 1940.
There is little material difference in the facts in this case and those set out in Morris v. Yancey, 267 Ala. 657, 104 So. 2d 553. Since we do not reach a discussion of the facts on this appeal, the facts will not be restated here.
Of the twelve assignments of error, appellant purportedly argues all but No. 6 in. brief We list one group:
These assignments of error are not sufficient to present any question for our review. Bertolla v. Kaiser, 267 Ala. 435, 103 So. 2d 736; Thompson v. State, 267 Ala. 22, 99 So. 2d 198; Mulkin v. McDonough Construction Co. of Ga., 266 Ala. 281, 95 So. 2d 921; King v. Jackson, 264 Ala. 339, 87 So. 2d 623.
Another group reads:
These assignments of error are too general. Morris v. Yancey, 267 Ala. 657, 104 So.2d 553[12]; Orso v. Cater, Ala., 133 So. 2d 864.
This court has repeatedly held that only adverse rulings of the trial court are subject to an assignment of error on appeal from a judgment in a civil case based on a jury verdict. Morris v. Yancey, 267 Ala. 657, 104 So. 2d 553. Moreover, there is 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; Orso v. Cater, supra.
Assignments of error 3 and 4 charge that the verdict was contrary to the following part of the oral charge:
This statement was part of the recapitulation of the trial court. The jury was to decide between plaintiff's evidence of paper title and alleged possession, and defendant's evidence of possession by his father from 1897 to 1933, and his own possession since that date. The verdict was not contrary to this instruction.
The only remaining argued assignment of error is that the court erred in denying plaintiff's motion for a new trial on the grounds of newly discovered evidence.
*757 To warrant the granting of a motion for a new trial on the ground of newly discovered evidence, the petitioner must show the nature of the newly discovered evidence and the fact that such evidence would probably cause a different conclusion to be reached, and that it is not merely in the nature of cumulative evidence, and in addition must show that they had no notice of the evidence and could not have discovered it by reasonable effort in order to obtain the benefit of it on the trial. Tankersley v. Tankersley, 270 Ala. 571, 120 So. 2d 744; Alexander v. Alexander, 230 Ala. 170, 160 So. 343.
Here, the newly discovered evidence, presented by an affidavit, was in the form of photostatic copies of a voter registration certificate from the records of the Probate Court of Mobile County, showing that appellee had paid poll tax in Mobile County from 1923 to 1945, and photostatic copies of old city directories of Mobile which showed that appellee's father had lived at various Mobile addresses.
This evidence was only cumulative, because appellant offered evidence at the trial that appellee lived in Mobile County and not in Baldwin County.
There is also a question about due diligence. This dispute has been in the courts since 1955 and these records had been in existence all that time, and appellant's affidavit in support of the motion states that appellant and counsel "had previously searched court records of Mobile County."
A new trial should not be granted on newly discovered evidence unless such evidence would probably change the verdict. Malone Coal, Grain & Motor Co. v. Hale, 207 Ala. 335, 92 So. 553. We are not convinced that the new evidence would probably change the verdict. Gray Lumber Co. v. Johnson, 239 Ala. 576, 195 So. 731.
Finally, a motion for a new trial based on newly discovered evidence is addressed largely to the trial court's sound discretion. Birmingham Electric Co. v. Toner, 251 Ala. 414, 37 So. 2d 584; Hopkins v. Harrison, 228 Ala. 180, 153 So. 255. We cannot hold that there was an abuse of discretion here.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | June 29, 1961 |
f73130a2-3e5b-409b-b92a-6a5071eef033 | Pierson v. Case | 133 So. 2d 239 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 239 (1961)
Stephen N. PIERSON et al.
v.
A. B. CASE et al.
1 Div. 763.
Supreme Court of Alabama.
September 14, 1961.
*240 Sam W. Pipes, III, and Lyons, Pipes & Cook, Mobile, for appellant Pierson.
Howell & Johnsson, Mobile, for unknown respondents.
Jere Austill, Jr., Austill & Austill, Mobile, for appellee Case.
Thornton & McGowin, Mobile, for appellee Keisker.
Albert Tully, Mobile, for appellee Cole.
Slepian & Byrd, Mobile, for guardian ad litem of certain unknown respondents, appellees.
GOODWYN, Justice.
This is an appeal from a final decree of the circuit court of Mobile County, in equity, in an in rem proceeding brought pursuant to Code 1940, Tit. 7, § 1116 et seq, as amended by Act No. 882, appvd. Sept. 12, 1951, Acts 1951, p. 1521, quieting title to a five-acre tract of land (East half of Northeast quarter of Northeast quarter of Southwest quarter, Section 26, Township 2 North, Range 3 West, Mobile County) in the Citronelle oil field.
The pleadings are rather involved. It would probably be more confusing than helpful to attempt to recite them. For an understanding of the decisive questions before us, we think it will suffice to state the following:
Appellants Stephen N. Pierson and Wallace Henry Pierson claim to be the owners of the land and seek to have the fee simple title thereto quieted in them. They also seek to redeem from a state tax sale made in 1919. There appears to be no dispute that this was not a valid tax sale. In view of our conclusion that the trial court did not err in denying relief to said appellants, there seems no need to set out the chain of title relied on by them. For purposes of this appeal, we will assume, without deciding, that the record title is in them.
In 1945 the state, the purchaser at the 1919 tax sale, quitclaimed the property to W. M. Wright, which is the source of color of title relied on by appellees, as hereinafter shown. Appellees also rely on the exclusive payment of taxes on the property for ten years by W. M. Wright and his grantee of the surface, J. J. Cole, one of the appellees, as being conclusive evidence of their respective titles, as decreed by the trial court, by virtue of the provisions of Code *241 1940, Tit. 7, § 1123, as amended by Act No. 882, appvd. Sept. 12, 1951, supra; also, on Wright's adverse possession of the property coupled with Cole's adverse possession of the surface, under color of title, for the statutory periods of three years, as prescribed by Code 1940, Tit. 51, § 295, the socalled "short statute of limitations", applicable to actions for recovery of real estate sold for the payment of taxes, and ten years, as prescribed by Code 1940, Tit. 7, § 828. Although the doctrines of prescription and laches are also relied on, we see no need to discuss them.
A. B. Case, one of the appellees, claimed, and the trial court decreed in his favor, title to an undivided one-half interest in the minerals in, on, or under said five-acre tract. His claim is based on the following chain of paper title, together with the exclusive payment of taxes and adverse possession by Wright and Cole, above noted, as inuring to his benefit, viz.:
1. State tax deed to W. M. Wright, dated May 9, 1945, and recorded May 16, 1945.
2. Quitclaim deed from W. M. Wright to Louis Lilly, dated July 8, 1945, and recorded July 16, 1945, conveying an undivided one-half interest in the minerals. This interest was conveyed by Lilly to A. W. Hutchings by deed dated September 18, 1948, recorded November 8, 1955, and by deed dated October 1, 1949, recorded November 14, 1955, and then conveyed by Hutchings to A. M. Keisker, one of the appellees, by statutory warranty deed dated January 26, 1956, and recorded on January 27, 1956.
3. Quitclaim deed from W. M. Wright to J. J. Cole, dated October 12, 1945, and recorded December 31, 1945, conveying all of the grantor's "right, title, interest or claim" in or to the five-acre tract, but containing a reservation to the grantor of onehalf of all minerals.
4. Statutory warranty deed from W. M. Wright to A. B. Case, dated October 12, 1945, and recorded December 8, 1955, conveying all the minerals on, in and under the five-acre tract. (Although this deed purports to convey all the minerals, the trial court decreed title to only one-half to be in Case. No question as to this is presented on this appeal.)
J. J. Cole claimed title to the surface and one-half of the minerals by virtue of the quitclaim deed to him from W. M. Wright, dated October 12, 1945, supra, and exclusive payment by him and Wright of taxes on the property for ten years, and also by virtue of their adverse possession under both the "short" and the ten year statutes, as above noted.
A. M. Keisker based his claim to one-half of the minerals on the chain of title set forth in paragraph 2 of the A. B. Case chain, supra, together with Wright and Cole's exclusive payment of taxes and adverse possession, above noted, as inuring to his benefit.
After an oral hearing of the testimony, the trial court rendered a final decree quieting title to the surface in J. J. Cole, title to an undivided one-half interest in the minerals in A. B. Case, and title to the other undivided one-half interest in the minerals in A. M. Keisker. This appeal is from that decree.
No question is presented concerning Cole's claim to one-half the minerals, which was denied by the trial court; nor do the other appellees question that part of the decree quieting title to the surface in Cole. In fact, there appears to be no controversy on this appeal between Cole, Keisker and Case concerning their respective interests in the property as decreed by the trial court.
Our conclusion is that there is sufficient evidence to support a finding that Cole acquired title to the surface by adverse possession for ten years, under § 828, Tit. 7, and for three years under § 295, Tit. 51; that the exclusive payment of taxes on the property by Wright and Cole for ten years, together with their color of title, was sufficient *242 to constitute "conclusive evidence of title" to the surface to be in Cole; and that such adverse possession and exclusive payment of taxes inured to the benefit of Case and Keisker so as to ripen in each of them title to one-half the minerals. Our reasons for these conclusions follow:
There seems to be no dispute that the tax deed from the state to Wright, even if invalid, was sufficient to furnish color of title. Clanahan v. Morgan, 268 Ala. 71, 76, 105 So. 2d 429; Merchants National Bank of Mobile v. Lott, 255 Ala. 133, 135, 50 So. 2d 406; Odom v. Averett, 248 Ala. 289, 292, 27 So. 2d 479; Pugh v. Youngblood, 69 Ala. 296, 299. Nor is there any question that the other conveyances stemming from that deed furnish color of title to the several interests purportedly conveyed. So, the first question is whether the tacked possession of Wright and Cole was adverse for the statutory period of ten years (Code 1940, Tit. 7, § 828, supra) so as to ripen title to the surface in Cole. Having concluded that there is evidence to support such finding, the second question is whether such adverse possession of the surface inured to the benefit of Case and Keisker (each being the holder of color of title to one-half the minerals and neither having actual possession of them) so as to mature title to one-half the minerals in each. The answer is "yes".
As already noted, the evidence was taken orally before the trial court. Hence, its conflicting tendencies must be considered in the light most favorable to appellees, the same as if there had been a jury trial. While there are conflicting tendencies in the evidence from which the trial court could have found against appellees' contention with respect to adverse possession, we think there is sufficient evidence supporting the decree quieting title to the surface in Cole under both the ten year and the three year statutes. In this situation, in order to reverse, insofar as the decree quiets title to the surface in Cole, we would have to say that the trial court's conclusion from the evidence on the issue of Cole's adverse possession was plainly and palpably wrong. This we are unable to do.
There are tendencies in the evidence establishing the following:
The five-acre tract is principally "swampy" wild land, containing a small amount of timber. It is located in the corner of a forty-acre tract, the other thirty-five acres in said tract belonging to the family of Mr. Blakely Young when Wright acquired his tax deed in 1945. At that time, Mr. Young's daughter, Mrs. Birdie Walker, was living with him. When Wright acquired his tax deed he went on the land and posted it with "keep out" or "no trespassing" signs. He took Mr. Young on the land and tried to sell it to him. He arranged with Mr. Young to look after the land for him, at the same time giving Mr. Young permission to water his cattle on the property. Neither Mr. Young, until his death in 1951, nor his daughter, Mrs. Walker, who continued to water the cattle there after her father's death, ever claimed any interest in the land. In fact, Mrs. Walker, at the trial, disclaimed any interest in it. When Cole acquired his deed in 1945 he also went to Mr. Young and arranged with him to look after the propertyto look after the green timberand told him he could "have the stove wood off of it"; and had an arrangement with him about the cattle"I just told him to keep it, use it and watch it", which he did. About 1949 Cole cut the timber, and between 1945 and the time the suit was filed he went on the place about twenty times. There is no road adjoining the five-acre tract. It is accessible by going across the Young-Walker 35-acre tract. It is not susceptible to cultivation or use as a pasture or other improvement. The only reasonable use to which it could have been put was the growing of a small amount of timber, watering cattle and hunting. Cole gave permission to at least one person to hunt on it. While it is not clear whether the watering of the cattle after Mr. Young's death was with Cole's express permission, we are inclined to the view *243 that the evidence, on the whole, affords a reasonable inference that the continued use for such purpose was with his permission. Clearly, there is no evidence indicating that Mrs. Walker was claiming any interest in the five-acre tract nor that it was being used by her for watering the cattle with anyone else's permission.
It has been held that "`to constitute an actual possession of land it is only necessary to put it to such use or exercise such dominion over it as in its present state it is reasonably adapted to.'" Moorer v. Malone, 248 Ala. 76, 78, 26 So. 2d 558, 559; Alabama State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174. In Clanahan v. Morgan, 268 Ala. 71, 81, 105 So. 2d 429, 437, supra, it is said that "all acts of a possessory nature committed by the adverse claimant are to be considered collectively rather than independently in determining the sufficiency of his possession. Chastang v. Chastang, 141 Ala. 451, 37 So. 799."
The following from Goodson v. Brothers, 111 Ala. 589, 595-596, 20 So. 443, quoted with approval in Clanahan v. Morgan, supra, is of significance here, viz.:
It is also established that, in determining whether a purchaser at a tax sale and his privies have had adverse possession for the required period, it is not necessary that they should have had actual possession of the property themselves, it being sufficient that they had possession through an agent or a licensee. Hanna v. Ferrier, 265 Ala. 450, 453-454, 91 So. 2d 700.
In the light of the foregoing principles, we cannot say that the trial court erred in quieting title to the surface in Cole.
Since the evidence was sufficient to support a finding of Cole's adverse possession of the surface for ten years, then it follows that it was sufficient to show adverse possession for three years so as to make applicable the provisions of § 295, Tit. 51, Code 1940, supra, referred to as the "short statute of limitations." Because the tax sale was void, does not render § 295 inapplicable. Odom v. Averett, 248 Ala. 289, 291-292, 27 So. 2d 479, supra.
We come now to consider whether Wright and Cole's adverse possession of the surface inured to the benefit of Case and Keisker. Our view is that it did. There is an excellent discussion of this question in III Ala.Law Review 145, 150, in which Alabama cases (Black Warrior Coal Co. v. West, 170 Ala. 346, 54 So. 200; Birmingham Fuel Co. v. Boshell, 190 Ala. 597, 67 So. 403; Moore v. Empire Land Co., 181 Ala. 344, 61 So. 940; Alabama Fuel & Iron Co. v. Broadhead, 210 Ala. 545, 98 So. 789; Buckelew v. Yawkey, 247 Ala. 304, 24 So.2d 133) and others are analyzed and discussed. The conclusions there reached, pertinent here, and which we think are supported by the authorities, are stated as follows:
In Clanahan v. Morgan, 268 Ala. 71, 82, 105 So. 2d 829, supra, it was held that the adverse possession of the surface inured to the benefit of the mineral title.
From Carlisle v. Federal Land Bank of New Orleans, 217 Miss. 289, 64 So. 2d 142, 143, is the following:
The recent case of Temples v. First National Bank of Laurel, 239 Miss. 446, 123 So. 2d 852, 856, 125 So. 2d 543, reaffirms the holding in Carlisle.
Among additional authorities supporting the rule are Tennessee Coal, Iron & R. Co. v. Brewer, 5 Cir., 92 F.2d 804, 805, and Shively v. Elkhorn Coal Corp., 217 Ky. 192, 289 S.W. 262. See, also, Annotation: "Acquisition of title to mines or minerals by adverse possession", 35 A.L.R.2d 124, 154.
*245 Since there could have been no severance by the original adverse possessor (Wright), because he did not have title to the property when he gave deeds separately to the surface and the minerals, the continued adverse possession of the surface by Wright's grantee of the surface (Cole) inured to the benefit of Wright's grantees of the minerals (Case and Keisker).
The remaining questions are whether the exclusive payment of taxes for ten years by Wright and Cole, together with their color of title, was sufficient to constitute "conclusive evidence of title" to the surface in Cole, under the provisions of § 1123, Tit. 7, as amended, supra, and whether such payment of taxes inured to the benefit of Case and Keisker so as to constitute such payment, together with their respective colors of title, "conclusive evidence of title" in each of them to one-half the minerals, under the provisions of said § 1123, as amended. We think so.
Section 1123, as amended, provides, in pertinent part, as follows:
The circumstances bringing this provision into play are as follows:
When W. M. Wright acquired his tax deed from the state on May 9, 1945, he paid the 1945 taxes. For each succeeding year down to the time of the filing of the bill on February 6, 1956, Cole made return of the property as a whole for assessment and paid the taxes thereon. His first return was made in December 1945 for the 1946 taxes. Cole paid the taxes on the property for each of the years 1946 through 1955. So, it can be seen that he paid the taxes for the perscribed ten-year period. No one else paid taxes on the property or any interest therein during such period and none of the parties against whom the decree was directed was in possession of the property or any interest therein. Accordingly, under the express provisions of § 1123, Tit. 7, as amended, supra, Cole clearly was entitled to have the title to the surface quieted in him.
Since neither Case nor Keisker paid any taxes on the property, the question then arises whether the payment of the taxes by Wright and Cole inured to the benefit of Case and Keisker, the holders of color of title to the minerals. In other words, can Case and Keisker claim the benefits of § 1123, as amended, even though they have paid no taxes on their claimed mineral interests in the property? We think so. In this connection, it should be remembered that the several colors of title relied on, both as to the surface and the minerals, originated with a common grantor.
As we view it, the situation with respect to the payment of taxes by the holder of color of title to the surface is analogous to that when such holder has adverse possession. If the adverse possession of such holder inures to the benefit of the holder of color of title to the minerals, there seems no good reason why the payment of taxes by the holder of color of title to the surface *246 should not also inure to the benefit of the holder of color of title to the minerals.
The decree is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, J., concur.
COLEMAN, J., concurs as shown by separate concurrence.
COLEMAN, Justice.
I concur in affirmance of the decree appealed from and in the opinion except as to the holding with reference to the right of Case and Keisker to claim as taxpayers. I do not concur in that holding and regard it as unnecessary to this decision. | September 14, 1961 |
ab605e3e-f405-4617-b37b-501fd00c8377 | Thomaston v. Thomaston | 468 So. 2d 116 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 116 (1985)
Mabel Sue Standard THOMASTON
v.
Eloise Standard THOMASTON.
83-113.
Supreme Court of Alabama.
March 29, 1985.
*118 W. Kenneth Gibson, Fairhope, for appellant.
Allan R. Chason of Chason & Chason, Bay Minette, for appellee.
PER CURIAM.
Suit was brought by the appellee, Eloise Thomaston, against the appellant, Mabel Thomaston, seeking the partition or sale for division of 564 acres of land in Baldwin County.
Eloise and Mabel are daughters of Lucinda Cooper Standard. Mabel is the wife of Charles L. Thomaston and Eloise is the wife of Lawrence B. Thomaston. Charles and Lawrence are brothers.
Elosie alleged in her complaint that she and Mabel jointly own the property in question. Her suit is based on a 1967 deed and the claim that she inherited her share of the property from John Standard, who died intestate and who she claims to be her father.
Mabel answered and filed a counterclaim to quiet title in herself, asserting that the 1967 deed was procured by fraud and undue influence. Mabel further contends that Eloise is not the daughter of John Standard and therefore owns no interest in the property.
After a jury trial the court directed a verdict against Mabel on her counterclaim and ordered the land sold for division of the proceeds.
In 1933 the land was conveyed to Mabel's father, John Standard. In 1944, John, then 62 years old, married Lucinda Cooper, who was 33 years old. At the time of this marriage Lucinda had a 10-year-old daughter, Eloise Cooper, the appellee. Shortly after John and Lucinda's marriage, Mabel Standard, the appellant, was born.
In 1953 John Standard died intestate. His widow, Lucinda, petitioned the probate court and was appointed administratrix of her husband's estate and guardian for the then-8-year-old Mabel. Eloise was 19 at this time. Mabel testified that she had not been told, nor did she know, that her mother had been appointed as her guardian, until July of 1980.
In 1960 Lucinda filed a petition as guardian for Mabel, requesting authority to execute a mineral lease on the property owned by John Standard at his death and to obtain a determination of her dower rights in the proceeds from the lease. In these proceedings Lucinda stated under oath that Mabel was the only child of John Standard. Lucinda also acknowledged that her only interest in the property was her dower interest. Lucinda took no further action with regard to the property in her capacity as administratrix of the estate or as guardian.
In 1967 Lucinda, Eloise, and 23-year-old Mabel signed a deed which gave Lucinda a life estate in the property with the remainder to Eloise and Mabel equally as tenants in common. Mabel testified that at the time she signed this deed she was under the belief that she and her mother each owned a half interest in the property. She thought that Eloise was acquiring the half interest which her mother held. She testified that she had been told all her life by her mother and Eloise that she and her mother each owned a half interest in the property. Mabel testified that the property was disposed of in this fashion because that is the way her mother wanted it.
Mabel took no part in the preparation of the 1967 deed. She testified that it was her mother and Eloise who had the deed prepared. Both Lucinda and Eloise asked her to go to their attorney's office to sign the deed. There was no monetary consideration *119 exchanged, although the deed recited otherwise. Eloise Cooper's name appeared as Eloise Standard in the deed.
In 1977 Mabel and Eloise signed a mortgage on 40 acres of the property which secured a loan to pay off a previous debt. The mortgage was executed because that was the way Lucinda wanted the payment of the loan handled. As with all other mutual debts, the mortgage is being paid from a joint checking account in the names of both Mabel and Eloise. The joint account is funded by income from the property.
Mabel testified that she first looked at the estate and guardianship records because of something her uncle, W.C. Bryant, said. He had told her that Eloise's attorney had told him that something needed to be done about John Standard's estate because it had not been settled. She testified that she was confused by this statement, because she knew she had signed the 1967 deed. When Mabel told Eloise that they needed to do something about the property, Eloise told her not to get involved because they might have to pay probate costs and the property should be left the way their mother had wanted it.
Within one week after this conversation, Mabel went to the probate office and discovered the records from the estate and guardianship proceedings. Within a few days, on or about July 30, 1980, she went to see an attorney to have him research the status of the title of the property. On August 8, 1980, her attorney informed her that since she was the only child of John Standard, under the laws of intestate succession in effect at the time of her father's death, the property passed to her subject to Lucinda's dower (life) interest. For the first time she found out that at the time she signed the 1967 deed Lucinda only had a life interest, not a half interest as Lucinda and Eloise had said. Mabel's attorney testified that Mabel appeared to be surprised to find out the true nature of the title to the property.
Eloise filed suit for partition or sale and division on March 3, 1981, one day after Lucinda died. Mabel filed her counterclaim on July 29, 1981. At the conclusion of the trial the court granted a directed verdict for Eloise on Mabel's counterclaim and instructed the jury to return a verdict that the property should be sold and that the proceeds be divided equally between the parties.
The directed verdict would have been proper only if there was a complete absence of proof on an issue material to the counterclaim or if there was no disputed question of fact on which reasonable people could differ. Ritch v. Waldrop, 428 So. 2d 1 (Ala.1982). The standard by which the trial court must determine the propriety of granting a motion for a directed verdict, and likewise the standard upon review, is the scintilla rule. Turner v. Peoples Bank, 378 So. 2d 706 (Ala.1979). The function of an appellate court in reviewing a motion for a directed verdict is to view the entire evidence, and all reasonable inferences which a jury might have drawn therefrom, in the light most favorable to the nonmoving party. Beloit Corp. v. Harrell, 339 So. 2d 992 (Ala.1976); Caterpillar Tractor Co. v. Ford, 406 So. 2d 854 (Ala. 1981).
Eloise contends the trial judge was correct in granting the directed verdict because (1) there was no evidence of fraud, or (2) Lucinda, not Eloise, committed fraud, or (3) Eloise was recognized by John Standard as his daughter, Code 1975, § 26-11-1, or (4) the counterclaim is barred by the statute of limitations or laches.
There is substantial evidence of fraud on the part of Lucinda. She occupied a confidential and fiduciary relationship with her daughter Mabel. In the 1960 guardianship proceedings Lucinda acknowledged that her only interest in her husband's estate was a dower interest. Mabel testified that Lucinda told her that she and Mabel each owned a half interest in the property. Based on this, and the other statements by Lucinda to the same effect, Mabel signed the 1967 deed. Fiduciary relations between parties impose a high moral *120 and legal duty of disclosure. American Bonding Co. of Baltimore v. Fourth National Bank, 206 Ala. 639, 91 So. 480 (1921). A fraud claim may be maintained where a party knows a material fact and is under a duty to disclose that information and fails to do so. Shelter Modular Corp. v. Cardinal Enterprises, Inc., 347 So. 2d 1334 (Ala.1977).
There is also evidence in the record that Mabel was unduly influenced by Lucinda and Eloise into signing the 1967 deed. In the limited testimony allowed into evidence, Lucinda and Eloise were described as "domineering" and "manipulative." Mabel was described as quiet and shy. The testimony indicated that Mabel always did what Lucinda told her to do to a greater extent than was normal between parent and child.
Mabel was first approached by Eloise about a transaction which eventually culminated in the signing of the 1967 deed. Lucinda told Mabel to sign the deed. The deed was prepared by Lucinda and Eloise.
Eloise contends that even if fraud was practiced by Lucinda, that fraud cannot be imputed to her. She cites Hall v. Hulsey, 271 Ala. 576, 126 So. 2d 217 (1961), in support of her contention. In that case Hall deeded real property to his second wife, for her life, and a remainder to her child or children. After the grantor's death, his children by a former marriage filed suit to cancel the deed for fraud. It was alleged that the second wife, who was the grantee of a life estate, had defrauded the grantor by misrepresenting to him that she was capable of contracting marriage to him. In fact, she had been previously married and had not divorced her former husband when she married the grantor. Although the court found the claim to be barred by the statute of limitations, it observed that the fraud of the second wife, if any, could not be imputed to her child, who was the grantee of the remainder. The Court specifically noted:
Id., 271 Ala. 578-79, 126 So. 2d at 216-217.
The Hall case is not controlling in this instance because there is at least a scintilla of evidence that Eloise misled or lulled Mabel into taking no action regarding the estate. Moreover, the Hall case was decided on the statute of limitations and adverse possession.
Eloise asserts that the trial court was convinced, as a matter of law, that under Code 1975, § 26-11-1, John Standard recognized Eloise as his daughter and that she did in fact inherit from him, although illegitimate. If Eloise inherited from John Standard, then Mabel suffered no damage as a result of the 1967 deed and, as a matter of law, there could have been no fraud.
Code 1975, § 26-11-1, and cases interpreting it provide that a child may be legitimated by the marriage of the parents and the clear and unambiguous recognition of the child by the father. The issues of legitimation and recognition were hotly disputed at trial. Mabel testified that her father, John Standard, never treated Eloise as his daughter. She introduced evidence that when Eloise was born she was given the last name of Cooper, not Standard. Cooper was Lucinda's maiden name. The information on Eloise's birth certificate concerning her father was left blank. Eloise admitted that she never went by the name of Standard prior to her first marriage. Eloise called John Standard "Johnny" instead of "Dad" or "Father." Mr. Melvin Duke, a lifelong acquaintance of Lucinda, testified that in 1958 Lucinda told him that Eloise was not John Standard's daughter. In the 1960 guardianship proceedings Lucinda admitted that Mabel was the one and only child of John Standard. *121 The issue of whether John Standard recognized Eloise was a disputed factual question which should have been resolved by the jury.
Eloise asserts that the directed verdict could be supported by a finding that Mabel's counterclaim is barred by the statute of limitations. The deed in question was signed in 1967. The counterclaim seeking to cancel the deed was filed in 1981, some 14 years after the execution of the deed.
An action to recover land is ordinarily governed by the ten-year statute of limitations. Code 1975, § 6-2-33. However, Code 1975, § 6-2-3, provides that when the action is based upon fraud and the statute has created a bar, the claim must not be considered as having accrued until the discovery of the fraud, after which the aggrieved party must file an action within one year.
Mabel testified that she did not become suspicious that something was wrong until her uncle told her in 1980 that her father's estate needed to be settled. She says that on or about August 8, 1980, after having consulted an attorney, she knew for the first time she had been defrauded. The question of whether she should have discovered the fraud sooner is a question for the jury. Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala. 1981); Sims v. Lewis, 374 So. 2d 298 (Ala. 1979).
In addition to the statute of limitations, Eloise asserts that Mabel's counterclaim is barred by laches. When a party asserts that a claim is barred by laches in a case where the action is not barred by the statute of limitations, mere delay is not sufficient for the defense of laches. Special facts must appear which make the delay culpable. Lipscomb v. Tucker, 294 Ala. 246, 314 So. 2d 840 (1975). The record fails to disclose that Mabel's delay was culpable. This Court is not persuaded that the counterclaim should be barred by laches.
We are of the opinion that the court was in error in granting the directed verdict and that Mabel is entitled to a jury trial on the issues raised by her counterclaim.
Mabel raises several evidentiary issues in her brief. We will allude to some of them generally because of the likelihood of recurrence.
Objections were sustained on the basis of the dead man's statute, Code 1975, § 12-21-163, to questions asked Mabel as to what Lucinda told her regarding ownership of the property. It appears that these questions should have been allowed, because Lucinda's estate is not interested in the outcome of the suit.
Four witnesses who were lifelong acquaintances of Lucinda and her daughters were not allowed to testify as to family relationships existing among them. In cases like the present one, testimony of this kind is usually admissible, especially on such issues as who the dominant parties were and whether Mabel was in fact lulled into inaction, and on the issue of when should Mabel have discovered the alleged fraud.
Last, Mabel contends that the trial court erred in not allowing a lifelong acquaintance and relative to testify as to what his father, also a relative of the parties, had told him about the parentage of Eloise. The trial court sustained Eloise's objection that the question calls for a hearsay response. The general reputation among family members is normally admissible to prove the parentage and legitimacy of a claimed family member. Lay v. Fuller, 178 Ala. 375, 59 So. 609 (1912); Cavin v. Cavin, 237 Ala. 185, 185 So. 741 (1939); McCrary v. Matthews, 235 Ala. 409, 179 So. 367 (1938); Martin v. Martin, 233 Ala. 310, 171 So. 734 (1937).
The judgment is hereby reversed and the cause is remanded for a jury trial.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur. | March 29, 1985 |
d8732a47-ebf4-45fd-b455-66f50f0053c6 | Republic Steel Corporation v. Payne | 132 So. 2d 581 | N/A | Alabama | Alabama Supreme Court | 132 So. 2d 581 (1961)
REPUBLIC STEEL CORPORATION
v.
Robert R. PAYNE.
REPUBLIC STEEL CORPORATION
v.
Kathleen PAYNE.
6 Div. 406, 407.
Supreme Court of Alabama.
June 29, 1961.
Rehearing Denied September 14, 1961.
*582 Burr, McKamy, Moore & Thomas, Birmingham, for appellant.
Hogan, Callaway & Vance, and Dempsey F. Pennington, Birmingham, for appellees.
GOODWYN, Justice.
Appellees brought separate suits in the circuit court of Jefferson County against appellant, Republic Steel Corporation, herein sometimes referred to as "Republic", to recover damages for injuries allegedly suffered by them as the result of inhaling smoke fumes and gases emanating from a rock pile maintained by Republic in its mining operations at Sayre, in Jefferson County, Alabama. The husband also claimed in his complaint for loss of his wife's services. The complaints contained counts charging both negligence and wantonness.
Appellees are husband and wife. During the period complained of they lived in a house adjacent to Republic's operations at Sayre. They were living there under a lease arrangement with Marc Levine and Joseph A. Green, owners of the land subject to certain reservations, exceptions, covenants and easements set forth in Republic's deed to them of December 12, 1950, hereinafter discussed. The said deed was filed for record in the office of the judge of probate of Jefferson County on February 21, 1951, prior to the time the appellees moved on the land.
The two cases were consolidated for trial and were submitted here on one record. The jury returned verdicts in favor of both the husband and wife. Judgments on said verdicts were duly rendered. Republic's motions for new trials in both cases being overruled, it brought these appeals from the the final judgments and also from the judgments overruling its motions for new trials.
Republic's superintendent, J. L. Myers, was made a party defendant in both cases and in both cases the jury found in his favor.
*583 The principal question concerns the effect on Rupublic's liability of certain provisions contained in the above deed from Republic to Levine and Green. This issue is presented by Republic's pleas 3 through 7 addressed separately to each count of each complaint, demurrers to which were sustained, and also by the refusal of Republic's requested affirmative charges under its pleas of the general issue and the denial of its motions for new trials.
The conveyance from Republic to Levine and Green was made subject to certain "reservations, exceptions, covenants and easements * * * reserved to the seller, its successors, assigns, grantees, licensees and/or contractors", among which are the following, viz.:
*584 The conveyance also contains the following provision: "* * * it is understood that the conditions, covenants, easements, reservations and exceptions herein set out have materially reduced the amount of the consideration of this conveyance * * *."
We are at the conclusion that appellees had constructive notice of the provisions of the recorded deed; that they occupied the property subject to such provisions; and that such provisions operated as a release of Republic's negligence (assuming, without deciding, that the evidence supports a finding of negligence). We also entertain the view that, under the facts of this case, there has not been a showing of wantonness on the part of Republic. We proceed to a discussion of our reasons for these conclusions.
The rule seems to be well settled that an easement may be the subject of a reservation; and that a reservation of an easement in a deed by which lands are conveyed is equivalent, for the purpose of the creation of the easement, to an express grant of the easement by the grantee of the lands. See: Webb v. Robbins, 77 Ala. 176, 183; McMahon v. Williams, 79 Ala. 288, 290-292; Gilmer v. Mobile & Montgomery Railway Co., 79 Ala. 569, 574, 58 Am.Rep. 623; Morris & Morris v. Tuskaloosa Manufacturing Co., 83 Ala. 565, 571-572, 574, 3 So. 689; Noojin v. Cason, 124 Ala. 458, 460, 27 So. 490; Webb v. Jones, 163 Ala. 637, 50 So. 887; McKee v. Club-View Heights, 230 Ala. 652, 654, 162 So. 671, 673; Moseby v. Roche, 233 Ala. 280, 282, 283, 171 So. 351; Pugh v. Whittle, 240 Ala. 503, 506, 199 So. 851; Buckalew v. Niehuss, 249 Ala. 585, 587, 32 So. 2d 299; 17A Am.Jur., Easements, § 31, p. 641; 28 C.J.S. Easements § 25, p. 679. As said in McKee v. Club-View Heights, supra:
From Buckalew v. Niehuss, supra, is the following:
The manifest intention of the parties to the deed, as gathered from the language used, was that there be reserved or created an easement in favor of Republic to do the very things complained of. And, since the easement is incident to the ownership of lands and does not involve a person or corporation engaged in public service, the exculpatory provisions of the easement, *585 to the extent that they relieve Republic of liability for its negligence, are not against public policy. See: Life & Casualty Ins. Co. of Tennessee v. Porterfield, 239 Ala. 148, 150, 194 So. 173; Housing Authority of Birmingham Dist. v. Morris, 244 Ala. 557, 563, 14 So. 2d 527; Wheeler, Lacey & Brown, Inc. v. Baker, 269 Ala. 293, 294, 112 So. 2d 461. See, also, Anno. "Limiting Liability For Own Negligence", 175 A.L.R. 8. In our view, such provisions constitute an effective defense against appellees' claims charging Republic with negligence.
As already noted, the deed contains a provision that the price paid for the land by Levine and Green was materially reduced because of "the conditions, covenants, easements, reservations and exceptions set out" in the deed. The effect of this and the provisions relieving Republic of liability was that Levine and Green contracted for all damages to be done to them, and their successors in interest, by the fumes and gases, which they had a legal right to do; and agreed that fumes and gases from Republic's operations could go on and over their lands, without Republic being liable therefor, a thing they had the right to do; and agreed, for themselves and their successors in interest, not to sue for any future damages resulting from such fumes and gases (such covenant operating as a release, Flinn v. Carter, 59 Ala. 364, 366; 45 Am.Jur., Release, § 3, p. 676; 76 C.J.S. Release § 44, p. 675), which they had a right to do. So, Levine and Green having the right to contract with respect to such things, their lessees thereafter, with actual or constructive notice of such easement and the conditions incident thereto, stand in no better position than they do. See: Webb v. Robbins, supra; McMahon v. Williams, supra; Morris & Morris v. Tuskaloosa Manufacturing Co., supra; Adler & Co. v. Western Railway of Alabama, 192 Ala. 507, 513, 514, 68 So. 361; City of Birmingham v. Graham, 202 Ala. 202, 204, 79 So. 574; Scheuer v. Britt, 218 Ala. 270, 273, 118 So. 658; Moseby v. Roche, supra; Pugh v. Whittle, 240 Ala. 503, 506, 199 So. 851; Buckalew v. Niehuss, supra; Code 1940, Tit. 47, § 102. As said in Pugh v. Whittle, supra:
Apparently, the trial court took the position, as do appellees, that since the exculpatory provisions of the deed make no mention of "negligence", it was not intended to exonerate Republic from liability for its negligence, particularly in view of the rule that such provisions should be strictly construed against exoneration. Although the word "negligence" is not used, it seems to us it was clearly intended to release Republic from liability for its negligence. Otherwise, most of the exculpatory provisions, including the covenant not to sue, would be without meaning. It is difficult to see how such provisions could have been more comprehensively drafted to relieve Republic from liability for damages, whatever might be the basis therefor, except, perhaps, by specifically using the word "negligence." But failure to use such word is not alone determinative of the intention of the parties. To say it was intended to relieve Republic only from liability for damages based on a nuisance (cf. Terrell *586 v. Alabama Water Service Co., 245 Ala. 68, 70-71, 15 So.2d 727), would be to disregard the plain and unambiguous wording of those provisions exonerating Republic "from any and all claims for damages and all liability by reason of damages either to persons or property which may in any way be caused or occasioned at any time," and the covenant not to sue.
Appellees seem to take the position that since Republic (as contended by appellees but denied by Republic) knew the gases and fumes from the rock pile would probably cause injury to appellees, but nevertheless persisted in using and maintaining it without taking appropriate remedial measures, that such action and failure to act constituted wantonness on the part of Republic. We are unable to agree with this reasoning. Here, there was no duty on Republic to prevent such fumes and gases from going over on the property occupied by appellees, but to the contrary. As already discussed, Republic had an easement giving it the privilege of doing the very thing of which appellees complain and of which they had notice before moving on the property. It would be an anomaly to say, under the circumstances of this case, that Republic had the right to so use the property occupied by appellees, yet would be guilty of wantonness if it did so use it. Consciousness that injury to appellees would probably result cannot, under the circumstances here present, operate to convert Republic's continued rightful use of the property into an act of wantonness; for whatever right appellees had to be on the property was subordinate to Republic's right to have fumes and gases from its rock pile go on and over it. It seems to us that appellees' claimed injuries more properly are chargeable to their continued occupancy of the property after experiencing the presence of the fumes and gases than to the continued doing by Republic of what it had the right to do. We do not think the circumstances of this case establish wantonness on the part of Republic.
From what we have said, it follows that it was reversible error to refuse appellant's requested affirmative charges with hypothesis as to both the negligence and wanton counts in both cases.
Judgments in both cases are reversed and the causes are remanded.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | June 29, 1961 |
cf737178-65aa-466a-b0d9-ddc0b0c60d81 | Aiello v. Aiello | 133 So. 2d 18 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 18 (1961)
Jane Coffey AIELLO
v.
John J. AIELLO.
6 Div. 371.
Supreme Court of Alabama.
September 14, 1961.
*19 McGowen & McGowen and Geo. I. Case, Jr., Birmingham, for appellant.
Ben F. Ray, Birmingham, and Francis F. Welsh, Montclair, N. J., for appellee.
O. J. Goodwyn, Chas. A. Ball, Files Crenshaw, J. H. Berman, R. Luther Ingalls, John Huddleston, F. J. Mizell, Jr., Vincent S. Lamb, John W. Pemberton, Wm. E. Garner, Wm. B. Moore, Jr., and Frank H. Hawthorne, Montgomery, amici curiae in support of appeal.
COLEMAN, Justice.
This is an appeal by respondent from a decree overruling her demurrer to a bill in equity. Complainant characterizes the bill as "his Petition for Declaratory Judgment and Annulment of Final Decree of Divorce." The bill was filed May 15, 1958. It seeks to nullify a divorce decree rendered in the same court some 9 years and 9 months earlier on August 2, 1948, and further, to nullify the purported marriage of complainant to respondent in 1950.
The bill alleges that the 1948 decree was rendered in a suit instituted by Jane Coffey Kip, the instant respondent, against her then husband, Rollin W. Kip; that said Jane never resided in the State of Alabama; that she concocted a fraudulent scheme and came to Alabama for the sole purpose of procuring a "quickie divorce," and as a part of that scheme employed counsel to whom she falsely stated that she lived in Birmingham, well knowing that such statement was false; and that fraud was perpetrated on the court by the sworn testimony of the said Jane as follows:
"which statement was knowingly and corruptly false."
The bill further avers that said respondent, Jane, thereafter, on January 13, 1950, married complainant, in the State of New Jersey, where they lived together until September 4, 1957, when they separated. Complainant alleges that he had no knowledge of said fraud at the time of his marriage to respondent in 1950, and had no part in the perpetration of said fraud.
The bill prays that the court annul the decree of August 2, 1948, and declare that the alleged marriage of complainant and respondent is null and void, and for general relief.
Respondent insists on the grounds of demurrer which raise the point that the bill shows that complainant was not a party to the prior suit and is without standing to attack the 1948 decree; and further, that even if complainant had such standing, the bill shows that it is filed too late.
Complainant argues that the decree of 1948 is void on its face for that "the only proof offered the court below as to residence or domicile were the two short statements contained in the petition and in the testimony before the Commissioner." The two statements appearing in the 1948 proceeding as to residence of the said Jane Coffey Kip are as follows:
*20 In the 1948 bill: "The Complainant is over the age of 21 years and is a bona fide resident of Birmingham, Alabama, Jefferson County."
In her 1948 testimony: "I am over twenty-one years of age and I reside in Birmingham, Jefferson County, Alabama."
Complainant argues also that the instant bill does not show on its face that it is filed too late.
We consider first complainant's argument that the 1948 decree is void on its face.
If a judgment, on the face of its own record is absolutely void, it is a nullity, and the court, on motion of a stranger, may purge the records of the court of such void and impertinent matter. Hartigan v. Hartigan, Ala.Sup., 128 So. 2d 725. If, however, the decree is not void on its face, it cannot be vacated on motion of this complainant or any one else. The only authority of the trial court to set aside a final decree on motion made after thirty days is on the ground that the decree is void on the face of the record for want of jurisdiction of the subject matter or of a party. Vaughan v. Vaughan, 267 Ala. 117, 100 So. 2d 1.
In Levy v. Levy, 256 Ala. 629, 56 So. 2d 344; Volin v. Volin, Ala.Sup., 128 So. 2d 490; and Lorillard v. Lorillard, Ala.Sup., 131 So. 2d 707, this court recently decided, on appeal, that testimony substantially identical with the 1948 testimony here was not sufficient to support the allegation of residence. The holding in those cases, however, is not that a decree, granting a divorce and resting on such evidence as to residence, is void. On the contrary, the decree in each case was affirmed or reversed on appeal for want of evidence. "An appeal will not lie to reverse a void decree. To hold that a decree should be affirmed or reversed is to hold that it is not void." Vaughan v. Vaughan, supra [267 Ala. 117, 100 So. 2d 5]; Capps v. Norden, 261 Ala. 676, 681, 75 So. 2d 915. So the decrees in Levy, Volin and Lorillard were not void, although the decrees were erroneous. If the insufficiency of the evidence did not render those decrees void, then the same insufficiency of evidence does not render the instant 1948 decree void on its face. We so hold.
This holding is not inconsistent with the decision in Hartigan v. Hartigan, supra. The Hartigan opinion states [128 So.2d 729]: "But the 1954 decree in the instant case admittedly was not void on its face." The testimony which supported the 1954 decree in the Hartigan case, with respect to the residence of the parties, was as follows:
By the complainant:
and by one Hazel Daniels:
The Hartigan testimony is not more efficacious to prove residence than is the instant testimony. It is no more than a "bald assertion" that the parties are residents of Birmingham, Jefferson County, Alabama. The statement that complainant lives at a *21 specified street address is merely a bald assertion that she lives there. A statement that a party lives at a certain address does not prove that the party is a resident of Alabama with any greater certainty than does a statement that the party lives in Alabama or is a resident of Alabama. Both statements are conclusions. The instant testimony as to residence is also a conclusion, but is just as effective to prove residence as was the Hartigan testimony. So if the Hartigan decree was not made void on its face by lack of proof of residence, then the 1948 decree in the instant case was not made void on its face by lack of proof of residence. It is firmly established by our decisions that residence in our divorce statutes means domicile. Gee v. Gee, 252 Ala. 103, 39 So. 2d 406.
There is this difference between the Hartigan case and the instant case. In Hartigan both parties to the prior decree were present in court, and, without objection by either party, facts were established to show the fraud practiced on the court and that the court did not have jurisdiction when the prior decree was rendered. In the instant case, both parties to the prior decree are not in court, and the party who is in court is objecting. The Hartigan decree was shown to be void under the facts adduced in court, but the decree was not void on its face.
In response to appellee's argument, we have perhaps written at undue length in comparing the evidence here with that in similar cases. This court has stated that the insufficiency of evidence to support a verdict does not render the verdict or the decree thereon void, and, in the absence of a timely ruling by the trial court on the sufficiency of the evidence, the jury's verdict and the judgment thereon will be upheld notwithstanding the fact that the evidence is insufficient, and this even on a direct attack on such judgment. Wood v. Miller, 264 Ala. 370, 88 So. 2d 560. The insufficiency of evidence to support a final decree does not make the decree void on its face, and the 1948 decree divorcing Jane Coffey Kip from Rollin W. Kip is not void on its face as argued by complainant.
We come then to the question whether the instant complainant, John J. Aiello, who was not a party to the former suit, but who is the purported second husband of a former party, by a marriage which he says is void, has such status as entitles him to maintain the instant bill of complaint and thereby to invalidate the 1948 decree.
If the instant bill be regarded simply as an original bill in the nature of a bill of review, as appellee asserts it is, with the sole purpose of vacating the 1948 decree, it is subject to the objection that according to its averments it is filed too late. An original bill in the nature of a bill of review by analogy should be filed within the period limiting the filing of bills of review, three years; but the limitation prescribed by Equity Rule 66 is not arbitrarily applied to original bills in the nature of bills of review, and where special features or circumstances are shown excusing the delay, the three-year limitation is not always applied to such bills, that is, original bills in the nature of a bill of review. Johnson v. Duncan, 264 Ala. 650, 88 So. 2d 789. The instant bill alleges that the decree of August 2, 1948, "was obtained through fraud perpetrated on the Court * * *." and that complainant, the second husband, on January 13, 1950, the date of his purported marriage to respondent, "* * * had no knowledge of said fraud * * * and that Petitioner had no part in the perpetration of said fraud." When or how complainant acquired knowledge of said fraud is not averred. The bill is subject to two constructions, that he learned of the fraud less than one year before filing the instant bill, or that he learned of the fraud more than one year before filing such bill. Pleadings must be construed most strongly against the pleader, and if the pleading is susceptible of two constructions, one of *22 which would render it good and the other bad, the latter must be indulged because it is the one against the pleader. Puckett v. Puckett, 174 Ala. 315, 56 So. 585. Accordingly, we must indulge the construction that complainant here delayed more than one year after learning of the fraud before he commenced this suit. The suit was filed more than nine years after the divorce decree was rendered and no special circumstances are shown to excuse the delay.
The foregoing conclusion as to delay is reached on the assumption that complainant, as ostensible second husband of a party to the divorce suit, possesses standing to bring an original bill in the nature of a bill of review for the purpose of vacating such divorce decree. That is merely an assumption. He was not a party to the divorce suit. We do not think he possessed, at the time the divorce decree was rendered, any right which was adversely affected by that decree. It does not appear that he stands in privity with either party to the divorce suit. He cannot derive any right from the respondent, the woman he purportedly married in 1950, because, if the 1950 marriage is void as he says it is, then no right could pass to him by a void marriage; and, if the marriage be not void, then he is still the husband of respondent and cannot have their marriage annulled, as he seeks to have done by this suit. We do not decide that he can maintain the instant bill as an original bill in the nature of a bill of review for the sole purpose of vacating the 1948 decree. We do decide that even if he could maintain such a bill for that sole purpose, the instant bill shows on its face that it was filed too late.
The sole purpose of the instant bill, however, is not merely to vacate the 1948 decree. The instant bill does pray that the court will annul the divorce decree of 1948, but it also prays that the court will render a decree declaring that complainant's marriage to respondent is null and void. By whatever name the bill is called, it still seems to us that it is a bill to annul complainant's marriage to respondent. We cannot see where the Declaratory Judgment Act adds or takes away anything with respect to complainant's right to maintain such a bill. The only possible result in a suit on such a bill is a declaration that the parties are, or are not, husband and wife.
The lower court has jurisdiction of the parties, complainant being a citizen of Alabama, and authority to annul the marriage, even though the ceremony was performed in another state. Hamlet v. Hamlet, 242 Ala. 70, 4 So. 2d 901. If complainant is "a bona fide resident citizen of Jefferson County, Alabama," as he alleges, then the Circuit Court of Jefferson County, in equity, has jurisdiction to declare his purported marriage void, if the marriage is void and complainant has not lost the right to maintain the instant bill; and this is so although the purported marriage was celebrated in New Jersey.
This court has, however, refused to annul marriages where the basis of annulment was the claim that a decree divorcing one of the parties from a prior spouse was void, and the basis for holding the decree void was fraud as to residence of the parties perpetrated on the court which rendered the decree.
In Mussey v. Mussey, 251 Ala. 439, 37 So. 2d 921, this court held that the husband was estopped to deny the validity of a Nevada decree, where he was the principal movant in the Nevada proceedings wherein his wife was divorced from her first husband.
The Mussey case cites Fairclough v. St. Amand, 217 Ala. 19, 114 So. 472, 474, where this court denied the right of the first husband to question the validity of a divorce granted to the wife in Alabama, in a suit brought at the instigation of the second husband and based on the fraudulent representation that the wife was *23 domiciled in Alabama. The court said that the second husband, "* * * Fairclough, and not St. Amand * * *," the first husband, was the real actor and party in interest, and was estopped to challenge the validity of the divorce decree. This court said:
We note that circumstances, such as the birth of a child and participation in the fraud by the second husband, were present in Fairclough v. St. Amand, and that those circumstances are not present here. The delay of one year, however, is present. The instant complainant, John J. Aiello, in essence, is asking to be relieved of the injury inflicted on him by fraud of the respondent in representing to him that she was to marry him in 1950. The alleged fraud on the court in 1948 did not even remotely affect complainant prior to 1950.
In Dorsey v. Dorsey, 259 Ala. 220, 66 So. 2d 135, this court held that a bill to annul a marriage, on the ground that the respondent had a living husband by a prior undissolved marriage, was timely filed withone year after the complainant discovered that respondent had not been divorced from her first husband.
If the instant complainant can amend his bill to show that he has been diligent in bringing this suit within one year after his discovery of the alleged fraud and that he was reasonably diligent in making such discovery, then the bill will not be subject to the ground of demurrer charging him with delay.
See also: Quick v. McDonald, 214 Ala. 587, 108 So. 529; Tarlton v. Tarlton, 262 Ala. 67, 77 So. 2d 347.
On behalf of respondent, we are urged to consider deMarigny v. deMarigny, Fla., 43 So. 2d 442, as authority that complainant cannot maintain the instant bill. That case is distinguished from the case at bar with respect to the residence of the complainant. In deMarigny, as we understand the opinion, the State of New York was, at and prior to the filing of the petition, the domicile of the petitioner, and she was not a resident of Florida, the state in which she *24 brought her suit. In the case at bar, the bill alleges that complainant "is a bona fide resident citizen of Jefferson County, Alabama."
The decree appealed from is reversed and one here rendered sustaining the demurrer. The complainant is given thirty days from the date on which the certificate of the clerk of this court reaches the register of the Circuit Court of Jefferson County, in equity, to amend.
We do not think Rollin W. Kip is a necessary party to this suit. He will not be bound by the decree. § 166, Title 7, Code 1940.
Reversed, rendered, and remanded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | September 14, 1961 |
2975f706-603c-4521-b543-191a37cafb06 | Foreman v. Smith | 133 So. 2d 497 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 497 (1961)
Monte B. FOREMAN
v.
J. Craig SMITH et al.
7 Div. 512.
Supreme Court of Alabama.
September 21, 1961.
Jenkins & Cole, Birmingham, for appellant.
Thos. Reuben Bell, Sylacauga, for appellees.
LAWSON, Justice.
In September of 1959 Monte B. Foreman entered into a contract with Mede Cahaba Stable, a partnership composed of Mignon C. Smith and Carol W. Schley, under the terms of which Foreman was employed by the partnership as Director of Horsemanship for a period of one year commencing September 1, 1959.
*498 Mede Cahaba Stable, hereinafter sometimes referred to as the Stable, is a business in Shelby County where horseback riding is taught and practiced and where horses are boarded, trained and rented.
Under the contract it was Foreman's duty to train and instruct student riders and other horsemanship instructors employed by the Stable; to train and school horses owned by the Stable as well as horses owned by customers of the Stable and by Mede Cahaba Stud, a partnership composed of Mignon C. Smith and J. Craig Smith; to conduct riding clinics and to show movies in connection with the operation of the Stable; and to perform such other duties as might be agreed upon by Foreman and the Stable.
The contract provided for the payment to Foreman of a monthly salary of $750 and one-sixth of the annual net profit of the Stable. It also provided for Foreman to receive a percentage of the net profit derived from the sale of horses that were trained by Foreman, whether owned by the Stable, by Mede Cahaba Stud, or by either partner of the Stable. The contract also provided that the Stable would board up to six horses owned by Foreman.
The contract contemplated that Foreman was to spend a part of his time in the preparation of movies, books, articles and other writings for publication and in conducting riding clinics away from the premises of the Stable. Foreman agreed to pay to the Stable twenty-five percent of the net profit received from such activities.
On December 31, 1959, Carol W. Schley conveyed her interest in the Stable to J. Craig Smith, the father of Mignon C. Smith. It was provided in the conveyance, in part, as follows:
In January of 1960 J. Craig Smith, acting for the Stable, discharged Foreman.
On February 22, 1960, Foreman filed suit for $10,000 damages in the Circuit Court of Jefferson County against Mede Cahaba Stable, Mignon C. Smith, Carol W. Schley, J. Craig Smith and others claiming that the discharge was a breach of his contract of employment.
On March 19, 1960, Carol W. Schley filed a bill in the Circuit Court of Talladega County against J. Craig Smith and Mignon C. Smith, individually, and as partners doing business as Mede Cahaba Stable and as Mede Cahaba Stud and against Monte B. Foreman.
It was alleged in that bill that the complainant, Schley, is a resident of Jefferson County; that the respondents J. Craig Smith and Mignon C. Smith are residents of Talladega County; that the respondent Foreman is a resident of Shelby County, where the partnership businesses are conducted.
The bill alleged that the complainant, Schley, is not indebted to or due to pay any sums of money to Foreman; that any sum owed Foreman as a result of his employment or discharge is due to be paid by J. Craig Smith under the purchase agreement; that although the complainant is not liable to Foreman, he will prosecute his suit for damages against Schley and others in the Circuit Court of Jefferson County unless restrained by the court, thereby causing Schley great embarrassment, annoyance and expense; that unless Foreman is restrained by the court he will file *499 other and additional lawsuits against the complainant, monthly, until September 1, 1960, and possibly thereafter.
The bill further alleged that there was an actual controversy between the complainant, Schley, and the respondents upon which substantial property rights are dependent.
The bill prayed for a temporary writ of injunction or temporary restraining order restraining the respondents and their agents, servants and employees from prosecuting the damage suit in the Circuit Court of Jefferson County or taking or requesting any orders or hearings therein and from filing or attempting to file and prosecute any other lawsuit against the complainant, Schley, growing out of her association with the Stable.
The bill prayed that on final hearing the court make permanent the temporary injunction or restraining order prayed for and enter a decree declaring the rights, status or other legal relation of the parties under the contract between the Stable and Foreman and under the purchase agreement of J. Craig Smith from the complainant, Schley, and under and in relation to the damage suit pending in the Circuit Court of Jefferson County; that the court make and enter a decree declaring that the complainant, Schley, is not indebted to Foreman in any amount and that she should be dismissed as a party defendant in the lawsuit pending in the Circuit Court of Jefferson County and that such sums, if any, as should be paid to Foreman should be paid by J. Craig Smith, and for general relief.
On March 25, 1960, J. Craig Smith and Mignon C. Smith, individually and as partners doing business as Mede Cahaba Stable and also as partners doing business as Mede Cahaba Stud, filed their answer and cross bill, to which they made Carol W. Schley and Monte B. Foreman cross-respondents.
The cross bill prayed, among other things, for a temporary injunction restraining Foreman and Schley from making any appearance or proceeding in the damage suit filed by Foreman in the Circuit Court of Jefferson County, to which reference has been made.
Carol W. Schley thereafter filed a motion to dismiss her original bill.
Monte B. Foreman filed a plea in abatement to the cross bill. Cross-complainants filed a motion to strike the plea in abatement.
Foreman interposed demurrer to the cross bill.
On May 31, 1960, the trial court rendered a decree wherein Carol W. Schley's motion to dismiss her original bill was granted. The cross-complainants' motion to strike Foreman's plea in abatement was granted. The temporary injunction prayed for by the cross-complainants was granted. Foreman's demurrer to the cross bill was overruled.
Foreman has appealed to this court from the decree rendered on May 31, 1960, and has assigned as error the action of the trial court striking his plea in abatement, granting the temporary injunction, and overruling his demurrer to the cross bill.
But the appellant, Foreman, has argued in his brief only assignments of error which question the action of the trial court in overruling his demurrer to the cross bill. The other assignments of error will not be treated. They are considered as waived. Romano v. Thrower, 261 Ala. 361, 74 So. 2d 235.
The demurrer was addressed to the cross bill as a whole, so, if any aspect is good as against the argued grounds of demurrer, the decree overruling the demurrer to the cross bill will not be disturbed. Sellers v. Valenzuela, 249 Ala. 627, 32 So. 2d 517; Percoff v. Solomon, 259 Ala. 482, 67 So. 2d 31, 38 A.L.R.2d 1100; Reeves v. Little, 262 Ala. 411, 79 So. 2d 55; *500 Kirkland v. Hub City Finance Co., 267 Ala. 367, 102 So. 2d 11.
The cross bill alleges the age and residence of the parties, the organization of the Stable, the employment of Foreman by the Stable (copy of the contract of employment is made a part of the cross bill), the purchase by J. Craig Smith of Carol W. Schley's interest in the Stable (copy of the conveyance is made a part of the cross bill); and the filing of the suit by Foreman in the Circuit Court of Jefferson County.
The cross bill sets out at some length the reasons why Foreman was discharged and it alleged compliance by the cross-complainants with the employment contract.
After averring that there is an actual controversy between the parties upon which substantial property rights are dependent, the cross bill prayed that the court render a declaratory judgment construing the employment contract and make a declaration of the rights, duties or other legal relations of the parties under that contract; that the court declare that the cross-complainants are not indebted to Foreman in any amount, but that Foreman is indebted to cross-complainants and that he be directed to pay the Stable such sums found to be due; that the court direct Foreman to dismiss his damage suit filed in the Circuit Court of Jefferson County.
We are of the opinion that the argued grounds of demurrer to the effect that the cross bill is without equity in so far as it seeks a declaratory judgment were well taken and should have been sustained. The cross bill shows on its face that there was pending in the Circuit Court of Jefferson County a suit brought by Foreman against the cross-complainants wherein the same identical issues may be adjudicated.
In the case of Auto Mutual Indemnity Co. v. Moore et al., 235 Ala. 426, 179 So. 368, the insurance company insured the truck belonging to one Strachner and the vehicle was involved in an accident injuring the plaintiff, who was riding in the truck. Plaintiff through his father and next friend filed a suit at law against Strachner and his insurance carrier for damages for personal injuries. Thereafter the insurance company filed a bill for declaratory judgment on the equity side of the court seeking a construction of the insurance policy, claiming that if rightly interpreted the contract did not provide coverage and hence the insurance carrier was not liable.
We held that in the action at law the insurance company had a full and complete remedy to have its contract interpreted so as to determine whether it covered the plaintiff's claim and that since the circuit court at law first acquired jurisdiction and had ample power to decide all questions material to the insurer's rights, its jurisdiction should not be be disturbed. We said in part as follows:
Our holding in Auto Mutual Indemnity Co. v. Moore, supra, was not overruled in our recent case of Canal Insurance Co. v. Gillespie, 262 Ala. 629, 80 So. 2d 654, nor was the rule there stated in any wise changed by the 1947 amendment to § 167, Title 7, Code 1940. See Act No. 604, approved October 9, 1947, Acts 1947, p. 444.
The distinction between Auto Mutual Indemnity Co. v. Moore and Canal Insurance Company v. Gillespie is pointed out in the opinion in the latter case and need not be repeated here.
The 1947 amendment of § 167, Title 7, supra, was designed to abrogate our ruling in L. W. Richardson & Co. v. Town of Hamilton, 248 Ala. 585, 28 So. 2d 924, and other cases which held that relief under the declaratory judgment act depended on the absence of another adequate remedy. It has no application to the instant case where there was an existing suit at the time the declaratory judgment proceeding was instituted.
The holding in Auto Mutual Indemnity Co. v. Moore, supra, is in accord with the rule which prevails generally, which is that jurisdiction of a declaratory judgment action will not be entertained if there is pending at the time of the declaratory action another action or proceeding to which the same persons are parties, in which are involved and may be adjudicated the same identical issues that are involved in the declaratory action. See Annotation, 135 A.L.R., p. 934.
In the suit at law pending in the Circuit Court of Jefferson County the cross-complainants here can defend on the ground that Foreman was rightly discharged and may file pleas of set-off and recoupment if they so desire. §§ 350, 352, Title 7, Code 1940; Burnett & Bean v. Miller, 205 Ala. 606, 88 So. 871.
In support of the prayer for injunctive relief, the cross bill alleges:
The mere fact that the cross-complainants will be embarrassed, annoyed and put to expense if Foreman is permitted to continue with his suit in the Circuit Court of Jefferson County is not sufficient ground for the equity court to enjoin the suit at law. The bare allusion to threatened suits is too vague and indefinite to add anything to this alleged ground of equity. Attalla Mining & Mfg. Co. v. Winchester, 102 Ala. 184, 14 So. 565.
In our opinion the cross bill fails to make out a case for the issuance of the injunction as prayed. The bill is without equity in so far as it seeks injunctive relief.
The cross bill fails to show a status of mutual accounts existing between the complainant and respondent, except perhaps by way of conclusion. Wooten v. Wooten, 270 Ala. 191, 117 So. 2d 192. Nor are any facts *502 alleged to show complicated accounts which a jury could not examine and state with requisite accuracy. There is no such complexity of intricacy in the accounts, appearing from the averments of fact in the bill (outside of mere statement of the pleader's conclusion), as show a necessity for a resort to equity for a statement thereof. Attalla Mining & Mfg. Co. v. Winchester, supra; Comer v. Birmingham News Co., 218 Ala. 360, 118 So. 806; Walthall v. Anderson, 215 Ala. 264, 110 So. 299.
We entertain the view that the so-called aspect of the cross bill which sought an accounting is without equity.
Since we have concluded that the bill is without equity in any of its aspects, it follows that the decree of the trial court must be reversed and the cause remanded with directions to dissolve the temporary injunction heretofore issued.
Reversed and remanded with directions.
LIVINGSTON C. J., and MERRILL and COLEMAN, JJ., concur. | September 21, 1961 |
e906a0af-bd69-40cf-a986-82807636cf8d | Wolfe v. Thompson | 235 So. 2d 878 | N/A | Alabama | Alabama Supreme Court | 235 So. 2d 878 (1970)
Houston WOLFE, Mary T. White, Sadie L. Thompson
v.
C. Lenoir THOMPSON II, a/k/a Charles Lenoir Thompson II.
1 Div. 612.
Supreme Court of Alabama.
May 28, 1970.
*879 Wilters & Brantley, Bay Minette, for appellants.
Chason, Stone & Chason, Bay Minette, for appellee.
HARWOOD, Justice.
The setting of this case is a family dispute mainly between Mary Thompson White Richerson, and C. Lenoir Thompson and C. Lenoir Thompson II. Mrs. Richerson is a daughter of Sadie L. Thompson and the two Lenoir Thompsons are respectively her son and grandson.
Mary Thompson White Richerson, Sadie L. Thompson and Houston Wolfe filed a bill alleging that the land involved in this suit was formerly owned by Sadie L. Thompson, who had on 2 November 1964 leased the land to her daughter Mary Thompson White Richerson and Houston Wolfe for a period of ten years, at an annual rental of $700.00 per annum, payable at $100.00 on the beginning of each year, and $50.00 per month on the 16th of each month following.
The lessees agreed to erect certain fences, cultivate, prune, and fertilize a peach orchard on the land, and to keep up the cotton acreage.
The bill further averred that on 17 November 1965, Sadie L. Thompson executed a warranty deed conveying the land to herself and to her daughter Mary Thompson White Richerson jointly, with right of survivorship. This deed was recorded 4 April 1966. The consideration for this deed was $10.00 and other good and valuable consideration. Mrs. Thompson was 85 years old at the time of the execution of the deed.
It was further averred that on 1 August 1966, Sadie L. Thompson executed a warranty deed to the land in question to C. Lenoir Thompson II, reserving the mineral rights to herself, the grantee agreeing to assume a mortgage on the land.
The complainant Sadie L. Thompson averred that the deed of 1 August 1966 was obtained by fraud practiced on her by C. Lenoir Thompson II.
The bill prayed that on final hearing the court enter a decree declaring, (1) that the lease of 2 November 1964 is a subsisting lease and that the lessees thereunder have a right of possession of the land in accordance with the terms of the lease, (2) that Sadie L. Thompson and Mary Thompson White Richerson jointly own the land with right of survivorship, and (3) that the deed to C. Lenoir Thompson II was obtained by fraud, and that the same be set aside.
*880 The respondent filed a demurrer to the bill, and an answer and cross-bill. No ruling on the demurrer appears in the record.
The answer and cross-bill denied the charging allegations in the bill, and averred that the lessees of the land, Mary Thompson White Richerson and Houston Wolfe had breached the lease by failing to prune and cultivate the peach orchard, and permitting waste on the property, and by failing to pay rent.
The cross-bill further averred that the deed on 17 November 1965 by which Sadie L. Thompson conveyed the land to herself and Mary Thompson White Richerson jointly with right of survivorship, was procured by Mary Thompson White Richerson by undue influence exercised over the grantor by Mrs. Richerson. The manner and method by which such undue influence was exercised is set out in various details.
The cross-bill prayed (1) that the lease of 2 November 1964 be declared no longer in effect because of its breach by the lessees, (2) that the deed of 17 November 1966 wherein the land was conveyed by Sadie L. Thompson to herself and Mrs. Richerson be declared void as procured by undue influence, and (3) that the respondent C. Lenoir Thompson II is the owner of the land by virtue of and under the terms of the deed of 1 August 1966.
After a lengthy hearing the court ordered, decreed, and adjudged:
The evidence presented below by the respective parties is in irreconcilable conflict.
That presented by the complainants-appellants on this appeal was directed toward showing that in 1957, Mrs. Richerson left her job with the State Highway Department and returned to live with her mother and father in Perdido. Her mother was 75 years of age at the time and her father was in his eighties. She had been admitted to practice of law in Alabama and at first occupied an office in the law office of her brother C. Lenoir Thompson in Bay Minette. Later after friction developed between her and her brother, she opened a law office in Atmore. The elder Thompson lived in quarters in a restaurant conducted in connection with a small motel operation.
Later Mrs. Richerson's daughter, son-in-law, and their three children came to live there.
It was Mrs. Richerson's testimony that after coming to live with her parents she contributed to their support and looked after them generally. She had drawn the deed whereby the land was conveyed to herself and Mrs. Sadie L. Thompson jointly at her mother's request, her mother stating she had done enough for Lenoir and his family, and Lenoir had probated an earlier will of her sister's when a later will was in existence.
She testified that she had furnished maids to look after her parents, and their living quarters had been suitable and well cared for. She had at no time mistreated her mother or in anywise used undue influence over her.
Several witnesses were introduced by the complainants relative to the condition of the quarters in which the elder Thompsons *881 lived. The tendency of this testimony was that the quarters were suitable.
The elder Thompsons had an income of around $1300 per year, plus some additional money from oil leases and timber sales.
The evidence presented by the respondents was to the effect that when Mrs. Richerson occupied the office in Lenoir Thompson's law office, he paid all of the expenses of maintaining the office. The disagreements between them originated in protests by Mr. Thompson of the squalor and filth in which the elder Thompsons were maintained. Lenoir and Lenoir II testified as to being ordered away by Mrs. Richerson when attempting to visit the elder Mrs. Thompson, sometimes at gun point. Lenoir Thompson testified as to his financial aid to the elder Thompsons, and to the conditions in which they were kept by Mrs. Richerson.
In March 1966, Lenoir went to his mother's quarters to have the place cleaned up. Pictures of the condition of the living quarters prior to being cleaned were taken at this time. These pictures were received in evidence. They depict the unkempt, filthy condition of the quarters.
In late 1966, a house was built apparently near the motel site. According to Mrs. Richerson she contributed substantially to the building of this house. According to the testimony of Lenoir the house was built largely through his efforts. At any rate, Mrs. Richerson and her parents moved into this house though Mr. Thompson was placed in what is described as a small shack in the rear. Mr. Thompson occupied these quarters until his death in 1960. Her daughter, son-in-law and their children remained in a cottage at the tourist court though they ate at the house.
Evidence was presented by the respondents tending to show physical cruelty toward Mrs. Thompson by the complainant, and that Mrs. Thompson stood in fear of the complainant.
There is undisputed evidence that Mrs. Thompson through the years harbored a fear of being placed in a nursing home. Mrs. Richerson testified as to this fear and that she had told her mother she would not be placed in a nursing home. Mrs. Richerson was unsure whether this promise was made at or about the time of the execution of the deed of 17 November 1965.
As to the deed by which Mrs. Sadie L. Thompson conveyed the land to Lenoir II, his father, Lenoir testified that his mother had requested him to draw up a deed conveying the land to Lenoir II. His mother stated she wanted Mrs. Richerson to have the home, and she wanted to convey the land in question to Lenoir II. He drew up four deeds which he turned over to his mother.
Mr. J. B. Blackburn, who has been in the practice of law in Bay Minette since 1928, testified that on 1 August 1966, Mrs. Sadie L. Thompson, accompanied by Lenoir II, came to his office with a deed which she wished to execute. The terms of the deed were discussed at length between him and Mrs. Thompson. At one point Mrs. Thompson stated that if anything happened to Lenoir II before she died, she wanted the land back. Mr. Blackburn suggested that Lenoir II execute a will devising the land to Mrs. Thompson. This was agreeable to Lenoir II, though he wanted the will to devise his property additional to the land to other parties. The will was prepared and executed in Mr. Blackburn's office, and the deed was signed and notarized there. This was the first and only time Mr. Blackburn had performed any legal services for either Mrs. Thompson, or for Lenoir II.
Mrs. Blackburn who serves as Mr. Blackburn's secretary, testified by deposition as to notarizing the deed.
The record shows that on 18 August 1967, the testimony of Mrs. Sadie L. Thompson was taken so that it might be perpetuated for use in a trial of this case. *882 The hearing below was begun on 21 May 1969.
The attorney for the complainants made known to the court that although Mrs. Thompson was present in court she had deteriorated considerably since her testimony was taken, and he would like to use the testimony taken on 18 August 1967 rather than placing Mrs. Thompson on the stand. Mrs. Thompson had suffered a stroke in 1968. The court permitted this to be done.
Actually, it is difficult to attach much probative value to Mrs. Thompson's testimony in view of its intermixture of relevant testimony with long rambling autobiographical recollections by Mrs. Thompson on events completely disassociated from the matters at issue, and occurring long ago.
We have not attempted to detail all of the evidence presented in this rather voluminous record. There is considerably more. We have read the record carefully.
The conclusion is dictated that there is ample legal, material, and relevant evidence to support the conclusions and decree of the Chancellor. While the evidence is in sharp dispute, the evidence was heard ore tenus, and we find nothing that would justify our concluding that the Chancellor's conclusions were plainly and palpably wrong. His conclusions have the force and effect of a jury verdict. Cates v. Cates, 272 Ala. 615, 133 So. 2d 256; Baggette v. Baggette, 279 Ala. 167, 182 So. 2d 898; Mustell v. Rose, 282 Ala. 358, 211 So. 2d 489.
Counsel for appellants contend that no presumption of correctness of the decree can be indulged in this case in that the testimony of Mrs. Blackburn, and of Mrs. Thompson, was by deposition.
Mrs. Blackburn's testimony was only to the effect that she took the acknowledgment of Mrs. Thompson. This deed, with the acknowledgment was made an exhibit to the bill as a part thereof. Her testimony merely corroborated the bill in this aspect.
Mrs. Thompson's testimony, in those instances where relevant, merely tended to corroborate the testimony of several witnesses offered by the complainants.
Where a cause is heard ore tenus, and witnesses give testimony relating to all material issues, the fact that additional depositional evidence is presented, does not in any wise affect the rule of the presumption of correctness to be accorded the trial court's conclusions. McBrayer v. Smith, 278 Ala. 247, 177 So. 2d 571; Hackett v. Cash, 196 Ala. 403, 72 So. 52; Thompson v. Collier, 170 Ala. 469, 54 So. 493.
Counsel for appellants also contend that the decree is erroneous in that a donation from a parent to a child is insufficient to raise a presumption of undue influence since the parent, in the absence of evidence to the contrary, is presumed to be the dominant party. McLeod v. McLeod, 145 Ala. 269, 40 So. 414.
The relationship of parent and child is confidential. Tipton v. Tipton, 249 Ala. 537, 32 So. 2d 32.
In transactions inter vivos, where the parties stand in confidential relationship, and evidence tends to show that the beneficiary is the dominant party, the law raises a presumption of undue influence and casts upon the beneficiary the burden of repelling such presumption when the transaction is assailed. Jones v. Boothe, 270 Ala. 420, 119 So. 2d 203, and authorities cited therein.
Implicit in the decree is the Chancellor's conclusion that Mrs. Richerson was the dominant party in the conveyance whereby Mrs. Thompson conveyed the land to herself and Mrs. Richerson jointly, with right of survivorship. The burden was therefore upon the complainants-appellants to show that the transaction was fair, just, *883 and equitable in every respect. Tipton v. Tipton, 249 Ala. 537, 32 So. 2d 32; Jones v. Boothe, supra. This they failed to do to the satisfaction of the Chancellor. There is evidence, or reasonable inferences therefrom tending to support the Chancellor in this aspect.
We have found no sufficient basis in this record to authorize a holding by us that the Chancellor erred in the decree rendered.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and MADDOX, JJ., concur. | May 28, 1970 |
db9979d3-8ae9-406a-aefe-7280031ebb29 | Whitman v. HOUSING AUTHORITY OF ELBA | 130 So. 2d 362 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 362 (1961)
Basil WHITMAN et ux.
v.
HOUSING AUTHORITY OF the CITY OF ELBA.
4 Div. 39.
Supreme Court of Alabama.
May 25, 1961.
G. A. Lindsey, Elba, for appellants.
Joe C. Cassady, Enterprise, for appellee.
SIMPSON, Justice.
The appellee filed its application to condemn certain lands (Tracts 6, 7, and 8) in the City of Elba. The commissioners' award to appellant in the probate court was $10,000 and judgment was entered accordingly. The appellee appealed from this judgment to the circuit court and demanded a jury trial. Upon trial in the circuit court the jury assessed the damages of appellant as to Tracts 6 and 7 at $25,000 and as to Tract 8 at $550.
This appeal is from the judgment of the lower court granting appellee's motion for a new trial on the ground that the verdict was excessive. The motion for new trial was granted after appellant refused to file a remittitur of $11,500 thus reducing the verdict and judgment to $13,500 which the trial court stated as a condition to the denial of the motion for a new trial.
The sole question presented is whether the granting of the motion for new trial on the ground of excessiveness of the verdict was error to reverse.
In Taylor v. Brownell-O'Hear Pontiac Co., 265 Ala. 468, 470, 91 So. 2d 828, 829, we stated the governing principle:
In Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447, 449, the holding was that a new trial for excessive or inadequate damages will be granted only where the verdict plainly indicates bias, passion, prejudice, or the like. Further speaking from Yarbrough, supra, "The basic reason for disturbing the verdict of a jury because of excessive or inadequate damages is precisely the same as for disturbing it because not supported by the evidence, or because opposed to the clear and convincing weight of the evidence. In the one case the inquiry is directed to one feature of the verdict; the damages awarded."
The jury was permitted to view the premises and it is true that when the jury is so permitted it is not bound by the estimate of damages given by expert testimony. The expert testimony was in conflict, but the trial court had a definite and well-considered opinion that the verdict failed to do justice between the parties and it had the right and was under the duty to set aside and grant a new trial. The trial court saw and heard the witnesses and personally viewed the premises, and on appeal some presumption must be indulged in favor of his ruling on this account. Airheart v. Green, 267 Ala. 689, 104 So. 2d 687.
We cannot examine the deliberations of the jury to determine what caused the verdict. The evidence, the verdict, and the facts clearly disclosed by the evidence furnish the determining data. Where as here the trial court has ordered a remittitur of a specified amount and conditioned the granting of the new trial upon compliance with his order to remit, the question here involves a review of the trial court's judgment based upon his observations of all the witnesses in the case and other incidents of the trial which are not reflected in the transcript and which are not available for observation by us. The action of the trial court in conditioning the granting of a new trial to the appellee upon filing of a remittitur by the appellant is favored in proper cases for the promotion of justice and the ending of litigation. Airheart v. Green, supra.
We have carefully considered all of the evidence and we find ourselves unable to say that the evidence plainly and palpably shows that the trial court was in error. Cases, supra.
We think the conclusion below is due to be sustained. So ordered.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | May 25, 1961 |
8ff8ed9b-4abc-432d-a640-159916294f9d | Peavy Lumber Company v. Murchison | 130 So. 2d 338 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 338 (1961)
PEAVY LUMBER COMPANY et al.
v.
O. E. MURCHISON et al.
3 Div. 919.
Supreme Court of Alabama.
May 25, 1961.
*339 Woodley C. Campbell and Azar & Campbell, Montgomery, for Peavy Lumber Co.
A. Pope Gordon, Montgomery, for Wilson Bros.
Walter J. Knabe and M. R. Nachman, Jr., Montgomery, for appellee Murchison.
Rushton, Stakely & Johnston, Montgomery, for Cox Electric Co.
SIMPSON, Justice.
This is an appeal from the Circuit Court of Montgomery County, In Equity, where appellee, O. E. Murchison, filed a bill of complaint described as being a bill of interpleader or bill in the nature of a bill of interpleader. Named as respondents are Jack Cox, d/b/a Cox Electric Company, to be referred to hereafter as Cox Electric Company; H. O. Peavy and Peavy Lumber Company, hereafter referred to as Peavy Lumber Company; F. B. Wilson and Wilson Brothers Tile Company, to be referred to as Wilson Brothers Tile Company; L. C. Shepherd and M. C. Shepherd, d/b/a Shepherd Brothers Plastering Company, to be referred to as Shepherd Brothers Plastering Company; and R. N. Dalrymple.
It is alleged in the bill of complaint that complainant appellee here, entered into a construction contract with Dalrymple and that complainant is obligated to said respondent in the sum of $988; that complainant is willing to pay the indebtedness to the party or parties entitled thereto but a controversy has arisen as to who is entitled to receive the fund, for each of the respondents has notified complainant claiming such fund. Complainant deposited the sum of $988 into the registry of the court.
After the bill of complaint was filed, Cox Electric Company filed a pleading labeled "Answer and Claim" that contained a general prayer of relief, wherein said respondent disclaimed any specific interest in the amount interpleaded, but that respondent showed he had obtained a judgment against R. N. Dalrymple which judgment had been duly recorded and the satisfaction of said judgment was not dependent upon respondent establishing a claim to the interpleaded amount.
The amount of $788.94 was the claim propounded to the fund by respondent Peavy Lumber Company. With its claim said respondent averred that on April 23, 1959 notice was given complainant that a materialmen's lien was claimed and such notice was filed on April 24, 1959. The claim of $260 was propounded and filed by respondent Wilson Brothers Tile Company, and this claim showed unto the court that notification of a materialmen's lien by respondent against complainant was served on May 23, 1959 and filed in the office of *340 the Judge of Probate of Montgomery County within four months after furnishing said materials. Respondent Shepherd Brothers Plastering Company filed their answer in which the sum of $90 was claimed to be due to them from complainant or Dalrymple.
The cause was submitted for final decree upon the pleadings and complainant's exhibit, a certificate of the judgment obtained by respondent Cox Electric Company against respondent Dalrymple for the sum of $345.29 and $19 costs. From the final decree, it appears that the court found that the recorded judgment of April 20, 1953 in favor of Cox Electric Company was a judgment lien in existence prior to the commencement of the work for which materials and labor were furnished by the other respondents and said lien attached to the money subsequently acquired by respondent Dalrymple; that respondent Cox Electric Company had a claim in and to the amount interpleaded prior to the claims of respondents. Therefore, the court decreed that the following disbursements be made out of the sum of $988: (1) To Cox Electric Company, $504.94; (2) To complainant, $125 as reasonable attorney's fees; (3) The sum of $66.28 as court costs; (4) The balance of said sum of $988 in the following percentages, said percentages representing their pro rata share of the balance of said fund as lien-holders who stand on equal footing with one another: To Peavy Lumber Company, 69% ($208.25); to Wilson Brothers Tile Company, 23% ($69.41); and to Shepherd Brothers Plastering Company, 8% ($24.14). Complainant was discharged and fully released from any liability to any of the respondents, and an injunction issued preventing any suit or claim in law or equity for any obligation to Dalrymple.
We are of the opinion that a proper case of interpleader was made out, and there was no error in the trial court's allowing attorney's fees to appellee as claimed in the bill of complaint. Johnson v. Malone, 252 Ala. 609, 42 So. 2d 505; Loop National Bank of Mobile v. Cox, 261 Ala. 148, 73 So. 2d 364; Equity Rule 36, Code 1940, Title 7, Appendix.
Admittedly, the certificate of judgment was issued and registered in compliance with §§ 584 and 585 of Title 7, Code of 1940, which had the effect of an execution in the hands of the sheriff as an instrumentality of preserving a lien in favor of the judgment creditor on all property of the judgment debtor subject to levy and sale under execution in the county wherein such judgment is registered. This lien attaches when the certificate is filed. Peterson et al. v. Drennen Motor Car Co., 256 Ala. 99, 53 So. 2d 375; Harris v. Jenkins, 265 Ala. 315, 90 So. 2d 764.
The second paragraph of § 519, Title 7, Code of 1940, subjects to levy and sale under execution "personal property of the defendant (except things in action), whether he has absolute title thereto, or the right only to the possession thereof, etc." (Emphasis supplied.)
We said in White v. Gibson, 221 Ala. 279, 128 So. 784, 785:
See also Robinson v. Eppes, 252 Ala. 242, 40 So. 2d 326.
In common parlance of the law, a thing in action is designated a chose in action and means literally a thing in action. A thing in action is properly distinguished from a thing of which the owner has the actual or constructive possession, but for which an action may be brought to reduce it to possession. It is commonly termed a chose in action, and is a personal right to demand money or property by an action.
In 42 Am.Jur., Property, § 26, the following is stated:
See also Am.Jur., supra, § 27.
Therefore, the question arises, was the unpaid balance which is undisputedly owing to the general contractor, R. N. Dalrymple, subject to levy and sale under execution, or was it exempt as a result of being a "thing in action"? We think that the unpaid balance due the general contractor pursuant to the construction contract between the owner and the general contractor, was a thing in action and not subject to levy and sale under execution. The sum due under the unpaid balance to the general contractor did not become money in the hands of the judgment debtor and become property subject to levy and sale under execution. Therefore, we are at variance with the decision of the learned trial court in subjecting the impleaded funds to the satisfaction of the judgment lien of Cox Electric Company to the prejudice of the materialmen whose liens are upon the building and land and the unpaid balance due the original contractor.
The following cases affirm the correctness of this conclusion: Crane Co. v. Sheraton Apartments, Inc. et al., 257 Ala. 332, 58 So. 2d 614; Standard Sanitary Mfg. Co. v. Aird, 221 Ala. 520, 129 So. 285; Le Grand v. Hubbard, 216 Ala. 164, 112 So. 826. We regard the last cited case as practically identical in legal effect with the instant case and conclusive against the contention of appellees.
It results, therefore, that the judgment must be reversed and the cause remanded with directions that the lower court adjudicate the rights of the respective parties in accordance with this holding. So ordered.
Reversed and remanded with directions.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | May 25, 1961 |
4a1f99b1-8b42-4659-a801-0bf2b0b4f508 | Morgan v. SOUTH CENT. BELL TELEPHONE CO. | 466 So. 2d 107 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 107 (1985)
Robert E. MORGAN, individually, Edwin M. Speed, individually, and Robert E. Morgan & Edwin M. Speed, P.A., a professional association
v.
SOUTH CENTRAL BELL TELEPHONE COMPANY, a corporation.
82-1273.
Supreme Court of Alabama.
February 22, 1985.
*110 Leo E. Costello, Costello & Stott, Birmingham, for appellants.
Robert W. O'Neill, Anita Leslie Cochrane, Lawrence B. Clark, Atley A. Kitchings, Jr., and Fred J. McCallum of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee South Central Bell Telephone Co.
John D. Clements and Michael L. Lucas, of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellee L.M. Berry & Co.
EMBRY, Justice.
This is an appeal from a judgment notwithstanding the verdict. Plaintiffs Robert E. Morgan (Morgan), Edwin M. Speed (Speed), and their professional association (the "Association") sued South Central Bell (Bell) and L.M. Berry & Company (Berry) to recover damages they claim were incurred as a result of the omission of Morgan's name from the Yellow Pages of the 1978 and 1979 Birmingham telephone directories and the 1980 Bessemer directory. After a jury verdict in the amount of $57,000 in favor of plaintiffs, the trial court granted defendants' motion for judgment non obstante veredicto, and awarded the plaintiffs nominal damages of $25. Before addressing the issues, we will review the facts from which this dispute evolved.
Speed and Morgan are periodontists, dentists who are trained to treat gum disease. Drs. Speed and Morgan both taught at the University of Alabama Dental School until their retirement, when they decided to form a professional association for private practice.
Speed and Morgan divided the responsibilities for setting up their office. Speed arranged for telephone service. He spoke with a person at Bell on several different occasions to find out how both he and Morgan could be placed in the Yellow Pages with a telephone number and address for an office not yet completed. He found out that, in order to obtain a listing for them in the Yellow Pages, they would have to have a telephone installed on a pole outside the uncompleted office building. The order for service was then placed by Speed.
Speed contends that he stressed to Bell, when he requested service, the importance to the association of having both his and Morgan's name placed in the Yellow Pages for advertisement. At the time Morgan and Speed opened their offices, the only permanent form of advertising permitted by the State Board of Dental Examiners was a listing in the Yellow Pages.
In August of 1978, when the 1978 Birmingham telephone directory was delivered, Morgan and Speed discovered that Speed's name was listed properly in both the Yellow and White Pages, and that Morgan's name was listed in the White Pages, but not in the Yellow Pages.
Morgan telephoned Bell, received apologies for the omission, but was told that nothing could be done for him. He was told to contact Bell at a later time for corrections. During the conversation, it was confirmed that Bell had the correct information for the desired listing of both Speed and Morgan.
Several months later, because of errors in the Yellow Pages resulting from conversion to the use of computers, a supplementary directory for 1978 was distributed by South Central Bell. Morgan's name did not appear in that directory either. It was Bell's position at trial that the supplementary directory was issued for the purpose of correcting the errors in the earlier 1978 directory and not for the purpose of making any additions or deletions as a result of information obtained after the publication *111 of the first Yellow Pages directory. However, the plaintiffs contend Bell had made a mistake in their 1978 listings and that the mistake should have been corrected by the supplement.
After the supplementary directory was issued, Morgan again telephoned Bell and again received apologies, plus another confirmation that Bell had had the correct information all along. At that time, however, Morgan was told there might be a problem with Berry, a company under contract with Bell to sell advertisements for the Yellow Pages. Morgan then called Berry and was told that work had not yet begun on the 1979 directory. He was told to contact Berry after the new year.
After the first of the year (1979), Morgan contacted Berry and explained his problem again. In that conversation with Berry, Morgan asked if there was anything further he needed to do in order to get his name in the Yellow Pages. Berry told him there was nothing further for him to do.
Several weeks later, Morgan received a telephone call from Berry inquiring if any further changes were desired in the Yellow Pages listing. Morgan's secretary relayed the message to him, and Morgan replied, through his secretary, there were no further changes. He claims he assumed, because of his prior conversation with Berry, that they had the correct information.
When the 1979 directory was delivered, Morgan and Speed discovered Morgan's name had once again been left out of the Yellow Pages. Morgan immediately telephoned Bell and confirmed again that Bell had the correct information and Bell could offer no explanation for the omission. Bell said once again it could be the fault of Berry.
Morgan then went to Berry's office, where he was told Berry had no record regarding the matter.
On 27 December 1979, the complaint in this case was filed by Speed and Morgan.
After this law suit was filed, a Berry sales representative came to the office of Speed and Morgan and prepared a contract for the purpose of listing them both in the 1980 Yellow Pages. Both Speed's name and Morgan's name were then correctly included in the 1980 Birmingham Yellow Pages.
Meanwhile, however, Morgan and Speed had opened an office in Bessemer. Chris Allen, a representative of Bell, came by the Centerpoint office to talk with Morgan about the Association's Bessemer needs. Allen assured Morgan at the conclusion of their talk, after having been informed of the pending lawsuit, that Morgan's name would appear in the Bessemer Yellow Pages. When the Bessemer directory was published, Morgan's name was, for the fourth time, correctly listed in the White Pages, but omitted from the Yellow Pages.
It was undisputed at trial that, under South Central Bell policy, the only way Morgan's name could get into the Yellow Pages is by way of a contract with Berry. As explained by Lucy Brasher, a manager with South Central Bell, when a subscriber orders telephone service, he is entitled to a free listing in both the Yellow and White Pages. Any further listing in either the White or Yellow Pages is referred to as an "additional listing." To obtain an additional listing in the White Pages, the subscriber deals with South Central Bell. That is why Morgan's name consistently appeared in the White Pages. To obtain an additional listing in the Yellow Pages, a subscriber must deal with Berry, which, pursuant to its contract with Bell, solicits listings in the Yellow Pages, and sends orders for additional listings to Bell. Plaintiffs contend they were never, until trial, made aware of this arrangement by agents of Bell or Berry.
To summarize the above facts, Dr. Speed's name was at all times listed in the Yellow and White Pages of the telephone directory just as he wished. Dr. Morgan's name was at all times listed in the White Pages, but was omitted from the 1978 Birmingham *112 Yellow Pages, the 1978 supplementary Yellow Pages, the 1979 Birmingham Yellow Pages, and the 1980 Bessemer Yellow Pages.
Before addressing the issues presented on appeal, it is crucial to the reader's understanding of those issues to examine the plaintiffs' complaint and several trial court rulings which set the stage for this appeal.
Concerning the 1978 and 1979 Birmingham directories, the plaintiffs alleged fraud, negligence, and breach of contract. Relative to the 1980 Bessemer directory, the plaintiffs alleged fraud against Berry and breach of contract against both Bell and Berry.
The trial court granted motions for a directed verdict filed by each of the defendants on the fraud and negligence counts as they related to the 1978 Birmingham telephone directory because those claims were barred by the one-year statute of limitations. The court also granted Berry's motion for directed verdict on the breach of contract count as it related to the 1978 directory and the fraud count as it related to the 1980 directory.
Even though the court had eliminated the negligence claim arising from the 1978 Birmingham directory, and despite the fact that there had never been a negligence claim, or a fraud claim in connection with the 1980 Bessemer telephone directory against Bell, the trial court instructed the jury to consider such charges in the form of a special interrogatory. Those special interrogatories which were submitted to the jury, and the jury's responses, are set forth below:
Defendants did not specifically object to the inclusion of counts for which directed verdicts had been granted.
Both defendants filed post-trial motions for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The trial court entered an opinion and order *113 granting judgment notwithstanding the verdict. It did not rule on the alternative new trial motions. The trial court left the jury's verdict for the plaintiff intact but, as previously stated, remitted damages to nominal damages in the amount of $25.
Plaintiffs appeal, asking this court to reinstate the original judgment, or suggest a remittitur of the original judgment, giving them the option of accepting a reduced judgment or taking a new trial.
A motion for judgment notwithstanding the verdict tests the sufficiency of the evidence in the same way as a motion for directed verdict at the close of all the evidence. Granting the motion for judgment notwithstanding the verdicts says, without weighing the credibility of the evidence, there can be but one reasonable conclusion from the evidence as to the prior judgment. Warren v. Ousley, 440 So. 2d 1034 (Ala.1983).
In reviewing the trial court's allowance of judgment notwithstanding the verdict, the test we apply, is whether, under the scintilla rule, the evidence, when it is viewed in the light most favorable to the plaintiffs, supports their case. Rule 50(e), ARCP; Harville v. Goza, 393 So. 2d 988 (Ala.1981).
Plaintiff's brief lists twelve issues for our consideration. After carefully reviewing the briefs and the record, we are of the opinion that these twelve issues are embraced in the following:
The trial court, in its final order, addressed each of the issues raised on appeal. That court's conclusions will be set forth below in the discussion of each issue.
First, we consider whether there was sufficient evidence for submission of a fraud count to the jury and to support the jury's award of punitive damages.
Speed and Morgan allege, in their claim based on fraud, that Bell and Berry failed to inform them a written contract was needed in order to be included in the yellow pages. There was evidence at trial that a written contract with Berry was needed. They further allege that Morgan was repeatedly told he needed to take no further action in order to be properly listed when, in fact, further action was needed.
Appellees argue the evidence did not support a finding they were guilty of fraud nor was the evidence sufficient for an imposition of punitive damages authorized by Code 1975, § 6-5-101. That section states:
Here, we are concerned with "[m]isrepresentations... made ... without knowledge." A false representation, even if made by mistake or innocently, is a legal fraud, and this section applies, entitling a plaintiff to compensatory damages. However, punitive damages may not be recovered in such an action unless the fraud is gross, malicious, oppressive and is made with knowledge of its falseness, or so recklessly made as to amount to the same thing *114 and is made with the purpose of injuring the plaintiff. Gulf Shores, LTD. v. Powrzanos, 442 So. 2d 71 (Ala.1983); Randell v. Banzhoff, 375 So. 2d 445 (Ala.1979), cert. denied 444 U.S. 1081, 100 S. Ct. 1034, 62 L. Ed. 2d 765 (1980).
An award of punitive damages is largely discretionary with the factfinder, in this case, the jury. Winn-Dixie Montgomery, Inc. v. Henderson, 353 So. 2d 1380 (Ala.1977). Applying the rule of law to the facts here, however, we find that, while the evidence supports a finding that defendants were guilty of fraud, the evidence is insufficient for an imposition of punitive damages.
The plaintiffs offered no proof that anyone from either Bell or Berry possessed the requisite intent to deceive or injure them. In fact, Morgan testified he never thought anyone from Bell or Berry intentionally lied to him or was trying to "do him in."
The trial court also held that an action for negligence was not supported by the facts. That court improperly characterized defendants' negligence in their performance of contracts entered into with the plaintiffs as nonfeasance rather than misfeasance. There is, in Alabama, no tort liability for nonfeasance for failing to do what one has promised to do in the absence of a duty to act apart from the promise made. On the other hand, misfeasance, or negligent affirmative conduct in the performance of a promise generally subjects an actor to tort liability as well as contract liability for physical harm to persons and tangible things. See C & C Products, Inc. v. Premier Industrial Corp., 290 Ala. 179, 186, 275 So. 2d 124 (1972); and Garig v. East End Memorial Hospital, 279 Ala. 118, 182 So. 2d 852 (1966).
This distinction arises from the general rule of tort law to the effect that one who acts is under a duty to exercise reasonable care to avoid physical harm to persons and to property of others and this general duty or obligation would extend to parties in bargaining transactions such as sales and service transactions as well as to those who are not parties to bargaining transactions. Entering into a bargaining transaction, pursuant to which one party promises to do something, does not alter the fact that there was a preexisting obligation to act with reasonable care to avoid harm. Prosser, Selected Topics in the Law of Torts, 655, at 655-667 (1984).
The rule which seems to have emerged from the decisions in the United States is that there will be liability in tort whenever misperformance involves a foreseeable, unreasonable risk of harm to the interests of the plaintiff or where there would be liability for performance without the contract. More simply stated, we must determine whether there is a legal duty sufficient to support an action for negligence. For that determination, three primary considerations are important: (1) the nature of the defendant's activity; (2) the relationship between the parties; and (3) the type of injury or harm threatened. Id., p. 655.
The relationship between plaintiffs and defendants was primarily a contractual one. However, under the circumstances of the contract entered intowhere plaintiffs were clearly dependent on the Yellow Pages as their only form of advertisement, defendants were aware of that dependency, and, though undertaking to perform the contract, did so in such a negligent and slipslod manner that plaintiff Morgan's name was omitted from the Yellow Pages four times in successionthere is clearly tort liability. Furthermore, the type injury and harm threatened, and finally, actually incurred, was such that the imposition of tort liability is here appropriate.
Next we consider whether there was sufficient evidence to support the jury's award of compensatory damages for lost profits. In support of that award, Morgan and Speed offered two forms of evidence. First, they offered testimony by a former patient of Morgan's that he searched for *115 Morgan's name in the phone book and would have used his services had he been able to locate Morgan.
Second, they offered testimony by Morgan and by a statistician at the University of Alabama in Birmingham concerning a statistical survey conducted by the plaintiffs to prove that lost profits during their first year in operation were due to the omission of Morgan's name from the Yellow Pages directory. They also attempted, from that survey, to forecast the amount of time which would be necessary for the Association to recoup losses due to the omission.
Morgan actually conducted the survey, which was a simple sampling during three separate periods of a week each, the purpose of which was to make a "yardstick comparison" of the number of patients the Association received as a result of Speed's advertisement in the Yellow Pages to the number of patients Morgan received as a result of such advertisement (zero).
The trial court excluded testimony concerning the survey and plaintiffs presented that testimony, for the record, outside the presence of the jury. Morgan presented ample testimony concerning his credentials as an experienced statistical researcher, and then proceeded to describe his survey. During the three separate weeks, he questioned each patient that came into the Association's offices as a patient for full mouth surgery. He determined that, during the first week, of five new surgical patients, one arrived solely as a result of the Yellow Page advertisement. During the second week, out of six new patients, two arrived solely as a result of the Yellow Page advertisement. During the third week, out of seven new patients, two came in as a result of the Yellow Page advertisement.
After having arrived at a figure of 1.6 patients per week for 48 weeks, and multiplying by the $700 normal fee for full mouth surgery, the total loss for 1978 came to $53,760.
Also out of the presence of the jury, Dr. Alfred Bartolucci gave testimony about Morgan's statistics. He is the chairman of the Department of Bio-Statistics and Bio-Mathematics at the University of Alabama in Birmingham. His status as an expert in statistical research was established and went unchallenged.
Dr. Bartolucci examined and made computations on Morgan's surveys. It was his opinion that Morgan had made a reliable survey in that it was not "time dependant" (it was conducted over different seasons), and that the sample of people surveyed was large enough so that the inferences could be projected onto the total number of patients the Association would have had for the year. Dr. Bartolucci stated that, in his opinion, Morgan's data were reasonable and the projections derived from the data were reasonable.
The trial court sustained defendants' objections to the evidence and excluded it from trial. It was that court's opinion that the plaintiffs' evidence as to lost profits was overly speculative. Despite the trial court's ruling, and without objection from defendants, counsel for Morgan questioned him before the jury to determine whether he had a judgment as to the percentage of patients who came to his office as a result of the Yellow Page alone. He answered, "One point six per week." Morgan further testified that the average charge in effect at the time for full mouth surgery was $700 per patient.
The rule in Alabama concerning proof of lost profits was set forth in Paris v. Buckner Feed Mill, Inc., 279 Ala. 148, 149, 182 So. 2d 880, 881 (1966), by Justice Simpson:
*116 This general rule is applied in most states, and is referred to as the rule of "reasonable certainty." The United States Supreme Court, in Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S. Ct. 248, 75 L. Ed. 544 (1931), stated that this rule precludes only those damages not resulting from the wrong, allowing damages stemming from the wrong but uncertain in amount.
In essence, the rule dictates that recovery will ensue despite the fact damages cannot be calculated with mathematical certainty or without difficulty where they are clearly proximately caused by the wrong. The Fifth Circuit Court of Appeals once remarked, "Contracts do not evanesce because of the perplexities in their construction, and their consequences cannot be ignored because of vexations in damage ascertainment." Fujimoto v. Rio Grande Pickle Co., 414 F.2d 648, 656 (5th Cir.1969). More simply stated, the rule dictates recovery will ensue despite the fact damages cannot be calculated with mathematical certainty. To disallow damages unless absolutely certain would encourage breach of contract with new businesses and with those whose profits fluctuate.
We think, after having reviewed the evidence of lost profits submitted by the plaintiffs, that they supplied evidence providing a reasonable basis for the jury to approximate the damages sustained and to support their theory of proximate cause. They presented expert testimony as to losses which were calculated by a rational means. Their measure of losses involved a commonly acceptable practice of making a horizontal comparison of two businesses. In this case, it involves a comparison between two professionals in the same business, Morgan and Speed. This approach gauged Morgan's expectancy interest relative to profits directly resulting from his advertising in the Yellow Pages. The reliability of this approach is increased by the similarity of the circumstances Speed and Morgan entertained.
While the survey prepared by Morgan and Speed did not allow for exact computations, it did provide a basis from which the jury could, with reasonable certainty, calculate the amount of profits which were lost as a result of defendants' failure to list Morgan's name in the Yellow Pages.
Next, we consider whether defendants could properly, by virtue of an exculpatory clause, limit their liability for negligence or breach of the 1980 contract for services to the Association's office in Bessemer.
The first page of the 1978 and 1979 Yellow Pages contains the following statement:
No evidence was presented in the trial of this case that the plaintiffs knew or were on notice of such limitation with respect to the 1978 and 1979 Birmingham Yellow Pages.
Relative to the 1980 Bessemer Yellow Pages, however, an advertising order signed by Morgan states that the listing is subject to the terms and conditions set forth on the reverse side of that document. The reverse side of the order states under paragraph 7 as follows:
*117 The trial court held that exculpatory clause in the 1980 contract valid and enforceable. Plaintiffs contend the clause was not freely bargained for, is unconscionable in nature, and should not be enforced by this court.
We recently considered the issue of exculpatory clauses relative to the residential leases in Lloyd v. Service Corp. of Alabama, 453 So. 2d 735 (Ala.1984). There we held that we would refuse to enforce exculpatory clauses in residential leases where not clearly bargained for and where the parties to the contract are not in an equal bargaining position. The burden of proof was placed on the party attempting to enforce the exculpatory clause.
The instant case illustrates the need for a more comprehensive rule concerning exculpatory clauses. A review of the various methods by which other states have dealt with exculpatory clauses and their refusal to enforce them convinces us that the best rule, and the simplest in application, is that exculpatory clauses affecting the public interest are invalid. That rule was set forth by the California Supreme Court in Tunkl v. Regents of the University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441 (1963). Six criteria were established to identify the kind of agreement in which an exculpatory clause is invalid as contrary to public policy.
The transaction before this court clearly meets the Tunkl criteria. The contract arises out of a private business transaction of the telephone company which in all other respects is regulated by the Public Service Commission in performing its services. Certainly, the telephone company would not argue that it is engaged in a business other than one which performs a service of great importance to the public when it distributes a Yellow Pages book without cost to every telephone customer. The telephone company without question holds itself out as willing to give reasonable public service to all who apply for an advertisement in the Yellow Pages.
As to whether the telephone company, which is invoking exculpation, possesses a decisive advantage of bargaining strength, the courts have differed. Some courts hold that there are many other modes of advertising which the businessman may employ if the contract offered him by the telephone company is not attractive. Wille v. Southwestern Bell Telephone Co., 219 Kan. 755, 549 P.2d 903, 910 (1976).
The issue, however, is not whether there are other forms of advertising available, but whether such other modes are tied directly to the telephone service enjoyed by almost every home and business in the state. The telephone company has an exclusive private advertising business which is tied to its public utility service of providing telephone service and which reaches almost every home and office in the state. Therefore, the telephone company can state to a customer that an ad will be published *118 but name its own terms, including a limitation of its own liability for negligence.
We are satisfied that the plaintiffs did not have a meaningful choice relative to the inclusion of an exculpatory clause in the 1980 Bessemer contract and that the defendants had the bargaining power in a gross and unbalanced manner in determining the terms and conditions in the directory advertisement.
Therefore, the exculpatory clause is unenforceable because, under the criteria above established, it is invalid as contrary to public policy.
For the above stated reasons, we reverse the trial court's judgment and remand the cause to that court for new trial.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, BEATTY and ADAMS, JJ., concur.
SHORES, J., recused. | February 22, 1985 |
61c61f68-a85a-4ff4-92ff-35bfadea4302 | Robinson v. Morrison | 133 So. 2d 230 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 230 (1961)
Major ROBINSON, as Adm'r,
v.
Willis C. MORRISON.
3 Div. 796.
Supreme Court of Alabama.
June 29, 1961.
Rehearing Denied September 21, 1961.
*232 Knabe & Nachman, Montgomery, for appellant.
Thos. F. Parker and J. O. Sentell, Jr., Montgomery, for appellee.
LIVINGSTON, Chief Justice.
The appellant, Major Robinson, brought this action under Alabama's wrongful death statute, Title 7, Sec. 123, Code of Alabama 1940, seeking to recover punitive damages as administrator of the estate of Sallie Williams, deceased.
Sallie Williams was killed in a traffic accident which occurred on U. S. Highway 231 about three miles north of the city limits of Montgomery, Alabama, on April 20, 1956, at about 1:30 p. m. The highway is a divided one, and the southbound lane, scene of the occurrences leading to this suit, is about 23½ feet wide. The road is straight, and slightly downhill to the southbound traveler, and there are no obstructions to visibility. On the date, and at the time in question, a car driven by one James Gray was stopped on the left side of the left lane of the southbound lane, waiting to turn left and cross into the northbound lane. He was at a paved, regular crossover, and his car, already angled into the crossover, occupied a space equal to one-half a car width, in the lane. Defendant Morrison was proceeding south in the right lane of the "lane" at a speed of forty miles per hour, as he testified, or something less than fifty, as the motorist immediately behind him, witness Carter, testified. The deceased had left a store some distance from the west side of the highway and was standing on the right shoulder of the road, waiting to cross. There was no pedestrian crosswalk along this portion of the highway. Defendant and Carter testified that the deceased started to walk, then to run, across the road in the direction of the vehicle driven by Gray. Defendant was in the right lane but cut sharply to the left to avoid hitting the deceased, barely missing the car operated by Gray. Whether she hit the car or the car hit her was a disputed question of fact at the trial. The impact of the collision knocked her skidding back to a prone position where she lay, on the pavement, her head a few inches from the edge thereof. She died instantly. Her right foot and eight inches of her leg were severed and carried along the highway by the automobile. Defendant contended that deceased struck the right side of the car. There was no evidence of a collision on the front of the car except that the glass from the parking light was missing. The frame of the parking light gave no indication that it had been touched. Dents appeared on the front fender and continued along the side of the car. The radio aerial was broken off. The front windshield was cracked, as was the small glass window in the right door. The rearview mirror was gone. A fragment of bone was found a few inches to the west of the center line of the lane in which the collision occurred. The location of this piece of bone, certain marks on the pavement leading to the body of deceased, and the position of the body prompted a highway patrolman, witness Gillespie, to conclude that the point of collision was at the center of the 23½ foot lane, or to the east of the center line. The exact point of impact was also a disputed question. Defendant and witness Carter testified that it was at or near the center line. Plaintiff's witness Gray testified that he saw the defendant's car in his rearview mirror as it cut over to the left or inside lane, heard the impact, and thought his own car had been hit. Plaintiff's witness Molton, a sixty-seven year old Negro man who was sitting on a bench outside the store the deceased had just left, stated that the deceased had taken but a couple of steps into the road before she was struck, but admitted that he didn't see the car until he "heard the bump."
This suit was tried on two counts alleging simple negligence and a third charging wanton misconduct. At the close of the plaintiff's evidence, the court granted a motion to exclude the evidence as to the wanton count, and later charged the jury that they must find for the defendant on that *233 count. The case went to the jury on the two counts for simple negligence. There was a verdict and judgment for defendant.
The first assignment of error which we will consider concerns the trial court's action in excluding the evidence as to the wanton count.
The granting of a motion to exclude evidence is never proper in Alabama. Nevertheless, if the party against whom it is granted has failed to make out a prima facie case, his cause is not injured or prejudiced by the impropriety of the action, and such does not provide a ground for the reversal of the case on appeal.
If there is a scintilla, "a mere `gleam,' `glimmer,' `spark,' `the least particle,' the `smallest trace'" on each element of the cause of action, it must be allowed to go to the jury, and taking it from them by excluding evidence or directing their verdict constitutes reversible error. Ex parte Grimmett, 228 Ala. 1, 152 So. 263; Alabama Great Southern R. Co. v. Bishop, 265 Ala. 118, 89 So. 2d 738, 64 A.L.R.2d 1190.
In ascertaining whether there is a scintilla of evidence on each element of the cause of action, the evidence for the plaintiff must be viewed in its most favorable light. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Jack Cole, Inc., v. Walker, 240 Ala. 683, 200 So. 768.
Smith v. Roland, 243 Ala. 400, 10 So. 2d 367, 369, provides a correct statement of the nature of wanton misconduct when it quotes 5 Mayfield's Digest, § 6, p. 711, as follows:
We believe from the fact that defendant swerved his vehicle in an effort to avoid hitting the deceased effectively negates the hypothesis that he acted with a wanton disregard for the welfare of others. If, on the other hand, the testimony of Molton be accepted as fact, it would seem that in the short time it takes to make one or two steps, the operator of an automobile traveling forty or fifty miles per hour (58 to 73 feet per second) would lack the opportunity to develop a consciousness of existing conditions and formulate the reckless indifference which is an element of wantonness. Under either version of the facts, it cannot reasonably be inferred that defendant conducted himself with a disregard for the consequences of his acts amounting to wantonness. The learned trial court, therefore, did not err in granting the motion to exclude evidence relating to wanton misconduct, and the giving of the general charge as to the wanton count. See Salter v. Carlisle, 206 Ala. 163, 90 So. 283; Johnson v. King, 260 Ala. 497, 71 So. 2d 60; Johnston v. Warrant Warehouse Co., 211 Ala. 165, 99 So. 920.
Appellant next contends that reversible error was committed when the trial court refused to admit proffered evidence of an implied admission. He desired to show that, after defendant had come back to the crossover and said, "I wouldn't have hit her for nothing in the world," witness Gray said to him, "You couldn't have missed her going as fast as you were," and the defendant did not reply.
The statement by Gray, taken alone, is hearsay and of no probative value. Such statements are sometimes admitted, where it is sought to be shown that the conduct of one hearing the statement is such that he is taken to have acquiesced to the truth of it. Kennedy v. State, 39 Ala.App. 676, 107 So. 2d 913, 917.
Four Wigmore on Evidence, 3rd Edition, § 1071, p. 70, says that the rule grew up that anything said in a party's presence was receivable against him as an admission, and *234 that the effort of the courts was to dislodge the absolutism of the rule. He concludes with the following statement, quoted with approval in Kennedy v. State, supra:
We agree with the correctness of the italicized statement, and approve of it in principle. Evidence of this variety is, at best, of doubtful value. The likelihood of a protestation is always balanced against the urge to avoid a fruitless disputation or the determination to refuse the accusation the credence of a reply. The ultimate test of the weight to be accorded evidence of implied admissions is, of course, administered by the trier of the facts. The legal problem is: What must be shown, in the way of conditions and surroundings, in order to lay a proper predicate? In the instant case, the court refused to admit Gray's testimony of his own statement, commenting that it was that of a bystander and not a person involved. Upon this set of facts, we are unable to hold that the trial court committed reversible error in so ruling. There was no offer to show, in addition to his failure to reply, that the defendant's demeanor was one from which the jury could properly infer acquiescence. Certainly the proponent of evidence of an implied admission need not go so far as to establish the garrulous nature of the allegedly acquiescing party. But some predicate must be laid. Pack & Brother v. Ryan, 110 Ala. 336, 17 So. 733, 734, states:
See also Perry v. Johnston et al., 59 Ala. 648.
A person's hearing and understanding being peculiarly difficult of proof, slight evidence bearing thereon would probably be sufficient to admit implied acquiescence in a statement. In the present instance, no facts making up a foundation were offered, and there was no error on the part of the court.
Conceivably, evidence of implied acquiescence in a damnatory statement could be the only evidence fixing fault on one accused of civil wrongdoing; certainly the courts can deny such a person an affirmative charge with a better conscience if such evidence is grounded upon a proper predicate.
Appellant contends the court erred to reversal in refusing to admit two photographs, made by a highway patrolman at the scene. The first of these if a close range photo of the mangled body of deceased as he found it. The other represents the same form, covered by a cloth though none the less piteous and indelible together with an expanse of the highway, the wheels of an ambulance and a stretcher. Plaintiff's Exhibit 10, which was admitted, is the same as the rejected closeup; except that it is taken from an angle which more clearly represents the position of the body with relation to the edge of the pavement. Plaintiff's Exhibit 5 has the same subject and approximately the same angle as the other rejected one. It was taken from a slightly greater distance from the body, and shows more of the ambulance and highway.
*235 These photographs had a reasonable tendency to prove a material fact in issue, and could properly have been admitted. Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389; Eubanks v. State, 36 Ala.App. 208, 54 So. 2d 82. Nor is it any objection to their admission that they were gruesome or revolting. McKee v. State, 253 Ala. 235, 44 So. 2d 781, and cases cited therein.
Since, however, substantially identical photographs were admitted, the appellant had full benefit of these pictures, and it is impossible for this court to hold that his substantial rights were probably injuriously affected by the exclusion. Supreme Court Rule 45; Smith v. Tripp, 246 Ala. 421, 20 So. 2d 870.
Appellant next contends that the court committed reversible error in its ruling that a highway patrolman could give his opinion as to the point of collision. Although this may not have been a subject requiring the testimony of an expert, and although there was not very much on which to base an opinion, it is well established in Alabama that it is not reversible error to permit a witness to state his conclusions or opinions when he had first detailed all the facts upon which they are based. Louisville & N. R. Co. v. Williams, 183 Ala. 138, 62 So. 679; Haas Bros. v. Craft, 9 Ala.App. 404, 64 So. 163; Davis v. State, 35 Ala.App. 312, 46 So. 2d 242; Huffstutler v. Edge, 35 Ala.App. 276, 47 So. 2d 191; Resolute Fire Ins. Co. v. O'Rear, 35 Ala.App. 398, 47 So. 2d 425. The principle is applicable in the instant case.
Appellant next contends the court was in error in sustaining objections to questions propounded to witness Perry concerning the visibility of certain mailboxes from a point 1,019 feet up the highway from them.
The rule affecting admissibility of evidence of experiments made after the event at issue is that the conditions and circumstances of the test must be substantially similar to those existing at the time the litigated events occurred. Birmingham Stove & Range Co. v. Vanderford, 217 Ala. 342, 116 So. 334. The court must determine whether the conditions are sufficiently similar to justify admission of evidence of the experiment, and "much must be left to the sound discretion of the trial judge." Louisville & N. R. Co. v. Sullivan, 244 Ala. 485, 13 So. 2d 877, 880; 32 C.J.S. Evidence § 590. The burden of showing a similarity of conditions is, of course, on the party proffering the results of the experiment as evidence. The testimony elicited showed a difference in time of day, weather conditions and season, and the experiment was that of a man standing while the issue was visibility while seated in an automobile. Had the witness said, at this point in the trial, that conditions were substantially unchanged, as he did later, perhaps the evidence could have come in. When asked "Have you made similar observations at the hour of one-fifteen on a sun-lit day?" he frankly replied, "I couldn't be sure about that. I am sorry." With the evidence in this state, it was not error to exclude evidence of the experiment. A moment later, a photograph illustrating the visibility sought to be established was admitted, but the question was not again asked.
Appellant alleges error in the following written charge, given at defendant's request:
The substance of this charge has been approved many times by this court. Louisville & N. R. Co. v. Steverson, 220 Ala. 158, 124 So. 205, and cases cited therein; Bahakel v. Great Southern Trucking Co., 249 Ala. 363, 31 So. 2d 75; Nelson v. Lee, 249 Ala. 549, 32 So. 2d 22. It is not subject *236 to the objection that it "will be interpreted in precisely the same manner by the jury" as a so-called "state of `doubt,' `uncertainty,' or `confusion' charge," of the sort condemned by the court in Allen v. Birmingham Southern R. Co., 210 Ala. 41, 97 So. 93, and Nelson v. Lee, supra.
Appellant assigns as error the giving of the following charge at the request of defendant:
As authority, appellant cites Patrick v. Mitchell, 242 Ala. 414, 6 So. 2d 889. The charge in that case states that if the jury is reasonably satisfied that the defendants "should not be punished, then you cannot award the plaintiff any damages in this cause," and it was held to be properly refused because it was argumentative and misleading.
The only case squarely in point in deciding whether such a charge, when given is error, is Randle v. Birmingham Railway, Light & Power Co., 169 Ala. 314, 53 So. 918, 920, which holds:
We follow that holding in this case.
Appellant contends that error was committed in giving three charges at the request of defendant relative to plaintiff's contributory negligence, which fail to hypothesize that the plaintiff's negligence must proximately contribute to her injuries. It is well settled that giving such a charge is reversible error, and that the error is not cured either by correct, written charges requested by the litigants (unless specifically requested to correct the erroneous ones) or by the oral charge. Carter v. Ne-Hi Bottling Co., 226 Ala. 324, 146 So. 821; Terry v. Nelms, 256 Ala. 291, 54 So. 2d 282.
There is, however, an exception to this rule, where the defendants might properly have obtained the affirmative charge. Where, as a matter of law, the plaintiff was negligent, and this negligence continued up to the point of her injuries and proximately contributed thereto, as a matter of law, then there is no error in failure to hypothesize the proximate causation in the charge. Dudley v. Alabama Utilities Service Co., 225 Ala. 531, 144 So. 57. This Court, through Justice Knight, there said:
We hold that no substantial rights of the plaintiff were injuriously affected by giving these charges.
Assignments of error 19 through 37, inclusive, are predicated upon the trial court's action in giving, at the written request of defendant, Charges 13, 14, 15, 16, 17, 18, 21, 22, 23, 25, 26, 28, 29, 32 and 33.
Assignments of error numbered 19, 20, 21, 22 and 25 are not argued in brief and are, therefore, waived.
It would unduly prolong this opinion to discuss, separately, these 15 assignments of error, all based on written charges given *237 for the defendant. We have carefully examined these charges in conference and are clear to the conclusion that no reversible error intervened with reference to them.
We find no error in the record and the case is due to be affirmed. It is so ordered.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur.
LIVINGSTON, Chief Justice.
The appellant, after submission of the cause here, filed an ex parte motion, supported by an affidavit, to have this Court order a new trial of this cause in the Circuit Court of Montgomery County, Alabama, from which the case came. This motion was based on alleged newly discovered evidence after submission of the cause here.
We did not take notice of the motion on original deliverance. The appellant asked us on rehearing to rule on its said motion.
Appeals are purely statutory and the jurisdiction and power of the court on appeal are controlled by statute. Title 7, Sec. 744 et seq., and Sec. 754, Code of 1940; Lindsey v. Barton, 260 Ala. 419, 70 So. 2d 663; Ex parte Jonas, 186 Ala. 567, 64 So. 960. Pending decision of the appeal, there is no authority for this Court to inquire into a claim of newly discovered evidence when the record on appeal discloses no action on that claim by the trial court with the attendant effort to review such ruling. Therefore, the ex parte motion, together with the supporting statement, is not subject to consideration on this appeal, the Court being bound by the record and the evidence aliunde or matter dehors the record not being subject to consideration. And after an appeal has been taken, the trial court has no power to entertain a motion for a new trial or rehearing under Title 13, Sec. 119, or Title 7, Sec. 279, Code of 1940, except as it may be affected by the specific grant in criminal cases by Title 15, §§ 368 and 382 of the Code.
The application for rehearing is overruled.
LAWSON, STAKELY and MERRILL, JJ., concur. | June 29, 1961 |
4acf38f5-6107-4b2f-ac81-fd4e9c7061eb | Coosa Valley Telephone Company v. Martin | 133 So. 2d 505 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 505 (1961)
COOSA VALLEY TELEPHONE COMPANY
v.
U. C. MARTIN.
7 Div. 539.
Supreme Court of Alabama.
June 22, 1961.
Moore, Thomas, Taliaferro, Forman & Burr, M. L. Taliaferro and C. V. Stelzenmuller, Birmingham, for petitioner.
Starnes & Holladay and John H. Martin, Pell City, opposed.
MERRILL, Justice.
Petitioner, Coosa Valley Telephone Company, appealed from a judgment of $100 in favor of Martin, a dentist in Pell City, in an action for damages because petitioner *506 discontinued his telephone service. The Court of Appeals affirmed the judgment and the writ of certiorari was issued to review the action of that court.
A summation of the facts, more fully stated in the opinion of the Court of Appeals, follows:
In 1955, petitioner bought the assets of the St. Clair County Telephone Company and was authorized to serve the Pell City area by the Alabama Public Service Commission.
The company tariff, filed with the Public Service Commission, authorized the company to bill subscribers one month in advance.
The tariff also provided that in the event of any nonpayment of sums due from subscribers, the company could discontinue service to the subscriber provided adequate notice was given.
When the petitioner took over the assets of the St. Clair County Telephone Company, it made all bills payable in advance. The St. Clair Company had billed only for arrears. Consequently, in January, 1956, respondent was billed by petitioner for December services and in advance for January. He paid only the December bill and continued to pay only in arrears, or the bill for the preceding month, until after his phone was disconnected in May, 1959. Throughout this period, he received reminders of past due bills. Before disconnecting his phone, petitioner sent the requisite notice of intent to discontinue service if full payment were not made. However, no notice or threat of discontinuance of service was made until the spring of 1959.
If we understand the opinion, it was held that the telephone company waived its right to discontinue service because it did not discontinue service the first month Martin was in arrears in January, 1956, and having waived the right, it was liable for damages for disconnecting the telephone later because the May, 1959 bill was not paid in advance.
The effect of the decision is that a failure on the part of a utility to suspend service when a subscriber's account becomes delinquent would effectively prevent the utility thereafter from suspending service for a subsequent like default.
It is settled in this state that a utility is not liable for damages caused by discontinuance of service to a delinquent subscriber. Hieronymus Bros. v. Bienville Water Supply Co., 131 Ala. 447, 31 So. 31; Sims v. Alabama Water Co., 205 Ala. 378, 87 So. 688, 28 A.L.R. 461; Arnold v. Alabama Power Co., 206 Ala. 506, 90 So. 909; Mobile Electric Co. v. Nelson, 209 Ala. 554, 96 So. 713.
Title 48, § 53, Code 1940, authorizes a utility to change or alter a service regulation. This authorization includes the change in the instant case in requiring the bill to be paid in advance. Tit. 48, § 35, expressly recognizes the right of a utility to discontinue service for "nonpayment of charges."
We find no place for the doctrine of permanent waiver or estoppel in this case. We think there was an election or option in the course petitioner could follow. It could have given notice and legally terminated telephone service to Dr. Martin the first month he failed to pay in advance. But it elected to continue to serve him and apply his monthly payments against his delinquent account.
Both the rules of the Commission and the general tariff of petitioner provide that the company may discontinue service to a subscriber who is delinquent in his payments. Therefore, each time a patron is delinquent in payment, the utility is presented with an option, either to discontinue service or keep furnishing it and give the patron an opportunity to get his payments current. And we think the case of Cobb v. Juneau Telephone Co., 6 Alaska 138, cited by the Court of Appeals, sustains this view. True, the court said that the company had waived its right to discontinue service due *507 to nonpayment of bills due December, January, February and March, but the court also said"the rule had not been waived for April services." That case seems to hold that when the plaintiff was in arrears for the April bill, and the telephone company disconnected his telephones in May, and plaintiff brought mandamus to compel reinstatement, tender of the amount of the bill, after suit was commenced, was too late and mandamus was denied, even though the telephones were disconnected earlier in May than "the proper time to cut them out under the rules."
The doctrine of waiver was rejected in other cases. In Woodley v. Carolina Telephone & Telegraph Co., 163 N.C. 284, 79 S.E. 598, 600, the plaintiff brought an action for damages for discontinuing telephone service. The defense to the action was that plaintiff had failed to pay in advance. Plaintiff argued that the company had waived its right to receive advance payments because he had never paid in advance and the service was not discontinued until he had made several late payments, as in the instant case. The court said:
Another similar case is Malochee v. Great Southern Telephone & Telegraph Co., 49 La.Ann. 1690, 22 So. 922, 923. There, the charges were to be paid in advance by the year. Payments for the first and second years were accepted in July and October respectively. Service was discontinued in September of the third year for failure to pay in advance for the third year. As to the question of waiver, the court said:
We do not think the facts stated by the Court of Appeals support the application of the waiver theory. Some of the cases cited in the opinion of that court are inapposite because they are concerned with cases where the amount claimed to be due was in dispute. Those cases are Hiers v. Southeastern Carolinas Telephone Co., 216 S.C. 437, 58 S.E.2d 692; Birmingham Waterworks Co. v. Davis, 16 Ala.App. 333, 77 So. 927; Louisville Tobacco Warehouse Co. v. Louisville Water Co., 162 Ky. 478, 172 S.W. 928. It is the law in Alabama and other jurisdictions that a utility discontinues service at its peril when there is a just and a bona fide dispute as to the amount of the bill. Sims v. Alabama Water Co., 205 Ala. 378, 87 So. 688, 28 A.L.R. 461; 43 Am.Jur., Public Utilities and Services, § 65. In the instant case, there was no dispute as to the amount of the monthly bill, and each bill carried the statement for *508 the past month and the advance payment for the present month.
Two other cited cases, Peddicord v. Tri-City Gas Co., 232 Ala. 445, 168 So. 166; Birmingham Gas Co. v. McKinley, 228 Ala. 596, 154 So. 562, turn on the failure of the utility to give the proper notice, although the amount was in question in the last cited case. Here, the opinion of the Court of Appeals shows that notice that service would be stopped was given in the spring of 1959.
The case of Cumberland Telegraph & Telephone Co. v. Hobart, 89 Miss. 252, 42 So. 349, is not apt because there, the telephone company demanded, as a condition to reinstatement of service, that the amount due under a separate contract for a telephone in a different building for which his wife only was liable, be paid.
In State ex rel. Payne v. Kinloch Telephone Co., 93 Mo.App. 349, 67 S.W. 684, 685, the issue was also a disputed bill, with the telephone company demanding pay for a period of time when the telephone did not give service. There was a similar dispute over the amount of the bill in O'Neal v. Citizens' Public Service Co., 157 S.C. 320, 154 S.E. 217, 70 A.L.R. 887.
It is true, as stated by the Court of Appeals, that "the telephone company could have brought an action against Dr. Martin before a justice of the peace * * *." But the cases do not seem to recommend that procedure. In Sims v. Alabama Water Co., 205 Ala. 378, 87 So. 688, 689, 28 A.L.R. 461, this court quoted the following with approval: "The slightest reflection will show that a water company could not do business if its only remedy for the waste of its water by its consumers consisted in actions at law against them severally."
In Southwestern Telegraph & Telephone Co. v. Danaher, 238 U.S. 482, 35 S. Ct. 886, 888, 59 L. Ed. 1419, the court said:
It is common knowledge that most places of business and residences in Alabama are served by some utility. There is always a probability that some subscribers will be on vacation at bill paying time, or mislay the bill, or forget it, or be temporarily financially unable to pay the bill. To suggest or hold that the utility must discontinue service immediately upon the bill becoming delinquent, or by inaction to have perpetually waived the right to discontinue service for nonpayment of charges, appears neither ethical, practical or in the best interests of either the subscribers or the utilities.
The judgment of the Court of Appeals is reversed and the cause is remanded to that court.
Reversed and remanded.
All the Justices concur. | June 22, 1961 |
0fb3f8ee-6d70-4233-b7ff-3622df656697 | Baker v. Wheeler, Lacey & Brown, Inc. | 128 So. 2d 721 | N/A | Alabama | Alabama Supreme Court | 128 So. 2d 721 (1961)
Mary C. BAKER
v.
WHEELER, LACEY & BROWN, INC. et al.
6 Div. 566.
Supreme Court of Alabama.
April 6, 1961.
Higgins, Windham, Perdue & Johnson, Birmingham, for appellant.
Mead & Norman and S. Palmer Keith, Jr., Birmingham, for appellees.
STAKELY, Justice.
This is an appeal taken by Mrs. Mary C. Baker (the plaintiff below) from a judgment of nonsuit induced by adverse rulings on the pleadings. This case has been before this court on a prior occasion and is reported as Wheeler, Lacey & Brown, Inc. et al., v. Baker, 269 Ala. 293, 112 So. 2d 461.
The original complaint charged negligence on the part of Wheeler, Lacey & Brown, a corporation, R. R. Miree and Aubrey S. Miree (the defendants), in the following language:
Demurrer to the complaint being overruled, subsequent pleading was in short by consent. Trial resulted in a verdict by the *722 jury in favor of the plaintiff and against the defendants for the sum of $2,500 and judgment for that amount was rendered in accordance with the verdict. Thereafter there was an appeal to this court and this court reversed the judgment of the trial court and remanded the case to the court below. Wheeler, Lacey & Brown v. Baker, supra.
Thereafter the plaintiff amended her complaint by adding thereto Count A. The defendants objected to the allowance of such amendment, which was overruled by the court.
The defendants then filed their demurrers to the complaint as amended. These demurrers were overruled by the court. Thereupon the plea in short by consent filed by the defendants in the first trial was withdrawn and the defendants separately and severally filed a plea of the general issue and special pleas designated A, B, C, D and E separately and severally to the complaint and each count thereof. Plea A set out certain so-called exculpatory provisions of the written lease under which the plaintiff was occupying an apartment in the apartment house in question. These provisions are as follows:
These are the same provisions which are set out and quoted in the opinion of this court referred to above.
In Plea A it is alleged that because of such quoted provisions the defendants were exonerated from liability to the plaintiff. Plea B contained substantially the same averments as Plea A, with an additional averment that at the time the lease was executed and at the time plaintiff first occupied the apartment the uneven places in the walkway where plaintiff fell were in existence. Plea C contained substantially the same averments as Plea A, with an additional averment that at the time the lease was executed and at the time plaintiff first occupied the apartment the repairs made to the walkway, as alleged in the amended complaint, had been completed. Plea D contained substantially the same averments as Plea A with the additional averment that the repairs to the walkway were completed prior to the execution of the lease and prior to the time the plaintiff first occupied the apartment. Plea E was a plea of the statute of limitations of one year.
Demurrer was filed by the plaintiff to each of these special pleas of the defendants. Plaintiff's demurrer to defendants' Pleas A and E were sustained by the court. The court overruled the plaintiff's demurrers to Pleas B, C and D. On account of such adverse rulings of the court the plaintiff moved the court to enter a judgment of nonsuit which was accordingly done. This appeal followed.
There are three assignments of error on this appeal. The first assignment is based upon the action of the trial court in overruling the plaintiff's demurrer to Plea B filed by the defendants to Count A of the amended complaint. The second assignment of error is based upon the overruling of the plaintiff's demurrer to Plea C to Count A of the amended complaint. The third assignment of error is based upon the overruling of the plaintiff's demurrer to Plea D to Count A of the amended complaint.
The facts as alleged in Count A and in Pleas B, C and D which appear to be pertinent *723 are as follows: On March 10, 1956, and for a number of years prior thereto the defendants R. R. and Aubrey S. Miree were the owners of an apartment house in the City of Birmingham, Alabama, known as the Sycamore Manor. The defendant Wheeler, Lacey & Brown, Inc., was the agent in charge and control of the apartment house. In connection with the apartment house the defendants maintained a certain common walkway, extending between the public sidewalk in front of the apartment house and the apartment building for use of the tenants of the defendants in the apartment building. This walkway was not demised to any tenant in the apartment building.
During the period between March, 1954, and March, 1955, the defendants made repairs to the walkway. The repairs to the walkway made by the defendants were made in such a negligent manner as to cause the walkway to have uneven places in it, as a result of which the walkway was not in a reasonably safe condition for the use of the tenants. On March 10, 1956, the plaintiff, Mary C. Baker, was a tenant of the defendants, occupying an apartment in the apartment building under a written lease made on the 3rd day of September, 1954. The lease contains the exculpatory provisions which we have set out.
On March 10, 1956, while Mary C. Baker (appellant) was walking along the walkway in question, going from the public sidewalk to her apartment in the apartment building, she tripped and fell, seriously and painfully injuring herself. The proximate cause of her fall and injuries was the unsafe condition of the walkway which resulted from the negligent manner in which the defendants had made the repairs to the walkway at the point in question.
The repairs which the defendants made to the walkway in question were made and completed and the alleged uneven places existed in the walkway prior to the time the lease with the plaintiff was executed and prior to the time when the plaintiff first occupied the apartment in the apartment building.
I. In order to get to the real problem in this case, some preliminary principles should first be stated. This court has held that exculpatory provisions such as exist in the instant case between private parties are valid and binding upon the parties to the contract. They are not contrary to public policy and will be upheld. Wheeler, Lacey & Brown, Inc., v. Baker, supra; Life & Casualty Ins. Co. of Tenn. v. Porterfield, 239 Ala. 148, 194 So. 173; American Dist. Tel. Co. v. Roberts & Son, 219 Ala. 595, 122 So. 837; McKinney v. Mobile & O. R. Co., 215 Ala. 101, 109 So. 752, 48 A.L.R. 998.
Ordinarily the defendants would be under the duty of maintaining the common walkway at the place where the appellant fell in a reasonably safe condition for the use of their tenants in the building, including the plaintiff. Mudd v. Gray, 200 Ala. 92, 75 So. 468; Allen v. Genry, 39 Ala.App. 281, 97 So. 2d 828.
It is also true that where a lessor, even though under no duty to make repairs, voluntarily undertakes to do so, he is liable for injuries proximately caused by negligence in making the repairs so as to render the premises dangerous to the life or limb of those rightfully occupying the premises. Southern Apartments, Inc., v. Emmett, 269 Ala. 584, 114 So. 2d 453. But this principle does not apply to repairs made before the relationship of landlord and tenant begins. Cairnes v. Hillman Drug Co., 214 Ala. 545, 108 So. 362; Spangler v. Hobson, 212 Ala. 105, 121 So. 828; Morgan v. Sheppard, 156 Ala. 403, 47 So. 147.
What we must decide in the instant case is whether the exculpatory provisions in the lease before us exonerate the defendants from the alleged negligence of *724 the defendants. It seems to be agreed that unless the so-called exculpatory provisions of the lease set out in the pleas of the defendants intervene to relieve the defendants from liability, the defendants would be liable to the plaintiff for negligence in failing to maintain the common walkway in a reasonably safe condition for use by tenants in the apartments. It is stated in brief by the appellants that on the former appeal in this case, Mr. Justice Goodwyn was careful to set out the substance of the complaint upon which the case was tried. We quote from that opinion as follows:
In other words, the holding was that the complaint as originally drawn and upon which the case was tried based liability on a defect which involved no affirmative negligence on the part of the defendants. We refer to some authorities with reference to active and passive negligence. 65 C.J.S. Negligence § 1, p. 322; 38 Am. Jur., p. 644.
Appellants in brief undertake to point out that the averments of Count A of the amended complaint are quite different from those contained in Count 1, stating that in Count 1 the pertinent averments were:
Appellant's brief states that the comparable averments of Count A are as follows:
It is argued by the appellant that the averments of Count A charge active negligent *725 conduct on the part of the defendants which proximately caused the plaintiff's injuries and damages. Accordingly appellant argues that it follows that under both the decision in Wheeler, Lacey & Brown, Inc., v. Baker, supra, and Armi v. Huckabee, 266 Ala. 91, 94 So. 2d 380, the so-called exculpatory provisions of the lease will not relieve and shield the defendants from liability to the plaintiff on account of their alleged negligence in making the repairs to the walkway. We note that Pleas B, C and D in varying ways allege that the uneven places in the walkway existed before the lease was made and before the plaintiff occupied her apartment. In other words, the alleged repairs were made prior to the existence of the lease and prior to the time the plaintiff used the apartment.
It is insisted by the appellant that it is not the time when the negligence occurs which determines the efficacy vel non of the exculpatory provisions of the lease, but whether there was active negligence or not on the part of the defendants. To put it a little differently, the contention is that if there was active negligence as contrasted with passive negligence, then the defendants are not relieved from liability.
We have thought about this matter a great deal, but cannot agree with appellant. The condition in the walkway existed before the lease was made and before the plaintiff had her apartment. The walkway therefore had defects in it before the relationship of landlord and tenant began. True, it took the fall of the plaintiff to make the negligence actionable (Tennessee Coal, Iron & R. Co. v. Smith, 171 Ala. 251, 55 So. 170), but the failure to correct the defects with the result that the walkway was in an unsafe condition before and while the lease was in force and effect, is the negligence relied on for recovery. This was passive negligence, as brought out in the opinion of this court on the first appeal. The Armi case presents quite a different situation. In that case there was no defective condition which proximately resulted in the plaintiff's personal injuries, but rather an active course of negligence when the landlord's employee shoveled hot coals from the furnace into dangerous proximity to a large amount of combustible materials. Accordingly there was no room in that case for operation of the exculpatory provisions.
In the instant case the injury to the plaintiff occurred through a defect in the walkway appurtenant to the demised premises and the plaintiff has waived any injury or damages she may have sustained therefrom.
We conclude that the judgment of the lower court should be upheld.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | April 6, 1961 |
2df80cf9-8682-43bc-938d-1cd08dddd949 | Jordan v. Copeland | 131 So. 2d 696 | N/A | Alabama | Alabama Supreme Court | 131 So. 2d 696 (1961)
Fred JORDAN
v.
Monette COPELAND.
1 Div. 819.
Supreme Court of Alabama.
June 22, 1961.
*697 Edw. P. Turner, Jr., Chatom, for appellant.
Grady W. Hurst, Jr., Chatom, for appellee.
COLEMAN, Justice.
This is an appeal from a decree denying a petition to remove the administration of an estate from the probate court to the circuit court in equity.
The petitioner for removal, Fred Jordan, the appellant, asserts that he is the husband of Armina Jordan, deceased; that her will has been admitted to probate; and that appellee, Monette Copeland, has applied for letters testamentary as executrix of the will.
The appellee asserts that testatrix was the wife of Arthur Stevens at the time of her purported marriage to appellant and that the prior marriage of Stevens to testatrix had not been dissolved at the time of her death. Appellee concludes, therefore, that appellant was not the husband of testatrix and has no such interest in her estate as would entitle him to remove the administration to the circuit court under § 139, Title 13, Code 1940.
After hearing testimony ore tenus, the court found that appellant was not the husband of testatrix, because her marriage to Stevens had not been dissolved, and denied the removal petition.
Appellant insists that the court erred in finding from the evidence that appellee had sustained the burden of proof that rested on her to show that the marriage of testatrix to Arthur Stevens had not been dissolved.
The evidence shows a ceremonial marriage of testatrix to appellant in Washington County on May 24, 1944. This is the last marriage of testatrix shown by the evidence. The evidence also showed a prior marriage of testatrix to Arthur Stevens and that he was living after the death of testatrix. He testified as a witness. The appellee asserts the invalidity of the last marriage of testatrix, that is, her marriage to appellant. The presumption is that the prior marriage has been dissolved by divorce, and the burden to show that it has not been dissolved rests upon the person seeking to impeach the last marriage, notwithstanding he is thereby required to prove a negative. Ex parte Young, 211 Ala. 508, 101 So. 51; Sloss-Sheffield Steel & Iron Co. v. Alexander, 241 Ala. 476, 3 So. 2d 46; Freed v. Sallade, 245 Ala. 505, 17 So. 2d 868; Jordan v. Courtney, 248 Ala. 390, 27 So. 2d 783. So, the question presented on this appeal is whether or not the evidence is sufficient to support the finding that the marriage of testatrix and Arthur Stevens had not been dissolved by divorce.
The presumption of an innocent second marriage is overcome when the *698 circumstances require a reasonable inference to the contrary. Freed v. Sallade, supra.
The circumstances shown by the evidence are as follows: Arthur Stevens testified that he married testatrix in Waynesboro, Mississippi, but had forgotten the date. A marriage certificate purporting to have been executed by the clerk of the Circuit Court of Wayne County, Mississippi, was admitted in evidence over appellant's objection. The certificate states that Stevens and "Miss Areminer Phillips" were married March 26, 1916. Stevens testified that he and testatrix had three children; that they separated in 1931 or 1932; that they were never divorced; that in 1936 he, Stevens, filed suit in Memphis, Tennessee, for a divorce but "left it" with his lawyer, "Charlie," who sent Stevens "an affidavit" when he "came back to Mississippi"; and that he never got a divorce in that proceeding and never filed any other proceeding for divorce. Stevens further said the contents of the affidavit were "The same as a divorce as I understand it," and that he lost the affidavit when he left it in Vicksburg in 1938. Stevens said also that he had not lived with testatrix since 1936, and that he now has a wife in Florida where he was living at the time of the trial. A certificate by the ordinary of Lowndes County, Georgia, showing the marriage of "Srthur Stevens" to Callie Guynn on March 7, 1948, was received in evidence without objection. Stevens further said he did not know whether testatrix had ever obtained a divorce from him or not, that he did not know where she had lived, and that he "would hear from her along from the children." Stevens testified that he was served with process in a divorce proceeding instituted by testatrix in Waynesboro, Mississippi. It is not clear whether he was served with that process in Waynesboro or elsewhere. He said he was living in Alabama at that time and that he did not know the disposition of that case. Stevens said he did not know whether testatrix had ever obtained a divorce from him or not, and that when he married Callie Guynn "I believed I was free to marry, yes, or I would not have married."
A certificate, by the Judge of Probate of Washington County, stating that the records of his office show that Walter Wright and "Armenta" Phillips were married May 30, 1936, was introduced in evidence. A showing was admitted that Walter Wright would testify that he was married to testatrix, that he knew nothing of any divorce that she got from Stevens, and that as far as Wright knew she never had a divorce from Stevens. It was stipulated that Walter Wright was married to testatrix and divorced from her by decree of the Circuit Court of Washington County, but the validity of the marriage was not admitted.
Fred Jordan, the appellant, testified that he married testatrix in Washington County on May 24, 1944, and certificate to that effect is in evidence. He testified that after their marriage they lived together until the death of testatrix in 1958; that they had lived in Chickasaw; Chatom; Palestine, Texas; Chatom; Mizell, Mississippi; near Wagarville, Alabama; and then in Chatom until death of testatrix; that he had seen Arthur Stevens one time since 1944; that appellee, daughter of testatrix, had been in the home of appellant and testatrix "Lots of times"; and that he, appellant, had first heard the accusation that he and testatrix were not married on the day the will was supposed to be probated. With reference to records of a divorce of testatrix and Stevens, appellant testified as follows:
"Redirect examination by Mr. Turner:
"Q. Mr. Hurst is putting words in your mouth, isn't he?
"Judge Pelham: I strike that remark.
"Q. Did you make these investigations yourself? A. No, I didn't.
"Q. You have done none of it yourself? A. No, sir."
Monette Copeland, appellee, testified that she was born in 1925, that her parents, Arthur Stevens and the testatrix, separated when appellee was nine or ten years old; that she, the appellee, until her own marriage in 1941, lived with the testatrix, and thereafter visited her "every three or four weeks"; that appellee had no knowledge of her mother's ever getting a divorce from Stevens, but "knew all along that she wasn't divorced from him." Appellee admitted that she filed a sworn petition to probate the will of testatrix. The petition is dated July 28, 1958, and recites in pertinent part as follows:
In answer to a question whether or not testatrix could have gotten a divorce from Stevens without appellee's knowing about it, appellee replied:
This court has refused to accept the uncorroborated testimony of one of the parties to the prior marriage, to the effect that the prior marriage had never been dissolved by divorce, as being sufficient proof to establish the dissolution of the prior marriage when the evidence did not show an examination of the records of the divorce courts of the counties in which the parties had lived. Freed v. Sallade, supra; Dorsey v. Dorsey, 256 Ala. 137, 53 So. 2d 601. On the second appeal in Dorsey v. Dorsey, 259 Ala. 220, 66 So. 2d 135, however, the court held that the corroborating evidence was sufficient where the other party to the undissolved marriage refused to testify and the evidence showed that the divorce records in the counties where the parties had lived disclosed no divorce. In Bell v. Tennessee Coal, Iron & R. Co., 240 Ala. 422, 199 So. 813, the testimony of the wife in the prior marriage was corroborated by evidence that the records in Jefferson County, where the husband had lived, showed no divorce, and this was held to be sufficient to support a finding that the prior marriage had not been dissolved by divorce. In Sloss-Sheffield Steel & Iron Co. v. Watford, 245 Ala. 425, 17 So. 2d 166, the testimony of the prior wife that the prior marriage had never been dissolved by divorce was corroborated by evidence that the records of four counties where the husband had lived did not show a divorce, and this evidence was held sufficient *700 to rebut the presumption in favor of the subsequent marriage.
The law casts a strict burden on appellee to prove a negative, that is, that testatrix and Arthur Stevens had not been divorced. Dorsey v. Dorsey, 259 Ala. 220, 66 So. 2d 135, supra; Vinson v. Vinson, 260 Ala. 254, 258, 69 So. 2d 431. The testimony of the parties, not properly supported by evidence as to the divorce records in the various jurisdictions in which a decree could be rendered, is usually treated as not sufficient to overcome the presumption. Ashley v. Ashley, 255 Ala. 313, 319, 51 So. 2d 239. However, such record evidence of non-divorce has not been regarded as an indispensable element of such proof in every case. Jones v. Case, 266 Ala. 498, 97 So. 2d 816. The situation in Whitman v. Whitman, 253 Ala. 643, 46 So. 2d 422, was like the situation here. The wife of the prior marriage, like Arthur Stevens here, testified that she knew of no divorce proceedings, but there was no evidence offered as to the status of the divorce records in Jefferson, one of the counties where the husband had lived, and the offered evidence as to the other county, Dallas, was held inadmissible. This court held there was no error in the decree denying relief to the first wife. Denial of relief was based on insufficiency of the evidence to overcome the presumption that the last marriage was valid. As to the testimony of the first wife that the prior marriage had not been dissolved this court said:
Appellee argues that the testimony of four witnesses (Arthur Stevens, Walter Wright, and appellee and appellant) is sufficient to sustain the finding that the marriage of testatrix and Stevens had never been dissolved by divorce. We do not agree.
Arthur Stevens' testimony is to the effect that he never obtained a divorce and does not know whether testatrix obtained one or not. Even if the testimony of Stevens be considered as positive that no divorce was obtained by either himself or testatrix, it would not, standing alone, be sufficient under Freed v. Sallade, supra, and the first appeal in Dorsey v. Dorsey, supra. Moreover, the action of Arthur Stevens in marrying his present wife, Callie Guynn, is not consistent with his testimony that he had never been divorced from testatrix. By his subsequent marriage, he solemnly declared that he was then free to marry again. Freed v. Sallade, 245 Ala. at page 508, 17 So. 2d 868.
At best, the testimony of appellee and Walter Wright shows merely that these witnesses had no knowledge of a divorce. As appellee admitted, testatrix could have gotten a divorce without appellee knowing about it. After the death of testatrix, appellee had stated under oath in the petition to probate the will that appellant was the surviving husband of testatrix. After Stevens and testatrix separated, Walter Wright married her and later obtained a divorce in the court of Washington County. The actions of appellee and Wright are based on the proposition that Stevens and testatrix had been divorced and are diametrically opposed to the contrary inference which appellee draws from their testimony.
The testimony of appellant concerning his investigation of records falls short of establishing the fact that no divorce is shown by the records of the several counties in which testatrix and Stevens are shown to have lived after they separated. Appellant admitted he did not in his own person make the search and that he was not qualified to do so. We are of opinion that the testimony of appellant is not sufficient to establish as a fact that the records in all the counties where the *701 parties had lived do not show a divorce of testatrix from Stevens. The testimony of appellant is that he had to get some one else at the courthouse to make the search and did none of it himself. All his testimony that the records do not show a divorce is hearsay and is not competent to show the absence of a divorce decree. Smith v. Smith, 268 Ala. 348, 106 So. 2d 260. Act No. 101, General Acts 1943, page 105; Pocket Parts, Code 1940, Title 7, § 372(1). Moreover, the testimony is that he investigated "almost all," and not all, the counties involved.
We do not wish to be misunderstood on the holding that appellant's testimony with respect to his investigation is hearsay. This testimony is hearsay because he is repeating the statement of some one else who had told him that the records contained no divorce decree. His testimony is not hearsay for the reason that it is an attempt to prove the contents of a decree by parol. Hereafter in this opinion we express the view that appellant cannot, by parol, prove the existence or contents of a decree until proper predicate for secondary evidence has been laid. Parol testimony of the existence or contents of a decree is not the best evidence of its existence or contents. The fact that a decree does not exist is a different matter. Parol testimony to the effect that a decree does not appear in a record is not parol evidence of something a record contains. Such parol testimony is evidence that a record does not contain something, to wit, a divorce decree. In a strict sense, the record is the best evidence of what it does not contain, but it is manifestly impractical to require a party to introduce in evidence all the records of a court, or certified copies thereof. Competent, legal testimony given in answer to interrogatories by the register, custodian of the records of Barbour County, that a certain divorce decree did not appear in his records, was admitted to prove that fact on the second trial in Dorsey v. Dorsey, supra, 259 Ala. at page 223, 66 So. 2d 135. The reason for allowing parol testimony to prove that records do not contain a divorce decree has been stated as follows:
The testimony relating to the suits begun by appellant in Memphis and by testatrix in Waynesboro certainly fails to establish the fact that a divorce was granted, but it strongly supports an inference that divorce proceedings were instituted. A satisfactory conclusion as to whether those suits were actually instituted and, if so, as to their result, can hardly be reached on the record before us. We are clear to the conclusion that appellee has not proved that a divorce was not granted in either suit.
We will summarize the pertinent facts appearing from the record. Testatrix and Stevens married each other in 1916; they had six children of whom three were still living; they lived together until 1931 or 1932 when they permanently separated. Stevens made some move to initiate a suit for divorce in Memphis and testatrix did the same thing in Waynesboro, but the result of neither suit is shown. In 1936 testatrix married Arthur Wright and they were later divorced. In 1944 testatrix *702 married appellant and lived with him until her death in 1958. Arthur Stevens married Callie Guynn in 1948 and was living with her in Florida at the time of the trial. Stevens, Wright, and appellee testified that they did not know of any divorce between Stevens and testatrix, and appellee emphatically states that she knows they were not divorced.
If their testimony be taken as positive to the effect there was no such divorce, it is nevertheless contradicted by their several actions, i. e., by Stevens in marrying Guynn, by Wright in marrying and divorcing testatrix, and by appellee in swearing that appellant was the surviving husband.
It may be that the records of all the counties concerned do not show a divorce of testatrix from Stevens, but we are of opinion that the evidence now before us is insufficient to establish that fact. Consequently, we are of opinion that appellee has failed to support the burden that rested on her to prove that the prior marriage had not been dissolved, and that the decree finding to the contrary is in error, for which it must be reversed and the cause remanded in order that the parties may present further proof as they may be advised.
Appellee cites Darrow v. Darrow, 201 Ala. 477, 78 So. 383, which appears to hold that evidence of a prior marriage and testimony by a party thereto that no notice of divorce had been served on such party prima facie, negatives a dissolution of the prior marriage; and, further casts on the opposite party seeking to sustain the later marriage the burden to show a record of a decree dissolving the prior marriage. We have not found where this holding in the Darrow case has been cited or followed. It appears to be in conflict with Freed v. Sallade, Ashley v. Ashley, the first appeal in Dorsey v. Dorsey, and Vinson v. Vinson, all supra; and to the extent that it is in conflict with the later cases, the Darrow case is overruled.
As we understand appellee's brief, she concedes that appellant's objection to introduction in evidence of the Mississippi certificate of the marriage of testatrix to Stevens is well taken, but says it is error without injury. Because it thus appears that on another trial appellee will remove the grounds of this objection we forego its further consideration.
Appellant offered to prove by himself that testatrix, in her lifetime, had told appellant that she had a divorce from Stevens. The court sustained objection to this evidence and that ruling is assigned as error.
A party who is to prove a fact must do it by the highest evidence of which the nature of the thing is capable, and which it is within his power to produce. Although the court of a justice of the peace is not a court of record, our court has held that a party could not prove by the justice himself the result of a suit in his court, where the proceedings had been reduced to writing, without first laying a predicate for the introduction of secondary evidence; Bullock v. Ogburn, 13 Ala. 346. Even a judgment certificate made by the clerk for registration in the office of the judge of probate cannot be substituted for the judgment itself where the issues call for proof of the fact of an existing judgment; Boasberg v. Cooke, 223 Ala. 389, 136 So. 797. In the absence of a predicate for secondary evidence, as was the case here, testimony of testatrix herself would not have been admissible to prove a decree dissolving her marriage to Stevens. See Cotton v. Cotton, 213 Ala. 336, 104 So. 650. Therefore, the court did not err in refusing to allow appellant to testify that testatrix had said she had a divorce from Stevens. For cases supporting this view, see McDonald v. McDonald, 180 Ga. 771, 180 S.E. 815; Trimble v. Wells, 314 Ky. 206, 234 S.W.2d 683; Weaver v. Patterson, 92 N.J.Eq. 170, 111 A. 506; Moore v. Follett, Tex.Civ.App., 11 S.W.2d 662; Hupp v. Hupp, Tex.Civ. App., 235 S.W.2d 753. Two California *703 cases, In re Smith's Estate, Cal.App., 193 P.2d 90, and 33 Cal. 2d 279, 201 P.2d 539, appear to be contrary to our conclusion here, but we are persuaded that the California rule is not the better one.
Reversed and remanded.
All the Justices concur. | June 22, 1961 |
bd4ac50f-01e0-4ad8-bdbe-5e9c88b53e1f | Evans v. Avery | 130 So. 2d 373 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 373 (1961)
Helen Inez EVANS, as Administratrix,
v.
J. W. AVERY, Jr., et al.
2 Div. 421.
Supreme Court of Alabama.
May 25, 1961.
*374 Carter & Van Every, Columbus, Miss., and David M. Hall, Eutaw, for appellant.
Ralph R. Banks, Jr., Eutaw, and Wm. J. Threadgill, Columbus, Miss., for appellees.
SIMPSON, Justice.
This is an appeal from a judgment of the Circuit Court of Greene County, Alabama wherein appellant's demurrer to appellees' plea in bar was overruled and the cause dismissed.
Appellant, Helen Inez Evans, as administratrix of the estate of James Glenn Anderton, deceased, sued appellees in Mississippi for damages for the wrongful death of her intestate pursuant to § 1453, Title 10, Miss.Code 1942.
In the final judgment the Alabama court set out its findings of fact. Briefly they are: On July 28, 1958, the deceased was an employee of appellees, who were doing business as Columbus Curb Market, in Lowndes County, Mississippi; he was accidentally shot by one of the appellees, from which wound he died; that appellant, a sister of deceased, and Marcus R. Anderton, father of deceased, in their individual capacity as sole heirs at law and next of kin, prosecuted in the Circuit Court of Lowndes County, Mississippi to final judgment, a workmen's compensation proceeding against appellees and the Shelby Mutual Insurance Company, resulting in a judgment, for plaintiffs in the amount of $1,000; that the judgment was in full settlement, compromise, accord and satisfaction of all their claims of every kind against appellees and the Shelby Mutual Insurance Company; that the cause of action arose in Mississippi, and is governed by the applicable law, being § 6998-05 of the Mississippi Workmen's Compensation Law of 1942 as amended; that the liability of an employer is exclusive and in place of all other liability by the employer to the employee, his legal representative or next of kin; that the result of the next of kin of deceased (appellant and deceased's father) having prosecuted to final judgment the action under the Workmen's Compensation Law of Mississippi precludes any action whether in Mississippi, or elsewhere, by the legal representative of the deceased, for the wrongful death of the deceased in a tort action, under the identical circumstances in both actions.
At the outset, we would like to point out that much of appellant's argument is not founded on any allegations appearing in the pleadings transcribed in the record. Consideration of these points will be pretermitted, for on appeal, this Court is remitted to a consideration of the record alone and absolute truth must be imputed to it. If incomplete or incorrect, amendment or correction must be sought by appropriate proceedings rather than by impeachment on the hearing in the appellate court. The record cannot be changed, altered, or varied on appeal by statements in the briefs of counsel, nor by affidavits or other evidence not appearing in the record. Union Mutual Ins. Co. v. Robinson, 216 Ala. 527, 113 So. 587; Metcalf et al. v. Department of Industrial Relations, et al., 245 Ala. 299, 16 So. 2d 787.
The record discloses, without dispute, that appellant, as next of kin and heir of deceased, along with deceased's father, has received compensation under the Workmen's Compensation Laws of Mississippi, Title 25, § 6998-01 et seq., as the result of a suit against the employer, appellees here. This suit is now by the appellantadministratrix of the estate of the deceased, the same individual, who in her individual capacity sued the same defendants under the workmen's compensation proceeding in Mississippi. Suit here is not against a third party other than the employer by the dependents of the employee, as provided in Title 25, § 6998-36, Mississippi Code 1942.
In Title 25, § 6998-05, Miss.Code 1942, the exclusiveness of liability of the employer is thus prescribed:
The foregoing mandate of the Mississippi Legislature is explicit and contains the test of whether the employee or those persons designated therein can sue at common law or otherwise. Section 6998-05, supra, states that "if an employer fails to secure payment of compensation as required by this act", the employee or his personal representative where death results may elect to maintain an action at law for damages. The test is whether the employer has secured payment of compensation as required by the act. The requirement that the employer must secure payment of compensation means that he must have in effect an insurance policy complying with the workman's compensation act, or must qualify as a self-insurer. McCoy v. Cornish Lumber Co., 220 Misc. 577, 71 So. 2d 304.
If the Workmen's Compensation Act is complied with by the employer, it affords the exclusive remedy in Mississippi between employers and employees, and no action, common law or otherwise exists, whereby the original jurisdiction of the circuit court can be invoked. Riddell v. Cagle's Estate, 227 Miss. 305, 85 So. 2d 926; Mosley v. Jones, 224 Miss. 725, 80 So. 2d 819; Allen v. R. G. LeTourneau, Inc., 220 Miss. 520, 71 So. 2d 447; Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433; Nowell v. Harris, 219 Miss. 363, 68 So. 2d 464; Hordge v. Yeates, D.C., 157 F. Supp. 411.
It appearing from the record that the employer (appellees here) secured the payment of compensation under the Act, of the deceased employee, the action by the employee, had he lived, or those persons designated therein, would have been exclusively under the Workmen's Compensation Act, and no action at common law or otherwise could have been instituted against his employer.
As stated previously, the appellant here instituted suit against appellee under § 1453, Title 10, Miss.Code of 1942, as amended. The pertinent provisions of the Act are:
In Allen v. R. G. LeTourneau, Inc., supra, it was argued that § 1453, supra, as amended, repealed the Compensation Act and did reinstate the right to maintain an action for the wrongful death of an employee. The court said [220 Miss. 520, 71 So.2d 448]:
It seems clear that the personal representative of the deceased employee in the instant case could not bring suit under Section 1453, Miss.Code 1942, as amended, against the employer, for damages under the wrongful death statute.
We see from the above statute that to permit the personal representative to sue for the death of another, the deceased must have been entitled to maintain an action to recover damages, if death had not ensued. In the instant case, death ensued as the result of a shot from the pistol of one of the appellees. The appellees, the employer of deceased, had secured compensation to the employee under the Mississippi Workmen's Compensation Act. Therefore, under the authorities cited, the exclusive liability of the appellees to the deceased was under the compensation act. The deceased, if he had lived, would not have been entitled to maintain an action at law against appellees. His only remedy, had be lived, would have been under the compensation act. Sec. 6998-01 et seq., Title 25, Miss.Code 1942. Therefore, if the decedent could not have maintained any other action, then the personal representative suing under the wrongful death statute, may not either.
Boiled down, the pertinent principle is thus stated in 101 C.J.S. Workmen's Compensation § 964, p. 435:
The judgment below is without error.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | May 25, 1961 |
f6bfb6a7-452a-4456-8b81-5c82d4dfc103 | Gwin v. Church | 133 So. 2d 880 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 880 (1961)
Shirley Eugene GWIN
v.
Archie Calvin CHURCH.
6 Div. 325.
Supreme Court of Alabama.
September 14, 1961.
Rehearing Denied November 2, 1961.
*881 Dominick & Roberts, Tuscaloosa, and James L. Shores, Jr., and Donald L. Morris, Birmingham, for appellant.
Ralph Roger Williams and E. M. Ford, Jr., Tuscaloosa, for appellee.
COLEMAN, Justice.
The plaintiff, appellee, brought this action for damages for personal injury allegedly resulting from the negligence of defendant in driving his automobile into the automobile which plaintiff was driving on a public highway in Tuscaloosa County. Defendant filed pleas of recoupment seeking to recover for his own injuries and charging that the collision was caused by the negligence or wantonness of plaintiff. To the respective claims against them, the parties pleaded in short by consent the general issue with leave, etc., in the usual form. On the verdict of a jury, judgment was rendered in favor of plaintiff and defendant has appealed. The judgment overruling defendant's motion for new trial is assigned as error.
Defendant contends that he is entitled to a new trial for that the plaintiff repeatedly and improperly injected into the trial the fact that defendant was protected by insurance. The following excerpts from the *882 record are substantially in chronological order. The numerals in parentheses indicate those instances where plaintiff's reference to insurance, as it appears to us, was clearly improper.
One. The record discloses that:
During qualification of the jury the following occurred:
"Mr. E. L. Bolton: (A Juror) Pardon me, what was that question?
"The Court: Any other questions for the Plaintiff?
"Mr. Dominick: We object to that question.
So far as this record discloses, neither the Farm Bureau Insurance Company nor Farm Bureau itself had any connection with this case. No reason has been shown for making this inquiry, either to determine the qualification of jurors or to inform plaintiff of possible bias so that plaintiff could intelligently exercise his right to strike.
Two. On further examination of the jurors, the plaintiff propounded a question to which defendant objected as shown by the following excerpt from the record:
"Mr. Shores: We object to that.
"The Court: Sustained.
"Mr. Shores: We move for a mistrial.
"The Court: Overruled.
"Mr. Shores: Except."
Three. On cross-examination of plaintiff, counsel for defendant exhibited to plaintiff and placed in evidence a written statement bearing plaintiff's signature. Plaintiff admitted that when he was in the hospital, he had made the statement to Mr. John Rutledge. On redirect examination of plaintiff the following occurred:
"Q. Is that your handwriting? A. No.
"Mr. Dominick: We object.
"The Court: Sustained.
"Q. What did he tell you?
"Mr. Dominick: We object. He said he was pretty sure.
"Q. Did he give you one? A. No, sir.
"Q. Did you, subsequent thereto in writing, request
"Mr. Shores: We object.
"Mr. Ford: Let me finish the question.
"Mr. Shores: We object.
"The Court: Sustained.
"Mr. Shores: We object; and ask for a mistrial.
"Mr. Shores: We move for a mistrial.
"The Court: Overruled.
"Mr. Ford: I would like to show such request was made.
"Mr. Shores: We object.
"Mr. Shores: We object.
"The Witness: This man by the insurance company
"Mr. Shores: We object.
*884 "The Witness: I'm not under the
"Mr. Shores: Except.
"Q. Did you ever get a copy of this statement? A. No, sir.
"Q. Have you ever gotten one? A. No, sir.
"Mr. Shores: We object. That is leading.
"The Court: Sustain the objection.
"Mr. Shores: We object.
"A. No, sir.
"The Court: Overruled.
"Q. Did you make this statement in good faith? A. Yes, sir.
"Mr. Shores: We object.
"The Court: Sustain the objection.
Four. On recross and further redirect examination of plaintiff the following appears:
"Q. In your best recollection, how much is that? A. The bill?
"Q. Yes, sir. A. I would say the bill is around $600.00.
"By Mr. Ford:
"Mr. Dominick: We object.
"Mr. Dominick: We object.
"The Court: Sustained.
"Q. Who paid the premiums on your policy? A. Hayes Aircraft.
"Q. Who do you work for? A. Hayes Aircraft."
Five. The plaintiff's witness, Bernholz, had been a passenger in plaintiff's automobile at the time of collision. During and shortly before the end of the direct examination of Bernholz, the court recessed. During this recess, out of the presence of the jury, the record discloses the following colloquy between court and defendant's counsel:
"Mr. Dominick: We except to the Court's ruling."
Cross-examination of Bernholz followed shortly thereafter, and during that crossexamination, defendant questioned Bernholz touching a statement he had given to Mr. Rutledge. Defendant introduced the statement in evidence and the following occurred:
"Mr. Dominick: Do you know we have had them?
(6)"Mr. Ford: The insurance company or somebody had them.
"Mr. Dominick: We move for a mistrial; that is highly prejudicial.
"The Court: Overruled.
"Mr. Dominick: Except.
Six. Defendant undertook to show that after plaintiff left the hospital plaintiff had visited defendant at his home, and that plaintiff, on that occasion, had told defendant that if defendant would say his lights were off, defendant would receive money. On cross-examination of plaintiff, the record discloses the following:
"Q. Did you make that statement? A. No.";
and on redirect examination of plaintiff:
On redirect examination of defendant, the following occurred:
"Mr. Ford: We object.
"The Court: Overruled.
"A. Yes, sir.
"Mr. Ford: Except."
On recross examination of defendant, the following appears in the record:
"Q. In whose presence? A. His cousins.
"Q. His cousins presence? A. That is right.
"Q. Where? A. Insurance Company.
"Q. What insurance company? A. Mine.
"Q. Your insurance company? A. That is right.
"Mr. Shores: We object.
"The Court: Sustained.
"Mr. Shores: We object.
"The Court: Sustained."
The rule is firmly settled in this state that the plaintiff is entitled, upon his seasonable and proper motion, to have the jurors qualified as to their relation to, or interest in, any insurance company which would be liable, in whole or in part, for any judgment that might be rendered against the defendant. Citizens' Light, Heat & Power Co. v. Lee, 182 Ala. 561, 62 So. 199; Vredenburgh Saw Mill Co. v. Black, 251 Ala. 302, 37 So. 2d 212; Code 1940, Title 30, § 55, as amended by Act No. 260, 1955 Acts, page 605. On the other hand, counsel should be careful to avoid saying or doing anything which would lead the jury to believe that his opponent has insurance to protect him in respect to the matter in controversy when reference to insurance is not admissible for any proper purpose, Pearson v. Birmingham Transit Company, 264 Ala. 350, 87 So. 2d 857; and
In the case at bar, the matter of defendant's insurance was brought to the attention of the injury on a number of occasions wherein plaintiff cannot correctly be charged with making improper reference to insurance. There are also, however, other instances where in our opinion plaintiff's reference to insurance was improper, to wit; (1) and (2) reference on voir dire to the Farm Bureau Insurance Company; (3) asking plaintiff did he, by letter, ask the Mutual Insurance Company of Birmingham for a copy of his statement and (4) subsequent offer to show that plaintiff made such request; (5) asking plaintiff if Mutual Savings Fire Insurance Company paid any premiums on plaintiff's hospital insurance; (6) stating that the "insurance company" had the statement made by Bernholz; (7) asking defendant if he knew that plaintiff had given a statement to "the insurance adjuster for your company"; and (8) asking defendant if he had given a statement "to your insurance company." Without discussing each instance in detail, we think it is clear that the eight instances last noted *888 were improper references to defendant's insurance or insurer.
We are not to be understood as holding that all the references to insurance made by plaintiff, other than the eight we have specifically noted, were proper. We have merely noted the eight instances which we think were patently improper. There may be others, which we have not specifically noted, which also were improper.
Appellee's argument is summarized, as we understand it, in the following excerpts from his brief:
While we do not agree that defendant set the stage for all of plaintiff's references to insurance, defendant did set the state, so to speak, in certain instances, and defendant himself testified that plaintiff told defendant that he $1,000 would be paid by defendant's insurance company. We think plaintiff was within his rights in bringing out all of the conversation relating to the $1,000 offer because defendant had brought out part of that conversation. So the question for decision becomes one of deciding whether the improper references to insurance, considered together with references which were not improper, are so prejudicial as to require a new trial.
After careful consideration of the entire record, we are of opinion that the improper references to insurance made by plaintiff require a new trial in this case. It might be that any one, or even two, of the eight instances noted, would not, standing alone, require a new trial, but we cannot conclude other than that the repeated, improper references to insurance again and again, eight times, unduly emphasized to the jury the fact that a verdict against defendant would be paid, not by defendant, but by his insurer. The cumulative effect of this repetition deprived defendant of a trial free from the prejudicial effect of improper reference to insurance.
Comprehensive annotations on the question here involved appear in: 56 A.L.R. 1418; 74 A.L.R. 849; 95 A.L.R. 388; 105 A.L.R. 1319; and 4 A.L.R.2d 761. The last annotation states:
Nonetheless, we are of opinion that the more recent cases in this jurisdiction require a new trial in the instant case. Colquett v. Williams, 264 Ala. 214, 86 So. 2d 381; Thorne v. Parrish, 265 Ala. 193, 90 So. 2d 781.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.
COLEMAN, Justice.
Appellee says that on original deliverance we erred in interpretation of well-settled principles of law and that the cases we cited do not support the decision.
*889 It may be that the reason for reversal is not clearly spelled out in the original opinion. To eliminate doubt, we state the applicable rule as follows:
In the instant case, plaintiff's counsel repeatedly asked questions which suggested that defendant had insurance to cover his liability in this case, and in each instance where defendant objected to the question, the objection was sustained. The action of the court in ruling against plaintiff, repeatedly, could but serve to warn him that his references to insurance were improper. Louisville & Nashville R. Co. v. Payne, 133 Ky. 539, 118 S.W. 352, 19 Ann.Cas. 294, quoted in Birmingham Baptist Hospital v. Blackwell, supra. See also: Birmingham National Bank v. Bradley, 108 Ala. 205, 19 So. 791; Birmingham Electric Company v. Ryder, 225 Ala. 369, 144 So. 18; City of Birmingham v. Williams, 231 Ala. 232, 164 So. 101; Porter Coal Company v. Davis, 231 Ala. 359, 165 So. 93; Alabama Coca-Cola Bottling Company v. Stanfield, 234 Ala. 44, 173 So. 392; Travis v. Hubbard, 267 Ala. 670, 104 So. 2d 712.
Opinion extended.
Application overruled.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | September 14, 1961 |
767dfbfd-9715-470e-832a-fec45217f223 | McCleskey v. Finney | 130 So. 2d 183 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 183 (1961)
Clyde McCLESKEY and Henry McCleskey, d/b/a McCleskey Hardware and Building Supply Company,
v.
Mary Nelie FINNEY et al.
7 Div. 535.
Supreme Court of Alabama.
May 18, 1961.
*184 T. J. Carnes, Albertville, and Barnes & Smith, Gadsden, for appellants.
Inzer, Martin, Suttle & Inzer, Gadsden, for appellees.
MERRILL, Justice.
Appellants filed a bill in equity to enforce a materialman's lien on a house and lot in Gadsden. The respondents, appellees, are the owners and the contractor. A demurrer was filed and was overruled as to most aspects, but was sustained as to one aspect. Appellants appealed from the decree sustaining the demurrer to one aspect of the bill.
The trial court sustained the demurrer to that aspect of the bill "seeking to impose a lien on the unpaid balance due the contractor by owners for materials furnished contractor prior to January 6, 1959." The court stated this action was due to appellants' failure to comply with Tit. 33, § 46, Code 1940, which reads:
Itemizing the things to be done before the filing of the statement in the office of the judge of probate, every person, except the original contractor, must: (1) give notice in writing to the owner or proprietor that he claims a lien on such building or improvement; (2) "such building or improvement" should be described or identified; (3) the notice must set forth the amount of the claim; (4) for what the account was incurred, and (5) from whom the amount is owing.
The bill here alleges two notices, one given December 3, 1958, the other January 6, 1959. The December notice was defective in that it is not alleged that the notice disclosed the appellants' intent to claim a lien on the building or improvement as required by Tit. 46, § 33. The notice was also defective because it is not alleged that the description or identification of the building or improvement was given in the notice. Until the notice prescribed by the statute is given, the lien given to materialmen remains inchoate or potential. LeGrand v. Hubbard, 216 Ala. 164, 112 So. 826.
The January notice was made an exhibit to the bill. Omitting the signature, it reads:
The use of the words "has furnished" is sufficient to comply with § 37 of Tit. 33. But it is insufficient to meet the provisions of § 46 in that the notice does not state the amount of the claim for materials previously furnished the contractor. In Trammell v. Hudmon, 86 Ala. 472, 6 So. *185 4, 6, we held that the notice, given under the predecessor of § 46, failed to state "for what and from whom" the amount claimed "is owing," and was not effective for such omission. It is just as necessary to state the amount of the claim as it is to state the "for what and from whom" the amount is claimed.
Our cases are uniform in holding that a mechanic's or materialman's lien is not allowable in equity independently of statute, and where such statutory authority is relied upon, there must be strict compliance therewith. Brewton v. Sessions, 264 Ala. 123, 84 So. 2d 763; Lindsey v. Rogers, 260 Ala. 231, 69 So. 2d 445.
It has been held that compliance with Tit. 33, § 46, Code 1940, is imperative and mandatory. Gray v. McKinley, 34 Ala.App. 630, 43 So. 2d 421, certiorari denied 253 Ala. 199, 43 So. 2d 424. The statute was not complied with in the giving of either notice.
Appellants contend that the December notice together with the January notice "constitute full, complete and literal compliance with the requirements of Section 46," that every element of the statute is found in these two notices, and they should be considered together. No authority is cited in support of the contention, and there is authority to the contrary.
Where a lien claimant, not in privity with the owner, serves upon the owner two separate and unrelated notices claiming a lien for the same amount, each notice being independent of, and without reference to, the other, the two notices cannot be considered together for the purpose of determining the sufficiency of notice, but each notice must stand on its own merits. And the lien will not exist unless one of the notices is sufficient in itself. Harper Lumber & Mfg. Co. v. Teate, 98 Fla. 1055, 125 So. 21; 57 C.J.S. Mechanics' Liens § 126, p. 633.
Since neither notice was complete, the trial court correctly sustained the demurrer to that aspect of the bill seeking a lien for materials furnished prior to January 6, 1959.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | May 18, 1961 |
825e1842-ed12-4062-a528-c091050512c2 | Ball v. Jones | 132 So. 2d 120 | N/A | Alabama | Alabama Supreme Court | 132 So. 2d 120 (1961)
Fred S. BALL, Jr., et al.,
v.
Walter B. JONES, as Judge.
3 Div. 935.
Supreme Court of Alabama.
June 22, 1961.
*121 Robt. McD. Smith and Lange, Simpson, Robinson & Somerville, Birmingham, and Ball & Ball, Montgomery, for petitioners.
Rushton, Stakely & Johnston and Hill, Hill, Stovall & Carter, Montgomery, for respondent.
SIMPSON, Justice.
Brought under review by this proceeding is the constitutionality, vel non, of so much of § 6 of Act 729, General Acts of Alabama, 1957, Regular Session (pp. 1134 et seq.) providing that any petitioner for a zoning or rezoning of his property, or certain adversary property owners, who are aggrieved by any decision, order, or act of the legislative body of the city (here the City Commission) with respect to such petition, may appeal within 15 days from the date of such decision, order, or act to the Circuit Court in the county in which the city is located. The cause in such Circuit Court, according to the provisions of said § 6, is to be tried de novo with the right to a jury trial if demanded. As a matter of fact, it would seem that the act only applies to Montgomery, but was passed as a general law.
The petitioners, Fred S. Ball, Jr., Charles A. Ball, and Richard A. Ball, are owners of certain real estate located in the City of Montgomery, which has been leased to petitioner Sears-Roebuck & Co. When the lease agreement was made, the property was then classified under the zoning ordinance of the City of Montgomery as Residence A and C districts. Pursuant to an application of petitioners, the Board of City Commissioners of the City of Montgomery (denominated in said act as "the Legislative body of the city") enacted an ordinance on June 22, 1960 amending the zoning ordinance of Montgomery so as to rezone the real property from Residence A and C to Local Business District. On June 23, 1960 certain named persons, described as living or owning property within 1,000 feet of the real property affected by the rezoning ordinance, filed with the City Clerk of Montgomery *122 a notice of appeal to the Circuit Court of Montgomery County, under the provisions of said § 6 of the statute and demanded a "jury trial, de novo". On July 6, 1960 the City Clerk of Montgomery certified the proceedings of the Board of Commissioners and the enactment of the rezoning ordinance and filed the same with the Clerk of the Circuit Court. On July 11, 1960 petitioners filed in the Circuit Court of Montgomery County a motion to dismiss the appeal which was subsequently amended. The respondent judge overruled said motion and this petition for writ of prohibition or other appropriate writ is filed here for the purpose of reviewing said order overruling petitioners' motion to dismiss the appeal.
In the investigation of the constitutionality of an act of the legislature, we should determine what the constitution in expressed terms or by `its just implication means and this must depend upon the reading of the constitution itself. The provisions of the enactment itself cannot be consulted to give interpretation to the language of the constitution. The question has been ably argued by counsel for the parties and we approach its consideration with due sense of its importance and in recognition of the principle that enactments of the legislature are presumed to be constitutionally valid and this presumption prevails until it appears beyond a reasonable doubt that the enactment under consideration is invalid or obnoxious to the expressed terms of the constitution or to the necessary implication afforded by, or flowing from, such expressed provisions.
The strict legal question is whether or not said § 6, supra, providing for an appeal from the ordinance of the City Commission rezoning the questioned property to the Circuit Court with a right of a trial de novo violates §§ 42 and 43 of our constitution which provides for the separation of powers of government into three distinct branches: the Legislative, the Executive, and the Judicial.
It is hardly necessary to comment on the meaning of a trial de novo. A trial de novo, within the common acceptation of that term, means that the case shall be tried in the Circuit Court as if it had not been tried before, and that that court may substitute its own findings and judgment for that of the lower tribunal. Or as stated in Thompson v. City of Birmingham, 217 Ala. 491, 492, 117 So. 406, 407:
See also Vinyard v. Republic Iron & Steel Co., 205 Ala. 269, 87 So. 552; California Co. v. State Oil & Gas Board, 200 Miss. 824, 27 So. 2d 542, 544.
The circuit court of Montgomery County is made a part of the Judicial Department of the State of Alabama by § 139 of the Constitution of 1901. Petitioners contend and we think correctlythat if an appeal to the circuit court is allowed from the enactment of zoning ordinances, with a trial de novo and possibly a trial by jury if demanded, the conduct of the trial and judgment or verdict of the jury will supplant the considered judgment of a legislative body, the City Commissioners, and thus the circuit court will be performing legislative functions of government prohibited by said §§ 42 and 43 of our constitution.
The legislative power of this state is defined in § 44 of the constitution: "The legislative power of this state shall be vested in a legislature, which shall consist of a senate and a house of representatives." It is well known that legislative powers have been delegated to municipalities. In the early case of Dunn v. Court of County Revenues of Wilcox, 85 Ala. 144, 147, 4 So. 661, 662, this court stated the well recognized principle that "* * * While the *123 general rule obtains that the power to make laws is vested in the general assembly by the constitution, and this power can not ordinarily be delegated to any other tribunal, yet it is nowhere denied that it is competent for the general assembly to delegate to municipal corporations the power to enact by-laws and ordinances which in many particulars may have all the force and validity of a statute enacted by the general assembly itself. This is commonly done in the charters granted to incorporated towns and cities, and the authority thus conferred comprehends a vast number of subjects affecting the property rights and personal liberty of the citizen, and covering the same class of acts regulated by state laws. The American theory of municipalities is that the legislation permitted to be exercised by them is a mere delegation of power of the state; and hence it is an established rule that all laws or ordinances enacted by virtue of this delegated power are, in a certain sense, as much part of the general system of legislation as are the laws of the state, * * *". (Emphasis supplied.)
A city or municipal corporation does not have the inherent power to enact and enforce zoning regulations. White v. Luquire Funeral Home, 221 Ala. 440, 129 So. 84; Leary v. Adams, 226 Ala. 472, 147 So. 391; Alabama Alcoholic Beverage Control Board v. City of Birmingham, 253 Ala. 402, 44 So. 2d 593. Municipal corporations were granted the power and authority to enact comprehensive zoning ordinances under Code 1940, Tit. 37, §§ 772-773. This court in Marshall v. City of Mobile, 250 Ala. 646, 35 So. 2d 553, recognized the well-known rule that municipal authorities act in a legislative capacity in the enactment of zoning ordinances. Also, the amendment to a comprehensive zoning ordinance or a rezoning of a certain area, as was done in the instant case, becomes a part of the existing comprehensive ordinance and, a fortiorari, is a legislative act. Phillips v. City of Homewood, 255 Ala. 180, 50 So. 2d 267.
The limitation of judicial review grows out of the character of the proceedings involved. That the enactment of zoning ordinances is a legislative function and not a judicial one is well established and should need little citation of authority. We will, however, quote from Marshall v. City of Mobile, supra, where it is said:
Again:
Again:
101 C.J.S. Zoning § 1; Andrews v. Town Bd. of Town of DeWitt, Sup., 98 N.Y.S.2d 494(2, 3).
To be sure, such legislative enactment, though not a judicial matter, is subject to judicial review, but only to determine *124 the enactment's validity under the police power of the municipality. "Accordingly, the courts have power to grant relief in appropriate proceedings against zoning which is unreasonable, discriminatory, unconstitutional, or otherwise invalid, * * *." 101 C.J.S. Zoning § 320, pp. 1103, 1104. See also 101 C.J.S. Zoning § 5, pp. 672, et seq. This seems to be the universal rule. See 3 McQuillin, Municipal Corp., Vol. 8, p. 677, § 25.278.
The division of our government into three separate departments, Legislative, Executive, and Judicial, under § 42 of our constitution, with the prohibition against either exercising the powers of the other "to the end that it may be a government of laws and not of men" as provided in § 43 of the constitution, is discussed in Fox v. McDonald, 101 Ala. 51, 13 So. 416, 21 L.R.A. 529, 46 Am.St.Rep. 98; and State ex rel. Wilkinson v. Lane, 181 Ala. 646, 62 So. 31; and need little elaboration here. These cases are not contrary to the view here entertained. We do not regard either of these cases, or any others that have come to our attention, as authoritative to allow the transfer of the legislative power of any subdivision of our state to the judiciary. See also City of Birmingham v. Southern Bell Tel. & Telegraph Co., 234 Ala. 526, 176 So. 301.
It seems, therefore, apodictic that any right of appeal from the legislative enactment of the city to the circuit court with a trial de novo as provided in said § 6 was intended to clothe the circuit court with legislative power in the field of passing zoning ordinances, which is strictly a legislative function and inhibited by the stated sections of our constitution, as so well reasoned in all our cases and elsewhere. To transfer this power to the circuit court would clearly be an invasion of the legislative field and beyond the proper functions of the court. The resort to the courts in such cases is to confine the legislative power within constitutional bounds and against arbitrary, unreasonable, or unlawful action, and if there is no occasion for the exercise of that character of review, then there is no duty for the court to perform. To repeat, the enactment of zoning ordinances is a legislative and not a judicial function and the only review which the circuit court could properly undertake would be to determine whether or not the City Commission acted arbitrarily, unreasonably, or unlawfully in enacting the ordinance. See authorities, supra, including McQuillin.
To rationalize further, the result of the underlying theory of the statute under consideration allowing an appeal with trial de novo to the circuit court by any person aggrieved by the enactment of a zoning ordinance by the legislative body of the city, would make it quite possible for the circuit court, with or without a jury, to completely nullify such an ordinance. Such result effected by the judicial branch of the government in a matter purely legislative would be to substitute the judgment of the circuit court for that of the law making body of the municipality. Manifestly, such a result would run counter to our present form of government and in contravention to § 43 of our organic law prohibiting the judiciary from invading the legislative domain.
To further demonstrate how uniquely illogical and unconstitutional is the considered provision of § 6, we pose some simple questions. Suppose it could be held, by some elaborate stretch of the judicial imagination, that such an appeal would lie. By what standard would the jury or the court be guided in determining whether the ordinance should be overruled or annulled? Would the guiding standard be the whim of the esthetic or the unbridled decision of the jury as to whether the ordinance was right or wrong? These questions contain their own answer, viz., such matter is without the realm of judicial interference. Such decision is rightly entrusted to the legislative body of the city that knows the local necessities and only acts after having been advised by an experienced board, whose sole *125 power is to recommend, i. e.: the City Planning Commission. McQuillin, supra, p. 550, § 25.219 et seq.
The situation confronting us here is quite different from that provided by § 783, Tit. 37, Code 1940, which provides for an appeal by an aggrieved party to the circuit court with trial de novo from a final judgment of the Board of Zoning Adjustment of towns and cities. This court has very correctly held that the Board of Adjustment performs quasi judicial functions and, therefore, is amenable to judicial review in the circuit court. In Nelson v. Donaldson, 255 Ala. 76, 81, 50 So. 2d 244, 248, it was pointed out that while no body in which is vested the legislative power may abdicate its legislative functions by delegating power to another body, "it is equally well established that the legislative body may delegate to a subordinate body the power to execute and administer its laws, where the legislative body has formulated a standard reasonably clear to govern the action of such subordinate body". (Emphasis supplied.) See also Water Works Board of City of Birmingham v. Stephens, 262 Ala. 203, 78 So. 2d 267; Arants case, Arant v. Board of Adjustment, Ala., 126 So. 2d 100. The Nelson v. Donaldson case stresses the proposition that the appeal under § 783 from a decision of the Board of Adjustment to allow a variance, a nonconforming use, etc. is the decision of a quasi judicial body established by the legislature to execute and administer the zoning laws, where the legislative body has formulated the standards by which the Board of Adjustment should be governed in making its decisions. The situation instantly confronting us is entirely different, since no standard to guide the circuit court on appeal is formulated and indeed none could be formulated, since the circuit court is not, and could not be, vested with the power to enact or annul, or overrule zoning ordinances. Indeed, if we read the Stephens case, supra, correctly, it impliedly held that a different result would be reached if the action of the Water Works Board had been a rezoning of the property. The court held that such was not the status.
The same rationale distinguishes the instant case from Ex parte Darnell, 262 Ala. 71, 78, 76 So. 2d 770, 774. That case pointed out that the Personnel Board of Jefferson County was, by the enactment creating it, vested "with powers of a judicial nature" (describing them). And thus a right of appeal to the circuit court with trial de novo was proper. But the opinion clearly pointed out that a legislative act of the legislative department of government could not be reviewed in such a manner. Citing City of Birmingham v. Southern Bell Tel. & Telegraph Co., supra; and Alabama Public Service Commission v. Southern Bell Tel. & Telegraph Co., 253 Ala. 1, 42 So. 2d 655. The opinion points out "the Public Service Commission in fixing rates is legislative and not judicial". Of course the fact that the legislature delegated this rate-fixing duty to the Public Service Commission made it nonetheless legislative. So also, the fact that the legislature delegated to the Board of Commissioners of the various cities the power to enact zoning ordinances rendered such ordinances, when enacted, nonetheless legislative. As observed in Dunn v. Court of County Revenues of Wilcox, 85 Ala. 144, 147, 4 So. 661, 662, hereinabove, "the American theory of municipalties is that the legislation permitted to be exercised by them is a mere delegation of the power of the state; and hence it is an established rule that all laws or ordinances enacted by virtue of this delegated power are, * * * as much part of the general system of legislation as are the laws of the state". Hence, it is clear that the Judicial Department of the state could not be empowered to review the wisdom or unwisdom, or the rightness or wrongness of laws passed under this delegated power any more than if the laws had been passed by the legislature itself.
Respondent contends that municipal officers act in all three capacities, executive, legislative, and judicial, without constitutional *126 objection. This general statement is found in some of our cases such as State ex rel. Wilkinson v. Lane, supra, wherein De-Graff enried, J., 181 Ala. on page 658, 62 So. on page 34 referring to §§ 42 and 43 of our constitution said, "A casual reading of these sections will disclose that they have no applicability, and were never intended to apply, to mere town or city governments or to mere town or city officials". Respondent then advances in brief the contention that whether the action of the City Commission appealed from was judicial, legislative, or administrative makes no difference, for the Commissioners were acting under a plan established by the legislature which included appeal to the circuit court as an integral part. In one of respondent's briefs the following is found: "Sections 42 and 43 are checks and balances on the powers and duties of the `three distinct departments' of the State Government and operate solely on the State level, that is on the State Legislature, the Governor and other constitutionally designated State officers and the Courts of the State as established by the Constitution". Here the respondent acknowledges the doctrine of separation of powers pronounced by §§ 42 and 43 of our constitution, and that the circuit court is a part of the judicial department of the State of Alabama, and must obey the constitution. Passage of ordinances, whether zoning or not, constitute a legislative act by the city legislative body. And the review under the considered statute of the city zoning ordinance is in the circuit courta part of the judicial department of governmentand the prohibition as to separation of powers applies, whether they do or do not apply to town, city, or municipal authorities. Therefore, clearly whether §§ 42 and 43 apply to local municipal officers in performance of their various duties has no bearing on the outcome of the instant decision.
We perhaps are writing too much, but out of respect for the parties and the seeming earnest argument of distinguished counsel, we will continue with a few more observations.
In respondent's supplemental brief it is argued that under Act 729 Judge Jones, on appeal, could decide "judicial matters" such as whether the ordinance is valid or arbitrary, etc. We do not conceive this to be a proper construction of the Act, since § 6 gives the circuit court with or without a jury the power to try the case de novo and hence a decision there would not be limited to the above determinations, but the door is thrown wide open for a new determination on any other deducible facts as if it had originated in the circuit court. Authorities on trial de novo, supra.
Likewise, we are in disagreement with distinguished counsel for respondent that the case of Attorney General v. Inhabitants of Dover, 327 Mass. 601, 100 N.E.2d 1, 3, in any way supports the respondent's contention. The Massachusetts statute apparently did not provide for an appeal to a court from a zoning ordinance. It merely empowered the Attorney General to "bring an information in equity for a declaratory decree as to the validity of any municipal ordinance or by-law" enacted under the zoning enabling statutes. Only the validity of the ordinance could be questioned, not its wisdom or unwisdom. This holding, in fact, reinforces our view. Although it was argued that such a statute imposed on the court a non-judicial function, the Supreme Court of Massachusetts very properly held:
Such a position is entirely consistent with our view, viz., a court may be given power by statute to review the validity, vel non, of an ordinance or other legislative act but not the power to review the wisdom or unwisdom of the enactment by a trial de novo. City of Birmingham v. Louisiville & Nashville Railroad Co., 213 Ala. 92, 104 So. 258, is authoritative to the same effect.
Rather, we think that the petitioner's reply brief in answer to the respondent's supplemental brief is more to the point in citing as authoritative to the view which we are here expressing, the Mississippi case of California Co. v. State Oil & Gas Board, 200 Miss. 824, 27 So. 2d 542, 28 So. 2d 120. In that case an appeal was taken to the Circuit Court of Adams County, Mississippi from an order of the State Oil and Gas Board. Under Mississippi law such an order was regarded as a legislative matter. The constitution of Mississippi was quite similar to our provisions with respect to the separation of powers of government. The Mississippi statute assailed provided for an appeal from the order of the Board to the circuit court with the right of a trial de novo (like Act 729) empowering the circuit court to approve or disapprove the action of the Board. In holding that the provision of the statute was contrary to the Mississippi constitution the court stated:
The concurring opinion of Judge Griffith is even more in point, where he reasons that since the legislature itself could not have delegated the business of regulating oil and gas productiona legislative matterto the circuit court in the first instance, it could not do so by the indirect device of a trial de novo. Also, in the later case of City of Meridian v. Davidson, 211 Miss. 683, 53 So. 2d 48, 52, the Mississippi Supreme Court, following the California case, made the following pertinent observation with reference to an analogous matter:
The principle which we have endeavered to exposit seems so unassailable from the standpoint of logic and sound judicial principle that we will refrain from further comment. We conclude by repeating, a city ordinance is a legislative act. The legislative function with the right of the legislative body to determine the wisdom and propriety of the matter, its superior opportunity to know the needs of the community, and the policy of legislative acts are within the power of the legislative body and the enactment and review of a zoning ordinance, except as hereinabove shown, is a thing apart from the judicial function. Hence, the statute seeking to impose upon the circuit court a non-judicial function, a matter exclusively within the power and discretion of the legislative body of the city, cannot be conferred on the judicial branch of government.
Other incidental questions raised by respondent are without merit and seem to need little treatment.
Petitioners are not estopped, as argued by respondent, to raise the question of the constitutionality of so much of § 6 providing for a de novo trial in the circuit court. Just because they sought a rezoning under Act 729, would not estop them from raising the constitutional question since they claim no right peculiar to Act 729 in attempting to have the property rezoned. The same right could have been asserted under the general law had not Act 729 been enacted for Montgomery County in place of the General Act. Under authority of Houston County Bd. of Revenue v. Poyner, 236 Ala. 384, 182 So. 455, it seems clear enough that the underlying principles of estoppel in pais, or equitable estoppel, are lacking here so the fact that petitioners followed the procedure provided in Act 729 (containing saving and severability clauses) would not estop them from challenging that part of § 6 providing for appeal and de novo trial in the circuit court.
Nor are we in agreement with respondent's contention that a writ of prohibition to prevent the lower court from acting in a matter over which it has no jurisdiction is improper. To the contrary, we are not apprised of any other proceeding which would be adequate. A writ of prohibition is a preventive rather than a corrective remedy, to prevent usurpation or excessive jurisdiction by a judicial tribunal and to keep each court within the limits to which law confines it. State ex rel. McQueen v. Horton, 31 Ala.App. 71, 14 So. 2d 557, affirmed 244 Ala. 594, 14 So. 2d 561; Ala.Dig., Prohibition, Key No. 1 Respondent cites Boyd v. Garrison, 246 Ala. 122, 19 So. 2d 385 to support his contention. We regard the Garrison case as inapposite as authority for his contention. The holding of that case was that a writ of prohibition to restrain a judge of probate from performing a ministerial act was not proper. That case did indicate, however, that the writ would be proper to prohibit the probate judge from proceeding in a judicial way in a matter beyond his jurisdiction. The court observed:
The final contention of respondent is that the members of the Board of Commissioners of the City of Montgomery are necessary parties. No apposite authority is cited. We likewise hold this contention to be without merit. The real parties in interest are the petitioners and "certain named persons described as living or owning property within one thousand feet of the real property affected". Those "named parties" are here before the court in the person of *129 the respondent judge, with their attorneys representing the respondent. We think this suffices to give this court jurisdiction. Ex parte Benson, 243 Ala. 435, 10 So. 2d 482; Ex parte Kelley, 30 Ala.App. 293, 4 So. 2d 431.
Probably some comment should be made with reference to the opinion of Mr. Justice GOODWYN where he writes that only the trial de novo feature of § 6 should be eliminated but leaving in the right of appeal. This idea emanated from the California case, supra, 27 So. 2d 542. We think the separately concurring opinion of Mr. Justice Griffith expresses the correct legal view, where he observed:
The same situation would confront the circuit court in the instant case should Mr. Justice GOODWYN'S view prevail.
General rules of construction are also helpful. In case of doubt or inconsistency between language in the enacting part of a statute and language in the preamble, the preamble controls because it expresses in the most satisfactory manner the reason and purpose of the act. Sutherland Statutes and Statutory Construction, Vol. 2, p. 342, § 4801(3).
Looking to the preamble of Act No. 729 with reference to appeals, it provides "for and regulating appeals from orders, decisions, and actions of the council, commission or like legislative body"; and responsive to this preamble (of regulating appeals) § 6 provides that an aggrieved party "may appeal * * * to the circuit court * * * [and] in case of appeal * * * the cause in such court shall be tried de novo". It seems quite evident that the provision for an appeal is single and the quoted clause can not be separated so as to strike "trial de novo" from the preceding clause giving the right of appeal. In our view any other construction would at least ignore not only the plain language of the statute, but also the well known principle of enjusdem generis.
Let the Writ of Prohibition issue.
LIVINGSTON, C. J., and MERRILL and COLEMAN, JJ., concur.
GOODWYN, J., concurs in part and in part dissents, as shown by his separate opinion.
LAWSON, J., dissents, as shown by his separate opinion.
STAKELY, J., not sitting.
GOODWYN, Justice (concurring in part and dissenting in part).
I agree that Act No. 729 (approved Sept. 20, 1957, Acts 1957, Vol. II, p. 1134), to the extent it provides for a trial de novo with power in the circuit court to zone or not to zone, is unconstitutional. However, there are judicial questions relating to zoning which are proper subjects of review by the circuit court.
*130 As I understand the majority opinion, it precludes the circuit court from reviewing the action of the board of commissioners by appeal under Act No. 729, even if review on such appeal is confined to questions properly before the court. In other words, the majority would completely strike out of the Act the provisions giving the right of appeal when questions of zoning are involved. It is with this phase of the opinion that I am unable to agree.
Act No. 729 contains a severability clause providing that "if any part of the Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains." It appears to me that the part of the Act providing for a trial de novo can be separated from the part providing for appeals so as to permit appeals to the circuit court for review of questions properly reviewable there. Petitioners seem to agree with this, although thy seek, by their petition, to prohibit the circuit court from entertaining the appeal for any purpose. As stated in one of their briefs, viz.:
"As a matter of fact, in a case remarkably like that at bar (already cited in our supplemental brief) the Mississippi Supreme Court declared only the trial de novo feature unconstitutional, leaving in effect the statutory right to a court review.
It is a well-settled principle that all presumptions should be indulged in favor of the validity of a statute; that its unconstitutionality must appear beyond a reasonable doubt before declaring it to be invalid; and that it should be given such a construction, if possible, as will sustain its validity. It seems to me that the right of appeal with respect to zoning action taken by the board of commissioners, being separable from and not wholly dependent on the provision for a trial de novo, should remain as a valid part of the Act. I think this is in accord with the legislative intent, gathered from the provisions of the Act itself, particularly when considered in the light of the principle that the validity of a statute should be upheld, if possible. Of course, the power of the circuit court, on appeal, would be limited to the exercise of a judicial function, in contrast to one that is legislative.
I would grant the writ so as to prohibit the circuit court from proceeding with a trial de novo, but would not prohibit it from entertaining the appeal with respect to judicial questions properly reviewable there.
To the extent indicated, I respectfully dissent.
LAWSON, Justice (dissenting).
Resort may be had to the courts where it is made to appear that a zoning ordinance "passes the bounds of reason and assumes the character of a merely arbitrary fiat." Marshall v. City of Mobile, 250 Ala. 646, 35 So. 2d 553, 555. We have also said that resort may be had to the courts when the enforcement of a zoning ordinance unlawfully deprives a person of property rights or unlawfully interferes with his right to use his property. Phillips v. City of Homewood, 255 Ala. 180, 50 So. 2d 267.
*131 The court recognizes this right of court review, but has held that it cannot be invoked by a resort to § 6 of Act 729, approved September 20, 1957, 1957 General Acts, p. 1134.
I cannot agree with this narrow construction of the provisions of § 6 of Act 729, supra.
I know of no reason why the Legislature cannot legally provide for such a review by appeal.
The construction placed on § 6, supra, by the court strikes down most, if not all, of the provisions of § 6, supra, in spite of the severability clause of Act 729 and in spite of the recognized rule that enactments of the Legislature are presumed to be "constitutionally valid."
In my opinion, the court's failure to recognize this principle places the entire act in jeopardy, for it may well be insisted that without the appeal feature included in § 6, supra, the act would not have been passed. If the severability clause cannot save the appeal provisions of § 6, supra, the question is presented as to whether it can save the other provisions of Act 729, supra.
I entertain the view, therefore, that the writ of prohibition should not issue without expressing an opinion as to whether the adoption of the rezoning ordinance in question here was a legislative function.
I prefer not to pass at this time on this question of first impression in this state, since an expression by me would not affect the decision.
The time which has been available to me for research since I have been brought into a consideration of this case has not been adequate for me to exhaust the authorities on the question. I find that the courts of other states are not in accord.
As going to show the differences of opinion, I call attention to several cases of courts of other states.
Although it is not cited in support of the statement that the enactment of the rezoning ordinance is an exercise of a purely legislative function, such is held in the case of Andrews v. Town Board of Town of Dewitt, Sup., 98 N.Y.S.2d 494, which is cited elsewhere in the court's opinion. To like effect is the holding of the Court of Appeals of Ohio in Hilltop Realty, Inc., v. Town of South Euclid, 110 Ohio App. 535, 164 N.E.2d 180. In Lumb v. Zoning Board of Review of Town of Bristol, R.I., 165 A.2d 504, 507, the court held: "A town council acting to enact, amend, or repeal a zoning ordinance is engaging in a purely legislative action." (Emphasis supplied.)
The Superior Court of New Jersey expressed a contrary view in the case of Mc-Namara v. Borough of Saddle River, 60 N.J.Super. 367, 158 A.2d 722, 726. That case involved the validity of an amendment of the borough of Saddle River zoning ordinance.
The New Jersey Court said in part as follows:
In Kelley v. John, 162 Neb. 319, 75 N.W.2d 713, the Supreme Court of Nebraska held that the governing body of the City of McCook in adopting a rezoning ordinance was acting in an administrative capacity rather than legislative. The Nebraska court recognized, as does this court, that in adopting an original comprehensive zoning ordinance the municipal authorities act in a legislative capacity, but pointed out the distinction when the municipal action was the adoption of an amendment to the comprehensive zoning ordinance.
For the reasons heretofore indicated, I feel constrained to dissent from the action of the court in ordering the issuance of the peremptory writ of prohibition. | June 22, 1961 |
49af24d0-6f52-485a-badd-a4b0b7eefbaa | Johnson v. State | 133 So. 2d 53 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 53 (1961)
Joe Henry JOHNSON
v.
STATE of Alabama.
8 Div. 33.
Supreme Court of Alabama.
June 22, 1961.
Rehearing Denied September 28, 1961.
*55 David U. Patton and Bruce Sherrill, Athens, for appellant.
MacDonald Gallion, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.
SIMPSON, Justice.
Joe Henry Johnson was indicted, tried, and convicted of murder in the first degree in the Circuit Court of Limestone County, Alabama, and was sentenced to death by electrocution. He appeals under the automatic appeal statute, Title 15, §§ 382(1)-382(13), Cum.Supp. On the day appointed for his trial, appellant withdrew his plea of not guilty and entered a plea of guilty to the charge of murder in the first degree, and after hearing the evidence the jury returned a death verdict.
Error is sought to be rested on excerpts from the oral charge of the court to which no exception was reserved. The automatic appeal statute does not authorize such a review, no exception having been seasonably taken by appellant. Reedy v. State, 246 Ala. 363, 20 So. 2d 528; Scott v. State, 247 Ala. 62, 22 So. 2d 529; Haygood v. State, 252 Ala. 3, 38 So. 2d 593; Byrd v. State, 257 Ala. 100, 57 So. 2d 388; and Walker v. State, 269 Ala. 555, 114 So. 2d 402.
Charge No. 4, which concerned voluntary drunkenness, was refused without error, if for no other reason, because the principle of law sought to be expressed was adequately covered by given written charge No. 5, which correctly stated the controlling principle of law. Helms v. State, 254 Ala. 14, 19, 47 So. 2d 276, 281.
Appellant argues as error to reverse the action of the trial court in overruling the appellant's objections to certain remarks of the solicitor in his closing argument. The general rule is that improper argument of counsel is not ground for a new trial or the subject of review on appeal unless there is due objection by counsel or a motion to exclude, a ruling thereon by the court, an exception thereto, or a refusal of the court to make a ruling. Washington v. State, 259 Ala. 104, 65 So. 2d 704; Anderson v. State, 209 Ala. 36, 95 So. 171.
*56 The only exception to the foregoing rule is where the argument is so greatly prejudicial that its harmful effect is viewed as ineradicable, it may be made a ground for a motion for a new trial. Washington v. State, supra.
These rules prevail even under the automatic appeal statute. Only review of rulings on trial with respect to matters of evidence are within the scope of the statute obviating the necessity of interposing seasonable objection. Broadway v. State, 257 Ala. 414, 60 So. 2d 701.
Following is the argument of the solicitor and objections with exceptions made by appellant's counsel as shown by the record:
"The Court: Objection overruled.
"Mr. Sherrill: We reserve an exception."
Appellant contends, as is seen from the objection, that the argument of the solicitor was a direct and improper reference to his failure to testify, and therefore in violation of § 305, Title 15, Code 1940. The contention is without merit. The statement was merely a comment by the solicitor upon the evidence admitted during trial and not an unfavorable allusion to the appellant's silence. It was merely a statement of what the defendant had stated in his confession. The statute is, of course, designed to prevent the creation of any unfavorable inference from the accused's silence, but it does not abrogate the right of State's counsel to comment on legitimate inferences of the evidence. Arant v. State, 232 Ala. 275, 167 So. 540.
Appellant also argues as error to reverse the statement by the solicitor in his closing argument when he referred to "the last capital case in Limestone County, a kindred case in Limestone County, that has been a deterring effect." These remarks of the solicitor were, of course, improper. However, the court sustained the objection and promptly instructed the jury that such remarks were not legitimate argument and were not to be considered in their deliberation. After careful consideration we conclude that the remark was rendered innocuous by the action of the trial court in excluding the same and the accompanying instructions to the jury.
It is also contended that prejudicial error intervened when the solicitor argued to the jury: "We want to file in the archives of Alabama, and give notice to this entire country, and to Alabama, and to the Southland that we are going to protect the womanhood of Alabama." It is sometimes difficult to draw the line between allowable argument and improper statements in argument. The rule is that an attorney cannot be allowed to state anything as a fact as to which there is no evidence. Olden v. State, 176 Ala. 6, 11, 58 So. 307. But the solicitor may properly comment upon the evil generally of the crime which the law he is seeking to enforce intends to prevent. Dollar v. State, 99 Ala. 236, 13 So. 575. It is only when the statement is of a substantive, outside factstated as a factand which manifestly bears on a material inquiry before the jury, that the court can interfere and arrest discussion. Cross v. State, 68 Ala. *57 476, 484; Sanders v. State, 260 Ala. 323, 70 So. 2d 802. The remark of the solicitor did not fall within the ban of prejudicial argument but was merely arguendo of his opinion of the case and what the result of the jury verdict should be. The following cases also clearly sustain this view: Satterfield v. State, 212 Ala. 349, 102 So. 691; Frost v. State, 225 Ala. 232, 142 So. 427; Ex parte State ex rel. Davis, 210 Ala. 96, 97 So. 573; Davidson v. State, 211 Ala. 471, 100 So. 641; Lindsey v. State, 17 Ala.App. 670, 88 So. 189; and Witt v. State, 27 Ala.App. 409, 174 So. 794, certiorari denied 234 Ala. 391, 174 So. 795.
We now direct our attention to the claimed error when the court overruled the objection to remarks of the solicitor in examining the fifth group of prospective jurors on voir dire. The solicitor stated: "In addition to those questions the Court has propounded on this voir dire, I would like to address myself to the jury, with the authority of Redus v. The State of Alabama. Do any of you gentlemen have any moral, spiritual or conscientious feeling or realization, or scruples known to yourself, or likely and probably to develop within yourself before the termination of this trial (that isn't exactly like it was in the Redus case), that would prohibit you from voting the death penalty, provided the testimony so warranted it." The court thus ruled: "The reference to any authority cited by the State as the law to the court does not concern the jury, and you will give no attention to that. You won't discuss it; you will put it out of your mind insofar as the consideration of this case, if you do,if you are selected to serve on this jury, and with that explanation, the objection will be overruled."
In Redus v. State, 243 Ala. 320, 9 So. 2d 914, 921, referred to by the solicitor, the same solicitor asked: "Gentlemen, do you have any moral or religious scruples against capital punishment? Do you believe that the Bible, in any of its parts, taught that capital punishment was contrary to the Bible?" We there concluded that such examination by the solicitor was no abuse of the sound discretion of the trial court on voir dire examination of the panel from which the jury was selected. The remark objected to here was addressed to the fifth of seven groups of jurors examined on voir dire. Four of the twelve men of this group were excused. Of the eight remaining it is not apparent whether any one of them was selected to serve on the jury which tried the appellant. With the direct and forceful admonition of the trial court we do not think that any error intervened by the stated remark of the solicitor. Redus v. State, supra.
It is necessary to relate some of the factsrevolting in their detailsin order to discuss other points which have been raised by diligent counsel representing the appellant. Miss Dicie Boyd, aged about 62 years, was discovered by a relative in the barn on the Boyd premises. She had been raped, murdered, denuded of her clothing, and severely beaten with some blunt instrument, which caused her death. On the same occasion her mother, Mrs. Rowena Boyd, aged about 89 years, was found in their home, also severely beaten and the house ransacked. Shortly after this discovery by the relative, appellant was arrested, and the State toxicologist's examination revealed that stains on his clothing were from human blood. He made two voluntary confessions in writing admitting the horrible crime, for which he was indicted.
Appellant argues that the court committed error in allowing witnesses to testify as regards the physical condition of Mrs. Rowena Boyd, the mother of the deceased, the condition of the residence, and its furnishings, etc. This evidence was admitted as within the res gestae of the rape-murder of Miss Dicie Boyd. The appellant argues that these two incidents were separate and distinct and that the physical condition of Mrs. Boyd and the *58 house were entirely separate and distinct in time and place and not within the res gestae of the crime for which the appellant was being tried and should, therefore, have been excluded. The contention is without merit. In homicide cases all the surroundings and circumstances attending the killing, the declarations of the accused at and after the killing, and his conduct at or near the scene are admissible and form part of the res gestae. Time alone is not the sole criterion as to whether matter is admissible under the rule. Acts, facts, or circumstances admissible under the res gestae are said to be contemporaneous with the main fact when they tend to elucidate the controversial matter, and spring out of it as a spontaneous consequence, occurring at a time and place so near to it as reasonably to preclude the idea of a deliberate design. Cook v. State, 269 Ala. 646, 115 So. 2d 101; Byrd v. State, 257 Ala. 100, 57 So. 2d 388; Stuart v. State, 244 Ala. 434, 14 So. 2d 147; Laws v. State, 209 Ala. 174, 95 So. 819; Dudley v. State, 185 Ala. 27, 64 So. 309; Domingus v. State, 94 Ala. 9, 11 So. 190; Pugh v. State, 30 Ala.App. 572, 10 So. 2d 833, certiorari denied 243 Ala. 507, 10 So. 2d 836; Dillard v. State, 27 Ala.App. 50, 165 So. 783.
The assault on Mrs. Boyd, according to the confession of the appellant, transpired immediately after the rape-murder of Miss Boyd and was so connected with it as to render it a part of the res gestae and "admissible as shedding light on the acts and motive of the perpetrator of [the] assault". Canty v. State, 244 Ala. 108, 11 So. 2d 844, 845, certiorari denied 319 U.S. 746, 63 S. Ct. 1030, 87 L. Ed. 1701; Davis v. State, 213 Ala. 541, 105 So. 677; Parsons v. State, 251 Ala. 467, 38 So. 2d 209; Jackson v. State, 229 Ala. 48, 155 So. 581; Keith v. State, 253 Ala. 670, 46 So. 2d 705; Mason v. State, 259 Ala. 438, 66 So. 2d 557, 42 A.L.R.2d 847; and Smarr v. State, 260 Ala. 30, 68 So. 2d 6.
Moreover, the evidence with reference to the assault on Mrs. Boyd was admissible against the defendant as tending to show his animus and to illustrate the gravity of the assault on Miss Boyd. Cases ubi supra.
Counsel cogently argue that reversible error was committed by the introduction by the State of certain photographs, Exhibits No. 2, A, B, C, D, E, and F. Exhibit No. 2 was a photograph of the deceased in the barn lying on her back completely nude, showing the wounds received and the position of the body when found. Exhibits A, B, C, D, E, and F were photographs made at the funeral home depicting the wounds received by the deceased around her head and the cuts in her hands. Counsel urge error as the result of failure on the part of the solicitor to furnish them with all photographs pursuant to an order made by the court at a pre-trial hearing. The solicitor informed counsel for appellant at the hearing that he did not have in his possession all the photographs, that some were in the possession of the State Toxicologist and the State Investigator. It is apparent that all photographs in possession of the solicitor at the time of the order were examined by counsel for appellant before the trial. For the others, the court allowed counsel for appellant a reasonable time to examine the photographs before permitting them to be offered into evidence. We fail to perceive any prejudice to the defendant in the manner of the handling of these exhibits.
Counsel also contend that the photographs admitted into evidence were cumulative and resulted in prejudicial error to appellant. We are unwilling to pronounce error in the admission in evidence of the photographs. The rule relative to the admissibility of such photographs has been stated many times and need not be here repeated. McKee v. State, 253 Ala. 235, 237-238, 44 So. 2d 781, 783; Hines v. State, 260 Ala. 668, 72 So. 2d 296; Walker v. State, 265 Ala. 233, 90 So. 2d 221; Pilley v. State, 247 Ala. 523, 25 So. 2d 57; Williams v. State, 255 Ala. 229, *59 51 So. 2d 250; Douglass v. State, 257 Ala. 269, 58 So. 2d 608; Fewell v. State, 259 Ala. 401, 66 So. 2d 771; Allen v. State, 260 Ala. 324, 70 So. 2d 644; Chappellee v. State, 267 Ala. 37, 99 So. 2d 431; Smarr v. State, supra; Maund v. State, 254 Ala. 452, 48 So. 2d 553. In Reedy v. State, supra, photographs of the victim taken after the assault, though unsightly and only cumulative in character, were admitted as tending to illustrate the gravity of the assault, citing Grissett v. State, 241 Ala. 343, 2 So. 2d 399. We, therefore, must hold that no error was committed by the introduction of the photographs.
Appellant's request to examine the notes overnight used by State's witness, R. W. Godwin, to refresh his recollection while testifying on direct examination was denied by the court and is urged as reversible error. Appellant did exercise the privilege granted to him to examine the notes during the trial. It is not clear from the record how much of the witness' testimony was based upon his reference to the notes, but apparently the witness refreshed his recollection from such notes. His testimony was material, yet we cannot say the court committed reversible error in denying the inspection of the notes overnight, for there was no denial of an opportunity to inspect the notes in order that appellant might cross-examine and test the integrity of the witness and its propriety to revive a faded or fading recollection. Acklen's Ex'r. v. Hickman, 63 Ala. 494, 35 Am.Rep. 54.
Mr. W. T. McVay, Assistant State Toxicologist, was qualified as an expert. He examined the body of Miss Dicie Boyd after her death. No error resulted in permitting the expert witness to describe the wounds which he observed on the body of the deceased and to testify that in his opinion such wounds were sufficient to cause the death of the deceased. Rowe v. State, 243 Ala. 618, 11 So. 2d 749; Hicks v. State, 247 Ala. 439, 25 So. 2d 139; Phillips v. State, 248 Ala. 510, 28 So. 2d 542; Robinson v. State, 243 Ala. 684, 11 So. 2d 732; Smarr v. State, supra; Frazier v. State, 40 Ala.App. 67, 112 So. 2d 212, certiorari denied 269 Ala. 696, 112 So. 2d 218.
In one of the statements made by the defendant to a State's witness before defendant confessed to the crime, he explained the presence of blood on his clothing as having occurred that day or the day before while helping one John Gorham Nelson to kill hogs. It was permissible for Nelson to testify for the State in denial of this statement, since Nelson's testimony had some tendency to strengthen the verity of the defendant's later confession when he made no such contention. In allowing Nelson to so testify, the trial court stated:
We do not construe the statement of the trial court, argued by appellant, as a comment on the effect of the evidence but merely a statement by the court as to the respective theories of the case to which this evidence was applicable.
The voluntariness of the confessions of the appellant is also questioned. In the recent case of Goldin v. State, 271 Ala. 678, 127 So. 2d 375, and the authorities therein cited, the same propositions of law were dealt with wherein it was pointed out that the confessions were not inadmissible, even though they might have been made by defendant while in the custody of officers of the law and in jail. They were nevertheless admissible after having been proved to have been voluntary and made of the own free will of the defendant. Such is the status of the confessions in the instant case. They were admitted without error.
*60 We have studied the record carefully in connection with the ably prepared briefs and argument of counsel and are constrained to hold that no error is made to appear. The case was well tried and the judgment of conviction should stand. So ordered.
Affirmed.
All the justices concur. | June 22, 1961 |
da8f5f0d-781e-44ad-a273-2b93b92674b7 | Moorer v. Bethlehem Baptist Church | 130 So. 2d 367 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 367 (1961)
M. L. MOORER et al.
v.
BETHLEHEM BAPTIST CHURCH and Pilgrim's Rest Cemetery, Inc.
1 Div. 800.
Supreme Court of Alabama.
May 25, 1961.
*368 McCorvey, Turner, Johnstone, Adams & May and Hamilton, Denniston, Butler & Riddick, Mobile, for appellants.
Armbrecht, Jackson, McConnell & DeMouy, Mobile, for appellee.
COLEMAN, Justice.
This is an appeal from a decree overruling demurrers to a statutory bill to quiet title.
Complainant is a corporation. Respondents are one corporation and three natural persons. In pertinent part the bill avers as follows:
"(Description Omitted)
The leases referred to in paragraph 3 are not attached to the bill as exhibits, nor does the bill in anywise disclose the contents of the leases.
Respondents (appellants) argue that the averments of paragraph 3 show outstanding oil and gas leases executed by complainant and its predecessors in title whereby the oil and gas interest has been severed from the surface and conveyed or transferred to the oil and gas lessee, so that the bill shows on its face that complainant is not in possession of the oil and gas interest in the land. As a result, say respondents, the bill fails to show that complainant is in possession of the oil and gas interest, and, because the bill seeks to quiet title to the entire interest in the land, which includes the oil and gas, complainant cannot maintain the bill to quiet title to that interest of which complainant does not aver peaceable possession.
Complainant (appellee) contends that an oil and gas lease does not sever the estate in the oil and gas from the estate in the surface, but like any ordinary lease places lessee in possession as tenant; and, in such case the possession of the oil and gas lessee is the possession of his lessor. Consequently, says complainant, the averments of the bill do show that complainant is in possession of the oil and gas and complainant is entitled to maintain the bill to quiet title to the entire interest in the land without joining the lessee as a party complainant.
Respondents contend that the allegations of the bill as to possession and ownership of the fee are followed by allegations showing that complainant had executed oil and gas leases to Green who is not a party to this suit, and the effect of the latter allegation is to negative the allegation of possession of the entire fee in complainant, and thereby to preclude the bringing of a bill to quiet title to the whole fee simple interest by the complainant alone.
Complainant states in brief that the question presented by the demurrer is essentially one involving the non-joinder of necessary parties complainant. Complainant says it is erroneous to suppose that an oil and gas lessee is an indispensable party complainant to a bill to quiet title brought by the lessor.
It thus becomes apparent that respondents seek to have us decide that oil and gas leases, including the particular oil and gas leases referred to in the bill, sever the oil and gas estate from the surface and convey the oil and gas as a separate estate to the lessee. In essence, respondents seek a construction and declaration of the effect of these particular leases. Apparently, complainant also seeks a construction of the leases, although it seeks a construction opposite in effect to that sought by respondents.
In undertaking to construe these leases we are faced at the outset with the fact that the leases are not before us. We do not know what language the leases contain.
With reference to the nature of the interest created in the lessee by a coal mining lease, this court said:
"* * * The authorities cited herein clearly show that the question of what estate or interest is granted in these mining contracts is not to be settled by any one particular rule, but that every such instrument is to be construed like any other contractby its own terms to carry out the intent of the parties. * * *." State v. Roden Coal Co., 197 Ala. 407, 415, 416, 73 So. 5, 9.
So in the instant case, the nature of the interest of the lessee, Green, must be determined by the terms of the leases.
We are of opinion that we would be wholly unjustified in presuming to interpret *370 the contents of an oil and gas lease which is not before us. It would probably be unrealistic to say that we are wholly ignorant of the general terms of such instruments, but here the parties seek a determination of the nature and extent of the rights acquired by one of the parties to the contract, which party is not a party to this suit in which the nature of his rights is to be determined. The customs, usages, and course of dealings in a business may sometimes be looked to in a similar business to explain or aid in the interpretation or construction of a contract, but it is settled in Alabama that custom or usage cannot be looked to to prove or establish a contract. City Mortgage & Discount Co. v. Palatine Insurance Co., 226 Ala. 179, 181, 145 So. 490. Other than by taking judicial notice of the customs and usages of the oil industry, there is nothing before us whereby we can learn the contents of the oil and gas leases allegedly executed to Green as lessee. We are of opinion that we cannot extend judicial knowledge to apprise us as to what the leases recite, and being without knowledge of the terms and provisions of the leases we cannot decide whether they do or do not sever the oil and gas estate from the estate in the surface.
Complainant insists that an oil and gas lease does not convey ownership of the oil and gas to the lessee but merely grants a right to explore for and remove the same, citing among other cases, Sun Oil Co. v. Oswell, 258 Ala. 326, 62 So. 2d 783. Statements to that effect do appear in the opinions cited. It is to be noted, however, that in the Oswell case, the lease was set out in the pleadings, which was not done here.
Complainant relies on Miller v. Woodard, 207 Ala. 318, 93 So. 28, 29, as holding that the averment that complainant had executed oil and gas leases on the land did not contradict the averment that complainant was in possession. With respect to the averment of complainant's possession, the opinion points out that possession is not the equivalent of peaceable possession, but says "No specific ground of demurrer challenged the bill for this failure of averment." We do not understand the case to hold that the averment of possession was sufficient. It does appear to hold that the averment of nonperformance by respondent was sufficient to show the right of complainant to have a forfeiture of the lease. Moreover, the leases were made exhibits to the bill.
We are thus remitted to deciding whether the allegations of paragraph 3 of the bill, when considered on demurrer, negative the averment in paragraph 2 that "Complainant is in peaceable possession" of the land in suit.
It is essential to the equity of the bill that its allegations show that complainant is in possession of the interest, whether it be the mineral or the surface rights, the title to which it seeks to quiet. Federal Land Bank of New Orleans v. Vinson, 246 Ala. 95, 18 So. 2d 865.
On demurrer, pleadings must be construed most strongly against the pleader, and if the pleading in question is susceptible of two constructions, one of which would render it good and the other bad, the latter must be indulged, because it is the one against the pleader. Puckett v. Puckett, 174 Ala. 315, 319, 56 So. 585, 586.
To maintain a bill to quiet title, possession, actual or constructive, is essential and must be definitely and unequivocally averred. Hobson v. Robertson, 224 Ala. 49, 138 So. 548. A complainant not in actual possession may rely on constructive possession which the law attaches to the legal title in the absence of an actual possession by anyone else. Sanford v. Alabama Power Co., 256 Ala. 280, 54 So. 2d 562.
Complainant here avers that it is in "peaceable possession" of the land. Whether that possession be actual or constructive is not averred. The averment is subject to two constructions. It may be construed as stating that complainant is in actual possession or that complainant is in constructive *371 possession. The latter construction is against complainant so we must indulge that construction.
Complainant then proceeds to aver that it and its predecessors have executed "certain Oil and Gas Leases" to Green. Now, if complainant is averring constructive possession, and the averments must be so considered, then complainant must rely on the fact that it holds the legal title to which possession is constructively attached. But complainant avers that it and prior holders of its title have executed oil and gas leases covering the subject land, and that the validity of assignments of those leases is not challenged by complainant. We take it that we must assume that the validity of the leases, according to their provisions, is also not challenged because there would be no reason to admit the validity of the assignment of a lease which was itself invalid.
So we come to the point of deciding whether or not the allegation, that an oil and gas lease is outstanding, can be fairly construed as an allegation to the effect that complainant has parted with its title to the oil and gas interest or estate, title to which complainant now seeks to quiet.
If complainant has not parted with its title to the oil and gas interest, then complainant is in constructive possession of that interest, assuming of course that no one else is in actual possession of that interest. On the other hand, if complainant has parted with its title to the oil and gas interest, then complainant cannot be in constructive possession thereof.
Complainant avers that it has executed a lease, the terms of which we do not know. What are we to assume as to its contents with respect to the title to the oil and gas interest or estate in the land?
Must we conclude that the oil and gas leases to Green do no more than transfer to the lessee, for a term, the right to use the land, so that the lessee is merely a tenant and his possession is that of the landlord; or should we assume that the leases transfer the title to the oil and gas to the lessee, so as to sever the oil and gas estate from the remainder of the fee and constitute the lessee the holder of a possessory estate in the land? If the averments are fairly susceptible of the latter construction, we must adopt that construction because it is against the pleader.
Reference to the text writers and cases discloses a variety of opinions as to the nature of rights created by instruments whereby the owner of land has undertaken to create in another rights relating to oil or gas which may be found in the land. Concerning such instruments one court has said:
A text writer states:
See also: 58 C.J.S. Mines and Minerals § 195, p. 424; 24 Am.Jur. 544, Gas and Oil, § 39.
This court has held that under a certain mining lease the lessor could not maintain unlawful detainer against the lessee. Adams v. Riddle, 233 Ala. 96, 170 So. 343, 107 A.L.R. 657. That holding appears to be based on the conclusion that the mineral lease did not create the ordinary relation of landlord and tenant.
In view of the fact that the term, oil and gas leases, has no definitely ascertained meaning, and the fact that different instruments called by that name have contained different provisions and have received different constructions as to the estate created in the lessee, we are of opinion that, while the averment of the bill acknowledging the execution of oil and gas leases might be construed as showing that complainant has not parted with title to the oil and gas interest in the subject land, the averment also fairly permits the alternative construction that complainant has parted with title to the oil and gas in the land and therefore with constructive possession of the oil and gas. Adopting the latter construction, we conclude that complainant has failed to aver peaceable possession of the oil and gas and, therefore, cannot maintain its bill.
The other ground of demurrer insisted on is that the bill shows that Green is a necessary party and he is not made a party. What we have said with respect to absence of averments to show the provisions of the leases, as bearing on the averment of peaceable possession, applies also to the question of necessary parties. In the absence of knowledge of the provisions of the lease it is difficult to understand how a determination can be made that the lessee is or is not a necessary party. It may be conceded arguendo that the terms of the lease may be such that the lessee is not a necessary party, but certainly, on the other hand, the terms of the lease may be such that the lessee is a necessary party. Under the averments of the instant bill, we are of opinion that the lessee is a necessary party to this suit to determine the ownership of *373 the oil and gas, and the ground of demurrer taking the point that he is not a party was due to be sustained.
Accordingly, the decree overruling the demurrers is reversed, a decree will be entered sustaining the demurrers, and the cause is remanded.
Reversed, rendered, and remanded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | May 25, 1961 |
e9efdf6c-3b1b-4bf9-bee6-e0bb97b383da | Hartigan v. Hartigan | 128 So. 2d 725 | N/A | Alabama | Alabama Supreme Court | 128 So. 2d 725 (1961)
John HARTIGAN
v.
Helen Anderson HARTIGAN.
6 Div. 643.
Supreme Court of Alabama.
March 30, 1961.
*727 Huey & Tyrrell and J. Terry Huffstutler, Birmingham, and Jack Crenshaw, Montgomery, for appellant.
No attorney marked for appellee.
Paul Johnston, Birmingham, for Geo. Lewis Bailes, amicus curiae.
MERRILL, Justice.
Appellant seeks a review of an order vacating an original divorce decree rendered in 1954, which was made by the trial court in 1960 in a proceeding to modify alimony payments included in the original decree. Appellant was uncertain as to whether mandamus was the proper mode of securing a review, and has presented this case here on petition for mandamus or in the alternative by appeal.
On July 28, 1954, Helen Hartigan filed a bill for divorce in the circuit court charging her husband, John Hartigan, with voluntary abandonment. She alleged in the complaint that she was a bona fide resident citizen of Birmingham, Jefferson County, Alabama, and had been for more than one year next preceding the filing of the bill, and that the respondent was a resident of Jefferson County, Alabama.
The respondent, appellant in this proceeding, filed an answer and waiver in which he admitted the jurisdictional facts but denied the other material allegations of complainant, and agreed that the case "may be carried forward to its final determination and decree of divorce issued without other notice to respondent." He signed the answer and waiver in the presence of a witness.
An agreement between complainant and respondent, purported to have been signed by both parties on July 28, 1954, was filed with the complaint and answer, under the terms of which, respondent agreed to pay the complainant alimony of $60 per week and retain her as beneficiary of a $5,000 life insurance policy on his life, both conditioned on her remarriage. The complainant prayed that the agreement be incorporated in the divorce decree.
In her deposition, the complainant swore that she was a bona fide resident of Birmingham and had been for more than a year; that she lived at 247 Kent Drive in Birmingham and that respondent was a resident citizen of this county and state. Her deposition was supported by a deposition of one Hazel Daniels, who swore that she knew both parties, that they were resident citizens of Birmingham, Jefferson County, Alabama; that complainant resided at 247 Kent Drive and that respondent was in the western part of the city, the exact address being unknown. A decree of divorce incorporating the property settlement was entered on July 28, 1954.
On June 17, 1960, Hartigan filed a petition in the Circuit Court of Jefferson County praying for a modification of the 1954 divorce decree so as to eliminate the requirement that he pay Mrs. Hartigan alimony of $60 per week. He averred certain financial grounds as changed circumstances.
On July 7 and 8, 1960, Mrs. Hartigan filed an answer asking enforcement of the decree, a petition to modify the decree to require Hartigan to pay the income taxes on the alimony which she had received from him, a petition for citation of contempt on the ground that he was delinquent on his alimony payments, and a petition for allowance of her solicitor's fees.
The cause was heard before Judge Bailes on July 14, 1960. Both parties were represented by local counsel and, in addition, Mrs. Hartigan was represented by a New York attorney. We quote from Judge Bailes' answer to the petition for mandamus:
Hartigan's attorney sought leave of court to withdraw from the case and the permission was granted but the counsel remained in the courtroom during the proceedings. (We note that this attorney was designated to receive whatever decree the court might render, signed the motion for a new trial, signed the security for costs on appeal to this court, and is one of the attorneys on brief.) Both counsel and Hartigan asked for a continuance of the hearing but the requests were overruled.
The following facts were then established without objection:
Mrs. Hartigan came to Birmingham by plane from New York on July 28, 1954. She had been driven to the New York airport by Hartigan, who had provided plane tickets for her trip to Birmingham and return. When she arrived in Birmingham, she went to the office of a Birmingham attorney, now deceased, who had been chosen by Hartigan and he was Hartigan's attorney. She signed the complaint, the property settlement agreement and her deposition. After a period of some four or five hours, she returned to New York by plane. She received a copy of the divorce decree some days later.
Mrs. Hartigan testified that she had never resided in Alabama and had never been in Alabama before July 28, 1954; that she never resided at 247 Kent Drive, that Hartigan had never lived in Alabama or in the western part of Birmingham; that her trip to Alabama had been agreed upon between her and her husband in New York; that she came to Alabama to get the divorce, and that she had been represented by counsel in New York City, who had approved the plans for the Alabama divorce.
On the following day, July 15, 1960, Judge Bailes on his own motion entered a decree setting aside the 1954 final decree of divorce on the ground that it was procured by fraud on the court, was illegal, null and void, and dismissed the petitions of both parties. A motion for a new trial was filed on behalf of Hartigan which was overruled.
This case is the first of its kind in this jurisdiction. It possibly could be sui generis. We have consistently held bills of review or bills of that nature good when it was shown that a fraud had been prepetrated on the court and a party. Hooke v. Hooke, 247 Ala. 450, 25 So. 2d 33; Montgomery v. Montgomery, 261 Ala. 416, 74 So. 2d 254; Tarlton v. Tarlton, 262 Ala. 67, 77 So. 2d 347; Sapos v. Plame, Ala., 128 So. 2d 524. In each of those cases, one party to the marriage was alleged to have been the victim of fraud.
But here, both parties to the divorce action are guilty of fraud. They concocted the fraudulent scheme and perpetrated it on the court together. Then after over five years, they both appear voluntarily, seeking modification or enforcement of the decree which the court had no authority to render in 1954.
Suits for divorce are not ordinary contract cases. Such suits are of a tripartite character, wherein the public occupies in effect the position of a third party, and the court is bound to act for the public in such cases, though the rights of the parties themselves must be fully respected. Ex parte Weissinger, 247 Ala. 113, 22 So. 2d 510; Ratcliff v. Ratcliff, 209 Ala. 377, 96 So. 422. This doctrine is generally recognized in this country. 27A C.J.S. Divorce § 8, p. 30; 17 Am.Jur., Divorce and Separation, § 13, p. 264.
*729 In this state, a provision in a divorce decree for periodic payments of alimony is not final in the sense that it cannot be changed, and the court has continuing authority or jurisdiction to modify such a provision upon proof of a substantial change in conditions. A petition seeking to modify is regarded as a supplemental proceeding. Murrah v. Bailes, 255 Ala. 178, 50 So. 2d 735.
The specific question here presented is whether the Circuit Court of Jefferson County, in Equity, has the power to vacate, of its own motion, the divorce decree rendered by the court in 1954, not void on, its face, when in 1960, it is shown in an adversary proceeding between the same parties to modify the decree, and both parties are physically before the court, that the 1954 decree was void because the court did not have jurisdiction of the subject matter.
It seems appropriate to state the law of this state as it pertains to nonresidents. Tit. 34, § 27, Code 1940, as amended, reads:
The proviso was added in 1945 and has been construed by this court. In Jennings v. Jennings, 251 Ala. 73, 36 So. 2d 236, 3 A.L.R.2d 662, decided in 1948, the full court held that jurisdiction, the judicial power to grant a divorce, is founded on domicile under our system of law. This is so because domicile in the state gives the court jurisdiction of the marital status or the res or subject matter which the court must have before it in order to act. Jurisdiction of the res is essential because the object of a divorce action is to sever the bonds of matrimony, and unless the marital status is before the court, the court cannot act on that status. Thus, where both parties to a divorce action do not reside within this state, the marriage relation is without the state and jurisdiction cannot be acquired by courts of this state even by consent of the parties. And we held in the Jennings case that the court correctly dismissed the bill of complaint. It had a right to do this of its own motion because of lack of jurisdiction.
In Gee v. Gee, 252 Ala. 103, 39 So. 2d 406, 408, it was said in discussing the Jennings case: "Therefore, we held that the proviso did not authorize the court in this State to grant a divorce. The parties cannot by consent confer such jurisdiction, nor can the legislature do so by an act, when the res is not within the power of State authorities." We further held that the proviso did apply when only one of the parties was domiciled in Alabama when the bill was filed.
These cases have been followed, have not been overruled, and state the law of this State today.
We revert to the question in the instant case. It has long been recognized that where a judgment or decree is void on its face, the court rendering it has inherent power to vacate it at any time, and such power is not dependent on statute. Capps v. Norden, 261 Ala. 676, 75 So. 2d 915; Cleveland v. Cleveland, 263 Ala. 530, 83 So. 2d 281; Griffin v. Proctor, 244 Ala. 537, 14 So. 2d 116; Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184; 13 Ala.Dig., Judgment, 349; 8A Ala.Dig., Equity.
But the 1954 decree in the instant case admittedly was not void on its face. Appellant argues that under Equity Rule 65, Code of Ala., Tit. 7 Appendix, in the absence of a bill of review or a bill in the *730 nature of a bill of review, the trial court lost all power over the matter after the expiration of thirty days. It was so held in Ex parte Kay, 215 Ala. 569, 112 So. 147.
The same argument was made in Thompson v. Cook, 20 Cal. 2d 564, 127 P.2d 909, 912, where it was sought to set aside a void order after the lapse of over two years from the date it was granted. The court said:
Freeman on Judgments, § 375a, states:
The rule is stated in 49 C.J.S. Judgments § 421, p. 824, as follows:
Other cases applying this rule are Welch v. Morris, 49 Idaho 781, 291 P. 1048; Griggs v. Venerable Sister Mary Help of Christians, Mo.App., 238 S.W.2d 8; Meyer v. Meyer, 333 Ill.App. 450, 77 N.E.2d 556; Gibson v. Gibson, 193 Or. 139, 237 P.2d 498, 501. In the last cited case, the court said "Irrespective of whether plaintiff is in a position to attack the decree awarding alimony to defendant, such decree cannot stand because we have repeatedly held that where a void decree is brought to the attention of the court, it is the duty of the court on its own motion to vacate the same."
The facts in the instant case fall squarely within the above rule. When Mrs. Hartigan took the stand in 1960, and testified as to the facts upon which the 1954 decree was based, she did so without objection on the part of her husband. He cross-examined her, thereby waiving any objection he might have had. Thus the undisputed facts, before the court without objection, showed that the original decree by the same court in a matter between the same parties was void for the lack of jurisdiction. The parties had voluntarily reappeared before the court and made the supervening invalidity apparent on the face of the record.
Under such circumstances, the court correctly vacated the original decree. As stated in Taylor v. Jones, 202 Ala. 18, 79 So. 356, 357, "* * * It is very true that if a judgment, on its face or on the face of its own record, is absolutely void, it is a nullity, and that, as it is calculated to mislead *731 and deceive the public, the court, ex mero motu, or on motion of a stranger or amicus curiae, may purge the records of the court of such absolutely void and impertinent matters in former judgments, but in law and in fact nothing." To like effect is Pickens v. Clark, 203 Ala. 544, 84 So. 738.
We think the court was authorized to vacate the 1954 decree in order to protect the integrity of its judicial proceedings.
Here, the fraud was not perpetrated against the other party, it was solely against the court. Both spouses came from New York, and by joint collusion and fraud obtained a decree of divorce from our court; and then they both had the temerityafter the running of the statute of limitations against perjuryto ask the same court, in the same case, to modify some of the objectionable results of their joint fraud, but to remain blind to the fact that the court never had jurisdiction in the first place.
It is inconceivable that a circuit court in equity should be powerless to act upon a totally void decree under such circumstances. As discussed post, either of the parties would have been estopped to bring a bill of review or an action in the nature of a bill of review. We must not hold that the preservation of the integrity of judicial process must always wait upon the diligence of litigants who are not estopped to act. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S. Ct. 997, 88 L. Ed. 1250; American Ins. Co. v. Lucas, D.C., 38 F. Supp. 926; Davidson v. Ream, 175 App.Div. 760, 162 N.Y.S. 375; Halloran v. Blue & White Liberty Cab Co., 253 Minn. 436, 92 N.W.2d 794; Goetz v. Gunsch, N.D., 80 N.W.2d 548.
Appellant argues that Mrs. Hartigan has no standing before the court to have set aside a decree of divorce rendered in her favor through her own fraud on the court, citing Levine v. Levine, 262 Ala. 491, 80 So. 2d 835, and Fairclough v. St. Amand, 217 Ala. 19, 114 So. 472. Those cases hold that she would be estopped by her own fraudulent conduct. But the principle is inapplicable here. The action complained of here was not the act of Mrs. Hartigan, it was the act of Judge Bailes. Mr. Hartigan, not his wife, reopened the matter of modification of the original decree and it was his action which brought her personally before the court, resisting his petition for modification and asking additional relief for herself. Under the last two cases cited, neither party would have been entitled to relief.
The action complained of here was the setting aside of the original decree of divorce, which was done by the trial court, ex mero motu, as shown by his uncontroverted answer in the mandamus proceeding. We think it noteworthy to say that Judge Bailes was also the trial judge in the Levine case and ruled that Mrs. Levine was estopped from contesting the decree, although secured by fraud, because she had participated in the fraud and had profited by it.
We further note that we said in Levine v. Levine, 262 Ala. 491, 80 So. 2d 235, 238:
We come now to the most difficult aspect of this case. While the record proper does not so show, the briefs before us are in agreement that at the present time Mr. Hartigan has remarried and probably has *732 a child by that marriage. This and other states have recognized that a question of public policy is involved. We said in Davis v. Davis, 255 Ala. 488, 51 So. 2d 876, 878:
Here, neither of the parties was seeking to establish the invalidity of the prior divorce. The facts showed conclusively that it was void for the want of jurisdiction. And if Hartigan did remarry, and by that marriage does have a child, he had ample opportunity to show it at the hearing or in his application for rehearing. However, as already noted, the setting aside of the original decree was brought about by the action of Hartigan in seeking a modification of the decree.
It is almost universally held that the remarriage of a party to a divorce does not deprive a court of the power to set aside the decree or that, as it is often said, the remarriage is not itself a sufficient reason for refusing to vacate or set aside the decree. 12 A.L.R.2d 156; 17 Am.Jur., Divorce and Separation, § 517, p. 613.
"A divorce decree or judgment granted by a court without jurisdiction of the subject matter or of the person should be set aside." 27A C.J.S. Divorce § 169 c., p. 684.
We quote from Murphy v. Murphy, 200 Ark. 458, 140 S.W.2d 416, 418. Murphy and his wife lived in Missouri and the court in Arkansas did not have jurisdiction of either the subject matter or the wife when the divorce decree was granted. Murphy remarried. The court said:
Not only is it conclusive that the 1954 divorce decree was void for want of jurisdiction of the subject matter in Alabama, but it is not entitled to full faith and credit in other jurisdictions.
The Federal Supreme Court is the final arbiter when the question of full faith and credit is raised under Art. IV, Sec. 1 of the Constitution of the United States. Williams v. State of North Carolina, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279. Not overruled in Williams v. North Carolina, 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577. And that court has held that a court in whose territorial jurisdiction neither spouse had a bona fide domicile has no jurisdiction to render a divorce decree and such decree will not be binding either in the state of its rendition or in any other state in which the question might arise. Bell v. Bell, 181 U.S. 175, 21 S. Ct. 551, 45 L. Ed. 804; Andrews v. Andrews, 188 U.S. 14, 23 S. Ct. 237, 47 L. Ed. 366. In the last cited case, the husband, domiciled in Massachusetts, went to South Dakota to get a divorce. His wife first filed papers denying that he was a resident of South Dakota, but later withdrew that answer under an agreement with her husband, and the divorce was granted. The husband married again and had two children by the second marriage. The Federal Supreme Court held that the South Dakota decree was not entitled to full faith and credit in Massachusetts on the ground that jurisdiction of the subject matter depended upon domicile, and without such domicile, there was no authority to decree a divorce.
Appellant appropriately submitted this cause by appeal or in the alternative by a petition for mandamus, as was done in Griffin v. Proctor, 244 Ala. 537, 14 So. 2d 116, and Ex parte Phillips, 231 Ala. 364, 165 So. 80. If we had held that the decree was improperly set aside, mandamus would have been the proper remedy, Ex parte Kay, 215 Ala. 569, 112 So. 147. Here, the decree from which the appeal was taken does not have the effect of reinstating the original cause, and appeal is the proper mode of review. Griffin v. Proctor, supra.
Summarizing, we hold:
(1) The original decree was void for want of jurisdiction of the subject matter, the marital res.
(2) The original decree is not entitled to full faith and credit in this or any other state.
(3) Since both parties to the divorce knowingly participated in the fraud on the court, and both voluntarily appeared later in the proceeding to modify the void decree, but still enjoy the divorced status, the court correctly set aside the original decree of its own motion, and correctly denied any modification.
(4) It was appropriate to submit this cause both on appeal and on petition for mandamus, and, in view of our holding, appeal was the proper remedy.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | March 30, 1961 |
a102943d-d7bf-493b-82ee-dfca51678069 | Snellings v. Snellings | 130 So. 2d 363 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 363 (1961)
Lorraine SNELLINGS
v.
J. Frank SNELLINGS, Jr.
4 Div. 33.
Supreme Court of Alabama.
May 25, 1961.
*364 Chas. H. McCann, Seale, for appellant.
Roy H. Phillips, Phenix City, for appellee.
GOODWYN, Justice.
This is an appeal by the mother from a decree of the circuit court of Russell County, in equity, modifying a divorce decree with respect to the right of the father to have the parties' two minor sons, 15 and 12 years of age, visit with him. In this proceeding the wife filed a petition to have the father, appellee here, adjudged in contempt of court for failure to make the support payments called for by the divorce decree. After the father made the past due payments the trial court held that he had purged himself of the contempt charge. No question as to that ruling is presented on this appeal.
The record is filled with considerable testimony which appears to have little bearing on the real issues before us, which are: (1) Whether the evidence shows such a change in conditions since the date of the divorce decree which would authorize a modification of the visitation rights given to the father, and (2) whether the court erred in providing in the modified decree that the weekly support payments shall terminate and be cancelled "during such period that the child fails, refuses or is prevented from visiting with his father, J. Frank Snellings, Jr., in accord with the terms of this decree."
The original decree of divorce awarded custody of the two boys to the mother "with the right to the father to have said children visit and be with him at the home of his mother, Mrs. Maude I. Snellings, from 5:00 P.M. on Friday until 6:00 P.M. on Sunday every other week beginning on the 10th day of April 1959." The decree further *365 provided that the father "is to have the children visit and be with him at the home of his mother during the first six weeks following the close of school in each and every succeeding year, unless the parties otherwise agree to change this period."
The modified decree continues to award custody to the mother but, with respect to the father's visitation rights, gives him the right "to have said children visit and be with him at his home or such other place as he may designate, from 5:00 P.M. on Friday until 6:00 P.M. on Sunday of every other week, beginning on the 9th day of January, 1960," and also "to have the children visit and be with him at his home or such other place as he may designate during the first six weeks following the close of school in each and every succeeding year, unless the parties otherwise agree to change this period."
At the time of the original divorce decree (April 3, 1959) the father was living with his mother in Phenix City. Apparently, this was the reason for the provision in the original decree providing for the father's visitation with the children at his mother's home. About June 11, 1959, the father married again, his new wife having three children. After his remarriage he moved to the house where his new wife was living. It was then that the difficulty about the boys visiting with their father came to a head. There seems to be no doubt that the boys do not want to visit their father at the home of his new wife. The position taken by the boys' mother, the appellant here, is that the trial court did not give due consideration to the boys' wishes and also that the living facilities at the father's home are not adequate for taking care of the boys particularly since the father's three stepchildren (two boys and a girl) are also living there.
We think the change in the father's residence is a sufficient change in conditions to justify the modification of the original decree, if, of course, such changes is in the best interest of the children. As to this, we note that both the original and the modification proceedings were heard by the same trial judge. In view of the favorable presumption attending his findings from the evidence taken ore tenus, we are not prepared to say that he erred to a reversal in decreeing the change in the father's visitation rights. In other words, we cannot say that his decision is palpably wrong. While the wishes of children of sufficient judgment are factors to be considered in awarding custody, they are not controlling since the governing consideration in every case is their best interest and welfare and they may not be the best judges as to that. McGregor v. McGregor, 257 Ala. 232, 236, 58 So. 2d 457; Weems v. Weems, 255 Ala. 210, 214, 50 So. 2d 428; Hill v. Gay, 252 Ala. 61, 62, 39 So. 2d 384; Sparks v. Sparks, 249 Ala. 352, 353, 31 So. 2d 313; Chandler v. Whatley, 238 Ala. 206, 211, 189 So. 751; Wright v. Price, 226 Ala. 591, 593, 147 So. 886; Garrett v. Mahaley, 199 Ala. 606, 608-609, 75 So. 10; Neville v. Reed, 134 Ala. 317, 320, 32 So. 659, 92 Am.St.Rep. 35.
The original divorce decree also provided that the father pay $45 per week to the mother for the support of the two children except during the six weeks period in which the father "exercises custody of the children in accord with the provisions of this decree."
With respect to the weekly support payments, the modified decree provides for payment by the father of "the sum of $22.50 per week for the support of each of the minor children" and continues his exemption from making the support payments during the six weeks he has custody. The decree of modification also contains this provision:
It seems apparent that the action of the trial court, in providing for cancellation of the support payments upon refusal or failure of the boys to visit with their father, was for the purpose of compelling obedience to the decree providing for such visitation. From the evidence, the trial court would be justified in concluding that the boys' visits with their father will be made reluctantly.
Our specific concern here is not with the father's obligation to furnish necessities to the two boys but with an allowance to the mother for their support and maintenance growing out of an award of their custody. We have held that such an allowance "is not necessarily obligatory but rests in the sound discretion of the court and is to be determined from all the facts and circumstances in the case." See Butler v. Butler, 254 Ala. 375, 377, 48 So. 2d 318, 319; 17A, Am.Jur., Divorce and Separation, § 851, p. 41. No question is presented as to the appropriateness of the allowance made, but only whether the court erred in providing, as a condition to its payment, that the boys comply with that part of the decree giving the father certain visitorial and custodial rights.
The obvious effect of the condition is to coerce the boys into making the visits to their father and also to encourage the mother's cooperation to that end. There is ample basis in the evidence for the trial court's apprehension that its decree, with respect to the father's rights of visitation and custody, might not, at all times, be complied with in good faith. Under the circumstances, we cannot say that the trial court abused its discretion in including this coercive provision in its decree. As said in Ex parte Hill, 229 Ala. 501, 504, 158 So. 531, 532:
Of the cases which have come to our attention, perhaps the closest to the one now before us is Putnam v. Putnam, 136 Fla. 220, 186 So. 517, 518. In that case, the decree provided that the father (appellee) should have custody of the parties' minor daughter, M. Helene Putnam, during a part of each summer. It was decreed that in the event she refused to comply with the terms of the decree in that respect, all payments by her father for her care and maintenance would be suspended. In holding that the trial court did not err in so decreeing, the Supreme Court of Florida had this to say:
We have given due consideration to the case of Walder v. Walder, 159 La. 231, 105 So. 300, relied on by appellant, and find that it deals with a situation quite different from the one before us.
While we do not think the trial court abused its discretion in providing for a suspension of the support payments, we entertain the view that the decree should be modified to provide that the failure of either of the boys to visit with their father because of sickness or other unavoidable reason shall not exempt the father from making the support payments for such child. On oral argument, counsel for the father concurred in the appropriateness of such a provision. As so modified, the decree is due to be affirmed.
Modified and affirmed.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | May 25, 1961 |
9e07e065-41ea-45cd-ada7-c3e0e9634fa7 | Chisolm v. Crook | 130 So. 2d 191 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 191 (1961)
Henry Lawrence CHISOLM et ux.
v.
Heaton CROOK, as Head of State Department of Pensions and Security of Calhoun County.
7 Div. 515.
Supreme Court of Alabama.
May 18, 1961.
*192 Burnham & Klinefelter, Anniston, for appellants.
MacDonald Gallion, Atty. Gen., and Julius Cage, Jr., Asst. Atty. Gen., for appellee.
MERRILL, Justice.
This appeal must be dismissed on the ground that the question has become moot. The appeal is from a decree of the Circuit Court of Calhoun County, in Equity, denying a petition for writ of habeas corpus filed by appellants, Mr. and Mrs. Chisolm, against the Department of Pensions and Security to obtain custody of a three months old child, Kenneth Allen Freeman. We do not approve of this procedure. However, the point that habeas corpus was sought in a court of equity was not raised in the lower court, nor do the parties call it to our attention on this appeal. Therefore, we will not avoid this proceeding on appeal; Lumpkin v. Meeks, 263 Ala. 395, 82 So. 2d 535, where the identical situation was presented.
On June 6, 1960, Mr. and Mrs. Walter Agan, maternal grandparents of six Freeman children, filed a verified petition in the Juvenile and Domestic Relations Court of Calhoun County, alleging that the six children were in need of the care and protection of the State; that the mother of the children was dead; that the father drank excessively and could not provide a proper home and that he had placed the children with other people in two States, some of whom were unrelated to the children.
The court held a hearing on June 10th and the six children were found to be neglected and dependent and were declared wards of the State and their custody vested in the Calhoun County Department of Pensions and Security pending further orders of the court. The father of the child, Porter Freeman, was not present at this hearing.
On June 11th, summons was issued to the father to appear with the child (Kenneth Freeman) on June 15th. On that date, with the father present, a hearing was held and an order was issued to the sheriff to receive the custody of Kenneth Freeman and turn him over to the welfare authorities. Kenneth had been placed by the father with the Chisolms and they had filed a petition in the Probate Court of Calhoun County to adopt him.
On June 16th, appellants sought a writ of habeas corpus from the Circuit Court of Calhoun County. On June 29th, Judge DeBardelaben dismissed the petition. He found that the Juvenile Court had determined that Kenneth Freeman was dependent and neglected; that it was to the best interest of the child that his custody be vested in the Calhoun County Department of Pensions and Security, and that the child had been declared a ward of the State. The Circuit Court held that the only matter before it was the jurisdiction of the Juvenile and Domestic Relations Court; that no illegality appeared on the face of the proceedings of the Juvenile and Domestic Relations Court; that the jurisdiction of that court could not be impeached by parol testimony and that the child became a ward of the Juvenile and Domestic Relations Court when the petition of the Agans was filed in that court, citing Campbell v. Sowell, 230 Ala. 109, 159 So. 813. The appeal from the dismissal decree was taken on July 27, 1960.
This appeal is brought as a civil appeal and not as an appeal in habeas corpus. We have held this to be proper in Edwards v. Sessions, 254 Ala. 522, 48 So. 2d 771, and Thomas v. State, 215 Ala. 1, 109 So. 607.
*193 Appellants' main contention was that the hearing before the Juvenile Court was improper because they did not have notice of the hearing even though they had custody of the child.
The Attorney General filed a motion to dismiss the appeal on the ground that the question had become moot. The motion and the exhibit thereto shows that on July 11, 1960, thirteen days after Judge DeBardelaben dismissed the petition for habeas corpus, appellants filed their petition in the Juvenile and Domestic Relations Court in Calhoun County seeking the custody of Kenneth Freeman as they had a right to do under the statute, Tit. 13, § 352(9), Code 1940.
On December 17, 1960, a hearing was held at which many relatives and interested parties, including appellants, were present. The Judge of the Juvenile Court awarded the custody of Kenneth Freeman to others than appellants. The pertinent part of the decree reads:
"It is further ordered that Kenneth Freeman remain in the temporary custody of the Calhoun County Department of Pensions and Security pending decision by the Supreme Court of Alabama of the appeal presently pending before it involving Kenneth Freeman. It is further ordered that the care, custody and control of Kenneth Freeman shall vest in Mr. and Mrs. Grady Freeman upon the expiration of thirty days following the final decision of the Supreme Court upon such appeal and subject to further orders of this court upon good cause shown."
Conceding, only for the sake of argument, that appellants were not properly notified of the original hearing, this deficiency was cured at the full hearing conducted in December, and the decree shows they were present and represented at that hearing by attorney. They have had a full hearing on the issues and had a right to appeal from the decree to the circuit court had they so desired.
We have held that if a case has become moot, or the judgment would not accomplish an end recognized as sufficient in law, there is no necessity for the judgment, the court will decline to consider the merits, and dismiss the case. Ex parte McFry, 219 Ala. 492, 122 So. 641.
It is not the practice of courts to decide cases after the time when a judgment may be made effective; nor is it customary to decide questions after their decision has become useless, merely to ascertain who is liable for the costs. State ex rel. City of Prichard v. Jansen, 271 Ala. 104, 122 So. 2d 736.
A decision on the decree dismissing the petition for habeas corpus would accomplish little or nothing at the present stage of the proceedings.
Appeal dismissed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | May 18, 1961 |
15c155fa-f5b1-4852-b129-70b1dc2a0e8a | Mooradian v. Canal Insurance Company | 130 So. 2d 915 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 915 (1961)
Leo MOORADIAN et al.
v.
CANAL INSURANCE COMPANY.
4 Div. 24.
Supreme Court of Alabama.
March 23, 1961.
Rehearing Denied June 22, 1961.
*916 Edw. F. Reid Andalusia, for appellant Mooradian.
Tipler & Fuller, Andalusia, for appellant Ellison.
Robt. B. Albritton, Albrittons & Rankin, Andalusia, for appellee.
SIMPSON, Justice.
This is an appeal by Bena K. Ellison, as administratrix of the estate of Leroy Kilpatrick, deceased, and Leo Mooradian, the respondents below, from a decree of the Circuit Court of Covington County, in Equity, wherein complainant (appellee) sought a declaration, pursuant to Declaratory Judgments Act, Title 7, § 156 et seq., as to complainant's liability under an automobile liability policy issued to Leo Mooradian, affording liability insurance coverage on a truck which was involved in an accident in Covington County, resulting in the death of Leroy Kilpatrick, deceased, who was a passenger therein.
Provisions, as pertinent, of the final decree entered on the 20th of March, 1959 are set out as follows:
Appellant, Bena K. Ellison, as administratrix of the estate of Leroy Kilpatrick, deceased, urges that the Alabama Motor Vehicle Safety-Responsibility Act, 1951, p. 1224, effective January 1, 1952 is expressly incorporated into the policy in issue, takes precedence over the "passenger hazard excluded" clause, and affords to appellant the minimum limits of liability insurance as provided within the Act.
The appellant grounds the argument upon the import of paragraph four under the heading, "Conditions" within the liability insurance policy of insured Leo Mooradian, which is:
Our financial responsibility act does not require operators of motor vehicles to furnish evidence of financial responsibility before issuance of a driver's license or certificate of registration is issued. The purpose of the Act is clearly to require and establish financial responsibility for every owner or operator of a motor vehicle involved in an accident in this state.
In State Farm Mutual Auto. Ins. Co. v. Sharpton, 259 Ala. 386, 66 So. 2d 915, the appellee contended that liability on a policy was controlled by the Motor Vehicle Safety-Responsibility Act, and that section 21(f)(1) virtually eliminated the cooperation clause of the policy insisted on by the appellant. This court in denying appellee's contention was of the opinion that the terms required by the Act apply only to those policies required to be certified as proof of financial responsibility to permit the vehicle to continue to be registered. There was no showing made in that case or in the instant one that the policy involved was issued in response to the requirements of the Act.
Proof of financial responsibility as defined in § 1(j) of the Act is "proof of ability to respond in damages for liability, on account of accident occurring subsequent to the effective date of said proof". Accordingly proof of financial responsibility is not required until a motor vehicle is involved in an accident. Quoting from Sullivan v. Cheatham, 264 Ala. 71, 84 So. 2d 374, 379: "Our statute has oft been criticized as `allowing one free accident'". The terms of the Motor Vehicle Safety-Responsibility Act, supra, then are not effective or do not apply to automobile liability insurance policies until proof of financial responsibility to respond in damages as a result of an accident is required by the director of public safety of the State of Alabama to be filed in his office so that the operator of the motor vehicle will not have his driver's license and certificate of registration suspended.
The policy here involved was not issued to the insured in compliance with the Act as proof of financial responsibility and therefore, the Act is without influence.
Appellant Mooradian was issued the policy of liability insurance by appellee on July 31, 1952, and a passenger hazard excluded endorsement was issued, signed, and expressly incorporated into the policy on July 31, 1952 at Greenville, South Carolina. This endorsement stated: "It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability does not apply to Bodily Injury including death at any time resulting therefrom, sustained *918 by any person while in or upon, entering or alighting from the automobile". Appellant Mooradian urges that this agreement is not binding for there was no consideration and this latter provision of exclusion, being in conflict with prior provisions of coverage in his policy should not be given effect. It is true that an alteration of the contract by subsequent agreement must be based on a new consideration. Great American Ins. Co. v. Dover, 219 Ala. 530, 122 So. 658. But such is not the status of the instant policy. The endorsement of exclusion incorporated in the policy constituted the entire contract of insurance issued by Canal Insurance Company to Mooradian for which there was consideration given. "It seems to be well settled that exceptions, `explicit in terms and plain of meaning,' withdrawing a claim from the general stipulations of the policy, will be given effect." Loveman, Joseph & Loeb v. New Amsterdam Casualty Co., 233 Ala. 518, 173 So. 7, 8.
Insurance companies have a right, in absence of statutory provisions to the contrary, to write their contracts with narrow coverage. There is no compulsion on either the insured or insurer, and the insured may or may not in his own discretion take the policy. Loveman, Joseph & Loeb, supra. There was no ambiguity in the terms of the "exclusion clause", there was no need of construction, and it was the duty of the court to enforce it as written. The court rightly held that there was no coverage or liability under the policy for the deceased, Kilpatrick, he being a passenger in the insured vehicle.
Appellants contend that appellee is estopped from denying coverage or from withdrawing from the defense of the insured by once having assumed control of the defense of the action filed against him. The contention is without merit.
As stated in Belt Auto Indemnity Ass'n v. Ensley Transfer & Supply Co., 211 Ala. 84, 99 So. 787, 790, the elements of an estoppel are: "(1) A position of authority assumed by defendant [insurer] under the color of right; (2) submission to and reliance upon that assumption, by plaintiff [insured]; and (3) injury suffered by plaintiff as a proximate consequence of such submission and reliance."
Also, in our recent case of Ellison v. Butler, Ala., 124 So. 2d 88, 90, we had this to say with respect to the asserted doctrine:
We held that the facts there considered did not show an estoppel.
What are the events which are claimed to have worked an estoppel? Suit was filed by appellant, Bena K. Ellison, administratrix, claiming damages for the death of deceased, Leroy Kilpatrick, as a result of riding in the vehicle insured by appellant Leo Mooradian, a nonresident of Alabama, *919 and claiming that one Chavers was Mooradian's agent. Service of process was had on the Secretary of State in accordance with Title 7, § 199, Code of 1940 because of the allegation of agency in the complaint. Mooradian called on appellee to defend said action in his behalf under the terms of the policy, but refused to defend the action himself. The appellee tendered a non-waiver agreement whereby appellee agreed to defend said action if Mooradian would recognize that in doing so, appellee did not waive its rights to deny liability under said policy. But Mooradian refused to recognize appellee's right to deny liability under said policy and would not sign the non-waiver on the advice of his own private counsel of Atlanta, Georgia. Mooradian did not appear or take any steps in his own behalf for the protection of his interests and on the last day within which responsive pleadings could be filed, the appellee, for protection of its interests, appeared in said suit by filing a demurrer addressed to the complaint filed against Mooradian. Simultaneously with filing of such demurrer by appellee, it notified Mooradian by registered mail duly addressed and posted to him at Hapeville, Georgia, that it was filing demurrer in his behalf and was doing so without prejudice to any of its rights and without waiving any of its rights, if in fact it had such rights, to deny liability under the policy and withdraw from the defense of the case. Canal urged him to obtain private counsel to represent his personal interests in the suit, but he did not do so. Said filing of the demurrer with reservation of rights to deny liability and withdraw from the case was subsequent to the refusal of Mooradian to defend in his own behalf and subsequent to his refusal to execute a non-waiver agreement. Under the terms of the insurance policy, execution by insured with insurer of a non-waiver agreement was not considered to be a condition or stipulation of the insurer's obligation to assume the defense of the insured when sued. Mooradian by his counsel responded to the filing of the demurrer in his behalf by a letter to appellee insurance company which in substance invited appellee's attention to their obligation to provide Mooradian with a defense, both by virtue of the terms of the insurance policy and independently thereof by reason of the acts and omissions of persons acting for it.
It is manifest that appellee was making every effort for Mooradian to execute a non-waiver agreement, even though it was not a condition provided in the insurance contract, in order that it might adequately defend the suit without prejudicing its rights. There were no misleading representations on the part of appellee as it simply asked Mooradian to sign a non-waiver agreement prior to appellee undertaking the defense of the suit. "An estoppel cannot exist where the knowledge of both parties is equal, and nothing is done by the one to mislead the other." Webb v. City of Demopolis, 95 Ala. 116, 13 So. 289, 297, 21 L.R.A. 62. Appellee did not by his conduct or acts induce appellant not to undertake his own defense, nor was appellant ignorant of the true facts that there had been a denial of liability and a reservation by Canal of the right to withdraw from the defense of the suit. As a consequence he did not change his position so as to prevent injury if such assertion by appellee were allowed. Mooradian through his counsel of Atlanta, Georgia did not file a special appearance to dispute the jurisdiction over his person or any other special plea but continued to insist that appellee should provide his defense to the suit. The contention of estoppel advanced by appellant does not conform to the rule of estoppel announced by the cases. Mooradian did not act or change his position by the conduct of appellee. The appellant was not injured or prejudiced by the filing of the general appearance by appellee since if no appearance had been filed for him, a judgment by default against him would have been in order. Under these circumstances Mooradian would not have *920 been able to contest the issue of his liability. Therefore, whatever injury or prejudice was suffered by Mooradian, was not the proximate consequence of any submission or reliance on appellee's action taken in the suit. No estoppel therefore can be validly asserted.
We advert to the following as additional authorities: In Belt Auto Indemnity Ass'n v. Ensley Transfer & Supply Co., supra, the decisive question presented by the appeal was the validity of the estoppel set up by the plaintiff. This court was of the opinion, and clearly correct, that a liability not covered by an indemnity insurance policy will not be engrafted on the policy by the mere act of the insurer in assuming control of the litigation and conducting the defense when the beneficiary is sued upon such liability. See Goodman v. Georgia Life Ins. Co., 189 Ala. 130, 66 So. 649; Hollings v. Brown, 202 Ala. 504, 80 So. 792.
The unvarying rule is that coverage under an insurance policy cannot be enlarged by waiver or estoppel, since such doctrine can only have a field of operation when the subject matter is within the terms of the contract. Fidelity Phenix Fire Ins. Co. of New York v. Raper, 242 Ala. 440(6), 6 So. 2d 513.
In Home Ins. Co. of New York v. Campbell Motor Co., 227 Ala. 499, 150 So. 486, 489, this court observed:
What appellant seems to seek here is to make a new contract so as to cover bodily injury or death resulting to a passenger in the insured vehicle, when by its terms, it is expressly excluded from the contract. The doctrine of estoppel does not operate to that effect. After a loss accrues, an insurance company may, by its conduct, waive a forfeiture; or by some act before such loss may induce the insured to do or not to do some act which is contrary to the stipulations of the policy, and thereby be estopped from setting up such violation as a forfeiture; but such conduct, though in conflict with the terms of the contract of insurance and with the knowledge of the insured, and relied upon by him, will not have the effect to broaden such contract so as to cover additional objects of insurance or causes of loss. The passenger hazard exclusion endorsement which was a part of the insurance contract instantly considered relieved the appellee from liability and assuming control of the defense of the insured could not by estoppel enlarge the coverage or obligate the appellee to continue representation in the suit.
Appellant, Leo Mooradian, assigns as error the striking of his amended answer on motion of appellee which was filed after the cause was submitted for final decree. Equity Rule 28(d), Title 7, Appendix, Code 1940, permits amendments to an answer as a matter of right at any time before final decree. The appellant filed on March 6, 1959 an amended answer. On March 16, 1959 another amended answer along with attached exhibits was filed by appellant. The motion to strike the amended answer was directed to the answer filed on the 16th day of March, 1959. The cause was submitted for final decree on the 6th day of March, 1959. Striking the amendment with exhibits after the case was submitted for final decree was within the court's discretion. The proper procedure was to have the submission set aside before the amendment could be allowed. Ex parte State ex *921 rel. Brittain et al., 237 Ala. 164, 186 So. 148.
No error in the rulings below is made to appear.
Affirmed.
LIVINGSTON, C. J., and STAKELY, GOODWYN and MERRILL, JJ., concur.
COLEMAN, Justice (dissenting).
Being of opinion that the insurer, by filing the demurrer estopped itself from denying liability under the passenger hazard exclusion, I respectfully dissent. Belt Automobile Indemnity Ass'n v. Ensley Transfer & Supply Co., 211 Ala. 84, 99 So. 787. | March 23, 1961 |
9b0676e2-c72b-41e3-95c6-2efd94bcabe6 | Hudson v. Sparks | 129 So. 2d 664 | N/A | Alabama | Alabama Supreme Court | 129 So. 2d 664 (1961)
Dan R. HUDSON et at., Members of Personnel Board of Jefferson County et al.,
v.
King SPARKS, Jr.
6 Div. 497.
Supreme Court of Alabama.
March 30, 1961.
Rehearing Denied May 18, 1961.
*665 Hucy, Stone & Patton, Bessemer, for appellants.
Graham, Bibb, Wingo & Foster, Birmingham, for appellee.
MERRILL, Justice.
This is an appeal from the issuance of a writ of prohibition by the Circuit Court of the Tenth Judicial Circuit of Jefferson County, restraining and prohibiting appellants, individually and as members of the Personnel Board of Jefferson County, Alabama, and the Personnel Director (respondents below) from holding a public hearing on charges that had been filed by the Personnel Director against appellee, Superintendent of the Park and Recreation Board of the City of Birmingham (petitioner below).
Appellants have also submitted the cause in the alternative on petition for mandamus on the theory that if we hold with their contention that the Personnel Board is not subject to suit, then the judgment appealed from would be void and would not support an appeal.
On September 25, 1958, the Classification Branch of the Personnel Board of Jefferson County (hereinafter referred to as Personnel Board) initiated an audit of all classified positions on the staff of the Park and Recreation Board. The Civil Service Law requires that such an audit be conducted at least once every five years. This survey was conducted by Richard Tannehill, who is employed as a job analyst.
Tannehill was unable to ascertain from the employees of the Park and Recreation Board (hereinafter referred to as Park Board) exact job descriptions or information as to where their responsibilities began and ended. He so reported to Director Mullins, who then directed him to make a survey of all the employees to ascertain methods of handling the work, hours of work, attendance, training, working conditions and morale of the employees, as authorized by what is listed as Tit. 62, § 330 (33) (34), 1955 Pocket Part. Some two and one-half months were spent in making the survey and it was filed with the Personnel Board on February 9, 1959, and a copy furnished the Park Board. It was also made available to the press.
The Park Board called a special meeting and after meeting for an hour, gave a statement to the press that they were behind their superintendent of parks, the appellee.
On February 25th, the President of the Park Board, Raiford Ellis, wrote the Personnel Board and the Director of Personnel replied on March 4th, asking the Park Board "to fix responsibility and take corrective actions." The Park Board, if it took any action, did not notify the Personnel Board, and the Director filed charges against appellee, the superintendent of parks, and the administrative officer of the Park Board on March 25, 1959.
*666 Appellee appeared before the Personnel Board, through his attorney, and filed a motion for the members of the Personnel Board to recuse themselves. The Board overruled this motion and set April 15th as the date for the public hearing on the charges.
On April 4th, appellee filed his petition in circuit court for a writ of prohibition. It was submitted to Presiding Judge McElroy and he granted a rule nisi against the members of the Personnel Board in their official and individual capacities. When the petition for prohibition came on to be heard, the Chief Justice appointed Judge Rueben Wright of Tuscaloosa to hear it. Much testimony was taken at the hearing on September 9, 1959, and the court ordered the issuance of the writ and "that respondents (the Personnel Board) be, and they are hereby, ordered and directed to take no further action on and to proceed no further with the charges and trial referred to in the petition herein, as last amended, and that the respondents be, and hereby are, restrained and prohibited from doing so."
The court was evidently of the opinion that the charges were against the Park and Recreation Board and not against Sparks, the superintendent, and that any violations were the responsibility of the Park Board and should not be charged to appellee.
The thirteen charges are summarized in appellants' brief and they are copied below. Sparks is charged with being guilty of inefficiency or neglect of duty as follows:
1. "That he has failed to adequately provide for the care and maintenance of the grounds and properties (of the Park Board) and as a proximate consequence thereof a substantial portion of them are in a bad state of repair and have seriously deteriorated."
2. "That he has failed to adequately supervise or provide adequate supervision for said personnel (of Park Board) and as a proximate consequence said personnel has engaged in extravagant and unproductive practices, such as idleness on the job, performance of unauthorized work and the unauthorized use of equipment owned by the Park and Recreation Board."
3. "That he has failed to establish an effective system for controlling maintenance work of the grounds and physical properties (of Park Board) or if such a system was established, he has failed to properly enforce said system."
4. "That he has been guilty of inefficiency in this respect in that he has failed to establish such a system for controlling the issuance and use of gasoline and oil for such equipment, or if such a system existed, he has failed to properly supervise and enforce the same."
5. "That he has failed to establish and enforce an effective system to control the issuance and use of such expendable items of supply (lumber, small hand tools, shovels, picks, light bulbs, paint, pipe, soaps, cleaning compounds, floor wax, electrical and plumbing supplies)."
6. "That he has failed to establish adequate payroll and accounting procedures for said Park and Recreation Board or if such procedures have been established, he has failed to properly supervise the personnel engaged in the performance of such work."
7. "That he has failed to establish adequate payroll and accounting procedures for said Park and Recreation Board or if such procedures have been established, he has failed to properly supervise the personnel engaged in the performance of such work, and as a proximate consequence thereof, the names of persons have been placed on payrolls who did not exist or the names of persons were shown on payrolls who did not perform the services for which payments were made, and hourly laborers have been paid for hours that they did not work."
8. "That classified and unclassified employees have performed unauthorized work for compensation at times when they were on the payrolls of said Park and Recreation *667 Board and receiving pay from the City of Birmingham."
9. "That he knew or should have known that some of the personnel (of the Park Board) used equipment and gasoline of said Park and Recreation Board of work other than that of the said Park and Recreation Board for which they received compensation."
10. "That he knew or should have known that some of the Park and Recreation Board personnel or members of their families were allowed, given or permitted to have special benefits or privileges of a monetary value or otherwise."
11. "That he has failed to adequately supervise, audit and control the leases made by the Park and Recreation Board of its properties and for concessions."
12. "That he has failed to establish an effective system for purchases under $500.00, or if such a system has been established he has failed to properly supervise the personnel making such purchases."
13. "That he has failed to establish effective systems, procedures and controls of the operations, properties and personnel of said Park and Recreation Board, or if such were established, they are not properly supervised or enforced, and as a proximate consequence, the following resulted: a substantial part of the physical properties and grounds have not been properly maintained and are in a bad state of repair; equipment, gasoline and oil have been used for unauthorized work and purposes; payrolls have been padded and payments made where the names of the persons appearing on the payroll were ficticious or unknown, and payments have been made for services not rendered; special treatment, benefits or privileges accorded to some personnel; an almost total absence of supervision and control over the issuance of supplies of an expendable nature, and the purchase of supplies and materials where the amounts of the purchase are less than $500.00; and the records made and kept of the operations are insufficient."
Appellee contends that the judgment of the lower court should be affirmed for the following reasons: (1) the Personnel Board was without jurisdiction because the charges undertake to hold him liable with respect to matters which lie solely within the jurisdiction of the City Commission or the Park Board and with respect to which he has no responsibility, duty or authority; (2) the charges against him are void because they are vague, indefinite and uncertain; (3) the Personnel Board should be required to recuse themselves because of bias or prejudice against him.
Appellants contend that a writ of prohibition is not the proper remedy. We agree.
The appropriate remedy to require a judge or other judicial officer to recuse himself on account of bias or prejudice is mandamus. Fulton v. Longshore, 156 Ala. 611, 46 So. 989, 19 L.R.A.,N.S., 602; State ex rel. Burns v. Phillips, 250 Ala. 120, 33 So. 2d 239, and cases there cited. This in no way impinges upon the right to raise the point by motion to have the judge recuse himself.
In trying charges against a classified employee of the City of Birmingham, the Personnel Board acts in a judicial capacity. Ex parte Darnell, 262 Ala. 71, 76 So. 2d 770.
Generally, a writ of prohibition will not be awarded by our courts unless the petition shows on its face that the court or tribunal does not have jurisdiction to do or perform an act of a judicial nature which it is proposing to do or perform. Ex parte Wilson, 269 Ala. 263, 112 So. 2d 443; Donahoo v. St. John, 253 Ala. 604, 46 So. 2d 420. A writ of prohibition will issue even when a court does have jurisdiction, when a court of concurrent jurisdiction has already assumed and is exercising jurisdiction. Ex parte Huston, 256 Ala. 562, 56 So. 2d 346; Ex parte Burch, 236 Ala. 662, 184 So. 694, *668 but the latter statement has no application in the instant case.
Here, the Personnel Board admittedly had jurisdiction of Sparks, an employee of the city under the classified civil service. The Personnel Board, under Rule X, 10.1, has the right to dismiss or demote any such employee for inefficiency or neglect of duty. Each of the charges preferred against Sparks by the Director of Personnel was based on inefficiency and neglect of duty. It is evident that the Personnel Board had jurisdiction of the person and of the subject matter.
Conceding that the charges were not sufficiently certain and definite to support the general subjects of inefficiency and neglect of duty, and that the proceedings show that there is no authority to remove or take any action against him upon the allegations of fact set up, still the Board would not, at the present stage of the proceedings, be without jurisdiction. Tyson v. Arn, 259 Ala. 681, 68 So. 2d 526. The question raised by a writ of prohibition "is one involving judicial power, and not one of efficient pleading of a litigable right." Ex parte State ex rel. Martin, 200 Ala. 15, 75 So. 327, 328. The Civil Service System statutes governing Jefferson County, Pocket Part, 1940 Code, listed as Tit. 62, §§ 330(21)-330(48), Appendix, 1958 Recompilation, Vol. 14, §§ 645-672, provide for an appeal to the circuit court from any action taken by the Personnel Board.
We are constrained to hold that prohibition does not lie in the instant case and the judgment of the lower court must be reversed. Appellee has cited no Alabama authorities to show that prohibition is the proper remedy. The cases cited from other jurisdictions are not apt authority because those jurisdictions do not appear to limit the use of the writ to jurisdictional matters as is done in this State.
In view of the reversal of the judgment and the remandment of the cause, we deem it fitting to make some observations which should be of benefit to those concerned in subsequent proceedings.
We have carefully read and considered the record, which consists of over 390 pages. There is a strong inference that a serious difference of opinion exists between members of the Personnel Board and the Park Board as to how the Park Board should operate. Since both Boards are creatures of the legislature, the Personnel Board has no voice in the policies and decisions of the Park Board except as they relate to personnel under the classified service.
One way to publicize the policies of the Park Board is to prefer charges against the chief administrative officer of the Park Board, charging him with inefficiency and neglect of duty. It is very evident that these charges were preferred because the Park Board did not comply with the request of the Personnel Director that "additional positive steps will be taken by you at an early date to fix responsibility and take corrective actions in regard to these unfortunate and unpleasant matters."
From the record before us, it is impossible to negate the impression that the charges preferred by the personnel director are aimed at management practices and policies of the Park Board rather than at Sparks. It would seem just as unreasonable for the director to prefer charges against the Chief of Police of Birmingham for inefficiency and neglect of duty when some of the patrolmen were guilty of larceny while on duty.
It is hardly reasonable that the head of an extensive department should be charged with neglect of duty or inefficiency because some file clerk used an inefficient method of filing, or took an unauthorized coffee break. This is no more ridiculous than some of the evidence submitted to show that Sparks was guilty of neglect of duty or inefficiency.
The record shows that the person responsible for the padded payrolls had been discharged *669 prior to the filing of the Tannehill survey, and the person responsible for misuse of the vehicles had also been discharged. The undisputed testimony is that the Park Board, and not Sparks, made decisions as to auditing practices.
We would not be understood as saying the record shows the Park Board to be blameless. The admitted resentment of some of the members against the Personnel Board arising out of the Tannehill survey and the handling of its release to the public has probably colored some of its official actions.
We think it appropriate to express the hope that the Personnel Board will not make Sparks the scapegoat because it does not agree with the way the Park Board is handling the park and recreation program of Birmingham.
For such help as it may be, we summarize our holding as to the contentions made on this appeal and based on this record:
(1) Prohibition does not lie in this proceeding.
(2) Appellants' contention that the Personnel Board is not subject to suit is without merit.
(3) The judgment of the trial court is not therefore void, and supports the appeal.
(4) The alternative petition for mandamus to this court need not be considered since appeal does lie.
(5) The thirteen charges against Sparks are not sufficiently certain, and unless amended to show with more specificity that Sparks was doing other than the will, direction and orders of his superior, the Park Board, the hearing on the charges should not be held.
(6) The record does not disclose sufficient evidence to require the recusal of the members of the Personnel Board, they being the only persons designated by the legislature to hear and determine charges properly brought.
Reversed and remanded.
LIVINGSTON, C. J., and STAKELY, J., concur.
LAWSON, J., concurs in the result. | March 30, 1961 |
64e6edcc-c59c-4a74-8f0e-af05d79eed3a | Hooper v. Fireman's Fund Insurance Company | 130 So. 2d 3 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 3 (1961)
James W. HOOPER
v.
FIREMAN'S FUND INSURANCE COMPANY et al.
6 Div. 641.
Supreme Court of Alabama.
May 11, 1961.
Norris & Coleman and Ralph E. Coleman, Birmingham, for appellant.
London, Yancey, Clark & Allen, and Bibb Allen, Birmingham, for appellees.
LAWSON, Justice.
This is a declaratory judgment proceeding wherein the Circuit Court of Jefferson County, in Equity, has declared that a release which the appellant executed on June 3, 1959, is valid and binding so as to relieve the appellees from all claims of whatsoever kind which grow out of an automobile collision which occurred in Jefferson County on May 29, 1959.
The appellee Strickland was the driver of an automobile which ran into the rear of the automobile which the appellant, Hooper, was driving. The appellee Fireman's Fund Insurance Company is Strickland's insurance carrier.
The question for decision is whether the trial court erred in declaring the release to be valid, a question of fact.
In answering the question, we can consider only those matters that are included *4 in the transcript of the evidence as certified by the court reporter. We cannot give consideration to a statement which appellant contends the trial judge made which was not included in the reporter's transcript and which the trial court refused to have the reporter add to the transcript.
The witnesses were examined orally befor the trial court.
Hooper, the appellant, gave testimony which if believed might have justified a finding that the release was obtained by fraud and misrepresentation of the insurance company's representative, one McCarty.
But the testimony of McCarty and of the notary public before whom the appellant executed the release is to the effect that no fraud was committed or misrepresentation made; that the appellant was told before he signed the release that it was to cover all claims which arose out of the accident and that he did not sign the release until after he had read it and had said that he understood its contents and was signing it of his own free will and accord.
The trial court evidently believed the witnesses for appellees.
On questions of fact such as is before us in this case, it is the duty of this court to indulge all reasonable presumptions in favor of the trial court's findings when, as here, the evidence was heard ore tenus. We cannot substitute our judgment on the effect of the evidence dealing with the pivotal question of fact for that of the trial court. Sieben v. Torrey, 252 Ala. 675, 42 So. 2d 621. The trial court's findings on the facts will not be disturbed on appeal unless palpably wrong. Christian v. Reed, 265 Ala. 533, 92 So. 2d 881.
Indulging all reasonable presumptions in favor of the trial court's decree, we cannot say that it was palpably wrong.
We therefore conclude that the decree here under review is due to be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | May 11, 1961 |
051891ab-ad62-4ab9-b5ba-38bdff5635f2 | St. Clair County v. Town of Riverside | 128 So. 2d 333 | N/A | Alabama | Alabama Supreme Court | 128 So. 2d 333 (1961)
ST. CLAIR COUNTY and State Highway Department
v.
TOWN OF RIVERSIDE.
7 Div. 507.
Supreme Court of Alabama.
May 25, 1961.
Starnes & Holladay, Pell City, for appellants.
Frank B. Embry, Pell City, for appellee.
SIMPSON, Justice.
The Town of Riverside (appellee) filed in the Circuit Court, In Equity, of St. Clair County, a bill, which as last amended, sought an injunction and a mandatory order against appellant, Honorable Sam Engelhardt, as Highway Director of the State of Alabama. The bill alleged that "the highway from Pell City to and through Riverside, known as Bankhead Highway No. 78, has been a public way and Street and Highway, within the corporate limits *334 of the Town of Riverside for more than thirty years used by the general public." The bill alleges that respondent "erected signs along said Street and Hiway" closing it and diverting traffic away from the use of said way, Street or Highway without notice to or knowledge of complainant. The bill prays that respondent be required to remove the signs and all obstructions from the highway and to cease and desist from obstructing Highway 78. This bill was amended on February 15, 1960 by having it sworn to and by asking for a temporary writ of injunction.
The road in question was formerly designated "old Bankhead 78", which ran through the Town of Riverside. Bankhead 78 was rerouted to the south some twenty-five years ago. The old route along with another paved road were used to connect Riverside with the relocated Highway 78. The Highway Department in the construction of Interstate 1-20, a limited access facility, erected barriers and closed old Bankhead 78 at a point near the northern right of way line of the new interstate facility. The other paved road from Riverside Road to the "new U. S. 78" was not interrupted. Appellant states that the closing of "old 78" was in accordance with the approved plans of the State Highway Department and of the U. S. Bureau of Public Roads.
The trial court granted the temporary injunction as prayed for. The basis of the court's findings was that the closed road which had served the inhabitants of the town for many years was a more convenient route of travel for the people of the town and some other parts of St. Clair County. Of consequence of which it ordered the appellant to open up the road and remove the obstructions and that "irreparable injury will be done to the complainant if a writ of injunction is not granted". It is to be noted that there are no claims and no findings of the court that in constructing the highway through the village the appellant acted beyond his authority or arbitarily, capriciously, or fraudulently in blocking said road.
1. Is an injunctive action properly maintained against the Highway Director of the State of Alabama in his official capacity?
2. (a) Does the State of Alabama, acting through the State Highway Department, have the authority to close an existing street or highway at a point where the existing highway intersects an interstate limited access facility?
(b) Does the Highway Department of the State of Alabama have the legal authority under Act 104, General Acts of Alabama 1956, page 148, to close one of the two highways leading into and through a municipality?
(c) Does the State of Alabama Highway Department have the legal authority under Act 104, supra, to close or vacate a highway which is also utilized as a city street?
1. Injunctive action may be maintained against a state official, if the official is acting beyond the scope of his authority or acting illegally, in bad faith, or fraudulently. A state's immunity from suit does not apply when "officers under a mistaken interpretation of the law acting in the name of the State commit acts not within their authority which are injurious to the rights of others." Curry v. Woodstock Slag Corp., 1942, 242 Ala. 379, 6 So. 2d 479, 480. Glass v. Prudential Insurance Co. of America, 246 Ala. 579, 22 So. 2d 13; Horn v. Dunn Brothers, Inc., 262 Ala. 404, 79 So. 2d 11; Finnell v. Pitts, 222 Ala. 290, 132 So. 2. In 49 Am.Jur., States, Territories, and Dependencies, pp. 308-310, the following observation is pertinent:
It seems, therefore, that the ultimate question is whether the bill alleges, and the proof shows, conduct which is beyond the scope of the Highway Director's authority, or is arbitrary.
2. (a) Does the State of Alabama acting through the State Highway Department have the authority to close an existing street or highway at a point where the existing highway intersects an interstate limited access facility?
The Constitution of Alabama 1901 (Amendment 11, Article 20, Amendment 21, Article 20A) gives the Highway Department the authority to engage in the construction, improvement, repair and maintenance of public streets, highways and bridges in the State of Alabama. Scott v. Alabama State Bridge Corp., 233 Ala. 12, 169 So. 273; In Re Opinion of the Justices, 225 Ala. 460, 143 So. 900.
Title 23, § 3, Code of Alabama 1940 gives the Highway Department authority to make contracts or agreements to construct and maintain roads in the State which are in municipalities and serve as roads of connection in the state highway system.
Therefore, the Highway Department has authority to construct and maintain city streets if they are roads of connection within the state Highway system.
In Pruett v. Las Vegas, 261 Ala. 557, 74 So. 2d 807, 810 this Court thus construed the authority of the Highway Director in locating highways:
In its original brief appellee points out that the "rights of the citizens and those doing business in the Town of Riverside are involved and not some single individual." In this regard the Court in the Las Vegas case, supra, had this to say:
We do not think the effect of the above statement different when a group of citizens or taxpayers bring the action. The interest of the general public would continue to control.
In 25 Am.Jur., Highways, § 118, page 415 the following observation is made:
And in 18 Am.Jur., Eminent Domain, § 83, Pocket Supplement, page 93:
In 39 C.J.S. Highways § 97, the following appears: "In the exercise of the police power, the state may change or alter public highways." In Alabama Great Southern Railway v. Denton, 239 Ala. 301, 195 So. 218, it was held that the State has plenary power to relocate highways.
And in 40 C.J.S. Highways § 179: "Where authority is conferred on the state highway officers to designate, locate, and alter roads of the * * * highway system, they may do so without consent of the local authorities."
2. (b) Does the authority to vacate, locate and construct highways extend to the blocking off of a city street?
Act 104, General Acts of Alabama 1956, page 148, approved February 9, 1956, was taken almost verbatim from the "Model Controlled-Access Highway Act". The Model Act has also been adopted either in whole or in part by some nineteen other states (Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Montana, North Dakota, South Carolina, South Dakota, Tennessee, Utah, Vermont, Washington, West Virginia, and Wyoming). Highway Research Bound Special Report 26; Expressway Law, pp. 69-75. The Declaration of Policy in the Model Act reads as follows:
The Declaration of Policy in the Alabama Act 104 reads as follows:
Pertinent sections of the Model Act and Alabama's Controlled Access statutes are compared to demonstrate the similarity of the two acts, to wit:
(Note) It should be noted that the provision for consent of local authorities as contained in Section 3 of the Model Act is not included in the Alabama Act. But we do not have before us any question of the validity, vel non, of our statute by this omission. Sibley v. Odum, 257 Ala. 292(6), 58 So. 2d 896.
Our research discloses that the courts generally have upheld the conduct of the road building authority when acting under similar laws where the conduct of the authority is not tainted with corruption, arbitrariness, or caprice. We will review some of these cases.
In City of Lakewood v. Thormyer, Ohio Com.Pl.1958, 154 N.E.2d 777, 783, an action by the City of Lakewood against the Highway Director, the Court construed the Highway Director's power and authority to relocate a highway through the City of Lakewood:
In Handlan-Buck Co. v. State Highway Commission of Missouri, Mo.1958, 315 S.W.2d 219, 223, the Court held that: "The power of establishing limited access state highways is of statewide concern. Its exercise affects the safety of all persons traveling upon the roads of this state. The state police power is in such a case superior to that of a municipality."
In Lehman v. Iowa State Highway Commission, 1959, 251 Iowa 77, 99 N.W.2d 404, the Court in construing a located access provision similar to the Model Act held that the designation of a limited access highway is a necessary police power.
The Delaware Court has given a liberal interpretation to its highway law as regards the discretionary power of the Highway Department in constructing highways through municipalities even though the statute requires consent of the municipality in certain instances. See Campbell v. Commissioners of Town of Bethany Beach, Del. 1958, 139 A.2d 493, 498; and Piekarski v. Smith, Del.1959, 153 A.2d 587.
The Missouri Supreme Court has ruled that the courts cannot enjoin highway construction where the Highway Commission has acted within its authority. The facts in the case of State ex rel. State Highway Comm. v. Elliott, Mo.1959, 326 S.W.2d 745, 750, were that a village sought to enjoin State construction, which had already begun, of an interstate route which would obstruct some of its public streets. The Village of Claycomo, Missouri has within its limits five public streets extending north and south. The east-west controlled access interstate route was to cut off three of these streets; grade separation structures were being built at the other two. The village alleged that the three dead-ended streets would be rendered useless as streets connecting the northern and southern parts of the village; that the action of the Commission in not providing overpasses or underpasses was "arbitrary, capricious and unreasonable" and that fire protection facilities would be imposed for many residents. The Highway Commission alleged that to provide grade separations for the remaining three streets would cost in excess of $500,000 while saving only one or two blocks of travel either east or west for the residents of Claycomo to reach the two streets with grade separations. The Missouri Supreme Court held that this was not a case where the State Highway Commission has arbitrarily deprived one portion of the village of all access to another portion. The Court pointed out that there was no allegation of fact showing that the obstruction of access from one part of the village to the other imposed unreasonable burdens on the traveling public, or that the impairment of fire prevention efficiency was so extreme that the decision of the Commission not to build overpasses amounted to a manifest abuse of power. The Court said that constitutional and statutory powers to locate and design State Highways and to apportion highway funds are expressly and exclusively conferred upon the Commission and that this denies the Court the right, absent an allegation of fact showing bad faith or manifest abuse of authority, to enjoin the Commission in the construction of this highway. To hold otherwise, the Court concluded, would amount to judicial usurpation of an exclusively legislative function clearly beyond the powers of courts. State ex rel. State Highway Comm. v. Elliott, supra.
The year before the Missouri Court had held in Handlan-Buck Co. v. State Highway Commission of Missouri, supra, that the constitutional provision authorizing the State Highway Commission to limit access to the highways where public interest and safety may require is a grant of police power.
In the light of the considered cases, we are constrained to hold that the record before us fails to show manifest abuse of authority or arbitrariness of appellant as *340 would authorize the Court to invade this "quasi-legislative" domain. The Court is not a road builder and unless the highway director is guilty of the misconduct referred to hereinabovewhich is not shown the Court acts beyond its jurisdiction in intervening.
We must, therefore, conclude that the learned trial court erred to a reversal in granting the injunction.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | May 25, 1961 |
9ce849be-74a7-4640-ab6c-1879e61b7f77 | McCary v. Robinson | 130 So. 2d 25 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 25 (1961)
Nell McCARY
v.
James ROBINSON, alias, et al.
6 Div. 567.
Supreme Court of Alabama.
May 11, 1961.
*26 Hugh A. Locke, Locke & Locke, Birmingham, for appellant.
Wm. M. Acker, Jr., Smyer, White, Reid & Acker, Birmingham, for appellees.
LAWSON, Justice.
The original bill in this case was filed on December 28, 1956, by Nell McCary against James Robinson, alias Roberson; Phil Dorn, Jr.; Pauline Dorn, "as executrix or administratrix of the estate of Phil Dorn, deceased"; Preston Cole; and Frances Dorn Allen. Demurrer to the bill was sustained on January 31, 1958.
Complainant filed a substitute bill on April 18, 1958. We will refer to that bill as the first substitute. Demurrer to the first substitute was sustained on July 8, 1958. The first substitute was amended on July 17, 1958. By this amendment Curtis Smith, as executor of the estate of Sally W. Davis, was added as a party respondent. On July 24, 1958, demurrer of the original respondents to the first substitute as amended on July 17, 1958, was sustained. The first substitute was amended for the second time on September 22, 1958. It was amended again on September 26, 1958. On October 31, 1959, the demurrer of the original respondents to the first substitute as amended on September 22, 1958, and on September 26, 1958, was sustained.
*27 On December 7, 1959, complainant, after receiving an extension of time within which to amend, filed her second substitute bill of complaint. The demurrer of the original respondents to the second substitute was sustained on December 18, 1959. An amendment to the second substitute bill was filed on January 18, 1960. Another amendment to that bill was filed on February 19, 1960.
On March 4, 1960, the demurrer of the original respondents and the demurrer of Curtis Smith, as executor, etc., were sustained to the second substitute as amended on January 18, 1960, and on February 19, 1960. The second substitute bill as so amended was dismissed.
The complainant, Nell McCary, appealed to this court on April 5, 1960. Citation of appeal was duly served on counsel for all parties respondent.
The transcript of the record was filed in this court on June 3, 1960.
The appellant's brief was filed here on July 5, 1960. The filing was timely in that July 3rd was on Sunday and the following day, Independence Day, was a holiday. See Supreme Court Rule 12 and Supreme Court Rule 46, as amended.
The certificate at the end of appellant's brief is to the effect that a copy of the brief had been mailed to a member of the firm of lawyers which represented the original respondents in the trial court. See Supreme Court Rule 11. The certificate made no reference to a service of a copy of the brief upon the respondent Curtis Smith, as executor, etc., or his attorney.
On July 14, 1960, counsel for Curtis Smith, as executor, etc., filed in this court a motion to dismiss the appeal on the ground that the brief of appellant had not been served on Smith or on his counsel. The motion to dismiss contained a certificate to the effect that a copy of the motion was served on counsel for appellant by mail.
The appellant took no notice of the motion to dismiss and made no effort to serve a copy of her brief on Smith or his counsel prior to December 5, 1960, when the cause was submitted here on the motion to dismiss and on the merits.
Supreme Court Rule 11 provides:
In Board of Commissioners of City of Montgomery v. Crenshaw et al., 270 Ala. 598, 120 So. 2d 870, we dismissed the appeal because a copy of the appellant's brief was not served on any of the opposing counsel within the time prescribed for the filing of appellant's brief in this court.
In this case a copy of appellant's brief was apparently served timely on counsel for one group of appellees, but no such service was had on counsel for appellee Smith.
In our opinion where there is more than one attorney representing different appellees who are making a separate and independent defense against the grounds of reversal being urged by an appellant, copies of the appellant's brief should be served upon each of the attorneys or firms of attorneys as appear to be representing different appellees conducting their cases independently of each other. Halstead v. Florence Citrus Growers' Association, 101 Fla. 464, 134 So. 518.
In this case Smith appears to be conducting his case independently of the other appellees. His motion to dismiss because his counsel had not been served with a copy *28 of appellant's brief was filed on July 14, 1960. It is not denied that service of a copy of that motion was made timely on appellant's counsel. Nearly five months intervened between the filing of the motion to dismiss and the submission here, during which period of time no effort was made to furnish appellee Smith's counsel with a copy of appellant's brief. Under these circumstances, we feel constrained to grant the motion of the appellee Smith. An order will be entered dismissing the appeal as to the appellee Smith.
The other appellees have not joined in the motion to dismiss and do not raise the question that a dismissal as to appellee Smith should operate as a dismissal as to them. We do not think the dismissal as to Smith affects the appeal as to the other appellees. See Country Mutual Casualty Co. v. Van Duzen, 351 Ill.App. 112, 113 N.E.2d 852; Busby v. Pierson et al., Ala., 128 So. 2d 516
The purpose of the litigation is to have the court declare a deed and mortgage to be invalid.
The deed covers five lots in Jefferson County. It bears the date February 19, 1951. The grantor was Nabors Land Company, Inc., a corporation. The grantee in the deed was one James Robinson. The deed was recorded in the office of the Judge of Probate of Jefferson County on February 23, 1951.
The mortgage covers four of the lots included in the deed referred to above. It was executed on October 5, 1951. The mortgagors were James Roberson and his wife, Lucy Roberson. The mortgagee was Phil Dorn. James Roberson, the mortgagor, and James Robinson, the grantee in the February deed, are one and the same person. The second substitute as finally amended, to which we will refer hereafter as the bill, does not allege the foreclosure of the mortgage.
The record shows that the able trial judge encountered difficulty in unraveling the averments of the original bill and each of the substitutes and amendments thereto. We have been faced with the same problem to such an extent that we elect not to try to state in this opinion the theory or theories on which complainant relies as giving her the right to have the deed and the mortgage vacated.
We have serious doubt that the complainant has shown such a right. However, for the purposes of this appeal we will assume that the complainant has averred facts sufficient to show that she has such an interest in the lots in question as to authorize her to maintain the suit and that the averments to the effect that the deed and mortgage were executed as a result of undue influence are good as against the demurrer interposed.
We make these assumptions because we entertain the view that the grounds of the demurrer which point out that the bill shows on its face that the complainant was guilty of laches were well taken and properly sustained.
As shown above, the deed was executed in February of 1951 and the mortgage in October of the same year. The complainant waited until December of 1956 before instituting this proceeding. The bill under review, when construed against complainant shows that she had immediate knowledge of the transactions involved and of the claimed fraud, yet she waited until after the death of W. N. McCary, Sally W. Davis and Phil Dorn to initiate the proceedings to have the instruments declared invalid.
W. N. McCary was the president of Nabors Land Company and the husband of complainant. He executed the deed on behalf of the company. Sally W. Davis was his alleged paramour who, according to the averments of the bill, persuaded McCary to execute the deed to Robinson while McCary was under the influence of a narcotic. The bill contains averments to the effect that Sally W. Davis, a nurse, frequently administered *29 narcotics to W. N. McCary. Phil Dorn was the mortgagee in the mortgage here sought to be vacated and the bill avers that he knew of the circumstances under which the deed was executed.
In Ussery v. Darrow, 238 Ala. 67, 71, 188 So. 885, 888, we said in part as follows:
The defense of laches is available by demurrer when the bill shows on its face that the claim is barred by laches. Drummond v. Drummond, 232 Ala. 401, 168 So. 428.
If the claim is that of laches short of the bar of the statute of limitations, it may be available, but the special circumstances operating to destroy the right, though not barred by statute, should appear in the bill, and if not they should be brought forward by way of defense. Ussery v. Darrow, supra, and cases cited.
Here the circumstances which affect the question are alleged in the bill under review.
In our opinion the bill shows on its face that the circumstances surrounding the execution of the instruments sought to be vacated have become so obscured by the lapse of more than five years and the death of W. N. McCary, Sally W. Davis and Phil Dorn as to render it difficult, if not impossible, to do justice.
A conveyance, though obtained by undue influence, is not wholly void, but only voidable. Floyd v. Green, 238 Ala. 42, 188 So. 867. In such a case there is no remedy by ejectment at law. Davidson v. Brown, 215 Ala. 205, 110 So. 384. Cf. Walker v. Walker, 264 Ala. 11, 84 So. 2d 370. A court of equity may refuse relief by applying the doctrine of laches even though the claim be not barred by the statute of limitations. Cf. Ballenger v. Liberty National Life Ins. Co., 266 Ala. 407, 96 So. 2d 728.
The bill was amended a number of times, as we have shown in the opening paragraphs of this opinion. Demurrer was sustained to the original bill and to each bill as amended. The case remained before the court more than three years. There was no request for further amendment before dismissal. We hold, therefore, that the second substitute bill as finally amended was dismissed without error. Anderson v. Byrd, 251 Ala. 257, 37 So. 2d 115.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | May 11, 1961 |
42d9af0f-c2b6-44fc-9c33-32dab548bb5c | State v. TR Miller Mill Company | 130 So. 2d 185 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 185 (1961)
STATE of Alabama
v.
T. R. MILLER MILL COMPANY, Inc.
3 Div. 941.
Supreme Court of Alabama.
May 11, 1961.
*186 MacDonald Gallion, Atty. Gen., Guy Sparks, Sp. Asst. Atty. Gen., and Jas. R. Payne, Asst. Atty. Gen., for appellant.
Caffey, Gallalee & Caffey, Mobile, for appellee.
MERRILL, Justice.
This is an appeal by the State from a final decree of the Circuit Court of Escambia County, in Equity, setting aside and annulling a deficiency sales tax assessment made by the State Department of Revenue against the appellee.
The question is whether the Alabama sales tax applies to the withdrawal and use of various lumber and other products by the manufacturer for repairs, improvements and maintenance of the company operations.
Appellee contends that the withdrawal feature of the sales tax laws applies only to products purchased at wholesale and used by the taxpayer in the same form or *187 condition as when purchased, and not to the withdrawal or use of products manufactured by it from raw materials so purchased at wholesale.
Appellant contends that the purpose of amending the sales tax laws by adding the withdrawal feature set out below was to enlarge the scope of "retail sales" in order to reach situations for purposes of sales tax that previously could not be reached. Prior to the amendment, various merchants and manufacturers were buying tax free wholesale purchases and had many occasions to use the materials so purchased for their own private purposes. Appellant states the effect of the amendment is to permit those who purchase at wholesale and later consume the materials and goods to report and pay directly to the Department of Revenue a sales tax based upon said consumption and withdrawal of the goods.
The evidence which was heard ore tenus by the judge consisted of the testimony of two witnesses for the appellee. Their testimony reveals that the T. R. Miller Mill Company, Inc., one of the largest corporations of its kind in Alabama, is in the business of manufacturing lumber and lumber products, sometimes referred to as "processing forest products." Of the raw materials acquired by the company during the period involved in the assessment, a great majority of the logs came from lands owned by the company in fee simple and a small percentage came from logs cut from lands in Florida and Alabama under timber deeds owned by the company. Also of the raw materials used by the company in manufacturing, a small percentage came from logs purchased outright from others within the State of Alabama. After processing, the lumber or timber from these logs is placed on the company yards in such a manner that it is not possible to distinguish the source from which the products came.
The facts further show that in the maintenance and operation of the company, if any of the three main departments of the company is in need of repairs or improvements, the necessary products manufactured by the company are withdrawn from wherever they are found on the yards and used by the particular division requesting same; for bookkeeping purposes that particular department is charged with the cost of said products although no money ever passes between the departments for such items.
The company, being a manufacturer, buys all of its raw materials tax free and pays no tax except when it sells one of its manufactured products at retail. The facts further show that the company has paid sales tax on all retail sales to others of lumber made from the logs.
On August 28, 1958, the Department of Revenue entered a final assessment for sales tax based on the withdrawal and use by the company of these various products; the assessment, covering the period from January 1, 1955, to and including July 31, 1957, totals $2,027.76, including interest and penalty.
The decision in this case depends upon the construction and application of Subdivision (j), Subsection (1), § 752, Tit. 51, Code 1940, as amended, which for the purposes of this opinion we will hereafter refer to as Subdivision (j). This and related subdivisions were amended by Act 305, approved August 13, 1947, p. 160, and added to our statutes which is commonly known as the "self-consuming" feature of the Sales Tax Act.
Although § 752 was repealed in 1959, the particular sections of the statute then in effect which have application are as follows:
Title 51, § 752, Subsection (1), Subdivision (f):
Subdivision (i):
Subdivision (j):
In our opinion, Subdivision (j) was amended to reach transactions which could not be taxed because there was a withdrawal and use or consumption by the purchaser at wholesale but no sale by him to another. State v. Helburn Co., 269 Ala. 164, 111 So. 2d 912; Merriwether v. State, 252 Ala. 590, 42 So. 2d 465, 11 A.L.R.2d 918; Report of the Legislative Interim Committee on Finance and Taxation, in the Legislature of the State of Alabama, Reg.Sess.1947, Leg.Doc.No. 4, p. 30; 38 Op.Atty.Gen. 37 (1945).
In determining and giving effect to the legislative intent, courts may look to the history of a statute and the purpose sought to be accomplished, conditions which led to its enactment, ends to be accomplished and evils to be remedied; a rational, sensible and liberal construction with due consideration of the practical effect should be reached in ascertaining a dubious legislative intent. State v. Helburn, 269 Ala. 164, 111 So. 2d 912; Birmingham Paper Co. v. Curry, 238 Ala. 138, 190 So. 86.
It is true that the construction of the meaning of a tax levy is to be strictly construed against the State and in favor of the taxpayer. State v. Reynolds Metals Co., 263 Ala. 657, 83 So. 2d 709. But, the court will indulge no strained construction to give effect to this rule where a fair interpretation of the legislative intent may lead to a contrary conclusion; arbitrary rules of construction are of little value when the real intention can be gathered from the act itself. State v. Wertheimer Bag Co., 253 Ala. 124, 43 So. 2d 824.
The withdrawal feature of Subdivision (j) was considered in State v. Bemis Brothers Bag Company, 267 Ala. 161, 100 So. 2d 736, 739. The facts and issues in that case insofar as they are pertinent here are as follows: There, the taxpayer's plant purchased raw cotton from which it manufactured cotton cloth, part of which was sold and part of which was sent to another of its plants for further processing. The rolls of cloth were packed into cotton tubing. This cotton tubing was manufactured by the plant from cloth and twine made at the plant from raw cotton purchased by *189 the plant; it was made from waste yarn. The assessment there, as it pertained to the cotton tubing, involved only that which the taxpayer used in shipping cloth to its other plant; to the extent that these articles were used in shipping cloth sold to others, they were not included in the assessment. In upholding the assessment, the court said:
We held that the withdrawal and consumption of the cotton tubing made from the yarn, which was manufactured from the raw cotton purchased at wholesale, was taxable as a retail sale.
We think the court in the Bemis Brothers Bag Company case, supra, reached a fair and reasonable interpretation of Subdivision (j) and one which is controlling in the instant case. The purpose of the retail sales tax is to tax the ultimate consumer, regardless of who this may be. When the appellee purchased its raw materials there was no retail sale because at that time it could not be ascertained that some of the materials would be consumed by it rather than manufactured for resale. The trial judge held the Subdivision (j) did not apply to render the withdrawal a retail sale because it "expressly excepts `property which enters into and becomes an ingredient or component part of * * * products manufactured * * *.'" But the remainder of the sentence qualifies the exception. We start again with the last quoted word"* * * manufactured or compounded for sale and not for the personal and private use or consumption of any person so withdrawing, using or consuming the same; * * *." Here the lumber withdrawn was used by the appellee.
Appellee relies on an earlier decision in Hamm v. Windham, 254 Ala. 356, 48 So. 2d 310, to support his contention that Subdivision (j) does not apply to manufacturers or compounders. In holding that a person engaged in the restaurant business, who gives to his employees food as an element of compensation for services rendered in the preparation and service of food to customers, on which the sales tax is paid, should not pay a sales tax on the value of the food thus served to his employees, the court cited as controlling the case of State Tax Commission v. Burns, 236 Ala. 307, 182 So. 1. It should be noted that in each of these cases, the only food given the employees was that which was on hand for sale to the public but was not sold; the value of the food eaten by the employees was added to the prices charged retail customers and the sales tax was paid thereon. Also, the owner paid unemployment and social security taxes upon an estimated value of the food eaten, treating such transaction as payment of wages in food in lieu of money.
Most important is the fact that the Burns case was decided before the self-consuming feature of Subdivision (j) was enacted. There, the question was whether the purchase of the raw materials originally was a retail sale. This court held that even though some of the food was later consumed rather than sold, that fact did not render the original purchase a retail sale. However, under the amendment to Subdivision (j), a retail sale for purposes of the sales tax is effected by the withdrawal of property originally purchased at wholesale; the amendment does not affect *190 the character of the original purchase at wholesale. In order for the amendment to Subdivision (j) to apply, the original purchase must have been at wholesale.
Therefore, on the authority of the Bemis Brothers Bag Company case quoted above, appellee is due to pay sales tax on the withdrawal and use of lumber and other products made from raw materials purchased at wholesale.
Appellee contends that it is not a wholesale purchaser as covered by Subdivision (j) because a great percentage of the logs used in manufacturing came from lands which it owned outright and timbers to which it owned timber rights, and only a small percentage of logs were purchased outright. We agree that the use of logs which it owned outright was not a "wholesale purchase" within the meaning of the act. However, nowhere is it shown that the products used came from the logs which it already owned.
On appeal from the final assessment of sales tax, the burden is on the taxpayer to prove its incorrectness as the final assessment is prima facie correct. State v. Joe H. Brady & Associates, 264 Ala. 397, 87 So. 2d 852; Tit. 51, §§ 140, 767, Code 1940. Therefore, the products consumed by the company are presumed to have origin in a wholesale purchase. Appellee's own witnesses testified that it was impossible to ascertain whether the items used came from logs it owned outright or those which it purchased.
Under Alabama sales tax law, taxpayers are required to keep such records and accounts as may be necessary to determine the amount of tax due. Tit. 51, § 759, Code 1940. The purpose of such a requirement is to enable a proper determination of tax due. The State is not required to rely on verbal assertions of the taxpayer in determining the correctness of the tax return, but records should be available disclosing the business transacted. Where there are no proper entries on the records to show the business done, the taxpayer must suffer the penalty of noncompliance and pay on the sales not so accurately recorded as exempt. State v. Levey, 248 Ala. 656, 29 So. 2d 129.
Here, where it is not possible to tell from an examination of the books whether the products used came from a wholesale purchase or from logs it owned outright, appellee has not met the burden of proving the incorrectness of the assessment.
Appellee also contends that the assessment should be set aside because certain facts, which tend to support the validity of the assessment and which first came to light during the taking of testimony in the case, were not relied on by the State in its answer supporting the assessment as valid. We cannot agree.
The State points out that the testimony disclosing this phase of the case was elicited from appellee's own witness and it did nothing more or less than depict the factual situation that existed at and during the time the audit was made by examiners for the State Department of Revenue, that its answer to the bill of complaint denied all allegations of the bill and all legal conclusions set up in the bill.
We recognize the established principle that a presumption should be indulged in favor of the conclusion of a trial judge *191 who sees and hears the witnesses when the evidence is in conflict. However, here, the evidence consisted of the testimony of two witnesses, both of whom were called by the appellee. Since their admissible testimony was not conflicting, no presumption in favor of the findings of the trial court need be indulged. State v. Joe H. Brady & Associates, 264 Ala. 397, 87 So. 2d 852.
The appellee has not sustained the burden of proving the invalidity of the assessment.
Since only the legality, and not the amount, of the assessment was contested, the judgment of the lower court is reversed and one is here rendered in favor of appellant for the amount of the assessment.
Reversed and rendered.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | May 11, 1961 |
40b28c67-58e8-497f-afef-7e777f2ff5e5 | Hill v. Davis | 130 So. 2d 39 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 39 (1961)
R. E. HILL et ux.
v.
William M. DAVIS.
7 Div. 523.
Supreme Court of Alabama.
May 11, 1961.
*40 Starnes & Holladay, Pell City, for appellants.
Maurice F. Bishop, Birmingham, for appellee.
MERRILL, Justice.
This appeal is from a final decree in a declaratory judgment action to construe a written agreement between adjoining landowners executed in 1928. Appellant Hill was the grantor in the agreement, and N. H. Waters and W. A. Poindexter, the predecessors in title to appellee Davis, were the grantees. In 1928, Hill resided in Texas, but in 1955, he moved on his Alabama land and has since resided there.
A small branch ran east through the property of Hill and on through the property of Waters and Poindexter, who were lower riparian owners. They built a dam on their property with the idea of constructing a lake. The line between their property and Hill's was the Simmons Mountain Road, which runs north and south and intersects Alabama Highway 174, which is part of the northern boundary of the lake. A fairly high bridge on the boundary line road spans the branch.
When the dam was completed in 1928, it was discovered that the impounded water overflowed on Hill's land west of the road. Waters and Poindexter negotiated with Hill and the agreement which is the subject of this suit was executed. In pertinent part, it reads:
The property described was much larger in area than the actual land which was covered by the water forming the lake. About 7/8ths of the lake was on land of Waters and Poindexter, the other 1/8th was on Hill's land. Appellee purchased the Waters-Poindexter land in 1956.
The bill alleged that the entire body of water was treated and used as one lake, and was developed as a commercial lake; that Davis and his predecessors in title have leased and sold fishing rights to the entire lake, and have historically had access to the overflowed or inundated area by boat and by fishing from the banks in that portion of the lake on Hill's land. It was alleged that boats traversed the entire lake and the proof showed that boats could easily go under the bridge on the road which was the boundary line between the properties.
It was alleged that during 1959, the State of Alabama acquired part of appellee's land and part of Hill's land for highway purposes (in connection with Highway 174) and it was necessary to drain the lake. While it was temporarily drained, appellant built a fence along his side of the boundary line. The fence did not impede the water from going over Hill's land, but prevented appellee and his licensees from going under the bridge by boat.
The demurrer to the bill was overruled and answer was filed. The trial followed and the court found that:
Appellants contend that the decree was contrary to the agreement because it added "fishing privileges" to an agreement which was silent as to such privileges.
We agree with the trial court that, in the absence of evidence, appellants' contention "would carry more weight." The rule is that the interpretation placed upon contracts between the parties and practiced by them will ordinarily be accepted by the court. Walker v. Medical Society of Mobile County, 247 Ala. 169, 22 So. 2d 715; Olsson v. Nelson, 248 Ala. 441, 28 So. 2d 186; 5 Ala.Dig., Contracts.
The preponderance of the evidence showed that appellee and his predecessors in title had used the entire lake for commercial fishing since 1928, and many witnesses testified that they had fished from both boats and the bank of the lake on the west or "Hill" side of the Simmons Mountain Road. After allowing fishing privileges under the contract for 31 years, appellants' *42 erection of the fence in 1959 came too late.
"The right to take fish in any water which is not navigable, although it belongs prima facie to the owner of the soil, follows the ownership of the water, if that is separated from the ownership of the soil." Bosworth v. Nelson, 170 Ga. 279, 152 S.E. 575; Turner v. Selectmen of Hebron, 61 Conn. 175, 22 A. 951, 14 L.R.A. 386; 36A C.J.S. Fish § 5, p. 504; 22 Am.Jur., Fish and Fisheries, § 23, p. 684. See 47 A.L.R.2d 406[d]. In Schultz v. Carter, 153 Va. 730, 151 S.E. 130, the upper landowner Fox granted "water rights on such land as may be overflowed" to Garrett, who had built a dam on the stream on his own land. In that case, Fox reserved in the contract the right to fish in the pond. The court held that the right reserved was personal to Fox and was neither assignable nor inheritable. The court said:
No argued assignment of error is sufficiently meritorious to warrant a reversal of the decree.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | May 11, 1961 |
29f79768-ba60-4467-a635-92e89d6e936d | Ramos v. Fell | 128 So. 2d 481 | N/A | Alabama | Alabama Supreme Court | 128 So. 2d 481 (1961)
Joe RAMOS
v.
Oscar FELL.
1 Div. 871.
Supreme Court of Alabama.
March 30, 1961.
*482 Collins, Galloway & Murphy, Mobile, for appellant.
Harry Seale, Mobile, for appellee.
LAWSON, Justice.
Oscar Fell brought this suit in the Circuit Court of Mobile County against Joe Ramos. Fell recovered a judgment against Ramos for $2,500. Ramos has appealed.
The case went to the jury on Fell's amended complaint, which contains one count, and the defendant's plea of not guilty. The amended complaint is set out in the report of the case.
The original complaint was in trespass quare clausum fregit. It was in substantial compliance with Form 28, § 223, Title 7, Code 1940. The amendment added averments to the effect that if the defendant did not himself trespass "on the landing dock duly leased by the plaintiff," he committed the claimed trespass by and through his agent. Such added averments did not change the complaint to trespass on the case. The wrong thus averred is the wrong of the defendant himself as distinguished from the wrong of the agent. Southern Ry. Co. v. Sanford, 262 Ala. 5, 76 So. 2d 164, and cases cited, including City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389.
Ramos asserts that the judgment should be reversed because of the trial court's refusal to give the affirmative instructions which he requested in writing.
Where we are called upon to review the action of the trial court in refusing *483 an affirmative instruction to a defendant, we must review the evidence in the light most favorable to the plaintiff, and if there is a scintilla to support the complaint, the trial court's action in refusing the charge must be affirmed. Kress & Co. v. Thompson, 267 Ala. 566, 103 So. 2d 171, and cases cited.
The evidence, when viewed in the light most favorable to the plaintiff, is substantially as follows:
Plaintiff Fell was the owner of a boat which he planned to charter to a fishing party during the 1958 Alabama Deep Sea Rodeo. He wanted a place to moor his boat at Dauphin Island and to that end he contacted L. W. Hager, who was the manager of a part of a dock on that island. The dock was owned or operated by the Doran Company. Fell secured from Hager as Doran's agent the following writing:
"I Doran Co of Ala
According to Fell, he acted not only for himself but for another boat owner, F. W. Waltman, Jr., who paid Fell one half of the costs of the docking area, that is, the "north end east side of Dock." Waltman stated that he was present when Fell negotiated with Hager.
The 1958 Rodeo began on the morning of July 25th. At about 4:00 on the afternoon of that day the Fell and Waltman boats were brought out of the Gulf for the purpose of mooring them in the rented docking space. That space was not large enough for Fell and Waltman to moor their boats one behind the other. They planned to place one boat outboard or outside of the boat to be moored next to the dock.
When they arrived at the dock Fell and Waltman saw a boat moored in the rented docking space. They secured their boats to the boat which was so moored and went in search of the owner or operator of that boat. Inquiries disclosed that the boat was owned by Joe Ramos, but he could not be located. According to Fell, he saw Ramos on his boat shortly before the Fell and Waltman boats reached the dock. Ramos denied that he moored the boat at the dock but admitted it was moored by his agent, Landry. Landry testified that he moored the boat at the dock in accordance with authorization given him by Ramos.
Fell and Waltman wanted to get their boats moored to the dock in order to connect the electric lines to the electrical outlets on the dock. They removed the Ramos boat and moored Fell's boat next to the dock. They moored the Waltman boat outboard the Fell boat and they moored the Ramos boat outboard the Waltman boat. Lines from the Ramos boat were tied to the bits and cleats on the decks of their boats by Fell and Waltman.
Within a short time after the boats were placed as described above, a severe storm hit the dock and surrounding area. Efforts to hold the Ramos boat off the Waltman boat were unavailing. When the Ramos boat was torn from its mooring the bits and cleats of the Fell and Waltman boats, to which lines from the Ramos boat had been tied, were pulled from the decks. Fell and Waltman, with the assistance of others, were successful in getting the Ramos boat back in place. Later the anchor line from the Ramos boat was carried across the Waltman and Fell boats by Waltman and Fell and tied around a piling on the dock.
As the high wind continued, the Fell boat was battered against the side of the dock and the anchor line from the Ramos boat struck the cabin of the Fell boat with such force and rapidity as to do considerable damage to the cabin. The Fell boat was severely damaged in other respects.
A designated area on the dock was assigned to Fell for his use. This, of *484 course, included the right to bring his boat alongside that area for the purpose of mooring his boat. Fell had the right to exclusive possession of the area so designated against all the world, including the owner or operator of the dock. Fell was a lessee, not a licensee. Lewis v. Ebersole, 244 Ala. 200, 12 So. 2d 543; Holt v. City of Montgomery, 212 Ala. 235, 102 So. 49.
Disturbance of possession is the basis for an action in trespass quare clausum fregit. Louisville & N. R. Co. v. Higginbotham, 153 Ala. 334, 44 So. 872; Kay v. Adams, 223 Ala. 33, 134 So. 628; Frost v. Johnson, 256 Ala. 383, 54 So. 2d 897.
Fell as a lessee had a right of possession sufficient to support an action of trespass quare clausum fregit. Papadopulos v. Defabrizio, 102 Utah 84, 125 P.2d 416; Price v. Osborne et al., 24 Tenn.App. 525, 147 S.W.2d 412.
The complaint avers and the evidence shows such a violation of Fell's property rights as entitles him to recover at least nominal damages irrespective of whether damages sustained by his boat were recoverable. Foust v. Kinney, 202 Ala. 392, 80 So. 474; Stockburger v. Aderholt, 204 Ala. 557, 86 So. 464.
The trial court did not err in refusing the affirmative instructions requested by the defendant.
Defendant's Charges 8, 9, 10, 11, 12 and 13 were refused without error. Each of them excludes the idea that nominal damages might be assessed. Smith v. Wolf, 160 Ala. 644, 49 So. 395; Armour & Co. v. Cartledge, 234 Ala. 644, 176 So. 334; Birmingham Electric Co. v. Mealing, 214 Ala. 597, 108 So. 511; Central of Georgia Ry. Co. v. Barnett, 220 Ala. 284, 124 So. 868; Dawsey v. Newton, 244 Ala. 661, 15 So. 2d 271. Those charges also ignored the claim for punitive damages. See Alabama Water service Co. v. Johnson, 223 Ala. 529, 137 So. 439.
The court did not err to a reversal in refusing defendant's Charge 5, which predicates plaintiff's right to recover on the plaintiff's ownership or possession of the entire dock rather than of the part of the dock which plaintiff leased. For that reason, if for no other, Charge 5 was refused without error.
Assignments of Error 15 and 16 are treated in brief of appellant with Assignment of Error 12, which relates to the court's refusal to give defendant's Charge 11. We have already observed that Charge 11 was refused without error. Assignments of Error 15 and 16 do not raise questions kindred to that raised by Assignment 12. It follows, therefore, that we will not consider Assignments 15 and 16. Bolton v. Barnett Lumber & Supply Co., 267 Ala. 74, 100 So. 2d 9, and cases cited.
The plaintiff claimed punitive damages and that issue was submitted to the jury.
It is only where the trespass is attended by rudeness, wantonness, recklessness or an insulting manner or is accompanied by circumstances of fraud and malice, oppression, aggravation or gross negligence that a jury is warranted in assessing punitive damages in an action of trespass. Lienkauf v. Morris, 66 Ala. 406; Sugar Valley Land Co. v. Johnson, 17 Ala, App. 409, 85 So. 871.
During the course of the trial the court refused to permit the defendant to show by Hager that the dock which he operated and which is here involved was open to all boat owners except during the Deep Sea Rodeo. The court also refused to permit the defendant's witness Landry, whom the defendant says moored his boat at the dock on the occasion in question, to testify that he was not warned by sign or otherwise that the area where he moored his boat was leased and not open to use by him or any other boat operator.
We are of the opinion that such evidence should have been admitted to refute the charge of malice, rudeness, *485 wantonness, recklessness, etc., and to show good faith on the part of the defendant and his agent, Landry. The fact that the defendant and Landry knew that during previous rodeos docking space had been leased or made available to certain boat owners did not render harmless these rulings of the court. Such evidence bore upon the question of punitive damages but would not be admissible to show the extent or amount of the actual damages. Southern Ry. Co. v. Hayes, 183 Ala. 465, 62 So. 874; Wright v. Bentley Lumber Co., 186 Ala. 616, 65 So. 353; Pounds v. General Motors Acceptance Corp., 220 Ala. 145, 124 So. 204.
No ruling of the court presents for our consideration the question as to whether the plaintiff was entitled to recover in this case for the damages to his boat.
For the errors indicated, the judgment of the Circuit Court is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | March 30, 1961 |
c48af7cc-ba47-4a63-9591-9a1cd128a2f3 | Aetna Life Insurance Company v. Beasley | 130 So. 2d 178 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 178 (1961)
AETNA LIFE INSURANCE COMPANY
v.
Myrtle M. BEASLEY.
7 Div. 510.
Supreme Court of Alabama.
May 11, 1961.
*179 London, Yancey, Clark & Allen, Birmingham, for appellant.
Lusk, Swann & Burns and Hawkins & Rhea, Gadsden, for appellee.
MERRILL, Justice.
This appeal is from a verdict and judgment in favor of the plaintiff below in a suit upon a group insurance policy in which appellant insured certain employees of Goodyear Tire and Rubber Company, including the husband of the appellee, providing payment of benefits for loss of life *180 from bodily injuries "sustained solely through accidental means."
At the close of the evidence the appellant, defendant below, requested the affirmative charge with hypothesis on the ground that the plaintiff had failed to sustain the burden of proving that the insured met his death by accidental means, that the death of the insured was not by accidental means because he voluntarily put his life at stake and deliberately took the chance of getting killed, and that his death did not result from something unforeseen, unexpected or unusual. Appellant assigns as error the failure of the court to give the general affirmative charge and the action of the court in overruling the motion for a new trial.
In an action on a similar policy, this court has held that the "Plaintiff, after offering in evidence the policy of insurance, produced proof that the insured died as a result of external and violent means, and no more, and thus made out her prima facie case for recovery." Continental Casualty Co. v. Meadows, 242 Ala. 476, 7 So. 2d 29, citing Inter-Ocean Casualty Co. v. Foster, 226 Ala. 348, 147 So. 127.
The evidence showed that the insured met his death in his home by a gunshot wound inflicted by his fourteen year old son. It was undisputed that for a number of years the insured, often when he was drinking and on occasions when he was not drinking, had beat his wife and called her vile and abusive names, frequently in the presence of their son. Sometimes these beatings occurred as often as every week end. In the past the son, an emotional, nervous boy, had attempted to protect his mother by requesting his father not to beat her but had never before physically resisted the deceased.
The only two witnesses testifying as to the shooting were the plaintiff and her son. There was evidence that the insured had been drinking heavily on the night of the fatal shooting; plaintiff testified that in her judgment the deceased was intoxicated. Both the plaintiff and her son testified that on this evening she was lying on the bed, and her son was sitting on the bed when the insured came into the room and hit her one or more blows with his fist rendering her unconscious. The son testified that he persuaded his father to leave the room, but while his mother was still unconscious his father sought to re-enter the room. At that time he (the son) was standing by his mother's bed with a rifle in his hand. He asked his father not to re-enter the room. As he came into the room, insured told his son that he was going to kill both him and his mother. The son then shot his father.
Appellant contends that this testimony does not sustain the burden of proving the insured met his death as a result of accidental means.
In Emergency Aid Insurance Co. v. Dobbs, 263 Ala. 594, 83 So. 2d 335, 338, the court said:
To the same effect are: Adkins v. Metropolitan Life Ins. Co., 235 Ala. 417, 179 So. 382; Northam v. Metropolitan Life Ins. Co., 231 Ala. 105, 163 So. 635, 111 A.L.R. 622; Inter-Ocean Casualty Co. v. Foster, 226 Ala. 348, 147 So. 127; Equitable Accident Ins. Co. v. Osborn, 90 Ala. 201, 9 So. 869, 13 L.R.A. 267.
In O'Bar v. Southern Life and Health Ins. Co., 232 Ala. 459, 168 So. 580, 582, this court set up some tests by which the facts must be tested to constitute an accidental death. It must have been from something "unforeseen, unexpected, and unusual," or "which happens as by chance, or which does not take place according to the usual course of things," or "without foresight or expectation," or "by reason of some violence, casualty, or vis major to the assured, without his design or consent or voluntary cooperation." Here, the facts, so tested, tend to show death was "sustained solely through * * * accidental means."
The appellant contends that because the insured was the aggressor in the instant situation the insurer is not liable. The general rule is stated in 45 C.J.S. Insurance § 788, p. 827, and is quoted by the Court of Appeals in United Security Life Insurance Company v. Clark, 40 Ala.App. 542, 115 So. 2d 911, 914:
The same question was considered in the often-cited case of Mutual Life Ins. Co. of New York v. Sargent, 51 F.2d 4, 5, by the Circuit Court of Appeals, Fifth Circuit, in an appeal from the District Court for the Northern District of Alabama:
*182 We cannot say as a matter of law that the husband, although intoxicated and belligerant, intended to kill his wife and son, or that the natural and probable consequence of his actions was that his son, who had never physically resisted or reacted to his father's threats and abuses toward his mother, would turn upon his father and kill him when he again threatened and assaulted his wife.
Under the circumstances here present, and the law previously cited, the court properly submitted the case to the jury. See Annotation, 26 A.L.R.2d § 5, p. 423. We also think that we would be out of harmony with the authorities to hold that the verdict was contrary to the great weight of the evidence. Mutual Life Ins. Co. of New York v. Maddox, 221 Ala. 292, 128 So. 383; American Life Ins. Co. v. Morris, 37 Ala.App. 438, 72 So. 2d 414, certiorari denied 260 Ala. 693, 72 So. 2d 418.
Appellant assigns as error the refusal of the court to give requested written charge No. 9 to the jury. From the record, it appears that this charge was originally given by the court but upon direction by the attorney for the appellant, it was withdrawn because it had been written before the plaintiff amended her complaint; therefore, it appears that the action of the court was invoked by the appellant's attorney. It is a well-established doctrine that a party may not avail himself of error, if there be error, into which he has led the court; this is called invited error. Ellerbee v. Atlantic Coast Line R. Co., 258 Ala. 76, 61 So. 2d 89; Western Union Telegraph Co. v. Griffith, 161 Ala. 241, 50 So. 91. The verdict of the jury was not contrary to requested written charges "C" and "10" which were given by the court.
Appellant also contends that the motion for a new trial should have been granted because a juror in the case did not disclose, upon questioning, that he was acquainted with the plaintiff. The jurors were asked whether they knew or were acquainted with Myrtle Beasley or with other members of her family; this juror made no answer. When called as a witness on the hearing of the motion for a new trial, he testified that he did not know the woman as Myrtle Beasley but when she came around to testify, he knew that he had seen her around town but that he did not know, her name other than Myrtle, that he had never spoken to her in person or over the telephone and that he was not personally acquainted with her.
We cannot agree that this amounted to a withholding of pertinent information by the juror. There are many people whom each of us have seen or recognize but do not "know" or are "acquainted with." We feel that the phrase "know or acquainted with" implies more than merely having seen someone, but never having had a conversation, with or any dealings with him.
Appellant next argues that the facts stated in the physician's statement in proof of loss are conclusive in the instant case and that the proof of loss shows death due to homicide in answer to the question: "Was the death due to accident, suicide or homicide?" Appellant also contends that under such answer there had never been any proof of loss as required by the policy that the insured died by accidental means.
The record shows that the certificate furnished as proof of death by the employer stated that the death of insured was the result of a "shotgun wound, inflicted by son." Such information filed on appellant's forms for proof of death would seem to furnish appellant with the necessary "written proof covering the occurrence, character, and extent of event for which claim is made" as required by the policy. There is no clause excluding death by the intentional act of another.
That the coroner's certificate and the doctor's certificate showing cause of death as homicide are not conclusive evidence against the beneficiary is fully discussed in United Security Life Insurance *183 Co. v. Clark, 40 Ala.App. 542, 115 So. 2d 911, and authorities cited therein.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | May 11, 1961 |
a32bfd83-cf4b-4c55-b5c9-79921ae5874b | Smart v. Wambles | 127 So. 2d 611 | N/A | Alabama | Alabama Supreme Court | 127 So. 2d 611 (1961)
Leon SMART
v.
S. C. WAMBLES.
4 Div. 20.
Supreme Court of Alabama.
March 2, 1961.
*612 Fleming & Stephens, Elba, for appellant.
S. Fleetwood Carnley, Elba, for appellee.
LIVINGSTON, Chief Justice.
This is an appeal from the Circuit Court of Coffee County, Alabama, Elba Division, from a judgment rendered by that court on October 7, 1958 in favor of S. C. Wambles, in the amount of $300. A motion for a new trial was filed and overruled.
S. C. Wambles filed suit against Leon Smart in April of 1958. The complaint was in three counts. After all the evidence was in, the appellee struck counts 1 and 3, leaving only count 2, which was in trespass, for the consideration of the jury.
The evidence shows that in December 1957, the defendant was cutting timber on the land of L. L. Miller, said land adjoining land of the plaintiff. The plaintiff discovered during the first week after Christmas of 1957 that approximately 96 trees had been cut and carried from his land. These trees ranged in diameter from 7 inches to 21 inches. There were also several saplings cut. The contention of the plaintiff was that the defendant, in the process of cutting timber on the land of L. L. Miller, entered upon plaintiff's North Forty and cut and removed the timber therefrom. The timber in question was on only 20 acres of the North Forty. There was evidence tending to show that the decrease in value of the land by the cutting of the timber was from $2 per acre to $30 per acre, thereby showing damage ranging from $40 to $600. There is no evidence of dispute between the parties over the boundary lines. The only question presented for the jury was whether or not this defendant cut the trees on the plaintiff's land and carried them away, and if so, a determination of the damages suffered thereby.
The jury returned a verdict in favor of plaintiff for $300. On this appeal, we are asked to determine whether or not this verdict was sustained by the evidence.
Assignments of error 1, 2 and 3 not being argued by appellant in brief are deemed waived and will not be considered by the court. Supreme Court Rule 9(d), Code of Ala., Tit. 7 Appendix. Therefore, there is but one assignment of error to be considered by this court on appeal, that being assignment of error 4, to wit:
The grounds assigned in the motion for a new trial present three questions for our consideration. One is that the verdict is contrary to the law, the evidence, the great preponderance of the evidence, and the facts. This contention is set out in grounds 1, 2, 3 and 4. The second contention is set out in the fifth assigned ground to the effect that the verdict of the jury for $300 is excessive. The third contention, set out in grounds 6 and 7, is that the court erred in refusing to give the affirmative charge at the request of defendant. The appellant in his motion for a new trial set out the requested charge which he contends the court erred in refusing to give, which reads as follows:
The trial court cannot be put in error for denying the motion on the basis of grounds 6 and 7 because nowhere in the record is it shown that this charge as set out by defendant was denied by the trial judge. A careful reading of the record shows that only one charge requested by the defendant was refused, and this charge which was refused was not the same charge which the appellant set out in the motion for a new trial. The only charge refused the appellant was as follows:
Nowhere in the appellant's motion for a new trial or his assignments of error does he complain of the trial judge refusing this charge.
We are of the opinion that the trial court did not err in refusing to grant the motion for a new trial on the ground that the verdict of the jury for $300 was excessive. There was testimony by Jack Maddox that the 20 acres on which the timber in question was standing was worth $1,200 before cutting the timber and $600 after cutting the timber. There was also testimony of Freeman Flowers, a witness for defendant that the land was worth about the same after the timber was cut as before it was cut, with a decrease of no more than $2 per acre. Therefore, there was testimony of damages ranging from $40 up to $600. Under such testimony, we cannot say that $300 was excessive.
This court said in W. T. Smith Lumber Co. v. McKenzie, 256 Ala. 496, 55 So. 2d 919, 922:
Ground 1 of the motion for a new trial is too general for consideration. It was said in Cobb v. Malone, 92 Ala. 630, 9 So. 738, and often repeated, that when the ground for a motion for a new trial is that the verdict is contrary to the law, or that errors of law occurred during the trial, a general assignment will be disregarded; the respects in which the verdict is contrary to law, or the errors of law complained of, should be specified, so as to direct the court's attention to the alleged erroneous rulings. Dollar v. McKinney, 267 Ala. 627, 103 So. 2d 785; Waldrop v. Langham, 260 Ala. 82, 69 So. 2d 440.
The remaining grounds, 2, 3 and 4, are to the effect that the verdict is against the weight of the evidence. Verdicts are presumed to be correct, and no ground of a motion for new trial is more carefully scrutinized than that the verdict is against the weight of the evidence, and the refusal to grant a new trial by the trial court, sought on such grounds serves to strengthen the presumption in favor of the correctness of the verdict. Dollar v. McKinney, supra; Redmond v. Self, 265 Ala. 155, 90 So. 2d 238; Smith v. Lawson, 264 Ala. 389, 88 So. 2d 322; Adams v. Queen Ins. Co. of America, 264 Ala. 572, 88 So. 2d 331; W. T. Smith Lumber Co. v. McKenzie, supra.
A careful review of the evidence reveals that there was testimony, which if believed by the jury, would justify the verdict *614 in the trial court and under such circumstances the motion for a new trial was properly overruled. For the foregoing reasons, we do not feel we would be justified in disturbing the verdict in this case.
The judgment of the trial court is affirmed.
Affirmed.
SIMPSON, GOODWYN and COLEMAN, JJ., concur. | March 2, 1961 |
efbb877c-bc2e-46fa-b33e-d80ceda27737 | Kimbrell v. State | 132 So. 2d 132 | N/A | Alabama | Alabama Supreme Court | 132 So. 2d 132 (1961)
Fuller KIMBRELL
v.
STATE of Alabama.
COLUMBIA CASUALTY COMPANY
v.
STATE of Alabama.
John GRAVES
v.
STATE of Alabama.
J. W. GWIN, JR., INC.
v.
STATE of Alabama.
W. H. [Bill] DRINKARD
v.
STATE of Alabama.
AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY
v.
STATE of Alabama.
3 Div. 825-830.
Supreme Court of Alabama.
June 29, 1961.
*133 Hill, Hill, Whiting, Harris & Pilcher, Montgomery, for appellants Drinkard, Kimbrell and Gwin.
Hill, Hill, Stovall & Carter, Montgomery, for appellants Graves and Columbia Cas. Co.
Steiner, Crum & Baker, Montgomery, for appellant American Guarantee & Liability Ins. Co.
John Patterson, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., for appellee.
COLEMAN, Justice.
This is a consideration of six appeals from separate decrees overruling demurrers to a bill in equity, brought by the Attorney General in the name of the State of Alabama, to recover state funds alleged to have been paid out illegally.
Respondents are the individuals who at the time of the alleged payments held, respectively, the offices of Director of the Department of Conservation, Director of the Department of Finance, the Comptroller, and their sureties, and J. W. Gwin, Jr., Inc., a corporation, hereinafter referred to as Gwin. The respondents are not sued in their capacity as officials of the State of Alabama but as individuals. The gist of the suit is the claim that the three state officials, acting in their official capacities, *134 and in concert with Gwin, caused payments of state money to be made to Gwin, that such payments were illegally made, and that respondents ought to be required to repay the money to the state.
The bill of complaint avers that the Conservation Director made a contract with Gwin for construction of a motel and certain other improvements at Lee-Hi State Park in Limestone County; that the estimated cost was approximately $100,000; that Gwin was to do the work on a cost plus 10% basis; that said contract was made without advertising for sealed bids, without competitive bidding, without the contractor making a performance bond, without the approval of the Governor in writing, and without the approval of the State Building Commission, all in violation of Title 50, Code 1940, as amended by Act No. 492, 1947 Acts, and Act No. 521, 1953 Acts; that from January to May, 1956, Gwin performed the work as authorized by the Conservation Director, except that the concession building was left unfinished; that on February 14, 1956, Gwin filed an invoice claiming $7,784.83 for labor and materials furnished under said contract; that on March 2, 1956, the Department of Conservation executed a material receipt for the labor and materials set forth in said invoice; that on March 1, 1956, a document purporting to be a Purchase Requisition was executed by the Conservation Director, requesting the Finance Director to requisition the labor and materials set forth in said invoice; that on March 22, 1956, the Finance Director executed a purchase order to Gwin, purporting to purchase the labor and materials set forth in said invoice; that on March 23, 1956, the Comptroller issued a warrant on the state treasury for $7,784.83, payable to Gwin, for labor and materials set forth in said invoice, and that Gwin has been wrongfully and unlawfully paid the aforesaid sum under said warrant by the State of Alabama.
The bill further avers that on three specified dates in March, April, and May, 1956, Gwin filed three separate invoices for $17,007.56, $30,960.99, and $45,522.13, respectively, totaling $93,490.68, for labor and materials furnished under said contract; that said invoices were presented by the Conservation Director to the Finance Director and Comptroller for payment, and the Finance Director and Comptroller refused to pay the same "because of their illegality."
The bill further avers that on July 20, 1956, Gwin filed seven separate invoices, for amounts ranging, respectively, from $11,053.43 to $14,711.33, totaling $93,490.68, for labor and materials furnished under said contract; that on to wit, July 19, 1956, seven purchase requisitions were executed by the Conservation Director requesting the Finance Department to requisition the labor and materials set forth in the seven invoices; that on July 20, 1956, the Finance Director executed seven purchase orders, corresponding to the invoices, purporting to purchase the labor and materials set forth in the invoices; that on July 20, 1956, the Conservation Director executed seven material receipts corresponding to the invoices acknowledging receipt of the labor and materials set forth therein; that on July 20, 1956, the Comptroller issued a warrant on the state treasury for $93,490.68 payable to Gwin, and that Gwin has been unlawfully paid state funds in the amount of the warrant.
The payment of said funds and the acts of the respondents are characterized in the bill as being wrongful and unlawful. The bill avers that the contract was made by the Conservation Director without legal authority because the contract was entered into in violation of Title 50, Code 1940, as amended by Act No. 492, 1947 Acts, and Act No. 521, 1953 Acts, without advertising, without competitive bidding, without a performance bond by the contractor, without approval by the Governor in writing, and without approval by the State Building Commission.
*135 The bill avers that the contract was void and contrary to public policy for failure to comply with the statute; that the Conservation Director "did wrongfully and unlawfully attempt to conceal the illegality of said contract in that" he "attempted to obtain approval of said contract by the State Building Commission subsequent to the execution of said contract and after work had been performed under said contract," and that the three officials and Gwin "wrongfully and unlawfully conspired to obtain payments from the State of Alabama for materials furnished and labor performed under said illegal contract by causing said invoices dated March 16, 1956, April 20, 1956, and May 18, 1956, same being Exhibits 13, 14 and 15, to be altered and changed so as to make seven (7) new invoices bearing dates of March 13, 1956, March 16, 1956, April 2, 1956, April 17, 1956, May 1, 1956, May 14, 1956, and May 18, 1956, same being Exhibits 16, 17, 18, 19, 20, 21 and 22; that the labor performed and the materials furnished as shown in invoices which are Exhibits 13, 14 and 15, is the same labor performed and materials furnished as is shown in the invoices which are Exhibits 16, 17, 18, 19, 20, 21 and 22; that said alteration of said invoices was an attempt by said Respondents to evade the requirements of Act No. 521, General Acts of Alabama 1953, requiring approval of the State Building Commission for all contracts for the construction of public improvements in excess of $15,000.00."
The bill further avers: "18. That said contract is illegal and void and that the illegal payment of public monies made for the public improvements pursuant to said contract are far in excess of the present value of said improvements and said payments were in excess of the amounts which would have been expended had the procedures required by law been followed and said contract awarded to the lowest responsible bidder. * * *"
Fifty-seven exhibits are attached to the bill. The exhibits are copies of invoices, requisitions, letters, and other documents.
The respondents filed separate demurrers, all of which were separately overruled. Respondents have appealed separately and have severally assigned as error the action of the court in overruling their respective demurrers. However, as we understand the argument presented by respondents, they urge two propositions: first, that the bill was without equity because the averments fail to show that the alleged contract was invalid; and second, that even if the contract was invalid, complainant was bound to offer to do equity and the bill is without equity because it contains no such offer.
As to the first proposition, respondents say that although the bill avers a failure of the respondents to comply with Act No. 521, 1953 Acts, page 685, that act does not govern the making of the alleged contract with Gwin. Respondents say that § 176, Title 8, Code 1940, authorizes the Conservation Director, acting through "the division of state parks," to make contracts for the construction of buildings in parks and does not require such contracts to be let in compliance with Act No. 521, supra, or Act No. 492, 1947 Acts, page 338.
We think it is clear that the bill shows that the contract was not let in compliance with Act No. 521, and we do not understand that respondents insist to the contrary. So then, if Act No. 521 governs the instant contract, the bill sufficiently shows that the contract was not made in compliance with the applicable statutes. On the other hand, if Act No. 521 does not govern the instant contract, and § 176, Title 8, does govern, then the bill does not show that the instant contract was not made in compliance with the statute. Thus the question for decision is whether or not Act No. 521 applies.
Section 176, Title 8, is a codification of Section 3 of Act No. 556, 1939 Acts, page 878, which is entitled An Act, inter alia, "To prescribe additional powers * * * of * * * the Director of Conservation with reference to the operation * * * of State Parks and the acquisition of lands *136 for such Parks; to authorize the execution of contracts arising out of the use and ownership of such lands and the waters thereof;
* * *."
Section 176 recites in pertinent part: "The director of conservation, acting through the division of state parks * * * shall have the following powers * * *: To acquire in the name of the State of Alabama * * * land deemed necessary * * * to be * * * maintained as a part of the state park system; * * *. To construct and operate suitable public service privileges and conveniences on any land embraced within the state park system * * *."
While § 176 does not expressly authorize the construction of buildings, it does authorize the construction of "privileges and conveniences," which might be construed to embrace a motel, as in the instant contract. This implication is suggested by the further grant of power "to charge and collect reasonable fees for the use of the same," i. e., "privileges and conveniences." Section 176 grants power to contract for the purpose of developing, operating, or maintaining any public park, although it does not expressly grant power to contract for the construction of buildings. Complainant does not controvert the proposition that § 176, standing alone, would authorize the making of the instant contract by the Conservation Director, or the proposition that such contract, if made solely under the authority of § 176, could have been made without competitive bidding and without the approval of the Governor, or the building commission. Complainant insists, however, that the power to contract for the construction of buildings granted to the Conservation Director by § 176 has been circumscribed by Acts No. 521 and No. 492, supra.
Act No. 492, approved September 30, 1947, rewrote Chapter 1, Title 50, Code 1940, and in pertinent part recites:
The definition of "awarding authority" in Act No. 492 does not expressly include the Conservation Department. Act No. 521, approved September 3, 1953, Pocket Parts, Code 1940, Title 8, §§ 14(3)-14(7), does make the Director of the Department of Conservation an awarding authority. In pertinent part Act No. 521 recites:
Respondents contend that under the rule that repeal by implication is not favored, Act No. 521 cannot be construed as depriving the Conservation Director of the power to make construction contracts under § 176, Title 8, without competitive bidding or the approval of the Governor or building commission. In one of the briefs for appellants, the argument is stated as follows:
We do not agree with this argument. Repeal by implication is not favored, and the particular will govern the general, but there is also the rule of construction that the intention of the Legislature must primarily be determined from the language of the statute itself if it is unambiguous, and where the language of the statute is unambiguous, the clearly expressed intent must be given effect, and there is no room for construction. Dixie Coaches v. Ramsden, 238 Ala. 285, 190 So. 92.
See also: State v. Robinson Land & Lumber Co. of Alabama, 262 Ala. 146, 77 So. 2d 641; cases cited in Ala. Digest, Statutes,
With respect to contracts governed by Act No. 521, the language of the act is plain and unambiguous. The Department of Conservation is authorized "* * * to enter into contracts for the construction or modification of any buildings or facilities within the jurisdiction of said Department," and "all" such contracts shall be void unless approved by the Governor in writing; and "all such construction" contracts shall be made in accordance with Title 50 as amended. We are unable to conclude that contracts for the construction of buildings and *138 facilities in state parks are excepted from Act No. 521. That act says any buildings within the jurisdiction. The jurisdiction includes parks.
We do not think the averments of the instant bill can be construed as showing that the instant contract was not one for construction of a building or facility within the jurisdiction of the Conservation Department, or did not exceed in cost the sum of $15,000. Accordingly, we are of opinion that the averments of the bill do show that the contract here alleged was not entered into as required by statute and the grounds of demurrer taking the point that the bill was insufficient in this respect are not well taken.
The second proposition argued by appellants is that the bill is demurrable for failure to offer to do equity. The argument in support of this proposition is stated in the following excerpts from one of the briefs:
The principle relief on by respondents has been expressed as follows:
The cases cited by respondents in support of the application of this principle to this *139 case are cases wherein complainant sought cancellation of mortgages and deeds allegedly void and for an accounting. In those cases, it was held that restoration of the thing received by complainant was a condition precedent to his right to the relief sought, and consequently he must aver an offer to make restoration. As stated in Penny v. Odom, supra, the omission to make an offer to do equity "where it appears upon the face of the bill that such offer is necessary, destroys the equity of the bill." The relief here sought by complainant is the recovery of money alleged to have been paid on a void contract. Can it be fairly said that it appears on the face of the instant bill that complainant's right to relief is subject to the doing of any act on complainant's part, or that any act on complainant's part is a condition precedent to its right to relief? We think not.
The law in this state with respect to recovery back, by a municipal corporation or political subdivision, of money paid for labor and materials received by the subdivision, as the result of the execution of a contract not made as required by law, was recently considered and decided in State for use of Russell County v. Fourth National Bank of Columbus, Georgia, 270 Ala. 135, 117 So. 2d 145, where many authorities of this and other jurisdictions are cited. This court held that where a county governing body entered into contracts for road construction without compliance with § 54, Title 23, Code 1940, as to public bids, and the bill did not charge any of the respondents with fraud, collusion, peculation, or improvidence, and from aught that appeared from the bill, the roads were properly constructed and the contractors had received no more than the reasonable value of the services, materials, and labor furnished, then the county could not recover back the money paid to the contractor. See 43 Am. Jur. 823, Public Works and Contracts, § 79.
It appears that the state, as well as its subdivisions, is to have its rights determined by the same rules which apply to private persons. This court has quoted with approval the following statement:
and in the same case, wherein a taxpayer sought to recover an electric light plant on the ground that an earlier transfer of a distribution system was void for lack of approval by the voters of the municipality as required by statute, this court said:
In the Fourth National Bank case, supra, the opinion states "The bill does not allege that the county has lost one cent as a result of the construction of the roads under negotiated contracts." [270 Ala. 135, 117 *140 So. 2d 153.] In the instant bill it is alleged that the monies paid "are far in excess of the present value of said improvements." As respondents point out, in Exhibit 55, it is stated that $85,000 is the reasonable value of the work. It cannot fairly be said that the instant bill does not aver that the state has lost money on the instant transaction. Consequently, we are of opinion that under the averments of the bill which must be considered as true on demurrer, the result reached in State v. Fourth National Bank, supra, cannot be reached here.
The general rule is that he who seeks equity must do equity, and that his bill must so offer, but when the bill shows that complainant is not required to do anything in good conscience as a condition to the granting of relief, the averment of an offer to do equity is not necessary. Head v. Carroll, 230 Ala. 688, 163 So. 328; Sykes v. Sykes, 262 Ala. 277, 78 So. 2d 273. Complainant here seeks recovery of money alleged to have been paid to Gwin, without authority of law, and alleges payment of $101,275.51 for services and materials allegedly worth only $85,000.
With respect to the right of a city to recover from the contractor on a counterclaim for progress payments allegedly made in excess of the reasonable value of the work done, where the counterclaim made no charge of bad faith, the court stated "* * * it is our view that Gamewell (the contractor) is entitled to retain no more than the reasonable value of the benefits received by the city. * * *." Gamewell Company v. City of Phoenix, 9 Cir., 219 F.2d 180, 182. Construing the averments of the instant bill against the pleader, we are nevertheless of opinion that it shows that Gwin is not entitled to retain more than the reasonable value of the benefits received by the state. We are unable to see that any action on the part of the state is a condition precedent to the right to recover the excess which was allegedly paid without consideration therefor. On that view, an offer to do equity is not necessary.
Complainant prays for recovery of $101,275.51, but also prays in the alternative for other, further, and different relief as may be proper. A bill stating equities which entitle the complainant to relief and praying for proper relief, is not demurrable for the reason that a prayer for further, but unwarranted, relief is conjoined. Fonde v. Lins, 259 Ala. 553, 67 So. 2d 834. A bill is not demurrable because it prays too much. Booth v. Bates, 215 Ala. 632, 112 So. 209.
Accordingly, we are of the view that the bill does not disclose anything which complainant should offer to do as a condition precedent to the relief it seeks, and that the ground of demurrer taking the point that complainant did not offer to do equity is not well taken.
We have dealt with the right of complainant to recover against the contractor, Gwin, who received the money allegedly paid without authority of law. Other respondents are alleged to have conspired with Gwin to evade the statute. If, as alleged, such other respondents, by misfeasance or malfeasance in performance of official duty caused complainant to sustain the alleged loss, then it appears to us that each of the other respondents is liable to the extent that the loss may have resulted from his breach of duty. The sureties would be liable according to the terms of their respective undertakings.
Appellants argue that complainant cannot recover in this case because of the rule that where an illegal contract has been fully executed, equity will not lend its aid to either party, citing Black & Manning v. Oliver, 1 Ala. 449; Clark v. Colbert, 67 Ala. 92, and similar cases. We think the answer to this argument is that the state, who now seeks relief, was not bound by the alleged contract with Gwin. That contract, under the averments of the bill, was void for failure to comply with the statute, and the complainant never became a party bound by the alleged contract. This distinction between *141 parties is pointed out in Ellis v. Batson, 177 Ala. 313, 58 So. 193, 194, where a county treasurer was denied relief against his agent, Batson, for county funds embezzled by the agent. Relief was denied because the contract between treasurer and agent, on which contract the treasurer relied, was illegal; but the court said: "* * * Of course, the county could, no doubt, recover the funds belonging to it from Batson * * *." In the instant case, we do not think the rule insisted on by appellant has application.
Since the grounds of demurrer argued by appellants are not well taken, the decrees overruling the demurrers are due to be and are affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | June 29, 1961 |
003e428f-bb86-4e87-8445-13405e6f76cf | Prestwood v. Hunt | 234 So. 2d 545 | N/A | Alabama | Alabama Supreme Court | 234 So. 2d 545 (1970)
Walter E. PRESTWOOD, Sr., et al.
v.
Richard C. HUNT et al.
7 Div. 830.
Supreme Court of Alabama.
March 26, 1970.
Rehearing Denied May 15, 1970.
Morring, Giles, Watson & Willisson, Huntsville, for appellants.
J. C. Kellett and Richard C. Hunt, Fort Payne, for appellees.
SIMPSON, Justice.
The complainants below (appellees) filed a bill seeking an injunction to restrain respondents (appellants) from cutting timber on land alleged to be the property of the complainants. The respondents filed a cross-bill asking the court to find that the respondents were the owners of the land in question by adverse possession. The complainants alleged that they owned the property by reason of recorded deed.
*546 The trial court heard the evidence and made the following findings and entered a final decree, which will supply the factual background necessary for a decision herein:
"This cause is submitted on testimony taken orally before the Court, an inspection of the land in question, and the file as noted by the Register.
"The land in question concerns 40 acres located in the City Limits of Fort Payne, Alabama, and properly described as the Southeast Quarter of the Southeast Quarter in Section 32, Township 6, Range 9 East of the Huntsville Meridian. The property has also been platted and is known as the Woodlawn Addition to the City of Fort Payne, Alabama, and at one time was known as the Liles Addition to the City of Fort Payne, Alabama. The Court finds that all of these descriptions properly fit the property, but that the property was never known in recent years as the Liles Addition, but was properly referred to as the Woodlawn Addition to the City of Fort Payne, and that the Woodlawn Addition is the more accepted description as it now stands.
"This case was commenced by the filing of a bill by the Complainants, seeking to enjoin the Respondents from cutting timber from the property. The Respondents by way of a cross-bill seek to have the Court declare ownership to the property in them by reason of adverse possession. The Complainants then by way of an answer to the cross-bill and by further cross-bill plead that they owned the property and set up a chain of record title in themselves.
"The Court at the request of the Respondents and by agreement of the Complainants made a visual inspection of the 40 acres in question and walked over and around the boundaries of the property. The Court finds that the property is a heavily wooded area which runs up the side of a ridge. Through the center of the property runs a deep ravine. There are no roads on the property except a dirt road which was established in recent years as an extension of Gault Avenue and which crosses the property on the south corner. The Court finds that the property might best be described as mountain land or wild land. There are no buildings or constructions on the property and the Court found no evidence of anyone ever attempting to inhabit the property. There are numerous old fences throughout the 40 acres but these fences do not appear to be boundary fences.
"The Court finds from the testimony that Complainant Richard Hunt holds the record title to Lots I through 14, Block 1; Lots 1 through 18, Block 3; Lots 1 through 16, Block 7; and one-fifth interest in Blocks 2, 4, 5, 6, and 8 through 12 of the Woodlawn Subdivision. The Court further finds that Complainant Hunt has, or his predecessors in title, have assessed and paid taxes on this property and claimed it as their own for over forty years.
"This Court further finds that Complainants, Dobbsie Gilbert and Nancy Kate Slaughter hold the record title to a fourfifths interest in Lots 1 through 18, Block 4; and Lots 1, 2 and Lots 4 through 16 of Block 6 of the Woodlawn Subdivision, and that these Complainants, or their predecessors in title have claimed the property and paid taxes on it for fifty years.
"The Court further finds that the Complainant Willinette E. Gideon holds the record title to a four-fifths interest in Lots 1 through 16, Block 5 of the Woodlawn Addition and that she, or her predecessors in title have claimed the property and paid taxes on it for fifty years.
"The Court further finds that Complainants, Lilly Fuller, Beulah Fuller, Josephine Fuller, Mrs. Gertrude Fuller Owen, and Mrs. Fannie Fuller Nelson, and the children of Charles Houston Fuller, Complainants Margaret F. Kelly and Davenport Fuller are the holders of record title of a four-fifths interest in Lots 1 through 16, Block 2, and Lots 1 through 7, Block 12 of the Woodlawn Subdivision and that they or their predecessors in title have claimed *547 the property and paid taxes on it for fifty years.
"The Court further finds that the Respondents, who owned the adjoining land to the east of this property, began assessing the property for taxes in 1946 and though they can produce no record title or any color of title to the property claim that the property was owned by their father W. W. Prestwood, deceased. The Court can find no evidence that W. W. Prestwood ever assessed the property in question. The Respondents presented testimony from former tenants of W. W. Prestwood that they understood the property to be the Prestwood property in the early 1930's. The Respondents have further produced testimony that they cut some timber from the property from time to time and that they and their father had some cattle on the property. Though there is a good bit of testimony concerning fences being erected on the property, the Court is not convinced that any of these fences were boundary fences or that the entire 40 acre tract was ever completely fenced in for the purpose of establishing ownership.
"The Court further finds that most of the Complainants to this action are non-residents of Fort Payne, and that with the exception of Complainant Hunt none of them or their predecessors in title have spent many years residing in DeKalb County. Considering the character of the land in question, this Court does not feel that the law places any burden upon these Complainants to go down upon the land or to perform any acts of ownership other than pay taxes upon it. In fact, as there was no road upon the property until recent years, it would have been difficult for any of them to have physically gone upon the property or about it.
"The Court further finds that the Respondents to this action had knowledge that their claim of adverse possession was in dispute for in 1952 they brought an action against all Complainants to this suit, except Complainant Hunt, seeking to have the Court designate them the lawful owners of this same tract of land. This suit was dismissed by them in April 1, 1955, and no appeal was ever taken. The Complainants in this action who were Respondents in that original suit, contend that the Respondents in this action are estopped under Equity Rule 75 from maintaining any further action against them. The Court feels that this contention has merit, but choses to consider the case on the merits rather than on legal technicalities and it not basing its decision on Rule 75.
"The entire testimony considered, the Court is of the opinion that the acts of possession performed by the Respondents though they may have been sufficient to establish title against a non-record owner were not sufficient to reach the dignity of a [sic] open, clear, hostile, adverse claim against all the world sufficient to constitute adverse possession against a record title, and that their claim must fail as to that portion of the property to which a record title has been produced. The Court does find, however, that a four-fifths undivided interest in Lot 3, Block 6, Lots 8 and 9, Block 12, and Blocks 8, 9, 10, and 11 were not claimed by any of the Complainants in this action and that there appears to be no owner of record title to this property. The remaining one-fifth interest in these lots and blocks has been claimed by Complainant Hunt. The Court is, therefore of the opinion that as the Respondents have paid taxes on this unclaimed interest for the prescribed amount of time and exercised a certain amount of ownership that this unclaimed four-fifths interest should be awarded to the Respondents by virtue of adverse possession.
"It is therefore ordered, adjudged and decreed as follows:
"1. That the Woodlawn Addition of the City of Fort Payne, Alabama; the Liles Addition to the City of Fort Payne, Alabama, and the Southeast Quarter of the Southeast Quarter of Section 32, Township 6, Range 9 East of the Huntsville Meridian located in DeKalb County, Alabama, are one and the same tract of land consisting of *548 40 acres, more or less; and that said tract of land is hereby designated as the Woodlawn Addition to the City of Fort Payne, Alabama.
"2. That Complainant Richart Hunt is hereby declared to be the owner of Lots 1 through 14 of Block 1; Lots 1 through 18 of Block 3; Lots 1 through 16 of Block 7 of the Woodlawn Addition to the City of Fort Payne, Alabama, and he is declared to be the owner of a one-fifth undivided interest in Blocks 2, 4, 5, 6 and 8 through 12 of the Woodlawn Addition to the City of Fort Payne, Alabama.
"3. That the Complainants Dobbsie Gilbert and Nancy Kate Slaughter are each declared to be the owner of a two-fifths undivided interest in Lots 1 through 18 of Block 4 and Lots 1 and 2, and 4 through 16 of Block 6 of the Woodlawn Addition to the City of Fort Payne, Alabama.
"4. That Complainant Mrs. Willinette E. Gideon is declared to be the owner of a four-fifths undivided interest in Lots 1 through 16 of Block 5 of the Woodlawn Addition to the City of Fort Payne, Alabama.
"5. That the Complainants Lilly Fuller, Beulan Fuller, Josephine Fuller, Gertrude Fuller Owen and Fannie Fuller Nelson are each declared to be the owner of a two-fifteenth undivided interest in Lots 1 through 16 of Block 2, and Lots 1 through 7 of Block 12 of the Woodlawn Addition to the City of Fort Payne, Alabama.
"6. That Complainants Margaret F. Kelly and Davenport Fuller are each declared to be the owner of a one-fifteenth undivided interest in Lots 1 through 16 of Block 2, and Lots 1 through 7 of Block 12 of the Woodlawn Addition to the City of Fort Payne, Alabama.
"7. That Respondents W. E. Prestwood, W. D. Prestwood, May Brown, Edith Massey, C. D. Prestwood, Richard Prestwood and Robert Prestwood, are each declared to be the owner of an undivided four-thirty-fifth interest in Lot 3 of Block 6, Lots 8 and 9 of Block 12, and Blocks 8, 9, 10, and 11 of the Woodlawn Addition to the City of Fort Payne, Alabama.
"8. That the widow of W. W. Prestwood, Bessie Prestwood, has no interest in said property.
"9. That the Respondents to this action are hereby permanently enjoined from entering upon the land of the Complainants upon which they have no interest for the purpose of interfering with the Complainants' peaceful possession of land, or for the purpose of cutting timber on said land. On the land which the Respondents own an undivided interest the Respondents are enjoined from cutting timber on said land without permission of all cotenants."
It is from this decree that the respondents appealed. It is their contention on appeal that the decree of the trial court is wrong in the following particulars:
We are not quite certain what the appellants expect to take by some of these contentions. Suffice it to say that under the law in Alabama to divest the appellees as the holders of legal title to the land in question for many years, on a claim of adverse *549 possession, the appellants had the burden of showing actual, clear, definite, positive, notorious, open, continuous, adverse and exclusive possession of a definite tract under a claim of right for the time prescribed by law, and such possession is required to be shown by clear and convincing evidence. Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882; Walthall v. Yohn, 252 Ala. 262, 40 So. 2d 705.
We have read the evidence presented below. We cannot disagree with the trial court that the appellants failed to establish by the evidence title in themselves by adverse possession. Some witnesses testified that firewood had been cut from the land from time to time, others testified that it was known by reputation as Prestwood land, some testified that Prestwoods had grazed a few cattle on it from time to time. We do not think this testimony rises to the standard required to divest record title holders of land on the theory of adverse possession.
Here the appellants did not refute perfect record title in the appellees. They contended that their title by adverse possession was superior to that record title. Adverse possession becomes a perfect title on the theory that the true owner has by his own fault and neglect failed to assert his right against the hostile holding, but all presumptions and intendments are favorable to the title, and possessions are not presumed to be hostile thereto. White v. Williams, 260 Ala. 182, 69 So. 2d 847; Stewart v. Childress, 269 Ala. 87, 111 So. 2d 8.
We are also persuaded that the trial court's decree must be affirmed here on the principle that where the evidence is taken ore tenus, and is conflicting, every presumption is indulged in favor of the findings made below. There is nothing here to support a charge that the finding is palpably erroneous. On the contrary, there is overwhelming evidence in support of the trial court's finding, including its finding that the land involved was "wild land", that it is sometimes known by its "plat" name and is the same as the governmental survey designation.
Having carefully reviewed all of the evidence available to us, and we are without benefit of many charts and diagrams used by various witnesses below, we must conclude that the decree appealed from is due to be affirmed for the reasons we have stated.
Affirmed.
LIVINGSTON, C. J., and BLOODWORTH and McCALL, JJ., concur.
COLEMAN, J., concurs with result. | March 26, 1970 |
6c742743-6e0a-4cfe-9034-c8215efa14f3 | Cooper v. Providence Hospital | 130 So. 2d 8 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 8 (1961)
Howard J. COOPER, Adm'r,
v.
PROVIDENCE HOSPITAL.
1 Div. 870.
Supreme Court of Alabama.
March 2, 1961.
Rehearing Denied May 25, 1961.
Winston F. Groom, Mobile, for appellant.
Paul W. Brock, Hand, Arendall, Bedsole, Greaves & Johnston and Vincent F. Kilborn, Mobile, for appellee.
SIMPSON, Justice.
Plaintiff Cooper, as administrator of the estate of Calton S. Cooper, deceased, filed suit under the Homicide Act for the wrongful death of his intestate, caused by the alleged negligence of appellee in not exercising reasonable care, skill, and diligence in the care and treatment of the deceased while a patient for hire in appellee hospital, "and as a proximate consequence of said negligence of said defendant, said Calton S. Cooper was permitted to get up from his bed during the night unattended, and fell to the floor and suffered" various catalogued injuries "and as a proximate consequence thereof the said Calton S. Cooper died. * * *"
The burden, of course, was on the plaintiff to introduce evidence to prove each of the allegations of the complaint, and failing, the defendant would have been entitled to the affirmative charge without hypothesis. Stevens v. Deaton Truck Line, 256 Ala. 229, 54 So. 2d 464.
The plaintiff introduced several lay witnesses and three expert witnesses and rested his case. The defendant then also rested and moved for a directed verdict and requested the affirmative charge without *9 hypothesis. The trial court granted the motion, as well as the requested charge. Judgment was rendered accordingly and the plaintiff has brought this appeal.
The appellant argues that there was at least a scintilla of evidence to support the allegations of the complaint, even though the testimony of the experts showed without dispute that the plaintiff's intestate died of natural causes, and that therefore the case should have gone to the jury under the rule that the weight and value of opinion evidence is a question for the jury, citing: Beatty v. Palmer, 196 Ala. 67, 71 So. 422; Ross Neely Motor Exp. v. Robinson, 35 Ala.App. 431, 48 So. 2d 252, certiorari denied 254 Ala. 293, 48 So. 2d 254; Hosey v. Meadows, 29 Ala.App. 244, 194 So. 861. See also Pollard v. Treadwell, 234 Ala. 615(3), 176 So. 452; Provident Life & Accident Ins. Co. of Chattanooga, Tenn. v. Downey, 242 Ala. 482, 7 So. 2d 17; Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 153 So. 755.
These authorities, however, do not govern this case. The principle here controlling is well stated in Dorough v. Alabama Power Co., 200 Ala. 605, 607, 76 So. 963, 965:
To like effect is our recent case of White v. State ex rel. Fowler, 262 Ala. 694(4), 81 So. 2d 267, and authorities there cited.
The measure of duty owed by the defendant to the plaintiff's intestate was that degree of care, skill, and diligence used by the hospitals generally in the community and by the express or implied contract of the undertaking. Birmingham Baptist Hospital v. Branton, 218 Ala. 464, 118 So. 741; South Highlands Infirmary, Inc. v. Galloway, 233 Ala. 276, 171 So. 250. (We may interpolate there was no evidence of an express or implied contract with appellee for a higher degree of care to be accorded him than that provided a patient who receives the normal admission.)
With respect to the motion to exclude the evidence of the plaintiff, the trial court will never be put in error for refusing such motion, nor will it be placed in error for granting the motion if the evidence does not make out a prima facie case for the plaintiff. Riley v. Riley, 257 Ala. 636, 60 So. 2d 432. So, as observed in Stevens v. Deaton Truck Line, supra, we may lay aside consideration of the right of the defendant, vel non, for a directed verdict and proceed to a determination of whether the trial court ruled correctly in giving for defendant the affirmative charge without hypothesis.
We are left under no doubt that the ruling of the trial court was proper. The defendant introduced no evidence and the uncontradicted evidence of the plaintiff was that the defendant did exercise that degree of care, skill, and diligence used by hospitals generally in the Mobile area. This being so, he was bound by his own witness who testified to this effect. As observed in White v. State ex rel. Fowler, 262 Ala. at page 698, 81 So.2d at page 271:
Therefore, without the essential element of proof as to breach of duty by the defendant, the appellant has failed to make out a prima facie case of negligence as alleged in the complaint, and was not entitled *10 to have the evidence submitted to the jury.
Since the foregoing construction suffices to rescue the case from the alleged error, we pretermit consideration of the matter of causation and proximate result as argued by able counsel.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | March 2, 1961 |
edba9969-b7a1-4ae3-b84b-4d04056a4cbe | Myers v. Moorer | 134 So. 2d 168 | N/A | Alabama | Alabama Supreme Court | 134 So. 2d 168 (1961)
Joseph D. MYERS et al.
v.
M. L. MOORER et al.
1 Div. 767.
Supreme Court of Alabama.
March 23, 1961.
Rehearing Denied October 26, 1961.
*169 W. Dewitt Reams, S. R. Stephenson and Pillans, Reams, Tappan, Wood & Roberts, Mobile, for appellants.
Caffey, Gallalee & Caffey, Mobile, for appellee, Moorer.
McCorvey, Turner, Johnstone, Adams & May, Mobile, for appellee, Magnolia Petroleum Co.
COLEMAN, Justice.
This is an appeal by complainants from a final decree, granting the relief prayed for by respondents in their cross bill, in a suit whereby complainants seek to quiet title and to redeem from a tax sale.
The land involved is described as W½ of NW¼ of Section 14, in Township 1 North, of Range 3 West, in Mobile County. It appears to lie in the Citronelle oil field. There are no improvements on the land and it is unenclosed except for a fence which was erected either, as complainants contend, after suit was filed or, as respondents contend, a few days before such filing. The land is bounded on one side by the Russell Road and, prior to discovery of oil, was valuable chiefly for turpentine and timber.
Complainants are holders of the record title. Respondents claim under a deed from A. B. Jeffries who acquired under a tax sale. The parties agreed and stipulated as follows:
The contentions of complainants were expressed by counsel to the trial court as follows:
By the decree appealed from, the trial court denied complainants' right to redeem, dismissed their bill, and decreed that respondents are the owners of the land in suit and that complainants have no right, title, or interest therein.
As we understand the briefs of complainants, they contend on this appeal that the decree appealed from was in error because the evidence fails to show that respondents and their grantor, Jeffries, who purchased the tax title, have had three years of adverse possession such as will vest title in respondents under the short statute of limitations, § 295, Title 51, Code 1940.
Testimony was taken ore tenus and we are of opinion that it is sufficient to sustain a finding that respondents have had three years, or more, of adverse possession since Jeffries acquired his tax deed.
Jennie Brown, stipulated holder of the record title, conveyed to William F. Myers, now deceased, and his brother, Joseph D. Myers, by quitclaim deed dated March 18, 1932. H. W. Macon testified that under an agreement with "Myers. Mr. or Mrs. Myers. I don't know which it was," he, Macon, turpentined the land from 1933 to 1938.
William F. Myers died intestate in Savanna, Illinois, in 1939, leaving two children, Robert F. Myers and Edna Myers McKay. Joseph D. Myers, Robert F. Myers, Edna Myers McKay, and A. B. Case who holds deeds from Joseph D. and Robert F. Myers, are the complainants.
Joseph D. Myers testified in answer to interrogatories as follows: he is 59 years old and has lived in or near Savanna, Illinois, all his life; he visited Mobile once 23 years ago; he and William F. Myers never lived in or near Citronelle and the widow and children of William F. Myers never lived there; Joseph D. and William F. Myers paid taxes on the land, but Joseph D. does not believe they paid any taxes after 1938 and he did not remember whether they paid any taxes on the property since 1933; Joseph D. Myers first learned that oil had been found at Citronelle when A. B. Case went to see Joseph D. at Savanna, Illinois, in October, 1955; and Joseph D. Myers, for $50, executed a deed to Case dated "October 26, 1955," whereby Myers reserved to himself an undivided one-half interest in "the usual one-eighth royalty."
A deed from Joseph D. Myers to A. B. Case is in evidence and is dated October 25, 1955. A similar deed of same date from "Robert Myers" to Case for a recited consideration of $25 is also in evidence.
A. B. Case testified on cross-examination that he had been on the land once before he bought it, about a month before; that up to that time he did not know anything *171 about the property or who claimed it; that on November 9, 1955, the day this suit was filed, he had the land surveyed and assisted in making the survey; that making the survey occupied about three hours, from nine-thirty to twelve-thirty; that he put up about one-half dozen "No Trespassing" signs bearing his name, some in front and some in back of the property; and that he had since been on the land on one occasion to look at two stumps.
We have found in the record no other evidence tending to show any actual possession by any of the complainants since 1938. Clearly, on the evidence heard ore tenus, the court could, without error, find that complainants had no actual possession after 1938. We do not understand that complainants seriously contend that they were in actual possession after 1938.
Complainants appear to contend, however, that they had constructive possession as holders of the record title and that their constructive possession had not been ousted by actual possession on the part of respondents, as was held in Tensaw Land & Timber Company v. Rivers, 244 Ala. 657, 15 So. 2d 411.
As noted above, A. B. Jeffries acquired a tax deed in 1938. In 1941, he conveyed to the respondent, M. L. Moorer. The other respondent, Magnolia Petroleum Company, holds an oil lease from Moorer.
There was testimony which, if true, showed that, after acquiring his deed in 1938, Jeffries went on the land and cut timber thereon; that the respondent, Moorer, bought the land from Jeffries in 1941; that Moorer physically went on the land; that Moorer found "Posted" or "Keep Off" signs that had been placed around the land by Jeffries; that Moorer, by employees, turpentined the land for three years in 1942, 1943, and 1944; that 1,400 to 2,000 cups were placed on trees on the land in this operation; that Moorer had employees looking after the land and to keep trespassers off; that Moorer himself frequently went on the land; that in 1948 and 1949 Moorer had certain timber cut and instructed the party cutting to leave certain trees; that the party cutting the timber built a mule lot on the land in 1948 and signs of the lot are still there; that in 1948, Moorer executed a stump lease and the lessee removed stumps from the land under authority of the lease; that in 1953, Moorer sold pulpwood on the land and the purchaser cut and removed pulpwood under Moorer's authority; that in 1954, Moorer executed a right of way deed to the Alabama Power Company and the company erected a power line on the land under the deed; that in 1954 or 1955, Moorer authorized cutting of timber on the land and pine and hardwood were cut; that he gave permission to use the land for pasture and to hunt on it; that soon after he bought the land, he put up posted signs around the land and replaced them every 3 to 5 years; and that Moorer fenced the land a few days before this suit was filed after he had learned of the recording of the deeds to A. B. Case. It is stipulated that Jeffries and the respondents have paid all taxes on the land since 1938. There is no evidence that Moorer's title to the land was ever questioned before this suit was filed. Clearly no one other than Jeffries and Moorer have had actual possession since 1938.
We are of opinion that the evidence of the acts done on the land by respondents under claim of ownership during a period of seventeen years sustains a finding that respondents had adverse possession for more than three years after 1938. There is contradictory evidence which presented an issue of fact for the trial court to decide. That court heard testimony ore tenus and decided in favor of respondents. We cannot say that the decree appealed from is plainly and palpably wrong.
*172 In the answers of Joseph D. Myers and Lawrence A. Smith to interrogatories propounded to them, there are statements that from 1943 to 1947 one or both of the complainants, Robert F. Myers and Edna Myers McKay, were serving in the Armed Forces of the United States. Complainants argue that possession by Moorer was ineffective against the complainants, Robert and Edna, during their military service, and that respondents have failed to show three years of adverse possession since said military service terminated. See MacQueen v. McGee, 260 Ala. 315, 70 So. 2d 260.
We have not found in the bill of complaint any averment that these complainants were in military service. Proof without averment is an unavailing as averment without proof, Salmon v. Wynn, 153 Ala. 538, 45 So. 133; and proof without allegation cannot be considered, Shiland v. Retail Clerks, 259 Ala. 277, 66 So. 2d 146. Under this rule, we might properly disregard complainants' argument concerning the evidence of military service because that matter was not pleaded. We are of opinion, however, that respondents have shown adverse possession for three years or more after the military service terminated.
The decree of the circuit court is due to be and is affirmed.
Affirmed.
SIMPSON, STAKELY, and MERRILL, JJ., concur.
LIVINGSTON, C. J., and GOODWYN, J., dissent.
GOODWYN, Justice (dissenting).
It seems to me that the majority opinion might well lead to further confusion and doubt as to the proper procedure to be followed in a suit to quiet title under the provisions of Code 1940, Tit. 7, § 1109 et seq. I say this because no consideration is given to cases which I think have a direct bearing on the authority of the trial court to determine the title to be in the respondents when the complainants have failed to establish their peaceable possession of the lands. There are cases holding that a complainant's peaceable possession is essential to the maintenance of such a suit; that failure to establish such possession brings to an end any litigable controversy between the parties; and that the dismissal of the original bill carries with it a cross-bill which is not rested upon a special equity independent of the equity asserted in the original bill. See: McGowin v. Felts, 263 Ala. 504, 506, 83 So. 2d 228; Crump v. Knight, 250 Ala. 393, 396, 34 So. 2d 593; Price v. Robinson, 242 Ala. 626, 628, 7 So. 2d 568; Grayson v. Muckleroy, 220 Ala. 182, 186, 124 So. 217; Buchmann Abstract & Investment Co. v. Roberts, 213 Ala. 520, 521, 105 So. 675; Central of Georgia Railroad Company v. Rouse, 176 Ala. 138, 57 So. 706; Holland v. Coleman, 162 Ala. 462, 468, 469, 50 So. 128; Ladd v. Powell, 144 Ala. 408, 410, 39 So. 46; Tilley's Alabama Equity Pleading and Practice, § 237, p. 314.
As said in Crump v. Knight, supra [250 Ala. 393, 34 So.2d 595]:
In Price v. Robinson, supra, this court, after concluding that complainants did not have peaceable possession of the lands, had this to say [242 Ala. 626, 7 So.2d 570]:
From Grayson v. Muckleroy, supra, is the following [220 Ala. 182, 124 So. 220]:
As required by § 1109, Tit. 7, the original bill in this case alleged that complainants were in peaceable possession of the lands and that no suit was pending to test the title. The respondents (appellees), in answering the bill, denied that complainants were in peaceable possession and admitted that, at the time the bill was filed, no suit was pending to test the title. The answer, as required by § 1111, Tit. 7, set forth the basis of respondents' claim to ownership of the lands. Respondents then made their answer a cross-bill with a prayer that the court decree ownership of the lands to be in them. There is no allegation that respondents were in "peaceable possession." However, taking the allegations as a whole, the cross-bill probably is sufficient to show such possession. Nor does the cross-bill contain an allegation that, at the time of its filing, there was no suit pending to test the title.
The trial court decreed "that complainants are not entitled to relief on their bill of complaint as last amended and that the same should be and * * * is hereby dismissed with prejudice"; that "cross-complainant, M. L. Moorer, is the owner in fee simple" of the lands, subject only to an oil, gas and mineral lease to Magnolia Petroleum Company, one of the respondents and cross-complainants; and "that none of the complainants * * * has any right, title, or interest in, or any lien or encumbrance on, the said real property." The decree contains no factual findings. However, as appears from the majority opinion, there is evidence showing that complainants did not have peaceable possession. As I read the majority opinion, no conclusion is reached as to whether the cross-complainants were in peaceable possession but only that they have the superior title.
Since the complainants did not establish their peaceable possession, it is my view, on authority of the cases cited, supra, that dismissal of the original bill carried with it the cross-bill, as it was not based on an equity independent of the equity asserted in the original bill, that is, the statutory equity.
In this connection, the question arises whether a cross-bill alleging the statutory requirements of peaceable possession by a cross-complainant and of no suit pending to test the title can be a basis for relief under the statute. In other words, since such a cross-bill meets the requirements of the statute, why should not the cross-complainant be entitled to maintain his suit and have the title determined the same as if it were an original suit? The obvious answer is that the pleadings in the case affirmatively show that, at the time the cross-bill was filed, there was in fact a suit then pendingthe original suit brought by complainant testing the title. See: Floyd v. Andress, 246 Ala. 301, 305(5), 20 So.2d *174 331; Owen v. Montgomery, 230 Ala. 574, 576, 161 So. 816; Scott v. Scott, 211 Ala. 424, 425, 100 So. 755. As said in Floyd v. Andress, supra [246 Ala. 301, 20 So.2d 334]:
In Owen v. Montgomery, supra, it is said [230 Ala. 574, 161 So. 817]: "* * * While the cross-bill contains the essential allegation of no suit pending, yet such averment is to be viewed in the light of the proceedings and the purpose of the original bill therein answered, and so viewed discloses there is in fact a suit pending in which the title is involved. It is inconsistent with the entire proceedings, and, as pleading, must fall of its own weight. * * *"
This could well have been the reasoning behind the holding in Crump v. Knight, supra [250 Ala. 393, 34 So. 2d 596], that "the dismissal of the original bill carried with it the cross bill, as it was not rested upon any special equity independent of the equity asserted in the original bill."
If it should be held that the title can be determined in the statutory proceeding when the complainant fails to prove his peaceable possession, and no independent equity is involved, it would create, it seems to me, an illogical result. For instance, suppose the trial court should hold that the complainant does not have peaceable possession and consequently dismisses his bill, but nevertheless holds that the respondent has the superior title. The complainant then appeals to this court seeking a review of that holding. In our review suppose we conclude that the trial court was in error and that the complainant has the superior title. What would be our disposition of the case? In holding that the respondent does not have the superior title, would we not necessarily have to hold complainant's title to be superior? If that is so, would we reverse and remand the case for a new trial even though the complainant could not maintain his bill, because he was not in peaceable possession? Should we reverse the trial court and render a decree holding that the complainant has the superior title? If we do that would we not be holding that complainant can get relief even though his bill was properly dismissed? It seems to me that this would be a most illogical result. Should we reverse the trial court and render a decree simply holding that the trial court erred in decreeing the title to be in respondent? If that should be done the effect would be to hold that the complainant has the superior title, for the essence of the statutory proceeding is to settle the title as between the parties to the suit; in other words, to determine which has the superior title. Necessarily then, as between the parties, one or the other has the superior title. To hold that the respondent does not have it would be to hold that the complainant does. But the complainant cannot get relief even though the court has decided he has the superior title because, as already noted, he has failed to establish his peaceable possession as required by the statute. Can it be said, with any degree of logic, that the legislature intended any such results? Clearly not, it seems to me.
Another situation comes to mind. It has been held repeatedly that a contested, disputed, or scrambling possession will not support a suit to quiet title under the statute. McGowin v. Felts, 263 Ala. 504, 83 So. 2d 228, supra, and cases there cited; Walthall v. Yohn, 252 Ala. 262, 40 So. 2d 705, and cases there cited; Price v. Robinson, 242 Ala. 626, 7 So. 2d 568, supra, and cases there cited. Suppose there is a *175 scrambling possession. Clearly, the complainant's bill could not be sustained and should be dismissed. In that situation, on what basis would the trial court be authorized to proceed to a determination of the title as between the parties (there being involved no equity independent of the statutory equity)? Even if the respondent should seek relief by a cross-bill setting up the statutory equity, there would be a failure to establish his peaceable possession, which is one of the statutory essentials for maintenance of such a bill. Surely, if complainant could not maintain his bill due to failure to establish his peaceable possession, the respondent, failing to establish such possession in himself, could not maintain his cross-bill.
Another situation concerns the determination of title when neither party is in the actual possession of the lands. The statute (§ 1109, Tit. 7) provides that the peaceable possession may be either "actual or constructive." If there is no actual possession, the required "peaceable possession" under the statute rests with the holder of the legal title. Walthall v. Yohn, 252 Ala. 262, 40 So. 2d 705, supra; Ex parte Proctor, 247 Ala. 138, 22 So. 2d 896; Brunson v. Bailey, 245 Ala. 102, 16 So. 2d 9; Shannon v. Long, 180 Ala. 128, 60 So. 273; George E. Wood Lumber Co. v. Williams, 157 Ala. 73, 47 So. 202. So, if it should be determined that the complainant has the legal title (no one being in actual possession) then he would have the constructive peaceable possession, which would be sufficient under the statute. In that situation the suit could be maintained the same as if complainant had established his actual peaceable possession. On the other hand, if it be determined that the respondent has the legal title then he would have the constructive peaceable possession, thus denying to complainant the right to maintain his suit. In that circumstance, the status of the proceedings would be identically the same as if the evidence had established that the respondent, and not the complainant, was in the actual peaceable possession. The effect of determining the title in that situation has been discussed above.
No doubt the able Justices of this Court who participated in the decisions cited above gave consideration to these practical results, and there may well be other results not here noted producing similar dilemmas. I am convinced those holdings are in accord with the legislative purpose and intent, that they are logical and sound, and should be applied in this case.
It should be remembered that we are dealing here with a proceeding which is cognizable in equity only by virtue of a statute. It might be that such statute should be revised to make it unnecessary for the complainant to have peaceable possession of the lands in order to maintain a suit to quiet title thereunder, as has been done when the state is a complainant. See Section 1115, Tit. 7, Code 1940. Too, it can be argued, with some merit, that a respondent, being brought into court, should be permitted to have his title determined in such proceeding even though the complainant fails to establish his peaceable possession. But in the light of the statute as presently written and the foregoing authorities dealing with it, it seems to me that the legislature has purposely restricted the maintenance of such a suit to instances where the complainant is in peaceable possession and no suit is pending to test the title. If there is to be a broadening of proceedings under the statute, it should be done by the legislature and not by this court.
I feel that the question of the authority of the trial court to determine the title in favor of the respondents is one going to the jurisdiction of that court which should be affirmatively disposed of in this case. The cases holding that there is a lack of jurisdiction to determine the title should either be applied or overruled. Only in this way can the bench and bar of this state know what course to follow in the disposition *176 of similar cases. The question should be met and settled. The fact that the parties have not raised the question cannot operate to confer jurisdiction.
For the foregoing reasons, I respectfully dissent.
LIVINGSTON, C. J., concurs in the above dissent.
COLEMAN, Justice.
On original deliverance, the decree appealed from was affirmed. The dissenting opinion raised questions which had not been discussed or considered in the opinion of the court. To consider the questions raised by the dissenting opinion, the cause was placed on rehearing by application of the writer before the end of the term at which decision was rendered. Appellees have filed a motion to strike the cause from the rehearing docket and have filed a brief in support of the motion.
As we understand the brief, appellees concede that this court, acting by a majority of the justices, may, during the term at which a decision was rendered, place a cause on rehearing, but vigorously assert that a single justice cannot do so.
The opinions indicate that the cause was placed on rehearing by a single justice in the following cases: Alabama Company v. Brown, 207 Ala. 18, 92 So. 490; First National Bank of Brantley v. Standard Chemical Company, 226 Ala. 509, 147 So. 682; Hendley v. First National Bank of Huntsville, 235 Ala. 664, 180 So. 667; Trailmobile, Inc. v. Connell, 268 Ala. 441, 108 So. 2d 364.
The docket entry in the instant case recites as follows:
"June 26, 1961 Cause Placed On Rehearing, Coleman, J. * * *"
Appellees say the foregoing entry does not evidence action by the court sufficient to place the cause on rehearing.
The corresponding docket entry in Alabama Company v. Brown, supra, found in Appearance Docket, Book 72, page 193, recites:
"Oct 29 1921 Restored to Rehg Docket, order Thomas, J."
Except for the date and name of the justice, the docket entry is substantially the same in each of the other three cases last cited above. It appears that the practice of placing a cause on rehearing on application of a single justice has long been followed, although it has been followed sparingly.
We agree that, so far as we are advised, no order reversing or modifying a decision of this court can be made by a single justice in the absence of statute or rule so providing. To apply for rehearing is not, as it seems to us, to reverse or modify, and, while a single justice may not reverse or modify, he may, during the term, apply to the court to do so.
So far as we are advised, the authority of a single justice to apply for rehearing as was done in the case at bar has not before been questioned in this jurisdiction. Precedent of long standing supports the exercise of the authority. We are of opinion that appellees' motion to strike should be overruled. It is so ordered by the court.
The dissenting opinion advocates a holding to the effect that in a statutory suit to quiet title under Title 7, § 1109 et seq., Code 1940, in the absence of a cross bill resting on an independent equity, the court does not have jurisdiction to declare that respondent has superior title if the evidence fail to support a finding that complainant was in peaceable possession at the commencement of the suit. The holdings in the cases cited in the dissenting opinion fall into eight categories:
1st. Cases where a decree for complainant was reversed and a decree rendered *177 dismissing the bill of complaint because the evidence showed that complainant's possession was not peaceable but was disputed or scrambling, to wit: Ladd v. Powell, 144 Ala. 408, 39 So. 46; Holland v. Coleman, 162 Ala. 462, 50 So. 128; Central of Georgia R. Co. v. Rouse, 176 Ala. 138, 57 So. 706; Buchmann Abstract & Investment Co. v. Roberts, 213 Ala. 520, 105 So. 675; McGowin v. Felts, 263 Ala. 504, 83 So. 2d 228.
2nd. Cases where a decree quieting title in respondent was reversed and decree rendered dismissing the bill or so much of decree of circuit court as undertook to quiet title in respondent was eliminated from the decree, because the evidence showed that complainant's possession was scrambling or the evidence failed to show that it was peaceable, to wit: Price v. Robinson, 242 Ala. 626, 7 So. 2d 568; Crump v. Knight, 250 Ala. 393, 34 So. 2d 593.
3rd. Cases where a decree denying relief to complainant and dismissing bill was reversed and a decree was rendered quieting complainant's title because the evidence showed that complainant had peaceable possession at the commencement of the suit and also held the better title, to wit: George E. Wood Lumber Co. v. Williams, 157 Ala. 73, 47 So. 202; Walthall v. Yohn, 252 Ala. 262, 40 So. 2d 705.
4th. Cases where a cross bill was not sustained as a statutory bill to quiet title because the original bill was a prior suit pending, to wit: Scott v. Scott, 211 Ala. 424, 100 So. 755; Owen v. Montgomery, 230 Ala. 574, 161 So. 816; Floyd v. Andress, 246 Ala. 301, 20 So. 2d 331.
5th. Statutory action of ejectment in which the nature of a statutory suit to quiet title is discussed, but which holds that defendant was entitled to the affirmative charge under § 3107, Code 1923; § 295, Title 51, Code 1940; to wit: Grayson v. Muckleroy, 220 Ala. 182, 124 So. 217.
6th. Case holding that plea of res judicata was correctly sustained and that plea in abatement was sufficient where amendment to bill and the ruling sustaining the plea worked an entire change of parties complainant, to wit: Ex parte Proctor, 247 Ala. 138, 22 So. 2d 896.
7th. Case holding that demurrer to a bill filed by landlord against tenant, to quiet title and redeem from tax sale, was correctly overruled, to wit: Brunson v. Bailey, 245 Ala. 102, 16 So. 2d 9.
8th. Case holding that general demurrer for want of equity, to bill filed by executor of landlord against tenant, was correctly overruled, to wit: Shannon v. Long, 180 Ala. 128, 60 So. 273.
The cases in the 1st category are reversals of decrees for complainants. The decree now under review is a decree quieting title in respondents. Because of this difference, the 1st category cases do not control the instant case.
The decisions in the 3rd category rest on an interpretation of evidence to the effect that complainant had proved that he had both peaceable possession and legal title. The evidence in the case at bar does not support such a conclusion.
The cases in the 4th category hold that a cross bill resting solely on the statute is without equity because the original bill is a pending suit in which the title could be enforced or tested. We do not think a cross bill is necessary for a decree declaring that respondent has superior title or that the cases in the 4th category throw any light on the instant problem.
The case in the 5th category, Grayson v. Muckleroy, supra, contains much discussion of suits to quiet title but the action is ejectment and the decision rests on the short statute of limitations, so that holding is of no assistance here. We do not think the cases in the 6th, 7th, or 8th categories are of any assistance in the instant case.
There remain to be considered the two cases in the 2nd category. Without questioning the soundness of Price v.
*178 Robinson, supra, we think it can be distinguished from the case at bar with respect to the possession shown by the evidence. In Price v. Robinson, the opinion states that the acts of respondents were sufficient to make complainants' possession a scrambling one. In the case at bar, the complainants' possession at the filing of the suit was not scrambling. Complainants simply had no possession at all. The only acts of possession shown to have been done by any of the complainants during the seventeen years next preceding the filing of the bill of complaint in the instant suit were going on the land on the day suit was filed for about three hours, putting up "No Trespassing" signs, and assisting in a survey. Merely going upon lands which are at the time in the actual possession of another, and claiming title thereto and warning such other 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. The acts done by complainants in the case at bar did not constitute possession by complainants nor oust the possession of respondents. We are of opinion that the evidence supports a finding that respondents were in actual peaceable possession when the instant suit was filed. In that respect the instant case differs from Price v. Robinson, supra, where the possession was scrambling.
In Crump v. Knight, supra, the opinion suggests that the possession may have been scrambling, but does not expressly so state. If the possession was scrambling, then what we have said with respect to Price v. Robinson, supra, applies also to Crump v. Knight. If the possession was not scrambling, then Crump v. Knight is contrary to the instant decision and must be overruled.
The cause of the difficulty is the statement to the effect that failure to prove that complainant was in peaceable possession "destroys the jurisdiction" of the court. Statements to that effect are found in: Buchmann Abstract & Investment Co. v. Roberts, supra; Grayson v. Muckleroy, supra; McCaleb v. Worcester, 224 Ala. 360, 363, 140 So. 595; Price v. Robinson supra; Crump v. Knight, supra; McGowin v. Felts, supra; Mettee v. Bolling, 266 Ala. 50, 52, 94 So. 2d 191. In only two of these last cited cases, i. e., Price v. Robinson and Crump v. Knight, was a decree quieting title in the respondent reversed. The statement first appears, so far as we are advised, in the Buchmann Abstract case, where this court said:
While it is established that a complainant in a statutory bill to quiet title, who fails to prove his peaceable possession, thereby fails to sustain the equity of his bill and is not *179 entitled to relief, the cases cited in support of the assertion in the Buchmann case do not hold that where complainant fails to prove his peaceable possession the court is without jurisdiction to quiet the title of the respondent. In Ladd v. Powell, the decree appealed from and reversed by this court was a decree declaring that respondents had no title. The decree in Crabtree v. Alabama Land Co., supra, was to the same effect and was also reversed.
The decree appealed from in Randle v. Daughdrill, supra, also was a decree deciding that complainants were entitled to the land. This court reversed as to the respondent who had shown some possessory acts such as would defeat the peaceable possession of complainants, but this court affirmed the decree as to two respondents who had suffered a decree pro confesso to be rendered against them. Apparently, this court did not regard the failure to prove complainants' peaceable possession as destroying the jurisdiction of the court as to those two respondents because the decree was affirmed as to them, and to affirm a decree is to hold that it is not void. Vaughan v. Vaughan, 267 Ala. 117, 100 So. 2d 1; Capps v. Norden, 261 Ala. 676, 75 So. 2d 915.
In Donohoo v. Smith, supra, this court affirmed a decree dismissing the bill and denying relief to complainant.
The cases cited in the Buchmann case do support the proposition that a complainant who fails to prove his peaceable possession is not entitled to have his title declared superior to that of respondent, but the cited cases do not hold that the title of a respondent shown to be in peaceable possession cannot be quieted in him, or that the court lacks jurisdiction to render a decree declaring that respondent has superior title. The Buchmann case itself does not hold that the court lacks jurisdiction to render a decree declaring that a respondent shown to be in peaceable possession has superior title. The Buchmann case holds merely, in accord with the cases there cited, that a complainant who fails to prove his peaceable possession is not entitled to a decree quieting the title in him.
As noted in Adler v. Sullivan, 115 Ala. 582, 22 So. 87, the Alabama statute, Title 7, § 1109 et seq., was taken from a similar statute in New Jersey. The procedure in Alabama, however, has developed along lines different from those followed in New Jersey. It appears that in New Jersey, where respondent denies "the jurisdictional facts of peaceable possession by the complainant * * *.," the settled practice is that the court "will try in the first instance the issue of jurisdiction thus presented, and will not go into the question of the respective titles of the parties until the jurisdictional question has been decided," and "If the court decided the issue so presented in favor of the defendant, that would be the end of the controversy. If the court, however, found against the defendant on this issue * * * the defendant would file his affirmative pleading * * * setting forth his title or claim, and thereafter the proceeding would follow as above indicated." Under the New Jersey practice, respondent's answer is split in two. The court first tries the "jurisdictional question" and if the result is not adverse to complainant, the court holds a further final hearing in which that part of the answer which sets up the title of respondent is for the first time noticed and disposed of. Fittichauer v. Metropolitan Fire Proofing Co., 70 N.J.Eq. 429, 61 A. 746, 747. In Alabama the question of complainant's peaceable possession, if denied by respondent, and also the issue of which party has superior title, are presented together in one trial.
There are at least two Alabama cases which indicate that respondent's title may be declared superior, although the evidence failed to support the "jurisdictional" averment that complainant was in peaceable possession when the suit was commenced. Those two cases are the two next cited.
In Vandegrift v. Southern Mineral Land Co., 166 Ala. 312, 51 So. 983, 984, the trial court rendered a decree adjudging that *180 complainant owned the mineral and that respondents owned a mere surface interest. There was no cross bill. The opinion, citing Randle v. Daughdrill, supra, recognized the rule that under the statute, complainant must have peaceable as distinguished from scrambling possession. The opinion states that complainant did not show actual possession, that the evidence shows that respondents were in actual possession of the land when the bill was filed, and that the presumption is that one who has possession of the surface has possession of the subsoil also. The opinion states: "The complainant cannot maintain this bill as to the land in question, for the reason that it was not in possession of the surface or the mineral when the bill was filed." This court, however, proceeded to reverse the decree in so far as it adjudged complainant owner of the minerals and to render a decree adjudging the respondents the absolute owners, as against complainant, of all the lands in which they were decreed to have a mere surface interest. It is difficult, if not impossible, to reconcile the Vandegrift decision with the proposition that lack of peaceable possession in complainant deprives the court of jurisdiction to declare that a respondent in peaceable possession has a title superior to that of a complainant who had no possession.
In Rucker v. Jackson, 180 Ala. 109, 60 So. 139, the bill of complaint alleged that complainants owned the land and were in possession of same. Respondent, by his answer, claimed the minerals and denied that complainants owned or were in possession of the land. There was no cross bill. The trial court rendered a decree declaring that respondent had no title to the minerals and that the minerals were the property of complainants. On appeal, the decree was reversed and a decree rendered declaring that title to the minerals was in the respondent. The opinion states:
Thus it appears that complainants' lack of both actual and constructive peaceable possession of the minerals did not deprive the court of jurisdiction to declare that respondent had superior title to the minerals.
The doctrine of estoppel suggests another reason why we should not hold that lack of evidence of peaceable possession in complainant requires reversal of a decree declaring that respondent has superior title. Complainant has chosen the arena in which to contest the rights of respondent and has represented to the court that he, the complainant, has peaceable possession. By making this representation he has given equity to his bill and has compelled respondent to prove his claim. It would be inequitable to permit complainant, after he has lost in the trial court, to assume an inconsistent position on appeal and say that because he lacked peaceable possession the decree against him cannot stand. In fairness to the instant complainants, we note here that they have not attempted to take such an inconsistent position. It would further appear that the appellate court should not be compelled, on its own motion, to give complainant the benefit of an inconsistent position which, in equity, he ought not to be permitted to assume for himself.
No question of disputed or scrambling possession is presented in the instant case.
*181 Because it is unnecessary, we do not decide what the result should be where the decree quiets title in respondent and the possession is shown by the proof to be scrambling. See: Chestang v. Tensaw Land & Timber Co., Inc., Ala.Sup., 134 So. 2d 159.
We do decide that when the evidence shows, as it does here, that respondent has peaceable possession and also has superior title, a decree so declaring, which is rendered on a statutory bill and answer, will not be reversed on the ground that the court lacked jurisdiction to render the decree. Anything to the contrary which may be found in Price v. Robinson, Crump v. Knight, or other cases, is disapproved and will not be followed.
The decree here appealed from dismissed the bill and granted the relief prayed for in the cross bill. The cross bill was unnecessary because respondents could have their title determined on the bill and answer. Collier v. Alexander, 138 Ala. 245, 36 So. 367; Vandegrift v. Southern Mineral Land Co., supra; Hinds v. Federal Land Bank of New Orleans, 235 Ala. 360, 179 So. 194. Moreover, the cross bill contains no independent equity, fails to allege that cross-complainants are in peaceable possession, and fails to allege that no suit is pending to test the title. As in Collier v. Alexander, supra, the decree, in ordering a dismissal of complainants' bill, was irregular, and in this respect will be corrected. It is upon bill and answer that the decree fixing the status of the title is based. The decree as corrected will be affirmed.
Motion overruled.
Opinion extended.
Rehearing overruled.
LAWSON, SIMPSON, STAKELY and MERRILL, JJ., concur.
LIVINGSTON, C. J., and GOODWYN, J., concur in overruling the motion to strike, but dissent as indicated in the opinions of GOODWYN, J.
GOODWYN, Justice (dissenting).
I find no case specifically holding that the title to land can be quieted under the provisions of Code 1940, Title 7, § 1109 et seq., when complainant does not have the "peaceable possession" of such land. True, as shown by the majority opinion, there are cases in which title was quieted although complainant did not have such possession. But in those cases the jurisdictional question was not directly dealt with or discussed. On the other hand, cases referred to in the dissenting opinion on original deliverance specifically and unequivocally hold that complainant's peaceable possession goes to the jurisdiction of the court. I would follow these cases rather than those indicating sub silentio a contrary holding.
LIVINGSTON, C. J., concurs. | March 23, 1961 |
bb8418d1-3aee-49ed-be4f-589cec47df77 | Allman v. Beam | 130 So. 2d 194 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 194 (1961)
John C. ALLMAN
v.
Lydia Lee BEAM.
6 Div. 280.
Supreme Court of Alabama.
May 11, 1961.
*195 Mead & Norman and Marshall H. Fitzpatrick, Birmingham, for appellant.
Bryan Chancey, Birmingham, for appellee.
LIVINGSTON, Chief Justice.
This appeal is from a judgment of the Circuit Court of Jefferson County, Alabama, Bessemer Div., in a suit claiming damages for personal injuries. There was a verdict and judgment in favor of plaintiff for $1,500.
The complaint contained only one count, and that for simple negligence, to which defendant entered a plea in short by consent. As a defense, the defendant in the court below relied on contributory negligence of the appellee.
It is undisputed that the appellee was going to work on the morning of the 9th day of November, 1956, at about 6:30 a. m., and was proceeding along the highway on the right side in the direction in which she was going, and that the appellant proceeding in the same direction came up behind her and struck her with his automobile. The evidence is also undisputed that there were no sidewalks on her side of the highway at the point in question, that the weeds and grass had grown up to the paved portion of the roadway, and that there were rocks and stones along both sides.
Title 36, Sec. 58(19)(b), Code of 1940, provides as follows:
Appellant contends that the appellee was proceeding along the wrong side of the road when she was struck and was therefore, guilty of contributory negligence as a matter of law, which bars her recovery.
We see no need to set out the evidence, indeed there is little conflict in it in its material aspects. It is ample to raise a jury question as to whether or not the appellant was initially negligent.
A motorist must exercise due care to anticipate the presence of others on the highway, and not to injure them upon becoming aware of their presence, and and is chargeable with the knowledge of what a prudent and vigilant operator would have seen, and is negligent if he fails to discover a traveler or pedestrian whom he could have discovered in time to avoid the injury in the exercise of reasonable care. Harbin v. Moore, 234 Ala. 266, 175 So. 264; Peoples v. Seamon, 249 Ala. 284, 31 So. 2d 88. And this is so regardless of which side the highway the pedestrian or traveler is walking, whether facing oncoming traffic or with his back to traffic. Ivy v. Marx, 205 Ala. 60, 87 So. 813, 14 A.L.R. 1173. Regardless of appellee's position on the highway, she was no trespasser and the appellant was under a duty to keep a lookout for those also using the highway, each owing the other the duty to exercise reasonable care. Harbin v. Moore, supra.
Appellant testified, in substance, that the sun blinded him through his windshield just *196 before he struck the appellee. The roadway where appellee was injured runs in an easterly-westerly direction.
Appellant's motion for a new trial was overruled. One ground of the motion for a new trial was supported by an affidavit of a juror that sometime during the progress of the trial the jury was allowed to separate and spend the night at their homes; that said juror took his automobile out to the place of the accident and tested distances, etc., and as to how quick he could stop his automobile under certain circumstances, and that the juror told the other jurors after they had assembled the next morning, and before the verdict was rendered, about his experiment.
There were eight assignments of error. So far as we are advised and so far as our research has disclosed, there is no case in this jurisdiction construing Sec. 58(19)(b) of Title 36, Code of Alabama 1940. We do have cases construing municipal ordinances which discuss and decide analogous questions.
We will discuss the assignments of error in the order in which they are assigned.
Assignments of error 1 and 2 are based on the court's refusal to give, at the written request of appellant, charges 1 and 2 which are the general affirmative charges without hypothesis. Assignments of error 3 and 4 are based on the trial court's refusal of charges 3 and 4 which are general affirmative charges with hypothesis.
Conceding arguendo the appellant's contention that the plaintiff's violation of the statute at the time she was injured renders her guilty of negligence, nevertheless the question of causation must be determined in order to test the propriety of giving or refusing charges 1, 2, 3 and 4.
It was stated in Simpson v. Glenn, 264 Ala. 519, 88 So. 2d 326, 327, that:
See Murphree v. Campbell, 266 Ala. 501, 97 So. 2d 892; also Saddler v. Parham, Ky., 249 S.W.2d 945; Donaho v. Large, 25 Tenn.App. 433, 158 S.W.2d 447; Lemons v. Holland, 205 Or. 163, 284 P.2d 1041, 286 P.2d 656; Flaumer v. Samuels, 4 Wash. 2d 609, 104 P.2d 484; Anderson v. Holsteen, 238 Iowa 630, 26 N.W.2d 855; Hutcheson v. Misenheimer, 169 Va. 511, 194 S.E. 665; Miller v. Lewis & Holmes Motor Freight Corp., 218 N.C. 464, 11 S.E.2d 300; Brown v. Wilson, 6 Cir., 209 F.2d 151, and Panzer v. Hesse, 249 Wis. 340, 24 N.W.2d 613.
We are clear to the conclusion from our cases, and those better-reasoned cases from other jurisdictions, that the violation of a statute designed for the protection of a person claiming to have been injured by reason of such violation, is negligence per se, or negligence as a matter of law. But we are also clear to the conclusion that such conduct on the part of a pedestrian will not in itself prevent recovery on the ground *197 of contributory negligence if the violation of the statute is not a contributing cause of the injury. It is generally agreed that the question as to whether the violation was a proximate contributing cause of the injury is for the jury.
The general result of the authorities seems to be, that if the plaintiff, or party injured, by the exercise of ordinary care under the circumstances, might have avoided the consequences of the defendant's negligence, but did not, the case is one of mutual fault, and the law will neither cast all the consequences upon the defendant, nor will it attempt any apportionment thereof.
It was said in Carter v. Chambers, 79 Ala. 223, that:
On the issue of causation, the facts and circumstances of a particular case may be so nicely balanced that reasonable minds might differ, when this is so, the issue is one for the jury.
The trial court did not err in refusing written requested charges 1, 2, 3 and 4.
Assignments of error 5 and 6 are not argued in brief by appellant, and are, therefore, considered waived. Supreme Court Rule 9.
Under assignment of error 7 it is argued that the verdict of the jury was contrary to appellant's given instruction 6. Only adverse rulings of the trial court are subject to an assignment of error and reviewable on appeal. Clark v. Hudson, 265 Ala. 630, 93 So. 2d 138; King v. Jackson, 264 Ala. 339, 87 So. 2d 623; Mulkin v. McDonough Construction Co. of Georgia, 266 Ala. 281, 95 So. 2d 921. Moreover, the verdict of the jury is not necessarily contrary to appellant's given charge No. 6. The jury could have found that the plaintiff's negligence was not a proximate contributing cause to her injury.
Assignment of error No. 8 is based on the trial court's action in overruling appellant's motion for a new trial. Appellant argues ground No. 6 in his motion for a new trial to the effect that the verdict of the jury and the judgment entered thereon were contrary to the great weight and preponderance of the evidence in the case. It is unnecessary to detail the evidence. We have considered it carefully. The trial court heard the witnesses, saw and observed their demeanor from the witness stand, and was much more advantaged *198 than are we to judge the weight of the evidence, and his overruling that ground of the motion strengthens the verdict on appeal. Cobb v. Malone, 92 Ala. 630, 9 So. 738.
The other grounds of the motion for a new trial argued in brief are based on the unauthorized viewing of the scene of the accident by Roy Blackerby, one of the jurors, as stated above. There was attached to the motion for a new trial, in support of these grounds, the affidavit of said juror. There was also a counter affidavit of this juror to the effect that his view of the premises and experiment had no influence on his verdict. Affidavits of the other eleven jurors were introduced on the hearing of the motion for a new trial. Each juror affirmed that what Blackerby told them about his visit to the scene of the accident had no influence on their verdict.
This court has consistently held that such conduct on the part of a juror is improper and should be guarded against with diligence. However, for such conduct to work a reversal, there are other considerations which must be taken into account before the trial court can be put in error for its failure to grant a motion for a new trial based on such ground.
One matter which will be carefully scrutinized is the effect the unauthorized view had on the outcome of the case. It is the general rule in Alabama, as well as elsewhere, that affidavits of jurors will not be accepted for the purpose of impeaching their own verdict. Gulf States Steel Co. v. Law, 224 Ala. 667, 141 So. 641; Weekley v. Horn, 263 Ala. 364, 82 So. 2d 341.
It was held in the Weekley case, supra, and cases therein cited, that the general rule is subject to an exception, the exception being that the affidavits tend to show that there were extraneous facts brought before the jury and such extraneous facts influenced the verdict.
We have carefully examined the affidavits offered to sustain the verdict. We do not think that the unauthorized view of the premises and the experiment by Blackerby had any influence on the verdict in this case. Moreover, the trial court was of the same opinion as evidenced by his action in overruling appellant's motion for a new trial.
The cause is due to be, and is, affirmed.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur. | May 11, 1961 |
4a426350-b25b-46dc-bc4d-a5ce102b26f2 | Tri-State Corporation, Inc. v. State | 128 So. 2d 505 | N/A | Alabama | Alabama Supreme Court | 128 So. 2d 505 (1961)
TRI-STATE CORPORATION, INC. et al.
v.
STATE of Alabama ex rel. MacDonald GALLION, Attorney General.
3 Div. 914.
Supreme Court of Alabama.
March 30, 1961.
*506 Hamilton, Denniston, Butler & Riddick and Van Antwerp & Rector, Mobile, for appellants.
MacDonald Gallion, Atty. Gen., Willard W. Livingston, Nicholas S. Hare, Jos. D. Phelps and Robt. M. Hill, Jr., Asst. Attys. Gen., for appellee.
LIVINGSTON, Chief Justice.
This is an appeal from a decree of the Circuit Court of Montgomery County, Alabama, in Equity. The original bill of complaint was filed on December 24, 1958, by appellee, the State of Alabama ex rel. John Patterson, as Attorney General of the State of Alabama.
The following are named as respondents: Robert Folsom, Individually and as Director of the Department of Conservation of the State of Alabama; James E. Folsom, Individually and as Governor of the State of Alabama; the Tri-State Corporation, Inc., an Alabama Corporation; George Trawick, a nonresident of the State of Alabama; James L. Segrest, Individually and as Chief of the Division of State Parks, Monuments, and Historical Sites of the Department of Conservation of the State of Alabama.
The bill of complaint seeks to have a lease contract by and between the State of Alabama, as lessor, and the appellant, Tri-State Corporation, Inc. (hereinafter called Tri-State), as lessee, rescinded, set aside, cancelled and held for naught. A copy of *507 this lease and a copy of the amendment thereto are attached to and made a part of the bill of complaint as Exhibits "A" and "B." The bill of complaint further seeks to have a sublease by and between the Tri-State Corporation, Inc., as sublessor, and one George Trawick, as sublessee, covering a portion of the premises leased by the Tri-State Corporation, Inc., from the State of Alabama, rescinded, cancelled, set aside and held for naught. A copy of said sublease is attached to the bill of complaint and made a part thereof as Exhibit "D." The bill of complaint also seeks an accounting between Tri-State Corporation and the State of Alabama.
In addition to the relief sought by the bill of complaint upon final hearing of this cause, as set out above, the bill prayed that the court would issue a temporary injunction enjoining, restraining and prohibiting the respondents, their agents, servants, employees, successors in office, sublessees, subcontractors, and all other officers, employees of the State of Alabama, and all other persons in active participation with said respondents from entering into any sublease or subcontract or other agreement covering the leased premises, or any portion thereof, or performing any acts thereon in furtherance or in accordance with said agreement until further order of the court; and, second, enjoining all of said respondents below from modifying, altering or in any way changing the aforesaid lease agreements, or entering into any subsequent lease, or sublease, or subcontract covering the premises described in the aforesaid lease and sublease until the further orders of the court. The original bill of complaint is verified by John Patterson.
On the date the bill of complaint was filed, December 24, 1958, the Circuit Court of Montgomery County, Alabama, issued a temporary restraining order and injunction as prayed for in the bill of complaint.
On January 28, 1959, the respondents, Tri-State Corporation, Inc., and George Trawick filed demurrers to the bill of complaint. These demurrers were amended on May 1, 1959. On the 29th day of January, 1959, James L. Segrest filed demurrers to the bill of complaint, and on the 5th day of May, 1959, these demurrers were also amended.
On April 3, 1959, Tri-State Corporation, James L. Segrest and George Trawick filed their answer to the bill of complaint.
On May 25, 1959, by consent of the parties, MacDonald Gallion, Attorney General of the State of Alabama, was substituted as complainant for John Patterson, as Attorney General of the State of Alabama, Patterson having become the Governor of Alabama on the 19th day of January, 1959, and MacDonald Gallion having become the Attorney General of the State of Alabama on the same date. On the same date, complainant moved the court to strike James E. Folsom and Robert Folsom, both individually and in their official capacity, as parties respondent. This motion was apparently not ruled on by the court.
On the 29th day of May, 1959, the Tri-State Corporation, James L. Segrest and George Trawick, separately and severally, moved the court to discharge the temporary injunction and also moved to dissolve said injunction issued in said cause on, to wit, December 24, 1958.
On November 12, 1959, on motion of the complainant and agreement of the parties, William C. Younger, Individually and as Director of the Department of Conservation, was substituted for Robert Folsom, Individually and as Director of the Department of Conservation; and John Patterson, Individually and as Governor of the State of Alabama, was substituted for James E. Folsom, Individually and as Governor of the State of Alabama, in the bill of complaint as parties respondent. On the same date, William C. Younger and John Patterson filed an answer accepting service of the bill of complaint and admitting the allegations thereof; consented to the temporary injunction theretofore issued in said cause, and joined in the prayer of the bill of complaint.
*508 On November 12, 1959, the cause was submitted and heard by the trial court on the bill of complaint as amended, temporary injunction theretofore decreed by the court, the motion to discharge and motion to dissolve the injunction, motion to strike portions of the bill, amended demurrer to the bill and sworn answer of the respondents, together with sworn affidavits of the complainant and respondents.
On the 13th day of January, 1960, the court entered a decree denying the motion to discharge and the motion to dissolve the temporary injunction; granted respondents' motion to strike portions of the bill of complaint; and overruled the amended demurrers of respondents, Tri-State Corporation and George Trawick, to the bill of complaint as amended.
From this decree, Tri-State Corporation, George Trawick and James L. Segrest, the Chief of the Division of State Parks, Monuments and Historical Sites of the Department of Conservation, appealed.
First, it is insisted by appellants that Montgomery County is not the proper venue for this action.
If the averments of a bill in equity show on its face that it is filed in the wrong venue, a demurrer to the bill on that ground is proper practice and should be sustained. Ex parte Morton, 261 Ala. 581, 75 So. 2d 500; Faulk v. Faulk, 255 Ala. 237, 51 So. 2d 255; State v. Stacks, 264 Ala. 510, 88 So. 2d 696; Tigrett v. Taylor, 180 Ala. 296, 60 So. 858; Hammons v. Hammons, 228 Ala. 264, 153 So. 210.
It is insisted by the appellants that neither Robert Folsom, as Director of the Department of Conservation, nor James E. Folsom, as Governor of the State of Alabama, are necessary parties. We cannot agree.
There are many cases in Alabama defining a necessary and indispensable party to a bill in equity. We think a few quotations from these cases to be sufficient. In Mathison v. Barnes, 245 Ala. 289, 16 So. 2d 717, 719 the late Justice Bouldin quoted from the case of Hodge v. Joy, 207 Ala. 198, 92 So. 171, the following excerpts:
"`To be a necessary and indispensable party to a bill in whose absence the court will not proceed to a final decree, one "must have a material interest in the issue which will be necessarily affected by the decree" before it will be said the court may not proceed in his absence.' * * * `"To constitute a necessary and indispensable party to a bill, in whose absence the court will not generally proceed to a decree, he must have a material interest in the issue which will be necessarily affected by the decree.'" * * *."
In Wilder v. Crook, 250 Ala. 424, 34 So. 2d 832, 834, we quoted from the case of First National Bank of Birmingham v. Johnson, 227 Ala. 40, 148 So. 745, as follows:
"`It has often been held that, in order to fix the venue by the residence of a material party defendant, he must have been really interested in the suit, and that a decree against him is sought, so that his interest is in a sense antagonistic to that of complainant; in other words, a necessary rather than a merely proper party. * * *'
"See also Lewis v. Elrod, 38 Ala. 17; Harwell v. Lehman, Durr & Co., 72 Ala. 344; Gay, Hardie & Co. v. Brierfield Coal & Iron Co., 106 Ala. 615, 17 So. 618; Puckett v. Puckett, 174 Ala. 315, 56 So. 585; Ex parte Fairfield-American Nat. Bank, 223 Ala. 252, 135 So. 447."
The bill of complaint alleges that the Governor and the Director of the Department of Conservation are residents of Montgomery County. The lease agreement was executed and approved by them in their official capacity and exhibited to the bill. The Conservation Director, acting *509 in his official capacity on behalf of the state, has continuing functions under the lease, and all of which are subject to the approval by the Governor in his official capacity. The Director of the Department of Conservation and the Governor have a continuing responsibility for state lands and as such are continuing materially interested in any disposition of state lands. To reach all parties having a continuing function under the lease contract and to maintain the status quo pending this litigation, it was necessary that the Director of Conservation and the Governor, whoever they may be, be made parties respondent. Injunctive relief is prayed for in the bill of complaint against the Director of Conservation and granted against him as such Director of Conservation. It is clear enough, therefore, that the Director of Conservation (whoever he may be) is a material defendant within the meaning of the venue statute. It is also to be noted that the injunction order is against the office rather than merely the individual, as it binds the "successor or successors." The same reasoning supports the materiality of the Governor, whoever he may be. They would officially be parties to any lease involving state lands, and this is so regardless of the attitude of their successors.
We think it is well established in Alabama, as well as elsewhere, that suits involving public officials are properly maintained in the county of their official residence. First National Bank of Linden v. Alston, 231 Ala. 348, 165 So. 241; State ex rel. Toberman v. Cook, 365 Mo. 274, 281 S.W.2d 777; Eck v. State Tax Commission, 204 Md. 245, 103 A.2d 850, 859, 48 A.L.R.2d 415, Annotation, Venue, Action Against Public Official.
We have examined the authorities cited by appellants, but find that they are not apt in this proceeding. The Governor and the Conservation Director, in their official capacity, were necessary and indispensable parties to this suit. Therefore, the action was properly laid in Montgomery County.
The basis of this suit is the alleged fraud, corruption, collusion, bad faith on the part of the respondents, and a gross abuse of discretion on the part of state officials, in the execution of the two leases involved in this case. The bill alleges, in pertinent part, as follows:
"11. That the respondent, George Trawick, is an officer, director and stockholder in the respondent Tri-State Corporation, Inc.
"12. That the consideration called for in the sub-lease, as shown in Exhibit `D,' is grossly inadequate compensation for the lease of the said premises belonging to the State of Alabama.
"13. That the leasing of the premises described in the lease agreement, Exhibit `A' hereto, for the compensation provided in said lease is a fraud on the State of Alabama, and for the respondents, James E. Folsom, and the respondent, Robert Folsom, and respondent, James L. Segrest, to permit The Tri-State Corporation, Inc., to enter upon and take possession of said premises, at such a grossly inadequate consideration, will cause irreparable harm to the State of Alabama, for which there is no adequate remedy at law; and further, that the leasing of said property, as described in said lease, for the consideration as aforesaid, constitutes a gross abuse of discretion as reposed in the public officials named herein by the people of the State of Alabama; amounts to a breach of trust and is against the public interest; and further that respondents are acting in bad faith and that said lease agreement is fraudulent and collusive on its face.
"14. The further diminution of consideration to the State of Alabama, resulting from the sub-lease as set out in Paragraph No. 10, between the respondent, George Trawick, the said George Trawick then being an officer, director and stockholder in the said respondent corporation, manifests collusion on the part of the respondents in this cause in the entire transaction, *510 and taints the entire transaction with fraud.
"15. Your complainant further avers that the State of Alabama has failed to receive all of the revenue that has been realized from the cutting of timber and clearing of the leased premises due to, and as a direct result of the failure and gross neglect of your respondent, James L. Segrest, Chief of the Division of State Parks, Monuments and Historical Sites of the Department of Conservation, State of Alabama, to properly supervise the sale and disposition of said timber and the clearing of said leased premises, and that such willful neglect has resulted in irreparable damage to the premises."
In pertinent part, the bill prays:
"2. That the Court will issue a temporary injunction enjoining, restraining and prohibiting the respondents, Robert Folsom, James E. Folsom, The Tri-State Corporation, Inc., James L. Segrest and George Trawick, their agents, servants, employees, successors in office, sub-lessees, sub-contractors, and all other officers and employees of the State of Alabama, and all other persons in active participation with the respondents, from entering into any sub-lease or sub-contract or other agreement covering the leased premises, or any portion thereof, or performing any acts thereon in furtherance or in accordance with said agreement until further orders of the Court.
"3. That this Court issue a temporary injunction enjoining all of the abovenamed respondents from modifying, altering or in any way changing the aforesaid lease agreement, or entering into any subsequent lease or sub-lease or sub-contract covering the premises described in the aforesaid lease and sub-lease, described in this complaint as Exhibit `A,' Exhibit `B' and Exhibit `D'; until further orders of the Court.
"4. That upon final hearing, this Court will rescind, set aside, cancel and hold for naught the lease agreement, as amended, between the parties as set out in Paragraph No. 7, copies of which lease and amendment are attached to this Bill of Complaint and made a part hereof as Exhibits `A' and `B,' and candel, set aside and rescind and hold for naught the sub-lease agreement entered into between the parties as set out in Paragraph No. 10, a copy of which is attached to this Bill of Complaint and made a part thereof as Exhibit `D.'
"5. That this Court will proceed to ascertain the true state of accounts between the parties hereto and the true state of accounts between the respondent, The Tri-State Corporation, Inc., and the State of Alabama in reference to all money, property or other thing of value received by or paid out by said respondent corporation from the operation and use of the leased premises, and will order such references and accounts as will ascertain the same."
The bill also prays for general relief and offers to do equity.
As stated above, the lease to Tri-State Corporation, and the amendment thereto, are attached to and made a part of the bill of complaint as Exhibits "A" and "B." Also, the lease from Tri-State to George Trawick is attached to and made a part of the bill of complaint as Exhibit "D."
The following portions of the leases involved are pertinent:
Tri-State Lease
"2. Exclusive Right. Contractor shall have the exclusive right to develop the premises and to manage and operate all businesses, concessions, facilities and activities which are established on the premises under this agreement. Such exclusive right, however, shall be in accordance with the terms, conditions and stipulations as agreed upon herein.
"3. Articles of Sale. Contractor shall have the right to, and will, in the course of operating its business, concessions, facilities *511 and activities on the premises, offer for sale or sub-lease any products the sale or sub-lease of which is not prohibited by law and the sale or sub-lease of which may be appropriate in connection with the operations contemplated hereby.
"4. Subdividing of Premises: In the course of developing the premises, Contractor shall have the right to subdivide the premises or portions thereof and to provide and offer for sub-leasing to third parties residential building lots for the purpose of constructing thereon residences and appurtenant facilities in accordance with minimum building restrictions promulgated hereinafter. Contractor also shall have the right to provide suitable areas for commercial use and may offer the same for sub-leasing to third parties. Contractor shall further have the right to subcontract the operation of any businesses, concessions or activities properly conducted on the premises hereunder. All sub-leases or sub-contracts made hereunder shall be subject to any pertinent provisions hereof in the same manner as if such pertinent provisions hereof were expressly contained in such sub-leases. In the event the rights of the Contractor hereunder should be terminated and extinguished prior to the expiration of the full term hereof, then in such event the State shall replace and be substituted for the Contractor as direct landlord of any subleases whose sub-lease is in force at the time of such termination and extinguishment of Contractor's rights hereunder, and such sub-lease shall continue in full force and effect according to its terms as though originally entered into directly between the State and sub-lessee. No sub-lessee shall have the right to assign or sub-lease without the written consent of Contractor. No sub-lease shall be for a period of time which shall extend beyond the term of this lease.
"22. Consideration, Payment of Fees to State. As part of the consideration for this lease, Contractor has paid to the State simultaneously with the execution hereof the sum of Twenty-Five Thousand Dollars ($25,000.00).
"Contractor further agrees and binds itself to pay to State, as rental for the premises, the sum of money equivalent to two per cent (2%) of the gross income realized by the Contractor from revenue producing facilities, businesses, activities and buildings or other improvements located and/or operated on the premises, until such time as the State has received from Contractor at said rate of two per cent (2%) the total amount of Twenty-Five Thousand Dollars ($25,000.00); thereafter, Contractor shall pay to the State as rental for said premises the sum of money equivalent to four per cent (4%) of said gross income. Contractor agrees to remit any amount due to the State in monthly installments on or before the 20th day of each month, the first of such installments to be due at the end of the first full calendar month occurring after the date of execution hereof. The monthly installments above stipulated shall be based on the gross income of the next immediately preceding month. `Gross income,' as referred to in this instrument shall include all monies received for rent, fees, admissions, subleases or services; but in the sales of tangible merchandise the term `gross income' shall be deemed to include only the amounts by which the sale prices exceed the actual cost of the merchandise sold. Further, the percentage payments to the State shall be figured on gross income after first excluding therefrom any monies received in the form of sales or excise taxes or ad valorem taxes and all privilege licenses or fees payable to the State of Alabama or Baldwin County shall be first deducted as an expense of doing business. Such privilege taxes shall include but not be limited to those levied on the sales or privilege of selling alcoholic beverages, tobacco and gasoline." (Emphasis added.) Amendment to Tri-State Lease.
"12. Installations by Contractor and State. The contractor shall have the right to construct and maintain structures, fixtures, equipment and revenue producing facilities *512 in accordance with the Master Plan which has been approved by the Parties hereto. Such structures which are constructed by Contractor, its agents, sub-contractors or sub-lessees shall be and become the property of the State upon completion thereof, subject, however, to sub-lessee's right to occupancy during the sublease term and further subject to the provisions of paragraph 4 hereof relating to rights of sub-lessees. Contractor, with the written approval of the State first having been obtained, shall have the right to erect or construct additional facilities upon the premises. Contractor shall pay to the State Four Per Cent (4%) of the gross revenue received from such additional facilities which Contractor places or constructs upon the premises.
"All fixtures and equipment which are not of a permanent nature which are placed upon the premises by the Contractor, its agents, sub-contractors or sub-lessees may be removed from the premises by the Contractor, its agents, sub-contractors or sub-lessees, within sixty (60) days after the date of cancellation or termination of this contract; provided, the amount of fees which are due the State by Contractor, up to and including the date of termination, shall have been paid in full on the date of cancellation or termination or which shall be paid upon demand by the State before removal of any such fixture or equipment. All fixtures and equipment not of a permanent nature which are allowed to remain upon the premises for a period longer than sixty (60) days after the date of cancellation or termination of this contract shall be and become the property of the State and may be sold or disposed of in any manner deemed by the State to be advisable.
"The State may provide the premises with additional structures, equipment or facilities upon the written approval of the Contractor. The gross revenue derived from any additional facilities provided by the State shall be divided equally between Contractor and State. Payment to the State of its part of the revenue derived from such additional facilities shall be made at the same time and in the same manner as is provided for the regular payment of revenue to the State under the terms of this contract. It is agreed between the parties hereto that inasmuch as the leased premises is the property of the State, the improvements which are constructed upon the premises are not subject to ad valorem taxes. In the event such ad valorem taxes are, at some future time assessable, such taxes shall be paid by Contractor and deducted from the rentals which Contractor pays to the State under the terms of this agreement."
We are not unmindful of other obligations assumed by Tri-State Corporation, under the terms of its lease, in the event it develops the property. But it is under no obligation to so develop, other than the $150,000, during the first five years of the lease.
The sublease agreement between Tri-State and George Trawick, covering an initial period of 25 years, contains the following: "(3) Lessee covenants and agrees to pay the lessor, as a part of the consideration for this agreement an annual rental of five per cent of lessees (or any tenants under lessee) monthly gross sales during the period hereof, said percentage rental to be paid within twenty days after the end of each month. The term `gross sales' shall mean the sales price of all merchandise of every kind sold, and the charges or rentals for all services performed or facilities furnished by the lessee or any other person or corporation selling merchandise or performing services or furnishing facilities in, upon or from any part of the demised premises, whether for cash or for credit, but shall exclude all returned merchandise accepted by seller, all allowances made by the seller to the customer, and the amounts received for Alabama Sales Taxes."
Much of appellants' argument that the bill lacked equity on account of its general averments of fraud, collusion, bad *513 faith, etc., seems to be rested on a strict construction of the bill of complaint alone, without taking into consideration the exhibits attached to it. The rule is, however, that in determining the sufficiency of the allegations the recitations in the exhibits to a bill are read into and made a part of the bill. Wright v. Sadler, 255 Ala. 101, 50 So. 2d 235; Autauga Co-op. Leasing Ass'n v. Ward, 250 Ala. 229, 33 So. 2d 904; and when the averments of the bill are contradictory to the exhibits, the recital in the exhibits take precedence and control. Moody v. Headrick, 250 Ala. 590, 35 So. 2d 489; McGowin v. Cobb, 249 Ala. 561, 32 So. 2d 36; Wright v. Sadler, supra.
Appellants' demurrer was addressed to the bill of complaint as a whole and to its alleged several aspects. The court's decree overruling the demurrer was general, and in such case limits the review in this Court to those grounds of demurrer which are addressed to the bill as a whole. Rowe v. Rowe, 256 Ala. 491, 55 So. 2d 749; Williamson v. Burks, 262 Ala. 442, 79 So. 2d 42; Adams v. Woods, 263 Ala. 381, 82 So. 2d 531; McCary v. Crumpton, 263 Ala. 576, 83 So. 2d 309; Smith v. Wilder, 270 Ala. 637, 120 So. 2d 871. The general decree overruling demurrer will be upheld by this Court on appeal if any aspect of the bill is sufficient. Authorities, supra.
As before stated, the demurrers interposed by appellants were addressed to the bill as a whole and to the several alleged aspects thereof.
In the recent case of Butler v. Hughes, Ala., 124 So. 2d 265, 270, this Court said:
"A bill in equity should contain an `orderly statement of the facts on which the suit is founded, without prolixity or repetition.' Equity Rule 11, Title 7, p. 1050, Code of 1940. The bill should be separated into paragraphs and numbered for convenience in answering. The numbered paragraphs, however, have no necessary relation to the causes of action presented, and no necessary relation to its aspects. An aspect is recognizable only by an analysis of the substance of the bill and by a process of mental segregation.
"One definition of an aspect found in Vol. 2 of the 1941 April Edition of The Alabama Lawyer, p. 1414, in an article written by the Honorable Earl McBee of the Birmingham Bar, reads as follows:
"`It might then be said that an aspect of a bill is a unit thereof including a prayer for some item of relief and supporting allegations of fact, severable, but by process of analysis only, from the other relief and supporting allegations of fact contained in the bill.'
"In a later article of Vol. 2 of The Alabama Lawyer, 1941, at page 421, the late Honorable E. M. Creel, Chancellor of the Tenth Judicial Circuit, defines an aspect as follows:
"`An aspect is a single cause of action with an appropriate prayer for relief, presented by a bill in equity.'"
Applying the foregoing principles, we think the bill of complaint before us has no more than two aspects, one of which seeks an accounting. Clear enough, that aspect is not sufficient because no complicated accounts are alleged, and for aught appearing the complainant has an adequate remedy at law for damages. That being true, we will proceed to the other aspect which alleges fraud, corruption, collusion, bad faith on the part of respondents, and a gross abuse of discretion on the part of state officials in the execution of the lease to Tri-State. The lease from Tri-State to George Trawick must fall if the lease from the State to Tri-State is held to be invalid. The lease from Tri-State to George Trawick is but evidence of fraud, if there be fraud in the lease from the State to Tri-State.
Among other functions and duties of the Department of Conservation of the State of Alabama are the following:
*514 "To maintain, supervise, operate and control all state forests, parks, monuments and historical sites, except Mound State Monument and the First White House of the Confederacy * * * to maintain, supervise, operate and control all state lands other than those specifically commited to the use or control of some other department, board, bureau, commission, agency, office or institution of the state * * * to have sole charge of all state forests and state parks and parkways and to have authority to make such rules and regulations for the management, administration, occupancy and use of said state forests and state parks and parkways, and all other property and things of whatever nature therein or thereon, as it shall find necessary. * * * The Department of Conservation shall have full power and authority to sell, exchange, or lease land under its jurisdiction when in its judgment it is advantageous to the state to do so in the orderly development and management of state forests and state parks and parkways; provided, however, said sale, lease or exchange shall not be contrary to the terms of any contract which it has entered into."
We have recently had occasion to rule on a lease by the Conservation Department of lands belonging to the State of Alabama. In that case, we have declared the law which is applicable to the case at bar. See Finch v. State of Alabama, Ala., 124 So. 2d 825.
If we understand correctly the position of the state, it would have us affirm the decree of the lower court on the theory that the consideration expressed in the lease is so grossly inadequate as to shock the conscience and that the inadequacy of the consideration amounts in itself to conclusive and decisive evidence of fraud. Juzan v. Toulmin, 9 Ala. 662; Mahone v. Williams, 39 Ala. 202; Cleere v. Cleere, 82 Ala. 581, 3 So. 107; Chance v. Chapman, 195 Ala. 513, 70 So. 676.
The allegations in the bill itself as to fraud, collusion, bad faith, etc., are merely conclusions of the pleader, and if we are to reach the questions of those allegations, it must be done through the exhibits, which are made a part of the bill of complaint.
The bill shows that the lease can extend for a term of 90 years, and the state is to receive 4% of the gross receipts realized by Tri-State from revenue-producing facilities, businesses, activities and buildings, or other improvements located and/or operated on the premises, including the receipts from subleases. The bill further shows that Tri-State agrees to expend, or to cause to be expended, a total amount of not less than $150,000 on permanent improvements on the premises within 5 years from and after the execution of the lease.
Tri-State is owned principally by Trawick and Baroco. Exhibit "D" to the bill shows that the consideration for the sublease from Tri-State to Trawick to be 5% of his, Trawick's, gross receipts. The sublease to Trawick includes the property on which the motel is located and is the first revenueproducing part of the property, and is, practically, the fulfillment of Tri-State's obligation to expend, or cause to be expended, the sum of $150,000. Therefore, instead of the state receiving 4% of the gross receipts on all revenue-producing property, it only receives 4% of the 5% which Tri-State receives from Trawick, thereby reducing the return to the state from 4% to 2/10 of 1%.
The bill charges that this diminution of a consideration to the State of Alabama resulting from the sublease between Tri-State and Trawick, as an individual, and who is a stockholder and director of Tri-State, shows fraud on the part of the respondents.
The bill further shows that Tri-State has, under the terms of its lease, the right to sublease the remaining property leased by the state to it. There is nothing in the lease to Tri-State to prevent it from subleasing all, or any part, of the remaining property on any percentage basis that it may wish, and thus reduce the state's income from the property to an absurdity. Such a *515 situation does shock the conscience of the court when taken in connection with the provisions of the lease to Tri-State to the effect that the state cannot improve its own land for 90 years without the written consent of Tri-State.
It is true that Tri-State is obligated to expend, or cause to be expended, the sum of $150,000 on the property leased by it during the first 5 years of the lease. It is not obligated to expend any other sum whatever over the next 85 years, and the state cannot improve the property without the written consent of Tri-State. We note here that approximately $150,000 has already been spent under the sublease to Trawick (the motel property) which covers just a few acres, leaving more than 2,700 acres of the state's land which Tri-State is under no obligation to develop, and the state cannot develop it without the written consent of Tri-State for 90 years.
We have demonstrated that under the sublease to Trawick, who is a stockholder and director of Tri-State, the Tri-State Corporation would, in reality, reap the benefits of the entire transaction and the state would receive little or nothing.
It is true that the sum of $25,000 was paid in cash upon the execution of the lease, but a qualification is attached to this payment. While the lease provides that the state is to receive 4% of the gross receipts, it is provided that Tri-State would pay only 2% of the gross receipts "until such time as the state had received from Tri-State Corporation at the rate of 2% the total amount of $25,000." That, in effect, is a credit of the $25,000 on the amount the state is due to receive. Thereafter, Tri-State would pay 4% of its gross receipts. Two per cent of the 5% received from Trawick, until the total amount of $25,000 is used up, or paid back, and the 4% of the 5% the state is to receive thereafter, clearly demonstrates that Trawick is merely taking from one pocket and putting into another of his and Baroco's pockets. Just how long would be required, at the rate of 1/10 of 1% of the gross receipts of the motel property, to accumulate the sum of $25,000? And it is to be remembered that the expenditure requirement of $150,000 has practically already been made on the hotel property, and under the lease to Tri-State no other expenditure is compulsory. The lease to Tri-State making possible such a lease as the one to Trawick, and other subleases of like kind, or for even less returns to the state, show gross abuse of discretion on its face on the part of officials acting for the state. On demurrer, we must assume that the state officials knew the contents of the lease to Tri-State.
Fairness requires us to say that the affidavits of Trawick and Baroco, filed in support of their motion to dissolve the temporary injunction, states that the only purpose of the sublease from Tri-State to Trawick was to secure permanent financing for the construction of the motel, and they always considered that Tri-State was the beneficial owner of the motel. It was also stated in the affidavits that a proposed second amendment to the lease between the state and Tri-State contained provisions whereby the gross income from the Gulf Lake Motel would be considered and treated as gross income of Tri-State, had been executed by Tri-State and the Director of Conservation, but had not been approved by the Governor before the injunction was issued.
We would assume that this construction of appellants would also apply with reference to any future capital improvements, whether such improvements be made by Tri-State or by others under a sublease agreement.
It is not uncommon, but indeed expedient and necessary, for percentage leases to allow the lessee to sublease, but in the absence of any explicit provisions to the contrary, the lessor's percentage of return should not be diminished through execution of subleases. We also note here that the bill offers to do equity.
*516 But these affidavits are not before us on the ruling on demurrer. These matters may be brought before the court in the answer of respondents, or otherwise, as may be deemed expedient, but considering only the bill, its exhibits and demurrer thereto, we are convinced that the bill is factually sufficient to be good as against the demurrer interposed.
It follows that the trial court correctly overruled the demurrers and the decree is due to be affirmed.
We have demonstrated that the motion to discharge the injunction based on improper venire is without merit. The refusal of the motion to dissolve the injunction was within the sound discretion of the trial court. Under the facts and circumstances of this case, we are unwilling to say that the trial court abused its discretion.
The case is due to be, and is, affirmed.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur. | March 30, 1961 |
a8f3048c-88f0-4cb3-a595-354505fac848 | Norris v. Moskin Stores, Inc. | 132 So. 2d 321 | N/A | Alabama | Alabama Supreme Court | 132 So. 2d 321 (1961)
Nealus E., NORRIS
v.
MOSKIN STORES, INC. et al.
6 Div. 612.
Supreme Court of Alabama.
April 6, 1961.
Rehearing Denied May 18, 1961.
Jenkins & Cole, Birmingham, for appellant.
Sirote, Permutt, Friend & Friedman, Birmingham, for appellees.
STAKELY, Justice.
Nealus E. Norris (appellant) brought an action for damages against Moskin Stores, Inc. and Morris Nathan (appellees). Counts 1 and 3 of the complaint, as amended, seek damages for invasion of plaintiff's privacy. Count 4 of the amended complaint avers "an intentional interference" by defendants with plaintiff's "marital contract and marital relations." Count 2, which set forth a cause of action for slander, was stricken and is not involved on this appeal. The defendants separately and severally demurred to the complaint as amended and separately and severally to each count thereof. The trial court sustained the demurrers and, on motion of plaintiff, granted a nonsuit. From this order plaintiff has appealed, assigning as error the ruling of the trial court on the demurrers.
The gist of plaintiff-appellant's cause for invasion of privacy is contained in the allegations of Count 3, which are as follows:
The State of Alabama is among those states which recognize that a man has a right of privacy the violation of which may be actionable. Smith v. Doss, 251 Ala. 250, 37 So. 2d 118. The particular application of the principles of the right of privacy which these appellants seek to make is, however, as yet novel to this jurisdiction. The earlier cases decided by this court have concerned situations in which it was claimed that the defendant had given unwarranted and intrusive publicity to the private affairs of the plaintiff, Smith v. Doss, supra, and Abernathy v. Thornton, 263 Ala. 496, 83 So. 2d 235, or had made unauthorized use of plaintiff's name for commercial purposes. Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So. 2d 314; 263 Ala. 355, 82 So. 2d 345. But nothing in the foregoing cases shows that the action for invasion of privacy is necessarily limited to those situations alone. For example, a cause of action for invasion of privacy has been held to lie for unwarranted intrusion by means of a listening device (McDaniel v. Atlanta Coca-Cola *323 Bottling Co., 60 Ga.App. 92, 2 S.E.2d 810, 811; Roach v. Harper, W.Va., 105 S.E.2d 564), for persistent shadowing (Schultz v. Frankfort Marine, Acci. & P. G. Ins. Co., 151 Wis. 537, 139 N.W. 386, 43 L.R.A.,N.S., 520), and for a shop manager's angrily and roughly accosting a female customer and searching her coat and purse (Bennett v. Norban, 396 Pa. 94, 151 A.2d 476, 71 A.L.R.2d 803).
It is suggested in Prosser, Law of Torts 637-39 (2nd ed. 1955), that the invasion of privacy tort consists in fact of four distinct wrongs, (1) "the intrusion upon the plaintiff's physical solitude or seclusion," (2) "publicity which violates the ordinary decencies," (3) "putting the plaintiff in a false but not necessarily defamatory position in the public eye," and (4) "the appropriation of some element of the plaintiff's personality for a commercial use." We think this analysis fundamentally consistent with our statement in the Doss case and reaffirmed in the Abernathy case, adopted from 41 Am.Jur. 925, that the right of privacy is "`the right of a person to be free from unwarranted publicity,' or `the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.'" [Emphasis added.]
We think that there may be circumstances under which the actions of a creditor in regard to his debtor fall within Dean Prosser's first category of actionable wrong, or, in the words of the Doss case, constitute an outrageous "wrongful intrusion."
The mere efforts of a creditor, in this case the appellees, to collect a debt cannot without more be considered a wrongful and actionable intrusion. A creditor has and must have the right to take reasonable action to pursue his debtor and collect his debt. But the right to pursue the debtor is not a license to outrage the debtor. The problem of defining the scope of the right of privacy in the debtor-creditor situation is the problem of balancing the interest of the creditor in collecting his debt against that of the debtor in his own personality. Some courts appear to have struck that balance on the so-called "rule of reason." Thus in the recent case of Housh v. Peth, 99 Ohio App. 485, 135 N.E.2d 440, 449, affirmed 165 Ohio St. 35, 133 N.E.2d 340, the Ohio appellate courts asserted that "a creditor has a right to take reasonable action to pursue his debtor and pursuade payment, although the steps taken may result to a certain degree in the invasion of the debtor's right of privacy," but that the debtor has a cause of action for injurious conduct on the part of the creditor which exceeds the bounds of reasonableness. We approve this statement.
The phrase "reasonable action" is of course not one for which exact legal definition can be prescribed. What constitutes "reasonable" action must depend largely on the facts of the particular case. In Housh v. Peth, supra, the creditor-defendant "deliberately initiated a systematic campaign of harassment of the plaintiff, not only in numerous telephone calls to the plaintiff herself every day for a period of three weeks, some of which were late at night, but also calls to her superiors over the telephone, informing them of the debt * * *." Plaintiff "was called out of the classroom in the public schools where she was employed three times within 15 minutes; * * * she lost a roomer at her rooming house because of the repeated calls, and was threatened with loss of employment unless the telephone calls ceased." Housh v. Peth, 135 N.E.2d 440, 449.
The Housh decision is supported by Barnett v. Collection Service, 214 Iowa 1303, 242 N.W. 25, and LaSalle Extension University v. Fogarty, 126 Neb. 457, 253 N.W. 424, 91 A.L.R. 1491. These cases *324 involved harassment of the plaintiff-debtor by the defendant-creditor by means of coarse, inflammatory, threatening, or malicious letters producing mental pain and anguish on the part of the plaintiff, which the Iowa and Nebraska courts held actionable. These cases have in common with the Housh case the element of intentional "systematic campaign of harassment." See also, Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 55 A.L.R. 964; Clark v. Associated Retail Credit Men of Washington, D. C., 70 App.D.C. 183, 105 F.2d 62; Quina v. Robert's et al., La.App., 16 So. 2d 558; Western Quaranty Loan Co. v. Dean, Tex.Civ.App., 309 S.W.2d 857.
On the other hand, the case of Gouldman-Taber Pontiac Inc. v. Zerbst, 213 Ga. 682, 100 S.E.2d 881, consistent with dictum in Housh, and we think correctly, held that a single letter written by the defendantcreditor to the plaintiff-debtor's employer merely notifying him of the debt did not constitute an actionable invasion of plaintiff's privacy.
Following the Zerbst case, the recent case of Tollefson v. Safeway Stores, Colo., 351 P.2d 274, 276, concerned the activities of a defendant bill collector who informed plaintiff's wife that if the debt, on a dishonored check, were not paid, plaintiff's job would be in jeopardy, and who contacted plaintiff's superiors, seeking to bring pressure on plaintiff to pay. The Colorado court held that on these facts plaintiff had no cause of action for invasion of privacy, pointing out that "there was no campaign of continuous harassment, no attempt to vilify or expose plaintiff to public ridicule, and no effort to cause plaintiff to lose his position * * *." "It is not an invasion of privacy," according to that court, "to remind one of his obligations be they legal or moral."
Similarly, relief was denied in Patton v. Jacobs, 118 Ind.App. 358, 78 N.E.2d 789 (two letters to employer concerning the debt); Lewis v. Physicians and Dentists Credit Bureau, Wash., 177 P.2d 896 (single telephone call to wife's employer advising of unpaid bill and of intent to start garnishment proceedings)
In the case at bar, assuming as we must that the allegations of the complaint are true, it may be difficult to construe the three telephone calls, compared for example with the numerous calls in the Housh case, supra, as a "systematic campaign" of harassment. Furthermore, the calls in the instant case were made to members of appellant's family, so that there may be here lacking part of the element of humiliating publicity present in some of the cases. On the other hand, according to the pleadings, it does not appear that the caller suggested or attempted to urge payment, or indeed that any reference whatever was made to the existence of the alleged debt.
*325 If the allegations of the complaint are true, the alleged telephone calls were but a vicious attempt to coerce payment. This course of conduct cannot be justified as reasonably related to a legitimate effort to collect the debt. The defendants did not choose to put themselves in the position of creditor when they, through their agent, made these calls. They cannot seek to invoke that protection now. In view of the nature of these telephone conversations, which a jury could find outrageous and humiliating to a person of ordinary sensibilities, we must conclude that the complaint sets forth sufficient "harassment" and that the activities of the defendants fall beyond the realm of reasonable action and into the area of wrongful and actionable intrusion.
Appellees contend, however, that there can be no actionable invasion of privacy for spoken, as opposed to written, words. Dicta to this effect appear in Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 55 A.L.R. 964; Cason v. Baskin, 155 Fla. 198, 20 So. 2d 243, 168 A.L.R. 430, and Melvin v. Reid, 112 Cal. App. 285, 297 P. 91. We think this proposition is incorrect. To exclude actions for oral invasion of privacy would, for example, be to ignore the dangerous potential of the modern media of mass communication. Furthermore, our acceptance of this proposition would be inconsistent with, if not to overrule, our decision in the Doss case, supra, which involved the spoken word.
In the Abernathy case, supra, we quoted with general approval an extensive paragraph, outlining the general theory of the right to privacy, from Dean Hepburn's Cases on Torts, which contains the statement that "The right of privacy can only be violated by printings, writings, pictures, or other printed publications or reproductions, and not by word of mouth." Hepburn, Cases on Torts 504. But we consider that our concern in the Abernathy case was more with other aspects of the quoted paragraph, and particularly with the situation wherein one "becomes an actor in an occurrence of public or general interest." Certainly nothing in the Abernathy case turned on whether the allegedly objectionable words were written or not. Nor was there any attempt or intention in the Abernathy case to overrule the Doss case, supra. The Abernathy opinion cites Doss and rests in part on it. Abernathy cannot be taken as authority for the proposition here urged.
We note that the cases which contain language purporting to limit the action to written words or printings appear to base their position on the original article from which the action is generally conceded to originate. Warren and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193. The "Hepburn" statement is from one of those cases, Melvin v. Reid, supra.
We observe that the statement actually made by Warren and Brandeis is that "The Law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damages." 4 Harv.L.Rev. 217 [Emphasis added.] While a requirement of special damages for oral invasion of privacy may have been occasionally suggested in later writings (see 41 Am.Jur. 950), we find no indication that it has received general acceptance. Indeed, in Smith v. Doss, supra [251 Ala. 250, 37 So. 2d 120], we pointed out that unlike libel, "in actions for infringement of the right of privacy * * * it is never necessary to allege or prove special damages."
In Roach v. Harper, W.Va., 105 S.E.2d 564, the West Virginia court stated that
We note that Warren and Brandeis gave us their reason for the limitation, reasoning by way of analogy to the law of libel and slander, that "The injury resulting from such oral communications would ordinarily be so trifling that the law might well, in the interest of free speech, disregard it altogether." 4 Harv.L.Rev. at 217. The Warren-Brandeis article was published in 1890, long before the advent of the modern methods of mass communication to which we have already alluded. While it may have been possible seventy years ago to dismiss all oral communications as "trifling" in effect, such a conclusion would today be contrary to modern realities. Therefore, if we have not already done so in Smith v. Doss, supra, we must now reject the view, if such exists, that special damages must be shown where the invasion of privacy is by spoken words.
We conclude that the complaint states a good cause of action for invasion of privacy and that the demurrers to Counts 1 and 3 should have been overruled.
Count 4 of the complaint adopts the substantial allegations of fact contained in Count 3 and adds that
Appellant has in brief characterized this count as setting forth "a cause of action for intentional interference with the plaintiff's marital contract and marital relations," and invokes an analogy to an action for intentional interference with one's trade, profession, or business, or with the performance of a contract. Assuming, however, that this count states a cause of action and that it is one different from that contained in the other counts, we think that the cause expressed is more accurately characterized as one for alienation of affection. Thus in Young v. Young, 236 Ala. 627, 630, 184 So. 187, 190, we pointed out that "Actions for alienation of affections * * * are * * * based upon the marriage relationactions for the loss of consortium between the spouses from the wrongful acts of others. Alienation of affections is the robbing of husband or wife of the conjugal affection, society, fellowship and comfort which inheres in the normal marriage relation." The robbing of the marital incidents, the loss of consortium, is the essence of this count.
While there may be some popular tendency to think of an action for alienation of affections in terms of an unfaithful wife, an outraged husband, and an overzealous lover, that conception is not the legal one. The triangular situation depicted may be a common one, in life and in law, but it is not essential to the cause. Unlike an action for criminal conversation, the essence of which is "the defilement of the marriage bed, sexual intercourse of an outsider with husband or wife, a breaking down of the covenant relation to `keep thee only unto him or her *327 so long as you both shall live,'" there is no requirement of an amorous relation between the defendant and the alienated spouse. Young v. Young, supra. Stated differently,
The injury is one to the marital relationship. Thus it is for example said that
We note with interest that the Young case, supra, was precisely such an action.
Having determined that the cause of action, if any, stated in Count 4 is one for alienation of affections, we now come to the provisions of Title 7, § 115, Code of 1940, as follows: "There shall be no civil causes of action for alienation of affections. * * *." By this statute the legislature has abolished any cause of action the appellant may have had at common law. As to Count 4, then, the demurrers were properly sustained.
For the errors in sustaining the demurrers to Counts 1 and 3, the judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | April 6, 1961 |
b05a858b-4ca7-4cd3-91bc-e54333279d23 | United Telephone and Telegraph Company v. Culiver | 126 So. 2d 119 | N/A | Alabama | Alabama Supreme Court | 126 So. 2d 119 (1961)
UNITED TELEPHONE AND TELEGRAPH COMPANY
v.
Sherman CULIVER.
4 Div. 31.
Supreme Court of Alabama.
January 12, 1961.
Robt. C. Reid, Andalusia, for appellant.
A. R. Powell, Jr., Andalusia, for appellee.
LAWSON, Justice.
Proceedings under the Workmen's Compensation Law (Chapter 5, Title 26, Code 1940, as amended) by Sherman Culiver against United Telephone and Telegraph Company, a corporation. From a judgment awarding compensation the employer Telephone Company has obtained review by certiorari.
"Accident" is defined in our Workmen's Compensation Law to mean "an unexpected or unforeseen event, happening suddenly and violently, with or without human fault, and producing at the time injury to the physical structure of the body, by accidental means." § 262(i), Title 26, Code 1940.
The evidence for the plaintiff tended to show that sometime between September, 1956, and June, 1958, while working for the defendant as a janitor the head of the femur in plaintiff's left leg deteriorated, causing him pain and inconvenience to such an extent that he had to give up his job.
*120 The trial court found that this condition was "a result of the walking done by him [plaintiff], climbing of stairs done by him and the carrying of various items up and down stairs in and about said office building and Telephone Exchange all in the discharge of his duties as janitor."
In several recent cases this court has held that where the proximate cause of the plaintiff's injury was the strain or exertion of his work (as distinguished from exposure), a finding by the trial court that the plaintiff had been subjected to unusual strain or overexertion was not necessary to support a conclusion that the injury was caused by an accident arising out of his employment. Alabama Textile Products Corp. v. Grantham, 263 Ala. 179, 82 So. 2d 204; Davis Lumber Co. v. Self, 263 Ala. 276, 82 So. 2d 291; Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 96 So. 2d 159.
But in each of the cases cited the evidence showed a sudden injury at a specific time, as do the cases of State ex rel. Puhlmann v. District Court of Brown County, 137 Minn. 30, 162 N.W. 678, and Caddy v. R. Maturi & Co., 217 Minn. 207, 14 N.W.2d 393, cited by appellee. The same is true of Pow v. Southern Const. Co., 235 Ala. 580, 180 So. 288, cited by appellee.
It has generally been assumed that the accident concept includes an element of reasonable definiteness in time, as distinguished from gradual disintegration or deterioration. Larson's Workmen's Compensation Law, Vol. 1, § 39.10, p. 568. In Consolidated Coal Co. v. Dill, 248 Ala. 5, 26 So. 2d 88, we upheld an award to the employee for injuries to his eyes caused from the glare of electric lights too close to his face during a two-months period. And in New River Coal Co. v. Files, 215 Ala. 64, 65, 109 So. 360, we said:
But in this case the evidence does not show that anything happened suddenly or violently to plaintiff or to any part of his body, on any particular day or days during the twenty-three months of his employment as a janitor.
We think the case here is controlled by our case of Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530, where we quoted approvingly from the Minnesota case of Young v. Melrose Granite Co., 152 Minn. 512, 189 N.W. 426, 29 A.L.R. 506, as follows:
We feel constrained to reverse the judgment of the trial court.
If this cause is tried again, it is hoped that the trial judge will include in his judgment a complete statement of the law, facts and conclusions as determined by him. § 304, Title 26, Code 1940, as amended; West Point Mfg. Co. v. Bennett, 263 Ala. 571, 83 So. 2d 303. The trial judge should make a finding of every fact necessary to sustain the judgment of the court. *121 Bryant v. Central Foundry Co., 217 Ala. 332, 116 So. 345; Alabama Textile Products Corp. v. Grantham, supra.
Reversed and remanded.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | January 12, 1961 |
90558fd7-3ba5-4a15-afa1-66a71e4f9ce0 | Commercial Standard Ins. Co. v. New Amsterdam Cas. Co. | 131 So. 2d 182 | N/A | Alabama | Alabama Supreme Court | 131 So. 2d 182 (1961)
COMMERCIAL STANDARD INSURANCE COMPANY
v.
NEW AMSTERDAM CASUALTY COMPANY et al.
1 Div. 851.
Supreme Court of Alabama.
March 23, 1961.
Rehearing Denied June 22, 1961.
*183 Lyons, Pipes & Cook, Mobile, for appellant.
Johnston, McCall & Johnston, Mobile, for appellee New Amsterdam Cas. Co.
J. Terry Reynolds, Jr., and Wm. R. Lauten, Mobile, for appellee cross-appellant and guardian ad litem.
SIMPSON, Justice.
This is an appeal from a declaratory judgment proceeding wherein the Mobile Circuit Court in Equity rendered a decree holding appellant (to be referred to as Commercial or Commercial Standard) to be primarily liable, and the appellee (to be referred to as New Amsterdam) to be secondarily liable as related to the defense and satisfaction of any judgment or obligation involving the disposition and satisfaction of law actions filed in the Circuit Court of Mobile County by Norris P. Richard and Suzanne Michele Richard against Gary Ellis, Individually and doing business as Ellis Nurseries, and Kenneth L. Ross for alleged injuries sustained by Suzanne Michele Richard on the 27th of January, 1957.
The facts giving rise to the litigation are briefly summarized: Gary Ellis was doing business in Mobile as Ellis Nurseries, and his agent in selling his products was Kenneth L. Ross. Mr. and Mrs. Norris P. Richard, on the date mentioned, purchased some shrubbery from Kenneth L. Ross, salesman for Ellis Nurseries, at the Bradford and Government Street location in Mobile. Ross delivered the articles to the Richard's two-door automobile parked in the Ellis Nurseries' parking lot and placed part of the articles in the trunk and the remainder on the floor in the rear seat of Richard's automobile and perhaps one bush on the floor in the front of the car. Ross remained beside the open door of the automobile for a period of three or four minutes conversing with Mrs. Richard about purchases she had made previous to those that day. At the close of the conversation Ross, as a convenience for Mrs. Richard, proceeded to close the car door. Suzanne Michele Richard, their twenty-one months old daughter, as a result of the door being closed upon the fingers of her right hand, suffered the injuries complained of in the actions at law.
Appellant, Commercial Standard, had issued an automobile liability policy to Norris P. Richard, and appellee, New Amsterdam, which filed the bill, had issued a comprehensive general liability policy to Gary Ellis, Doing Business as Ellis Nurseries. The principal question is whether Kenneth L. Ross, as agent of Ellis Nurseries, and Gary Ellis, Individually and Doing Business as, etc., were covered under the omnibus clause of Commercial Standard's policy to Richard, thereby devolving upon said Commercial Standard the primary duty and obligation to defend the actions at law and to pay such judgments as may be rendered. The trial court held that Ross and Ellis, etc., were omnibus insureds under appellant's policy; that Ellis' liability, if any, is based upon the doctrine of respondeat superior; that appellant was to defend both Ross and Ellis and pay within the applicable limits of liability of its policy any judgment rendered against either or both; should appellant's liability become exhausted with respect to any judgment rendered against Gary Ellis, only then would appellee, New Amsterdam, become obligated as insurer of Ellis as a secondary or vicarious liability.
The pertinent provisions of Commercial Standard's policy which gave rise to this construction are as follows:
"Insuring Agreements
"Conditions
There is no dispute that Suzanne Michele Richard received injuries caused by the accident; nor is there any dispute that such injuries were received when Kenneth L. Ross closed the door of the Richard's automobile after delivering the articles sold. The dispute arises as to whether or not Kenneth L. Ross was "using" the automobile at the time of the accident within the omnibus insured's clause of Commercial Standard quoted above. Undoubtedly, use of the automobile by "loading" is an element of coverage in Commercial Standard's policy, but we shall undertake to show that the learned trial court was in error in holding that coverage was afforded appellees Ross and Ellis under the omnibus loading clause of Commercial's policy. No fixed rule can be set down to define the term "loading" in all cases. Each case must be treated separately according to its own particular facts. We are here concerned only with the connotation of the word "loading" under the circumstances related.
The general rule is that insurance policies should be liberally construed in favor of the insured and words of the policy must be given their ordinary and generally understood meaning. Strained or unusual construction of any of the terms should not be indulged in in favor of either the insurer or the insured. Kilby Car & Foundry Co. v. Georgia Casualty Co., 209 Ala. 356, 358, 96 So. 319.
The terms employed in Commercial's policy do call for construction since the term "loading" is not clearly spelled out. In insurance contracts the term "loading" is a term of extension and not intended to restrict coverage otherwise afforded, and the phrase "use of the automobile" in that connection extends beyond its usual connotation and applies to the physical process of moving goods in or onto an automobile while it is at rest. American Oil & Supply Co. v. United States Casualty Co., 19 N.J.Misc. 7, 18 A.2d 257; Pacific Automobile Insurance Co. v. Commercial Casualty Ins. Co., 108 Utah 500, 161 P.2d 423, 424, 160 A.L.R. 1251; 7 Appleman's Insurance Law and Practice 92, § 4322.
Concededly Kenneth L. Ross was not using the automobile at the time of the injury in the sense that he was driving or directing its movements, but it is the contention of the appellees that he was using the automobile by "loading" the articles purchased by the Richards and the act of closing the door consummated the loading, thereby bringing him within the definition of an insured under Commercial's policy. If the policy be so construed, appellant would have the primary obligation to defend and pay. But we do not think the facts related bring him within the protection of the policy.
*185 Loading is interpreted as including those acts which are necessary to place the goods in or upon the automobile to a position of rest. St. Paul Mercury Indemnity Co. v. Standard Accident Insurance Co., 216 Minn. 103, 11 N.W.2d 794; Bobier v. National Casualty Co., 143 Ohio St. 215, 54 N.E.2d 798.
The most exhaustive treatise on the subject which has come to our attention appears in the annotation to the case of Pacific Automobile Ins. Co. v. Commercial Casualty Ins. Co., supra, 160 A.L.R. at page 1259, et seq. The annotator points out that with respect to the "loading and unloading" clauses in insurance policies, there are two theoriesso called: (1) The "coming to rest" doctrine, and (2) The "complete operation" doctrine. With respect to the first, it is stated at page 1264:
As regards the second, the following appears at page 1267:
We see no occasion to adopt either theory as applied to the facts in this case for the simple reason that under neither theory would coverage be afforded under Commercial's policy. When the injury sustained is a direct result of such loading the coverage must be sustained. Had the injury occurred as Kenneth L. Ross placed the goods in the automobile, then the policy would have been subject to the construction placed on it by the learned trial court. However, Ross had consummated the act of "loading"placing the goods in the automobile. During an interim period of three to four minutes after completing this "loading" a conversation between Mrs. Richard and Kenneth L. Ross about an entirely different matter ensued. When the conversation ceased and the Richards were preparing to depart, the door was closed, resulting in the injury. The loading began at the moment the goods were removed from their repository in the nursery and continued until they were loaded in the automobile. The essential fact of loading had been terminated when the accident occurred. With the goods at rest in the automobile and Ross beginning pursuit of a different business, the act of loading had been completed and the "use", therefore, of the automobile within the quoted provisions of Commercial's policy had also been terminated. The closing of the door was an independent act entirely outside of the act of loading the purchased articles and the term cannot be extended to bring the accident within the coverage of Commercial's policy.
Appellee calls attention to the fact that the appellant's brief does not conform to Supreme Court Rule 9, Code of 1940, Title 7, Appendix. The rule does require that the brief and argument refer to assignments of error specifically insisted on, which requirement was not altogether complied with by appellant. Rule 9, however, is directory only, and we may exercise our discretion in considering appellant's brief, which we have done in this case. Guy v. Lancaster, 250 Ala. 287(9), 34 So. 2d 499.
*186 In the view we take of the case, it becomes unnecessary to treat of the other assignments of appellant advanced as error to reverse.
Finally, we consider the cross-assignment of Honorable William R. Lauten as guardian ad litem for Suzanne Michele Richard, claiming error in the decree of the trial court awarding him only $350. He contends that the amount was inadequate. True, there was testimony of a reputable attorney of the Mobile Bar that a reasonable fee would be higher than the amount fixed by the court, and the minimum fee on a rate basis under the Mobile Bar Association Fee Bill supports this evidence. Nevertheless, the statute (Code 1940, Title 7, § 180) sets up no standard by which the ascertainment of a reasonable fee for a guardian ad litem is to be made. The court has a right to determine the fee by the exercise of its individual judgment upon a consideration of the case as developed by the record without being bound to accept the opinion of witnesses. Walker v. Walker, 256 Ala. 195, 54 So. 2d 281, and cases therein cited. The matter of fixing the fee rests largely within the discretion of the trial court, subject only to correction for abuse of discretion. Thompson v. Bryant, 251 Ala. 566, 569, 38 So. 2d 590. In view of the circumstances of the case, we cannot say that the trial court grossly abused its discretion in so fixing the amount of the fee.
Cross-appellant has also prayed for the fixing of an additional fee for representing his ward on this appeal. The court entertains the view that an additional fee of $200 under the circumstances of the case would be reasonable for the guardian ad litem's services in this court, which shall be assessed as a part of the costs of this appeal, and it is so ordered. Ex parte Taylor, 251 Ala. 387, 37 So. 2d 656.
The decree below is reversed and a decree here will be rendered holding that appellant, Commercial Standard, is not liable under the circumstances related. As to all other matters adjudicated the decree is affirmed.
Affirmed in part and in part reversed and rendered.
LIVINGSTON, C. J., and STAKELY and COLEMAN, JJ., concur.
GOODWYN and MERRILL, JJ., dissent as to the order of reversal. | March 23, 1961 |
769d799f-a5c7-48fa-9afc-78f2dec78ef7 | Ex Parte Seals | 126 So. 2d 474 | N/A | Alabama | Alabama Supreme Court | 126 So. 2d 474 (1961)
Ex parte Willie SEALS, Jr.
Willie SEALS, Jr.
v.
STATE of Alabama.
1 Div. 949.
Supreme Court of Alabama.
January 26, 1961.
*475 Chas. S. Conley, Montgomery, for petitioner.
MacDonald Gallion, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.
LIVINGSTON, Chief Justice.
Willie Seals, Jr., was convicted in the Circuit Court of Mobile County, Alabama, of the offense of rape. He is a Negro and his victim was a white woman.
On appeal to this court, Seals' conviction was affirmed, 122 So. 2d 513.
The indictment against Seals was returned by the grand jury of Mobile County on October 24, 1958. He entered a plea of not guilty and was tried by a jury, which, on December 4, 1958, returned a verdict of guilty as charged and fixed his punishment at death.
Seals was represented at his trial by Honorable Wallace L. Johnson who did not file either a plea in abatement or a motion to quash the indictment, nor did he move to quash the venire or for a change of venue.
The judgment of conviction was affirmed by this Court on June 2, 1960, and his application for rehearing was denied on August 18, 1960.
Seals has filed in this Court his petition to be permitted to file a petition for writ of error coram nobis in the trial court. Such is the proper procedure in view of the fact that the judgment of the Circuit Court of Mobile County was affirmed here. Ex parte Taylor, 249 Ala. 667, 32 So. 2d 659, affirmed 335 U.S. 252, 68 S. Ct. 1415, 92 L.Ed 1935; Ex parte Williams, 268 Ala. 535, 108 So. 2d 454, and cases cited.
The attorney representing Seals in this proceeding is not the attorney that represented him on his trial in the court below on the charge of rape.
Petitioner insinuates in the petition presently before us that the Honorable Wallace L. Johnson was appointed by the trial court to defend petitioner on his trial in the court below. The record of the appeal in that case, which is before us and of which, of course, we take judicial knowledge (Johnson v. State, 242 Ala. 278, 5 So.2d 632), fails to disclose that such appointment was made by the Circuit Court of Mobile County. For aught that appears, Hon. Wallace L. Johnson was the personally chosen and employed attorney that represented Seals on his trial in the court below, and he was afforded ample time and opportunity to raise all questions in that court.
The state filed its motion to dismiss the original and amended petitions for leave to file a petition for writ of error coram nobis in the trial court.
Grounds of the petition numbered 11, 12, 13, 14, 15, 16 and 22 are based on the theory that the petitioner was a member of the colored race, and that members of such race had been intentionally and systematically excluded from both the grand jury and petit jury service solely on account of said race and color. It is not contended here that any matter involving the regularity of either the grand jury or petit jury was presented in the trial of this cause, either as originally conducted or on motion for a new trial. Clearly enough, it now comes too late. As was said in Johnson v. Williams, 244 Ala. 391, 13 So. 2d 683, 686:
"* * * This was forcibly demonstrated in the opinion in Vernon v.
See, also, Michel v. Louisiana, 350 U.S. 91, 76 S. Ct. 158, 100 L.Ed 83; Title 15, Section 278, Code of Alabama 1940.
In passing upon a petition for leave to petition the trial court for writ of error coram nobis, this Court is in the exercise of a wise discretion and must look to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof and grant leave only when it appears the proposed attack on the judgment is meritorious. 24 C.J.S. Criminal Law § 1606; Ex parte Taylor, supra.
While it is not pertinent to a decision of the matter now before us, we here point out that it is shown by one of the affidavits attached to the petition in this case that two members of the Negro race were included in the panel from which the jury who tried petitioner was struck. That would not have been possible had the jury box not contained the names of Negroes, and it was the same jury box from which the grand jury was drawn which indicted the petitioner.
The writ of error coram nobis does not lie to enable an accused to question the merits of the case or to correct an error of fact which had 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. Johnson v. Williams, supra. It is also well established that in an application for leave to file a petition for writ of error coram nobis, mere naked allegations that a constitutional right has been invaded will not suffice; the application should make a full disclosure of the specific facts relied upon, and not mere conclusions as to the nature and effect of such facts. Johnson v. Williams, supra; *477 Ex parte Fuller, 40 Ala.App. 197, 116 So. 2d 395. The mere fact that the jury commission did not put the names of every qualified person on the roll or in the jury box does not, in the absence of fraud or a denial of constitutional rights, require quashing the indictment or venire. Fikes v. State, 263 Ala. 89, 81 So. 2d 303.
Another ground relied on by petitioner is supported by an affidavit of one Lott who was also convicted for rape of the same woman, committed at the same time, and given a life sentence. As we understand the argument in support of this ground, Lott was forced to sign a statement which allegedly falsely and untruthfully implicated Willie Seals, Jr. The statement was published in the Mobile Press and the Mobile Register before Willie Seals, Jr., was tried.
Lott did not testify on the trial of Seals and the statement was never used in the trial of Seals. But Seals now claims he was prejudiced by the newspaper publicity given to Lott's statement. As we have before pointed out, Seals did not ask for a change of venue. This was his remedy if he thought at the time that he had been prejudiced by unfavorable newspaper publicity.
Other grounds of the petition do not, in our opinion, merit a detailed discussion. They merely seek to reopen questions which were fully considered and determined on the appeal to this Court. They are not really substantial grounds supporting this petition, but more in the nature of arguments as to why Seals should not have been convicted.
We are, of course, not unmindful of the severity of the punishment in this case, but we cannot say that a prima facie case for the filing of a petition for writ of error coram nobis has been made. We must, therefore, deny the petition.
Petition denied.
SIMPSON, GOODWYN and COLEMAN, JJ., concur. | January 26, 1961 |
e4e70195-19ed-4d84-952d-474592a31501 | Coe v. Louisville and Nashville Railroad Company | 130 So. 2d 32 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 32 (1961)
Lena Birchfield COE
v.
LOUISVILLE AND NASHVILLE RAILROAD COMPANY et al.
6 Div. 588.
Supreme Court of Alabama.
May 11, 1961.
*33 J. Terry Huffstutler, Birmingham, for appellant.
Lange, Simpson, Robinson & Somerville, White E. Gibson, Jr., and Roy W. Scholl, Jr., Birmingham, for appellees.
LAWSON, Justice.
This is an action under the homicide statute (§ 123, Title 7, Code 1940) by Lena Birchfield Coe against Louisville and Nashville Railroad Company, a corporation, Elijah Oaks and Charles E. Wallace.
The death of plaintiff's intestate occurred at about 2:45 a. m. on the 6th day of March, 1956, when he drove his automobile into the side of a freight car, a part of a freight train, while the train was slowly moving over a crossing at Dartmouth Avenue in the City of Bessemer.
The defendant Oaks was the engineer on the train and the defendant Wallace was the conductor.
The case went to a jury on plaintiff's amended complaint, which contained two counts, and the defendants' plea of the general issue in short by consent in the usual form. Both counts charged the defendants with negligence in obstructing Dartmouth Avenue with a train.
There was a jury verdict for the defendants. Judgment followed the verdict. Plaintiff's motion for a new trial was overruled. She has appealed to this court.
The first assignment of error is that the trial court erred in overruling the plaintiff's motion for a new trial. The other assignments of error are to the effect that the court erred in giving certain charges at the request of the defendants.
After a careful study of the record we are convinced that the defendants were entitled to the general affirmative charge. This view, of course, answers the plaintiff's argument in brief that the trial court erred in overruling the grounds of the motion for new trial which took the point that the verdict was not sustained by the evidence and was contrary to the great weight of the evidence. This view makes it unnecessary to consider the assignments of error which assert error in the giving of charges requested by the defendants, for the rule is that where the general affirmative charge should have been given the defendant, error in giving any other charge to the jury is error without injury. Birmingham Ice & Cold Storage Co. v. Alley, 247 Ala. 503, 25 So. 2d 37; Dudley v. Alabama Utilities Service Co., 225 Ala. 531, 144 So. 5; Lambert v. Southern R. Co., 214 Ala. 438, 108 So. 255; Hambaugh v. McGraw, 212 Ala. 550, 103 So. 646.
This court, in line with the great weight of authority, has declared the rule that, in the absence of statute, or special conditions of hazard to motorists, there is no duty on the railway company to provide special warning or safeguards to motorists, either in the day or night time, to prevent collisions with cars standing on or moving across a grade crossing. The negligence of the driver of the automobile will be treated as the sole proximate cause of an injury resulting from running into a railroad car at a crossing, unless something intervenes calling for special precautions on the part of railway employees; some condition of hazard that *34 may lead to a collision, notwithstanding ordinary care on the part of the driver of the automobile. Southern Ry. Co. v. Lambert, 230 Ala. 162, 160 So. 262; Watson v. Birmingham Southern R. Co., 259 Ala. 364, 66 So. 2d 903; St. Louis-San Francisco Ry. Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 56 A.L.R. 1110.
The theory of the plaintiff's case is based on the contention that the crossing where the collision occurred was extra-hazardous.
In brief plaintiff has summarized the evidence which we understand her to say shows the extra-hazardous nature of the crossing. We quote:
In regard to the inability to see a train on the track at a point four hundred feet west of the crossing, one witness did give testimony to that effect. However, for aught appearing in this record, a train could have been seen on the track from any point less than four hundred feet west of the crossing. The burden was on the plaintiff to show that the crossing was extra-hazardous and we cannot say she met that burden by simply showing the inability to see the train when four hundred feet away. Cash v. New York Central R. Co., 294 Ill.App. 389, 13 N.E.2d 1012.
There were two cross-arm signs at the crossing. There was evidence to the effect that these signs were not visible to vehicles approaching the crossing from the west because of trees which hid them from view. This was the situation at a point four hundred feet west of the crossing and perhaps even closer, according to the evidence.
But plaintiff's intestate lived within three or four blocks of the crossing. It is without dispute that he was thoroughly familiar with the crossing.
Hence the inability of plaintiff's intestate to see the cross-arm signs at the time of the accident because of the trees does not add to plaintiff's case.
The object of such signals is to impart notice to the traveler of the location of the railroad track. But when one is shown to already possess that notice, the failure to properly display the signs will not give rise to a cause of action or support a charge of negligence based on such omission, for the manifest reason that the one for whose benefit the sign was required already possessed the knowledge that the sign was intended to impart. Cincinnati, N. O. & T. P. Ry. Co. v. Wallace's Adm'r, 267 Ky. 661, 103 S.W.2d 91. Those signs were designed to show the location of the train track, not to inform a traveler of the approach of a train. As shown above, plaintiff's intestate was thoroughly familiar with the crossing.
We are of the opinion that the plaintiff completely failed to meet the burden which was upon her to show a duty on the part of the defendants to give notice of the fact that the train was blocking the crossing at the time in question and that a failure to give such notice was the proximate *35 cause of the collision and the consequent injury and death of plaintiff's intestate.
In the case of Callaway v. Adams, 252 Ala. 136, 40 So. 2d 73, there was a signal light hidden from view by overhanging tree limbs. Lights on motor vehicles traveling in the direction of the crossing were focused only on the roadway until in immediate vicinity of the crossing, at which point the highway made an abrupt upgrade and the lights then became focused on a view of the crossing. The plaintiff was a stranger to the situation.
In the instant case there was no signal light involved. For aught appearing in this record, lights on motor vehicles traveling toward the crossing from the west were focused on the crossing immediately after passing a point four hundred feet west of the crossing. The plaintiff's intestate was not a stranger to the situation.
The plaintiff introduced an ordinance of the City of Bessemer, which in part reads: "It shall be unlawful for any person to block any of the streets or sidewalks of the City for a longer period of time than 5 minutes by the placing of any engine or car thereon."
At the time of the collision there had been no violation of the ordinance. The train had been moving across Dartmouth Avenue for only three minutes at the time of the collision.
Certainly this record shows no violation of an ordinance of the City of Bessemer which proximately contributed to the death of plaintiff's intestate. Mahone v. Birmingham Electric Co., 261 Ala. 132, 73 So. 2d 378.
The judgment of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | May 11, 1961 |
87f6151f-0ea9-4177-83d9-5fb21fe2d621 | White v. City of Birmingham | 130 So. 2d 234 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 234 (1961)
Arthur Lee WHITE
v.
CITY OF BIRMINGHAM.
6 Div. 679.
Supreme Court of Alabama.
March 2, 1961.
Rehearing Denied May 25, 1961.
*235 Arthur D. Shores and Orzell Billingsley, Jr., Birmingham, for petitioner.
J. M. Breckenridge and Jas. G. Adams, III, Birmingham, opposed.
GOODWYN, Justice.
Petition of Arthur Lee White for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in White v. City of Birmingham, 130 So. 2d 231.
The only questions dealt with in the Court of Appeals' opinion were the city's motion to strike the transcript of the evidence, which was granted, and the action of the trial court in overruling petitioner's motion to quash the complaint, which was held to be without error. The petition does not charge error in either of those respects. Instead, it states the following as a basis for award of the writ:
It is to be noted that the grounds of the demurrer, like the grounds of the petition for certiorari, assert that the ordinance is unconstitutional "as applied" to petitioner. It is not charged that the ordinance is unconstitutional on its face. Accordingly, there could be no basis for determining the constitutionality of the ordinance when applied to petitioner in the absence of facts showing such unconstitutional application. Since there was no pleading showing such facts, and the transcript of the evidence being stricken, there was no basis for the Court of Appeals to determine such constitutional question. Undoubtedly, that is the reason the Court of Appeals made no mention in its opinion of the trial court's ruling on the demurrer.
The Court of Appeals held, and we think without error, that "the record proper is in all things regular." Therefore, unless the transcript of the evidence, even though stricken, should have been examined by the Court of Appeals, and the constitutionality of the ordinance "as applied" to petitioner determined from such examination, the Court of Appeals did not err in pretermitting determination of the constitutional question. In Pate v. State, 244 Ala. 396, 14 So. 2d 251, 255, it was held that the examination of a bill of expections which had been stricken, in order to determine whether there had been compliance with the Fourteenth *236 Amendment to the United States Constitution, would be limited to capital cases. As there said:
See Michel v. State of Louisiana, 350 U.S. 91, 76 S. Ct. 158, 100 L. Ed. 83.
We think the Pate case is of controlling influence here and that the Court of Appeals acted properly in not examining the transcript of the evidence.
Writ denied.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | March 2, 1961 |
f44d4d4c-c132-4203-8b23-f9a61f2c9281 | Busby v. Pierson | 128 So. 2d 516 | N/A | Alabama | Alabama Supreme Court | 128 So. 2d 516 (1961)
Billie Gail Negron BUSBY
v.
Lela Echols PIERSON et al.
6 Div. 487.
Supreme Court of Alabama.
January 12, 1961.
Rehearing Granted March 30, 1961.
*517 Corretti & Newsom, Birmingham, for appellant.
Morgan & Shores, Birmingham, Janie L. Ellzey, (for guardian ad litem) and A. H. Nichols and J. L. Drennen, Birmingham, for appellees.
STAKELY, Justice.
Billie Gail Negron Busby (appellant) filed a bill to quiet title in rem to certain real estate located in Jefferson County. Lela Echols Pierson and others (appellees), include the heirs, devisees and next of kin of L. W. Mann, deceased, and A. T. Echols, deceased, and "any and all persons in the world claiming any right, title, interest, lien or encumbrance upon" the property in question. A guardian ad litem was appointed to represent the interests of Peggy Light, a minor, and all unknown parties who are infants or persons of unsound mind.
The land in question is part of a six acre tract. The conflicting claims at issue in the litigation result from the following situation. In 1903 J. T. and Alice D. Shugart conveyed the tract to A. T. Echols. A. T. Echols, who lived on this tract in a cabin with his family, died intestate in 1917. It appears that no administration proceedings were had on his estate. In 1923 the widow of A. T. Echols, Hattie Echols, who died in 1958, conveyed the tract by deed to L. W. Mann. In 1930 the interest sold to Mann passed to the State by virtue of a tax sale for failure to pay 1929 taxes. In 1945 the *518 State conveyed its rights and interest, without warranty or covenant, to William Negron, who in 1954 conveyed his interest in approximately five of the six acres to his daughter Billie Gail Negron Busby, complainant below and appellant here.
Appellant's position is that she holds a fee-simple title to the tract, free of liens and encumbrances, and is in possession of the land. The appellees, some of whom were the children of A. T. Echols and Hattie Echols at the time of his death and some of whom are the children of R. Harvey Echols, a son of A. T. Echols and Hattie Echols, who died after the death of A. T. Echols, on the other hand, contend that under the Alabama homestead statutes in effect at the death of A. T. Echols, §§ 4196 and 4198, Code of 1907, the widow Hattie Echols took only a life interest, with remainder in the children and grandchildren of the heretofore deceased A. T. Echols, that the interest successively conveyed, from Hattie Echols to the present appellant, was but the life estate of the widow Echols, that this life estate expired upon the death of Hattie Echols in 1958, that the property in question is now that of the appellees by virtue of the remainder interest.
The appellees filed a cross-bill to have the title quieted in their favor and by amendment to the cross-bill, sought relief in the form of a sale for division.
On November 19, 1958, a decree was entered by the court quieting title to the real estate in favor of appellant and dismissing the cross-bill. On December 19, 1958, the appellees filed an application for rehearing, which was presented to the trial court on that date. On the same date the trial court issued an order setting hearing for January 16, 1959, and continuing the case until that time. On April 7, 1959, the trial court granted the application for rehearing. There is no order or decree continuing the cause or retaining jurisdiction after January 16 that appears in the original record of the proceedings. On May 13, 1959 the appellees filed a motion for resubmission. On August 18, 1959 the trial court entered a final decree which purports to quiet title to the real estate in favor of the appellees. It is from this decree that the appellant has appealed.
The guardian ad litem has moved to dismiss the appeal on the following grounds, in substance: (1) that the failure of the appellant to insist on any of the particular errors assigned constitutes a waiver of all the assignments, and (2) that the failure of the appellant to serve the guardian ad litem with a copy of the assignments of error requires dismissal of the appeal.
For reasons which we see no need to set forth, we do not think well of the first ground of the motion, but do consider that the second ground is good. Since we shall undertake to show that the final decree which vests title to the real estate in the appellees who are the children of A. T. Echols and Hattie Echols or their descendants, should be affirmed, we see no point in granting the motion to dismiss the appeal. The minor Peggy Light is one of the heirs of A. T. Echols and Hattie Echols.
In her original brief appellant, apparently in relation to her assignments of error number 2, 7, 10 and 11, attacks the trial court's decree of April 7, 1959, granting the application for rehearing on the ground that the cause had by that date become discontinued and that the decree was thus rendered without jurisdiction. Appellant points out in brief correctly that the original record is devoid of any order continuing the cause or retaining jurisdiction in the trial court after January 16, 1959.
The transcript was filed in this court by appellant on December 9, 1959. On January 26, 1960, the trial judge entered a "Decree Nunc Pro Tunc," which on the direction of the trial judge was certified to this Court as a "supplemental transcript" and filed in this Court on January 27, 1960. This nunc pro tunc decree, contained in the supplemental transcript, orders in substance the entering of a continuance, effective January 16, 1959, of the cause and a retention *519 of jurisdiction until January 23, 1959, and, the taking of the cause under advisement and submission on its merits, effective January 23, 1959. The record is ordered to be amended accordingly and the supplemental transcript containing the decree to be filed in this Court. If this decree is effective, it will serve to supply the fatal omissions in the original transcript which, appellant contends, caused a discontinuance and consequently a loss of jurisdiction in the trial court. For purposes of the present assignment of error, the decree of April 7 would be thus valid.
Appellant has filed a motion to strike the supplemental transcript and a supporting brief.
Title 7, § 567, Code of 1940 provides that:
Appellant contends that the quoted statutory provision does not authorize the nunc pro tunc decree in the instant case.
It appears from the nunc pro tunc decree itself that upon the filing of the appellees' application for rehearing on December 19, 1958, the trial court on that date continued the application to January 23, 1959.
This court has said that "[N]unc pro tunc amendments should never be the means of modifying or enlarging a judgment so that it would express something which the court did not pronounce, even though such amendment embraced matters that should have been clearly pronounced." Tombrello Coal Co. v. Fortenberry, 248 Ala. 640, 642, 29 So. 2d 125, 126. This court in Gaston v. Reconstruction Finance Corporation, 237 Ala. 111, 113, 185 So. 893, also said: In other words nunc pro tunc amendments are to make the record "show what the judicial action really was * * *." Wilmerding v. Corbin Banking Co., 126 Ala. 268, 273, 28 So. 640, 641.
We think the instant situation comes within the principles of the above-quoted cases. The effect of the nunc pro tunc decree here in question is not to amend or change a judgment, or to attempt to do something that was not actually done at the time by the trial court, but merely to place formally on the record a decree as it was actually pronounced or rendered by the court at the appropriate time and which was omitted from the original record only through error or oversight. We do not think it material whether the omission was the "fault" of the clerk of the court or of the trial judge himself. "Clerical errors are not those alone which the clerk makes. They include all such, being matters of record, as intervene in the progress of a cause, whether committed by the court or the counsel, to which the judicial sanction *520 or discretion cannot reasonably be said to have been applied." Ford v. Tinchant, 49 Ala. 567, 570; Capps v. Norden, 261 Ala. 676, 75 So. 2d 915; Wilder v. Bush, 201 Ala. 21, 75 So. 143. "Amendment nunc pro tunc is available to correct a clerical error of the judge, as well as that of the clerk of the court." Tombrello Coal Co. v. Fortenberry, supra [248 Ala. 640, 29 So. 2d 126].
Appellant argues that the supplemental record should not be considered on the ground that under Tit. 7, § 827(la), "if no objections (to the record) are filed within * * * ten (10) days the transcript shall be conclusively presumed to be correct."
Sections 827(1) through 827(6), Title 7, 1955 Cumulative Pocket Part, Code of 1940, are all part of or amendments to Act No. 461, Gen.Acts 1943, p. 423 et seq. Section 827(la) was added by amendment, Gen. Acts 1951, p. 1528, § 2. The title to the original 1943 Act is as follows:
Thus § 827(1) begins, "Bills of exception in the trial of cases at law in the circuit court, etc."
In Garrett v. Oddo, 261 Ala. 172, 174, 73 So. 2d 761, 763, this Court said that § 827(3), "does not apply to equity cases under the terms of the Act of June 10, 1953, Acts 1953, page 122, Act No. 80." The 1953 Act rewrote § 827(3). Smith v. Bank of Blountsville, 262 Ala. 65, 77 So. 2d 357.
What is true for § 827(3) should also be true for § 827(la), as part of the same overall statute. Accordingly as stated the foregoing portion of § 827(la) does not apply to suits in equity.
We note too that "an appeal does not prevent the trial court from perfecting its record for use on appeal and that court alone has such authority." Johnson v. Bryars, 264 Ala. 243, 247, 86 So. 2d 371, 375; Nolan v. Moore, 254 Ala. 74, 46 So. 2d 825.
We call attention to Equity Rule 63, Code 1940, Tit. 7 Appendix, which counsel do not mention so far as we are aware. This rule is as follows:
In Ex parte Sharp, 259 Ala. 652, 68 So. 2d 545, 547, we said that, "Under Equity Rule 63, there is no power to correct judicial errors." In Capps v. Norden, supra [261 Ala. 676, 75 So. 2d 920], we pointed out that under Equity Rule 63 clerical errors committed by the court can be corrected "when there is sufficient matter apparent on the record or entries of the court to amend by." In other words, we reach the same result whether it be under § 567, Title 7, Code of 1940, or under Equity Rule 63.
Assignments of error 1, 2, 4, 7, 10 and 11 deal with the supposed error of the trial court in granting the rehearing, which ultimately resulted in the decree in favor of the appellees. It is apparently to these assignments that appellant refers when she contends in brief that, "It is clear from examining the record in this case that the appellee did not carry the burden of proof, insofar as establishing that the property which is the subject of this suit was the homestead of A. T. Echols." By this contention we understand appellant to mean that because appellee failed to carry the burden of proof on the merits of the case, the first decree, that of November 19, 1958. *521 was just and proper and that therefore it was error for the trial court to grant the rehearing.
In her bill of complaint appellant has alleged ownership of the land in question. This is denied in the appellees' answer. This Court has pointed out that in a statutory bill to quiet title it is not necessary that the source of complainant's title or claim be set out, and that such allegation is surplusage, but that "an allegation of ownership, which is denied in the answer, places on complainant the burden of proving ownership in addition to peaceable possession." Wylie v. Lewis, 263 Ala. 522, 523, 83 So. 2d 346, 347; Motley v. Crumpton, 265 Ala. 565, 93 So. 2d 413.
The controversy as to the rights and title of the respective parties turns in the main on the provisions of our homestead laws. The controlling statutes are those in force at the time of the death of the husband, A. T. Echols, in this case the statutes being §§ 4196 and 4198, Code of 1907. Compton v. Cook, 259 Ala. 256, 66 So. 2d 176. The relevant provisions are:
Since it was the burden of the appellant to prove her ownership, and since appellant's ownership if any is derived from that of the widow Hattie Echols, it was incumbent on appellant to show that under or in spite of the quoted statutory provisions the widow took more than a mere life interest after the death of her husband.
The evidence was taken ore tenus in the trial court. We cannot attempt to retry the cause or to resolve any conflicts in the evidence in this court. Without trying to set forth all the testimony in detail, we think that there was sufficient evidence from which the trial court could resolve the question of ownership against the appellant.
It appears to be undisputed that the land in question is less than 160 acres. There *522 was testimony by one witness that the value of the land was but $250 and by another that the total value was about $2,000. There appears no evidence that homestead exemption proceedings or administration or insolvency proceedings were had. There was testimony by one of appellant's witnesses, as well as by appellee Lela Echols Pierson, to the effect that A. T. Echols was living on the land in question at the time of his death. There is no showing that he had abandoned the land as his homestead.
There was some evidence of "talk" that Hattie Echols was married to a man named Cheek in 1892 and testimony that A. T. Echols had been previously married and that about 1917 "some woman other than his wife", whose status is not clear from the record, was living with him. The presumption is, of course, that the last marriage, that of Hattie and A. T. Echols, was valid. Jones v. Case, 266 Ala. 498, 97 So. 2d 816. We see nothing in the record which necessarily rebutted that presumption.
We do not consider that the effect of this evidence is such as to require us to hold that the appellant has necessarily proven that the land in question was not the homestead of A. T. Echols or that under the homestead statute the widow of A. T. Echols and the source of appellant's supposed title, took more than a mere life interest, or that the trial court committed reversible error in granting the rehearing.
Appellant further contends that the trial court erred in not allowing appellant by way of a lien any amount for improvements made by her and her father on the land in question. There was evidence that the improvements consisted of a house of approximately $3,000 value. The general rule has been that a holder of a life interest is not entitled to reimbursement as against the remaindermen or reversioners. "The reason given for the rule is that the life tenant does not hold adversely to the remainderman or reversioner, and must therefore be held to have made improvements merely with a view to enjoying them so long as the life estate continued, or to have intended them for the benefit of the remainderman." Sumner v. Bingham, 210 Ala. 446, 448, 98 So. 294. But where the holder of the life interest has no reason to believe his interest to be so limited, and reasonably considers himself the owner of the full fee, we cannot say as a matter of law that he has made the improvements other than for the exclusive benefit of himself. It is apparent that the principles under which a party is given an allowance for improvements are grounded on equitable considerations having to do with the prevention of unjust enrichment. In the usual situation involving a life tenant who makes improvements, the enrichment of the remainderman or reversioner cannot be called unjust, for the life tenant has made the improvements voluntarily and with open eyes. In the case at bar we see nothing sufficient as a matter of law to have opened the eyes of the appellant. To deny the allowance to the appellant would be to enrich unjustly the appellees.
In the Sumner case, supra, we qualified the general rule by pointing out that in that case there was "no averment that complainant claimed more than a life estate * * *". The view which we here express is supported in principle by the following cases: Lee v. Menefield, 249 Ala. 407, 31 So. 2d 581; Porter v. Henderson, 203 Ala. 312, 313, 82 So. 668; McDaniel v. Louisville & N. R. Co., 155 Ala. 553, 46 So. 981, 983. In these cases this court in effect approved allowances for improvements made in good faith by persons holding a lesser title without knowledge of the existence of the superior title. As we said in the McDaniel case, supra, "It is not a question of superiority of title, but purely one of good faith in the claim of ownership and in the erection of improvements." We think, therefore, that the court was in error in not allowing a lien in favor of the appellant for reasonable expenditures made by her *523 or her father for improvements on the property.
Affirmed in part and in part reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.
Peggy Light, a minor, takes the position through her guardian ad litem that the opinion of this court is inconsistent in holding that the motion made by the guardian ad litem to dismiss the appeal is good on one ground, but would not be considered because of the ultimate holding that the appellees, who include Peggy Light, are the owners of the property. We concede the inconsistency and grant the rehearing as to the minor, Peggy Light. We do not see how the dismissal of the appeal as to Peggy Light can affect injuriously the other appellees, as we shall show. McMichael v. Thomas, 164 La. 233, 113 So. 828; 5 C.J.S. Appeal and Error § 1384, p. 506; 4 C.J., p. 605; Crawfordsville Trust Co. v. Ramsey, 55 Ind. App. 40, 100 N.E. 1049, 102 N.E. 282.
A lien to the appellant for improvements was denied by the lower court but this court decided on appeal that such a lien should be allowed. Obviously, if the appeal had been dismissed as to Peggy Light, then there would be no opportunity or occasion for this court to allow the lien on the interest in the property of Peggy Light.
The record in the case is silent as to service of a copy of the assignment of errors upon the guardian ad litem. This is clearly a violation of Supreme Court Rule 1, Code 1940, Tit. 7 Appendix. Edge v. Bice, 263 Ala. 273, 82 So. 2d 252; Department of Industrial Relations v. Simms, 39 Ala.App. 525, 104 So. 2d 782; Jackson v. Park, 39 Ala.App. 138, 95 So. 2d 815. In the instant case, there was a motion by the guardian ad litem to dismiss the appeal on the ground, among other grounds, that a copy of the assignment of errors was not served upon the guardian ad litem. The motion was sworn to. There is no controverting affidavit in the record. Edge v. Bice, supra; Department of Industrial Relations v. Simms, supra. The case was submitted to this court both on the motion to dismiss and on the merits.
In determining the amount of the lien for improvements, the court will consider the extent of the interest of Peggy Light in the property as found by the court and will establish no lien on the interest of Peggy Light, but will establish the lien for improvements on the interest of the remaining owners of the property as found by the court, the lien to be in an amount which is proportionate between the extent of such remaining interests and the reasonable cost of the improvement. For example, by way of illustration, if the court has determined that Peggy Light has a 1/20 interest in the property, then the lien on the remaining interests shall be 19/20 of the reasonable cost of the improvements. In order that there be no uncertainty as to the title, we call attention to the fact, as we understand the situation, that this proceeding is a statutory bill to quiet title in rem and by the procedure under the statutes (§§ 1116-1132, Tit. 7, Code of 1940), there is no minor or person of unsound mind, other than Peggy Light, who has an interest in the property.
Opinion extended, application for rehearing as to Peggy Light is granted. Appeal dismissed as to Peggy Light. | March 30, 1961 |
40154f7d-418c-4f0e-a0ba-7dfaa8ac32d9 | Cooper Transfer Co. v. Alabama Public Service Commission | 127 So. 2d 632 | N/A | Alabama | Alabama Supreme Court | 127 So. 2d 632 (1961)
COOPER TRANSFER COMPANY, Inc.
v.
ALABAMA PUBLIC SERVICE COMMISSION.
1 Div. 761.
Supreme Court of Alabama.
March 2, 1961.
*633 D. H. Markstein, Jr., Markstein & Cooper, Birmingham, for appellant.
John Patterson, Atty. Gen., and Wm. C. Younger, Asst. Atty. Gen., for appellee.
COLEMAN, Justice.
This is an appeal from a decree of the Circuit Court of Mobile County, in Equity, overruling a demurrer to a bill of complaint.
The complaint, Alabama Public Service Commission, alleges in the bill that respondent is an Alabama corporation operating as a common carrier by motor vehicle; that respondent's principal place of business is Brewton, which we judicially know is in Escambia County, Hall v. State, 213 Ala. 325, 104 So. 826; that respondent holds a certificate authorizing it to operate, inter alia, "Between Brewton and points within a radius of 150 miles of Brewton, over irregular routes, No Service to Points Located on Alabama Highway 5, or Points West of Alabama Highway 5"; "That lying adjacent to Alabama Highway No. 5, on the east thereof, approximately twenty miles north of Mobile, Alabama, in Mobile County, is a manufacturing plant known as Courtaulds, Inc. The real property of Courtaulds, Inc., extends from the east boundary line of said Highway No. 5 eastward to the Alabama River, and running north and south approximately through the center of said property and paralleling said Highway No. 5 is the right of way of the Southern Railway Company. The plant proper of Courtaulds, Inc., is located east of the said Southern Railway right of way and other structures and buildings are located on both sides of said railroad right of way. The only access to Courtaulds, Inc., except by rail, is a county road, which runs directly from said Highway No. 5 in an easterly direction across the said Southern Railway right of way to the physical plant of the said manufacturing Company. The said county road originates at the east boundary line of Highway No. 5 and terminates on the said property of Courtaulds, Inc."; that respondent is handling shipments to and from said plant of Courtaulds, Inc., "whose manufacturing plant and other facilities are located on its property, which is located on, contiguous and adjacent to Alabama Highway No. 5"; that respondent's certificate *634 does not authorize it to serve Courtaulds as aforesaid; that complainant had notified respondent by letter that respondent was not authorized to serve Courtaulds, and had directed respondent to cease handling shipments to and from Courtaulds; that respondent's attorney had replied by letter advising complainant that respondent refused to cease as directed because it believed it had authority to serve Courtaulds and offering to file bill for declaratory judgment to determine respondent's authority.
The prayer is for a permanent injunction enjoining respondent from transporting goods to and from Courtaulds at the location hereinabove described and for general relief.
Respondent argues two grounds of demurrer, to wit, first, that the averments of the bill show that the venue is improperly laid in Mobile County, and, second, that the bill fails to show that respondent, in serving Courtaulds, is exceeding its authority under its certificate.
If the averments of the bill show that it is filed in the wrong venue, a demurrer to it on that ground is the proper practice. State v. Stacks, 264 Ala. 510, 88 So. 2d 696; Faulk v. Faulk, 255 Ala. 237, 51 So. 2d 255, 256. We are of opinion, however, that the averments of the instant bill do not show that it is improperly filed in Mobile County and that the grounds of demurrer challenging the venue are not well taken.
The venue of original suits in equity is fixed by § 294, Title 7, Code 1940, which provides in pertinent part "The bill must be filed in the county in which the defendant, or a material defendant, resides; * * *." Faulk v. Faulk, supra. In considering venue of a suit for divorce, however, this court said: "Both the jurisdiction and the venue of a suit for divorce are determined in this state by section 3801 of the Code (of 1937, now § 28, Title 34, Code 1940), and not by either section 3093 (of Code of 1907, now § 294, Title 7, Code 1940) or 6110 (of Code of 1907, now § 54, Title 7, Code 1940), for this last section expressly provides that it applies in those cases only in which the venue is not otherwise provided. While section 3093 (§ 294, Title 7, Code 1940) does not expressly so provide, yet it is certain that it would not control as against a statute which expressly provides the particular jurisdiction and venue as for a specific class of actions, as is done in the case of divorce proceedings. * * *." (Par. and Emphasis supplied.) Puckett v. Puckett, 174 Ala. 315, 320, 56 So. 585, 586. Special provisions relating to specific subjects control general provisions relating to general subjects. Herring v. Griffin, 211 Ala. 225, 100 So. 202; Geter v. United States Steel Corporation, 264 Ala. 94, 84 So. 2d 770.
There is a statute which expressly provides the venue for the specific class to which the instant suit belongs. Act No. 669, approved July 5, 1940, in pertinent part recites:
We repeat the applicable language, to wit:
The special statutory provision here controls the general provision and the venue is properly laid in Mobile County because this is a suit to enforce a condition of respondent's certificate and respondent operates in Mobile County.
Respondent argues that the Act of 1940, supra, does not apply because this is a suit to enforce an order of the Public Service Commission and the bill fails to show any such order. We are inclined to agree that the bill fails to show an order, but the 1940 Act does not limit the Commission's authority to the point that it can apply for injunction only to enforce an order. The language of the statute gives authority to apply to enjoin violation of the condition of a certificate, and that is what the Commission has applied for here.
If the Commission be entitled to enjoin the violation of the certificate, the bill must show that the act sought to be enjoined is, in fact, such a violation.
The bill clearly alleges that the plant of Courtaulds, Inc. is east of Highway 5. The certificate does not prohibit service to a point east of the highway unless such point is "located on" the highway.
Looking to the facts averred in the instant bill, and construing the averments against the pleader as we must on demurrer, we are of opinion that the facts averred do not, as a matter of law, clearly and unequivocally show that the point to which respondent makes the deliveries sought to be enjoined is located on the highway within the meaning of the word, on, as used in respondent's certificate.
The bill avers that the "only access" to the plant, "except by rail, is a county road, which runs" from Highway 5, across the railroad "right of way to the physical plant" of the company. The distance from the highway to the plant is not shown. That distance might be 100 yards or 10 miles, for aught that appears in the bill. We do not think a plant located ten miles, or even one mile, from a highway and on a county road, is, as a matter of law, "located on" that highway according to the ordinary meaning of the language used. It seems more likely that such a plant would ordinarily be described as being one mile, or ten miles, "off" the highway.
The Commission's argument seems to be summarized in brief as follows:
Whatever may be the reason for the appellee's contention, we are not able to agree that a restriction which forbids service to a point located on a highway also forbids service to a point which is not located on the highway, simply because the point cannot be reached except by a county road leading from the highway. To so hold would be to amend the certificate.
On demurrer, a bill must be construed most strongly against the pleader, and if a pleading is susceptible of two constructions, one which will render it good and the other bad, the latter must be indulged because it is the one against the pleader. Puckett v. Puckett, supra.
We think the instant bill is subject to two constructions. If it does not affirmatively show that the point in question is not located on Highway 5, certainly it is susceptible of such a construction. So construed, the bill is without equity, and the grounds of demurrer taking that point are due to be sustained.
Appellee has attached to its brief four exhibits purporting to show the relative location of the plant and the highway. These exhibits are not in the record and cannot be considered. Williams v. Schaeffer, 262 Ala. 636, 80 So. 2d 722.
The decree overruling the demurrer is reversed, a decree is here rendered sustaining the demurrer, and the cause is remanded.
Reversed, rendered, and remanded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | March 2, 1961 |
439e0f75-2cd9-4e2c-87de-e5874299a1cf | Hewett v. Continental Supply of Huntsville, Inc. | 127 So. 2d 834 | N/A | Alabama | Alabama Supreme Court | 127 So. 2d 834 (1961)
Evelyn H. HEWETT
v.
CONTINENTAL SUPPLY OF HUNTSVILLE, INC.
8 Div. 950.
Supreme Court of Alabama.
March 2, 1961.
*835 Smith & Moore, Guntersville, for appellant.
Butler & Scott, Huntsville, for appellee.
COLEMAN, Justice.
This is an appeal by respondent from a final decree for complainant in a suit to establish a trust in two tracts of land. It is *836 stipulated that the title is of record in the name of the respondent. The complainant is a corporation, the respondent a natural person. The circuit court heard evidence ore tenus and rendered a decree which divested respondent of title and vested it in the corporation.
The salient facts are that in November, 1954, Jerome Hughey and Elmo Hewett started a building supply and home construction business. The business was incorporated April 17, 1956, as Continental Supply of Huntsville, Inc., a corporation. That corporation is the complainant.
Two hundred shares of stock were issued as follows: to Hughey 99 shares and to his wife 1 share, to Hewett 99 shares and to his wife 1 share. Mrs. Hewett is the respondent. Hewett was president, Hughey vice-president, Mrs. Hughey secretary, and Mrs. Hewett treasurer, respectively, of the corporation. Hewett was the "acting Manager" and operated the business of the corporation. Hughey, the vice-president, was engaged in another business in the same building. He had no specific duties as vice-president but occasionally discussed the policies and operation of the corporation with Hewett. Respondent did not participate in the business of the corporation. Whether Mrs. Hughey participated or not does not appear.
The record does not precisely show the dates here involved, but we set out the dates as they appear to be shown, at least approximately, by the record. The corporation delivered to one Duncan certain building materials, worth approximately $2,000, on the agreement that Duncan would "swap" the lots, which are referred to as Tract One, or the Duncan lots, in exchange for the materials. In April, 1956, on the instructions of Hewett, which Hughey expressly approved, Duncan conveyed Tract One to respondent.
On March 10, 1956, Hewett borrowed $1,500 without interest from the Citizens Bank of Oneonta. Respondent's uncle was president of that bank and the transaction was conducted through him. To secure this loan, respondent and her husband executed to the bank a mortgage on their home in Arab. At some time between April and August, 1956, the money thus borrowed was used to buy a tract of land from one Franklin. Title was taken in the name of the respondent. The dimensions of the Franklin tract were 150 by 200 feet. It was divided into two lots, the larger being 100 feet by 200 feet. The larger lot was sold for $1,600 and was conveyed to the purchaser by deed executed by respondent and her husband. There is mention of a house being on the lot, but we understand the $1,600 was paid for the lot. It is difficult to believe that a house and lot sold for $1,600 in 1956. The $1,600 was paid to the corporation. The corporation paid off the $1,500 mortgage to the Citizens Bank of Oneonta and kept the other $100. Payment to the Oneonta bank was made by a check drawn on a Huntsville bank and dated August 7, 1956. Apparently the check was not presented for payment immediately because the mortgage debt was paid November 10, 1956, according to testimony of the president of the Oneonta bank. The remaining lot, 50 by 200 feet, is referred to as Tract Two.
Frank J. Sida testified that he was president of the complainant corporation at the time of the trial; that he first became interested in purchasing stock "from" the corporation the first of August, 1956; that he contracted to purchase the stock on August 13, 1956; and that he obtained the stock probably April 18, 1957. The stock referred to above appears to be the 100 shares originally owned by Hughey and his wife.
Sida had formerly lived in Chattanooga where he operated or owned a company which sold material to the complainant on open account. On August 13, 1956, he delivered a truckload of merchandise to complainant. On that date he entered into employment by the complainant as store manager and was "in charge of making purchases." Hewett and Hughey gave Sida authority "to make all the purchases," and he made purchases from his own company *837 and also from others. By November, complainant had purchased from Sida's company "close to $30,000.00" and had paid something on account. On November 1, 1956, the unpaid debt was $18,000, and some time in December Sida "cut them off" from further extension of credit.
January 7 or 8, presumably 1957, Sida discussed with Hewett the proposition of buying his interest "in the business." Hughey and one Pipes were present. "It was agreed to sell out to" Sida "for $4,000.00 for his (Hewett's?) part for all of it, his interest, and the contract was drawn up to that effect," but the contract was never signed by Hewett. At the time Sida "consum(m)ated the contracts to purchase the stock from Mrs. Hewett and Mr. Hughey" the financial condition of the corporation was critical, "It owed more than it was worth. Still does."
Sida testified that at the time of negotiations with respondent "for the purchase of stock and also the purchase of her land," he did not recognize that it was her land, and it was stated that he, Sida would pay for the stock and "file suit in behalf of the company for the lots."
Sida testified that when he first entered into "the contract" (we understand it was the contract to purchase the corporate stock), Sida, Hewett, and Hughey "Went through the real estate." Hewett and Hughey showed Sida the lots in suit and represented to him that the lots were "Part of the interest I would be buying." Sida also testified:
Sida testified also that he was present at the time the check to the Oneonta bank, dated August 7, 1956, was issued and that he remembered the discussion.
Sida testified that "up to the Saturday that the contract was closed over at Guntersville," respondent was willing "to deed the property over at the closing and the payment of the contract." Hughey testified that respondent, after the death of her husband told him, Hughey, "that she knew that the lots belonged to Continental Supply and she anticipated or planned deeding the lots back to the company."
Hewett died February 1, 1957. On March 9, 1957, Sida, after some weeks of negotiation, entered into a contract with the respondent to purchase her stock, including her late husband's also, we think, so as to be 100 shares or one-half of all the issued stock of the complainant. Apparently that agreement was executed before this suit was begun and Sida, when the instant bill was filed, owned all the stock of the complainant corporation. With respect to the occasion when the contract to purchase the Hewett stock was finally entered into, the transcript shows the following on cross-examination of Sida, to wit:
On March 12, 1957, the bill of complaint in the instant suit was filed.
Appellant concedes that the consideration for the conveyance of Tract One to her was furnished by the corporation, but insists that the corporation cannot set aside that conveyance or enforce a trust in Tract One because the purpose of the conveyance was to hinder, delay, or defraud the creditors of the corporation. Appellant's argument is based on the rule that when one purchases property and procures a conveyance thereof to be made to another for the purpose of defrauding creditors of the person furnishing the consideration, then the one procuring such conveyance will be denied relief in equity. The appellee corporation insists that the rule has no application in this case. We think it does.
It is well established that a deed made to defraud creditors, which is fully executed by delivery, though void as to existing creditors of the grantor at the time of execution is valid as between the parties, and the grantor and those claiming merely in succession to him are estopped from denying its validity. Henslee v. Henslee, 263 Ala. 287, 82 So. 2d 222, and *839 authorities cited there and in Ala. Digest, Fraudulent Conveyances, Key No. 172.
The conveyance of land for a simulated consideration, no part of which has ever been paid, is voluntary and void as to existing creditors, without regard to the solvency of the grantor or to the intent entertained by the parties to the conveyance at the time. Moore v. Altom, 192 Ala. 261, 68 So. 326; McClintock v. McEachin, 246 Ala. 412, 20 So. 2d 711. As against existing creditors, a voluntary conveyance is per se fraudulent. Cook v. Clark, Davis & Co., 212 Ala. 257, 102 So. 213.
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 to such other person is fraudulent as to such creditors. The following cases support this rule. In Elliott v. Horn, 10 Ala. 348, a father furnished consideration for land and caused the conveyance to be made to his minor son. This court held the conveyance to the son void as against a creditor of the father. In Stoutz v. Huger, 107 Ala. 248, 18 So. 126, a husband furnished the consideration for real estate conveyed to his wife. This court held the conveyance to the wife void as to creditors of the husband. In Kelley v. Connell, 110 Ala. 543, 18 So. 9, where the husband paid for land conveyed to the wife, this court said the creditors of the husband were entitled to have the conveyance to the wife set aside and subjected to payment of the husband's debt except for the claim of homestead which, if proved, entitled him to the land as against his creditors. In Washington v. Arnold, 167 Ala. 448, 52 So. 463, where the husband furnished the consideration for a deed to the wife, this court held the deed fraudulent as to a creditor of the husband. In Birmingham Trust and Savings Company v. Shelton, 231 Ala. 62, 163 So. 593, in holding demurrer properly overruled to that aspect of a bill seeking to set aside conveyances allegedly fraudulent, this court said:
We are of opinion that as to fraudulent conveyances, the rules which apply to natural persons apply also to corporations. A text writer states the rule as follows:
See: Berney Nat. Bank v. Guyon, 111 Ala. 491, 20 So. 520; Metcalf v. Arnold, 110 Ala. 180, 20 So. 301, 55 Am.St.Rep. 24; Fort Payne Bank v. Alabama Sanitarium, 103 Ala. 358, 15 So. 618; Corey v. Wadsworth, 99 Ala. 68, 11 So. 350, 23 L.R.A. 618, 42 Am.St.Rep. 29; Montgomery & *840 West Point Railroad Co. v. Branch, Sons & Co., 59 Ala. 139.
Applying the stated principles to the facts shown in the instant case, we are of opinion that the conveyance of Tract One to respondent was a conveyance with intent to hinder, delay, or defraud the creditors of the corporation; and, while the conveyance might be set aside in a suit brought by a creditor of the corporation, or by a stockholder in a proper case, Northwestern Land Association v. Grady, 137 Ala. 219, 33 So. 874, the instant suit was brought by the corporation itself. No creditor or stockholder is a party.
The corporation furnished the consideration for the conveyance which was made at the direction of Hewett acting as president of the corporation. The vice-president, Hughey, approved the conveyance to respondent. As a witness for complainant, on direct examination, with reference to that conveyance Hughey testified as follows:
Hewett and Hughey together owned 99% of the corporate stock. They were the managing officers of the corporation and were clothed with authority to act for it. The conveyance was to respondent who owned ½ of 1% of the stock. The remaining ½ of 1% was owned by Mrs. Hughey. It might be that Mrs. Hughey could have complained before she parted with her stock, but as to that we do not decide because she is not a party to this suit. The conveyance was procured by the corporation, was without consideration, and, as we view the evidence, was made to defraud creditors. Because the corporation occupies the status of a fraudulent grantor, it is not entitled to have its own fraudulent act set aside.
With respect to the contention that it was represented to Sida that the property was part of the assets of the corporation, it appears from the testimony of Sida above set out, that on March 9, 1957, before he purchased the stock, he was fully advised that the lots in suit were in the name of respondent and that she claimed to own them. A similar situation was presented in Piggs v. Casper Co., Inc., 196 F. 177, 116 C.C.A. 9. In that case a corporation sued to set aside a conveyance of real estate made by the corporation to one Angle without consideration in fraud of its creditors. Angle conveyed the real estate to the respondent, Pigg, as trustee for Pigg's wife to secure a fictitious debt to her. Subsequent to the conveyance to Pigg, the stock of the corporation passed into the hands of stockholders other than those who held the stock at the time of the conveyance. The new stockholders did not acquire their rights by operation of law, but acquired by purchase. The new stockholders caused suit to be brought in the corporate name to set aside both conveyances. The district court granted relief. The Circuit Court of Appeals reversed and held that the fact that the stock had passed into new hands did not authorize maintenance of the bill because "the present stockholders became such with full knowledge that the conveyance had been made." So in the instant case, Sida became stockholder with full knowledge of respondent's position, and the fact that he acquired the stock after the conveyance cannot aid the corporation.
*841 We are of opinion that the court erred in setting aside the conveyance of Tract One to respondent.
As to Tract Two, there can be no resulting trust because Tract Two was not acquired by respondent with assets or money of the corporation. It is clear that the purchase money for Tract Two was not paid by the corporation at the time it was conveyed to respondent. Title to this tract passed to respondent at the time it was conveyed to her by Franklin. The purchase price was paid by Hewett and respondent with money borrowed from the Oneonta bank. Neither Franklin, the corporation, nor the bank had any claim on Tract Two at that time.
A resulting trust has its origin solely in the facts that the purchase money is paid, or advanced by one person at the time of purchase, and the title is taken in the name of another. Long, Adm'r v. King, 117 Ala. 423, 23 So. 534; Talley v. Talley, 248 Ala. 84, 26 So. 2d 586. If no money was so invested at the time of the purchase, when title was taken, a subsequent contribution as part payment does not create a resulting trust. Miles v. Rhodes, 222 Ala. 208, 131 So. 633. To constitute a resulting trust it is necessary to show payment by complainant, or an absolute obligation to pay, incurred by him, as a part of the original transaction of purchase, at or before the time of the conveyance. Hooks v. Hooks, 264 Ala. 66, 84 So. 2d 354. The corporation paid nothing at the time Tract Two was conveyed to respondent.
There is no showing of fraud against the corporation on the part of respondent or anyone else at the time she acquired title to Tract Two. It is not shown that the corporation had any property, right, or interest in Tract Two at that time. It is not shown that the conveyance of Tract Two to respondent in any way impaired any right of the corporation. Good faith to the corporation does not require of its officers that they steer from their own to the corporation's benefit enterprises or investments which, though capable of profit to the corporation, have in no way become subjects of their trust or duty. Lagarde v. Anniston Lime & Stone Co., 126 Ala. 496, 28 So. 199.
The conveyance of Tract Two to respondent did not impress that property with a constructive trust because there was no fraud at the time of purchase. A constructive trust arises when one person, occupying a fiduciary position, or having placed himself in such position in relation to another that good faith requires him to act for the other and not himself, acquires the title to the property in himself in place of the cestui que trust. These cases involve fraud, or a breach of trust in acquiring the title to the property in himself. The fraud must be implicit in the original transaction, not later. Talley v. Talley, supra. There is no fraud shown here in the original transaction, and, consequently, there is no constructive trust.
There remains to be considered the question as to whether or not the proof is sufficient to enforce a right of the corporation in the property on the theory of a parol, executory agreement by respondent to convey, and by the corporation to purchase, Tract Two. Such a theory was applied in Talley v. Talley, supra.
We are of opinion that the evidence does not support such a conclusion. Title was taken in respondent's name and the consideration was furnished by respondent and her husband. Later, when the part of the tract was sold, only the part sold was conveyed and title to the remainder was left in respondent.
Respondent's statements that the lots belonged to the corporation and that she "planned deeding the lots back to the company," taken most favorably to complainant, show nothing more than acknowledgment of a parol trust in lands. The statute prohibits creation of a trust concerning lands, except such as results by implication or construction of law, unless by writing. § 149, Title 47, Code 1940.
The evidence is against the conclusion that the corporation paid anything for *842 Tract Two. Respondent and her husband furnished the purchase price at the time the land was bought in the respondent's name. The money used to pay the mortgage debt to the bank came, not from assets of the corporation, but from the proceeds of the sale of a part of the tract to which respondent held title and in which at that time the corporation had no right, legal or equitable.
We are at the conclusion that the evidence does not support a finding that respondent had agreed to sell the Franklin lot, or Tract Two thereof, to the corporation, and further, that the corporation has not shown an oral contract to purchase Tract Two in which the grantee has paid the consideration. We are of opinion that the court erred in granting relief to complainant as to Tract Two.
For the reasons set out, the decree is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | March 2, 1961 |
154c1733-e65f-448f-9277-462936785a64 | CO Osborn Contracting Co. v. Alabama Gas Corp. | 135 So. 2d 166 | N/A | Alabama | Alabama Supreme Court | 135 So. 2d 166 (1961)
C. O. OSBORN CONTRACTING COMPANY
v.
ALABAMA GAS CORPORATION.
6 Div. 444.
Supreme Court of Alabama.
March 23, 1961.
Rehearing Denied June 22, 1961.
*167 S. P. Keith, Jr., Birmingham, for petitioner.
Hobart A. McWhorter, Jr., White, Bradley, Arant, All & Rose, Birmingham, opposed.
COLEMAN, Justice.
Plaintiff sued to recover for damage to its gas main allegedly caused under such circumstances as to render the defendant liable. On a stipulation of facts, judgment was rendered for the plaintiff. Defendant appealed to the Court of Appeals where the judgment for plaintiff was affirmed. Defendant has applied for certiorari to review the judgment of the Court of Appeals.
The record appears to indicate that the defendant is a natural person sued in both his individual capacity and the name under which he was doing business. At various places in the stipulation of facts the plural is used, but we have considered the defendant as being only one person and as being a natural person, not a corporation.
The stipulation of facts, in pertinent part, recites as follows:
The cause of action arose January 7, 1955. More than one year later, on January 11, 1956, the action was commenced. Defendant has pleaded the statute of limitations of one year. Code 1940, Tit. 7, § 26.
The plaintiff appears to recognize that its claim is barred by the one-year statute if the allegation and proof show trespass on the case as distinguished from trespass. In brief, "Plaintiff reiterates that the stiplation of facts affords conclusive proof of a trespass by defendants."
In order to avoid the bar of the statute plaintiff must allege and prove trespass. It is conceded by both parties that the complaint alleges trespass. The question is: Did the proof show trespass?
The distinction between the action of trespass and the action of trespass on the case, with respect to the liability of a master for the act of his servant, has been stated by this court as follows:
In the case at bar, the proof, as we view it, is that the damnifying act was done by "An employee of defendants" and that "He was acting in line and scope of his employment."
Like the Court of Appeals, we have considered the complaint as charging trespass to personalty. This court has consistently held that a plaintiff cannot recover from a corporate master in an action of trespass for a wrong done by the servant where proof of corporate authorization, ratification, or participation by the master is lacking. Decatur Petroleum Haulers, Inc. v. Germany, 268 Ala. 211, 105 So. 2d 852. Trognitz v. Fry, supra, indicates that the same rule which applies to a corporation as master applies also to a natural person as master. We know of no reason why a different rule should apply. In City Delivery Company v. Henry, 139 Ala. 161, 34 So. 389, 390, in speaking of counts 2 and 4, which alleged in pertinent part that "the defendant, through its agent * * * willfully, or intentionally caused an ice wagon to run against plaintiff * * *," the court said: "The injury ascribed to the defendant is direct and immediate from force applied by it, and not merely from force applied by its servant within the scope of [its] employment."
In the case at bar, plaintiff must prove an injury which is direct and immediate from force applied by defendant, "and not merely from force applied by" the servant of defendant acting within the scope of his employment. We do not think plaintiff has proved that defendant authorized, participated in, or ratified the act of the employee which brought the drag line bucket into contact with plaintiff's gas main. The *169 only part of the proof going to show participation by the master is the statement that the drag line operator "was acting in the line and scope of his employment." Under the doctrine of Trognitz v. Fry, and City Delivery Company v. Henry, supra, that is not enough proof to establish trespass by the master.
In the face of the stipulation that an employee of defendant was operating the drag line, we do not think the statement that "* * * defendants were using a drag line * * *," can be taken as proof that defendant was personally operating or directing the operation of the machine.
The burden of proof was on the plaintiff and we are of opinion that plaintiff has not supported the burden. Accordingly, the judgment of the Court of Appeals must be reversed, and the cause remanded to that court.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON, STAKELY, GOODWYN, and MERRILL, JJ., concur. | March 23, 1961 |
3753388d-71b2-4fc2-8cf6-93aac5b7b938 | Alabama Public Service Com'n v. AAA Motor Lines, Inc. | 131 So. 2d 172 | N/A | Alabama | Alabama Supreme Court | 131 So. 2d 172 (1961)
ALABAMA PUBLIC SERVICE COMMISSION et al.
v.
AAA MOTOR LINES, INC.
3 Div. 845.
Supreme Court of Alabama.
March 23, 1961.
Rehearing Denied June 22, 1961.
*174 John Patterson, Atty. Gen., and Wm. C. Younger, Asst. Atty. Gen., for the Commission.
Maurice F. Bishop, Birmingham, for intervenors.
Godbold, Hobbs & Copeland, John C. Godbold, Montgomery, for appellee.
COLEMAN, Justice.
The appellee has filed "Motion to Strike Transcript and Dismiss Appeal." This motion, as argued by appellee, appears to rest on two propositions.
First, appellee insists that the transcript must be stricken because the transcript of evidence was not filed in the office of the register by the court reporter within sixty days from the date on which the appeal was taken as provided by Act No. 97, Acts of 1956, 1st Sp.Sess., page 143, which appears in Pocket Parts, Code 1940, as Title 7, § 827(1). As we understand appellee's reply brief in support of the motion, appellee concedes, and we think correctly, that filing the transcript of evidence by the court reporter in equity cases is not governed by Act No. 97, supra, but is governed by § 769, Title 7, Code 1940, and Rule 37, of the Revised Rules of Practice in the Supreme Court as amended February 17, 1956, Appendix to Title 7, Code 1940. Smith v. Bank of Blountsville, 262 Ala. 65, 77 So. 2d 357.
This court has said that no time was fixed in Equity Rule 57 prior to amendment in 1945, as to when the testimony must be "written out and filed in the cause" in order to dispense with the note of testimony. White v. White, 246 Ala. 507, 21 So. 2d 436, 437. Neither § 769, Title 7, nor Supreme Court Rule 37 sets a time within which the court reporter must file the transcript of evidence in the office of the register on an appeal in an equity case. Provision is made by Rule 37 and § 769, supra, as to time for filing the entire transcript in this court on an appeal in equity. It is obvious that the transcript of evidence cannot be inserted in the record and filed in the Supreme Court by the register until it has first been filed in his office by the court reporter. If any requirement as to time of filing is to be placed on the reporter, amendment of rule or statute would appear to be necessary.
Second, appellee insists that the transcript (we understand the entire transcript filed here) must be stricken because it was not filed in the office of the Clerk of the Supreme Court within sixty days of the taking of the appeal.
Appeal was taken July 1, 1958. On August 22, 1958, the trial judge made an order extending for thirty days the time for filing the record in the Supreme Court. The record was filed here September 29, 1958, which was the last day of the extended time. Supreme Court Rule 37 recites in pertinent part:
The order of August 22, 1958, recites:
Appellee argues that the order of the trial judge made August 22, 1958, is invalid because the record fails to show: (1) an application in writing for extension, (2) that appellee had notice, or (3) good cause for granting the extension.
(1) Rule 37 expressly provides for a "petition in writing" when application is made to the Supreme Court for extension, but the rule does not so provide when such application is made to the "trial judge." If it had been intended to require a petition in writing to the trial judge, the rule could, and presumably would, have so provided. The expression of one thing is the exclusion of another. Because the rule expressly requires a written petition in one instance and omits that requirement in the other instance, we are of opinion that Rule 37 does not require a petition in writing where application for extension is made to the trial judge.
(2) Likewise, the rule expressly provides that "adversary counsel must have ten days' notice" when the application for extension is made to "this court," but omits the requirement of notice to the adversary when the application is made to the "trial judge." Consequently, we are of opinion that Rule 37 does not require notice to the opposing counsel where application for extension is made to the trial judge.
(3) Rule 37 provides that the trial judge may extend the time "for good cause shown." As already stated, the rule does not require a written petition or notice to adversary counsel when application for extension is made to the trial judge. The rule does require a written order of the trial judge extending the time. The rule does not, however, require the order to state the "good cause" on which the order is based.
In Harbin v. O'Rear, 264 Ala. 190, 86 So. 2d 279, cited by appellee, the application considered was that made to this court, not to the trial judge. Rule 37 provides that "this court for good cause shown upon petition in writing" may grant extension of time. The rule does not require that the good cause shown to the trial judge must appear in the record. In Harbin v. O'Rear, supra, the rule applied was the requirement that good cause must be shown in the petition to this court, and for failure so to show good cause the extension was denied and the appeal was dismissed. That rule does not apply here where we are considering the application to the trial judge.
It is established that error will not be presumed. In the absence of a contrary showing, the presumption on review is that the trial court acted in accordance with the law. Crossley v. Davies, 253 Ala. 275, 44 So. 2d 439. In the absence of a showing that the action of the trial judge in extending the time was arbitrary or capricious, we will presume that good cause was shown for his granting of the extension. Because a valid extension was granted by the trial judge, the record was timely filed in this court and the motion to dismiss the appeal is due to be and is denied.
This is an appeal by respondents from a decree of the circuit court declaring void an order of the Alabama Public Service Commission. The complainant is a common carrier by motor vehicle operating under certificate issued by the Commission. The Commission is the respondent named in the bill. Competing carriers intervened in the declaratory proceedings and are appellants also.
On June 18, 1957, complainant, herein sometimes referred to as AAA, filed its bill of complaint. The bill avers that prior to January 7, 1957, AAA held Certificate No. 936, issued by the Commission, authorizing AAA to transport general commodities as a common carrier between Birmingham and Dothan via U.S. Highway 231, and to serve all intermediate points, and, in addition thereto, to render service between (1) Dothan and Slocomb, (2) Dothan and Enterprise, and (3) Dothan and Abbeville; and that prior to and on January 7, 1957, AAA was authorized to transport and did transport commodities to, from, and between all points lying between all points heretofore mentioned. On petition of AAA, and after hearing, the Commission, on January 7, 1957, amended Certificate No. 936 by an order which recites in pertinent part as follows:
"`It is hereby found as follows:
On a petition for reconsideration of the order of January 7, 1957, the Commission, on April 23, 1957, made an order finding as follows, to wit:
The April order further provided that the order of January 7, 1957, be amended "so there shall be attached to the exercise of the privilege granted thereby the" limitation above set out in the finding of April 23, 1957; and further provided "That except as herein provided the said order of January 7, 1957, shall remain as entered." The parties appear to agree that the aforesaid averments are true.
The bill avers that there is "subsisting an actual controversy between" the parties and prays for a declaration that the restriction contained in the order of April 23, 1957, is null and void, and that AAA is authorized under its amended certificate to transport commodities between the points named in the certificate prior to January 7, 1957, and in addition thereto to the points described in the order of January 7, 1957.
The answer of Commission and intervenors, as last amended May 19, 1958, avers that the order of April 23, 1957, was duly promulgated on rehearing as provided by statute, Title 48, § 301(1), et seq., Code 1940 (Pocket Parts), and denies that the order of April 23, 1957, is unreasonable, unlawful, or arbitrary in any respect. The answer denies the existence of an actual controversy, and avers further that during the pendency of the declaratory suit, AAA has filed with the Commission an application seeking general authority over routes between the same points with removal of the limitations in the order of April 23, 1957. The answer prays that the bill be dismissed and denied.
The circuit court granted the relief prayed for by AAA. The Commission and the intervenors have appealed. The decree appealed from was rendered, after hearing, on testimony heard ore tenus and documentary evidence submitted by the parties.
Appellants argue that the circuit court erred in assuming jurisdiction and rendering declaratory judgment where no appeal was taken from the order of April 23, 1957, as provided by the Act approved July 5, 1940, 1939 Acts, page 1087; Pocket Parts, Code 1940, Title 48, § 301(27); which provides that appeals must be taken within thirty days after the date of the final order of the Commission. The instant bill was filed more than thirty days after the order of April 23, 1957. Appellants' argument is based on the rule that an action for declaratory judgment cannot be made a substitute for appeal. That rule has been declared to be the law by this court. Mitchell v. Hammond, 252 Ala. 81, 39 So. 2d 582; Howle v. Alabama State Milk Control Board, 265 Ala. 189, 90 So. 2d 752. If the rule were otherwise, a declaratory proceeding would lie to determine whether a prior declaratory proceeding was erroneous, and there would be no end to that kind of litigation. The purpose of a declaratory judgment is to declare rights not theretofore determined and is not to determine rights previously adjudicated. Back's Guardian v. Bardo, 234 Ky. 211, 27 S.W.2d 960; Ferree v. Ferree, 273 Ky. 238, 115 S.W.2d 1055. The reasoning appears to be that when a controversy has once been adjudicated by a tribunal having jurisdiction of parties and subject matter, the controversy is no longer an actual one under the declaratory judgment act. 154 A.L.R. 743.
The circuit court in the instant case decided that declaratory relief was not barred because of any right of appeal from orders of the Commission, and we agree with that decision.
*178 The relief here sought was not a review of the propriety of the order of the Commission as such propriety might be determined on an appeal. The question posed by the contentions of AAA is whether the order is reasonable or unreasonable. Expressed another way, the question is whether the order of the Commission is ambiguous or unambiguous.
There is no contention that the order of April 23, 1957, is void because the Commission lacked jurisdiction of either parties or subject matter. The contention is that the restriction imposed by the matter added on April 23, 1957, is unreasonable. The trial court found the restriction to be "contradictory and self-negating." The decree recites:
An inspection of the orders of January 7 and April 23 shows, as we view it, an ambiguity on the face of the orders. For example, prior to January 7, by Certificate No. 936, AAA was authorized to transport commodities between Dothan and Slocomb. Slocomb is thus a point "theretofore authorized to be served in said Certificate No. 936" prior to January 7, 1957. The order of January 7 amended the certificate to include "authority to operate * * * over regular routes as follows: Commencing at Slocomb * * * thence * * * via Hartford, Geneva, Samson and Opp to Andalusia; * * *." The order of April 23, however, imposed the limitation that "The authority * * * in said order of January 7, 1957, may not be used * * * in performing service between points theretofore authorized to be served in said Certificate No. 936 * * * and those authorized to be served by the said order of *179 January 7, 1957 * * *." The order of January 7 authorizes service from Slocomb to Andalusia, but the restriction of April 23 forbids service from a point "theretofore authorized to be served," one of which is Slocomb, to a point "authorized to be served by the said order of January 7," one of which is Andalusia.
The same ambiguity appears with respect to Enterprise, Troy, and Abbeville. All three are points "theretofore authorized to be served." The January 7 order authorizes service: from Elba, a new point, to Enterprise; Elba to Troy; and to "off-route points of Shorterville and radius of eight miles * * * over Alabama Highway No. 10." The map placed in evidence shows only one road to Shorterville, also a new point, and that road runs from Abbeville. The April 23 limitation forbids service from points "theretofore authorized to be served," to the new points. Thus the January 7 order gives authority to transport from Enterprise, Troy, and Abbeville to new points, but the April 23 order takes away the authority conferred. The January order and the April order are contradictory. The orders cannot coexist, the latter nullifies the former.
This court has previously entertained appeals in declaratory proceedings to construe certificates issued by the Commission. Smith Transfer Co. v. Robins Transfer Co., 258 Ala. 406, 63 So. 2d 351; Deaton Truck Line v. Birmingham-Tuscaloosa-Mobile Motor Freight Line, 264 Ala. 345, 87 So. 2d 421; and has construed certificates in declaratory proceedings where injunctive relief was also sought, Martin Truck Line v. Alabama Tank Lines, 261 Ala. 163, 73 So. 2d 756. Appellants appear to concede that declaratory relief is available to construe the orders of the Commission here involved because their brief states:
Our review here, and the review in the circuit court in a declaratory proceeding, is not controlled by the principles which are applicable where there is an appeal from an order of the Commission, and the question here is simply one of construction of the orders. Smith Transfer Co. v. Robins Transfer Co., supra.
We have undertaken to show that the trial court correctly found that the grant and the limitation placed on the grant are contradictory. The real question is whether the circuit court correctly set aside part of the order and left part of the order in effect.
We are of opinion that the January order and the April order together constitute one order of the Commission. After the January order was made, interested parties made application for reconsideration as provided by statute. As we understand the contentions of the parties, it is not controverted that the statute authorizing reconsideration was fully complied with in all respects. The final order of April embodies the order of January, as modified, and is one order, analogous to the judgment or decree of a court on rehearing, or a legislative act as finally passed after reconsideration by a legislative body. This conclusion is supported by the statute authorizing reconsideration which recites in pertinent part as follows:
The circuit court held the April order void and of no effect, and that AAA is authorized to transport as defined and described in the January order. As already stated, the order of the Commission is the April order and the January order taken together. So, the question is, can a court, in a declaratory proceeding, declare invalid merely a part of an order of the Commission, or must the court declare the entire order invalid.
In a declaratory proceeding to construe a decree of the Mobile Circuit Court rendered on appeal from an order of the Commission, this court held that a part of the decree of the Mobile court could be declared void without invalidating the whole decree; Avery Freight Lines v. Persons, 250 Ala. 40, 32 So. 2d 886; but this court also held in the same case that the Mobile court did not have power to decree that a carrier could operate on all roads in the State because such an adjudication was beyond the power of the court and was void. This court held further that the decree of the Mobile court, in effect, set aside the order of the Commission and remanded the case to the Commission, although the decree did not provide for remandment.
So in the case at bar, if it were a statutory appeal from the Commission's order, the circuit court could not decree that AAA has authority to transport in accordance with the January order, but could merely remand to the Commission for further proceedings in accordance with the court's decree. Although declaratory proceedings are not controlled by the same principles which apply on statutory appeals to review an order of the Commission, we do not think that in a declaratory proceeding the court can declare that a carrier has an authority without limitation where the Commission has undertaken to limit the authority. We are of opinion that the limitation here is such that it negates the very authority granted, but we do not think the court can, by construing the order, grant an authority which the Commission has not granted.
In the exercise of its supervisory or executive powers over public utilities, the Commission possesses quasi-legislative powers, such as the granting of franchises. Avery Freight Lines v. White, 245 Ala. 618, 18 So. 2d 394, 154 A.L.R. 732. The orders here in question purport to grant a franchise and were made by the Commission in the exercise of quasi-legislative power. As such orders, they are subject in some respects to the rules of statutory construction. We are not unmindful of the rule that such orders are analogous to judgments in some aspects relating to interpretation. Murray v. Service Transport, 254 Ala. 683, 49 So. 2d 221. The rule of construction is that if the invalid section may be stricken from a legislative act, leaving a statute complete in itself, sensible and capable of being executed, the striking of the invalid section does not overthrow the entire act. Hall v. Underwood, 258 Ala. 392, 63 So. 2d 683. The rule also is, however, that if by striking out a void restrictive clause, the remainder of an act, by reason of its generality, will have a broader scope as to subject or territory, its operation is not in accord with the legislative intent and the whole act would be affected and made void by the invalidity of such part; and, if a clause which violates the Constitution cannot be rejected without causing the act to enact what the legislature never intended the whole statute must fall. Wilkinson v. Stiles, 200 Ala. 279, 76 So. 45.
If the restriction here imposed in April be eliminated, the final order of the Commission will grant to AAA an unrestricted *181 authority to operate between points authorized to be served prior to January and points named in the January order. The Commission has not granted such unrestricted operating authority, and we cannot find from the order that the Commission intended to grant it. As a result, the April restriction cannot be rejected without causing the remainder of the order to grant authority the Commission never intended to grant. Consequently the entire order must fall.
AAA appears to argue that the appeal provided for by statute does not afford adequate relief because on appeal "the courts are ousted from setting aside or vacating a part of a public service commission order." AAA argues that "such a principle is one of the basic reasons why an appeal offered no relief or remedy to plaintiff here." The authority of the court on such an appeal is stated in Avery Freight Lines v. Persons, supra. One thing the court can do on appeal is to remand the case to the Commission for further proceedings in conformity with the direction of the court. The court does not have that power in the instant declaratory proceedings. If, however, the court did not have such power on appeal, we do not understand how that lack of power on appeal would, in a declaratory proceeding, confer on the court power to grant operating authority which the Commission has not granted. In People ex rel. South Shore Traction Co. v. Willcox, 196 N.Y. 212, 89 N.E. 459, cited by AAA, on review by certiorari of an order of the New York Public Service Commission, the court found that denial of a certificate was unjustified. The court did not, however, undertake to grant the certificate but directed the Commission to grant it. The review on certiorari appears to have been comparable to our statutory appeal and was not a declaratory proceeding. The cited case does not hold that a court in a declaratory proceeding can invalidate part of an order and leave part in effect where the result is to grant an operating authority which the Commission has not granted.
With exception not here applicable, no carrier can operate in intrastate commerce on the highways of this State, unless the carrier first secures the proper certificate or permit, and that certificate or permit must be issued by the Public Service Commission. Avery Freight Lines v. Persons, supra.
The orders of the Commission are subject to construction by the courts, but it is to the Commission and not the courts that applications for changes in the wording and meaning of certificates should be addressed, Deaton Truck Line v. Birmingham-Tuscaloosa-Mobile Motor Freight Line, supra.
In short, the January order gave and the April order took away operating authority. Consequently the orders have no effect. The Commission has power to grant operating authority but the courts do not have that power, and, therefore, the courts cannot rewrite the orders so as to grant authority the Commission has not granted.
The decree appealed from is affirmed in the holding that the orders of January and April taken together are ambiguous and void for uncertainty, but the decree is reversed as to the holding that AAA has the right to exercise the authority granted in the January order without restriction or limitation. It does not appear that any good purpose would or could be served by remanding the cause and a decree will be here rendered in accordance with this opinion.
Affirmed in part and in part reversed and rendered.
LIVINGSTON, C. J., and SIMPSON, STAKELY and GOODWYN, JJ., concur.
MERRILL, J., would affirm the decree of the lower court and, therefore, dissents. | March 23, 1961 |
a8c342ee-7850-4dd4-b6d1-ccc21c5e8f01 | Ford v. Ward | 130 So. 2d 380 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 380 (1961)
Jack FORD et ux.
v.
Prudie WARD.
8 Div. 966.
Supreme Court of Alabama.
May 25, 1961.
Lusk & Lusk, Guntersville, for appellants.
*381 Smith & Moore, Guntersville, for appellee.
COLEMAN, Justice.
This is an appeal from a decree establishing a disputed boundary line between two lots in Guntersville.
As we understand the record, a certain plat of a subdivision was filed for record in the office of the Judge of Probate on February 25, 1949. The plat purports to be a subdivision of a certain 40 acres, to wit:
"`Nannie Smith's Extension of NE¼ of NW¼ Sec. 13, T.' (sic), R 3E'"
The averments of the bill are to effect that the plat, as filed, showed the southeast corner of Lot 47 to be at a distance of 675 feet south of the northeast corner of the 40 acres, but that in the process of recording, an error was made in copying the dimensions of one of the lots shown on the plat. As a result of the error, the record in the office of the Probate Judge showed the southeast corner of Lot 47 to be at a distance of 723 feet south of the northeast corner of the 40 acres, that is, 48 feet farther south than was shown on the plat which was filed for record.
It is further alleged that on July 8, 1957, the Probate Judge corrected the error appearing on the record of the plat, endorsed his action on the margin of the record, and also recorded the original plat by photostat. The allegations with respect to the error in recording are admitted by the answer of the respondent, Prudie Ward.
It appears that the complainants, Jack Ford and his wife, Bessie Ford, purchased their lot from one Sparks and his wife, and that complainants' lot lies south of but does not adjoin Lot 47. The bill alleges:
As we understand the record, the Prudie Ward lot is 52 feet wide from north to south and lies between Lot 47 and the lot owned by complainants. The south boundary of the Prudie Ward lot is the north boundary of the lot of complainants and is the boundary line which is in dispute.
The complainants contend that the true location of the northeast corner of their lot is a point 52 feet south of the southeast corner of Lot 47 as Lot 47 appeared on the plat which was filed for record. Complainants contend that the north boundary of their lot is a line running west from their northeast corner, and that their northeast corner is a point 727 feet south of the northeast corner of the 40 acres.
The respondent, Prudie Ward, contends that complainants' northeast corner, which is also her southeast corner, is a point 775 feet south of the northeast corner of the 40 acres. Thus the point in dispute is the location of the northeast corner of complainants' lot.
*382 The circuit court established the boundary line as contended for by the respondent, Prudie Ward, and complainants have appealed. The decree establishing the boundary is assigned as error.
The argument of complainants (appellants) is that the respondent, Prudie Ward, admitted all the allegations of the bill, except that the description contended for by appellants was the true description of their lot, and that respondent, Ward, set up as a special defense the assertion that complainants used the erroneous plat by way of reference with full understanding and knowledge. Complainants now insist that the respondent, Ward, failed to prove her "special defense," and that, as a consequence, she is not entitled to have the boundary established according to her contentions.
We agree that the evidence does not show that complainants had actual knowledge of the plat, erroneous or otherwise, at the time they purchased their lot, or that any plat was discussed when complainants negotiated with Sparks for the purchase. We are not persuaded, however, that failure to prove that complainants had actual knowledge of the contents of a plat, recorded or not, conclusively determines that the parties did not intend to incorporate the erroneous record of the plat in the deed. The burden remained on complainants to prove their assertion as to the true description of their lot, or at least that the true location of their north boundary is where they say it is.
We are of opinion that the testimony of the complainant, Jack Ford, concludes the matter against him. He testified that complainants purchased their lot June 6, 1955; that he, Ford, and his wife went to where the lot is, and Sparks came there and sat down on a big rock and they talked. Ford testified that no measurement was made, and also as follows:
and on cross-examination as follows:
Ford further testified that he started building a house on his lot in October or November, 1955, and was still satisfied at that time that the corner was where Sparks had pointed it out. Some time later, a survey was made of the land adjoining complainants' lot on the south, and the error in the record was discovered.
The other complainant, Mrs. Ford, testified that she intended to buy a lot "according to this description given in the deed," but she also said she did not see any map or plat and that "Mr. Sparks had the deed made." The following questions and answers, however, appear in her testimony:
We understand that the quoted answer of Mrs. Ford refers to the occasion when the Fords were negotiating with Sparks on the ground, and that Sparks and the Fords "* * * measured about where the corners were * * *."
Sparks testified that he sold first to Prudie Ward and then to Jack Ford "over a year from the time I sold to Prudie Ward." Sparks testified that when he sold to Prudie Ward, he "* * * showed her where the corner come to and I showed that and measured it." Sparks denied that he had shown the Fords where the corner would be and said he had never told them anything. He further testified, however, that he told him (Jack Ford, we understand), that he, Sparks, had "96 feet" to start with and "* * * went out and showed him (Ford) where I thought it (referring, we understand, to the Ford lot or a corner thereof) would be." Sparks also said he told Ford, "I told him it would be up to that hedge, that corner."
No deed to any property appears in the record. Complainants aver that on June 25, 1955, they purchased a lot of a certain description. We assume that the description of the purchased lot as averred in the bill is the description contained in the deed from Sparks to complainants, and that the date of the deed is June 25, 1955. Without that assumption, complainants' title and *384 ownership cannot be understood at all. The description designates the point of beginning as 52 feet south of the Southeast corner of Lot 47 "according to the Plat and Survey as the same appears on record in Plat Book 2 page 79." In June, 1955, there was only one record of the plat in the office of the Probate Judge in Plat Book 2 at page 79, and that was the erroneous record.
Where a map is referred to in a deed as indicating what is intended to be conveyed, the map is regarded as part of the conveyance and may be referred to for the purpose of aiding in the identification of land. Doe ex dem. Miller v. Cullum, 4 Ala. 576. Lines and figures on a plat become part of the description by reference as if the courses and distances shown thereby were set out in the deed. Smith v. Harbaugh, 216 Ala. 202, 112 So. 914.
Since there was only one plat of the designated subdivision on record at the time the deed to complainants was executed, it is reasonable to assume that the parties knew only of that plat and made the deed with reference to it. Lester v. Schutt, 128 Fla. 302, 174 So. 583. It is certain that the grantees, the complainants, had reference to no other plat. They both testified that they did not know of any plat, and there is no testimony, other than the alleged description of their lot, tending to show that they had knowledge of any plat.
There is no testimony that Sparks had actual knowledge of any plat at the time he sold to either Prudie Ward or the Fords. Sparks testified:
The description of the lot allegedly purchased by complainants refers to a plat and makes the plat a part of the description. Moreover, the bill avers: "* * * said lot having been staked out substantially according to the erroneous recordation of said map, and they are still in possession of said lot."
We are of opinion that the record in the office of the Probate Judge, which was erroneous, must be regarded as the plat referred to in the description. There was no other recorded plat on June 25, 1955. When the erroneous plat is considered as a part of the description, the description is clear and unambiguous on its face. In view of the error shown, however, we are of opinion that such description must be regarded as containing a latent ambiguity. The ambiguity became apparent when the surveyors undertook to locate on the ground the points shown on the erroneous record of the plat. The error in distance which appeared in the record of the plat created uncertainty as to the location of the lot described.
A latent ambiguity arises when the writing on its face appears clear and unambiguous, but there is some collateral matter which makes the meaning uncertain; and parol or other extrinsic evidence is admissible to explain or clarify a latent ambiguity. Gibson v. Anderson, 265 Ala. 553, *385 92 So. 2d 692; Chambers v. Ringstaff, 69 Ala. 140.
Looking to the evidence as to what was said and done by complainants and their grantor, Sparks, at the time complainants negotiated for the purchase of their lot, we are of opinion that the evidence shows that complainants intended to purchase, and Sparks intended to sell, a lot adjoining and lying south of the Prudie Ward lot; that Sparks pointed out to complainants the approximate location of a corner of the lot he intended to sell; that the corner so pointed out was a corner of the Prudie Ward lot, which lot Sparks had previously measured off when he sold to Prudie Ward; and that the corner pointed out to complainants was a corner established according to the erroneous plat which then appeared on record.
The intent of the grantor manifested by the words used in the grant, construed in the light of attendant facts and circumstances, is the controlling factor in determining the intent of the parties in respect to the land thereby conveyed. Spires v. Nix, 256 Ala. 642, 646, 57 So. 2d 89. We are of opinion that, according to the evidence, the intent of the parties was to place the northeast corner of complainants' lot at a point 775 feet south of the northeast corner of the 40 acres "according to the erroneous recordation," and to make the boundary line between the lot of complainants and the lot of respondent, Prudie Ward, a line running west from such northeast corner of complainants' lot.
Appellants insist that the description must be considered as making reference to the plat as actually made and filed, and not as making reference to the erroneous record. To support this insistence, appellants rely on Chapman & Co. v. Johnson, 142 Ala. 633, 38 So. 797, and similar cases which hold that under § 98, Title 47, Code 1940, a conveyance is operative as a record from the time of its delivery to the Probate Judge, and no subsequent mistake of his could deprive it of the operation thus given to it by law. The instant case is not affected by that rule. It is not shown that any party to this suit intended to refer to or rely on the actual plat instead of the erroneous record. On the contrary, the description itself, the averments of paragraph THREE of the bill of complaint which are above set out, and the attendant facts shown by the evidence persuade us that the parties intended to refer to the erroneous plat. This decision undertakes to give effect to the intention of the parties.
The decree appealed from determined the boundary in accord with the views herein expressed and is due to be and is affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | May 25, 1961 |
07d35927-fabf-4ada-b31f-7d232c19efe9 | Smith v. City Board of Education of Birmingham | 130 So. 2d 29 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 29 (1961)
Ella Lee SMITH
v.
CITY BOARD OF EDUCATION OF BIRMINGHAM.
6 Div. 397.
Supreme Court of Alabama.
March 2, 1961.
Rehearing Denied May 25, 1961.
*30 Wm. M. Acker, Jr., and Smyer, White, Reid & Acker, Birmingham, for appellant.
Lange, Simpson, Robinson & Somerville, Reid B. Barnes, Ormond Somerville and Chas. E. Clark, Birmingham, for appellee.
LIVINGSTON, Chief Justice.
This is an appeal from the Circuit Court of Jefferson County, Alabama, in Equity, from a decree sustaining the demurrer of appellee-respondent to the amended bill of complaint of appellant-complainant. Complainant brought the cause of action as a taxpayer of the school district contained within the boundaries of the City of Birmingham, Alabama, and representing the taxpayers of said school district as a class.
The original bill of complaint was filed on December 29, 1958. The prayer was for a temporary and permanent injunction to enjoin the prosecution of condemnation proceedings begun by the city board of education on December 8, 1958. On January 5, 1959, respondent filed a motion to quash and to vacate the order initially setting the case down and also filed a motion to quash and to vacate the subpoena duces tecum which had been served on the superintendent of schools. Both motions were overruled by the court on the same day. Also, on January 5, 1959, respondent filed a demurrer to the complaint. A continuance until January 20, 1959 was agreed to, and on January 16, 1959, complainant amended her bill of complaint. Respondent, on January 20, 1959, refiled his previous demurrer and assigned additional grounds, said demurrer being sustained on January 20, 1959. It is from the sustaining of the demurrer that this appeal is taken.
There are basically but two questions presented by this appeal. The first question is whether or not the City Board of Education of Birmingham, Alabama, has statutory authority to condemn land for the purpose of constructing a building to house the city superintendent of schools and his assistants. The second question is whether or not the City Board of Education of Birmingham, Alabama, should be enjoined *31 from continuing with such condemnation proceedings on the grounds that their conduct amounts to a gross abuse of discretion and to an arbitrary and capricious action.
Sec. 153, Title 52, Code of Alabama 1940, imposes an obligation on the board of education of any city of 2500 or more inhabitants to provide the city superintendent of schools, his professional and clerical assistants, with ample, convenient and comfortable office quarters and with adequate clerical supplies and equipment.
We must now look to see if the legislature has given the board of education the necessary authority to carry out this obligation which the legislature has imposed on the board. Sec. 158, Title 52, Code of Alabama 1940, gives to the city board of education "all the powers necessary or proper for the administration and management of the free public schools within such city * * *." However, this does not give them specifically the right to purchase or condemn property for the purpose of building an administrative building to house the city superintendent of schools and his assistants. Sec. 161, Title 52, Code of Alabama 1940, does give the right or power to purchase real estate for the use of the schools. But again, there is not definite authority to purchase real estate for the purpose now under discussion. Title 52, Sec. 168, Code of Alabama 1940, goes somewhat further than any of the previous applicable sections and reads as follows:
It will be noted that this section gives the board authority to condemn for specificlisted purposes and then says "or other public school purposes." We are of the opinion that if the board is given the authority necessary to carry out the obligation imposed by Sec. 153, then it must be found in Sec. 168.
We are mindful of the fact that statutory delegation of the power of eminent domain must be strictly construed against the one exercising the power. 18 Am.Jur., Eminent Domain, § 26 (p. 650); City of Birmingham v. Brown, 241 Ala. 203, 2 So. 2d 305.
However, we are of the opinion that such a doctrine should not be carried so far as to defeat the intent of the legislature, especially so when applied to a public body such as the board of education. State v. Western Union Telegraph Co., 196 Ala. 570, 72 So. 99; 29 C.J.S. Eminent Domain § 22, p. 806; Davis v. Board of Education of Anne Arundel County, 166 Md. 118, 170 A. 590, 591; Greenwood County v. Watkins, 196 S.C. 51, 12 S.E.2d 545, 548.
It is our opinion that the legislature did not intend to impose upon the board of education the obligation of providing for the superintendent of schools and his assistants adequate office quarters without giving it the necessary authority to carry out said obligation. We also think that the necessary authority was intended by the legislature to be found in Sec. 168 of Title 52, Code of Alabama 1940, in the phrase "or other public school purposes." We are, therefore, of the opinion that the City Board of Education of Birmingham, Alabama, does have statutory authority to condemn land for the purposes above mentioned.
We must now turn to the question of whether or not the board should be enjoined *32 on the grounds that their conduct amounts to a gross abuse of discretion and to an arbitrary and capricious action.
It is our conclusion that the matter of locating, constructing and maintaining buildings for public school purposes is not a function of the courts. In that matter, the board of education exercises an administrative and quasi-legislative function which, when free from fraud or corruption, cannot be reviewed by the courts. Board of Education of Blount County v. Phillips, 264 Ala. 603, 89 So. 2d 96; Mullins v. Board of Education of Etowah County, 249 Ala. 44, 29 So. 2d 339.
We conclude that the bill does not entitle the complainant to the relief prayed for and that the demurrer was due to have been sustained. The judgment of the trial court, therefore, must be affirmed.
Affirmed.
SIMPSON, GOODWYN and COLEMAN, JJ., concur. | March 2, 1961 |
058168a7-7de6-46e4-bdb5-37861352d4c7 | Goldin v. State | 127 So. 2d 375 | N/A | Alabama | Alabama Supreme Court | 127 So. 2d 375 (1961)
Peggy Ostell GOLDIN, alias Golden
v.
STATE of Alabama.
7 Div. 485.
Supreme Court of Alabama.
January 26, 1961.
Rehearing Denied March 2, 1961.
*377 Scott & Scott, Fort Payne, and H. T. Foster, Scottsboro, for appellant.
MacDonald Gallion, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.
SIMPSON, Justice.
Peggy Ostell Goldin was indicted for the offense of murder in the first degree of Jackie Ray Lumpkin, deceased, and upon trial was convicted of murder in the second degree and her punishment fixed at imprisonment in the penitentiary for twenty-five years. Judgment was entered accordingly. Her pleas were "not guilty" and "not guilty by reason of insanity". The evidence was without dispute that appellant shot the deceased in the back with a pistol, thereby causing his death.
The trial of appellant was set for August 31, 1959. The appellant on August 31, 1959 made a motion for a continuance based on the premise that appellant could not obtain a fair and impartial trial at that time in DeKalb County because of a certain newspaper article appearing in the Times-Journal, a local newspaper, published on August 27, 1959. Before beginning voir dire examination of the jurors, the court gave an extensive and searching examination of the jurors as to their knowledge of the newspaper publication, their bias which may have been created by the publication, and whether any one of them had a fixed opinion as to appellant's guilt or innocence. There was no affirmative indication by any member of the venire from these inquiries with reference to bias, etc., so the court overruled the motion for continuance. Thereafter, the jurors were qualified and proceedings were recessed until the following morning. The next day, September 1, 1959, the appellant renewed her motion for continuance on the ground that a second newspaper publication on September 1, 1959 in the Times-Journal prejudiced the defendant's case against a fair trial. The court, after ascertaining that none of the prospective jurors had seen or read the article, overruled the motion.
We find no error to reverse in either of these rulings.
It is settled law that the matter of a continuance rests in the sound discretion of the trial court and its ruling thereon is to be disturbed only in event of gross abuse. We perceive none here. It is the duty of the court to ascertain whether the defendant can reasonably be expected to obtain a fair and impartial trial by an unbiased jury. The burden is upon the defendant to prove to the reasonable satisfaction of the court that an impartial trial and unbiased verdict cannot be reasonably expected. Riley v. State, 209 Ala. 505, 96 So. 599.
The newspaper articles were written with reference to the trial and it can be expected that the general public was interested about the case. We are left unconvinced, nor was it made apparent to the trial court, that the appellant could not, on account of these newspaper articles, have had a fair trial by the venire summoned and the jurors impaneled for her trial. The appellant, in our view, has failed to show such an abuse of discretion as would warrant a reversal for not continuing the case. Illustrations of the correctness of the rulings below may be found in the following casesand many more could be cited: Riley v. State, supra, Rogers v. State, 37 Ala.App. 8, 65 So. 2d 525, certiorari denied 259 Ala. 124, 65 So. 2d 531; Collins v. State, 234 Ala. 197, 174 So. 296; Wyatt v. State, 35 Ala.App. 147, 46 *378 So. 2d 837, certiorari denied 254 Ala. 74, 46 So. 2d 847; Littlefield v. State, 36 Ala.App. 507, 63 So. 2d 565, certiorari denied 258 Ala. 532, 63 So. 2d 573; Harris v. City of Birmingham, 36 Ala.App. 119, 54 So. 2d 900, certiorari denied 256 Ala. 429, 54 So. 2d 904; Avery v. State of Alabama, 308 U.S. 444, 60 S. Ct. 321, 84 L. Ed. 377, affirming 237 Ala. 616, 188 So. 391.
It is urged by the appellant that prejudicial error was committed in admitting in evidence a confession of the appellant on the ground that it was not shown to be voluntary or complete. The settled rule, as to the admissibility of confessions in evidence, has often been stated by this court and should be well understood. We will advert to some general principles.
Confessions can be rendered admissible only by showing that they were voluntary and not constrained or, in other words, free from influence of fear or hope of reward applied to the prisoner's mind by a third person. Prima facie, a confession is not voluntary, and there must be evidence addressed to the trial judge rebutting that presumption, unless the circumstances attending the confession affirmatively disclose its voluntary character. Beaird v. State, 215 Ala. 27, 109 So. 161; Johnson v. State, 242 Ala. 278, 5 So. 2d 632, certiorari denied 316 U.S. 693, 62 S. Ct. 1299, 86 L. Ed. 1763; Myhand v. State, 259 Ala. 415, 66 So. 2d 544.
Questioning a suspect while in the custody of law enforcement officers is not prohibited either by the common law or by the Fourteenth Amendment, nor is a confession rendered inadmissible solely because it was made while the accused was in the custody of such officers. Ziang Sung Wan v. United States, 266 U.S. 1, 45 S. Ct. 1, 69 L. Ed. 131; Aaron v. State, 37 Ala. 106; Stone v. State, 208 Ala. 50, 93 So. 706; Dyer v. State, 241 Ala. 679, 4 So. 2d 311; Phillips v. State, 248 Ala. 510, 28 So. 2d 542.
Nor is a confession rendered inadmissible solely because it was made after arrest by an officer prior to the accused being taken before a committing magistrate. Ingram v. State, 252 Ala. 497, 42 So. 2d 36. It is not necessary for a confession to be voluntary that it proceed wholly at the instance and suggestion of the prisoner. Nor is it involuntary and inadmissible if it is not transcribed verbatim as related by the prisoner. If the transcription is substantially as related and affirmed by the prisoner as correct, it is none the less admissible. Dennison v. State, 259 Ala. 424, 66 So. 2d 552.
Appellant advances the argument that she was in a highly nervous state and much disturbed over the tragedy and her efforts to repulse the persistent attempts of the deceased to force himself upon her and his alleged vile conduct toward her. The fact that an accused is not in full possession of his or her mental faculties when the confession is made does not render it inadmissible, but only affects the weight to be accorded by the jury; or is provable merely to support other evidence that the confession was not voluntary. To render such a confession inadmissible on that ground the mania must have been such that the accused was either an idiot or a lunatic during lunacy. Redwine v. State, 258 Ala. 196, 61 So. 2d 724.
For other cases pertinent to confessions see: Sullins v. State, 53 Ala. 474; Love v. State, 124 Ala. 82, 27 So. 217; Reedy v. State, 246 Ala. 363, 20 So. 2d 528; White v. State, 260 Ala. 328, 70 So. 2d 624.
We have painstakingly examined the record for errors contended for by appellant with respect to the confession. We do not find any such errors. We think the predicate as laid by the State through its officers, before proof of the confession was offered, was in all respects sufficient under the authorities to show prima facie that the confession was made voluntarily.
There were several charges refused to defendant of which three related *379 to the plea of insanity. The court in its oral charge gave the well-known rule of the test of criminal responsibility as developed in Parsons v. State, 81 Ala. 577, at pages 596, 597, 2 So. 854, at page 859, 69 Am.Rep. 193. Appellant contends that the charges refused correctly state the law and prejudicial error was committed by their refusal, and that the charge of the court, both oral and written, dealt too lightly with the matter of insanity. In this we do not agree. From the oral charge and the given written charges requested by the defendant, the jury was adequately apprised of the law applicable under the appellant's plea of "not guilty by reason of insanity". The refused charges were fairly and substantially covered in the oral and written given charges of the court, resulting in no prejudicial error by their refusal. Code 1940, Title 7, § 273.
The same rule applies to appellant's contention that the court committed reversible error in refusing certain requested written charges on self-defense. Appellant in her brief concedes this point does not require much argument, and we also think it requires only brief comment. Refused charges numbering 9, 10, 12, 14, 16, 17, and 18 were cumulative and were adequately covered in the oral charge of the court and the given written requested charges. Refused charge Number 11 is confusing, argumentative and misleading. We find no error in the refusal of the written requested charges on this phase of the case.
Finally, appellant argues prejudicial error in allowing the testimony of one Verlon Reece on rebuttal by the State. Appellant testified on direct that she did not meet or plan to meet Verlon Reece on Sand Mountain or Lookout Mountain the day that the deceased was shot by appellant. This evidence offered on rebuttal tended to show that Verlon Reece and appellant had agreed to meet on Sand Mountain and they met around 3:00 p. m. the afternoon that deceased was shot by appellant. It is claimed that this line of testimony amounted to impeachment of appellant on an immaterial matter, resulting in prejudicial error.
The rule is that the admission or rejection of evidence on rebuttal is addressed largely to the trial court's discretion. Caldwell v. State, 203 Ala. 412, 84 So. 272; Douglass v. State, 21 Ala.App. 289, 107 So. 791. It is true as argued by appellant a witness cannot be impeached by contradicting him on an immaterial matter. Smith v. State, 261 Ala. 270, 73 So. 2d 916. This latter principle, however, is not here controlling for a reversal.
The argument overlooks the fact that appellant also interposed the plea of insanity as a defense. This evidence was admissible as bearing on the mental status of appellant at the time of the difficulty, which was shortly after the alleged meeting of appellant and witness Reece on the mountain. Where insanity is set up as a defense to an indictment for murder, prior as well as subsequent acts and declarations of the prisoner are admissible to show the defendant's true mental condition at the time of the homicide. McLean v. State, 16 Ala. 672. For the many cases supporting this principle see 6 Ala.Dig., Criminal Law, Insanity, 354. We, therefore, must hold that no error is shown by the stated ruling.
Able counsel for appellant make an earnest and eloquent appeal for mercy for this unfortunate young lady who became enmeshed in the entanglements of an illicit romance with the deceased, her one-time paramour, after she had made a rapprochement with her husband and sought diligently to keep that status and be rid of the deceased; yet the deceased would not have any such, but continued to pursue her against her will, casting vile epithets at her until she was driven to the desperate act. While we must confess some sympathy for appellant, such matters were for the consideration of the jury, alone, and if any clemency should now be extended, such appeal should be addressed to another forum. *380 We merely sit in review with respect to errors on trial.
We have carefully examined the entire record to see if there was any error which might have affected the substantial rights of appellant, as is our duty, whether or not called to our attention in brief of counsel. We find none.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | January 26, 1961 |
11491293-9c32-4916-9c02-2b57f3dc084c | Mobile City Lines, Inc. v. Proctor | 130 So. 2d 388 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 388 (1961)
MOBILE CITY LINES, INC.
v.
J. A. PROCTOR.
1 Div. 781.
Supreme Court of Alabama.
May 25, 1961.
*391 Johnston, McCall & Johnston, Mobile, for appellant.
Brown & White-Spunner, Mobile, for appellee.
COLEMAN, Justice.
This is an appeal from a judgment for the plaintiff in an action for personal injury sustained as a result of a collision between plaintiff, as a pedestrian, and a bus owned and operated by defendant.
The injury occurred in Mobile, on Springhill Avenue at a point approximately one hundred feet west of the intersection of Springhill Avenue and Broad Street. These streets do not cross at right angles. Springhill runs somewhat north of west, but we will speak of it as running east and west. The injury did not occur at a street intersection or at a crosswalk for pedestrians. The hour was approximately 6:30 p. m. and it was dark. We understand, however, that the area was well lighted.
There are six lanes in Springhill Avenue for vehicular traffic, three for eastbound traffic and three for westbound traffic. Each lane is ten feet wide. The westbound lanes are north of the center line of Springhill Avenue. The injury occurred at or near the south line of the northernmost lane, that is, the lane on the extreme right for westbound traffic.
The White Swan Laundry is located on the south side of Springhill Avenue opposite or nearly opposite the point of impact. Plaintiff had been to the laundry. He testified that he came out of the laundry carrying bundles, turned east, saw that he "had the light" at the intersection of Broad and Springhill, and proceeded northwardly across Springhill. He walked between eastbound cars which were stopped on Springhill, came to the center line, saw that he still had the light, "crossed on over and went in a northwest direction from the center line towards the curb and I was struck down by a bus as I was crossing." He never saw the bus.
It appears that the bus had been proceeding north on Broad, had stopped at the intersection of Broad and Springhill and, when the light changed, had turned left into Springhill and proceeded west in the northernmost traffic lane next to the curb.
Plaintiff testified that there were eastbound cars stopped on Springhill but that he did not observe any westbound traffic north of the center line when he crossed it; that he crossed two lines and "almost approached the curb on the north side of the street when I was struck down and I didn't see anything coming to my right."
The bus driver testified that when he first saw the plaintiff, the plaintiff was on the left-hand side of the bus. The driver saw plaintiff out of the left window of the bus by the driver's seat. Plaintiff was coming into the side of the bus. The driver estimated that he was "a foot or two" away from plaintiff "from the time you first saw him to the point of impact." The driver applied brakes immediately when he saw plaintiff coming into the bus. It traveled approximately four feet after the impact. Driver did not blow horn.
Another witness testified that when plaintiff's "body hit the bus it made a turn and he fell face first and by the time he fell *392 the bus was stopped and his feet were at the front wheel of the bus." His head was "more up Springhill Avenue." His feet were approximately at the center of the wheel. The distance from the front bumper of the bus to the front axle is six feet six inches.
Two city detectives were in a car traveling east in the eastbound lane next to the center line of Springhill Avenue. They observed the collision. One detective testified that he was "twelve, fifteen feet, maybe a little more," from the plaintiff when the witness first saw the plaintiff; that he, the witness, observed the bus prior to observing plaintiff and did not see plaintiff until he was "at the side of the bus"; that the bus was traveling twelve to fifteen miles per hour; and that plaintiff came in contact with bus on the left side above the front fender, "between where the front fender comes around the wheel and the front of the bus." The bus front headlights were burning. The bus driver testified that other bus lights were also burning.
The case was tried on one count charging simple negligence on the part of the defendant's driver and pleas of the general issue and contributory negligence.
Defendant argues that the court erred in refusing the affirmative charge with hypothesis requested by defendant. Defendant says this was error because the evidence fails to show that the bus driver was guilty of any negligence and further because the evidence shows without dispute that plaintiff was guilty of contributory negligence which proximately caused his injury.
Plaintiff says that the evidence shows that the bus driver was guilty of negligence in that he failed to keep a proper lookout, that the evidence supports a reasonable inference that the negligence of the driver proximately caused the injury, and that the issues as to negligence of the bus driver and contributory negligence of the plaintiff were properly submitted to the jury.
In determining whether the affirmative charge should have been given for defendant, we must consider the evidence in its aspect most favorable to plaintiff; the burden is on the plaintiff to establish negligence by affirmative proof; and negligence will not be inferred by the mere showing of an accident resulting in personal injury. Howell v. Roueche, 263 Ala. 83, 81 So. 2d 297.
As we understand plaintiff's brief, he does not claim any right to recover for subsequent negligence.
Plaintiff was crossing at a point other than within a marked crosswalk or within an unmarked crosswalk at an intersection and was enjoined by statute to yield the right of way to all vehicles on the roadway. Section 16, Act No. 516, 1949 Acts, page 743; Pocket Parts, Code 1940, Title 36, § 58(16). Notwithstanding plaintiff's statutory duty to yield the right of way, the bus driver was under a duty to exercise due care to avoid colliding with any pedestrian on the roadway and to sound the horn when necessary and to exercise proper precaution upon observing any child or confused or incapacitated person on the roadway. Section 17, Act No. 516, supra; Title 36, § 58(17). Prior to the statute, this court had said it is a well-established general rule that a driver of an automobile owes a duty to pedestrians to look and reasonably care for the rights of others upon the public highway, not only at street crossings, but between intersections thereof. Shafer v. Myers, 215 Ala. 678, 680, 112 So. 230.
We are of opinion that this case is distinguishable from cases cited by defendant involving pedestrians injured by motor vehicles, where the court held that the affirmative charge with hypothesis should have been given for defendant in actions charging simple negligence. In Howell v. Roueche, supra, the injury occurred in a parking lot where the driver was not on notice that children were likely to be present *393 and the driver did not see the child until after the injury. In Burr v. Munson, 209 Ala. 362, 96 So. 235, the pedestrian, a woman, moved from center of roadway into the car and defendant did not see the pedestrian until after the injury. The distance she moved does not appear from the opinion. The opinion states that there was no evidence that defendant either drove the car against her or negligently permitted the car to strike her. Apparently the facts were such that no inference could be drawn that defendant negligently failed to keep a lookout, whereas in the instant case we think the evidence does permit such an inference. In Newman v. Katz, 112 N.J.L. 49, 169 A. 643, as defendant's truck was crossing the crosswalk, plaintiff, when out of the line of defendant's vision, stepped off curb, took three steps, and walked into the side of defendant's truck about midway of its right side.
In the case at bar we are of opinion that the issues were for the jury as to whether the bus driver was negligent in failing to keep a lookout and in exercising due care, and whether his negligence, if such there was, proximately caused plaintiff's injury; and also, it was for the jury to say whether plaintiff exercised due care for his own safety, and if he did not, whether his own negligence proximately contributed to the cause of his injury. Accordingly, we hold that the court did not err in refusing the affirmative charges requested by defendant.
Defendant assigns as error the action of the court in overruling objection to a question propounded by plaintiff to his witness, Dr. Yeager, as follows:
"Mr. McCall: We except."
X-ray photographs which are relevant and properly authenticated are admissible in evidence and may be more valuable evidence when explained to the jury by a person skilled in reading them. Demopolis Telephone Co. v. Hood, 212 Ala. 216, 219, 102 So. 35; City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382; Crocker v. Lee, 261 Ala. 439, 74 So. 2d 429; but irrelevant X-rays are improperly admitted, Southern Ry. Co. v. Lockridge, 222 Ala. 15, 130 So. 557. The objection here is that the witness was permitted to testify as to what the X-rays showed without producing the X-rays, thus depriving defendant of opportunity of seeing them, or cross-examining the witness as to what they showed, or having defendant's own expert examine the X-rays.
We are of opinion that the court erred in overruling defendant's objection.
In view of the fact, however, that the witness operated on plaintiff and treated him extensively for seven months, we are of opinion that the error is not ground for *394 reversal. Rule 45. The following statement is appropriate here:
Defendant assigns as error the giving of plaintiff's requested Charge 6 which recites as follows:
Defendant points out that the charge defines actionable negligence as neglect of defendant to use ordinary care "by which neglect" plaintiff suffered injury and fails to limit actionable negligence to that neglect which is the proximate cause of plaintiff's injury.
However negligent a person may have been in some particular, he is liable only to those who may have been injured by reason of such negligence, as the proximate cause. Where some independent agency has intervened and been the immediate cause of the injury, the party guilty of negligence in the first instance is not responsible. The proximate cause of an injury is the primary moving cause without which it would not have been inflicted, but which, in the natural and probable sequence of events, and without the intervention of any new or independent cause, produces the injury. Smith v. Alabama Water Service Company, 225 Ala. 510, 143 So. 893.
Charge 6 does not limit actionable negligence to that neglect which proximately causes injury but includes also neglect which, with the intervention of an independent cause, produces the injury. Under Charge 6 the jury could find the defendant liable for plaintiff's injury if it resulted from the negligence of the bus driver, notwithstanding the negligence of the plaintiff himself had intervened.
Defendant assigns as error the giving of plaintiff's requested Charge 12 which recites as follows:
Defendant contends that Charge 12 invades the province of the jury by assuming that plaintiff suffered mental and physical pain and suffering, and impairment of his ability to perform the ordinary duties of life.
In charging juries it is improper to assume, or state as fact, any material matter which depends on the sufficiency of oral testimony for its establishment, but this rule has a well-defined exception. When the record affirmatively shows that certain facts are clearly shown and not disputed, then it is not error if they be assumed in the charge to be facts, and stated as such without hypothesis. If there is any conflict in the testimony, or if the testimony is of such indeterminate character as that inferences must be drawn to make up its completeness, then such fact, or assumed fact, cannot be given in the charge without hypothesis. Carter v. Chambers, 79 Ala. 223; Grammer v. State, 239 Ala. 633, 196 So. 268.
That plaintiff suffered severe physical injury is clearly shown by the record. We do not think it can be disputed that he suffered mental and physical pain. Therefore, Charge 12 was not objectionable in assuming that fact.
As to the permanent impairment of plaintiff's ability to perform the ordinary duties of life, however, the testimony is of such indeterminate character as that inferences must be drawn to establish such impairment of plaintiff's ability. The charge is objectionable in assuming that plaintiff had suffered such impairment of his ability and should not have been given.
Plaintiff asserts that even if giving Charge 12 be error, it is not reversible error because such error cannot be predicated on the giving of a requested charge when instructions to the same effect in the court's oral charge were not excepted to, citing Weeks v. Weeks, 39 Ala.App. 159, 96 So. 2d 453. We do not understand the Weeks case to so hold. There was no requested charge considered in the opinion. As it seems to us, the holding is that failure to except to a portion of the oral charge constitutes a waiver of error therein. Section 818, Title 7, Code 1940, provides that it is not necessary for a party to except to the ruling of the court in giving a charge requested in writing and, if the charge is given, an exception by the other party is presumed, etc. Plaintiff's insistence is without merit.
Charge 12 might well have been refused because of failure to use the words "reasonably satisfied from the evidence" instead of "find from the evidence," Alabama City, Gadsden & A. Ry. Co. v. Bessiere, 190 Ala. 59, 66 So. 805, but this court has held that neither the giving nor the refusal of such a charge will, as a rule, work a reversal. Calvert v. Bynum, 255 Ala. 172, 50 So. 2d 731.
It appears that Charge 12 is subject to the further objection that under it the jury were permitted to award damages for pain and suffering endured by plaintiff without regard to causal connection between the pain and suffering and any act of defendant or its employee. Birmingham Ry., Light & Power Co. v. Moore, 2 Ala. App. 499, 56 So. 593; Adams v. Crim, 177 Ala. 279, 58 So. 442.
Plaintiff's Charge 13 instructs the jury that in estimating plaintiff's damages, the jury may take into consideration, among other elements, "doctors and medicine bills reasonably incurred." The amended complaint does not allege that plaintiff has incurred any medical expenses nor does it claim damages therefor.
This court has held that damages for the cost of medical treatment cannot be recovered unless specially claimed. Irby v. Wilde, 150 Ala. 402, 43 So. 574; St. Louis & S. F. Ry. Co. v. Trice, 202 Ala. 352, 80 So. 434; Atlantic Coast Line R. Co. v. Watson, 215 Ala. 254, 110 So. 316; Mobile Light & R. Co. v. Fuller, 18 Ala.App. 301, 92 So. 89. Charge 13 is bad in allowing recovery for special damage not alleged and giving it was error.
Plaintiff argues that defendant cannot on this appeal complain of the error in Charge 13 because defendant did not object to evidence as to medical expenses, did not except to oral charge permitting recovery for medical expenses, and did not move for new trial on ground that verdict was excessive. We do not agree.
Failure to object to evidence is waiver of error in admitting it, but is not a waiver of the right to have the jury correctly instructed as to the elements of damage recoverable under the pleadings. We have already expressed the view that failure to except to the oral charge was not a waiver of the statutory exception provided by § 818, Title 7, to an erroneous given charge. The error here complained of is not as to refusal of the affirmative charge because of a variance between pleading and proof, or as to excessiveness of the verdict. The error is the giving of an erroneous written charge, and motion for new trial is not necessary to preserve the right to review that error on appeal. In Travis v. Hubbard, 267 Ala. 670, 104 So. 2d 712, we held that rulings on admission or rejection of evidence may be reviewed on appeal without a motion for a new trial. We are of opinion that under § 818, Title 7, rulings on the giving or refusing of requested written charges may also be reviewed on appeal without a motion for a new trial.
Defendant assigns as error the giving of plaintiff's requested Charge 15, which instructed the jury that plaintiff, if entitled to recover, might recover for mental and physical pain and suffering. The objection made by defendant is that, because there is no allegation in the complaint as to mental and physical pain and suffering and no claim for damages therefor, plaintiff is not entitled to recover for these items.
General damages are such as naturally and necessarily flow from the wrong act, while special damages are such as naturally, but do not necessarily flow from it. General damages do not have to be pleaded in order to give defendant notice that they will be proved at the trial, for they are implied by law and defendant is supposed to know and can prepare to defend as to all damages that necessarily result from the wrong done. Special damages have to be set out and claimed in the complaint so that defendant may have proper notice of them and opportunity to prepare to meet the proof as to them. Waters v. Weintraub, 255 Ala. 530, 52 So. 2d 510.
The complaint alleges that as the proximate result of the negligence of defendant's employee plaintiff suffered severe personal injuries in that "* * * his right shoulder was fractured * * * his skull was fractured causing him to become partially blind in both eyes * * *." We think mental and physical pain and suffering were such damages as naturally and necessarily flow from the injuries which are alleged to have resulted from the wrong act charged against defendant, and therefore, are general damages. It follows that recovery could be had for mental and physical pain and suffering under the allegations of the *397 complaint, and Charge 15 is not subject to the objection urged against it.
Defendant assigns as error the refusal of its requested Charge 14, which recites as follows:
The charge permits plaintiff to recover only if the bus operator's negligence was the "sole and proximate" cause of injury. It is apparent that the operator's negligence, if any, was not the sole cause. The act of plaintiff in crossing the street was certainly a cause in the sense that unless he had started to cross, the injury would not have occurred as it did. Plaintiff's act would not bar recovery unless it proximately contributed to the cause of the injury. Under Charge 14, however, the jury might consider plaintiff's act as a remote cause, and if they did so consider it, then they might find that the bus operator's negligence was not the sole cause, although it was the only proximate cause, and thus deny recovery. Consequently, we are of opinion that refusal of Charge 14 was not error.
Defendant excepted to a portion of the oral charge relating to contributory negligence. In brief, defendant points out two sentences as being the part excepted to. We do not think that the first sentence is subject to the objection urged against it. While the second sentence may be and probably is subject to defendant's objection, we are of opinion that defendant's exception does not embrace that sentence.
The other charges refused to defendant were covered by the oral charge or other given charges, or were correctly refused. Inasmuch as the judgment must be reversed for errors 4, 5, and 6, we forego consideration of the ruling on the motion for new trial.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | May 25, 1961 |
f0e22243-3357-47e4-9659-b8b464915786 | Hewett v. McGaster | 133 So. 2d 189 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 189 (1961)
L. G. HEWETT, d/b/a General Finance Co., et al.
v.
Joe McGASTER.
1 Div. 875.
Supreme Court of Alabama.
September 14, 1961.
*190 Benj. H. Kilborn, Mobile, for appellants.
Tonsmeire & McFadden, Mobile, for appellee.
SIMPSON, Justice.
This is an appeal from a final decree of the Mobile Circuit Court in Equity, declaring a mortgage and foreclosure deed void. It appears from the pleading and decree that the ruling was rested on the conclusion that the mortgage was given on the homestead of the appellee without signature and assent of his wife, as required by our constitution and statute. The appeal challenges this ruling.
Appellee married Carrie McGaster in 1937 and purchased the subject property in 1944 as a homestead which was occupied by them until 1947, when Carrie McGaster moved away. The deed was made to Joe and Carrie, husband and wife, and was recorded also in 1944. Appellee continued to occupy the property until he was forced to move by appellant after having foreclosed the purported mortgage which was executed by appellee alone in January, 1956, without Carrie's signature or assent, duly acknowledged.
Section 205, Constitution 1901, provides, inter alia, that a mortgage or other conveyance of a homestead "by the owner thereof, if a married man shall not be valid without the voluntary signature and assent of the wife to the same". Section 626, Title 7, Code 1940 as amended, is substantially to the same effect.
We entertain the view that the trial court ruled correctly in declaring the mortgage and foreclosure deed void. It has long been settled in this jurisdiction that the alienation of the homestead by the husband without the voluntary signature and assent of the wife, duly acknowledged, is void and inoperative for any purpose. Lazenby v. Lazenby, 229 Ala. 426, 157 So. 670, and cases there cited.
Nor does the fact that the wife was living separate and apart from him when the conveyance was made affect the status of the property. Since they were never divorced, Carrie is still Joe's wife. Beccus v. Eads, 209 Ala. 578, 96 So. 757; Carey v. Hart, 208 Ala. 316, 94 So. 298.
And the mere separation of husband and wife, regardless of the cause or duration, and even though she might have abandoned him without just cause, cannot be read into the statute and constitution as an exception not therein expressed. The statute makes the signature and assent of the wife essential. Freed v. Sallade, 245 Ala. 505, 17 So. 2d 868. As noted in the Freed case, supra, some courts hold that a voluntary abandonment by the wife of the husband, assuming there was a valid marriage and no divorce, justifies the sale of the homestead by the husband without her signature, but such rule does not apply in Alabama. The mere separation of husband and wife, regardless of the cause or duration, under the statute makes the signature and assent of the wife essential to the validity of the alienation of the homestead.
It is noted that § 626, Title 7, Code 1940 was last amended by Gen.Act, 1951, p. 300, which seems to do away with the necessity of the separate acknowledgment of the wife in the alienation of the homestead, but this *191 modification in no way affected the legal principle adverted to above or the decision of this case.
It is true as argued by appellant that where a husband seeks the cancellation of the mortgage or deed to the homestead property on the ground that the wife's signature and assent were not affixed to the instrument and shown to have been duly (separately) acknowledged, as the statute requires, the husband must offer to do equity by restoring the consideration that he received for the execution of the conveyance. Leonard v. Whitman, 249 Ala. 205, 30 So. 2d 241, and cases cited. Here appellee did offer to do equity by his bill but he contended that first, he did not execute the mortgage, and second, that he had paid the appellant everything he owed on various notes and obligations he had given to the appellant. The evidence on these issues was in strict conflict and it was the prerogative of the trial court to decide this issue on this conflicting evidence in favor of appellee. In view of the favorable presumption attending the conclusion below we would be unwarranted in disturbing it.
Appellant claims as error the failure of the trial court to establish an equitable lien on the lands for permanent improvements allegedly made by him on said property. The contention is without merit. In the absence of an applicable statutory provision, and there is none covering the instant situation, one who makes improvements on the land of another is not entitled to an equitable lien to secure the payment of the costs of improvements unless the person making the improvements was induced by fraud, duress, undue influence, or mistake of such character that he is entitled to restitution. Taylor v. Shaw, 256 Ala. 467, 473(16-17), 55 So. 2d 502; Lee v. Menefield, 249 Ala. 407, 411, 31 So. 2d 581. There is nothing in the record to show any of these circumstances existed so as to entitle the appellant to an equitable lien on the property. Appellant had knowledge or means by which with reasonable diligence he could have acquired knowledge of the infirmity of his title. Estoppel "cannot be invoked by one who, at the time the improvements were made, was acquainted with the true character of his own title or with the fact that he had none". 19 Am.Jur. 788. There was evidence in the record which justified the court's conclusion that appellant knew of Carrie's being Joe's wife by certain testimony given by Joe. We can not put the court in error for failing to establish a lien in favor of appellant because he was not shown to be a bona fide occupant of the property, honestly supposing himself to be the true owner, and ignorant of the infirmity in his title. See also Gordon v. Tweedy, 74 Ala. 232(1); Gresham v. Ware, 79 Ala. 192, 199; Hoffman v. Jordan, 263 Ala. 23, 28-29, 81 So. 2d 546.
Appellant also argues that under our redemption statute (§§ 732 and 740, Title 7, Code 1940) he should be reimbursed for all the sums expended in making the improvements on the property. These sections deal with persons offering to redeem from a foreclosure sale entitling the purchaser to be reimbursed for the value of the permanent improvements. Rudisill v. Buckner, 244 Ala. 653, 656, 15 So. 2d 333.
Here there was no redemption to be effectuated. On the contrary, the mortgage, and therefore the foreclosure deed to appellant, were void because of the failure of the wife to join in the execution of the mortgage on the homestead.
It is also argued that the court committed reversible error in overruling appellant's objections to questions asked appellee's witness Sanders, a licensed real estate broker, relative to the value of the lot in controversy. The matter of whether or not as a preliminary proposition the witness was shown to be qualified addresses itself to the discretion of the trial court and its ruling thereon, which will not be reversed unless it clearly appears that the ruling was prejudicially erroneous and worked injury to the appellant's cause.
*192 The record shows the witness had some knowledge of the property and some opportunity to form an opinion and no reversible error is made to appear in the overruling of the stated objection. Southern Elec. Generating Co. v. Liebacher, 269 Ala. 9, 110 So. 2d 308; Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So. 2d 594.
Nor did the fact that the witness testified to the value of the property some time after the execution of the mortgage affect the admissibility of the testimony. He stated the value of the property had not decreased or increased during the interim but was the same. Verner v. Mosely, 221 Ala. 36, 40, 127 So. 527.
In the view we take of the case, further comment seems to be unnecessary.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | September 14, 1961 |
1a2f91a2-abd4-4cd7-82eb-c19fa3e38939 | State Farm Mutual Automobile Insurance Company v. Hubbard | 129 So. 2d 669 | N/A | Alabama | Alabama Supreme Court | 129 So. 2d 669 (1961)
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
v.
Johnnie Mae HUBBARD.
6 Div. 284.
Supreme Court of Alabama.
March 23, 1961.
Rehearing Denied May 18, 1961.
*670 Jas. L. Shores, Jr., Birmingham, and Dominick, Rosenfeld & Roberts, Tuscaloosa, and Jackson, Rives, Pettus & Peterson, Birmingham, for appellant.
Skidmorc & Davidson and deGraffenried, deGraffenried & DeGraffenried, Tuscaloosa, for appellees.
GOODWYN, Justice.
Huey Hubbard and his wife, Johnnie Mae Hubbard, and their son were on a trip in Mr. Hubbard's automobile when it became stuck in a mud hole near Boligee, Alabama. To get the car out, Mr. Hubbard placed some boards under the rear wheels to furnish traction. Mrs. Hubbard and the son then moved away from the car. As Mr. Hubbard was driving the car out of the mud hole, the rapid turn of the rear wheels caused one of the boards to be thrown against Mrs. Hubbard's leg, injuring her. She was hospitalized for about twelve days and was on crutches for about three months. She incurred certain medical expenses in connection with her injury.
Mr. Hubbard's car, at the time, was covered by a policy of liability insurance issued by State Farm Mutual Automobile Insurance Company, herein referred to as State Farm, with limits of $5,000 in case of bodily injury or death of one person, $10,000 when more than one person is involved, and $500 for medical expenses.
With respect to the bodily injury coverage (Coverage A), the policy contains what is generally referred to as a "household exclusion" provision, that is, there is excluded from such coverage "any member of the family of the insured residing in the same household as the insured."
Mrs. Hubbard received her injury on May 12, 1956. On July 7, 1956, Mr. Hubbard reported it to the Tuscaloosa agent of State Farm who had sold him the policy. The agent, on the same day, informed State Farm's adjuster of the injury, who then secured, on the same day, a written statement from Mr. Hubbard concerning the accident. This statement not only gave details as to how the accident occurred but also showed Mrs. Hubbard's injury, medical treatment and hospitalization. There was some discussion between the adjuster and Mr. Hubbard as to whether there was coverage of Mrs. Hubbard's medical expenses. The adjuster wrote State Farm's regional office at Birmingham concerning this question. Upon receiving notice from the regional office that the policy covered the medical expenses, the adjuster, on July 10, 1956, notified Mr. Hubbard to this effect. Mr. Hubbard informed the adjuster that Mrs. Hubbard was still under medical treatment and her final medical expenses had not been determined. There is evidence supportive of a finding that both the agent and adjuster knew or were informed that Mr. and Mrs. Hubbard were residing in the same household at the time of the accident.
During the following three or four months the adjuster had several telephone conversations with the Hubbards concerning Mrs. Hubbard's condition. Towards *671 the end of this period the adjuster offered to pay $327.17 for the medical expenses incurred by Mrs. Hubbard. The offer was refused. In this connection, the adjuster presented for execution a release acknowledging said sum to be "in full settlement and discharge of any and all amounts due the undersigned."
On October 17, 1956, Mrs. Hubbard filed with the director of public safety of Alabama a report of the accident on a so-called form SR-13. (This form was prepared by the director of public safety pursuant to § 4 of the "Motor Vehicle Safety-Responsibility Act," Act No. 704, appvd. Sept. 5, 1951, effective Jan. 1, 1952, Acts 1951, Reg. Sess., Vol. II, p. 1224 [§§ 7 and 14 of Act No. 704 were amended by Act No. 72, appvd. June 18, 1959, Acts 1959, Vol. 1, p. 478, but such amendments do not affect this case]. It is to be noted that § 4 requires the operator of a motor vehicle to make the report. However, the fact that the report was made by the injured person and not the operator is of no significance in this case.) The report stated when, where and how the accident occurred, the nature of Mrs. Hubbard's injury, and that the driver and owner of the vehicle was Huey Hubbard, giving his address.
On November 6, 1956, the director's office sent to Mrs. Hubbard a form SR-54 (also prepared by the director of public safety, apparently pursuant to § 2(a) of Act No. 704, supra, providing that "The Director shall administer and enforce the provisions of this Act and may make rules and regulations necessary for its administration"), which included an affidavit, to be completed by her and returned if she had a claim for personal injuries or property damages. Mrs. Hubbard completed her part of the SR-54 and returned it to the director's office on November 16, 1956. Since the attending doctor's report was not filled out, the SR-54 was sent back to Mrs. Hubbard. The doctor's report was then obtained and the form returned to the director's office on November 27, 1956. The affidavit showed a $25,000 claim by Mrs. Hubbard against Mr. Hubbard for her personal injuries. The doctor's report showed the cost of his services to date (November 23, 1956) to be $105 and the estimated total cost of medicines to be "unknown." Mrs. Hubbard's affidavit made no separate claim for medical expenses.
After receipt of the SR-54 in the director's office, a search was made to determine whether there was on file in said office evidence satisfactory to the director showing security on behalf of Mr. Hubbard with respect to said accident (§ 5, Act No. 704, supra). Finding none, the director's office, on November 28, 1956, mailed to Mr. Hubbard its form SR-8 (apparently prepared by the director pursuant to § 2(a) of Act No. 704), being, in essence, a notice of the security requirements of Act No. 704. This form contained an order that Mr. Hubbard forward to the department of public safety his driver's license, registration certificate, and registration plates, by December 14, 1956, in event he should fail to comply with the security provisions of the law (§ 5(b), Act No. 704). The notice also contained the following with respect to the security required, viz.:
On December 4, 1956, the director's office received a form SR-13 (report of accident, apparently prescribed by the director pursuant to § 4 of Act No. 704) completed by Mr. Hubbard and to which was attached by perforation a form SR-21. (We find no provision of the Act calling for such Form SR-21. Apparently it was prepared by the director under the provisions of § 2(a).) Mr. Hubbard had completed the required portion of this form SR-21 in connection with the security provisions of Act No. 704. On the form he indicated that he had an insurance policy with State Farm covering liability damage or injury to others in connection with the accident of "5-12-56 in or near Boligee, Alabama." This part of the form SR-21 is as follows:
On the other side is another part of the form SR-21 for execution by the insurance carrier. This was mailed by the director's office to State Farm's regional office in *673 Birmingham. Before mailing, the form SR-21 had been detached from the form SR-13 filed by Mr. Hubbard. On December 14, 1956, the form SR-21 was returned to the director's office, State Farm having verified that it had insured Mr. Hubbard with an automobile liability policy that conformed with the "requirements of the Motor Vehicle Safety-Responsibility Act."
This part of form SR-21, as completed by State Farm, is as follows:
It is to be noted that the Act does not require an insurance carrier to file such form or to give notice in any other manner of the existence of an "automobile liability policy" issued by it.
We find nothing in the record affirmatively showing that Mrs. Hubbard was making claim against her husband for her personal injuries prior to the time she filed the SR-54. Nor does the record disclose that State Farm had actual knowledge of the filing of her said claim when it filed the SR-21. Nor is there any affirmative evidence that Mr. Hubbard claimed coverage under the policy for Mrs. Hubbard's injuries prior to the filing of the SR-21 by State Farm.
It was stipulated that the form SR-21 was filed with the Director of Public Safety by "an agent, servant or employee" of State Farm, "with full authority to act for said Company."
No further action was taken with respect to suspending Mr. Hubbard's driving privileges.
On January 7, 1957, Mrs. Hubbard filed suit against Mr. Hubbard in the circuit court of Tuscaloosa County claiming $25,000 damages for her personal injuries suffered as a result of the accident. The complaint was served on Mr. Hubbard on January 9, 1957. Immediately thereafter he delivered the suit papers to State Farm's adjuster *674 in Tuscaloosa, who forwarded the papers to State Farm's regional office on January 14, 1957. Pursuant to the company's instruction the adjuster contacted Mr. Hubbard on January 16, 1957, and obtained from him an additional statement to the effect that he and Mrs. Hubbard were living together as man and wife at the time of the accident and at the time the suit was brought.
On January 24, 1957, State Farm sent to Mr. Hubbard a letter by registered mail informing him that, in view of the exclusion of coverage of "any member of the family of the insured residing in the same household as the insured," it would not "furnish or pay for the defense of this law suit filed against you by your wife." The letter further stated that an investigation had revealed that the plaintiff was the insured's wife and that they were residing in the same household on May 12, 1956, the date of the accident. The letter also stated that the insured had "medical pay coverage * * * which will pay for the actual verified medical expenses up to $500 of your wife incurred in one year from May 12, 1956, as a direct result of this accident," and that State Farm "will be glad to make payment on the medical coverage at any time."
On February 9, 1957, a judgment by default was rendered in favor of Mrs. Hubbard against Mr. Hubbard in the amount of $25,000.
On May 13, 1957, Mrs. Hubbard, pursuant to Code 1940, Tit. 28, § 12, as amended by Act No. 283, appvd. Aug. 5, 1953, Acts 1953, Vol. I, p. 350, filed a bill in the circuit court of Tuscaloosa County, in equity, against Mr. Hubbard and State Farm for the purpose of collecting said judgment.
On December 10, 1957, the cause was submitted for decree on the pleadings, a stipulation of the parties, exhibits introduced in evidence, and oral testimony taken before the trial court.
On January 22, 1958, a decree was rendered against State Farm holding that it had waived its right to assert the household exclusion provision of its policy when it voluntarily filed the form SR-21 with the department of public safety, and that it had acted in had faith in refusing to defend the law suit brought by Mrs. Hubbard against Mr. Hubbard; and ordering State Farm to pay Mrs. Hubbard the sum of $5,000, the face of the policy, and also the $20,000 excess of the judgment in her favor against Mr. Hubbard, together with 6% interest thereon from the date of such judgment, and to pay Mr. Hubbard the sum of $1500 as a fee for his attorneys' services in the equity proceeding. State Farm was also assessed with the costs of the equity proceeding. From that decree, State Farm prosecutes this appeal.
We do not understand State Farm to insist that the principle of waiver is inapplicable with respect to the household exclusion provision of the policy. Accordingly, we will assume for the purposes of this case, without deciding, that it is applicable. State Farm argues that its conduct in filing the SR-21 "did not waive any right arising from the policy issued to Mr. Hubbard."
As already noted, the trial court held that there was a waiver. The correctness of that holding is the decisive question presented on this appeal. In view of our conclusion that such holding was error, there is no occasion to consider or discuss that portion of the decree ordering payment by State Farm to Mrs. Hubbard of the $20,000 excess of the judgment in her favor against Mr. Hubbard, and payment to Mr. Hubbard of the sum of $1500 as a fee for his attorneys' services. Since there was not a waiver of the household exclusion provision, State Farm was under no obligation to defend Mrs. Hubbard's suit against Mr. Hubbard and, hence, there is no liability on State Farm growing out of its refusal to defend such suit.
*675 Act No. 704 may be said to consist of two parts, one providing for security for injuries and damages resulting from accidents which have already occurred, and the other providing for proof of ability to respond in damages (that is, "Proof of Financial Responsibility") for liability on account of accidents occurring subsequent to the effective date of said proof. Our concern here is with the first part.
It is to be noted that the Act specifically provides in § 5(c) that a deposit of security is not required "if such owner had in effect at the time of such accident an automobile liability policy with respect to the motor vehicle involved in such accident" (certain minimum monetary limits being prescribed). We here observe that the "automobile liability policy" referred to in § 5(c) is not the same as a "motor vehicle liability policy" provided for in connection with the second part of the Act, that is, "Proof of Financial Responsibility" with respect to future accidents (see §§ 19 through 21). The Act contains no definition of an "automobile liability policy", as used in § 5(c), as it does of a "motor vehicle liability policy" (see § 21(a).) Nor does the Act provide that an "automobile liability policy" contain certain provisions, nor that such policy shall be subject to certain provisions, although not contained therein, as it does with respect to a "motor vehicle liability policy" (see § 21(b) through (k).)
Let us see just what it is that State Farm conceded or admitted when it filed the SR-21. By the very terms of the SR-21, it admitted that the policy "conforms with requirements of the Motor Vehicle Safety-Responsibility Act." But there is nothing in the Act providing for or requiring a policy in connection with the security provisions other than "an automobile liability policy with respect to the motor vehicle involved in such accident." And what is such a policy? It seems to us that it means simply an automobile liability policy valid under the laws of Alabama and containing the minimum prescribed limits of liability. There appears to be no disagreement that the policy issued by State Farm (containing the household exclusion provision) is valid in this state. So, when State Farm filed the SR-21, can it be said it intended to certify or admit that the policy did not contain such lawful exclusion provision? We do not think so. There can be no waiver without the intentional relinquishment of a known right. Bell v. Birmingham Broadcasting Co., 263 Ala. 355, 357, 82 So. 2d 345; Isom v. Johnson, 205 Ala. 157, 159, 87 So. 543; 56 Am.Jur., Waiver, § 2, p. 102, § 15, p. 115; 45 C.J.S. Insurance § 673, pp. 612-613. Clearly, it seems to us, there is no showing of an intentional relinquishment by State Farm of its right to rely on the household exclusion provision of its policy. The policy being a valid "automobile liability policy", and the Act providing for such policy, we are clear to the conclusion that, under the circumstances of this case, there was no waiver of the household exclusion provision.
It might well be that the provisions of Act No. 704 making the security provisions of the Act inapplicable if the owner had in effect at the time of an accident "an automobile liability policy with respect to the motor vehicle involved in such accident," should be changed to provide more protection under such a policy than is presently the case. That, however, is a matter which is addressable to the legislature. For us to hold it was intended by the present Act to afford such additional protection would be to legislate by judicial decree.
We have given careful consideration to the several Wisconsin cases relied on by appellee, viz.: Laughnan v. Griffiths, 271 Wis. 247, 73 N.W.2d 587; Perlick v. Country Mut. Cas. Co., 274 Wis. 558, 80 N.W.2d 921; Behringer v. State Farm Mut. Auto Ins. Co., 275 Wis. 586, 82 N.W.2d 915. We are not persuaded that they should be of controlling effect in considering the Alabama Act. For a discussion of these and other Wisconsin cases, and legislative action taken in Wisconsin, see: Wisconsin *676 Law Rev. 1959, p. 552, "Insurance The New Safety Responsibility Law"; 40 Marquette Law Rev., p. 241, "Insurance The Effect of an Insurer Filing the SR-21 Form"; 42 Marquette Law Rev. p. 116, "Estoppel to Raise Defenses Under Wisconsin's Revised SR-21 Procedure"; 24 Insurance Counsel Journal, p. 130, Miller, "SR-21, Notice or Contract?"; 25 Insurance Counsel Journal, p. 342, Miller, "The New SR-21 in Wisconsin."
For a discussion of legislation similar to Act No. 704, see: 27 Tulane Law Rev. 341; 33 Iowa Law Rev. 522.
The decree appealed from is due to be reversed and a decree will be rendered here dismissing the bill.
Reversed and rendered.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur | March 23, 1961 |
ce847941-4771-4ba7-bca0-0a38f852f32d | St. Clair County v. Bukacek | 131 So. 2d 683 | N/A | Alabama | Alabama Supreme Court | 131 So. 2d 683 (1961)
ST. CLAIR COUNTY
v.
James A. BUKACEK et al.
7 Div. 447.
Supreme Court of Alabama.
March 23, 1961.
Rehearing Denied June 22, 1961.
*685 Starnes & Holladay, Pell City, and Maurice F. Bishop, Birmingham, for appellant.
Beddow, Gwin & Embry, Birmingham, for appellees.
MERRILL, Justice.
This is an appeal from the Circuit Court of St. Clair County, from a jury verdict and judgment thereon in an eminent domain (condemnation) proceeding awarding appellee $4,000, instituted by St. Clair County to acquire land for a public highway. The condemned right-of-way for this controlled access highway ran through a forty acre tract where no highway had ever been built.
The main question presented is whether the jury is entitled to consider, in assessing damages, the deprivation or limitation of access to a controlled access highway when the highway is constructed on a new right-of-way, and where the landowner had no previous access rights to this highway.
The question is raised by the refusal of written charges two through eight and certain parts of the oral charge. In essence, these written charges enunciated the principle that where a new controlled access highway is constructed on a new right-of-way, the landowner had no previous right of access and no right was taken away from him which required compensation.
The court's oral charge was to the effect that access to a highway is a property right, and if the landowner is deprived of this right, then the jury should consider that loss or interference with that right in arriving *686 at the just compensation to be awarded the owner.
Appellant cites the following cases holding that the landowner has no access rights to a new highway built under the facts prevailing here: City of Los Angeles v. Geiger, 94 Cal. App. 2d 180, 210 P.2d 717; State, By and Through State Highway Commission v. Burk, 200 Or. 211, 265 P.2d 783, 794; State v. Calkins, 50 Wash. 2d 716, 314 P.2d 449; State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60; State ex rel. State Highway Commission v. Clevenger, 365 Mo. 970, 291 S.W.2d 57. But those jurisdictions have different constitutional provisions and statutes than do we. Other cases are listed and considered in 43 A.L.R.2d 1072.
In McEachin v. City of Tuscaloosa, 164 Ala. 263, 51 So. 153, 154, it is stated that the only two states with the same language as Sec. 235 of our Constitution are Alabama and Pennsylvania. That section states that the condemnor in eminent domain proceedings "shall make just compensation, to be ascertained as may be provided by law, for the property taken, injured or destroyed by the construction or enlargements of its works, highways, or improvements, * *." Most constitutions merely provide for just compensation for property taken by condemnation.
Title 19, § 14, Code 1940, states that "* * * in the condemnation of lands for ways and rights of ways for public highways, the commissioners may, in fixing the amount of compensation to be awarded the owner for lands taken for this use, take into consideration the value of the enhancement of the remaining lands of such owner that such highway may cause." We have held that the word "may" is construed as "must." Conecuh County v. Carter, 220 Ala. 668, 126 So. 132.
The underlying theory of all the cases cited by appellant is that there can be no detriment to a right which never existed and no compensation for a loss not sustained. And this theory is based upon the claim that an abutting landowner has no rights in a newly constructed highway until it is opened for travel, and the owner should not be compensated for the loss of a right of access which he never had.
By the same reasoning, it is clear that no benefits and no enhancement to the remaining lands occur until the highway is opened for travel.
We cannot conceive that the Legislature intended that an owner's compensation should be reduced by consideration of benefits that might accrue only after the highway was opened, and not consider any damage to the right of access which would accrue when the highway is opened for travel. And we have approved holdings in highway condemnation cases where no damages were awarded for lands taken. Posey v. St. Clair County, 270 Ala. 110, 116 So. 2d 743; Bates v. Chilton County, 244 Ala. 297, 13 So. 2d 186; Conecuh County v. Carter, 220 Ala. 668, 126 So. 132.
The legislative intent is emphasized by the Controlled Access Facilities Act, 1956, 1st Ex. Session, No. 104, approved February 9, 1956, and listed as Tit. 23, §§ 141-148 in the Recompiled Code of 1958. Section 5 of the Act provides for the acquiring of property and property rights, "including rights of access, air, view, and light, by gift, devise, purchase or condemnation." This is a legislative recognition that the abutting landowner does have a property right of access which is subject to condemnation.
Furthermore, if the abutting owner had no right of access, there was no reason for that right to be specifically condemned in the eminent domain proceedings filed in this cause.
We have recently decided two cases involving controlled access highways. In Blount County v. McPherson, 268 Ala. 133, 105 So. 2d 117, the new controlled access highway followed the course of the old highway, to which the abutting landowner had access. Additional land was taken to *687 widen the right-of-way and the right of access to the new highway was condemned. We held that the landowner was entitled to be compensated for his loss of access to this controlled access highway when his access rights had been condemned along with his land for the new right-of-way.
In Blount County v. Campbell, 268 Ala. 548, 109 So. 2d 678, 682, the new controlled access highway went through his property where no highway had ever been. His access rights to this new highway were condemned. His property did not abut on the old highway but one of the roads to the old highway was sealed off. We held that the taking of the land, the closing of one of the roads to the old highway, his loss of access to his remaining property, and the "inconvenience to the remaining tract resulting from the condemnation" were circumstances to be considered by the jury.
Surely, if the loss of indirect access is a factor or circumstance to be considered, then the denial of direct access by condemnation should be considered by the jury in determining the damages.
The well-established 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. Morgan County v. Hill, 257 Ala. 658, 60 So. 2d 838; Pryor v. Limestone County, 222 Ala. 621, 134 So. 17. In determining the value of the property after the taking, the jury should consider any factor or circumstance which would depreciate the value in any way, and this includes any effect that the completed project for which the land is condemned may produce on the remaining tract. Certainly this is so if it affects the ingress and egress to the useful portions of the property from the highway. Hooper v. Savannah & M. R. Co., 69 Ala. 529; Pike County v. Whittington, 263 Ala. 47, 81 So. 2d 288; Hatter v. Mobile County, 226 Ala. 1, 145 So. 151; McRea v. Marion County, 222 Ala. 511, 133 So. 278.
The authorities cited in the preceding paragraph hold that when the ways of ingress and egress to a public highway are obstructed or interrupted, such obstruction or interruption forms a part of the injury to the land. And the compensation must be fixed by the valuation of the property as of the time of the taking, whether the time of the taking reverts to the filing of the petition for condemnation, or when the commissioners make their report, on which the probate court shall order the condemnation. Jefferson County v. Adwell, 267 Ala. 544, 103 So. 2d 143.
It is, therefore, contemplated that the landowner's damages are to be assessed before the highway is built and that any benefits to his property are considered before the highway is ever built, much less opened for travel. Once again, this demonstrates that the principle stated in the cases cited by appellant that an abutting landowner has no rights in a newly constructed highway until it is opened for travel is not applicable under the statutes and decisions in Alabama.
In Blount County v. McPherson, 268 Ala. 133, 105 So. 2d 117, 119, we said:
The general rule of right of access is stated in 25 Am.Jur., Highways, § 154, p. 448:
This right has been called a common law right of access in Smith v. State Highway Commission, 185 Kan. 445, 346 P.2d 259, 266, where the court said:
The Court of Appeals of Ohio, in the case of In re Appropriation of Easement for Highway Purposes, 93 Ohio App. 179, 112 N.E.2d 411, 415, stated in reference to the condemnation of land for limited access highway:
It follows that when a property right is taken by condemnation, the owner of that property right is entitled to compensation for its taking.
We think it proper to show that on final analysis, there is little difference in the result reached in the cases cited by appellant and this case. All of those cases either use, or cite cases using, an illustration *689 taken from an article in 3 Stanford Law Review, Freeways, p. 308:
Most of those jurisdictions following this reasoning have statutory provisions relating to severance damages. In California, the Code of Civil Procedure, § 1248, requires the court, jury or referee to ascertain and assess severance damages, stating: "If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned, and the construction of the improvement in the manner proposed by the plaintiff;."
It can be readily seen that while they will not allow damages for denial of right of access, still they recognize that the severance of the landowner's remaining parcels will be "more complete" and he should be paid more damages for "this more complete severance."
The result reached by us is the same, although by different reasoning. If a conventional four lane access highway is built through the property, the remaining land has one value; if a four lane nonaccess highway is built, the remaining land has a lesser value, because the abutting landowner has no frontage, cannot cross the highway from one tract to the other and must use a circuitous route to go from one tract to another, where formerly the tract was not divided. Under the law in this state, these differences in value are to be considered in arriving at the total difference in the value of the property before and after the taking.
In view of our constitutional provisions, statutes and decisions, we hold that where, as here, the property right of access is condemned and the abutting property owner is denied access to the controlled or limited access highway, this factor or circumstance is proper for the jury to consider in arriving at just compensation to be awarded the owner of the land.
The dissenting opinion cites Southern Electric Generating Co. v. Lance, 269 Ala. 25, 110 So. 2d 627; Southern Electric Generating Co. v. Leibacher, 269 Ala. 9, 110 So. 2d 308, and Housing Authority of Birmingham Dist. v. Title Guarantee Loan & Trust Co., 243 Ala. 157, 8 So. 2d 835. Those cases are not apt authority on the question before us. In each case, the condemnation of the property was for a purpose other than for a public highway. Title 19, § 14, Code 1940, clearly states that the compensation must not be reduced or diminished because of any benefits "to their remaining lands in consequence of the uses to which the lands to be taken, * * * will be appropriated;", but the same section provides a different rule where lands are condemned for public highways, as previously quoted in this opinion.
There was no error in permitting the jury to consider the fact that appellee had no right of access to the highway running through his property.
Assignment of error 2 charges error in the refusal to grant appellant's motion for a mistrial when counsel for appellee asked the following question on cross-examination of appellant's witness Bryson, a right-of-way engineer: "Do you know of a single instance where a jury *690 in this county has failed to go above his (the state appraiser's) valuation?"
The objection to this question was sustained. We think the trial court properly overruled the motion for a mistrial. Appellant received no prejudicial injury, especially in view of the fact that his counsel managed to get in the statement that there was such an instance, the case of the Martin Estate, which was represented by appellee's attorney.
Assignment No. 3 charges error in overruling objections to the following question on cross-examination:
After the objection, the court stated to objecting counsel: "Overruled. You went into it. * * * You asked him the percentage that settled" (for the valuation set by the state's appraiser, Williamson).
What percentage of other property owners had settled at the value set by Mr. Williamson (shown by appellant to have been 70%) was not relevant, but the rule is that irrelevant, incompetent or illegal evidence may be admitted to rebut evidence of like character. Bank of Phoenix City v. Taylor, 196 Ala. 665, 72 So. 264; 9 Ala. Dig., Evidence.
Assignments 4 and 5 are predicated on the denial of motion for a mistrial. While appellee was testifying, he was asked if he had a judgment as to the value of the remainder of the 80 acre tract after the taking of 12.62 acres. The answer: "You mean after they build a military highway to Arkansas, what's it worth?" The objection was sustained, and three times the court told the jury not to consider the answer. Two of these times occurred after counsel for appellant stated why he thought the answer was highly prejudicial.
We have held that a motion for a mistrial was properly overruled where the answer of the witness was, as here, irresponsive to a question calling for proper evidence, when the trial court instructed the jury not to consider the answer. Wagnon v. Patterson, 260 Ala. 297, 70 So. 2d 244; Cannon v. Scarborough, 223 Ala. 674, 137 So. 900. Moreover, we assume that it is common knowledge that one of the basic reasons for the institution of the interstate limited access highway construction program was to provide rapid traffic facilities for defense purposes in case of national emergency. In Birmingham Electric Co. v. Perkins, 249 Ala. 426, 31 So. 2d 640, 642, we said:
We cannot say that the result or "the amount of damages assessed" was affected. Appellant's expert witness placed the damage at $1,450. Appellee and his expert witness placed the damages at $8,000. The jury awarded $4,000. This action does not indicate that the jury was prejudiced as to the amount of damages assessed.
*691 Appellant's final assignment of error is concerned with counsel's argument to the jury. The assigned error is limited to the last two sentences of the statement copied below. But the record shows the statement consists of four sentences, as follows: "Now Mr. Starnes (who opened for appellant) said that this money for this compensation comes out of the taxpayers pocket. And I would like to comment on that. At the rate that the evidence has shown that that compensation is paid to this gentleman whose only day in Court is now, there are two and a half million people in the State of Alabama. It will cost you one/tenth of one cent to pay him $25,000."
We have held that an appeal to the self-interest of the jurors as taxpayers is of such a prejudicial nature that it constitutes a ground for reversal. Williams v. City of Anniston, 257 Ala. 191, 58 So. 2d 115. The entire statement made here shows on its face that it was reply in kind to improper argument first made by counsel for appellant. Replies in kind do not amount to reversible error. McLaney v. Turner, 267 Ala. 588, 104 So. 2d 315; Alabama Power Co. v. Bowers, 252 Ala. 49, 39 So. 2d 402. Statements or argument of counsel which are provoked or produced by statements or arguments of opposing counsel can furnish no ground for complaint or corrective action. Harvey Ragland Co. v. Newton, 268 Ala. 192, 105 So. 2d 110; Alabama Great Southern R. Co. v. Gambrell, 262 Ala. 290, 78 So. 2d 619.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.
SIMPSON and STAKELY, JJ., dissent, except as to assignments of error 2, 3, 4 and 5.
SIMPSON, Justice, with whom STAKELY, Justice, concurs (dissenting).
This is an appeal from the Circuit Court of St. Clair County, Alabama, from a jury verdict and judgment thereon awarding appellee $4,000 as damages in a condemnation suit, instituted by St. Clair County to acquire land for a public highway.
The subject property was not served by any road and the proposed road is a limited access highway. The principle question to be determined is whether the trial court erred to a reversal in refusing certain charges requested by the appellant to the effect that no damages could be awarded to the landowner in restricting or limiting right of access to the new highway. Rulings on evidence raise the same point.
The requested charges of the appellant which were refused by the trial court, numbered two through eight, will be considered and are determinative of the appeal. In essence these charges enunciated the principle that where a new limited access highway is constructed on a new right of way, no access rights previously existing in the landowner, no access rights have been taken away. In other words, the condemnor asked that the jury be instructed that an abutter is not entitled to any damages or compensation for restriction or limitation of access to the proposed road since no access previously existed and no access is being taken away. I think these charges should have been given.
The question is new to this jurisdiction but as I read the cases from other jurisdictions they are practically unanimous in supporting the proposition sought to be enunciated by the stated charges.
In State v. Calkins, 50 Wash. 2d 716, 314 P.2d 449, 450, an eminent domain proceeding by the state to condemn a right of way across premises of defendant for purpose of constructing a new limited access highway where no highway theretofore existed, was presented.
The court stated:
Repeating the same principle the Supreme Court of Idaho in State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60, 64, where the Highway Department brought condemnation proceedings to condemn part of a farm for highway purposes, said:
The Supreme Court of Oregon in State, By and Through State Highway Commission v. Burk et al., 200 Or. 211, 265 P.2d 783, 793, held similarly and in its opinion quoted with approval from People v. Thomas, 108 Cal. App. 2d 832, 239 P.2d 914, where proceedings were instituted for acquisition of a limited access freeway where no highway had previously existed, as follows:
And from City of Los Angeles v. Geiger, 94 Cal. App. 2d 180, 210 P.2d 717, 724:
The Court then quoted from an article in 3 Stanford Law Review, Freeways, p. 308, which the Supreme Court of Oregon noted "merits consideration by reason of the excellence of its reasoning":
In State ex rel. State Highway Commission v. Clevenger, 365 Mo. 970, 291 S.W.2d 57, involving condemnation proceedings to acquire lands for relocation of a highway as a limited access highway, the Supreme Court approved the reasoning expressed in State, By and Through State Highway Commission v. Burk, supra; that there could be no taking of an easement of access to the new roadway, because no prior right of access existed. Thus, the supposed deprivation of a right of access to the road itself could not constitute a compensable element of damage.
*693 The same principle was enunciated in the City of Santa Monica in the case of Schnider, et ux. v. State, 38 Cal. 2d 439, 241 P.2d 1, 3, 43 A.L.R.2d 1068, where the trial court refused to allow plaintiff compensation for the loss of an asserted right of direct access. The court in its opinion concluded:
See also the case of Department of Public Works and Buildings v. Hubbard, 363 Ill. 99, 1 N.E.2d 383.
Thus is the rule announced in the foregoing cases: A property owner without prior highway access is not entitled to compensation for deprivation of access in the construction of a new limited access highway on a newly acquired right of way. Therefore, on the soundness of the principle that "there can be no compensation for a loss not sustained" it is clear to me that the learned trial court erred in refusing to give the appellant's requested written charges which sought to charge out as an element of damages to be considered by the jury the denial of a right of access.
I do not read any of our cases, such as Blount County v. McPherson, 268 Ala. 133, 105 So. 2d 117, and Blount County v. Campbell, 268 Ala. 548, 109 So. 2d 678, to have enunciated a contrary principle. These cases presented different factual situations from the one at bar.
In the McPherson case the Court pointed out:
The petition for condemnation also sought to condemn this existing right of access to the highway. It was, therefore, very correctly held that this valuable property right should form an element of damages to the landowner's property. See 43 A.L.R.2d § 3, p. 1074 for supportive authorities.
In the Campbell case the following are the facts (quoted from the opinion):
The court held that loss to appellant of such "indirect access" was compensable in the condemnation proceedings. The cases also support this proposition. See 43 A.L.R.2d § 4, p. 1077.
But in the situation instantly presented, where the condemned property did not abut on any highway prior to construction and the landowner had no preexisting right of access, no damages could be claimed because after construction the owner was not provided with access to the new highway. As, of course, you should not be paid for a right you never had. There seems to be no contrariety of opinion on this question in any of the cases so far decided. And *694 the sound reasoning of the above mentioned cases (and there are many others) impresses me as being unassailable. See 43 A.L.R.2d § 6, p. 1079 as supportive of this theory.
The majority opinion, for apparently two main reasons, holds that a landowner should be compensated for loss of access to a highway even though no such access existed before the highway construction. The first reason seems to be based upon the theory that the Alabama Constitution and Statutes are different from those in the states from which the cases cited in my opinion are taken. The majority opinion indicates that, therefore, these cases do not serve as valid authority in Alabama. I disagree. Section 235 of the Alabama Constitution of 1901 states that no private property shall be taken, injured or destroyed for a public purpose without just compensation being first paid therefor.
The California case of Schnider v. State, 38 Cal. 2d 439, 241 P.2d 1, 43 A.L.R.2d 1068, refers to a similar provision, viz.: Article 1, Section 14 of the Constitution of California, which reads in pertinent part as follows:
The Schnider case, supra, in language relevant to the instant case, declares the law in California to be as follows [38 Cal. 2d 439, 241 P.2d 3]:
(It is noted here that California allows enhancement to be deducted from damages.) People, By and Through Department of Public Works v. Thompson, 43 Cal. 2d 13, 271 P.2d 507.
The Alabama Constitution also clearly refers to the taking or the damaging of a property right which was in existence at the time of the taking. Section 235, supra.
Courts throughout the United States have logically held, that where a new highway is constructed as a limited access facility, no right of access arises in the abutting owner. For other cases not cited supra, see also Carazalla v. State, 269 Wis. 593, 70 N.W.2d 208, 71 N.W.2d 276; Lehman v. Iowa State Highway Commission, Iowa 1959, 99 N.W.2d 404; Medearis v. State, Okl.1959, 341 P.2d 607; Smick v. Commonwealth, Ky. 1954, 268 S.W.2d 424.
*695 The principle of restricted dedications has long been known to the common law. Home Laundry Co. v. City of Louisville, 168 Ky. 499, 182 S.W. 645. The limited access highway would seem to be but a modern application of this doctrine. Any other rule would result in the Highway Department having to condemn a right which was created by their own action. Such a result is not a logical one, nor would it be fair and equitable to the condemning authority.
The majority opinion argues that since enhancement resulting after the taking may be set off against damages, then loss of access resulting after the highway is opened for traffic should be added to damages. This reasoning impresses me as falacious and is not consistent with previous holdings of this Court. Alabama strictly follows the before and after rule in determining the valuation of property in arriving at the compensation to which an owner is entitled in eminent domain proceedings. Morgan County v. Griffith, 257 Ala. 401, 59 So. 2d 804; Rountree Farm Co. v. Morgan County, 249 Ala. 472, 31 So. 2d 346; Coffee County v. Spurlin, 245 Ala. 99, 16 So. 2d 12; Bates v. Chilton County, 244 Ala. 297, 13 So. 2d 186; Pickens County v. Jordan, 239 Ala. 589, 196 So. 121; Conecuh County v. Carter, 220 Ala. 668, 126 So. 132; Rudder v. Limestone County, 220 Ala. 485, 125 So. 670, 68 A.L.R. 776.
We have consistently held that the landowner is entitled to the difference, if any, between the value of his property before the taking and the value of his property after the taking. If no access exists immediately before the taking, then, clearly, loss of access could not affect the difference between the before and after values. This is readily distinguished from enhancement since in order to deduct enhancement from damages, the land must, in some respect, be worth more after the taking than it was before. Thus, enhancement does actually affect the difference between the before and after values.
To allow a landowner to be compensated for loss of access when he did not have access before the highway was constructed would be to permit the landowner to recover for enhancement which was created by the highway itself. This Court has consistently followed the vast majority of cases throughout the United States in holding that a landowner must not be compensated for an increased value which is created by the proposed improvement.
In our recent case of Southern Electric Generating Co. v. Lance, 1959, 269 Ala. 25, 110 So. 2d 627, 633, we hold:
In Southern Electric Generating Co. v. Leibacher, 269 Ala. 9, 110 So. 2d 308, 318, this Court further observed, "An owner is not entitled to show the valuation of the property as enhanced by the contemplated improvement."
In Housing Authority of Birmingham Dist. v. Title Guarantee Loan & Trust Co., 243 Ala. 157, 8 So. 2d 835, 838, this Court declared:
See also United States v. Miller, 317 U.S. 369, 63 S. Ct. 276, 87 L. Ed. 336, 147 A.L.R. 55; State of Texas v. Vaughan, Tex.Civ. App., 319 S.W.2d 349; United States v. First National Bank, D.C.Ala., 250 F. 299; Cole v. Boston Edison Co., 338 Mass. 661, 157 N.E.2d 209.
Clearly, a landowner should not be entitled to an increased award if his property is located at an interchange of a limited *696 access facility and thereby changing the highest and best use of the property from farm land to commercial property. Similarly, a condemnor should not have to pay for access when such access is in fact created by the highway itself.
Of course the severance may be more complete when a highway is a limited access facility. This damage is properly reflected, however, in the before and after valuations of the whole property and the owner should not be compensated for loss of access per se where no such access existed prior to the highway. He should not be paid for a right he never had nor for a loss he never sustained. Lehman v. Iowa State Highway Commission, Iowa 1959, 99 N.W.2d 404; 3 Stanford Law Review, p. 308.
I, therefore, respectfully dissent.
STAKELY, J., concurs. | March 23, 1961 |
7a92b3be-a4e9-4c2e-b45f-7bb8142a457b | WT SMITH LUMBER COMPANY v. Raines | 127 So. 2d 619 | N/A | Alabama | Alabama Supreme Court | 127 So. 2d 619 (1961)
W. T. SMITH LUMBER COMPANY
v.
Annie Mae RAINES.
3 Div. 920.
Supreme Court of Alabama.
March 2, 1961.
*620 Poole & Poole, Greenville, for appellant.
Tipler & Fuller, Andalusia, for appellee.
GOODWYN, Justice.
This is a workman's compensation case tried in the circuit court of Butler County and brought here by certiorari on petition of the employer.
In the trial court the parties stipulated that the only issues to be determined were as follows: "One, whether there was an accident which arose out of or in the course of the deceased's employment with W. T. Smith Lumber Company. Two, if so, was the accident the cause of the death of John Matthew Raines, within the contemplation of the Workmen's Compensation Laws of Alabama."
The trial court found that the decedent employee did suffer an accident on February 16, 1959, which arose out of and in the course of his employment, and that said accident resulted in injuries that precipitated and caused his death on February 21, 1959.
In brief of appellant (defendant below) the issue presented for review is stated as follows:
Appellant takes the position that there was no legal evidence supportive of the finding of an accident, and, therefore, the trial court should not have decreed recovery in favor of the employee's widow (appellee).
Appellant's theory is that the decedent had a coronary thrombosis while on the job and that there was no accident at all.
Appellee's position is that decedent received an injury to his abdomen and chest when he was thrown across a tractor in attempting to crank it; that this injury "triggered" the coronary thrombosis and that both conditions contributed to his death. There is no question that decedent was employed by appellant and was at his regular place of employment on the morning of February 16, 1959, when he became disabled and was taken to the hospital by one of appellant's personnel department employees. The decedent came to work about 7:00 A.M. and was taken to the hospital shortly after noon. A part of his job was to start the caterpillar tractor on this morning. No one was with him at the time he received his alleged injury and no one saw what actually happened.
On February 18, 1959, a written report was made to appellant by decedent's foreman or supervisor on a "Supervisor Accident Report." This report shows that decedent's occupation was "Cat. Mec", that the nature of his injury was "pulled muscles in chest or side", that the question, "What job was employee doing, including tools?", *621 was answered, "Cranking caterpillar", that the question, "How was employee injured?", was answered, "Slipped off of caterpillar track caught all of his weight with left hand", that the question, "What was defective, in unsafe conditions [sic], or wrong with method?", was answered, "Track slick."
Also on February 18, 1959, there was prepared in appellant's personnel office an "Employer's First Report of Injury" on a State Department of Industrial Relations' form. This report shows the date of injury as February 16, 1959, that the injury occurred in the "Shop", that injured's occupation was "Tractor mechanic", that appellant was first notified on "Feb. 16, 1959," that the machine or tool causing the accident was "Tractor", that the part involved was "Starter", that as to how accident occurred and what employee was doing when injured, "He was starting a tractor when the recoil of the starter caused his feet to slip from under him. As he fell, he caught all his weight on his left hand, causing him to strain himself", that the nature and location of the injuries were, "Strained muscles of the chest & back," that the attending physician was "Dr. E. V. Stabler, Greenville, Alabama", and that the employee was taken to "Stabler Infirmary" at Greenville.
Also admitted in evidence was a hospital record dated February 23, 1959, signed by Dr. E. V. Stabler, attending physician, showing date of admission of decedent to the hospital as February 16, 1959, and date of discharge "expired 2/21/59." This report also shows the "Provisional diagnosis" to be "Strain Chest Muscle" and "Final diagnosis" as "Contusion & Strain Chest Wall. Coronary Thrombosis."
Also received in evidence was a certified copy of the death certificate showing the following: The cause of death as "Strain & Coronary", a description of how the injury occurred as "jerked suddenly by rt. arm and thrown by a compressor handle onto his abdomen & chest across the compressor", that an autopsy was not performed, and that it was "(probably) accident" rather than suicide or homicide. The death certificate was made by Dr. E. V. Stabler, the attending physician.
Appellant argues that none of the information contained in these documents as to how the injury was received is competent evidence but, on the contrary, is nothing more than hearsay, and that the statutes authorizing admission in evidence of business entries, including hospital records (Code 1940, Tit. 7, § 415), and death certificates (Code 1940, Tit. 22, § 42, as amended by Act No. 492, appvd. July 9, 1943, Gen. Acts 1943, p. 454) do not operate to admit such hearsay evidence which otherwise would be inadmissible.
As we view the undisputed competent evidence, it is sufficient to support the trial court's finding that there was an accident, thus making it unnecessary to discuss the question whether the information contained in these documents as to how the injury was received is hearsay and incompetent. There is no dispute, as already noted, that the decedent was at his regular place of employment, and that a part of his job was to start the caterpillar tractor on the morning of his injury. Such facts, together with the diagnosis of Dr. Stabler that the injury was a "Contusion & Strain Chest Wall", that the cause of death was "Strain & Coronary", and his testimony given at the trial, that he diagnosed the injury as a fall which triggered the coronary thrombosis, would be circumstances sufficient, in a case of this kind, to justify a reasonable inference that the decedent did, in fact, suffer an accident.
The rule is to construe the facts favorably to the employee, where the evidence affords reasonable room for such construction, which is to say, that "if there is any legal evidence on any reasonable view, or reasonable inference therefrom, that supports the facts found and conclusion announced by the court, it is sufficient under the statute, and the judgment rendered will *622 not be disturbed." Woodward Iron Co. v. Jones, 217 Ala. 361, 362, 116 So. 425; Sloss-Sheffield Steel & Iron Co. v. House, 217 Ala. 422, 116 So. 167. And circumstantial evidence is a recognized form of proof in compensation cases as in others. Davis Lumber Company v. Self, 263 Ala. 276, 279, 82 So. 2d 291; Gulf States Creosoting Co. v. Walker, 224 Ala. 104, 106, 139 So. 261.
We are of the opinion that when the evidence is viewed in the light of the foregoing rules, the facts and circumstances shown by the record, not including those parts of the documents objected to as being hearsay, are sufficient to support a reasonable inference that an accident did occur, as found by the trial court.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | March 2, 1961 |
5a60a423-2764-487b-a21c-cae5c3692f3b | Hall v. Hulsey | 126 So. 2d 217 | N/A | Alabama | Alabama Supreme Court | 126 So. 2d 217 (1961)
Noah HALL et al.
v.
Betty Fay Hall HULSEY.
8 Div. 54.
Supreme Court of Alabama.
January 12, 1961.
*218 Lusk & Lusk, Guntersville, for appellants.
Clark E. Johnson, Jr., Albertville, for appellee.
MERRILL, Justice.
Appeal from a final decree granting relief to appellee in quieting title to 14.2 acres, and dismissing appellant's cross-bill.
Appellee, Betty Hall Hulsey, filed her bill of complaint against appellants, children of her father by a first marriage, and against her mother, the second wife of her father, who had since married again.
The bill alleged that on May 24, 1939, appellee's father, J. S. Hall, executed a deed to the 14.2 acres to his wife Bertha for her widowed life and remainder to any child or children of Bertha Hall, and in case there were no children to his children by his first marriage. At the time this deed was executed, Bertha was pregnant with appellee and J. S. Hall had knowledge of this fact. The recorded deed is made an exhibit to the bill.
It was alleged that J. S. Hall had already distributed the greater part of his estate to his children of the first marriage; that he died on February 5, 1944, and his wife Bertha took possession of the property and remained in possession until her remarriage in 1954, at which time, appellee took possession and has had undisputed possession ever since, and that one or more of the defendants "is or may be claiming an interest in and to said property."
All of the respondents except Bertha Hall answered, alleging that Bertha was not the lawful wife of J. S. Hall, but had been married to one Alford Weaver of Florida, and that Bertha Hall had fraudulently concealed this fact from her husband. The answer was made a cross-bill, and the prayer of the cross-bill was that the deed be declared void and the land be sold for division among the joint owners.
Appellee answered the cross-bill alleging that her mother and she had held the land adversely to appellants in excess of ten years since 1944; that when her mother had remarried, appellee held the property as her own; that her mother and she had paid taxes on the property since 1944; and even if the allegations of fraud were true, that appellants had knowledge of the fraud for more than one year prior to the commencement of their suit.
The trial court found from the evidence that Bertha Hall had married Weaver in Florida in 1936, and that they were never divorced; that J. S. Hall had no knowledge of Bertha's inability to contract marriage; that he did make the deed in 1939; that appellee was born a few months after the deed was executed and was the only child of J. S. and Bertha Hall; that J. S. Hall died in 1944; that Bertha went into possession and remained in possession of the land until her remarriage about ten years later and that appellee had been in possession since that time. The court also found that appellants first learned of Bertha's inability to contract marriage in the summer of 1957, "no later than August, 1957." In brief, appellants take no issue with the findings of fact, asserting "that only questions of law are now involved."
The court held that the statute of limitations of ten years had run and that the *219 appellants had not filed their suit within one year after they discovered the fraud.
Title 7, § 42, Code 1940, provides:
Appellants' main contention is that the court erred in applying the statute of limitations and Tit. 7, § 42, supra. It is argued since neither appellee "nor her mother Bertha Hall had ever repudiated the deed or asserted any right or title except through that deed," and the undisputed evidence "showed that defendants and cross-complainants first learned of Bertha's fraud in 1957, and filed their cross-bill on December 1, 1958, they were not barred by the Statute of Limitations of ten years, and Code Title 7, Section 42 had no application."
Appellants argue that there could be no adverse possession on the part of Bertha Hall or appellee because of the absence of the element of hostility; and that no statute of limitations could begin to run until they discovered the fraud in 1957.
We cannot agree with appellants' contention. This is not a case where the widow has a life estate in the homestead with remainder to the children. Here the conveyance was by deed, a life estate for Bertha until she remarried, with remainder to appellee, then unborn. Had appellee never been born, appellants would have received the remainder, but appellee's birth and continued life terminated appellants' claim to the property under the deed. The death of J. S. Hall terminated any right belonging to him to have the deed set aside. There is evidence that appellants knew about the deed and did not like it, but they took no steps to do anything about it until nineteen years after its execution and fourteen years after the death of their father.
A bill to set aside a deed to land in the grantee's possession for fraud is a suit to recover land and is controlled by the ten year statute of limitations, Tit. 7, § 20, Code 1940. Ammons v. Ammons, 253 Ala. 82, 42 So. 2d 776.
In a suit to set aside a fraudulent conveyance after the expiration of ten years from the time of the conveyance, the burden is upon the party asserting the fraud to allege and prove any special circumstances existing which would prevent the running of the statute of limitations. Drummond v. Drummond, 232 Ala. 401, 168 So. 428; Van Ingin v. Duffin, 158 Ala. 318, 48 So. 507.
It is not necessary that we decide whether the statute began to run at the time the deed was executed and recorded in 1939, or at the birth of appellee, or at the death of the grantor in 1944. Either date was more than thirteen years prior to the commencement of the present suit in October, 1958.
At J. S. Hall's death in 1944, Bertha Hall and appellee claimed the land under the recorded deed, of which appellants had knowledge. Their possession was actual, exclusive, open, notorious, continuous and hostile to appellants. Also, there was no fiduciary or confidential relationship between appellants and appellee or her mother.
The fact that appellants did not know that Bertha Hall, the widow, had been incapable of contracting marriage did not toll the running of the statute. As stated in a case similar to the instant cause, Scruggs v. Decatur Mineral & Land Company, 86 Ala. 173, 5 So. 440, 443: "But mere ignorance of right, without excusing or explaining its unreasonable continuance, is insufficient." The statute of limitations of ten years had run by 1954.
Appellants' argument is based principally upon a statement in Van Antwerp v. Van Antwerp, 242 Ala. 92, 5 So. 2d 73, 81, which reads:
The possession taken under the deed by Bertha Hall and appellee when J. S. Hall died was antagonistic and inconsistent with the rights and claims of appellants. They had notice of the recorded deed, knew that appellee and her mother claimed the property, and they, appellants, had the immediate right to assert such claims as they might have. The statute of limitations had begun to run and no reason was given to excuse their ignorance of Bertha's fraud.
But Tit. 7, § 42, supra, gave appellants one year after their discovery of the fraud, which was "not later than August, 1957." However, they still waited more than one year before taking any steps to set the deed aside. Their failure to act within the additional one year period from August, 1957, barred them from recovery under the cross-bill. It was properly dismissed. Tit. 7, § 42, Code 1940; Van Ingin v. Duffin, 158 Ala. 318, 48 So. 507; Peters Mineral Land Co. v. Hooper, 208 Ala. 324, 94 So. 606; Quick v. McDonald, 214 Ala. 587, 108 So. 529.
No reversible error is shown in the argued assignments of error, and the decree is due to be affirmed.
"What we have said in this opinion is in response to the issues raised, the decree appealed from and arguments made in brief of appellants. We are not to be understood, however, as holding that Bertha Hall's fraud upon J. S. Hall could have been imputed to appellee under the facts here.
Appellee was the child of J. S. Hall, he so acknowledged her during his lifetime, and made provision in the deed that the fee-simple title should be in her. And appellee did not participate in any fraud, did not authorize it, did nothing to mislead, deceive or lull anyone into repose. The fraud of her mother, Bertha, could have affected Bertha's enjoyment of the life estate, but could not affect appellee's title.
Dorsey v. Dorsey, 259 Ala. 220, 66 So. 2d 135, 139, is similar to the instant case. There, the second wife had been married previously and had not secured a divorce. The husband made a deed to her and the only child by this abortive second marriage. The husband filed a bill to set aside the half interest of the mother because she had not been competent to enter into a legal marriage. He died before the final disposition of the cause and it was then prosecuted by his heirs at law. The trial court held that the deed should be declared invalid as to the one-half interest of the mother, "but the complainant does not ask that the half interest of this child, Eddie Mae Dorsey, be taken from her, and I do not think such should occur."
No point was made of this feature of the case on appeal and no decision on it was required when we affirmed the decree of the trial court.
The instant cause was evidently tried on the theory that the action was brought too late after the discovery of the fraud and the authorities support the holding of the trial court in that respect.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | January 12, 1961 |
1fbf02f5-9636-4ed5-97ca-d3a9cc208114 | Johnson v. Harrison | 130 So. 2d 35 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 35 (1961)
Hazel Curlee JOHNSON
v.
L. L. HARRISON et al.
7 Div. 452.
Supreme Court of Alabama.
March 2, 1961.
Rehearing Denied May 25, 1961.
*36 Knox, Jones, Woolf & Merrill, Anniston, for appellant.
Chas. Thomason, Anniston, for appellees.
LIVINGSTON, Chief Justice.
This is an appeal from a decree of the Circuit Court of Calhoun County, in Equity, in a suit brought by the heirs at law of H. F. Harrison, deceased, against Hazel Curlee Johnson, the niece of the deceased, to set aside a deed executed by Harrison during his lifetime to Mrs. Johnson, the appellant.
The complaint as last amended sought cancellation of the deed on four grounds: (1) mental incapacity of the grantor, (2) undue influence on the part of the grantee in the deed, (3) lack of delivery of the deed during the life of the grantor, and (4) forgery.
The lower court found that the deed was executed by the grantor named therein, that there was no undue influence exercised over him and that he was mentally capable of executing the deed, but that there had been no delivery in the lifetime of the grantor named in the deed and therefore it was ineffectual to pass title.
The deed sought to be cancelled was entered into on March 26, 1954, by and between H. F. Harrison, party of the first part, and Hazel Curlee Johnson, party of the second part, and was in words and figures as follows:
"The State of Alabama
"Calhoun County
"(Signed) H. F. Harrison (L.S.)"
Appellant, in assigning errors, presents two questions: (1) that the minor children of Hazel Curlee Johnson, Margarette and Stephenie Johnson, are not made parties to the suit, and that they as remaindermen of the suit property are indispensable parties; (2) that the evidence is sufficient to show effectual delivery of the deed during the lifetime of the grantor and that the court erred in its finding as a matter of law from the testimony in this cause that there was no delivery of the deed during the lifetime of H. F. Harrison (grantor).
The deed was found in a tin box which was still in the possession of the grantor at the time he took his life. After his death, the brother of Mrs. Johnson, Hoyt Curlee, got the box and opened it and the deed was taken from the box. Hoyt Curlee said in the presence of the grantee (Mrs. Curlee Johnson):
"Hazel, we have something in this box that concerns you."
Hazel looked surprised and her mother said that she was surprised.
Hoyt Curlee testified that some time before Mr. Harrison (grantor) died, he showed the deed here involved to him (Hoyt Curlee) and told him to take the deed, and that he (Hoyt Curlee) told the grantor that he had no place to keep it. Curlee testified that he told Mr. Harrison:
This transaction between the deceased grantor and Hoyt Curlee took place some two months before the grantor died.
The appellant has correctly stated the law as to who are indispensable parties, but it is not applicable to this case upon proper construction of the deed involved.
All conveyances of land are construed as fees unless expressly limited. Title 47, § 14, Code of 1940. In construction of deed, intent of parties will be sought in entire instrument. Stratford v. Lattimer, 255 Ala. 201, 50 So. 2d 420; Reynolds v. Reynolds, 208 Ala. 674, 95 So. 180; Hardee v. Hardee, 265 Ala. 669, 93 So. 2d 127, and cases therein cited.
Another rule of construction of deeds is that when subsequent words are of doubtful import, they cannot be construed as to contradict the preceding words which are certain. Petty v. Boothe, 19 Ala. 633; McCombs v. Stephenson, 154 Ala. 109, 44 So. 867; Head v. Hunnicutt, 172 Ala. 48, 55 So. 161; Hardee v. Hardee, supra.
Also, the granting clause in deed determines interest conveyed and when not obscure or ambiguous it prevails over introductory statements or recitals. Henry v. White, 257 Ala. 549, 60 So. 2d 149; Wright v. Smith, 257 Ala. 665, 60 So. 2d 688; Green v. Jones, 257 Ala. 683, 60 So. 2d 857; Hardee v. Hardee, supra.
*38 In other words, the presumption is, and all doubts are resolved in favor of a fee simple estate. The intention to create a lesser estate than a fee must clearly appear, for the courts will not construe the grantor's words as conveying a lesser estate if a different meaning can fairly be given to them.
Looking at the deed as a whole, the first sentence shows a grant to one grantee. True, there were no words of inheritance following, therefore, we look to the next words following description. This sentence contains an unintelligible and a non-sensical phrase "her daughters will become owner of same Daughters Margarette Johnson and Stephenie Johnson."
With such phrasing, the sentence is not clear or certain, it is obscure and of doubtful import. It requires editing, punctuating, and adding to the sentence.
The next part of the deed clearly states "her heirs and assigns, in fee simple." The next sentence states "she is lawfully seized in fee of the said premises, that she had a good right to sell and convey the same."
The deed imports a fee simple title in all its clauses but one, which is of doubtful import. These facts, plus the presumption that every estate in lands is to be taken as a fee unless clear and expressed terms are shown to the contrary, leads to the conclusion that the grantee, Hazel Curlee Johnson, received a fee simple title; therefore, there is no interest conveyed to her daughters, Margarette and Stephenie Johnson, whom appellant claims are indispensable parties and have an interest in suit. Consequently, there was no failure on the part of complainants to join indispensable parties.
The second argument for reversal advanced by appellant is that the trial court in his decree held that the testimony, as a matter of law, was insufficient to show a delivery of the deed during the lifetime of the grantor.
Whether the judge in his decree held that there was no delivery as a matter of law or as a matter of fact is not clear, and the decree is ambiguous in this respect. The decree, in pertinent part, reads as follows:
*39 In order to rule on appellant's assignment of error we must first ascertain what the judge meant in his decree. Decrees are to be construed like any other written instrument and it is proper to look to the record and pleadings in order to interpret said decree. Schwab v. Schwab, 255 Ala. 218, 50 So. 2d 435; Taunton v. Dobbs, 240 Ala. 287, 199 So. 9; Murray v. Service Transport Co., 254 Ala. 683, 49 So. 2d 221; Doss v. Wadsworth Red Ash Coal Co., 185 Ala. 597, 64 So. 341; Griffin v. Proctor, 244 Ala. 537, 14 So. 2d 116. While these cases do not deal with the exact facts and recitals, the propositions of law in them have application here.
The portion of the decree which appellant claims states there was no delivery as a matter of law is as follows:
This phrase standing alone would tend to import that the court decreed no delivery as a matter of law, but looking at the record and decree as a whole, we think the court decreed no delivery as a matter of fact. The portion of the decree that appellant relies on comes under the heading of "Finding of facts." Also, the court stated "the court is not convinced," which imports that the facts or testimony given were not enough in his mind, sitting as trier of facts, to convince him that grantor intended to divest himself of title, the question of delivery being one of fact and based on the intention of the grantor. Alford v. Henderson, 237 Ala. 27, 185 So. 368; Dawson v. J. A. Lindsey & Co., 223 Ala. 169, 134 So. 662; Hinson v. Byrd, 259 Ala. 459, 66 So. 2d 736.
Our construction leads us to the conclusion that the trial court intended to say that even if Hoyt Curlee's testimony is true, he is not convinced that this manifested an intent on grantor's part to divest himself of the title to said property, this being a question of fact and not of law.
Such finding of the Chancellor of the lower court, in our opinion, not being plainly erroneous or palpably wrong, we will not disturb such a finding. Trans-America Ins. Co. v. Wilson, 262 Ala. 532, 80 So. 2d 253; Lamar v. Lamar, 263 Ala. 391, 82 So. 2d 558; Adams Supply Co. v. United States Fidelity & Guaranty Co., 269 Ala. 171, 111 So. 2d 906; Hagan v. Crowley, 265 Ala. 291, 90 So. 2d 760.
Having considered the entire record as it bears on the issues, it is the opinion of this court that the decree of the Court of Equity granting relief to complainants should be affirmed.
Affirmed.
SIMPSON, GOODWYN and COLEMAN, JJ., concur. | March 2, 1961 |
c9f05c4d-941d-4341-9836-3a57f4e49b21 | Jackson v. State | 133 So. 2d 210 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 210 (1961)
Jessie Mae JACKSON
v.
STATE of Alabama.
7 Div. 562.
Supreme Court of Alabama.
September 21, 1961.
Arthur Burns and Gary F. Burns, Gadsden, for petitioner.
MacDonald Gallion, Atty. Gen., and Robt. M. Hill, Jr., Asst. Atty. Gen., opposed.
LAWSON, Justice.
Jessie Mae Jackson was convicted in the Circuit Court of Etowah County of first degree manslaughter. She was given a sentence of five years. She appealed to the Court of Appeals, where the judgment of conviction was affirmed. She has filed in this court her petition for writ of certiorari to have us review and revise the opinion and judgment of the Court of Appeals.
*211 The petition asserts error by the Court of Appeals in six respects. Grounds 1 and 6 are to the effect that the Court of Appeals erred in affirming the action of the trial court in sustaining the State's objections to certain questions propounded to witnesses by counsel for the defendant below, the petitioner here. Ground 2 is to the effect that the Court of Appeals erred in upholding the action of the trial court in overruling an objection interposed by the defendant in the trial court to an argument of the State Solicitor. Grounds 3, 4 and 5 assert that the Court of Appeals erred in not holding that the trial court erred in refusing certain written charges requested by the defendant in the trial court.
We will consider the alleged errors on the part of the Court of Appeals in the order in which they are treated in the petition for the writ.
While wide latitude is allowed on cross-examination to develop a witness's bias, the trial court has reasonable discretion in confining examination to prevent diversion to outside issues. Hackins v. State, 212 Ala. 606, 103 So. 468. We cannot say that the trial court abused its discretion in sustaining the State's objection to the questions propounded the witness Cook on cross-examination concerning the alleged murder of his mother.
We agree with the Court of Appeals that the argument of the Solicitor with which the petitioner finds fault was a permissible inference from the evidence as set out in the opinion of the Court of Appeals. Beaird v. State, 219 Ala. 46, 121 So. 38; Patty v. State, 242 Ala. 304, 6 So. 2d 399.
The petitioner's Charge 10, if not otherwise defective, is argumentative and therefore its refusal does not constitute reversible error. Tribble v. State, 145 Ala. 23, 40 So. 938; Montgomery v. State, 160 Ala. 7, 49 So. 902; Locklayer v. State, 209 Ala. 605, 96 So. 759.
To put the trial court in error for refusing a written charge, it must be free from involvement and misleading tendencies. Turner v. State, 160 Ala. 40, 49 So. 828.
Petitioner's written Charge 14 was in our opinion subject to the criticism directed against it in the opinion of the Court of Appeals. The words "and in connection" as used in that charge tend to indicate that the jury might be expected to consider all the evidence in connection with something else which is left undefined. In view of this defect we cannot say that the Court of Appeals erred in affirming the action of the trial court in refusing Charge 14.
A charge in the language of petitioner's Charge 22 was held good and its refusal reversible error in McAdory v. State, 62 Ala. 154.
We do not think the refusal of Charge 22 constitutes reversible error in this case.
In the court's oral charge and in the written charges given at the request of the petitioner, the jury was adequately charged to the effect that they should acquit the accused unless they were satisfied beyond a reasonable doubt and to a moral certainty of her guilt from all the evidence.
It is difficult to understand why the petitioner would complain because the jury was not instructed to the effect that her acquittal was dependant upon the jury accounting for her innocence upon a reasonable hypothesis from the evidence even though the State had failed to satisfy the jury beyond a reasonable doubt and to a moral certainty of her guilt from a consideration of the evidence. Yet that is the effect of Charge 22, as we understand it.
We hold, as did the Court of Appeals, that Charge 22 was refused without error for the reason that the same rule of law was substantially and fairly given to the jury in the court's oral charge and in written Charges 11, 12, 13 and 17 given at the request of the defendant. § 273, Title 7, Code 1940. See Supreme Court Rule 45.
*212 Reversible error is not made to appear in regard to the examination of the accused, the petitioner here, concerning a prior difficulty with the deceased. Ordinarily, the details of a prior difficulty are not admissible beyond the proof of the prior difficulty and its gravity. Johnson v. State, 265 Ala. 360, 91 So. 2d 476; Bryant v. State, 252 Ala. 153, 39 So. 2d 657. Yet the petitioner was permitted in this case to show certain details, according to the opinion of the Court of Appeals. We do not see how she can complain of the trial court's action in this regard.
The judgment of the Court of Appeals is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | September 21, 1961 |
896f5724-b8db-407b-98db-6d2989c67630 | Miller v. Preferred Risk Mut. Ins. Co. | 572 So. 2d 1260 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 1260 (1990)
John MILLER and Angela Miller
v.
PREFERRED RISK MUTUAL INSURANCE COMPANY, et al.
89-238.
Supreme Court of Alabama.
December 21, 1990.
*1261 Bill Thomason, Bessemer, for appellants.
W. Michael Atchison and Jeffrey E. Friedman of Starnes & Atchison, Birmingham, for appellees.
ALMON, Justice.
This is an appeal from a summary judgment entered in favor of the defendant, Preferred Risk Mutual Insurance Company ("Preferred Risk"), and against the plaintiffs, John Miller and his adult daughter, Angela Miller, in an action alleging a bad faith failure to pay an insurance claim.[1] Although both parties refer to the judgment that is appealed from as a dismissal of the Millers' complaint, the trial court, in fact, entered a summary judgment. The confusion regarding the court's treatment of the case was apparently caused by the language used in the order granting Preferred Risk's motion: "Motion of Preferred Risk Mutual Insurance Company to dismiss the Bad Faith Claim is granted. The evidence shows that a disputed issue of fact existed as to the actual cash value of the automobile." If, on a motion to dismiss, the court considers matters outside the pleadings, the motion is converted to one for summary judgment and Rule 56, Ala.R. Civ.P., is then applied. Moore v. Watson, 429 So. 2d 1036, 1037 (Ala.1983).
The dispute between the Millers and Preferred Risk arose after John Miller filed a claim under his policy seeking payment for his daughter's 1986 Pontiac Fiero automobile, which had been "totalled" in an accident.[2] The Millers contended that the car had a value of $13,483.96. That figure appears to have been based on the full loan amount outstanding on the car. Preferred Risk disagreed, stating that it calculated the car's actual cash value to be $9,739.99. In a letter to the Millers, Preferred Risk explained that its figure had been arrived at by beginning with the replacement cost of a 1986 Fiero with no mileage, and then deducting $.20 for each of the 18,719 miles on the car's odometer. It then subtracted the deductible that was applicable under *1262 the terms of the policy.[3] At no time have the Millers alleged that Preferred Risk's method of calculating the car's actual cash value was unreasonable or unusual.[4]
Preferred Risk tendered a check to the Millers for $9,739.99. They returned the check and contemporaneously filed their first complaint against Preferred Risk, alleging, inter alia, that the insurer had breached the insurance contract and had, in bad faith, refused to pay the "full amount" owed under the policy. The letter from the Millers' lawyer that accompanied the check stated that the check was being returned because acceptance of it "would appear to extinguish [the Millers'] claim." Preferred Risk filed a motion for summary judgment on the bad faith claim. That motion was granted, and the Millers' motion to "reconsider" was denied.
The Millers subsequently amended their complaint, adding a modified bad faith allegation. They alleged, inter alia, that Preferred Risk had, in bad faith, refused to pay them the amount it conceded was due unless they accepted that sum as full satisfaction of all of their claims against it.[5] Preferred Risk moved for summary judgment on this second bad faith claim. It denied that its attempt to pay the Millers what it considered to be the actual cash value of the car was conditioned on their signing a release. Preferred Risk's motion was supported by an affidavit from a Preferred Risk employee and copies of the check that had been tendered to, and returned by, the Millers. There is no release language on that check. The Millers did not file any affidavits or other items in opposition to Preferred Risk's motion, and they do not point out any evidence to this Court that supports their allegation that the insurer conditioned its attempted payment on a release. The trial court granted Preferred Risk's motion, and the Millers appeal.
This Court formally recognized the tort of bad faith failure to pay an insurance claim in Chavers v. National Security Fire & Casualty Co., 405 So. 2d 1 (Ala. 1981). The elements of a bad faith action are:
National Security Fire & Casualty Co. v. Bowen, 417 So. 2d 179, 183 (Ala.1982).
After reviewing the record, we conclude that there is no evidence to support the Millers' allegation that the insurer's attempted payment was conditioned on a release. As we noted in Chavers v. National Security Fire & Casualty Co., 456 So. 2d 293, 294 (Ala.1984), the accrual of a claim for bad faith is a question that must be determined by the circumstances of each case. Preferred Risk made a prima facie showing that it had acted reasonably and not in bad faith. The Millers presented no evidence to rebut that prima facie showing. *1263 Thus, we must conclude that there was no genuine issue of material fact and that Preferred Risk was entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. The summary judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] The complaint also included contract claims, including Angela's claim in which she alleged that she was an insured under the policy and entitled to medical benefits for her personal injuries. Those claims are not at issue here.
[2] The complaint alleged that John Miller bought the car in his name for Angela because Angela could not obtain credit, but that Angela had made the installment payments and was the principal operator of the car. Angela was 19 when the car was bought in August 1986. The accident occurred in March 1987 and Angela was added as a plaintiff in August 1989. Although some of the claims are by John Miller alone, we will refer generally to the claimants/plaintiffs as "the Millers."
[3] Preferred Risk's liability under the policy was limited to the lesser of:
(a) The actual cash value of the car; or
(b) The amount needed to replace the car.
[4] Under the terms of the policy owned by John Miller, he was, entitled to have the car appraised by an independent appraiser if he disagreed with Preferred Risk's valuation. The car's value would then be determined by an impartial umpire. He did not take advantage of that option.
[5] Preferred Risk paid the Millers the cash value of the Fiero after the entry of the first summary judgment and before the amendment of their complaint. The Millers concede that the second check was tendered to them without prejudice. They accepted that check. The Millers' underlying contract claim was later tried before a jury, which returned a verdict for Preferred Risk. | December 21, 1990 |
48d7ea30-df6c-4796-9a2c-3257ca79c06c | Whittle v. Whittle | 128 So. 2d 92 | N/A | Alabama | Alabama Supreme Court | 128 So. 2d 92 (1961)
Henry King WHITTLE
v.
Lillian Tedder WHITTLE.
6 Div. 532.
Supreme Court of Alabama.
January 12, 1961.
Rehearing Denied March 30, 1961.
Locke & Locke, Birmingham, for appellant.
Hawkins & Lester, Birmingham, for appellee.
MERRILL, Justice.
Appellant sought a modification of a divorce decree, and after his petition was denied in circuit court, he appealed to this court.
Appellant and his wife were divorced in November, 1955, and an agreement between the two concerning a property settlement, attorneys' fees and alimony was made a part of the decree of divorce. The couple had no children.
By the terms of the agreement, appellant gave his wife eleven shares of AT & T stock, $3,000 cash, a promissory note for $5,525, payable in thirty-six equal monthly installments, and agreed to pay $150 per month alimony. He carried out all of *93 the terms of the agreement except for the alimony.
In October, 1956, a petition to modify the alimony payments was filed by appellant, and it was denied in November, 1956, the court finding that appellant's salary had been increased and he was in arrears in the sum of $450 in alimony payments.
In September, 1957, appellee sought the issuance of the rule nisi because appellant was $2,250 in arrears in alimony payments. Thereupon, appellant filed a debtor's petition in the Bankruptcy Court. His only listed creditors were the attorney who filed that petition and his ex-wife, the appellee. The Bankruptcy Court set up a schedule whereby he could make up his back payments over a period of years.
In October, 1959, appellant filed the present petition for modification. The hearing was held in December, 1959, and the only evidence, other than certain documents, was the testimony of appellant.
According to appellant, appellee now owns three pieces of residential property in Pensacola, Florida, furnishing a monthly rental income of $300; she has a monthly income of $20 from the AT & T stock, and $25 per month as interest from a loan she had made.
Appellant showed the court that he had been a victim of "gas" and "shell shock" in World War I; that he was fifty per cent disabled as the result of an automobile accident; that he had contracted cancer in 1958, had had an operation and needed another, and that he has less "take home" pay now than when he was divorced. Through the years, he has worked for Southern Bell Telephone and Telegraph Company.
Cross-examination of appellant revealed that the automobile accident was in 1944, and he had had the disability for eleven years when he agreed to the original divorce settlement. His salary at that time, November, 1955, was $575 per month. His monthly salary in November, 1956, was $595, in November, 1957, $625, in November, 1958, $665, and in November, 1959, $695. His salary increases would have taken care of $120 of the alimony each month.
It is true that his take home pay was less because during 1959, his employer, at his request, was withholding $100 per month and depositing it to his credit in a Credit Union, withholding $114.76 per month to buy AT & T stock, and $7.50 per month for savings bonds and group insurance.
The trial court noted the appellee had enjoyed increases in salary, found that the evidence in support of modification was not sufficient, and ordered that the petition be dismissed, and that appellee's attorneys be awarded $100.
A decree fixing alimony in accordance with the parties' agreement will not be modified except for clearly sufficient reasons showing changed conditions of the parties. Colton v. Colton, 252 Ala. 442, 41 So. 2d 398, and cases there cited.
In Young v. Young, 262 Ala. 254, 78 So. 2d 265, we held that evidence that husband's physical condition and state of health had substantially changed for the worse since the entry of the original decree of divorce did not justify reducing the amount of weekly alimony awarded to his wife, in the absence of showing a substantial change for the worse in his financial status.
The granting or denying of an application for modification of a decree of alimony or maintenance on the ground of a change in the financial circumstances or needs of a party rests in the sound discretion of the trial court, and an order denying modification will not be disturbed on review unless that discretion has been abused. Gambrell v. Gambrell, 268 Ala. 671, 110 So. 2d 248; Jones v. Jones, 251 Ala. 179, 36 So. 2d 310. We cannot say that the trial court abused that discretion in the instant case.
*94 Appellant contends that the court erred in allowing $100 as fees for appellee's attorneys without proof of reasonable attorneys fees. Appellee had called an attorney, Mr. Jenkins, to testify, but before he took the stand the trial court said, "The fee will be $100, whatever Mr. Jenkins may say." The court continued:
Naturally, Mr. Jenkins did not testify.
Where the divorce decree provided for alimony and maintenance, as here, such provision continues to be within the power of the court to modify on account of changed conditions and, since the court retains such rights, there is incidental to it also the right to attorneys fees under proper circumstances. Keith v. Paden, 255 Ala. 294, 51 So. 2d 9; Rickman v. Rickman, 266 Ala. 371, 96 So. 2d 674. The circumstances were proper in the instant case, and appellant is in no position to complain when the trial court set the minimum fee.
Application has been made by appellee for an allowance of attorneys' fees on this appeal. We think it appropriate that an additional allowance of $100 be awarded appellee for payment to her counsel for services in representing her on this appeal. Gambrell v. Gambrell, 268 Ala. 671, 110 So. 2d 248, and cases there cited.
The decree appealed from is affirmed with an allowance of an additional fee of $100 for appellee's counsel.
Affirmed.
LIVINGSTON, C. J., and LAWSON, and STAKELY, JJ., concur. | January 12, 1961 |
264ae882-bc43-41b8-babc-cfa859b38a84 | Ivey v. Wiggins | 126 So. 2d 469 | N/A | Alabama | Alabama Supreme Court | 126 So. 2d 469 (1961)
B. N. IVEY, as Adm'r,
v.
Jewell WIGGINS, as Adm'x.
1 Div. 768.
Supreme Court of Alabama.
January 26, 1961.
*470 N. S. Hare and John D. Bonham, Monroeville, for appellant.
B. E. Jones and R. L. Jones, Monroeville, for appellee.
COLEMAN, Justice.
This is an appeal by plaintiff from a judgment of voluntary nonsuit induced by rulings on pleadings in an action for wrongful death of plaintiff's intestate which resulted from an automobile collision.
The complaint charges that defendant's intestate, Spencer Tatum, caused an automobile he was driving to collide with an automobile in which plaintiff's intestate was riding. Count 1 charges negligence and Count 2 wanton misconduct by Tatum.
Defendant filed pleas 1 through 10 in answer to the complaint. Pleas 1 through 5 are pleas of the general issue and contributory negligence. The court sustained demurrer to pleas 7 and 10. The court overruled plaintiff's demurrer to pleas 6, 8, and 9, and this ruling is assigned as error.
Plaintiff filed replication to pleas 6, 8, and 9. The court sustained defendant's demurrer to the replication and this ruling also is assigned as error.
Plea 6 alleges that in the same court where the instant action was brought, the same plaintiff had previously brought an action for the wrongful death of his intestate against James H. Burns and L. L. Roth, doing business as Tri-Motor and Implement Company, who will be referred to in this opinion as Tri-Motor. A copy of the prior complaint is made an exhibit to plea 6, which further asserts that the complaint against Tri-Motor alleged that Tatum was a servant, agent, or employee of Tri-Motor and was acting within the line and scope of his authority as such servant at the time the automobile collision occurred; that Tatum, if living, would have been a proper party in the prior action; that said prior action claimed damages for the same collision involved in the present case; that the basis for the prior action is the same as for the instant action and the prior action is the same as the present action except that the prior action was against Tri-Motor as employers of Tatum; that "The issues in said two cases are the same, the accident or collision, the basis of said two suits, is the same, the facts are the same, and the testimony would be practically identical;" that Tri-Motor filed a plea of the general issue, "together with the right to give in evidence any other matters which would be a defense to said suit;" that on the trial of the prior action the jury found a general verdict for Tri-Motor; that the court rendered a judgment for Tri-Motor on said verdict, that no appeal was taken from said judgment and it stands as the judgment of the court in said cause; "that all the issues involved in the present suit were settled in said prior suit, the only difference being that the plaintiff failed against" Tri-Motor, "who were alleged to be employers of" Tatum, and plaintiff is now bringing a suit for the same injuries against defendant as administratrix of Tatum, "thereby attempting to split up into two suits the same cause of action;" and that the instant action "is barred under the doctrine of res judicata."
Plea 8 is the same as plea 6 except that plea 8 concludes with the assertion that the pleadings in the prior action, "so far as the plaintiff is concerned," were based on the allegation that Tatum was the servant, agent, or employee of Tri-Motor, "and plaintiff is now estopped to deny that such agency existed;" that it was determined that Tri-Motor were not liable and the prior judgment "is res judicata in this proceeding."
Plea 9 is also the same as plea 6 except that plea 9 concludes that plaintiff had an *471 election to sue the employer or the instant defendant, and, having elected to sue the employer, plaintiff is estopped from maintaining the instant action.
The replication asserts that in the prior action the issue of agency was a material issue but is not so in the instant case; that to have recovered in the prior action plaintiff was required to prove that Tatum was the servant of Tri-Motor; that in the prior action Tri-Motor denied all material allegations of the complaint including the allegation that Tatum was the servant or agent of Tri-Motor and acting within the line and scope of his employment when he did the act complained of; that Tri-Motor never admitted that Tatum was acting as such agent or servant and that Tri-Motor denied that Tatum was acting as such agent on the occasion complained of; and that the court, in the prior trial, at the request of Tri-Motor, instructed the jury in writing that unless the jury were reasonably satisfied from the evidence that Tatum was, at the time complained of, acting within his authority as a servant, agent, or employee of Tri-Motor, plaintiff could not recover. Such written charges alleged to have been given in the prior action at the request of Tri-Motor are made exhibits to the replication.
The substantial question on this appeal is whether or not the allegations in the pleas show that the judgment for Tri-Motor and against plaintiff is res adjudicata so as to bar the claim plaintiff here asserts against this defendant.
Broadly stated, the general rule is that to sustain a plea of this character, res adjudicata or estoppel by judgment, the parties must be the same, the subject matter the same, the point must be directly in question, and the judgment must be rendered on that point. Interstate Electric Company v. Fidelity & Deposit Company, 228 Ala. 210, 153 So. 427.
Appellant's argument is directed principally to the proposition that pleas 6, 8, and 9 fail to show an identity of issues, that is, that the judgment in favor of Tri-Motor was rendered on the identical issue presented in the instant case and solely on that issue. The lack of identity of defendants in the two cases and lack of mutuality of interest is also argued, but we are of opinion that the lack of identity of issues controls the decision on this appeal.
We note that in a tort action brought against master and servant jointly, judgment in favor of the master and against the servant was affirmed by this court. Lee v. Diamond, 234 Ala. 175, 174 So. 309. See also Downes v. Norrell, 261 Ala. 430, 74 So. 2d 593.
This court has also held that recovery of judgment against the master did not bar an action against the servant in the absence of a showing that the plaintiff had accepted the proceeds of the action against the master. Huey v. Dykes, 203 Ala. 231,82 So. 481.
Griffin v. Bozeman, 234 Ala. 136, 173 So. 857, illustrates the point as to lack of identity of issues. In that case plaintiff sued Griffin and his partner for trespass to land by cutting timber thereon. Griffin moved to dismiss the action on the ground that plaintiff had failed to pay the costs in a prior suit against Bolinger wherein judgment had been rendered in favor of the defendant, Bolinger, in an action for cutting the same trees. The motion to dismiss was denied and that ruling was assigned as error.
The defendant in the second suit, Griffin, filed also pleas of res adjudicata based on the same prior judgment for Bolinger, but the rulings on the pleas were not reviewed because of lack of a sufficient judgment sustaining the demurrer to the pleas. The opinion states, however, that the pleas serve to illustrate the motion to dismiss, and that if the judgment in favor of Bolinger operated to the benefit of Griffin, then Griffin had a right, as a privy of Bolinger, to the benefit of § 7222, Code 1923; § 66 *472 Title 11, Code 1940; which provides for dismissal for failure to pay costs of prior action.
It appears that whatever right Griffin had to cut the timber was conveyed to or conferred upon Griffin by Bolinger, that Griffin did the actual cutting of the timber, that if Bolinger was liable it was because he participated in the cutting or directed Griffin to do it, and that if Bolinger had a right to cut the timber then Griffin had the same right and justification of Bolinger on the ground of his right would also be justification of Griffin. In order for the judgment in favor of Bolinger to exonerate Griffin, however, the judgment for Bolinger must have been based on the ground that there was no trespass committed on plaintiff's land, rather than on the ground that Bolinger did not participate in the trespass.
This court concluded that the motion to dismiss alleged that the action against Bolinger was submitted to the jury on the question of whether the location of the boundary line showed that the plaintiff, Bozeman, owned the land where the timber was cut, and that the jury returned a verdict for Bolinger on that issue. In other words, the allegations of the motion were sufficient to show that the prior action against Bolinger had been decided in his favor on the merits, that is, on an issue the same as the issue in the case against Griffin, and, therefore, the prior judgment for Bolinger barred the action against Griffin for the same trespass. The pleading was sufficient to give Griffin the benefit of the prior judgment.
The proof on the motion, however, was not sufficient to sustain the pleading. The proof failed to show what the issues were in the action against Bolinger, "or that the sole question there tried and determined was the location of the boundary line or the adverse possession of Bolinger." The judgment for Bolinger, so far as the proof showed, may have been based on the ground that he did not participate in the trespass, and a judgment for Bolinger on that ground would not bar the subsequent action against Griffin. The decision of this court was that the judgment denying the motion to dismiss for failure to pay costs could not be reversed "because of insufficiency of proof" of the allegations of that motion.
In Griffin v. Bozeman, the failure to show identity of issues occurred in the proof. In the case at bar, the failure to show identity of issues occurs in the pleading.
Pleas 6, 8, and 9 aver that the complaint against Tri-Motor alleged that Tatum was the servant of Tri-Motor, but we do not find in the pleas an unequivocal assertion that Tatum was in fact such servant. If such allegation did appear, however, it would not change the result.
As to identity of issues, the pleas do allege by way of conclusion that the issues in the action against Tri-Motor are the same as the issues in the instant case. However, the complaint against Tri-Motor, which is an exhibit to the pleas, contains the allegation that Tatum was the servant of Tri-Motor, and the plea of the general issue with leave certainly put in issue that allegation. An exhibit made the basis of a cause of action or defense and contradicting the averments of the pleading of which it is made a part will control such pleading. Tan-Kar Oil Company v. Danley, 240 Ala. 205, 198 So. 238. As a consequence, the pleas fail to show that the sole issue tried and determined in the action against Tri-Motor was whether or not Tatum had done the negligent or wanton act which proximately caused the death of plaintiff's intestate. The commission of such wrongful act by Tatum is the issue presented by the complaint in the case at bar. If that issue was not tried and determined in the prior action, then judgment in the prior action is not an adjudication of that issue, which is also the issue in the instant action. Moreover, as indicated in Griffin v. Bozeman, supra, the prior judgment, to be a bar, must have been based solely on the same issue. Judgment for Tri-Motor may have been, for aught that *473 appears in the pleas, based on a finding that Tatum was not the servant of Tri-Motor. If so, that judgment is not res adjudicata here, because the issue of Tatum's agency is not material in the instant case. It follows that demurrer to pleas 6, 8, and 9 should have been sustained.
We hold that where it is not clearly shown that the judgment for the master was based solely on the issue of whether or not the servant had committed the wrongful act proximately causing plaintiff's injury, the judgment acquitting the master does not bar a subsequent action against the servant for the same injury. Whether a judgment for the master based solely on a trial of the issue of the servant's commission of such wrongful act would bar a subsequent action against the servant we do not decide because that is not the case presented by pleas 6, 8, or 9. In that connection, see Myers' Adm'x v. Brown, 250 Ky. 64, 61 S.W.2d 1052.
The authorities cited by appellee have been carefully examined. We do not think they conflict with our decision here. In Emery v. Fowler, 39 Me. 326, 63 Am.Dec. 627, the master admitted in the prior action that defendant in the subsequent action was the servant of the master. In Chicago & Rock Island Railroad Co. v. Hutchins, 34 Ill. 108, the holding that the engine driver was under a duty to ring the bell rests on the assumption that he was employed by the railroad company. The holding in McNamara v. Chapman, 81 N.H. 169, 123 A. 229, 31 A.L.R. 188, appears to be directly in conflict with Huey v. Dykes, supra, but even so, the master-servant relationship between the two defendants is assumed to exist because they are held to be identical for that reason. The court said:
Raymond v. Capobianco, 107 Vt. 295, 178 A. 896, 98 A.L.R. 1051, likewise assumes that the two defendants were master and servant.
Appellee argues that because plaintiff had alleged in the complaint against Tri-Motor that Tatum was the servant of Tri-Motor, plaintiff is now estopped to deny that Tatum was such servant, under the doctrine that a party who has, with knowledge of the facts, assumed a particular position in judicial proceedings, is estopped to assume a position inconsistent therewith, to the prejudice of the adverse party. Brown v. French, 159 Ala. 645, 49 So. 255. Without deciding that plaintiff cannot in the action against Tatum's administratrix take a position inconsistent with that taken in the action against a different party, Tri-Motor, we fail to see that plaintiff has taken an inconsistent position. In the action against Tri-Motor, plaintiff asserted that Tatum was the servant of Tri-Motor. We do not see where plaintiff has denied that assertion in the instant action. Since there is no inconsistency, there is no estoppel.
From what has been said with respect to the pleas, it is apparent that we are of opinion that the replication shows that the issues in the action against Tri-Motor were not the same as the issues in the instant action. Laying aside any objection to the replication based on the ground that the matters alleged therein could be shown under a general denial of the pleas, which objection was not raised by the demurrer and is not argued before us, we are of opinion that the replication was not subject to the objection that it failed to answer the pleas, and that the demurrer on that ground should have been overruled.
For error in overruling demurrer to pleas 6, 8, and 9 and error in sustaining demurrer *474 to the replication, the judgment is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | January 26, 1961 |
7f054d39-d98e-43c8-bd9a-ef3fe0466dd2 | McKleroy v. Wilson | 581 So. 2d 796 | N/A | Alabama | Alabama Supreme Court | 581 So. 2d 796 (1990)
Richard Phillip McKLEROY and Bobby McKleroy
v.
Thurman WILSON, Jr., and Wiley Sanders Truck Lines, Inc.
88-1184.
Supreme Court of Alabama.
December 28, 1990.
*797 William W. Smith, James S. Witcher, Jr. and Barry W. Hair of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellants.
Thomas R. DeBray of Kaufman, Rothfeder & Blitz, Montgomery, N.J. Cevera of Cevera & Ralph, Troy, for appellees.
PER CURIAM.
On November 15, 1987, Richard Phillip McKleroy was involved in an automobile accident allegedly caused by Thurman Wilson, Jr. At the time of the accident McKleroy was employed by Wiley Sanders Truck Lines, Incorporated (hereinafter "Sanders"). As part of his employment, McKleroy was covered under an Employee Health Benefit Plan (hereinafter "Plan") that is self-funded by Sanders and administered by National Benefit Administrators (hereinafter "Administrators"). Sanders alleges that pursuant to the Plan it paid $267,749.32 in medical expenses on behalf of McKleroy as a result of his injuries received in the accident with Wilson. The Plan contains the following provision:
On March 8, 1988, McKleroy and his wife, Bobby, filed suit against Wilson, alleging that he had caused the accident. In their complaint, Richard McKleroy asserted damages for bodily injuries, pain and suffering, loss of employment, loss of future wages, and other damages. Bobby McKleroy sought damages for loss of consortium. The plaintiffs did not seek any recovery for medical expenses, which have been paid by Sanders. Sanders moved to intervene as a plaintiff and alleged that, because it had paid McKleroy's medical expenses, it was subrogated to any recovery *798 awarded to McKleroy in his suit against Wilson.
The trial court allowed Sanders to intervene as a plaintiff, holding that, although it did not have a contractual right of subrogation, it did have a right to subrogation arising by operation of law and equitable principles. As a result of allowing Sanders to intervene, and in view of the amount of the medical damages involved in this case, the trial court amended its order so as to include language that would allow an appeal by permission pursuant to Rule 5, A.R.App.P. The McKleroys' petition for permission to file this appeal was granted. We affirm in part, reverse in part, and remand with instructions.
The McKleroys raise two issues on appeal: First, whether Sanders has a right to subrogation sufficient to support intervention in this action, even though the plaintiffs have made no claim for medical expenses. Second, assuming that Sanders does have a right to subrogation, does the doctrine of equitable proration announced in Sheehan v. Liberty Mutual Fire Ins. Co., 288 Ala. 137, 258 So. 2d 719 (1972), require proration of the $250,000 of Wilson's liability insurance coverage?
In Powell v. Blue Cross & Blue Shield of Alabama, 581 So. 2d 772 (Ala.1990), we stated that "[t]he equitable considerations that are the underpinnings of subrogation are (1) that the insured should not recover twice for a single injury, and (2) that the insurer should be reimbursed for payments it made that, in fairness, should be borne by the wrongdoer." 581 So. 2d at 774. (Citing International Underwriters/Brokers Inc. v. Liao, 548 So. 2d 163, 165 (Ala. 1989).) See also Sharpley v. Sonoco Products Co., 581 So. 2d 792 (Ala.1990). We held in Powell that "the insurer has no right to subrogation unless and until the insured is made whole for his loss." Powell, supra at 777.
In this case the trial court held that Sanders had no right to conventional subrogation because the above-quoted policy language is conditioned on the McKleroys' seeking recovery for medical expenses from the tort-feasor, but that Sanders did have a right to legal subrogation. We disagree.
Once Richard McKleroy[1] is made whole for his loss due to the accident with Wilson, then Sanders's right to subrogation will arise. Powell, supra. Until there is first a determination of Richard McKleroy's loss and he recovers an amount greater than that loss, Sanders has no right, conventional or legal, to subrogation and can not recover.[2] Although the trial court held that Sanders had no conventional right to subrogation, we hold that once McKleroy is made whole, the policy in this case is sufficient to vest in Sanders a right of subrogation in the amount of its payment of benefits to McKleroy.
In Powell we also recognized that merely because the insured refuses to allocate the damages he collects from the tort-feasor as "medical expenses" does not operate to defeat the insurer's right to subrogation. See, e.g., Sharpley, supra. We noted the following in Powell:
581 So. 2d at 779. Therefore, the mere fact that the insured has not claimed medical expenses as an element of his damages does not defeat the insurer's right to subrogation, although that right will not arise until the insured is first made whole.
In this case the trial court allowed Sanders to intervene as a plaintiff, stating that Sanders "is so situated that the disposition of [this] action will well likely impair or impede its ability to protect that interest, and that interest is not adequately represented by existing parties."[3] Although we hold that Sanders's right to subrogation has not yet arisen, it is still within the trial court's discretion to allow Sanders to intervene and protect its interest. The determination of whether to allow a party to intervene in an action is within the discretion of the trial court, Rule 24(b), A.R.Civ.P., and we will not reverse the trial court's ruling absent an abuse of that discretion. Universal Underwriters Ins. Co. v. East Central Alabama Ford-Mercury, Inc., 574 So. 2d 716, 723 (Ala.1990). We hold that the trial court did not abuse its discretion in allowing Sanders to intervene in this case.
We further hold that the issue of proration in this case is not yet ripe for review because there has been no recovery and no trial court ruling as to how any recovery would be divided. Nonetheless, the trial court may find our decision in Powell, supra, to be instructive on this issue. In Powell we wrote the following:
581 So. 2d at 778.
Therefore, based on our decision in Powell, we reverse the trial court's ruling as to when Sanders's right to subrogation arises. We affirm the grant of Sanders's motion to intervene.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and ADAMS, JJ., concur.
MADDOX, HOUSTON and KENNEDY, JJ., concur in the result.
STEAGALL, J., concurs in part and dissents in part.
MADDOX, Justice (concurring in the result).
I agree with the Court that Sanders had standing to intervene in this action, because Sanders, having paid benefits to McKleroy pursuant to the Plan, which included a clause that authorized it to recover "its payments on [McKleroy's] behalf," has a right to recover, under equitable principles, from the wrongdoer, or out of any *800 settlement proceeds, the sums it paid on McKleroy's behalf, if McKleroy has been made whole, of course.
I concur in the result of this case, but only because the policy provision here is not sufficiently specific to entitle Sanders to have priority in recovering the money it paid on McKleroy's behalf. For a full discussion of my views on the an insurer's right to be subrogated under circumstances such as are presented here, see my dissenting opinion in Powell v. Blue Cross & Blue Shield, 581 So. 2d 772 (Ala.1990). In my Powell dissent, I explained why I thought the principle of law set out in International Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163 (Ala.1989), should be applied in cases such as this. Even though I concur in the result reached in this case, I cannot agree that Powell correctly states the law of Alabama; therefore, by concurring in the result, I should not be understood as agreeing with the Powell opinion.
HOUSTON, J., concurs.
HOUSTON, Justice (concurring in the result).
I concur with Justice Maddox; see also my dissenting opinion in Powell v. Blue Cross & Blue Shield, 581 So. 2d 772 (Ala. 1990).
STEAGALL, Justice (concurring in part and dissenting in part).
I concur with that part of the main opinion that affirms the trial court's granting of Sander's motion to intervene. However, I respectfully dissent from that part of the opinion that reverses the trial court's ruling as to when Sander's right to subrogation arises.
[1] We note that Bobby McKleroy's claim for loss of consortium is not considered part of Richard McKleroy's loss for purposes of determining when he is made whole. Bobby McKleroy's right to recover an award for loss of consortium from the tort-feasor is subordinate to Richard McKleroy's right to recover an award of damages and Sanders's right to subrogation. See, generally, Mattison v. Kirk, 497 So. 2d 120, 123 (Ala.1986).
[2] See Continental Bank & Trust Co. v. Alabama General Ins. Co., 274 Ala. 622, 150 So. 2d 688 (1963), regarding the distinctions between legal and conventional subrogation. We do not reach the issue of whether Sanders's right to subrogation is conventional or legal, because there has not yet been a determination of whether its right to subrogation has arisen.
[3] Although the trial court's order appears to treat Sanders's intervention as one of right under Rule 24(a), A.R.Civ.P., Sanders's motion to intervene sought permissive intervention under Rule 24(b). Because we recently held in Universal Underwriters Ins. Co. v. East Central Alabama Ford-Mercury, Inc., 574 So. 2d 716, 722 (Ala.1990), that an insurer has no right to intervene in such cases under Rule 24(a), we will interpret the trial court's order as granting Sanders permission to intervene under Rule 24(b). | December 28, 1990 |
bbe2dc1a-48c0-4f44-84bf-c6dd92335970 | Rollan v. Posey | 126 So. 2d 464 | N/A | Alabama | Alabama Supreme Court | 126 So. 2d 464 (1961)
W. J. ROLLAN et al.
v.
Moody S. POSEY et ux.
3 Div. 838.
Supreme Court of Alabama.
January 26, 1961.
*465 Taylor & Newby, Prattville, Omar L. Reynolds, and Reynolds, & Reynolds, Clanton, for appellants.
Gipson & Bridges, Prattville, for appellees.
COLEMAN, Justice.
This is an appeal from a final decree of the circuit court, in equity, establishing a boundary line.
Complainants' land lies on the north side and respondents' land on the south side of the disputed line. Under a deed to respondent W. J. Rollan, the respondents claim the southeast quarter of the northeast quarter of Section 12, Township 17, Range 15 East, in Autauga County. The respondents claim that the true boundary between the lands of the parties is the north boundary line of that forty acres.
Autauga Creek flows along a meandering course from west to east across the north end of said forty acres. Complainants have a deed to the Booth Place. The deed describes the Booth Place by courses and distances and the boundary at one instance is described as "* * * thence south 40 degrees west 2.00 chains to Autauga Creek, thence up Autauga Creek to a point where Breakfast Creek runs into Autauga Creek * * *." Complainants claim that the true boundary is "the thread or center of Autauga Creek." Both parties lay claim to the land lying between the north boundary of said forty acres and Autauga Creek, and both parties have a deed to the disputed strip.
The court heard testimony ore tenus and established the line as claimed by complainants. Respondents have appealed.
Respondents contend that the court erred in establishing the line as aforesaid; in admitting in evidence an affidavit dated November 5, 1951, which affirms that complainants have been in adverse possession of the Booth Place for 35 years; and in rendering a final decree in the absence of *466 a necessary party, namely, The Federal Land Bank of New Orleans, the mortgagee in a mortgage covering the land of complainants which mortgage is admittedly outstanding and unpaid.
1. Respondents state in brief that because complainants' deed recites that the boundary runs "to Autauga Creek," the court could not "find upon any theory that the center of Autauga Creek is the true boundary line."
We do not agree. The line is described in complainants' deed as running "to Autauga Creek, thence up Autauga Creek to a point," etc. We consider Autauga Creek as nonnavigable because, being above tidewater, it is, prima facie, not a navigable stream, Rhodes v. Otis, 33 Ala. 578; Olive v. State, 86 Ala. 88, 5 So. 653, 4 L.R.A. 33; Morrison Brothers & Co. v. Coleman, 87 Ala. 655, 6 So. 374, 5 L.R.A. 384. There is neither evidence nor contention that it is navigable. Briefly the law is that adjoining proprietors of land having a nonnavigable stream as a boundary line between them take each to the middle or thread of the stream. Bullock v. Wilson, 2 Port. 436; Greenfield v. Powell, 218 Ala. 397, 118 So. 556. The language of a deed was: "Thence south to the Arkansas river; thence up said river to where it is intersected by the south line of the town." The court held that where, as in that deed, a nonnavigable river is named as a monument, the grant extends to its center, and the thread of the stream is the true boundary. Hanlon v. Hobson, 24 Colo. 284, 51 P. 433, 435, 42 L.R.A. 502, 513. The presumption that the line between owners bordering on a nonnavigable stream is the thread of the stream is based on the assumption that the grantor who conveyed the land bordering the stream intended that the boundary of the lands of the grantee should extend to the thread of the stream. 8 Am. Jur. 761, Boundaries, § 22. This presumption, founded upon the assumed intent of the parties, has now become a rule of property. If the grantor desires to retain his title to the land underneath the water, the presumption must be negatived by express words or such description as clearly excludes it from the land conveyed. Stewart v. Turney, 237 N.Y. 117, 142 N.E. 437, 31 A.L.R. 960. The words in complainants' deed in the instant case certainly do not exclude the land under the water. If Autauga Creek is the correct boundary line between the lands of the instant parties, and we think it is the correct line, then the court was not in error in establishing the thread of the stream as the boundary line.
2. Respondent W. J. Rollan claims title to SE¼ of NE¼ of said Section 12 by a deed from Metropolitan Life Insurance Company, a corporation, dated November 10, 1937. The other respondents claim title to their respective parcels of said forty acres by deeds from W. J. Rollan. Rollan placed in evidence deeds showing a chain of conveyances ending in him in 1937 as aforesaid and commencing with a deed executed by A. Y. Smith dated November 29, 1900. Complainants claim title to the Booth Place by a deed from Myra Booth Murphree, Alice Booth Wilkinson, and their respective spouses, dated January 20, 1945. The description of the Booth Place in deed to complainants includes that portion of SE¼ of NE¼ of said Section 12 lying between Autauga Creek and the north boundary line of said forty acres. The deeds placed in evidence show a chain of conveyances to complainants ending in them in 1945 as aforesaid and commencing with two deeds from Daniel B. Booth to his wife, both dated January 5, 1916.
Respondents (appellants) argue that "appellants' record title to the disputed strip antedates that of the appellees for a period of some sixteen years," and, therefore, because there is "a conflict in the survey or an overlapping in the lands conveyed that the elder survey and the elder grant will control," citing Snodgrass v. Snodgrass, 212 Ala. 74, 101 So. 837; Adams v. Wilson, 137 Ala. 632, 34 So. 831; Dunn v. Stratton et al., 160 Miss. 1, 133 So. 140; 11 C.J.S. Boundaries §§ 60-61, pp. 632-633.
*467 There is only one survey in the record. There is no conflicting survey. There is an overlapping in the descriptions in the deeds in that the descriptions in the deeds of both parties include the disputed strip of land. We do not understand, however, that either party has proved ownership of the record title because neither traces title from the United States or other sovereign. We do not think the evidence will support a finding that respondents proved anywhere a conveyance from a grantor in possession. It is held in Dunn v. Stratton, supra, that the elder of two deeds from a common grantor will prevail, but in the instant case the two chains of conveyances do not emanate from a common grantor. We have not been cited to nor do we know of any case which holds that a claim of title is superior to another merely because the first claim rests on a deed at the end of a chain of conveyances which commences with a deed from a private person, bearing an earlier date than the deed from a different private person with which the second chain of conveyances commences. Appellants' argument based on the fact that the first deed in their chain is dated 1900 while the first deed in appellees' chain is dated 1916 is without merit. Appellants have not shown a superior title to the disputed strip by their chain of conveyances commencing in 1900 as aforesaid.
3. In 1954, respondent W. J. Rollan employed a surveyor and subdivided the SE ¼ of NE¼ of said Section 12 into a number of lots bordering on the highway which runs across it from northwest to southeast. The map showing the platting of the lots is in the record. The surveyor placed markers at the northeast and northwest corners of the forty and some time after the survey, W. J. Rollan erected a two-strand barbed wire fence between the two corners. The disputed land lies between the fence and the Creek. It is low, swampy land, is not in cultivation, and has no improvements on it other than the fence. The fence is nailed to a tree at least in part.
The testimony for complainants tended to show that the Booth Place had been in possession of Daniel Booth who lived on it as far back as 1900; that his occupancy extended to the creek; that he cut firewood on the disputed strip; that his children used a swimming hole in the creek bordering the disputed strip; that no person went to the swimming hole except by invitation of the Booths; that complainants' immediate grantors were daughters of Daniel Booth and inherited the land under the will of their mother who died in 1931; that the Booth Place was conveyed to complainants by their aforesaid grantors in 1945; that complainants went into possession and within one or two years after 1945 ran fences from the creek so as to enclose the disputed strip in their pasture and to use the creek as one side of their pasture; that they sold the timber off the entire place, including the disputed strip, in 1947 and the purchaser cut the timber, although respondent W. J. Rollan objected; that complainants have had cattle in the pasture which included the disputed strip for 6 or 7 years; that complainants posted "no trespassing notices" the first year after they bought the land; and that complainants knew nothing of the fence erected by W. J. Rollan until after he had built it.
W. J. Rollan, when asked how often he visited "this property," replied "I don't know, in the Fall of the year I would go hunting and I would go over it and cut some timber and bring back," and that he did this "every two or three years." We do not think there is any other evidence tending to show occupation of the disputed strip by respondents until W. J. Rollan built the fence some time after the survey in March, 1954.
The trial judge heard the witnesses testify and could find from the evidence that complainants were in possession of the disputed strip after 1945 until the fence was erected in 1954, or thereafter, and that respondents did not have any sort of possession until after 1954. The evidence supports *468 a finding that complainants had the older possession and that the possession of respondents since 1954 had not ripened into title by adverse possession.
The rule is that where neither party has the true title, the older possession gives the better right, and such right is not defeated by a subsequent entry and occupation by the opposing claimant until it has ripened into title by adverse possession. Reddick v. Long, 124 Ala. 260, 27 So. 402; Gilchrist v. Atchison, 168 Ala. 215, 52 So. 955; see also Lathem v. Lee, 249 Ala. 532, 535, 32 So. 2d 211. In the instant case, complainants had shown a prior possession in themselves and respondents' subsequent entry and occupancy had not ripened into title. The court was, therefore, justified in finding that complainants had the better right to the disputed strip although complainants' occupancy of it may not have been precisely shown to have been of ten years' duration.
The evidence tends to show also that Daniel Booth, one of complainants' predecessors, exercised acts of possession over the disputed strip as far back as 1900, and complainants are entitled to the benefit of the rule that when possession is once shown it is presumed to continue until or unless the contrary is shown. Alabama State Land Company v. Matthews, 168 Ala. 200, 53 So. 174; Sisson v. Swift, 243 Ala. 289, 9 So. 2d 891. Nothing contrary to the presumption of continued possession by Booth and his successors is shown.
4. Appellants state in brief that the affidavit dated November 5, 1951, wherein affirmation is made that complainants and those under whom they claim have been in possession of the Booth Place for thirty-five years, is incompetent evidence and should not be considered under the holding in Stewart Brothers v. Ransom, 204 Ala. 589, 87 So. 89. We have not considered the affidavit as evidence and our decision is not based in anywise on the affidavit. We have not found in the record any objection to admission of the affidavit in evidence. Under Act No. 101, approved June 8, 1943, General Acts 1943, page 105, which appears in 1955 Cumulative Pocket Parts, Code 1940, as Title 7, § 372(1), admission of the affidavit as aforesaid was not error to reverse. Under the statute we presume that the trial judge considered only that evidence which was relevant, material, competent, and legal. Dougherty v. Hood, 262 Ala. 311, 78 So. 2d 324.
5. Appellants insist that the decree should be reversed because the record shows that the lands of complainants are subject to a mortgage to the Federal Land Bank, executed by complainants and dated November 14, 1951, which is outstanding and unpaid according to the admission of one of the complainants on cross-examination by appellants, and the mortgagee is not a party to this suit.
The mortgage was offered in evidence by appellants. We do not find any objection to nonjoinder of the mortgagee raised in the trial court. Apparently, nonjoinder of the mortgagee is objected to for the first time on this appeal.
The general rule in a court of equity is that all persons having a material interest, legal or equitable, in the subject matter of a suit, must be made parties, either as plaintiffs or defendants. The rule proceeds on the principle that no man's rights should be controverted in a court of justice unless he has full opportunity to appear and vindicate them; and further, that complete justice may be done and future litigation avoided, the performance of the decree being safe, because of the presence in court of all parties who have an interest in its subject matter. The general rule further is that if a bill is defective for the want of proper parties, advantage should be taken of the defect by plea, demurrer, or answer, and if not so taken, the objection is waived. The rule is subject to the exception that if a cause cannot be properly disposed of, on the merits, without the presence of the absent parties, the objection *469 may be made at the hearing, or on error, it may be taken by the court ex mero motu. Prout v. Hoge, 57 Ala. 28. See also: Batre v. Auze's Heirs, 5 Ala. 173; McMaken v. McMaken, 18 Ala. 576; Woodward v. Wood, 19 Ala. 213; McCully v. Chapman, 58 Ala. 325; Watson v. Oates, 58 Ala. 647; Amann v. Burke, 237 Ala. 380, 186 So. 769; Matthews v. Matthews, 247 Ala. 472, 25 So. 2d 259; Garrison v. Kelly, 257 Ala. 105, 57 So. 2d 345.
We are of opinion that under the foregoing rules, the mortgagee is such a necessary or indispensable party as that final decree ought not to be rendered in a suit to settle a disputed boundary without making the mortgagee a party to the suit.
In a suit to settle a disputed boundary, this court said: "The Court must have before it title to the property which is sought to be affected by the decree." Easterling v. Cleckler, 269 Ala. 660, 115 So. 2d 516, 517. Other courts have said that in a boundary suit necessary parties included: all persons who have a direct interest in the result of the proceedings, Atkins v. Hatton, (Eng.), 2 Anstr. 386, 145 Reprint 911; Watkins v. Childs, 80 Vt. 99, 66 A. 805; Hazard Coal Corp. v. Getaz, 234 Ky. 817, 29 S.W.2d 573; McDonald v. Humble Oil & Refining Co., Tex.Civ.App., 78 S.W.2d 1068; Cady v. Kerr, 11 Wash. 2d 1, 118 P.2d 182, 137 A. L.R. 713; tenants in common, Pope v. Melone, 2 A.K.Marsh. 239, 9 Ky. 239; and remaindermen and reversioners, Bayley v. Best, 5 Eng.Ch. 659, 39 Reprint 253.
For the omission of the mortgagee as a party the decree must be reversed and the cause remanded. As was decided in Prout v. Hoge, supra, the appellants, not having made this objection in the circuit court, are in fault and must pay one-half the costs of this appeal and the appellees the remainder.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | January 26, 1961 |
b4467dfd-2fa1-49a5-a6b9-8e78bde23b00 | Maxwell v. City of Birmingham | 126 So. 2d 209 | N/A | Alabama | Alabama Supreme Court | 126 So. 2d 209 (1961)
J. D. MAXWELL
v.
CITY OF BIRMINGHAM et al.
6 Div. 541.
Supreme Court of Alabama.
January 12, 1961.
*210 Corretti & Newsom, Birmingham, for appellant.
J. M. Breckenridge, Birmingham, for appellees.
MERRILL, Justice.
This appeal is from a final decree dissolving a temporary injunction and dismissing appellant's bill of complaint.
Appellant was a licensed master plumber in Birmingham. He was notified to appear before the Board of Plumbing Examiners for a hearing "concerning your Master Plumber's Certificate of Competency." The reason for the hearing was the finding of answers to the plumbing examination in the office of a discharged Chief Plumbing Inspector. Most of the answers were correct. These answers had been compared with appellant's examination paper and there was a striking similarity. There were eighty-eight identical, word for word answers. The same incorrect answers on the sample were incorrect on appellant's examination. One answer required the words "sea level," and on each they appeared "see level."
At the conclusion of the hearing before the Board, appellant's license was revoked. The Board found that "Comparison of examination answers with other examination papers on file in the office of the Chief Plumbing Inspector shows, beyond a reasonable doubt that the examination was not fairly taken."
Appellant appealed to the City Commission under § 19 of the Plumbing Code. The Commission affirmed the finding of the Plumbing Board. He then filed a suit against the city and the Board, in equity, seeking to enjoin appellees from interferring with his business and restraining and enjoining them from refusing to issue plumbing permits to him, and seeking to have the master plumber's certificate of competency restored to him.
A temporary injunction was issued on December 10, 1957, and the cause was *211 heard on January 18, 1960. The trial judge dissolved the temporary injunction and dismissed the bill of complaint. Appellant then appealed to this court.
Appellant does not question the legality of the proceedings, nor does he question the authority of any of the three tribunals hearing the matter. Section 18 of the Plumbing Code provides that licenses shall be suspended only after a "fair hearing," and appellant contends that this element was lacking in his first two hearings.
Appellant argues that he did not receive a fair hearing before the Plumbing Board. He argues first that the notice of the hearing was inadequate. The body of the notice reads:
"You are hereby requested to appear at this meeting."
Appellant contends that there was nothing in this letter "which would indicate directly or indirectly to the appellant that he was being called upon to defend himself against charges with reference to an examination which he took in 1955."
Neither appellant nor the Board were represented by attorneys at this hearing. The minutes of the hearing show that appellant had some thirty-two job permits which were incomplete, unfinished or in default. He was asked questions from the examination and he "failed to answer questions correctly verbally or give any indication that he knew the object of the questions." The similarity of the appellant's answers to examination questions to the other copy of answers was noted and appellant "could not explain to the Board the similarity." Appellant did not request a continuance, did not state that he desired counsel, was not refused the right to examine witnesses, and did not object to the hearing before the Plumbing Board.
The Board voted to revoke appellant's certificate of competency and granted him the right of re-examination as provided by the Plumbing Code. Appellant did not take the examination, but appealed to the City Commission as he had a right to do.
We cannot say that the original hearing was unfair or that the Board's action was arbitrary or capricious.
Appellant argues that the de novo hearing before the City Commission was unfair in that Commissioner Waggoner refused to recuse himself and on account of a statement made by Mayor Morgan.
The record shows no reason given for appellant's request that Commissioner Waggoner recuse himself and no reason for the refusal to do so. The Plumbing Code authorized an appeal to the City Commission, and it is unthinkable that a member of that body would have to recuse himself merely because he was the executive in a department and had some knowledge of the matter before it was brought to him on appeal.
The question concerning Mayor Morgan arose after the similarity of the two sets of answers had been described and the following took place:
"Mr. Corretti: Without the right to cross examine?
The statement by the mayor should not have been made at that time, and was premature because all the evidence had not been submitted. But it must be considered along with another statement he made:
The Commission went ahead and heard all the evidence and then unanimously affirmed the action of the Plumbing Examining Board.
We cannot agree that the statement by Mayor Morgan showed that the hearing was not a fair hearing.
In O'Bar v. Town of Rainbow City, 269 Ala. 247, 112 So. 2d 790, 791, this court said:
There was substantial evidence to support the finding of the City Commission.
Appellant does not argue that the hearing in circuit court was unfair. M. J. Sasser, Chief of Inspection Services for the City of Birmingham, and Chairman of the Plumbing Examining Board, testified that he discussed the examination paper with appellant two or three weeks prior to the first hearing, and showed it to him; that he discussed some of his jobs that were as much as a year and a half old that he had not cleaned up; that at the hearing before the Board, questions were asked appellant from the examination and he failed to answer them correctly; that he (the witness) was present when the answers to the plumbing examination were found in a bookcase in the office of the former Chief Plumbing Inspector, that they were in that former official's handwriting; that appellant's written examination and the answers found in the bookcase were before the Board at the hearing and that examinations of two other plumbers were "very similar in comparison" with the answers which appellant was charged with copying.
Appellant testified in his own behalf before the circuit court, and denied copying the answers or that he had paid anyone for the information contained in the answers.
*213 After the hearing, the court dissolved the temporary injunction and dismissed appellant's bill of complaint.
On appeal, this court does not weigh the evidence as regards its reasonably satisfying effect on the issue tendered, but in considering it, we indulge all favorable presumptions to sustain the trial court's conclusion and will not disturb it unless palpably erroneous or manifestly unjust. Martin v. Jones, 268 Ala. 286, 105 So. 2d 860; Board of Zoning Adjustment for City of Lanett v. Boykin, 265 Ala. 504, 92 So. 2d 906.
No reversible error has been argued in brief, and the decree is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | January 12, 1961 |
f4f4dc89-3bf3-46cd-91a6-dd33c8282c1a | Duncan v. First Nat. Bank of Jasper | 573 So. 2d 270 | N/A | Alabama | Alabama Supreme Court | 573 So. 2d 270 (1990)
Billy J. DUNCAN and Garve Ivey, Sr.
v.
FIRST NATIONAL BANK OF JASPER.
89-400.
Supreme Court of Alabama.
December 21, 1990.
Garve Ivey, Jr. of Wilson & King, Jasper, for appellants.
William R. Lucas, Jr. and Madeline H. Haikala of Lightfoot, Franklin, White & Lucas, Birmingham, and J. David Hood of Tweedy, Jackson & Beech, Jasper, for appellee.
MADDOX, Justice.
This is an appeal from an order made final by the trial court denying the appellants' motion to conditionally intervene after the trial court had entered a summary judgment for the plaintiff in the underlying suit. The appellants present the following issues: 1) whether the trial court properly entered summary judgment in favor of First National Bank of Jasper; 2) whether the trial court should have added the appellants as parties pursuant to Rule 19, Ala.R. Civ.P.; and 3) whether the trial court properly denied the appellants' motion to conditionally *271 intervene. The facts and corresponding dates of events are as follows:
March 27, 1989 The First National Bank of Jasper (hereinafter referred to as "the Bank") filed a complaint in the Circuit Court of Walker County, Alabama, alleging that Billy F. Brand d/b/a Brand Motor Company (hereinafter referred to as "Brand") had breached his contract with the Bank. The Bank sought from Brand money damages and possession of the used automobiles on Brand's lot pursuant to Rule 64, Ala.R.Civ.P., which provides for seizure of property by judicial process. That same day, the trial court issued an order authorizing the Bank to seize the automobiles on Brand's lot in which the Bank had a security interest.
March 28, 1989 The appellants, Billy J. Duncan and Garve Ivey, Sr., filed a conversion action in the trial court, alleging that some of the cars the Bank had seized belonged to them and not to Brand. Also, on that day, Brand moved to dissolve the order for writ of seizure, stating that many of the automobiles seized belonged to persons other than himself, and further that the Bank had not yet established the amount of Brand's indebtedness to the Bank.
March 29, 1989 The trial court denied Brand's motion to dissolve the order, and Duncan and Ivey subsequently dismissed their conversion action against the Bank without prejudice.
May 3, 1989 Duncan filed another conversion action in the United States District Court for the Northern District of Alabama, Jasper Division, in case CV-89-HM-0775-J, alleging a denial of due process, a denial of equal protection under the law, and conversion against First National Bank of Jasper, et al.
July 24, 1989 Duncan filed, pursuant to Rule 41, F.R.Civ.P., a notice of dismissal of the federal court action, with prejudice.
August 29, 1989 The federal district court denied Duncan's amended notice of dismissal of the federal action, which sought to reinstate the conversion claim.
September 25, 1989 The Bank filed a motion for summary judgment.
October 10, 1989 The trial judge granted the Bank's motion for summary judgment.
October 13, 1989 Duncan and Ivey filed their motion for conditional intervention.
November 14, 1989 The trial judge denied Duncan and Ivey's motion with a written order.[1]*272 November 28, 1989 Duncan and Ivey appealed from the order of November 14, 1989.
Duncan and Ivey initially submit that the trial court should not have granted the Bank's motion for summary judgment because they argue, in doing so, it determined the substantive rights of persons who were not parties to the Bank's suit against Brand. They state that, from Brand's pleadings and affidavits, the trial court was on notice during the entire litigation that Brand was in the business of selling the automobiles of others and that many of the automobiles seized by the Bank did not belong to Brand. In other words, the appellants maintain that the trial court ignored their ownership interest in certain automobiles on Brand's lot when it granted the Bank's motion for summary judgment.
The appellants also contend that the trial court erred in denying their motion for conditional intervention. They argue that the trial court should have included them as real parties in interest necessary to an adjudication of the issues, and in support of their argument cite the provisions of Rule 19, Ala.R.Civ.P., maintaining that rule requires the trial court to order that necessary parties be added to the action if they have not been joined. They argue that Rule 19(c) requires the plaintiff to state the names of those parties who by Rule 19(a) and (b) are required to be joined but who have not been joined and the reason for not joining those parties. Appellants finally claim that Rule 24, Ala.R.Civ.P., allows them the right to intervene. We will address each argument.
Although appellants do not have the necessary standing to question the propriety of the trial court's entry of summary judgment, we nonetheless discuss this issue in an attempt to make clearer the circumstances surrounding this appeal. Summary judgment is proper when the moving party has demonstrated that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P.; Southern Guar. Ins. Co. v. First Alabama Bank, 540 So. 2d 732 (Ala.1989); Gallups v. Cotter, 534 So. 2d 585 (Ala.1988). In the present case, the trial court determined that the Bank was entitled to a summary judgment as to its claim against Brand. Neither Brand nor the Bank has appealed. Although the appellants may have an interest in the subject matter of the Bank's claim against Brand, the trial court was not asked to and did not find it necessary to adjudicate any claims involving the appellants and, consequently, made its ruling based on the pleadings before it.[2]
*273 The appellants, of course, were not parties to the litigation at the time the trial court granted the Bank's motion for summary judgment against Brand. As we understand the argument made by the appellants, they maintain that the trial court should not have granted the Bank's motion for summary judgment because, they say, the record contained evidence that showed their interest in the controversy, and that the court should have allowed their intervention in the action in order to protect their interest. The appellants, therefore, appeal from the trial court's order denying their motion to intervene, claiming that they have a right to question the propriety of the trial court's summary judgment, even though they were not parties to the action between the Bank and Brand. Alabama cases hold that one who is not a party to an action may not appeal from a judgment entered in that action.[3] We therefore hold that the appellants were not parties to the cause and therefore have no standing to raise the propriety of the summary judgment for the Bank.
The appellants argue that the trial court erred by failing to add them as indispensable parties to the suit between the Bank and Brand. They contend that they were indispensable parties under Rule 19, Ala.R.Civ.P., as persons whose rights were adversely affected by the judgment entered. We disagree.
This Court has stated:
Long v. Vielle, 549 So. 2d 968, 972 (Ala. 1989), quoting J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834, 849-50 (Ala. 1981) (emphasis added in Long.)
In the instant case, the facts reveal that neither party to the suit has appealed or requested the trial court or this Court to add the appellants as parties. Furthermore, after a review of the present circumstances, we do not feel constrained to raise the issue for the appellants ex mero motu.
The evidence is undisputed that the appellants had knowledge of the Bank's claim against Brand for seven months prior to the trial court's ruling. In fact, although it was later voluntarily dismissed, the appellants filed a conversion action against the Bank the day after the Bank filed its complaint against Brand. The appellants easily could have filed a timely motion to intervene or could have consolidated their conversion action with the Bank's action against Brand. The trial court wrote the *274 following in its order denying the appellants' untimely motion:
In Long, supra, this Court quoted the Court of Civil Appeals, which stated the following in Moody v. Moody, 339 So. 2d 1030, 1034 (Ala.Civ.App.), cert. denied, 339 So. 2d 1035 (Ala.1976):
Although we do not question that the appellants may have had an interest in the object of the Bank's suit against Brand, we are constrained to hold that the appellants had the opportunity to be heard, yet failed to file a motion to intervene until after the trial court had entered a summary judgment in favor of the Bank.[4] This motion was clearly untimely and thus the decision to disallow it rested within the trial court's discretion.
While the rules governing intervention and joinder are similar, they are distinguishable. Joinder, under Rule 19, Ala.R. Civ.P., is a method by which one may be compelled to become a party. Intervention, under Rule 24, Ala.R.Civ.P., is a method by which an outsider with an interest in a lawsuit may come in as a party on his own application. Randolph County v. Thompson, 502 So. 2d 357, 362 (Ala.1987); Ex parte Howell, 447 So. 2d 661 (Ala.1984).
The appellants argue that they were entitled to intervene pursuant to Rule 24(a), Ala.R.Civ.P., which states in relevant part:
Our first inquiry is whether the appellants claim a sufficient interest relating to the property that is the subject of the Bank's claim. The intervenor must have a direct, substantial, and legally protectable interest in the proceeding. Randolph County, supra; United States v. Perry County Board of Education, 567 F.2d 277 (5th Cir.1978). The appellants claim that they have ownership interests in certain automobiles that have been seized by the Bank. The trial court determined, however, that the automobiles claimed by the appellants were located on Brand's business premises; that Brand did business in goods of the kind described; and that the appellants had failed to produce any evidence that they owned any of the automobiles seized by the Bank. As we have already stated, the appellants are precluded from appealing the trial court's summary judgment, as they were not parties to the suit.
Regardless of whether the appellants claim a sufficient interest, Rule 24 requires that any motion to intervene be "timely." It has long been held that the determination of timeliness is a matter committed to the sound discretion of the trial court. Randolph County, supra, at 364. See Strousse v. Strousse, 56 Ala.App. 436, 322 So. 2d 726 (1975). See also McDonald v. *275 E.J. Lavino Co., 430 F.2d 1065, 1072 (5th Cir.1970).
Although a person may be seriously harmed if he is not permitted to intervene, motions for intervention after judgment have not been favored. The trial court denied the motion to intervene in McDonald, supra, and the appellate court stated:
430 F.2d at 1072.
This Court has regularly disallowed such motions because of untimeliness. See Crossfield v. Allen, 494 So. 2d 21 (Ala. 1986); Campbell v. City of Attalla, 282 Ala. 9, 208 So. 2d 209 (1968); Ex parte Jefferson Cablevision Corp., 281 Ala. 657, 207 So. 2d 132 (1968); Pruett v. Ralston Purina Co., 273 Ala. 594, 143 So. 2d 309 (1962).
The facts in this case indicate that the appellants had knowledge of the suit filed by the Bank against Brand seven months prior to the trial court's decision to enter summary judgment. Thus, the trial court properly denied the appellants' motion to intervene as untimely.
For the foregoing reasons, we conclude that the trial court did not err in denying Duncan and Ivey's motion for conditional intervention. The order of the trial court denying that motion is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] The order of the trial judge reads as follows:
"This cause was presented for oral argument on October 24, 1989 upon the Motion for Conditional Intervention and Motion to Vacate Judgment filed by Billy J. Duncan and Garve Ivey, Sr. (hereinafter "Petitioners"). This Motion is directed to the Court's Order of October 10, 1989, in which Summary Judgment was granted in favor of the Plaintiff, First National Bank of Jasper.
"Present in Court were Hon. David Hood, Attorney for Plaintiff, Mr. Billy F. Brand, appearing Pro Se, and Hon. Tom Bowron, Attorney for Petitioner. Oral arguments of counsel were heard and the attorneys were permitted to file written briefs in support of their respective positions.
"Petitioners are attempting to intervene in a case in which a final Order has been issued and further to make direct attack upon the Order itself. A non-party may not make a direct attack upon any action of the Court, so unless Petitioners are allowed to intervene at this time, any direct attack would be irrelevant. Therefore, the issue at this time is whether Petitioners will be allowed to intervene.
"The Court takes note that this case was originally filed on March 27, 1989, and that on the following day, March 28, 1989, these same Petitioners brought an action in this Court seeking possession of certain of the vehicles that had been seized by First National Bank. This action could have been consolidated with the present case on Motion of either party or by the Court. However, Petitioners dismissed their subsequently filed case two days later under A.R.C.P. 41. Further, Petitioner Duncan subsequently brought an action in Federal Court concerning the same subject matter, which he subsequently dismissed with prejudice. The present case has been pending for some seven months without any further action on the part of either Petitioner Ivey or Petitioner Duncan. It is undisputed that both the parties and their attorneys had full knowledge of these proceedings since their inception.
"Petitioners now argue that they should be allowed to intervene after Summary Judgment has been entered. Both Rule 24(a) and 24(b), A.R.C.P., require `timely' application. What is timely depends upon the nature of the action and is necessarily committed to the sound discretion of the trial Court. It is obvious from the facts stated above that Petitioners chose to be non-participants in this action and that intervention at this time is untimely.
"Petitioners further argue that Plaintiff was required to join them as parties in this action under Rule 19, A.R.C.P., against Bill Brand and Bill Brand Motors without joinder of either Petitioner, and Petitioners' own actions in the filing and subsequent dismissal of their cases(s) indicate that they do not claim an interest relating to the subject matter of this action, or if so, do not wish to be included as parties.
"It is further noted that under Rule 41, A.R.C.P., a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any Court of Alabama, or of the United States, or of any state, an action based on or including the same claim.
"It is clear to this Court that both Petitioner Ivey and Petitioner Duncan and their attorneys had full knowledge of the existence of this case since filing, and made a conscious and informed decision not to intervene or to pursue their claims in a separate action which could have been consolidated with this action. This Court will not speculate as to why Petitioners chose this course of action.
"IT IS THEREFORE THE ORDER, JUDGMENT AND DECREE OF THIS COURT that the Petition for Conditional Intervention and Motion to Vacate Judgment filed by Billy J. Duncan and Garve Ivey, Sr. is DENIED."
[2] The appellants are not seeking to have the summary judgment against Brand set aside. In essence, the appellants are not appealing from the summary judgment as it applies to Brand and to the contractual issues between Brand and the Bank. Indeed, Brand admitted the Bank's claims against him.
[3] See, e.g., Sho-Me Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So. 2d 83 (Ala.1985); Peterson v. Hamilton, 286 Ala. 49, 237 So. 2d 100 (1970); Taylor v. State ex rel. Adams, 275 Ala. 430, 155 So. 2d 595 (1963); Security Life & Accident Insurance Co. v. Crescent Realty Co., 273 Ala. 624, 143 So. 2d 441 (1962); Pake v. Leinkauf Banking Co., 186 Ala. 307, 65 So. 139 (1914); Hunt v. Houtz, 62 Ala. 36 (1878).
In Taylor, supra, this Court affirmed, stating:
"The owner was not a party to the instant proceeding.... There was no petition by the owner to intervene, and there was no reason to adjudicate the rights of the owner under a simple affidavit filed on motion for rehearing that he was the owner of the premises. This is not a case where the bill was against the owner, or where he intervened...."
275 Ala. at 432, 155 So. 2d at 597.
[4] The trial court, in its memorandum opinion and order noted that "[the appellants' conversion action filed on March 28, 1989,] could have been consolidated with the present case on Motion of either party or by the Court." | December 21, 1990 |
bc0da19b-2fd9-48be-a250-d29a5e9adb40 | Hollis v. Cameron | 572 So. 2d 439 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 439 (1990)
Bessie HOLLIS
v.
Robert L. CAMERON and Janice M. Cameron.
89-919.
Supreme Court of Alabama.
December 14, 1990.
George H. Howell of Howell, Sarto & Howell, Prattville, for appellant.
George P. Walthall, Jr., Prattville, for appellees.
MADDOX, Justice.
This is an appeal from a judgment, entered after an ore tenus hearing, in which the trial court rescinded a land transaction on the ground that the evidence showed that the seller knew or should have suspected that the purchasers were acting under a misunderstanding as to the actual location of the property.
The facts are as follows:
In the summer of 1984, Robert Cameron, while on a visit in Autauga County, expressed to his father-in-law, Tony Davis, his desire to purchase land in Autauga County. Davis knew that Bessie Hollis owned some land in the area and that she had sold some of her land in the past. Mr. Cameron and Davis contacted Ms. Hollis about purchasing a tract of land from her, and Ms. Hollis admittedly agreed to sell a parcel to Mr. and Mrs. Cameron.
It is disputed which parcel of land Mr. Cameron was shown and who showed him the parcel. Ms. Hollis testified that she knew that Davis was familiar with her land and that she instructed Davis to show Mr. Cameron the parcel she was willing to sell. *440 Mr. Cameron testified that Ms. Hollis showed him the land herself.
In any event, Mr. Cameron notified Ms. Hollis that he and his wife wished to purchase the land he had seen. In August 1984, Ms. Hollis and the Camerons agreed on a sale price of $31,200.00. T.O. McDowell, an Autauga County lawyer, handled the closing. The closing documents were signed on December 21, 1984. McDowell testified that he specifically pointed out on a map the land that was the subject of the transaction and that no one raised any questions concerning what property was the subject of the transaction.
In 1985, a dispute arose between the Camerons and Ms. Hollis concerning the location of the property involved in their transaction. Mr. Cameron testified at trial that after he sought legal advice he had the land surveyed; he then learned, he said, that the property he had viewed in June 1984, which he said he believed he had purchased, was not the same as that described in the deed. The Camerons notified Ms. Hollis of these facts; nevertheless, they continued to make payments to Ms. Hollis until December 1985, when they advised Ms. Hollis that they would make no more payments toward the purchase price until the matter was resolved.
In January 1989, Ms. Hollis instituted foreclosure proceedings against the Camerons, and they responded by suing to enjoin the foreclosure. The case was presented ore tenus, and the trial court rescinded the transaction. The judgment had the effect of restoring the parties to the same position they occupied before the transaction. In effect, the trial court ordered the Camerons to return the property to Ms. Hollis and ordered Ms. Hollis to return to the Camerons their payments on the purchase price, which payments had totalled $13,600. The court stated in its judgment that the evidence was "clear and convincing that [Ms. Hollis] knew or should have known or suspected that [the Camerons] were operating under a false belief as to the location of the property ... and that [Ms. Hollis] knew or suspected that the conveyance in question [did] not truly express the intentions of the parties."
This Court has continued to recognize a distinct standard of review for cases presented ore tenus. When the trial court hears ore tenus evidence and makes findings of fact based on that evidence, we presume that the trial court's judgment based on those findings is correct, and it will be reversed only if it is found to be plainly and palpably wrong, after a consideration of all the evidence and after making all the inferences that can be logically made from the evidence. Adams v. Boan, 559 So. 2d 1084, 1086 (Ala.1990); Pilalas v. Baldwin County Savings & Loan Association, 549 So. 2d 92, 95 (Ala.1989); King v. Travelers Ins. Co., 513 So. 2d 1023, 1026 (Ala.1987). In other words, the trial court's judgment will be affirmed if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment. Adams v. Boan, supra; Clark v. Albertville Nursing Home, Inc., 545 So. 2d 9 (Ala.1989); McCrary v. Butler, 540 So. 2d 736, 739 (Ala.1989).
In Moore v. Lovelace, 413 So. 2d 1100, 1103 (Ala.1982), this Court stated that in a case presented ore tenus, the trial court's findings of fact "are not to be disturbed unless they are clearly erroneous and against the great weight of the evidence."
The transaction between Ms. Hollis and the Camerons is controlled by Ala. Code 1975, § 35-4-153:
Cancellation of a deed, as well as revision or reformation, is a permissible remedy under this statute. Miller v. Davis, 423 So. 2d 1354 (Ala.1982); Garnett v. Taunton, 264 Ala. 293, 87 So. 2d 425 (1956).
This Court has stated:
Sheffield v. Buxton, 547 So. 2d 432, 433 (Ala.1989), quoting Morgan v. Roberts, 387 So. 2d 170, 172 (Ala.1980).
Where, as here, reformation is sought solely on the ground of mistake, mutuality of the mistake is essential. Pinson v. Veach, 388 So. 2d 964 (Ala.1980).
Furthermore, this Court has recognized that one seeking reformation or cancellation bears the burden of showing by evidence that is clear, exact, convincing, and satisfactory that the instrument does not express the true agreement of the parties. Jim Walter Homes, Inc. v. Phifer, 432 So. 2d 1241 (Ala.1983); Pinson v. Veach, supra; Duckett v. Lipscomb, 287 Ala. 668, 255 So. 2d 12 (1971); Garrett v. Kirksey, 279 Ala. 10, 181 So. 2d 80 (1965).
We acknowledge that the Camerons had the opportunity to question the instruments they reviewed and signed at the closing. The Camerons also had ample time during which to request a description of the property and to have a survey made. Nonetheless, after reviewing the facts and considering the inferences that can be drawn from those facts, we conclude that the evidence was adequate to support the trial court's finding that Ms. Hollis knew or should have known or suspected that the Camerons entered into the land transaction with a false belief as to the location of the property they were purchasing.
Applying the ore tenus rule, we find that the trial court's judgment is neither clearly erroneous nor against the great weight of the evidence. We, therefore, affirm.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | December 14, 1990 |
1a5fa4e7-bcbc-4708-9806-6cba3c4cb5b2 | Weaver v. Allstate Ins. Co. | 574 So. 2d 771 | N/A | Alabama | Alabama Supreme Court | 574 So. 2d 771 (1990)
John WEAVER and Ginger Weaver
v.
ALLSTATE INSURANCE COMPANY.
89-1161.
Supreme Court of Alabama.
December 28, 1990.
*772 John E. Enslen, Wetumpka, for appellants.
James H. Anderson and Elizabeth C. Smithart of Beers, Anderson, Jackson & Smith, Montgomery, for appellee.
MADDOX, Justice.
This is an appeal from a partial summary judgment in favor of the defendant insurer on a claim alleging bad faith refusal to pay insurance benefits. The issue presented is whether the defendant insurer had a "lawful basis" for refusing to pay the claim for uninsured motorist benefits.
John Weaver sued Allstate Insurance Company for benefits he claimed were due him under the uninsured motorist provisions of his automobile liability insurance policy. In an amendment to the complaint, Weaver's wife, Ginger, was also named as a plaintiff, claiming loss of consortium. Because Ginger Weaver's claim is derivative of her husband's claim, and because of our disposition of the husband's claim, we need not address the summary judgment as it relates to her claim.[1] Therefore, we will refer only to John Weaver as the plaintiff in this case.
Shortly after midnight on the morning of May 7, 1988, Weaver was traveling south on Interstate Highway 65. He was riding a motor scooter. In support of his claim, he asserts that while traveling along the highway, his scooter was hit from behind by a "tractor-trailer" truck and that he was caused to incur numerous injuries and medical expenses. He further claims that the truck driver did not stop and that he was unable to ascertain the identity of the truck's owner, or the truck's license number. Although Weaver's scooter was hit by a Mr. Vandiver, Weaver maintains that this occurred only after the tractor-trailer truck had hit him from behind and knocked him from the scooter. In essence, Weaver alleges that he was involved in a "hit and run" accident and that he was the only witness to the accident.
The accident report, made at the scene of the accident by the investigating officer, indicates that the automobile, driven by Mr. Vandiver, struck Weaver's motor scooter from behind, and that Mr. Vandiver "stated that he never saw [the motor scooter] until it was struck." Although the investigating officer reported that Weaver claims he was run over by a tractor-trailer truck, the officer also indicated in the report that "[t]here was no evidence of this and [Mr. Vandiver] stated he did not see a truck."
Weaver's insurer, Allstate Insurance Company (hereinafter referred to as "Allstate") was informed on May 7, 1988, of the nature of Weaver's accident and resulting injuries, and on May 12, 1988, Weaver's uninsured motorist claim was assigned to an Allstate claims representative who immediately began investigating Weaver's claim. The Allstate representative discussed with Weaver and his wife the circumstances surrounding the accident, reviewed Weaver's signed statement, which *773 set out in detail how he believed the accident occurred, and reviewed the investigating officer's report. The representative also discussed the accident with the investigating officer and with Tonya Williams (who claimed to be an eye-witness to Mr. Vandiver's collision with the motor scooter). Allstate's representative also reviewed a recorded statement made by Mr. Vandiver and discussed the accident with Mr. Vandiver's claims adjuster.
From this investigation, Allstate's representative determined that there existed a legitimate, arguable, or debatable basis to believe that Weaver had not been hit from behind by an unidentified tractor-trailer truck but that the accident had occurred otherwise. The accident report indicated that no truck was involved and that the motor scooter was impaled upright in the grille of Mr. Vandiver's automobile. The investigating officer told the Allstate representative that, although a truck did come by shortly after the accident, he believed that Mr. Vandiver's broken windshield was caused by the impact with Mr. Weaver and that a tractor-trailer truck could not possibly have run over Weaver. Tonya Williams stated that she heard Mr. Vandiver's collision with the motor scooter, but that she did not see the motor scooter until after Mr. Vandiver had collided with it. Finally, Mr. Vandiver told the Allstate representative that he saw no one on the motor scooter when he collided with it.
Allstate's representative decided to deny Weaver's uninsured motorist claim on June 14, 1988. On June 16, 1988, Weaver made a written demand for uninsured motorist benefits. Allstate responded in a letter stating: "[B]ased on our investigation of the facts surrounding this accident, we do not feel there is sufficient evidence to support your claim for damages. Therefore, we are unable to make any voluntary payment under the uninsured motorist provisions of your policy."
Weaver filed suit against Allstate on January 12, 1989. On January 25, 1990, Allstate filed a motion for partial summary judgment as to the claim based on an alleged bad faith refusal to pay, which the trial court granted and certified as final pursuant to the provisions of Rule 54(b) Ala.R.Civ.P. Weaver appeals from that ruling.
The question we must decide is whether the trial court erred in entering Allstate's partial summary judgment as to the bad faith claim. This Court very recently defined "bad faith" as the "intentional failure by an insurer to perform the duty of good faith and fair dealing implied by law." Koch v. State Farm Fire & Casualty Co., 565 So. 2d 226 (Ala.1990). In Chavers v. National Security Fire & Casualty Co., 405 So. 2d 1, 7 (Ala.1981), this Court established a two-tiered test for determining whether an insurer is guilty of bad faith: An insurer is guilty of bad faith (1) if it fails to pay when it has no lawful basis for refusing the claim and has actual knowledge of that fact or (2) when it refuses to pay after it has intentionally failed to determine whether there is any lawful basis for its refusal to pay.
With regard to the first tier of the test, we note that the term "no lawful basis" was defined in Gulf Atlantic Life Ins. Co. v. Barnes, 405 So. 2d 916, 924 (Ala.1981):
"`No lawful basis,' as expressed in [Chavers], means that the insurer lacks a legitimate or arguable reason for failing to pay the claim.... That is, when the claim is not fairly debatable, refusal to pay will be bad faith and, under appropriate facts, give rise to an action for tortious refusal to honor the claim.... When a claim is `fairly debatable,' the insurer is entitled to debate it, whether the debate concerns a matter of fact or law.... Bad faith, then, is not simply bad judgment or negligence. It imports a dishonest purpose and means a breach of a known duty. ..."
The second tier is a derivative of the first. In finding whether there was an intentional failure to determine if there exists a lawful basis for refusing the claim, the relevant question before the trial court becomes whether the insurer properly investigated the claim. "Of course, if a lawful basis for denial actually exists, the insurer, as a matter of law, cannot be held *774 liable in an action based on the tort of bad faith." Barnes, supra, at 924.
In this case, the trial court determined, as a matter of law, that there existed no genuine issue of material fact as to Allstate's assertion that it possessed a "lawful basis" for refusing Weaver's claim for uninsured motorist benefits. We must decide whether the trial court erred in reaching this conclusion.
Summary judgment on a claim is proper if, as to that claim, there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 56(e), Ala.R.Civ.P. This rule applies to individual claims in a multi-claim action. Donald v. City Nat'l. Bank of Dothan, 295 Ala. 320, 329 So. 2d 92 (1976). In reviewing a summary judgment, we employ the same standard used by the trial court in determining whether the evidence before the court made out a genuine issue of material fact. Southern Guar. Ins. Co. v. First Alabama Bank, 540 So. 2d 732 (Ala. 1989).
On motion for summary judgment, the moving party bears the burden of making a prima facie showing, on the basis of affidavits and other matters enumerated in Rule 56, Ala.R.Civ.P., that there is no genuine issue of material fact. Once the movant makes this prima facie showing, the burden shifts to the nonmovant to produce substantial evidence in support of his position. "[T]he burden is now greater than in the past, because the nonmovant must show "substantial evidence"rather that simply a scintillain support of his position." Grider v. Grider, 555 So. 2d 104, 105 (Ala. 1989); Bass v. SouthTrust Bank, 538 So. 2d 794, 797-98 (Ala.1989).
In this case, the trial court found that Allstate had met its burden by making a prima facie showing that there existed no genuine issue of material fact as to whether Allstate had a legitimate, arguable, or debatable basis for denying Weaver's claim for uninsured motorist benefits and held that as to the bad faith claim it was entitled to a judgment as a matter of law. We agree that Allstate made a prima facie showing, consisting of the affidavit and records of its claim representative, that it had a legitimate, arguable, or debatable reason for denying Weaver's insurance claim. The fact that there was conflicting evidence in statements made by Mr. and Mrs. Weaver, the investigating officer in the accident report, Mr. Vandiver, Mr. Vandiver's insurer, and eyewitness Tonya Williams, while sufficient to show a triable issue on the liability vel non of Allstate to pay uninsured motorist benefits under the provisions of the policy, defeats Weaver's attempt to make a triable issue on the question of Allstate's bad faith refusal to pay those benefits.
After Allstate made its prima facie showing, the burden shifted to Weaver to produce substantial evidence, if he could, in support of his claim that Allstate acted in bad faith in refusing to pay uninsured motorist benefits. Weaver showed that he possessed a valid contract for uninsured motorist benefits with Allstate. However, we agree with the trial court that Weaver presented no "substantial evidence" tending to show that Allstate intentionally failed to determine whether there was a legitimate, arguable, or debatable reason for refusing to pay the uninsured motorist claim. We further agree with the trial court's conclusion that Weaver failed to present substantial evidence that Allstate refused to pay without any reasonable basis for its refusal or that Allstate had no legal or factual defense to the claim. "If any one reason for denial of coverage is at least `arguable,' this court need not look any further," and a claim for bad faith refusal to pay will not lie. McLaughlin v. Alabama Farm Bureau Mutual Casualty Insurance Co., 437 So. 2d 86, 91 (Ala.1983).
With regard to Weaver's allegation that Allstate intentionally failed to adequately investigate the accident, we agree with the trial court that no triable issue was presented on this issue, because we hold that Allstate's investigation established a legitimate or arguable reason for refusing to pay Weaver's claim, which is all that is required. State Farm Fire & Casualty Co. v. Balmer, 891 F.2d 874 (11th Cir.), cert. denied, ___ U.S. ___, 111 S. Ct. 263, *775 112 L. Ed. 2d 220 (1990). In Balmer, a fire damaged an insured dwelling; the insurer, State Farm, denied coverage and brought a declaratory judgment action alleging that it was not obligated to pay the loss. The insureds, the Balmers, counterclaimed for damages for a bad faith failure to pay, alleging that State Farm's investigation was inadequate. The trial court applied Alabama law, specifically citing Chavers, supra; and Barnes, supra. The trial court found that State Farm had failed to use appropriate forms in recording the loss and had failed to sift through the debris to verify the listing of contents the Balmers said were destroyed in the fire, and there was also evidence that State Farm had failed to follow its own rules for properly investigating the fire. However, the trial court found that State Farm had an arguable basis for denying the claim at the time of the denial. The Eleventh Circuit Court of Appeals agreed stating:
Balmer, at 877 (Emphasis added).
This Court stated in Bowers v. State Farm Mutual Auto. Insurance Co., 460 So. 2d 1288, 1290 (Ala.1984), that "where a legitimate dispute exists as to liability, ... a tort action for bad faith refusal to pay a contractual claim will not lie."
In National Security Fire & Casualty Co. v. Bowen, 417 So. 2d 179, 183 (Ala. 1982), this Court recognized that the "[insured] must go beyond a mere showing of nonpayment ... [and] must show that the insurance company had no legal or factual defense to the insurance claim."
In the present case, Weaver's primary contention is that Allstate failed to establish that the accident did not occur as he maintains. We, however, agree with the trial court that Allstate did not have a burden to show that the accident did not happen as Weaver claimed, but only to show that it had a legitimate or arguable basis for the denial of the claim. We conclude that the trial court did not err in holding that Allstate met its burden by making its prima facie showing and that Weaver failed to rebut that showing by substantial evidence indicating (1) that Allstate had no lawful basis for denying his claim or (2) that Allstate intentionally failed to determine if there was a lawful basis for denying his claim. We, therefore, agree with the trial court that Allstate was entitled to a partial summary judgment on Weaver's claim of bad faith.
Weaver may be able to prove, in the contract action still pending before the trial court, that the facts occurred as he says they did. However, even considering Weaver's version of the facts, we find nothing in Allstate's denial of his claim or in its investigation of the claim that would support a bad faith claim.
For the foregoing reasons, we affirm the partial judgment of the trial court.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] But as to a loss of consortium claim in an uninsured motorist coverage context, see Weekley v. State Farm Mut. Auto Ins. Co., 537 So. 2d 477 (Ala.1989). | December 28, 1990 |
d56cb4ec-fcda-4276-8a01-3c7e63a2fd3e | State Ex Rel. Woods v. Thrower | 131 So. 2d 420 | N/A | Alabama | Alabama Supreme Court | 131 So. 2d 420 (1961)
STATE of Alabama ex rel. Charles WOODS
v.
James T. THROWER.
4 Div. 60.
Supreme Court of Alabama.
March 2, 1961.
Rehearing Denied June 22, 1961.
*421 Lee & McInish, Dothan, for appellant.
W. G. Hardwick and Wm. G. Hause, Dothan, for appellee.
SIMPSON, Justice.
This is a proceeding in the nature of quo warranto brought by appellant against appellee to test the right of appellee to hold the incumbent office of Commissioner of the City of Dothan.
The facts giving rise to the litigation are: Appellee was a duly qualified elector of Dothan on September 21, 1959 and on said date was duly elected as a member of the Board of Commissioners of the City of Dothan for a term of two years; on October 5 next thereafter he qualified under the law and took office as such commissioner; on June 3, 1960 he was adjudged guilty in the United States District Court at Birmingham of a felony under the laws of the United States (evading payment of United States income taxes) and was fined $1,500 by the judge of said court. The conviction was rested on a plea of "nolo contendere"; thereafter and on October 20, 1960, the instant proceedings were instituted to require him to vacate the office of City Commissioner.
It is the contention of appellant that under our constitution and certain of our statutes appellee is disqualified to hold the office because of the aforesaid conviction. The sections of our constitution and statutes of instant concern are:
Section 60 of the Constitution of Alabama which provides:
Title 41, § 5, of the Code which provides, among other things, as follows:
*422 Section 182 of the Constitution which provides, among other things, as follows:
Title 17, § 15 of the Code which provides, among other things, as follows:
Laying aside certain niceties of pleading argued on this appeal, we go to the heart of the legal question presented, viz.: Does such a conviction based on a plea of nolo contendere render appellee ineligible to hold the stated office in view of the constitutional and statutory proscriptions, supra. The trial court held that it did not, and we are in agreement. There may be authority to the contrary, but our two appellate courts seem to have laid the question at rest against the contention of appellant.Fidelity-Phenix Fire Ins. Co. of New York v. Murphy, 231 Ala. 680, 166 So. 604; Wright v. State, 38 Ala.App. 64, 79 So. 2d 66, certiorari denied 262 Ala. 420, 79 So. 2d 74.
The doctrine in this jurisdiction is that the plea of nolo contendere, so called, is not in a strict legal sense a plea in the criminal law at all, but is a formal declaration by the accused that he will not contest with the prosecuting authorities under the charge. It is in the nature of a compromise between the State and the defendant and if accepted by the trial judge (which in his discretion he may or may not do) a judgment of conviction may be entered thereon. It is not a plea of guilty but is in the nature of a tacit confession and is limited to the particular case and only that case. It has no effect outside of that case.
To illustrate, in the Murphy case this court, with respect to the plea, stated:
The Corpus Juris citation in the Murphy case has a good statement of the theory as applied in this jurisdiction:
Cases from some other jurisdictions, in addition to the cases cited in the Murphy case, supra, holding to the same theory are: Mickler v. Fahs, 5 Cir., 243 F.2d 515; Piassick v. United States, 5 Cir., 253 F.2d 658; Chester v. State, 107 Miss. 459, 65 So. 510; Caminetti v. Imperial Mutual Life Ins. Co., 59 Cal. App. 2d 476, 139 P.2d 681; White v. Creamer, 175 Mass. 567, 56 N.E. 832; Schireson v. State Board of Medical Examiners, 130 N.J.L. 570, 33 A.2d 911; In re Stiers, 1933, 204 N.C. 48, 167 S.E. 382.
It is true that our two casesMurphy and Wrightinvolved an attempt to prove a prior conviction of the accused for a different purpose, the court holding that such proof was inadmissible under the above quoted principle. But we perceive of no rational distinction in principle between those cases and the instant one where the trial court held inadmissible the proof of the appellant's conviction on such a plea in order to prove the State's case. It was as equally inadmissible. Such a distinction impresses us as being the difference between "tweedle-dum and tweedle-dee".
Some of the out-of-state cases, supra, however, squarely hold that such a conviction does not disqualify the accused from holding public office. Just how the question comes up in a given case seems to be unimportant. The life line of the rule is that the record of such a conviction is limited to the case and only the case in which the plea is entered; it is, in fact, not a conviction at all on a plea of guilty, but is an adjudication on a declaration by the accused in open court that, for reasons personal to himself (and there could be many bona fide, honest ones) he prefers not only to stand mute with respect to answering the charge, but also will not contest the prosecution's efforts with respect to it.
We see no room for an adverse argument under the rule of our cases.
Some argument is made with respect to whether or not this proceeding is civil or criminal. In our view it is in the nature of a civil proceeding (Fraser v. State, 216 Ala. 426, 113 So. 289; Belding v. State, 214 Ala. 380, 107 So. 853; Ames v. State of Kansas, 111 U.S. 449, 4 S. Ct. 437, 28 L.Ed. 482). However, we likewise entertain the view that whether civil or criminal is unimportant. The quotations with respect to the rule do mention the fact that the plea is inadmissible against the defendant in a civil case for the same act, but that statement of principle is merely one facet of the stated rule. Indeed, we observe that the Wright case by the Court of Appeals was a criminal case.
We think the trial court ruled correctly in quashing the writ and in rendering judgment for the respondent-appellee.
Affirmed.
Application for rehearing overruled.
All of the Justices concurring except GOODWYN, J., who dissents.
LAWSON, Justice.
If this were a matter of first impression, I would agree with the view expressed by Justice GOODWYN on rehearing. But I do not think we should recede in this case from the view expressed in Fidelity-Phenix Fire Ins. Co. of New York v. Murphy, 231 Ala. 680, 166 So. 604, or say that the holding in that case is not dispositive of the *424 question at hand. I can see no factual distinction which would justify a different holding.
I agree, therefore, that the application for rehearing be overruled.
GOODWYN, Justice (dissenting).
I concurred in the opinion on original deliverance but, after further consideration on rehearing, I am convinced my concurrence was laid in error.
In deciding the case, I think it is necessary to consider only § 60, Constitution 1901, which provides, in pertinent part, as follows:
It is my view that the nature of the plea, whether it be one of "guilty", "not guilty", or "nolo contendere", including the entering of a plea of "not guilty" when the accused stands mute, is immaterial in determining whether there has been a "conviction" within the meaning of the constitutional proscription. It is the fact of being convicted which the Constitution lays down as a ground for disqualification and not the nature of the plea made by the accused. In view of the obvious purpose and unrestricted wording of the disqualifying provision I do not think we would be warranted in saying it is applicable to convictions had on one kind of a plea and not applicable to convictions had on another kind. The Constitution says that no person who is "convicted" of an infamous crime is capable of holding office. And what is the meaning of the word "convicted"? It means, I think, a final judgment in a criminal trial that the accused is guilty as charged. Such was the judgment held to be inadmissible in evidence in this case.
It appears that the holding of the majority is based principally on the cases of Fidelity-Phenix Fire Ins. Co. of New York v. Murphy, 231 Ala. 680, 166 So. 604, and Wright v. State, 38 Ala.App. 64, 79 So. 2d 66, certiorari denied 262 Ala. 420, 79 So. 2d 74. The Court of Appeals in the Wright case followed the Murphy case, which was controlling on that court. Code 1940, Tit. 13, § 95. The question of present concern was not dealt with in the certiorari proceeding. So, in reality the Murphy case is the principal authority relied on by the majority. Involved in that case was a statute prescribing the disqualification as witnesses of persons convicted of certain criminal offenses. In the case now before us, there is not only a statute involved but also a provision of the Constitution. This is the first time the constitutional provision has been before this court on the question here presented. I would either restrict what was said in the Murphy case as being applicable only to the statute there under consideration or, preferably, would overrule what was there said on the question before us as not being supported by the better-reasoned authorities.
The position taken in this dissent is amply supported by respectable authorities. See: Ballurio v. Castellini, 1954, 29 N.J. Super. 383, 102 A.2d 662; Neibling v. Terry, 1944, 352 Mo. 396, 177 S.W.2d 502, 152 A.L.R. 249; State ex rel. McElliott v. Fousek, 1932, 91 Mont. 457, 8 P.2d 795, 81 A.L.R. 1099; 43 Am.Jur., Public Officers, § 200, p. 44; Annotation 81 A.L.R. 1100; Annotation 152 A.L.R. 253; Annotation 71 A.L.R.2d 593, 598.
I would grant the application for rehearing. | March 2, 1961 |
911fb76e-3e22-4539-9211-575179b89c93 | Orchelle v. CSX Transp., Inc. | 574 So. 2d 749 | N/A | Alabama | Alabama Supreme Court | 574 So. 2d 749 (1990)
Raymond ORCHELLE
v.
CSX TRANSPORTATION, INC.
89-35.
Supreme Court of Alabama.
December 14, 1990.
Rehearing Denied January 11, 1991.
*750 Frank O. Burge, Jr. of Burge & Wettermark, Birmingham, for appellant.
Michael C. Quillen and Terri A. Dobell of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellee.
ALMON, Justice.
Our opinion of August 31, 1990, is withdrawn, and the following opinion is substituted therefor:
This is an appeal from a judgment rendered on a jury verdict in favor of the defendant, CSX Transportation, Inc. ("CSX"), and against the plaintiff, Raymond Orchelle, in an action brought under the Federal Employer's Liability Act, 45 U.S.C. § 51 et seq. (1982) ("the FELA"), following an accident at Orchelle's workplace. Orchelle's complaint alleged in part that his injury was caused by a violation of the Safety Appliance Act, 45 U.S.C. § 1 et seq. (1982) ("the SAA"). The SAA imposes on railroads an absolute duty to comply with its provisions and makes issues of negligence and due care irrelevant. O'Donnell v. Elgin, J. & E. Ry., 338 U.S. 384, 70 S. Ct. 200, 94 L. Ed. 187 (1949). The trial court refused to instruct the jury on the SAA, and Orchelle argues that the court's refusal was reversible error. CSX responds with the argument that Orchelle did not preserve the alleged error for review and, alternatively, that even if he did, the court's refusal to instruct the jury on the SAA was correct.
Orchelle worked as a switchman for CSX in Cincinnati, Ohio. One of his duties was to "lace" or couple air hoses for air brakes between rail cars when those cars were being prepared for transfer from one area of the railyard to another. In 1985 Orchelle injured his right wrist while attempting to connect two hoses on rail cars that were at a standstill in CSX's Queensgate railyard. According to Orchelle, the couplings of those hoses were "burred" or damaged and he injured his wrist while attempting to force them together. Following that injury Orchelle filed a claim pursuant to the FELA, alleging that CSX had violated the SAA by failing to maintain the hoses properly.
During the trial, the court held several discussions with the parties' attorneys about whether certain provisions of the SAA applied to the facts of Orchelle's alleged injury. Sections one and nine of the SAA require that trains have power brakes; Orchelle took the position that those provisions, together with a regulation promulgated pursuant thereto, 49 C.F.R. § 232.17(b)(1), included a requirement that the hoses be maintained in a safe condition so that railroad workers could safely connect them. At the close of plaintiff's evidence, the parties held a long discussion that included the following remarks by the trial court:
The trial resumed and CSX put on one witness, who testified briefly, after which the following occurred:
After the judge charged the jury, without charging on the SAA, he asked if there were any objections, and Orchelle's attorney answered, "No, Your Honor." CSX argues that Orchelle's failure to object after the jury charge waived any claim of error regarding the court's refusal to instruct the jury on the SAA. CSX cites Rule 51, Ala.R.Civ.P., which provides in part:
In another case involving the same procedural question, this Court held that the plaintiff had preserved his claim of error concerning the giving of a jury instruction by stating his objection to the charge during the pre-charge conference, notwithstanding his statement, after the charge to the jury, that he did not have any exceptions to the charge. Gray v. Mobile Greyhound Park, Ltd., 370 So. 2d 1384, 1387 (Ala.1979). In that case, Gray's earlier objection gave the trial court sufficient notice of its alleged error, thereby satisfying the requirements of Rule 51. Id.
Orchelle repeatedly tried to persuade the trial judge that the SAA applied, and he objected to the judge's refusal to charge on that Act. Those efforts made his position abundantly clear to the trial court. To hold that the issue is not preserved for review because Orchelle's attorney did not renew his objection after the court instructed the jury would be an excess of formality.
CSX also argues that the issue was not preserved for appellate review because Orchelle did not file a written requested jury instruction on the applicability of the SAA. CSX directs this Court's attention to two recent cases, Ex parte Jordan, 532 So. 2d 1252 (Ala.1988); and Matkins v. State, 497 So. 2d 201 (Ala.1986), as support for its contention. Without again attempting *752 to clarify when a written jury instruction is required to preserve an issue for appellate review, we hold that the issue is preserved in this case because of the extensive discussions of the issue during the trial, because the request was to give an instruction in statutory form, and because the trial court made it clear that it would not instruct the jury on the SAA claim, well before it came time to submit written jury instructions.
Indeed, the court stated in a belated post-trial order that it had ruled on the merits of Orchelle's SAA claim. The court recited that the post-trial motion had been denied by operation of law because it had been pending longer than 90 days, see Rule 59.1, Ala.R.Civ.P., and continued:
(Emphasis added.) This order shows that Orchelle followed the court's ordinary procedure on FELA cases and did all that was necessary to comply with the spirit of Rule 51. Therefore, we conclude that the issue of whether the trial court erred by refusing to instruct on the SAA is properly before this Court.
Orchelle's SAA claim was based on 45 U.S.C. §§ 1 and 9, and 49 C.F.R. § 232.17(b)(1), a regulation promulgated pursuant to the SAA.[1] The purpose of the SAA is to promote the safe movement of trains over mainline tracks by requiring the installation of brakes that will effectively control the movement of those trains. United States v. Seaboard Air Line R.R., 361 U.S. 78, 80 S. Ct. 12, 4 L. Ed. 2d 25 (1959); United States v. Chicago, B. & Q. R.R., 237 U.S. 410, 35 S. Ct. 634, 59 L. Ed. 1023 (1915); Grogg v. Missouri Pacific R.R., 841 F.2d 210 (8th Cir.1988); Erskine v. Consolidated Rail Corp., 814 F.2d 266 (6th Cir.1987). To achieve that purpose, the provisions of the SAA require railroads to install air brakes on their trains; they also regulate the inspection, maintenance, and repair of those brakes. 45 U.S.C. §§ 1-16.
The United States Supreme Court has held that the SAA should be liberally construed to allow railroad employees to recover if their injury is caused or contributed to by defective or insufficient braking equipment. Coray v. Southern Pacific Co., 335 U.S. 520, 69 S. Ct. 275, 93 L. Ed. 208 (1949); Davis v. Wolfe, 263 U.S. 239, 44 S. Ct. 64, 68 L. Ed. 284 (1923). Issues of negligence, contributory negligence, and due care are irrelevant in SAA cases, O'Donnell v. Elgin, J. & E. Ry., 338 U.S. 384, 70 S. Ct. 200, 94 L. Ed. 187 (1949), and an employee is not precluded from recovery simply because his injury was not one that the SAA sought to prevent. Minneapolis & St. L. R.R. v. Gotschall, 244 U.S. 66, 37 S. Ct. 598, 61 L. Ed. 995 (1917); see also Kernan v. American Dredging Co., 355 U.S. 426, 78 S. Ct. 394, 2 L. Ed. 2d 382 (1958) (discussing the scope of liability under the SAA, the Jones Act, and the Boiler Inspection Act).
In Louisville & N. R.R. v. Layton, 243 U.S. 617, 37 S. Ct. 456, 61 L. Ed. 931 (1917), *753 the Court affirmed a judgment for an injured railroad employee. That employee had been on one of five freight cars loaded with coal. An engine pushed a stock car into the last of the freight cars and drove them into a standing train. Neither the stock car nor the freight car that it struck was equipped with automatic couplers, as required by the SAA. The stated purpose of the automatic coupler requirement was to avoid "the necessity of men going between the ends of cars." The railroad argued that this stated purpose showed that Congress intended the requirement only for the benefit of employees who were injured while coupling or uncoupling cars. The Court rejected the railroad's argument, holding that liability was not restricted to SAA violations that interfered with the accomplishment of the SAA's stated purpose:
243 U.S. at 621, 37 S. Ct. at 457.
In addition, in Davis v. Wolfe, supra, the Court held that a railroad employee should be allowed to recover "if the failure to comply with the requirements of the [SAA] is a proximate cause of the accident, resulting in injury to him while in the discharge of his duty, although not engaged in an operation in which the safety appliances are specifically designed to furnish him protection." 263 U.S. at 243, 44 S. Ct. at 66.
In a case that is closely analogous to the instant case, a brakeman was injured while trying to release a tightly set hand brake. In his attempt to force the brake, the brakeman put his left foot on a running board and his right foot on a grab iron (a required safety appliance) to better position himself for putting pressure on the brake. His weight caused the plank to which the grab iron was bolted to split, and he lost his balance, fell, and was injured. The railroad argued that the grab iron's purpose was to give employees an appliance to grasp with their hands, not to provide a foot brace. The Court rejected that argument, holding that the SAA should be "liberally construed so as to give a right of recovery for every injury the proximate cause of which was a failure to comply with a requirement of the Act." Swinson v. Chicago, St. P., M. & O. Ry., 294 U.S. 529, 531, 55 S. Ct. 517, 517, 79 L. Ed. 1041 (1935).
Orchelle presented evidence that tended to show that CSX had allowed the air hose he was attempting to couple to drag along the track, thus causing the threads of the coupler to become "burred." He says that, as a result of the burring, he was unable to connect the hoses, and that his attempt to force the ends of the hoses together caused his wrist injury. He argues that CSX violated 49 C.F.R. § 232.17(b)(1) by allowing the threads of the hose coupler to become "burred." That regulation reads in part:
In view of the construction that has been placed on the SAA by the United States Supreme Court and other federal courts, it is clear that Orchelle presented sufficient evidence of a violation to warrant a jury charge on that Act. Therefore, the trial court erred by refusing to give that charge; its judgment is reversed, and this cause is remanded for a new trial.
APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, SHORES, ADAMS and STEAGALL, JJ., concur.
[1] The incorporation of applicable federal regulations into the FELA, the Jones Act, and the SAA, and their use as a basis of liability, have been approved by the Supreme Court. Kernan v. American Dredging Co., 355 U.S. 426, 78 S. Ct. 394, 2 L. Ed. 2d 382 (1958). | December 14, 1990 |
1270998d-a88a-4b7b-9ae0-b74947ce5903 | Clarke-Washington Elec. M. Corp. v. Alabama Pow. Co. | 133 So. 2d 488 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 488 (1961)
CLARKE-WASHINGTON ELECTRIC MEMBERSHIP CORPORATION
v.
ALABAMA POWER COMPANY.
1 Div. 938.
Supreme Court of Alabama.
September 21, 1961.
*489 C. B. Gillmore, Adams, Gillmore & Adams, Grove Hill, J. M. Williams, Jr., Rushton, Stakely & Johnston, Montgomery, and Jos. C. Swidler, Nashville, Tenn., for appellant.
W. Johnson McCall, Thomasville, Martin, Vogtle, Balch & Bingham, Carey J. Chitwood and Alvin W. Vogtle, Jr., Birmingham, for appellee.
STAKELY, Justice.
This is an appeal from a decree sustaining the demurrer of the Alabama Power Company to the bill of complaint as amended filed by Clarke-Washington Electric Membership Corporation, a corporation, in the Circuit Court of Clarke County, in Equity. The complainant seeks to enjoin the respondent from duplicating certain electric distribution lines of the complainant. It seems from the record that the City of Thomasville intervened but did not demur to the bill of complaint, as amended.
The facts alleged in the bill are substantially as follows. The complainant is a corporation organized and incorporated under the Electric Membership Corporation Act of the State of Alabama (Chapter 2, Title 18, Code of 1940). Complainant was subsequently converted to a cooperative under the provisions of Chapter 3, Title 18, Code of 1940.
The respondent, Alabama Power Company, is a public utility corporation organized under the laws of the State of Alabama.
The complainant is engaged in the business of selling and distributing electrical energy to its members, customers, patrons in the counties of Clarke, Washington, Monroe, Baldwin and Wilcox. It has 2419 miles of distribution lines and approximately 8327 customers. Its distribution system cost in excess of four million dollars.
The distribution lines of the complainant in the aforesaid counties have been constructed, maintained and operated in territory which at no time has been served by the distribution lines of the Alabama Power Company, with the exception of certain customers initially served by the Interstate Utilities Company, whose distribution lines in the Northwest portion of Washington County were sold to the complainant. None of the customers, patrons or members of the complainant prior to their connection to the distribution lines of the complainant were receiving central power service and electrical energy had not been made available to said customers, patrons and members by the Alabama Power Company or any other utility.
The complainant, under the statutes authorizing its incorporation and under permits obtained from Clarke County and the State Highway Commission, had the right and privilege to erect its distribution lines upon the public highways, roads and other public ways of the county. Pursuant to this authorization the complainant, beginning in 1940 and prior to February 24, 1959, erected distribution lines in an area south and west of the corporate limits of the City of Thomasville at a cost of $15,000 to deliver electrical energy to approximately 113 members in said area. This area is referred to in the bill of complaint as the "extended area." The members and customers of the complainant within the extended area did not and could not receive electrical energy from any source until the same was provided by the complainant. The extended area for many years has constituted and now constitutes an area whose electrical energy requirements have been served exclusively by the complainant and no portion of which has been served by the respondent.
In or about the years 1946-1947 the respondent agreed with the complainant that the territory lying south of the corporate limits of the City of Thomasville, along U. S. Highway 43, and the territory west of the corporate limits of the City of Thomasville lying along the old Grove Hill-Choctaw County (Choctaw Corner) public road should constitute territory, or service area, to be served exclusively by the Complainant.
*490 The electrical energy which complainant sells and delivers to its customers over its distribution system, including its distribution system within the extended area, is purchased wholesale from the respondent, under a contract dated May 20, 1953, which contains the following provision:
"Duplication:
On February 24, 1959, by an Act approved on the same date, Laws 1959, p. 99, the corporate limits of the City of Thomasville were extended to embrace the area described in the bill of complaint, as amended, and identified as the "extended area", and to embrace other areas which are not involved in this litigation.
Reference to Exhibit "A" discloses that the corporate limits of the City of Thomasville were extended in a long narrow strip (lying along the highway) for a distance of some three miles to the south, as well as being extended to the northwest of the city, and all of which is embraced in the extended area as defined in the bill, and which constitutes the area which is in dispute in this litigation.
The Alabama Power Company had the opportunity to construct its distribution lines into the area served by the complainant and to serve the inhabitants thereof prior to the construction of the distribution system of the complainant, but failed to do so. It does not now have a certificate for service within the extended area.
The complainant is performing a necessary and useful service in making available electrical energy to its members, patrons and customers who have been unable to obtain electrical energy elsewhere. The system has been operated in an efficient and workman-like manner.
On March 25, 1959, representatives of the Alabama Power Co. informed the complainant that the Alabama Power Co. wished to purchase the distribution system of the complainant within the extended area and that if the complainant did not sell said distribution system to the respondent, the respondent would duplicate the distribution system of the complainant within the extended area in order to furnish electrical energy to the present customers, patrons and members of the complainant. The complainant declined to sell its distribution system within the extended area to the Alabama Power Co.
The construction of an electrical distribution system within the extended area, to duplicate the distribution lines of the complainant, and to serve such customers of *491 the complainant as may request service from the respondent is unfair, unreasonable and unjust and such proposed practice will result in great economic loss and irreparable injury to the complainant and will be against and contrary to the general public welfare.
The bill of complaint alleges that the construction of a distribution system within the extended area to duplicate the distribution system of the complainant would not be an ordinary extension of the existing electrical system of the Alabama Power Co. made in its usual course of business. The Alabama Power Co. has not made application to the Alabama Public Service Commission for a certificate of convenience and necessity to authorize the respondent to duplicate the distribution system of the complainant within the extended area. Irreparable harm, damage and injury will follow and be done to the complainant unless the acts and conduct of the respondent, complained of, are enjoined. Complainant prays that the respondent be enjoined from duplicating the lines of the complainant within the extended area and that the respondent be enjoined from delivering electrical energy to any persons within the extended area who can obtain electrical energy from the distribution lines of the complainant.
I. It is seriously insisted by the appellee that the appellant has no standing to require the appellee to secure a certificate of convenience and necessity before extending its lines into the territory annexed to the City of Thomasville. The idea is that the present bill should have been instituted either by the Alabama Public Service Commission or by the State of Alabama through its properly qualified officers. We do not believe as a general principle that the legislature intended to enact a law under which the appellant and others similarly situated might be incorporated with certain rights common to corporations including the right of eminent domain and then was to be left defenseless and without the right to invoke the ordinary remedies of the courts of the state. It seems to us to hold otherwise would render completely nugatory and meaningless the words in the charter of appellant "to sue and be sued". As we see it the question now before this court is not whether Clarke-Washington should be brought within the jurisdiction of the Public Service Commission by an amendment to the law governing the Commission so far as cooperatives are concerned but rather whether the appellee, which is subject to the Alabama Public Service Commission law, should comply with the requirements of that law. It is insisted by the appellant that the Alabama Power Company should not extend its lines within the territory annexed to the City of Thomasville unless it first secured a certificate of public convenience and necessity from the Alabama Public Service Commission. We need here to refer to a decision rendered by this court which is styled Alabama Power Company v. Southern Pine Electric Cooperative, 270 Ala. 453, 118 So. 2d 907. It is argued by the appellant in the instant case that the majority opinion in that case has determined the question now before us. This is not correct. The majority opinion decided that case only on the theory that § 332, Title 48, Code of 1940 should not be construed under the facts presented in that case as requiring certificates of public convenience and necessity in order to engage in the activities of the kind shown by the records in that case. The majority of the court expressly refrained from deciding the issue which we are now discussing in the case at bar.
In the present case the appellee seeks to persuade this court of the unfairness of a decision which would require the appellee to secure a certificate of convenience and necessity "for a simple, ordinary extension of its facilities within the corporate limits of Thomasville" while the appellant "an unregulated general welfare cooperative" is not required to do the same. We think that this is a legislative question.
*492 If the appellee has invaded the property rights of the appellant then we consider that the appellant should have the right of legal redress in the appropriate courts in this state. The fact that the appellant is exempted from the regulation of the Alabama Public Service Commission jurisdiction does not change this situation, but if a change should be made, this is a matter which should be addressed to the wisdom and judgment of the legislature of Alabama. Springfield Gas & Electric Co. v. City of Springfield, 292 Ill. 236, 126 N.E. 739, 18 A.L.R. 929; 257 U.S. 66, 42 S. Ct. 24, 66 L. Ed. 131; Frost v. Corporation Commission of Oklahoma, 278 U.S. 515, 49 S. Ct. 235, 73 L. Ed. 483; Payne v. Jackson City Lines, 220 Miss. 180, 70 So. 2d 520; State ex rel. Seattle & R. V. R. Co. v. Superior Court for King County, 123 Wash. 116, 212 P. 259; Warehouse Distributing Corp. v. Dixon, 97 Ind.App. 475, 187 N.E. 217; Jacksonville Bus Line Co. v. Watson, 349 Ill.App. 462, 110 N.E.2d 834.
II. It is argued by the appellee that it does not need a certificate of convenience and necessity to extend its facilities into the annexed area of the City of Thomasville. In support of this position appellee submits that § 332, Title 48 of the Code, requiring a certificate of convenience and necessity excepts "ordinary extensions of existing systems in the usual course of business." Further it is submitted that § 30, Title 48 of the Code renders inapplicable the requirement of § 332. Section 20, Title 48 of the Code provides in part as follows:
Appellee relies on those grounds of the demurrer asserting that respondent has been granted a franchise by the City of Thomasville to erect electrical facilities in the corporate limits of the city and argues that the court will take judicial notice of orders and reports of the Alabama Public Service Commission authorizing the rights and obligations under which appellee operates in the City of Thomasville. We do not think that these grounds of the demurrer are proper since they are what is known as speaking demurrers, presenting matter that should be presented by an answer. Sumner v. Caldwell, 245 Ala. 568, 18 So. 2d 87; Blythe v. Enslen, 219 Ala. 638, 123 So. 71. Furthermore we do not consider that on demurrer we should take judicial notice of facts alleged to be shown in various case files in the proceedings of the Alabama Public Service Commission. This court has held that administrative interpretation must appear from the pleading or evidence. On appeal from a decree on demurrer an administrative interpretation not alleged in the bill will not be considered. State of Alabama v. Robinson Land & Lumber Co., 262 Ala. 146, 77 So. 2d 641. It was proper to overrule the demurrer in this respect.
III. The appellee advances the same position of lack of necessity to obtain a certificate of convenience and necessity by virtue of Sections 20 and 332 of Title 48 but upon different grounds of demurrer and different treatment of the allegations of the bill. These grounds are in effect that for aught appearing respondent has an electric franchise in the City of Thomasville and in the extended area. It is argued that with respect to this the bill alleges only that appellee has not obtained a certificate of convenience and necessity from the Alabama Public Service Commission to duplicate service in the extended area.
*493 The bill alleges that "The Alabama Power Company is a public utility corporation organized under the laws of the State of Alabama, with its principal place of business in Birmingham, Jefferson County, Alabama. The Alabama Power Company is now engaged in business in Clarke County, Alabama."
The bill alleges that respondent has not obtained a certificate of convenience and necessity from the Alabama Public Service Commission. There is, as argued by appellee, a complete absence of allegation that appellee has no franchise from the municipality or that it is or has acted unlawfully in any manner other than failure to obtain a certificate of convenience and necessity from the Alabama Public Service Commission. Construing the bill most strongly against the pleader, we must assume that appellee has complied with the Constitution and statute in its operations within the municipality. If then, appellee is rightly and lawfully operating within the corporate limits of the City of Thomasville and has an appropriate franchise from the municipality, then it has no duty to obtain a certificate of convenience and necessity from the Alabama Public Service Commission in view of Sections 20 and 332, Title 48, supra. The demurrer in this respect should have been sustained.
IV. The appellant takes the position that it is lawfully occupying and serving the extended area. The allegation of the bill shows that the complainant (appellant) began in 1940 to construct electric distribution facilities in the area south and west of the corporate limits of the City of Thomasville as they existed at that time, and, further, that at the time of the filing of the present bill of complaint its distribution system was valued at $15,000 and was delivering electric service to 117 consumers.
It is further alleged that the complainant was organized under Title 18, Chapter 2, Code of 1940 and subsequent to 1937 was converted to a corporation under Chapter 3 of that Title. Since the complainant ceased to operate under the provisions of Chapter 2 (1935 Act) the scope of the right to use the roads and highways of Clarke County are not applicable. On the contrary, the corresponding provisions of Chapter 3 (1939 Act) are pertinent.
Section 33, Title 18 which grants to appellant the right to construct its facilities upon public highways reads in part as follows:
As the State of Alabama and the Court of County Commissioners of Clarke County have consented to appellant's use of the roads and streets of Clarke County, the appellant concludes it has franchise rights. We think this is correct so long as the particular area is solely within the jurisdiction of the county and not within the limits of an incorporated municipality. It seems to us that when any area of a county becomes a part of a municipal corporation, Section 33 of Title 18 must yield to Section 220 of the Constitution of Alabama of 1901 which provides as follows:
The proviso which we have emphasized in the quotation of Section 33 appears to have been inserted in order to comply with Section *494 220 of the Constitution of Alabama of 1901. In support of its position the appellant cites two cases which we should carefully examine.
In City of Prichard v. Alabama Power Company, 234 Ala. 339, 175 So. 294, the city sought a mandatory injunction to compel the power company to remove its poles and wires from the public streets on the grounds that they constituted a public nuisance. The case was not concerned with competition between utilities. The power company had constructed its electric facilities in an area later incorporated as the City of Prichard. This court held that the maintenance of the facilities on the streets was not a public nuisance, and further, since the facilities were constructed prior to the time the area became incorporated, Section 220 of the Constitution had no application.
In Town of Fultondale v. Clelland Bus Lines, 254 Ala. 225, 48 So. 2d 21, the city attempted to cause the defendant to cease operating its bus service. The case was not concerned with competition between bus companies. The bus company had operated under a certificate of public convenience and necessity granted by the Alabama Public Service Commission prior to the time the unincorporated area became the Town of Fultondale. This court again declared that the activities of the defendant were lawfully begun prior to incorporation and Section 220 of the Constitution had no application. It seems that the appellant in the instant case relies strongly on these two cases and Section 33 of Title 18 to support its right to maintain an exclusive area of service in the extended area of Thomasville.
We do not consider, however, that these two cases are apt authorities in the instant case. Each of these cases deals with an area which had not been incorporated, in one case when the facilities had been constructed and in the other when the activities had begun. Neither case deals with an area annexed to an existing municipal corporation.
In Farmers Electric Co-operative Corporation v. Arkansas Power & Light Company, 1952, 220 Ark. 652, 249 S.W.2d 837, 839, the Town of Newport was being served under a franchise by Arkansas Power. The city, in order to meet its growing needs, annexed a considerable amount of territory adjacent to the corporate limits, which was being served by the Farmers Co-op. The public service commission had expressly assigned the territory adjacent to the city to the Co-op. In our case, appellant is claiming the adjacent territory, now within the corporate limits, as its exclusive area of service. The court determined that Arkansas Power had not only the privilege but the obligation to supply power to the newly annexed areas of the city, and further, that even though the territory adjacent to the city had been specifically assigned to the Co-operative, such assignment must give way to the growth of the city, by saying:
The facts of this case are more clearly in point than those of the Prichard case. See also Arkansas Electric Cooperative v. Arkansas-Missouri Power Company, 1953, 221 Ark. 638, 255 S.W.2d 674, at page 677.
Whitaker v. Louisville Transit Co., Ky. 1955, 274 S.W.2d 391, is an appropriate parallel to the Fultondale case. Blue Motor Coach Line had maintained bus service between Camp Taylor, a suburb of Louisville, and downtown Louisville since 1935. Louisville annexed approximately 95 per cent of the Camp Taylor area. Louisville Transit Company had operated public transportation in the City of Louisville since *495 1890 and subsequent to the annexation began to operate in the annexed area. The Kentucky Constitution confers upon cities the right of final decision as to whether a public utility may use or occupy the city streets. The court determined that the rights of the parties became fixed as a matter of law when the Camp Taylor area was annexed in June, 1950. In holding that Louisville Transit had the right to serve the newly annexed area, the court state at page 394:
See also State ex rel. Southwestern Gas & Electric Co. v. Upshur Rural Electric Cooperative Corporation, 1957, 156 Tex. 633, 298 S.W.2d 805, reversing Upshur Rural Electric Cooperative Corporation v. State, Tex.Civ.App.1956, 289 S.W.2d 819, where the power company, though failing in its efforts to require the cooperative to remove its facilities from a newly annexed area in Gilmer, Texas, was clearly able to serve the annexed area. The cooperative was restricted to those customers it was serving at the time of annexation.
We believe that there is a logical distinction between the Prichard and Fultondale cases and those which we have discussed above. If appellant is allowed to maintain its facilities exclusively in the extended area it will deny the city the right to expand and this principle, if established, could apply to a great many things other than electric service. The Prichard case supports the idea that Section 220 of the Constitution cannot act retroactively, but the Prichard case does not restrict the prospective or future operation of the Constitution. It certainly seems to us that one of the reasons why persons in suburban areas choose annexation to an existing municipality is to receive the benefits which persons in the municipality have, such as police protection, fire protection, and the various utility services that are rendered to the residents of a city. Of course, with the receipt of these benefits persons in the annexed area become obligated to share their appropriate part of the cost of city government. It does not seem reasonable to us that where such persons are required to support the city financially there should be withheld from them the benefits of the various services which come from annexation to the city. With reference to the obligation of a public utility lawfully operating within the corporate limits of a municipality to serve all customers desiring its service in any area subsequently annexed to such municipality we refer to some of the authorities. Truesdale v. City of Newport, 1906, 90 S.W. 589, 28 Ky.Law Rep. 840; City of Raleigh v. Carolina Power & Light Co., 1920, 180 N.C. 234, 104 S.E. 462; Tulsa St. Ry. Co. v. Oklahoma Union Traction Co., 1910, 27 Okl. 339, 113 P. 180; Harlan v. Town of Bel Air, 1940, 178 Md. 260, 13 A.2d 370.
We conclude that the appellant does not have the exclusive right to perform its services in the "extended area".
V. The allegations of the bill show that the parties agreed in 1946-1947 that the area south and west of Thomasville would be the exclusive service area of complainant and that such agreement was "supplemented and reenforced" by Section 16 of a written contract between the parties dated May 20, 1953. The only allegation in the bill relating to the 1946-1947 agreement is the following:
The allegations of the bill further show that the parties are now operating under contract executed by the parties dated May 20, 1953. It is a familiar principle that a party alleging a violation of a modified or changed contract must rely upon the contract as so modified or changed. McClendon v. Eubanks, 249 Ala. 170, 30 So. 2d 261; Sibley v. Barclay, 14 Ala.App. 422, 70 So. 201, certiorari denied 195 Ala. 694, 70 So. 1012; Dunaway v. Roden, 14 Ala. App. 501, 71 So. 70, certiorari denied 196 Ala. 701, 72 So. 1019. It seems clear to us that the appellant must rely on the 1953 contract and not on the 1946-1947 agreement. In other words, it is our view that the contract of May 20, 1953 instead of merely supplementing and reenforcing the 1946-1947 agreement expressly rendered it in part null and void. It will be recalled that in the 1953 contract Section 16 of that agreement which has been hereinabove set forth contains the following stipulation:
To put the matter a little differently, we think it clear that the foregoing excerpt from Section 16 supersedes any agreement theretofore made where operations under a franchise in a city is concerned. It is argued by the appellant that the foregoing portion of Section 16 is applicable only to the corporate limits of a municipality as they existed on the date of the contract. As we have heretofore undertaken to show where there has been an annexation of territory and an enlargement of corporate limits the contracts, rights, benefits, obligations, etc. of municipalities are determined by the boundaries as they change from time to time. There was, therefore, no need to phrase the foregoing excerpt from Section 16 so as to make it have a future or prospective operation. On the contrary, it has such an operation as a matter of law and the parties contracted with reference thereto.
We agree with the appellee that the appellant is estopped by the contract of 1953 from taking a position which we think is inconsistent with the contract of 1953. In this connection, we point out that the office of estoppel by contract is to preclude a party from taking an inconsistent position to another's prejudice and this is recognized in Alabama. Stocks et al. v. Inzer, 232 Ala. 482, 168 So. 877. To summarize, it is our conclusion that when the allegations of the bill as amended are construed most strongly against the pleader the allegations show that the alleged agreement of 1946-1947 was modified by Section 16, that appellee has not breached Section 16 and that appellant is thereby estopped to take a position inconsistent with the agreement of 1953.
It appears from the record in the citation of appeal that the City of Thomasville has intervened. The rights vel non of the City of Thomasville to intervene in this litigation is not an issue on this appeal. For that reason statements with reference to the intervention of the City of Thomasville are not a part of this record.
We conclude that the decree of the lower court should be upheld.
Affirmed.
LIVINGSTON, C. J., concurs in the result.
LAWSON and MERRILL, JJ., concur. | September 21, 1961 |
bce52197-1cd0-4498-90cc-ac2a97e36fec | Ullmann v. First National Bank of Mobile | 137 So. 2d 765 | N/A | Alabama | Alabama Supreme Court | 137 So. 2d 765 (1961)
Nelly ULLMANN
v.
FIRST NATIONAL BANK OF MOBILE.
1 Div. 972.
Supreme Court of Alabama.
December 21, 1961.
*766 McCorvey, Turner, Johnstone, Adams & May, C. A. L. Johnstone, Jr., and J. Jeptha Hill, Mobile, for appellant.
Kearley & McConnell, Arthur J. Kearley and Alvin McConnell, Mobile, for appellee.
MERRILL, Justice.
Appeal by Nelly Ullmann, as a legatee under the will of Louis Levis, deceased, from a decree of the Probate Court of Mobile County, adjudging that part of a legacy to Nelly Ullmann was adeemed.
The executors of the will filed a verified petition seeking a construction of the will under the provisions of the 1947 Act listed in the Appendix, §§ 512-520, Recompiled Code 1958, giving the Probate Court of Mobile County the same powers as the circuit court in the administration of estates.
The Levis will contained many bequests, and instructions were sought as to several items, but the only item in question on this appeal is Item four (e), which provided:
The testator executed the will on January 29, 1959. Between that time and the date of his death, May 8, 1959, ten of the Mobile County Road and Bridge Bonds were called and paid to the decedent, and at the time of his death, he owned only five of the bonds.
The question presented to the probate court was whether the bequest to appellant in Item four (e) was a general or a specific legacy. If a general legacy, Nancy Ullmann would receive the $20,000 worth of bonds, plus $10,000 in other assets of the estate, making the total the full $30,000 worth of property provided for in the bequest. If held a specific legacy, appellant *767 would receive only those bonds which the testator owned at his death, totaling $20,000.
The trial court held that the legacy of $15,000 in Mobile County Road and Bridge Bonds has been reduced to $5,000 "by the act of the testator in accepting payment of ten (10) of said bonds," and that the executors would totally discharge their responsibility by delivering the five remaining bonds to the legatee. The effect of this holding was that the bequest of the fifteen $1,000 Mobile County Road and Bridge Bonds was a specific legacy.
The same question is presented to us is the bequest a general or a specific legacy?
The case of Willis v. Barrow, 218 Ala. 549, 119 So. 678, contains definitions and principles relating to ademption.
A specific legacy is a bequest of a particular article or specific part of the testator's estate which is so described and distinguished from all other articles or parts of the same as to be capable of being identified.
A general legacy is a bequest chargeable upon the general estate, and not so given as to be distinguishable from other parts of the estate of the same kind, or, as otherwise defined a general legacy is one of quantity merely, and includes all legacies not embraced within the definitions of specific and demonstrative legacies.
In the construction of wills, the law favors demonstrative or general rather than specific legacies, which are subject to extinguishment or ademption if the thing specified is not in being as part of the estate upon the death of the testator. This is but an application of the general rule that wills should be construed to uphold rather than defeat devises and bequests.
But all rules yield to, or may be considered in aid of, the primary rule, viz. find and give effect to the mind and purpose of the testator.
Appellant relies upon the case of Gilmer's Legatees v. Gilmer's Executors, 42 Ala. 9. There, a bequest to testator's brother of "twenty thousand dollars in Confederate States bonds" was held to be a general legacy, but the court held that it designated "the article in which payment is to be made, not the source or fund from which the means of payment are to be derived." When the will was executed in 1863, the bonds had some value, but in 1868, the legacy was worthless, and the court held that "the legacies in Confederate bonds herein before mentioned fail, and that the legatees take nothing on account thereof." This holding was made in the face of the argument "that it was natural for the testator to provide for him (the brother) out of his abundant estate; that he showed his intention to do so, by giving a legacy in a certain class of bonds when they were of value, and that the intention of the testator will be defeated under our decision."
The court also held in that case that a bequest of "twenty-five thousand dollars of bonds which I hold in the railroad companies, payable at the Georgia Railroad Bank, or at the Central Bank of Montgomery, Alabama" was a specific legacy.
Here, we think the designation of the name of the issuing agency of the bonds, the number (15), the amount of each ($1,000), the dates payable, the rate of interest of each was a bequest of a "specific part of the testator's estate which is so described and distinguished from all other articles or parts of the same as to be capable of being identified." Willis v. Barrow, 218 Ala. 549, 119 So. 678, 680.
A case in point is In re Jay's Estate, 189 Misc. 40, 70 N.Y.S.2d 760, 762. There, the testator owned certain preferred shares in a corporation and she disposed of them in her will by creating a trust for the life benefit of her sister. The will was executed on March 21, 1941. In September, 1945, the corporation redeemed the shares. The testator reinvested part of the proceeds in *768 common stock of the same corporation. She died on December 31, 1945, without making any change in her will. The court said:
It appears to be the general rule that if, after making a specific bequest of corporate stock or securities, the testator sells or otherwise disposes of the subject matter of the bequest and does not acquire other stock or securities answering as well to the language of gift, an ademption occurs without regard to what may have been the intent concerning ademption, and in such case, the legatee has no valid claim on the proceeds of the sale or disposition. If the stock or securities designated are not only not a part of the testator's estate at his decease but are actually non-existent, ademption ordinarily occurs without regard to any matter of intent, and the legatee has no valid claim on proceeds or anything purchased therewith. Annotation: Ademption-Legacy of Stock, 61 A.L.R.2d 452.
But appellant insists that Item 10 of the will shows an intention that the legacy be a general legacy. Item 10 provides:
Appellant contends that Item ten "indicates a general testamentary purpose of equality in treatment among all legatees, and a general intention that certain legatees should not suffer any disproportionate loss not borne by the others." We cannot agree.
In the absence of an expressed contrary intent of the testator, it is the general rule that where the assets are insufficient to pay all the debts of the estate and the legacies, the loss falls first, on the residuary, second, on the general legacies, and, third, in the specific devises or legacies. Powell v. Labry, 210 Ala. 248, 97 So. 707.
The bequests exempted from proration in Item ten included general legacies, so it becomes apparent that the testator did express a contrary intent, because he specifically provided that these named general legacies should not abate proportionately. We do not think that Item 10 shows any intention of the testator to pay for bequeathed securities which he did not own at the time of his death.
It follows that the decree of the probate court should be affirmed.
This cause was submitted both on the merits and on motion of appellee to dismiss *769 the appeal. In view of our holding, it is not necessary to discuss our reasons for denying the motion.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | December 21, 1961 |
45399287-51ea-463f-b576-ee45c6581a54 | Howard v. State | 142 So. 2d 685 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 685 (1961)
Roosevelt HOWARD
v.
STATE of Alabama.
3 Div. 929.
Supreme Court of Alabama.
September 28, 1961.
Rehearing Denied June 28, 1962.
Henry J. Harper, Montgomery, for appellant.
MacDonald Gallion, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.
LIVINGSTON, Chief Justice.
The appellant, Roosevelt Howard, alias "Pee Wee" Howard, was indicted, tried and convicted in the Circuit Court of Butler County, Alabama, for killing Vandiver Lazenby by shooting him in the back with a .22 caliber rifle. His punishment was *686 fixed at death by electrocution. The appeal comes here under the Automatic Appeal Statute, Sec. 382(1), Title 15, Code of Alabama 1940, Cumulative Pocket Part. There was a motion for a new trial which was overruled.
No good purpose would be served by setting out all the evidence in detail. Lazenby was killed on January 9, 1960, between the hours of 2:00 and 3:00 p. m. He was shot in the back. Lazenby owned and operated a store in Butler County. At the north end of the store, he had a small office. There was a window on the north side of the office. Lazenby was shot through this window as he sat at his desk working on his books with his back to the window. The bullet passed through the screen on the outside of the window and through a pane in the window, striking Lazenby just under the left shoulder blade, passing through his lung, and lodged near his collar bone.
Prior to his being shot, Lazenby had an argument in the store with the appellant relative to how much groceries the appellant could buy on a credit. The appellant left the store accompanied by two other Negroes. Witnesses testified that the appellant got in a car with a Negro woman and drove away. Other witnesses testified that appellant lived about a mile from Lazenby's store. The two witnesses who accompanied appellant from Lazenby's store testified, in effect, that they met the appellant in the road about one-quarter of a mile from Lazenby's store a few minutes after he left the store with a .22 rifle in his hands, and that he was going toward Lazenby's store; that they urged appellant to return to his home and take his rifle with him, but appellant insisted that they go on and not bother him; that while they were talking to appellant the appellant either fired the rifle or it went off; that after the shot was fired in the road, appellant proceeded toward Lazenby's store, and that shortly thereafter these witnesses heard the sound of a shot in the direction of the store.
A clerk in the store testified that when he heard the shot he went immediately to the office and Lazenby was trying to get up out of his chair, that he looked through the window and saw the appellant running away from the store; that he knew the appellant well.
This is by no means all the evidence in the case. The recited evidence, together with all the evidence in the record, leaves no doubt as to the identity of the appellant as the person who killed Lazenby. Indeed, the appellant offered no evidence to the contrary.
In brief, counsel for appellant argue only one proposition for reversal. This proposition was presented to the trial court in the form of a motion for a mistrial, made during the progress of the trial and contained in the motion for a new trial. Both motions were overruled by the trial court.
It is insisted that the case should be reversed for the following: At the trial and after the jury had been sworn and impaneled, the widow and daughter of the deceased, attired in black, were seated inside the bar of the court close to and in view of the jury. After four hours of testimony, the counsel for appellant moved to have the jury excluded and then directed the court's attention to the presence of the deceased's family within the bar of the court, and moved for a mistrial on the grounds that the presence of the deceased's family was prejudicing or tending to prejudice the jury. The motion was denied, counsel excepted, and the deceased's widow and daughter remained within the bar of the court for the duration of the trial. Counsel for appellant at the conclusion of the trial then moved for a new trial on the same grounds, which was denied also. Hence this appeal.
There were affidavits on behalf of the appellant which stated that the widow and daughter of the deceased wept and sobbed intermittently during the course of the trial. Counteraffidavits were offered on behalf of the state which stated that the *687 members of the deceased's family made no audible or conspicuous demonstration during the trial.
Assuming the allegations in the affidavits of appellant were true, we find no error in the trial judge refusing to grant a mistrial or a new trial.
This Court has held that the family of the victim has a right to be present at the accused's trial. Beaird v. State, 219 Ala. 46, 121 So. 38, Davis v. State, 233 Ala. 202, 172 So. 344; and the Court of Appeals has held that in a murder prosecution permitting members of the victim's family to sit within view of the jury is a matter which addresses itself to the sound discretion of the trial judge, whose rulings with respect thereto will not be revised on appeal in the absence of a clear showing of an abuse of such discretion. Pollard v. State, 12 Ala. App. 82, 68 So. 494 (reversed on other grounds) 193 Ala. 32, 69 So. 425; Cody v. State, 24 Ala.App. 499, 137 So. 318; Swindle v. State, 27 Ala.App. 549, 176 So. 372.
Generally, it is not an abuse of the trial judge's discretion to deny a new trial in cases where the members of the victim's family have sat within the bar of the court or within view of the jury and wept quietly, sobbed aloud, or even fainted. Swindle v. State, supra; Davis v. State, 222 Ala. 285, 131 So. 900; Hanye v. State, 211 Ala. 555, 101 So. 108; Wyres v. State, 32 Ala.App. 630, 29 So. 2d 155; Duff v. State, 40 Ala. App. 80, 111 So. 2d 621, certiorari denied 269 Ala. 696, 111 So. 2d 627.
In the instant case, the appellant made no request to have the judge admonish the jury in regard to the said incident, and in the analogous cases of Hanye v. State, and Davis v. State, supra, this Court entertained the view that it is incumbent upon the appellant to seek eradication of the prejudice and request the proper instructions and upon his failing to do so, he is estopped from complaining afterwards on appeal.
The facts in the cases cited by appellant, Collum v. State, 21 Ala.App. 220, 107 So. 35; White v. State, 25 Ala.App. 323, 146 So. 85, and Hammond v. State, 26 Ala.App. 391, 160 So. 900, are not entirely analogous to the case at bar.
There can be no doubt that the object or purpose of all trials is to see that the parties litigant receive a fair and impartial trial before a jury without any outside influence not justified by law. Any "stage setting" that would thwart this concept of a fair trial is to be condemned and trial judges should always be alert to prevent it. In accomplishing this purpose, the duty rests upon the trial judge, and to him must, of necessity, be committed matters of discretion which may not be reviewed unless it be made clearly to appear that his discretion has been abused. He should permit no display of any kind which has for its only purpose and result a tendency to prejudice, unlawfully, the minds of the jury. In matters of this kind arising in trials involving great human interest, trial judges should be careful to see that no extrinsic influences are projected into the proceedings in such a way and manner as to bring them into a consideration by the jury when it comes to make up its verdict.
In the instant case, the deceased with his wife and daughter lived just a short distance from the store owned and operated by deceased and in which he was killed. The store and residence were in a more or less rural community of Butler County. The daughter of deceased was among the first that reached his side after he was shot. She was in the car that carried him to the hospital and was with him when he died. They sat behind and near the solicitor, prosecutor for the state. Under our authorities, they had the right to do so. They no doubt furnished information to the prosecutor in his examination of witnesses. The eminent and learned trial judge was in a better position to observe the entire trial and proceedings and to keep the same in due bounds than is an appellate *688 tribunal. This is the reason for committing to the trial court a sound judicial discretion in matters of this character. Here, the conduct of the deceased's family was not so conspicuous and improper as to warrant a mistrial or a new trial.
Mindful of our duty, we have carefully reviewed the record touching those matters which come within the purview of the Automatic Appeal Statute. We find no error to reverse and the judgment of conviction is affirmed.
Affirmed.
All the Justices concur. | September 28, 1961 |
56f4e35e-8762-4018-bae0-2d03bf064911 | Williams v. Colquett | 133 So. 2d 364 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 364 (1961)
Jimmy D. WILLIAMS
v.
J. F. COLQUETT et al.
4 Div. 62.
Supreme Court of Alabama.
September 21, 1961.
*365 Tipler & Fuller, Andalusia, for appellant.
Robt. B. Albritton and Albrittons & Rankin, Andalusia, for appellees.
STAKELY, Justice.
J. F. Colquett and Thomas Wishum (appellees) filed a bill of complaint in the circuit court of Covington County, Alabama, in Equity, against Jimmy D. Williams (appellant). The bill prayed for a temporary injunction against the respondent restraining him from enforcing the collection of a monetary judgment obtained by respondent against the complainants on the law side of the court pending a final determination of the equity suit. The circuit judge, Honorable F. M. Smith, granted a temporary injunction as prayed for in the bill. Thereupon, the respondent filed his motion to dissolve the temporary injunction and dismiss the bill of complaint. This motion was set down for hearing by agreement of the parties and was duly submitted to the court with the result that the court entered a decree denying and overruling respondent's motion. This appeal was taken by the respondent (appellant) from the aforesaid decree.
The allegations of the bill show in substance the following. On the 17th day of September, 1954, Jimmy D. Williams, then a minor, filed his suit pro ami in the circuit court of Covington County, Alabama, at Law, against Colquett and Wishum and one Herman Hair as joint tort-feasors seeking damages for alleged injuries received from the operation of their respective automobiles. This suit was designated No. 407. Prior to the trial of the case, complainants propounded interrogatories to the codefendant Herman Hair and the plaintiff seeking to elicit information as to a settlement or satisfaction between the plaintiff and codefendant Hair. Shortly before trial of the case, the plaintiff amended his complaint by striking Hair as a party defendant and objected to Hair's answering interrogatories touching the alleged agreement and he refused to answer them. The court overruled the complainant's motion to require answers to the interrogatories, and thereupon the complainants filed their petition in this court praying for the issuance of an alternative writ of mandamus or rule nisi commanding Hon. B. W. Simmons as trial judge to enter an order requiring the plaintiff and codefendant Hair to answer said interrogatories. The Supreme Court granted the petition and the writ was issued.
*366 Thereafter, Judge B. W. Simmons entered an order pursuant to the writ commanding the parties to answer such interrogatories and they did answer the same, and denied that there was any agreement, understanding, or settlement between the plaintiff on the one hand and the defendant Hair or his attorney or his insurance company on the other, involving the full or partial satisfaction of plaintiff's injuries.
On the day following the filing of the amended complaint and prior to the trial of case No. 407, the plaintiff filed a separate suit against the defendant Hair alone and on the identical cause of action sued on in case No. 407. This case was designated as case No. 593. Case No. 593 was heard by agreement of the parties without a jury on the same day the complaint was filed. Neither defendant Hair nor his attorney was present and no defense was offered in the suit. The court thereupon entered a judgment in favor of the plaintiff against the defendant Hair for the sum of one-half of his damages for the very injuries claimed in case No. 407.
Case No. 407 then proceeded to trial before a jury and judgment was entered in favor of plaintiff for $12,000 against the defendants Colquett and Wishum. Judgment was reversed on appeal to the Supreme Court of Alabama and on remandment, trial of the case resulted in favor of Jimmy D. Williams against Colquett and Wishum in the sum of $5,000. No appeal was taken from this judgment.
However, Colquett and Wishum filed a bill to enjoin the collection of the judgment in case No. 407. This bill was designated No. 46. The court dismissed this bill saying
Thereupon the bill now in question was filed by the complainants.
The bill further alleges that despite protestations of the defendant Hair that there was no understanding or agreement of any character between him, his attorney or his insurance company with the plaintiff in connection with the settlement of his liability, the defendant Hair by his alleged actions collaborated with the plaintiff in an effort to fix liability against the defendants Colquett and Wishum in case No. 407. The complainants allege several circumstances indicating said collaboration. (1) At the time of the rendition of the judgment in case No. 593, the defendant Hair had an insurance policy and his liability for the payment of the judgment against him in the amount of $8,100 was fully covered by the policy. The defendant Hair was a solvent person and had ample property out of which the judgment could be paid. However, the plaintiff instructed the clerk to withhold the issuance of execution on the judgment rendered in case No. 593 against the defendant Hair and no writ of execution was ever issued thereon, nor was any payment thereof reflected on the records of the court. (2) The answer filed in case No. 593 was prepared by the plaintiff's attorney. The case was heard on the same day the complaint was filed by agreement of the parties without a jury. Neither the defendant nor his attorney was present and no defense was offered in the suit. (3) Prior to the rendition of the judgment in the case No. 593, the father of the plaintiff had pending a suit for the loss of services of his minor son because of the injuries alleged in cases No. 593 and 407. The United States Fidelity & Guaranty Company as the insurer of the defendant Hair paid the plaintiff's father in pro tanto settlement of his claim the sum of $1,900. This policy of insurance was for $10,000. Thus there was $8,100 remaining coverage and this was the exact amount entered by the court in case No. 593. (4) The attorneys for the plaintiff and defendant Hair acted jointly in vacating and setting aside the *367 final judgment rendered in case No. 593 and restored the same to the trial docket. This left the defendant Hair unprotected for any judgment that might be rendered against him in excess of $8,100 because of plaintiff's said injuries. On the other hand, the plaintiff was apparently confident of collecting $8,100. A satisfaction of the judgment for $5,000 against the complainants in case No. 407, being for the full amount of plaintiff's injuries, would be a satisfaction and discharge of any claim he might have against the defendant Hair for the $8,100. (5) The United States Fidelity & Guaranty Company set aside a reserve of $8,100 to pay the plaintiff's claim against it as evidenced by the judgment and agreed to pay such amount to the plaintiff in full discharge of its liability to him at such time as the plaintiff called upon it to pay such amount, regardless of the outcome of the issues in case No. 407, and the bill alleges that the setting aside of the judgment in case No. 593 was a mere sham and facade behind which the plaintiff, the defendant Hair and his insurer, were moving in order to first collect the $5,000 judgment against defendants Colquett and Wishum and thereafter consummate the settlement between the plaintiff and the defendant Hair in the sum of $8,100 according to a prior understanding between them and thereby afford the plaintiff a double recovery.
The bill alleges in the alternative that at the time of the trial of case No. 407, there was in truth and in fact a pro tanto settlement between the plaintiff on the one hand and Hair and his insurer on the other, for the same injuries claimed in both of said suits and that from the evidence transpiring since the rendition of the final judgment in each of said cases, there appears manifest collusion between the plaintiff and the said Hair and his insurer, the respondent United States Fidelity & Guaranty Company to subject Colquett and Wishum to an inequitable collection of the judgment rendered against them in case No. 407 and that the said parties have, by such collusion prevented Colquett and Wishum from asserting such pro tanto settlement in their defense of case No. 407. After the plaintiff's disability of non-age was removed by court order, it is alleged that the United States Fidelity & Guaranty Company actually paid the plaintiff the sum of $8,100 in full satisfaction of his claim against defendant Hair and that such payment was made pursuant to the collusion and in final consummation thereof.
The bill further alleges that to allow the plaintiff to collect the $5,000 judgment against Colquett and Wishum would allow him a double recovery for his injuries without affording them the right to plead a pro tanto settlement in case No. 407 or to have the amount of $8,100 applied by the court as a set-off in satisfaction of the judgment against them. The bill further alleges that the payment to and acceptance by the plaintiff of the sum of $8,100 under the circumstances alleged should and does constitute an equitable satisfaction of the judgment in case No. 407 against Colquett and Wishum. The bill prayed that a temporary in junction or restraining order be issued against plaintiff Williams restraining him from enforcing the collection of the judgment against Colquett and Wishum. The bill also prayed that upon a final hearing, the court would order that the $8,100 received by Williams be applied in full satisfaction of the judgment against Colquett and Wishum and that the plaintiff be permanently enjoined and restrained from taking any action to enforce the judgment against Colquett and Wishum in case No. 407.
I. It is earnestly argued by the appellant that there is no equity in the bill because there is a plain and adequate remedy at law. Before coming to this question we think it well to make some preliminary observations. This case is before this court on an appeal from a decree of the equity court refusing to dissolve a temporary injunction. It is well settled that a motion to dissolve an injunction should be granted where there is a want of equity in the bill of complaint. In other words the *368 motion to dissolve the temporary injunction tests the equity of the bill. Woodward v. State, 173 Ala. 7, 55 So. 506; Corte v. State, 259 Ala. 536, 67 So. 2d 782.
It is also well settled that while a party is entitled to full compensation for his injuries there can be only one satisfaction therefor. This court has repeatedly recognized the universal rule that there can be but one satisfaction for an injury. Steenhuis v. Holland, 217 Ala. 105, 115 So. 2; Brooks v. City of Birmingham, 239 Ala. 172, 194 So. 525. Furthermore, a person injured by two or more joint tort-feasors may accept partial satisfaction and release one or more pro tanto and continue to proceed against one or more of the others. Steenhuis v. Holland, supra. If a plaintiff recovers judgment against one of the joint tort-feasors and obtains satisfaction, this operates as a discharge of the others and where separate suits are filed against several joint tort-feasors and one suit is settled and the defendant discharged, the entire cause of action is discharged, there can be no recovery in the other suit. Huey v. Dykes, 203 Ala. 231, 82 So. 481. As we have said a person injured by joint tort-feasors may accept partial satisfaction and release one or more pro tanto and proceed against the others. However, the tort-feasors not so released may plead the release as a bar to that amount paid by the released tortfeasor or may place it in evidence showing payment for the one injury up to the amount shown in the release. Steenhuis v. Holland, supra; Wright v. McCord, 205 Ala. 122, 88 So. 150. Any amount received by a party as compensation for his injuries, whether under a covenant not to sue, a conditional release or any other kind of arrangements, should be applied as a pro tanto reduction upon damages recoverable from another joint tort-feasor. Steenhuis v. Holland, supra; McCoy v. Louisville & N. R. Co., 146 Ala. 333, 40 So. 106.
Returning now to the proposition of the appellant that there is an adequate remedy at law, the appellant insists that there is an adequate remedy at law available to Colquett and Wishum under Title 13, Section 128, 1940 Code of Alabama and under Title 7, Section 568, 1940 Code of Alabama. However, relief under Section 568 or under Section 128 must either rest on facts occurring subsequent to judgment such as satisfaction or if it relates to antecedent facts, must show fraud in the decree or want of jurisdiction in the court apparent on the face of the record. Wallace v. F. W. Cook Brewing Company, 196 Ala. 245, 72 So. 93; Gibson v. Elba Exchange Bank, 266 Ala. 426, 96 So. 2d 756. Under the allegations of the bill it is shown that there was an arrangement, scheme or subterfuge which culminated in the respondent Williams obtaining the sum of $8,100 from the insurance carrier of the joint tort-feasor Hair. Accordingly, the respondent Williams now seeks to prevent complainants from using as a set-off against the judgment obtained by Williams against these complainants the sum of $8,100 paid to Williams. We will not here repeat the various allegations of the bill which tend to show in detail the alleged devious and collusive dealings leading up to this result. These alleged collusive dealings appear in the bill of complaint as hereinabove set forth. We must assume at this state of the proceedings that the allegations of the bill are true. Accordingly, the equity of the bill in our judgment is clear and unmistakable.
It is true that the suit was brought by Williams pro ami when Williams was a minor. However, the bill alleges that Williams had his disability of non-age removed and subsequent thereto he received the sum of $8,100 in accordance with his previous arrangement with the other respondents. Accordingly, it appears that Williams confirmed the pre-existing arrangement after becoming of legal age. This court has held that contracts of infants are capable of confirmation by acts done in pursuance of them after the infant becomes of age without any new consideration. Sims v. Gunter, 201 Ala. 286, 78 So. 62; Commercial Credit *369 Co. v. Ward and Son Auto Co., 215 Ala. 34, 109 So. 574.
We have said that the equity of the bill is clear. In the case of Prestwood v. Bagley, 227 Ala. 316, 149 So. 817, 818, this court said:
See also Hanover Fire Insurance Company v. Street, 228 Ala. 677, 154 So. 816; Timmerman v. Martin, 234 Ala. 622; 176 So. 198.
In brief the complainants (appellees) could not have pleaded the arrangement or settlement in their defense of case No. 407 because
(a) the judgment in case No. 593This judgment was later declared a nullity. Colquett, et al. v. Jimmy D. Williams, pro ami, et al., 269 Ala. 383, 113 So. 2d 347was not in itself a discharge or accord and satisfaction, either pro tanto or total, without payment, which had not been made at the time of the trial of case No. 407, and
(b) the original arrangement between Williams and Hair and his insurer did not ripen or mature as a fixed obligation until after the judgment for $5,000 entered against the complainants, thereby leaving Complainants without means of protection except by this proceeding for injunction.
We might further say that the basis of the bill of complaint in this case is not merely an alleged agreement but an alleged arrangement being perpetrated for the purpose of denying to claimants their lawful right of set-off and subverting the principle of law that there can be only one satisfaction for one injury. The matter set forth in the bill of complaint with reference to the arrangement could not have been pleaded in case No. 407 because the activating part of the alleged arrangement did not occur until after the conclusion of the trial, the verdict of the jury and the rendition of the judgment. It should be noted here that the complainants, according to the allegations of the bill, made diligent effort to discover such defense but without success. In the case at bar the respondent Williams, according to the allegations of the bill, has already received $8,100 from Hair's insurer which is $3,100 in excess of the amount set by the jury in case No. 407 without their knowledge of any other compensation. Accordingly Williams has already received satisfaction and a court of equity will not permit a further payment to him.
II. The bill shows that prior to the institution of the present suit a suit designated as No. 46 was filed in the Circuit Court of Covington County in Equity. Suit No. 46 was filed by these appellees as complainants against Williams seeking to enjoin him from collecting the $5,000 judgment in case No. 407. A copy of the original bill in suit No. 46 is set out as an exhibit to the present bill and made a part of the present bill. We should keep in mind the allegations of the bill in suit No. 46 as contrasted with the allegations of the instant bill. The allegations of the two bills are similar with one important exception. The bill in case No. 46 did not allege on information and belief that Williams had been paid the sum of $8,100 in consummation of the alleged arrangement because this had not occurred at that time. In suit No. 46 the court granted a temporary injunction as prayed for. Later the bill was *370 amended by alleging that since the filing of the original bill, Williams had obtained a proper court decree removing his disability of non-age and on information and belief further alleged that he had thereupon been paid $8,100 by Hair's insurer in consummation of the alleged arrangement. Thereafter on June 10, 1960 on appellant's motion the court dissolved the temporary injunction in suit No. 46 and dismissed the bill in that case.
It is sufficient to note that the court dealt with the amendment to the bill and held that the allegations relative to the payment of $8,100 involved matters occurring since the filing of the bill and could not relate back so as to give the bill equity. The decree specifically stated:
The foregoing was equivalent to a dismissal of the bill without prejudice and constituted an invitation to the appellees to file a new bill. Newton v. Kemper, 66 W.Va. 130, 66 S.E. 102. This was immediately done by filing the bill in the instant case.
The position is taken that the appellees were guilty of laches in filing the present bill. The position is taken that a complainant who waits four years after the rendition of a judgment to seek an injunction against its enforcement because of alleged facts occurring several years before is guilty of laches. As a matter of fact, however, the appellees did not wait four years to seek relief in this matter but on the contrary filed their bill in equity in suit No. 46 to enjoin the collection of the judgment in suit No. 407 on August 3, 1956. This was only a short while after the judgment in case No. 407 on May 4, 1956. When the bill in case No. 46 was dismissed the present bill of complaint was immediately filed as we have shown upon invitation of the court, as shown by its decree. There certainly is no laches here.
Nor can it be said that the matters embraced in the present suit are res judicata because they were determined by the decree in equity case No. 46. It is sufficient to say that the defense of res judicata to be available must be raised by plea and cannot be raised by motion or demurrer unless the bill affirmatively shows that the issues have been passed on in another proceeding. Ellison v. Norman, 256 Ala. 610, 56 So. 2d 654; Gunter et al. v. Frix et al., 265 Ala. 576, 93 So. 2d 423. As we have pointed out the effect of the order or decree in equity suit No. 46 was to dismiss the original bill without prejudice. Accordingly, the matters embraced in the present bill have not been adjudicated.
III. It is argued that a convicted tort-feasor is a wrongdoer and has no standing in court and therefore the present bill is without equity for showing on its face that complainants have not come into court with clean hands. The fact that a judgment for $5,000 has been rendered against the appellees in favor of the appellant in a tort action does not soil the hands of the appellees in this proceeding. The cases of Gobble v. Bradford, 226 Ala. 517, 147 So. 619 and Montgomery v. Wadsworth, 226 Ala. 667, 148 So. 419, cited by appellant in support of his contention have no bearing on this case. Those cases simply hold that there can be no right of contribution between joint tort-feasors. The complainants (appellees) in the present case are not seeking contribution from a joint tort-feasor.
We conclude after careful consideration of the various matters urged by the appellant that the decree of the lower court be upheld.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | September 21, 1961 |
fd671178-4d6a-43b2-8870-28a6d60f4536 | Liao v. Harry's Bar | 574 So. 2d 775 | N/A | Alabama | Alabama Supreme Court | 574 So. 2d 775 (1990)
Young Yu-Mei LIAO, as curator of the Estate of Kang-Ling Liao
v.
HARRY'S BAR, et al.
89-1372.
Supreme Court of Alabama.
December 28, 1990.
*776 David M. Andres, Tuscaloosa, for appellant.
Harry M. Renfroe, Jr. of Mountain & Mountain, Tuscaloosa, for appellees James Harry Hammonds and Harry's Bar.
Carole W. Delchamps, Tuscaloosa, for appellees Steve and Marcia Baten.
HOUSTON, Justice.
On February 28, 1987, Kang-Ling Liao suffered severe and permanent injuries when the automobile in which she was riding was struck by an automobile that was owned by Eric Blaylock and that was being driven by Christopher King.[1] Blaylock was *777 riding in the automobile with King at the time of the collision; both Blaylock and King were intoxicated.
Kang-Ling Liao's mother, Young Yu-Mei Liao, as curator for her daughter's estate, sued King, alleging that he had acted negligently or wantonly in operating the automobile and that his actions were the proximate cause of her daughter's injuries. She sued Blaylock, alleging that he had negligently entrusted his automobile to King and that, in doing so, he had also caused her daughter's injuries. The plaintiff also sued Harry's Bar and the Bar's owner, James Harry Hammonds (Harry's Bar and Hammonds will hereinafter be referred to as "Harry's Bar" or "the bar"), under the cause of action created by Ala. Code 1975, § 6-5-71, alleging that the bar had illegally sold or furnished alcoholic beverages to King and Blaylock and that, in consequence thereof, her daughter had been injured. The plaintiff sued Steve and Marcia Baten and Jeffrey Mitchell, also under § 6-5-71, alleging that they had illegally furnished alcoholic beverages to Blaylock; that, consequently, Blaylock had negligently entrusted his automobile to King; and that, as a result, her daughter had been injured. The plaintiff reached a pro tanto settlement with Blaylock and King, based on their combined insurance policy limits of $375,000, and they were dismissed from the suit.[2] Blaylock and King are not parties to this appeal. Summary judgments were later entered in favor of the remaining defendants. The plaintiff appealed. We affirm.
The undisputed material facts are as follows: Several hours prior to the accident, King met his friend Blaylock at Harry's Bar, where each of them drank several beers while watching a basketball game on television. King, whose date of birth is March 13, 1966, was 13 days short of his 21st birthday. Blaylock, whose date of birth is March 30, 1967, was 30 days short of his 20th birthday. Blaylock did not directly purchase beer from the bar; instead, he gave his money to other people and they purchased the beer for him. Blaylock observed King drinking beer at the bar; however, he did not pay any attention to how much beer King actually drank. While they were in the bar, neither King nor Blaylock acted in such a manner as to appear to be intoxicated. Eventually, King and Blaylock left Harry's Bar and drove to a wedding reception at the home of Steve and Marcia Baten, which the Batens were hosting in honor of Jeffrey Mitchell and his bride, Laurie. King and Blaylock had been invited by Laurie; however, neither of them had been invited by Mitchell. King and Blaylock were, at best, casual acquaintances of Mitchell's. Mitchell had seen King four or five times prior to the reception, one of those times being in a bar, and he had seen Blaylock only once prior to the reception, but had never spoken with him. Mitchell did not know, nor did he have any reason to know, that Blaylock was 19 years of age.
Mitchell provided champagne for the guests at the reception. The Batens did not provide any alcoholic beverages. While at the reception, King and Blaylock each drank four to six glasses of champagne. Blaylock observed King drinking champagne at the reception; however, he did not observe exactly how much champagne King drank. King did not appear to be intoxicated at the reception. Mitchell did not personally serve any champagne to King or Blaylock; he did not observe either King or Blaylock drinking champagne; and he did not notice how long King and Blaylock remained at the reception. Upon leaving the reception, Blaylock allowed King to drive Blaylock's automobile. The accident occurred shortly thereafter.
The summary judgments for the defendants in this case were proper only if there *778 were no genuine issues of material fact and the defendants were entitled to judgments as a matter of law. Rule 56, A.R.Civ.P. The burden was on the defendants to make prima facie showings that no genuine issues of material fact existed and that they were entitled to judgments as a matter of law. If those showings were made, then the burden shifted to the plaintiff to present evidence creating a genuine issue of material fact, so as to avoid the entry of judgments against her. DuPont v. Yellow Cab Co., 565 So. 2d 190 (Ala.1990). In determining whether there were genuine issues of material fact, this Court must view the evidence in a light most favorable to the plaintiff and must resolve all reasonable doubts against the defendants. Because this action was pending on June 11, 1987, the applicable standard of review is the "scintilla of evidence" rule. Ala.Code 1975, § 12-21-12.
Discussion concerning the propriety of the summary judgments:
Section 6-5-71 reads, in pertinent part, as follows:
This section created a civil cause of action against a person who, contrary to law, causes the intoxication of another by providing the other person with alcoholic beverages, when the plaintiff is injured because of the intoxication. The term that most narrowly limits this cause of action is the requirement that the furnishing of the alcoholic beverages be "contrary to ... law." Martin v. Watts, 513 So. 2d 958 (Ala. 1987).
Ala.Code 1975, § 28-3-49(a), states that the rules promulgated by the Alabama Alcoholic Beverage Control Board "have the full force and effect of law." Chapter 20-X-6.02(4) of the Rules of the Alabama Alcoholic Beverage Control Board provides: "No on premise licensee may serve a person any alcoholic beverage if such person is acting in such a manner as to appear to be intoxicated." See Vol. 1, Alabama Administrative Code.
Ala.Code 1975, § 28-3A-25, in pertinent part, provides:
Ala.Code 1975, § 28-3-1, in pertinent part, states:
The plaintiff contends that the summary judgment for Harry's Bar was improper because, she says, the record contains at least a scintilla of evidence that it sold or furnished beer to King; that King was visibly intoxicated at the time the beer was sold or furnished to him; that the sale or furnishing of the beer to King was in violation of Chapter 20-X-6.02(4); and that the sale or furnishing of the beer to King caused or contributed to her daughter's death. The plaintiff also contends that there is at least a scintilla of evidence that Harry's Bar sold or furnished beer to Blaylock; that Blaylock was visibly intoxicated at the time the beer was sold or furnished to him; that the sale or furnishing of the beer to Blaylock was in violation of Chapter 20-X-6.02(4); that the sale or furnishing of the beer to Blaylock, who was approximately one-month short of his 20th birthday on the day of the accident, was also in violation of § 28-3A-25(a)(3);[4] and that, in consequence thereof, Blaylock negligently entrusted his automobile to King when they left the reception.
Harry's Bar contends that the summary judgment in its favor was proper. Pointing out that the undisputed evidence shows that neither King nor Blaylock ever became visibly intoxicated while at the bar, it argues that the sale or furnishing of the beer to them was not contrary to Chapter 20-X-6.02(4). Harry's Bar also points out that the undisputed evidence shows that Blaylock was not directly sold or furnished alcoholic beverages while he was at the bar. It argues that, as a result, there was no violation of § 28-3A-25(a)(3).
Harry's Bar is correct in arguing that the undisputed evidence shows that although King and Blaylock drank beer at the bar, neither of them ever became visibly intoxicated while there. Consequently, no violation of Chapter 20-X-6.02(4) was shown.
Contrary to its assertions, however, Harry's Bar did not make a prima facie showing that no beer was sold or furnished to Blaylock in violation of § 28-3A-25(a)(3). It is true that the bar presented evidence tending to show that Blaylock gave his *780 money to other people and that those people purchased the beer for him. It is also true that this evidence constituted a prima facie showing that no beer was "directly" sold or furnished to Blaylock. The plaintiff presented no evidence tending to show otherwise; however, in Laymon v. Braddock, 544 So. 2d 900 (Ala.1989), this Court explained that when alcohol is being purchased the licensee has a duty to ascertain that the purchaser is not underage. The Court further noted that a licensee cannot escape liability for selling or furnishing alcohol to an underage person by participating in a "second-party sale subterfuge that was known to, and ... participated in by," the licensee. 544 So. 2d at 903. Because Harry's Bar made no prima facie showing that it did not participate in such a subterfuge, the burden never shifted to the plaintiff to submit evidence that it did. Accordingly, the summary judgment for Harry's Bar could not have been properly based on the ground that no violation of § 28-3A-25(a)(3) occurred.
However, as previously noted, Harry's Bar did establish that King never became visibly intoxicated, either at the bar or at the reception. Furthermore, it is undisputed that Blaylock paid no attention to the amount of beer that King drank at the bar or to the amount of champagne that he drank at the reception. Thus, the undisputed evidence shows only that King never became visibly intoxicated while he was with Blaylock and that when he left the reception, Blaylock was not aware of exactly how much beer King had drunk at the bar or how much champagne he had drunk at the reception. To prevail against Harry's Bar under § 6-5-71, the plaintiff had to present evidence tending to show that her daughter's injuries were in consequence of Blaylock's negligent entrustment of his automobile to King, and that Blaylock's negligence in entrusting the automobile to King had been induced by a state of intoxication brought on by the beer that Blaylock had illegally consumed at Harry's Bar. To succeed under a cause of action for negligent entrustment, however, a plaintiff must prove that the entruster knew or had a reason to know of the entrustee's incompetent condition or proclivities. Brown v. Vanity Fair Mills, Inc., 291 Ala. 80, 277 So. 2d 893 (1973). Even viewing the evidence in the light most favorable to the plaintiff, as our standard of review requires, we conclude that no reasonable inference can be drawn that Blaylock knew, or should have known, when he and King left the reception that King was not sufficiently alert to operate an automobile. The summary judgment for Harry's Bar was, therefore, proper.
The plaintiff contends that the summary judgment entered in favor of the Batens was also improper because, she argues, there is at least a scintilla of evidence that they illegally furnished champagne to Blaylock during the reception and that, in consequence thereof, Blaylock negligently entrusted his automobile to King. The Batens maintain that the undisputed evidence shows that although they hosted the wedding reception, they did not provide the champagne. Thus, they argue, the summary judgment in their favor was also proper.
There are no facts to support an allegation that the Batens provided any of the champagne consumed by the guests at the reception. One of the essential elements of a cause of action under § 6-5-71 is that the defendant provided alcoholic beverages to the intoxicated person who caused the injury. The undisputed evidence shows that the Batens did not provide the champagne for the reception; therefore, the summary judgment in their favor was proper. Martin v. Watts, supra; Smoyer v. Birmingham Area Chamber of Commerce, 517 So. 2d 585 (Ala.1987).
Furthermore, we note that even if the Batens had furnished the champagne, the lack of any evidence tending to show that Blaylock knew, or should have known, when he left the reception that King was incompetent to operate an automobile would be just as fatal to the plaintiff's theory of recovery against the Batens as it was to her theory of recovery against Harry's Bar.
*781 We also note that our research has failed to discover any constitutional provision or any statute that makes it a criminal offense for a nonlicensee/social host to furnish alcoholic beverages to a person 19 years of age. Therefore, we must again conclude that even if the Batens had provided the champagne, the summary judgment in their favor would be proper because there would have been no violation of law.
The plaintiff's reliance on Martin v. Watts, supra, in support of her argument that the furnishing of alcoholic beverages by a nonlicensee/social host to a person 19 years of age constitutes a violation of law, is misplaced. In that case, this Court was concerned with the willful furnishing of alcoholic beverages by the defendants to two high school students, one 17 years of age and the other 18 years of age. The furnishing of the alcoholic beverages to those students was a clear violation of law. See Ala.Code 1975, § 12-15-13 ("Causing, etc., of delinquency, dependency or need of supervision of children").[5] However, *782 § 12-15-13 is not applicable when alcoholic beverages are furnished to a person 19 years of age. See § 12-15-1(3), which does not include a person 19 years of age within the definition of a "child."
The summary judgment for the Batens was proper.
The plaintiff's theory of recovery against Mitchell is essentially the same as her theory of recovery against the Batens. That is, she contends that Mitchell furnished the champagne to Blaylock and that, in consequence thereof, Blaylock negligently entrusted his automobile to King. Acknowledging that he furnished champagne to the guests at the reception, Mitchell contends that the summary judgment in his favor was nonetheless proper because, he says, there is no evidence tending to show that he had a duty to prevent Blaylock from drinking it.
As previously noted, Mitchell's furnishing of champagne to Blaylock was not a violation of law; therefore, the plaintiff's claim based on § 6-5-71 must fail. Furthermore, as previously noted, the evidence is undisputed that Blaylock neither knew nor had sufficient reason to know when he left the reception with King that King was incompetent to operate an automobile; thus, the plaintiff's failure to submit proof of one of the essential elements of a negligent entrustment cause of action also required the entry of a judgment for Mitchell as a matter of law.
The summary judgment for Mitchell was proper.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] The driver of the automobile in which Ms. Liao was riding, Chao Heng Peng, was killed. The accident rendered Ms. Liao permanently brain-damaged and comatose.
[2] King was convicted of manslaughter in connection with the death of Chao Heng Peng and of second degree assault in connection with Ms. Liao's injuries.
[3] Section 26-1-1 reads, in pertinent part, as follows:
"(a) Any person in this state, at the arrival at the age of 19 years, shall be relieved of his disabilities of minority and thereafter shall have the same legal rights and abilities as persons over 21 years of age. No law of this state shall discriminate for or against any person between and including the ages of 19 and 21 years solely on the basis of age.
"(b) This section shall also apply to any person who arrived at the age of 19 and 20 years before July 22, 1975, but shall not abrogate any defense or abridge any remedy available to him prior to such date.
"(c) All laws or parts of laws which read `under the age of 21 years' hereafter shall read `under the age of 19 years.' Wherever the words `under the age of 21 years' appear in any law limiting the legal rights and abilities of persons under such age, such words shall be construed to mean under the age of 19 years."
Section 28-1-5 provides:
"Notwithstanding the provisions of section 26-1-1, it shall be unlawful for a person less than 21 years of age to purchase, consume, possess or to transport any alcohol, liquor or malt or brewed beverages within the state of Alabama. Notwithstanding any other provision of this section, it shall not be unlawful for any alcoholic beverage control board licensee to employ any person under the legal drinking age to work, provided there is an adult in attendance at all times. It shall be permissible to employ persons in an on-premise licensed establishment under legal drinking age such as professional entertainers, show people, musicians, cashiers, hostesses, ushers, waiters and waitresses, busboys or girls, and the like, provided they do not serve, dispense or consume alcoholic beverages and there is an adult in attendance at all times.
"Whoever violates this section shall be fined not less than $25.00 nor more than $100.00, or imprisoned in the county jail for not more than 30 days or both; provided further, that juvenile offenders shall not be held in the county jail, but shall be held, either before or after sentencing, in a juvenile detention facility pursuant to the guidelines of the department of youth services, which shall be separate and apart from adult offenders.
"Persons 19 years of age or older prior to October 1, 1985, are hereby expressly exempt from the provisions of this section."
[4] Blaylock was not 19 years of age or older prior to October 1, 1985; King was. Therefore, the sale or furnishing of the beer to King was not in violation of § 28-3A-25(a)(3).
[5] After noting that the furnishing of the alcoholic beverages to the students was a "clear violation of law," the Court stated:
"The legislature has prohibited all use of alcoholic beverages by minors. Code 1975, § 28-3A-25(a)(19). Pullen and Bradford were both minors when the lake party was held. See Code 1975, § 28-3A-2(18); cf. Acts 1986, No. 86-212, § 2, effective April 1, 1986. It was the clearly stated intent of the legislature that these minors not have access to alcoholic beverages. It has long been recognized that `The sale or furnishing of prohibited alcoholic beverages to a minor is ... unlawful whether made by a licensee in a wet county, or by a nonlicensee in any territory in this State.' Phillips v. Derrick, 36 Ala.App. 244, 54 So. 2d 320 (1951)."
It is true that the Legislature has clearly stated its intent that a person under 21 years of age not have access to alcoholic beverages, unless that person was 19 years of age or older prior to October 1, 1985. Section 28-3A-25(a)(19) makes it unlawful for a person of such age to "attempt to purchase, to purchase, consume, possess or to transport any alcoholic beverages within the state." See, also, § 28-1-5, supra, at n. 3. However, neither § 28-3A-25(a)(19) nor § 28-1-5 imposes criminal penalties on a nonlicensee/social host for furnishing alcoholic beverages to a person 19 years of age. Our responsibility is to apply these sections according to the intent of the Legislature. In discerning that intent, we must look solely to the language of these sections, unless it appears that the wording is ambiguous or leads to a result that the Legislature could not have intended. Alabama Industrial Bank v. State ex rel. Avinger, 286 Ala. 59, 237 So. 2d 108 (1970). The wording of §§ 28-3A-25(a)(19) and 28-1-5 is not ambiguous. These sections merely make it unlawful for a person under the age of 21 years to "attempt to purchase, to purchase, consume, possess or to transport any alcoholic beverages," § 28-3A-25(a)(19), or to "purchase, consume, possess, or to transport any alcohol, liquor or malt or brewed beverages," § 28-1-5, within this state, unless that person was 19 years of age or older prior to October 1, 1985. It is not for us to surmise why the Legislature has chosen not to impose criminal penalties on a nonlicensee /social host for furnishing alcoholic beverages to a person 19 years of age or older, when it could have easily done so. It would be a violation of Ala. Const., Art. I, § 7 ("Accusation, arrest, and detention; punishment limited to laws established prior to offense"), and Art. Ill, § 43 ("Separation of powers"), for this Court to construe §§ 28-3A-25(a)(19) and 28-1-5 to impose criminal penalties on a nonlicensee/social host for gratuitously furnishing alcoholic beverages to a person under 21 years of age, unless that person was 19 years of age or older prior to October 1, 1985.
We also point out that Phillips v. Derrick, 36 Ala.App. 244, 54 So. 2d 320 (1951), cited in Martin v. Watts, was not apt authority for the proposition that a non-licensee/social host can be liable for furnishing (other than by a sale) alcoholic beverages to a minor. Phillips v. Derrick involved a claim for damages by Phillips under § 121, Title 7, Code of Alabama 1940 (now § 6-5-71), for the alleged sale of alcoholic beverages by Derrick to a minor at the Stephens Cafe in Huntsville. Derrick contended that the trial court had correctly granted his motion to exclude the evidence because the plaintiff had failed to present evidence tending to show that he was a licensee, as alleged in the complaint. The Court of Appeals stated as follows:
"It was not necessary for the plaintiff to aver that the [defendant was a licensee] where the complaint showed that the person to whom the beverage was sold was a minor, for such a sale is in contravention of law by whomsoever made. Sale of intoxicating beverages by a licensed dealer to a minor is unlawful under the provisions of Section 36(2), Title 29, Code of Alabama 1940, and any sale of such beverages, other than a lawful sale by a licensed dealer in a wet county is illegal. The sale or furnishing of prohibited alcoholic beverages to a minor is therefore unlawful whether made by a licensee in a wet county, or by a nonlicensee in any territory in this State."
36 Ala.App. at 246, 54 So. 2d at 322.
A fair reading of the case reveals that the court in Derrick was in no way concerned with whether it was a violation of law for a nonlicensee/ social host to furnish (other than by a sale) alcoholic beverages to a minor. The Court noted that if Derrick was a licensee and had sold the alcoholic beverages to the minor, then he had violated § 36(2), Title 29, Code of Alabama 1940, and that if he had not procured a license, then he was operating in violation of the state's liquor licensing laws. | December 28, 1990 |
4cd813a9-b42f-4aee-ba7a-adb362652f68 | Major v. Standard Accident Ins. Co. | 128 So. 2d 105 | N/A | Alabama | Alabama Supreme Court | 128 So. 2d 105 (1961)
C. J. MAJOR et al.
v.
STANDARD ACCIDENT INSURANCE COMPANY.
1 Div. 872.
Supreme Court of Alabama.
January 12, 1961.
Rehearing Denied March 30, 1961.
*106 Frank A. Massa, Robt. E. Hodnette, Jr., and Ross Diamond, Jr., Mobile, for appellants.
W. C. Boone, Jr., and Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
LAWSON, Justice.
This appeal is taken to reverse the declaratory judgment rendered in the Circuit Court of Mobile County, in Equity, in favor of the appellee insurance company.
The insurance company on May 3, 1958, issued to the appellant, C. J. Major, an automobile liability policy which is called a "non-owner" policy. It carried an endorsement that it did not apply:
C. J. Major while operating a 1955 Pontiac automobile during the life of the policy was involved in a collision with an automobile driven by Mrs. Sermetto P. McKleroy. Immediately following the collision, the automobile which Mrs. McKleroy was driving ran into and damaged an office building used by Mobile Federal Savings and Loan Association.
The policy obligated the insurance company, with respect to such insurance as is afforded by the policy, to defend a suit against the insured and to pay a recovery within specified limits.
The insurance company filed its petition for declaratory judgment on the equity side of the Circuit Court of Mobile County to obtain a declaration of rights under the policy issued to C. J. Major. In addition to the insured, the petition named as respondents Mrs. McKleroy, her husband, Virgil J. McKleroy, and the Loan Association.
The petition alleged, in substance, that C. J. Major was the owner of the automobile which he was driving at the time it collided with the automobile driven by Mrs. McKleroy and, hence, he was excluded from coverage under the aforementioned policy at the time of the collision. The relief asked was a declaration or declarations to the effect that the insurance company was under no obligation to the insured or to those who sustained injuries as a result of the collision because the automobile driven by insured belonged to him.
The loan association filed its answer on February 27, 1959, without endorsing thereon *107 a request for jury trial. C. J. Major filed his answer on March 11, 1959. He did not at that time demand a jury trial. The McKleroys filed their answer in open court on May 20, 1959, and placed thereon a request for a trial by jury. On the same day the loan association and C. J. Major filed separate written demands for a jury trial.
The insurance company's motion to strike the demands for jury trial was granted.
The trial was thereafter had to the court on the sole question as to the ownership of the Pontiac automobile driven by C. J. Major at the time it collided with the automobile driven by Mrs. McKleroy.
The court found: "* * * that at the time of the collision alleged in the Bill of Complaint respondent, C. J. Major, was the owner of the 1955 Pontiac in question, and thus was excluded from the coverage under the policy of insurance and the endorsement thereon, * * *."
On these findings a judgment was rendered for the insurance company.
The respondents have appealed to this court.
The threshold question on the appeal is whether it was error for the trial court to strike the demands for jury trial. We think it was.
There is no time prescribed by the Declaratory Judgment Law in which a demand for jury trial must be made. As to petitions for declaratory judgments filed on the law, side the defendant, no doubt, must make a written demand for a jury trial within thirty days after the perfection of service on him. Section 260, Title 7, Code 1940. But we have held that the provisions of § 260, Title 7, supra, do not ordinarily apply in equity. Isbell v. Perry, 263 Ala. 292, 82 So. 2d 633; Ex parte Spence, Ala., 122 So. 2d 594. We find no statute which fixes a time within which jury trials must be requested in all cases filed on the equity side and, as indicated above, we are aware of no such provision which relates specifically to petitions for declaratory judgment.
While petitions for declaratory judgment may be filed on the equity side, they are not "bills in equity" for that reason alone.
The parties have a right to trial by jury of all issues of fact presented in declaratory judgment proceedings on the equity side if the same issues would be so triable when presented in common-law actions. Tuscaloosa County v. Shamblin, 233 Ala. 6, 169 So. 234; Reed v. Hill, 262 Ala. 662, 80 So. 2d 728.
The issue in this case was the ownership of the car which C. J. Major was driving at the time of the accident. A determination of that issue was dependent in part, at least, on facts.
If there was no provision for declaratory relief in this jurisdiction, the issue in this case was one which could ultimately be presented by an action at law by the insured for breach of agreement of insurance. American Employers' Insurance Co. v. Liberi, 101 N.H. 480, 147 A.2d 306.
As to the insured, the appellant, C. J. Major, the justiciable controversy set forth in the petition to be adjudicated in the proceedings is such as has been traditionally and is now determined in trial by jury in courts of law. Johnson v. Fidelity & Casualty Co. of New York, 8 Cir., 238 F.2d 322.
We hold, therefore, that C. J. Major was entitled to a jury trial.
We come now to a consideration of the assignments of error which attack the action of the trial court in striking the jury demands filed by the McKleroys and the loan association.
Appellee relies upon our holding in Reed v. Hill, 262 Ala. 662, 80 So. 2d 728, which was applied in Thompson v. Hill, 263 Ala. 4, 81 So. 2d 531, a companion case.
*108 In the Reed case, supra, we held that Reed, the plaintiff in a tort action against the insured, Howell, did not have a right to a jury trial in a declaratory judgment proceeding instituted by the liability insurer to determine its liability to the plaintiff in the tort suit. The right of Howell to a jury trial was not before us in the Reed case or in the Thompson case.
In the Reed case we said [262 Ala. 662, 80 So. 2d 729], in part: "The only right we know that petitioner could have against the insurance carrier is the equity proceeding provided for in § 12, Title 28, Code 1940." Reed, therefore, was held not entitled to a jury trial because the record before us did not show any right on his part to proceed at law before a jury. The same situation existed in the Thompson case. The records in the Reed and Thompson cases did not contain the insurance policies.
But in this case the policy of insurance itself provides that "any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy."
Under this contract a like jurisdiction is conferred upon a court of law as is vested in a court of equity by § 12, Title 28, supra. Pennsylvania Thresherman & Farmers' Mut. Cas. Ins. Co. v. Crapet, 5 Cir., 199 F.2d 850, and Alabama cases there cited and relied upon.
It follows that the court erred in striking the jury demands of the McKleroys and of the loan association.
The declaratory judgment appealed from is reversed and this case is remanded for a jury trial.
Reversed and remanded.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | January 12, 1961 |
b2f6d087-3e9b-456a-a204-4421760b6b7a | Cleveland v. Central Bank of the South | 574 So. 2d 741 | N/A | Alabama | Alabama Supreme Court | 574 So. 2d 741 (1990)
H.B. CLEVELAND
v.
CENTRAL BANK OF THE SOUTH.
89-1361.
Supreme Court of Alabama.
December 7, 1990.
Rehearing Denied February 8, 1991.
*742 Ray O. Noojin, Jr., and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
Michael L. Edwards and Michael D. Freeman of Balch & Bingham, Birmingham, for appellee.
JONES, Justice.
This appeal is from a summary judgment in favor of Central Bank of the South ("Central Bank"), the executor and proponent of the last will and testament of H.F. Cleveland, in a will contest case brought by H.B. Cleveland, the son of the deceased.
Because the evidence, viewed most favorably to the non-movant, lacks the requisite degree of specificity with respect to the "testamentary capacity" ground for contest, we affirm that aspect of the judgment. However, because the evidence of record reveals genuine issues of material fact, suitable for jury resolution, with respect to the "undue influence" ground alleged by the contestant, we reverse that aspect of the judgment and remand the case for trial.
H.F. Cleveland ("Mr. Cleveland") executed his first will on September 10, 1985, bequeathing all of his personal belongings and insurance proceeds to his wife absolutely, if she survived him, and, if not, to his son, H.B. Cleveland ("contestant"). Mr. Cleveland further bequeathed $25,000 to his nephew William Hubbard Baxter, and $20,000 to his brother-in-law J. Pat McClendon. Mr. Cleveland devised and bequeathed the remainder of his property to the trustee of a revocable living trust that he had executed on July 8, 1985, and had later amended, along with the will, on April 30, 1986. Mr. Cleveland named Baxter, McClendon, and Central Bank as executors of his will.
On April 30, 1986, Mr. Cleveland also executed a codicil to his will, omitting the provision that left to Baxter and McClendon the $25,000 and $20,000, respectively. (The codicil made other changes, none of which is relevant here.) Mr. Cleveland died on July 9, 1988. On September 2, 1988, McClendon and Baxter each executed a waiver of notice and a renunciation, declining to serve as executors of Mr. Cleveland's will, leaving Central Bank as the sole executor.
Central Bank offered the will and codicil thereto for probate in the Probate Court of Jefferson County. H.B. Cleveland timely filed a contest to his father's will on the grounds that: (1) "the proposed Will was procured and induced through undue influence exercised upon the said Decedent by William Baxter, J.P. McClendon, and/or Central Bank of the South by and through its representatives and/or employees, and possibly others"; (2) the "decedent was mentally incompetent to make and execute a Will on the date the proposed Will is alleged to have been executed"; and (3) "the decedent was not of testamentary capacity on the date upon which the proposed Will was allegedly executed."
Upon motion by the contestant, the contest was transferred from the Jefferson Probate Court to the Jefferson Circuit Court. Central Bank requested that the *743 will be admitted to probate and moved for summary judgment. The trial court granted Central Bank's motion and entered a summary judgment for Central Bank, from which the contestant appeals.
Before we discuss the propriety of the summary judgment, we must first consider Central Bank's motion to strike certain documents attached to the appellant's brief. The contestant attached to his brief submitted to this Court a copy of the revocable living trust and the amendment thereto mentioned in Mr. Cleveland's will. Central Bank argues that this trust and amendment were never admitted as evidence in the trial court and, therefore, that these documents should be stricken on appeal. We agree and grant Central Bank's motion to strike.
This Court's consideration of a summary judgment is limited to a review of the record only, and we must review only those matters that were before the trial court when it made its decision. Barnes v. Liberty Mutual Ins. Co., 472 So. 2d 1041 (Ala. 1985). The trial court did not have the trust document or the amendment before it when it granted Central Bank's motion for summary judgment, and it would be improper for this Court to consider them now.[1] We will adhere to the longstanding rule, which states:
"`[T]he Supreme Court is remitted to the consideration of the record alone and absolute truth must be imputed to it, and if it is incomplete or incorrect, amendment or correction must be sought by appropriate proceedings rather than by impeachment on hearing in the appellate court, by statements in brief, by affidavits, or by other evidence not appearing in the record....'"
Clements v. Webster, 425 So. 2d 1058, 1061-62 (Ala.1982) (quoting Blanton v. Blanton, 276 Ala. 681, 683, 166 So. 2d 409, 411 (1964)).
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law. Rule 56(c) and (e), A.R. Civ.P. Once the movant has made a prima facie showing of the absence of a genuine issue of material fact, the burden is upon the nonmovant to establish the existence of a genuine issue of material fact. Berner v. Caldwell, 543 So. 2d 686 (Ala.1989). Assuming, then, that the movant met its "prima facie" burden, the trial court had to determine whether the contestant met his burden of showing that there existed substantial evidence of undue influence or of Mr. Cleveland's lack of testamentary capacity.
We are unable to discern substantial evidence of Mr. Cleveland's lack of testamentary capacity. Indeed, the only evidence tending to prove lack of mental capacity is to the effect that Mr. Cleveland, from time to time, suffered lapses of memory and that his mental agility was progressively decreasing, traits which, without more, are far too common in elderly persons for the law to accept as evidence of lack of testamentary capacity. Otherwise, a mere showing of those traits common to the aging process would suffice as an inference of lack of testamentary capacity. We decline to so hold.
Because we find the evidence to be of the quality necessary for raising factual issues with respect to the allegations of undue influence, we confine the balance of our discussion to that aspect of the judgment. Further, because the contestant's strongest evidence relates to his allegations of undue influence on the part of McClendon, we confine our review to that evidence.[2]
To establish undue influence, the evidence must show:
Pruitt v. Pruitt, 343 So. 2d 495, 499 (Ala. 1976) (citations omitted) (emphasis original). We have defined a "favored beneficiary":
"`One who, in the circumstances of the particular case, has been favored over others having equal claim to the testator's bounty. An unnatural discrimination, leading to a natural inference that advantage has been taken by one in position so to do; and shown to have been busy in getting such will executed.'"
Cook v. Morton, 241 Ala. 188, 192, 1 So. 2d 890 (1941) (quoted in Pruitt).
The evidence indicates a confidential relationship between Mr. Cleveland and McClendon. McClendon, Mr. Cleveland's brother-in-law, had a power of attorney for Mr. Cleveland. There is substantial evidence that McClendon took charge of the household affairs, wrote Mr. Cleveland's checks, and paid the nurses and other household employees on Mr. Cleveland's behalf. Sadie Sharp, Mr. Cleveland's nurse, testified in deposition that whenever anything needed to be repaired in the house Mr. Cleveland always told her to call McClendon. The evidence shows that McClendon knew the combination to the safe at Mr. Cleveland's manufacturing plant, and, according to Jerry Patterson, a plant employee, McClendon visited the plant on a daily basis, even though he had never been employed by Mr. Cleveland. Clearly, there was a trusting and confidential relationship between Mr. Cleveland and McClendon.
McClendon was a favored beneficiary. McClendon, in the original will, was designated to receive $20,000 upon Mr. Cleveland's death. Although this provision was omitted by the codicil, and the trust instrument was not admitted in evidence, multiple references were made throughout the record to the benefits that McClendon and institutions with which he had strong connections were to receive by virtue of the trust. Even without these references, however, there was sufficient evidence to submit to the jury the issue of undue influence, as it relates to McClendon. It is enough to satisfy the threshold "favored beneficiary" requirement that, at the time of Mr. Cleveland's execution of the challenged will, McClendon was a favored beneficiary, particularly when this issue is viewed in the light of the totality of the evidence.
Sadie Sharp further testified that McClendon came to the house every day to see Mr. Cleveland, many times coming from Mr. Cleveland's manufacturing plant. Sharp stated that Mr. Cleveland would give McClendon papers, such as receipts, from the plant. Jerry Patterson also testified that McClendon had access to the safe where all the financial documents, books, and records of the company were kept, and that Mr. Cleveland had nothing to do with keeping the books and records of the company. From the evidence, a jury could infer that McClendon dominated and controlled Mr. Cleveland during the last years of his life.
The contestant also provided evidence to meet the third prong required to establish undue influence: undue activity on the part of the dominant party. There was evidence that Mr. Cleveland's lawyers had telephone conversations with McClendon regarding the "plan of action" for Mr. Cleveland's will, and that McClendon did not want Mr. Cleveland's son to have any involvement with his father. Sadie Sharp testified that on one occasion, when she had called Mr. Cleveland's son about a repair in the house, McClendon became angry and refused to pay the repair bill out of Mr. Cleveland's funds, and it was ultimately paid by the son. This testimony, viewed with the evidence previously discussed, is sufficient to support an inference of undue activity on the part of McClendon.
Although Central Bank presented strong evidence in opposition to the contestant's claim of undue influence, a factual issue was raised by the evidence, and this issue *745 was prematurely disposed of by summary judgment. Therefore, that portion of the trial court's judgment pertaining to the issue of undue influence is reversed and the cause is remanded for a trial on that issue.
MOTION TO STRIKE GRANTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS and KENNEDY, JJ., concur.
HOUSTON, J., recused.
[1] Because the referenced materials were never presented to the trial court, and thus could not have been made a part of the record, Rule 10(f), A.R.App.P., is not applicable.
[2] To be sure, we are unable to find a single reference to any conduct on the part of Central Bank that even remotely suggests undue influence. | December 7, 1990 |
a72f9a2c-8593-4499-906c-58b2efe23b2f | Swanson v. Green | 572 So. 2d 1246 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 1246 (1990)
Charles SWANSON, et al.
v.
Charles GREEN, et al.
89-544.
Supreme Court of Alabama.
December 14, 1990.
Wayne P. Turner of Turner & Wilson, Montgomery, for appellants.
Julian L. McPhillips, Jr., of McPhillips, DeBardelaben & Hawthorne, Montgomery, for appellees.
PER CURIAM.
Charles and Mary Swanson, along with 32 other plaintiffs (hereinafter collectively "the Swansons"), appeal from the judgment of the trial court denying them a *1247 permanent injunction against the defendants, Charles and Annie Green and W.C. and Shirley Holladay. All of the parties are landowners in the Rolling Acres subdivision in Hope Hull, Alabama. The central issue is whether the defendants should be prohibited from operating commercial activities on their property because of a restriction contained in previous bonds for title on their property.
Truman and Woodard Luker, along with Epsi Dodd, formed Rolling Acres, Inc., in 1969 for the purpose of subdividing and selling lots on an 800-acre tract of land in Lowndes and Montgomery Counties. The Holladays acquired one lot in Rolling Acres on September 20, 1971, by way of a bond for title. That document contained a provision that read, "No commercial business shall be conducted on the property." They received a warranty deed on the lot from Rolling Acres on April 1, 1973; that conveyance, however, did not mention the restriction on commercial activity. The Holladays now operate an automobile repair business on their property.
Rolling Acres sold to T.S. and Emma Carpenter a lot through a bond for title on April 1, 1971, that contained the same restriction. The deed they obtained on the property on March 9, 1983, however, did not mention the restriction. The Greens purchased the Carpenters' lot in 1988 and received a warranty deed that also was silent regarding the restriction. The Greens now conduct a trucking business on their property. All of the above bonds for title and deeds were recorded in the Lowndes County Probate Court.
In denying the injunction the plaintiffs sought, the trial court entered the following order after an ore tenus hearing:
The Swansons argue that the Greens and the Holladays are bound by the restriction in their respective bonds for title and, thus, are precluded from conducting any business on their property. Specifically, they urge this Court to hold that restrictions in bonds for title are as binding as those in deeds. We decline to do so.
Black's Law Dictionary 162 (5th ed. 1979) defines a "bond for title" as "[a]n executory or incomplete sale. It is not a conveyance of legal title but only a contract *1248 to convey and may ripen into an equitable title upon payment of the consideration." (Citation omitted, emphasis added.) "A `bond for title' has the legal effect of a contract to convey land. Sanders v. Danley, 289 Ala. 324, 267 So. 2d 169 (1972); Wainwright v. Rolling Acres, Inc., 289 Ala. 593, 269 So. 2d 123 (1972)." Majors v. State ex rel. Payne, 336 So. 2d 1098, 1099 (Ala.1976). Thus, a deed, as a conveyance of title, is an entirely different instrument from a bond for title.
The Swansons' argument also ignores the doctrine of merger, which holds that, absent fraud or mistake, when a contract to sell or convey land is consummated by execution and delivery of a deed, that contract becomes "functus officio" and the deed becomes the sole memorial of the parties' agreement.[1]Thibodeaux v. Holk, 540 So. 2d 1378 (Ala.1989); Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160 (Ala. 1988). See, also, Cornelius v. Austin, 567 So. 2d 1245 (Ala.1990). Therefore, a deed, not a bond for title, determines the rights of the parties. Because none of the deeds involved here contains any restriction regarding commercial activity, the provisions in the bonds for title prohibiting business on the Holladays' property and the Greens' property "merged with" the deeds and are of no effect.
Notwithstanding the failure of the deeds to restrict the Holladays' and the Greens' use of their property, the Swansons could still succeed if they can prove that there was a common scheme to so restrict commercial activity at the inception of the Rolling Acres subdivision. Generally, a common building scheme may be evidenced by: 1) universal written restrictions in all of the deeds of the subdivision; 2) restrictions in a substantial number of such deeds; 3) the filing of a plat showing the restrictions; 4) actual conditions in the subdivision; or 5) acceptance of the actual conditions by the lot owners. 7 Thompson on Real Property § 3163, p. 124 (1962 repl. vol.).
The Swansons argue that the restrictions included in some deeds to Rolling Acres property are evidence of a common scheme. Scheuer v. Britt, 218 Ala. 270, 118 So. 658 (1928), cited by the trial judge, involved a restrictive covenant that limited all lots in a subdivision to residential purposes only. The plat for the subdivision specifically stated that the property sold was limited to residential uses. In addition, the advertisement in the local newspaper prior to the auction sale of the property contained a notice that the lots were to be sold for residential purposes only.
More importantly, all but one of the deeds in Scheuer contained the restrictive covenant, which led this Court to find that "substantially all" of the deeds to lots that had been purchased in the subdivision contained the restrictive covenant. 218 Ala. at 271, 118 So. at 659. Thus, this Court held that a general scheme existed in Scheuer in spite of the absence of the restrictive covenant in the deed to the property at issue.
As the trial court pointed out here, none of the factors that supported the result in Scheuer are present. We find the trial court's judgment to be correct; it is, therefore, affirmed.
AFFIRMED.
MADDOX, ADAMS and STEAGALL, JJ., concur.
HORNSBY, C.J., and ALMON, J., concur in the result.
[1] Neither side raised any claim of fraud in any of the pleadings. | December 14, 1990 |
3ac61690-ce37-4484-954e-d21e1cd47a07 | Alabama Farm Bureau Mutual Cas. Ins. Co. v. Hicks | 133 So. 2d 221 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 221 (1961)
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, Inc.
v.
James A. HICKS.
7 Div. 528.
Supreme Court of Alabama.
September 21, 1961.
*222 J. O. Sentell, Jr., and Parker & Salmon, Montgomery, for petitioner.
Rains & Rains, Gadsden, opposed.
LAWSON, Justice.
James A. Hicks sued Alabama Farm Bureau Mutual Casualty Insurance Company, Inc., in the Circuit Court of Etowah County on a policy of automobile insurance.
The cause was tried before the court without a jury. There was a judgment in favor of the plaintiff in the sum of $350.
The defendant insurance company appealed to the Court of Appeals, where the judgment of the Circuit Court was affirmed.
We granted certiorari to review the opinion and judgment of the Court of Appeals in response to a petition filed by the insurance company.
The insurance company defended the suit in the trial court on the theory that the policy sued on had lapsed for nonpayment of premium at the time Hicks sustained his loss.
Hicks admitted that the policy sued on was in default on the day of the collision but contended that the insurance company was liable nevertheless in that the company's acceptance of a premium after the loss, with full knowledge of the loss, constituted a waiver of the default for nonpayment of premium when due.
The trial court accepted this theory, as did the Court of Appeals.
The insurance company issued its policy No. A94766 to Hicks on November 12, 1955. It was for a six-months term from 12:01 A.M. on November 12, 1955, through 12:01 A.M. on May 12, 1956. The premium paid was $19.10. The policy did not provide for a grace period, nor did it provide for renewal or reinstatement after the expiration of the six-months term. The policy did contain the following renewal provision:
Hicks paid a "renewal premium" prior to May 12, 1956, so that he had coverage under policy No. A94766 through 12:01 A.M. on November 12, 1956.
But Hicks did not pay a "renewal premium" prior to 12:01 A.M. on November 12, 1956, so his coverage under the policy automatically expired at that time. Forrester v. State Farm Mutual Insurance Co., 97 Ga.App. 618, 103 S.E.2d 619.
Hicks sustained his collision loss on November 24, 1956, at a time when he had no protection under the policy in question.
On November 27, 1956, Hicks went to the office of the insurance company's "Agent-Manager" for DeKalb County and told a clerk in that office of the loss which he had sustained on November 24th and paid a premium amounting to $19.10, for which he was given a receipt. He was advised by the clerk that she was uncertain as to whether payment of the premium would afford coverage of the loss already sustained and suggested that he contact her employer, the "Agent-Manager." On the same day Hicks was told by the "Agent-Manager" that coverage was doubtful and that he should see the company's adjuster in Gadsden.
When Hicks paid the premium on November 27th the clerk gave him a receipt which shows the payment of a premium of $19.10 on policy No. A94766; that the premium *223 was due on November 12, 1956, and would afford coverage to May 12, 1957. Printed on the receipt are these words: "No coverage afforded after date due until payment is received." The receipt also contains the following provision: "In consideration of premium paid this policy is renewed to `will pay to' date on reverse side hereof."
Hicks saw the adjuster in Gadsden, who at first informed him that he did not know whether the loss of November 24th was covered; that he would investigate and let him know. Later the adjuster told Hicks that the loss was not covered.
The payment made by Hicks on November 27th was forwarded to the home office of the insurance company and accepted there.
Hicks filed proof of loss on January 8, 1957.
The Court of Appeals held that the knowledge of the insurance company's "Agent-Manager" and adjuster was imputed to the company. That holding is not questioned here.
In Washington National Insurance Company v. Scott, 231 Ala. 131, 132, 164 So. 303, 305, this court said:
The insurance company does not question here the soundness of that statement or of the holdings of the cases to the same effect cited in the opinion of the Court of Appeals.
The insurance company asserts that the general principle that the acceptance of a past due premium after loss, with knowledge of the loss, waives the forfeiture for nonpayment of the premium has no application where as in this case the renewal receipt shows on its face that the past due premium was accepted on the condition that "No coverage afforded after date due until payment is received."
The insurance company had the right to condition renewal or reinstatement of the policy on the exclusion of coverage between date of default and date of reinstatement or renewal. Forrester v. State Farm Mutual Insurance Company, supra.
But it was not entitled to retain and use the premium paid for the defaulting period with knowledge of the loss and then deny liability. It cannot in one breath say the policy was not in full force and effect during the defaulting period (November 12, 1956, to May 12, 1957) and in the same breath say that it is, nonetheless, its right to retain and use the premium paid to it covering the defaulting period.
When the insurance company ascertained that Hicks suffered an accident during the defaulting period for which he claimed coverage, it could have offered (1) to return the premium for the defaulting period, or (2) it could have applied the premium for the period from November 27, 1956, to May 27, 1957, or (3) it could ratain the premium and cover the collision loss.
The company chose the third alternative. It did not extend coverage to May 27, 1957. The receipt expressly limited coverage to May 12, 1957. The company retained the full six-months premium although it is evident that the insured would not have paid the premium for the period in default except *224 for the fact that he was not informed at time of payment that he had no coverage during that period, although he informed the insurance company's agent of the loss.
In Inter-Ocean Insurance Company v. Banks, 268 Ala. 25, 104 So. 2d 836, the insurance company had no knowledge of the plaintiff's injury at the time it accepted payment of the past-due premium. Hence, our holding in that case is not applicable here.
We are of the opinion that the retention of the premium covering the defaulting period by the insurance company under the particular facts of this case constitutes a waiver of the condition in the receipt to the effect that the premium paid did not cover loss during the defaulting period.
The question here is not without difficulty, but we entertain the view that the judgment of the Court of Appeals should be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | September 21, 1961 |
3e026190-78c0-432b-b2da-acf77081f6b7 | Rinehart v. Reliance Life Insurance Co. of Georgia | 128 So. 2d 503 | N/A | Alabama | Alabama Supreme Court | 128 So. 2d 503 (1961)
Edmon L. RINEHART, Superintendent of Insurance,
v.
RELIANCE LIFE INSURANCE COMPANY OF GEORGIA.
3 Div. 930.
Supreme Court of Alabama.
March 30, 1961.
*504 MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for appellant.
Truman Hobbs, Euel A. Screws, Jr., and Godbold, Hobbs & Copeland, Montgomery, for appellee.
LAWSON, Justice.
Reliance Life Insurance Company of Georgia, a foreign corporation, instituted this proceeding in the Circuit Court of Montgomery County, in Equity, against Edmon L. Rinehart as Superintendent of Insurance to recover certain taxes which it had paid under protest.
The respondent Rinehart filed his demurrer. It was overruled. Rinehart has appealed from that decree.
The equity court had no jurisdiction of the subject matter.
The remedy for refund of taxes illegally exacted of a taxpayer is prescribed by §§ 890 and 891, Title 51, Code 1940, as amended.
That remedy is at law. Glass v. Prudential Ins. Co. of America, 246 Ala. 579, 22 So. 2d 13, decided in 1945.
In the Glass Case, Prudential filed a petition for declaratory judgment on the equity side of the court against Glass to recover taxes paid under protest. We held that Prudential could not maintain that action because it had a plain and adequate remedy at law under §§ 890 and 891, Title 51, Code 1940, as amended, and that resort could not be had to declaratory judgment statutes if adequate relief and appropriate remedy are *505 presently available to complainant through the means of other existing forms of action or proceedings. Exceptions not here pertinent were noted.
By the 1947 amendment (Act 604, approved October 9, 1947, General Acts 1947, p. 444) to § 167, Title 7, Code 1940, the legislature has provided that the remedy by declaratory judgment shall not be construed by any court as an unusual or extraordinary one, but shall be construed to be an alternative or cumulative remedy.
But the 1947 amendment, supra, does not operate to confer upon an equity court jurisdiction of subject matter which it had not possessed theretofore. Love v. Rennie, 254 Ala. 382, 48 So. 2d 458; Wolff v. Woodruff, 258 Ala. 1, 61 So. 2d 69.
Under the 1947 amendment the taxpayer can proceed in a declaratory judgment proceeding to have determined his rights to a refund of taxes paid under protest, but he must proceed in a court of law.
So even if we treat the bill in this case as seeking only declaratory relief, we must conclude that it is without equity.
As we have indicated, we are confronted with the question of jurisdiction of a court of equity over the subject matter of the litigation, the refund of taxes paid under protest. It is of no consequence that the parties have not stressed the point and invite the court to consider the case on what they consider to be its merits. The question of jurisdiction is always fundamental and is a question of primary importance in every case, and if there is an absence of jurisdiction over the subject matter, this ends the inquiry; it cannot be waived or supplied by consent. Wilkinson v. Henry, 221 Ala. 254, 128 So. 362, 70 A.L.R. 712.
In view of what has been said above, we hold that the equity court was without jurisdiction and, hence, the demurrer of respondents taking the point that the bill was without equity should have been sustained. Love v. Rennie, supra.
The decree is reversed and the cause is remanded. As to whether the cause should be transferred to the law side of the court is a matter that should be addressed to the trial court. Section 149, Title 13, Code 1940; Merchants' Nat. Bank of Mobile v. Roche, 227 Ala. 639, 151 So. 591.
Reversed and remanded.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | March 30, 1961 |
ec66b667-1ecb-4ea6-a0bd-264be479761a | Noojin v. Alabama State Bar | 577 So. 2d 420 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 420 (1990)
Bert P. NOOJIN
v.
ALABAMA STATE BAR.
89-994.
Supreme Court of Alabama.
December 14, 1990.
Rehearing Denied March 15, 1991.
*421 W.A. Kimbrough, Jr. of Turner, Onderdonk & Kimbrough, Mobile, for appellant.
John A. Yung IV, Gen. Counsel, for Alabama State Bar.
MADDOX, Justice.
Bert P. Noojin, a Mobile lawyer, appeals from an order of the Disciplinary Board of the Alabama State Bar suspending him from the practice of law for one year.
Noojin argues that the Disciplinary Board violated his constitutional rights to due process and equal protection by delaying or otherwise deferring disciplinary proceedings against him until he had served a period of probation imposed by the United States District Court for the Southern District of Alabama, which prohibited him from practicing law for one year. As authority for this contention, he cites Rule 11, Rules of Disciplinary Enforcement. Rule 11 states that "[d]isciplinary proceedings shall not be deferred or abated because of substantial similarity to the material allegations of pending criminal or civil litigation, unless authorized by the Disciplinary Board, in its discretion, for good cause shown."
The question before this Court is whether the proceedings were deferred because of the criminal proceedings in federal court, and if so, whether the Disciplinary Board had good cause for the delay.
The following facts are necessary for a complete understanding of Noojin's arguments. On September 19, 1988, Noojin entered a guilty plea in federal district court for violation of 18 U.S.C. § 402, a misdemeanor. The sentencing hearing was held in November of that same year. As a result of his plea, Noojin received a suspended sentence and probation, but that court imposed the following special conditions on Noojin's probation:
By letter dated November 29, 1988, the Mobile Bar Association notified Noojin of the existence of a complaint against him arising out of his guilty plea and requested a response to the charges therein. On January 6, 1989, Noojin filed with the Mobile Bar Association a written response, accompanied by a conditional guilty plea.[1]
After submitting his written response, Noojin attempted to follow up on the course of the proceedings with two persons at the Alabama State Bar.
*422 Noojin cites the following testimony in support of his assertion that the Bar unreasonably delayed bringing the charges because of the criminal proceedings and that the delay denied to him valuable rights guaranteed by Rule 11, Rules of Disciplinary Enforcement:
After hearing nothing further from the Mobile or Alabama Bar Associations and even though no formal disciplinary charges had yet been filed, Noojin, on June 29, 1989, filed a motion to dismiss the proceeding. The motion to dismiss went without response for another four months, until October 24, when Noojin was served with the disciplinary charges that are the subject of this proceeding. An additional three months passed before the Disciplinary Board attempted to set a hearing on these charges against Noojin.[2]
*423 After hearing and considering everything presented by the Bar and Noojin, the Disciplinary Board granted Noojin's motion to dismiss Charges IV, V, and VI of the disciplinary complaint, but found Noojin guilty under Charges I, II, and III. The Board set his discipline at suspension for a period of one year.
Noojin contends that the Disciplinary Board delayed the proceedings against him so as to cause him to be suspended for a period of one year in addition to the year's suspension imposed as a special condition of probation in the federal proceeding.
As far as our research reveals, this is the first case before this Court involving an application of the principle set out in Rule 11, Rules of Disciplinary Enforcement. We have examined the Model Rules for Lawyer Disciplinary Enforcement approved by the American Bar Association House of Delegates on August 9, 1989, as those Rules relate to delay in disciplinary proceedings. The commentary to Rule 18 of the model rules states that, while "[s]tatutes of limitations are wholly inappropriate in lawyer disciplinary proceedings ... the time between the commission of the alleged misconduct and the filing of a complaint predicated thereon may be pertinent to whether and to what extent discipline should be imposed."
In the present case, although the record shows that Noojin, by various methods, sought to have the Disciplinary Board consider the facts and circumstances surrounding the entry of his plea of guilty in the federal proceedings, we have found nothing in the record to indicate that the Board considered the lapse of time between the commission of the misconduct and the filing of formal charges in determining whether, and to what extent, discipline should have been imposed. While the record shows that the Board considered Noojin's argument in denying the motion to dismiss, there is no indication that the Board, in imposing discipline in this case, considered the fact that Noojin had already been suspended from practicing law for one year and that he had, on more than one occasion, attempted to determine the status of the Disciplinary Board proceeding.
The Alabama State Bar, of course, was not bound by the federal proceeding. The Bar could accept Noojin's pleas for leniency, or the Bar could disbar him. A fair reading of what occurred in this case suggests that the federal judge, in sentencing Noojin, desired that he be barred from practicing law for one year. The sentencing judge stated for the record:
The sentencing judge further stated:
The general rule is that this Court, on review, will presume that the Disciplinary Board's decision on the facts is correct and that the order of the Disciplinary Board will be affirmed unless it is not supported by clear and convincing evidence or misapplies the law to the facts. Hunt v. Disciplinary Bd. of the Alabama State Bar, 381 So. 2d 52 (Ala.1980). However, at issue is not the severity of the sentence imposed, for, indeed, Noojin had previously stipulated that he would not oppose a suspension of his law license for one year, which, as we read the stipulation, meant that Noojin would not object to the Bar's suspension of him for one year, which could have coincided with the year's suspension made a condition of his probation.
*424 The real issue, therefore, is whether the provisions of Rule 11 should apply here, that is, whether the Board had "good cause" to defer or delay this disciplinary proceeding because of the pending federal action, knowing that the federal judge had made it a condition of Noojin's probation that he not practice law for at least one year and not oppose a one-year suspension by the Bar. Our review of the record convinces us that the federal court and Noojin contemplated that the federal order of suspension affected his license to practice law.[3]
While the record offers no reason for the failure to bring the charges before October 24, 1989, Rule 23, Ala.R.Disc.Enf., provides that the Board has up to six years in which to institute formal disciplinary proceedings:
Obviously, the formal charges here were filed well within the six-year period of limitations established by Rule 23, but we are not convinced, under the facts of this case, that the discipline imposed is justified. While the State Bar's action was timely, special circumstances existed here, which appear to us to call for the application of the provisions of Rule 11. Here, because Noojin was abiding by the condition of his probation, it would matter little whether the State Bar proceeded with its action promptly or slowly, as long as it acted within the limits allowed by law. The delay by the State Bar, however, worked to Noojin's disadvantage. Noojin received the official charges only three to four weeks before the completion of his one-year probation imposed by the court. It seems clear, from the record, that in entering his plea in the federal action and his conditional plea in the Mobile grievance proceeding Noojin was contemplating that the State Bar would take action against him.
At no point in the proceedings did the State Bar either deny or explain why this proceeding was delayed until shortly before Noojin was to complete the one-year suspension made a condition of his probation. On the other hand, the evidence in the record clearly shows that Noojin contacted the State Bar at the time plea negotiations were being made, and that he inquired as to the status of the grievance proceeding. The Bar contends that the "conditional plea" Noojin filed before the Mobile Bar Association in the grievance proceeding was "filed before the wrong body at the wrong time." We cannot accept the State Bar's argument in this regard. The provisions of the "conditional plea" speak for themselves.
Although it would be better if there was a complete understanding between the State Bar and the lawyer under fact situations similar to this one, we believe the record here is sufficient for us to conclude that the spirit of Rule 11 has been violated and the State Bar has provided no good cause to delay.
Assuming, however, that the State Bar proceeding was not barred, the question still remains whether this Court should exercise its right to review the severity of the punishment in this case in view of all the attendant circumstances. We believe that we should.
This Court has the responsibility to supervise the conduct of attorneys, who are its officers, and it has established the Disciplinary Board of the Alabama State Bar to act as the arm of the Court to exercise the power granted and to perform the duties imposed by the Rules of Disciplinary Enforcement. While we are not frequently called upon to exercise our right of supervision, it is without question that this Court *425 has the inherent power to review discipline imposed by the Bar. "On appeal, this Court may affirm the Board's order regarding the imposition of punishment or we may modify that order to reflect what we believe to be the appropriate punishment." Courtney v. Alabama State Bar, 492 So. 2d 1002 (Ala.1986).[4]
After examination of all the facts in this record, we believe that we should exercise our power and overturn the order of suspension in this case, because we believe it to be inappropriate in view of all the facts and circumstances of this case. We, therefore, set aside the order of suspension entered by the Bar and remand the case to the Disciplinary Board for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
[1] The conditional guilty plea read, in part, as follows:
"Special Condition 4 of the sentence recommended by the U.S. Attorney's Office agreed to by Mr. Noojin, and accepted by the Court in disposing of criminal charges brought against Mr. Noojin in the United States District Court for the Southern District of Alabama is as follows:
"`4.) That if a complaint is instituted by the U.S. Attorney or any member of the Bar or any other entity.... with the Alabama Bar against defendant arising out of action charged in this information or any earlier act, the defendant's response will be such that he will not oppose a suspension of his law license for a period of One (1) Year.'
"Pursuant to that agreement this conditional plea of guilty is entered. If this Honorable Association concurs with the recommendation of suspension of his privilege to practice law for a term of twelve (12) months with automatic reinstatement of his privileges to practice law after the expiration of said term of suspension, this plea stands, otherwise, the respondent relies upon the letter response filed hereto."
[2] Because the Board failed to give the required 14-day notice, the hearing was delayed another month and was reset for March 9, 1990.
[3] For example, there are references in the federal court order to Noojin's reapplying with the bar, after one year.
[4] In Haynes v. Alabama State Bar, 447 So. 2d 675 (Ala.1984), the appellant argued that the 120 day suspension imposed was too severe for the offense. This Court, after considering the evidence in the record, refused to disturb the punishment prescribed by the Board. | December 14, 1990 |
8430768c-b693-477d-8ef6-cabb23b91b14 | Sharpley v. Sonoco Products Co. | 581 So. 2d 792 | N/A | Alabama | Alabama Supreme Court | 581 So. 2d 792 (1990)
Kim SHARPLEY
v.
SONOCO PRODUCTS COMPANY and Provident Life and Accident Insurance Company.
88-601.
Supreme Court of Alabama.
December 28, 1990.
*793 John L. Sims, Hartselle, for appellant.
Thomas R. Robinson of Lanier, Ford, Shaver & Payne, Huntsville, for appellees.
PER CURIAM.
Beginning in 1983, Baker Industries, a division of Sonoco Products Company (hereinafter "Sonoco"), employed Kim Sharpley. Sonoco is a self-insured company whose employees are covered under a group life, medical, and dental insurance policy administered by Provident Life and Accident Insurance Company (hereinafter "Provident"). A provision in that group policy provides as follows:
"Acts of Third Parties (Subrogation)
On March 31, 1986, Sharpley was involved in an automobile accident allegedly caused by a third person. As a result of injuries sustained in the accident, Sharpley was hospitalized in the Cullman Medical Center for approximately three months. On July 15, 1986, Sharpley received $25,000 from the third party's insurer as a settlement of any claim that Sharpley may have had against the third party arising out of the automobile accident. Sharpley did not use any of the $25,000 to pay the $15,550.15 medical expenses he had incurred as a result of the accident.
On July 25, 1986, Sharpley signed a subrogation agreement that he received from Provident, as required under the above-quoted policy provision. That agreement provided:
In August 1986, Provident paid the $15,550.15 in medical expenses for Sharpley pursuant to the subrogation agreement. When Provident became aware that Sharpley had recovered $25,000 from the tort-feasor, it tried to collect $15,550.15 from Sharpley. Sharpley refused to reimburse Provident. Provident then brought this suit to recover the medical expenses that it had paid on behalf of Sharpley. After an ore tenus hearing, the trial court entered judgment in favor of Provident in the amount of $15,550.15. Sharpley appealed. We reverse and remand.
Sharpley argues that he is not obligated to reimburse Provident because he collected the settlement from the tort-feasor before he signed the subrogation agreement. We find this argument unpersuasive. In Powell v. Blue Cross & Blue Shield of Alabama, 581 So. 2d 772 (Ala. 1990), we discussed at length the equitable nature of subrogation. In this case, those equitable considerations would not allow Sharpley to be unjustly enriched by retaining all of the proceeds paid to him or on his behalf due to the accident, if those proceeds exceed the amount of his loss.
In Powell we stated that "[t]he equitable considerations that are the underpinnings of subrogation are (1) that the insured should not recover twice for a single injury, and (2) that the insurer should be reimbursed for payments it made that, in fairness, should be borne by the wrongdoer." 581 So. 2d at 774. (Citing International Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163, 165 (Ala.1989.))
In this case, the equitable underpinnings for allowing subrogation are readily apparent. Provident paid Sharpley's medical expenses only after Sharpley agreed to reimburse Provident from "any sums advanced to cover such expenses from the judgment or settlement I or my dependent receives." Sharpley can not now deny Provident its right to subrogation merely because he was reimbursed from the tort-feasor before he signed the subrogation agreement. Sharpley was free to refuse to sign the subrogation agreement, in which case he could have paid his expenses out of the settlement proceeds recovered from the tort-feasor. Instead, Sharpley chose to sign the subrogation agreement and have Provident pay his medical expenses.
The policy that Provident administers clearly sets forth its right to subrogation in cases where a third party is involved. In addition, the agreement that Sharpley signed encompasses any reimbursement received as a result of the accident that caused the injury and as to which Provident paid Sharpley's medical expenses. The subrogation agreement does not limit Provident's right to subrogation to only those proceeds collected after the subrogation agreement was signed. Therefore, we hold that Provident's right to subrogation was preserved in this case and that the right of subrogation is not limited to only those proceeds collected after Sharpley signed the subrogation agreement.
However, as we held in Powell, the insurer's right to subrogation does not arise until after the insured has been made whole for his loss. In this case, the record is not sufficient for this Court to determine the full extent of Sharpley's loss due to the accident. On remand the trial court should determine the extent of Sharpley's loss, consistent with our opinion in Powell. Once the extent of Sharpley's loss is found, then the trial court can determine whether he recovered a sum sufficient to make him whole. Any amount that Sharpley collected over the amount that would make him whole is subject to Provident's right to subrogation. Therefore, this case is remanded for proceedings consistent with this Court's holding in Powell.
REVERSED AND REMANDED WITH INSTRUCTIONS.
*795 HORNSBY, C.J., and JONES, SHORES and ADAMS, JJ., concur.
KENNEDY, J., concurs in the result.
STEAGALL, J., concurs in part and dissents in part.
MADDOX and HOUSTON, JJ., dissent.
STEAGALL, Justice (concurring in part and dissenting in part).
I concur with that part of the main opinion that preserves Provident's right to subrogation. I dissent, however, from that portion applying the holding of Powell v. Blue Cross & Blue Shield, 581 So. 2d 772 (Ala.1990).
MADDOX, Justice (dissenting).
The repayment agreement executed by the insured in this case reads:
It is undisputed that at the time Sharpley signed this agreement he had already settled with the tort-feasor and had already received the settlement proceeds.
Because Sharpley had already received the settlement proceeds, and because the agreement states that he is to pay out of any settlement any proceeds he "receives," I thought, at first by applying contract principles, that Sharpley should win because the contract would be construed most strongly against the drafter of the agreement, Provident. In fact, that is the argument Sharpley made on appeal. I am now convinced, however, that the Court is correct in holding that Sharpley's arguments in this regard are "unpersuasive." It is clear that Sharpley knew that Provident would not pay his hospital bills for him unless he executed the agreement. I cannot agree, however, that the case should be remanded to the trial court.
Although this was a group policy, the policy clause dealing with "Acts of Third Parties (Subrogation)" reads as follows:
In International Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163 (Ala.1989), this Court said that "[w]e are of the opinion that the better reasoned rule, one followed in a number of jurisdictions, is that equitable principles apply to all instances of subrogation except when the contract expressly provides otherwise." (Emphasis added.)
In this case, the policy provision expressly provided that medical care benefits were not payable if the injury was caused by a third party, but that the company could advance such benefits provided the insured signed a repayment agreement, which Sharpley did in this case.
I recognize that this Court has held that equitable principles must be applied to every contract of this nature, Powell v. Blue Cross & Blue Shield, 581 So. 2d 772 (Ala. 1990), but I dissented in Powell, and the facts of this case show exactly the reasons why I dissented in Powell. One of the basic rights guaranteed to all citizens is the right to freely contract. While the right of insurance companies to sell insurance is highly regulated, the policy in this case specifically provided that "[m]edical care benefits are not payable to or for a person covered under this plan when the injury or illness to the covered person occurs *796 through the act or omission of another person." Although the policy provided that the company "[could] elect to advance payment for medical care expenses incurred" in such instances, the policy specifically provided that a person would have to sign a repayment agreement, which Sharpley did.
I do not think that equitable principles of subrogation come into play in this case; in fact, I think that the Court, by writing equitable principles into this repayment agreement, essentially rewrites the contract, and thereby impairs its obligations, which both the Alabama and United States Constitutions forbid. See my dissent in Powell.
Because I believe that the agreements made by and between the insurer and the insured in this case are clear, and because the evidence clearly shows that had Sharpley not executed the repayment agreement, Provident would not have paid his hospital debt, I believe that the trial court was correct in this case. Consequently, I must respectfully dissent for these reasons and for all of the reasons that I expressed in my dissent in Powell.
HOUSTON, J., concurs.
HOUSTON, Justice (dissenting).
I concur with Justice Maddox; see also my dissenting opinion in Powell v. Blue Cross & Blue Shield, 581 So. 2d 772 (Ala. 1990). | December 28, 1990 |
ea0ecd2f-e65a-43d7-8172-3325e45bd125 | Turner v. Green | 571 So. 2d 1104 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1104 (1990)
Albert TURNER and Edna Turner
v.
Robert S. GREEN and Rita F. Green.
89-1265.
Supreme Court of Alabama.
November 30, 1990.
*1105 John A. Courtney, Mobile, for appellants.
Mylan R. Engel and Karen H. Carr of Engel, Walsh and Zoghby, Mobile, for appellees.
SHORES, Justice.
The plaintiffs, Albert and Edna Turner, filed this action against the defendants, Robert S. and Rita F. Green, on November 16, 1988, claiming money due on account and money due for the sale of land. The defendants raised the affirmative defense of res judicata, alleging that these claims were, or could have been, litigated and determined in a previous action. The defendants filed a motion to dismiss under Rule 12(b)(6), A.R.Civ.P., and an answer containing the affirmative defense of res judicata.
The trial judge, Robert E. Lee Key, held a hearing to determine whether the plaintiffs' claims were barred by the doctrine of res judicata. He treated the defendants' motion as a Rule 56 motion for summary judgment (see Rule 12(b)(6)) and he entered a summary judgment on March 12, 1990, in favor of the defendants. The court later entered an amended order. That amended order read as follows:
The plaintiffs appeal.
Higgins v. Henderson, 551 So. 2d 1050, 1052-53 (Ala.1989). "If these essential elements are met, any issue that was, or could have been, adjudicated in the prior action is barred from further litigation. Trimble v. Bramco Products, Inc., 351 So. 2d 1357 (Ala.1977)." Wood v. Tricon Metals & Services, Inc., 548 So. 2d 138, 140 (Ala. 1989).
We have carefully reviewed the record in this case, including the pleadings, the stipulation of facts, and the briefs. Because all of the elements of res judicata, as set out above and as enumerated by the trial judge, are met in this case, the present claim is barred. Therefore, the judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | November 30, 1990 |
bbbc543c-a1e6-4740-8260-ac14ee330a43 | Higgins v. Douglas | 572 So. 2d 1259 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 1259 (1990)
Alvie HIGGINS
v.
Helen DOUGLAS, et al.
89-1224.
Supreme Court of Alabama.
December 14, 1990.
John B. Barnett III of Barnett, Bugg & Lee, Monroeville, for appellant.
J. Otis Roberts, Atmore, for appellees.
STEAGALL, Justice.
Alvie Higgins appeals from the trial court's denial of her Rule 60(b), A.R.Civ.P., motion to set aside a consent judgment.
At his death on June 29, 1981, H.V. Rabon held title to a house and lot in Monroe County, Alabama, as a tenant in common with his wife, Velma Rabon. The Rabons had no children. Mr. Rabon died intestate and his estate was never administered. Mrs. Rabon died testate on January 28, 1983, naming Alvie Higgins as the sole beneficiary under her will. Mrs. Rabon's will was admitted to probate in Escambia County, Florida, and was admitted to probate in Monroe County in an ancillary proceeding.
Higgins renovated the house and rented the property to tenants. When Higgins attempted to sell the property, a title examination revealed that Mr. and Mrs. Rabon had held title to the property as tenants in common. Higgins, as personal representative of Mrs. Rabon, then filed a petition in the Monroe County Probate Court to set aside Mrs. Rabon's homestead. The heirs of Mr. Rabon contested the petition; however, the probate court set aside the homestead. Mr. Rabon's heirs then appealed to the circuit court. The parties entered into a consent settlement, which was adopted as the court's order on September 14, 1988. Pursuant to the order, Mr. Rabon's collateral heirs received a one-half interest in the property and Higgins, as the sole beneficiary under Mrs. Rabon's will, received a one-half interest in the property. The order also provided that the rental income be divided and that Higgins be reimbursed for the expense she had incurred in renovating the house.
After that judgment was entered, Higgins learned that, pursuant to the law of intestate succession at the time of Mr. Rabon's death, title had vested in Mrs. Rabon *1260 upon Mr. Rabon's death.[1] On August 1, 1989, Higgins filed a motion to set aside the consent judgment, pursuant to Rule 60(b), A.R.Civ.P., on the ground that the judgment was void and did not promote substantial justice. A hearing was held on the motion, at which time Higgins argued that the consent settlement was entered under a mistake of factthe belief that both parties were entitled to the property and a mistake regarding the intestate succession law as it existed at Mr. Rabon's death. Higgins also argued that the consent judgment was a contract procured under a mutual mistake of law and, therefore, that it should be set aside under Rule 60(b)(6). In its order denying the motion, the trial court held that 1) the judgment was not void under Rule 60(b)(4) merely because the wrong law was applied, 2) relief under Rule 60(b)(1) must be denied because the motion was not brought within four months from the date of judgment, and 3) relief under Rule 60(b)(6) must be denied because that rule is mutually exclusive of the other grounds available under Rule 60(b), and the relief sought fell within the provisions of Rule 60(b)(1).
Higgins contends that the consent judgment is a contract and argues that the trial court erred in refusing to recognize any equitable principles under Rule 60(b)(6) in support of rescinding the contract. Higgins also contends that the trial court erroneously applied Rule 60(b)(1) to a motion brought pursuant to Rule 60(b)(6).
This Court clarified the standard of review of a denial of a Rule 60(b) motion in Ex parte Dowling, 477 So. 2d 400, 403 (Ala. 1985), stating:
(Citation omitted.) In Daugherty Associates v. Silmon, 535 So. 2d 135 (Ala.1988), this Court, in reviewing a trial court's denial of a Rule 60(b) motion for relief from a consent judgment, stated that "[t]he term `mistake, inadvertence, surprise, or excusable neglect,' as used in Rule 60(b)(1), A.R. Civ.P., does not encompass a mistake of law. Nor can a mistake of law be a basis for granting relief under A.R.Civ.P. 60(b)(6)." 535 So. 2d at 137 (citations omitted).
After reviewing the record before us, we conclude that the substance of Higgins's Rule 60(b) motion was a request for relief on the ground of a mistake of law. On the authority of Daugherty Associates v. Silmon, supra, we hold that the trial court did not abuse its discretion in denying Higgins's Rule 60(b) motion. Accordingly, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX and ADAMS, JJ., concur.
ALMON, J., concurs in the result.
[1] The 1980 amendment to the former intestate succession statute, Ala.Code 1975, § 43-3-1, rewrote that statute to place the intestate's surviving spouse ahead of the intestate's collateral heirs in the order of succession. | December 14, 1990 |
43a73348-c42f-4afd-b24c-21e4ec545702 | Powell v. Blue Cross and Blue Shield | 581 So. 2d 772 | N/A | Alabama | Alabama Supreme Court | 581 So. 2d 772 (1990)
Cynthia A. POWELL and Bruce Powell
v.
BLUE CROSS AND BLUE SHIELD OF ALABAMA.
88-1342.
Supreme Court of Alabama.
December 28, 1990.
*773 John W. Haley of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
Duncan B. Blair of Lange, Simpson, Robinson & Somerville, and Walter F. Scott III, Birmingham, for appellee.
PER CURIAM.
This appeal presents this primary issue: May the insurer/indemnitor, by contract providing for subrogation, claim reimbursement of its payment to the insured/indemnitee, out of the insured/indemnitee's recovery from the third-party tort-feasor, when the third-party recovery does not exceed the insured/indemnitee's total loss? The trial court held that the insurer/indemnitor could so contract and ordered the insured/indemnitee to reimburse the insurer/indemnitor. Because we hold that the right of subrogation, whether equitable or contractual, does not arise until the plaintiff/insured has been fully compensated for her loss, we reverse and remand.[1]
The facts in this case were stipulated by the parties. Cynthia Powell was permanently injured in an automobile accident. Blue Cross and Blue Shield of Alabama ("Blue Cross") paid Cynthia's medical expenses of $27,080.26 under the provisions of a group health insurance policy that covered Cynthia. Cynthia sued the driver of the other automobile involved in the accident, Joy Jolly, and its owner, Dale Jolly, alleging negligence and wantonness. In an amended complaint, she alleged over $7,000,000 as damages for her injuries. Cynthia Powell, however, settled her claim against the Jollys for the $100,000 limit of the Jollys' liability insurance policy.
Blue Cross filed a motion to intervene in the lawsuit, seeking subrogation for $27,080.26 that it had paid for Cynthia's medical expenses. The trial court allowed Blue Cross to intervene, dismissed the Jollys, and ruled that Blue Cross was entitled to the full amount it had paid for Cynthia's medical expenses out of the settlement recovery. In its judgment the trial court stated that "it is conceded by all concerned that the $100,000 recovery does not make the plaintiff whole." The trial court went on, however, to hold that under the insurance contract Blue Cross was "entitled to the reimbursement of any amounts paid by it for the benefit of its insured. This reimbursement is due even though the insured is not paid in full, or made whole by any recovery from a third party."
The Powells appeal the trial court's judgment that Blue Cross is entitled to recover the full $27,080.26. For a complete understanding of the issues involved in this case and our resolution of them, the reader should take note of two other cases released this day: McKleroy v. Wilson, 581 So. 2d 796 (Ala.1990); and Sharpley v. Sonoco *774 Products Co., 581 So. 2d 792 (Ala. 1990).
Contained in the Blue Cross policy was specific language that gave Blue Cross first priority over any money that the insured collected from a third party.[2]
Blue Cross filed with this Court a motion to dismiss the appeal, arguing that the plaintiffs have no standing to bring an appeal because the trial court dismissed the Jollys as defendants. A party or his personal representative has standing to bring an appeal from an adverse ruling contained in a final judgment. Home Indem. Co. v. Anders, 459 So. 2d 836, 842 (1984), appeal after remand, 477 So. 2d 312 (Ala.1985). The Powells suffered an adverse ruling with respect to the issue of subrogation. This judgment with respect to Blue Cross is final in all respects and is therefore a final judgment from which the Powells may appeal. Rule 4(f), A.R.Civ.P.
The entire law of subrogation, conventional or legal, is based upon equitable principles. International Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163, 165 (Ala. 1989). The equitable considerations that are the underpinnings of subrogation are (1) that the insured should not recover twice for a single injury, and (2) that the insurer should be reimbursed for payments it made that, in fairness, should be borne by the wrongdoer. Id. In International Underwriters, we stated;
548 So. 2d at 164-65.
Although today subrogation is most often utilized by insurance companies, historically it was available to anyone who was obligated to pay the debts of another.[4] Deneberg, Subrogation Recovery: Who is *775 Made Whole?, 29 Fed'n Ins.Couns.Q. 185, 186 (1979). Anyone who was obligated to pay the debts of another could utilize subrogation. Id. The English courts originally applied subrogation to insurance policies on the rationale that the contract of insurance was a contract of indemnity, which meant that the insured should be fully indemnified, but not more than fully indemnified. Id. citing Castallain v. Preston, 11 Q.B.D. 380, 386 (1883).
The principle of indemnity was the primary reason for the adoption of subrogation in insurance cases. See International Underwriters, supra; North River Ins. Co. v. McKenzie, 261 Ala. 353, 359, 74 So. 2d 599, 604 (1954). The insurer's obligation was to make the insured whole, but not more than whole. Accordingly, subrogation originally served to prevent the insured from receiving a double recovery by first collecting the insurance proceeds and then suing the tort-feasor or other third parties, so as to recover again for his injury.[5] A second reason for the adoption of subrogation in insurance cases is what has been called "the moralistic basis of tort law as it has developed in our system." Kimball & Davis, The Extension of Insurance Subrogation, 60 Mich.L.Rev. 841, 841 (1962). In other words, the wrongdoer should bear the burden of reimbursing the insurer for payments it made to the insured because of the wrongdoer's actions. See International Underwriters, supra; City of Birmingham v. Walker, 267 Ala. 150, 158, 101 So. 2d 250, 256 (1958).
Subrogation accomplished these goals by allowing the insurer to "stand in the shoes" of the insured in order to recover its payments from the tort-feasor who caused the damage. Therefore, these early subrogation cases were based on the premise that the insured would be fully indemnified for his loss before the insurer would have a right to subrogation. Deneberg, supra, at 187.
This basic principle of fully indemnifying the insured was also followed in Alabama:
Montgomery v. Wadsworth, 226 Ala. 667, 669, 148 So. 419, 421 (1933) (citations omitted).
In the present case, the contract of insurance would abrogate these underlying principles of subrogation by reimbursing the insurer even though the insured has not fully recovered for her loss. Blue Cross argues that it should be allowed to recover the money it has paid in medical expenses, even though Cynthia's loss exceeds her recovery, because its policy expressly entitles it to recover that money out of the settlement proceeds. Blue Cross bases its argument upon language contained in the International Underwriters opinion.
Although the policy itself was not in evidence in International Underwriters, we stated in dictum that "equitable principles apply to all instances of subrogation except when the contract provides otherwise." International Underwriters, 548 So. 2d at 165. However, to construe this language as Blue Cross would have us to do would undermine the equitable principles upon which subrogation is based and *776 would thwart the purpose for which the insured purchased insurance. Equity requires that the insured should at least recover his or her loss before the insurer is subrogated.
In International Underwriters, we cited several cases from other jurisdictions in support of the proposition that "equitable principles apply to all instances of subrogation except when the contract provides otherwise." 548 So. 2d at 165. Those cases, however, represent a split of authority as to whether the insurer's right to subrogation arises before the insured is fully reimbursed for his loss. For example, in Westendorf v. Stasson, 330 N.W.2d 699 (Minn. 1983), the Supreme Court of Minnesota expressly stated that "when the right to subrogation arises by virtue of an agreement, the terms of the subrogation will nonetheless be governed by equitable principles, unless the agreement clearly and explicitly provides to the contrary.... The right [to subrogation] may be modified or extinguished by contract." Id. at 703. (Emphasis added.) The Minnesota court recognized that the right to subrogation itself exists before the insured has fully recovered for his loss and that the insurer may, through the contract, completely negate the equitable principles upon which that right is based.[6]
However, in International Underwriters, we also cited Garrity v. Rural Mut. Ins. Co., 77 Wis.2d 537, 253 N.W.2d 512 (1977). In Garrity the Wisconsin Supreme Court held that a standard subrogation clause in a fire insurance policy did not change the common law rule that required that the insured fully recover his loss before the insurer had a right of subrogation. The Garrity court stated, "We hold that because the contract here contains no language to the contrary, the normal rule of subrogation applies and the subrogee has no right to share in the fund recovered from the tort-feasor until the subrogor is made whole." Garrity, 77 Wis.2d at 546-47, 253 N.W.2d at 516.
The Wisconsin court later explained its Garrity holding in Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis.2d 263, 316 N.W.2d 348 (1982). In Rimes the insurer was seeking subrogation for medical payments that it had made to its insured, out of settlement proceeds recovered from the tort-feasor. The trial court had determined that the Rimeses sustained damages of $300,433.54 and that the settlement with the tort-feasors was $125,000. 106 Wis.2d at 264-66, 316 N.W.2d at 350. The Wisconsin Supreme Court stated that "[t]he subrogation agreement in the instant case between Rimes and State Farm is not significantly dissimilar [from the one in Garrity] and if literally interpreted would permit recovery by State Farm in the amount of medical payments made on behalf of Rimes." 106 Wis.2d at 270, 316 N.W.2d at 352-53 (emphasis added).
The court in Rimes, however, did not allow the literal interpretation of the subrogation agreement to abrogate the equitable basis for subrogation. The Wisconsin court noted that "one who claims subrogation rights, whether under the aegis of either legal or conventional subrogation, is barred from any recovery unless the insured is made whole." 106 Wis.2d at 272, 316 N.W.2d at 353. Moreover, the court indicated that this rule would apply even though contract provisions specified a different result. Rimes followed this rationale:
106 Wis.2d at 271-72, 316 N.W.2d at 353.
Consequently, the court in Rimes ruled that an insurer has no right to subrogation until the insured is first fully compensated for his loss. In International Underwriters, we did not decide the issue before us now, because the insurance contract was not part of the record in that case. As a result, the language and analysis in International Underwriters did not consider such a policy provision. International Underwriters, supra, at 166. The present case, however, presents us with a policy written specifically to abrogate the equitable principles of subrogation. We recognize that some jurisdictions hold that although subrogation is based on equitable principles the insurance contract may specifically defeat those considerations by allowing the insurer to be subrogated even though the insured has not been fully compensated for his loss. See, e.g., Culver v. Insurance Co. of North America, 115 N.J. 451, 559 A.2d 400 (1989); Peterson v. Ohio Farmers Ins. Co., 175 Ohio St. 34, 191 N.E.2d 157 (1963).
We are of the opinion, however, that the better reasoned rule is that the insurer is not entitled to subrogation unless and until the insured has been made whole for his loss. We so hold. See, e.g., St. Paul Fire & Marine Ins. Co. v. W.P. Rose Supply Co., 19 N.C.App. 302, 198 S.E.2d 482 (1973); Lombardi v. Merchants Mut. Ins. Co., 429 A.2d 1290 (R.I.1981); Wimberly v. American Casualty Co. of Reading, Penn., 584 S.W.2d 200 (Tenn.1979); Ortiz v. Great So. Fire & Cas. Ins. Co., 597 S.W.2d 342 (Tex. 1980); Thiringer v. American Motors Ins. Co., 91 Wash. 2d 215, 588 P.2d 191 (1978); Rimes v. State Farm Mut. Auto. Ins. Co., supra; see, also, Allstate Ins. Co. v. Clarke, 364 Pa.Super. 196, 527 A.2d 1021 (1987); Deneberg, supra, at 190.
This rule better reflects the underlying equitable principles that give rise to the remedy of subrogation itself, without which there would be no right of subrogation at all, and better reflects the purpose for which one purchases insurance. The very heart of the bargain when the insured purchases insurance is that if there is a loss he or she will be made whole. The cases that originally applied subrogation to insurance contracts did so on behalf of the insurer only after the insured had been fully compensated. These cases never envisioned the use of subrogation as a device to fully reimburse the insurer at the expense of leaving the insured less than fully compensated for his loss. "Where either the insurer or insured must to some extent go unpaid, the loss should be borne by the insurer for that is a risk the insured has paid it to assume." Rimes, 106 Wis.2d at 276, 316 N.W.2d at 355 (quoting Garrity v. State Farm Mut. Auto. Ins. Co., 77 Wis.2d 537, 542, 253 N.W.2d 512, 514 (1977)).
Our review of the origins and development of the law of subrogation persuades us that a prerequisite to the right of subrogation is the full compensation of the insured. In effect, an attempt to contract away this prerequisite to the right of subrogation would defeat the right itself. This is not compatible with the principle of fairness that underlies all equitable doctrines. Therefore, we hold that the insurer has no right to subrogation unless and until the insured is made whole for his loss.
For purposes of subrogation, the test for when the insured has been made whole is whether the injured plaintiff has been completely compensated for all of his loss. Likewise, all sources of reimbursement must be considered in determining the extent to which the plaintiff has been compensated. It is when the plaintiff's recovery from all sources exceeds the sum total of the plaintiff's damages that the right to subrogation arises.
Typically, in cases involving subrogation, a plaintiff injured by a third party recovers a portion of his total loss from an indemnitor or indemnitors and a portion from the tort-feasor. In such cases the indemnitor(s) may reimburse the injured plaintiff for such damages as medical expenses, *778 loss wages, or disability. The plaintiff, or the indemnitor(s), as provided in the indemnification contract, will then bring an action for damages against the tort-feasor. If the proceeds collected from the tort-feasor, either through settlement or a judgment, when added to the amount paid to the plaintiff via indemnity contract(s), equals the amount of the plaintiff's total loss, then the plaintiff is made whole.[7]
This holding requires calculation and comparison of two amounts, (1) the amount of the plaintiff's total loss and (2) the total amount that the plaintiff receives in compensation for that loss. The determination of what the plaintiff's loss is, and whether he has been made whole for that loss, is a question of fact. Calculation of the plaintiff's loss requires the finder of fact to consider all elements of that loss, including, but not limited to, damage to property, medical expenses, pain and suffering, loss of wages, and disability. Because punitive damages are not an element of compensation, they can not be included in the calculation of the plaintiff's loss. Determining whether the indemnitee is made whole should be based on the principle that the indemnitee should be made whole, but not more than whole. Likewise, calculation of the amount received in compensation requires consideration of every payment made to, or on behalf of, the plaintiff that arises out of the damages sustained in the event that gave rise to the cause of action.
Once these two amounts are obtained, subrogation, either equitable or as specified in the indemnitor's contract, will apply if the amount received in compensation by the plaintiff exceeds the plaintiff's amount of loss. As noted above, where the total compensation received is less than the loss, no right of subrogation arises. However, where the amount of compensation exceeds the amount of loss, then the indemnitor will be entitled to subrogation against the amount by which the compensation exceeds the loss.
This rule may be best explained by example. It should be noted that the numbers in Tables 1 through 3 that follow reflect amounts that have been selected to illustrate the factors that should be considered in the calculation of a plaintiff's loss and recovery. Although similar specificity in amounts might occur in joint settlement negotiations where the plaintiff/indemnitee, indemnitor(s), and tort-feasor agreed to set such amounts, these figures are not meant to reflect how a finder of fact would determine the plaintiff's loss. For instance, consider a case where a plaintiff's loss and recovery are as reflected in Table 1.
In Table 1, the indemnitors have no right to subrogation, because the plaintiff recovered less than the total amount necessary to make him whole. The indemnitors paid the plaintiff a total of $75,000 and the plaintiff collected $50,000 from the tort-feasor. The plaintiff's total recovery is $125,000, which is $5,000 less than his total loss. Because the plaintiff recovers less than $130,000, there is nothing to which the indemnitor could be subrogated. It is irrelevant as to how the indemnitee may allocate the amounts recovered from the tort-feasor (e.g., it is irrelevant that the complaint may seek damages only for pain and suffering or that the settlement or judgment states that the amount recovered is only for pain and suffering). The court will look to the total dollar amount recovered by the indemnitee, from whatever source, as compensation for his loss.
If, on the other hand, the plaintiff recovers more than $130,000 in compensation for his loss, then the indemnitors would have a right to subrogation in the amount of the overage. For instance, consider Table 2.
In Table 2, the plaintiff has recovered $75,000 from the indemnitors and $200,000 from the tort-feasor, for a total recovery of $275,000. Therefore, the plaintiff's total recovery is $145,000 greater than his total loss; there is an overage of $145,000.
The indemnitors, in the above example, have a right of subrogation in the amount that each has paid to, or on behalf of, the plaintiff. The total amount required to fully subrogate all indemnitors is $75,000. In this example there is enough money to fully compensate each indemnitor, and the plaintiff would be entitled to the remaining $70,000.
In some cases, however, the amount of the plaintiff's recovery subject to subrogation may not be enough to satisfy the amount that the first-party indemnitor or indemnitors paid in benefits. In those cases where there is a single indemnitor entitled to subrogation, that indemnitor would recover the full amount of the overage. However, in cases where there is more than one indemnitor with a right to subrogation, and the rights to subrogation have not been altered by contract, each indemnitor would be entitled to its pro rata share of the available proceeds. Standard Marine Ins. Co. v. Westchester Fire Ins. Co., 93 F.2d 286 (2d Cir.1937), cert. denied, 303 U.S. 661, 58 S. Ct. 830, 82 L. Ed. 1120 (1938); 16 Couch On Insurance 2d, Subrogation § 61:48 (1983).
For example, consider a third situation, where the plaintiff's losses are the same as in the first two tables, but the plaintiff recovers compensation for those losses as shown in Table 3.
In Table 3 the plaintiff's total loss was $130,000. The plaintiff's total recovery was $200,000$75,000 paid by the first-party indemnitors plus $125,000 recovered from the tort-feasor. In this example, the first-party indemnitors' right to subrogation arises because the plaintiff has recovered a total amount in excess of his total loss. In this example, however, there would be only $70,000 available for subrogation, to be divided among the four first-party indemnitors. Because the amount of the overage is insufficient to fully compensate all of the first-party indemnitors, each indemnitor would be entitled to a pro rata share of the overage, based on the ratio that the amount of its indemnification to the plaintiff bears to the total indemnification paid to the plaintiff.
In the example set out in Table 3 the collision insurer would recover $9,333.33 $10,000 (amount paid) divided by $75,000 (total loss paid by indemnitors) multiplied by $70,000 (amount available for subrogation). Similarly, the medical insurer would recover $46,666.67($50,000 ÷ $75,000) × $70,000. The wage contributor would recover $4,666.67($5,000 ÷ $75,000) × $70,000. The disability insurer would recover $9,333.33($10,000 ÷ $75,000) × $70,000.
The total amount subrogated and divided among the insurers would thus be $70,000.
It should be noted that these calculations, as exemplified in the three tables, do not include attorney fees and litigation expenses in computing the plaintiff's "total loss"; therefore, any reimbursement to the indemnitor should be further reduced by an amount equal to the indemnitor's pro rata share of the attorney fees and costs, computed, of course, only against the third-party recovery.
Although the information in Tables 1 through 3 is presented in detail that might occur only in a settlement conference where all interested parties reached agreement as to specific elements of damages, the rule governing when subrogation arises has ready application in litigation. Where a finder of fact determines plaintiff's total loss, that determination would take the place of the breakdown of figures represented in the column labeled "Plaintiff's Loss" in the tables. The calculation would then proceed as discussed previously, by comparing the plaintiff's total loss with his total recovery. In most cases a jury would determine the plaintiff's total loss as the amount rendered in its verdict. The plaintiff's total recovery would include the amount of the judgment that the plaintiff *782 actually collects from the tort-feasor, plus any other reimbursement that he receives from any other source for his injuries. For example, consider Table 4.
In Table 4 the plaintiff recovered $75,000 from first-party indemnitors. After a trial, the jury returned a general verdict against the tort-feasor in the amount of $100,000. Therefore, the plaintiff's total loss, as determined by the finder of fact, is $100,000. Assuming that the plaintiff is able to collect the entire judgment, plaintiff's total recovery is $175,000$100,000 from the tort-feasor plus $75,000 paid by first-party indemnitors. In the example set forth in Table 4, the plaintiff has collected $75,000 more than his total loss. Consequently, the indemnitors would have a right to subrogation to the $75,000 overage.
In the present case, the record shows that Cynthia Powell's damages far exceed the amount of her recovery; thus, Blue Cross has no right to be reimbursed for its payment of medical expenses on behalf of Cynthia. Had Blue Cross's right to subrogation arisen, then the language in the policy would have controlled. It follows that Blue Cross, as of the time of the writing of this opinion, had no right to subrogation because Cynthia Powell had not yet been made whole. Accordingly, the judgment is reversed, and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES and ADAMS, JJ., concur.
JONES, J., concurs specially.
KENNEDY, J., concurs in the result.
MADDOX, HOUSTON and STEAGALL, JJ., dissent.
JONES, Justice (concurring specially).
I agree with the plurality opinion. I write separately, however, to expand upon the formula, and the tables used to illustrate the formula, for determining if and when the primary plaintiff (the injured party) has made full recovery. While the tables furnished in the opinion are technically correct, certain assumptions may be helpful in understanding and applying them:
First, remember that the problem here addressed arises only where the amount recovered from the third-party tort-feasor is less than the plaintiff's total damages, including the amount paid by the plaintiff's indemnitor;
*783 Second, the plaintiff's "total loss" contemplates recovery of compensatory damages only, and not punitive damages;
Third, the plaintiff's total loss, which she is entitled to recover from the tort-feasor, less the amount paid by the indemnitor, must be determined. This can be done by agreement, by a jury or nonjury trial against the tort-feasor, or on petition of any party by submitting the damages issue to a trial court;
Fourth, either the indemnitor's claim against the tort-feasor must be included as a part of the primary plaintiff's total claim, or the indemnitor must intervene as a derivative plaintiff or otherwise assert its independent claim against the tort-feasor. In any event, the primary and derivative plaintiffs should either agree (in the case of a general verdict) upon the amount of their respective potential recoveries or use the mechanism provided in Rule 49, A.R.Civ.P. ("Special Verdicts"), designating their respective separate awards;
Fifth, keep in mind, always, that it is the total of the primary plaintiff's (the injured insured's) and the derivative plaintiff's (the insurer's) awards that combine to make up the primary plaintiff's "total loss," less any award for punitive damages as illustrated in Table 2. As a further precaution, a general verdict should not be used in any case in which the primary plaintiff seeks punitive damages, because punitive damages are not considered a component of the primary plaintiff's "total loss," and do not inure to the benefit of the primary plaintiff, unless and until the derivative plaintiff has been fully reimbursed in accordance with the prescribed formula; and
Sixth, the plurality opinion correctly omits any reference to Mr. Powell's derivative claim for loss of consortium, because his claim for noneconomic loss would ripen only upon full payment to the primary plaintiff and full reimbursement to the indemnitor. The spouses' derivative claim for economic loss, however, would take priority over the insurer's derivative claim. Although there are no punitive damages involved here, it is worthy of note that, even if there were, Mr. Powell's status as a derivative plaintiff would not entitle him to recover punitive damages. Fireman's Fund Am. Ins. Co. v. Coleman, 394 So. 2d 334, 341 (Ala.1980).
If I have "gilded the lily," I make no apology, for I have offered these observations in the spirit of the Scottish adage that proclaims "`Tain't simple `til I understand it."
MADDOX, Justice (dissenting).
The plurality states the primary issue in this case as: "May the insurer/indemnitor, by contract providing for subrogation, claim reimbursement of its payment to the insured/indemnitee, out of the insured/indemnitee's recovery from the third-party tort-feasor, when the third-party recovery does not exceed the insured/indemnitee's total loss?"
In a footnote, the plurality states: "Because of our holding with respect to the primary issue, and because the third-party recovery is less than the injured insured's total loss, the secondary issue, whether the insurer/indemnitor may extend or enlarge its equitable right of subrogation by contract, is moot."
Even though the opinion in this case does not specifically state, it essentially says that a hospital insurance carrier, or any indemnitor for that matter, cannot, by contract, create a right to be reimbursed out of its insured/indemnitee's recovery for damages caused by a third-party tort-feasor until its insured/indemnitee is made whole. In short, the Court today holds that any subrogation provision or other provision in a hospital insurance policy is void unless the insured has been made whole by the third-party tort-feasor.
The contract provision that the plurality construes in this case reads as follows:
This contract provision is much more specific than the provision contained in the insured's policy which it appears was in effect at the time of the accident.[9]
As I read the opinion by the plurality, it materially changes the law of this State. It is not enough for me simply to make such a broad charge, however, because a lot of time and effort has gone into this final product of the Court, and the issue is of paramount importance, but judicial integrity compels me to set out the specific reasons for my disagreement with so many of my brothers and my sister who entertain a different view.
I start with the constitutional right, granted by both the United States Constitution and the State Constitution, to contract. In Article I, § 10 of the United States Constitution, it is provided that "No state shall ... pass any ... law impairing the obligations of contracts...." Similarly, in Article IV, § 95, of the Alabama Constitution of 1901, it is provided that "[t]here can be no law of this state impairing the obligation of contracts by destroying or impairing the remedy for their enforcement...."
Even though it acknowledges that the specific language of the policy "gave Blue Cross first priority over any money that the insured collected from a third party," the plurality refuses to enforce this clear language of the policy. The plurality refuses *785 to enforce this contract even though this Court has specifically said that "Courts are not at liberty to rewrite policies to provide coverage not intended by the parties." Altiere v. Blue Cross & Blue Shield, 551 So. 2d 290 (Ala.1989).
The plurality, in a footnote, says that, because of the holding made on the primary issue, a secondary issue "whether the insurer/indemnitor may extend or enlarge its equitable right of subrogation by contract, is moot"; nevertheless, the opinion specifically states as follows:
581 So. 2d at 777.
The effect of this holding, of course, is that an insurer cannot, even by specific provisions of the policy, provide that it will receive first priority over any money that the insured collects from a third party. I respectfully disagree with the statement in footnote 1 that the opinion in this case does not address "whether the insurer/indemnitor may extend or enlarge its equitable right of subrogation by contract." It appears to me that the above-quoted portion of the opinion does address that question, and inferentially holds that an insurer/indemnitor cannot contract to receive anything until the insured is made whole.
It has been the law of this State for many years that, in the absence of public policy considerations or statutory provisions to the contrary, insurance companies have the right to limit their liability or to insure against loss as they choose.[10]
*786 Although the plurality opinion gives an excellent history of subrogation, the same was done with equal excellence in International Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163 (Ala.1989):
"In 16 Couch on Insurance 2d (Rev. ed), § 61:64 (1983), we find the following:
"We recognize that, while the doctrine of subrogation is of purely equitable origin and nature, it may be modified by contract."
548 So. 2d at 164-66.
The holding in this case, of course, changes what I consider to be the holding in Liao, and, with the exception of classifying the Liao statement (that "equitable principles apply to all instances of subrogation except when the contract provides otherwise") as "dictum," 581 So. 2d at 786, does not suggest why that statement in Liao, even if "dictum," was incorrect. In fact, a close look at the cases cited by the plurality for the conclusion that the doctrine of subrogation cannot be modified by contract shows that, in several of the cases, the courts in other jurisdictions recognized that the doctrine could be modified by a specific provision in the contractual agreement.
I have read the cases cited by the plurality in support of its conclusion that equitable principles of subrogation cannot be modified by contract, and while I find that Allum v. MedCenter Health Care, Inc., 371 N.W.2d 557 (Minn.App.1985), does seemingly stand for that proposition, I do not find the same situation is true in Garrity v. Rural Mut. Ins. Co., 77 Wis.2d 537, 253 N.W.2d 512 (1977), because the concluding paragraph in Garrity states: "We hold that because the contract here contains no language to the contrary, the normal rule of subrogation applies...." (Emphasis added.) It seems rather plain to me that had the contract provided otherwise, which is true in our present case, then the "normal rule of subrogation" would not apply. Similarly, in Westendorf v. Stasson, 330 N.W.2d 699 (Minn.1983), the Supreme Court of Minnesota, as the majority here notes, held that the right to subrogation could be modified or extinguished by contract.
The Court, in the exercise of its judicial powers, possibly has the authority to determine what types of agreements do or do not contravene the public policy of this State; but, even assuming the Court has that power, should it be exercised in a case like this, in view of the strong public policy stated in both the State and United States *788 Constitutions of ensuring the rights of individuals, in a free economy and as members of a free society, to contract as they please? The plurality says that "[o]ur review of the origins and development of the law of subrogation persuades us that a prerequisite to the right of subrogation is the full compensation of the insured" and that "[i]n effect, an attempt to contract away this prerequisite to the right of subrogation would defeat the right itself." I do not think that the law limits a hospital carrier's right to limit subrogation rights if it so chooses. While the record in this case, of course, does not indicate what negotiations occurred in connection with this policy, or the relative bargaining power of the negotiators, or the competition that may exist between health care insurers for the right to provide the coverage, I cannot conclude that a hospital carrier is precluded from writing a policy like the one in this case. Clearly this Court should not rewrite the policy.
The major reason, I suppose, for my dissent is that I believe that the role of this Court should be to interpret the agreements that come before us, rather than to fashion an absolute rule of law, as has been done here, especially when it is the role of the legislative branch or the executive branch, acting through the Department of Insurance, to fashion the rules governing the sale of insurance in this state. In this respect, I concur in what Mr. Justice Steagall says in his dissent.
In deciding this case as it does, the plurality has effectively created a new policy of insurance, because it admits that the subrogation clause under consideration is specific and unambiguous.
Because of these reasons, I must respectfully dissent.
HOUSTON, Justice (dissenting).
I do not understand the plurality opinion. If I am going to apply legal reasoning in this case, I must dissent. Therefore, I concur with Justice Maddox's dissent, and I write specially because I authored International Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163 (Ala.1989).
While researching and writing Liao, I travelled through the "many dangers, toils, and snares" that the plurality and minority are traveling through in this case. The threshold question in Liao was stated as follows:
548 So. 2d at 165. Five members of this Court answered this question in the affirmative:
548 So. 2d at 165-66. The contract between International Underwriters/Brokers, Inc. and Ms. Liao had not been made part of the record. It was assumed, therefore, that the contract did not contain any specific provisions regarding subrogation that were contrary to established equitable principles. Consequently, the Court held that equitable principles controlled the disposition of the case. This holding was in accordance with the established law in other states:
548 So. 2d at 165, quoting Westendorf v. Stasson, 330 N.W.2d 699, 703 (Minn.1983). (First emphasis added here; second emphasis added in Liao.)
If the plurality opinion is indeed the law of this state,[11] then it has the effect of overruling the holding in Liao, which is only a year old. This is done with citation to a minimum of authority that actually stands for the proposition that equitable subrogation cannot be modified by clear and explicit provisions in a contract: Allum v. MedCenter Health Care, Inc., 371 N.W.2d 557 (Minn.App.1985).[12] The plurality opinion, apparently under principles of "public policy," holds that the principles of equitable subrogation cannot be modified by clear and explicit provisions in a contract. Can this Court, in the name of "public policy," prohibit parties from modifying the doctrine of subrogation, which is of a purely equitable origin and nature, by clear and explicit provisions in a contract? Yes; see the plurality opinion. Should this Court do so? No; see Liao, supra; Sargeant v. International Union of Operating Engineers, Local Union 478 Health Benefits & Ins. Fund, 746 F. Supp. 241 (D.Conn.1990); Culver v. Insurance Co. of North America, 115 N.J. 451, 559 A.2d 400 (1989); Hill v. State Farm Mut. Auto. Ins. Co., 765 P.2d 864 (Utah 1988); Smith v. Manville Forest Products Corp., 521 So. 2d 772 (La.App.1988), cert. denied, 522 So. 2d 570 (La.1988); Ludwig v. Farm Bureau Mut. Ins. Co., 393 N.W.2d 143 (Iowa 1986); Dimick v. Lewis, 127 N.H. 141, 497 A.2d 1221 (1985); Knight v. Alefosio, 158 Cal. App. 3d 716, 205 Cal. Rptr. 42 (Cal.Dist.Ct. App.1984); Peterson v. Ohio Farmers Ins. Co., 175 Ohio St. 34, 191 N.E.2d 157 (1963).[13] In my opinion, the courts in this state cannot make public policy by judicial fiat or ukase, the power to legislate having been reserved to the Legislature by the Alabama Constitution. Art. III, § 43 ("Separation of Powers"). Consequently, I believe that the opinions of justices and judges are subordinate to those of legislators concerning matters of public policy, unless constitutional issues are involved,[14]*790 and, just as Chief Justice Marshall believed that the "framers of the [United States Constitution] contemplated that instrument as a rule for the government of courts, as well as of the Legislature," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 179, 2 L. Ed. 60 (1803) (emphasis in original), I believe that the framers of the Alabama Constitution contemplated that instrument as a rule for the government of the judicial branch as well as for the legislative branch of state government. Ala. Const. of 1901, Art. I, § 35; Art. III, §§ 42 and 43.
The right to be fully compensated for one's personal injuries is not an "inalienable right" protected by Art. I, § 1, of the Alabama Constitution. Likewise, the freedom to contractually modify the equitable principles of subrogation would not deprive a citizen of a remedy for an injury done him, so as to be a violation of the declaration of rights enunciated in Art. I, § 13, of the Alabama Constitution. After carefully reviewing the Alabama Constitution, as well as the United States Constitution, I can find "no constitutional guarantee, or fundamental principle of government, or chart of liberty or inalienable right that would be violated" by allowing freedom of contract in this area. Sheppard v. Dowling, supra, 127 Ala. 1, at 5-6, 28 So. 791, at 793 (1899).
I note that there is a strong preference in this State's Constitution for the protection of contractual obligations. The Constitution prohibits the impairment of contractual obligations by the legislative and judicial branches of state government. See Art. I, § 22 ("nor any law, impairing the obligations of contracts ... shall be passed by the legislature"), and Art. IV, § 95 ("[t]here can be no law of this state impairing the obligation of contracts by destroying or impairing the remedy for their enforcement").
Moreover, after examining the subrogation statutes that have been enacted by the Alabama Legislature, I can find nothing to support the plurality's cavalier disregard for the Constitution. To the contrary, it appears to me that the Legislature has indicated in at least two of its enactments that full compensation for personal injuries is not a prerequisite to the enforcement of subrogation rights in Alabama. See Ala. Code 1975, § 22-6-6, and Ala.Code 1975, § 25-5-11(a).
Suffice it to say that I am not convinced that this state's public policy prohibits freedom of contract in this area. If I knew that the money recovered in subrogation was not being factored into the calculation of future premium charges for health insurance, but, instead, was being retained by insurers as a mere windfall, then I would think there would be a great public policy reason for legislation that would prohibit a clause in future insurance contracts that permitted health insurers to recover first money from tort-feasors that caused the insureds' injuries.[15] There is no evidence before us that money recovered in subrogation cases is not being factored into the calculation of future premium charges for health insurance.
Perhaps my views are best expressed in 17 Am.Jur.2d Contracts § 178 (1964), which was quoted with approval by this Court in Milton Construction Co. v. State of Alabama Highway Department, 568 So. 2d 784 (Ala.1990):
"`Many courts have cautioned against recklessness in condemning agreements as being in violation of public policy. Public policy, some courts have said, is a term of vague and uncertain meaning which it is the duty of the law-making power to define, and courts are apt to encroach upon the domain of that branch of the government if they characterize a transaction as invalid because it is contrary to public policy, unless the transaction contravenes some positive statute or some well-established rule of law. Other courts have approved the statement of an English judge that public policy is an unruly horse astride of which one may be carried into unknown paths. Considerations such as these have led to the statement that the power of the courts to declare an agreement void for being in contravention of sound public policy is a very delicate and undefined power and, like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt. The cautionary remarks may be interpreted to mean that in the determination of whether an agreement is against public policy there must be kept in view the rule that where there is no statutory prohibition, the courts do not readily pronounce an agreement invalid on the ground of policy or convenience, but, on the contrary, are inclined to leave men free to regulate their affairs as they think proper. In other words, the courts will not declare an agreement void on the ground of public policy unless it clearly appears to be in violation of the public policy of the state. A similar caution is one to the effect that before a court refuses to recognize an agreement which is made in good faith and stipulates for nothing that is malum in se or malum prohibitum it should be satisfied that the advantage to accrue to the public from its holding is certain and substantial, not theoretical or problematical. It has also been observed that the power to invalidate agreements on the ground of public policy is so far-reaching and so easily abused that it should be called into action to set aside or annul the solemn engagements of parties dealing on equal terms only in cases where the corrupt or dangerous tendency clearly and unequivocally appears upon the face of the agreement itself or is the necessary inference from the matters which are expressed, and that the only apparent exception to this general rule is to be found in those cases where the agreement, though fair and unobjectionable upon its face, is a part of a corrupt scheme and is made to disguise the real nature of the transaction.
568 So. 2d at 788-89. (Some emphasis added in Milton Construction Co. is omitted here; other emphasis is added here.)
*792 For the foregoing reasons, I must respectfully dissent.
STEAGALL, Justice (dissenting).
In my opinion, International Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163 (Ala.1989), clearly preserved the right of parties to alter traditional subrogation principles by contract, and I would not abrogate that right. I believe that before the plurality turns this page in the history of contract law as it relates to subrogation, this case and the companion cases (McKleroy v. Wilson, 581 So. 2d 796 (Ala.1990), and Sharpley v. Sonoco Products Co., 581 So. 2d 792 (Ala.1990)) should be remanded for the trial court to develop additional evidence on the impact of the plurality's holding. In my opinion, it would be very helpful to know how this result will affect premiums charged by insurers and how it will affect the availability of health insurance for the citizens of this State. Such evidence may show that subrogation claims involve only a minute portion of the claims considered. On the other hand, it could show that funds recovered as a result of subrogation as provided by contract are significant in the computation of premiums and in the negotiations leading to coverage. See Ala.Code 1975, § 10-4-109.
We face a crisis in this state and throughout our country in the health insurance field. Many of our citizens are without any type of health insurance and many others are only partially covered. The Court's holding may compound this most difficult situation. I could not join that holding without knowing how it will affect the availability and the cost of insurance coverage for our citizens.
Further, assuming that the data developed as the result of an in-depth study compelled this Court to abandon the principles set forth in Liao and prior cases, then I think that a proration of the sums recovered under equitable principles would be the procedure fairest to everyone concerned. It appears to me that to allow either the subrogee or the subrogor to recover "first money" ignores the true relationship of the parties and the realities of their respective losses. Indeed, the equitable principles upon which the doctrine of subrogation rests are misplaced and misapplied when either party's loss is compensated at the total expense of the other. To prorate the funds available would recognize the lack of funds to compensate for the respective losses sustained and would allow each claimant to recover in proportion to its respective losses. Under this approach, neither the subrogee nor the subrogor would collect "first money" but, instead, each would take a share proportionate to its respective loss; such a proration would avoid the inherent unfairness in the main opinion's distribution of the third-party recovery.
For the foregoing reasons, I respectfully dissent.
[1] Because of our holding with respect to the primary issue, and because the third-party recovery is less than the injured insured's total loss, the secondary issue, whether the insurer/indemnitor may extend or enlarge its equitable right of subrogation by contract, is moot.
[2] For purposes of this opinion, we have quoted the policy language that Blue Cross included in its "Motion to Deny Plaintiff's Petition For Proration." We note that in their brief the appellants allege that on the date of Cynthia Powell's accident she was covered under a Blue Cross policy that contained a different subrogation clause. However, the above-quoted language is the only subrogation clause contained in the record and, thus, the only policy before this Court. Our holding in this case does not preclude the trial court from considering the issue of which policy is controlling in this case if that issue is properly presented to it.
[3] Although this policy language characterizes itself as "separate from and in addition to the administrator's right of subrogation," it would nonetheless reimburse the insurer for the money that it paid to its insured out of money recovered from the tort-feasor. Even though this portion of the policy does not give Blue Cross the right to "stand in the shoes" of its members, in all other respects this clause serves as a subrogation clause, and we, therefore, will apply the same principles that govern conventional subrogation. See International Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163, 164 (Ala.1989), for a discussion of those principles.
[4] Likewise, the decision in this case is not limited to insurance companies but applies to any indemnitor who claims a right to subrogation.
[5] Operation of the "collateral source rule" would prevent the tort-feasor from introducing any evidence that the injured party has already recovered for his injuries by way of insurance. Pearson v. Birmingham Transit Co., 264 Ala. 350, 87 So. 2d 857 (1956). But, we note that for civil cases filed after June 11, 1987, Ala.Code 1975, § 12-21-45, would allow evidence that an outside source has paid or will pay or reimburse the plaintiff for certain medical or hospital expenses. This statute also allows the plaintiff to introduce evidence of the cost of obtaining such reimbursement (i.e., premiums). "Upon proof by the plaintiff to the court that the plaintiff is obligated to repay the medical or hospital expenses which have been or will be paid or reimbursed, evidence relating to such reimbursement or payment shall be admissible." Ala.Code 1975, § 12-21-45(c) (Supp.1990).
[6] A more recent case indicates, however, that in spite of this clear language in Westendorf the Minnesota courts may be reluctant to enforce a subrogation agreement that would allow the insurer to be subrogated even though the insured is not first fully compensated, as against public policy. See Allum v. MedCenter Health Care, Inc., 371 N.W.2d 557, 560 (Minn.Ct.App.1985).
[7] We note that the right of subrogation may be affected by statute, as in the Alabama law of wrongful death, Ala.Code 1975 §§ 6-5-380 and 6-5-410. See Motors Insurance Corp. v. Loftin, 277 Ala. 331, 170 So. 2d 281 (1965).
[8] We note that any reimbursement for compensation paid to an injured plaintiff under the Alabama Workmen's Compensation Act, Ala. Code 1975, § 25-5-1 et seq. (hereinafter the "Act"), by an employer or its insurer is specifically governed by § 25-5-11(a). Our holding in this case in no way interferes with the legislatively mandated scheme provided for under the Act.
We also note that, pursuant to the Act, only compensation, as opposed to medical payments, is reimbursable. For an analysis of this reimbursement scheme, see Maryland Cas. Co. v. Tiffin, 537 So. 2d 469 (Ala.1988). All of the examples set forth in the present opinion are based on the premise that no compensation under the Act is involved.
[9] The plurality notes that "[f]or purposes of this opinion, we have quoted the policy language that Blue Cross included in its `Motion to Deny Plaintiff's Petition For Proration,'" 581 So. 2d at 774. Because the plurality opinion is based upon the provisions of the Blue Cross policy, which it admits contains "specific language that gave Blue Cross first priority over any money that the insured collected from a third party," 581 So. 2d at 774, my dissent addresses only those provisions that the plurality also addresses, "for purposes of this opinion."
In a brief filed in this case, there is reference to a group policy containing the following subrogation clause, which is much less specific than the one cited in the plurality opinion:
"SECTION XISUBROGATION
"In the event of payment or provision otherwise by the Administrator of any benefits under this Plan, the Administrator shall, to the extent thereof, be subrogated and shall succeed to all rights of recovery (whether in contract, tort, or otherwise) which the Member or any other person has against any person or organization and shall be subrogated and succeed to the proceeds of any settlement or judgment that may result from the exercise of any such rights of recovery. Upon payment or provision by the Administrator of any such benefits, the Member or any other person having any rights of recovery or proceeds therefrom shall execute and deliver such proceeds or such instruments or papers or do whatever else is necessary to secure to the Administrator such rights of recovery and proceeds and shall do nothing to prejudice such rights."
I do not address whether another policy may have been in effect at the time of Cynthia's injury. If her injury occurred while the first policy was in effect, and if her rights to medical benefits accrued under the first policy, it would appear that the subrogation provision in that policy would apply. See 19 Couch on Insurance 2d, § 644, at 864 (rev. ed. 1983); Appleman, Insurance Law and Practice, § 644, at 222 (1981), and Annot., "Cancellation or Modification of Master Policy as Termination of Coverage Under Group Policy," 68 A.L.R.2d 149 (1959). In International Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163 (Ala.1989), the Court held, "[T]he better reasoned rule, one followed in a number of jurisdictions, is that equitable principles apply to all instances of subrogation except when the contract expressly provides otherwise." 548 So. 2d at 165.
If, in fact, the subrogation provision quoted in this footnote was in effect at the time of Cynthia's injury, it is my opinion that that subrogation clause does not expressly provide that principles of subrogation would not apply in determining the rights of the parties. My dissent on the "primary issue" stated by the plurality should be read in light of these facts and these principles of law.
[10] If a statute, such as Alabama's Uninsured Motorist Statute, mandates the offering of uninsured motorist coverage, it has been held that subrogation and consent-to-settle clauses are void as violative of this policy expressed by the Legislature. Alabama Farm Bureau Mut. Cas. Ins. Co. v. Clem, 49 Ala.App. 457, 273 So. 2d 218 (Ala.Civ.App.1973); Alabama Farm Bureau Mut. Cas. Ins. Co. v. Humphrey, 308 So. 2d 255 (Ala. Civ.App.1975). But, see my dissent in Auto-Owners Ins. Co. v. Hudson, 547 So. 2d 467 (Ala. 1989). Also, under Alabama law, all contracts insuring against loss from intentional wrongs are void as against public policy.
[11] I question the precedential value of the plurality opinion in this case. See, 21 C.J.S. Courts § 141 (1990); 20 Am.Jur.2d Courts § 195 (1965); Laurence, A Very Short Article on the Precedential Value of the Opinions From an Equally Divided Court, 37 Ark.L.Rev. 418, 426-27 nn. 24-38 (1983); see generally, City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S. Ct. 2138, 2148, 100 L. Ed. 2d 771 (1988); First National Bank of Mobile v. Bailes, 293 Ala. 474, 306 So. 2d 227 (1975); Phoenix Ins. Co. v. Stuart, 289 Ala. 657, 270 So. 2d 792 (1972).
[12] Oddly, while citing Allum for the proposition that Minnesota courts "may be reluctant" to use the "clear language" in Westendorf to enforce contractual modifications of equitable subrogation interests, the plurality fails to recognize that at least three panels of the Minnesota Court of Appeals (other than the panel sitting in Allum) have used Westendorf`s "clear language" in the following subrogation cases:
Badger Equipment Co. v. Brennan, 431 N.W.2d 900, 904 (Minn.App.1988): "`Absent express contract terms to the contrary, subrogation will not be allowed where the insured's total recovery is less than the insured's actual loss'" (quoting Westendorf at 703);
Regie de l'assurance Automobile du Quebec v. Jensen, 389 N.W.2d 537, 539 (Minn.App.1986), rev'd on other grounds, 399 N.W.2d 85 (Minn. 1987): "Equitable principles apply to all instances of subrogation except when modified by specific provisions in the contract";
Pavel v. Norseman Motorcycle Club, 362 N.W.2d 5, 7-8 (Minn.App.1985): "Unless the contract explicitly provides otherwise, subrogation will not be allowed by an insurer where `the insured's total recovery is less than the insured's actual loss.'" (Quoting Westendorf at 703).
[13] See also, Blue Cross & Blue Shield United of Wisconsin v. Fireman's Fund Ins. Co. of Wisconsin, 140 Wis.2d 544, 411 N.W.2d 133 (1987), for its treatment of two other cases cited by the plurality, Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis.2d 263, 316 N.W.2d 348 (1982), and Garrity v. Rural Mut. Ins. Co., 77 Wis.2d 537, 253 N.W.2d 512 (1977).
[14] "It will suffice in reply to all this to say that this court is thoroughly committed to the doctrine that the constitution of the State, and the constitution of the United States so far as it has any application, are not the sources of the legislative power residing in the General Assembly of Alabama, nor in any sense grants of power to the Legislature, but only limitations upon that power, and that apart from the limitations imposed by those fundamental charts of government, the power of the Legislature has no bounds and is as plenary as that of the British Parliament: All which the General Assembly is not forbidden to do by the organic law, State or Federal, it has full competency to do."
Sheppard v. Dowling, 127 Ala. 1, 6, 28 So. 791, 793 (1899).
In an interesting article on the historical basis for judicial review of legislation, Professor Reid observes that Parliament's declaration of itself as the final judge (dernier judge) with authority to bind the colonies in all cases whatever (Declaratory Act, 6 Geo. 3, ch. 2 (1766)) may have been the origin of the doctrine of judicial review. John Phillip Reid, Another Origin of Judicial Review: The Constitutional Crisis of 1776 and the Need for a Dernier Judge, 64 N.Y.U.L. Rev. 963 (1989).
[15] See, e.g., Comment, "Denial of Subrogation RightsA Question for the Court or the Legislature?: Weinberg v. Dinger," 62 St. John's L.Rev. 99 (1987). | December 28, 1990 |
a1014809-27bc-4d18-8c07-566cd57b0f54 | Roberts v. Hutchins | 572 So. 2d 1231 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 1231 (1990)
Curtis ROBERTS and Roger D. Eiland
v.
Sharon HUTCHINS, as Administratrix of the Estate of Freeman Hutchins, Jr., Deceased.
89-1073.
Supreme Court of Alabama.
December 7, 1990.
*1232 Michael A. Florie and A. Sybil Vogtle of Starnes & Atchison, Birmingham, for appellants.
Tom Dutton of Pittman, Hooks, Marsh, Dutton & Hollis, Birmingham, for appellee.
HOUSTON, Justice.
The defendants, Curtis Roberts, M.D., and Roger D. Eiland, M.D., appeal from the trial court's order denying their motion to disqualify the law firm of Pittman, Hooks, Marsh, Dutton, & Hollis, P.C. ("Pitman, Hooks"), from representing the plaintiff, Sharon Hutchins, as administratrix of the estate of Freeman Hutchins, Jr., in her wrongful death medical malpractice suit against the defendants.[1] We reverse and remand.
Pittman, Hooks presently represents the plaintiff. The law firm of Starnes & Atchison represents the defendants. Ralph Bohannon, a lawyer and a certified registered nurse anesthetist, while an associate at Starnes & Atchison, had full access to the defendants' file, and he was engaged in an array of activities in connection with this suit, ranging from legal research; the review of depositions; the examination of potential witnesses, including medical experts; and the planning of trial strategy. Bohannon billed the defendants for more than 30 hours of work in the preparation of the defense to the plaintiff's suit. Bohannon then resigned from Starnes & Atchison and became an associate at Pittman, Hooks. Approximately nine months later, the defendants moved to have Pittman, Hooks disqualified from representing the plaintiff.[2] The trial court entered an order disqualifying Bohannon, the propriety of which is not at issue; however, based on affidavits submitted by the lawyers in Pittman, Hooks, it found that Bohannon had not divulged any of the confidential information he had obtained during his employment with Starnes & Atchison and that Pittman, Hooks had taken sufficient steps to screen Bohannon from any participation in the plaintiff's suit. In denying the defendants' motion, the trial court ordered Pittman, Hooks to continue its policy of isolating Bohannon from the case.
Relying primarily on Ex parte America's First Credit Union, 519 So. 2d 1325 (Ala.1988) and Ex parte Taylor Coal Co., Inc., 401 So. 2d 1 (Ala.1981), the defendants contend that Pittman, Hooks should have been disqualified because of Mr. Bohannon's previous involvement as counsel for the defendants. We agree.
Disciplinary Rule 5-101(C), Code of Professional Responsibility of the Alabama State Bar ("the Code"), prohibits a lawyer from representing "a party to a cause or his successor after having previously represented an adverse party or interest in connection therewith." Definition (7) of the *1233 Code states: "Unless the context otherwise requires, wherever in these Rules the conduct of a lawyer is prohibited, all lawyers associated with him are also prohibited." Under Canon 9 of the Code, a lawyer is required to conduct himself so as to avoid even the appearance of professional impropriety. Ethical Consideration 9-1 states:
In Ex parte America's First Credit Union, supra, this Court adopted the "common sense" approach to questions concerning the vicarious disqualification of lawyers that had previously been adopted by the Court of Criminal Appeals in Terry v. State, 424 So. 2d 710 (Ala.Crim.App.1982). Under the "common sense" approach, the Code is not so strictly interpreted as to always require the disqualification of an entire law firm when one of the lawyers in that firm is disqualified. However, noting that the office of the general counsel and the Disciplinary Commission of the Alabama State Bar had also adopted the "common sense" approach, see 45 Ala.Law. 306 (1984), this Court in Ex parte America's First Credit Union, supra, stated as follows:
519 So. 2d at 1327-28. (Emphasis added.) The Court went on to state that it found the Disciplinary Commission's reasoning persuasive, and held that the trial court did not err when it refused to disqualify the law firm of Clark, Dean & Copeland, which represented Frederick Barkley in a malicious prosecution suit against America's *1234 First Credit Union, because Lloyd Copeland, a partner in the firm, who had previously worked in the Mobile County district attorney's office when a theft of property charge against Barkley had been nolprossed, "`did not play any active part in the prosecution of [Barkley] or the decision to terminate that prosecution.'" 519 So. 2d at 1328.
We note that the "common sense" approach adopted by this Court in Ex parte America's First Credit Union has been carried forward into the new Alabama Rules of Professional Conduct, which will become effective January 1, 1991. See Rule 1.10 ("Imputed Disqualification: General Rule") and the comment thereto.[3]
Finally, we are mindful that there will inevitably be some hardship suffered by the plaintiff in retaining new counsel. However, we can see no reason why the combined cooperation of the newly retained counsel, Pittman, Hooks, and the trial court cannot serve to minimize that hardship, so that this litigation can proceed with the parties', and the public's, confidence in the lawyers and the legal system intact.
For the foregoing reasons, the trial court's order denying the defendants' motion to disqualify Pittman, Hooks is reversed, and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
[1] The defendants' request to appeal this interlocutory order was granted pursuant to Rule 5, A.R.App.P.
[2] The plaintiff acknowledges in her brief that she has no reason to believe that the filing of the motion was intentionally delayed so as to allow the defendants to gain an unfair tactical advantage in the event the motion was granted.
[3] We have fully considered the plaintiff's argument concerning the applicability of the so called "Chinese wall" defense, which is recognized in some jurisdictions and which was recognized by the trial court as a basis upon which to avoid the vicarious disqualification of Pitman, Hooks. The term "Chinese wall" refers to any set of physical and procedural barriers intended to prevent one member of an organization, such as a law firm, from being exposed to information relating to a matter currently or formerly handled by one of his colleagues. See, generally, Comment, The Chinese Wall Defense to Law-Firm Disqualification, 128 U.Pa.L.Rev. 677 (1980); Casenote, Screening Mechanisms: A Rebuttal to Vicarious Disqualification, 15 Ohio N.U.L.Rev. 717 (1988); Commentary, Rebuttable Presumptions and Intra-Firm Screening: The New Seventh Circuit Approach to Vicarious Disqualification of Litigation Counsel, 59 Notre Dame L.Rev. 399 (1984); Annot., Sufficiency of Screening Measures (Chinese Wall) Designed to Prevent Disqualification of Law Firm, Member of Which is Disqualified for Conflict of Interest, 68 A.L.R.Fed. 687 (1984); Annot., Propriety of Law Firm's Representation of Client in Federal Court Where Lawyer Affiliated With Firm is Disqualified from Representing Client, 51 A.L.R.Fed. 678 (1981). However, this defense is not available under the Code, and it will be available under the new Alabama Rules of Professional Conduct only in certain cases involving the movement of lawyers between the government and private law firms. See Rule 1.11 ("Successive Government and Private Employment") and the comment thereto. The new Alabama Rules of Professional Conduct were adopted from the Model Rules of Professional Conduct of the American Bar Association. It was not the intent of the A.B.A., nor was it the intent of this Court in adopting the new rules, for the "Chinese wall" defense to be available in cases involving the movement of lawyers between private law firms. See Note, Attorneys: Vicarious Disqualification and the Model Rules of Professional Conduct, 40 Okla.L.Rev. 231 (1987). | December 7, 1990 |
238d8aac-feb7-46ba-8008-f782c4e48e97 | Weeks v. Princeton's | 570 So. 2d 1232 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 1232 (1990)
Molly WEEKS, et al.
v.
PRINCETON'S, a Corporation.
89-1078.
Supreme Court of Alabama.
November 16, 1990.
W.H. Rogers, Moulton, for appellants.
William P. Traylor III and Deborah S. Braden of Yearout, Myers & Traylor, Birmingham, for appellee.
ALMON, Justice.
This is an appeal from the dismissal of a complaint filed by Howard Weeks; his wife, Molly; and their minor daughters, Allison and Heather, against Princeton's, a Corporation ("Princeton's"). Princeton's operates a lounge that serves alcoholic beverages. The Weekses filed their complaint after Princeton's allegedly continued to sell alcoholic beverages to Howard after he had become obviously intoxicated, and then ejected him from the lounge. While driving home, Howard had a one-car accident and was injured.
The majority of the counts in the complaint were asserted by Howard individually. They consisted of claims of the tort of outrage, breach of an implied contract,[1] and a cause of action pursuant to Ala.Code 1975, § 6-5-71, the Dram Shop Act ("the Act").[2] Molly, Allison, and Heather also asserted claims alleging that Princeton's was liable under the Act due to its sale of alcoholic beverages to Howard after he had become intoxicated and that as a result of that sale, they had lost the companionship, services, society, and support of Howard. The trial court granted the defendant's motion to dismiss the Weekses' complaint. They appeal.
The trial court dismissed Molly, Heather, and Allison's Dram Shop Act claims, implicitly holding that they were not protected parties under the Act and thus had no cause of action. This Court has this date addressed the question whether an intoxicated person's "wife, child, [or] parent" is a protected party under the Act and is thus entitled to bring an action against a liquor supplier; see James v. Brewton Motel Management, Inc., 570 So. 2d 1225 (Ala.1990). In James, this Court joined a number of other jurisdictions that have statutes similar to § 6-5-71 by holding that an intoxicated person's minor children can bring an action under the Act. James, supra, at 1228. The rationale expressed in James applies to this case, and logically must be extended to include *1233 Howard's wife, Molly. Therefore, the Dram Shop Act claims asserted by Molly, Allison, and Heather stated a valid cause of action and were improperly dismissed.
Howard claimed damages for the injuries that he contends resulted from the defendant's violation of the Act. However, as this Court noted in Maples v. Chinese Palace, Inc., 389 So. 2d 120, 124 (Ala.1980), the intoxicated person is not a protected party under the Act. Therefore, Howard's Dram Shop Act claim was properly dismissed. Finally, even viewing the allegations in the complaint in the light most favorable to Howard, as this Court must do when reviewing the dismissal of a complaint, Jones v. Lee County Comm'n, 394 So. 2d 928 (Ala.1981), we agree that he could not prove any set of facts in support of his outrage and breach of implied contract claims that would entitle him to relief. Therefore, dismissal of those claims was also appropriate.
For the reasons stated above, that portion of the judgment dismissing each of Howard's claims is affirmed. However, that portion dismissing the Dram Shop Act claims asserted by Molly, Allison, and Heather is reversed, and this cause is remanded.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, SHORES, ADAMS and STEAGALL, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
See my special concurrence in James v. Brewton Motel Management, Inc., 570 So. 2d 1225 (Ala.1990).
[1] Howard alleged that Princeton's was under an implied contractual duty to not sell him alcoholic beverages when he was intoxicated.
[2] The Act allows the imposition of liability for damages based on the "selling, giving, or otherwise disposing" of alcoholic beverages "contrary to the provisions of law." Regulation No. 20-X-6-.02(4), promulgated by the Alcoholic Beverage Control Board, prohibits the sale of alcoholic beverages to persons who appear to be intoxicated. | November 16, 1990 |
4e9f7f0b-1bbd-452f-8af4-41c5a9c55d11 | Prince v. Higgins | 572 So. 2d 1217 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 1217 (1990)
Jo PRINCE and First Alabama Bank, as Executors of the Estate of Elizabeth H. Plummer, Deceased
v.
Paul HIGGINS and Adelaide Higgins.
89-1448.
Supreme Court of Alabama.
November 30, 1990.
*1218 M. Roland Nachman, Jr., and Patricia A. Hamilton of Balch & Bingham, Montgomery, for appellants.
Joana S. Ellis of Ball, Ball, Matthews & Novak, Montgomery, for appellees.
John B. Scott, Jr. of Capell, Howard, Knabe & Cobbs, Montgomery, for amicus curiae Huntingdon College.
Laura L. Crum of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for amicus curiae St. Margaret's Found., Inc.
SHORES, Justice.
Elizabeth H. Plummer died in Montgomery, Alabama, on December 29, 1989. Her 10-page will was admitted to probate on January 25, 1990. Under the terms of Mrs. Plummer's will, her "tangible personal property" was bequeathed to her brother, Paul Higgins, and a sister-in-law, Adelaide (even though Paul and Adelaide are not husband and wife, we shall refer to them as the "Higginses"). The residuary clause left the remainder of the estate "including real, personal and mixed properties" to eight named charitable beneficiaries.
The executors of the will, Jo Prince and First Alabama Bank, filed a complaint for a declaratory judgment, seeking a construction of the will and instructions pursuant to § 6-6-225, Ala.Code 1975, to resolve the issue of whether the 240 gold coins[1] found in the decedent's safety deposit box should be distributed to the Higginses or to the various residuary beneficiaries under the terms of the will. The executors took the position that the gold coins should pass pursuant to the residuary clause of the will, while the Higginses took the position that the coins were tangible personal property.
The trial court ruled that the gold coins were tangible personal property and therefore should be distributed to the Higginses under the terms of the will. The executors appeal.[2] We affirm.
The decedent bequeathed items of tangible personal property by Item III of her will. In Item III, paragraphs (a) through (s), she bequeathed items of personal property to specific individuals, making numerous, significant cash bequests to certain individuals. She then left all of her remaining "tangible personal property" to the Higginses in paragraph (t), as follows:
(R. 26). The residuary clause of the will, Item V, provides in pertinent part:
(R. 27.)
In the construction of a will, the cardinal rule is to ascertain the testator's intent. City National Bank of Birmingham v. Andrews, 355 So. 2d 341 (Ala.1978); Gafford v. Kirby, 512 So. 2d 1356, 1360 (Ala.1987). "We have repeatedly referred to this intent as the polestar that guides us." Id., citing Wiley v. Murphree, 228 Ala. 64, 151 So. 869 (1933). Therefore, the question before this Court is whether the trial court properly determined that the decedent intended the gold coins to pass *1219 under the bequest of her "remaining tangible personal property" or to pass as part of her residuary estate.
The bequest to the Higginses in Item III gives them "[a]ll of the remaining tangible personal property which I may own at the time of my death, not otherwise specifically bequeathed above, including...." It is clear on the face of the will that the testatrix intended that the Higginses receive the remaining tangible personal property of whatever nature, with the singular exception of any automobiles she might own at her death. The word "including" does not restrict the preceding general language, but is used as a term of enlargement. As we said in Sims v. Moore, 288 Ala. 630, 264 So. 2d 484 (1972):
288 Ala. at 635, 264 So. 2d at 487.
"Tangible personal property" is not an ambiguous term. "Tangible property" has a specific legal definition:
Black's Law Dictionary 1305 (5th ed. 1979). "Tangible property" has been defined and distinquished from "intangible property" as follows:
73 C.J.S. Property § 15 at 184 (1983) (footnotes omitted).
"Tangible personal property" (as that phrase is used in a statute making certain items subject to sales and use tax) has been construed by the Court of Civil Appeals of Alabama to include gold and silver coins bought and sold for investment and numismatic purposes:
Association of Alabama Professional Numismatists, Inc. v. Eagerton, 455 So. 2d 867, 869-870 (Ala.Civ.App.1984).
We find the reasoning in In re Macfarlane's Estate, 313 Pa.Super. 397, 459 A.2d 1289 (1983), persuasive. That case involved the interpretation of a provision of a will leaving all "tangible personal property" to the testator's wife. A residuary clause established a trust. In holding that certain gold and silver coins owned by the testator had passed to the wife as tangible personal property, rather than becoming part of the residuary estate, the Pennsylvania court said:
459 A.2d at 1292.
The case before us presents an almost identical situation. Upon an analysis of the will before us, we find no ambiguity. It utilizes the technical words "tangible personal property." Clearly, the gold coins are "tangible personal property" and thus were meant to be distributed under the terms of Item III, whether bought for investment purposes, as the executors argue they were, or not.
Because we find no ambiguity in the will, we reject the argument of the executors that the doctrine of ejusdem generis should be applied to Item III(t) of the will to restrict the "tangible personal property" bequeathed to those articles of household or personal use or ornament. See Merchants National Bank of Mobile v. Hubbard, 220 Ala. 372, 125 So. 335 (1929); Martin v. First Nat'l Bank of Mobile, 412 So. 2d 250, 253 (Ala.1982).
The executors cite us to Matter of Brecklein's Estate, 6 Kan.App.2d 1001, 637 P.2d 444 (1981), and In re Neefus' Will, 110 N.Y.S.2d 584 (Sur.Ct.1952). In these cases, the Court of Appeals of Kansas and the Surrogate's Court of Westchester County, New York, held that gold coins did not pass as items of a testator's personal effects or belongings. These cases are not persuasive, because neither of them involves the technical term "tangible personal property." Both involve the interpretation of the testator's intent in leaving "belongings" or "personal effects."
For the reasons stated herein, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, ADAMS and KENNEDY, JJ., concur.
[1] Consisting of 57 Kruggerands and 183 Canadian maple leaf coins.
[2] Two residuary beneficiaries, Huntingdon College and St. Margaret's Foundation, Inc., have filed a joint amicus curiae brief. | November 30, 1990 |
caf969c4-bbda-499d-837a-b0b63bb96e31 | Holland v. City of Alabaster | 572 So. 2d 431 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 431 (1990)
Sherman HOLLAND
v.
CITY OF ALABASTER, et al.
89-1110.
Supreme Court of Alabama.
November 30, 1990.
*432 Ralph J. Bolen, Birmingham, for appellant.
Hewitt L. Conwill and William R. Justice, Columbiana, for appellees.
HOUSTON, Justice.
Sherman Holland sued the City of Alabaster; the City Council of the City of Alabaster; John C. Draper, Jr., Nina W. Kent, Willie B. Arrington, Marvin Neal Bailey, and Wayne Lucas, in their official capacities as members of the city council; Roger N. Wheeler, in his capacity as Mayor of the City of Alabaster; and the City of Alabaster Sewage Treatment Department (the defendants will hereinafter be collectively referred to as "the City"), seeking to enjoin, and to recover damages for, an alleged trespass and nuisance. The jury returned a verdict in favor of the City on the trespass and nuisance claims. The trial court entered a judgment on that verdict, and denied Holland's request for an injunction, *433 as well as his motion for a new trial. Holland appealed. We affirm.
Holland first contends that the trial court erred in denying his motion for a new trial, which was based on a claim that the jury's verdict was contrary to the weight of the evidence. No ground for reversal of a judgment is more carefully scrutinized or rigidly limited than the ground that the verdict of the jury was against the weight of the evidence. Rather, there is a strong presumption of correctness of a jury verdict in Alabama and that presumption is strengthened by the trial court's denial of a motion for a new trial. An appellate court must review the tendencies of the evidence most favorably to the prevailing party and indulge such inferences as the jury was free to draw. The reviewing court will not reverse a judgment based on a jury verdict unless the evidence is so preponderant against the verdict as to clearly indicate that it was wrong and unjust. Christiansen v. Hall, 567 So. 2d 1338 (Ala.1990).
After carefully reviewing the record, as well as the briefs of the parties, we hold that the weight of the evidence was not so preponderant against the jury's verdict as to clearly indicate that it was wrong and unjust. The evidence showed that the City's sewage treatment plant discharged "sludge" into Buck Creek, which flows through Holland's property. The property through which Buck Creek flows was conveyed to Holland by Martin Marietta Corporation; however, the property "lying within the banks of Buck Creek" was specifically excepted from that conveyance. The evidence also shows that the "sludge" remained within the banks of the creek. Thus, the jury apparently found that the City did not "cause some `substance' or `thing' to enter upon" Holland's property, and, therefore, that the City had not committed a trespass. See Born v. Exxon Corp., 388 So. 2d 933, 934 (Ala.1980).
With regard to the nuisance claim, conflicting evidence was presented to the jury concerning the nature and extent of the City's discharge of "sludge" into the creek, the degree to which odors emanating from the creek could have materially interfered with Holland's quiet enjoyment of his property, the nature of the City's clean-up efforts, and the extent to which Holland cooperated in those efforts. The jury had the opportunity to hear all of the testimony and to consider all of the evidence, which included many documents and a number of pictures. Viewing the evidence as a whole, the jury could have concluded that any odors generated by the "sludge" in Buck Creek were not sufficient in magnitude or duration to rise to the level of a nuisance. Christiansen v. Hall, supra.
Holland next contends that he is entitled to a new trial because, he says, the foreperson of the jury, the Honorable Patricia M. Smith, District Judge for Shelby County, disregarded the trial court's instructions by not considering all of the evidence introduced at trial. Holland's contention in this regard is based on a newspaper article in which the following statement was attributed to Judge Smith:
We have carefully reviewed the newspaper article in its entirety and it does not in any way show that Judge Smith acted improperly in her service as a juror. In the absence of evidence to the contrary, jurors are presumed to have followed the trial court's instructions. "`[A] party cannot be permitted to speculate on the results of a court's instruction or claim error with regard thereto without an affirmative showing that such an instruction was ignored by the trier of fact or caused an improper verdict.'" Empiregas, Inc. of Ardmore v. Hardy, 487 So. 2d 244, 252 (Ala.1985), cert. denied, 476 U.S. 1116, 106 S. Ct. 1973, 90 L. Ed. 2d 657 (1986), quoting Citizens Bank v. Routh, 351 So. 2d 594, 597 (Ala.Civ.App. 1977). See, also, Alfa Mutual Ins. Co. v. Northington, 561 So. 2d 1041 (Ala.1990). We find this contention to be totally without merit.
*434 Finally, Holland argues that the trial court erred in refusing his request for an injunction. The issuance of injunctive relief is within the sound discretion of the trial court. Holland's burden on appeal is to establish that the trial court abused its discretion in denying his request for injunctive relief, by showing that the court committed "a clear or palpable error." Hood v. Neil, 502 So. 2d 749, 750 (Ala.1987). The same evidence that precluded us from disturbing the trial court's denial of Holland's motion for a new trial also precludes us from finding an abuse of discretion on the trial court's part in denying his request for an injunction. The record does not show that the trial court committed "a clear or palpable error."
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS and KENNEDY, JJ., concur. | November 30, 1990 |
8a4f7f96-95c1-4ac6-8171-90ce451bada3 | Ex Parte Peck | 572 So. 2d 427 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 427 (1990)
Ex parte Harold G. PECK and John O. Morrow, Jr., d/b/a Peck and Morrow, Attorneys at Law.
(In re Bridgett McMURTREY, a minor, suing by and through her natural mother and next friend, Jacqueline McMURTREY; and Jacqueline McMurtrey, individually v. Barbara COOPER, et al.)
89-1601.
Supreme Court of Alabama.
November 16, 1990.
*428 John O. Morrow, Jr. of Peck and Morrow, Florence, for petitioners.
Ned Michael Suttle, Circuit Judge of Lauderdale County, for respondents.
Christopher E. Connolly of O'Bannon & O'Bannon, Florence, guardian ad litem.
William R. Myers of Yearout, Myers & Traylor, Birmingham, for respondent Barbara Cooper.
STEAGALL, Justice.
This petition for writ of mandamus arises from an alleged error on the part of the trial court in reducing a contingent attorney fee set by a contract between a minor's parent and the minor's attorneys.
Bridgett McMurtrey, a minor, and Jacqueline McMurtrey, her mother, were injured in an automobile accident in Lauderdale County. Bridgett's fatherJacqueline's husbandemployed Harold G. Peck and John O. Morrow, Jr., doing business as Peck and Morrow, Attorneys at Law, to represent his wife and daughter in their claims arising out of the automobile accident. He signed a one-third contingent fee agreement between "Peck and Morrow, Attorneys at Law" and "Jackie McMurtrey and Jimmy McMurtrey, individually, and as the ... parents of Bridgett McMurtrey."[1] Jacqueline McMurtrey did not sign that contract.
Peck and Morrow negotiated a settlement for Bridgett with the defendants in this case. After a pro ami hearing, the trial court approved the settlement, but reduced the contingent fee from one-third to one-fifth. Peck and Morrow then filed this petition for a writ of mandamus, requesting that this Court order the trial court to amend its final judgment to provide a one-third attorney fee or, alternatively, that this Court vacate the final judgment and remand the cause for another circuit judge to reconsider the fee and for Peck and Morrow to be made parties to the lawsuit and to be afforded due process and equal protection as to their rights under the contingent fee contract.
Peck and Morrow first contend that because they were not parties to the lawsuit, the trial court lacked jurisdiction over them to reduce their attorney fee. Because the trial court had jurisdiction in this case, however, it had the authority to decide every question duly presented or arising in the case. Cobbs v. Norville, 227 Ala. 621, 151 So. 576 (1933). The question of the attorney fee arises out of this case and is a collateral matter over which the trial court had jurisdiction.
Peck and Morrow further contend that the parents of a minor have the authority to contract for payment of a reasonable attorney fee for legal services rendered on behalf of the minor and that the trial court abused its authority in reducing the attorney fee agreed upon. In Malone v. Malone, 491 So. 2d 932 (Ala.1986), this Court reaffirmed "the general rule recognized by a majority of jurisdictions that parents, as next friends, are authorized to contract for payment of a reasonable fee for legal services rendered on behalf of their minor children." 491 So. 2d at 933. In that case, the cause was remanded in order for the trial court to determine the reasonableness of the attorney fee.
In Peebles v. Miley, 439 So. 2d 137 (Ala. 1983), this Court set forth the following factors to be considered by the trial court in determining the reasonableness of an attorney fee:
439 So. 2d at 140-41. (The first six factors were quoted from T.S. Faulk & Co. v. Hobbie Grocery Co., 178 Ala. 254, 59 So. 450 (1912); the seventh factor was added in King v. Keith, 257 Ala. 463, 60 So. 2d 47 (1952); and the last five factors were adopted in Peebles from DR 2-106(b) of the American Bar Association's Model Code of Professional Responsibility (1982).) We further noted in Peebles that "[o]ur cases recognize that an attorney on a contingent fee basis is entitled to charge more than an attorney who is guaranteed compensation by periodic billings." 439 So. 2d at 142.
A reviewing court must be able to ascertain from the record what factors the trial court considered in awarding the attorney fee. Van Shaack v. AmSouth Bank, N.A., 530 So. 2d 740 (Ala.1988). Nothing before us indicates that the trial court heard any evidence of the reasonableness of the attorney fee that would support a consideration of the 12 factors set out in Peebles. We, therefore, remand this cause to the trial court to give the parties an opportunity to present evidence of the reasonableness of the agreed-upon attorney fee. If the court finds that fee to be a reasonable one, then it is directed to amend the final judgment to provide a one-third attorney fee; if it finds that that fee was not a reasonable one, then it is to set out its reasons for the lesser award.
WRIT GRANTED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES and ADAMS, JJ., concur.
HOUSTON, J., dissents.
HOUSTON, Justice (dissenting).
I must dissent. The trial court weighed the factors that it should have weighed in setting this fee. The interest of the minor must be the polestar in a pro ami settlement; in this case, it was. I would deny the writ.
[1] The contract was signed by "James H. McMurtrey, Jr."; however, throughout this petition, Bridgett's father is referred to as "Jimmy McMurtrey." | November 16, 1990 |
4256a7de-9dc5-4d4d-b3fd-de7adecb5b9e | Richards v. Lennox Industries, Inc. | 574 So. 2d 736 | N/A | Alabama | Alabama Supreme Court | 574 So. 2d 736 (1990)
Larry Brice RICHARDS and Denise Richards
v.
LENNOX INDUSTRIES, INC.
89-1160.
Supreme Court of Alabama.
December 7, 1990.
Rehearing Denied January 11, 1991.
*737 Leon Garmon, Gadsden, for appellants.
Connie Ray Stockham and Joe L. Leak of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellee.
HOUSTON, Justice.
Larry Brice Richards and Denise Richards filed a products liability action under the Alabama Extended Manufacturer's Liability Doctrine against Lennox Industries, Inc. ("Lennox").[1] Mr. Richards sought money damages for injuries he sustained in an explosion that he contends was caused by a defective valve assembly in the gas furnace in the Richards home. Mrs. Richards sought money damages for loss of consortium resulting from her husband's injuries.
The Richardses contended that Lennox had negligently designed, manufactured, inspected, and sold a gas furnace that they allege exploded and injured Mr. Richards. Lennox pleaded, among other things, contributory negligence, efficient intervening cause, and misuse of the product. In addition, Lennox not only denied that the gas furnace exploded but also denied that the gas furnace was the cause of any explosion whatsoever.
At trial, the Richardses called as one of their witnesses Jesse Wade, who testified that he had removed the subject valve assembly from the gas furnace in the Richards home with the help of Leon Garmon, the Richardses' attorney, but that he could not remember "whether [the valve assembly] was broken or not." During the presentation of its defense, Lennox called as its witness Kenneth Paul Robertson, Jr. (former law clerk to Garmon), who testified that he had observed a test conducted on the valve assembly prior to its removal, that he had removed the valve assembly from the gas furnace at the Richards home with no assistance from anyone, that to his knowledge there were no "parts broken off of [the valve assembly]" at the time he removed it, and that he had returned the valve assembly to Garmon's office. Robertson *738 was employed by Garmon at the time he says he made these observations and performed these acts.
The Richardses objected[2] to Robertson's testimony on behalf of Lennox, contending that under Ala.Code 1975, § 12-21-161, Robertson was not competent to testify against them. Section 12-21-161 reads as follows:
Specifically, the Richardses objected to Robertson's testimony because they contended that Robertson's knowledge of the allegedly defective valve assembly was a "matter or thing, knowledge of which may have been acquired from the client," and was thereby protected under the attorney-client privilege.
The trial court, having heard the proffered testimony in camera, overruled the Richardses' objections and permitted Robertson to testify. Thereafter, the jury returned a verdict in favor of Lennox and against the Richardses. The Richardses then filed a motion for judgment notwithstanding the verdict,[3] or in the alternative, a new trial, contending that Robertson's testimony was clearly contrary to and in violation of § 12-21-161 and the common law attorney-client privilege and was highly prejudicial to the substantial rights of the Richardses. The trial court denied the Richardses' motion for new trial, stating, in pertinent part, as follows:
"[The Richardses'] argument focuses on the ... wording [of § 12-21-161] preventing testimony concerning `any matter or thing, knowledge of which may have been acquired from the client.' [The Richardses] state that since Kenneth Paul Robertson, Jr., the former law clerk, learned about the furnace involved in this case and obtained access to the furnace in [the Richardses'] house through his employment with [the Richardses'] counsel, that this information is confidential and privileged. This Court disagrees with [the Richardses] here, for the furnace was the subject matter of the lawsuit, and the chain of custody was a relevant issue. Certainly the location of the furnace, the safe design of which was the issue in the trial, was not privileged information, but information required by all parties in the suit and obtainable through discovery. While the former clerk learned of the testimony from [the Richardses], this testimony is *739 knowledge that `may have been acquired in any other manner.' § 12-21-161, Ala. Code (1975). In addition, Ken Robertson, the former law clerk, merely testified that he removed the valve system from the furnace and observed a test. He neither testified about communications he had with [the Richardses] nor about legal advice he gave [the Richardses]. These facts must be read together with the applicable case law which holds that `a statement of some act done by him, was in no wise violative of the statutory proscription related to the incompetency of a lawyer to testify against his client.' Ole South Building Supply Corp. v. Pilgrim, 425 So. 2d 1086 at 1093 (Ala. 1983)."
The Richardses appeal.
The issue for our review is whether the trial court erred in holding that Robertson was competent to testify as a witness on behalf of Lennox. In essence, we must determine whether the trial court erred in holding that Robertson's testimony concerning his "acts" was not protected under the attorney-client privilege pursuant to § 12-21-161.
By enacting § 12-21-161, Alabama recognized the common law attorney-client privilege:
Ex parte Enzor, 270 Ala. 254, 256, 117 So. 2d 361 (1960).
The basic elements of the attorney-client privilege, as statutorily defined at § 12-21-161, are set out in C. Gamble, McElroy's Alabama Evidence § 388.01 (3d ed. 1977), as follows:
See 8 Wigmore, Evidence § 2292 (McNaughton rev. 1961).
Communications to an attorney's law clerk, in the belief that he is acting in a legal capacity, have the same privileged status as communications to the attorney himself. Hawes v. State, 88 Ala. 37, 7 So. 302 (1890). The term "communication" imports not only words uttered, but information conveyed by other means. "Acts as well as words fall within that privilege." Cooper v. Mann, 273 Ala. 620, 143 So. 2d 637 (1962).
In Ex parte Great American Surplus Lines Insurance Co., 540 So. 2d 1357, 1359 (Ala.1987), we examined the purpose of the attorney-client privilege:
(Citations omitted.)
The burden of establishing the privilege rests with the client or with the party objecting to the disclosure of the communication. See Harris v. State, 281 Ala. 622, 206 So. 2d 868 (1968); see, also, Swain v. Terry, 454 So. 2d 948 (Ala. 1984). The client also has the burden of showing that the admission of the privileged information into evidence will be prejudicial to him. Swain v. Terry, supra. Whether a communication is privileged is "a matter solely within the province of the court to determine." See, Ex parte Griffith, 278 Ala. 344, 178 So. 2d 169 (1965), cert. denied, 382 U.S. 988, 86 S. Ct. 548, 15 L. Ed. 2d 475 (1966). Because not every communication made by a client to an attorney is privileged, *740 the trial court must first look at the circumstances of the case in connection with the fact disclosed and determine whether the communication was made "professionally" (i.e., whether it was made professionally is a question of fact for the trial court). Brazier v. Fortune, 10 Ala. 516 (1846). However, once that determination has been made, the trial court then determines whether, as a matter of law, the attorney-client privilege may be invoked. See 1 Thornton on Attorneys at Law § 96 (1914). Invocation of the privilege is solely the client's prerogative; therefore, the client may waive the privilege, either directly or constructively. See Swain v. Terry, supra.
In order to prevail on their products liability claim against Lennox under the Alabama Extended Manufacturer's Liability Doctrine, the Richardses had the burden of proving that the valve assembly was in the same or substantially the same condition at the time of the incident that it was in at the time the gas furnace was sold. They also had to prove that their expert's experiments were conducted under substantially the same conditions as existed at the time of the incident, in order for evidence of those experiments to be introduced into evidence. See Caterpillar Tractor Co. v. Ford, 406 So. 2d 854 (Ala. 1981). Therefore, the testimony concerning the removal of the valve assembly and its condition at the time of its removal constituted a critical component of the Richardses' case. Thus, the Richardses contend that Robertson's testimony clearly violated the attorney-client privilege, because knowledge of the matters about which he testified, including knowledge of the mere existence of the gas furnace as well as actual access to the gas furnace, was gained from the Richardses as a direct result of Robertson's employment as law clerk for Garmon. The Richardses contend that Robertson's testimony created an inference that the condition of the valve assembly had been altered or damaged subsequent to the explosion and subsequent to the removal of the valve assembly.
Lennox contends that the Richardses did not carry their burden of establishing that Robertson's testimony was privileged communication. Rather, Lennox contends that Robertson's testimony merely regarded "acts" that he had performedthe act of removing the valve assembly; the act of removing from the basement a piece of pipe that Lennox contends could have been a possible source of gas causing the explosion; and the act of observing a test conducted on the gas furnace (a test that had been conducted while the valve assembly was still in place in the Richards home and prior to the experiments conducted by the Richardses' expert).
We note the cases that Lennox cites for the proposition that Robertson's testimony as to certain acts in no way violates the attorney-client privilege, namely Ole South Building Supply Corp. v. Pilgrim, 425 So. 2d 1086 (Ala.1983); Guiterman, Rosenfield & Co. v. Culbreth, 219 Ala. 382, 122 So. 619 (1929); Chapman v. Peebles, 84 Ala. 283, 4 So. 273 (1888). However, after a thorough review of those cases, we find their facts to be distinguishable from those of the instant case. We also find the rationale of their holdings not to be applicable to the issue before us. Furthermore, our extensive research has revealed no case directly on point.
In the instant case, it is undisputed that Robertson was Garmon's law clerk at the time he performed the "acts" of which he testified. Thus, with respect to the facts before us, we find that Robertson's testimony regarding the "acts" he performed represented communications from the Richardses (as the clients) to Robertson (as law clerk for Garmon at the time in question). Therefore, after a careful analysis of § 12-21-161, along with a careful analysis of DR 4-101, Rules of Disciplinary Enforcement (1974) (effective until January 1, 1991), and the new Canon 4, Alabama Rules of Professional Conduct (effective January 1, 1991), we hold that the "acts" as to which Robertson testified were privileged communications, knowledge of which was obtained from a confidential attorney-client relationship, and that the admission of evidence of those "communications" violated § 12-21-161.
*741 In addition, after thoroughly reviewing the record, we consider it clear that Robertson's testimony concerning his removal of the valve assembly and his testimony concerning the condition of the valve assembly at the time of its removal were prejudicial to the Richardses' case, because that testimony could have conceivably given rise to an inference that the valve assembly had been altered or damaged between the time of the explosion at the Richards home and the time that the Richardses' expert tested the valve assembly. The inference that the damage or alteration occurred after the incident complained of, but before the testing conducted by the Richardses' expert, could have had the effect of invalidating those tests and could have rendered the Richardses' products liability claim against Lennox less credible.
We note the argument made by Lennox that if Robertson's testimony was determined to be privileged, then the Richardses had waived such privilege by allowing their witness to testify that he removed the valve assembly with the help of Garmon. Lennox cites no authority for that proposition. Furthermore, we find that argument to be totally without merit.
Based on the foregoing, we hold that the trial court erred in holding that Robertson's testimony was not privileged and in denying the Richardses' motion for a new trial. Therefore, we reverse and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] The complaint also named as defendants Honeywell, Inc.; ITT General, Inc.; and Empiregas, Inc. The trial court entered summary judgment in favor of these defendants. The Richardses, however, did not appeal from these judgments; therefore, these defendants are not parties to this appeal.
[2] We note Lennox's argument that the Richardses failed to specifically object to the admission of Robertson's testimony. However, our review of the record reveals that the Richardses requested, and the trial court noted, a continuing objection to that testimony.
[3] Because the Richardses failed to file a motion for directed verdict, which is a prerequisite to a motion for judgment notwithstanding the verdict, the trial court's denial of that motion was proper. | December 7, 1990 |
36e95ab4-2674-47e6-a2c8-b351af77e9de | Wellcraft Marine v. Zarzour | 577 So. 2d 414 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 414 (1990)
WELLCRAFT MARINE, A DIVISION OF GENMAR INDUSTRIES, INC.
v.
Robert J. ZARZOUR.
Robert J. ZARZOUR
v.
ECONOMY MARINE, INC., et al.
The CINCINNATI INSURANCE COMPANY, INC.
v.
Robert J. ZARZOUR.
89-0012, 89-0092 and 89-0160.
Supreme Court of Alabama.
December 14, 1990.
Rehearing Denied March 15, 1991.
*415 Richard H. Sforzini, Jr. and Michael A. Youngpeter of Sirote & Permutt, Mobile, for appellant Wellcraft Marine.
David A. Hamby, Jr. and James W. Tarlton IV of Brown, Hudgens, Richardson, Mobile, for appellant Cincinnati Ins. Co.
M.A. Marsal and C.S. Chiepalich and Clifford C. Sharpe, Mobile, for appellee/cross-appellant Robert J. Zarzour.
Richard L. Thiry, Mobile, for appellee Economy Marine, Inc.
MADDOX, Justice.
These consolidated appeals present substantive questions of law concerning the applicability of the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") and the law of implied warranty:
We must also consider a question of timeliness regarding one of the appeals.
This lawsuit arises out of a boating mishap involving Robert J. Zarzour, who purchased a boat from Economy Marine, Inc. (hereinafter "Economy"). The boat had been manufactured by Wellcraft Marine, a division of Genmar Industries, Inc. (hereinafter "Wellcraft"), and was insured by Cincinnati Insurance Company.
In March 1986, while boating in Mobile Bay with family and friends, Zarzour drove the boat into, or bumped, an unseen, submerged object near Dauphin Island. After determining that the damage was not major, Zarzour drove the boat across Mobile Bay back to Dog River Marina, but during the trip the boat began to take on water. No one in the boat was physically injured. Cincinnati Insurance's inspector examined the boat and determined that there were manufacturing defects in the boat, and Cincinnati Insurance refused to pay for the damage.
On July 2, 1986, Zarzour filed this action against Wellcraft and Economy, alleging breach of express warranty and breach of implied warranties and asserting claims under the AEMLD. Zarzour later amended his complaint to claim damages for mental anguish and punitive damages against Wellcraft based on alleged wanton or willful misconduct in placing a defective boat in the stream of commerce. Zarzour made claims against Economy based on an alleged breach of express warranty, breach of implied warranty of merchantability, and revocation of acceptance. Zarzour also added a claim against Cincinnati Insurance alleging breach of contract.
Wellcraft subsequently filed a motion for partial summary judgment on Zarzour's punitive damages claims, and this motion was granted.
Zarzour later amended his complaint to drop his breach of express warranty claim against Wellcraft and Economy.
The case ultimately went to trial. At the close of the plaintiff's evidence, Wellcraft moved for a directed verdict, arguing as one of the grounds that Zarzour could not recover damages under the AEMLD for property damage to the product itself. The trial court denied Wellcraft's motion, but subsequently granted its motion for a directed verdict made at the close of all the evidence on the implied warranty and mental anguish claims that Zarzour had filed against Wellcraft. Economy was also granted a directed verdict on Zarzour's mental anguish claim. As a result of the trial court's action, the only claim against Wellcraft submitted to the jury was the AEMLD claim. The claims against Economy that were submitted to the jury were the breach of implied warranty and revocation of acceptance claims. The jury returned a verdict against Wellcraft on the AEMLD claim for $46,916 and a verdict against Cincinnati Insurance on the breach of contract claim for $15,639. The jury returned a verdict in favor of Economy on Zarzour's implied warranty and revocation of acceptance claims.
Only Wellcraft filed post-trial motions. It moved for judgment notwithstanding the verdict, new trial, and remittitur, and each of these motions was denied on August 22, 1989. Wellcraft timely filed its notice of appeal on September 29, 1989. Zarzour filed a notice of cross-appeal on October 13, 1989, in which he stated, among other things, the following:
Cincinnati Insurance, although it had not filed any post-trial motion, filed on October 27, 1989, what it styled a "Notice of Cross Cross Appeal" from "[t]he Order dated May 4, 1989 entering a judgment in favor of Robert J. Zarzour on the issue of pre-judgment interest; and.... [t]he Cross-Appeal of Robert J. Zarzour filed on October 13, 1989." Cincinnati Insurance and Economy have both filed motions with this Court to dismiss Zarzour's cross-appeal as being untimely.
In this case, there is presented once again a question of appellate practice and procedure that has caused some confusion, that question being the time within which parties should appeal in litigation involving several parties; this question is especially troublesome when there are post-trial motions filed by one or more of the parties.[1] We take this opportunity to address once again this question of appellate practice and procedure.
One of the questions presented here is whether a party, Zarzour in this case, can cross-appeal and claim error by the trial court, when the party has not filed a post-trial motion in the trial court and given the trial judge an opportunity to correct the alleged improper ruling. Both Cincinnati Insurance and Economy contend that because Zarzour did not file a post-judgment motion in the trial court, that his time for taking an appeal was not tolled, and they point out that when he appealed more than 42 days had expired after the entry of the judgment of the trial court from which he was appealing.
The timeliness of such an appeal is not without its problems, and the factual situation here presented has arisen before. In Bowman v. Fire Investigations & Analyses, Inc., 502 So. 2d 773 (Ala.Civ.App.1987), the Court of Civil Appeals held that a second appellant's notice of appeal was untimely because that second appellant had not filed a post-judgment motion, but that the first appellant's appeal was timely because she had filed a post-judgment motion and the running of her time for appeal had therefore been tolled. Bowman held that the running of one party's time for appeal was not tolled by the fact that another party had a post-trial motion pending.
In the case before us, Wellcraft did file post-judgment motions. The filing of those motions tolled the time within which an appeal could be taken, because it is well established that the filing of a post-judgment motion made pursuant to Rule 59, A.R.Civ.P., tolls the time for taking an appeal from the case. Rule 4(a)(3), A.R. App.P. The running of the time for taking an appeal is tolled as to all parties, not just the one who filed the post-judgment motion.[2] We conclude that Bowman was incorrectly decided insofar as it held the appeal untimely.
Wellcraft's post-judgment motions tolled the time for taking an appeal, and once Wellcraft timely appealed after its motions were denied, Zarzour cross-appealed within the 14 days allowed by Rule 4(a)(2), A.R.App.P., which states, in part, "If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days." Rule 4(a)(3) provides, in part, that "[a]ny error or ground of reversal or modification of a judgment or order which was asserted in the trial court may be asserted on appeal without regard to whether such error or ground has been raised by motion in the trial court under Rule 52(b) or Rule 59 of the ARCP." Here, Zarzour's notice of appeal was from "(1) the order granting summary judgment *418 in favor of Economy Marine, Inc., as to [his] claim for breach of expressed warranties... [and] (2) the order dated June 15, 1988 granting summary judgment in favor of Wellcraft Marine on the issue of punitive damages...." We find that his cross-appeal was timely.[3]
Although Zarzour's cross-appeal was timely filed, the same is not true with regard to the cross-appeal by Cincinnati Insurance, which was filed more than 14 days after Wellcraft's notice of appeal was filed; therefore, Cincinnati Insurance's notice of appeal was untimely and is due to be dismissed. Consequently, we will not address any of the issues raised by Cincinnati Insurance in its appeal.
On its appeal, Wellcraft contends that it was error for the trial court to submit to the jury Zarzour's AEMLD claim, because the only damage claimed by Zarzour was to the product itself and, Wellcraft contends, one cannot recover under the AEMLD for damage to the product itself. This Court held in Dairyland Ins. Co. v. General Motors Corp., 549 So. 2d 44 (Ala.1989), and Lloyd Wood Coal Co. v. Clark Equipment Co., 543 So. 2d 671 (Ala. 1989), that there is no cause of action in tort under the AEMLD for a product defect that results in damage only to the product itself. Zarzour contends that this Court should distinguish between products that are sold to consumers and products that are sold to commercial buyers, but we are unwilling to adopt such a distinction. The rule remains the same, regardless of the nature of the customer: "`A defective product is a loss of the benefit of the bargain which is a contract rather than a tort action.'" Dairyland Ins. Co., 549 So. 2d at 46, quoting C. Gamble & D. Corley, Alabama Law of Damages, § 32-8 at 339 (1982).
Zarzour claims that if this Court does not allow his AEMLD judgment to stand, we will deprive him of a remedy. That is not the case. Wellcraft provided Zarzour with an express warranty on the boat, and the alleged damage occurred while the boat was still under warranty. Zarzour initially made a claim based on the breach of this express warranty but specifically amended his pleadings to drop his claim based on the express warranty.
Zarzour, arguing in support of an affirmance of the judgment entered on his AEMLD claim, says that the judgment should stand, even if damages could not be recovered for the damage to the boat itself, because there was damage to items other than to the boat itself, items such as his shoes and equipment in the boat. Regarding this argument, we note that Zarzour made no claim in his pleadings regarding damage other than to the boat, even if such a claim would be allowed; therefore, we find that the jury could not have based its verdict on a finding that property other than the boat itself was damaged because of the alleged defect in the boat, assuming that damages relating to the personal items and equipment in the boat would have been recoverable.
Based on the foregoing, we hold that the trial court erred in submitting the AEMLD claim to the jury. Therefore, the judgment entered against Wellcraft is due to be reversed and a judgment rendered in favor of Wellcraft.
We now consider Zarzour's argument made on cross-appeal that the trial court erred in directing a verdict for Wellcraft on his claim of mental anguish.
In Alabama, the general rule is that mental anguish is not a recoverable element of damages arising from a breach *419 of contract. However, there are two exceptions to this rule: (1) where the contractual duty is so coupled with matters of mental concern or solicitude, or with the feelings of the party to whom the duty is owed, that a breach of that duty will necessarily, or can reasonably be expected to, result in mental anguish or suffering, and (2) where the breach of the contract is tortious or is attended with personal injury. See B & M Homes, Inc. v. Hogan, 376 So. 2d 667 (Ala.1979); Stead v. Blue Cross-Blue Shield of Alabama, 346 So. 2d 1140 (Ala.1977); F. Becker Asphaltum Roofing Co. v. Murphy, 224 Ala. 655, 141 So. 630 (1932). We decline to hold, as Zarzour urges us to hold, that the sale of a boat is a contract so related to matters of mental concern or solicitude as to bring it within the first exception to the rule. Regarding the second exception, we note that Zarzour did not present any evidence that this breach of contract was tortious. Therefore, the trial court did not err in directing a verdict for Wellcraft on this claim.
Zarzour also argues on his cross-appeal that the trial court erred in entering a summary judgment for Wellcraft on his claim for punitive damages. Because we find that the only claim made by Zarzour was that he had suffered an injury to the product itself, we conclude that Zarzour's remedy was in contract and not in tort, as explained above. This Court specifically rejected a claim based on wantonness where the only damage was to the product itself. See Lloyd Wood Coal Co. v. Clark Equipment Co., 543 So. 2d 671 (Ala.1989). The trial court did not err in entering a summary judgment as to this claim.
Zarzour argues that there was privity between himself and Wellcraft and that because of this privity the trial court erred in directing a verdict for Wellcraft on his implied warranty claims. Wellcraft, and not Economy, provided Zarzour with a written warranty covering the boat. "While Alabama's version of U.C.C. § 2-318 has abolished privity requirements in actions involving injuries to natural persons, the privity requirements still remain[ ] in cases of strictly economic injury." State Farm Fire & Cas. Co. v. J.B. Plastics, Inc., 505 So. 2d 1223, 1227 (Ala.1987). There is no right of action on an implied warranty theory against a manufacturer for property damage without privity of contract; Section 7-2-318, Ala.Code 1975, provides, "A seller's warranty, whether express or implied, extends to any natural person...." (Emphasis added.) "Seller" is defined as "a person who sells or contracts to sell goods," § 7-2-103(1)(d). Further, § 7-2-314 (the implied warranty of merchantability section) and § 7-2-315 (the implied warranty of fitness for a particular purpose section) both apply to the "seller." In this case, Economy was the seller, not Wellcraft.
Zarzour argues that the written, express warranty did not disclaim implied warranties, and, thus, that Wellcraft was liable under those implied warranty theories. However, Zarzour overlooks the fact that Wellcraft was not the seller and, thus, was under no obligation to disclaim implied warranties that did not apply to it, the manufacturer.
Zarzour also contends that the express warranty itself created privity of contract and therefore that his implied warranty claims should have been allowed to go to a jury, but Zarzour cites no authority for the proposition that an express warranty converts a manufacturer into a "seller" for the purposes of the commercial code's implied warranty provisions. Regardless of any express warranties that a manufacturer may wish to give with a product, by their very language the commercial code's implied warranty sections apply to the seller of the product. Zarzour does not contend that Economy was Wellcraft's agent and produced no evidence that Wellcraft was the "seller" for the purposes of the implied warranty sections; therefore, the trial court did not err in directing a verdict for Wellcraft on Zarzour's implied warranty claims.
On his cross-appeal, Zarzour also raises two issues regarding Economy. Zarzour argues that the trial court erred in not submitting his mental anguish claim to the jury; for the reasons set forth above, we conclude that the trial court did not err. Prior to trial and prior to taking an appeal from this judgment, Zarzour dropped his express warranty claim against Economy; therefore, even if the trial court had erred in entering a summary judgment for Economy on that claim, the error would not be reversible because Zarzour later dropped that claim. Stated differently, any error in entering that summary judgment was harmless, because Zarzour later made the decision to forgo pursuing any express warranty claim against any party.
Based on the foregoing, the judgment of the trial court denying Wellcraft's motion for judgment notwithstanding the verdict is due to be reversed and a judgment rendered for Wellcraft; the summary judgments are due to be affirmed; and Cincinnati Insurance's appeal is due to be dismissed.
89-0012 REVERSED AND JUDGMENT RENDERED.
89-0092 AFFIRMED.
89-0160 DISMISSED AS UNTIMELY.
ALMON, ADAMS, HOUSTON and STEAGALL, JJ., concur.
JONES, J., dissents.
JONES, Justice (dissenting).
I respectfully dissent. See my dissent in Lloyd Wood Coal Co. v. Clark Equipment Co., 543 So. 2d 671 (Ala.1989).
[1] See Ex parte Andrews, 520 So. 2d 507 (Ala. 1987), and Owens v. Coleman, 520 So. 2d 514 (Ala.1987).
[2] In fact, problems can develop if a party files a notice of appeal within the time allowed for the filing of a post-trial motion and before another party has filed a post-judgment motion. See generally Owens v. Coleman, 520 So. 2d 514 (Ala. 1987), and Ex parte Andrews, 520 So. 2d 507 (Ala.1987).
[3] In Alabama Power Co. v. Alabama Public Service Commission, 390 So. 2d 1017 (Ala. 1980), this Court held that an appeal by members of an industrial group, who had intervened in a Public Service Commission rate proceeding, was timely, even though the appeal was not filed within the 30 days provided by a statute for taking an appeal, but was filed within the 14-day period permitted for taking a cross-appeal by Rule 4(a)(2), Ala.R.App.P. In that case, the Court reasoned that once the appeal was perfected in this Court, the provisions of Rule 4(a)(2) controlled over what appeared to be a conflicting statutory provision. | December 14, 1990 |
93b23308-4f8e-4261-8dea-174d5f84c3b4 | ALABAMA LAW ENFORCE. OFFICERS v. City of Anniston | 131 So. 2d 897 | N/A | Alabama | Alabama Supreme Court | 131 So. 2d 897 (1961)
ALABAMA LAW ENFORCEMENT OFFICERS, INC.
v.
CITY OF ANNISTON et al.
7 Div. 497.
Supreme Court of Alabama.
June 22, 1961.
Thos. L. Smiley, Birmingham, for appellant.
Emerson & Watson, Anniston, for appellees.
STAKELY, Justice.
The Alabama Law Enforcement Officers, Inc., a corporation (appellant), filed a bill of complaint in the Circuit Court of Calhoun County, Alabama, in Equity, seeking a declaratory judgment whereby Ordinance No. 2457, adopted by the Board of Commissioners of the City of Anniston, Alabama, on the 11th day of August, 1959, be declared unconstitutional and void and seeking a temporary and permanent injunction restraining and enjoining the respondents, the City of Anniston, Alabama, and George T. Morris, as Chairman of the Board of Commissioners of the City of Anniston, Claude Dear, Jr. and William Weatherly, as Associate Members of the Board of Commissioners (appellees), from interfering with the complainant in the solicitation of advertising in the City of Anniston, Alabama, under the authority of Ordinance No. 2457.
For the purposes of this decision the material part of Ordinance No. 2457 is set out as follows:
It is provided in the ordinance that violation of its terms shall be a misdemeanor and punishable as provided in the ordinance.
Judge DeBardelaben set the application for a temporary writ of injunction for hearing within ten days from the filing of the bill upon notice to the respondents pursuant to § 1054, Title 7, Code of 1940. The application for a temporary writ of injunction was heard on August 20, 1959. On January 18, 1960, Judge DeBardelaben entered an order denying the application for a temporary writ of injunction. This appeal is from the order of January 18, 1960.
The appellant in general complains that the ordinance of the City of Anniston which seeks to prohibit the solicitation of advertising by telephone, is unconstitutional and void, in that it violates the 14th Amendment to the Constitution of the United States and the first amendment which by the 14th amendment was made applicable to state statutes.
The appellant also contends that the ordinance violates §§ 4 and 6 of Article 1, Constitution of Alabama of 1901.
On the other hand the appellees contend that under statutes to which we shall later refer, the City of Anniston through its Board of Commissioners has the power and authority to declare the use of telephones in the City of Anniston, as described in the ordinance, a nuisance and to prohibit such use.
The appellees further contend that while they insist that the ordinance is valid, the lower court was correct in denying the appellant's application for a temporary injunction since there is great doubt as to appellant's right to have the ordinance declared unconstitutional and void.
Only the ex parte affidavit of Thomas L. Smiley, the Secretary of the Alabama Law Enforcement Officers, Inc., was filed in the case in support of the bill. He was also their attorney of record in this case. The affidavit showed in substance the following. For many years appellant has been engaged in the solicitation of advertising in its magazine in the State of Alabama and in the City of Anniston. During the year 1959 and for many years prior thereto the appellant had a license from the City of Anniston which entitled it to sell advertising in its magazine. On August 11, 1959, the City of Anniston adopted Ordinance No. 2457 to which we have heretofore referred. Appellant obtained its license with respect to soliciting advertising in the City of Anniston for 1959 and was informed at that time by the Chief of Police that an ordinance was being considered by the City of Anniston to prohibit the soliciting of advertising by telephone. The appellant through its secretary attended the meeting of the commissioners of the City of Anniston and protested the passage of the ordinance. The license paid by the appellant to the City of Anniston each year in order to solicit advertising was the sum of $25.50.
This is the way in which appellant practiced the soliciting of advertising. (1) It sends a letter to each prospect, setting out the function of the organization and telling him that one of its solicitors will contact him. (2) The organization contacts the prospect by telephone and tells him of its mission and offers to make space available to his company for his advertising in the organization's official journal. (3) If the prospect says he is interested in taking an advertisement, then the organization has a canvasser to take one of its previously published journals by the prospect's office for him to see a previous advertisement, if he so desires, and to pick up the prospect's copy and check for the next publication. (4) The organization then publishes his advertisement in a forthcoming issue of the organization's magazine and sends the prospect the copy of the magazine with his advertisement therein. By this method the organization is able to complete its work in the City of Anniston in one week. If the organization is not allowed to use the telephone, as is set out in the ordinance *899 under attack, then it will take the organization about one month to cover the City of Anniston and the organization would be precluded from covering the State of Alabama in one year and the organization's income would be diminished to where it could not operate. The affidavit further showed that after affiant (the said Thomas L. Smiley) had been notified that the ordinance had been passed, he asked Commissioner William S. Weatherly whether the ordinance prevented the appellant from soliciting advertising contrary to the ordinance and was advised that such was his opinion, but that he could appear before the Commission.
William S. Weatherly testified in substance that he was one of the members of the Board of Commissioners of the City of Anniston, that he was in his third term as member of the board, that he was the Police Commissioner of the City of Anniston and had served as police commissioner for approximately nine years, that it was his intention to enforce Ordinance No. 2457 without discrimination as to all persons to whom it applies.
I. Ordinance No. 2457 of the City of Anniston declares to be a nuisance and makes unlawful: (A) The use of any telephone in the City of Anniston, Alabama, or in the police jurisdiction thereof by any solicitor, peddler, hawker, itinerant merchant, or transient vendor, not having been requested or invited so to do by the person called over the telephone, for the purpose of soliciting such person called to: (1) make a donation or (2) to subscribe to or for advertising, or (3) to give or to pay money or other thing of value for any ticket, flag, tag, badge, flower, token, or symbol; or (B) The use of any telephone in the City of Anniston, Alabama, or the police jurisdiction thereof by any such person as a means of arranging an engagement for such solicitation for any such purpose.
After diligent search we have been unable to find any decision passing on the validity of an ordinance such as Ordinance No. 2457 nor has any decision been cited to us by counsel which passes on the validity of such an ordinance.
We think, however, that in the case of Breard v. Alexandria, 341 U.S. 622, 71 S. Ct. 920, 923, 95 L. Ed. 1233, 35 A.L.R.2d 335, there was an ordinance involved rather similar to the one in the case at bar which presents a question analogous to the question here presented and which should be considered in reaching a conclusion in this case. In the case here referred to the Supreme Court of the United States upheld the constitutionality of an ordinance adopted by the City of Alexandria, Louisiana. In substance that ordinance provides that the practice of going in and upon private residences in the City of Alexandria by solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise not having been requested or invited so to do by the owner or occupant thereof for the purpose of soliciting orders for the sale of goods or merchandise, is declared to be a nuisance and punishable as such as a misdemeanor.
Mr. Justice Reed, speaking for the majority of the court, said:
Further on in the opinion in the case here referred to Mr. Justice Reed said:
Further on in the opinion Mr. Justice Reed further said:
It seems to us reasonable to conclude that if municipal corporations in the State of Alabama are charged with the duty and have the power to adopt ordinances, not inconsistent with the law of the State of Alabama, to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort and convenience of the inhabitants of said municipalities, then unwanted knocks on the door by day or night can be declared to be a nuisance to peace and quiet by the municipal authorities. Accordingly, unwanted telephone calls by day or night can be declared to be a nuisance to peace and quiet. When the telephone rings the person called answers the telephone because there is no way for him or her to determine in advance whether it is an unwanted or a wanted telephone call. There certainly are times when even a person of temperate disposition, when he finds out that the one calling is seeking to get him to purchase an advertisement or to make a donation or pay money for some ticket, flag, tag, badge, flower, token, or symbol, is outraged or upset by such call.
But while what has been said might apply to a person calling over the telephone at a home or residence, does it apply to a call over the telephone at a place of business? Telephones are installed in places of business for telephone service in connection with the business and certainly with a service more or less relating to the business. We can well understand that a call for the purposes prohibited by the ordinance can ordinarily have no reasonable relationship to the business being conducted in a place of business.
As stated in the Breard case, supra, "To the city council falls the duty of protecting its citizens against the practices deemed subversive of privacy and of quiet."
Section 505, Title 37, Code of 1940, provides that all cities and towns of this state shall have the power to prevent injury or annoyance from anything dangerous or offensive, or unwholesome, and to cause all nuisances to be abated and assess the cost of abating the same against the person creating or maintaining the same.
Section 506, Title 37, Code of 1940, provides that municipalities may maintain a bill in equity to enjoin and abate any public nuisance, injurious to the health, morals, comfort or welfare of the community or any portion thereof.
Section 1081, Title 7, Code of 1940, provides that a nuisance is anything that worketh hurt, inconvenience, or damage to another, and the fact that the act done may otherwise be lawful does not keep it from being a nuisance. The inconvenience complained of must not be fanciful or such as would affect only one of a fastidious taste but it should be such as would affect an ordinary reasonable man.
Section 455, Title 37, Code of 1940, provides, among other things, that a municipal corporation in the State of Alabama may adopt ordinances to provide for the safety and improve the order, comfort and convenience of the inhabitants of such municipality.
From what we have said it appears that we have grave doubt that the City of Anniston does not have the power to enact Ordinance No. 2457. There is nothing before us to support the claim of the complainant except an ex parte affidavit. We do not feel that the validity of the ordinance in question should be determined *901 merely on the application for a temporary injunction. There has been no declaration by the court as to the validity vel non of the ordinance in question and we do not feel that we are prepared at this time to say that the complainant will finally prevail. We, therefore, affirm the action of the lower court in denying the temporary injunction. Alabama Power Co. v. Guntersville, 236 Ala. 503, 183 So. 396, 119 A.L.R. 429; Walker v. Cox, 209 Ala. 627, 96 So. 707; Hancock v. Watt, 233 Ala. 29, 169 So. 704; Williams v. Prather, 239 Ala. 524, 196 So. 118. The mere right of the appellant to a declaratory judgment is not sufficient within itself to justify the issuance of the temporary injunction. Pruett v. Las Vegas, Inc., 261 Ala. 557, 74 So. 2d 807.
Affirmed.
LIVINGSTON, C. J., and LAWSON, SIMPSON, GOODWYN, MERRILL and COLEMAN, JJ., concur in the result. | June 22, 1961 |
afa956a4-f126-4914-b40e-0b83174f0922 | Hooper v. State | 585 So. 2d 137 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 137 (1990)
Ex parte State of Alabama.
(Re John Edward HOOPER
v.
STATE).
89-1314.
Supreme Court of Alabama.
December 14, 1990.
Rehearing Denied February 8, 1991.
*138 Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for petitioner.
Paul M. Harden and Anthony J. Bishop, Evergreen, and Windell C. Owens, Monroeville, for respondent.
MADDOX, Justice.
The State asks us to overturn prior cases holding that testimony given under oath at a prior trial and subject to the penalty of perjury is admissible for the purpose of contradiction or impeachment but not as substantive evidence.
The Court of Criminal Appeals, noting that it was "bound by the decisions of [this Court]," held that it had "no alternative to the conclusion that the trial court erred in instructing the jury that the prior inconsistent statement of the prosecutrix could be considered substantive evidence."[1] We reverse and remand.
John Edward Hooper was initially convicted of two counts of second degree rape of his daughter. On his appeal of those convictions, the Court of Criminal Appeals reversed the convictions because the prosecutor had asked improper questions of character witnesses.
The case was retried, and at the retrial, Hooper's daughter, the prosecutrix, recanted her story. The State questioned the daughter about her previous testimony and, thus, introduced into evidence all of her prior testimony concerning the alleged sexual abuse. The trial court, at the request of the State, specifically instructed the jury that it could consider that prior inconsistent testimony as substantive evidence upon which it could base a conviction.[2] The jury found Hooper guilty on both counts.
The Court of Criminal Appeals reversed Hooper's convictions, stating:
*139 "Contrary to the dicta contained in Randolph [v. State], 348 So.2d [858] at 866 [ (Ala.Cr.App.1977) ], the Alabama Supreme Court clearly stated in Lester v. Jacobs, 212 Ala. 614, 618, 103 So. 682, 686 (1925): `The general rule in this jurisdiction is that the testimony given on a former trial by a witness at the last trial is only admissible, after a proper predicate, for the purpose of contradiction or impeachment; it is not competent as cumulative or original evidence.' (Emphasis added.) Accord, Manning v. State, 217 Ala. 357, 359, 116 So. 360, 361 (1928) (testimony given at a preliminary hearing could have been introduced, `not as original evidence of fact, but for the purpose of testing the recollection of the witness, or for impeachment') (emphasis added); Porter v. Louisville & Nashville R.R., 202 Ala. 139, 142, 79 So. 605, 608 (1918) (`In no event could [the prior testimony] have been received as original evidence ..., nor do we assume that it was offered for that purpose') (emphasis added). Cf. Corona Coal & Iron Co. v. Callahan, 202 Ala. 649, 650, 81 So. 591, 592 (1919) (in suit for malicious prosecution, it was reversible error to admit testimony from the underlying trial as original evidence); E.E. Yarbrough Turpentine Co. v. Taylor, 201 Ala. 434, 435, 78 So. 812, 813 (1918) (same); Thompson v. Richardson, 96 Ala. 488, 492, 11 So. 728, 729 (1892) (same). In the event a witness's inconsistent testimony from a prior trial is admitted, the jury should be clearly instructed that this testimony may be considered for impeachment purposes only and not as independent or original evidence. See Manning v. State, 217 Ala. at 359, 116 So. at 362; Kennedy v. State, 85 Ala. 326, 331, 5 So. 300, 301 (1888)."
Hooper v. State, 585 So. 2d at 134-135.
Even though the Court of Criminal Appeals applied the rule of evidence contained in these prior cases, that court, nevertheless, pointed out that the soundness of the rule had been questioned in Randolph v. State, 348 So. 2d 858 (Ala.Cr.App. 1977), a case that was later described as documenting "wide-spread dissatisfaction with the traditional rule" and as citing cases and writings of many judges and scholars who "have pressed for repudiation of the rule that prior inconsistent statements of a non-party witness have no substantive consequence in a present trial." Hooper v. State, 585 So. 2d at 135, quoting Gamble, Howard, & McElroy, The Turncoat or Chameleonic Witness: Use of His Prior Inconsistent Statement, 34 Ala.L.Rev. 1, 18 (1983), which also had cited Randolph.
It is apparent that the Court of Criminal Appeals felt constrained, and rightfully so, to follow this Court's earlier cases holding that prior inconsistent statements could never be used as substantive evidence.
The rule that this Court had previously set out is clear. The reason justifying that rule is that such evidence is "purely hearsay," but courts have found little difficulty in carving out exceptions to the hearsay rule in those many instances when the testimony, even though hearsay, is considered to be credible enough to justify its presentation to a trier of fact.
It is clear to us that the modern trend is to allow a prior inconsistent statement to be used as substantive evidence, provided, of course, that the prior inconsistent statement was given under oath, was subject to the penalty of perjury, and was made at a trial, hearing, or other proceeding, or in a deposition. This modern trend is in line with Federal Rule of Evidence 801, which provides:
A number of states have adopted rules of evidence that include a rule substantially similar to Rule 801(d)(1)(A), Fed.R.Evid.
Hooper suggests that this Court should not adopt such a rule of evidence *140 but that if a rule similar to Rule 801(d)(1)(A), Fed.R.Evid., is desirable for Alabama, then the legislature is the proper body to adopt it. We find no limitation upon this Court's power to adopt the rule by Court decision, because this Court has broad powers to adopt rules of procedure. See Amendment 328, § 6.11, Constitution of Alabama, 1901. Other state supreme courts have by case law adopted rules similar to the federal rule. See State v. Almeda, 211 Conn. 441, 560 A.2d 389 (1989), and State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 (1982) (the Supreme Court of Georgia held that a prior inconsistent statement of a witness could be used as substantive evidence even though the prior statement was not made under oath in a judicial proceeding or deposition, as the federal rule requires). The Georgia Supreme Court set forth some of the benefits from a rule allowing the use of prior inconsistent statements as substantive evidence:
"We foresee these salutary effects:
"`If, from all the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath in court.' Judge Learned Hand, in DiCarlo v. United States, 6 F.2d 364, 368 (2d Cir. 1925)."
248 Ga. at 864, 286 S.E.2d at 722 (emphasis original).
We should not be understood as expressing any view on the question of whether a prior inconsistent statement not made under oath can be used as substantive evidence when the declarant takes the stand and is subject to cross-examination. That question is not before us.
If this case had been tried in a federal court, it seems that the daughter's prior inconsistent statement would have been admissible as substantive evidence under Rule 801(d)(1)(A), Fed.R.Evid. We think the federal rule is a good rule, that it does not substantially prejudice the rights of a defendant to a fair trial, and that it fosters a search for the truth.
We think that it is time that this Court changed our rule; therefore, after examining the record, considering the arguments of the parties, and reevaluating the rule against using prior inconsistent statements as substantive evidence, we hereby change that rule. We hold that a prior inconsistent statement of a witness who takes the stand and is available for cross-examination may be used as substantive evidence if the prior statement was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. All previous decisions of this Court to the contrary are hereby overruled.
The judgment of the Court of Criminal Appeals is reversed, and the cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON and STEAGALL, JJ., concur.
JONES, ALMON and ADAMS, JJ., dissent.
*141 ALMON, Justice (dissenting).
If the defendant in fact committed the offenses for which he has been convicted, his conduct is most certainly both legally culpable and morally reprehensible. It is because of the emotional reaction that such acts engender, coupled with our natural zeal to protect children and to punish those who harm them, that courts must be especially careful to remain objective when presiding over or reviewing cases of this nature. The question before us, however, is whether the State has presented legal evidence that can be considered in determining whether the State has met its burden of proof beyond a reasonable doubt. If the earlier, now recanted, testimony is "substantive evidence," a case can be submitted to the jury on that testimony alone. The rule announced by the majority is not limited to sexual offenses and will apply to all criminal prosecutions, and, for that matter, to all civil actions.
The rule prohibiting the use of prior inconsistent statements as substantive evidence, which the majority does away with in its opinion, has been a fundamental part of the accused's right to a fair trial for over 100 years. Because of the important constitutional aspects of the rule, I cannot agree with the majority's implication that it can be abolished as readily as a rule of procedure could be or as easily as a merely arbitrary rule of evidence. In addition, I do not agree that the now-abolished rule was based solely on the hearsay rule. It was also based on the accused's right to confront and thoroughly cross-examine witnesses against him, a right guaranteed by the Confrontation Clause of the Sixth Amendment to the United States Constitution and Art. I, § 7, of the Alabama Constitution. "While hearsay rules and the Confrontation Clause ... protect similar values, it is quite a different thing to suggest... that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law." California v. Green, 399 U.S. 149, 155, 90 S. Ct. 1930, 1933, 26 L. Ed. 2d 489 (1970).
Cross-examination has been called "the greatest legal engine ever invented for the discovery of truth." 5 J. Wigmore, A Treatise on the System of Evidence in Trials at Common Law § 1367, at 29 (3d ed. 1940). Cross-examination must be an adversarial proceeding to be effective. Ruhala v. Roby, 379 Mich. 102, 150 N.W.2d 146 (1967). The goals of cross-examination are best achieved by questioning the witness at the time the statement is made, in the presence of the same trier of fact who must ultimately assess the witness's credibility. The principal virtue of cross-examination "is in its immediate application of the testing process. Its strokes fall while the iron is hot." State v. Saporen, 205 Minn. 358, 362, 285 N.W. 898, 901 (1939).
Under the change effected by the majority's opinion, the accused's opportunity to confront the witness against him in a face-to-face, adversarial proceeding, at the time the damaging statement is made, is destroyed. Instead, the accused is placed in the untenable position of cross-examining a now friendly witness regarding testimony given at a time when the witness was hostile. Instead of trying to impeach the witness's present testimony, the accused must, instead, attempt to mitigate the impact of the witness's prior statement, while at the same time trying to make the witness's present testimony appear credible. The near-impossibility of this undertaking has been recognized by the Michigan Supreme Court:
Ruhala v. Roby, supra, 379 Mich. at 128, 150 N.W.2d at 158.
An additional problem created by allowing prior inconsistent statements to be used as substantive evidence is that the jurors *142 are unable to adequately assess the witness's credibility by observing her demeanor at the time the prior statement was given. Instead, they must rely on the reading of a cold written record. That is simply not sufficient. As noted by Judge Learned Hand, "the bearing and delivery of a witness will usually be the dominating factors" in determining the witness's credibility. NLRB v. Universal Camera Corp., 190 F.2d 429, 430 (2d Cir.1951).
The perjury question is also very troubling. If a witness testifies that a traffic light was red and then testifies that it was green, what probative effect should the law give to that witness's testimony? In mathematics when you add + 1 and - 1, the answer is 0. How can a nullity add any weight on the "guilty" side of the scales of justice? While we are not dealing with mathematics, I am nevertheless concerned that this kind of self-contradictory testimony can be used to overcome the presumption of innocence.
For the foregoing reasons, I must dissent.
JONES and ADAMS, JJ., concur.
[1] The issue was deliberately presented by the State, when, at the trial, the State, relying on dicta in Randolph v. State, 348 So. 2d 858 (Ala. Cr.App.), cert. denied, 348 So. 2d 867 (Ala. 1977), requested that the trial court instruct the jury that the testimony of the prosecutrix given in a prior trial, under oath and subject to cross-examination, could be used as substantive evidence of the facts stated in the testimony. See Hooper v. State, 585 So. 2d 133, 134 (Ala.Cr.App. 1990).
[2] The trial judge gave the following instruction:
"Now, the prior testimony of [the prosecutrix] given in September of 1985 while she was under oath and subject to cross-examination can be used by you as substantive evidence of the facts stated by her during her prior testimony to prove or disprove the innocence or guilt of the Defendant John Edward Hooper of the offenses alleged in the indictment." | December 14, 1990 |
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