id
stringlengths 36
36
| title
stringlengths 1
243k
| citation
stringlengths 3
718
| docket_number
stringlengths 1
304
⌀ | state
stringclasses 24
values | issuer
stringclasses 24
values | document
stringlengths 0
1.94M
| date
stringlengths 3
18
|
|---|---|---|---|---|---|---|---|
063aa304-0cf6-4cc7-9b95-8f03d68c1224 | Illinois Cent. Gulf R. Co. v. Haynes | 592 So. 2d 536 | 1900917 | Alabama | Alabama Supreme Court | 592 So. 2d 536 (1991)
ILLINOIS CENTRAL GULF RAILROAD COMPANY
v.
Archie R. HAYNES.
1900917.
Supreme Court of Alabama.
December 20, 1991.
*537 Michael C. Quillen and Samuel M. Hill of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellant.
Frank O. Burge, Jr. and Courtney B. Adams of Burge & Wettermark, P.C., Birmingham, for appellee.
MADDOX, Justice.
The issues here arise out of a Federal Employers' Liability Act ("FELA") case. One of the primary issues is whether the trial court erred in dismissing the third-party complaint filed by the railroad against the plaintiff's co-employee on the ground that the FELA did not permit the railroad to maintain such a third-party suit against a co-employee of the injured party.
The other issues arise out of the trial of the plaintiff's FELA action against the railroad, and are as follows: 1) whether the trial court erred in excluding evidence offered by the railroad that the plaintiff was receiving Railroad Retirement Board benefits; 2) whether the trial court erred in instructing the jury that the railroad "burro crane" involved in the collision was a "locomotive," within the meaning of the FELA; 3) whether the trial court erred in admitting into evidence a prior consistent statement made by the plaintiff before the accident regarding the failure of the brakes on the burro crane, to rehabilitate the plaintiff, who had been impeached; and 4) whether the trial court erred in failing to define the term "proximate cause" in the instructions given to the jury.
The plaintiff, Archie R. Haynes, having been injured in a job-related accident, filed a FELA suit against Illinois Central Gulf Railroad in the Circuit Court for Jefferson County, in which he alleged that the railroad had been negligent and had failed to provide a reasonably safe place for him to work and that the railroad's negligence and failure had caused his injuries. He further alleged that his injuries were caused by a defect in the braking apparatus of the burro crane that he was operating at the time *538 of the collision. The defect was alleged to be in violation of the Locomotive Inspection Act and the Train Brake Act.
The railroad filed a third-party complaint against Bobby Lessel, a co-employee of the plaintiff, who was the pilot of the burro crane at the time of the collision. Lessel had also filed a FELA action against the railroad arising out of the same operative facts. On motion of the railroad, Lessel's lawsuit was consolidated with the plaintiff's, but Lessel's case was settled before trial. The trial court dismissed the railroad's third-party complaint against Lessel.
The plaintiff's action was tried before a jury, and the jury awarded him $420,000.00. The railroad filed a motion for a new trial, stating several grounds, including the ones presented here.
Several of the basic operative facts are not seriously disputed. On June 16, 1987, the plaintiff, Archie Haynes, a burro crane operator for the railroad, and Bobby Lessel, a burro crane pilot, were injured when the burro crane in which they were riding collided with a train. The plaintiff's first assignment on that day was to use the burro crane to switch cars and make up a train for his bridge supervisor. Subsequently, Haynes and Lessel backed up the burro crane with a tool car behind it and proceeded to "A" yard. Haynes operated the crane by standing and looking out the door of the crane. As he went around a curve he saw a train on the tracks ahead. Haynes claims that he applied the brakes but that he did not hear any air and that the brakes did not work. Fearful that a collision was imminent, Haynes jumped from the crane and fell against the cars on the adjacent track. Unaware of the impending danger, Lessel was still on the crane and was thrown on impact. Both Haynes and Lessel were injured.
In its third-party complaint, the railroad demanded a judgment against Lessel, "based on the principles of common law indemnity," "for all sums of money which [the railroad] may be adjudged to pay to plaintiff by reason [of] the injuries alleged in his complaint." In dismissing the third-party complaint, the court found that §§ 5 and 10 (45 U.S.C. § 55 and § 60) of the FELA prohibited the railroad from filing a third-party complaint against the plaintiff's co-worker.
We agree that the trial court did not err in dismissing the railroad's third-party claim, because it affirmatively appears from the face of the complaint that the railroad was seeking indemnity from Lessel for any sum it might be required to pay as a result of Lessel's alleged negligent act. In finding that the trial court did not err in dismissing the third-party complaint, we do not address the question of whether a railroad, in a proper case, could maintain a counterclaim or third-party claim to recover for property damage allegedly resulting from a plaintiff's or a third-party's negligence, and arising out of the same basic operative facts. See, Murphy, Sidetracking the FELA: The Railroads' Property Damages Claims, 69 Minn.L.Rev. 349 (1985), in which the author collects the federal and state cases that have addressed the question, and in which he concludes that "[i]f courts continue to thwart Congress's overriding remedial objective by permitting such liability-avoidance techniques as the recently invented property damage counterclaim, Congress once again should intervene to clarify the situation by explicitly barring such actions." 69 Minn. L.Rev. at 394.
Because the third-party claim in this case arose out of the same operative facts giving rise to the plaintiff's FELA claim, and because the railroad was seeking indemnity for any sums it might be required to pay to the plaintiff for his personal injuries, we must construe the provisions of the Act, considering the railroad's argument that the provisions of the Act do not forbid its third-party complaint.
Section 5 of the FELA states in pertinent part:
55 U.S.C. § 55.
Section 10 of the FELA states in pertinent part:
55 U.S.C. § 60.
There is some disagreement among federal and state jurisdictions as to whether a defendant railroad in a FELA action may maintain a property damage claim. The railroad points out that this court is not the first court asked to decide whether § 5 of the FELA bars claims like that asserted by the railroad in this case, stating in its brief the following:
We are unable to agree with the railroad's argument that the FELA does not prohibit the filing of a third-party claim such as the one dismissed by the trial judge here. We believe that the Congress, in adopting §§ 5 and 10 of the FELA, intended to prohibit the filing of a common law indemnity claim such as the one filed here. We are further of the opinion that the cases cited by the railroad in support of its argument are distinguishable in that they deal with counterclaims for property damage and do not address the specific indemnification claim presented here.
The railroad has not cited to us a case in which a state or federal court has held that a third-party claim such as the one filed here has been permitted, and there is disagreement among the jurisdictions as to whether a counterclaim for property damage is allowed. An outline of the two views of property damage counterclaims is set out in Cavanaugh v. Western Maryland R.R., 729 F.2d 289 (4th Cir.1984) and Stack v. Chicago, Milwaukee, St. Paul & Pacific R.R., 94 Wash. 2d 155, 615 P.2d 457 (Wash.1980).[1]
In Cavanaugh, the Court of Appeals for the Fourth Circuit reversed the trial court's order dismissing a counterclaim filed by the railroad against the plaintiff employee. There, the plaintiff served as engineer on a Baltimore and Ohio Railroad Company ("B & O") train that collided with another B & O train. Cavanaugh initiated a FELA action in the United States District Court, seeking a recovery for personal injuries sustained in the collision. In response, the railroad filed a counterclaim to recover for property damage resulting from the same collision. The trial court dismissed the counterclaim, based on a holding that the claim violated §§ 5 and 10 of the FELA. The Fourth Circuit disagreed.
In the Cavanaugh opinion, the Fourth Circuit noted that the applicable state law, that of West Virginia, allowed the employer a common law cause of action against an employee for any property damage resulting from negligent acts that the employee *540 committed within the scope of his employment. Cavanaugh, 729 F.2d at 290-91. The court also noted that the railroad's claim arose out of the same transaction or occurrence that gave rise to the plaintiff's cause of action and thus was a compulsory counterclaim under F.R.Civ.P. 13(a), and that the railroad's failure to assert it would result in a waiver of the claim. Id. at 291. The Fourth Circuit concluded that the railroad was entitled to assert its common law claim unless it was precluded by the FELA. Id.
In order to determine if the FELA did indeed preclude this common law claim, the court looked at the language of §§ 5 and 10, the legislative history of the FELA, and relevant case law. See Note, The FELA and an Employer's Right to Sue: Property Damages Resulting from Employee Negligence, 42 Wash. & Lee L.Rev. 708, 712 (1985). The court found no "explicit language in the Act which could be said to require, or even suggest" that the railroads must give up their common law right to hold an employee liable for property damage occasioned as a result of the employee's negligence. Cavanaugh, 729 F.2d at 291.
The plaintiff in Cavanaugh, like the plaintiff in the case at bar, argued that a counterclaim was a "device," under § 5, used by the railroad to exempt itself from liability to the plaintiff employee. The court disagreed with the employee's argument and found that the critical word in the definition of "device" was "exemption":
Id. at 292.
The court looked at the legislative history of § 5 to determine the definition of the term "device," id., and concluded that the legislative history showed that the Congress was trying to eliminate employment contracts that release the company from liability for damages arising out of the negligence of other employees or of the common carrier. Id. As a result, the court held that a counterclaim by the railroad was not a "`contract ... or device' the purpose of which [was] to provide an exemption which Congress was intending to `void' in Section 5." Id.
Our reading of Cavanaugh and some of the legislative history of the FELA convinces us that Congress intended to make employers responsible for the acts of their employees.[2] To permit an employer to seek indemnification, however, would violate the intent of Congress rather than foster it. We, therefore, affirm the judgment of the trial court dismissing the third-party claim.
The railroad sought to introduce evidence through cross-examination of *541 Haynes concerning his receipt of Railroad Retirement Board disability and sickness benefits after Haynes testified that he had insufficient financial resources to attend a trade or vocational school. Haynes testified that he was unable to return to work because of the extent of his injuries and that he could not afford to go to school. The trial court excluded any questions concerning the receipt of railroad disability and sickness benefits, based on the collateral source rule. The railroad contends that Haynes's receipt of these disability and sickness benefits should have been presented to and considered by the jury.
The railroad asks this Court to abandon the collateral source rule as applied to Railroad Retirement Board disability benefits. The railroad argues many reasons why this rule is "dated," and why we should carve out an exception to the collateral source rule in this case. We cannot agree with the argument, as this Court abides by the holding of the United States Supreme Court in Eichel v. New York Cent. R.R., 375 U.S. 253, 254, 84 S. Ct. 316, 317, 11 L. Ed. 2d 307 (1963).
In Eichel, the Supreme Court held that evidence of disability payments was not admissible "for the purpose of impeaching the testimony of petitioner as to his motive for not returning to work and as to the permanency of his injuries." Eichel, 375 U.S. at 254-55, 84 S. Ct. at 317. The Court stated: "`[T]he benefits received under [the Railroad Retirement Act] are not directly attributable to the contributions of the employer, so they cannot be considered in mitigation of the damages caused by the employer.'" Id. at 254, 84 S. Ct. at 317, citing New York, N.H. & H.R.R. v. Leary, 204 F.2d 461, 468, (1st Cir.) cert. denied, 346 U.S. 856, 74 S. Ct. 71, 98 L. Ed. 370 (1953).
Our case law shows that this Court has strictly adhered to the collateral source rule and that under the rule any showing that the plaintiff received payments from a source wholly independent of the wrongdoer, such as workmen's compensation or disability payments, constitutes reversible error.[3] See Jones v. Crawford, 361 So. 2d 518 (Ala.1978); Gribble v. Cox, 349 So. 2d 1141, 1143 (Ala.1977) (this Court is "committed to the rule of exclusion of collateral source payments"); Vest v. Gay, 275 Ala. 286, 154 So. 2d 297 (1963); see also Southern v. Plumb Tools, A Division of O'Ames Corp., 696 F.2d 1321 (11th Cir.1983).
The Eichel rationale was recognized by this Court in Jones v. Crawford, 361 So. 2d 518, 521 (Ala.1978), when the Court stated that "courts have held that any showing that the plaintiff has received insurance benefits for his injuries is prejudicial to his case and should not be admitted." (Emphasis added.) The reason underlying the exclusion of evidence regarding collateral source payments is that, based upon a weighing of the prejudice it causes to the plaintiff against its value to the defendant, its exclusion is warranted by the availability of less prejudicial evidence on the issue. See Gribble, 349 So. 2d at 1143. We refuse to change the collateral source rule in Alabama in FELA actions.
The railroad further argues that even if the collateral source rule applies, the evidence of the disability and sickness payments should be introduced, because, it says, Haynes opened the door to that evidence when he testified on direct examination that he did not have the money to go to school. The railroad cites Lange v. Missouri Pacific R.R., 703 F.2d 322 (8th Cir. 1983), and Gladden v. P. Henderson & Co., 385 F.2d 480 (3rd Cir.1967), to support this proposition. In Lange, the plaintiff testified that he had to return to work immediately after undergoing surgery for a back injury because he had to support his family and had no savings or disability income to fall back upon. The Court of Appeals for the Eighth Circuit allowed the defendant to introduce evidence that the plaintiff did indeed receive disability payments, because *542 under the applicable Arkansas law, such payments are relevant when the plaintiff's direct testimony is misleading concerning some issue in the case and cross-examination is necessary to rebut the testimony. Lange, 703 F.2d at 324.
In Gladden, the plaintiff testified, on direct examination, that he returned to work and did not revisit his physician because of strained financial circumstances. The Court of Appeals for the Eleventh Circuit allowed the defendant to introduce evidence of collateral source payments, focusing on the fact that the defendant did not ask the plaintiff about workman's compensation benefits, but instead asked only if he had received any "financial assistance." The court stated that the "[d]efendant was not required to leave [the plaintiff's] testimony unchallenged and had the right to ask plaintiff on cross-examination whether he had received financial assistance, as affecting the credibility of his assertion." Gladden, 385 F.2d at 483.
Alabama does not allow the introduction of collateral source payments for any reason other than those laid out by the legislature in Ala.Code 1975, § 6-5-522 and § 6-5-545, dealing with product liability and medical malpractice cases. Furthermore, we find that Haynes did not refer to any collateral source payments on direct examination. He merely stated that he could not afford to go to school.
The railroad additionally argues that the railroad disability benefits attributable to Illinois Central's contributions should be deducted from the plaintiff's damages.[4] Section 5 of the FELA, 45 U.S.C. § 55, renders void any contract, rule, regulation or device "whose purpose or intent" is to enable a railroad to "exempt itself from any liability" created by the FELA. Notwithstanding this general proposition, a railroad may set off in any FELA suit "any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee ... on account of the injury or death for which said action was brought." 45 U.S.C. § 55.
A similar issue was decided by the United States District Court for the District of New Jersey in Hetrick v. Reading Co., 39 F. Supp. 22 (D.N.J.1941), and the district court's holding was recognized by the United States Supreme Court in a footnote in Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S. Ct. 802, 59 L. Ed. 2d 1 (1978).[5] We adopt the reasoning of the district court in Hetrick. In that case, the defendant in his answer asked the court to offset any damages the plaintiff might receive under 45 U.S.C. § 51 by deducting the present value of payments that would be received under the Railroad Retirement Act of 1937. 45 U.S.C. § 228b (amended to § 228a et seq.). The court denied the defendant's request, after examining the legislative intent and considering the wording within the "four corners" of the Retirement Act. Hetrick, 39 F. Supp. at 25.
The district court in Hetrick noted that the right to receive benefits under the Railroad Retirement Act was an inherent right of the employee that "becomes crystallized upon the occurrence of the designated prerequisites." Id. The defendant in Hetrick, like the railroad in this case, argued that the FELA and the Railroad Retirement Act should be viewed together, on the ground that the receipt of damages for injuries under the FELA, as well as payments under the Railroad Retirement Act, were "in effect a dual recovery based on the same injuries." Id.
Hetrick, 39 F. Supp. at 25.
Furthermore, the defendant in Hetrick, as well as the defendant in this case, wished to offset any sum it "contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee ... on account of the injury ... for which said action was brought." Id. In Hetrick, the plaintiff had not yet received any payments from the Railroad Retirement Fund, whereas, in the present case the defendant has received such payments. However, the district court found this point irrelevant, saying it was the court's "understanding that Congress by the passage of the Retirement Act undertook to create a certain amount of economic security for employees of a railroad who engage in a work fraught with daily exposure to the hazard of injury, but peculiarly essential to the public." Id.
The district court denied the offset, noting:
Id. Because this Court adopts the reasoning of the District Court for the District of New Jersey, we deny the railroad the right to offset payments from the Railroad Retirement Board against any damages owed by the defendant.
Haynes claimed that the railroad violated the Locomotive Inspection Act, 45 U.S.C. § 23, which reads:
In order for the railroad to be held liable for any injury sustained by Haynes as a result of a violation of this statute, the equipment used must be a "locomotive." The trial court held that the burro crane involved in the accident was a locomotive, as a matter of law. The railroad argues that this was a question for the jury. We agree with the trial court that, as a matter of law, the burro crane in this case was being used as a "locomotive."
In Garcia v. Burlington Northern R.R., 818 F.2d 713 (10th Cir.1987), the Court of Appeals for the Tenth Circuit held that while all railroad vehicles are not "locomotives," a vehicle is a locomotive if it is used as a locomotive. Id. at 715. While a vehicle is being used as a locomotive, it is considered a locomotive, regardless of what other use might be made of the vehicle. United States v. Fort Worth & Denver City R.R., 21 F. Supp. 916, 918 (N.D.Tex. 1937).
In Baltimore & Ohio Ry. v. Jackson, 353 U.S. 325, 329, 77 S. Ct. 842, 845, 1 L. Ed. 2d 862 (1957), the Supreme Court upheld the judgment of the court of appeals by finding that the vehicle involved in that case was a locomotive, stating:
Furthermore, the Court recognized Congressional intent behind the Safety Appliance Acts and stated: "[T]his is a matter of policy for the Congress to decide and it wrote into the Safety Appliance Acts that their coverage embrace `all trains, locomotives, tenders, cars, and similar vehicles.' This plain language could not have been more all-inclusive." Baltimore & Ohio Ry., 353 U.S. at 331, 77 S. Ct. at 846.
The Court of Appeals for the Tenth Circuit, in Garcia, looked at cases from various jurisdictions to determine the criteria for labeling a piece of equipment as a "locomotive." The court determined that a study of the cases revealed two requirements: "first, the vehicle must operate on railroad tracks; and second, it must perform a locomotive function." Garcia, 818 F.2d at 715. "Numerous courts have held that vehicles that push or pull railroad cars along railroad tracks are locomotives," id., and that this is true even when the pushing and pulling is only inside the railroad's yard. Id. See Atchison, T. & S.F. R.R. v. United States, 403 F.2d 211 (10th Cir.1968). The Tenth Circuit in Garcia found that the vehicle in that case, an Electronic Tamper, was not a locomotive since it only pushed and pulled when it was "performing its own particular functions" at the worksite. Garcia, 818 F.2d at 716. Unlike an Electronic Tamper, a burro crane does not have a particular function of its own, as it usually pushes a cart which is not part of its design.
In Atchison T. & S.F., the Court of Appeals of the Tenth Circuit held that a self-propelled burro crane, like the one in the case at bar, which was used to push or pull cars, was being operated as a locomotive. 403 F.2d at 212. In that case, as in the present case, the cars carried materials to be used in conjunction with the crane.
Here the burro crane was pushing a tool cart containing tools for use at work. The burro crane performed such functions as switching cars, making up trains from cars scattered on several different tracks, and transposing, laying, and hauling rail. The burro crane runs on the tracks and pushes and pulls a tool car and, therefore, meets the criteria for being considered a locomotive, as a matter of law.
At trial, Haynes testified that the brakes of the burro crane failed, thereby causing the collision. The railroad impeached his testimony by using an accident report in which Haynes had stated that the cause of the accident was: "fail[ed] to see [the] cut of cars on the main line counter." He also stated in the accident report that there were no defects in the equipment.
On redirect examination, Haynes explained why he had stated in the accident report that there was not a problem with the brakes. He claimed that an official at the railroad had told him that if he said the brakes were defective he would lose his job. On redirect examination, Haynes also introduced a claims agent's report on the accident in which Haynes had stated that the brakes on the burro crane were not working properly. The railroad objected, claiming that Haynes was using the report to rehabilitate himself with a prior consistent statement.
We hold that on redirect examination it was proper for Haynes to explain why he had previously made a statement contradicting his present testimony. C. Gamble, McElroy's Alabama Evidence, § 159.03(1) (1991), citing Johnson v. State, 49 Ala.App. 356, 272 So. 2d 282 (1972) and Hairrell v. State, 16 Ala.App. 110, 75 So. 702 (1917). "The extent to which the impeached witness may go into the reasons why he made the prior inconsistent statement is largely *545 within the sound discretion of the trial court." Wright v. State, 420 So. 2d 823, 826 (Ala.Crim.App.1982), citing C. Gamble, McElroy's Alabama Evidence, § 159.03(1) (3d ed. 1977). However, rehabilitation of a witness by evidence of a prior consistent statement has been held to be improper. See Long v. Whit, 197 Ala. 271, 72 So. 529 (1916); C. Gamble, McElroy's Alabama Evidence, § 177.01(2) (1991). Professor Gamble summarizes the rule this way:
C. Gamble, McElroy's Alabama Evidence, § 177.01(2) (1991) (citations omitted).
Haynes has properly stated the rule in his brief:
29 Am.Jur. Evidence § 358 (1967).
Even assuming that the admission of the prior consistent statement was error, we hold that it was not prejudicial. Rule 45, Ala.R.App.P.
The railroad claims that the trial judge used the term "proximate cause" continuously, but did not define it. The trial judge instructed the jury:
(Emphasis added.)
In a FELA case, the jury should be instructed that "if the alleged injury to the plaintiff ... resulted `in whole or in part' from defendant's negligence" the plaintiff *546 has a right to recover from the defendant. Salotti v. Seaboard Coast Line R.R., 293 Ala. 1, 299 So. 2d 695, 708 (1974). This instruction concerning proximate cause is different from the classic common law definition in a common law tort case, and its use in FELA cases, appears to have arisen in the United States Supreme Court's case of Rogers v. Missouri Pacific R.R., 352 U.S. 500, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957).
In Rogers, the Court did not consider how juries should be instructed; it only considered when a FELA case should be submitted to the jury, but the Court held that in a FELA action "the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the [employee's injury]." Rogers, 352 U.S. at 506, 77 S. Ct. at 448. See Salotti, 293 Ala. at 9, 299 So. 2d at 701.
In Salotti, this Court held that the rule of Rogers must be given to the jury in the jury instruction defining proximate cause in a FELA action. The trial judge in Salotti gave several instructions using the rule of Rogers and several instructions using the classic common law definition of proximate cause. This Court found that "[r]epeated instructions correctly stating the rule of the Rogers case may render harmless the error in giving a common law proximate cause instruction." Salotti, 293 Ala. at 16, 299 So. 2d at 708. Therefore, in the case at bar, the trial judge correctly did not use the common law definition of proximate cause and properly instructed the jury, based on the rule of Rogers, that the plaintiff's injury must be caused, in whole or in part, by the defendant's negligence.
We find no prejudicial error here. Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] A majority of the federal district courts, when faced with a question of the propriety of a property damage counterclaim, seems to follow the Cavanaugh opinion of the Fourth Circuit.
[2] "As it is now, where the doctrine of fellow-servant is enforced, no one is responsible for the injury or death of an employee if caused by the carelessness of a coemployee. The coservant, who is guilty of negligence resulting in the injury, may be liable, but as a result [of the fellow-servant doctrine] he is not [held] responsible, and hence the injury is not compensated. The employee is not held by the employer to such strict rules of caution for the safety of his coemployee, because the employer is not bound to pay the damages in case of injury. If he were liable for damages for every injury occasioned by the negligence of his servant he would impose the same strict rules for the safety of his employees as he does for the safety of passengers and strangers...."
42 Cong.Rec. 4426, 4435 (1908). The Committee also expressed the opinion that the FELA would make it incumbent upon the railroad to use a high degree of care in choosing its employees.
"He [the master] exercises the authority of choosing the employees, and if made responsible for their acts while in the line of duty he will be induced to exercise the highest degree of care in selecting competent and careful persons and will feel bound at all times to exercise over employees an authority and influence which will compel the highest degree of care on their part for the safety of each other and the performance of their duties."
Id.
[3] Alabama has statutorily altered the collateral source rule in product liability cases and medical malpractice cases by providing that in such cases, where damages are claimed for medical expenses, evidence that such expenses have been paid is admissible. Ala.Code 1975, §§ 6-5-522 and 6-5-545.
[4] The sickness benefits were deducted from the judgment.
[5] The Supreme Court noted that a defendant employer could not offset a tort claim by the amount the plaintiff expected to receive in Railroad Retirement Act disability benefits. Hisquierdo v. Hisquierdo, 439 U.S. 572, 588-89 n. 22, 99 S. Ct. 802, 812 n. 22, 59 L. Ed. 2d 1 (1978). | December 20, 1991 |
b984c08c-f037-43ab-b5c6-cc6ba1a3c88e | Ex Parte Rivers | 597 So. 2d 1308 | 1901739 | Alabama | Alabama Supreme Court | 597 So. 2d 1308 (1991)
Ex parte Wallace RIVERS.
(Re Wallace Rivers, Jr. v. State.)
1901739.
Supreme Court of Alabama.
December 13, 1991.
Rehearing Denied February 7, 1992.
Gary A. Hudgins, Dothan, for appellant.
*1309 James H. Evans, Atty. Gen., and Frances H. Smith, Asst. Atty. Gen., for appellee.
SHORES, Justice.
On June 1, 1990, Wallace Rivers, represented by a court-appointed attorney, pleaded guilty in three cases involving the possession and distribution of cocaine in Houston County, Alabama.[1] He was sentenced to life in prison. Rivers petitioned for post-conviction relief pursuant to Rule 20, Temp.A.R.Cr.P.,[2] alleging that his trial counsel was ineffective[3] and that he was not properly informed of the maximum and minimum sentences so as to allow his plea to be knowingly and voluntarily given. The trial judge denied the petition, without an evidentiary hearing.
The Court of Criminal Appeals affirmed, with an unpublished memorandum opinion, 586 So. 2d 307, ruling that Rivers's claims were procedurally barred. Rivers petitioned this Court for the writ of certiorari, which we issued, based on the authority of Carter v. State, 291 Ala. 83, 277 So. 2d 896 at 898 (1973), in which this Court held "that a defendant, prior to pleading guilty, must be advised on the record of the maximum and minimum potential punishment for his crime." We reverse and remand.
Carter v. State notes that subsequent to the United States Supreme Court case of Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), it became established that the defendant must be informed of the maximum and minimum possible sentences as an absolute constitutional prerequisite to the acceptance of a guilty plea. Carter v. State, citing Jones v. State, 48 Ala.App. 32, 261 So. 2d 451 (1972); Spidell v. State, 48 Ala.App. 24, 261 So. 2d 443 (1972); People v. Ingeneri, 7 Ill.App.3d 809, 288 N.E.2d 550 (1972); People v. Buck, 7 Ill.App.3d 758, 288 N.E.2d 548 (1972); Cooper v. State, 47 Ala.App. 178, 252 So. 2d 104 (1971), cert. denied, 287 Ala. 728, 252 So. 2d 108 (1971). "Boykin stands for the proposition that a defendant is constitutionally entitled to have information concerning the range of punishment prescribed by the act to which he may be sentenced and the consequences of the conviction at the time he enters his plea." Coleman v. Alabama, 827 F.2d 1469, 1473 (11th Cir.1987).
Since Carter v. State, supra, this Court and the Court of Criminal Appeals have consistently held that a defendant must be informed of the maximum and minimum possible sentences as an absolute constitutional prerequisite to the acceptance of a guilty plea. Smith v. State, 441 So. 2d 1062, 1063 (Ala.Cr.App.1983); McClaren v. State, 500 So. 2d 1325, 1327 (Ala.Cr.App.1986); Tinsley v. State, 485 So. 2d 1249, 1251 (Ala.Cr.App.1986); Looney v. State, 563 So. 2d 3, 4 (Ala.Cr.App.1989). If the defendant has prior felony convictions, he must be advised of the proper sentence to which he is subject by virtue of Alabama Code 1975, § 13A-5-9, the Habitual Felony Offender Act. Smith v. State, 494 So. 2d 182 (Ala.Cr.App.1986).
The only evidence in the record as to what information Rivers was given concerning the maximum and minimum possible sentences he could receive is this dialogue in open court:
The Court corrected itself as to the maximum possible sentence:
The State contends, and the Court of Criminal Appeals agreed, that Rivers failed to preserve the issue of ineffective assistance of counsel and the illegality of his sentencing for appeal by failing to raise it at trial. We disagree. This Court has said:
Ex parte Brannon, 547 So. 2d 68 (Ala.1989). This Court has also said that ineffective assistance of counsel claims are cognizable in Rule 20 petitions pursuant to Rule 20.1(a), Temp.A.R.Crim.P. Ex parte Lockett, 548 So. 2d 1045, 1048 (Ala.1989). Because we reverse on other grounds, we find it unnecessary to address the merits of that issue at this time, except to say that the standard this Court has adopted to test the effectiveness of counsel is stated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Ex parte Lockett, supra, at 1050.
Because Rivers was not informed of the minimum possible sentence in his cases, prior to his plea of guilty, his guilty plea was not knowingly, voluntarily, and intelligently given.
The judgment of the Court of Criminal Appeals is reversed and the cause is remanded to that court with instructions to reverse the judgment in cases CC-89-82, CC-89-362, and CC-89-363 and to remand the cause for further proceedings.
REVERSED AND REMANDED.
HORNSBY, C.J., and ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
MADDOX and ALMON, JJ., concur in the result.
[1] In CC-89-82, for unlawful distribution of a controlled substance, in violation of § 13A-12-211; in CC-89-362 and CC-89-363, for unlawful possession of a controlled substance (cocaine), in violation of § 13A-12-212.
[2] Now Rule 32, A.R.Cr.P. This is Rivers's second petition; his first was dismissed because his appeal was pending.
[3] He alleged that the ineffectiveness was shown by a failure to interview alibi witnesses, failure to request a continuance, failure to determine whether four prior burglary convictions were under the Youthful Offender Act, failure to file a motion in limine, advising Rivers that he could be impeached on the stand by prior convictions, failure to file a motion for independent testing of the alleged controlled substance, failure to object to the court's consideration of four prior Youthful Offender Act convictions as well as two prior possession and sale of marijuana convictions in sentencing Rivers to concurrent life sentences. | December 13, 1991 |
55745180-461a-495c-b7ec-d03c18191083 | Ex Parte Woods | 592 So. 2d 636 | 1901369 | Alabama | Alabama Supreme Court | 592 So. 2d 636 (1991)
Ex parte John WOODS.
(Re John Woods v. State).
1901369.
Supreme Court of Alabama.
December 20, 1991.
Dixon Fleming and L. Dan Turberville, Birmingham, for appellant.
James H. Evans, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.
SHORES, Justice.
The petitioner, John E. Woods, was convicted of capital murdermurder during a robbery in the first degree, Alabama Code 1975, § 13A-5-40(a)(2)and was sentenced to life imprisonment without parole, via § 13A-5-45(a). The Court of Criminal Appeals affirmed Woods's conviction and sentence on April 11, 1991. Woods v. State, 592 So. 2d 631 (Ala.Cr.App.1991). We granted certiorari review to determine whether the trial court had erred in failing to suppress a statement made by Woods to police officers. We conclude that the trial court did not err, and we quash the writ as having been improvidently granted.
The record reflects that Woods was arrested on July 21, 1989, incarcerated in the Jefferson County jail, and charged with capital murder. On July 27, 1989, Woods appeared in the district court, was found to be indigent, and requested an attorney; the district court judge appointed an attorney to represent him.
On July 31, 1989, Sgt. Paul Martin and Sgt. Clanton of the Birmingham Police Department's Robbery/Homicide Division went to the Jefferson County jail to talk to Woods. The officers were not aware that an attorney had been appointed to represent him, and he did not inform them of that fact. They did read him the Birmingham *637 Police Department's Miranda[1] rights form, which states that the accused has the right to an attorney. Woods signed the Miranda rights form after it was read to him, indicating that he understood that he had the right to an attorney, but he still did not inform the officers that an attorney had been appointed for him. Woods stipulates that he signed the form.
The police officers then asked Woods his whereabouts on the night of the murder. Woods told them he had been with a man whom he first called "James" and then called "Gerald" and that they had been drinking. He described an argument between Gerald and the victim over the amount of cocaine to be bought. The police asked Woods where they could find Gerald. He said at the Masonic lodge. When the police questioned him further as to where the lodge was, Woods said that he wanted to see his attorney and that he did not have anything else to say. All questioning ceased at that time.
An indictment was returned against Woods during the December 1989 session of the Jefferson County Grand Jury, charging him with capital murder under § 13A-5-40(a)(2). Woods was formally arraigned and he entered a plea of not guilty. The case came on to be tried on May 29, 1990, in Jefferson County. At trial, Woods moved to suppress the statement he had made to the police officers. He contends that the failure of the trial court to suppress this statement violated his rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.
There is a long line of cases requiring the police to follow fair procedures when they interrogate citizens. The best known of such cases is Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), in which the United States Supreme Court established procedures designed to counteract the inherently compelling pressures of custodial interrogation; those procedures include informing the person being questioned of his right to have counsel present. 384 U.S. at 474, 86 S. Ct. at 1627. The Miranda rights are based upon the Fifth Amendment guarantee that "[n]o person... shall be compelled in any criminal case to be a witness against himself." In Miranda the Supreme Court held that when the person being questioned invokes his right to counsel, the interrogation must cease until an attorney is present. Id. The protections of Miranda were reinforced in Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), in which the United States Supreme Court established that once a person asserts the right to counsel, he may not be approached for further interrogation until counsel has been made available to him.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." The rights of the accused under the Sixth Amendment have been held to attach "at or after the initiation of adversary judicial criminal proceedingswhether by way of formal charge, preliminary hearing, indictment, information, or arraignment." United States v. Gouveia, 467 U.S. 180, 187-88, 104 S. Ct. 2292, 2296-98, 81 L. Ed. 2d 146 (1984). In Michigan v. Jackson, 475 U.S. 625, 629, 106 S. Ct. 1404, 1407, 89 L. Ed. 2d 631 (1986), the United States Supreme Court recognized that an accused has a right to counsel at postarraignment custodial interrogations, under both the Fifth Amendment protection against compelled self-incrimination and the Sixth Amendment guarantee of the assistance of counsel.
The courts of Alabama have followed the reasoning of these cases in holding that all custodial confessions are presumed involuntary:
Magwood v. State, 494 So. 2d 124, 135-36 (Ala.Cr.App.1985), aff'd, 494 So. 2d 154 (Ala.1986), cert. denied, 479 U.S. 995, 107 S. Ct. 599, 93 L. Ed. 2d 599 (1987).
The Court of Criminal Appeals offered the following reasoning for its holding that Woods's statement was properly admitted: First, because, it held, he waived his right to counsel under the Fifth Amendment by signing the Miranda rights form. Second, because the interview occurred prior to Woods's indictment or preliminary hearing, it held, the officers had the right to inquire if he wanted to make a statement. Peoples v. State, 510 So. 2d 554 (Ala.Cr.App.1986), aff'd, 510 So. 2d 574 (Ala.1987), cert. denied, 484 U.S. 933, 108 S. Ct. 307, 98 L. Ed. 2d 266 (1987).
We must now examine the circumstances of the present case to determine whether Woods, in fact, knowingly and voluntarily waived his rights. The evidence reflects that after the Miranda form was read to him, Woods signed the form. Woods did not tell the officers that he had counsel, nor did he ask to see his counsel until after he had made his statement. The officer who questioned Woods testified that no inducement, offer of reward, or threat was made to Woods and that his statement was voluntary. Sgt. Paul Martin testified as follows:
Woods was reminded by the restatement of the Miranda rights to him that he had the right to an attorney and was not obliged to make a statement. He had ample opportunity to tell the police that counsel had been appointed and that he did not wish to speak with the police. Instead of informing the police, he signed the Miranda waiver, indicating that he knew that he had the right to counsel, but that he chose to give a statement without counsel. Both waivers of rights and admissions of guilt are consistent with the individual responsibility that is a principle of the criminal justice system. There was a responsibility on Woods's part to stop the questioning when he wanted it stopped. The evidence is unrefuted that no threat, promise, or hope of any reward was made or offered to Woods. Woods offered no evidence to contradict the State's showing of voluntariness.
For the reasons stated above, the writ of certiorari is due to be quashed as having been improvidently granted.
QUASHED AS IMPROVIDENTLY GRANTED.
HORNSBY, C.J., and MADDOX, HOUSTON and STEAGALL, JJ., concur.
[1] 384 U.S. 436, 470, 86 S. Ct. 1602, 1625, 16 L. Ed. 2d 694 (1966). | December 20, 1991 |
83f8242d-edfd-4e90-9b2b-b53d98ca1ed2 | Ex Parte Bird | 594 So. 2d 676 | N/A | Alabama | Alabama Supreme Court | 594 So. 2d 676 (1991)
Ex parte Terry BIRD.
(Re Terry Bird v. State of Alabama).
Ex parte Jacob WARNER.
(Re Jacob Warner v. State of Alabama).
89-1061, 89-1062.
Supreme Court of Alabama.
December 6, 1991.
*677 Jeffery C. Duffey, Montgomery, for petitioner Terry Bird.
Richard D. Shinbaum of Shinbaum, Thiemonge & Howell, Montgomery, for petitioner Jacob Warner.
Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for respondent.
James H. Evans, Atty. Gen., and Frances H. Smith, Asst. Atty. Gen., for respondent on rehearing.
ADAMS, Justice.
The opinion of June 14, 1991, is withdrawn and the following is substituted therefor.
Terry Bird and Jacob Warner appealed convictions of capital murder. The Court of Criminal Appeals affirmed. See Bird v. State, [Ms. 3 Div. 938, Feb. 23, 1990] 594 So. 2d 644 (Ala.Cr.App.1990), and Warner v. State, [Ms. 3 Div. 945, Feb. 23, 1990] 594 So. 2d 664 (Ala.Cr.App.1990). This Court granted certiorari review to consider whether the defendants were denied their rights to a fair and impartial trial by the prosecution's use of peremptory strikes to eliminate black veniremembers from the jury, and whether Bird, a white defendant, has standing to challenge the prosecution's use of peremptory strikes. We answer both questions in the affirmative, and we reverse.
In the trial of these defendants' consolidated cases, the chief deputy district attorney for Montgomery County, Ellen Brooks, and Deputy District Attorney Bruce Maddox used 17 of their 20 peremptory strikes to eliminate 17 of the 19 black veniremembers. The defendant struck 1, thus leaving only 1 black veniremember to serve on the jury. Before the jury was sworn, both defendants moved to quash the jury panel on the ground that the State's use of its peremptory strikes violated the principles expressed in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), which principles this Court had adopted in Ex parte Jackson, 516 So. 2d 768 (Ala.1986), and had grounded on state law, including Ala. Const., art. I, §§ 1, 6, and 22. Ellen Brooks, under direct examination by Mr. Maddox, then proceeded to make a showing for the record as to the reasons for her strikes. A summary of her explanations appears in the opinion of the Court of Criminal Appeals in Warner v. State, supra. For convenience, the pertinent reasons are summarized below:
The trial judge, after cross-examination of Ms. Brooks by defense counsel, expressed some concern over the challenges of Veniremembers 26 and 45. Ultimately, however, he concluded that to grant the defendants' motion to quash the jury panel placed "too great of a burden on the State in explaining its reasons" for its challenges. He, therefore, denied the motion on the grounds that the prosecution's explanations were sufficiently race-neutral and that Bird lacked standing to challenge the exclusion of black veniremembers.
We take this opportunity to underscore the rule and policies that we announced in Jackson and Ex parte Branch, 526 So. 2d 609 (Ala.1987). In doing so, we examine the State's explanations for its strikes in light of our rule regarding the defendant's burden of production in presenting a prima facie caseespecially as it is affected by the interplay of the various factors that we enumerated in Branch. In Branch, we explained:
Ex parte Branch, 526 So. 2d 609, 622-23 (Ala.1987) (footnote omitted).
This catalog of factors is illustrative only and not exhaustive. Harrell v. State, 555 So. 2d 263, 268 (Ala.1989). For example, the State's failure to articulate a legitimate reason for one or more strikes may constitute one of the "facts and ... other relevant circumstances [that will] raise an inference" of discrimination. State v. Antwine, 743 S.W.2d 51, 64 (Mo.1987).
It follows, therefore, that the strength of the defendant's prima facie case depends, in large part, on the number of these factors present. Although a prima facie case is always rebuttable, the existence of a number of suspicious factors requires a more cogent explanation in rebuttal. Consequently, the burden of production, which shifts to the State once a prima facie case has been presented, increases in proportion to the strength of the defendant's prima facie case. In other words, a "weak prima facie case may be rebutted more readily than a strong one." Gamble v. State, 257 Ga. 325, 357 S.E.2d 792, 795 (1987) (emphasis added).
In this case, the venire consisted of 52 prospective jurors. The 19 black veniremembers comprised 36% of the venire. However, the fact that only one black juror was ultimately seated on the jury meant that blacks comprised only 8% of the trial jury. This fact alone reveals a disparate impact and immediately arouses suspicion of the existence of discriminatory intent. See Branch, 526 So. 2d at 623; see also Batson, 476 U.S. at 93, 106 S. Ct. at 1721. To be sure, the fact that a larger percentage of black veniremembers eventually is seated on a jury raises less suspicion than if a smaller representation is seated and affords less support for a prima facie case of discrimination. See Batson, 476 U.S. at 101, 106 S. Ct. at 1726 (White, J., concurring) ("not unconstitutional, without more, to strike one or more blacks from the jury"); Note, Batson v. Kentucky and the *681 Prosecutorial Peremptory Challenge: Arbitrary and Capricious Equal Protection, 74 Va.L.Rev. 811, 821-22 (1988). In fact, a large representation might afford the defendant no support at all and could even weaken his prima facie case should he be able to establish one on other grounds. See Harrell v. State, 571 So. 2d 1270 (Ala. 1990) (on return to remand).
Here, however, the suspicion of discriminatory intent raised by the disparately meager representation of black jurors is convincingly reinforced by the fact that the prosecutrix used 85% of her peremptory challenges, that is, 17 of 20 strikes, to eliminate 89% of the black veniremembers. See Branch, 526 So. 2d at 623; Slappy v. State, 503 So. 2d 350, 355 (Fla.Dist.Ct.App. 1987). In addition, the State excluded veniremembers ranging from 19 to 78 years of age and representing a variety of occupations, thus raising the inference that race was the only shared characteristic. See Branch, 526 So. 2d at 622; People v. Wheeler, 22 Cal. 3d 258, 280, 583 P.2d 748, 764, 148 Cal. Rptr. 890, 905 (1978).
Moreover, the prosecutrix struck black veniremembers but received without challenge white jurors having characteristics similar to those of the black members whom she challenged. She struck veniremember number 33 because she had once served on a jury in a criminal case that had been dismissed but did not challenge veniremember number 39 who had served on a criminal case in which the defendant was acquitted. She struck veniremember number 97, who was 73 years old, citing concern about his age in relationship to the length of the trial. She also struck veniremember number 87, again citing concern about the length of the trial and the gruesome nature of some photographs; she did not, however, challenge juror number 103, who was 74 years old. Such disparate treatment furnishes strong evidence of discriminatory intent. See Ex parte Lynn, 543 So. 2d 709, 713 (Ala.1988) (Maddox, J., concurring); Branch, 526 So. 2d at 623.
Also relevant is what appears to be a pattern in the use of peremptory strikes by the Montgomery County District Attorney's office. As the Court of Criminal Appeals and the defendants point out, this issue has reached the appellate level in a number of cases from Montgomery County. See Parker v. State, 568 So. 2d 335 (Ala.Crim.App.1990); Wagner v. State, 555 So. 2d 1141 (Ala.Crim.App.1989); Leonard v. State, 551 So. 2d 1143 (Ala.Crim.App. 1989); Powell v. State, 548 So. 2d 590 (Ala. Crim.App.1988); Williams v. State, 530 So. 2d 881 (Ala.Crim.App.1988); Williams v. State, 548 So. 2d 501 (Ala.Crim.App. 1988); and Acres v. State, 548 So. 2d 459 (Ala.Crim.App.1987). Four of these cases were reversed because of a violation of Batson and Branch. See Parker v. State; Powell v. State; Williams v. State, 548 So. 2d 501 (Ala.Crim.App.1988); and Acres v. State.
A number of those cases, like this one, were prosecuted by Bruce Maddox and Ellen Brooks. For example, in Parker, Mr. Maddox used 75% of his peremptory challenges (6 of 8 strikes) to eliminate black veniremembers. In Leonard, Mr. Maddox used 80% of his peremptory challenges (8 of 10 strikes) to remove black veniremembers. In Williams v. State, 530 So. 2d 881 (Ala.Crim.App.1988), Ms. Brooks struck 100% of the black jurors from the venire.[3]
An example of what appears to be a systematic practice of discrimination is a relevant factor to be considered both at the trial level and on review in assessing the strength of the defendant's prima facie case. Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965); United States v. Mathews, 803 F.2d 325, 332 (7th Cir.1986); Branch, 526 So. 2d at 623; Harrell, 555 So. 2d at 266; State v. Wiley, 766 S.W.2d 700, 703 (Mo.Ct.App.1989).
This evidence, in conjunction with the disparate impact of the peremptory strikes in this case, clearly supports the defendants' contentions and raises an inference *682 of discriminatory intent. The burden having shifted to the State to rebut the inference, the prosecutors' proffered explanations for their strikes must be examined in light of a particularly strong prima facie case. It thus became the prosecution's burden to articulate justifications for its strikes that were clear, cogent, and pertinent to the facts of this particular case. Branch, 526 So. 2d at 623; see also Batson, 476 U.S. at 97-98, 106 S. Ct. at 1723-1724. In view of the strength of the prima facie case presented by the defendants in this instance, the State's explanations for its peremptory strikes fall considerably short of the standard we announced in Jackson and Branch.
After the defendants moved to quash the jury panel, the State offered grounds for its challenge of veniremember number 26 for the record. During that hearing, this colloquy followed:
The bare allegation that a veniremember lives in a "high crime" area is also constitutionally deficient. Williams v. State, 548 So. 2d 501, 506 (Ala.Crim.App.1988). Not only do such allegations fail to demonstrate any relevance to the particular case sub judice, but, were they given credence, they could well serve as "convenient talisman[s] transforming Batson's protection against racial discrimination in jury selection into an illusion and the Batson hearing into an empty ceremony." C E J v. State, 788 S.W.2d 849, 857 (Tex.Ct.App.1990). Also, this excuse might all too frequently serve to eliminate from jury service those individuals living at the lower end of the socioeconomic scale.
There was no showing, nor does it logically appear, why this particular veniremember would be less inclined toward the prosecution simply because she lived on Clanton Avenue. Thus, Ms. Brooks's perfunctory remarks regarding the residence of veniremember number 26 fail to set forth an acceptable race-neutral justification for this challenge.
Although age was not cited as a specific rationale for striking this particular veniremember, we realize that in certain cases age may serve as a legitimate racially *683 neutral reason for a peremptory strike. See Harrell, 555 So. 2d at 268 n. 1. However, the age rationale is highly suspect because of its inherent susceptibility to abuse. Batson, 476 U.S. at 106, 106 S. Ct. at 1728 (Marshall, J., concurring) ("[a]ny prosecutor can easily" ground a challenge upon an allegation that a "juror had a son about the same age as the defendant"). A mere summary declaration that age was a factor in the decision to strike is, therefore, constitutionally deficient and warrants reversal. Owens v. State, 531 So. 2d 22, 26 (Ala.Crim.App.1987).
Finally, the failure of the State to engage in any meaningful voir dire on a subject of alleged concern is evidence that the explanation is a sham and a pretext for discrimination. Branch, 526 So. 2d at 623; see also People v. Wheeler, 22 Cal. 3d 258, 281, 583 P.2d 748, 764, 148 Cal. Rptr. 890, 905 (1978); Slappy v. State, 503 So. 2d 350, 355 (Fla.Dist.Ct.App.1987). Thus, if the prosecutrix thinks that a veniremember may be related to a former defendant, she must ask the veniremember. See State v. Aragon, 109 N.M. 197, 784 P.2d 16, 17 (1989); see also Floyd v. State, 539 So. 2d 357, 363 (Ala.Crim.App.1987) (mere suspicion of a relationship insufficient); Note, supra, at 827 ("prosecutor's self-imposed ignorance [should not] preclude a Batson claim").
Here, a simple question directed to the veniremember could have dispelled any doubt about a possible relationship. However, neither the State nor the court engaged in any voir dire on this subject. In the absence of any examination, the trial judge had nothing on which to make the required "sincere and reasonable effort to evaluate the evidence and explanations based on the circumstances as he [knew] them." Branch, 526 So. 2d at 624. In reality, he had nothing on which to base an evaluation of the proffered rationale except the averment of the prosecutrix, which, in substance, amounted to a "mere general assertion" of nondiscrimination. See Batson, 476 U.S. at 94, 106 S. Ct. at 1721.
We thus conclude that none of the explanations proffered by the State for its challenge of veniremember number 26 is sufficient to rebut the strong inference of discrimination evident in this case. The State may not cure the constitutional deficiency of an explanation simply by augmenting it with similar excuses none of which, standing alone, would be sufficient. This bootstrapping procedure amounts to nothing more than a summary denial of discriminatory intent. Because it falls far short of a "clear, specific, and legitimate reason for the challenge," it will not suffice to rebut a prima facie case of discrimination. Branch, 526 So. 2d at 623.
Although one unconstitutional peremptory strike requires reversal and a new trial, we take this opportunity to accentuate the specific weaknesses of the State's explanations regarding a number of its challenges. In doing so, we point out that the State's failure to articulate a legitimate reason for its challenge of veniremember number 26 exposes its rationale for subsequent strikes to greater scrutiny. See State v. Antwine, 743 S.W.2d 51, 64 (Mo. 1987). Thus, even explanations that would ordinarily pass muster become suspect where one or more of the explanations are particularly fanciful or whimsical. As the Supreme Court of Georgia stated:
Gamble v. State, 257 Ga. 325, 357 S.E.2d 792, 795 (1987).
The prosecutrix conceded that she found it difficult to articulate valid justifications for her peremptory challenge of veniremember number 76. On direct examination, she answered as follows:
Such unarticulated "gut feelings" about a veniremember will not rebut a Branch challenge. Accord United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir. 1989); Foster v. State, 557 So. 2d 634, 635 (Fla.Dist.Ct.App.1990). Indeed, these "`seat-of-the pants instincts' may often be just another term for racial prejudice." Batson, 476 U.S. at 106, 106 S. Ct. at 1728 (Marshall, J., concurring).
By now, the State is well aware of the fact that it will be called upon to justify its peremptory challenges. Consequently, it elicits no surprise that a seasoned prosecutor could muster a colorably race-neutral explanation. DevelopmentsRace And The Criminal Process, 101 Harv.L.Rev. 1472, 1581 (1988). Thus, the inability of the prosecutrix to articulate more convincing reasons for this strike is particularly revealing.
The State's expressed concern about this veniremember's employment is unsatisfactory for two reasons. First, there is no showing, nor does it logically follow, how her use or nonuse of a degree relates to the *685 facts or issues in this particular case. See Branch, 526 So. 2d at 623; Knight v. State, 559 So. 2d 327, 329 (Fla.Dist.Ct.App.1990); Mayes v. State, 550 So. 2d 496, 498 (Fla. Dist.Ct.App.1989). Second, as the record clearly indicates, Ms. Brooks failed to inquire into the matter. See Branch, 526 So. 2d at 623. Moreover, as we pointed out above, the bald assertion by the State that a veniremember lives in a high-crime area will not rebut a prima facie showing of discrimination. Similarly, in view of the pretextual nature of the State's explanations for striking veniremember number 26, the patent inability of the prosecutrix to articulate a racially neutral reason for her challenge of veniremember number 76, and the overall strength of this prima facie case, the State's summary profession of concern about the age of this veniremember has also been seriously compromised.
Because we conclude that the State has also failed to overcome the inference of discriminatory intent with respect to its challenge of veniremembers 26 and 76, explanations given by the State for its other challenges must be viewed with a greater degree of caution. In addition to the age and neighborhood explanations just discussed, we are concerned with a number of other explanations, such as the "body language" rationale given for the challenge of veniremember number 96, and with the "communication difficulty" expressed as one reason for the exclusion of veniremember number 33. Both of these explanations are especially subject to abuse because of their insusceptibility to an objective evaluation by the trial judge. See C E J v. State, 788 S.W.2d 849, 857 (Tex.Ct. App.1990) (lack of eye-contact with prosecutor "ripe for abuse and subterfuge"); State v. Tomlin, 299 S.C. 294, 384 S.E.2d 707, 710 (1989) (peremptory challenge of veniremember because she "walked slow [and] talked low" violated Batson).
This case represents another instance where the State has unnecessarily jeopardized a prosecution by interjecting the impermissible element of racial bias. Disregard for the "red flag" raised by Justice Jones in Lynn, 543 So. 2d at 714-15 (Jones, J., concurring), further jeopardizes the future of the peremptory challenge and lends impetus to the call of courts and commentators to abolish the use of the strike. See, e.g., Batson, 476 U.S. at 105-08, 106 S. Ct. at 1727-29 (Marshall, J., concurring); T. Massaro, Peremptories of Peers?Rethinking Sixth Amendment Doctrine, Images & Procedures, 64 N.C.L.Rev. 501, 560 (1986); Developments, supra, at 1582 ("better solution to the problem of discriminatory use of peremptory challenges is the complete elimination of the prosecutor's use of them").
The defendants' motion to quash the jury panel should have been granted. In view of the strength of the defendants' prima facie case and the failure of the State to come forward with clear, cogent explanations in rebuttal, the trial judge's denial of that motion was clearly erroneous.
The Court of Criminal Appeals held that defendant Bird, a Caucasian, lacked standing to contest the State's use of peremptory strikes to eliminate blacks from the trial jury. It reasoned that a defendant must be a member of the same "cognizable minority" as the excluded juror in order to challenge the State's peremptory strikes under the narrow holding of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). See Bird v. State, 594 So. 2d 644, 646.
While Bird's case was under consideration before this Court, the United States Supreme Court decided Powers v. Ohio, ___ U.S. ___, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). In Powers, the Supreme Court held that a white criminal defendant has standing under the Equal Protection Clause of the Fourteenth Amendment to challenge the prosecution's use of peremptory strikes of black veniremembers. The Court noted that a criminal defendant not only suffers a "cognizable injury" as a result of the State's discriminatory use of peremptory strikes, but also develops and bears with the improperly excluded jurors a close relationship. The Court concluded that these factors, coupled with the limited *686 ability of the excluded veniremembers to secure redress for the injury in their own behalf, confer standing upon a criminal defendant to challenge the peremptory strikes of jurors who are not members of the defendant's race.
Although it is now clear that Bird has standing under the Fourteenth Amendment to challenge the peremptory strikes of blacks from the trial jury, he also has standing under adequate and independent state law grounds, including the Constitution and statutes of Alabama and this state's declared policy against racial discrimination in jury selection. In Ex parte Jackson, 516 So. 2d 768 (Ala.1986), this Court's first encounter with the issue of racially based peremptory strikes in the Batson era, the Court recognized independent state-law grounds on which to challenge the prosecution's strikes. In Jackson, after holding that Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), imposed too great a burden of proof of discrimination, the Court stated that "[o]ur state constitution requires that Jackson be entitled to test the prosecution's use of its peremptory strikes under a rule similar to the one set forth in Batson v. Kentucky." Jackson, 516 So. 2d at 772 (emphasis added). In particular, the Court noted the applicability of Ala. Const. art. I, §§ 1, 6, and 22. Jackson, 516 So. 2d at 772. See also Ex parte Branch, 526 So. 2d 609, 619-20 (Ala.1987) (quoting Jackson).
Section 6, in terms similar to its counterpart in U.S. Const. amend. VI,[4] guarantees that "in all criminal prosecutions, the accused has a right to ... a speedy, public trial, by an impartial jury of the county or district in which the offense was committed." (Emphasis added.) Section 6, thus, requires an "impartial jury," that is, a "`body [that is] truly representative of the community' and not the organ of any special group or class." Glasser v. United States, 315 U.S. 60, 86, 62 S. Ct. 457, 472, 86 L. Ed. 680 (1942). The concept of an impartial jury, at the very least, forbids racial discrimination in the selection of the venire from which the trial jury ultimately will be chosen. Peters v. Kiff, 407 U.S. 493, 504, 92 S. Ct. 2163, 2169, 33 L. Ed. 2d 83 (1972); see also Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975); Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S. Ct. 984, 90 L. Ed. 1181 (1946); Smith v. Texas, 311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84 (1940); see generally M. Daughtrey, Cross-Sectionalism in Jury-Selection Procedures After Taylor v. Louisiana, 43 Tenn.L.Rev. 1 (1975); Developments Race and The Criminal Process, 101 Harv.L.Rev. 1472, 1557-88 (1988).
Consistent with this understanding of § 6 guarantees, the Alabama legislature, in 1978, renovated this state's jury selection procedures through Act No. 594. Section one of the Act declared:
Acts 1978, No. 594, p. 712 (codified at Ala. Code 1975, § 12-16-55) (emphasis added). This "`fair cross section' requirement ... is analogous to the requirement, derived from the Sixth Amendment to the United States Constitution, ... that `petit juries must be drawn from a source fairly representative of the community.'" Rayburn v. State, 495 So. 2d 733, 734 (Ala.Crim.App. 1986). Sections 4 and 5 of the Act provided detailed formulas and directions for implementing its expressed policy. Alabama constitutional and statutory law is violated, therefore, whenever the State participates in the arbitrary and capricious exclusion of members of a cognizable group from the jury venire because of their race. Thus, under the representative-cross-section analysis, a defendant has standing to challenge *687 such action regardless of whether he or she is a member of the excluded group.
Racial discrimination in selection of the jury venire is particularly obnoxious for two reasons. First, it denies the defendant the benefit of a constituency based upon diversitya concept central to the American experience. By maximizing diversity, the "preconceptions" and "biases" of the representative factions, "to the extent they are antagonistic, will tend to cancel each other out." People v. Wheeler, 22 Cal. 3d 258, 267-68, 583 P.2d 748, 755, 148 Cal. Rptr. 890, 896. Thus, it is unnecessary for the defendant to prove actual injury as a result of the discrimination. It is enough that discrimination "deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented." Peters, 407 U.S. at 503-04, 92 S. Ct. at 2168-69.
Second, the continued viability of our way of life depends, in large part, upon our ability to involve all segments of society in the fundamental institutions of the body politic, not the least of the which is our judicial system. Cf. Powers, ___ U.S. at ___-___, 111 S. Ct. at 1368-69. Therefore, when members of any racial group are arbitrarily excluded from jury service, that group is denied the fundamental right of participation in a vital organ of government. As a result, public confidence in the law and legal system is eroded and the judicial system itself is denied the benefits of the insight and inspiration provided by a truly "mosaic" commonwealth. Cf. Ballard v. United States, 329 U.S. 187, 195, 67 S. Ct. 261, 265, 91 L. Ed. 181 (1946); Batson, 476 U.S. at 99, 106 S. Ct. at 1724; see generally E. Richardson, Strangers in this Land: Pluralism and the Response to Diversity in the United States (1988).
In Ex parte Branch, 526 So. 2d 609 (Ala. 1987), this Court discussed the applicability of Act No. 594 and its "codification" of the fair-cross-section requirement, to the selection of the trial jury and to the State's use of peremptory strikes. In that case, the Court said:
Id. at 619 (emphasis added). Consistent with that statement is this Court's longstanding policy of construing the "fundamental rights" provisions of Ala. Const. art. I "liberally ... in favor of the citizen." See Davis v. State, 292 Ala. 210, 291 So. 2d 346 (1974); Gayden v. State, 262 Ala. 468, 80 So. 2d 501 (1955). Consequently, there is no reason to restrict the application of the fair-cross-section guarantees of § 6 of the Alabama Constitution and Ala.Code 1975, §§ 12-16-55, -56, to the selection of the venire from which the trial jury will be chosen.
Indeed, the foregoing discussion regarding the rationale and policies against racial discrimination in the selection of the venire applies as cogently in respect to the impermissibly arbitrary and capricious exclusion of members of a cognizable racial group through the use of peremptory strikes. Conferring standing upon a defendant to challenge such discrimination regardless of his race most assuredly serves to facilitate those policies. The defendant suffers a deprivation of rights guaranteed under the Constitution and laws of this state whenever he is subjected to a judicial procedure that has been tainted by invidious racial discrimination at any stage of the jury selection. The guarantees that surround the jury selection process at the threshold stage should not disappear during voir dire, the stage that bears most directly upon the defendant and upon the trial process. See Fields v. People, 732 P.2d 1145, 1153 n. 14 (Colo.1987). It makes no sense to insist that this state "draw up its jury lists pursuant to neutral procedures [only to] resort to discrimination at `other stages in the selection process.'" See Batson, 476 U.S. at 88, 106 S. Ct. at 1718 (quoting Avery v. Georgia, *688 345 U.S. 559, 562, 73 S. Ct. 891, 893, 97 L. Ed. 1244 (1953)).
A number of sister States have reached similar results based upon the protections secured by the "impartial jury" guarantees embodied in their respective constitutions. For example, in People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890 (1978), the California Supreme Court held that "the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution." Wheeler, 22 Cal. 3d at 277-78, 583 P.2d at 761-62, 148 Cal. Rptr. at 903. It approved the holdings in Taylor and Peters that the "defendant need not be a member of the excluded group in order to complain of a violation of the representative-cross-section rule." Wheeler, 22 Cal. 3d at 281, 583 P.2d at 764, 148 Cal. Rptr. at 905-06. In extending the application of the representative-cross-section rule from the selection of the jury venire to the selection of the trial jury, the court stated:
Id. at 278, 583 P.2d at 762, 148 Cal. Rptr. at 903.
The Florida Supreme Court recently held that "under article I, section 16 of the Florida Constitution[5] it is unnecessary that the defendant who objects to peremptory challenges directed to members of a cognizable racial group be of the same race as the jurors who are being challenged." Kibler v. State, 546 So. 2d 710, 712 (Fla.1989). In so holding, it extended the fair-cross-section requirement of its state constitution to preclude the discriminatory use of peremptory strikes in selection of the trial jury. See also Fields v. People, 732 P.2d 1145 (Colo.1987); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1979) (discriminatory peremptory challenges prohibited by the cross-section provisions of the state constitution); State v. Aragon, 109 N.M. 197, 784 P.2d 16 (1989) (adopting the Wheeler rationale based upon N.M. Const. art. II, § 14).
Moreover, it is well established that Ala. Const. §§ 1, 6, and 22 combine to guarantee equal protection of the laws. Ex Parte Branch, 526 So. 2d 609 (Ala.1987); Mayo v. Rouselle Corp., 375 So. 2d 449 (Ala.1979); Black v. Pike County Comm'n, 360 So. 2d 303 (Ala.1978), City of Hueytown v. Jiffy Chek Co. of Alabama, 342 So. 2d 761 (Ala. 1977); Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939). Those guarantees are most clearly implicated in cases such as this one, which involves defendants of different racial groups. To hold that Warren is entitled to a new trial because he is black, but that Bird, his codefendant, is not so entitled because he is white, would violate the essence of equal protection.
Therefore, a defendant has standing to request a Batson hearing whenever (1) the State has exercised peremptory challenges to exclude members of a distinct racial group; and (2) the defendant requests such a hearing regardless of whether he is a member of that distinct group. Cf. Harrell v. State, 555 So. 2d 263, 267-68 (Ala.1989); Rayburn v. State, 495 So. 2d 733 (Ala.Crim.App.1986); Williams v. State, 453 So. 2d 367, 369 (Ala.Crim.App. 1984); State v. Jones, 293 S.C. 54, 358 S.E.2d 701 (1987). Once this threshold requirement has been met, the defendant must then prove a prima facie case within the general framework of Batson, Jackson, and Branch.
This opinion should not be read to require that the racial composition of the trial *689 jury actually correspond to that of the population from which it was drawn. The diversity of our society renders such an endeavor logistically prohibitive. See Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, 512 (1979). In other words, "[d]efendants are not entitled to a jury of any particular composition." Taylor, 419 U.S. at 538, 95 S. Ct. at 702 (emphasis added). This opinion should be taken only as requiring that a white defendant be allowed standing to challenge, as racially discriminatory, the exclusion of black jurors through the use of the peremptory strike.
For the foregoing reasons, the judgments are reversed and the two causes are remanded to the Court of Criminal Appeals with directions to remand them to the trial court for further proceedings consistent with this opinion.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH DIRECTIONS; APPLICATION FOR REHEARING OVERRULED.
MADDOX and INGRAM, JJ., concur.
HORNSBY, C.J., and SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur as to the holding that the State violated the Batson v. Kentucky principle and concur in the result as to the holding on the standing issue.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur in the overruling of the application for rehearing.
HORNSBY, Chief Justice (concurring in part and concurring in the result in part).
I concur with Justice Adams's opinion as to its holding that the State violated the principle of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). I concur in the result as to the holding that Powers v. Ohio, ___ U.S. ___, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), gives Bird standing to raise the Batson issue as a matter of federal constitutional law. I do not base my decision in this issue on any interpretation or application of Alabama law.
SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] Warner does not contest the state's reasons for the challenge of this veniremember.
[2] Only Bird contests the state's reasons for the challenge of this veniremember.
[3] In Williams, the Court of Criminal Appeals did not address the defendant's claim of discrimination, because counsel for the defense had failed to raise a timely objection to the selection of the jury panel. Williams, 530 So. 2d at 885-86.
[4] The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed."
[5] Fla. Const. art. I, § 16, provides for a "speedy and public trial by impartial jury in the county where the crime was committed." | December 6, 1991 |
d9761fcc-2c13-463a-ba9b-5009299fedac | Windle v. Alabama Ins. Guar. Ass'n | 591 So. 2d 78 | 1900910 | Alabama | Alabama Supreme Court | 591 So. 2d 78 (1991)
Clara M. WINDLE
v.
ALABAMA INSURANCE GUARANTY ASSOCIATION, et al.
1900910.
Supreme Court of Alabama.
December 6, 1991.
*79 McCoy Davidson of Roberts, Davidson, Wiggins & Crowder, Tuscaloosa, for appellant.
John A. Owens and K. Scott Stapp of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellees.
INGRAM, Justice.
The issue in this case is whether, and, if so, to what extent, the payment of uninsured motorist benefits by Alfa Insurance Company offsets or reduces the amount the Alabama Insurance Guaranty Association ("AIGA") is obligated to pay for a "covered claim" under a policy of insurance issued by the now insolvent Champion Insurance Company.
In her complaint, Clara M. Windle alleged that on February 25, 1988, Rebecca L. Smith caused an automobile accident that resulted in severe personal injuries to Windle. Smith was insured by Champion at the time of the accident. On March 24, 1989, Windle sued Smith and Alfa, Windle's uninsured/underinsured motorist coverage carrier. On June 5 and 6, 1989, Champion was declared insolvent and liquidation was ordered. The AIGA assumed Smith's defense. Thereafter the parties agreed to allow the AIGA to intervene as a party pursuant to a stipulation that read as follows:
The trial court held that the AIGA was relieved of any obligation to the plaintiff by Alfa's payment of the uninsured motorist benefits in the amount of $20,000. Windle appealed.
Ala.Code 1975, § 27-42-2.
It is apparent from the Alabama Insurance Guaranty Association Act, §§ 27-42-1 to 27-42-20, Ala.Code 1975, that the legislature did not intend that the AIGA stand in the stead of the insolvent insurer. Indeed, when the statutory limitations regarding payment of claims are read along with this avowed purpose, one sees that the effect of the Act is not necessarily to provide the claimant or insured the same coverage or dollar recovery he would have realized had his carrier not become insolvent. K. Bowdre, Guaranty Association Law in Alabama, 20 Cumb.L.Rev. 321, 331 (1990) (citing Indiana Insurance Guaranty Association v. William Tell Woodcrafters, Inc., 525 N.E.2d 1281, 1285-86 (Ind. App.1988)). There are limits as to what type of claim will be paid. For example, the AIGA is obligated
Ala.Code 1975, § 27-42-8(a)(1) (emphasis supplied).
A "covered claim" is defined as
Ala.Code 1975, § 27-42-5(4).
Under the Act, for a claim to qualify as a "covered claim" the following requirements must be met:
Bowdre, supra, at 342 (emphasis supplied).
The "covered claim" the AIGA was obligated to pay as a result of Champion's insolvency was the amount of Windle's claimed damages (over $60,000), limited by the terms of Smith's Champion insurance *81 policy ($20,000); therefore, the amount of the "covered claim" is $20,000.
At issue in this appeal is whether, and, if so, to what extent, a "covered claim" is to be reduced by payment of uninsured motorist benefits under § 27-42-12(a), which states:
(Emphasis supplied.)
This Court has held that the AIGA is entitled to reduce "covered claims" by amounts recovered under uninsured motorist policies. See Alabama Insurance Guaranty Association v. Hollingsworth, [Ms. 1900334, June 7, 1991], 1991 WL 101543 (Ala.1991) (citing Alabama Insurance Guaranty Association v. Magic City Trucking Service, Inc., 547 So. 2d 849 (Ala. 1989); Alabama Insurance Guaranty Association v. Colonial Freight Systems, Inc., 537 So. 2d 475 (Ala.1988)). Therefore, the question raised on this appeal is to what extent those payments of uninsured motorist benefits affect Windle's possibility of recovery from the AIGA.
Windle argues that the amount of recovery from Alfa should reduce her actual claim for damages but not the policy limit or statutory limit of the "covered claim." As stipulated in this case, the parties agree that Windle's actual damages exceed $60,000; therefore, she argues that the AIGA's obligation to pay, i.e., its obligation to pay the $20,000 "covered claim," would not be extinguished by the $20,000 paid by Alfa on Windle's uninsured motorist policy. Under her theory, she would be entitled to $20,000 from Alfa and to $20,000 from the AIGA. The AIGA contends that the language of the statute clearly and unambiguously states that the amount of recovery on the uninsured motorist policy reduces the amount of the "covered claim."
The language of the statute clearly states that the amount of the recovery on the uninsured motorist policy reduces the amount payable by the AIGA on the "covered claim." Because a "covered claim" is, by definition, limited to the amount of the policy issued by the now insolvent insurer, see Ala.Code 1975, § 27-42-5(4), and because that amount in this case was $20,000, we hold that the amount recovered as uninsured motorist benefits ($20,000) reduces and extinguishes the "covered claim" the AIGA was obligated to pay, thereby relieving the AIGA of any obligation to pay.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | December 6, 1991 |
07d0c35f-ba95-47ff-a8e2-2d968b6caac7 | Ex Parte King | 591 So. 2d 464 | 1901791 | Alabama | Alabama Supreme Court | 591 So. 2d 464 (1991)
Ex parte Ida Mae KING, as legal guardian and next friend of Theodore King.
(re Ida Mae King, etc. v. Cooper Green Hospital, et al.)
No. 1901791.
Supreme Court of Alabama.
December 13, 1991.
*465 Robert B. Roden and Richard L. Jones of Roden & Hayes, P.C., Birmingham, for petitioner.
W. Stancil Starnes, Walter W. Bates and Sybil Vogtle Abbot of Starnes and Atchison, Birmingham, for respondent.
INGRAM, Justice.
The plaintiff, Ida Mae King, as legal guardian and next friend of her son, Theodore King, and as administratrix of his estate, petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to allow her to maintain two alternative, inconsistent, and mutually exclusive claims against the defendants. The trial court granted a motion by the defendants requiring the plaintiff to elect between the prosecution of a survival claim for personal injury or the prosecution of a claim for wrongful death. However, the trial court delayed any further action in the case, so as to allow the plaintiff to bring the issue before this Court in a mandamus proceeding.
The underlying suit from which this mandamus proceeding stems was initiated by King in 1986. In the original complaint, King alleged that Theodore suffered personal injury as the result of the alleged malpractice of two physicians at Cooper Green Hospital. The physicians had treated Theodore in the Cooper Green emergency room on two occasions during the winter of 1985; in March 1985, Theodore was diagnosed as having a subdural empyema. After Theodore's death in June 1990, King amended the original complaint to include a claim that the defendants had wrongfully caused his death.
Prior to trial, the defendants moved for an order requiring King to elect between the prosecution of the survival claim for personal injury and the wrongful death claim. On the day set for trial, the court granted the defendants' motion regarding election, and this petition followed. The issue raised in this petition is whether a writ of mandamus should issue to the Jefferson Circuit Court directing it to vacate its prior order requiring King to elect between the two alternative, inconsistent, and mutually exclusive claims contained in her complaint.
Before turning to our analysis of the issue before us, we note that mandamus is an appropriate remedy when there is a clear showing that the trial court has abused its discretion by exercising that discretion in an arbitrary and capricious manner. Ex parte Rogers, 533 So. 2d 245 (Ala. 1988). However, mandamus is a drastic and extraordinary writ that will not be issued unless the petitioner has a clear and indisputable right to a particular result. Ex parte Rudolph, 515 So. 2d 704 (Ala. 1987).
In her petition, King alleges that the trial court abused its discretion in requiring her to elect between the survival claim for personal injury and the wrongful death claim. ;King concedes that she can recover under only one of the two alternative, inconsistent claims stated in her complaint; however, she argues that under Alabama case law and the Alabama Rules of Civil Procedure she is entitled to present evidence on both claims to the jury and allow the jury to decide which of the two claims, if either, is supported by the facts as the jury finds them.[1] King contends that the jury should have the discretion to choose between the claims based on the facts as found by it after it has heard all of the evidence on both claims.
King asserts that the evidence that she will present at trial indicates that Theodore received negligent treatment from the two physicians. However, King further asserts that from this evidence a jury could properly conclude that the actions of one or the other or both of the two physicians either *466 caused Theodore's death or caused him only personal injury.
The defendants, on the other hand, assert that under this Court's interpretation of Alabama's survival statute and wrongful death statute and under § 6-5-440, Ala. Code 1975, the trial court properly compelled King to elect between the prosecution of the two inconsistent claims alleged in her complaint. The defendants further argue that the issue of King's election between the two claims alleged in her complaint is moot because, they say, King has only one expert witness, who testified in a deposition that the decedent died as a result of the injuries allegedly caused by the defendants and they argue, therefore, that there is a total absence of proof as to the survival claim for personal injury.
Rule 8(a), A.R.Civ.P., provides:
Rule 18(a) reiterates the emphasized portion of Rule 8(a), as quoted above, by permitting the joinder of multiple claims within one lawsuit. Rule 18(a) states:
Furthermore, in National Security Fire & Casualty Co. v. Vintson, 414 So. 2d 49 (Ala.1982), this Court held that a plaintiff who asserted alternative, inconsistent, and mutually exclusive claims could not be required to elect a claim for recovery, but rather that the jury should elect whether the plaintiff could recover under either of the claims. The Court reasoned that the plaintiff could present the alternative claims to the jury because the same facts could have supported a verdict on either claim. Because the plaintiff could recover separately under either claim, the Court stated:
Id. at 51.
Another case that we find to be on point is United States Fidelity & Guaranty Co. v. Warwick Development Co., 446 So. 2d 1021 (Ala.1984). In that case, as in the present case, the plaintiffs were not requesting both forms of recovery, but rather were pleading and pursuing their claims for relief in the alternative. The Court first noted that Rule 8, A.R.Civ.P., is identical in relevant aspects to the corresponding Federal Rule of Civil Procedure. The Court then noted that the federal courts have, pursuant to Rule 8, consistently upheld the right of a plaintiff to try his case on alternative theories of relief by refusing to require a plaintiff to elect the theory upon which he or she would proceed. The Warwick Court further observed, however, citing National Security Fire & Casualty Co. v. Vintson, supra, that it need not rely solely on federal cases to decide the issue presented. Following a discussion of Vintson, the Court, in Warwick, stated:
446 So. 2d at 1025.
From the provisions of the Alabama Rules of Civil Procedure set forth above and from our prior decisions interpreting those rules as they relate to the election of remedies, we conclude that there is no prohibition in the rules against King's pleading *467 two alternative, inconsistent, and mutually exclusive claims in her complaint. Although King may recover under only one or the other of the remedies, there is nothing in the rules requiring her to choose the claim that she will pursue at trial.
However, the defendants argue that even if the Alabama Rules of Civil Procedure provide that King cannot be forced to elect the claim under which she proceeds, the Alabama Legislature has specifically prohibited the prosecution of both an action for personal injury and an action for wrongful death against the same defendant for the same tort. The defendants argue that § 6-5-462 (the survival statute), § 6-5-410 (the wrongful death act), and § 6-5-440, when read in pari materia, prohibit King from proceeding to trial on the two conflicting, mutually exclusive claims alleged in her complaint.
Section 6-5-440 provides:
We initially note, from the face of § 6-5-440, that it is inapplicable under the facts of the present case, because we are not concerned in this case with a plaintiff's attempting to prosecute two separate actions against the same party. To the contrary, King has simply asserted two alternative claims against the same parties in a single action. Therefore, while reading § 6-5-440 in pari materia with the survival statute and the wrongful death statute would prohibit an award of damages in King's favor on both the wrongful death claim and the personal injury survival claim, see Mattison v. Kirk, 497 So. 2d 120 (Ala.1986), we hold that the provisions of those statutes do not require King to make an election at this stage in the course of the pending litigation as to which of the alternative claims alleged in her complaint she will pursue at trial.
Furthermore, as to the defendants' argument that the forced election is proper in this case because there is a total absence of proof by King as to the survival claim for personal injury, we find that argument to be irrelevant. This mandamus proceeding answers only the question of whether, procedurally, King is entitled in her complaint to maintain two alternative, inconsistent, and mutually exclusive claims. The defendants' argument, on the other hand, is addressed to the sufficiency of the evidence to support each of King's claims and is, therefore, more properly suited to summary judgment, directed verdict, or jury verdict.
We wish to clarify that we are not holding that because King may procedurally assert both claims she may also substantively maintain those claims. This petition for the writ of mandamus does not contemplate the sufficiency of the proof on the claims asserted in King's complaint, and that issue, therefore, is not addressed by this Court in this proceeding.
In conclusion, we hold that the trial court abused its discretion in ordering King to make an election between two alternative, inconsistent, and mutually exclusive claims and that a writ of mandamus is, therefore, due to issue.
WRIT GRANTED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
HOUSTON, J., concurs in the result.
HOUSTON, Justice (concurring in the result).
There is no legal logic that can explain why these two claims are inconsistent and mutually exclusive. Only ill-reasoned, but consistently followed, precedent makes them so. When an act or omission, which is alleged to be negligent and to have proximately caused injuries and their attendant pain, suffering, disability, and expense, is alleged subsequentlyafter that period of pain, suffering, disability, and expenseto cause death, it is the same act or omission *468 that over time causes the ultimate injury, death. Our Constitution provides a right to a remedy for both the nonfatal injury and the fatal injury.
I am persuaded that a reevaluation of what I consider to be this Court's erroneous interpretation of Ala.Code 1975, § 6-5-410, is not one of the "felt necessities of the time." I can add no variety to what I must now perceive the majority of this Court considers as the irrelevance of my opinion on this. See Tatum v. Schering Corp., 523 So. 2d 1042, 1047-63 (Ala.1988) (Houston, J., dissenting); the position I expressed in that dissenting opinion remains my position on § 6-5-410.
Instead, I turn to the source of our laws, which is not the common law of England, but the Constitution of Alabama of 1901. Ala.Code 1975, § 1-3-1.
Section 35 of the Constitution provides:
(Emphasis added.) In § 36 of the Constitution, to guard against any encroachments on the rights retained by the people and set out in §§ 1 through 35 of the Constitution, "we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate." (Emphasis added.) Section 1 of the Constitution provides that there is a right to life; § 35 provides that the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life; and § 13 of the Constitution provides that "every person, for any injury done him, in his ... person..., shall have a remedy by due process of law."
Disregarding the common law's paradigm of a civil action for death (which we must do, because the common law of England is not the law of this state if it is inconsistent with the Constitution of this state), there is a right to life and a right to a remedy for an injury to the person guaranteed by the Constitution and excepted out of the general powers of government.
Why does this Court not accept that which the Constitution requires that it accept?
Do we believe that by violating a person's right to life we can thereby eliminate the remedy for that violation? Certainly, if we lead Alabamians down that corridor of mendacity, we are violating not only the letter and the spirit of § 35 of the Constitution but also § 36 of the Constitution, because we are ignoring a right and denying a remedy when the power to do so has been taken from us by the people.
As for me, from this day forward, I recognize that there is a constitutional right to life provided by the Constitution of Alabama of 1901 (§§ 1, 35) and that there is a right to a remedy (compensation) for an injury that causes the death of a person (§ 13) that I, as an Associate Justice of the Alabama Supreme Court, have no right to ignore (§ 36).
[1] Although King concedes in her original petition for the writ of mandamus that she cannot recover under both a survival claim for personal injury and a wrongful death claim, she extends her argument in an amendment to her original petition, to ask this Court to overrule its prior decisions holding that a personal representative may not recover damages for both wrongful death and personal injuries. However, we decline to consider that issue, as it is not appropriate for adjudication in this case. | December 13, 1991 |
ecb92052-3545-4003-b57c-0a2b12899560 | Callis v. Colonial Properties, Inc. | 597 So. 2d 660 | 1900711, 1900732 | Alabama | Alabama Supreme Court | 597 So. 2d 660 (1991)
Christine CALLIS d/b/a Dream Inn
v.
COLONIAL PROPERTIES, INC.
COLONIAL PROPERTIES, INC.
v.
Bobby W. SPURLOCK and Patricia A. Spurlock d/b/a International Printing Company, Inc.
1900711, 1900732.
Supreme Court of Alabama.
December 6, 1991.
Rehearing Denied March 27, 1992.
Timothy C. Halstrom, Montgomery, for appellant Christine Callis.
John T. Alley, Jr. of Webb, Crumpton, McGregor, Davis & Alley, Montgomery, for appellee/cross-appellant Colonial Properties, Inc.
Jim L. DeBardelaben, Montgomery, for cross-appellees Bobby Wayne Spurlock and Patricia A. Spurlock.
ADAMS, Justice.
Christine Callis appeals from a summary judgment in favor of Colonial Properties, Inc. ("Colonial"), and Colonial appeals from judgment based on a directed verdict in favor of Bobby and Patricia Spurlock. Both appeals involve agreements by Callis and Spurlock with Colonial to lease from Colonial spaces in a shopping center known as McGehee Place, in Montgomery, Alabama.
Callis contends that she should be allowed to rescind her lease with Colonial because, she argues, she was fraudulently induced to sign the lease agreement. She contends that she expressed to a representative of Colonial a desire to be located in a shopping center that would attract a wealthy clientele. She further contends that she was assured that there would be no "discount" stores in the shopping center and that a men's store would be located near the location of her store within the center. Callis argues that she relied on these representations in signing the lease, and, therefore, she argues, she should be *661 entitled to rescind the lease, because, she says, neither of the representations proved to be true. In considering her argument, we note that the lease in question contains the following provision:
(Emphasis added.) The language in the lease signed by Callis states that only the representations in the lease itself induced her to enter into the agreement. Callis was presented with a copy of the lease agreement, and she even requested several changes in the lease, none of which had to do with the provision in question. The trial court did not err in entering the summary judgment as to her fraud and misrepresentation claim.
Callis further contends that Colonial breached certain provisions in the lease agreement. One of those provisions is set forth below:
(Emphasis added.) Although Callis argues that Colonial breached this clause in the agreement by leasing space to "discount" stores, we note that the lease states that the tenant shall not conduct the specified activities. Nothing in the clause indicates that Colonial would be barred from renting space to whomever it wished, regardless of the business involved. Callis mentions a schedule that was attached to the lease agreement, and which indicates that a men's store would be located in the shopping center. Again, Callis failed to take note of the following statement on the schedule:
We find no merit in her argument that Colonial breached the lease.
In its cross-appeal, Colonial contends that the trial court erred in directing a verdict in favor of the Spurlocks. The lease agreement signed by the Spurlocks contains the following provision:
(Emphasis added.) It is undisputed that the Spurlocks signed the lease and sent it to Colonial. Colonial, in turn, was to sign the lease and send a copy to the Spurlocks. The parties do not dispute the fact that Colonial's general practice is to execute four originals and to send one of those originals to the lessee. In this case, all four originals remained in Colonial's files. The Spurlocks contend that they never received either an original or a copy of the lease, even though they claim that they made several requests for a copy.
Despite the clause in the lease, Colonial argues that the Spurlocks accepted the benefits of a lease and paid rent pursuant to the lease for approximately one year. The trial court determined that, because a copy of the lease had never been delivered to the Spurlocks, the lease was ineffective and that the Spurlocks had been renting *662 space from Colonial on a month-to-month basis. We agree.
It is clear from the evidence in the record that Colonial overlooked delivery of the lease. The clause in the lease is unambiguous in stating that the lease is effective only upon delivery.
For the foregoing reasons, the judgments are affirmed.
1900711AFFIRMED.
1900732AFFIRMED.
MADDOX, HOUSTON and KENNEDY, JJ., concur.
ALMON and STEAGALL, JJ., concur specially.
HORNSBY, C.J., and SHORES and INGRAM, JJ., concur in part and dissent in part.
ALMON, Justice (concurring specially).
I agree that the judgment against Callis is due to be affirmed for the reasons stated in the majority opinion. I also agree that the judgment for Spurlock is due to be affirmed, but I would like to add the following comments.
In Lott v. Douglas Oil Purchasing Co., 501 So. 2d 1195 (Ala.1986), this Court affirmed a judgment that a holdover by a lessee had effectively extended a lease for a 10-year renewal term, even though the lease expressly required written notice of renewal by certified mail six months before the expiration of the primary term. Citing cases and other authorities, this Court held that the lessor's conduct constituted a waiver of the requirement of written notice of renewal.
In this case, the original lease recited that it would "become[] effective only upon execution and delivery thereof." In addition to this specific recitation, the general rule is that a lease is not valid unless it is executed and delivered.
49 Am.Jur.2d, Landlord and Tenant § 35 (1970) (citations omitted).
Where a tenant goes into possession under such an invalid lease, the law will ordinarily imply the relation of landlord and tenant. Id., § 47. The implied term will be a tenancy from month to month or a tenancy from year to year, as the circumstances indicate.
Id., § 50. See Eddins v. Galloway Coal Co., 205 Ala. 361, 87 So. 557 (1921), which held that the parties had entered into a tenancy from month to month even though their purported oral lease was invalid because it had been entered into on a Sunday.
Thus, in this case, the purported lease between Colonial Properties and Spurlock never took effect because of the failure of delivery; instead, they entered into a tenancy from month to month, and I see no error in the trial court's holding that Spurlock was entitled to a summary judgment on Colonial Properties' counterclaim against him. In contrast, the parties in Lott v. Douglas Oil, supra, had entered into a valid lease, and this Court affirmed the trial court's holding that the lessor had waived a requirement for written notice of *663 renewal for a renewal term specified in the lease.
STEAGALL, J., concurs.
HORNSBY, Chief Justice (concurring in part and dissenting in part):
I must respectfully dissent from that portion of the opinion that affirms the summary judgment as to Callis's fraud claim. As the opinion notes, Callis claimed that she was fraudulently induced to sign the lease agreement. The opinion quotes language from the lease, language purporting to exclude all outside representations as inducements to entering the lease, as a basis for affirming the summary judgment on the fraud claim. This analysis is contrary to Alabama law on fraudulent inducement to enter a contract.
The evidence in this case indicates that Callis engaged in detailed negotiations with agents of Colonial with respect to the type of business she intended to operate and her requirement that similar sorts of "up-scale" businesses be located nearby. Callis testified that she was assured that the businesses that would be located in the shopping center would be of the same "class" as her proposed business. Further, Callis stated that she was promised that no discount stores or houses would be located in the center. Callis's stated belief that discount houses would not be permitted in the shopping center was supported by the language in her lease, and she had no basis to believe that the leases of the other tenants were in any way different.
Callis's testimony and the evidence of the history of her negotiations with Colonial is substantial evidence that she was induced to enter into the lease in question because of representations made by Colonial. There is also substantial evidence in the record that the representations used to induce Callis into executing the lease were false.
This Court recently addressed the law governing fraud in the inducement to a contract in Harris v. M & S Toyota, Inc., 575 So. 2d 74, 77 (Ala.1991):
It is important to note that the principles set out in Harris have long been the settled law of this state.
Alabama Machinery & Supply Co. v. Caffey, 213 Ala. 260, 262, 104 So. 509, 511 (1925).
Because of the principles of law stated in Harris and Caffey, the trial court erred in entering summary judgment against Callis *664 based solely on the terms of the contract. Callis presented substantial evidence that she was induced to sign the lease in question because of fraudulent representations about the type of businesses that Colonial would allow in the shopping center. In light of this evidence, the lease, standing alone, cannot determine the issue of fraudulent representation. Whether Callis was fraudulently induced into signing this lease is an issue for the trier of fact; a consideration of that issue must include consideration of the representations Callis says were made to her outside the lease.
Accordingly, I dissent from the affirmance of the summary judgment as to the fraud claim. I would reverse the summary judgment on that claim and remand this cause to the trial court for further proceedings. I concur as to the holding in the other contract claims.
SHORES and INGRAM, JJ., concur. | December 6, 1991 |
a9976f3f-5313-4305-9784-b5d515a4c2d9 | Pleasant v. Warrick | 590 So. 2d 214 | 1901233 | Alabama | Alabama Supreme Court | 590 So. 2d 214 (1991)
E.L. PLEASANT
v.
Rodney WARRICK, et al.
1901233.
Supreme Court of Alabama.
November 1, 1991.
Charles R. Godwin, Atmore, for appellant.
Von G. Memory, Montgomery, for appellees.
INGRAM, Justice.
The plaintiff, E.L. Pleasant, sued Rodney Warrick, John Deere Industrial Equipment Company, and Deere Credit Services, Inc. ("Deere Credit"), for conversion, negligence, and wantonness for destruction of a logging skidder, which he contends had been wrongfully repossessed. All of the defendants filed timely motions for summary *215 judgment supported by affidavits and deposition excerpts, contending that Pleasant was in default at the time of the repossession and that the logging skidder had been lawfully repossessed. The trial court entered summary judgment for the defendants.
The dispositive issue on appeal is whether the trial court erred in granting the defendants' motions for summary judgment.
The record, in pertinent part, reveals the following: Pleasant, a timber subcontractor, purchased a John Deere 440C logging skidder from Warrior Tractor and Equipment Company, Inc., an independent John Deere dealer. Pleasant traded a used John Deere 440B skidder and received a credit of $7,117.21 against the total purchase price of $25,268.24, leaving a balance due of $18,151.03. The skidder was used as collateral for a security agreement relating to the $18,151.03 balance. Pleasant agreed to make 36 consecutive monthly payments of $721.66 each. The security agreement was transferred or assigned to defendant Deere Credit for administration and collection.
The security agreement, which was signed by Pleasant, contained the following pertinent language:
The evidence is not in dispute that Pleasant was behind with his payments almost from the beginning. In fact, Pleasant admitted that his account was in default and that Deere Credit had sent him past-due notices of his default. At the time of repossession, which was only 20 months after Pleasant had purchased the skidder, Pleasant was approximately 6 months past due in making the payments pursuant to the security agreement. The record shows that Deere Credit, through its agent, Rodney Warrick, made every reasonable effort toward working out Pleasant's default in order to bring his account current. There was evidence, although disputed, that, instead of a full payment every 30 days, Pleasant was permitted to make partial payments at more frequent intervals. Pleasant contends that this constituted a modification of the original agreement and that, therefore, there was no default. Although we find that Deere Credit may have tried to accommodate Pleasant in an effort to bring Pleasant's account current, we do not find that this accommodation constituted a modification. Nevertheless, even if we concluded that there was a modification, Pleasant admitted that he did not make all of the partial payments. Further, the record reveals that two of the partial payments were made with checks that were dishonored for insufficient funds. The record does not reveal that Pleasant brought his account current at any time.
The record further reveals that on September 1, 1989, Warrick met with Pleasant concerning his account, which was then over $4,000 past due. Warrick had spoken with Pleasant's wife the previous night and had told her that he was coming to see Pleasant about his past-due account. Warrick testified that he obtained directions to the skidder and that he then drove to its location and verified its identity. Pleasant testified that Warrick did not tell him that he was going to repossess the skidder, only that he was going to check the condition of it, and that he would then come to Pleasant's home later that afternoon to get some money Pleasant would have for him.
When Warrick found the skidder, he testified that he attempted to obtain a truck to haul the skidder. When no truck was available, Warrick asked for and received permission to park the skidder at a local dealership over the weekend. When Warrick returned to the skidder, he testified that he checked the oil, the water in the radiator, and the fuel. He then repossessed the skidder; he started its engine *216 and drove it down the highway toward the dealership where he would leave it. No one else was present when he drove the skidder away.
On his way to the dealership, the unexpected occurred. Warrick testified that he heard the engine backfire and saw steam coming from the engine. Assuming that the skidder had simply overheated, he parked the skidder, locked the brakes, and removed the ignition key. He walked back to his vehicle, and as he drove past the skidder, he saw smoke and found the skidder to be on fire. He testified that he believed the fire was beyond his control, so he called the fire department.
The origin of the fire is unknown, and Pleasant did not introduce any evidence concerning the cause of the fire. The investigation report from the fire department lists the cause as "unknown." Warrick testified that the skidder was steaming, but that it was not on fire, when he parked it to return to his car.
Warrick reported the fire loss to the insurance company, and Pleasant filed an insurance claim and proof-of-loss statement. The claim was approved, and proceeds from the insurance policy were forwarded to Deere Credit. Deere Credit retained the amount equal to Pleasant's debt ($13,589.51) and forwarded a check for the balance of $3,598.26 to Pleasant, which Pleasant cashed.
In reviewing a summary judgment, this Court uses the same standard as that of the trial court to test the sufficiency of the evidence. Collins v. Gulf Furniture Stores, Inc., 549 So. 2d 6 (Ala.1989). The party moving for a summary judgment must make a prima facia showing that there is no genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989). The burden then shifts to the nonmoving party to show by substantial evidence the existence of a genuine issue of material fact. Flanagan v. World Omni Financial Corp., 539 So. 2d 248 (Ala.1989).
The applicable law regarding secured transactions and repossessions is well settled in Alabama. Ala.Code 1975, § 7-9-503, provides:
This section allows the secured party, after default, to take possession of collateral without judicial process if possession can be accomplished without risk of injury to the secured party or to any innocent bystanders. General Finance Corp. v. Smith, 505 So. 2d 1045 (Ala.1987). The secured party may repossess collateral at his own convenience and is not required to make a demand for possession or have the debtor's consent prior to taking possession. Collins, supra.
Here, we find the evidence to be undisputed that Pleasant was in default on his account. The record is clear that his payment history over the 20-month period prior to the repossession was irregular and that his account was never brought up to date. The record is undisputed that Pleasant failed to meet his regular payment schedule, failed to make promised payments on his arrearage, and remitted checks that were not honored because of insufficient funds. The record is further undisputed that at the time of repossession, Pleasant's account was over $4,000 in arrears. Indeed, the record is clear that Pleasant was in default and that pursuant to § 7-9-503, the defendants were entitled to take possession of the skidder.
The record is also undisputed that the defendants did not commit any breach of peace in obtaining the skidder. There was no evidence of any actual or constructive force used when the skidder was repossessed. In fact, no one other than Warrick was present when the repossession took place. Nor do we find that Warrick repossessed the skidder through fraud or trickery. See Ford Motor Credit Co. v. Byrd, 351 So. 2d 557 (Ala.1977). Pleasant contends that Warrick "tricked" him into informing Warrick of the location of the skidder. However, in view of the payment *217 history of this case, we do not agree. Pleasant was well aware of his $4,000 arrearage, as well as the fact that there was a strong possibility that the skidder would be repossessed.
In view of the above, Warrick's repossession of the skidder was lawful; i.e., Pleasant was in default and no breach of the peace occurred while taking possession of the collateral. Therefore, we find that Pleasant's claims of conversion, negligence, and wantonness are without merit. See Flanagan, supra.
The judgment in this case is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | November 1, 1991 |
b0950592-e394-4ea0-9173-3d6942520ea7 | Deputy Sheriffs Law Enforc. v. Mobile Cty. | 590 So. 2d 239 | 1900823 | Alabama | Alabama Supreme Court | 590 So. 2d 239 (1991)
DEPUTY SHERIFFS LAW ENFORCEMENT ASSOCIATION OF MOBILE COUNTY, et al.
v.
MOBILE COUNTY, et al.
1900823.
Supreme Court of Alabama.
November 15, 1991.
*240 Richard G. Alexander of Alexander & Associates, Mobile, for appellants.
Lawrence M. Wettermark and Eileen W. Stockham of Collins, Galloway & Smith, Mobile, for appellee Mobile County.
Mylan R. Engel of Engel, Walsh & Zoghby, Mobile, for appellee Mobile County Personnel Bd.
MADDOX, Justice.
The primary issue presented in this case is whether the trial court erred in declaring a local act of the legislature tying deputy sheriffs' pay to that of state troopers unconstitutional on a finding that the local act, as enacted by the legislature, materially varied from the bill as advertised, pursuant to § 106, Constitution of Alabama 1901. A secondary issue, whether the trial court abused its discretion in refusing to allow the deputies the right to amend their complaint, is also presented.
Because we conclude that the trial court was correct in its assessment of the law and its determination of the facts of this case, we affirm.
In 1982, the legislature passed Local Act No. 82-444, which dealt with minimum salaries for Mobile County deputy sheriffs. Specifically, Act No. 82-444 repealed two predecessor acts dealing with compensation for Mobile County deputy sheriffs, and set up a comparative pay scale that linked the pay of the Mobile deputies to that of Alabama state troopers, and provided for pay increases. Section 6 of the Act stated:
On October 28, 1988, the Mobile County Commission and the Personnel Board of Mobile County gave Mobile County engineers a 20% pay increase. Immediately thereafter, a group of deputies made demand on the County Commission and the Personnel Board for a like pay increase based on § 6 of Act 82-444. The Commission and the Board refused to grant the deputies any similar salary increase.
In January 1989, a class action was initiated by the Deputy Sheriffs Law Enforcement Association of Mobile County ("Deputies"), seeking a declaration of the Deputies' right to the 20% pay increase and enforcement of that right once declared.
The County Commission and the Personnel Board answered the complaint, and as an affirmative defense asserted that Act No. 82-444 was unconstitutional. As grounds for their defense, the Commission and the Board asserted the following violations of the Alabama Constitution of 1901: 1) the "no material variance" requirement of Article IV, § 106; 2) the "one subject" requirement of Article IV, § 45; and 3) the *241 prohibition against retroactive pay increases for public officers found in Article IV, § 68.
On cross-motions for summary judgment, the trial court held Act No. 82-444 unconstitutional. The trial court determined that the Act violated the "no material variance" requirement of Article IV, § 106. Having found the Act invalid, the trial court entered a summary judgment for the Commission and the Board, and denied the appellant's cross-motion.
After the summary judgment was entered against them, the Deputies sought to amend their complaint to claim a cause of action based on the revived predecessor statute. The defendants moved to strike the amendment, and the court granted the motion. The Deputies appealed, raising the propriety of the summary judgment and the refusal of the trial court to permit them to amend their complaint.
The Deputies raise two issues on appeal: 1) whether Act No. 82-444, as enacted, materially varies from the Act that was advertised pursuant to Article IV, § 106; and 2) whether the trial court erred in not allowing their amendment. We address each issue and its concomitant subissues separately.
This Court has had opportunity to address the material variance issue on several occasions, and we will attempt to set out logically what we believe to be the law on the subject.
Article IV, § 106, of the Alabama Constitution of 1901, as amended by Amendment No. 341, states:
The clear requirement of § 106, then, is that prior to the introduction of a local bill[1] in the legislature, the text of the bill must be published or advertised in the affected county or counties.[2]
The purpose of this notice requirement is threefold. One purpose is to inform all persons affected by the local law, thus giving them an opportunity to voice their opposition. Wilkins v. Woolf, 281 Ala. 693, 697, 208 So. 2d 74, 77 (1968). Another purpose is to prevent deception of persons immediately affected. Jefferson County v. Braswell, 407 So. 2d 115, 118 (Ala.1981). A final purpose is to prevent the community involved from being misled as to the law's purpose, and thus to prevent a fraud on the public. Adam v. Shelby County Commission, 415 So. 2d 1066, 1072 (Ala.1982) (Maddox, J., dissenting).
The law is that an advertisement of a bill will satisfy § 106 if it advises local persons of the bill's substance, "its characteristic and essential provisions," or "its most important features." Wilkins, 281 Ala. at 697, 208 So. 2d at 77. "Substance" is defined as "`an intelligible abstract or synopsis of [a bill's] material and substantial elements.'" Phalen v. Birmingham Racing Commission, 481 So. 2d 1108, 1119 (Ala.1985), citing Birmingham-Jefferson Civic Center Authority v. Hoadley, 414 *242 So. 2d 895, 899 (Ala.1982). Two other principles are applicable: 1) "the substance may be sufficiently stated without stating the details subsidiary to the stated elements";[3] and 2) "the legislature may shape the details of proposed local legislation by amending bills when presented for consideration and passage." Hoadley, 414 So. 2d at 899.
The material variance rule has been described in different ways. In Phalen, this Court said that, upon comparing the law as enacted and the bill as advertised there must be no material or substantial differences. Phalen, 481 So. 2d at 1119. Stating it differently, this Court has held that if upon comparing the enacted law and the advertised bill one finds material or substantial differences, then the entire law must be declared invalid. Calhoun County v. Morgan, 258 Ala. 352, 62 So. 2d 457 (1952). The logical inquiry, then, is what is a material or substantial difference? That is, what is a material variance?
Our examination of the older case law in this area suggests that the material variance rule was once rather strictly applied. The clear trend of our modern cases seems to be to uphold legislation, rather than strike it down because of a finding that there was a material variance. See Phalen, 481 So.2d at 1119-22; and Opinion of the Justices No. 303, 435 So. 2d 731, 733 (Ala.1983). In fact, the modern case law reveals only three variances deemed important enough to be labelled "material": 1) the deletion or omission of a publicized approval mechanism, Adam, 415 So. 2d at 1070; 2) the limitation on or exclusion of normally permissible activities not mentioned in the advertisement, Adam, 415 So. 2d at 1070; and 3) any change in the advertised power to fill vacancies on newly created agencies or commissions, Parrish v. Faulk, 293 Ala. 401, 304 So. 2d 194 (1974), and Hoadley, 414 So. 2d at 900.
To these three variances we would add another following logically from the "substance" requirement discussed previously. If an advertisement is so lacking in detail as not to be an "intelligible abstract or synopsis of the bill's material elements," Phalen, 481 So. 2d at 1119, then logically the enacted law will materially vary from the advertisement. The law at issue here, Act No. 82-444, is a perfect example of this fourth type of material variance.
The advertisement published in Mobile County stated only that the bill sought to repeal Acts No. 76-710 and 80-797, both of which dealt with minimum compensation for Mobile County deputy sheriffs. The advertisement made no mention of tying the deputies' compensation to that of Alabama state troopers or of tying salary increases to similar increases given other classes of Mobile County employees. Because of these failings, we believe the trial court correctly found that the advertisement was not an intelligible abstract or synopsis of the major or substantial parts of the bill. We hold, therefore, that the trial court did not err in finding that there was a material variance between the bill, as advertised, and the Act, as finally adopted.
The appellants argue that if Act No. 82-444 is unconstitutional then the trial court erred in not allowing them to amend their complaint to add a cause of action arising under the revived predecessor statute. While we agree with the appellants that the predecessor statute was revived, we disagree that the trial court erred in refusing to permit the amendment to the complaint.
Revival of predecessor statutes has long been a part of American jurisprudence. See, E. Crawford, The Construction of Statutes, § 321 (1940). Simply stated, revival means that the very act of declaring a statute unconstitutional brings the predecessor statute or the applicable common law rule back into full force. See, id.; and Dewrell v. Kearley, 250 Ala. 18, 32 So.2d *243 812 (1947). Thus, the trial court's declaration that Act No. 82-444 was unconstitutional automatically gave new life to the predecessor statutes, Acts No. 76-710 and 80-797.
Assuming, as the Deputies argue, that one of these revived statutes supports their claim to a salary increase, the question then is what procedural action was proper. The Deputies contend that the trial court should have allowed them to amend their complaint, after the entry of summary judgment, to add the new cause of action. They cite only Rule 15(a), A.R.Civ.P., as support for this claim. Specifically, they point to the language in Rule 15(a) that states that "such amendments shall be freely allowed when justice so requires."
The Deputies totally ignore cases such as Government Street Lumber Co. v. AmSouth Bank, N.A., 553 So. 2d 68 (Ala.1989), which found no abuse of discretion when a trial court disallowed an amendment after a summary judgment motion had been filed and scheduled for hearing. Applying the holding of Government Street Lumber Co., we cannot logically hold that the trial court here abused its discretion by disallowing an amendment after the summary judgment had been entered.[4]
Having found that the trial court did not err in holding that there was a material variance between the bill as advertised and Act No. 82-444, as enacted, we affirm the trial court's judgment declaring the Act unconstitutional. Further, we find that the trial court did not abuse its discretion by disallowing the plaintiffs' amendment to their complaint.
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] A "local law" is defined as "a law which is not a general law" Phalen v. Birmingham Racing Commission, 481 So. 2d 1108, 1110 (Ala.1985). A general law is defined by Article IV, § 110, Alabama Constitution of 1901, as "a law which in its terms and effect applies either to the whole state, or to one or more municipalities of the state less than the whole in a class." Id.
[2] This Court has held in Jefferson County v. Braswell, 407 So. 2d 115, 119 (Ala.1981), that "the requirements of [§] 106 are satisfied by the giving of notice of a proposed local law to those who would be immediately affected by its enactment: persons within the locality in which the law is intended to, and by its very terms does, operate." (Emphasis in original.)
[3] In this same vein, there is ample authority for the proposition that a detailed advertisement will be more strictly scrutinized than a general advertisement. See, Phalen, 481 So. 2d at 1121; Adam, 415 So. 2d at 1070; and Wilkins, 281 Ala. at 697, 208 So. 2d at 78. Logically, the more details included in the advertisement the more likely it is that material variances will be found upon comparison of the advertised bill with the enacted law.
[4] Our holding that the trial court did not err in refusing to permit the amendment should not be understood as holding that the appellants may not be able to allege a new and independent cause of action against the County Commission and the Personnel Board. | November 15, 1991 |
0ebd8a6d-490c-40d6-9605-1993b19b09b4 | Underwood v. Allstate Ins. Co. | 590 So. 2d 258 | 1901085 | Alabama | Alabama Supreme Court | 590 So. 2d 258 (1991)
Anthony D. UNDERWOOD and Maureen K. Underwood
v.
ALLSTATE INSURANCE COMPANY.
1901085.
Supreme Court of Alabama.
November 22, 1991.
Michael J. Gamble of Cherry, Givens, Tarver, Peters, Lockett & Diaz, P.C., Dothan, for appellants.
Steven K. Brackin of Lewis, Brackin & Flowers, Dothan, for appellee.
MADDOX, Justice.
The issue in this case is whether the Circuit Court correctly entered a summary judgment for the defendant insurance company because the plaintiffs had signed a release, a release that the plaintiffs contend was procured by fraud.
The plaintiffs, Anthony D. Underwood and Maureen K. Underwood, sued Allstate Insurance Company for uninsured motorist benefits for personal injuries suffered by Mr. Underwood and loss of consortium suffered by Mrs. Underwood.
Allstate filed a motion to dismiss the Underwoods' complaint pursuant to Ala. R.Civ.P., Rule 12(b)(6), and submitted a release of the uninsured motorist benefits signed by the Underwoods and stating on its face that it was a "full and final" settlement of all claims. Allstate claimed it had reimbursed the deductible to the Underwoods and had settled the uninsured motorist claim for personal injury.
The trial court held a hearing on Allstate's motion but took no testimony, and neither party filed any affidavits. In response to Allstate's motion, the Underwoods filed no counter-affidavits, but did obtain permission from the court to amend their complaint to allege that the release was procured by fraud. Subsequently, Allstate filed another motion to dismiss, restating the same grounds it had previously stated, and attached to the motion the same draft and release that it had attached to its first motion. Allstate filed no affidavits or other evidence to negative the allegations in the amended complaint that the release was obtained by fraud.
The court conducted another hearing on Allstate's motion. No testimony was taken and no affidavits were filed at this hearing either. The trial court granted Allstate's motion, and the Underwoods appealed.
Because Allstate filed matters outside the pleadings in support of its Rule 12(b)(6) motion, we treat it as a Rule 56 motion for summary judgment.[1]
As previously stated, Allstate supported its Rule 12(b)(6) motion only with the settlement draft and the release signed by the Underwoods.
*259 When a party makes a properly supported motion for summary judgment, "an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided ..., must set forth specific facts showing that there is a genuine issue for trial." Ala.R.Civ.P., Rule 56(e). If he does not so respond, summary judgment may be entered against him.
A valid release, of course, can act as a complete bar to relief, and if the release here was not procured by fraud it would bar the relief the plaintiffs seek. Stouts Mountain Coal & Coke Co. v. Pollak, 195 Ala. 556, 70 So. 846, 558 (1915).
In their amended complaint, the Underwoods, while admitting the existence of the release, nevertheless claimed that it was obtained by misrepresentations made by Allstate's agents. The Underwoods argue that a release obtained in such a manner is void. Edmondson v. Dressman, 469 So. 2d 571 (Ala.1985).[2]
Insofar as the propriety of summary judgment is concerned, this case is strikingly similar to the case of Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So. 2d 686 (1975). There, a lessor filed a declaratory judgment action in which the lessor sought to have the court declare that the terms of a lease pertaining to a renewal option had not been complied with, as a matter of law. The lessee, in its answer, alleged that the lessor had waived that provision of the lease. In reversing the trial court's summary judgment, the Court noted that the movant/lessor had offered no evidence to negative the allegations of the lessees that a waiver had occured, and that the summary judgment, therefore, was inappropriate, because the question whether a waiver had occurred was a genuine issue of fact that still remained to be tried.
Our judgment here should not be construed as holding that a party can rely upon the allegations and denials of a pleading to establish a genuine issue of fact. Had Allstate in this case filed admissible evidence in support of its motion for summary judgment, as permitted by Rule 56, setting out all of the representations it had made before the execution of the release, and that the evidence negatived the Underwoods' allegations that the release was procured by fraud, then the Underwoods could not have relied upon the mere allegations of their amended complaint. Cf. Ray v. Midfield Park, Inc., supra. Allstate did not do this; therefore, it failed to sustain its burden of showing that no genuine issue of fact remained in the case.
Based on the foregoing, the judgment of the trial Court is due to be, and it is hereby, reversed, and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Rule 12(b) states in pertinent part:
"If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56."
[2] In Edmondson the court stated that a release obtained by "fraud" was void. The plaintiffs in this case argue that a release obtained by "misrepresentation" is also void. We need not address whether there is any distinction between "fraud" and "misrepresentation," in view of our holding in this case. | November 22, 1991 |
bd33410f-afcd-4752-adc5-887119a0437c | Ex Parte Drill Parts & Service Co., Inc. | 590 So. 2d 252 | 1901822 | Alabama | Alabama Supreme Court | 590 So. 2d 252 (1991)
Ex parte DRILL PARTS & SERVICE COMPANY, INC., and Carlton Montgomery.
(In re JOY MANUFACTURING COMPANY v. Carlton MONTGOMERY, et al.)
1901822.
Supreme Court of Alabama.
November 22, 1991.
Frederick A. Erben of Beddow, Erben & Bowen, P.A. and Charles Cleveland of Cleveland & Cleveland, Birmingham, for appellant.
Jasper P. Juliano of Parsons, Lee & Juliano, P.C., Birmingham, for appellees.
HOUSTON, Justice.
Drill Parts & Service Company, Inc., and Carlton Montgomery have petitioned this Court for a writ of mandamus directing the Honorable Marvin Cherner, judge of the Jefferson County Circuit Court, to set aside his order denying their request for a trial by jury. The writ is denied.
Joy Manufacturing Company ("Joy") sued the petitioners, alleging that they had misappropriated its trade secrets and seeking injunctive relief. Judge William Thompson of the Jefferson County Circuit Court entered a preliminary injunction in favor of Joy, and that injunctive order was later affirmed by this Court. See Drill Parts & Service Co. v. Joy Manufacturing Co., 439 So. 2d 43 (Ala.1983), for a detailed statement of the facts in this case. After securing the preliminary injunction, Joy amended its complaint by adding a claim for damages based on the alleged misappropriation *253 of trade secrets, a claim for conversion, and a claim based on allegations of unjust enrichment on the part of the petitioners. The petitioners filed an answer and demanded a trial by jury "on all issues." Thereafter, following a full evidentiary hearing, Judge Cherner entered a permanent injunction against the petitioners.[1] Joy moved for a partial summary judgment on its misappropriation-of-trade-secrets claim. Joy argued that it was entitled to a judgment as a matter of law with respect to the issue of the petitioners' liability for misappropriating trade secrets because, it argued, liability had already been determined in connection with the request for the permanent injunction. In opposition to Joy's motion, the petitioners argued that a judgment for Joy as a matter of law would be inappropriate because they had demanded a jury trial "on all issues," including the issue of whether they were liable in damages for misappropriating Joy's trade secrets. Judge Cherner ruled that Joy's claim alleging misappropriation of its trade secrets was equitable in nature, in that it primarily sought injunctive relief, and that Joy's damages claim was merely incidental to the injunctive relief requested and did not alter the equitable nature of the claim. He further ruled that the petitioners were not entitled to a jury trial on Joy's claim for damages for misappropriation of trade secrets, and he set a hearing to determine damages. Although Judge Cherner did not specifically state in his order that he was entering a partial summary judgment in favor of Joy on the liability issue, the effect of the order was to do just that. Judge Cherner did not certify his order as final pursuant to Rule 54(b), Ala.R.Civ.P. After Judge Cherner refused to sign the statement required for an appeal by permission pursuant to Rule 5, Ala.R.App.P., the petitioners sought mandamus review in this Court. All of Joy's claims (i.e., its damages claim alleging misappropriation of trade secrets; its conversion claim; and its claim based on the alleged unjust enrichment of the petitioners) remain pending below.
The gravamen of the petitioners' argument is that this Court should issue a writ of mandamus directing Judge Cherner to set aside his order entering the partial summary judgment in favor of Joy and setting a hearing for a determination of damages because, they argue, the order had the effect of denying them their right, as guaranteed by Article I, § 11, of the Alabama Constitution, to have a jury decide disputed factual questions in connection with Joy's claim for damages for misappropriation of trade secrets. Joy argues that the relief it sought under its claim for misappropriation of trade secrets was equitable in nature; that its damages claim was merely incidental to its request for injunctive relief and did not alter the equitable nature of the claim; and therefore, that it was within Judge Cherner's equitable jurisdiction to determine the issue of the petitioners' liability, and that it is also within his equitable jurisdiction to determine the amount of damages.
We find it unnecessary to determine with respect to this petition whether Judge Cherner erred in entering the partial summary judgment in favor of Joy on the issue of the petitioners' liability for misappropriating trade secrets and setting a hearing for a determination of damages. It is well settled that mandamus is an extraordinary writ to be issued only in situations where other relief is unavailable or inadequate and that it is not a substitute for the appellate process. Continental Oil Co. v. Williams, 370 So. 2d 953 (Ala.1979). The petitioners could not appeal Judge Cherner's interlocutory partial summary judgment in favor of Joy and the order setting a hearing for a determination of damages, *254 pursuant to Rule 5, supra; nevertheless, the petitioners have an adequate remedy by appeal once a final judgment is entered in this case. We note that Ex parte Rush, 419 So. 2d 1388 (Ala.1982), cited by the petitioners, is distinguishable from the present case. In Ex parte Rush, the cause underlying the plaintiff's declaratory judgment action against the defendant, George S. Rush, d/b/a Rush Engineers ("Rush"), was a contract dispute with attendant factual issues that were triable to a jury. Rush moved to dismiss the complaint under Rule 12(b)(6), Ala.R.Civ.P., contending that it failed to state a claim upon which relief could be granted. The trial judge denied that motion. Rush filed an answer and a counterclaim and both parties requested that certain documents be produced pursuant to Rule 34, Ala.R.Civ.P. The plaintiff then moved to strike Rush's request for a jury trial and demanded a speedy hearing on the merits of the action. That motion was granted. Rush petitioned this Court for a writ of mandamus directing the trial judge to set aside his order denying Rush a trial by jury on the merits of the action. We issued the writ, noting that a writ of mandamus will lie to compel the granting of a trial by jury when there is no other adequate remedy available. Rush did not have another adequate remedy because his request for a trial by jury was stricken early in the litigation, prior to the entry of a judgment. In the present case, after over eight years of litigation, a partial summary judgment, albeit interlocutory in nature, was entered against the petitioners on the issue of liability for misappropriating trade secrets; thus, only the question of damages is left to be resolved. With the case in this posture, the petitioners have an adequate remedy by appeal once Judge Cherner enters a final judgment. Accordingly, mandamus is not the appropriate means of review in this case.
WRIT DENIED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] Joy sold the Robbins Division of its company (i.e., the division of its company whose trade secrets had allegedly been misappropriated) to Robbins Manufacturing Company ("Robbins"). Robbins then intervened in the suit as a plaintiff and successor in interest to the injunctive relief that had previously been granted to Joy. Thereafter, Judge Cherner issued a permanent injunction in favor of Robbins. Because Robbins had sold the business in question to Marathon LeTourneau Company ("Marathon") prior to the issuance of the permanent injunction, Judge Cherner allowed Marathon to later intervene in the suit as a party plaintiff and successor in interest to the injunctive relief that had been granted to Robbins. At this point in the litigation Marathon is the real party in interest with respect to the injunctive relief granted. | November 22, 1991 |
c7c28164-cd8c-419a-9d1f-6558dcedb9e5 | Bloodsworth v. Morgan | 593 So. 2d 55 | 1901253 | Alabama | Alabama Supreme Court | 593 So. 2d 55 (1991)
Russ Allen BLOODSWORTH
v.
Sylvester MORGAN and Morgan Bail Bonding, Inc.
1901253.
Supreme Court of Alabama.
November 1, 1991.
Rehearing Denied January 24, 1992.
*56 William R. Murray, Northport, for appellant.
Dan M. Gibson, Tuscaloosa, for appellees.
KENNEDY, Justice.
Russ Allen Bloodsworth filed an action against Sylvester Morgan and Morgan Bail Bonding, Inc., alleging fraud, false arrest, false imprisonment, outrage, and breach of contract. The trial court entered a summary judgment for Morgan on all of Bloodsworth's claims and for Morgan Bail Bonding on all of Bloodsworth's claims except the breach of contract claim, and it made that judgment final pursuant to Rule 54(b), A.R.Civ.P.
On September 14, 1988, Bloodsworth was arrested and placed in the county jail in Tuscaloosa. Bloodsworth entered into a contract with Morgan Bail Bonding pursuant to which Morgan Bail Bonding agreed to post an appearance bond for Bloodsworth. Bloodsworth paid Morgan Bail Bonding $105 for a $1,000 bond. Bloodsworth was released from jail on this bond.
On November 25, 1988, Bloodsworth was again arrested, and he again contacted Morgan Bail Bonding to obtain bond. Bond for this offense was set at $5,000, for payment of which Bloodsworth agreed to pay Morgan Bail Bonding $500. Bloodsworth did not have $500 then, so he paid $300 with the understanding that the balance was due in December. Again, Bloodsworth was released on the bond provided by Morgan Bail Bonding.
On November 29, 1988, Sylvester Morgan received word from one of the indemnitors on the $5,000 bond that Bloodsworth planned to leave the state as soon as he could get some money. On December 2, 1988, Morgan obtained a certified copy of the $5,000 bond. That same day, he and Jeff Wilder, a Morgan Bail Bonding employee, went to Bloodsworth's residence and, perhaps by telling Bloodsworth that they were taking him to the bank to get the $200 that Bloodsworth still owed Morgan Bail Bonding, they took Bloodsworth into custody. They returned Bloodsworth to the county jail in Tuscaloosa and turned him over to the sheriff's department. Neither Morgan nor Wilder touched Bloodsworth or threatened him in any way.
In Stephens v. City of Montgomery, 575 So. 2d 1095, 1097 (Ala.1991), we stated the following regarding summary judgment proceedings:
In order to rebut the prima facie showing made by the defendant, the plaintiffs must show the existence of a genuine issue of material fact by "substantial evidence," Ala.Code 1975, § 12-21-12, which has been defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). The trial court's ruling on a summary judgment motion is a nondiscretionary ruling, and no presumption of correctness attaches to that ruling; accordingly, our review of the evidence properly presented in the record is de novo. Hightower & Co. v. United States Fidelity & Guaranty Co., 527 So. 2d 698 (Ala.1988).
Bloodsworth contends that the trial court erred in entering a summary judgment on all his claims against Morgan individually. We disagree. Bloodsworth did not prove that Morgan so conducted and controlled the business of Morgan Bail Bonding as to make it his instrumentality (and thus his alter ego) so that Morgan individually should be responsible for claims against the corporation. See, e.g., Killingsworth v. Crittenden, 585 So. 2d 903 (Ala.1991). Bloodsworth did not otherwise produce substantial evidence that his claims against Morgan individually should have gone to the jury.
Bloodsworth contends that the trial court erred by entering a summary judgment on his fraud claim against Morgan Bail Bonding. As the basis for his fraud claim, Bloodsworth argues that under Ala. Code 1975, § 15-13-22, Morgan Bail Bonding was not "authorized" to provide bail bonds and that Morgan Bail Bonding fraudulently represented to him that it was so authorized. Regardless of whether Morgan Bail Bonding was properly authorized pursuant to that statute to provide Bloodsworth a bail bond, Bloodsworth has shown no causal connection between the alleged wrongMorgan Bail Bonding's not being "authorized" to provide bail bondsand any damages he suffered, such as being returned to jail. Bloodsworth was returned to jail because Morgan Bail Bonding had reason to believe that he would attempt to leave the state; he was not returned to jail because Morgan Bail Bonding's alleged failure to comply with § 15-13-22 made the bond deficient. Because Bloodsworth did not prove a causal connection between the allegedly fraudulent representation and any damages he may have suffered, his action for fraud against Morgan Bail Bonding fails.
Furthermore, because Bloodsworth characterizes his fraud claim as a claim for promissory fraud, he must prove not only the normal elements of fraud, see Guinn v. American Integrity Insurance Co., 568 So. 2d 760 (Ala.1990); Beautilite Co. v. Anthony, 554 So. 2d 946 (Ala.1989), but also the additional element that Morgan Bail Bonding intended to deceive him at the time it made the alleged fraudulent representation. Baker v. State Farm General Insurance Co., 585 So. 2d 804 (Ala.1991); E & S Facilities v. Precision Chipper Corp., 565 So. 2d 54 (Ala.1990); Crowder v. Memory Hill Gardens, Inc., 516 So. 2d 602 (Ala. 1987). Bloodsworth did not produce substantial evidence of such an intention.
Bloodsworth argues that the trial court erred in entering a summary judgment on his false imprisonment and false arrest claims against Morgan Bail Bonding. Morgan Bail Bonding argues that Ala.Code 1975, § 15-13-62, provides express authority for the actions it took in returning Bloodsworth to jail. Section 15-13-62 provides:
Bloodsworth does not contend that the provision does not provide Morgan Bail Bonding the authority for its actions; instead, *58 Bloodsworth argues that because Morgan Bail Bonding was allegedly not authorized under § 15-13-22 to transact a bail bonding business, Morgan Bail Bonding cannot avail itself of § 15-13-62 as a defense to the false imprisonment and false arrest claims. Bloodsworth's own argument defeats his theory of recovery for false imprisonment and false arrest, however, because if the bond was invalid, then he should never have been released from jail in the first instance.
Furthermore, under Bloodsworth's argument, the provisions of § 15-13-22 concerning qualifying for posting bond effectively force a bail bondsman to choose between allowing an arrested person to flee prosecution or accepting liability for false arrest and imprisonment. Consider the following situation: A person is arrested and then contacts a bail bondsman or bail-providing corporation. The person who was arrested pays the bail bondsman or corporation to obtain the bond, which the bondsman or corporation does, and the person who was arrested is released from jail. The person who was arrested later discovers correctly that the bondsman or corporation was not qualified under § 15-13-22 to obtain the bond. The person who was arrested decides to leave the state in hopes of avoiding prosecution, and the bail bondsman or corporation discovers the person's plan to flee. When the bondsman or the corporation acting through its employees attempts to take the person who was arrested to jail before that person leaves the state, the person who was arrested refuses to go, citing § 15-13-22. The bail bondsman or corporation, according to Bloodsworth's arguments, would then have two choices: either allow that person to leave or stop the person and consequently face liability for false imprisonment and false arrest. Nothing indicates that the legislature in enacting § 15-13-22 intended to create such a situation, and we perceive no legal basis for such a holding.
Additionally, Bloodsworth did not produce substantial evidence of the existence of a genuine issue of material fact regarding his claims against Morgan Bail Bonding for false imprisonment and false arrest. He bases his argument for those claims on his assertion that Morgan Bail Bonding did not obtain a $25,000 corporate surety bond pursuant to § 15-13-22(c); therefore, he asserts, it was not authorized to post bond. Notwithstanding Bloodsworth's argument, that provision applies to persons posting bonds and expressly excludes corporations from its coverage. Bloodsworth also claims that Morgan Bail Bonding was not qualified under § 15-13-22(b), which does address corporations. Bloodsworth admitted in his motion opposing summary judgment that he had no documentary evidence to support that argument (although he hoped to obtain some later). At summary judgment stage, his only evidence supporting that argument was a general assertion in an affidavit by a bail bondsman in Tuscaloosa that in that bail bondsman's opinion Morgan Bail Bonding was not so qualified; that bondsman gave no basis for his opinion.
Finally, Bloodsworth contends that he produced sufficient evidence of the existence of a genuine issue of material fact regarding his outrage claim for that claim to go to the jury. In American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala. 1980), the Court recognized the tort of outrage and stated:
394 So. 2d at 365. Bloodsworth did not present substantial evidence of the existence of a genuine issue of material fact as to the "extreme" conduct, 394 So. 2d at 365, required to prove an outrage claim.
The trial court did not err, and its judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES and HOUSTON, JJ., concur.
MADDOX, J., concurs in the result. | November 1, 1991 |
507d6cbe-2138-43aa-aa53-23416634a44c | Valley Bldg. & Supply, Inc. v. Lombus | 590 So. 2d 142 | N/A | Alabama | Alabama Supreme Court | 590 So. 2d 142 (1991)
VALLEY BUILDING & SUPPLY, INC.
v.
Diane LOMBUS, as administratrix of the Estate of Johnny Lombus, deceased.
89-1788.
Supreme Court of Alabama.
June 28, 1991.
On Return after Remand November 22, 1991.
*143 John W. Clark, Jr. and David M. Wilson of Clark & Scott, Birmingham, for appellant.
Steven F. Casey of Balch & Bingham, Birmingham, R. Blake Lazenby of Wooten, Thornton, Carpenter, O'Brien & Lazenby, Talladega, for appellee.
MADDOX, Justice.
Valley Building and Supply, Inc. ("Valley"), appeals from a judgment entered on a jury verdict of $600,000 in favor of Diane Lombus ("Lombus"), as administratrix of the estate of Johnny Lombus, in a wrongful death action. Valley contends that the trial court erred in 1) denying Valley's motion for directed verdict as to the wantonness count, 2) denying Valley's motion for mistrial after the issue of insurance had been improperly injected into the case by Lombus, 3) failing to give the entire oral charge to the jury when the jury had asked to be reinstructed on the issues of negligence and wantonness, and 4) failing to grant Valley's motion for remittitur.
On December 16, 1988, an employee of Mitchell Transport, Inc., delivered a load of roofing material on an 18-wheel tractor-trailer rig to Valley at its business location on U.S. Highway 280 in Childersburg, Alabama. After unloading the roofing material, the driver asked Valley employees how he was to exit Valley's premises. He was told that Valley employees would stop the traffic on U.S. Highway 280, and that he would then be able to back into the highway.
In order to stop the traffic, Kyle Spates, an employee of Valley's, enlisted the aid of Eddie Lytton, a customer of Valley's. Neither was equipped with any type of warning devices in order to stop the traffic. Spates stopped at the edge of the highway, and Lytton proceeded down the highway. There was evidence that Lytton was to stop the traffic and then inform Spates when it was safe for the truck to back onto the highway; that Lytton signaled that it was safe, and that Spates then signaled the truck driver to back onto the highway. There was conflicting evidence, however, on this point, and one witness who was travelling on Highway 280 near the point of the collision testified that he "never saw anyone flagging traffic" and that "no one was stopping, no brakes lights or nothing." In any event, Johnny Lombus, who was traveling east on U.S. Highway 280, collided with the rear of the 18-wheel tractor-trailer rig and was killed instantly.
Ms. Lombus filed a wrongful death action against Valley, Mitchell Transport, Inc., and James Earl McHenry, alleging negligence and wantonness. Ms. Lombus entered into a pro tanto settlement with McHenry and Mitchell Transport during the trial, leaving Valley as the sole defendant.
Valley alleged that Mr. Lombus had been contributorily negligent in regard to the accident, and at trial, at the close of the plaintiff's evidence, Valley moved for a directed verdict on the wantonness claim. The motion was denied. Valley renewed the motion at the close of all of the evidence, and it was again denied. The jury returned a verdict in favor of Ms. Lombus in the amount of $600,000 and the trial court entered a judgment thereon. Valley filed a motion for a judgment notwithstanding the verdict, or, alternatively, for a new trial, or for remittitur. That motion was denied.
On appeal, Valley argues, among other things, that the trial court erred in submitting the wantonness claim to the jury. In reviewing the sufficiency of the evidence, we apply the "substantial evidence rule," because this action was filed after June 11, 1987. Ala.Code 1975, § 12-21-12; Koch v. State Farm Fire & Casualty Co., 565 So. 2d 226 (Ala.1990) (in actions filed after June 11, 1987, a directed verdict for the defendant is proper when the plaintiff has *144 failed to present "substantial evidence" as to each element of her cause of action); Robichaux v. AFBIC Development Co., 551 So. 2d 1017 (Ala.1989).
What constitutes wanton misconduct depends on the facts presented in each particular case. South Central Bell Telephone Co. v. Branum, 568 So. 2d 795 (Ala. 1990); Central Alabama Electric Coop. v. Tapley, 546 So. 2d 371 (Ala.1989); Brown v. Turner, 497 So. 2d 1119 (Ala.1986); Trahan v. Cook, 288 Ala. 704, 265 So. 2d 125 (1972). A majority of this Court, in Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142 (Ala.1987), emphasized that wantonness, which requires some degree of consciousness on the part of the defendant that injury is likely to result from his act or omission, is not to be confused with negligence (i.e., mere inadvertence):
510 So. 2d at 145. See also Central Alabama Electric Coop. v. Tapley, supra, and South Central Bell Telephone Co. v. Branum, supra.
Valley argues that the only "act" that could be considered wanton would be the fact that Kyle Spates was aware that, if the truck was backed into the highway before the oncoming traffic was stopped, an accident could occur. At the time of the accident, it was "rush hour" in Childersburg. Nevertheless, Valley contends that Spates's acts, under the circumstances, were not wanton because Spates believed that all oncoming traffic had been stopped before the truck was backed into the highway. Ms. Lombus, on the other hand, argues that the evidence adduced at trial that it was Kyle Spates's responsibility to stop the oncoming traffic, that he delegated this responsibility to a Valley customer, and that he failed to provide any warning devices to the customer to be used in stopping the trafficwas substantial evidence that Spates failed to determine that the oncoming traffic had been stopped before he directed the driver of the 18-wheel tractor-trailer rig to back into the highway. This, she argues, made with the knowledge that it was "rush hour" in Childersburg, constituted evidence to support a finding of wanton conduct.
Ms. Lombus contends that the facts in this case are more egregious than those in Bishop v. Poore, 475 So. 2d 486 (Ala.1985), in which this Court found the facts were sufficient to support a claim of wantonness. In that case, the defendant, after stopping at a stop sign at the exit from a parking lot, drove across two northbound lanes of traffic to enter the southbound lane of traffic. The plaintiff was proceeding north on a motorcycle, and the vehicles collided, causing injury to the plaintiff and damage to his motorcycle. A majority of this Court held that there was a scintilla of evidence that permitted an inference that the defendant had failed to look in the direction of the plaintiff, and that that failure could be regarded as reckless indifference to the consequences with knowledge that such an omission could likely result in injury to another. Bishop v. Poore, supra; Whaley v. Lawing, 352 So. 2d 1090, 1092 (Ala.1977).
Although Spates testified that he had backed trucks into Highway 280 in this manner on several occasions and had never encountered any difficulty, that evidence fails to prove, as a matter of law, that he did not act wantonly on the occasion of the subject accident. Based on the evidence presented, the jury could have concluded that Spates was aware that Highway 280 was a well-traveled highway, yet failed to provide any type of warning devices to Eddie Lytton when he asked him for assistance in stopping traffic during "rush hour." Although Eddie Lytton did testify that he had assisted Spates several times in backing traffic into the highway, and witnesses testified that they saw Lytton flagging traffic down at the time of the accident, *145 there were other witnesses who testified that they did not see anyone trying to flag down traffic, and that cars travelling in the same direction as Lombus were not braking. We hold that these facts constitute substantial evidence upon which the jury could have found that Spates, on the occurrence in question, acted wantonly. Therefore, the trial court did not err in denying the defendant's motion for a directed verdict on the wantonness claim.
Valley next contends that the trial court erred in denying its motion for mistrial after the issue of insurance had been improperly injected into the case by Lombus. During the trial of this case, certain questions were asked concerning insurance. However, the substance of these questions, as well as who asked them, was not recorded, because the court reporter was absent from the room at the time the remarks were made. It does appear from the record, as we understand it, that the questions were asked by Valley's attorney.
Upon discovering the court reporter's absence, the trial court instructed the jury to disregard any testimony heard during the court reporter's absence. Once the court reporter began transcribing the testimony, Ms. Lombus's attorney asked the following questions:
At that point, Valley's attorney objected to the testimony. The trial court sustained the objection and offered to give a curative instruction to the jury. Valley declined the offer of a curative instruction and moved for a mistrial.
A trial court is vested with a wide discretion in determining whether incidents that occur during the course of a trial affect the right of either party to a fair trial, so as to require a mistrial. The trial court's decision will not be reversed unless it clearly appears that its discretion has been abused. General Finance Corp. v. Smith, 505 So. 2d 1045 (Ala.1987). This Court held, in Hill v. Sherwood, 488 So. 2d 1357 (Ala.1986), that while the indirect interjection of liability insurance into a trial as a fact to be considered by the jury "is generally considered improper, the resulting prejudicial effect is not per se ineradicable." 488 So. 2d at 1360. In this case, the trial court sustained Valley's objection and offered to give a curative instruction to the jury. It appears that the trial court did not consider the effect of the remarks on the jury to be so prejudicial as to be beyond cure. See Hill at 1359. Based on this record, we cannot hold that the trial court abused its discretion in denying Valley's motion for mistrial.
Valley next contends that the trial court erred in failing to give the entire oral charge to the jury after the jury had asked to be reinstructed on the issues of negligence and wantonness. The trial court orally instructed the jury on negligence, contributory negligence, wantonness, and various rules of the road. After retiring to the jury room, the jury returned and asked to be reinstructed on the definitions of negligence and wantonness. The trial court proceeded to reinstruct the jury as to the definition of negligence and wantonness as the jury had requested. Valley objected to the reinstructions. The trial court removed the jury from the courtroom and allowed Valley to state its objections for the record. Valley alleged that the trial court had erred in failing to reinstruct the jury as to the entire oral charge, or, in the alternative, in failing to reinstruct the jury as to the definition of contributory negligence. The trial court refused to reinstruct the jury as to the full charge or as to the definition of contributory negligence. However, the trial court did bring the jury back into the courtroom, and it stated:
Valley contends that the jury was highly prejudiced against it when the trial court failed to give the jury the definition of contributory negligence in the court's recharge.
In Mobile Light & R.R. v. Burch, 12 Ala.App. 421, 68 So. 509 (1915), the Court of Appeals held that a jury instruction that singles out or gives undue prominence to particular evidence or facts is erroneous. That, however, is not the case here. The fact that the trial court did not reinstruct the jury as to the definition of contributory negligence does not mean that Valley is entitled to a new trial. In Brackett v. Coleman, 525 So. 2d 1372 (Ala.1988), we held that a trial court should not be placed in error merely because its recharge did not restate all pertinent principles of law. See, e.g., Ole South Building & Supply Corp. v. Pilgrim, 425 So. 2d 1086 (Ala. 1983). Upon a review of the record, we are not persuaded that the trial court's additional instructions were unduly weighted against Valley. In response to Valley's objection, the trial court, although not reinstructing the jury on contributory negligence, did remind the jury to remember the entire charge as previously given. We find no error to reverse on this point.
As its final contention, Valley asserts that the trial court erred in denying its motion for a new trial based on the ground that the verdict of the jury was excessive, and that the trial court failed to follow the procedure this Court requires in such cases, as set out in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986). In Hammond we stated:
493 So. 2d at 1379.
We noted, however, in Lowder Realty Co. v. Sabry, 542 So. 2d 1240 (Ala. 1989), that it was never our intention to automatically remand every case in which excessiveness of the jury award is raised as an issue. Where the record on appeal is sufficiently clear for us to review the excessiveness issue, a Hammond remand is not necessary. However, the record must contain all the necessary factors for review if we are to review the case without the benefit of a Hammond hearing. Here, we believe a remand of the case for the trial court to conduct a hearing in accordance with Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), would be appropriate.
In Hammond, this Court required trial courts to include their reasons for either granting or denying a motion for a new trial based upon the alleged excessiveness or inadequacy of a jury verdict, and in Hammond this Court set out some of the factors that trial courts should consider, such as the culpability of the defendant's conduct, the desirability of discouraging others from similar conduct, and the impact upon the parties. 493 So. 2d at 1379.
In Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), this Court further outlined the factors trial courts should consider when reviewing a punitive damages award and should include in the Hammond order. Those factors include: (1) whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant's conduct as well as the harm that actually has occurred; (2) the degree of reprehensibility of the defendant's conduct, the duration of that conduct, the defendant's awareness, any concealment, and the existence and frequency of similar past conduct; (3) the profitability to the defendant of the wrongful conduct and the desirability of removing that profit and of having the defendant also sustain a loss; (4) the financial position of the defendant; (5) all the costs of litigation; (6) the imposition of criminal sanctions on the defendant *147 for its conduct, these to be taken in mitigation; and (7) the existence of other civil awards against the defendant for the same conduct, these also to be taken in mitigation.
The United States Supreme Court, in Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991), discussed the application of the Hammond-Green Oil standards and said that the standards "[i]mpose a sufficiently definite and meaningful constraint on the discretion of Alabama fact finders in awarding punitive damages," and that "[t]he Alabama Supreme Court's post-verdict review ensures that punitive damages awards are not grossly out of proportion to the severity of the offense and have some understandable relationship to compensatory damages."
It seems clear from a reading of Haslip that the Supreme Court of the United States considered the independent Hammond-Green Oil-type review to be essential in order to comport with due process requirements of the Fourteenth Amendment, and some post-Haslip decisions of that Court seem to confirm that reading of Haslip.[1] See Southern Life & Health Insurance Co. v. Turner, ___ U.S. ___, 111 S. Ct. 1678, 114 L. Ed. 2d 73 (1991) ($499,000 punitive damages award in which no Hammond-type review was done, was remanded to this Court) and Intercontinental Life Insurance Co. v. Lindblom, ___ U.S. ___, 111 S. Ct. 1575, 113 L. Ed. 2d 641 (1991) (Supreme Court remanded to this Court for further review a $1,000,000 award that exceeded the compensatory damages by a 79-1 ratio).
In view of the importance of a Hammond-Green Oil-type review in such cases, we remand this cause to the trial court to permit the trial court to conduct a Hammond-Green Oil review of the judgment, and to report its findings and conclusions within 28 days after the date this opinion is released.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and SHORES and KENNEDY, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
I view negligence as conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm; and, in my opinion, the same conduct, whether it be action or inaction, that constitutes negligence also constitutes wantonness if the tort-feasor is conscious of his inaction or action and is conscious that by such inaction or action injury will likely or probably result. Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d at 148-49 (Houston, J., concurring in part, dissenting in part, and concurring in the result in part).
Viewing the facts (many of which are not set out in the majority opinion) in the light most favorable to the party in whose favor the jury found, as our standard of review requires, and considering the reasonable inferences that the jury could draw from those facts, under my concept of wantonness, there would be substantial evidence from which the jury could infer wantonness.
MADDOX, Justice.
After this cause was remanded to the trial court for the purpose of reviewing the *148 verdict of the jury in accordance with the principles announced by this Court in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), the trial court conducted a hearing and entered an order in which the court applied each of the Hammond-Green Oil factors. After the hearing, the Court concluded that there was no reason to reduce the verdict.
We have reviewed the trial court's order and have independently reviewed the facts and circumstances of this case. We, too, conclude that the verdict of $600,000 is not excessive. The judgment of the trial court, therefore, is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON, and KENNEDY, JJ., concur.
[1] In an article appearing in the Legal Times for the week of May 6, 1991, entitled More Damage for Punitive Damages, the following is stated regarding post-Haslip action by the Supreme Court of the United States:
"[T]he Court's holding in Pacific Mutual that the jury's `significant' discretion to punish did not violate due process was predicated in substantial part on the Court's perception of Alabama's `elaborate' and `refined' post-verdict procedures for scrutinizing punitive damage awards. Those procedures involved application by Alabama trial and appellate courts of seven `detailed substantive standards' and `objective criteria' to test the excessiveness of a punitive verdict. The Court concluded that such procedures provided a `sufficiently meaningful and definite constraint' on the discretion of Alabama juries for purposes of due process." | November 22, 1991 |
d80425dc-65e3-4e08-937a-4e21f2269689 | Defoor v. Evesque | 694 So. 2d 1302 | 1951176 | Alabama | Alabama Supreme Court | 694 So. 2d 1302 (1997)
Frank DEFOOR
v.
James E. EVESQUE and USX Corporation.
1951176.
Supreme Court of Alabama.
May 2, 1997.
*1303 A. Joe Peddy and Thomas Coleman, Jr., of Smith, Spires & Peddy, Birmingham, for James A. Evesque, et al.
Michael L. Lucas and Harlan F. Winn III of Burr & Forman, Birmingham, for USX Corp.
SEE, Justice.
The plaintiff, Frank Defoor, slipped and fell at Bessemer State Technical College ("Bessemer Tech"), while taking a hydraulics test to qualify for employment with USX Corporation ("USX"). He filed negligence claims against James Evesque, the Bessemer Tech employee who administered the test, alleging that there was spilled hydraulic fluid at the test site and that Evesque's failure to clean up the fluid had caused Defoor to slip and fall, and against USX, on the theory that Evesque was the "borrowed servant" of USX. The trial court entered a summary judgment for USX and Evesque, holding that Evesque was not a borrowed servant and that he was entitled to immunity as a State employee. Defoor appealed. We agree with the ruling that Evesque was not a borrowed servant; therefore, we affirm the summary judgment as it relates to USX. However, we conclude that the trial court erred in holding that Evesque was entitled to immunity. Therefore, we reverse the summary judgment as it relates to the defendant Evesque, and we remand.
This Court is required to review summary judgments in a light most favorable to the nonmoving party and to resolve all reasonable doubts against the movants, in this case Evesque and USX. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So. 2d 359 (Ala. 1993). Viewed in that light, the evidence suggests the following: In 1991 Defoor applied for a maintenance utilityman position with USX. As part of the prehiring process, Defoor was required to take a hydraulics test. Pursuant to a contract that USX had with Bessemer Tech, all hydraulics tests for USX positions were administered on the premises of Bessemer Tech. Bessemer Tech *1304 hired Evesque and placed him in charge of administering the hydraulics tests. Evesque, on his own initiative, adopted the practice of inspecting the test site before each test. If he found any spilled oil, he cleaned it up with a mop and paper towels. On June 4, 1991, while taking a hydraulics test, Defoor slipped, fell, and sustained injuries.
In 1992, Defoor filed an action in the Jefferson County Circuit Court against Evesque, alleging that he had acted negligently in either conducting the inspection or cleaning up the test site.[1] USX was added as an indispensable party pursuant to the contract it had with Bessemer Tech. Defoor amended his complaint to list Evesque as a defendant in both his official and individual capacities. When the trial court entered the summary judgment for USX and Evesque, Defoor filed this appeal.
Defoor asserts that the summary judgment was improper as to USX because, he argues, Evesque was a "borrowed servant" of USX, and USX was therefore liable for his negligent acts. A corporation is subject to liability for the actions of its servants, agents, or employees only when such acts are done in or about the duties assigned them or are accomplished within the scope of their duties. See Martin v. Anniston Foundry Co., 259 Ala. 633, 68 So. 2d 323 (1953). An employee may, however, be transferred from his general employer to a "borrower" with respect to particular work to be done for that borrower and thus can subject the borrower to liability for certain of the employee's acts. Id. at 637, 68 So. 2d at 327. To determine if a master-servant, or employer-employee, relationship exists, we analyze: (1) the character of service, duration of employment, and who is paying the employee; (2) whether the employee consented to becoming the "borrowed servant" of the alleged borrower and suspended his employment with his general employer; and (3) whether the general employer retained the ultimate right to control the employee's work. See State Farm Mut. Auto. Ins. Co. v. Vails, 278 Ala. 266, 270-71, 177 So. 2d 821, 824-25 (1965); United States Fidelity & Guaranty Co. v. Russo Corp., 628 So. 2d 486, 488-89 (Ala.1993)[2] ("USF & G") In determining whether the requisite degree of control exists, this Court recognizes that it is the entity's right to control the manner and means of the employee's work that establishes the employer-employee relationship, not the mere right to set general guidelines. See Gossett v. Twin County Cable T.V., Inc., 594 So. 2d 635, 639 (Ala.1992) ("Where the alleged master retains merely the right to inspect the work as it progresses, in order to ascertain if it is completed according to plans or specifications, and the right to stop work improperly done, the master and servant relationship is not created."); Pugh v. Butler Tel. Co., 512 So. 2d 1317, 1318 (Ala.1987) (stating that no master-servant relationship exists between an entity and a worker if the entity has not reserved the right to control the means by which the work is performed).
The facts that Evesque was hired by Bessemer Tech, that he was paid by Bessemer Tech, and that he worked exclusively on Bessemer Tech's premises indicate that Evesque was not USX's borrowed servant. See USF & G, 628 So. 2d at 488-89. The lack of evidence that either Evesque or Bessemer Tech ever consented to Evesque's becoming an employee of USX, or that he ever suspended his work for Bessemer Tech, also indicates that Evesque was not USX's borrowed servant. See Vails, 278 Ala. at 270, 177 So. 2d at 824; Alabama Power Co. v. Smith, 273 Ala. 509, 520, 142 So. 2d 228, 239 *1305 (1962). We are not persuaded that USX's assisting in developing the test, providing guidelines for administering the test, and determining which applicants passed the test are sufficient to create an employer-employee relationship between USX and Evesque.[3] Here, Bessemer Tech and USX entered into an arm's-length contract under which Bessemer Tech conducted certain testing on Bessemer Tech's premises with Bessemer Tech's employee, Evesque, administering the test. Although USX provided certain guidelines for the testing, Bessemer Tech retained the right to control the manner and means by which Evesque administered the tests within the structure provided by the guidelines, and thus it retained Evesque as its employee. See Gossett, 594 So. 2d at 639 (stating that the right to ascertain whether work is completed according to plans or specifications is insufficient to create an employer-employee relationship); Pugh, 512 So. 2d at 1318 (same). Accordingly, the summary judgment was proper as to USX.
Defoor also contends that Evesque was not entitled to immunity while performing the function of inspecting and cleaning the test site. When a State employee is sued for negligence in an action that is not, in effect, an action against the State,[4] the employee may be protected by qualified immunity. Nance v. Matthews, 622 So. 2d 297, 300 (Ala.1993). Qualified immunity shields a State employee from liability if the employee is engaged in a discretionary function, instead of a ministerial one, when the alleged negligence occurs. Id. Whether a State employee's function was discretionary or ministerial is a question of law. McDuffie v. Roscoe, 679 So. 2d 641, 643 (Ala.1996) (citing Barnes v. Dale, 530 So. 2d 770 (Ala.1988)).
Neither the Restatement (Second) of Torts nor our cases provide a crisp distinction between discretionary and ministerial functions. See Smith v. Arnold, 564 So. 2d 873, 876 (Ala.1990) (citing Restatement, § 895D, cmt. f (1979)). As a general rule, however, discretionary functions are characterized by planning tasks, and policy-level decision-making. McDuffie, 679 So. 2d at 643. Ministerial functions, on the other hand, are characterized by operational tasks and minor decision-making. Id. In analyzing each case, we must make a "pragmatic assessment of what, if any, degree of immunity is necessary to enable the particular governmental function to be effectively performed." Bell v. Chisom, 421 So. 2d 1239, 1241 (Ala.1982).
Our cases illustrate a broad distinction between obviously discretionary (i.e., immune) functions and obviously ministerial (i.e., nonimmune) functions. In Bell, 421 So. 2d at 1241, this Court stated:
A finer distinction can be illustrated by comparing Grant v. Davis, 537 So. 2d 7 (Ala. 1988), and Phillips v. Thomas, 555 So. 2d 81 (Ala.1989). In Grant, 537 So. 2d at 9, this Court held that the superintendent of the State Highway Department and an engineer employed by the Department were entitled to discretionary function immunity in a lawsuit alleging liability for failure to inspect, repair, and maintain a limited portion of the State's highway system. Critical to the decision in Grant was the State employees' responsibility to prioritize needed repairs and to allocate scarce State resources to effect those repairs. Id. On the other hand, in Phillips, 555 So. 2d at 86, we held that a State employee was not entitled to discretionary function immunity in a lawsuit alleging that she had negligently inspected the pool located on the premises of a child-care facility and had negligently reported on whether the pool was enclosed by a fence. The employee had an affirmative duty to inspect, but the conduct of the inspection itself was ministerial. Id.
In this case, while Evesque's voluntary decision to adopt the procedure of inspecting the test site might have been discretionary, his actual conduct of the inspection and cleaning tasks was not.[5] Evesque's inspecting and cleaning, including deciding whether to use paper towels or a mop, are closer to the function held not immune in Phillips than to the function held immune in Grant. Evesque's work involved no marshalling of State resources, no prioritizing of competing needs, no planning, and no exercise of policy-level discretion.
The summary judgment is affirmed as it relates to USX. It is reversed as it relates to Evesque. The case is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HOOPER, C.J., and ALMON, HOUSTON, and KENNEDY, JJ., concur.
BUTTS, J., concurs in part and dissents in part.
BUTTS, Justice (concurring in part and dissenting in part).
I agree that the summary judgment was proper as to USX, on the basis that James Evesque was not a borrowed servant of USX Corporation. However, I must respectfully dissent from the reversal of the summary judgment as to the defendant Evesque. I think Evesque is entitled to qualified immunity from liability.
This Court has described "ministerial acts" as those acts requiring an employee to exercise judgment and choice and to determine what is just and proper under the circumstances. Smith v. Arnold, 564 So. 2d 873 (Ala.1990). The majority holds that Evesque's voluntary decision to inspect the testing area might have been a discretionary act but that, when the inspection revealed the hazard of spilled hydraulic fluid, his acting to correct the problem was ministerial. Thus, under the majority's reasoning, Evesque was protected by qualified immunity when he decided to inspect the premises, but not when he attempted to correct a problem that his inspection revealed. I cannot draw this fine distinction.
The majority relies upon Phillips v. Thomas, 555 So. 2d 81 (Ala.1989), wherein the Court recognized the general principle that discretionary acts may also have ministerial components. In Phillips, the defendant, a *1307 day-care worker, had a statutory duty to inspect the premises of the day-care facility. Although this duty involved some degree of discretion, the worker was required to complete a written form containing "yes" or "no" questions about the condition of the day-care premises; the worker was not protected by qualified immunity when she wrongly answered one such question. The worker had little choice as to whether to inspect the premises or as to how she reported her findings; thus, her inspection was almost entirely ministerial.
In contrast, Evesque had no statutory duty to clean the testing area, much less a prescribed way to do so. Evesque was afforded great latitude and discretion in performing his job as a test administrator and instructor in the Industrial Training Department of Bessemer State Technical College. His decision to clean the testing area was an exercise of this discretion, and the cleaning itself was also an exercise of this discretion. I would therefore hold that Evesque is protected by qualified immunity from Defoor's negligence claims.
[1] Defoor initially sought relief against Bessemer Tech before the State Board of Adjustment, see Ala.Code 1975, §§ 41-9-60 to -74, but was unsuccessful. Although Defoor initially included Bessemer Tech and its academic dean as defendants in this action, he voluntarily dismissed Bessemer Tech, and the trial court entered a summary judgment in favor of the academic dean. This appeal does not involve either of those two defendants.
[2] We also note that "`[i]n the absence of evidence to the contrary, there is an inference that the servant remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by the general employer.'" Vails, 278 Ala. at 270, 177 So. 2d at 825 (quoting United States Steel Corp. v. Mathews, 261 Ala. 120, 124, 73 So. 2d 239, 242 (1954) (citations omitted)).
[3] Defoor's argument that USX could have asked Bessemer Tech to require Evesque to keep the test area clean is inapposite. Even if USX retained such a right to set general safety guidelines, this would not amount to control of the manner and means by which Evesque inspected and cleaned the test area. See Pugh, 512 So. 2d at 1318.
[4] The trial court entered the summary judgment for Evesque because it viewed Defoor's action against Evesque as, in effect, an action against the State. A State employee sued in his official capacity and also sued individually may be entitled to absolute immunity under Article I, § 14, Alabama Constitution of 1901, if the action is, in effect, against the State. Phillips v. Thomas, 555 So. 2d 81, 83 (Ala.1989). The nature of this action and the relief sought by Defoor demonstrate that Defoor's action against Evesque is not, in effect, an action against the State. Id. at 83-84.
[5] Although we do not reach the issue whether the decision to conduct inspections in general was discretionary, the decision of the Supreme Court of Kansas in Allen v. Kansas Department of Social and Rehabilitation Services, 240 Kan. 620, 731 P.2d 314, 316 (1987), confirms our conclusion:
"Although under no legal obligation to do so, SRS voluntarily undertook to clean the hallway floor. This decision was clearly [a] ... discretionary function ... but was the actual physical cleanup activity an indivisible part of the exercise of the discretionary function and hence immune from liability ...? We believe not. Whether the employee used a wet or dry mop or plain water or a detergent, in carrying out his assignment, were choices not involving any particular skill or training. The actual cleanup ... is about as ministerial as an act can be. The discretionary decision to undertake a purely ministerial task of janitorial work cannot cloak the negligent performance of the ministerial act with immunity...." | May 2, 1997 |
ec0aa5ca-22dd-4319-ae39-7bdb9a99e160 | Castillow v. BROWNING-FERRIS INDUSTRIES | 591 So. 2d 43 | 1900806 | Alabama | Alabama Supreme Court | 591 So. 2d 43 (1991)
Ray G. CASTILLOW and Emma Castillow
v.
BROWNING-FERRIS INDUSTRIES, INC., and Eddie McMillan.
1900806.
Supreme Court of Alabama.
November 27, 1991.
*44 John W. Parker, Mobile, for appellants.
Cooper C. Thurber, William E. Shreve, Jr. and Daniel S. Cushing of Lyons, Pipes & Cook, P.C., Mobile, for appellees.
KENNEDY, Justice.
The plaintiffs appeal from a judgment entered on a jury verdict in favor of the defendants, Browning-Ferris Industries, Inc., and Eddie McMillan. The dispositive issue is whether the trial court abused its discretion in treating a deceased witness, whose deposition testimony was offered by the defendants, as an adverse witness subject to impeachment by evidence of prior inconsistent statements.
Dirt, Inc., operates a private landfill in Mobile County. Ray Castillow is employed by Dirt as a heavy equipment operator. Castillow is in charge of the area where the trash is dumped; he is also in charge of preventing anyone from scavenging through the trash for discarded items. The normal procedure at the landfill is for a truck filled with trash to dump the trash onto the ground, pull forward, and then back into the dumped trash in order to push the trash closer to a trench containing other trash. Dirt employees then use bulldozers and other heavy equipment to push the trash into the trenches and to cover the trash with soil.
On August 2, 1988, Browning-Ferris Industries, Inc. (BFI), sent a load of trash to Dirt's landfill. This load of trash included two-by-fours, boxes, tools, and other trash from a building supply company. Castillow was operating a bulldozer used for pushing trash into a trench, when Eddie McMillan drove the BFI truck to the area where the trash is dumped. At this point the evidence is in dispute as to what happened.
At trial, McMillan testified that Castillow motioned him to back his truck toward the trench. He said that he stopped his truck and got out; that he went to the rear of the truck to release a latch on the back of the *45 truck; and that he noticed Castillow sitting on his bulldozer about 15 feet or more away from the truck. McMillan claims that he then dumped the trash, pulled forward, and backed up to push the trash toward the trench; and then pulled forward again. By this time, the trash had pinned Castillow against his bulldozer.
Castillow testified that before McMillan began to dump his load of trash, McMillan backed the truck without turning his head to see what was behind him. Castillow said that he attempted to signal McMillan to stop but that McMilland continued to back his truck, unloading the trash. Castillow said the trash pinned him against his bulldozer. He said that after McMillan dumped the trash, he began to back his truck in order to push the trash toward the trench. Castillow said that this caused the lumber in the trash to be shoved against Castillow's legs.
Another employee of Dirt, John Albritton, was also present when the accident occurred. On the day of the accident, Albritton signed a statement prepared by BFI's personnel manager, stating that as McMillan was backing up Castillow jumped off his bulldozer to pick up something out of the pile of trash and that the trash fell on top of him. Albritton did not read the statement himself, but the personnel manager read it to Albritton before he signed it. Albritton allegedly also gave a tape-recorded statement to the insurance adjuster for Dirt's worker's compensation carrier on the day of the accident. In this tape recording, Albritton allegedly stated that Castillow had been directing McMillan as to where to dump the trash and that Castillow had gotten off his bulldozer to pick up something out of the trash when the trash fell on him.
On October 24, 1989, Albritton stated in a deposition that as he walked to where the trash was to be dumped, he saw Castillow on his bulldozer far away from the passenger side of McMillan's truck. Albritton stated that he walked to the driver's side of the truck and did not see Castillow again until he heard him screaming when the truck backed into the trash, pinning Castillow against his bulldozer. Albritton stated that the written statement taken by BFI's personnel manager had been written by the manager and then read to him. Albritton was shown the written statement at the deposition and said that it was not correct. Albritton stated that he never said that the accident occurred after Castillow had gotten off his bulldozer to pick up something out of the trash. At the deposition, Albritton was not confronted with the prior inconsistent statements he had allegedly made in the tape recording made by the insurance adjuster.
Albritton had died before the trial. The defendants offered Albritton's deposition as testimony of an adverse witness, and the trial court determined that Albritton was an adverse witness. The trial court allowed the adjuster and the personnel manager to testify as to the prior statements made by Albritton in order to impeach Albritton's testimony.
The general rule in Alabama is that when a party places a witness on the stand, he vouches for the witness's credibility and cannot impeach his own witness. Holloway v. Robertson, 500 So. 2d 1056 (Ala. 1986). However, a party may impeach his own witness if the trial court determines that the witness is hostile. Holloway, 500 So. 2d 1056; Weaver v. State, 466 So. 2d 1037 (Ala.Crim.App.1985) (girlfriend who lived with the defendant at the time of trial correctly found to be an adverse witness). Whether to label a witness as adverse is within the discretion of the trial court and the decision must be based upon the particular facts and circumstances of the case. Holloway, 500 So. 2d 1056. "There must be some evidence before the trial judge which would allow him to determine that the witness is, in fact, hostile, before he can deem the witness as such." Weaver, 466 So. 2d at 1040.
Anderton v. State, 390 So. 2d 1083, 1086 (Ala.Crim.App.), cert. denied, 390 So. 2d 1087 (Ala.1980).
It is not uncommon for a witness to partially or totally answer unfavorably the questions asked by the party calling him. This situation does not "immediately create the adverse or hostile situation requisite for the party to be given the use of the tools of cross-examination." Wiggins v. State, 398 So. 2d 780, 782 (Ala.Crim.App.), cert. denied, 398 So. 2d 783 (Ala.1981). "It does not create a ground of hostility if a witness does not now testify to the same statement or statements which he had previously made." Id.
In the instant case, we hold that the trial court abused its discretion in determining that Albritton was an adverse witness. There was no showing of actual hostility by Albritton against BFI or McMillan. The fact that Albritton was Castillow's coemployee does not alone necessarily mean that he would testify falsely against BFI and McMillan. In fact, the record indicates that Albritton had also worked with McMillan for at least five years, because McMillan had frequently stopped at the landfill. Albritton had also stated that the only relationship he had with Castillow or with McMillan was work-related.
It is apparent from the record that the trial judge based his decision to call Albritton an adverse witness on Albritton's prior inconsistent statements. Clearly, the word "adverse" applies to the witness himself and not to his testimony. The simple fact that a witness's statements at trial are not the same as those previously made does not create adverseness.
Assuming, arguendo, that the trial court correctly determined that Albritton was an adverse witness, then, nevertheless, we would conclude that the court erred in allowing the insurance adjuster to testify as to Albritton's prior inconsistent statements. In his deposition, Albritton was never confronted with the prior tape recorded statement he had allegedly given the insurance adjuster.
C. Gamble, McElroy's Alabama Evidence § 157.02(1) (4th ed. 1991) (footnote omitted); see also Simon v. Wyler, 222 Ala. 91, 130 So. 778 (1930). Clearly, the trial court abused its discretion in allowing the insurance adjuster to testify as to Albritton's prior statements.
All other issues presented on appeal are without merit.
Based on the foregoing, we reverse the judgment and remand the cause for a new trial.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | November 27, 1991 |
3c7442e3-6410-413f-ac3f-9931b30d9498 | Pruitt v. Zeiger | 590 So. 2d 236 | 1900909 | Alabama | Alabama Supreme Court | 590 So. 2d 236 (1991)
Larry Eugene PRUITT and Vicki Ruth Pruitt
v.
Dr. H. Evan ZEIGER.
1900909.
Supreme Court of Alabama.
November 15, 1991.
*237 Carl E. Chamblee, Jr., Birmingham, for appellants.
Robert L. Williams of Norman, Fitzpatrick, Wood, Williams & Parker, Birmingham, for appellee.
HORNSBY, Chief Justice.
Larry Eugene Pruitt and Vicki Ruth Pruitt filed a medical malpractice action in the Circuit Court of Jefferson County on September 15, 1986, against Dr. H. Evan Zeiger, a neurosurgeon. Immediately before the case was to be tried, Dr. Zeiger filed a motion to strike the deposition of Dr. Lawrence C. Taylor, the Pruitts' sole expert witness. The trial court granted the motion and, after the Pruitts declined to go forward with their case, dismissed the case with prejudice. The Pruitts appeal from the judgment of dismissal. We affirm.
In 1984, Dr. Zeiger performed lumbar disc surgery on Larry Eugene Pruitt for his persistent back pain. Complications arising from this surgery necessitated a second operation shortly after the first. Following the second operation, Mr. Pruitt developed venous thrombosis and ischemic infarction of his intestines, both of which required further surgery. Following these operations, Mr. Pruitt began to experience nausea, fever, vomiting, and swelling of the abdomen, and he was again taken to surgery. The Pruitts alleged that Mr. Pruitt "received a cut" to his small intestine and another to his sciatic nerve during the course of treatment by Dr. Zeiger. They claimed further that the removal of a portion of Mr. Pruitt's intestine became necessary because the cut to his intestine became infected.
The Pruitts hired Health Care Auditors, an organization that evaluates medical malpractice cases and provides expert testimony, to review the medical records in this case. Health Care Auditors then hired Dr. Lawrence C. Taylor to review the medical records. Dr. Taylor subsequently provided a deposition indicating his general disapproval of the medical care of Mr. Pruitt. In the motion to strike the deposition of Dr. Taylor, Dr. Zeiger argued that Dr. Taylor's testimony was based upon "hindsight and speculation." The trial court granted the motion on the grounds that Dr. Taylor's expert testimony did not establish the standard of care necessary for the Pruitts to meet their burden of proof. The trial court granted Dr. Zeiger's motion to dismiss after the Pruitts declined to proceed with the evidence.
Because the Pruitts' case is insupportable without expert medical evidence, the sole issue before this Court is whether the trial court erred in striking the deposition of Dr. Taylor. Because of the nature of the trial judge's order, this case is properly reviewed as if the trial judge had directed a verdict in favor of Dr. Zeiger. Because this lawsuit was pending on June 11, 1987, the "scintilla rule" applies to our review of this case. See Ala.Code 1975, § 12-21-12.
The Alabama Medical Liability Act imposes upon physicians a duty to "exercise such reasonable care, diligence and skill as physicians ... in the same general neighborhood, and in the same general line of practice, ordinarily have and exercise in a like case." Ala.Code 1975, § 6-5-484(a); see also Keebler v. Winfield Carraway Hospital, 531 So. 2d 841 (Ala.1988). The plaintiff in a medical malpractice action must ordinarily establish the defendant *238 physician's negligence through expert testimony as to the standard of care and the proper medical treatment. Bates v. Meyer, 565 So. 2d 134, 136 (Ala.1990). Although an exception exists when the breach of the standard of care is obvious to the average layperson, Ellingwood v. Stevens, 564 So. 2d 932 (Ala.1990); Bell v. Hart, 516 So. 2d 562 (Ala.1987), we do not find this exception applicable in the present case. Where this exception is inapplicable, the expert witness must establish "1) the appropriate standard of care, 2) the doctor's deviation from that standard, and 3) a proximate causal connection between the doctor's act or omission constituting the breach and the injury sustained by the plaintiff." Bradford v. McGee, 534 So. 2d 1076, 1079 (Ala.1988) (citations omitted).
The failure of an expert to establish the standard of care results in a lack of proof essential to a medical malpractice plaintiff's case. Rosemont, Inc. v. Marshall, 481 So. 2d 1126 (Ala.1985). In order to establish the standard of care in this case, Dr. Taylor was required to enumerate the prevailing medical procedures in the national medical community that reasonably competent physicians would ordinarily utilize when acting in the same or similar circumstances. Bates v. Meyer, 565 So. 2d 134, 136 (Ala.1990). If the standard of care is not established, there is no measure by which the defendant's conduct can be gauged. Dobbs v. Smith, 514 So. 2d 871 (Ala.1987). We find that the deposition testimony of Dr. Taylor failed to establish the standard of care and, therefore, it was not possible for Dr. Taylor to testify as to Dr. Zeiger's deviation from any such standard. See McMickens v. Callahan, 533 So. 2d 579 (Ala.1988). A review of a portion of Dr. Taylor's deposition testimony illustrates its failure to establish the necessary elements of the Pruitts' case:
Although Dr. Taylor alluded to a "breakdown" in communication throughout his testimony, he failed to explain the manner in which communication was deficient. It was incumbent upon Dr. Taylor to explain how "physicians ... in the same general neighborhood, and in the same general line of practice," Ala.Code 1975, § 6-5-484(a), would communicate under the circumstances presented in this case. A blanket statement that communication was poor does not establish a standard of care. "In order to establish a physician's negligence, the plaintiff must offer expert medical testimony as to the proper practice, treatment, or procedure." Dobbs v. Smith, 514 So. 2d 871, 872 (Ala.1987). Dr. Taylor did not describe a procedure that rises to the level of a standard of care. He merely gave his opinion as to what Dr. Zeiger should have done under the circumstances presented in this case. "The law does not permit a physician to be at the mercy of testimony of his expert competitors, whether they agree with him or not." Sims v. Callahan, 269 Ala. 216, 225, 112 So. 2d 776, 783 (1959).
Although Dr. Taylor was repeatedly asked to describe the standard of care, he was unable to define that standard or describe any procedure that Dr. Zeiger was required to follow in order to comply with the standard of care. The following is representative of the broad statements made by Dr. Taylor in response to this line of questioning:
Testimony that the care rendered was "below the standards" without establishing those standards does not satisfy the Pruitts' burden. Before the expert witness can establish a deviation from the standard of care, the witness must establish the standard from which the deviation occurred.
In Hines v. Armbrester, 477 So. 2d 302 (Ala.1985), this Court stated:
Id. at 304-05. In viewing the testimony in this case as directed in Hines, we conclude that the Pruitts failed to meet their burden to produce competent expert testimony of Dr. Zeiger's malpractice.
In the absence of any evidence of the applicable standard of care, the trial court properly granted Dr. Zeiger's motion to strike the expert testimony of Dr. Taylor. Because Dr. Taylor's testimony was the only evidence offered, the Pruitts, therefore, failed to present any expert medical evidence of malpractice on Dr. Zeiger's part. See Stewart v. Bay Minette Infirmary, 501 So. 2d 441 (Ala.1986). For the foregoing reasons, the judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur. | November 15, 1991 |
75e955fb-a5cb-4680-a363-ea6dc243edfd | Gardner v. Key | 594 So. 2d 43 | 1901228 | Alabama | Alabama Supreme Court | 594 So. 2d 43 (1991)
Sally Virginia GARDNER
v.
Neuman Lee KEY.
1901228.
Supreme Court of Alabama.
December 6, 1991.
Rehearing Denied January 31, 1992.
G. Warren Laird, Jr. of Stephens and Laird, Jasper, for appellant.
J. David Hood of Tweedy, Jackson & Beech, Jasper, for appellee.
STEAGALL, Justice.
Sally Virginia Gardner, the defendant/counter-plaintiff, appeals from a summary judgment entered in favor of Neuman Lee Key, the plaintiff/counter-defendant, in an action to quiet title to a parcel of land located in Walker County, Alabama.
In December 1936, Nora and M. Aaron executed a deed to Sylvester B. Allison, Gardner's brother, and Ewel Dunagan, Gardner's husband at that time, conveying property located in the south one-half of the southeast quarter of section 22, township 12, range 7 west, in Walker County. Shortly after this conveyance, a mortgage was executed in favor of the Aarons. After title to the property was transferred, the property was divided between Allison and Dunagan, in trust for Dunagan's minor wife, "Virginia" (Sally Virginia Gardner). Allison and Dunagan each paid $50 per year toward satisfaction of the mortgage. Dunagan and Gardner separated in 1937. *44 Gardner contends that after they separated, Dunagan executed a deed conveying his interest in the property to her. However, that alleged deed was never recorded and does not appear in the chain of title to the property. Examination of the chain of title does, however, indicate that the mortgage on the property was foreclosed against Allison and Dunagan by Nora Aaron in 1939. That same year, Nora Aaron, by warranty deed, conveyed the property to Allison. In 1974, after realizing that her prior deed to the property (the alleged deed from Dunagan to Gardner in 1937) had never been recorded, Gardner located Dunagan and had him execute another deed purportedly conveying the property to her. Gardner did, in fact, record the 1974 deed and, under that deed, claims an interest in the property.
On appeal, Gardner contends that the trial court erred in entering a summary judgment for Key, arguing that at the time Key's summary judgment motion was granted, there existed substantial evidence regarding triable issues of fact material to her counterclaim.[1] She further contends that because the consideration for the purchase of the property was paid by her or on her behalf, a constructive, or resulting, trust in her favor should be imposed on all, or a portion of, the property. Key contends that Gardner is barred from asserting any claim to the property pursuant to a constructive or resulting trust, because of the doctrine of repose.
In an action to quiet title, the appropriate test is to determine which among the parties claiming right of title and possession holds superior title. Griffin v. Bean, 491 So. 2d 938 (Ala.1986); Dake v. Inglis, 239 Ala. 241, 194 So. 673 (1940).
Key, in support of his motion for summary judgment, submitted to the trial court an affidavit from the deputy revenue assessor of Walker County, stating that from 1940 through 1974 the ad valorem taxes for the property had been assessed in the name of S.B. Allison, Key's predecessor in title. Further, Key presented certified copies of deeds to the property showing that he and his predecessors in title had held legal title to the property since 1927. A review of the chain of title clearly shows that Dunagan held no interest in the property at the time he executed the deed to Gardner in 1974. The interest once held by Dunagan had been lost by foreclosure more than 30 years before he executed the 1974 deed purportedly conveying the property to Gardner. Clearly, Gardner has no legal claim to the property under that deed.
With regard to Key's argument concerning the doctrine of repose, this Court addressed that principle in Boshell v. Keith, 418 So. 2d 89, 91 (Ala.1982):
(Emphasis added.) In the case before us, Gardner testified at her deposition that she knew in 1936 that legal title to the property was taken in the name of her then husband, Dunagan, and her brother, Allison. Thus, she delayed over 40 years before commencing any legal action that could vest her with title to the property.
Key made a prima facie showing that he held superior title to the property. After this showing, it was incumbent upon Gardner *45 to rebut Key's showing by substantial evidence. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989). She failed to do so. Further, we agree with Key's argument that, because of Gardner's excessive delay, she is precluded from asserting a legal claim to the property under the doctrine of repose. Therefore, the trial court correctly entered the summary judgment for Key.
That judgment is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur.
[1] Because this action was commenced after June 11, 1987, the "substantial evidence rule" must be applied. See Ala.Code 1975, § 12-21-12. | December 6, 1991 |
eced5d8c-e931-4757-8da3-4f47cbe07768 | Terry v. Phillips 66 Co., Inc. | 591 So. 2d 33 | 1901244 | Alabama | Alabama Supreme Court | 591 So. 2d 33 (1991)
Janet D. TERRY, a Minor, By and Through her Mother and Next Friend, Peggy TERRY, and Peggy Terry, Individually
v.
PHILLIPS 66 COMPANY, INC., et al.
1901244.
Supreme Court of Alabama.
November 1, 1991.
*34 Robert B. Roden of Roden & Hayes, P.C., Birmingham, for appellant.
William L. Middleton of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellees.
KENNEDY, Justice.
Janet Terry, through her mother and next friend, Peggy Terry, and Peggy Terry, individually, filed an action against Phillips 66 Company, Inc. ("Phillips 66"), Terry & Young Oil Co., Inc. ("Terry & Young"), Billy Glenn Terry, Culver's Quick Stop, Pauline Culver, and Junior Culver, alleging that the defendants' negligence or wantonness had caused Janet's personal injuries. The trial court entered a summary judgment for Phillips 66, Terry & Young, and Billy Glenn Terry and made those judgments final pursuant to Rule 54(b), A.R.Civ.P. In this appeal, Janet argues that the trial court erred by entering a judgment for Terry & Young and Billy Glenn Terry; she makes no arguments in relation to Phillips 66.
In Stephens v. City of Montgomery, 575 So. 2d 1095, 1097 (Ala.1991), we stated the following about summary judgment proceedings:
Schoen v. Gulledge, 481 So. 2d 1094, 1096-97 (Ala.1985).
Because this case was not pending on June 11, 1987, Ala.Code 1975, § 12-21-12, the plaintiffs must prove their case by "substantial evidence," which this Court has defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). The trial court's ruling on a summary judgment motion is a nondiscretionary ruling, and no presumption of correctness attaches to that ruling; accordingly, our review of the evidence properly presented in the record is de novo. Hightower & Co. v. United States Fidelity & Guaranty Co., 527 So. 2d 698 (Ala.1988).
Janet and Peggy Terry contend that Janet was injured as a result of Junior Culver's smoking a cigarette while he pumped gasoline into the vehicle in which Janet was a passenger. According to the Terrys, the cigarette ignited the gasoline, which exploded, causing Janet Terry second and third degree burns. They contend that Billy Glenn Terry and Terry & Young are liable for Junior Culver's actions under the doctrine of respondeat superior.
The following facts are undisputed: Billy Glenn Terry is an employee of Terry & Young. Terry & Young own the land and the building where Janet's injury occurred, and it leased the land and building to Junior Culver, who operated Culver's Quick Stop on those premises. Neither Culver nor any of his employees were employed by Terry & Young or Billy Glenn Terry. Billy Glenn Terry was not on the premises when the accident occurred.
The Court has addressed the law applicable to this case in Sawyer v. Chevron U.S.A., Inc., 421 So. 2d 1263 (Ala.1982), and Wood v. Shell Oil Co., 495 So. 2d 1034 (Ala.1986).
In Sawyer, Sawyer brought an action against Chevron U.S.A., Inc. ("Chevron"), for injuries he sustained in an automobile collision. Sawyer was injured when a truck, which was driven by an employee of McDonald Petroleum Company, collided with the rear of an automobile in which Sawyer was a passenger. Sawyer alleged that McDonald Petroleum was Chevron's agent. The trial court entered a summary judgment for Chevron, and Sawyer appealed.
The Court, after a detailed factual analysis, reversed the judgment for Chevron, holding that there was a factual issue suitable for jury determination, which precluded summary judgment. 421 So. 2d at 1266. As to the law regarding a master-servant relationship, the Court wrote:
421 So. 2d at 1264.
In Wood, Harrison Wood filed an action against Shell Oil Company ("Shell") to recover damages for injuries he sustained when he slipped and fell on the premises of Parker Shell, which is apparently a gasoline service station. Wood contended that Parker Shell was an agent of Shell, and the Court addressed the existence of an agency relationship between the two. After a factual analysis as detailed as the analysis in Sawyer, the Court affirmed the summary judgment. As to the law to be applied, the Court wrote:
495 So. 2d at 1036.
Janet and Peggy Terry contend that Sawyer and Wood reach contrary results on virtually the same facts and that the rationale in Sawyer is appropriate, but the rationale in Wood is due to be rejected. To explain the difference in Sawyer and Wood, which at first glance admittedly appear to reach contradictory results on similar facts, would require a full-blown, painstaking factual comparison of the two cases. We find it unnecessary to make such a comparison, however, because the law regarding respondeat superior pertinent to the resolution of this case given by both Sawyer and Wood is the same, and we can resolve this case by applying its facts to the undisputed law.
The test to be used in determining whether Billy Glenn Terry or Terry & Young are liable for Junior Culver's actions under the doctrine of respondeat superior is whether they reserved a right of control over the manner in which Culver performed his jobthat is, whether they reserved a right of physical control over the means and agencies by which the work was done or the result produced. Sawyer; Wood.[1]
The plaintiffs argue that the following evidence indicates that the defendants reserved a right of control over the manner of Culver's performance: Terry & Young owned the building and the property on which the gasoline service station was located; Terry & Young owned and maintained the gasoline tanks located on the property; the gasoline was furnished by Terry & Young, which determined the price of the gasoline; Culver received from Terry & Young a commission of six cents per gallon of gasoline sold; Terry & Young reserved the right to restrict Culver from selling the gasoline products of other oil companies and paid the taxes on the gasoline sales; and a Terry & Young representative collected the money from the gasoline sales each week.
None of that evidence even addresses Billy Glenn Terry, and the plaintiffs present no additional evidence for their claims against him. We question whether, for the purposes of the plaintiffs proving liability under respondeat superior, that evidence is relevant and material to show that Terry & Young reserved a right of control over the manner of Culver's performance, Sawyer, Wood; in any event, the plaintiffs have not proven by substantial evidence that Terry & Young are liable under the doctrine of respondeat superior for Culver's *37 actions.[2] Accordingly, the plaintiffs failed to prove that either Billy Glenn Terry or Terry & Young should be held liable under the doctrine of respondeat superior for Culver's actions. They make no other arguments for a principal-agent relationship. The trial court did not err in entering a summary judgment for Billy Glenn Terry and for Terry & Young. The judgment is due to be affirmed.
AFFIRMED.
MADDOX, SHORES and HOUSTON, JJ., concur.
HORNSBY, C.J., concurs specially.
HORNSBY, Chief Justice (concurring specially).
Although I concur in the foregoing opinion, I write specially to amplify the discussion concerning the doctrine of respondeat superior. In Southern Life & Health Ins. Co. v. Turner, 571 So. 2d 1015 (Ala.1990), vacated Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991), affirmed on remand, Southern Life v. Turner, 586 So. 2d 854 (Ala.1991), this Court provided a full discussion of the doctrine of respondeat superior. Although the United States Supreme Court vacated the original opinion in Southern Life with respect to punitive damages, I believe that the discussion of respondeat superior is still the best statement of our law on that doctrine.
"3 Am.Jur.2d Agency § 280 at 783 (1986).
"Id. at 347-48 (citing National States Insurance Co. v. Jones, 393 So. 2d 1361, 1376 (Ala.1980), and quoting from Old Southern Life Insurance Co. v. McConnell, 52 Ala.App. 589, 594, 296 So. 2d 183, 186 (1974)). Based on the foregoing analysis, the Court in Autrey found that there was sufficient evidence to raise a factual issue that warranted reversing a summary judgment on the issue of whether a representative of the defendant insurance company was acting within the scope of his employment when he represented to the insurance applicant the effective date of coverage. See also, Craft v. United States, 542 F.2d 1250, 1254-55 (5th Cir.1976); Scott v. Great Atlantic & Pacific Tea Co., 338 F.2d 661 (5th Cir.1964); Pacific Mutual Life Ins. Co. v. Haslip, 553 So. 2d 537, 541-42 (Ala. 1989), cert. granted, 494 U.S. 1065, 110 S. Ct. 1780, 108 L. Ed. 2d 782 (1990); AVCO Corp. v. Richardson, 285 Ala. 538, 541-42, 234 So. 2d 556, 559-60 (1970); Perfection Mattress & Spring Co. v. Windham, 236 Ala. 239, 182 So. 6 (1938); Hardeman v. Williams, 150 Ala. 415, 418-21, 43 So. 726 (1907).
571 So. 2d at 1017-19. The plaintiffs in the instant case have not proven that the doctrine of respondeat superior should apply in this case because the plaintiffs have presented no substantial evidence of an employment relationship. The facts are that the relationship in question is one of a lessee/lessor and licensee/licensor for the use of property, and liability cannot be imputed to a lessor on a theory of respondeat superior.
[1] As a reminder to the bench and bar of the analytical underpinnings involved in this analysis, we note that a master-servant relationship is a subgroup of principal-agent relationships; a master is a subspecies of principal and a servant is a subspecies of agent. Generally, a principal is not liable for the physical harm caused by his agents, if he neither intended nor authorized the result nor the manner of performance, unless he was under a duty to act with due care. Restatement (Second) of Agency, § 250 (1958). However, in a master-servant relationship, the master may be liable for physical harm caused by his agents. Id., §§ 250 and 251. To establish a principal-agent relationship requires proof generally that the alleged agent acted on the principal's behalf; but to establish a master-servant relationship requires proof of control by the master. See Wood v. Holiday Inns, 508 F.2d 167 (5th Cir.1975). At times, Sawyer may have failed to make the distinction, 421 So. 2d at 1264, but its discussion in terms of the test for determining a master-servant relationship is proper.
[2] Wood and Sawyer were decided pursuant to the "scintilla rule" of evidence. | November 1, 1991 |
27dcad43-4434-4db0-8bed-1e7886474393 | Latham v. Phillips | 590 So. 2d 217 | 1901322 | Alabama | Alabama Supreme Court | 590 So. 2d 217 (1991)
Eloise LATHAM
v.
Freida J. PHILLIPS.
1901322.
Supreme Court of Alabama.
November 1, 1991.
Harry M. Renfroe, Jr. of Mountain & Mountain, Tuscaloosa, for appellant.
Michael S. Burroughs of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.
STEAGALL, Justice.
The plaintiff, Eloise Latham, was involved in an automobile accident in Tuscaloosa County on March 5, 1988. On Friday, March 2, 1990, she sued Freida J. Phillips and John C. Easterwood.[1] At the time the suit was filed, the required filing fee was not paid, and the clerk of the circuit court was not provided the summons to be served on the defendants. On March 5, 1990, exactly two years after the automobile accident, Latham paid the filing fee. Thus, the suit was filed and the filing fee was paid within the statutory period of limitations, Code of Ala.1975, § 6-2-38. However, certified mail summonses for the two defendants were not filed until April 4, 1990. The filing of the summonses was clearly outside the two-year limitations period of § 6-2-38. Phillips was not served until April 10, 1990.
Phillips moved for summary judgment, alleging that Latham was barred from prosecuting her claim because the statutory period of limitations had expired. She argued that although the filing of the claim and the payment of the filing fee were timely, the summonses for the defendants were filed outside the statutory period of limitations, and, as a result of this late filing, Latham's cause of action was barred. The trial court, accepting Phillips's argument, entered a summary judgment in her favor. Latham appeals.
*218 Latham presents one issue on appeal to this Court. She contends that the trial court erred in entering a summary judgment because she is not barred from prosecuting her claim by operation of the statute of limitations.
This Court has held that the filing of a complaint, standing alone, does not commence an action for statute of limitations purposes. Rather, the filing must be made with the intention of serving process upon the opposing party or parties. See Mace v. Centel Business Systems, 549 So. 2d 70 (Ala.1989), and Pettibone Crane Co. v. Foster, 485 So. 2d 712 (Ala.1986).
In this case, Latham did not supply a summons for Phillips at the time the complaint was filed, nor did she supply it when the filing fee was paid three days later. Further, no address was contained within the complaint, and no instructions were given to the clerk concerning how to proceed with service of process.
For these reasons, the judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, HOUSTON and INGRAM, JJ., concur.
[1] John C. Easterwood is not a party to this appeal. | November 1, 1991 |
19a31ccf-d600-44be-92ba-7a49ddb81966 | Cooper v. Cate | 591 So. 2d 68 | 1901104 | Alabama | Alabama Supreme Court | 591 So. 2d 68 (1991)
Ray G. COOPER and Betty Jean Cooper
v.
Willowdean M. CATE.
1901104.
Supreme Court of Alabama.
December 6, 1991.
*69 Mark D. Owsley of Robbins, Owsley & Wilkins, Talladega, for appellants.
Ralph D. Gaines, Jr. and Mark A. Rasco of Gaines, Gaines & Gaines, P.C., Talladega, for appellee.
INGRAM, Justice.
Willowdean M. Cate sued Ray G. Cooper and Betty Jean Cooper, requesting that the Coopers be enjoined from trespassing upon her property. The Coopers counterclaimed, contending that they had been in possession of the specific land in question for the requisite number of years and that they owned the property by adverse possession.
The trial judge personally viewed the disputed property twice and heard ore tenus evidence. The trial court stated in its order that
The trial court further ordered the Coopers to "refrain from trespassing on [Cate's] property and cease any interference, disruption, threats or harassment of [Cate's] claim to her land and her right to enjoy and exercise dominion over the same."
The Coopers appeal, contending that the trial court's judgment is not supported by the evidence and is plainly erroneous, palpably incorrect, or manifestly unjust.
This case involves a dispute between two coterminous landowners concerning the ownership of a portion of Lot 3, Block "A," Crestwood Subdivision, in Talladega County. The disputed portion is adjacent to the north line of Lot 3, Block "A," of the Crestwood Subdivision. This area may also be identified and described as lying south of the south line of Lot 2, Block "A," of the subdivision.
The Coopers contend that they have gained title to the area in dispute by adverse possession and that the boundary line should be established where an "old fence" used to be.
On the other hand, Cate contends that the "old fence," which was built in the early 1940s and is no longer in existence, was never intended to establish the boundary between the property and that any use of the disputed area by the Coopers was with the permission of Cate or her predecessor in title.
The facts, as reflected in the record, are as follows: In 1943, Ida McMichael acquired a one-half interest in Lot 3 of the Crestwood Subdivision and moved onto the lot that same year. She acquired the remaining interest in the property in 1947, and as of the day of trial in 1990, Ms. McMichael still lived on Lot 3. In December 1986, Ms. McMichael conveyed her interest in the property to her daughter, Willowdean Cate. It is undisputed that Cate and her mother, the predecessor in title, had clear record title to Lot 3 and had assessed the property for taxes for more than the last 20 years.
The Coopers purchased Lot 2 of the Crestwood Subdivision, which is coterminous with Lot 3, in 1960 from Mr. I.C. Mills. Mr. Mills had occupied the property from 1942 to 1960. At the time Mr. Mills purchased the property in 1942, there was an old fence running between Lot 2 and Lot 3. However, this fence is no longer in existence. The Coopers testified that when Mr. Mills sold them the property, he represented to them that the old fence was "about the line."
The Coopers resided on the property until the mid- to late-1960s, at which time they moved to California for a short time. Since returning from California, they have remained on the property. The Coopers testified that they have cleared the land up to the "old fence line" since 1960, done some gardening there, maintained a grapevine there, and parked equipment and vehicles there. They contend that no one had ever contested these uses of the disputed area. Further, they contend that they built a small barn or shed on a portion of Lot 3 and that two outbuildings had been located *70 in the disputed area. Mr. Cooper testified that he had used these outbuildings for a few years and then had dismantled them and that no one had questioned the use or destruction of these structures.
In 1988, Ms. Cate and the Coopers each had the property surveyed. Both surveys confirmed that the alleged location of the "old fence" was not the boundary line. Instead, the boundary line, established by the surveys, was closer to the Coopers' house, resulting in the Coopers owning less land than they had thought. They contend that they had adversely possessed the land in dispute, and, therefore, that the true boundary line should be established at the place where the "old fence" used to be, and not in accordance with the boundary line established by the surveys.
Cate contends that her mother, her predecessor in title, was unaware of any claims to her property by the Coopers. She testified that she has never "had any trouble with a neighbor" and that her possession of Lot 3 has always been peaceable. Cate's mother also testified that the Coopers asked her permission to build a barn or shed on a portion of her property. Further, she testified that she had asked the Coopers to remove some "junk" from the property in dispute and that the Coopers had promised to remove it.
Cate's mother also testified that sometime in the 1940s, a barbed wire fence was erected for the purpose of pasturing cattle on the land. She stated that this fence was never intended to establish the boundary lines between Lot 3 and Lot 2. She testified that the fence was not right on the boundary line; rather, she said, it was "all around" and came over onto her land.
It is well settled that a party claiming title to land by adverse possession has a heavy burden and must present clear and convincing proof of such possession. Morrison v. Boyd, 475 So. 2d 509 (Ala. 1985). In cases involving coterminous landowners, a party must show that his possession of the land in dispute was actual, hostile, open, notorious, exclusive, and continuous for a 10-year period. Tidwell v. Strickler, 457 So. 2d 365 (Ala.1984). We also note that the presumption is in favor of the record owner. Morrison.
We further note that where testimony is presented ore tenus in a boundary line case between coterminous landowners, the judgment is presumed correct. Tidwell. The judgment need only be supported by credible evidence, and, if so supported, the judgment will not be disturbed unless it is palpably erroneous, without supporting evidence, or manifestly unjust. Tidwell. This presumption is especially strong in adverse possession cases and is further strengthened if the trial court personally views the property in dispute. Howell v. Bradford, 570 So. 2d 643 (Ala. 1990).
As noted above, the Coopers contend that they proved adverse possession of the land up to the place where the "old fence" used to be. Although there was evidence that would support the Coopers' view of the case, there was also credible evidence that supports Cate's position that the Coopers were using the disputed property with her or her mother's permission.
Evidence in adverse possession cases is extremely difficult to weigh at the appellate level. See Scarbrough v. Smith, 445 So. 2d 553 (Ala.1984). Witnesses often testify with reference to exhibits or make gestures that are not preserved in the record. This is why the presumption of correctness normally accorded findings in an ore tenus case is especially strong in adverse possession cases. Scarbrough.
There was credible evidence to support the trial court's conclusion that the Coopers failed to prove by clear and convincing evidence all of the elements of adverse possession.
The judgment in this case is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | December 6, 1991 |
010e83b6-6418-488d-b24a-ee4395f275a1 | McCullough v. McAnalley | 590 So. 2d 229 | 1901086 | Alabama | Alabama Supreme Court | 590 So. 2d 229 (1991)
Leslie Craig McCULLOUGH
v.
Donald H. McANALLEY, individually and d/b/a McAnalley Real Estate and McAnalley Construction.
1901086.
Supreme Court of Alabama.
November 15, 1991.
*230 Robert W. Bunch of Bunch and Associates, Florence, for appellant.
Robert Burdine, Jr. of Burdine, Collier & Burdine, Florence, for appellee.
HORNSBY, Chief Justice.
Leslie Craig McCullough filed a seven-count complaint in the Circuit Court of Colbert County against Danny Ray Inman, Donald H. McAnalley, the City of Tuscumbia, and various fictitiously named parties. McCullough sought damages from the defendants on claims based on wantonness, negligence, trespass, private nuisance, breach of contract, and misrepresentation, all concerning a drainage system and storm sewer located on the plaintiff's property.
On October 22, 1990, the trial court entered summary judgments for the defendants on all counts; McCullough appealed the judgment in favor of defendant McAnalley on the claims of breach of contract and misrepresentation. We affirm in part and reverse in part.
On or about December 21, 1988, McCullough entered into a contract to purchase a house from Inman. According to McCullough, *231 he began negotiations with Inman (the owner of the property) and McAnalley (the real estate agent) sometime prior to December 21, 1988. During the negotiation period, McCullough inspected the house on four occasions. In his deposition, McCullough conceded that he had had knowledge of a water problem prior to the purchase, but he contends that he did not know the full extent of the problem until months after he had moved into the house. McCullough further indicated that the water problem had caused him and his wife to consider not purchasing the property. He avers that it was only when McAnalley, the real estate agent representing Inman in the sale of the house, assured them that they would not have a water problem, that he decided to enter into the contract with Inman for the purchase of the house. In his deposition, McCullough testified as follows:
On December 21, 1988, the date McCullough contracted to buy Inman's house, McCullough also entered into a separate contract with McAnalley. In that contract, McAnalley agreed as follows:
However, that contract also purported to relieve McAnalley from any repair concerning the following:
McCullough took possession of the house shortly after the contract was executed. Soon after McCullough moved in, serious flooding occurred in the house. McCullough reported the problem to McAnalley, and McAnalley made several unsuccessful attempts to cure the water problem. McCullough sued McAnalley, alleging that he had breached the contract and that he had recklessly, intentionally, or mistakenly misrepresented the extent of the water problem and his ability to cure it. McAnalley moved for a summary judgment on the grounds that the water problem was caused by the City of Tuscumbia's drainage system and, that, therefore, he had not breached the contract, and that he had not misrepresented any fact to McCullough concerning correction of the water problem. McAnalley submitted the affidavit of Don Price, an engineer with Paxton, Price & Rider Engineering, Inc., in support of his motion. McCullough countered the motion for summary judgment with the depositions of Anna McCullough, Regina Coates, Donald McAnalley, and Danny Inman. The trial court entered a summary judgment for McAnalley.
There are only two issues before this court: (1) whether the trial court erred when it entered a summary judgment on the breach of contract claim, and (2) whether the trial court erred when it entered a summary judgment on the misrepresentation claim.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for entering summary judgment. The rule requires the trial court to determine (1) that there is no genuine issue *232 of material fact, and (2) that the moving party is entitled to a judgment as a matter of law. The burdens placed on the moving party by this rule have often been discussed by this Court:
Berner v. Caldwell, 543 So. 2d 686, 688 (Ala.1989) (quoting Schoen v. Gulledge, 481 So. 2d 1094 (Ala.1985)).
The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990).
Because this action was not pending on June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that the nonmovant meet his burden by "substantial evidence." Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Under the substantial evidence test, the nonmovant must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). More simply stated, "[a]n issue is genuine if reasonable persons could disagree." W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982).
Our review of the record leads us to conclude that the trial court did not err in entering the summary judgment with regard to the breach of contract claim. The trial court, however, did err in entering the summary judgment with regard to the misrepresentation claim.
In opposition to the summary judgment motion as to the breach of contract claim, McCullough first argues that there remains a genuine issue of fact as to the cause of the water problem. McAnalley's affidavit and deposition; the deposition testimony of McCullough and his wife, Anna; and Don Price's affidavit make a prima facie showing that the water problem resulted from the inadequate city drainage system. Mr. Price stated in his affidavit that he was familiar with the property owned by McCullough and that he had "inspected said property ... as an engineer and ... investigated the drainage at ... the residence occupied by the McCulloughs." He also stated:
(Emphasis added.)
McCullough argues that Don Price's affidavit is inadmissible because some of the statements contained therein are inadmissible. The evidence given in an affidavit submitted in support of, or in opposition to, a summary judgment motion must be admissible at trial. Welch v. Houston County Hosp. Bd., 502 So. 2d 340 (Ala. 1987). The party alleging inadmissibility must make the trial court aware of the *233 inadmissibility. In Perry v. Mobile County, 533 So. 2d 602, 604-05 (Ala.1988), this Court held:
At the hearing on the summary judgment motions, McCullough did not move to strike Price's affidavit, did not present evidence to counter the affidavit, and did not object to the affidavit. McCullough's first objection to the affidavit is on appeal. Because McCullough did not call the trial court's attention to the alleged inadmissibility of the evidence stated in Price's affidavit, he waived his right to object to its use. McMillian v. Wallis, 567 So. 2d 1199 (Ala.1990). Additionally, McCullough has advanced no legal theory as to why Price's affidavit would be inadmissible, and the trial court's consideration of this affidavit did not result in a "gross miscarriage of justice."
In addition to Price's affidavit, the record reveals other evidence to support the summary judgment on this issue. McCullough himself indicates the cause of the water problem in his complaint, which states: "Defendant City has constructed or had constructed storm water inlets directly in front of Plaintiff's house. Said storm water inlets are connected by a 30-inch concrete pipe. Said pipe is not capable of carrying the flow of water at certain times down Lamar Avenue. Therefore, flooding has occurred." McCullough further states that "the minimum acceptable storm sewer pipe to carry the flow of water down Lamar Avenue is 54 inches."
Further, in his deposition McCullough testified as follows:
Finally, in her deposition, Anna McCullough testified:
This was sufficient to shift to McCullough the burden of moving forward with the evidence. In Black v. Reynolds, 528 So. 2d 848, 849 (Ala.1988), this Court held:
The record reveals no factual contention by any of the parties in their depositions that would rebut the prima facie showing that the flooding was caused by the inadequate city drainage system.
Because McAnalley's contract with McCullough unambiguously states that McAnalley was not responsible for any flooding caused by an inadequate city drainage system, we conclude that the trial court properly entered the summary judgment on the breach of contract claim.
The second issue raised on this appeal is whether the trial court erred in holding that there was no genuine issue of material fact with regard to whether McAnalley had misrepresented the extent of the water problem or his ability to cure it. McCullough alleges that the representation made by McAnalley induced him to enter into the contract with Inman. In order to maintain an action for fraud, a plaintiff must show that the defendant made a false representation of a material fact, that the plaintiff justifiably relied on that false representation, and that he was damaged as a proximate result. Coastal Concrete Co. v. Patterson, 503 So. 2d 824 (Ala.1987). We conclude that there is a genuine issue of material fact as to whether a misrepresentation was made, in light of McCullough's testimony that McAnalley stated, "I'll warrant the house against any water damage" and "I've built numerous houses, and I've built houses in a lot worse places than that and there never hasyou just don't have a problem.' Take my word for it, you don't have a problem,'" and the testimony of McCullough's wife to the effect that McAnalley stated, "I've got this $3,000 check from Danny Inman.... It's probably just gonna cost me about $1,000 to do what I need to do.... [W]ater will never get under your house anymore," and McAnalley's statement that "I felt sure I could fix any water that hit on that property." Clearly, these statements, if made, concern a material fact. Further, McCullough was damaged by the flooding that occurred. Therefore, the crucial consideration is whether, under these facts, McCullough justifiably relied on McAnalley's statement that any water problem could be remedied.
Justifiable reliance is evaluated under the standard set out in Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081, 1091-92 (Ala.1989) (Hornsby, C.J., concurring specially), and Hickox v. Stover, 551 So. 2d 259, 263 (Ala.1989). According to those cases, "`[a] plaintiff ... has not justifiably relied on the defendant's representation if that representation is "one so patently and obviously false that he must have closed his eyes to avoid the discovery of the truth."'" Hickox v. Stover, 551 So. 2d at 263. The standard of justifiable reliance requires that the party making the representation refrain from dishonest, untrue, and recklessly inaccurate statements and that the party receiving the representation be alert to statements that are patently false. See McDowell v. Key, 557 So. 2d 1243 (Ala.1990), AT & T Information Systems, Inc. v. Cobb Pontiac-Cadillac Inc., 553 So. 2d 529 (Ala.1989), and Grimes v. Liberty Nat. Life Ins. Co., 551 So. 2d 329 (Ala.1989), as further examples of this Court's adoption and use of the standard of justifiable reliance in the context of fraud claims.
McCullough inspected the house, and he was aware of a water problem before he purchased the house. Moreover, McAnalley disclaimed any responsibility for water problems caused by the City. However, McCullough indicated that the water problem caused him and his wife to reconsider the purchase of the house and that it was only when McAnalley, a real estate agent experienced in handling this type of problem, warranted the property against all water problems, that he decided to purchase the house. Taking McCullough's allegations as true, Hanners, supra, and in light of McAnalley's apparent expertise in home repair, a jury could find that McCullough's reliance on the representations allegedly made by McAnalley was justifiable.
*235 Accordingly, the summary judgment is affirmed as to the breach of contract claim, but as to the misrepresentation claim it is reversed, and the cause is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
MADDOX and ALMON, JJ., concur in part; dissent in part.
ALMON, Justice (concurring in part and dissenting in part).
I agree that the summary judgment is due to be affirmed as to the contract count, because the contract specifically excluded the very problem of which McCullough now complains. I respectfully dissent, however, from the affirmance of the judgment as to the fraud count.
This is another case in which a plaintiff is attempting to bring a fraud action based on allegations of oral misrepresentations that contradict the plain terms of a written contract, as the plaintiff was allowed to do in Hicks v. Globe Life & Acc. Ins. Co., 584 So. 2d 458 (Ala.1991). McAnalley's alleged representations about his commitment to prevent water damage to the house were broader than his promises in the contract, but I do not believe that McCullough should be allowed to contradict the agreement that he signed and thereby to recover in fraud when he cannot recover in contract. McCullough does not argue in his brief that he was fraudulently induced to sign the contract. Absent an allegation of fraud in the inducement, oral contradictions of written contracts are prohibited by the parol evidence rule, and the Statute of Frauds, Ala.Code 1975, § 8-9-2, requires certain contracts, such as those for the sale of any interest in land, to be in writing. These are venerable principles of the common law that serve important purposes in our society; without them, commerce could scarcely take place without continuous disputation. I believe the Court's present course infringes upon those principles.
As I said in my dissent in Hicks, I now believe that the Court should not have adopted the "justifiable reliance" standard for fraud actions. The "reasonable reliance" standard expresses a flexible concept that this Court applied for many years. See, e.g., Dickinson v. Moore, 468 So. 2d 136 (Ala.1985); Arkel Land Co. v. Cagle, 445 So. 2d 858 (Ala.1983); Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757 (Ala.1983); Ray v. Montgomery, 399 So. 2d 230 (Ala.1980); Franklin v. Nunnelley, 242 Ala. 87, 5 So. 2d 99 (1941); Parker v. Ward, 224 Ala. 80, 139 So. 215 (1932).
Even if McAnalley made the representations that McCullough says he made, it was not reasonable for McCullough to rely on representations that were obviously contrary to the exclusions written into the contract the two had executed for the very purpose of allaying McCullough's concerns about water damage. If McCullough wanted McAnalley's promises to cover improper drainage, he should have insisted on the removal of that exclusion from the contract. McAnalley's superior expertise is a point in McCullough's favor, but the contract is short, simple, typed on McAnalley's stationery, and drafted specifically to the circumstances. Reproduced as accurately as possible, it reads in its entirety:
The facts in this caseMcCullough's aroused concern, the drafting of this agreement directly to address that concern, the exclusion from the agreement of damages caused by "the inability of the drain system to accommodate the volume of water flowing into the system," and the fact that such an inability is the cause of the problem convince me that McAnalley has met his burden of showing that there is no genuine question as to the material fact of reasonable reliance and that he is entitled to a judgment as a matter of law. See Rule 56, Ala.R.Civ.P. Therefore, I would affirm the judgment in its entirety.
MADDOX, J., concurs. | November 15, 1991 |
4e20b7d7-1d48-44d3-a245-cb5a56fa4ddf | Blankenship v. City of Hoover | 590 So. 2d 245 | 1901358 | Alabama | Alabama Supreme Court | 590 So. 2d 245 (1991)
Kay BLANKENSHIP, et al.
v.
CITY OF HOOVER and Richard Smith, as Finance Director of the City of Hoover.
1901358.
Supreme Court of Alabama.
November 22, 1991.
*246 George C. Douglas, Jr. of Gaines, Gaines & Gaines, P.C., Talladega, for appellants.
Jack H. Harrison, Talladega, for appellee.
HOUSTON, Justice.
The plaintiffs, Kay Blankenship, Ann Marich, and Martha Stone, sued the City of Hoover, Alabama ("Hoover"), and Richard Smith, its finance director and custodian of records ("the finance director"), seeking a preliminary injunction; an order requiring Hoover "to produce [various] requested [public records and] documents for inspection and copying at a time and place convenient for Plaintiffs"; and a permanent injunction enjoining Hoover from "refusing to make its records available to citizens [of Hoover] for inspection and copying upon request" and from "ever again requiring [plaintiffs and/or] any citizen [of Hoover] to state a reason why inspection or copying of a public record is requested." The plaintiffs also requested attorney fees and costs. With consent of counsel, the trial court consolidated the hearing on the preliminary injunction with the hearing on the merits, and, upon hearing ore tenus evidence, denied the relief requested by the plaintiffs. The plaintiffs filed the following post-judgment motions, which the trial court denied: a motion to amend the judgment; a supplemental motion to amend or vacate; and a motion for recusal. The plaintiffs appeal. We affirm.
The plaintiffs contend that Hoover's refusal to allow them "to inspect and copy *247 the documents requested [was] in violation of Alabama's `Open Records Act,' [Ala. Code 1975, § 36-12-40 et seq.]" and that "[s]aid refusal [was] not protected by any exception to disclosure nor any privilege which Hoover has asserted." In their motion to amend the judgment, the plaintiffs contended that § 36-12-40 gives every citizen the unqualified right to inspect and copy public records; that § 36-12-40 contains no provisions authorizing the custodian of any public records to determine whether any stated reason was sufficient; and that the only prerequisites to the application of § 36-12-40 were that the record be public and that the person requesting the record be a citizen, which prerequisites, according to the plaintiffs, were established. The plaintiffs contend that the "very act of asking for a reason would have a chilling effect on [a] person's exercise of [the] right to see a public record"; and that the fact that they were citizens was reason enough.
Hoover contends that the trial court has discretion with regard to access to public records; that "no citizen has the unbridled right to harass public officials, abuse their records and demand repeated access while at the same time refusing to state whether or not they have a legitimate interest in the documents sought or a legitimate purpose in seeking them." Hoover contends that the policy it adopted with regard to providing information and with regard to the terms and conditions under which the information would be provided (as well as the simple request form prepared pursuant to that policy), was adopted in accordance with established case law that any person making a request to review records kept by the finance department must have a direct, legitimate interest in the documents sought; must make such request in writing and specify the documents sought and the reasons therefor; and may be charged a reasonable fee for any copies of documents provided. According to Hoover, this Court has conditioned the right of inspection on the language "without undue interference," but, Hoover says, there are no cases dealing directly with the issue of "undue interference." Rather, according to Hoover, every case has been resolved on the question whether a particular record is subject to disclosure. Hoover's position in this case is that the simple request form is in response to the undue interference of the plaintiffstheir constant demands to produce particular records, after the records have already been producedin an effort to try to identify who was using the records, because, Hoover says, the plaintiffs had abused and misused the records. According to Hoover, the plaintiffs seek the records for the purpose of unduly interfering with the finance director's performance of his duties and some of them may be confidential, although Hoover is not insisting on that point. All the plaintiffs have to do is fill out a simple form and they can get any record they want.
Alabama Code 1975, § 36-12-40, provides that "[e]very citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute." The cases in Alabama have upheld the citizen's right of free access to public records, within proper and reasonable guidelines:
Randolph v. State ex rel. Collier, Pinckard & Gruber, 82 Ala. 527, 528-29, 2 So. 714, 715 (1887). See Holcombe v. State ex rel. Chandler, 240 Ala. 590, 200 So. 739 (1941); Excise Commission of Citronelle v. State ex rel. Skinner, 179 Ala. 654, 60 *248 So. 812 (1912); see, also, Phelan v. State ex rel. Rosenstok, 76 Ala. 49 (1884).
Holcombe v. State, 240 Ala. at 597, 200 So. at 746. (Citations omitted.)
Stone v. Consolidated Pub. Co., 404 So. 2d 678, 681 (Ala.1981). (Citations omitted.)
Chambers v. Birmingham News Co., 552 So. 2d 854, 856-57 (Ala.1989) (emphasis added); see, also, Advertiser Co. v. Auburn University, 579 So. 2d 645 (Ala.Civ.App. 1991); Walsh v. Barnes, 541 So. 2d 33 (Ala. Civ.App.1989).
In this case, the trial court, after having heard the ore tenus evidence, found the following:
(Emphasis added.) (Citations omitted.)
Based on these findings, the trial court held as follows:
We agree. There is no evidence that the finance department's policy requiring individuals to fill out a request form before gaining access to public documents or records, such as the one at issue, was implemented by the finance department in order to dissuade or prevent any individual from acquiring access to public documents or records; nor was there any evidence to show that the request form allowed the finance director the power to hinder access or refuse disclosure based on perceived necessity or established office policy. Rather, the evidence established that the information provided by the request form would enable the City to assure that the requested inspection was for a legitimate or proper purpose and would allow the City to maintain the integrity of its records in a practical and workable manner, without undue interference. Furthermore, because of the very nature of W-2 forms, which contain information pertaining to income deferral, retirement, withholding, etc.information which is more personal than publicHoover is under no obligation to make these forms available for public disclosure.
Based on the foregoing, under the facts of this case, applying the ore tenus standard of review, see, Knight v. Lott, 579 So. 2d 1298 (Ala.1991), we hold that the trial court was not plainly and palpably wrong.
The plaintiffs also contend that they are entitled to attorney fees and costs because they were required to litigate in order to have access to public records.
The general rule in Alabama is that attorney fees are recoverable only when authorized by statute, when provided in a contract, or by special equity. Lanier v. Moore-Handley, Inc., 575 So. 2d 83 (Ala. 1991). In this case, there is no statute or contract providing for the award of attorney fees; and, based on the facts before us, we find no exceptions founded on equitable principles within which to fit this case. Therefore, we hold that the trial court did not err in refusing to award attorney fees.
The plaintiffs further contend that there was an indication of an ex parte communication between the trial judge and the attorney for the City, and that the trial *251 judge therefore should have recused or, at least, should have provided on the record a complete explanation of the communicationthat is, they contend that the trial judge should have provided all the details of the alleged ex parte communication, including the date, the place, the length, the substance, and the initiator of the communication. The plaintiffs contend that as a result of this alleged ex parte communication, the trial court had or appeared to have personal knowledge or influence that was not part of the record in this case and that they were therefore deprived of their right to a fair and impartial hearing.
According to Canon 3C(1), Alabama Canons of Judicial Ethics, "A judge should disqualify himself in a proceeding in which... his impartiality might reasonably be questioned." However, Canon 3C(1) does not require disqualification upon mere allegations of bias that are not supported by substantial fact; and the party seeking recusal must come forward with evidence establishing the existence of bias or prejudice.
In this case, the plaintiffs predicated their motion for recusal on an entry on a billing statement that counsel for the City submitted to the City, which referred to a telephone conversation with the trial judge. The record indicates that the plaintiffs' counsel was given a full explanation of the circumstances surrounding the conversation and was advised that the conversation did not actually occur between the City's counsel and the trial judge, but rather took place between the legal assistant to counsel for the City and the trial judge's secretary. There is no evidence suggesting that the trial judge was biased or predisposed towards the City on the issue of the right of access to public records. There is no evidence to support the charge that the trial court was biased or prejudiced against the plaintiffs. Therefore, we hold that the trial court did not err in refusing to disqualify himself.
In addition, the plaintiffs contend that the trial court abused its discretion in refusing to take additional testimony after it had entered the judgment, when they presented an affidavit that, they say, established that the City was not uniformly enforcing the records policy of the finance director. The affidavit submitted by the plaintiffs pertained to records that the affiant had obtained from the city clerk's office without having been required to complete a request form. It did not pertain to records obtained from the finance department. The city clerk's office and the finance department are separate offices of the City. This case involves the policy and request form developed and implemented for the finance department. Therefore, the trial court did not err in denying the motion.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, STEAGALL, KENNEDY and INGRAM, JJ., concur.
ADAMS, J., concurs in part and dissents in part.
ADAMS, Justice (concurring in part and dissenting in part).
I concur in the judgment of the Court insofar as it affirms the trial judge's denial of these plaintiffs' access to the disputed records in the absence of an explanation. In Stone v. Consolidated Publishing Co., 404 So. 2d 678, 681 (Ala.1981), this Court articulated a rule requiring courts to "balance the interest of the citizens in knowing what their public officers are doing ... against the interest of the general public in having the business of government carried on efficiently and without undue interference." We further clarified this rule in Chambers v. Birmingham News Co., 552 So. 2d 854 (Ala.1989). In that case we said:
Id. at 856-57 (emphasis added). Thus, under our law, whether the custodian of public information may legally refuse to allow inspection of records within his custody depends on the facts and circumstances of the particular case.
The facts of this case justify the trial judge's refusal to enjoin the defendants from requiring these particular plaintiffs to fill out a short questionnaire. However, in my view, the majority opinion sweeps too broadly, inasmuch as it can be read as authorizing custodians of public information to require all seekers of such information to answer a questionnaire, in effect, providing a "blanket" exception to § 36-12-40. Such a rule is not only inconsistent with prior pronouncements of this Court, but, in contravention of the statute's strong policy favoring disclosure, such a rule goes a long way toward shifting to those seeking information the burden of justifying their actions. It can serve only to chill society's exercise of its fundamental right of access to information. Therefore, I respectfully dissent from the majority opinion to the extent that it affirms the judgment of the trial court denying the injunction against the general use of the questionnaire. | November 22, 1991 |
498d41fb-c3e6-48a4-93f4-235f9ec1d562 | Patrick v. Femco Southeast, Inc. | 590 So. 2d 259 | 1900720 | Alabama | Alabama Supreme Court | 590 So. 2d 259 (1991)
Terry PATRICK
v.
FEMCO SOUTHEAST, INC.
1900720.
Supreme Court of Alabama.
November 22, 1991.
*260 Harry M. Renfroe, Jr. of Mountain & Mountain, Tuscaloosa, for appellant.
John W. Clark, Jr. and William A. Austill, Birmingham, for appellee.
SHORES, Justice.
This case arises from an alleged wrongful termination. The plaintiff/employee, Terry Patrick, contends that he was laid off because he claimed workman's compensation benefits. The plaintiff sued in the Circuit Court of Tuscaloosa County, and the jury returned a verdict for the defendant/employer, Femco Southeast, Inc. ("Femco"). We affirm.
Patrick was employed as a welder by Femco from 1986 until February 1, 1988. Upon returning to work after a leave of absence caused by an on-the-job injury, Patrick was informed by Tom Whitesell, the plant manager, that he was being laid off "for a while" and that Femco would let him know if he was needed later. On March 7, 1988, Femco hired John Elliot as a welder, mechanic, and field service worker; Elliot stated at trial that he "took [Patrick's] place."
In December 1988, Patrick sued, alleging that Femco had terminated his employment in retaliation for his having filed an action to collect workman's compensation benefits, in violation of Alabama Code 1975, § 25-5-11.1. Femco contended that Patrick was laid off because business had decreased and because of problems with the *261 quantity of work that Patrick performed. In addition, Whitesell claimed that Elliot was hired because he was more "versatile."
On May 2, 1990, Femco counterclaimed for damages, alleging fraud, misrepresentation, and suppression of material fact. Patrick moved to strike the counterclaim and the trial court denied the motion. The trial began on September 10, 1990, and the jury returned a verdict in favor of Femco on Patrick's claim for alleged wrongful termination and also on its counterclaim. The jury awarded no damages on the counterclaim. Patrick filed a motion for judgment notwithstanding the verdict or for a new trial, which was denied.
Patrick raises three evidentiary issues on appeal: (1) Whether the trial court correctly allowed Femco's counterclaim; (2) whether the trial court correctly excluded a nonparty's oral prior inconsistent statement not made under oath; and (3) whether a remark made by Femco's counsel during Patrick's closing argument was so prejudicial as to mandate a new trial even though the trial court gave curative instructions.
The first issue is whether the trial court correctly allowed Femco's counterclaim.
Patrick argues that the counterclaim was a compulsory counterclaim that should have been filed in his workman's compensation action and was not proper in this wrongful termination case; therefore, Patrick argues that because the counterclaim was not filed in the workman's compensation case, it was barred and Femco had no right to pursue it in the present case.
Femco argues that on April 10, 1990, during the deposition of the Pro Steel Fabricators' record keeper, Mary Henderson, Femco discovered Patrick's fraudulent behavior that was the basis of the counterclaim.
A compulsory counterclaim is defined in Rule 13(a), A.R.Civ.P.:
Femco's claim alleging fraud, misrepresentation, and suppression of a material fact did not arise out of the same operative facts as Patrick's workman's compensation case; the issues of fact and law in a workman's compensation case are entirely different from those in a fraud action; the trier of fact in these two claims is not the same; and the evidence to support or refute Patrick's claim and the evidence to support or refute Femco's counterclaim are also different.
Because Femco made a showing that it did not learn of the fraud until April 10, 1990, the date of Henderson's deposition, and because Patrick failed to produce any evidence indicating Femco had prior knowledge of fraud, the counterclaim was properly brought by Femco on May 2, 1990.
The second issue that Patrick raises is whether the trial court erred in excluding a nonparty's oral prior inconsistent statement not made under oath.
Patrick argues that an alleged oral statement made by a nonparty concerning the reason for Patrick's termination should have been admitted as substantive evidence during the trial, even though the statement was not made under oath. The statement was allegedly made by Robert White, Patrick's immediate supervisor at Femco, at the Elks Club in Tuscaloosa during a meeting between the two of them several weeks after Patrick had been laid off; White denied making the statement. At the time of the alleged statement, White was not an employee of Femco.
"Whenever the declarant testifies at [a] trial or hearing, and is subject to cross-examination concerning the statement, then any inconsistent statement given under oath subject to penalty of perjury at a trial, hearing, or other proceeding or in a *262 deposition has substantive ... import in the case." C. Gamble, McElroy's Alabama Evidence § 159.02(4) (4th ed. 1991). In the present case, White did not testify under oath as to any matters claimed by Patrick; thus, the statement will not be treated as substantive evidence. In fact, White claims that he never made any statement that Patrick alleges he made. If a witness denies having made a prior statement, the alleged statement cannot be shown from testimony of other witnesses. Carroll v. State, 473 So. 2d 1219, 1225 (Ala.Cr.App. 1985).
The last issue Patrick raises is whether remarks made by Femco's counsel during Patrick's closing argument were so prejudicial that they mandated a new trial even though the trial court gave curative instructions.
The following exchange occurred during Patrick's closing argument:
Then the plaintiff's counsel said the following at the bench:
The trial judge then instructed the jury as follows:
A statement must be so "grossly improper and highly prejudicial as to be ineradicable from the minds of the jurors, notwithstanding a timely admonition from the trial judge," in order for it to warrant the granting of a new trial. Hill v. Sherwood, 488 So. 2d 1357, 1359 (Ala.1986). Each case must be looked at in light of its particular facts and circumstances. 488 So. 2d at 1359.
St. Clair County v. Bukacek, 272 Ala. 323, 331, 131 So. 2d 683 (1961); Lawrence v. Alabama Power Co., 385 So. 2d 986, 988 (Ala.1980).
After considering the record of the statements and the actions taken by the court, we are of the opinion that the statements made were not so grossly improper and highly prejudicial that their effect could not be eradicated by the curative instructions given by the trial judge. Therefore, the refusal of a new trial based on these remarks did not constitute reversible error.
*263 For the foregoing reasons, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | November 22, 1991 |
b04c2536-666e-497f-9635-4a263b0a86d3 | Triplett v. Elliott | 590 So. 2d 908 | 1901083 | Alabama | Alabama Supreme Court | 590 So. 2d 908 (1991)
Kay Clark TRIPLETT
v.
Edgar M. ELLIOTT IV.
1901083.
Supreme Court of Alabama.
November 22, 1991.
*909 John F. Kizer, Jr. of Kizer & Bennitt, Birmingham, for appellant.
Edgar M. Elliott IV and Rhonda K. Pitts of Rives & Peterson, Birmingham, for appellee.
SHORES, Justice.
This is an appeal from a judgment awarding attorney fees of $17,734.92 based on a theory of quantum meruit. We affirm.
In December 1985, Kay Clark Triplett, through attorney Chris Christ, filed suit in an automobile accident case. On November 20, 1986, Triplett retained Edgar M. Elliott IV, of the law firm of Rives and Peterson, in Birmingham, Alabama, to represent her. Elliott and his law partner, Robert Cooper, filed a notice of substitution of counsel on December 15, 1986.
There was substantial discovery, and the case was set for trial on April 2, 1990; the trial was moved to a later date because of Triplett's illness. While Elliott was at the courthouse on April 2, he received a $47,500 settlement proposal from the defense attorneys. Elliott then recommended to Triplett that they make a counterproposal. Triplett instructed Elliott to turn down the proposal and to make no counterproposal; Elliott complied with Triplett's instructions. Subsequently, Elliott wrote to Triplett:
Triplett replied to his letter on April 29, 1990:
On May 2, 1990, Elliott filed a motion to withdraw as counsel for Triplett; this motion was granted on May 23, 1990.
On May 15, 1990, Elliott intervened in Triplett's ongoing automobile accident case, filing a claim of attorney's lien pursuant to Alabama Code 1975, § 34-3-61, which provides as follows:
Although initially Triplett and Elliott had entered into a contingency fee contract under which Elliott was to receive one-half of the recovery, Elliott asked the court to award him an attorney's fee of one-third the net value of $47,500, the amount of the settlement offered by defense attorneys. In addition to this amount, Elliott also sought $2,852.38 for expenses.
Triplett next hired John F. Kizer, Jr., and Jeff Bennitt as her counsel. Kizer filed a motion to dismiss the attorney's lien claim, alleging that Elliott had abandoned the case and thus that Elliott had no standing to enforce an attorney's lien. Elliott contends that he did not abandon the case, and that he is entitled to recover under the theory of quantum meruit.
The question before us is whether the trial court abused its discretion by *910 awarding Elliott an attorney fee of $14,882.54 plus expenses of $2,852.38 for a total of $17,734.92 based on the theory of quantum meruit.
Assuming that the rule is otherwise applicable, the ore tenus rule applies to actions regarding attorney's liens. Ford v. Massey, 485 So. 2d 1191, 1193 (Ala.Civ.App. 1986).
Clark v. Albertville Nursing Home, Inc., 545 So. 2d 9, 12-13 (Ala.1989).
This Court has held that the purpose of the attorney's lien statute, § 34-3-61, Code of Ala. 1975, is to protect the attorney from loss of his investment in time, effort, and learning, and the loss of funds used in serving the interest of the client. Carnes v. Shores, 55 Ala.App. 608, 610-11, 318 So. 2d 305, 307 (1975). The protection afforded by the statute is not limited to attorneys of record at the time of settlement or when judgment is rendered.
The trial court in the present case relied on Gaines, Gaines & Gaines, P.C. v. Hare, Wynn, Newell & Newton, 554 So. 2d 445 (Ala.Civ.App.1989), in which a discharged firm sought to enforce a previous fee agreement and to establish an attorney's lien on any amount recovered. The trial court held that the discharged firm was entitled to a fee recovery based on the theory of quantum meruit for the reasonable value of services it had rendered. The Court of Civil Appeals affirmed.
It is well established in Alabama that upon an attorney's discharge, the prior part performance of a contract entitles the attorney to recover for those services rendered. As the Court of Civil Appeals pointed out in Gaines:
554 So. 2d at 448.
The trial court in the present case properly considered the several factors set out in Peebles v. Miley, 439 So. 2d 137 (Ala. 1983), for determining a reasonable attorney fee and for arriving at a quantum meruit recovery. The court in Gaines applied the Peebles factors also. 554 So. 2d at 449. Some of the factors are the time consumed; the reasonable expenses incurred by the attorney; whether the fee is fixed or contingent; and the nature and length of the professional relationship. The evidence reflects that Elliott worked on the present case for approximately two and one-half years. He entered an appearance on Triplett's behalf, took all of the depositions, issued subpoenas, prepared all of the pleadings, prepared interrogatories and requests for production, attended pretrial conferences, filed exhibit and witness lists, and attended the call of the trial docket on Triplett's behalf.
We conclude that the trial judge's judgment establishing the attorney's lien in Elliott's favor was clearly supported by the evidence. Therefore, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | November 22, 1991 |
98216837-bb1a-400c-9bc2-f85dbeafa6f8 | Berry v. Fife | 590 So. 2d 884 | 1901311 | Alabama | Alabama Supreme Court | 590 So. 2d 884 (1991)
Angela Carr BERRY
v.
Tammie Sherie FIFE.
1901311.
Supreme Court of Alabama.
November 15, 1991.
Leon Garmon, Gadsden, for appellant.
Paul A. Miller and Rick D. Norris, Jr. of Lamar, Nelson & Miller, P.C., Birmingham, for appellee.
HOUSTON, Justice.
Angela Carr Berry appeals from a partial summary judgment entered in favor of Tammie Sherie Fife on Berry's claim of wantonness arising out of a motor vehicle accident involving Berry and Fife. We reverse and remand.
On January 30, 1990, Berry sued Fife, alleging that Fife had negligently and wantonly caused an accident at the intersection of 12th Street and Chestnut Street ("the intersection") in Gadsden, Alabama, in which Berry suffered injury and for which Berry sought monetary damages against Fife in the amount of $50,000. Berry amended her complaint, adding a claim for underinsured motorist coverage benefits against State Farm Fire and Casualty Company ("State Farm"). Thereafter, Fife filed a motion for summary judgment on Berry's wantonness claim, basing her motion on numerous depositions and on the application of the "sudden emergency" doctrine. At the hearing on the motion, Berry filed a "Memorandum In Response To [Fife's] Motion For Summary Judgment," in which she argued that the applicability *885 of the "sudden emergency" doctrine was a question of fact for the jury and, therefore, that Fife's motion for summary judgment was due to be denied. After the hearing, Berry filed a "Response To [Fife's] Motion For Summary Judgment," based on answers to interrogatories, numerous depositions, and her attached affidavit. The trial court entered a summary judgment for Fife. Berry filed a Rule 59(e), Ala.R.Civ. P., motion to alter, amend, or vacate the partial summary judgment for Fife on the wantonness claim or, in the alternative, to certify that judgment as final pursuant to Rule 54(b), Ala.R.Civ.P. The trial court denied Berry's motion to alter, amend, or vacate, but granted her Rule 54(b) motion to certify the judgment as final and stayed trial pending this appeal of that judgment.[1]
The accident made the basis of this case occurred on November 12, 1987; therefore, the applicable definition of "wantonness," is that found in Ala.Code 1975, § 6-11-20(b)(3): "Conduct which is carried on with a reckless or conscious disregard of the rights or safety of others." See § 6-11-30. See, also, Shoals Ford, Inc. v. Clardy, 588 So. 2d 879 (Ala.1991). "Reckless" is defined as "careless, heedless, inattentive; indifferent to consequences," Black's Law Dictionary 1270 (6th ed. 1990); "marked by lack of proper caution: careless of consequence," Webster's New Collegiate Dictionary 957 (1981); "having no regard for consequences; uncontrolled; wild." The American Heritage Dictionary of the English Language 1088 (1969); see Harrison v. State, 37 Ala. 154 (1861). "Conscious" is defined as "perceiving, apprehending, or noticing with a degree of controlled thought or observation: capable of or marked by thought, will, design, or perception," Webster's New Collegiate Dictionary 239 (1981); "having an awareness of one's own existence, sensations, and thoughts, and of one's environment; capable of complex response to environment; deliberate." The American Heritage Dictionary of the English Language 283 (1969).
When a party alleges wanton conduct as a cause of action and seeks only compensatory damages, in an attempt to circumvent affirmative defenses available for a claim of negligent conduct (e.g., contributory negligence, the guest statute), the wanton conduct, in all cases filed after June 11, 1987, must be proved by "substantial evidence""evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989); § 12-21-12.
However, in all cases in which the right accrued on or after June 11, 1987, when a party alleges wanton conduct as a cause of action and seeks punitive damages, the plaintiff must prove that the defendant consciously or deliberately engaged in wanton conduct ("[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others"). Alabama Code 1975, § 6-11-20(a). The word "conscious" has been defined above. The word "deliberate" is defined as "well-advised; carefully considered, not sudden or rash; circumspect; slow in determining; formed, arrived at, or determined upon as a result of careful thought and weighing of considerations; careful in considering the consequences of a step," Black's Law Dictionary 426-27 (6th ed. 1990); "characterized by or resulting from careful and thorough consideration; characterized by awareness of the consequences; slow, unhurried, and steady as though allowing time for decision on each individual action involved," Webster's New Collegiate Dictionary 297 (1981); "careful and slow in deciding or determining; not rashly or hastily determined," The American Heritage Dictionary of the English Language 349 (1969). This must be proven by "clear and convincing evidence" (§ 6-11-20(a)), which is defined in § 6-11-20(b)(4) as follows:
Fife presented the following evidence to make a prima facie showing that no genuine issue of material fact as to the existence of wantonness existed:
At approximately 6:30 P.M. on November 12, 1989, Berry was travelling east on Chestnut Street, approaching the intersection. As Berry proceeded with a green light into the intersection, she was unable to take evasive action and became involved in an accident with Fife, in which Berry suffered injury. According to Fife's deposition testimony, she was travelling south on 12th Street, approaching the intersection, when "a rock or something flew across [her] windshield, and then [she] heard a gunshot, or something hit the windshield, a bullet or something ... when [she] ducked [her head below the dash] and ran into [Berry]." Fife did not see Berry's vehicle before the collision. When questioned as to the circumstances surrounding the collision, Fife testified as follows:
According to Paula Hardwick, the passenger in Fife's vehicle at the time of the accident, Fife was slowing down and had practically stopped for the red light when they both heard a gunshot, ducked, and screamed. In answer to questions concerning the circumstances surrounding the collision, Hardwick testified as follows:
Trudy Mostella,[2] an independent witness who had no financial interest in the outcome of the litigation and who had lived near the intersection and was visiting Rosa Sims, her mother, at the time of the accident, testified that the area around the intersection is an area of "criminal activity""gunshots and drug dealings"and that "people are afraid to sit out on their porch in the summertime because of young teenagers shooting in the neighborhood." Furthermore, according to Mostella, on the night in question, she "heard a gunshot, and, within a split of a second, [she] heard the accident.... No doubt that was a gunshot. It was not a car backfiring." According to the deposition testimony of Sims, another independent witness who had no financial interest in the outcome of the litigation and who lived near the intersection at the time of the accident, she heard gunshots immediately before the accident that were so loud that she thought they came from a shotgun.
Based on the foregoing and in accordance with our standard of review, which requires us to view the evidence most favorably to the nonmovant (Berry), we cannot hold as a matter of law that Fife made a prima facie showing that her conduct was not wanton, i.e., that she did not "recklessly" act with disregard for the rights and safety of others.
Although Berry alleged that Fife's conduct was wanton, she did not specify whether any of the damages she sought were punitive or, if so, what portion, of the requested damages were punitive. Rather, Berry's complaint read as follows: "[Berry] demands judgment against [Fife] in the sum of Fifty Thousand Dollars ($50,000.00) and costs."
To the extent that Berry seeks only compensatory damages through the wantonness claim, we hold that there was substantial evidence of wantonness under the facts of this case, because fairminded persons in the exercise of impartial judgment could reach different conclusions as to the existence of wantonness. Therefore, the trial court erred in entering the summary judgment in favor of Fife.
To the extent that Berry sought punitive damages through her claim of wantonness, she bore the burden of presenting "clear and convincing" evidence that Fife acted "with a conscious and reckless disregard of the rights and safety of others." "Clear and convincing evidence" is a standard of proof greater than "substantial evidence."
REVERSED AND REMANDED.
*888 MADDOX, SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur.
STEAGALL, J., dissents.
[1] Because this appeal concerns only the summary judgment in favor of Fife on Berry's claim of wantonness, neither the underinsured motorist claim against State Farm Fire and Casualty Company nor Berry's negligence claim against Fife is before us.
[2] Although Trudy Mostella is married to a cousin of Paula Hardwick's husband, it is undisputed that they were not acquainted prior to the accident. | November 15, 1991 |
f25bec0b-0226-4ac1-bc03-25506806b27f | Ex Parte Johnson | 597 So. 2d 1305 | 1901411 | Alabama | Alabama Supreme Court | 597 So. 2d 1305 (1991)
Ex parte Virginia JOHNSON.
(Re Virginia Johnson v. State).
1901411.
Supreme Court of Alabama.
November 15, 1991.
David S. Luker, Birmingham, for petitioner.
James H. Evans, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
The issue in this case is whether the State sufficiently proved that the sale of a controlled substance occurred within one mile of a school, thereby authorizing the imposition of an enhanced sentence under the provisions of Ala.Code 1975, § 20-2-79,[1] when proof, in part, was made by using a copy of the City of Birmingham.
On September 22, 1987, at approximately 12:15 p.m., at 1872 Woodland Avenue SW, in Birmingham, the petitioner, Virginia Johnson, arranged for another person to sell Officer Roger Thorne some marijuana. The sale took place in Johnson's house and in her presence. Subsequently, Johnson was charged with the trafficking in marijuana and with the sale of marijuana, in violation of §§ 20-2-80 and 20-2-70 (both now repealed or transferred). Johnson pleaded guilty to both charges and appeared before the court for sentencing.
At the sentencing hearing, the State asked that Johnson's sentence be enhanced under the provisions of Ala.Code 1975, § 20-2-79, which provided for a five-year enhancement of sentence for a person convicted of selling drugs on a "campus or within a one-mile radius of the campus boundaries of any public or private school, college, university or other educational institution." The State introduced a copy of a map of Birmingham, but it did not have a scale to determine distance. The assistant district attorney showed on the map the location of the drug sale and the location of the school. He stated that the scale of the map was one mile per inch, and that the court could take judicial notice that the prohibited sale occurred within one mile of a school. Johnson objected to the admission *1306 of the map on the ground that it was not certified or authenticated, and she also questioned the accuracy of the map. The trial court took judicial notice of the map and sentenced Johnson to five additional years under the enhancement statute. Johnson appealed, and the Court of Criminal Appeals affirmed, without an opinion. Johnson v. State, 579 So. 2d 712 (Ala.Cr.App.1991).
The rules governing sentence hearings are provided by Rule 26.6(b)(2), Ala.R.Crim.P., which states:
While any evidence that the court deems to have probative value may be received, regardless of its admissibility under the rules of evidence, it must be proven by a preponderance of the evidence.
The only evidence produced to show that the petitioner sold drugs within a one-mile radius of a school was an unverified map of the City of Birmingham that did not indicate its scale. The State produced no witnesses to support the authenticity or accuracy of the map, and the only testimony relating to the scale of the map came from the assistant district attorney.
In previous cases arising under § 20-2-79, there was testimony concerning the distance between the school and the point where the drugs were sold. In Qualls v. State, 555 So. 2d 1158 (Ala.Cr.App.1989), a police officer testified that he measured the distance between an elementary school and the drug sale sight with his odometer. In Lane v. State, 564 So. 2d 90 (Ala.Cr.App.1990) a chief deputy testified that he measured the distance between the school and the drug sale sight. In Spinks v. State, 564 So. 2d 1043 (Ala.Cr.App.1990), the state offered testimony by an investigator from the district attorney's office and by a state probation officer who both had measured the distance from the drug sale site to the school. Relying on the testimony, the courts held that the State had carried its burden of presenting sufficient evidence that the sale had occurred within a mile of a school.
We hold that the State failed to prove by "the preponderance of evidence" that the sale occurred within a one-mile radius of a school. See Rule 26.6(b)(2), A.R.Crim.P. The judgment of the Court of Criminal Appeals is, therefore, reversed, and the cause is remanded to that court with directions that the cause be remanded to the trial court for the purpose of conducting a new sentence hearing.
The petitioner's argument that the enhancement statute is unconstitutional is without merit. The statute is constitutional. See Wright v. State, 560 So. 2d 1128 (Ala.Cr.App.1989); Harrison v. State, 560 So. 2d 1124 (Ala.Cr.App.1989).
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] The provisions of § 20-2-79 were transferred to § 13A-12-250 effective September 30, 1988, and then effective May 19, 1989, the "one mile" provision was extended to three miles. The sale of drugs in this case occurred in 1987, and at that time § 20-2-79 was the applicable enhancement statute. Therefore, the applicable sentencing statute is § 20-2-79. | November 15, 1991 |
564e8cb0-cded-47ac-ade2-06234acb2a29 | Ragan v. Blazon Flexible Flyer, Inc. | 590 So. 2d 882 | 1901078 | Alabama | Alabama Supreme Court | 590 So. 2d 882 (1991)
Michael RAGAN, Through his Mother and Next Friend, Barbara Ragan
v.
BLAZON FLEXIBLE FLYER, INC., and Jess Jennings.
Michael RAGAN, et al.
v.
Jess JENNINGS, et al.
89-1819, 1901078.
Supreme Court of Alabama.
November 1, 1991.
Thomas R. Roper of Veigas & Cox, P.C., Alan T. Rogers and Michael D. Freeman of Balch & Bingham, Birmingham, for appellee Blazon Flexible Flyer, Inc.
Joseph C. Kellett of Kellett, Gillis & Kellett, P.A., Fort Payne, for appellee Jess Jennings.
STEAGALL, Justice.
Michael Ragan, through his mother and next friend, Barbara Ragan, appeals from the trial court's dismissal, pursuant to Rules 37(b) and 41(b), A.R.Civ.P., of his case for refusal to provide discovery. The Ragans' January 12, 1983, complaint, as amended, alleged a products liability claim against Blazon Flexible Flyer, Inc. ("Blazon"), and a negligence claim against Joel Burt, Charles Mauney, Olivia Mauney, and Jess Jennings. After seven years of discovery, the trial court, on June 28, 1990, dismissed the Ragans' case with prejudice. The trial court's order reads:
This Court has stated on numerous occasions that the trial court is vested with broad and considerable discretion in managing the discovery process. See Iverson v. Xpert Tune, Inc., 553 So. 2d 82 (Ala. 1989), and cases cited therein. The trial court possesses the authority to impose reasonable and appropriate sanctions against a party for failure to comply with the discovery process and the court orders resulting therefrom. Id. As a reviewing court, we will not disturb the trial court's choice of discovery sanctions on appeal absent some abuse of discretion. Johnson v. Langley, 495 So. 2d 1061 (Ala.1986).
Our review of the record convinces us that the trial court did not abuse its discretion in dismissing the case based on the Ragans' willful refusal to provide discovery. Therefore, the trial court's judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur.
[1] On October 4, 1990, the trial court entered an amended judgment, acknowledging that Jess Jennings remained a party to the action. | November 1, 1991 |
7a6c24eb-c54c-4e3e-ba96-57378fce8f9b | Isler v. Federated Guar. Mut. Ins. Co. | 594 So. 2d 37 | 1900908 | Alabama | Alabama Supreme Court | 594 So. 2d 37 (1991)
Paul ISLER
v.
FEDERATED GUARANTY MUTUAL INSURANCE COMPANY.
1900908.
Supreme Court of Alabama.
November 22, 1991.
Rehearing Denied February 21, 1992.
John E. Byrd of Byrd & Spencer, Dothan, for appellant.
William L. Lee III of Lee & McInish, Dothan, for appellee.
William L. Lee III, Alan C. Livingston, William C. Carn III, Peter A. McInish and Jerry M. White of Lee & McInish, Dothan, for appellee on rehearing.
MADDOX, Justice.
This case involves the "stacking" of uninsured motorist coverage, and the specific question presented is whether a person who is an insured under the underinsured motorist provisions of his company's "fleet" policy must exhaust the "stacked" coverages under that policy before he can claim entitlement to underinsured motorist benefits under his own personal automobile liability policy. This is the second time this case has been here.[1]
On October 9, 1985, Paul Isler was a passenger in a vehicle owned by his employer, Palmer Electric Company, which was insured under a policy issued by Reliance Insurance Company ("Reliance"). This vehicle collided with an automobile driven by John Boatwright; both Isler and Boatwright were injured.
Isler filed suit in the Circuit Court of Henry County against Boatwright,[2] Reliance *38 (the company's insurer), and Federated Guaranty Mutual Insurance Company, his own personal automobile liability insurance carrier. Both the Reliance policy and the Federated policy contained uninsured and underinsured motorist provisions. Isler alleged that Boatwright, the alleged tortfeasor, was an underinsured motorist, and that Isler was entitled to recover under the underinsured provisions of his company's policy and also under the provisions of his own automobile liability policy.
In his complaint, Isler demanded that Reliance and Federated "pay all sums which said plaintiff should be legally entitled to recover as damages from the owner or operator of an uninsured or underinsured motorist." (Emphasis added.)
On October 5, 1988, Isler executed a pro tanto release upon Reliance's payment to him of $35,000, and on November 29, 1988, he released Boatwright's estate and Boatwright's personal insurance carrier, State Farm Mutual Insurance Company upon its payment of $20,000. The claims against the released defendants were dismissed with prejudice, leaving only the action against Federated still pending.
Subsequently, Federated filed a motion for summary judgment, attaching the affidavit of Tanya Clemon, Reliance's claims representative, in which she stated, in substance, that Reliance's policy covered a fleet of vehicles and that the uninsured motorist coverage under the fleet policy was $20,000, and that Isler, by the "stacking" of three coverages as authorized by law, had available to him a total uninsured motorist coverage of $60,000. Federated argued that because Isler had settled with Reliance upon the payment to him of only $35,000, when he was legally entitled to recover a total of $60,000, that he did not exhaust Reliance's coverage. Federated argued that it was a secondary insurer and, therefore, was not obligated to pay on the policy. The trial court granted Federated's motion for summary judgment, and Isler appealed. This Court reversed, holding that "[t]he determination of which insurance coverage is primary and which, if any, is secondary is dependent upon the exact language of each policy." Isler v. Federated Guaranty Mut. Ins. Co., 567 So. 2d 1264, 1265 (Ala.1990). On remand, Federated again filed a motion for summary judgment and introduced its policy in support of that motion. The policy contains the following language, which Federated contends entitled it to a summary judgment:
Federated's argument is the same as that made on the first appeal: that because its insured was occupying an automobile not owned by him, Federated's obligation to pay uninsured motorist benefits is not quickened until its insured has exhausted all of the coverage that was available to him, and that its insured, although entitled to stack at least two additional coverages under the company's fleet policy, as provided for under the provisions of Ala.Code 1975, § 32-7-23(c),[3] nevertheless, settled with that insurer upon payment of $35,000, when he was entitled to at least $60,000.
It is not disputed that Palmer Electric Company, the company Isler worked for, had fleet coverage with Reliance on all its motorized vehicles. Uninsured motorist coverage under that policy, as mandated by *39 law, was $20,000 on each vehicle.[4]
In his complaint, Isler had asked for any amount that Reliance was "legally liable," to pay. Isler on this appeal, claims that Reliance was legally liable to pay only $20,000, because Isler had chosen not to stack the additional coverages, at least not to the extent of $60,000. He argues that Federated's interpretation of the provisions of his own personal automobile liability policy would require him to stack coverages.[5]
The Reliance policy, in its definition of "who is insured" with regard to the uninsured motorist coverage, reads as follows:
The Reliance policy covered all motorized vehicles owned by Palmer Electric Company, including any vehicles later acquired by Palmer. Isler was an employee occupying a covered automobile and was within the class of insureds allowed to stack coverages. Federated's policy stated that, "[w]ith respect to bodily injury to an Insured while occupying an automobile not owned by a Named Insured under this coverage," Federated was obligated to pay only the "excess insurance over any other similar insurance available to such occupant, and this insurance shall then apply only in the amount by which the applicable limit of liability of this coverage exceeds the sum of the applicable limits of liability of all such other insurance." After examining the provisions of the policy, we hold that Isler agreed to exhaust his primary coverage before seeking coverage under his Federated policy.
The clause we are dealing with is known by this Court as an "excess clause."
Gaught v. Evans, 361 So. 2d 1027, 1029 (Ala.1978). The Court in Gaught found that an "excess clause" was valid and enforceable. Therefore, "secondary coverage may be reached after the exhaustion of primary coverage if the damages exceed the policy limits of the primary coverage". Gaught, 361 So. 2d at 1030.
Reliance provided coverage to the vehicle in which Isler was a passenger; therefore, Reliance was the primary insurer. Federated's policy contains a valid excess clause. If the damages exceed the policy limits of the primary coverage, then Federated is liable to pay to Isler the amount of any excess.
Isler's possible recovery from Federated is limited to an amount in excess of what he is legally entitled to receive under the Reliance policy ($60,000) and from the tort-feasor's insurer ($20,000) or a total of $80,000. We can not discern from the record the amount of damages Isler suffered as a result of the accident, or whether any benefits would be available to Isler under the Federated policy as excess insurance; consequently, we must again reverse the trial *40 court's judgment and remand the cause to the trial court for further proceedings consistent with what we have said in this opinion regarding the legal rights of the parties.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
MADDOX, Justice.
In its brief in support of its application for rehearing, Federated argues that in its original opinion this Court has changed the law set forth in Gaught v. Evans, 361 So. 2d 1027 (Ala.1978), and Barnwell v. Allstate Ins. Co., 55 Ala.App. 447, 316 So. 2d 696 (1975), by holding that if the plaintiff's total damages exceed the primary coverage available, the secondary insurer is liable for these excess damages. Federated is mistaken in arguing that we have changed the law.
Federated argues that it is not liable to Isler for any damages because Isler, by settling for $35,000, did not "exhaust" the limits of the primary insurer, which were $60,000. In support of this contention, Federated quotes from Barnwell, the following:
Barnwell, 55 Ala.App. at 450, 316 So. 2d at 697-98. However, Federated fails to quote further from Barnwell where the opinion states: "As an excess carrier, defendant [the secondary insurer] would not be liable in any case unless plaintiff's damages were determined to be over $10,000.00 [the primary carrier's policy limit]." Id. (Emphasis added). The holding in this case is, therefore, consistent with the holding in Barnwell.
In this case, we held that Federated was not liable unless Isler's damages exceeded the policy limits of the other insurance. Isler had $20,000 available to him from the tort-feasor's insurer and $60,000 available to him from the primary insurer. This Court held that Federated is only liable to Isler for any amount of damages, within its policy limits, in excess of $80,000. This is the amount that Federated contracted to pay Isler. Federated's argument on its application for rehearing is the same argument brought to this Court's attention in its original brief; therefore, Federated has not introduced any new or meritorious material for this court to review.
OPINION EXTENDED; APPLICATION FOR REHEARING DENIED.
HORNSBY, C.J., and SHORES, KENNEDY and INGRAM, JJ., concur.
STEAGALL, J., dissents.
[1] In Isler v. Federated Guaranty Mutual Ins. Co., 567 So. 2d 1264 (Ala.1990), the same question of secondary coverage was presented. In that case, this Court did not reach the issue because Federated's policy was not included in the record on appeal. There, this Court held, as follows:
"Federated asserts that it has only a secondary obligation to Isler, which is activated only when Reliance's primary obligation is fully expended. The Federated policy is not in the record, however, so there is no basis on which to conclude that Federated's coverage is secondary to Reliance's. The determination of which insurance coverage is primary and which, if any, is secondary is dependent upon the exact language of each policy. See Gaught v. Evans, 361 So. 2d 1027 (Ala.1978); Protective National Ins. Co. of Omaha v. Bell, 361 So. 2d 1058 (Ala.1978)."
[2] Boatwright later died as a result of the injuries he received in the accident, and his estate was substituted as a party.
[3] Ala.Code 1975, § 32-7-23(c), provides, as follows:
"(c) The recovery by an injured person under the uninsured provisions of any one contract of automobile insurance shall be limited to the primary coverage plus such additional coverage as may be provided for additional vehicles, but not to exceed two additional coverages within such contract."
[4] The Reliance policy provided uninsured motorist coverage of only $10,000 per vehicle, but Ala.Code 1975, § 32-7-6, requires a minimum of $20,000 coverage on each vehicle. There is no dispute regarding the amount of mandated coverage. Reliance admitted that under the statute it was required to provide primary coverage of $20,000 per vehicle and that under § 32-7-23(c), it was legally liable for primary coverage plus two additional coverages, equalling available coverage of $60,000. Reliance, of course, obtained a pro tanto release upon payment of $35,000.
[5] Isler's argument is based upon his contention that the Reliance policy has a clause limiting recovery to the "limit of Uninsured Motorist Coverage Insurance shown in the declarations." His basic argument is that there is no law that mandates that a person "stack" coverages. He contends that stacking is optional. After the legislature adopted an amendment of § 32-7-23, on January 1, 1985, insurers can no longer prohibit the stacking of uninsured motorist coverage. See Lipscomb v. Reed, 514 So. 2d 949 (Ala.1987). Therefore, any limiting clause in the Reliance policy that would prohibit stacking would be invalid. | November 22, 1991 |
f6bf540f-fb71-4369-baa5-9987ce960b8c | Ala. Plating v. US Fidelity and Guar. | 690 So. 2d 331 | 1941753 | Alabama | Alabama Supreme Court | 690 So. 2d 331 (1996)
ALABAMA PLATING COMPANY and J. M. Rowe, Jr.
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY, et al.
1941753.
Supreme Court of Alabama.
December 20, 1996.
Rehearing Overruled February 21, 1997.
*332 Hewitt L. Conwill of Conwill & Justice, P.C., Columbiana, Thomas H. Brown of Harris & Brown, P.C., Birmingham, and Eugene R. Anderson, John W. Fried and Joan L. Lewis of Anderson, Kill, Olick & Oshinsky, P.C. (that firm name was changed during these proceedings, to Anderson, Kill & Olick, P.C.), New York City, for Appellants.
Clarence M. Small, Jr., Deborah Alley Smith and Susan S. Hayes of Rives & Peterson, P.C., Birmingham, for Hilb, Rogal and Hamilton Company of Birmingham, Inc.
James B. Rossler and W. Perry Hall of Stout & Rossler, Mobile, for Safety National Casualty Corporation.
Keri Donald Simms (C. Peter Bolvig later substituted), of McDaniel, Hall, Conerly & Lusk, P.C., Birmingham, for Ranger Insurance Company.
Walter J. Andrews, Frank Winston, Jr., Dale E. Hausman and John C. Yang of Wiley, Rein & Fielding, Washington, DC, Thomas A. Woodall of Woodall & Maddox, Birmingham, C. William Gladden of Gladden & Sinor, Birmingham (on second rehearing application), and Sterling G. Culpepper, Jr., David R. Boyd and Robin G. Laurie of Balch & Bingham, Montgomery, for United States Fidelity and Guaranty Company.
Edward Zampino, Peter E. Mueller and Victor C. Harwood III of Harwood Lloyd, Hackensack, NJ, and George M. Van Tassel, Jr. of Sadler, Sullivan, Sharp, Fishburne & Van Tassel, Birmingham, for Amicus Curiae Aetna Casualty and Surety Company, in support of United States Fidelity and Guaranty Company.
Forrest S. Latta of Pierce, Carr, Alford, Ledyard & Latta, P.C., Mobile, for Amicus Curiae Insurance Environmental Litigation Ass'n, on behalf of certain member companies of IELA.
PER CURIAM.
The opinion of August 30, 1996, is withdrawn and the following opinion is substituted therefor.
The plaintiffs, Alabama Plating Company and J.M. Rowe, Jr., its president (collectively *333 "Alabama Plating"), appeal from summary judgments in favor of the defendant insurers, United States Fidelity and Guaranty Company ("USF & G"), Safety National Casualty Corporation ("Safety"), Ranger Insurance Company ("Ranger"), and in favor of Hilb, Rogal and Hamilton Company of Birmingham, Inc. ("HRH"). Although Alabama Plating's amended complaint alleged more than 30 counts against the defendants, the major issue involved in this appeal is simply whether Alabama Plating is covered under the defendants' insurance policies for certain sums it has expended and will be forced to expend for environmental remediation ordered by the Alabama Department of Environmental Management ("ADEM").
Alabama Plating has operated a metal finishing business in Vincent, Alabama, from the 1950's to the present. Until 1986, Alabama Plating's business included an electroplating operation. The electroplating process created a liquid byproduct containing cadmium, chromium, cyanide, and zinc; its current operations create no such byproducts. In accordance with instructions from the relevant environmental protection authoritythe United States Army Corps of Engineers, the Alabama Water Improvement Commission, and then ADEMAlabama Plating directed its wastewater through a mechanical treatment system, into containment ponds where the metals would settle out, and then directed the treated wastewater to a small stream for which ADEM had issued it a discharge permit. Although Alabama Plating followed the directives of the authorities, environmental contamination occurred. Since 1986, ADEM has issued several administrative orders requiring environmental remediation by Alabama Plating. A 1986 order related to the cleanup of sediment from a section of the stream bed where metals had accumulated as a result of an incident where the water treatment system failed to function properly. ADEM orders in 1990 and 1991 related to delays in Alabama Plating's efforts to complete cleanup of contaminated groundwater and to close the containment ponds.
In June 1991, Alabama Plating made a demand for insurance coverage for its costs of complying with the ADEM orders, under its comprehensive general liability ("CGL") policies with USF & G and under its excess liability policies with Safety and Ranger. All the insurers denied coverage. Alabama Plating sued the insurers on theories of breach of contract, bad faith, fraudulent misrepresentation, and other theories related to the alleged wrongful denial of coverage. Alabama Plating also sued HRH, the insurance agency through which it had obtained its insurance coverage, alleging negligence and fraudulent misrepresentation.
Because the existence of a contractual duty on the part of USF & G to provide insurance coverage is the foundation of Alabama Plating's claims, we address that question first. The broad insuring clause of the standard-form CGL policy states:
(Emphasis added.) The policy defines an "occurrence" as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured." Accordingly, the focus of the definition of "occurrence" is whether the insured, in this case Alabama Plating, expected or intended that its manufacturing operations would cause the property damage alleged in the ADEM orders, the soil and groundwater contamination. Under Alabama law, this inquiry is a subjective test, Haisten v. Audubon Indem. Co, 642 So. 2d 404 (Ala.1994), and Alabama Plating has presented substantial evidence that it did not *334 expect or intend that its manufacturing process would cause the property damage at issue.[1]
One of the bases for USF & G's denial of insurance coverage to Alabama Plating is the so-called "pollution exclusion" clause that the insurance industry uniformly added to CGL policies beginning in the early 1970's. USF & G argues that the clause eliminates insurance coverage for Alabama Plating as a matter of law. The qualified exclusion clause states:
(Emphasis added.)
Although this Court has previously considered appeals involving the above-quoted exclusion, we have not addressed the meaning of the "sudden and accidental" exception to the exclusion, which reinvokes coverage that the prior language of the clause excludes. USF & G argues that the "sudden and accidental" exception provides coverage only where the pollution contamination was caused by an abrupt, short-lived event. Alabama Plating argues that the phrase "sudden and accidental" in the exception is ambiguous in meaning, and it makes several arguments supporting the proposition that "sudden and accidental" should be interpreted in favor of the policyholder to mean "unexpected and unintended."
First, we note that Hicks v. American Resources Ins. Co., 544 So. 2d 952 (Ala.1989), cited by USF & G, is of no assistance. The meaning of the "sudden and accidental" exception to the pollution exclusion was not raised in that appeal. We also find no guidance from Koch v. State Farm Fire & Cas. Co., 565 So. 2d 226, 231 (Ala.1990), where we interpreted the phrase "sudden and accidental" appearing in an exception to an exclusion in a homeowner's policy to mean "immediate and accidental." Our interpretation was driven by the fact that the homeowner's policy at issue was written with an overall structure intended to exclude coverage for gradually occurring damage. In contrast, the overall structure of a CGL policy provides coverage for gradual, repeated conditions. Thus, a CGL policy provides a context in which to interpret the phrase "sudden and accidental" that is very different from the context in which the homeowner's policy in Koch was interpreted.
A narrow majority of state supreme courts that have considered the meaning of the "pollution exclusion," including the Supreme Courts of Indiana and Oregon this year, have held that the "sudden and accidental" exception is ambiguous and must be construed in favor of the policyholder to provide coverage where migration of contaminants into the soil or groundwater was "unexpected and unintended."[2] We agree and, *335 thus, adopt the majority position, which we consider to be the better reasoned approach.
At a minimum, the word "sudden" is ambiguous. It may refer to an event that is unexpected, or to one that happens quickly or abruptly. Dictionaries, particularly those published around 1970, when the "pollution exclusion" clause was first added to CGL policies, reveal two differing definitions for "sudden," with the primary meaning being "unexpected."[3] Given this ambiguity in the "pollution exclusion," we look to extrinsic evidence of the drafter's intent.
Before the addition of the so-called "pollution exclusion" to "occurrence"-based CGL policies in the early 1970's, it was clear that the policies provided coverage for gradually occurring environmental contamination.[4] The evidence of the intent of the drafter of the "pollution exclusion" clause, an insurance industry group that represented USF & G and many other insurers, reveals that when the clause was added to the "occurrence"-based CGL policies, it was added with an expressed intent that there would be no reduction in coverage, but that the addition of the exclusion was merely a "clarification" that the policies did not provide coverage for intentional polluters. This evidence includes both contemporaneous statements by insurance industry representatives[5] and standard form letters sent to state insurance departments, including the Alabama Department of Insurance, in 1970 asking for approval of the pollution exclusion as an addition to CGL policies.[6]
*336 Moreover, when insurers sought to add the "pollution exclusion" to their CGL policies, the phrase "sudden and accidental" had already undergone judicial construction as language in boiler and machinery insurance policies where the occurrence of damage had to be "sudden and accidental" for coverage to be invoked. Courts had uniformly interpreted the phrase to mean that the damage had to be unexpected and unintended for the insurance to apply, so that the phrase provided coverage for gradual events.[7]
In the face of this established interpretation, insurance companies chose to use the phrase "sudden and accidental" in the exception to the pollution exclusion.[8] Because the "judicial construction placed upon particular words or phrases made prior to the issuance of a policy employing them will be presumed to have been the construction intended to be adopted by the parties," Couch on Insurance 2d § 15:20 (1984), we hold that the "sudden and accidental" exception to the pollution exclusion clause provides coverage when the "discharge, dispersal, release or escape" of contaminants into the environment was unexpected and unintended.[9]
USF & G also argues that it does not have to provide insurance coverage to Alabama Plating under its CGL policies, based on the following reasons: (1) the costs of performing the environmental remediation ordered by ADEM are not "damages" under a CGL policy, and (2) the CGL policy's "owned property" exclusion precludes coverage for cleanup of water or soil within the boundaries of an insured's property.
This Court has not previously addressed these specific issues, and the relevant terms are not defined in the CGL policies at issue. However, as noted previously, the policies in question are standard-form policies, issued nationwide, so the rulings of courts in other states are of some guidance. We find that as to each issue above, the clear majority of courts that have answered the questions have ruled against the arguments made by USF & G. Thus, we adopt the majority position on each issue: environmental remediation costs are damages covered by CGL policies,[10] and the "owned property" *337 exclusion does not exclude coverage for the costs of remediating groundwater contamination.[11] These rulings are consistent with prior decisions of this Court. We have previously refused to narrowly limit the type of costs covered as damages under a liability policy. National Union Fire Ins. Co. v. City of Leeds, 530 So. 2d 205 (Ala.1988). We have also held that a landowner's interest in the groundwater beneath his property is a limited right, see Martin v. City of Linden, 667 So. 2d 732 (Ala.1995), not one of ownership.
As a last defense, USF & G claims that, as a matter of law, Alabama Plating failed to give timely notice of the "occurrences" relating to the 1986, 1990, and 1991 ADEM *338 administrative orders. USF & G's CGL policies require that notice be given of an occurrence "as soon as practicable" and that notice of a claim or lawsuit be given immediately. Alabama Plating contends that in 1985 it notified HRH of possible environmental liability; it says HRH was an agent of USF & G for receiving notice of a claim, but that HRH failed to pass the notice on to USF & G. Alabama Plating also argues that its June 1991 written notice to USF & G was reasonable notice under the circumstances.
This court has held that notice requirements in insurance policies such as "as soon as practicable" mean that the insured must give notice to the insurer within a reasonable time under the circumstances of the case. CIE Service Corp. v. Smith, 460 So. 2d 1244 (Ala.1984). To determine whether any delay in giving the notice was reasonable, a court must consider the length of the delay and any reasons for the delay. CIE Service Corp., supra. Moreover, mitigating evidence offered by the insured can create a question of fact as to whether the notice was reasonable. Watson v. Alabama Farm Bureau Mut. Cas. Ins. Co., 465 So. 2d 394 (Ala. 1985).
Alabama Plating presented substantial evidence indicating that HRH was the agent of its insurers for the receipt of notice relating to the potential for environmental liability. Alabama Plating says that when it first gave notice to HRH in 1985, HRH informed it that it had no insurance coverage for such liability and then failed to give notice of potential liability to its insurers. This alleged action is the basis of Alabama Plating's claims against HRH, discussed in section II, below. Alabama Plating contends that HRH's misrepresentation led it to believe that an attempt on its own part to notify its insurers would be futile. We conclude that there are questions of fact for a jury to resolve before it can be determined whether Alabama Plating's notice to its insurers in June 1991 of the 1991, 1990, and 1986 ADEM orders was reasonable under the circumstances. A finding that notice to USF & G was late as to one of those orders would not preclude a finding that it was timely as to other orders. In sum, Alabama Plating's notice to USF & G was not untimely as a matter of law.
We conclude that Alabama Plating has presented substantial evidence that USF & G owed a duty under its CGL policies to provide insurance coverage to Alabama Plating in relation to the ADEM orders. Thus, the trial court erred in entering the summary judgment for USF & G on Alabama Plating's breach of contract claims.
Alabama Plating argues that HRH, an agent of USF & G and other insurers through whom it had purchased insurance coverage since the 1950's, was negligent in failing to provide notice to USF & G and Alabama Plating's other insurers after Alabama Plating informed HRH in February and October 1985 of potential environmental liability. Alabama Plating argues that HRH was its "risk manager," that HRH breached a duty HRH owed to Alabama Plating by failing to give notice to Alabama Plating's insurers, and that Alabama Plating has suffered damage as a proximate result.
Alabama Plating also argues that HRH fraudulently misrepresented to it that Alabama Plating had no insurance coverage for environmental liability; that Alabama Plating relied to its detriment on the representation; and that it has suffered damage as a proximate result. Alabama Plating says that it failed to give notice directly to its insurers, until 1991, because it had believed HRH's representation. Alabama Plating contends that if, because of an untimely notification of a potential claim, it is unable to obtain insurance coverage from its insurers, then it should be able to recover damages from HRH.
We believe that Alabama Plating presented substantial evidence in support of these claims. Moreover, we find that material issues of fact remain, such as the nature of the relationship between Alabama Plating and HRH and the relationship between HRH and Alabama Plating's insurers. Accordingly, *339 the trial court erred in entering the summary judgment for HRH on these claims.
Both Safety and Ranger sold Alabama Plating commercial umbrella (excess) liability insurance policies. Ranger sold Alabama Plating one policy covering December 1978 to December 1979; Safety sold Alabama Plating three policies covering February 1983 to February 1986. Coverage under such policies is invoked when the limits of liability have been reached in the underlying primary insurance, which, in this case, is USF & G's CGL policies.
Alabama Plating asserted both breach of contract and bad faith claims against Safety and Ranger. In response, Safety and Ranger assert many of the same reasons used by USF & G as defenses for not providing insurance coverage to Alabama Plating. For the reasons discussed above, we find no merit to those defenses. However, we note that questions of fact remain as to whether any of the occurrences upon which Alabama Plating's claims are based occurred during the periods covered by Safety and Ranger's policies. In any event, the trial court erred in entering the summary judgments on the breach of contract claims against Safety and Ranger.
The trial court entered summary judgments for the defendants on all of Alabama Plating's claims. We reverse the summary judgments as they relate to the claims specifically discussed above. With regard to the claims not discussed above, such as bad faith failure to provide insurance coverage, failure to warn, breach of warranty, tortious interference with contract, estoppel, and breach of fiduciary duty, we conclude that the trial court properly entered the summary judgments, and as to those claims the summary judgments are affirmed.
APPLICATION GRANTED; OPINION OF AUGUST 30, 1996, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HOOPER, C.J., and ALMON, SHORES, HOUSTON, INGRAM, COOK, and BUTTS, JJ., concur.
MADDOX, J., concurs in part and dissents in part.
MADDOX, Justice (concurring in part and dissenting in part).
I think the intent of the pollution exclusion clause was expressed in Molton, Allen & Williams, Inc. v. St. Paul Fire & Marine Ins. Co., 347 So. 2d 95 (Ala.1977). I believe "sudden and accidental" means "immediate and accidental," not "unexpected and unintended." Therefore, I respectfully dissent from the holding that the pollution exclusion clause does not apply in regard to Alabama Plating's breach of contract claim.
To the extent that the majority reverses the summary judgments, I dissent; to the extent that it affirms the summary judgments, I concur.
PER CURIAM.
APPLICATION OVERRULED.
HOOPER, C.J., and ALMON, SHORES, COOK, and BUTTS, JJ., concur.
HOUSTON, J., concurs specially.
MADDOX, J., dissents.
HOUSTON, Justice (concurring specially).
If it were not for the estoppel issue in this case, I would join Justice Maddox's dissent.
When I concurred with the opinion released in this case on August 30, 1996, I was convinced that Alabama Plating had failed to offer evidence to support its contentions underlying its estoppel theory. Before the release of the opinion on application for rehearing (December 20, 1996), I was persuaded that sufficient evidence had been presented as to the meaning of this pollution exclusion to make estoppel an issue that should not have been resolved by the summary judgment entered by the trial court. Therefore, on December 20, 1996, I should have concurred *340 in the result on the application for rehearing.
MADDOX, Justice (dissenting).
On original deliverance, this Court, in a 7-1 decision released on August 30, 1996, affirmed summary judgments in favor of the insurers and held that the words "sudden and accidental" in a pollution exclusion clause were not ambiguous and excluded coverage for gradual pollution by the insured. On December 20, 1996, this Court withdrew its previous opinion and issued an opinion in which the Court held that the word "sudden" was ambiguous and reversed the trial court's summary judgments in favor of the insurers. I filed a short dissent when that second opinion was released, but since then I have done substantial additional research on the issue, and I am now more convinced than ever that the first opinion issued by this Court was correct and that the logic and reasoning in the second opinion are seriously flawed.
Although a counting of jurisdictions is not helpful, I believe that, contrary to what the majority finds, a majority of courts that have looked at the issue have held that a pollution exclusion clause that excludes from its preclusive effect occurrences that are "sudden and accidental" does not exclude from its preclusive effect occurrences that are "gradual." One of the leading cases is from our neighboring State of Florida. See Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Corp., 636 So. 2d 700 (Fla.1993), where the Supreme Court of Florida said that "to construe sudden also to mean unintended and unexpected would render the words sudden and accidental entirely redundant." See, also, Ray Indus., Inc. v. Liberty Mut. Ins. Co., 974 F.2d 754, 768-69 (6th Cir.1992); Ogden Corp. v. Travelers Indem. Co., 924 F.2d 39 (2d Cir.1991) (New York law); Grant-Southern Iron & Metal Co. v. CNA Ins. Co., 905 F.2d 954 (6th Cir.1990) (Michigan law); FL Aerospace v. Aetna Casualty & Sur. Co., 897 F.2d 214 (6th Cir.), cert. denied, 498 U.S. 911, 111 S. Ct. 284, 112 L. Ed. 2d 238 (1990); Great Lakes Container Corp. v. National Union Fire Ins. Co., 727 F.2d 30 (1st Cir. 1984); Alcolac v. St. Paul Fire & Marine Ins. Co., 716 F. Supp. 1541 (D.Md.1989); Fireman's Fund Ins. Cos. v. Ex-Cell-O Corp., 702 F. Supp. 1317 (E.D.Mich.1988); EAD Metallurgical, Inc. v. Aetna Casualty & Sur. Co., 701 F. Supp. 399 (W.D.N.Y.1988), aff'd, 905 F.2d 8 (2d Cir.1990); Peerless Ins. Co. v. Strother, 765 F. Supp. 866, 871 n. 4 (E.D.N.C.1990); Hayes v. Maryland Casualty Co., 688 F. Supp. 1513 (N.D.Fla.1988); Centennial Ins. Co. v. Lumbermens Mut. Casualty Co., 677 F. Supp. 342 (E.D.Pa.1987); American Motorists Ins. Co. v. General Host Corp., 667 F. Supp. 1423 (D.Kan.1987), aff'd, 946 F.2d 1482 (10th Cir.), amended, vacated in part on rehearing en banc, 946 F.2d 1489 (10th Cir.1991); American Mut. Liab. Ins. Co. v. Neville Chem. Co., 650 F. Supp. 929 (W.D.Pa.1987); Fischer & Porter Co. v. Liberty Mut. Ins. Co., 656 F. Supp. 132 (E.D.Pa. 1986); Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co., 503 N.W.2d 793 (Minn.App. 1993); Hybud Equip. Corp. v. Sphere Drake Ins. Co., 64 Ohio St.3d 657, 597 N.E.2d 1096 (1992), cert. denied, 507 U.S. 987, 113 S. Ct. 1585, 123 L. Ed. 2d 152 (1993); Upjohn Co. v. New Hampshire Ins. Co., 438 Mich. 197, 476 N.W.2d 392 (1991).
In Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Corp, the Florida Supreme Court stated:
636 So. 2d at 704.
Because Alabama Plating's pollution was gradual, it was not "sudden and accidental." Consequently, coverage was precluded under the terms of the pollution exclusion clause, and the summary judgments in favor of the insurers should be affirmed. I respectfully dissent.
[1] Under the rule of United States Fid. & Guar. Co. v. Warwick Dev. Co., 446 So. 2d 1021 (Ala. 1984), the time of the "occurrences" under the liability insurance policies at issue is the time the property was actually injured, i.e., the time the soil and groundwater actually suffered contamination. There remain questions of fact as to the exact time of those "occurrences" and what policy years are implicated. Given the likelihood of multiple "occurrences," coverage may be at issue under many more than one of the USF & G CGL policies.
[2] Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083 (Colo.1991); Claussen v. Aetna Cas. & Sur. Co., 259 Ga. 333, 380 S.E.2d 686 (1989); Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill. 2d 90, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992); American States Ins. Co. v. Kiger, 662 N.E.2d 945 (Ind.1996); St. Paul Fire & Marine Ins. Co. v. McCormick & Baxter Creosoting Co., 324 Or. 184, 923 P.2d 1200 (1996); Greenville County v. Insurance Reserve Fund, 313 S.C. 546, 443 S.E.2d 552 (1994); Queen City Farms, Inc. v. Central Nat'l Ins. Co. of Omaha, 126 Wash. 2d 50, 882 P.2d 703 (1994); Just v. Land Reclamation, Ltd., 155 Wis.2d 737, 456 N.W.2d 570 (1990). See Morton Int'l, Inc. v. General Acc. Ins. Co. of America, 134 N.J. 1, 629 A.2d 831 (1993); Joy Technologies, Inc. v. Liberty Mut. Ins. Co., 187 W.Va. 742, 421 S.E.2d 493 (1992).
[3] Webster's Third New International Dictionary (1971) defines "sudden" as "1a: happening without previous notice or with very brief notice: coming or occurring unexpectedly: not foreseen or prepared for ... b: changing character or angle all at once ... c: come upon or met unexpectedly ... 2a: characterized by or manifesting hastiness ... b: characterized by swift action: a: made, provided, brought about, or acting in a short time ... b: executed or executing on the spur of the moment." Black's Law Dictionary (Revised 4th ed.1968) defines "sudden" as "[h]appening without previous notice or brief notice; coming or occurring unexpectedly; unforeseen; unprepared for."
[4] For example, in early 1966, Gilbert Bean, assistant secretary of Liberty Mutual Insurance Company, explained in an insurance industry technical paper that the CGL policies provided:
"`coverage for gradual BI [bodily injury] or gradual PD [property damage] resulting over a period of time from exposure to the insured's waste disposal. Examples would be gradual adverse effect of smoke, fumes, air or stream pollution, contamination of water supply or vegetation.'"
Carl A. Salisbury, Pollution Liability Insurance Coverage, the Standard-Form Pollution Exclusion, and the Insurance Industry: A Case Study in Collective Amnesia, 21 Envtl. L. 357, 366 (1991).
[5] For example, The Travelers Indemnity Company submitted to the West Virginia Department of Insurance a pollution exclusion with wording slightly different from that of the standard-form exclusion. Its exclusion would exclude coverage for pollution "expected or intended by the insured" rather than pollution that was not "sudden and accidental." Richard Reeves of The Travelers' Government Affairs Division wrote to the insurance commissioner, stating that The Travelers believed the results of the two exclusions were the same, but that the wording The Travelers had adopted was clearer in meaning than the standard-form clause. Salisbury, n. 4, at 373.
A contemporary issue of The Fire, Casualty & Surety Bulletin, published by the insurance industry to assist insurance agents and brokers in interpreting standard policy provisions, stated:
"`In one important respect, the [pollution] exclusion simply reinforces the definition of occurrence. That is, the policy states that it will not cover claims where the "damage was expected or intended" by the insured and the exclusion states, in effect that the policy will cover incidents which are sudden and accidentalunexpected and not intended.'"
Just v. Land Reclamation, Ltd., 155 Wis.2d 737, 752, 456 N.W.2d 570, 575 (1990).
[6] The Supreme Court of Georgia has recognized that the insurance industry's original position was that the pollution exclusion clause was not intended to reduce coverage:
"[T]he interpretation of the policy advanced by Claussen is not contrary to the interpretation Aetna gave the clause when it was adopted. Documents presented by the Insurance Rating Board (which represents the industry and on which Aetna participated) to the Insurance Commissioner when the `pollution exclusion' was first adopted suggest that the clause was intended to exclude only intentional polluters. The Insurance Rating Board represented [that] `the impact of the [pollution exclusion clause] on the vast majority of risks would be no change.'"
Claussen v. Aetna Cas. & Sur. Co., 259 Ga. 333, 337, 380 S.E.2d 686, 689 (1989).
[7] Julius Hyman & Co. v. American Motorists Ins. Co., 136 F. Supp. 830 (D.Colo.1955) (holding that a leak in a boiler pipe that occurred because a gradual weakening in the pipe over time caused the pipe to split was the result of a "sudden and accidental" cracking of the pipe); New England Gas & Elec. Ass'n v. Ocean Acc. & Guar. Co., 330 Mass. 640, 116 N.E.2d 671 (1953) (holding that a crack in a turbine spindle was "sudden and accidental," "sudden" meaning unexpected and unforeseen); City of Detroit Lakes v. Travelers Indem. Co., 201 Minn. 26, 275 N.W. 371 (1937) (holding that a rupture in a power plant steam engine that occurred because of a gradually ensuing deterioration was "sudden and accidental"); Anderson & Middleton Lumber Co. v. Lumbermen's Mut. Cas. Co., 53 Wash. 2d 404, 333 P.2d 938 (1959) (holding that a gradual cracking of a bandsaw wheel was "sudden and accidental"). See Couch on Insurance 2d § 42:396 (1984) ("When coverage is limited to a sudden `breaking' of machinery the word `sudden' should be given its primary meaning as happening without previous notice, or as something coming or occurring unexpectedly, as unforeseen or unprepared for").
[8] "Richard Schmalz, ... a key member of the drafting committee that formulated the pollution exclusion, testified in a deposition that the drafters of the exclusion used `language that at least some people in the insurance business had seen before.' Moreover, they actually looked to the `sudden and accidental' language in boiler and machinery policies for the `analogous concept.'" Salisbury, at 382.
[9] It is the migration of pollutants or contaminants from Alabama Plating's effluent containment ponds to the soil and groundwater below that is the relevant "discharge, dispersal, release, or escape," not Alabama Plating's placement of wastes into the containment ponds. The terms "discharge," "dispersal," "release," and "escape" are not defined in the policies, but their dictionary definitions and popular meanings "have in common the notion of an escape or release from confinement, or the dispersal from a fixed place. They apply well to the migration of wastes from the pits into the groundwater. They do not apply well to disposal into the pits." Queen City Farms, Inc. v. Central Nat'l Ins. Co. of Omaha, 126 Wash. 2d 50, 78, 882 P.2d 703, 719 (1994).
[10] Because so few state supreme courts have addressed this specific issue, we also look to federal court decisions which have interpreted state law. MAPCO Alaska Petroleum, Inc. v. Central Nat'l Ins. Co. of Omaha, 795 F. Supp. 941 (D.Alaska 1991) (applying Alaska law); AIU Ins. Co. v. Superior Ct. of Santa Clara, 51 Cal. 3d 807, 799 P.2d 1253, 274 Cal. Rptr. 820 (1990); Metro Wastewater Reclamation Dist. v. Continental Cas. Co., 834 F. Supp. 1254 (D.Colo.1993) (applying Colorado law); New Castle County v. Hartford Acc. & Indem. Co., 933 F.2d 1162 (3d Cir. 1991) (applying Delaware law); United States v. Pepper's Steel & Alloys, Inc., 823 F. Supp. 1574 (S.D.Fla.1993), aff'd in part, rev'd in part, 87 F.3d 1329 (11th Cir.1996) (applying Florida law); Atlantic Wood Indus., Inc. v. Lumbermen's Underwriting Alliance, 196 Ga.App. 503, 396 S.E.2d 541 (1990), cert. denied, 498 U.S. 1085, 111 S. Ct. 958, 112 L. Ed. 2d 1046 (1991); Aetna Cas. & Sur. Co. v. Pintlar Corp., 948 F.2d 1507 (9th Cir. 1991) (applying Idaho law); Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill. 2d 90, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992); Daniels v. Cincinnati Ins. Co., 800 F. Supp. 753 (S.D.Ind.1992), reconsideration granted and vacated in part on other grounds, 148 F.R.D. 257 (S.D.Ind.1993) (applying Indiana law); A.Y. McDonald Indus., Inc. v. Insurance Co. of N. America, 475 N.W.2d 607 (Iowa 1991); Bausch & Lomb, Inc. v. Utica Mut. Ins. Co., 330 Md. 758, 625 A.2d 1021 (1993); Hazen Paper Co. v. United States Fid. & Guar. Co., 407 Mass. 689, 555 N.E.2d 576 (1990); United States Aviex Co. v. Travelers Ins. Co., 125 Mich.App. 579, 336 N.W.2d 838 (1983); Minnesota Mining & Mfg. Co. v. Travelers Indem. Co., 457 N.W.2d 175 (Minn.1990); Independent Petrochem. Corp. v. Aetna Cas. & Sur. Co., 944 F.2d 940 (D.C.Cir.1991) (applying Missouri law), cert. denied, 503 U.S. 1011, 112 S. Ct. 1777, 118 L. Ed. 2d 435 (1992); Coakley v. Maine Bonding & Cas. Co., 136 N.H. 402, 618 A.2d 777 (1992); Morton Int'l, Inc. v. General Acc. Ins. Co. of America, 134 N.J. 1, 629 A.2d 831 (1993), cert. denied, 512 U.S. 1245, 114 S. Ct. 2764, 129 L. Ed. 2d 878, reh'g denied, 512 U.S. 1277, 115 S. Ct. 25, 129 L. Ed. 2d 923 (1994); Avondale Indus., Inc. v. Travelers Indem. Co., 887 F.2d 1200 (2d Cir.1989), cert. denied, 496 U.S. 906, 110 S. Ct. 2588, 110 L. Ed. 2d 269 (1990) (applying New York law); Don Clark, Inc. v. United States Fid. & Guar. Co., 145 Misc.2d 218, 545 N.Y.S.2d 968 (Sup.Ct.1989); C.D. Spangler Constr. Co. v. Industrial Crankshaft & Eng'g Co., 326 N.C. 133, 388 S.E.2d 557 (1990); Anderson Dev. Co. v. Travelers Indemnity Co., 49 F.3d 1128 (6th Cir. 1995) (applying Ohio law); National Indem. Co. v. United States Pollution Control, Inc., 717 F. Supp. 765 (W.D.Okla.1989) (applying Oklahoma law); St. Paul Fire & Marine Ins. Co. v. McCormick & Baxter Creosoting Co., 126 Or.App. 689, 870 P.2d 260 (1994); Gerrish Corp. v. Universal Underwriters Ins. Co., 754 F. Supp. 358 (D.Vt.1990), aff'd, 947 F.2d 1023 (2d Cir.1991), cert. denied, 504 U.S. 973, 112 S. Ct. 2939, 119 L. Ed. 2d 564 (1992) (applying Vermont law); Boeing Co. v. Aetna Cas. & Sur. Co., 113 Wash. 2d 869, 784 P.2d 507 (1990); Maryland Cas. Co. v. Wausau Chem. Corp., 809 F. Supp. 680 (W.D.Wis. 1992) (applying Wisconsin law).
[11] Because so few state supreme courts have addressed this specific issue, we also look to federal court decisions that have interpreted state law. MAPCO Alaska Petroleum, Inc. v. Central Nat'l Ins. Co. of Omaha, 795 F. Supp. 941 (D.Alaska 1991) (applying Alaska law); Intel Corp. v. Hartford Acc. & Indem. Co, 952 F.2d 1551 (9th Cir.1991) (applying California law); New Castle County v. Continental Cas. Co., 725 F. Supp. 800 (D.Del.1989) (applying Delaware law), aff'd in part, rev'd in part, and remanded sub nom. New Castle County v. Hartford Acc. & Indem. Ins. Co., 933 F.2d 1162 (3d Cir.1991); Claussen v. Aetna Cas. & Sur. Co., 754 F. Supp. 1576 (S.D.Ga.1990) (applying Florida law); South Carolina Ins. Co. v. Coody, 813 F. Supp. 1570 (M.D.Ga.1993) (applying Georgia law); La Salle Nat'l Trust, N.A. v. Schaffner, 818 F. Supp. 1161 (N.D.Ill.1993) (applying Illinois law); Upjohn Co. v. New Hampshire Ins. Co., 178 Mich. App. 706, 444 N.W.2d 813 (1989), rev'd on other grounds, 438 Mich. 197, 476 N.W.2d 392 (1991); Northern States Power Co. v. Fid. & Cas. Co., 504 N.W.2d 240 (Minn.Ct.App.1993), aff'd, 523 N.W.2d 657 (Minn.1994); United States v. Conservation Chem. Co., 653 F. Supp. 152 (W.D.Mo. 1986) (applying Missouri law); New Hampshire Ball Bearings Co. v. Aetna Cas. Co., 848 F. Supp. 1082 (D.N.H.1994), rev'd on other grounds, 43 F.3d 749 (1st Cir.1995); Don Clark, Inc. v. United States Fid. & Guar. Co., 145 Misc.2d 218, 545 N.Y.S.2d 968 (N.Y.Sup.1989); North Pac. Ins. Co. v. United Chrome Prods., Inc., 122 Or.App. 77, 857 P.2d 158, rev. denied, 318 Or. 171, 867 P.2d 1385 (1993); Chemetron Investments, Inc. v. Fidelity & Cas. Co. of New York, 886 F. Supp. 1194 (W.D.Pa.1994) (applying Pennsylvania law); Gerrish Corp. v. Universal Underwriters Ins. Co., 754 F. Supp. 358 (D.Vt.1990) (applying Vermont law), aff'd, 947 F.2d 1023 (2d Cir.1991), cert. denied, 504 U.S. 973, 112 S. Ct. 2939, 119 L. Ed. 2d 564 (1992); Patz v. St. Paul Fire & Marine Ins. Co., 817 F. Supp. 781 (E.D.Wis.1993), aff'd, 15 F.3d 699 (7th Cir.1994) (applying Wisconsin law). | February 21, 1997 |
e816d98b-dede-467b-b596-9e8a23684fde | Gordon v. Mobile Greyhound Park | 592 So. 2d 208 | 1901631 | Alabama | Alabama Supreme Court | 592 So. 2d 208 (1991)
Johnnie Mae GORDON, et al.
v.
MOBILE GREYHOUND PARK.
1901631.
Supreme Court of Alabama.
December 20, 1991.
Michael G. Huey and D.A. Bass-Frazier, Mobile, for appellants.
*209 Alton R. Brown, Jr., William H. Sisson and Charles H. Hillman of Brown, Hudgens, P.C., Mobile, for appellee.
HOUSTON, Justice.
The plaintiffs in this case sued Mobile Greyhound Park ("the Park"), alleging that they were injured when the bus in which they were riding was struck by a pickup truck at the intersection of Theodore-Dawes Road and the entrance to the Park. The plaintiffs sought to recover damages under a general negligence theory, arguing that their alleged injuries were the proximate result of the negligence of a Park employee who was directing traffic at the intersection at the time of the collision. The trial court entered a summary judgment for the Park, and the plaintiffs appealed. We affirm.
The summary judgment in this case was proper if there was no genuine issue of material fact and the Park was entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. The burden was on the Park to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. If that showing was made, then the burden shifted to the plaintiffs to present evidence creating a genuine issue of material fact, so as to void the entry of a judgment against them. In determining whether there was a genuine issue of material fact, we must view the evidence in the light most favorable to the plaintiffs and we must resolve all reasonable doubts against the Park. Aetna Life & Casualty Co. v. Atlantic & Gulf Stevedores, 590 So. 2d 205 (Ala.1991). Because this case was pending on June 11, 1987, the applicable standard of review is the "scintilla of evidence" rule. Ala.Code 1975, § 12-21-12.
The evidence, viewed in the light most favorable to the plaintiffs, shows the following: At the time of the collision, Maurice Lofton, a security officer employed by the Park, was in charge of controlling the flow of traffic at the intersection of Theodore-Dawes Road and the entrance to the Park. The entrance to the Park has one incoming and two outgoing lanes for traffic and forms a "T" when it intersects with Theodore-Dawes Road. Lofton's job was to control the flow of traffic at the intersection during the Park's peak traffic hours by manually operating the three-stage traffic signal (red, yellow, green) located at the intersection. Lofton did this by pushing a button on a hand-controlled device that was attached to a long cord connected to a control box. Immediately before the collision, Lofton had changed the signal to green for the vehicles exiting the Park and, after looking in both directions on Theodore-Dawes Road to make sure that no vehicle was about to run the red light, had signaled with his hand for the vehicles exiting the Park to enter the intersection. After approximately a minute, long enough for several automobiles and two other buses to exit the Park, the bus in which the plaintiffs were riding moved into the intersection from the right outgoing lane to make a left turn onto Theodore-Dawes Road and was immediately struck by the pickup truck in the area of the left front wheel. Lofton, who had stepped back from the intersection approximately the length of two automobiles and stopped the traffic in the left outgoing lane to enable the bus to make a wide left turn onto Theodore-Dawes Road, never saw the pickup truck before the collision. The driver of the bus in which the plaintiffs were riding also never saw the pickup truck before the collision, and he did not rely on any hand signal from Lofton before he drove the bus into the intersection. The driver of the bus relied, instead, on the traffic signal, which was green for his lane of outgoing traffic. The traffic signal was operating properly at the time of the collision; therefore, when the traffic signal for the Park's outgoing lanes of traffic was green, the signal for the lane in which the pickup truck was travelling was red. An eyewitness testified that the pickup truck appeared suddenly. The driver of the pickup truck, who was intoxicated, never applied her brakes before the collision.
After diligently reviewing the record, we can find no evidence tending to *210 show that the plaintiffs were injured as a result of negligence on the part of the Park. To the contrary, the undisputed evidence shows that the collision was the direct result of the actions of a drunken driver, who drove into the intersection apparently oblivious to the red traffic signal. Pursuant to Ala.Code 1975, § 32-5A-31, the driver of every vehicle, with certain exceptions not applicable here, is charged with the legal responsibility of obeying traffic signals, such as the one at the intersection of Theodore-Dawes Road and the entrance to the Park. Consequently, to hold as the plaintiffs suggest (i.e., that Lofton's failure to see the oncoming pickup truck and his failure to take steps to warn the bus driver of the peril was evidence of negligence), we would have to hold that Lofton was under a legal duty to anticipate that someone travelling on Theodore-Dawes Road toward the intersection would violate the law by ignoring the red traffic signal. This we will not do. Although we agree with the plaintiff that a summary judgment is rarely proper in a negligence case, we also note that a summary judgment may be proper in a negligence case under certain circumstances. Morrison v. City of Ozark, 575 So. 2d 1110 (Ala.1991). As the evidence set out above shows, the summary judgment in this case was proper.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and STEAGALL, JJ., concur. | December 20, 1991 |
c10ed8d3-d4a3-4cb5-98bb-f8ff281ef087 | AMERICAN STATES INS. v. CF Halstead Developers, Inc. | 588 So. 2d 870 | 1901161 | Alabama | Alabama Supreme Court | 588 So. 2d 870 (1991)
AMERICAN STATES INSURANCE COMPANY and American Economy Insurance Company
v.
C.F. HALSTEAD DEVELOPERS, INC., a/k/a Halstead Developers, Inc., et al.
1901161.
Supreme Court of Alabama.
October 11, 1991.
*871 Robert S. Lamar, Jr. of Lamar, Nelson & Miller, P.C., Birmingham, for appellants.
John A. Henig, Jr. and James F. Vickrey, Jr. of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellees.
SHORES, Justice.
This is an appeal from a judgment based on a jury verdict in favor of C.F. Halstead Developers, Inc. ("Halstead"), against American States Insurance Company and American Economy Insurance Company (together hereinafter referred to as "ASIC"). This judgment was made final pursuant to Rule 54(b), A.R.Civ.P. We affirm.
This declaratory action involves two liability insurance policies issued to Halstead by ASIC. ASIC sought to rescind the insurance policies on the ground that Halstead had misrepresented facts about its business activities in completing the application forms for the policy.
It is undisputed that Leon Moore, owner of Insurance & Bonds, Inc., the agency that issued the insurance policies, contacted James D. Tatum, principal stockholder and chief executive officer of Halstead, regarding liability insurance coverage for a construction project, Eastwood Festival Centre ("EFC"), which was to be built on U.S. Highway 78 in Birmingham, Alabama. Halstead was employed as general contractor on other projects when Moore approached him.
Moore completed several application forms for Halstead with regard to insurance coverage for the EFC project. A policy was issued and Halstead paid the premium of $187,915.26 for insurance coverage for the period from July 1, 1987, to June 30, 1988. Before and after the application forms were completed, Moore met with Lee Keeler, ASIC's commercial underwriter, and Mildred Osborne, ASIC's underwriting manager in the commercial department, both of whom were in the Montgomery office, about "submitting a risk to [ASIC]... to write insurance on C.F. Halstead Developers."
Halstead and Tatum formed Eastwood Festival Associates ("EFA"), a partnership. *872 By August 27, 1987, Halstead had sold its interest in EFA to the "Paragon Group"; Paragon then employed Halstead as the "construction manager" for the EFC project. The site work contractor for the EFC project was Wright Brothers Construction ("WBC"), which hired the blasting contractor, Apache Drilling and Blasting ("ADB"). Neither of these contractors had a contractual relationship with Halstead; in addition, Halstead had no control over any part of ADB's blasting operation. Halstead served in an advisory capacity, and Paragon made the final decisions.
On March 14, 1988, there was a landslide at the EFC construction site, resulting in numerous claims for damages.
ASIC filed suit in April 1989, alleging that Halstead had failed to "disclose that [Halstead's] ... work and operations in connection with EFC would include blastings, excavation and earth movement in a heavily populated and highly urbanized area." ASIC demanded that the contract of insurance be declared void because, it argues, Halstead allegedly made material misrepresentations on the insurance application forms with regard to two questions: "Do any operations include blasting or utilize or store explosive material?" and "Do any operations include evacuation [excavation], tunneling, underground work, or earth moving?" Halstead answered "no" to both of these questions and ASIC claims that, because of these allegedly false answers, the insurance contracts should be declared void. Moore testified that these questions are used to determine whether the insured regularly performs blasting operations or excavation work.
Halstead alleges that the questions are ambiguous and that Halstead interpreted the questions to mean: "Do any of Halstead's operations include blasting or excavation?" Halstead claims that, based on that reading of the questions, its answers were true. Halstead was not involved in any blasting or excavation work, and Halstead did not enter into any contracts with anyone to perform this kind of work.
Ambiguous language in an insurance contract must be construed liberally in favor of the insured and strictly against the insurer. National Union Fire Ins. Co. v. City of Leeds, 530 So. 2d 205, 207 (Ala. 1988).
The following written interrogatory was submitted to the jury:
The jury answered "no" to this question. ASIC moved for a new trial and the trial court denied the motion.
"When the evidence is in dispute, the general rule is that a jury verdict is entitled to a strong presumption of correctness." Northeast Alabama Regional Medical Center v. Owens, 584 So. 2d 1360 (Ala. 1991).
Campbell v. Burns, 512 So. 2d 1341, 1343 (Ala.1987). Furthermore, "this presumption [of correctness] is strengthened when the trial court denies a motion for new trial." Alfa Mut. Ins. Co. v. Northington, 561 So. 2d 1041, 1048 (Ala.1990).
In Campbell v. Burns, this Court stated that it
ASIC claims that Moore was an independent insurance agent and that he had no authority to issue insurance policies on behalf of ASIC on his own initiative. Halstead contends that Moore was a general agent of ASIC.
An agent, by definition, is a "person authorized by another [principal] to act for or *873 in place of him." Black's Law Dictionary 63 (6th ed. 1990). "The question of the existence and scope of a principal-agent relationship is normally [one] of fact to be determined by the jury." Calvert v. Casualty Reciprocal Exchange Ins. Co., 523 So. 2d 361, 362 (Ala.1988).
This Court has described a "general agent" as one with "full power to bind the insurer to the agent's contract of insurance or to issue policies or to accept risks" and one who "`stands in the shoes' of the principal for the purpose of transacting business entrusted to him." Washington National Ins. Co. v. Strickland, 491 So. 2d 872, 874 (Ala.1985). This Court also stated that the jury in that case could have properly found that the insurer was a "general agent" and was liable for the agent's representations based on the following evidence: the insurance agent was a "licensed agent" of the insurer as indicated by "[c]opies of [his] ... Alabama Department of Insurance license and license application" which designated "agent" on the form; in addition, the insurer "provided [him] with applications, sales literature, and instructions." Id. at 876.
In the present case, ASIC had executed an "agency contract" agreement with Moore, giving him authority to bind ASIC. ASIC annually renewed Moore's Alabama Department of Insurance license. ASIC required Moore to use its forms, instructions, and code books. ASIC billed Halstead through Moore, who delivered the insurance policies and received the premiums. Furthermore, Moore testified that he was authorized by his contract with ASIC to solicit Halstead's business and that he is still an agent for ASIC.
The general rule is that "[a]n insurance company is bound by knowledge of, or notice to, its agent within the general scope of his authority." 44 C.J.S. Insurance § 154 at 827 (1945).
Reliance Ins. Co. v. Substation Products Corp., 404 So. 2d 598, 604 (Ala.1981).
We agree with the jury's finding that the insurance policies in question were valid and in effect on March 14, 1988. The facts indicate that when Moore negotiated the insurance policies to Halstead he was acting as ASIC's agent; thus, Moore's actions are imputed to ASIC and any negligence on Moore's part in the application process is ASIC's negligence. Furthermore, ASIC's allegation that Halstead made material misrepresentations on the application forms was never proven at trial.
ASIC also claims that the trial court committed prejudicial error in refusing to give to the jury its requested charges number 6, 7, 8, 9, and 10.
The trial court's refusal of ASIC's requested written jury charges was not preserved for appellate review. A party waives possible error as to the trial court's oral jury charge by failing to specifically object and to state the grounds for the objection. Ala.R.Civ.P. 51. In Owens, supra, this Court stated:
"In order for a party to preserve for review an error in the [trial] court's failing to give a certain jury instruction, it must make a timely objection and must state the grounds with sufficient clarity and specificity to call the error to the court's attention. Ala.R.Civ.P. 51; Coleman v. Taber, 572 So. 2d 399 (Ala.1990); McElmurry v. Uniroyal, Inc., 531 So. 2d 859 (Ala.1988)...."
584 So. 2d at 1364.
In this case, ASIC made a similar general objection at the end of the court's oral jury charges. In addition, the following colloquy took place:
Because ASIC did not state with sufficient clarity and specificity its objections to the trial court's failure to give the requested jury charges, we can not reverse for this alleged error. Ala.R.Civ.P. 51.
ASIC also claims that the trial court committed prejudicial error in refusing to permit a witness, Mildred Osborne, to testify as to whether she would have issued the policy to Halstead if she had known that Halstead was a "general contractor."
We find that the trial court properly sustained Halstead's objection to this testimony. Osborne lacked the authority to answer these questions or to approve "the property aspect" of the package of policies at issue. Keeler testified that no one in the Montgomery office had the power to issue the policy to Halstead. In addition, Osborne stated that she did not see the insurance applications until after the policies were issued. Furthermore, the source of Osborne's information was ASIC's own agent, Leon Moore.
We hold, therefore, that the Jefferson Circuit Court correctly decided that the insurance contracts were not "due to be declared null, void and unenforceable."
Because of our holding above, we need not address the issues of fraud and proximate causation.
For the foregoing reasons, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, HOUSTON and INGRAM, JJ., concur. | October 11, 1991 |
0238e43e-6b06-49e9-8d53-f083a79097f5 | Kelsoe v. International Wood Products | 588 So. 2d 877 | 1900904 | Alabama | Alabama Supreme Court | 588 So. 2d 877 (1991)
Carol J. KELSOE
v.
INTERNATIONAL WOOD PRODUCTS, INC., d/b/a National Wood Products, Inc.
1900904.
Supreme Court of Alabama.
October 18, 1991.
Edward P. Turner, Jr. and E. Tatum Turner of Turner, Onderdonk, Kimbrough & Howell, P.A., Chatom, for appellant.
John W. Sharbrough of Ezell & Sharbrough, Mobile, for appellee.
HOUSTON, Justice.
The sole issue presented in this case is whether the trial court erred in directing a verdict for International Wood Products, Inc., d/b/a National Wood Products, Inc. ("International Wood"), on Carol J. Kelsoe's claim for breach of contract.[1] We affirm.
Our standard of review requires us to view the evidence in the light most favorable to Kelsoe. See Alabama Power Co. v. Williams, 570 So. 2d 589 (Ala.1990). Viewed in that light, the evidence shows that Kelsoe's employer, International Wood, through Rene Hernandez, Sr., one of the corporation's directors and its major stockholder, promised Kelsoe that it would issue five percent of the corporation's stock (500 shares) to her at par value ($.10 per share). Kelsoe's undisputed trial testimony reflects the nature of that promise:
"Q. Ms. Kelsoe, you were compensated for your work at International Wood, weren't you?
"Q. Did you think you were compensated well enough for the work you did?
"Q. My question was did you think that you were adequately compensated for the work you did?
"Q. Ms. Kelsoe, you never entered an agreement with Mr. Hernandez; `Mr. Hernandez, if I work long and hard and do this' and then he said, *878 `I'll give you five percent of the corporation,' did you?
"Q. You never had that kind of a bargain, did you?
"Q. And all the time, all the work you did was part of your normal job?
"Q. And then [on] March 8th, 1988, you were getting a little reward that you didn't really expect, weren't you?
"Q. You didn't expect to get that five percent, but it was nice, wasn't it?
"Q. And you just kept right on from March 8th doing your work, didn't you?
"Q. And you didn'tYour testimony earlier when I talked to you was [that] you didn't do anything different thereafter [from what you would] have done anyway?
"Q. Except [with respect to] the natural increase in workload?
"Q. And you didn't stay on [at] International Wood Products, you didn't commit yourself to Mr. Hernandez, `I'll stay on forever,' did you? Or, `I'll stay on for five years in return for this?' You left yourself free to quit at any time, didn't you?
"Q. You had no other agreement with Rene Hernandez, did you?
"Q. He just up one day and surprised you and said here is five percent of this corporation?
"Q. And then he never gave it to you, did he? He never put it in your hand, did he?
"Q. And he never gave you a signed, endorsed stock certificate, did he?
The trial court directed a verdict for International Wood on the ground that there was no consideration for International Wood's promise to issue the stock to Kelsoe. It is a well-settled general rule that consideration is an essential element of, and is necessary to the enforceability or validity of, a contract. 17A Am.Jur.2d Contracts § 117 (1991). It is generally stated that in order to constitute consideration for a promise, there must have been an act, a forbearance, a detriment, or a destruction of a legal right, or a return promise, bargained for and given in exchange for the promise. Smoyer v. Birmingham Area Chamber of Commerce, 517 So. 2d 585 (Ala.1987); 17A Am.Jur.2d, supra, § 113. The undisputed evidence here shows that International Wood's promise to issue the stock to Kelsoe was gratuitous in nature and was prompted only by Kelsoe's past favorable job performance. As such, International Wood's promise was without consideration and created no legally enforceable contract right. 17A Am.Jur.2d, supra, § 162; Kelley v. Spencer, 213 Ala. 612, 105 So. 802 (1925); see, also, 1 Williston on Contracts § 142 (3d ed. 1957); Corbin on Contracts § 114 (1963); J. Calamari and J. Perillo, Contracts § 4-2 (2d ed. 1977).
For the foregoing reasons, the directed verdict for International Wood was proper.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] A second issue raised by Kelsoe concerned whether the trial court had erred to reversal in instructing the jury that a certain document in evidence was not "legal and binding." However, because Kelsoe did not object to this instruction until after the jury had returned its verdict, we cannot reach this issue. Rule 51, Ala.R.Civ.P. | October 18, 1991 |
0ca36180-585d-4454-99ac-5f45d119581b | Tittle v. Custard Ins. Adjusters | 590 So. 2d 880 | 1901320 | Alabama | Alabama Supreme Court | 590 So. 2d 880 (1991)
Judy TITTLE
v.
CUSTARD INSURANCE ADJUSTERS.
1901320.
Supreme Court of Alabama.
November 1, 1991.
John F. Kizer, Jr. and Jeffrey W. Bennitt of Kizer & Bennitt, Birmingham, for appellant.
Thomas R. Elliott, Jr. of London, Yancey & Elliott, Birmingham, for appellee.
INGRAM, Justice.
The plaintiff, Judy Tittle, brought an action against the defendant, Custard Insurance Adjusters, Crawford Risk Management Services, and Pamela Weems, a rehabilitation consultant, alleging the negligent and wanton undertaking of rehabilitation services, fraudulent misrepresentation, tortious interference with the physician-patient relationship, fraud, invasion of privacy, and outrageous conduct.[1] Specifically, Tittle contends that Custard undertook to ensure that certain rehabilitation services were provided to her following an on-the-job injury and asserts that Custard (1) refused to permit certain treatment at the Brookwood Pain Clinic, (2) refused to pay for surgery scheduled by one of Tittle's treating physicians, and (3) on one occasion accompanied Tittle to her doctor's office and acted in a manner calculated to embarrass and humiliate Tittle. Custard denied the allegations and moved for summary judgment. The trial court granted Custard's *881 motion and directed that its order be certified as final pursuant to Rule 54(b), A.R.Civ.P.
The facts, in pertinent part, are as follows: Tittle sustained a work-related injury on May 1, 1987, involving her knees, right ankle, left hip, and back. Casualty Reciprocal Exchange ("Casualty") is the workmen's compensation carrier. Casualty hired Custard to act on its behalf in processing medical and hospital bills and in submitting status reports. Casualty also retained Crawford to supervise the medical management of Tittle. Crawford consists of qualified medical experts who evaluate and establish a continuing relationship with a workmen's compensation claimant. Pamela Weems is an employee of Crawford. Crawford's role, through its representative, Pamela Weems, was to accompany Tittle to her physician's appointments, to monitor appropriate treatment regarding her injury, and, on occasion, to recommend treatment or consultation. Crawford and Custard are adjusting companies performing separate duties on behalf of Casualty regarding Tittle's injury. Crawford would report to Custard, who would then report directly to Casualty.
Ala.Code 1975, § 25-5-52, sets out the exclusivity provision of the Workmen's Compensation Act. That section reads as follows:
However, this Court has stated that the exclusivity provisions of the Act do not prohibit an action for intentional tortious conduct, i.e., intentional fraud and outrageous conduct. Lowman v. Piedmont Executive Shirt Manufacturing Co., 547 So. 2d 90 (Ala.1989). "[T]he Act should not be an impervious barrier, insulating a wrongdoer from the payment of just and fair damages for intentional tortious acts only very tenuously related to workplace accidents." Lowman, supra, at 94, citing Carpentino v. Transport Ins. Co., 609 F. Supp. 556 (D.C.Conn.1985). Nevertheless, in order to ensure against borderline or frivolous claims, Tittle must meet a higher burden or make a stronger showing than that required by the "substantial evidence rule" as it applies to issues in regard to tort claims generally. Lowman, supra. In order for her claim to go to the jury, Tittle must present evidence that, if accepted and believed by the jury, would qualify as clear and convincing proof of the claim. Lowman, supra.
Therefore, the question before this court is whether Tittle met her burden of proof. In other words, did she present clear and convincing evidence of the alleged claims against Custard?
We find that, in view of the totality of the circumstances, Tittle has not presented clear and convincing evidence against Custard to be entitled to have her claims presented to a jury. As stated in Lowman, supra, at 95, "in carving out this exception for allowing intentional tort claims ..., we are constrained, in accommodation to the exclusivity provisions of the Act, to rule out all questionable claims." Here, Tittle's contact was with Crawford, through its representative, Weems. In fact, Tittle had no face-to-face contact with Custard. Tittle presented no evidence of any substantial delays in payments of her medical bills caused by any tortious conduct on Custard's part. Rather, the evidence shows that Custard forwarded her medical bills to Casualty for payment and that any delay occurred only as a result of the verification process, or because Casualty failed to pay them promptly. Additionally, the record reveals that Custard even wrote to Casualty on several occasions when it became aware that a bill had not been paid.
Suffice it to say that Tittle did not meet her burden of proof in order to have her claims submitted to the jury and the trial *882 court did not err in entering a summary judgment in favor of Custard. Tittle simply did not present any evidence that Custard committed any intentional tort against her that would entitle her to recover. At most, we find that Tittle's complaint was for "insults, indignities, threats, annoyances, petty oppression or other trivialities," none of which entitles her to a recovery. See Continental Casualty Ins. Co. v. McDonald, 567 So. 2d 1208 (Ala.1990).
The judgment of the trial court in this case is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] The trial court entered a partial summary judgment for both Crawford and Weems as to all claims except the one based on tort of outrage. That claim remains pending as to these two defendants. | November 1, 1991 |
be0f9b10-0e96-4d57-9f82-68fd89086b7e | Ex Parte Mathis | 594 So. 2d 692 | 1901266 | Alabama | Alabama Supreme Court | 594 So. 2d 692 (1991)
Ex parte Brian Scott MATHIS.
(Re Brian Scott Mathis v. State).
1901266.
Supreme Court of Alabama.
November 15, 1991.
*693 James R. Bowles of Bowles & Cottle, Tallahassee, for petitioner.
James H. Evans, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for respondent.
MADDOX, Justice.
We granted certiorari review in this case to address the issue of whether the petitioner, a white male defendant, had standing, under the principles of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to claim that the prosecutor's alleged use of peremptory challenges to remove black jurors from the trial venire violated his constitutional rights.[1]
The Court of Criminal Appeals, stating what it thought to be the law, held that a "nonblack" defendant could not raise a Batson challenge, but did note that "the standard articulated in Batson may be broadened at some future time." 594 So. 2d 690 (1991). The Court of Criminal Appeals was prophetic in stating that the Batson principle might be broadened, because the Supreme Court of the United States, in Powers v. Ohio, ___ U.S. ___, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), did, in fact, broaden the class of defendants who could make a Batson claim when it held that a white defendant did have standing to raise a Batson issue. See, Ex parte Bird, [Ms. 89-1061, 89-1062, June 14, 1991], 1991 WL 114762 (Ala.1991), in which this Court, following Powers, also held that a white defendant had standing to raise a Batson challenge.
Based on the authority of Powers and Bird, we hold that the Court of Criminal Appeals erred in holding that the petitioner did not have standing to raise a Batson challenge.
The State now recognizes the Powers doctrine. However, it argues that even though the petitioner may have had standing to raise a Batson issue, the petitioner did not present a prima facie case of discrimination in this case. We disagree.
The record affirmatively shows that the petitioner's counsel made a timely Batson objection and that the trial court specifically ruled that the petitioner lacked standing.[2] That is enough, since the trial court *694 would allow the petitioner to go no further. We, therefore, hold that the issue was timely and appropriately raised in the trial court.
The only possible question could be whether Powers should apply retroactively. We think, without question, that it does apply retroactively. In Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987), the United States Supreme Court established the rule of retroactivity that courts should apply in cases, such as this one, that involve a rule of constitutional law not previously decided.[3] The Court, in Griffith, stated, "We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final...." Id. at 328, 107 S. Ct. at 716 (Emphasis added). In Linkletter v. Walker, 381 U.S. 618, 622 n. 5, 85 S. Ct. 1731, 1734 n. 5, 14 L. Ed. 2d 601 (1965), the Court explained that a judgment is "final" in a case "where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition of certiorari [to the United States Supreme Court] has elapsed before our [newly promulgated rule]." Based on the Griffith rule and the Linkletter definition, we must find that the Court of Criminal Appeals erred by not giving the petitioner the benefit of Powers v. Ohio.
Because we find that the petitioner timely objected to the prosecutor's alleged use of his peremptory challenges in a racially discriminatory manner, we remand this cause to the Court of Criminal Appeals with directions to that Court to remand the cause to the trial court in accordance with the principles and guidelines set out in Ex parte Branch, 526 So. 2d 609 (Ala.1987).
*695 Because we remand the cause, we do not address the petitioner's contention that he was entitled to a judgment of acquittal.
REMANDED WITH DIRECTIONS.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] The petitioner argued to the trial court, and on appeal, that he was entitled to a judgment of acquittal because the evidence showed that he was acting merely as a "procuring agent" for the buyer and never possessed, "even momentarily," the cocaine that an agent of the State purchased from him. He again, on certiorari, raises the question whether the Court of Criminal Appeals erred in holding that his motion for judgment of acquittal was properly denied. We find it unnecessary to address that issue, in view of our holding here.
[2] The record shows that the following occurred:
"MR. BOWLES: Judge, the last thing I would like to bring up, we would like to allege that the State in its selection of the jury violated the ruling in the Batson case by striking
"THE COURT: Your client is not a minority.
"MR. BOWLES: I know that, but we're raising the defense, the grounds that these people were good jurors, and they were struck for no reason other than their race.
"THE COURT: Well, I mean, that's not applicable in your case. If what you say would apply, under no circumstances could minority members be struck.
"MR. BOWLES: Okay, I just
"THE COURT: You're not alleging your client is a member of a minority, are you?
"MR. BOWLES: No, sir.
"THE COURT: Okay.
"MR. BOWLES: But I just wanted to get my
"THE COURT: Sure.
"MR. BOWLES: objection on the record and
"THE COURT: Were your client a member of a minority, we would have a hearing
"MR. BOWLES: Yes, sir.
"THE COURT: since he appears not to be and you say he's not
"MR. BOWLES: It is just our position to get the fact on the record, out of the twenty-four strikes, twenty-four people that the State and the Defense had to strike from, each side had six strikes and the State used four of their strikes to strike minorities, the last four.
"THE COURT: Are there any black people on the jury?
"MR. BOWLES: There are two.
"THE COURT: They didn't strike all of them they could. Well, you've got to strike somebody for some unknown reason.
"MR. BOWLES: I understand, but I think it has to be a race-neutral reason, even if my client is white.
"THE COURT: Okay, that's fine. Your motion is on the record."
[3] Historically, the Court has gone from a three pronged, case-by-case analysis to a more comprehensive, categorical analysis, to a whole cloth retroactive application based on the present procedural stage of an individual case. In Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), the Court adopted a three-pronged test to be applied piecemeal. The test looked at: 1) the purpose of the new rule, 2) the extent of law enforcement reliance on the old rule, and 3) the effect retroactive application would have on judicial administration. Id. 381 U.S. at 636, 85 S. Ct. at 1741, Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199 (1967).
A shift was then made in United States v. Johnson, 457 U.S. 537, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982), to a more categorical approach. For example, in Johnson, the Court held that all new Fourth Amendment criminal procedure rules would automatically be applied retroactively to all cases not yet final, subject to three exceptions. In Shea v. Louisiana, 470 U.S. 51, 105 S. Ct. 1065, 84 L. Ed. 2d 38 (1985), a similar categorical rule was announced for the Fifth Amendment.
The rule of Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649 (1987), eliminates the three exceptions noted in Johnson and establishes an across-the-board rule of retroactive application if the case at issue is still pending on direct review or is not final. | November 15, 1991 |
119d10f2-77bf-4a72-a333-71b07bfee6ba | Ex Parte State Ex Rel. Harrell | 588 So. 2d 868 | 1901394 | Alabama | Alabama Supreme Court | 588 So. 2d 868 (1991)
Ex parte STATE of Alabama ex rel. Sheeley A. HARRELL.
(Re STATE of Alabama ex rel. Sheeley A. HARRELL v. James E. HARRELL).
1901394.
Supreme Court of Alabama.
October 11, 1991.
William Prendergast, Lois Brasfield and Mary E. Pons, Asst. Attys. Gen., for petitioner.
E. Paul Jones, Alexander City, for respondent.
INGRAM, Justice.
The State of Alabama sought a writ of mandamus directing the Juvenile Court of Coosa County to withdraw its order granting James E. Harrell's request for a blood test made pursuant to his motion to determine paternity. The Court of Civil Appeals denied the State's petition for the writ of mandamus, and we granted the State's petition for the writ of certiorari.
The facts, as set forth in the State's petition, reveal that James E. Harrell and Sheeley A. Harrell were married in 1986. In 1987, Sheeley ("the mother") gave birth to a male child. In 1988, James and the mother separated, and the mother began receiving Aid to Families with Dependent Children ("AFDC") benefits. Thereafter, the State filed a petition for support, alleging that James had a duty to support the minor child.
In response to the petition for support, James signed an answer and waiver, admitting all of the allegations contained in the *869 petition. At the same time, he entered into a support agreement, acknowledging that he was the parent of the child and that he had a duty to support the child. The answer and waiver and the support agreement were filed in the Juvenile Court of Coosa County. Thereafter, that court issued an order, finding James to be the parent of the minor child. However, because James and the mother had reconciled by the time the juvenile court issued its order, no child support was ordered. No appeal was taken from that order.
In December 1990, the State filed a modification petition for support against James, seeking current child support for the minor child because James was no longer living in the marital home. However, in his answer to the modification petition, James denied the allegations contained in the petition and alleged that he had reason to believe that he was not the father of the minor child, although the reasons for this belief were not stated in the answer.
At the time he filed his answer to the modification petition, James also filed a motion to determine paternity, asking for a blood test. The only ground stated by James in his motion was that he had reason to believe that he was not the father of the minor child.
The State filed a motion in opposition to the blood test and included as grounds the fact that the parties were married at the time of the minor child's birth and that James had previously entered into a support agreement that was incorporated into the juvenile court's order. The State asserted that the issue of paternity was res judicata. Following a hearing on the motions filed by both parties, the juvenile court issued an order for blood testing.
The issue presented is whether the Court of Civil Appeals erred in denying a writ of mandamus directing the juvenile court to withdraw its order granting blood testing and to deny James's motion to determine paternity.
Initially, we note that mandamus is a drastic and extraordinary writ to be issued only where there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Barber v. Covington County Comm'n, 466 So. 2d 945 (Ala.1985). Furthermore, we note that it is a well-settled principle that once there has been a judicial determination of paternity, parties are precluded from disputing the paternity in subsequent proceedings. See, e.g., Julian v. Julian, 402 So. 2d 1025 (Ala.Civ.App.1981); Stewart v. Stewart, 392 So. 2d 1194 (Ala. Civ.App.1980).
In this case, paternity was established in a prior order of the juvenile court. The order stated that "the court is of the opinion and finds that the defendant is the parent of said minor child and is obligated to pay support for the minor child." This language clearly establishes a finding of paternity with regard to support of the child. Because of the prior order determining paternity, we hold that James is barred, under the doctrine of res judicata, from challenging the paternity of the child for purposes of child support.
The elements of res judicata are: the same parties, the same subject matter, and a judgment on the merits by a court of competent jurisdiction. First State Bank of Altoona v. Bass, 418 So. 2d 865 (Ala. 1982). Once these elements are met, the former judgment becomes an absolute bar to any subsequent suit on the same cause of action. Dominex, Inc. v. Key, 456 So. 2d 1047 (Ala.1984).
In this case, there is no question that the elements of res judicata have been met. The same parties are disputing the same subject matter under the same facts that were presented in the prior support proceeding. In that prior proceeding, there was a judgment on the merits by a court of competent jurisdiction. Therefore, we hold that James is not entitled to challenge the child's paternity for purposes of child support.
While we acknowledge that the Court of Civil Appeals has, in rare instances, allowed paternity to be challenged through a *870 motion made pursuant to Rule 60(b), A.R.Civ.P., the father's motion in this case was not a Rule 60(b) motion. See, e.g., Coburn v. Coburn, 474 So. 2d 728 (Ala.Civ. App.1985). Furthermore, the father has shown nothing to indicate that he is entitled to the extraordinary relief available through a Rule 60(b) motion.
Because we conclude that James is barred from challenging paternity for purposes of child support, because of the applicability of the doctrine of res judicata, we hold that the State's petition for the writ of mandamus is due to be granted. The judgment of the Court of Civil Appeals is due to be reversed and the cause remanded with instructions to grant the writ of mandamus directing the Juvenile Court of Coosa County to withdraw its order granting blood testing in this case and to deny the motion to determine paternity.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | October 11, 1991 |
a5d7cdc9-736e-449e-ac08-6e81d88567eb | First Bank of Boaz v. Fielder | 590 So. 2d 893 | 1901098 | Alabama | Alabama Supreme Court | 590 So. 2d 893 (1991)
FIRST BANK OF BOAZ
v.
Helen FIELDER, Individually and as Administratrix of the Estate of D.B. Fielder, Deceased.
1901098.
Supreme Court of Alabama.
November 15, 1991.
*894 Charles R. Hare, Jr. of Gullahorn & Hare, P.C., Albertville, for appellant.
*895 Jack Floyd, Michael L. Roberts and John D. Floyd of Floyd, Keener, Cusimano & Roberts, Gadsden, for appellee.
HOUSTON, Justice.
The defendant, First Bank of Boaz ("the Bank"), appeals from a judgment entered on a $104,000 jury verdict for the plaintiff, Helen Fielder, who, individually, and as administratrix of the estate of her husband, D.B. Fielder, had alleged fraud in connection with a home improvement loan. We affirm.
The evidence, viewed in the light most favorable to the plaintiff, as the applicable standard of review requires us to view it, see Warren v. Ousley, 440 So. 2d 1034, 1037 (Ala.1983) (dealing with sufficiency of the evidence), shows the following: The Fielders went to the Bank to discuss the possibility of borrowing $25,000 to complete construction of an addition to their house and, while there, met with the Bank's senior vice-president, Harold Snyder, who had been their long-time personal loan officer, financial advisor, and friend. After discussing their financial needs with Snyder, the Fielders completed and submitted a loan application. Snyder subsequently informed the Fielders that their loan application had been approved and he recommended that they obtain credit life insurance. The Fielders agreed with Snyder's recommendation, but told him that because their house was to be used as collateral to secure the loan they did not want the loan unless the insurance could be obtained on the life of Mr. Fielder. The Fielders explained to Snyder that they could sell some of their land to raise the money necessary for the construction, but that they did not want to do that if they could get the loan. Knowing that the Fielders did not want the loan unless credit life insurance on Mr. Fielder was obtained, and aware that Mr. Fielder had been diagnosed as having emphysema and lung cancer, Snyder nevertheless assured the Fielders that the insurance company with which the Bank dealt would not reject Mr. Fielder's insurance application. Although Snyder explained to the Fielders that the insurance company had the right to reject Mr. Fielder's application, he assured them that he would obtain credit life insurance on Mr. Fielder. The insurance application, which was completed by Snyder, signed by Mr. Fielder, and submitted to the insurance company by the Bank, and which required disclosure of pertinent medical information relevant to Mr. Fielder's health, did not disclose the fact that Mr. Fielder had been diagnosed as having lung cancer. In an attempt to explain this material omission, Snyder testified that he "ran out of room" on the application.[1] Based on Snyder's assurance that credit life insurance on Mr. Fielder would be obtained, the Fielders closed the loan, which, including interest, the credit life insurance premium of $3,385.80, and various other charges, totaled $42,322.56. The Bank, which had acted as an agent for American General Group Insurance Company, retained one-half of the premium as a commission for selling the insurance and promptly mailed a certificate of insurance to the Fielders. That certificate stated that $42,322.56 worth of credit life insurance coverage had been applied for and that the insurance company had the right to reject the application within 60 days of the date of the loan. Subsequently, the insurance company did reject Mr. Fielder's application and instructed the Bank to notify the Fielders of that fact and to refund the premium. The letter rejecting Mr. Fielder's application was mailed from Jacksonville, Florida, 16 days prior to the date that the Fielders' account was credited. Snyder testified that he talked with Mr. Fielder in the Bank on the date that the account was credited; however, other evidence showed that the only banking transaction that the Fielders had at the Bank on that date was made by Mrs. Fielder at a drive-in window and that Mr. Fielder was too ill to leave his home and, in fact, did not leave his home on that date. There was no other evidence that *896 Snyder, or anyone else associated with the Bank, notified the Fielders that Mr. Fielder's insurance application had been rejected. Mr. Fielder died approximately 14 weeks after the loan was closed, and shortly thereafter the plaintiff learned that Mr. Fielder's insurance application had been rejected. This suit followed.
The plaintiff alleged in her complaint that Snyder had falsely represented that he would obtain the credit life insurance and that he had suppressed the fact that the insurance company had rejected Mr. Fielder's application. The plaintiff further alleged that she and her husband had relied initially on Snyder's representation that he would obtain the insurance and later on his silence. The jury awarded the plaintiff $42,000 in compensatory damages under the misrepresentation count, but refused to award her punitive damages after specifically finding that the Bank "did not consciously or deliberately engage in fraud." The jury initially returned a verdict for the plaintiff under the suppression count and awarded $42,000 in compensatory damages and $20,000 in punitive damages. After discussing that verdict with the attorneys, the trial court told the jury that it could not compensate the plaintiff under both the misrepresentation count and the suppression count and instructed the jury to deliberate further. The jury later returned a verdict under the suppression count for zero compensatory damages and $62,000 in punitive damages. The original verdict under the misrepresentation count was left intact. The Bank's post-judgment motion for a judgment notwithstanding the verdict or, in the alternative, for a remittitur or new trial, was denied by operation of law pursuant to Rule 59.1, Ala.R.Civ.P.
The dispositive issues on this appeal are as follows:
The plaintiff's misrepresentation claim was predicated on an alleged promise to perform in the future. In Watters v. Lawrence County, 551 So. 2d 1011, 1014 (Ala. 1989), this Court, quoting Hearing Systems, Inc. v. Chandler, 512 So. 2d 84, 87 (Ala.1987), discussed the nature of such a fraud claim as follows:
As previously noted, the evidence, viewed most favorably to the plaintiff, shows that Snyder, the senior vice-president of the Bank and a long-time financial advisor to the Fielders, with full knowledge of facts that should have placed a reasonable person on notice that Mr. Fielder was not insurable, promised the Fielders that he would obtain credit life insurance for Mr. Fielder. Snyder made this promise knowing that the Fielders did not want the loan unless the credit life insurance was obtained. Subsequently, after the loan had been closed and the Fielders had begun making payments, and after receiving notice of the insurance company's rejection of Mr. Fielder's application, neither Snyder nor anyone else associated with the Bank contacted the Fielders. Contrary to the Bank's contention, we conclude that the plaintiff presented substantial evidence that Snyder had an intent to deceive at the time he promised to obtain the credit life insurance and that the Fielders' reliance on Snyder's representation was justifiable under the circumstances, i.e., that a fact question was presented as to Snyder's intent and as to whether Snyder's representation, considering his senior status at the Bank and his long-time relationship with the Fielders, was "so patently and obviously false that [the Fielders] must have closed [their] eyes to avoid discovery of the truth." (See Johnson v. State Farm Ins. Co., 587 So. 2d 974 (Ala.1991), for this Court's most recent discussion of the justifiable reliance standard and its application in both commercial and consumer fraud cases.) We also conclude that there was clear and convincing evidence that the Bank had a duty, under the particular circumstances of this case, to inform the Fielders that Mr. Fielder's insurance application had been rejected; that the Bank intentionally suppressed that information; and that the Fielders justifiably relied on the Bank's silence to their detriment (e.g., the evidence showed that the Fielders could have taken immediate steps to sell some of their land and pay the balance due on the note). See Trio Broadcasters, Inc. v. Ward, 495 So. 2d 621 (Ala.1986), and Wilson v. Brown, 496 So. 2d 756 (Ala.1986), for a general discussion of the elements of a cause of action for fraudulent suppression. The trial court did not err in submitting the misrepresentation and suppression claims to the jury and later in denying the Bank's *898 motion for a judgment notwithstanding the verdict as to those claims.[4]
With regard to the second issue, concerning whether the compensatory damages awarded under the misrepresentation count were excessive, the evidence shows that the Fielders did not receive the credit life insurance coverage for which they had applied. After thoroughly reviewing the record, we cannot say that the $42,000 in compensatory damages awarded by the jury under the misrepresentation count exceeded an amount that would compensate the plaintiff for the Bank's failure to obtain the credit life insurance. See Morris v. Westbay Auto Imports, Inc., 512 So. 2d 1373 (Ala.1987) (setting out the well-settled rule pertaining to the measure of damages applicable to fraudulent conduct or representations, to the effect that such damages will be fixed at an amount that would place the defrauded person in the position he would have occupied if the representations had been true). The trial court did not err in denying the Bank's motion for a remittitur or, in the alternative, for a new trial on this issue.
As to the third issue, the Bank argues that the verdict under the suppression count must be set aside because the jury's award of punitive damages was not accompanied by an award of either compensatory or nominal damages. The plaintiff contends that an award of compensatory damages was not necessary to support the jury's award of punitive damages. She argues that the evidence was sufficient to support a finding by the jury that she and her husband were damaged, at least nominally, as a result of the Bank's failure to disclose the fact that the insurance company had rejected Mr. Fielder's application and, therefore, that the punitive damages award under the suppression count is due to be affirmed. Again, we agree.
Injury to the plaintiff is an essential element of a cause of action for fraud. That injury may take the form of an injury or loss that would support an award of compensatory damages or it may take the form of a noncompensable violation of a legally protected right that would support only an award of nominal damages in recognition of the tort. Punitive damages may be awarded by the jury in a fraud action if the plaintiff makes a sufficient evidentiary showing that he has been injured as a result of the fraud and that the defendant's conduct warrants punishment. See, e.g., The Booth, Inc. v. Miles, 567 So. 2d 1206 (Ala.1990)[5]; Whitt v. Hulsey, 519 So. 2d 901 (Ala.1987); Coastal Concrete Co. v. Patterson, 503 So. 2d 824 (Ala.1987); Surrency v. Harbison, 489 So. 2d 1097 (Ala. 1986); Gulf Atlantic Life Ins. Co. v. Barnes, 405 So. 2d 916 (Ala.1981); National States Ins. Co. v. Jones, 393 So. 2d 1361 (Ala.1980); Old Southern Life Ins. Co. v. Woodall, 348 So. 2d 1377 (Ala.1977); Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 311 So. 2d 312 (1975); Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So. 2d 94 (1974); Pihakis v. Cottrell, 286 Ala. 579, 243 So. 2d 685 (1971); Maring-Crawford *899 Motor Co. v. Smith, 285 Ala. 477, 233 So. 2d 484 (1970).
Citing Maring-Crawford Motor Co. v. Smith and Wood v. Holiday Inns, Inc., 369 F. Supp. 82 (M.D.Ala.1974) (interpreting Alabama law), the Bank argues that "an award of at least nominal damages is an unequivocal prerequisite to a verdict for punitive damages." Although the Bank did not refer to them in its brief, we also note that our independent research has revealed three treatises that categorize Alabama as a state requiring an award of at least nominal damages as a prerequisite to an award of punitive damages. See Annot., 40 A.L.R. 4th 11, Sufficiency of Showing of Actual Damages to Support Award of Punitive DamagesModern Cases (1985); L. Schlueter and K. Redden, Punitive Damages § 6.1(D)(4)(c) (2d ed. 1989); 22 Am.Jur.2d Damages § 743 (1988). These treatises cite either Maring-Crawford Motor Co. v. Smith; Mid-State Homes v. Johnson; St. Paul Fire & Marine Ins. Co. v. Anderson, 358 So. 2d 151 (Ala.Civ.App.1977), judgment reversed, Proctor Agency, Inc. v. Anderson, 358 So. 2d 164 (Ala.1978), on remand, 358 So. 2d 167 (Ala.Civ.App.1978) (relying on Maring-Crawford); or Wood v. Holiday Inns, Inc., or some combination of those cases, in support of their interpretations of Alabama law. In Wood v. Holiday Inns, Inc., the federal district court, citing Maring-Crawford; Burk v. Knott, 20 Ala.App. 316, 101 So. 811 (1924); and Kelite Products, Inc. v. Binzel, 224 F.2d 131 (5th Cir.1955), quoted the following from Maring-Crawford in support of its conclusion that Alabama has "an unequivocal requirement of [an award of] at least nominal damages as a prerequisite to a verdict for punitive damages":
369 F. Supp. at 91. See, also, Walker v. Cleary Petroleum Corp., 421 So. 2d 85 (Ala.1982), where the following statement was made:
After a careful review of our cases, including the ones mentioned above, we can find no instance where this Court has held that an award of at least nominal damages is a prerequisite to an award of punitive damages. Although this Court has held, as evidenced by the quotes above, that an award of at least nominal damages will support an award of punitive damages, we do not construe those holdings as requiring an award of at least nominal damages as a prerequisite to an award of punitive damages. To the contrary, a survey of our cases reveals that the focus of this Court has been on the sufficiency of the evidence to support a finding by the jury that the plaintiff has been injured, at least nominally, and that the defendant deserves to be punished via an award of punitive damages. It would certainly be illogical, in a case where the jury was properly charged that it could punish the defendant for aggravated misconduct that caused the plaintiff injury and where the evidence supported an award of punitive damages, for the defendant to be freed of responsibility for that aggravated misconduct by the fortuitous circumstance that the jury failed to *900 award either compensatory or nominal damages because the plaintiff failed to prove that he was entitled to compensatory damages and the jury was not charged on or otherwise did not award nominal damages; the plaintiff's injury was incapable of precise monetary measurement and the jury was not charged on or otherwise did not award nominal damages; the plaintiff was fully compensated as a result of a pro tanto settlement with a joint tort-feasor and the jury was not charged on or otherwise did not award nominal damages, see, e.g., The Booth, Inc. v. Miles; or the plaintiff was fully compensated for his injury under a separate tort made the basis of a separate count of the complaint and the jury was not charged on or otherwise did not award nominal damages. In any event, because there does appear to be confusion in this regard, we take this opportunity to specifically hold that an award of compensatory or nominal damages is not a prerequisite to an award of punitive damages. When presented with a motion to set aside a verdict awarding punitive damages only, the appropriate inquiry for the trial court in a fraud case is not whether there has been an award of compensatory or nominal damages but, instead, whether the evidence is sufficient to support a finding by the jury that the plaintiff was injured, at least nominally, by the defendant's wrongful actions and that the defendant's conduct is deserving of punishment. Although, as previously noted, we do not construe Maring-Crawford and Mid-State Homes as being inconsistent with our holding in this case, some legal commentators and at least one federal district court in Alabama have construed those cases as requiring an award of compensatory or nominal damages as a prerequisite to an award of punitive damages in this state. Therefore, to eliminate any further confusion that may be caused by the wording of these cases, we hereby expressly declare that Maring-Crawford and Mid-State Homes are not inconsistent with our holding in this case.
In the present case, the trial court instructed the jury that it had to consider whether the plaintiff was entitled to an award of compensatory damages before it considered whether the Bank should be punished. The trial court did not instruct the jury with respect to nominal damages. As previously noted, the jury initially returned a verdict for the plaintiff under the suppression count and awarded $42,000 in compensatory damages and $20,000 in punitive damages. After discussing that verdict with the attorneys, the trial court told the jury that it could not compensate the plaintiff under both the misrepresentation count and the suppression count and it instructed the jury to deliberate further. The jury later returned a verdict under the suppression count for zero compensatory damages and $62,000 in punitive damages. The original verdict awarding $42,000 in compensatory damages and no punitive damages under the misrepresentation count was left intact. The evidence was sufficient to submit the suppression count to the jury, and the record clearly indicates that the jury found that the Fielders were injured as a result of the Bank's intentional failure to disclose the insurance company's rejection of Mr. Fielder's application, and that it found that the Bank's conduct warranted an award of punitive damages. It is apparent that the jury's failure to award either compensatory or nominal damages under the suppression count was the result of the trial court's instruction that the plaintiff could not be compensated twice and the court's failure to instruct that nominal damages could be awarded under that count. Accordingly, the trial court did not err in refusing to set aside the verdict awarding punitive damages under the suppression count on the ground that the jury did not award either compensatory or nominal damages under that count.
For the foregoing reasons, the judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., dissents.
[1] Whether the Fielders participated with Snyder in an attempt to perpetrate a fraud on the insurance company is not an issue on this appeal.
[2] The basis for the plaintiff's misrepresentation claim was her allegation that the Bank had failed to perform its promise to obtain credit life insurance for Mr. Fielder. Although as a general rule an innocent or reckless misrepresentation cannot support a fraud action where that misrepresentation relates to a future act, Benetton Services Corp. v. Benedot, Inc., 551 So. 2d 295 (Ala.1989), the jury was nonetheless charged in this case, without objection from the Bank, on the law of innocent and reckless misrepresentation as it related to the alleged promise to obtain the credit life insurance. Therefore, under the "law of the case doctrine" the jury could have returned a verdict for the plaintiff under the misrepresentation count, even though it found only an innocent or reckless misrepresentation. See Blumberg v. Touche Ross & Co., 514 So. 2d 922 (Ala.1987). Whether the jury's finding in favor of the plaintiff under the misrepresentation count and its award of compensatory damages under that count were inconsistent with the jury's finding that the Bank "did not consciously or deliberately engage in fraud" is not an issue on this appeal.
[3] Whether the plaintiff's claims for misrepresentation and suppression that were made in her representative capacity should have been dismissed on the ground that Mr. Fielder's causes of action for fraud failed to survive his death is not an issue on this appeal. See Ala.Code 1975, § 6-5-462; see, also, Davis v. Southern United Life Ins. Co., 494 So. 2d 48 (Ala.1986).
[4] This suit was not pending on June 11, 1987; therefore, the applicable standard of review with respect to the sufficiency of the evidence under the misrepresentation count is the "substantial evidence" rule. See Ala.Code 1975, § 12-21-12. However, because the plaintiff's fraud claims accrued after June 11, 1987, and because punitive damages were awarded under the suppression count, the applicable standard of review with respect to the sufficiency of the evidence under that count is the "clear and convincing evidence" rule. See Ala.Code 1975, § 6-11-20; see, also, Berry v. Fife, 590 So. 2d 884 (Ala.1991).
[5] In The Booth, Inc. v. Miles, this Court held that in an action pursuant to Ala.Code 1975, § 6-5-71 (the Dram Shop Act), when there is sufficient evidence of actual injury to support an award of compensatory damages a specific award of compensatory or actual damages is not required in order to support an award of punitive damages. Although The Booth, Inc. v. Miles, involved an interpretation of the Dram Shop Act, this Court's holding in that case was based, at least in part, on Harris v. American General Life Ins. Co. of Delaware, 202 Mont. 393, 658 P.2d 1089 (1983). In Harris, which did not involve an interpretation of a dram shop act, the Montana Supreme Court held that a sufficient evidentiary showing was made that the plaintiff had been damaged, at least nominally, and that the defendant's conduct warranted punishment, and that that showing was sufficient to support the punitive damages award. | November 15, 1991 |
3f349c43-6b3f-4523-9014-83540b30862b | Hayden v. Bruno's, Inc. | 588 So. 2d 874 | 1901339 | Alabama | Alabama Supreme Court | 588 So. 2d 874 (1991)
Henry HAYDEN
v.
BRUNO'S, INC.
1901339.
Supreme Court of Alabama.
October 18, 1991.
*875 Jeffrey W. Bennitt of Kizer & Bennitt, Birmingham, for appellant.
F.A. Flowers III of Burr & Forman, Birmingham, for appellee.
KENNEDY, Justice.
Henry Hayden filed an action pursuant to Ala.Code 1975, § 25-5-11.1 against Bruno's, Inc., alleging that his employment with Bruno's had been terminated in retaliation for his having filed a workmen's compensation claim against Bruno's. The case was tried before the trial court without a jury, and at the end of Hayden's evidence, the trial court granted Bruno's Rule 41(b), A.R.Civ.P., motion for involuntary dismissal. Hayden appeals.
Rule 41(b), A.R.Civ.P. provides:
In considering a Rule 41(b) motion, the trial court is the ultimate trier of fact and is free to weigh the evidence and the credibility of the witnesses. Feaster v. American Liberty Insurance Co., 410 So. 2d 399 (Ala. 1982). The normal presumptions of correctness attach to a trial court's ruling on an involuntary dismissal. Id., at 401. The trial court's ruling need only be supported by credible evidence, and it will not be set aside unless it is clearly erroneous or palpably wrong or unjust. Conner v. City of Dothan, 500 So. 2d 1065 (Ala.1986).
The trial court granted Bruno's 41(b) motion because it found that Hayden did not produce sufficient evidence to support his claim. Accordingly, we review the evidence that the record reflects Hayden presented.
Hayden presented, without objection, evidence of a workmen's compensation action against Bruno's, an arbitration proceeding between him and Bruno's, and a federal lawsuit arising out of the arbitration proceeding. All those proceedings arose from the following set of facts, which is also the basis of this action: Hayden was injured in October 1984 while working as a stock clerk at Bruno's. After that injury, Hayden worked sporadically until February 1, 1986, when his doctor ordered him to cease work completely. In November 1985 Hayden filed an action against Bruno's for workmen's compensation benefits. The doctor allowed Hayden to return to work on April 6, 1987. When Hayden went to the Bruno's store where he had formerly worked for reemployment, the store manager told him that he could not return to work and that he should contact Bruno's personnel department. Hayden contacted the personnel department, and a Bruno's representative told him that he had been terminated because he had been on leave of absence for more than one year. There is documentary evidence indicating that Bruno's did not want to rehire Hayden because Hayden's job performance had been evaluated by Bruno's management as poor and because he had numerous disputes with his supervisors about his attitude and his performance.
At all times relevant to this action, The National Labor Relations Board and Bruno's recognized the United Food and Commercial Worker's Union, AFL-CIO-CLC ("the Union"), as "the sole and exclusive bargaining agent with respect to rates of pay, hours, and all other terms and conditions of employment for the appropriate bargaining unit," according to a contract between the Union and Bruno's. It is undisputed that Bruno's and the Union entered into a collective bargaining agreement that covered Hayden at all times relevant to this action. A provision of that agreement states that leaves of absences for injury shall "in no event [be] for more than one year." The agreement was modified to state that pursuant to the "[provision] that no leave for illness or injury extend longer than one year, the parties *876 agree that unless mutually agreed in writing by the company and the union, any employee will be terminated after being on leave for 1 year...." The record contains no writing showing that Bruno's and the Union agreed that Hayden was not to be terminated after one year's leave of absence.
On April 6, 1987, Hayden filed a grievance pursuant to the collective bargaining agreement, requesting reinstatement and back pay. The grievance was submitted to an arbitrator, who ruled in favor of Bruno's:
The Union then filed a lawsuit in the United States District Court to set aside the arbitrator's decision. The Union argued, in part, that Hayden's termination violated Alabama's workmen's compensation laws, because "to countenance the discharge of an employee who files a workmen's compensation claim is against the public policy of this State. Section 25-5-11.1." On January 27, 1988, the district court entered a summary judgment for Bruno's, thereby allowing the arbitrator's decision to stand. Although the Union initially appealed to the Eleventh Circuit Court of Appeals, it later voluntarily dismissed its appeal.
On June 27, 1989, Bruno's paid Hayden $12,500 in settlement of his workmen's compensation claim.
Apart from the records of the actions described above, Hayden testified and recounted his employment history with Bruno's, and he testified that a Bruno's representative told him he had been terminated for being on leave of absence for more than one year.
Section 25-5-11.1 provides:
In Twilley v. Daubert Coated Products, Inc., 536 So. 2d 1364 (Ala.1988), we determined the evidence necessary to sustain an action pursuant to that provision:
536 So. 2d at 1364.
Hayden presented no evidence that Bruno's terminated him because he had filed a workmen's compensation claim, unless we assume that, because he was terminated after he had filed that claim, the termination was retaliatory. We refuse to so assume. Even if he proved a prima facie case, there is no evidence that the reasons Bruno's gave for terminating him were a pretext for an otherwise impermissible termination. Twilley at 1369.
Hayden did not produce sufficient evidence of his claim to withstand Bruno's Rule 41(b) motion. The trial court's judgment is not clearly erroneous or palpably wrong or unjust, Conner, and the judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and INGRAM, JJ., concur. | October 18, 1991 |
03efed1b-857e-4f8e-bc1d-2b1d049be5fa | Stone v. SOUTHLAND NAT. INS. CORP. | 589 So. 2d 1289 | 1900919 | Alabama | Alabama Supreme Court | 589 So. 2d 1289 (1991)
Margarette D. STONE
v.
SOUTHLAND NATIONAL INSURANCE CORPORATION.
1900919.
Supreme Court of Alabama.
October 18, 1991.
Stephen D. Heninger of Heninger, Burge & Vargo, Birmingham, for appellant.
James J. Jenkins and Jeffrey L. Riley of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee Southland Nat. Ins. Corp.
Ruth S. Capra, Birmingham, for appellee James Ronald Smith.
*1290 KENNEDY, Justice.
Southland National Insurance Corporation ("Southland") filed an interpleader action, Rule 22, A.R.Civ.P., naming as defendants Margarette D. Stone and James R. Smith. Southland deposited $50,000 with the trial court, which represented the proceeds from a Southland insurance policy on the life of Judie Smith, James Smith's wife. Ms. Stone, Judie's mother, filed a counterclaim against Southland, alleging, among other things, bad faith refusal to pay a claim, wantonness, and fraud in relation to its handling of the proceeds from the life insurance policy. The trial court awarded the interpleaded funds to James Smith and entered a summary judgment for Southland on Stone's counterclaim. Stone appeals from the judgment for Southland on her counterclaim; the judgment regarding interpleader is not before us.
In 1984, Southland issued James Smith a life insurance policy on his life that would pay $10,000 upon his death to his designated beneficiary, Judie Smith. That policy contained a "rider" insuring Judie Smith's life, but no beneficiary was designated for that insurance coverage.
The record indicates that on March 12, 1987, two applications for new life insurance policies were filed. In addition, a document requesting a change in James Smith's 1984 policy was submitted to Southland on behalf of James and Judie Smith. That document proposed an increase in the coverage provided by the "rider" on Judie Smith's life to $50,000 and named Margarette Stone as the beneficiary. However, in the two applications for new life insurance policies, James Smith was named the primary beneficiary of the policy on Judie's life, and Margarette Stone was named as the "contingent" beneficiary.[1]
Although it is unclear whether James signed the documents authorizing the changes in the existing policies, Judie signed, and someone signed James's name to the documents. A Southland employee, Dennis Painter, signed the documents as a witness to both Judie's and James's signatures.
Judie Smith died in September 1989. In November 1989, both James Smith and Margarette D. Stone filed claims with Southland for the life insurance proceeds. Southland then filed this interpleader action. It is unclear whether Southland was paying the $50,000 pursuant to the March 12 change in the "rider" or pursuant to an insurance policy based on the March 12 applications for life insurance. The parties make no argument that there are two $50,000 policies in effectthat is, a policy resulting from the rider and a policy issued pursuant to the March 12 applications for new insurancebut, instead, they argue as though only one policy in effect for $50,000 in coverage.
On appeal Stone challenges the summary judgment for Southland on her counterclaim alleging bad faith refusal to pay a claim, wantonness, and fraud. The standard used to determine the propriety of a summary judgment is found in Rule 56(c), A.R.Civ.P.:
The burdens placed on the parties by this rule have often been described:
Schoen v. Gulledge, 481 So. 2d 1094, 1096-97 (Ala.1985).
Stone must prove her case by substantial evidence. Ala.Code 1975, § 12-21-12. In determining whether there is substantial evidence, we review the evidence in the light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Stephens v. City of Montgomery, 575 So. 2d 1095, 1097 (Ala.1991). Sanders v. Kirkland & Co., 510 So. 2d 138 (Ala.1987). Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
Finally, a trial court's ruling on a summary judgment motion is a nondiscretionary ruling, and no presumption of correctness attaches to that ruling; accordingly, our review of the evidence properly presented in the record is de novo. Hightower & Co. v. United States Fidelity & Guaranty Co., 527 So. 2d 698 (Ala.1988).
We first address Stone's bad faith claim. In United American Insurance Co. v. Brumley, 542 So. 2d 1231, 1235 (Ala.1989), we discussed bad faith actions:
Stone's bad faith claim fails for at least two reasons. First, Southland did not refuse to pay the claim. To the contrary, by interpleading, it paid to the court an amount that the parties do not dispute is the full amount due, although it did not pay those proceeds to Stone. Furthermore, given that Judie Smith's March 12, 1987, *1292 life insurance application named James Smith as the primary beneficiary, while the form for the change in the 1984 insurance coverage listed Margarette Stone as the beneficiary, there was a fact question as to who was entitled to the proceeds of the policy, so Stone would not be entitled to a directed verdict on the underlying insurance contract claim normally required to sustain a bad faith action. Brumley, at 1235. Accordingly, Stone's bad faith claim fails, and, as to that claim, the judgment is due to be affirmed.
Stone argues that she presented substantial evidence of wanton conduct and of fraud, because she produced evidence that Southland employee Dennis Painter had signed the documents described earlier, supposedly to witness the signatures of both James and Judie Smith on the documents. Specifically, she contends that Painter's "false witnessing of the three documents" prevented the change of beneficiary designation in Judie Smith's rider coverage from James Smith to Margarette Stone.
Stone presents no evidence, however, of any adverse effect of Painter's allegedly improperly witnessing the signatures. "Wantonness" has been defined by the Court as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result. McDougle v. Shaddrix, 534 So. 2d 228 (Ala.1988). Stone presented no evidence that Painter, even if he did not witness James Smith's signature but nevertheless signed the documents as though he had, did so conscious that injury would likely or probably result from his action. Accordingly, Stone did not present substantial evidence of her wantonness claim, and as to that claim the judgment is due to be affirmed. Id.
Stone's claim for fraud is also based on Painter's allegedly improper actions. Stone presented no evidence that a misrepresentation was made to her or that she was ever aware during Judie Smith's lifetime that she was the alleged primary beneficiary of Judie Smith's "rider," or that she in any way relied on anything Painter said or did. Accordingly, Stone failed to present substantial evidence to prove her fraud claim. Crowder v. Memory Hill Gardens, Inc., 516 So. 2d 602 (Ala.1987).
Stone has proved no error, and accordingly, the judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur.
[1] This document from Southland may help to explain why there were documents filled out both for new insurance and to change the coverage under the 1984 policy:
"IMPORTANT NOTICE REGARDING REPLACEMENT OF LIFE INSURANCE
"In connection with this purchase, you have indicated that you may terminate or change your existing policy. Because of this, we are required to provide this notice to you and to leave with you copies of all documents used in the sale.
"Whether it is to your advantage to replace your existing insurance, only you can decide. It is in your best interest, however, to have adequate information before a decision to replace your present coverage becomes final.
". . . .
"CAUTION
"You are urged not to terminate your existing insurance until the new policy has been issued, examined and found acceptable to you. If you terminate your existing coverage and fail to qualify for the new life insurance, you may be unable to purchase other life insurance." | October 18, 1991 |
8d131559-9cd1-467b-ac77-d9fe689780d4 | Crutcher v. Wynn | 591 So. 2d 453 | 1900739 | Alabama | Alabama Supreme Court | 591 So. 2d 453 (1991)
Lucy Ann CRUTCHER
v.
Ernestine WYNN, as Executrix of the Estate of Odell Burney, Deceased.
1900739.
Supreme Court of Alabama.
October 18, 1991.
Rehearing Denied December 13, 1991.
Jerry D. Baker of Baker & Jett, P.C., Huntsville, for appellant.
M.H. Lanier, Huntsville, for appellee.
KENNEDY, Justice.
This appeal is from a dismissal of a cause of action based on the doctrine of res judicata.
*454 The facts are as follows: Odell Burney died on October 6, 1989. Her daughter and the executrix of her estate, Ernestine Wynn, filed a petition for probate of Burney's purported will and codicil on October 19, 1989. Another of Burney's daughters, Lucy Ann Crutcher, contested the will on the grounds of undue influence, force, or fear. Wynn filed a motion for summary judgment. Crutcher then filed a motion in opposition to the motion for summary judgment alleging, among other things, that the signature on the will was not Burney's signature. On August 3, 1990, the trial court entered summary judgment in favor of Burney's estate.
On December 13, 1990, Crutcher contested the probate of Burney's will and codicil on the grounds of undue influence, force, or fear and fraud. The trial court found that the Crutchers had raised no new issues, because these same issues had been settled by the summary judgment. The trial court then dismissed the action.
The elements of res judicata, or claim preclusion, are: (1) a final judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantially the same parties, and (4) with the same cause of action presented in both suits. Dairyland Ins. Co. v. Jackson, 566 So. 2d 723 (Ala.1990), citing Hughes v. Allenstein, 514 So. 2d 858 (Ala.1987). "If those four elements are present, any claim that was or could have been ajudicated in the prior action is barred from further litigation." Dairyland, 566 So. 2d at 725.
In this case, the only one of the above elements as to which there is a question is whether the same cause of action was presented in both suits. To determine whether the cause of action is the same in both suits, the issues involved in the earlier suit must have comprehended all that is involved in the issues of the later suit. Dairyland, 566 So. 2d at 726. "The proper standard for determining whether the two suits are the same is whether the same evidence would support a recovery in both suits." Robinson v. Holley, 549 So. 2d 1, 2 (Ala.1989). "Res judicata applies not only to the precise legal theory presented in the prior case, but to all legal theories and claims arising out of the same nucleus of operative fact." N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1561 (11th Cir.1990) (citation omitted).
The first suit brought by Crutcher alleged that Burney's will was the product of undue influence, force, or fear. Wynn filed a motion for summary judgment, which Crutcher opposed, claiming that the signature on the will was not Burney's signature. In the second suit, Crutcher contested the will on the same grounds of undue influence, force, or fear and added the additional ground of fraud. The sole allegation of fraud was that the signature on the will was not Burney's signature. Clearly all the issues presented in the second suit had been adjudicated in the prior suit.
We hold that the trial court was correct in dismissing the second cause of action because all the issues presented in the second suit had previously been determined on the merits.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | October 18, 1991 |
bbba1fd5-48b0-48f7-acf6-645247545a5c | Resolution Trust Corp. v. Mooney | 592 So. 2d 186 | 1900815 | Alabama | Alabama Supreme Court | 592 So. 2d 186 (1991)
RESOLUTION TRUST CORPORATION, as Receiver for First Federal Savings & Loan Association of Atlanta
v.
Howard E. MOONEY and Martha T. Mooney.
1900815.
Supreme Court of Alabama.
November 8, 1991.
*187 Richard T. Aboussie, Asst. Gen. Counsel, Thomas L. Hindes, Sr. Counsel, and Sheila Kraft Budoff, Sr. Atty., and Richard H. Walston of Haskell, Slaughter, Young & Johnston, P.A., Birmingham, for Resolution Trust Corp.
Ann S. Duross, Asst. Gen. Counsel, Colleen B. Bombardier, Sr. Counsel, and Jeanette Roach, Counsel, and W. Wheeler Smith of Smith, Hynds, Blocker, and Louther, P.C., Birmingham, for Federal Deposit Ins. Corp.
Stephen M. NeSmith of Riggs & NeSmith, P.A., Montgomery, for appellees.
STEAGALL, Justice.
Resolution Trust Corporation ("RTC"), as receiver for First Federal Savings & Loan Association of Atlanta ("First Federal"), appeals from a judgment entered on a jury verdict in favor of Howard E. Mooney *188 and Martha T. Mooney for $200,000. The dispute between these parties arose from the June 3, 1987, sale of a mobile home to the Mooneys by First Federal through its agent, Country Boy's Mobile Homes ("Country Boy's"), located in Phenix City, Alabama. On July 7, 1988, the Mooneys sued Country Boy's and its agents, alleging fraud, misrepresentation, breach of contract, and "conspiracy to defraud." After obtaining a default judgment against Country Boy's and its agent,[1] the Mooneys amended their complaint to add First Federal as a party-defendant on July 26, 1989.
On May 25, 1990, RTC was appointed receiver of First Federal by the Office of Thrift Supervision of the United States Department of the Treasury ("OTS"). As a result, all rights, title, powers, and privileges held by First Federal were transferred by operation of law to RTC, and RTC, as receiver, was automatically established as a party to the suit involving First Federal and the Mooneys. Firstsouth, F.A. v. Aqua Construction, Inc., 858 F.2d 441 (8th Cir.1988).
On September 12, 1990, a jury returned a verdict on the Mooneys' fraud claim and awarded them $200,000 damages. In response, RTC filed a motion for a new trial, a motion for judgment notwithstanding the verdict, and a motion for remittitur. After a hearing on the motions, the trial court denied all of RTC's motions. RTC appeals, raising two issues.
RTC contends that the trial court erred in denying its motions for J.N.O.V. and new trial, because, it argues, the Mooneys failed to prove the elements necessary to prevail under a claim of fraud. We disagree. RTC's motion for J.N.O.V. required the trial court to test the jury's verdict against the evidence, viewing the evidence in a light most favorable to the Mooneys, and to determine whether there was any credible evidence from which the jury could have drawn inferences to support the verdict. Mallory v. Hobbs Trailers, 554 So. 2d 966 (Ala.1989); Macon County Commission v. Sanders, 555 So. 2d 1054 (Ala.1990). On appeal, this Court's review is governed by the substantial evidence rule. See Ala.Code 1975, § 12-21-12; West v. Founders Life Assur. Co. of Fla., 547 So. 2d 870 (Ala.1989).
The essential elements of a fraud claim were recently enumerated by this Court in Ramsay Health Care, Inc., v. Follmer, 560 So. 2d 746, 749 (Ala.1990):
See Ala.Code 1975, § 6-5-101.[2] See, also, Harris v. M & S Toyota, Inc., 575 So. 2d 74 (Ala.1991).
The record contains evidence that two salesmen represented to the Mooneys that they were purchasing a 1986 model mobile home, when the mobile home was, in fact, a 1984 model; that repairs amounting to approximately $1,500 would be completed prior to delivery of the mobile home, and they were not; that the Mooneys had been falsely informed that their $1,000 down payment would not be refunded if they changed their minds about purchasing the mobile home; and that there was evidence concerning the possibility of forged documents. The jury could have relied on any one, some, or all of the above-described circumstances to find the defendants guilty of fraud. The record provides substantial evidence to support the jury's finding of fraud; therefore, we find no error in the trial court's denial of RTC's motion for J.N.O.V.
*189 As to the trial court's denial of RTC's motion for a new trial, we find no error. RTC contends that the jury's verdict is against the great weight and preponderance of the evidence. A motion for new trial based on these grounds must be examined to determine whether the jury's verdict is palpably wrong or manifestly unjust. Ex parte Oliver, 532 So. 2d 627 (Ala.1988). Again, we believe there was substantial evidence offered by the Mooneys to support the jury's verdict; thus, we find no error in the trial court's denial of RTC's motion for a new trial.
The thrust of RTC's appeal concerns the trial court's order regarding the award of damages. RTC contends that the trial court correctly determined that punitive damages cannot properly be assessed against RTC as receiver, but that the trial court erroneously awarded punitive damages against First Federal. RTC argues that First Federal ceased to exist as a legal entity once it was placed into receivership by OTS on May 25, 1990, and, therefore, damages could not be awarded against First Federal, which did not exist, or against RTC in its capacity as receiver for First Federal.
Following a hearing on RTC's motions for J.N.O.V., new trial, and remittitur, the trial court issued the following order:
Initially we point out that the Mooneys' argument regarding RTC's failure to properly preserve the general verdict form issue is of no consequence. Under the circumstances of this case, we would necessarily reach the issue regardless of its being properly preserved by either party.
In its brief on appeal, RTC does not argue against the assessment of compensatory damages; in fact, in its post-trial pleadings, RTC concedes that the plaintiffs' compensatory damages amounted to a maximum of $4,000. The trial court stated in its order that the Mooneys' compensatory damages were "at most" several thousand dollars. Our review of the record supports the trial court's findings, but fails to support RTC's assessment of the compensatory damages. Neither the trial court nor any of the parties has specifically designated an amount of compensatory damages. Thus, for our purposes, we can only determine that the amount of compensatory damages suffered by the Mooneys is no more than "several thousand dollars." This ambiguous determination regarding the amount of compensatory damages renders the trial court's order ineffective.
RTC maintains that the remaining amount of the judgment against First Federal can only constitute punitive damages. As receiver, RTC contends that it cannot be held liable for punitive damages because it is a public instrumentality.
Regardless of whether the Mooneys' claims are asserted against RTC or First Federal, RTC, in its capacity as receiver for First Federal, is responsible for managing and resolving the affairs of the failed First Federal. See Financial Institutions Reform, Recovery and Enforcement Act of 1989, Pub.L. No. 101-73, 1989 U.S.Code Cong. & Admin.News 103 Stat. 183 § 501(b). A receiver "operates for the benefit of creditors, unsecured depositors and the federal taxpayer." Tuxedo Beach Club Corp. v. City Federal Savings Bank, 749 F. Supp. 635 (D.N.J.1990). However, punitive damages are imposed to punish the wrongdoer and to deter others. Where the wrongful party is in receivership and the damages are to be paid by innocent creditors, punitive damages create an inequitable result and are therefore improper. Professional Asset Management, Inc. v. Penn Square Bank, 566 F. Supp. 134 (W.D.Okl.1983); Tuxedo Beach Club Corp. v. City Federal Savings Bank, supra. First Federal no longer exists and thus cannot be punished. The deterrent value of the punitive damages is likewise diminished and must be weighed against the realization that innocent parties will be required to bear the burden imposed by these damages. It is improper to impose punitive damages upon RTC for conduct attributable to the failed First Federal before RTC was appointed receiver. See, generally, Professional Asset Management, Inc. v. Penn Square Bank, supra. Imposing punitive damages against RTC would not accomplish the purposes which punitive damages are meant to serve. Thus, the trial court was correct in not allowing the assessment of punitive damages against RTC.
However, the trial court was in error in denying RTC's motion for remittitur. Since compensatory damages are the Mooneys' only obtainable damages against RTC, it is imperative that the trial court designate an exact amount of such damages. *191 The effect of such action amounts essentially to a remittitur. Thus, it is the trial court's denial of RTC's remittitur that we view as error.
Therefore, we affirm the judgment of the trial court regarding its denial of RTC's motions for J.N.O.V. and new trial, conditioned upon the Mooneys' acceptance of a remittitur of the difference between $200,000 and the actual compensatory damages, these damages to be determined by the trial court.
AFFIRMED CONDITIONALLY; AND REMANDED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur.
[1] On September 1, 1988, the Mooneys obtained a default judgment against defendants Country Boy's and its agent, Mac Hornsby (salesman), pursuant to Rule 55, A.R.Civ.P. These defendants subsequently declared bankruptcy and are not parties to this appeal.
[2] Section 6-5-101 recognizes a fraud claim based on innocent misrepresentation; the elements of willfulness or recklessness need not be proven on such a claim. | November 8, 1991 |
7b50e58d-f2eb-48a6-9d47-ab56cd7c98a2 | Insurance Mgt. & Admin. v. Palomar Ins. | 590 So. 2d 209 | 1901148 | Alabama | Alabama Supreme Court | 590 So. 2d 209 (1991)
INSURANCE MANAGEMENT AND ADMINISTRATION, INC.
v.
PALOMAR INSURANCE CORPORATION, et al.
1901148.
Supreme Court of Alabama.
October 4, 1991.
Rehearing Denied November 8, 1991.
*210 John R. Bradwell of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellant.
Richard H. Gill and Gregory L. Davis of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellees.
HOUSTON, Justice.
Insurance Management and Administration, Inc. ("IMA"), appeals from the denial of its motion to set aside a default judgment. The dispute in this case arose when Palomar Insurance Corporation; W. G. Mercer Livestock Company; W. G. Mercer; Horn Beverage Company, Inc.; Ellis Metals, Inc.; and Ozark Stripping Company, Inc., sued IMA, claiming damages for breach of contract, breach of fiduciary duty, fraud, and conspiracy to defraud. The court entered a default judgment against IMA after it had failed to answer the complaint, and the court awarded compensatory damages to each of the plaintiffs and punitive damages to one of the plaintiffs. Thereafter, the court denied IMA's motion to set aside the default judgment pursuant to Rules 55(c) and 60(b)(1), (4), and (6), Ala.R.Civ.P.
The issues presented for our review are whether IMA's motion, insofar as it sought to set aside the default judgment under Rules 55(c) and 60(b)(1), was timely and, if it was, whether the trial judge, the Honorable Eugene W. Reese, judge of the Montgomery Circuit Court, abused his discretion in refusing to set aside the default judgment under Rules 55(c) and 60(b)(1); whether the trial judge erred in denying IMA's motion under Rule 60(b)(4), which authorizes the granting of relief from a judgment when the judgment is void; and whether the trial judge abused his discretion in denying IMA's motion to set aside *211 the judgment under Rule 60(b)(6). We affirm.
The plaintiffs filed a complaint in Montgomery Circuit Court on August 17, 1989, alleging breach of contract, breach of fiduciary duty, and fraud against The American Health Trust. The plaintiffs alleged that The American Health Trust was a business trust that had its principal place of business in Clearwater, Florida. On March 7, 1990, the plaintiffs amended their complaint, adding U.S. Med. Trust and IMA, a Florida corporation, as defendants and stating a claim based on a conspiracy to defraud. The plaintiffs' claims arose out of their inability to collect under policies of group health insurance allegedly solicited and sold by The American Health Trust and its administrator, IMA. U.S. Med. Trust is alleged to be the successor trust to The American Health Trust. The American Health Trust was apparently dissolved when the underwriting insurance company went into involuntary receivership. Neither The American Health Trust nor U.S. Med. Trust is a party to this appeal.
Because none of the defendants had answered the plaintiffs' complaint, the Honorable Mark Montiel, judge of the Montgomery Circuit Court, entered defaults against U.S. Med. Trust and IMA on May 16, 1990. Shortly thereafter, the plaintiffs' attorney mailed to Judge Montiel a letter that stated, in pertinent part, the following:
Judge Montiel set a hearing for July 6, 1990, to ascertain the plaintiffs' damages. A damages hearing was held on that date and Judge Montiel entered a default against The American Health Trust on that same day. Subsequently, on July 17, 1990, Judge Montiel rendered a judgment in which he specifically stated in the first paragraph as follows:
Judge Montiel then in the second and third paragraphs awarded damages against all of the defendants, including IMA. That judgment was filed with the circuit clerk on July 20, 1990. On February 8, 1991, the plaintiffs filed a Rule 60(a), Ala.R.Civ.P., "Motion to Amend Court's Order to Correct Clerical Mistake." The following letter of explanation by the plaintiffs' attorney was enclosed with that motion:
*212 On February 14, 1991, Judge Reese, who had replaced Judge Montiel as a judge on the Montgomery Circuit Court, amended the default judgment that had been previously rendered by Judge Montiel by stating in the first paragraph as follows:
The amended judgment was filed with the circuit court clerk that same day. On February 26, 1991, IMA filed its motion to set aside the default judgment.
The threshold question presented in this case is whether IMA's motion, insofar as that motion sought to set aside the default judgment pursuant to Rules 55(c) and 60(b)(1), was timely. A motion to set aside a default judgment under Rule 55(c) must be filed within 30 days of the entry of the judgment. Rule 55(c). A Rule 60(b)(1) motion must be filed within four months of the entry of the judgment. Rule 60(b). The parties in this case are at issue over exactly when the default judgment was entered against IMA. The plaintiffs contend that Judge Montiel rendered a default judgment against IMA on July 17, 1990; that that judgment was entered on the civil docket on July 20, 1990, when it was filed with the circuit court clerk pursuant to Rule 58(c), Ala.R.Civ.P.; and, therefore, that IMA's motion to set aside the judgment under Rules 55(c) and 60(b)(1), which was filed on February 26, 1991, came too late. IMA insists, however, that the default judgment was not entered against it until February 14, 1991, when Judge Reese rendered the amended judgment. Thus, IMA argues, it timely sought relief from the judgment on February 26, 1991.
After a thorough examination of the record, we are satisfied that Judge Montiel entered defaults against U.S. Med. Trust and IMA on May 16, 1990, and against The American Health Trust on July 6, 1990, and, that, after conducting a hearing on July 6, 1990, to determine the amount of damages, he intended to, and did, render a default judgment on July 17, 1990, against all of the defendants, including IMA. See Rule 58(b), Ala.R.Civ.P., which provides:
Because Judge Montiel rendered a default judgment on July 17, 1990, against IMA, IMA's February 26, 1991, motion, insofar as it sought to set aside the July 17, 1990, judgment under Rules 55(c) and 60(b)(1), was not timely.
The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Satterfield v. Winston Industries, Inc., 553 So. 2d 61 (Ala.1989).
With regard to its Rule 60(b)(4) motion, IMA contends that it presented sufficient evidence to show that it was not properly served with the summons and complaint and, therefore, that the default judgment was void and, thus, should have been set aside on the ground of lack of in personam jurisdiction. We disagree.
Rule 4.2(b)(1), Ala.R.Civ.P., provides the method for out-of-state service of process by certified mail. Under that Rule, proof of service is evidenced by the return *213 receipt and the circuit court clerk's notation on the docket sheet that the process has been properly mailed. Although Rule 4.2(b)(1) does not specifically state that a showing of a properly executed return receipt, and the circuit court clerk's notation that the process has been properly mailed, create a presumption of correctness of proper service, as Rules 4.1(b)(3) and 4.2(b)(2)(B) state with regard to in-state and out-of-state service by process servers, see Powell v. Central Bank of the South, 510 So. 2d 171 (Ala.1987), we conclude, nevertheless, that a presumption of correctness should, and does, attach to such a showing and that the party challenging the return bears the burden of establishing lack of service by clear and convincing evidence. In addition, we also conclude that a properly executed return will not be invalidated upon the uncorroborated statements of the parties in which they simply deny that they were properly served. See Powell; see, also, Raine v. First Western Bank, 362 So. 2d 846 (Ala.1978).
In the present case, the case action summary reflects that IMA was properly served. In addition, two affidavits were filed by the plaintiffs, one being the affidavit of the secretary of the plaintiffs' attorney and the other being the affidavit of the deputy clerk of the Montgomery Circuit Court. These affidavits indicate that a summons and the amended complaint were sent to IMA's post office box address in Florida, via certified mail. A copy of the return receipt, which was attached as an exhibit to the affidavit of the deputy clerk, shows that an employee of IMA, Jane Mahon, signed the return receipt as an "agent" for IMA. In response, IMA filed the affidavit of Jane Mahon, whose duties were to open and distribute all of the mail received by the company. Mahon stated that she was not an "agent" of the company and that she had received the complaint, but not a summons. Mahon further stated that because no summons was attached to the complaint she did not forward the complaint to a superior. Based on this evidence, Judge Reese found that the summons and complaint had been properly served on IMA by certified mail. Because our review of the record shows that IMA did not establish lack of service by clear and convincing evidence, we conclude that Judge Reese properly refused to set aside the default judgment under Rule 60(b)(4).
In Smith v. Clark, 468 So. 2d 138, 140 (Ala.1985), this Court stated:
IMA's failure to file a timely Rule 60(b)(1) challenge to the default judgment, and its failure to present clear and convincing evidence of lack of service of process in regard to its Rule 60(b)(4) challenge, precluded further review under Rule 60(b)(6) of the propriety of the default judgment. Judge Reese did not err in refusing to set aside the default judgment against IMA under Rule 60(b)(6).
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur. | October 4, 1991 |
56b369da-9925-4693-8c59-0d73989c5eb2 | Leonard v. Providence Hosp. | 590 So. 2d 906 | 1901514 | Alabama | Alabama Supreme Court | 590 So. 2d 906 (1991)
Marie Catherine LEONARD
v.
PROVIDENCE HOSPITAL and Elizabeth Newberry.
1901514.
Supreme Court of Alabama.
November 22, 1991.
*907 Gregory S. Reese, Mobile, for appellant.
A. Neil Hudgens, R. Alan Alexander and Thomas H. Nolan, Jr. of Brown, Hudgens, P.C., Mobile, for appellees.
SHORES, Justice.
The plaintiffs appeal from a summary judgment for the defendants, Providence Hospital and Elizabeth Newberry, in a case brought under the Alabama Medical Liability Act, § 6-5-480 et seq., as supplemented by the Alabama Medical Liability Act of 1987, § 6-5-540 et seq. We affirm.
Marie Catherine Leonard, an 81-year old woman, fell out of bed in Providence Hospital in Mobile County, Alabama, and broke her hip. She had been admitted to the hospital because of asthma, diabetes, and chronic lung disease. She sued the hospital and Nurse Elizabeth Newberry, alleging medical malpractice on the part of the nurse and the hospital, specifically that the nurse had failed to keep the siderails up on her bed.[1]
The question before us is whether the trial court erred in entering the summary judgment in favor of the nurse and the hospital. Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, the trial court must determine: 1) that there is no genuine issue of material fact, and 2) that the moving party is entitled to a judgment as a matter of law. In determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant. See Turner v. Systems Fuel, Inc., 475 So. 2d 539, 541 (Ala.1985); Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981).
In this case, Rule 56 must be read in conjunction with the "substantial evidence rule" set out at § 6-5-548(a) and the following definition of "substantial evidence" appearing at § 6-5-542(5) of the Alabama Medical Liability Act:
The record reflects that Dr. Marc S. Gottlieb, Mrs. Leonard's attending physician, testified that nurses should follow any orders that he gives for the care of his patients. However, he never gave any order directing the nursing staff to keep the siderails up on Mrs. Leonard's bed at all times and never gave any ambulatory precautions. Dr. Gottlieb testified that Mrs. Leonard would have been able to operate the siderails by herself. Nurse Newberry's notes indicate that Mrs. Leonard herself let down the siderail, left the bed, and fell while she was walking. On a motion for summary judgment, when the movant makes a prima facie showing that no genuine issue of material fact exists, as in the present case, the burden shifts to the nonmovant to show "substantial evidence" in support of his position. Bean v. Craig, 557 So. 2d 1249, 1252 (Ala.1990). The plaintiff did not meet this burden.
This case was brought under the Alabama Medical Liability Act, as supplemented. *908 Section 6-5-548(a), regarding the plaintiff's burden of proof, provides as follows:
This section has been read as requiring that the "community" standard of due care, see § 6-5-484(a), be established by expert medical testimony. Rosemont Inc. v. Marshall, 481 So. 2d 1126 (Ala.1985); Loeb v. Cappelluzzo 583 So. 2d 1323 (Ala. 1991). Mrs. Leonard admits that she did not submit expert testimony; however, she contends that her claim against the hospital comes within an exception to the rule requiring expert testimony, because she claims that the lack of care was so apparent as to be within the comprehension of the average layman. Therrell v. Fonde, 495 So. 2d 1046 (Ala.1986); Walker v. Southeast Alabama Medical Center, 545 So. 2d 769 (Ala.1989).
In a case such as this, when there is no medical order requiring a certain type of treatment or precaution, it becomes a question of proper nursing practice and care under the particular facts and circumstances of the case. Expert testimony is needed to establish the degree of "care, skill and diligence" used by "similarly situated health care providers in the same general line of practice."
The summary judgment for the defendants is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
[1] Her husband, Ormond C. Leonard, sued for damages for loss of consortium; however, he died before the summary judgment was entered. | November 22, 1991 |
040be1e5-a522-48e8-98e4-44506e874858 | Ex Parte Harris | 590 So. 2d 285 | 1901364 | Alabama | Alabama Supreme Court | 590 So. 2d 285 (1991)
Ex parte Maida HARRIS.
(re Maida HARRIS v. AVONDALE MILLS, INC.)
1901364.
Supreme Court of Alabama.
October 4, 1991.
Betty C. Love of Love Love & Love, P.C., Talladega, for petitioner.
*286 Donald W. Lang, Sylacauga, for respondent.
SHORES, Justice.
We issued the writ of certiorari to review the Court of Civil Appeals' determination of what is an "accident" under the Workmen's Compensation Act ("Act"), Alabama Code 1975, § 25-5-1(8), and to determine whether the petitioner gave her employer proper notice of her injury.
The petitioner, Maida Harris, was employed for seven and a half years as a winder for Avondale Mills, Inc., in its Sylacauga, Alabama, textile plant. Harris's position with Avondale Mills required her to operate a tool known as a "knotter." Harris testified that in December 1986 the knotter began striking her hand between her thumb and forefinger. Harris also testified that she reported this injury to her foreman, who instructed her to place a bandage on the wound and continue her work. According to Harris, on February 17, 1987, while she was working, a severe pain began in her hand and traveled up her arm; she said the pain was such that she could not continue working. The next day, Harris saw a physician, and in May 1987 Harris underwent surgery on her injured hand.
Harris filed a complaint against Avondale Mills, alleging that the injury to her hand arose out of and in the course of her employment with Avondale Mills; Harris later amended her complaint to allege, in the alternative, that she had suffered an occupational disease while working for Avondale Mills. Following an ore tenus proceeding, the trial court found that Harris had not met her burden of proof, in that, it found, she had not established that she had suffered a compensable accident under § 25-5-1(8). Specifically, the trial court held that an accident under § 25-5-1(8) does not include an injury resulting from a gradual disintegration or deterioration and that Harris never gave Avondale Mills notice of her injury. The trial court rendered no finding on Harris's claim of an occupational disease, and Harris has not challenged its failure to render a finding on that claim. The Court of Civil Appeals affirmed the judgment of the trial court.
An "accident" is defined by § 25-5-1(8) as "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 or damage to an artificial member of the body by accidental means." This Court has long concluded that if the job caused the injury then the injury was an "accident" within the intent of the Act. Pow v. Southern Construction Co., 235 Ala. 580, 180 So. 288 (1938), Kane v. South Central Bell Telephone Co., 368 So. 2d 3 (Ala.1979). In Kane, the Court was asked to hold that an employee's injuries were not the result of an accident because the injuries were incurred over an extended period of time and, therefore, the employer argued, not covered by the Act; the employer argued that the Act's intent was to cover only injuries that happened "suddenly and violently." We declined to so hold, reiterating the point that "[t]he requirement that there must be shown a violent and unusual event which causes the injury [has been] replaced by the principle that there was an accident if the result was unexpected and unforeseen and it was caused by the job." Kane, 368 So. 2d at 5 (citations omitted). Therefore, an employee is not required, under the Act, to prove the existence of some violent and unusual event that resulted in his or her injuryif the job caused the injury, then the injury is an accident within the intent of the Act.
The facts of this case clearly indicate that Harris's position as a winder with Avondale Mills served as the reason for her injury; it therefore follows that the injury was indeed an accident. In affirming, the Court of Civil Appeals cited Buchanan Lumber Co. v. Edwards, 531 So. 2d 1 (Ala. Civ.App.1988). The court in Edwards referred to United Telephone & Telegraph Co. v. Culiver, 271 Ala. 568, 126 So. 2d 119 (1961), for the proposition that "[the] concept of accident [under the Act] contemplates a reasonably definite period of time during which the accident manifests itself, rather than a gradual disintegration or deterioration." *287 Edwards, 531 So. 2d at 2, citing Culiver, 271 Ala. at 570, 126 So. 2d at 120. Culiver quotes heavily from Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937), for support; Gentry was one of several cases that held that an accident related to the event causing the injury, not the result, and that that event must take place suddenly and violently. See Kane, id., at 4, quoting City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So. 2d 729 (1975). As noted earlier, such a definition of "accident" is no longer valid. Kane, id. at 5. The term "accident" is not a characterization of the method of injury, but the result thereof. See Kane, supra, and Hightower v. Brammall, Inc., 435 So. 2d 1295 (Ala.Civ.App.1982). A review of case law bears this point out.
In Kane, the Court determined that a heart attack, brought on by the gradual inhalation of paint fumes over several days, was indeed an accident under the Act. The Court of Civil Appeals, in Albertville Nursing Home v. Upton, 383 So. 2d 544 (Ala.Civ.App.1980), held that a skin condition, resulting from daily contact with caustic cleaning solutions, was an accident under the Act. Also, in B.F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So. 2d 37, cert. denied, 287 Ala. 726, 253 So. 2d 45 (1971), an allergic reaction to rubber cement was deemed an accident under the Act even though both the sensitization to the chemical and the allergic reaction occurred over a prolonged period of time.
Harris's injury was an accident under the Act, as the record clearly establishes. The fact that the injury did not manifest itself within a definite time period in no way diminishes the fact that Harris's injury was an accident, for it was her job that caused her injury.
As to the issue of whether Harris gave Avondale Mills proper notice of her injury, it is undisputed that Harris never gave written notice of her injury. Section 25-5-78 does generally require that written notice be given to an employer by an injured employee within 90 days of an accident in order to recover compensation, but written notice is not required if it is shown that an employer had actual notice of the injury. International Paper Co. v. Murray, 490 So. 2d 1228 (Ala.Civ.App.), remanded on other grounds, 490 So. 2d 1230 (Ala. 1984). Oral notice is sufficient to constitute actual notice. International Paper Co., supra; see also Avondale Mills, Inc. v. Webster, 574 So. 2d 51 (Ala.Civ.App.1990).
The record reveals that Harris did give oral notification of her injury to her supervisor. In December 1986, when the knotter initially injured her hand, Harris told her supervisor of the injury, and on February 17, 1987, when she suffered the acute pain in her hand and arm, Harris again went to her supervisor. Avondale Mills had adequate notice of Harris's injury.
Because Harris suffered an "accident," as defined by the Act, and because her employer, Avondale Mills, had adequate notice of her accident, the Court of Civil Appeals erred in affirming the trial court's judgment. The Court of Civil Appeals' judgment is reversed and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | October 4, 1991 |
6f6897f6-ce6d-4c41-9169-080b6e82b618 | Ex Parte Hirsch | 592 So. 2d 597 | 1901016 | Alabama | Alabama Supreme Court | 592 So. 2d 597 (1991)
Ex parte Kenneth HIRSCH, et al.
(Re Kenneth HIRSCH, et al. v. ALABAMA STATE DOCKS DEPARTMENT, et al.)
1901016.
Supreme Court of Alabama.
November 15, 1991.
*598 Richard H. Taylor of Jackson & Taylor, P.C., and Richard G. Alexander of Alexander and Associates, Mobile, for petitioners.
Charles L. Miller, Jr., Thomas H. Benton, Jr. and Victor H. Lott, Jr. of Lyons, Pipes & Cook, P.C., Mobile, for respondents.
KENNEDY, Justice.
Former employees of the Alabama State Docks Department ("Docks Department") filed a class action, Rule 23, A.R.Civ.P., against the Docks Department; John Dutton, as director of the Docks Department; and Robert M. Hope, Larry R. Downs, and Frank C. Daniels, as trustees of the Hourly Paid Alabama State Docks Department Workers Retirement Plan and Trust. The trial court certified two classes of plaintiffs, then entered summary judgment for all the defendants against both classes of plaintiffs on all their claims. The Court of Civil Appeals affirmed, Hirsch v. Alabama State Docks Department, 592 So. 2d 595 (Ala.1991), and we granted certiorari review. There are no issues before the Court concerning the propriety of the class certifications.
On November 30, 1987, the activities of the Mobile wharves and warehouses division of the Docks Department were transferred to the Mobile Steamship Association. Apparently because of that transfer, the employees of the wharves and warehouses division were terminated on that day.
On May 1, 1987, the Mobile coal-handling facility of the Docks Department laid off 38 employees because of a lack of business. Although the laid-off employees were eligible to be recalled, only two were recalled.
While these Docks Department employees worked for either the wharves and warehouses division or the coal-handling facility, it is undisputed that the International Longshoremen's Association, Local 1984 (the "Union"), was their collective bargaining representative with the Docks Department. The Union and the Docks Department entered into an agreement concerning pension benefits. Section 6.2 of that agreement provided:
The agreement further provided at Article 17:
The Hourly Paid Alabama State Docks Department Workers Retirement Plan and Trust ("pension fund") was created to administer those negotiated pension benefits; accordingly, the plaintiffs named its trustees as defendants. The pension fund is funded entirely by the Docks Department based upon an actuarial computation of the demographic makeup of the hourly workers who will be eligible for benefits from the fund; neither the plaintiffs nor any other hourly worker contributed any money to the pension fund. Although the Docks Department has not paid the plaintiffs any benefits from the pension fund, it is undisputed that the pension fund remains in existence and that other Docks Department employees may obtain benefits from that fund.
One of the classes of plaintiffs in this action, to which the complaint refers as the "class I plaintiffs," claims that its members are entitled to pension benefits pursuant to the provisions set out above. Specifically, the class I plaintiffs claim that under Article 6.2 of the agreement the Union "ceased to be" their collective bargaining unit when they were terminated, so that the pension fund is partially terminated, and that they are, thus, according to them, entitled to pension benefits.
The Union and the Docks Department also entered into an agreement, effective April 2, 1986, concerning group insurance. It stated:
The Union and the Docks Department entered into a second agreement concerning medical insurance, although the effective date of that agreement is unclear from the record.[1] That agreement provided:
Accordingly, the difference in the two agreements concerning medical insurance is that the second agreement required a 28% copayment by the employee for medical insurance for dependents.
The class II plaintiffs make various claims, which we describe in more detail presently, for medical insurance benefits.
The defendants filed a motion for summary judgment in which they argued that the plaintiffs could not maintain this action against them because of the doctrine of sovereign immunity. The plaintiffs admitted that the defendants normally have sovereign immunity, but they argued that this action fell within one of the exceptions to that doctrine. The trial court's order entering summary judgment for all the defendants simply stated:
The Court of Civil Appeals, in affirming the trial court's judgment, wrote:
592 So. 2d at 595-597.
Against this background, we address the Court of Civil Appeals' affirmance of the trial court's summary judgment. The law concerning summary judgments is well established. The standard used to determine the propriety of a summary judgment is found in Rule 56(c), A.R.Civ.P.:
The burdens placed on the parties by the rule have often been described:
Stephens v. City of Montgomery, 575 So. 2d 1095, 1097 (Ala.1991), quoting Schoen v. Gulledge, 481 So. 2d 1094, 1096-97 (Ala.1985).
In order to rebut a prima facie showing that there is no genuine issue of material fact, the nonmovant must show the existence of a genuine issue of material fact by "substantial evidence," Ala.Code 1975, § 12-21-12, which has been defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). In determining whether there is substantial evidence, we review the evidence in the light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Stephens, at 1097; Sanders v. Kirkland & Co., 510 So. 2d 138 (Ala.1987).
Finally, a trial court's ruling on a summary judgment motion is a nondiscretionary ruling, and no presumption of correctness attaches to that ruling; accordingly, our review of the evidence properly presented in the record is de novo. Hightower & Co. v. United States Fidelity & Guaranty Co., 527 So. 2d 698 (Ala.1988).
Within that framework of the law of summary judgments, we address the summary judgment on the class I plaintiffs' claims. The defendants had the burden of producing a prima facie case indicating that they were protected by sovereign immunity. It is undisputed that they did so. The class I plaintiffs do not attempt to rebut the defendants' prima facie showing; indeed, the class I plaintiffs state that the defendants are normally protected by sovereign immunity. No doubt, as a proposition of law, the defendants are normally protected by sovereign immunity. Art. I, § 14, 1901 Constitution of Alabama; Jones v. Alabama State Docks, 443 So. 2d 902 (Ala.1983).
The class I plaintiffs, however, contend that their action falls within a category of actions that are not prohibited by § 14 of the 1901 Constitution and thus is not prohibited by the doctrine of sovereign immunity. In Taylor v. Troy State University, 437 So. 2d 472, 474 (Ala.1983), the Court set out certain categories of actions that do not come within the prohibitions of § 14:
The class I plaintiffs argue that their action is an action brought to compel the performance of a legal duty. As we stated earlier, the class I plaintiffs claim that under Article 6.2 of the agreement between the Union and the Docks Department, the Union "ceased to be" their collective bargaining unit when they were terminated, so that the pension fund is partially terminated, and that they are, thus, according to them, entitled to pension benefits; accordingly, the class I plaintiffs argue, their action is an action brought to compel the performance of a legal dutythe duty to pay them the pension benefits. We must examine the record carefully to determine if the class I plaintiffs have produced substantial evidence to overcome defendants prima facie case that defendants were protected by sovereign immunity. We focus in this instance particularly on whether the class I plaintiffs have proved the existence of a legal duty, because if the defendants owe no legal duty to the class I plaintiffs then the class I plaintiffs cannot properly characterize this action as an action to compel the performance of such a duty. The class I plaintiffs' argument that their action falls within a category of actions not prohibited by § 14would, accordingly, fail.
Section 6.2 of the agreement states:
(Emphasis added).
Section 6.2 provides that the employer and the trustee reserve the right to partially terminate the pension plan if the union "ceases to be the collective bargaining agent" for the workers. Based primarily on that language, the class I plaintiffs make their claim we described earlier. Section 6.2, however, further provides that if the plan is terminated, the rights of the employees to the benefits accrued to the date of such termination are not forfeitable and that if there is such a termination, the assets of the trust fund to the extent necessary to fund fully "said vested rights" will be distributed to the participants or their beneficiaries. There is no provision in the agreement that defines "benefits accrued" or "vested rights," but, as we have set out earlier, there are explicit provisions concerning who is entitled to receive the pension fund benefits: employees who have worked for the Docks Department for 1,000 hours a year for 15 or more consecutive years and who have been declared eligible for retirement benefits by the United States Social Security Administration.
Thus, Section 6.2, on its face, when it states that employees' rights to the benefits accrued are not forfeitable and that the assets of the pension fund to the extent necessary to fully fund the employees' vested rights are to be distributed, refers to benefits payable to employees who are entitled to receive benefits from the pension fund, that is, employees who have, in the words of the agreement, "vested rights" in that fund. The class I plaintiffs produce no evidence contrary to this conclusion, although, without supporting evidence, *603 they deny that the conclusion is correct.
The class I plaintiffs admitted at oral argument that none of them had "vested rights" in the pension fund. Although six of the class I plaintiffs fulfilled the requirement of working an average of 1,000 hours a year for 15 or more consecutive years, those six have not been declared eligible for retirement benefits by the United States Social Security Administration; the Docks Department acknowledged at oral argument that those six will be entitled to the pension benefits when they are declared eligible for retirement benefits by the United States Social Security Administration. Nevertheless, at present, none of the class I plaintiffs has fulfilled all the requirements to be entitled to the pension fund benefits. Accordingly, we hold that the class I plaintiffs failed to prove that the defendants had a legal duty to pay them benefits from the pension fund. The class I plaintiffs' contention that the action is an action "to compel State officials to perform their legal duties," Taylor v. Troy State University, therefore fails. Consequently, the class I plaintiffs failed to prove that their action was within one of the categories of actions not prohibited by § 14.
Although we do not necessarily agree with all of the language in the Court of Civil Appeals' opinion concerning its judgment as to the class I plaintiffs, the Court of Civil Appeals did not commit reversible error in holding that the doctrine of sovereign immunity protected the defendants as to the claims of the class I plaintiffs. As to that holding and that class of plaintiffs, the judgment is due to be affirmed.
The class II plaintiffs make a variety of claims in relation to medical insurance benefits.[2] As they argued with regard to the class I plaintiffs, the defendants argue that they are protected from the action by the doctrine of sovereign immunity, and the class II plaintiffs state that the defendants are normally protected by sovereign immunity. The class II plaintiffs, like the class I plaintiffs, contend that their action is an action to compel state officials to perform their legal duties, Taylor v. Troy State University, 437 So. 2d at 474, and, accordingly, is within one of the categories of actions not prohibited by § 14. Id.
The agreements concerning medical insurance benefits seem to indicate that the class II plaintiffs, if they were entitled to medical insurance benefits, would have been entitled to them until December 31, 1988. That appears undisputed. The primary basis of disagreement is whether the class II plaintiffs must pay for their dependents' insurance. As the documents set out earlier indicated, one agreement, effective April 2, 1986, guaranteed that the medical insurance for dependents would be paid; a later agreement required the employees to make a 28% copayment of medical insurance premiums for dependents. The class II plaintiffs claim, among other things, damages for breach of contract (1) for medical insurance premiums paid by the class II plaintiffs for their dependents, and (2) for losses caused by the denial of dependents' medical insurance claims where the denial was proximately caused by the defendants' failure to pay the medical insurance premium.
In support of their claims, the class II plaintiffs produced the documents described above, and they also produced evidence indicating that they met the contractual requirements to be entitled to the medical insurance benefits. Accordingly, the class II plaintiffs presented a prima facie case indicating that their action was an action to enforce a legal duty, and the Court of Civil Appeals erred when it determined that the class II plaintiffs' action was barred by sovereign immunity. That same evidence substantially supports the plaintiffs' underlying claims.
The defendants make two arguments in response. First, they argue that the class II plaintiffs failed to file grievances with the Union's local chapter and that the class II plaintiffs thus failed to exhaust their *604 administrative remedies under the agreement; accordingly, they contend that the class II plaintiffs cannot bring this action. Second, they argue that the class II plaintiffs' claims are improperly based on the terms of the agreement in effect immediately prior to their termination; the defendants contend that the class II plaintiffs are bound by the later agreement that involves the 28% copayment for dependents, because, they say, the Union's representatives continued to represent the class II plaintiffs after they were terminated. In support of that contention, the defendants cite several federal cases.
However meritorious the defendants' arguments may turn out to be when addressed in their complete factual background, the record will not support a summary judgment for the defendants on the class II plaintiffs' claims. Comparing the class II plaintiffs' evidence with the evidence offered by the defendants in support of their arguments, particularly the second argument, we hold that as to the class II plaintiffs' claims there exist genuine issues of material fact, suitable for a jury's determination. The trial court erred when it entered the summary judgment for the defendants on the class II plaintiffs' claims, and the Court of Civil Appeals erred in affirming that judgment.
In summary, the judgment of the Court of Civil Appeals as to the class I plaintiffs is due to be affirmed, but as to the class II plaintiffs that judgment is due to be reversed and the cause remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON, and INGRAM, JJ., concur.
STEAGALL, J., concurs in part and dissents in part.
STEAGALL, Justice (concurring in part and dissenting in part).
I agree with the dissent of then-Chief Justice Heflin and Justice Jones in Avondale Mills v. Saddler, 292 Ala. 134, 139, 290 So. 2d 173, 176-77 (1974), in which they stated, in part:
I, therefore, respectfully dissent from that part of the judgment and opinion relating to the class I plaintiffs. I concur in that part of the judgment and opinion relating to the class II plaintiffs.
[1] The effective date is shown at some places in the record as December 1, 1987, and in other places as December 1, 1988.
[2] None of the parties indicates, nor does the record explain, whether the class II plaintiffs contend that the trustees of the pension fund are liable for their claims. For all that appears to this Court, the trustees seem to be defendants only as to the class I plaintiffs' claims. | November 15, 1991 |
673f1f6c-7acf-4154-9223-cba31ffe835e | Ex Parte Employers Ins. of Wausau | 590 So. 2d 888 | 1901308, 1901420 | Alabama | Alabama Supreme Court | 590 So. 2d 888 (1991)
Ex parte EMPLOYERS INSURANCE OF WAUSAU, et al.
(Re COOPER/T. SMITH STEVEDORING COMPANY, INC., et al. v. ALABAMA INSURANCE GUARANTY ASSOCIATION, et al.)
Ex parte AMERICAN HOME ASSURANCE COMPANY, et al.
(Re COOPER/T. SMITH STEVEDORING COMPANY, INC., et al. v. ALABAMA INSURANCE GUARANTY ASSOCIATION, et al.)
1901308, 1901420.
Supreme Court of Alabama.
November 15, 1991.
*889 J. Hodge Alves III and W. Alexander Moseley of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for petitioners Employers Ins. of Wausau, Texas Marine Underwriters Agency, Inc., American Marine Underwriters, Angelina Cas. Co. and Ranger Ins. Co.
Mack B. Binion of Briskman & Binion, P.C., Mobile, for petitioners American Home Assur. Co., Bellefonte Reinsurance Co., Christiania General Ins., Colonial Ins. Co., Ins. Co. of North America, Intern. Ins. Co., Lumberman's Mut. Ins. Co., Midland Ins. Co., New York Marine Managers, Northeastern Ins. Co., Old Republic Ins. Co., Pennsylvania Lumberman's Mut. Ins. Co., Reinsurance Corp. of New York, Republic Ins. Co., Southern American Ins. Co., St. Paul Fire & Marine Ins. Co., Stonewall Ins. Co., Twin Cities Ins. Co., U.S. Fire Ins. Co. and Vanguard Ins. Co., certain underwriters at Lloyd's, certain London Market ins. companies, and Highlands Ins. Co.
Fred W. Killion, Jr. of Reams, Philips, Killion, Brooks, Schell, Gaston & Hudson, P.C., Mobile, for petitioner Home Ins. Co.
Peter V. Sintz of Sintz, Campbell, Duke, Taylor & Cunningham, Mobile, for petitioner Nat. Union Fire Ins. Co. of Pittsburgh, Pa.
Philip C. Hunsucker, San Francisco, Cal., pro hac vice.
Earl John Imhoff, Los Angeles, Cal., pro hac vice.
Norman E. Waldrop, Jr. and M. Kathleen Miller of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for respondents Cooper/T. Smith Corp. and Paco Terminals, Inc.
Timothy M. Grogan, Mobile, for Pate Stevedore of Mobile, Inc., et al.
Robert S. McAnnally, Cooper C. Thurber and Joseph J. Minus, Jr., for Alabama Ins. Guar. Ass'n.
Greg Wright, Miami, Fla., for Trinity Associates, Inc.
Jan S. Driscoll and F.P. Crowell of Gray, Cary, Ames & Frye, San Diego, Cal., for Cooper/T. Smith Corp.
INGRAM, Justice.
The petitioners seek a writ of mandamus directing the Mobile Circuit Court to set aside certain of its rulings and to stay all proceedings in that court until resolution of an allegedly identical lawsuit pending in a superior court of the State of California.
The petitioners, defendants below, are the primary and excess insurance carriers that issued insurance policies to the respondents, Cooper/T. Smith Stevedoring Company, Inc. ("Cooper/T. Smith"), and Pate Stevedore Company of Mobile ("Pate"). Cooper/T. Smith, a Louisiana corporation with its principal place of business in Mobile, Alabama, and Pate, whose principal place of business is also located in Mobile, sued the petitioners in the Mobile Circuit Court, seeking, among other things, a declaratory judgment regarding coverage under insurance policies issued to them by the petitioners. Cooper/T. Smith and Pate each owns 50 percent of the stock of Paco Terminals, Inc. ("Paco"), a California corporation that conducted a stevedoring business at a site in California from October 1, 1978, through January 31, 1988. Paco leased the 24th Street Marine Terminal in National City, California, from the San Diego Unified Port District. Paco's operations at the 24th Street Terminal included the receiving, handling, and loading of copper concentrate for several mining corporations. The operations involving copper concentrates began in March 1979 and continued through December 1986.
In July 1985, the California Regional Water Quality Control Board ("Regional Board") notified Paco of alleged copper contamination of the San Diego Bay in and *890 around the vicinity of Paco's operations at the 24th Street Terminal. Subsequently, the Regional Board issued a "Cleanup and Abatement Order" requiring Paco to arrange remedial action alternatives for cleaning up the copper contamination. Throughout 1986 and 1987, Paco attempted to respond to the Regional Board's order and to resolve the Regional Board's claims against Paco.
In the spring of 1988, Paco retained legal counsel to represent it in connection with its attempts to obtain coverage, indemnity, and a defense from its insurers with respect to the Regional Board's claims. A meeting was held for all insurers who had issued coverage to Paco for the period in question. Following that meeting, Employers Insurance of Wausau, and the other companies that join Wausau in its petition in this Court, filed a complaint for a declaratory judgment in the United States District Court for the Southern District of Alabama against Paco and against Cooper/T. Smith and Pate.
On August 12, 1988, Paco filed an action in the Superior Court of San Diego County, California, against all insurers providing coverage to Paco during the period in question. Paco sought coverage, indemnity, and a defense against the claims of the Regional Board against Paco. Paco then filed a motion to dismiss or, in the alternative, to stay the action pending in the federal court in Alabama. Thereafter, the United States District Court for the Southern District of Alabama entered a judgment dismissing Wausau's suit.
Paco also filed suit in a federal court in California against the mining corporations for which it had conducted stevedoring operations at the 24th Street Terminal and against the manufacturer of the equipment that was used to load the copper concentrate. The mining corporations filed counterclaims against Paco and against Cooper/T. Smith and Pate as shareholders of Paco.
In February 1989, the Regional Board added the San Diego Unified Port District as a responsible party to its prior cleanup and abatement order regarding the 24th Street Terminal. Subsequently, Paco sued the Port in a federal court in California, and the Port counterclaimed against Paco. In December 1989, the Port amended its counterclaim to include Cooper/T. Smith and Pate in their capacities as shareholders of Paco. In January 1990, Cooper/T. Smith and Pate tendered the defense and indemnity of those claims to its insurers, and the tenders were either ignored or denied.
On December 17, 1990, Cooper/T. Smith filed suit in the Mobile Circuit Court against the petitioners, seeking a judgment requiring the petitioners to indemnify it and to provide for its defense in the pending lawsuits. It also brought a claim for bad faith against these petitioners in the Mobile Circuit Court. Pate filed an identical suit in the same court. In March 1991, the petitioners filed, in the Mobile Circuit Court, a joint motion to dismiss or, in the alternative, to stay the action pending in that court. The petitioners filed a brief in support of their motion on April 3, 1991. At that time, the petitioners also filed a motion for an immediate hearing on the motion to dismiss or, in the alternative, to stay, and a motion to stay discovery pending a ruling on the jurisdictional motions. On that same day, the Superior Court of San Diego County, California, granted a temporary restraining order concerning Cooper/T. Smith and Pate's requests for privileged documents from the petitioners in the case.
However, at an April 9 hearing on motions to compel discovery filed by Cooper/T. Smith and Pate, the Mobile Circuit Court advised counsel that the California order was invalid. The court also ordered that "counsel for all parties [to] these proceedings immediately commence all discovery proceedings which they deem necessary and appropriate for resolution of the issues in this litigation, and that such discovery be concluded no later than September 15, 1991." The order also set the case for trial in the Mobile Circuit Court on Monday, October 21, 1991. The case in the California state court had previously been set for trial on November 4, 1991.
*891 On April 12, 1991, four days after the Mobile Circuit Court's order to proceed, the petitioners filed their briefs and exhibits in the California court, seeking an anti-suit injunction against the Alabama litigation. On May 14, 1991, following a hearing on that injunction, the California court enjoined Cooper/T. Smith and Pate from proceeding against any of the defendant insurers in the Alabama courts.
Meanwhile, on April 29, 1991, the Mobile Circuit Court entered an order denying the petitioners' motion to dismiss or, in the alternative, to stay. The petitioners filed, on May 24, 1991, a motion for reconsideration of the order denying the motion to dismiss or, in the alternative, to stay. The petitioners also renewed their motion to stay the lawsuit, based upon principles of comity, in light of the injunction that was entered by the California court on May 14, 1991.
At a status conference in the Mobile Circuit Court on May 30, 1991, the court advised the petitioners that their actions in seeking the injunction against the plaintiffs through the court in California were in direct violation of its April 9 order to proceed and that they were in contempt of that order. The Mobile Circuit Court ordered the petitioners to secure the release of the injunction by noon on Wednesday, June 5, 1991. Otherwise, the court indicated that it would enter defaults against the petitioners, assess sanctions, and order Cooper/T. Smith and Pate to prove their damages against the petitioners.
On May 31, 1991, the petitioners filed a motion to reconsider the order denying the motion to stay the Alabama litigation in light of the injunction obtained in California. In addition, the petitioners filed a motion to stay the case pending appeal to this Court. The Mobile Circuit Court denied both motions. Also on May 31, 1991, the petitioners requested a conference before the California court to seek a partial lifting of its injunction so that the petitioners could seek review of the Mobile Circuit Court's rulings by this Court. In response to the petitioners' request, the California court entered an order partially lifting its injunction to allow the petitioners to file mandamus petitions in this Court. Their petitions were, thereafter, filed here.
There are two issues raised in these mandamus petitions. The first issue, as phrased in Wausau's petition, is whether this Court should mandate that comity be granted the anti-suit injunction entered by the superior court of the State of California and order the Alabama litigation stayed. The second issue is whether the writ of mandamus is due to issue to the Mobile Circuit Court, directing it to vacate its prior orders and to dismiss the underlying suits based upon the doctrine of forum non conveniens.
Before turning to our analysis of the issues before us, we note that mandamus is an appropriate remedy when there is a clear showing that the trial court abused its discretion by acting in an arbitrary and capricious manner. Ex parte Rogers, 533 So. 2d 245 (Ala.1988). However, mandamus is a drastic and extraordinary writ that will not be issued unless the petitioner has a clear and indisputable right to a particular result. Ex parte Rudolph, 515 So. 2d 704 (Ala.1987).
The petitioners argue that the Mobile Circuit Court should have granted comity to the anti-suit injunction entered by the California state court and that it should have stayed the Alabama litigation. The petitioners assert that the Mobile Circuit Court's denial of their motion to stay based on principles of comity amounts to an abuse of discretion by that court and that the writ of mandamus is, therefore, due to be issued. However, we pretermit as moot a decision on the merits of the comity issue because of recent action by a California appeal court.
On October 8, 1991, two days before these petitions were argued before this Court, a district court of appeal of the State of California ruled that the superior court had abused its discretion in enjoining the parties to the litigation in the California state court from pursuing litigation in Alabama. The California District Court of Appeal, *892 therefore, dissolved the injunction. Because the injunction to which the petitioners asked this Court to grant comity is no longer in effect, we hold that the issue is not presently justiciable.
We do note that the petitioners, in a supplemental brief filed in this Court subsequent to the California District Court of Appeal's ruling, argue the more general issue of whether the Mobile Circuit Court abused its discretion in refusing to apply the comity doctrine to stay the Alabama litigation in order to avoid duplicative litigation of the issues pending in the California state court. However, we find no merit in this aspect of the petitioners' argument.
The California litigation was filed by Paco, based upon its claims for defense and coverage regarding the cleanup. The Alabama litigation was filed by Paco's shareholders, Cooper/T. Smith and Pate, and involves claims against the petitioners for defense and coverage and for damages for bad faith because of the petitioners' having refused coverage. The Alabama litigation is based on the petitioners' denial of Cooper/T. Smith and Pate's independent claims, not the denial of Paco's claims. Cooper/T. Smith and Pate, who both have their principal places of business in Mobile, properly filed suit in Alabama, and the Alabama litigation was pending when the petitioners joined Cooper/T. Smith and Pate in the California litigation. Therefore, we find no abuse of discretion by the trial court in its refusal to stay the Alabama litigation based upon comity principles.
The second issue raised in these petitions for the writs of mandamus, is whether the Mobile Circuit Court abused its discretion in refusing to dismiss this lawsuit based upon the doctrine of forum non conveniens. The petitioners argue that that doctrine, as codified at § 6-5-430, Ala. Code 1975, should apply and should result in the dismissal of the suits against them.
Essentially, the doctrine of forum non conveniens
Ex parte Auto-Owners Ins. Co., 548 So. 2d 1029, 1032 (Ala.1989).
While the doctrine of forum non conveniens has been followed in other jurisdictions for a number of years, the doctrine is still relatively new to Alabama law. Id. The doctrine was not available in Alabama until the adoption of a 1987 amendment to § 6-5-430. Id.
Section 6-5-430 presently provides:
Section 6-5-430 requires the courts of this state to apply the doctrine of forum non conveniens in determining whether to accept *893 or decline to take jurisdiction of any action based upon a claim arising outside the state. Ex parte Southern Ry., 556 So. 2d 1082 (Ala.1989). Therefore, our first inquiry is to determine whether Cooper/T. Smith and Pate's claims arose outside Alabama. § 6-5-430; Ex parte Ford Motor Credit Co., 561 So. 2d 244 (Ala.Civ.App. 1990).
When dismissal of an action is sought pursuant to § 6-5-430, the party seeking dismissal has the burden of establishing, as a factual matter, that the claim arose outside the State of Alabama. Id. The Mobile Circuit Court's determination of the situs of the claim, either inside or outside the state of Alabama, is a factual determination left to that court's discretion. Id.
While the Mobile Circuit Court in the present case made no specific findings of fact in denying the petitioners' joint motions to dismiss or, in the alternative, to stay the Alabama litigation, we find no abuse of discretion in a conclusion that the claim in this case did not arise outside the State of Alabama.
The claims giving rise to the actions filed by Cooper/T. Smith and by Pate in Mobile Circuit Court involve the alleged refusal of the petitioners to provide coverage to Cooper/T. Smith and Pate, as shareholders of Paco, under policies issued to Cooper/T. Smith and Pate. The California litigation regarding Paco's claims against the petitioners is altogether separate from the Alabama litigation regarding Cooper/T. Smith and Pate's independent claims under policies issued to them.
It appears that the policies at issue in this case were purchased, and that the premiums were paid, from the offices of Cooper/T. Smith and Pate in Mobile, Alabama, and that many of the policies were purchased by Cooper/T. Smith and by Pate through W.K.P. Wilson, now Corroon & Black W.K.P. Wilson, an insurance agency located in Mobile, Alabama. Once Cooper/T. Smith and Pate were sued in their capacities as shareholders of Paco and the petitioners either declined to defend or ignored Cooper/T. Smith and Pate's tender of their defense, Cooper/T. Smith and Pate gained their own claims under the insurance policies issued by the petitioners, which they then properly pursued in Alabama. Furthermore, Cooper/T. Smith and Pate made the tender of their claims for coverage, defense, and indemnity to the petitioners from Alabama.
In view of the facts that were before the Mobile Circuit Court when it ruled on the petitioners' joint motions to dismiss or to stay, and in view of the arguments made to that court by the parties, we find that the petitioners failed to carry their burden of showing that the claims of Cooper/T. Smith and of Pate for coverage, indemnity, and a defense pursuant to the insurance contracts in question arose outside the State of Alabama. Accordingly, we hold that § 6-5-430 is inapplicable in this case, and we find no abuse of discretion by the Mobile Circuit Court.
The petitions for the writs of mandamus are due to be, and they are hereby, denied.
WRITS DENIED; EMERGENCY MOTION DENIED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.[1]
[1] Justice Houston and Justice Steagall did not attend oral argument, but they have listened to the tape recording of that argument. | November 15, 1991 |
2388a331-977d-4be1-80f9-3aca4cba94e5 | Whitten v. Whitten | 592 So. 2d 183 | 1901081 | Alabama | Alabama Supreme Court | 592 So. 2d 183 (1991)
Robert Earl WHITTEN, et al.
v.
Jeffrey Lee WHITTEN.
1901081.
Supreme Court of Alabama.
October 25, 1991.
Rehearing Denied January 3, 1992.
*184 J. Huntley Johnson, Dothan, for appellants.
Joel M. Nomberg, Dothan, for appellee.
ADAMS, Justice.
Robert Earl Whitten, Sheila Whitten, and Glenda Whitten Lisenby appeal from a judgment awarding Jeffrey Lee Whitten the proceeds of an insurance policy on the life of his father, William R. Whitten, in an interpleader action filed by Liberty National Life Insurance Company ("Liberty National"). We reverse.
On September 8, 1986, William and Zola Ann Whitten were divorced.[1] At the time of the divorce, the couple had four children, only one of which, Jeffrey, was a minor. The order contained the following pertinent provisions:
On August 3, 1987, pursuant to the order, William Whitten amended his existing whole life insurance policy with Liberty National to designate Jeffrey Lee Whitten as the beneficiary.
For four years following the divorce, William Whitten resided with his brother Robert and Robert's wife, Sheila. During that time, he was suffering from cancer and required frequent hospitalization.[2] Robert and Sheila Whitten allegedly paid the premiums on William Whitten's life insurance policy during the period he resided with them, in addition to providing his food, clothing, and transportation. The appellants allege that Robert and Sheila Whitten moved to Missouri to be with William Whitten *185 while he underwent a two-year treatment program in a Missouri cancer center.
On May 8, 1989, William Whitten amended the insurance policy to designate as beneficiaries Robert Whitten, Sheila Whitten, and Glenda Whitten Lisenby, his sister. At that time, he also transferred ownership of the policy to Robert Whitten. On June 21, 1990, Jeffrey Whitten attained the age of majority.
William Whitten died on September 11, 1990. The policy's designated beneficiaries assigned to Byrd Funeral Home, Inc. ("Byrd"), the right to $4,682.75 from the proceeds of the policy as payment for funeral expenses.
On October 2, 1990, Jeffrey Whitten sued Liberty National for the proceeds of the policy. On November 13, 1990, Liberty National filed an interpleader action against Jeffrey Whitten, Robert and Sheila Whitten, Glenda Whitten Lisenby, and Byrd, conceding liability on the policy and paying $34,967.22, the amount of the disputed proceeds, to the clerk of the circuit court. It also sought attorney fees and an injunction against prosecution of any other actions by the claimants, including the one begun by Jeffrey Whitten.
The trial court, on November 20, 1990, enjoined further prosecution of Jeffrey Whitten's action against Liberty National and, on February 10, 1991, it awarded Liberty National $3,509.40 from the proceeds of the policy in attorney fees.[3] On February 27, 1991, the trial court, holding "that the purported change in ownership of the life insurance policy and [the] ensuing change in beneficiary should not be given effect," awarded the remainder of the proceeds to Jeffrey Whitten. The dispositive issue on appeal is whether, under these facts, the trial court had the authority to award the proceeds of the policy to Jeffrey Whitten. We hold that it did not.
A trial court has, as a general rule, "no continuing equitable jurisdiction over the issues or parties to a divorce," in the absence of an express agreement by the parties, "to require that a non-custodial parent provide support of any kind to any child that [has] reached the legislatively prescribed age of majority." Ex parte Bayliss, 550 So. 2d 986, 991 (Ala.1989). This Court has recognized exceptions to the general rule in two instances. The first instance in which a court may order child support from a noncustodial parent beyond the age of majority is one in which the child is, at the time of majority, physically or mentally incapable of self-support. Ex parte Brewington, 445 So. 2d 294 (Ala. 1983). Under the second exception, a trial court may order a noncustodial parent to provide educational support beyond minority where application for such support is made before the minor reaches majority. Ex parte Barnard, 581 So. 2d 489 (Ala. 1991); Ex parte Bayliss, 550 So. 2d 986, 991 (Ala.1989).
Jeffrey Whitten makes no claim for postminority support under the education exception, and the record contains no evidence of physical or mental infirmity so as to trigger the exception under Ex parte Brewington and its progeny. Jeffrey Whitten contends that the order requiring William Whitten to designate his "minor child as the irrevocable beneficiary" of the life insurance policy created an indefeasible, equitable interest in the proceeds of the policy. For that proposition, he cites Williams v. Williams, 276 Ala. 43, 158 So. 2d 901 (1963). The appellee's reliance on Williams, however, is misplaced.
In Williams, a divorce decree incorporated the terms of an agreement for the disposition of the parties' marital assets. The agreement required the noncustodial parent to designate his two minor children as irrevocable beneficiaries of a policy on his life. In violation of the decree, the insured designated another as beneficiary. This Court affirmed the judgment of the trial court, which, holding that "[t]he minor children... became vested with an equitable interest in [the] policy ... superior to that of the substituted beneficiary," awarded the proceeds of the policy to the children. Williams, 276 Ala. at 46, 158 So. 2d at 902.
*186 Williams is distinguishable from the case sub judice for two reasons. In that case, the insured attempted to defeat the operation of a divorce decree that incorporated a voluntary agreement regulating the division of marital assets. Court orders disposing of marital assets are not modifiable by the unilateral action of one party or by the parties' bilateral agreement. Holland v. Holland, 406 So. 2d 877 (Ala.1981); Ex parte Kirkley, 418 So. 2d 118 (Ala.1982). Because the divorce in the instant case was awarded on the default of William Whitten, there was no agreement between the parties as to the disposition of the marital assets. There is no evidence that the provision in the order requiring William Whitten to designate his minor child as beneficiary of his life insurance policy, in addition to the provisions regarding mandatory monthly $250 payments; the providing of medical, dental, and drug expenses; and the maintenance of medical insurance coverage, contemplated a division of marital assets as opposed to child support.[4]
Even more significantly, unlike the appellee in this case, the children in Williams had not reached the age of majority at the time of the death of their father. The state, as parens patriae, possesses an interest sufficient to provide the court with continuing equitable jurisdiction over minor children for whose welfare the judicial machinery has been invoked. See R.J.D. v. The Vaughan Clinic, P.C., 572 So. 2d 1225, 1230 (Ala.1990) (Adams, J., dissenting). McKinnis v. McKinnis, 564 So. 2d 451 (Ala. Civ.App.1990), another case cited by the appellee, is also inapposite because the beneficiary of the policy was the former spouse and there was no question of minority.
Jeffrey Whitten further contends, in effect, that because the change in beneficiaries on May 8, 1989, violated the court order and predated his emancipation, the purported change in the policy was a nullity. We disagree. Because the trial court's equitable jurisdiction over the proceeds of the policy terminated on June 21, 1990, the date Jeffrey Whitten attained the age of majority, William Whitten was free, thereafter, to make any disposition of his policy that he deemed proper. Under equitable principles, a different result should not obtain simply because the change in beneficiaries preceded the date of the child's majority.
We conclude that the provision of the order directing William Whitten to designate his only minor child as the beneficiary of his life insurance policy constituted child support and that the trial court's award of the proceeds to Jeffrey Whitten after he had attained the age of majority in effect amounted to an award of postminority support. Because the trial court was without authority to order postminority support under these facts, the judgment of the trial court is reversed and the cause is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and STEAGALL and INGRAM, JJ., concur.
ALMON, J., concurs in the result.
[1] The appellants allege, and Jeffrey Whitten does not deny, that the judgment of divorce was entered on the default of William Whitten.
[2] William Whitten first learned of the malignancy in 1980 or 1981.
[3] The propriety of the award of attorney fees is uncontested.
[4] Minor children are commonly designated as beneficiaries of life insurance policies as "an aspect of child support" pursuant to an order of divorce. H. Clark, Jr., The Law of Domestic Relations in the United States 718-19 (2d ed. 1988); Note, Child Support, Life Insurance, and the Uniform Marriage and Divorce Act, 67 Ky. L.J. 239 (1978). | October 25, 1991 |
2aa39f59-421a-4e97-b0f0-87e1291e5aca | Ex Parte McCall | 594 So. 2d 628 | 1901202 | Alabama | Alabama Supreme Court | 594 So. 2d 628 (1991)
Ex parte Tommy McCALL.
(Re Tommy McCall v. State of Alabama).
1901202.
Supreme Court of Alabama.
October 11, 1991.
Carl E. Chamblee, Jr., Birmingham, for petitioner.
James H. Evans, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
This case raises the question of whether the trial court erred in denying the appellant's requested jury instruction on robbery in the third degree, especially in view of the fact that the Court of Criminal Appeals affirmed the trial court on the ground that the appellant failed to "specifically object." Rule 14, Ala.R.Cr.P.Temp. (now Rule 21, A.R.Cr.P.).
The appellant, Tommy McCall, was arrested and indicted in March 1990 for first degree robbery. Testimony at trial established that McCall followed the 69-year-old victim, Stanley Rose, from a neighborhood grocery store where Rose had cashed a Social Security check for $200. Rose testified that McCall shoved him up against a wall, pointed a gun at him, demanded his money, and then took the money from his front shirt pocket.
There was substantial evidence that McCall had robbed Rose. Rose positively identified McCall, as did two other witnesses. The major dispute was whether McCall actually had a gun or other dangerous weapon at the time of the robbery. Rose testified that McCall had a gun. Rose did admit that he was farsighted, that he needed *629 eyeglasses at the time of the robbery, and that he did not have eyeglasses on at the time of the robbery. Additionally, two other witnesses, Willa Dean Anthony and Ruby Ingram, testified that they did not see the petitioner use a gun or any other dangerous weapon at the time of the robbery.
During the jury instruction conference, defense counsel stated, among other things: "Judge, I assume you are going to charge on robbery in the first, second, and third?" The trial judge responded: "I am not[I am] charging on robbery one only." Defense counsel then stated:
At another point during the charge conference, the following occurred:
The trial court instructed the jury, and the following occurred:
The jury deliberated and found McCall guilty; the trial judge sentenced him to 20 years' imprisonment. The Court of Criminal Appeals affirmed his conviction by unpublished memorandum opinion stating: "The jury charge issue is decided adversely to the appellant for failure to specifically object."
We granted certiorari to review the record more closely, and based upon that review, we find that the trial court erred in refusing to give McCall's requested jury charge on robbery in the third degree. We also find that the Court of Criminal Appeals erred in affirming the trial court for "failure to specifically object."
The law in Alabama is clear: if a defendant asks for a jury charge on a lesser included offense, he is entitled to such a charge if there is any rational basis or reasonable theory that would support a conviction on the lesser offense. Ala.Code 1975, § 13A-1-9(b); Allen v. State, 546 So. 2d 1009, 1012 (Ala.Crim.App. 1989); McConnico v. State, 551 So. 2d 424 (Ala.Crim.App.1988).
Third degree robbery is a lesserincluded offense to first degree robbery.[1]*630 Thus, assuming there was any rational basis or reasonable theory upon which McCall could have been convicted of third degree robbery, he was entitled to a charge thereon.
The State argues that there is no rational basis or reasonable theory that would support a charge on third degree robbery. We disagree based on the evidence. Third degree robbery requires use of force or threat of imminent use of force in the course of committing a theft. Ala. Code 1975, § 13A-8-43(a). First degree robbery requires the elements of third degree robbery, and in addition the defendant must have been armed with a dangerous weapon, or caused physical injury to the victim during the course of the robbery. Ala.Code 1975, § 13A-8-41(a)(1) and (2). Even though the victim testified that McCall used a pistol in the robbery, two other witnesses testified that they did not see a gun, and there was some evidence that the victim was farsighted.
We find that there was ample evidence from which to find a rational basis or reasonable theory that no dangerous weapon was used.[2] Therefore, the trial court should have instructed the jury on third degree robbery, unless, as found by the Court of Criminal Appeals, McCall did not "specifically object."
Rule 14, Ala.R.Crim.P.Temp., which was in effect at the time of McCall's trial, provides, in part, that "[n]o party may assign as error the court's giving or failing to give a written instruction, or the giving of any erroneous oral charge, unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection."
Our review of the record indicates that McCall's counsel did not request a written instruction on third degree robbery, but the record is clear that the trial court knew, both before it gave its oral instruction, and immediately thereafter, that counsel wanted it to instruct the jury on third degree robbery. In each instance, counsel objected to the trial court's refusal to instruct the jury on third degree robbery, and when the first objection was made the reason given was `there was no weapon in the ... commission of the alleged crime [and, therefore, the defendant]' is entitled to a charge for robbery in the third degree.
The memorandum opinion of the Court of Criminal Appeals does not indicate the basis for its ruling.
If the Court of Criminal Appeals' affirmance of the conviction was bottomed on the failure of counsel to provide the court with written jury instructions, the court erred. This Court held in the companion cases of Matkins v. State, 497 So. 2d 201 (Ala.1986), and Connolly v. State, 500 So. 2d 68 (Ala.1986), that an oral request for a jury instruction was sufficient to preserve error in a criminal case.
The State acknowledges that this Court has held in Matkins and Connolly that written requested instructions are not always required. The State argues that those two cases are distinguishable because, it argues, in those cases, defense counsel requested the trial judge, before he gave his oral instruction, to instruct the jury on lesser included offenses, and that in each case the trial judge agreed to instruct the jury on lesser included offenses, but then failed to do so. The State argues that "[i]n Matkins, this Court held `that there was no requirement for the defendant to request a written instruction in this case.' 497 So. 2d at 202. (emphasis in original)," and that "[p]resented with the same circumstances in Connolly, this Court again held that a written request was not required."
*631 The State's argument is basically this: when the trial judge told McCall's counsel, before he instructed the jury, that he was not going to instruct them on lesser included offenses, it then became incumbent upon counsel to request, in writing, that the trial judge so instruct the jury. We cannot agree with the State's interpretation of Matkins and Connolly, that the principle of law stated in those cases is so circumscribed that it would apply only when the facts are identical to the facts in those cases. Because the State bottoms much of its argument on the phrase "in this case" in a paragraph in the Matkins case, we believe that it is appropriate to quote the entire paragraph from Matkins, 497 So.2d at 202:
(Emphasis original.) The better practice, of course, would be for defense counsel to file a written requested instruction if the trial court fails to instruct the jury. See, H. Maddox, Alabama Rules of Criminal Procedure § 21.1, 593 (1990). The legal question presented here, of course, is whether the defendant is entitled to a new trial because the trial court failed to instruct the jury as orally requested by counsel. A very narrow reading of Temp.Rule 14 would sustain the argument of the State, but such a reading would violate the spirit of the rule.
In this case, it was obvious from the first charge conference that the trial judge was not going to give an instruction on the lesser included offense of third degree robbery. While counsel did not prepare a written instruction and give it to the judge, either at that time or after the court orally instructed the jury, it is quite clear that counsel was specific enough in stating why he thought such an instruction should be given. To hold that the counsel here had to request a written instruction in order to preserve his right to have the jury instructed on third degree robbery would be to elevate form over substance. Although we state again that the better procedure would have been for counsel to have prepared written requested instructions on the law, counsel's desire to have the jury instructed on Temp.Rule 14 (now Rule 21) does not require a written requested instruction in every case and under all circumstances. The rule does not require it here. Counsel not only objected specifically, but stated the grounds of his objection, and the record clearly shows that the trial judge was aware of the objection and the reason counsel was requesting it. Under these circumstances, the error was preserved for appellate review.
The judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to that Court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Section 13A-1-9, Ala.Code 1975, defines "lesser included offenses." Two of the subparts of the definition imply that third degree robbery is a lesser included offense to first degree robbery. First, § 13A-1-9(a)(1) defines a lesser included offense as one in which "[I]t is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged." First degree robbery requires all the elements of third degree robbery plus either: 1) being armed with a gun or deadly weapon or 2) causing physical injury to the victim. Thus, third degree robbery requires fewer facts to be proven than first degree robbery. Second, § 13A-1-9(a)(4) defines a lesser included offense as one which "differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person ... suffices to establish its commission." Since third degree robbery encompasses use of force or threat of force and first degree robbery requires use of a gun or deadly weapon, less risk of injury would be present in third degree robbery. See also, Brinkley v. State, 32 Ala.App. 604, 28 So. 2d 813 (1947).
[2] Also, there was no evidence that Rose was physically injured by McCall. | October 11, 1991 |
083b861f-c021-4e5b-aec2-2523543a3570 | HL FULLER CONST. v. Indus. Dev. Bd. | 590 So. 2d 218 | N/A | Alabama | Alabama Supreme Court | 590 So. 2d 218 (1991)
H.L. FULLER CONSTRUCTION COMPANY, INC.
v.
INDUSTRIAL DEVELOPMENT BOARD OF the TOWN OF VINCENT.
89-1793.
Supreme Court of Alabama.
November 1, 1991.
*219 G. Daniel Brown of Dillon, Kelley & Brown, Alexander City, and D. Lee Roberts, Jr. of Smith, Currie & Hancock, Atlanta, Ga., for appellant.
Wanda D. Devereaux, Montgomery, and Rodney A. Max of Najjar Denaburg, P.C., Birmingham, for appellee.
INGRAM, Justice.
This Court's opinion of August 16, 1991, is withdrawn, and the following is substituted therefor:
This is an appeal from a judgment of the Circuit Court of Shelby County confirming an arbitration award.
The record indicates that in September 1986, the Industrial Development Board of the Town of Vincent ("IDB") contracted with H.L. Fuller Construction Company, Inc. ("Fuller"), an Alabama corporation, to build a Comfort Inn motel in Shelby County, Alabama. The contract, by reference to the "General Conditions of the Contract for Construction AIA [American Institute of Architects] Document A201, August 1976 Edition," provided for arbitration as the means of resolving conflicts arising out of the contract. That provision, in part, reads as follows:
On March 15, 1988, Fuller, in response to an alleged breach of contract, filed a complaint in the circuit court for foreclosure of a mechanic's lien against IDB, Shelby Motel Group, Inc. ("SMG"), as lessee of the motel project, and First Alabama Bank ("bank"), as indenture trustee. In response, both IDB and SMG, pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), filed motions to compel arbitration and for a stay of the trial court proceedings. On June 24, 1988, the trial court entered the following order on the motions: "Parties consent to arbitration and proceedings are stayed."
In September 1988, Fuller filed "counterclaims" in the arbitration proceeding against IDB and SMG. As against IDB, Fuller filed a breach of contract claim and a quantum meruit claim. As against SMG, Fuller filed a third-party beneficiary claim, an interference with contractual relations claim, and a fraud claim. Fuller also restated the lien claim alleged in the lawsuit, which had been referred by the trial court to arbitration.[1]
In April 1990, IDB expressly answered the claims asserted by Fuller and reserved "other answers, defenses and claims" pending the completion of discovery. Fuller did not object to this reservation. On June 13, 1990, IDB filed a claim in arbitration against Fuller and its surety, The Hartford Accident and Indemnity Company, alleging breach of contract and fraudulent concealment. Fuller filed with the American Arbitration Association ("AAA") a written objection to IDB's filing of this claim against it. Fuller contended that the fraud claim came too late and that it prejudiced Fuller in the arbitration proceeding. The arbitrators overruled Fuller's objection and allowed IDB's claim to stand. Fuller never filed a motion to stay in the circuit court or stated any further objection to the allowance of the fraud claim by IDB.
In August 1990, the arbitrators, after receiving documentary evidence and testimony of the parties involved, entered awards in favor of both Fuller and IDB. The AAA's order reads, in pertinent part, as follows:
On August 31, 1990, prior to a judgment on the arbitration award by the Circuit Court of Shelby County, Fuller filed a notice of appeal with this Court. IDB filed a *221 motion to dismiss the appeal, contending that because the circuit court had not entered a judgment, this Court did not have jurisdiction. In December 1990, this court remanded the case to the Circuit Court of Shelby County for entry of the AAA's award as the judgment of that court and for any further proceedings in accordance with § 6-6-15.
On remand, the circuit court entered the following judgment:
Fuller made a motion to vacate the arbitration award, which the circuit court subsequently denied, and the matter was then properly before this Court.
On appeal, Fuller contends that the arbitration award is due to be vacated. Fuller argues that the award is inconsistent on its face, that it lacks fundamental rationality, and that it is so "imperfectly executed" that it violated the FAA and should not be allowed to stand. Fuller also contends that the arbitrators abused their discretion in allowing IDB to file its fraud claim at such a late stage in the proceedings.
At the outset, we note that neither side contends that the FAA does not apply in this case. In fact, Fuller's argument on appeal is based on the applicability of the FAA. Therefore, there is no issue presented as to whether this case involved a contract in "interstate commerce." See Wright v. Land Developers Construction Co., 554 So. 2d 1000 (Ala.1989), cert. denied, ___ U.S. ___, 110 S. Ct. 2170, 109 L. Ed. 2d 499 (1990) (both sides conceded the applicability of the FAA; therefore, there was no issue presented as to whether the case involved a contract in interstate commerce).
We further note that neither side contends that the arbitration provision did not encompass the fraud claim. In other words, Fuller did not argue that the fraud claim could not be submitted to arbitration pursuant to the original contract between the parties. Therefore, that issue is not properly before us.
However, at this juncture, this Court feels compelled to point out its disfavor of predispute arbitration agreements. In fact, Ala.Code 1975, § 8-1-41(3), explicitly prohibits the enforcement of predispute arbitration agreements. This somewhat hostile attitude toward predispute arbitration agreements is rooted in the belief that parties should not be permitted, by their agreement, to oust the courts of their jurisdiction. In discussing Alabama's policy toward predispute arbitration agreements, this Court has stated:
Wells v. Mobile County Bd. of Realtors, 387 So. 2d 140, 144 (Ala.1980) (quoted with approval in Ex parte Warren, 548 So. 2d 157, 160 (Ala.1989); cert. denied, 493 U.S. 998, 110 S. Ct. 554, 107 L. Ed. 2d 550 (1989)).
However the United States Supreme Court in Southland Corp. v. Keating, 465 U.S. 1, 104 S. Ct. 852, 79 L. Ed. 2d 1 (1984), firmly established that in cases governed by the FAA, the federal substantive law of arbitration governs, despite contrary state law or policy. Further, Alabama has recognized that the federal policy embodied in the FAA mandates that whenever a written contract evidencing a transaction in interstate commerce contains an arbitration provision, that provision must be given effect by state and federal courts alike. Ex parte Costa & Head (Atrium), Ltd., 486 So. 2d 1272, 1276 (Ala.1986); Ex parte Alabama Oxygen Co., 452 So. 2d 860 (Ala.1984) (approving the view expressed in Justice Maddox's *222 dissent in the original proceeding at 433 So. 2d 1158, 1168 (Ala.1983)).
Ex parte Costa & Head was a mandamus proceeding arising out of a lawsuit involving a dispute over a construction contract. There, the petitioner, a general contractor, executed a standard AIA construction contract, which provided that "[a]ll claims, disputes and other matters in question between the contractor and the owner arising out of, or relating to, the contract documents or the breach thereof ... shall be decided by arbitration." Costa at 1273. Ultimately, a suit was filed in the circuit court, which, among other things, alleged breach of contract, fraud, negligence, and wrongful termination. The petitioner requested that the circuit court stay the case and compel arbitration of all arbitrable issues. The trial court denied the petitioner's request and instead stayed any pending arbitration proceedings. In the mandamus proceeding before this Court, the petitioner requested an order to stay the circuit court proceedings pending arbitration. The petitioner argued that the arbitration agreement at issue was governed by the FAA and that therefore the trial court had no discretion and had to stay the circuit court proceedings.
This Court granted the writ. This Court determined that the FAA applied and held that "[t]he requirement of the FAA that an arbitration agreement `involve commerce' has been construed very broadly so that the slightest nexus of the agreement with interstate commerce will bring the agreement within the ambit of the FAA." Costa at 1275. Further, this Court held that because the FAA was applicable, the trial court had no discretion to stay the arbitration proceedings on the grounds of "judicial economy, possible inconsistent results, or the existence of non-arbitrable claims." Costa at 1276. This Court further noted that "state courts are obligated to grant stays of litigation under § 3 of the FAA just as are the federal courts." Costa at 1276. As concerns the demands for punitive damages and the allegations of fraud in Costa, we also found that "there is authority that supports the submission of both fraud and punitive damages claims to arbitration if the arbitration agreement is broad enough to allow it." Costa at 1276.
However, in the instant case, as noted above, Fuller never raised any issue concerning the arbitrability of the fraud claim pursuant to the arbitration agreement. Rather, Fuller only contended that the arbitrators abused their discretion in allowing the fraud claim to be brought along with the contract claim some two years after the request for arbitration. There was never any contention by Fuller that the arbitration agreement was not broad enough to encompass the fraud claim. In fact, Fuller even suggested in brief that IDB could have demanded arbitration of the fraud claim in a new arbitration proceeding.
Clearly, the broadness of the arbitration agreement and whether the fraud claim was, in fact, arbitrable were never issues in this case. However, had these been issues, we note that, pursuant to federal policy, the provision here providing for arbitration is quite broad, and, pursuant to this Court's opinion in Costa, there is authority that supports the submission of fraud claims to arbitration. See also Willoughby Roofing & Supply Co. v. Kajima International, Inc., 598 F. Supp. 353 (N.D.Ala.1984), affirmed, 776 F.2d 269 (11th Cir.1985).
This is not to say that in arbitration cases governed by the FAA fraud claims in all circumstances must go to arbitration. Rather, federal policy recognizes that parties to a contract containing an arbitration agreement certainly have the power to limit the arbitrator's authority to consider certain claims, including fraud claims. See Willoughby Roofing. However, in order to exclude a claim from arbitration, there must be an express provision within the original contract between the parties that excludes a particular grievance. See Pierson v. Dean, Witter, Reynolds, Inc., 742 F.2d 334 (7th Cir.1984). Parties, through clear and express exclusions in the contract, have the power to limit the arbitrator's authority to decide certain claims. Willoughby Roofing.
We now proceed with the arguments that Fuller did raise on appeal. *223 First, Fuller contends that the arbitration award is due to be vacated because it allegedly did not comply with the FAA, which permits the vacation of an arbitration award in the following instance:
9 U.S.C. § 10(d).
Fuller contends that there is no logical or lawful manner in which the arbitrators could have found both for Fuller and for IDB on their respective claims.
We have reviewed the record before us and note that, although there is no transcript of the arbitration hearing, it certainly appears that the proceedings were conducted according to the Construction Industry Arbitration Rules ("Rules") governing arbitrations. Both parties were allowed to present documentary evidence, as well as testimonial evidence, over a period of three days. We also point out that § 43 of the Rules allows the arbitrator to grant any remedy or relief that is "just, equitable, and within the terms of the agreement of the parties."
In resolving a question concerning the authority of the arbitrators, courts must broadly construe the agreement and resolve all doubts in favor of the arbitrators. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983). Further, the Supreme Court has stated that if the national policy favoring the settlement of disputes by arbitration is to have any real substance, then it is essential that arbitrators have a great deal of flexibility in fashioning remedies. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960). Thus there is a heavy burden on those claiming that the arbitrators' awards exceed their authority, and the arbitrator is given broad latitude and discretion. Willoughby Roofing, supra.
In view of the above, we cannot say that the arbitrators exceeded their powers or so "imperfectly executed" them that the arbitration award in this case should be vacated.
Second, as concerns Fuller's argument that the arbitrators abused their discretion in allowing IDB to file its fraud claim in arbitration approximately two years after the other claims had been filed, we likewise find no merit. In June 1990, IDB filed a motion with the AAA asking that the arbitrators permit IDB to file its claim against Fuller. In its motion, IDB stated the following:
In support of its request, IDB alleged that it had had continuous difficulty in obtaining documents from Fuller that it needed to more specifically state a claim against it. Further, IDB argued that the fraud claim was not a new claim, but that it was rather a more specific statement of its original claims against Fuller.
It appears that a hearing was conducted over the telephone concerning IDB's request. After consideration of the arguments of the parties in support, as well as in opposition, the arbitrators granted IDB's motion and allowed the fraud claim. Fuller made no further objection.
Rule 8, Change of Claim or Counterclaim, of the Rules provides as follows:
Here, IDB, pursuant to the Rules, requested, and was granted, permission from *224 the arbitrators to file its fraud claim. Therefore, in view of the liberal admission of evidence and presentation of claims as provided by the Rules, we cannot find that the arbitrators abused their discretion in allowing IDB to add the fraud claim against Fuller. As noted above, an arbitrator is given broad latitude and discretion. Willoughby Roofing, supra. Therefore, the judgment of the circuit court is due to be, and it is hereby, affirmed.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION GRANTED; AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
MADDOX, J., concurs in the result.
[1] Shortly thereafter, SMG filed a bankruptcy petition in the United States Bankruptcy Court in Anniston, Alabama. Additionally, the arbitration proceedings were voluntarily stayed so that the circuit court could determine the priority of Fuller's mechanic's lien versus the bank's mortgage interest in the project property. The trial court entered a summary judgment in favor of Fuller. | November 1, 1991 |
bb44748b-9e23-4692-817e-962498b46dbd | White v. Maryland Cas. Co. | 589 So. 2d 1294 | 1900412 | Alabama | Alabama Supreme Court | 589 So. 2d 1294 (1991)
Sylvia H. WHITE, as administratrix of the Estate of Allbun Lamar Smith, deceased
v.
MARYLAND CASUALTY COMPANY and Nick Cheriogotis.
1900412.
Supreme Court of Alabama.
October 25, 1991.
J. Farrest Taylor of Cherry, Givens, Tarver, Peters, Lockett & Diaz, P.C., Dothan, for appellant.
Jerry M. White of Lee & McInish, Dothan, for appellees.
INGRAM, Justice.
On November 17, 1987, Nick Cheriogotis shot and killed Allbun Lamar Smith. Sylvia H. White, the administratrix of Smith's *1295 estate, brought a wrongful death action against Cheriogotis. Cheriogotis then filed a declaratory judgment action against his homeowner's insurance carrier, Maryland Casualty Company, asking the Circuit Court of Houston County to order Maryland Casualty to defend him and to pay any judgment that might be rendered against him in the wrongful death action. Cheriogotis's policy contained an exclusion for bodily injury caused by the insured (Cheriogotis) that was "expected or intended" by the insured. White's motion to intervene in the declaratory action was granted. In a separate criminal action, Cheriogotis was convicted of manslaughter.
The trial court, sitting without a jury, found that Cheriogotis "`expected or intended' the bodily injury [that was] sustained by the deceased as a result of [Cheriogotis's] shooting him." Further, the trial court held that Maryland Casualty had no obligation to defend Cheriogotis. White appealed.
On appeal White argues that the presumption accorded a judgment based on ore tenus evidence does not apply in this case because the trial court misapplied the law to the facts. She further argues alternatively that if the trial court did not misapply the law to the facts, there was insufficient evidence from which to find that Cheriogotis intended or expected the injury sustained by Smith.
White argues that the trial court misapplied the law to the facts of this case because the trial court used Cheriogotis's conviction for manslaughter as prima facie evidence of intent. However, the trial court's order in no way indicated that it used the conviction for such a purpose, and this Court will not assume that the trial court improperly used the evidence of the manslaughter conviction when the other evidence presented is sufficient to support the trial court's finding of intent to injure.
This Court, in Alabama Farm Bureau Mut. Cas. Ins. Co. v. Dyer, 454 So. 2d 921 (Ala.1984), held that the presumption in tort and criminal law that a person intends the natural and probable consequences of his intentional acts has no application to the term "expected or intended from the standpoint of the insured" used in the policy; the term "expected or intended injury" cannot be equated with "foreseeable injury"; and a purely subjective standard governs the determination of whether the insured expected or intended the injury. Id. at 925. Therefore, Cheriogotis's conviction for manslaughter, which requires a finding of objective intent, see Ala.Code 1975, §§ 13A-6-3; 13A-2-2(3), cannot be used as evidence that Cheriogotis subjectively intended to injure Smith.
In State Auto Mut. Ins. Co. v. McIntyre, 652 F. Supp. 1177 (N.D.Ala.1987), the district court for the northern district of Alabama held that a declaratory judgment action that was brought to determine whether an insurance policy required the insurer to defend McIntyre in a civil lawsuit was not barred by collateral estoppel because of a criminal conviction of sexual abuse, because the issue in the criminal action was different from the issue in the declaratory judgment action. The district court held:
McIntyre, 652 F. Supp. at 1220-21. Therefore, we hold that Cheriogotis's conviction for manslaughter is not determinative of the issue of whether he subjectively intended or expected to injure Smith, because the conviction for manslaughter did not require such a finding. However, because the trial court's order does not specify whether it considered the conviction in finding subjective intent, we must assume that it considered the conviction for the limited purpose for which it was admissible. See, Pickron v. State ex rel. Johnston, 443 So. 2d 905, 908 (Ala.1983).
White argues that without the evidence of the conviction there is insufficient evidence to support the trial court's finding that Cheriogotis intended or expected to injure Smith. We disagree.
Whether an injury that the insured inflicts upon another person is "expected or intended" is a question of fact for the judge or the jury. Dyer, 454 So. 2d at 924; Boyd v. Great Central Ins. Co., 401 So. 2d 19 (Ala.1981); Smith v. North River Ins. Co., 360 So. 2d 313 (Ala.1978). Whether Cheriogotis intended or expected to injure Smith was a disputed fact, and the trial court heard the testimony of several witnesses. "Under the ore tenus rule, when the trial court hears disputed evidence without a jury, its findings of fact will not be disturbed unless clearly erroneous, palpably wrong, or manifestly unjust. Leslie v. Pine Crest Homes, Inc., 388 So. 2d 178 (Ala.1980)." Dyer, 454 So. 2d at 923.
Hollis v. Cameron, 572 So. 2d 439, 440 (Ala. 1990).
This Court in Dyer, supra, stated that "an injury is `intended from the standpoint of the insured' if the insured possessed the specific intent to cause bodily injury to another, whereas an injury is `expected from the standpoint of the insured' if the insured subjectively possessed a high degree of certainty that bodily injury to another would result from his or her act." Dyer, 454 So. 2d at 925.
In Watson v. Alabama Farm Bureau Mut. Cas. Ins. Co., 465 So. 2d 394 (Ala. 1985), this Court, applying the ore tenus rule to a similar fact situation, held that the evidence supported the trial court's finding that the insured had expected or intended the injury, even though the insured had testified that he did not mean to shoot the victim. In that case, Watson brought a declaratory judgment action against Alabama Farm Bureau, seeking to have Alabama Farm Bureau defend him in a pending assault and battery case arising from a shooting incident. This Court upheld the trial court's finding of subjective intent to injure and stated:
Watson, 465 So. 2d at 396. The language in the policy in Watson is identical to the language in the policy in this case.
*1297 On the issue of subjective intent, this Court has held that intent can be inferred from the surrounding circumstances. The circumstances of the present case present a question of fact as to whether Cheriogotis intended or expected that Smith would be injured when he shot his gun at Smith. The following facts tend to support the trial court's finding that Cheriogotis shot Smith with the intention or expectation of injuring Smith, despite Cheriogotis's testimony to the contrary: There was a history of animosity between the two men; Cheriogotis had threatened Smith; on the day of the incident, Cheriogotis, in his truck, followed Smith for 12 to 14 miles immediately prior to the shooting; and Smith was shot in the back while running away from Cheriogotis.
Under the ore tenus rule, the trial court's finding of intent to injure or expectation of injury will be affirmed if there is any evidence in the record to support it. Based upon the facts recited above, we hold that there is sufficient evidence to support the trial court's finding that Cheriogotis intended or expected to injure Smith. Therefore, we affirm the judgment of the trial court.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | October 25, 1991 |
4d527514-26b5-44bc-8007-bc96f488c8c9 | Ex Parte Clark | 591 So. 2d 23 | 1900958 | Alabama | Alabama Supreme Court | 591 So. 2d 23 (1991)
Ex parte Arthur Charles CLARK.
(Re Arthur Charles Clark v. State.)
1900958.
Supreme Court of Alabama.
October 11, 1991.
Rehearing Denied December 6, 1991.
Robert F. Clark and W. Lloyd Copeland of Clark, Deen & Copeland, P.C., Mobile, for petitioner.
James H. Evans, Atty. Gen., and Gail Ingram Hampton, Asst. Atty. Gen., for respondent.
ALMON, Justice.
This is a tragic case because it involves the inexcusable death of 15-year-old Jason Platt. While he was deer hunting, Jason was shot in the head, neck, and chest with buckshot fired from a shotgun.
Arthur Charles Clark was charged with the shooting, was later convicted of manslaughter, and was sentenced to 20 years' imprisonment. The Court of Criminal Appeals affirmed Clark's conviction without written opinion, Clark v. State, 579 So. 2d 707 (Ala.Crim.App.1991), and this Court granted his petition for writ of certiorari to determine whether the State had presented sufficient evidence to support the conviction.
On Saturday, January 20, 1990, Clark was at the "Triple 000 Hunting Club" in Clarke County. The club had a total of 32 members. At least 12 other club members were present that weekend, as was Jason Platt, whose father was a club member. The hunting club's land consisted of approximately 3,000 acres divided into about 70 hunting areas or parcels. A map showing the layout of the individually numbered areas was maintained at the hunting club's camp. Hunting club rules required all *24 hunters to post notice of the area on which they would be hunting. The hunters posted these notices near the map. The purpose of this procedure was to promote safety by giving the hunters notice of where other hunters were hunting.
For Saturday's early hunt, Clark had posted notice that he would be hunting in area number 28, which was located near the midpoint of an unpaved road known as "the number one road." The number one road runs primarily north and south. Jason Platt had posted notice that he would be hunting in two areas located on the southwestern side of another unpaved road known as "the number four road." The number four road is located to the southwest of the number one road and runs northwest and southeast. Dense forest and several other hunting areas separate the two roads. The two roads do not intersect.
According to Clark's testimony, which other witnesses corroborated in its principal points, Clark awoke at approximately 5:30 a.m., ate breakfast, and left the camp at approximately 6:30 a.m. to hunt. He carried a rifle and a 12-gauge shotgun. Platt had left the camp earlier. Another hunter had driven Platt to the number one road and dropped him off at the location at which club members stored their all-terrain vehicles ("ATV"). The other hunter left Platt at the number one road with his ATV.
Clark testified that when he arrived at the entrance gate to the number one road the gate was open. This led Clark to believe that another hunter was in the area. Because of the possibility of another hunter's being in the area, Clark said that he decided not to hunt there. Instead, he drove to the number four road. When he arrived, he got out of his truck and fired two shots at a turkey, using his 12-gauge shotgun. This occurred at approximately 7:00 a.m.; another hunter testified that he heard two shots at 7:10 a.m. Clark then swapped his shotgun for his rifle and hunted in the area for about an hour.
Around 8:00 a.m. Clark left the area. On his way back to the camp, Clark met another hunter, Raymond Roe. Roe had found a dead deer and needed Clark's help to retrieve the deer. Clark and Roe carried the deer back to the camp and began dressing it. At this time, Clark began to drink beer.
Later that morning, after most of the other hunters had returned to the camp, the hunter who had taken Platt to his ATV became concerned when Platt did not return. He began to search for Platt and, with another hunter's assistance, eventually found Platt's body lying across his ATV in a clearing on the east side of the number one road. He had been struck by pellets of 00 buckshot in the head, neck, and chest, and was dead when he was found. Platt was not wearing a hat, vest, jacket, or any other garment that was "hunter orange." The clearing where Platt's body was found was not near the number four road, where he had indicated he was going to hunt. Instead, it was on the east side of the number one road and north of area 28, which Clark had given notice of hunting on, a considerable distance from the area for which Platt had given notice. The exact distance between area 28 and the number four road is not clear from the record, but one witness estimated it to be between one-half and three-fourths of a mile.
After they learned of Platt's death, all of the club members at the camp became upset. Officers from the Clarke County Sheriff's Department arrived shortly thereafter and began their investigation of Platt's death. They asked the hunters to surrender their shotguns. At least five shotguns were given to the officers, but there is no evidence that the investigating officers conducted a systematic search of the camp and vehicles for any other shotguns. Instead, from the testimony of club member Fred Blankenberg and deputy Jack Day, it appears that the officers relied on the club members to turn over their shotguns voluntarily.
The investigating officers also asked the hunters to turn over their unfired shells. Clark turned over a number of Federal and Winchester shells. The record is not clear who was present or how many shotgun shells the investigating officers received from hunters other than Clark. When *25 Clark gave the officers his shells, he informed the officers that he had fired two shots at a turkey earlier that morning along the number four road. Two expended Winchester shells were later found along the number four road in the area where Clark said he had fired those shots. On investigation of the scene, officers found an expended Federal shotgun shell ("the Federal shell") on the ground alongside the number one road, approximately 90-100 feet from where Platt's body was discovered. The State's theory is that buckshot from the Federal shell killed Platt.
The State's case against Clark was necessarily based on circumstantial evidence, and the main evidence that the State contends links Clark to Platt's death is the Federal shell. Other circumstantial evidence also seemed to suggest the possibility that Clark had an opportunity to commit the crime. However, a conviction based solely on circumstantial evidence can be sustained only if the jury could have reasonably found that the State's evidence excluded every reasonable hypothesis except that of the defendant's guilt. Ex parte Mauricio, 523 So. 2d 87, 91 (Ala. 1987); Cumbo v. State, 368 So. 2d 871, 874-75 (Ala.Crim.App.1978) cert. denied, 368 So. 2d 877 (Ala.1979). A possibility, even a probability, that the crime occurred in the way the State alleges is not enough to support a conviction, because "[m]ere possibility, suspicion, or guesswork, no matter how strong, will not overturn the presumption of innocence." Ex parte Williams, 468 So. 2d 99, 101 (Ala.1985). If the circumstantial evidence can be reconciled with a theory that someone other than the accused might have done the criminal act, the defendant's conviction must be reversed. Ex parte Brown, 499 So. 2d 787 (Ala.1986).
According to Richard Carter, the State's firearms and toolmark expert, markings on the Federal shell indicated that it had "been subjected to the mechanical action" of Clark's shotgun, i.e., that the Federal shell had, at some time, been loaded into and unloaded from Clark's shotgun. These "loading marks" would result regardless of whether the shell had been fired from Clark's shotgun. However, the State's expert also testified that the firing pin and breech impressions on the Federal shell were not sufficiently distinct to allow him to state that Clark's shotgun had fired the Federal shell. In contrast, the expended Winchester shells retrieved from the number four road did have distinct firing pin impressions and were thereby identified as having been fired from Clark's shotgun. Regarding the Federal shell, Mr. Carter testified:
Also see Exhibit A to this opinion, which is Mr. Carter's report that was introduced into evidence.
Larry Fletcher, another firearms and toolmark expert, testified on behalf of Clark. He also test-fired Clark's shotgun and obtained several expended shells from this test-firing. By examining the firing pin impressions on these several shells, he was able to identify Clark's shotgun as having fired the test shells. He also testified that, based on his examination of firing pin impressions, it was his opinion that Clark's shotgun had fired the two Winchester shells found along the number four road.
During trial, Clark's expert and the State's expert obtained the trial court's permission to conduct further tests on Clark's shotgun. The experts took Clark's shotgun to the State crime laboratory in Mobile, where they fired an additional 40 shells from Clark's shotgun. Again, by examining the firing pin impressions, both the State's expert and Clark's expert were *26 able to identify Clark's shotgun as having fired each of those 40 shells. Finally, Clark's expert testified that, based on his examination of the firing pin impressions on the Federal shell and on all of the other shells, it was his opinion that Clark's shotgun had not fired the Federal shell. A portion of his testimony is as follows:
Following the testimony of Clark's expert, a third firearms expert, Lonnie Ray Hardin, testified. Hardin is the firearms and toolmark coordinator for the State Department of Forensic Sciences. He also testified that, based on an examination of firing pin impressions, he could identify Clark's shotgun as having fired the two expended Winchester shells found along the number four road and the 40 test shells. Hardin also agreed with the other experts' conclusions that the firing pin impressions could not identify Clark's shotgun as having fired the Federal shell. However, he stated that, in his opinion, he could not exclude Clark's shotgun as the shotgun that fired that shell.
Clark responds that the State's evidence is insufficient to prove that he shot Platt. With regard to the Federal shell, Clark contends that the markings on it established only that it had been loaded into and unloaded from Clark's shotgun at some unestablished time. Further, according to Clark and other witnesses, hunting club members frequently unloaded any unfired shells from the shotguns at the conclusion of a hunt. Clark and other witnesses testified that club members frequently lent shells to other members. Club member Raymond Roe testified to the extent to which members lent and mingled shotgun shells:
In summary, Clark argues that the State's evidence shows only that the Federal shell had been loaded into and unloaded from his gun at some unestablished time. More importantly, none of the State's evidence indicates that Clark's shotgun actually fired the fatal shot.
*28 The State presented other evidence, which, it argues, when considered along with the evidence that the Federal shell had "been subjected to the mechanical action" of Clark's shotgun, provided sufficient circumstantial evidence to prove Clark's guilt of manslaughter beyond a reasonable doubt. That circumstantial evidence, the State argues, includes the following facts: Clark was the only hunter who had given notice that he was going to hunt along the number one road, where Platt's body was found; Clark was the only hunter who turned in Federal 00 buckshot shells; Clark had drunk beer on the morning of Platt's death; Clark became upset when told of Platt's death and asked for a beer; and finally, Clark claimed to have fired two shots at a turkey along the number four road.
Clark counters by contending that the record does not support the State's argument that he was the only hunter in possession of Federal shotgun shells loaded with buckshot. He points out that there was no proof that the investigating officers kept an inventory or list of the shells turned in by the other hunters or that they seized all of the shotguns in the camp. Instead, according to Clark, all that the evidence showed was that the investigating officers asked only those hunters who were present at the time to turn in their shotguns. He also argues that there is no evidence that he drank any beer while hunting. Clark points out that the only testimony on that issue was that he did not drink any beer until after he had returned to the camp to help Raymond Roe clean the deer.
The State's evidence, absent its expert evidence, establishes that Clark had given notice that he was going to hunt near the general area where Platt was killed on the morning of January 20, 1990; that he was in possession of a 12-gauge shotgun and some Federal shotgun shells; that he, like Platt and other hunters, strayed from the area on which he was supposed to be hunting; that he drank some beers that morning; and that he became upset when he learned of Platt's death.
This evidence does not establish that Clark shot Platt, and its probative value is diminished when considered in light of the other evidence. The other evidence indicates that the hunting club consisted of approximately 32 members. The evidence is not clear as to how many were present on January 20, 1990. However, at least 12 persons are referred to by name as having been present at some time during the day of January 20, 1990. The evidence fails to account for the arrival times or the activities of the other members who were present on January 20, 1990. Also, the evidence indicates that five other hunters were in the same general vicinity on the morning of January 20, 1990, and that some of these hunters were armed with 12-gauge shotguns. The evidence establishes that the club members borrowed shells from each other and that they often mingled shells.
The State's case, therefore, depends almost entirely on the probative value of its expert testimony. Viewing the evidence in the light most favorable to the State, as this Court must do, Ex parte Mauricio, supra, we conclude that the State's evidence was insufficient to allow the jury to conclude beyond a reasonable doubt that Clark's shotgun fired the Federal shell.
The only reasonable inference that can be drawn from the State's evidence is the one to which each firearms expert consistently testified, that is, that the Federal shell had, at some indeterminable time, been loaded into and unloaded from Clark's shotgun. That inference loses much of its apparent significance when considered in light of the uncontradicted testimony that shotgun shells that had been loaded, but not fired, were unloaded at the conclusion of a hunt, thereby acquiring "loading" marks from various shotguns, and that club members often exchanged shells.
There is no evidence that Clark's shotgun fired the Federal shell. Both of the State's firearms experts conceded that they could not identify Clark's shotgun as the one that fired that shell. Clark's firearms expert testified that, in his opinion, Clark's shotgun did not fire the Federal shell.
*29 The State's evidence required the jury to speculate as to whether Clark fired the shot that killed Platt. Speculations, suppositions, and probabilities, no matter how strong, are not sufficient to overcome the presumption of innocence. Mauricio, supra; Williams, supra. Our law authorizes the State to inflict punishment for criminal acts only when the State's evidence overcomes the presumption of innocence and establishes the defendant's guilt beyond a reasonable doubt. Ex parte Acree, 63 Ala. 234 (1879). The evidence in this case was not sufficient to meet that burden, and, as a matter of law, Clark was entitled to a judgment of acquittal. Therefore, the judgment of the Court of Criminal Appeals affirming Clark's conviction is reversed, and a judgment of acquittal is rendered.
REVERSED AND JUDGMENT RENDERED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
MADDOX, J., dissents.
*30
*31 | October 11, 1991 |
f6c89fc7-91cc-4f93-a6d5-e23506ba94d4 | Clarke Industries v. Home Indem. Co. | 591 So. 2d 458 | 1901095 | Alabama | Alabama Supreme Court | 591 So. 2d 458 (1991)
CLARKE INDUSTRIES, INC.
v.
HOME INDEMNITY COMPANY.
1901095.
Supreme Court of Alabama.
November 1, 1991.
Rehearing Denied December 20, 1991.
*459 John M. Laney, Jr. and Deborah Alley Smith of Rives & Peterson, Birmingham, for appellant.
C. William Gladden, Jr. and Andrew J. Sinor, Jr. of Balch & Bingham, Birmingham, for appellee.
INGRAM, Justice.
Home Indemnity Company ("Home") insured Michael and Connie Hicklin's house against fire loss. After the Hicklins' house was destroyed by fire, Home paid them pursuant to the terms of their policy. Home then sued, among others, Clarke Industries, Inc. ("Clarke"), asserting claims based on negligent failure to warn, breach of warranty, and violation of the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"). The case was ultimately submitted to a jury on both the negligent failure to adequately warn claim and the AEMLD claim. The jury returned a general verdict in favor of Home and awarded damages in the amount of $100,000. Judgment was then entered in accordance with the verdict.
Subsequently, the trial court denied Clarke's motion for a judgment notwithstanding the verdict, as well as its motion for a new trial. The trial court also entered a judgment for Home in the amount of $18,591.48 in prejudgment interest.
Clarke then filed its notice of appeal, basically contending that the trial court erred in failing to grant its motion for *460 directed verdict or j.n.o.v. because, Clarke says, Home failed to introduce substantial evidence to prove the elements of its AEMLD claim or its negligent-failure-to-warn claim.
The record, in pertinent part, shows as follows: Mr. Hicklin rented a model DU-8 floor sander manufactured by Clarke from Mullins Five Points Rental ("Mullins") to refinish the wood floors in his house. The only documents Mullins gave Mr. Hicklin when he rented the sander were a "do-it-yourself" pamphlet and the rental agreement. The pamphlet contained no warnings concerning the possibility of spontaneous combustion of the dust collection bag.
Mr. Hicklin and his father-in-law sanded the entire den area and part of the living room. After approximately 45 minutes of sanding, the men stopped working for the night. Mr. Hicklin checked the contents of the dust collection bag and found it to be about one-third full. He did not empty the bag. Later that night, a fire destroyed the Hicklins' home. A fire investigator for Investigations Bureau, Incorporated, opined that the fire resulted from spontaneous combustion of the contents of the dust collection bag on the sander.
The sander in question was manufactured by Clarke in 1959 and was sold to Mullins in 1975 by Clarke. The dust collection bags manufactured by Clarke for use with its sanders contained a fire hazard insignia, which stated:
However, the dust collection bag that was on the machine rented to Mr. Hicklin was not a Clarke bag. Rather, it was another brand that, according to Mr. Hicklin, contained no warnings. There was testimony that Clarke was aware that the bags that came with the sander would routinely wear out or sustain damage and that replacement bags would be required. Further, there was testimony that Clarke was aware that rental companies did not use Clarke bags because they were too expensive.
The sanding machine in question had no warning of fire hazards or of the potential for spontaneous combustion on the machine itself. It did have a placard affixed to the sander, but it only contained instructional information, which stated, among other things, "Always Empty Dust Bag When Half Full." Further, although some literature was provided to Mr. Hicklin, the literature contained no warnings. Further, Clarke did not provide any warnings of the possibility of spontaneous combustion to Mullins, and Mullins did not provide any such warnings to Mr. Hicklin.
The record also reveals that Hicklin carefully examined the sander and read everything that was given to him and that he followed all of the instructions that he was provided with. Mr. Hicklin testified that, pursuant to those instructions, he unplugged the machine after using it; he rolled up the cord and placed it by the machine; and he carefully examined the machine before and while using it. There was no evidence that Mr. Hicklin disregarded any of the information that he was provided with.
Dr. V. Morfopoulos, a safety engineer, testified as to the necessity for manufacturers to warn of the hazards of spontaneous combustion of sander dust. Further, he testified that manufacturers have known for more than 50 years of the danger and the need to warn users concerning the hazards associated with spontaneous combustion or ignition of dust in sander bags. He stated that, in his opinion, providing literature with warnings at the time of sale was not sufficient and that the warnings must be on the machine. He further stated that, in his opinion, warnings on sander bags were likewise not sufficient.
As noted above, Clarke contends that Home failed to prove all of the elements required to sustain an AEMLD action and a negligence action. Specifically, Clarke contends that there was not substantial evidence (1) that the alleged failure to adequately warn proximately caused the fire *461 and the resulting damage, (2) that the product was in substantially the same condition at the time of the accident as it was when it was sold, and (3) that Clarke failed to give reasonable warnings regarding the hazards incident to the use of its product.
Under both the AEMLD and the negligence theories, Home has the burden of proving proximate causation. In order to establish liability under the AEMLD, a plaintiff must show the following:
Purvis v. PPG Industries, Inc., 502 So.2d. 714, 718 (Ala.1987), quoting Caterpillar Tractor Co. v. Ford, 406 So. 2d 854, 855 (Ala.1981).
As concerns liability pursuant to a breach of a duty to warn, § 388 of the Restatement (Second) of Torts (1965) provides:
Purvis, supra, at 719.
Clarke contends that Home failed to prove that Mr. Hicklin would have observed, read, and heeded any warning placed on the sander itself and cites Squibb & Sons, Inc. v. Cox, 477 So. 2d 963 (Ala. 1985), in support of its argument.
However, the facts in Squibb can be distinguished from the instant case. In Squibb, the evidence was undisputed that the plaintiff did not read any of the instructions or warnings Squibb provided with its product. There, we held that "a plaintiff who does not read an allegedly inadequate warning cannot maintain a negligent-failure-to-adequately-warn action unless the nature of the alleged inadequacy is such that it prevents him from reading it." Squibb, at 971. We found, there, that "the presumed inadequacy of Squibb's warning did not proximately cause plaintiff's injury." Squibb, at 971.
In the present case, Mr. Hicklin testified that he read the "do-it-yourself" sanding guide, reviewed the information on the invoice given to him by Mullins, and looked over the writing on the sander. Further, Mr. Hicklin testified that he followed each of the instructions in the "do-it-yourself" guide. Pursuant to those instructions, he inspected the entire area to be sanded for nail heads and determined that there were no nail heads to be countersunk; he sanded around the edges of the walls as instructed; and after he had finished sanding for the day, he unplugged the sander and coiled up the cord. He also testified that he sanded the floor in accordance with all instructions given him. However, there is no evidence that Mr. Hicklin was ever warned of the possibility of spontaneous combustion of the dust in the dust collection bag. It is undisputed that there was no such warning on the machine itself. In view of the above, we find that there was substantial evidence that, had there been a warning concerning the possibility of spontaneous combustion, Mr. Hicklin would *462 have read it and heeded the warning. Therefore, we find that Clarke was not entitled to a directed verdict or a j.n.o.v.
Clarke contends that Home failed to prove that the sander reached Mr. Hicklin without substantial change in the condition in which it was sold.
An essential element of an AEMLD claim is proof that the product reached the consumer without substantial change in the condition in which it was sold. Caterpillar Tractor Co. v. Ford, 406 So. 2d 854 (Ala. 1981).
Here, it is undisputed that the sander in question did not contain a Clarke dust collection bag at the time that Mr. Hicklin rented it. It is also undisputed that a Clarke bag would have contained a warning concerning the possibility of spontaneous combustion. However, this fact, in and of it itself, does not necessarily indicate a substantial change in the condition of the machine. Clarke knew that the bags would wear out and need to be replaced, possibly more often than once a year. Further, Clarke knew that most rental dealers did not use Clarke bags because they were more expensive than other bags. Therefore, we conclude that the use of a different bag on the machine does not constitute a change in the condition of the machine. We further point out that a manufacturer remains liable if an alteration or change is foreseeable. Beloit Corp. v. Harrell, 339 So. 2d 992 (Ala.1976). Clearly, the need for a new dust collection bag on a sander and the possibility that one made by another manufacturer would be used would be foreseeable.
Clarke contends that its warnings and the methods it used to convey those warnings were reasonable.
After a review of the record, we find that there was substantial evidence that Clarke's warnings were not reasonable. There was testimony from a safety engineer that the risk of spontaneous combustion of dust in sander bags has been known within the engineering and safety community for over 50 years. This expert further testified that a warning of the risk of spontaneous combustion can be and should be affixed to the machine itself. He also testified that it is totally unreasonable to expect any literature containing such a warning to "follow the machine" and that proper engineering design requires that a permanent label or tag be affixed to the machine.
In view of the dangerous propensities of the sander, the seriousness of the potential hazard to life and property, the standards for warning within the industry, and the methods available to Clarke to communicate such a warning, we find that there was substantial evidence that Clarke failed to take reasonable steps to provide an adequate warning.
Certainly, Home submitted at least substantial evidence on all of the elements of both the negligent-failure-to-warn claim and the AEMLD claim against Clarke. Therefore, the trial court was correct in denying Clarke's motion for a j.n.o.v.
The trial court's judgment in this case is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | November 1, 1991 |
d8aeea82-55bb-47a4-a538-6a9a04d41a17 | Roberts v. Joiner | 590 So. 2d 195 | 1900502 | Alabama | Alabama Supreme Court | 590 So. 2d 195 (1991)
Jim ROBERTS, et al.
v.
Jim JOINER and John Milner.
1900502.
Supreme Court of Alabama.
September 6, 1991.
Rehearing Denied November 8, 1991.
*196 C. Peter Bolvig of McDaniel, Hall, Conerly & Lusk, P.C., Birmingham, for appellants.
Michael J. Evans and Gary P. Cody of Longshore, Evans & Longshore, Birmingham, for appellees.
PER CURIAM.
Jim Joiner and John Milner, who were employed as law enforcement officers by the Town of Morris (the "Town"), filed a 42 U.S.C. § 1983 action against all the members of the town council of Morris, alleging, among other things, that the town council members had reduced their salaries and then had terminated them and in so doing had both deprived them of property without due process of law, in violation of the Fourteenth Amendment to the United States Constitution, and violated their right to freedom of speech guaranteed by the First Amendment to the United States Constitution. Later, another town council was elected, and the new town council members (Jim Roberts, et al.) were substituted as parties to the action, pursuant to Rule 25(d)(1), A.R.Civ.P. The jury returned a verdict in favor of the plaintiffs in the amount of $100,000 each. The trial court awarded Joiner an additional $25,430 for lost wages and lost insurance premium benefits; awarded Milner an additional $39,034 for lost wages; ordered Milner reinstated; and entered a judgment on the verdict.
In 1983, Joiner was the Town's chief of police and Milner was a sergeant in the police department. In late November or early December 1983, Joiner and Milner informed the Town's mayor, Lamar Reid, that town council members Earl Peyton and Frank Keith had purchased tires through the Town's account for their personal use. Peyton and Keith had paid for the tires, but had received them at a substantially discounted price by using the Town's account. Joiner and Milner also notified the State Ethics Commission, and *197 they say that the Ethics Commission told them that it would be best for the Town to handle the situation internally.
On December 18, 1983, the town council met to address "the tire situation." It determined that Peyton and Keith would resign from the committee that purchased goods for the Town and that they should pay the tire store the amount of the discount they had improperly taken.
On December 27, 1983, the town council voted to borrow $8,500 on a 90-day promissory note to cover payroll expenses.
In early January 1984, Keith, who was the town council member directly supervising the police department, altered Milner and Joiner's work schedules, and the plaintiffs allege that this was the beginning of the retaliation for their telling on Peyton and Keith. Joiner testified that also in early January, Keith told him to find a reason to fire Milner.
On January 10, 1984, Keith made a motion to lay off the police dispatcher, demote a police officer to dispatcher, and cut all regular full-time employees' salaries by five percent. The town council, citing financial difficulties, approved the motion. The full-time employees were Joiner, Milner, the police officer who was demoted to dispatcher, and the town clerk, who had originally brought the tire purchases to the attention of Milner.
Shortly after that meeting, Joiner told the mayor and a town councilman that the pay cut was in retaliation for his telling on Peyton and Keith about the tire purchases.
On January 28, 1984, the town council met and Joiner read a letter to the council stating that the pay cuts and layoffs were retaliation. Milner attended this meeting.
The town council met again on February 28, 1984. Councilman Chambers questioned the Town's paying insurance for all the members of Joiner's family. The town council had previously voted not to provide family health insurance for employees hired after January 26, 1982. Joiner had resigned as police chief in February 1982 and then had been rehired in March 1982; accordingly, Chambers argued, Joiner was not entitled to family health insurance. The town council voted to pay only Joiner's health insurance premiums.
Joiner and Milner again complained to the town council that this was retaliation.
Either the last day of February or the first day of March 1984, Joiner moved from Morris to Jasper, Alabama. Joiner testified at trial that his family moved and that his wife got a job because it was apparent to him that he was going to be terminated.
Joiner and Milner attended the town council's March 13, 1984, meeting, during which the council approved this resolution:
On March 15, 1984, Milner and Joiner met with the town council to try to resolve their difficulties, but both sides were intransigent, the plaintiffs demanding a full reinstatement of benefits and the town council unwilling to reinstate any benefits.
On March 23, 1984, Joiner and Milner filed this action, specifically claiming that their pay had been cut and that insurance for Joiner's family had been terminated in retaliation for their reporting the tire purchases to the mayor. The complaint requested damages under 42 U.S.C. § 1983 for alleged violations of the plaintiffs' rights to free speech and due process, and requested damages based on state law claims for breach of contract, "bad faith," outrage, and intentional infliction of emotional distress.
On March 29, 1984, the town council met again. The mayor stated alleged reasons for the town council's dissatisfaction with the plaintiffs' work and asked them to resign. They were at the meeting and refused to resign; the town council voted to *198 terminate them. Keith and Peyton did not vote.
The plaintiffs amended their complaint to claim additionally that they had been terminated without due process and in violation of their right to free speech.
At trial, the plaintiffs dropped the state law claims and proceeded only on their § 1983 action. In addition to their free speech claims, the trial court allowed the plaintiffs' claim concerning deprivation of property without due process to go to the jury on at least three theories: 1) that the pay cut was a deprivation without due process, 2) that the reduction of Joiner's family insurance benefits was a deprivation without due process, and 3) that the plaintiffs were terminated without due process. The jury returned a general verdict.
For the plaintiffs to recover for the alleged deprivation of their property rights without due process of law, they must prove both 1) that they had a property interest and 2) that they were deprived of that interest without due process of law. Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982); Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981). For the sake of discussion only, we assume that they had a property interest and resolve the case by addressing whether they were deprived of such an interest without due process of law. Specifically, we address the plaintiffs' claims that they were terminated without due process.
In relation to that claim, the plaintiffs argue that they were entitled to receive notice of the charges against them and were entitled to a hearing prior to their termination. However, as we later explain in more detail, according to United States Supreme Court decisions in Parratt and Logan, which had been decided at the time of the transactions underlying this lawsuit, even in the absence of pretermination procedures, posttermination remedies can properly provide due process under the United States Constitution in relation to Joiner and Milner's claim that the town council itself deprived them of property without due processalthough if their claim had been based on a state-established ordinance or statute that purportedly denied them due process, such postdeprivation remedies might have been insufficient.
Since the transactions occurred, the United States Supreme Court's position on whether postdeprivation remedies sufficiently provide due process seems to have changed. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). The plaintiffs do not present an argument that we should retroactively apply Loudermill, however, and we are not inclined to do so without such an argument. See Cox v. Cook, 420 U.S. 734, 95 S. Ct. 1237, 43 L. Ed. 2d 587 (1975); Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971).
In Parratt, an inmate in a Nebraska correctional facility ordered through the mail certain hobby materials. When they arrived, he was in solitary confinement, where he was not permitted to have the materials, and when he was released from solitary confinement, the materials had been lost. He brought a 42 U.S.C. § 1983 action, alleging deprivation of property without due process of law. The United States Supreme Court wrote:
451 U.S. at 537-42, 101 S. Ct. at 1914-16 (emphasis original).
Accordingly, Parratt seems to indicate that Joiner and Milner were not necessarily entitled to predeprivation proceedings, because they are challenging actions by town council members instead of established state procedures. Parratt also seems to indicate that postdeprivation proceedings in this situation can properly provide due process.
In Logan, the plaintiff challenged established state procedures. Logan was discharged from Zimmerman Brush Company *200 purportedly because he had a physical handicap that rendered him incapable of working. Logan challenged that discharge under the Illinois Fair Employment Practices Act. The United States Supreme Court described the events following Logan's challenge:
455 U.S. at 426-27, 102 S. Ct. at 1152-53 (citations omitted).
Addressing Logan's alleged deprivation of due process, the Supreme Court wrote:
455 U.S. at 434-36, 102 S. Ct. at 1156-58.
In the case before us, Joiner and Milner are challenging the town council's actions, not an established state procedure, so Parratt is more apposite than Logan. The evidence indicates that the "Town of Morris Personnel Policy" provides for a post-termination appeal and hearing. An employee is entitled to written notice setting forth the reasons for his termination and is entitled to a hearing on his termination. The hearing may be before either the town council or an appointed hearing officer. An employee has the right to representation by an attorney and may call witnesses and present evidence at the hearing. Subsequent to the hearing, the employee has the further right to judicial review of the proceedings by the circuit court.
The evidence also indicates that instead of pursuing the post-termination procedures, the plaintiffs opted to amend their complaint (which had been filed before they were terminated) to use the termination as another theory for recovery on their state law and § 1983 claims.
Considering all the evidence, we hold that the Town did not deprive Joiner and Milner of property without due process of law in relation to their claims concerning their termination, Parratt, and that the trial court erred in submitting that claim to the jury. We intend that holding to be construed narrowly. We do not address whether the trial court erred in submitting to the jury the plaintiffs' claims of a deprivation of property without due process based on the pay cuts and Joiner's loss of his family's insurance.
As to the plaintiffs' free speech claims, the law on deprivations of freedom of speech is clearly established, unlike the law relating to due process that we have just discussed, although the application of the law to facts in the context of free speech claims has produced dramatically different results in seemingly similar factual situations. "It is clear that a state may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech." Rankin v. McPherson, 483 U.S. 378, 383, 107 S. Ct. 2891, 2896, 97 L. Ed. 2d 315 (1987). The threshold question in determining whether an adverse employment decision violates the right to freedom of speech is whether the speech at issue may be fairly characterized as speech on a public concern. Id., at 384, 107 S. Ct. at 2897. If it is, the court must balance the interests of the employee as a citizen in commenting upon public concern with the interest of the state, as employer, in promoting the efficiency of the public services it performs through its employees. Id.
Whether speech is protected is an issue of law, reviewable de novo on appeal. Id., at 385-86, 107 S. Ct. at 2897-98. If it is determined as a matter of law that the speech is protected, the plaintiff must prove that the speech was a substantial or motivating factor in the challenged employment decision. Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576, 50 L. Ed. 2d 471 (1977). The burden then shifts to the defendant to show "by a preponderance of the evidence that it would *202 have reached the same decision ... in the absence of the protected activity." Id. These last two issues are fact questions.
Id.
In addition to the evidence that we have already discussed, the Town's mayor testified in deposition and at trial that he thought the town council's actions against Joiner and Milner were retaliation for their telling about the tire purchases.
We must first determine whether Joiner and Milner's communications in turning in Peyton and Keith to the mayor and town council were a matter of public concern. Speech on matters of public concern has been defined as speech "fairly considered as relating to any matter of political, social, or other concern to the community." Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 1689-90, 75 L. Ed. 2d 708 (1983). That inquiry into what is a public concern requires a court to consider the content, form, and context of the speech at issue, as revealed by the entire record. Rankin, 483 U.S. at 385, 107 S. Ct. at 2897.
In determining whether speech is a matter of public concern, many courts have particularly focused on the extent to which the content of the employee's speech was calculated to disclose wrongdoing, inefficiency, or other malfeasance on the part of governmental officials in the conduct of their official duties. See Wulf v. City of Wichita, 883 F.2d 842, 857 (10th Cir.1989); Koch v. City of Hutchinson, 847 F.2d 1436, 1445, 46 n. 17 (10th Cir.1988), cert. denied, 488 U.S. 909, 109 S. Ct. 262, 102 L. Ed. 2d 250 (1988), and the numerous cases cited in Wulf and Koch for this proposition.
Considering the above discussion, we hold that Joiner and Milner's speech in turning in the councilmen for the improper tire purchases was a matter of public concern. We further hold that on balance, Joiner and Milner's interest (as well as the public's), in the free speech involved in turning in Keith and Peyton outweighed any purported state interest in promoting the efficiency of public services. The law should not allow the Town to create problems with Joiner and Milner because of their reporting the improper tire purchases and then use the very problems it created as a basis for saying that it has a greater interest in efficiency of public services than Joiner and Milner have in free speech.
Furthermore, the plaintiffs presented substantial evidence that the speech was a substantial or motivating factor in the challenged employment decisions. Even the mayor of the Town said, both in his deposition and again at trial, that he thought the town council's actions were retaliation for Joiner and Milner's telling about the improper tire purchases.
The trial court did not err in submitting to the jury the plaintiffs' 42 U.S.C. § 1983 claim alleging a violation of their right to free speech. See Wulf; Reeves v. Claiborne County Board of Education, 828 F.2d 1096 (5th Cir.1987); Sykes v. McDowell, 786 F.2d 1098 (11th Cir.1986); Robb v. City of Philadelphia, 733 F.2d 286 (3d Cir.1984); Allen v. Autauga County Board of Education, 685 F.2d 1302 (11th Cir.1982); Kingsville Independent School District v. Cooper, 611 F.2d 1109 (5th Cir. 1980).
We are aware that there are cases that might suggest a contrary result. See Morales v. Stierheim, 848 F.2d 1145 (11th Cir.1988); Cooper v. Johnson, 590 F.2d 559 (4th Cir.1979); Kannisto v. City & County of San Francisco, 541 F.2d 841 (9th Cir. 1976), cert. denied 430 U.S. 931, 97 S. Ct. 1552, 51 L. Ed. 2d 775 (1977); Wood v. Town of Frederica, 529 F. Supp. 403 (D.Del.1982), aff'd at 688 F.2d 828 (3d Cir.1982); Hoopes v. Nacrelli, 512 F. Supp. 363 (E.D.Pa.1981).
The trial court properly submitted the plaintiffs' free speech claim to the jury, but it erred in submitting to the jury their claim for deprivation of property allegedly without due process because of their termination. The jury returned a general verdict. In South Central Bell Tel. Co. v. Branum, 568 So. 2d 795 (Ala.1990), we addressed the effect of a general verdict when a case contains a "good" count (i.e., one properly submitted to the jury) and a "bad" count (i.e., one improperly submitted to the jury). In that case, we held that if a good count and a bad count go to the jury *203 and the jury returns a general verdict, this Court cannot presume that the verdict was returned on the good count. 568 So. 2d at 798. See also Aspinwall v. Gowens, 405 So. 2d 134 (Ala.1981).
Accordingly, the judgment is due to be reversed and the cause remanded for a new trial.
REVERSED AND REMANDED.
SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
INGRAM, J., concurs in the result in part and dissents in part.
INGRAM, Justice (concurring in the result in part and dissenting in part):
In this action, the plaintiffs sued the members of the town council of the Town of Morris, in their official capacity. The plaintiffs alleged that the town council members denied them due process of law and violated their rights to free speech under the first amendment and were therefore liable for damages pursuant to 42 U.S.C. § 1983. The essence of their claim is that the town council members, acting under the color of their office, retaliated against the plaintiffs for speaking out regarding an incident concerning the improper purchase of tires by two councilmen through the town's account. The plaintiffs alleged that the members of the town council terminated them for this "whistle-blowing" activity.
The defendants named in the original complaint were designated as follows:
By the time of trial, no council member named in the original complaint was still in office. Under Rule 25(d)(1), A.R.Civ.P., the successors in office to the originally named defendants, who were sued in their official capacity, were automatically substituted.[1]
A suit against the town council and the mayor of the Town of Morris, in their official capacities, is for all intents and purposes an action against the Town of Morris. See Brandon v. Holt, 469 U.S. 464, 469, 105 S. Ct. 873, 876, 83 L. Ed. 2d 878 (1985); Monell v. New York City Department of Social Services, 436 U.S. 658, 690 n. 55, 98 S. Ct. 2018, 2035 n. 55, 56 L. Ed. 2d 611 (1978). In official-capacity suits, such as this one, the plaintiffs seek to impose liability upon the governmental entity that the named defendants represent, here the Town of Morris. In order to recover under § 1983 in an official-capacity suit, the plaintiffs must allege and prove that the entity was a moving force behind the deprivation and that the entity's policy or custom played a part in the violation.
The United States Supreme Court addressed this issue in Kentucky v. Graham, 473 U.S. 159, 105 S. Ct. 3099 (1985). The Court stated:
"* See Monell, 436 U.S., at 694, 98 S.Ct., at 2037 (`[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983')."
Id. at 166 and n. 12, 105 S. Ct. at 3105 n. 12.
The issue in this case is whether the plaintiffs have pleaded and proved a cause of action against the Town of Morris under § 1983. I believe they have not.
To reiterate, in order for a municipality to be found liable under § 1983, the plaintiffs must allege and prove a direct causal link between the municipal policy or custom and the alleged constitutional deprivation. City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1202-03, 103 L. Ed. 2d 412 (1989). The plaintiffs must allege and prove that "the `execution of the government's policy or custom ... inflict[ed] the injury.'" Id. (quoting City of Springfield, Mass. v. Kibbe, 480 U.S. 257, 267, 107 S. Ct. 1114, 1119, 94 L. Ed. 2d 293 (1987) (O'Connor, J., dissenting) (quoting Monell, 436 U.S. at 694, 98 S.Ct. at 2037)).
In the pre-trial order in the present case, the trial court stated:
(Emphasis added.)
Further, the following charge was requested by the plaintiffs and was given by the trial court:
(Emphasis added.)
Also, the plaintiffs produced no evidence or testimony, nor do they argue, that they were discharged pursuant to some policy or custom of the Town of Morris, nor did they allege that the single event of their discharge constituted a "policy or custom" of the Town of Morris.[2] "The [Town of Morris] *205 cannot be held liable under § 1983 unless [the plaintiffs] prove the existence of an unconstitutional municipal policy." City of St. Louis v. Praprotnik, 485 U.S. 112, 128, 108 S. Ct. 915, 926, 99 L. Ed. 2d 107 (1988).
In this case, the plaintiffs consistently assert that they were discharged because they had "blown the whistle" on an allegedly improper purchase of tires by two "sitting" councilmen and that their discharge violated the personnel policy of the town. Their claims, under § 1983, arise not from the effectuation of some policy or custom of the Town of Morris; indeed, the plaintiffs allege that their discharge violated the policy of the Town of Morris. This is not sufficient to state a claim against the Town of Morris under § 1983 for deprivation of constitutional rights as a result of the town's policy or custom. Because the plaintiffs have failed to state a claim for relief, under § 1983, against the Town of Morris, and the plaintiffs dismissed with prejudice their claims against those members of the town council who were sued in their individual capacity, there is no ground upon which relief can be granted. Therefore, the verdict of the jury against the current town council members in their official capacities is due to be reversed, and the cause remanded to the trial court for entry of judgment in favor of the defendants. I respectfully dissent from that part of the majority opinion that remands the case to the trial court for retrial of the First Amendment issue, and I concur in the result regarding the alleged denial of due process.
[1] Rule 25(d)(1), A.R.Civ.P., states:
"When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party."
The corresponding federal rule has been interpreted in the following manner:
"Should the official die [resign, or otherwise cease to hold office] pending final resolution of a personal-capacity action, the plaintiff would have to pursue his action against the decedent's estate. In an official-capacity action in federal court, death or replacement of the named official will result in automatic substitution of the official's successor in office. See Fed.R.Civ.Proc. 25(d)(1); Fed. R.App.Proc. 43(c)(1); [United States Supreme Court] Rule 40.3."
Kentucky v. Graham, 473 U.S. 159, 166 n. 11, 105 S. Ct. 3099, 3105 n. 11, 87 L. Ed. 2d 114 (1985).
[2] A recent United States Supreme Court decision seems to hold that an action may be maintained against a municipality when the highest policy-making authority of the municipality has made a single decision. City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S. Ct. 915, 923-24 (1989). The Supreme Court held that under certain circumstances a single decision could represent the "policy" of the governmental entity. Id. In Praprotnik, the respondent was not successful in alleging a cause of action against the City of St. Louis because he had failed to allege and to prove the existence of an unconstitutional policy, and he had not contended that anyone had ever promulgated such a policy. He also failed to prove that the deprivation of his rights was the "custom" of St. Louis. Id. at 128, 108 S. Ct. at 926. | September 6, 1991 |
47588d2e-4660-41f2-aa6a-9f7e92e032e5 | Ex Parte Pettway | 594 So. 2d 1196 | 1901437 | Alabama | Alabama Supreme Court | 594 So. 2d 1196 (1991)
Ex parte Maurice PETTWAY
(Re Maurice Pettway v. State).
1901437.
Supreme Court of Alabama.
October 11, 1991.
*1197 W. Gregory Hughes, Mobile, for petitioner.
James H. Evans, Atty. Gen., and Thomas W. Sorrells, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
We granted this petition for writ of certiorari to review whether the petitioner sufficiently preserved for review the trial court's refusal to instruct the jury on the law of self-defense and the use of force in effecting an arrest.
The petitioner, Maurice Pettway, was indicted and convicted for the offense of attempted murder, as proscribed by Ala. Code 1975, § 13A-6-2. He was sentenced to 20 years' imprisonment and was ordered to pay a $25 Victims' Compensation Fund assessment. The trial court suspended the execution of his sentence pending the outcome of his appeal. The Court of Criminal Appeals, 586 So. 2d 307, affirmed the trial court's judgment with an unpublished memorandum opinion:
In his application for rehearing to the Court of Criminal Appeals, Pettway presented an additional statement of facts and requested that the court incorporate those facts in an opinion on rehearing. Ala.R.App.P. 39(k). The Court of Criminal Appeals denied his request. Pettway included that statement of additional facts in his petition to this Court for writ of certiorari, and we found it to be sufficient for our review.[1]
The basic facts contained in Pettway's statement of facts as supplemented pursuant to Rule 39(k), Ala.R.App.P., are essentially undisputed. Pettway, at the time of the incident forming the basis of the criminal *1198 proceeding, was a City of Prichard police officer.
The victim, Earnest Clever Murphy, closed his shop, went home, and after he and his wife got into an argument about his not going out with her, he left the house in his wife's automobile and later called the mother of Patricia Watkins and told her that he might come by her house. Pettway and his sister had dropped Watkins off at her house in Prichard, and when Murphy arrived at the house, he saw Watkins get out of Pettway's car. Murphy told Watkins that he wanted to talk to her. Murphy and Watkins noticed that Pettway's car had stopped down the street from her house, and Murphy testified that Watkins had said, "He's waiting to see what you're going to do." Moments later, after Murphy left Watkins's house, he noticed that a car was following his car very closely. He testified that he pulled into a parking lot and that the car passed him. Murphy then pulled out, sped to catch the car, and put on his bright lights "to get [the] tag number."
At this point, the evidence becomes conflicting. Murphy testified that he noticed that the car he was following had stopped, but that he was unable to stop and that he struck the car in the rear. He stated that immediately after the impact, he saw a flash, heard a bang, and knew that he had been shot. He stated that when he got out of his car, Pettway was holding a gun to his head. After the incident, Murphy observed Pettway talking on a "walkie-talkie," but could not recall what he said.
In contrast, the defense put on evidence that after Pettway stopped, Murphy deliberately rammed Pettway's automobile twice from behind. Pettway further testified that after he and his sister jumped from his car, he approached the driver's door of Murphy's car and that he said "Sir, it's the policeget out of the car." According to Pettway, Murphy initially refused to get out of the car, and then pushed the door open, striking Pettway with the door of the car. Pettway testified that he then saw Murphy's right hand coming toward the window holding something shiny that he believed to be a gun; at that point, Pettway admittedly fired his gun and shot Murphy but claimed that he had fired in self-defense.
After he shot Murphy, Pettway allegedly patted him down and pushed him toward Pettway's car. Once they got to the car, Pettway used his walkie-talkie to inform the police of a "signal 18," the code for a shooting. He then gave Murphy a towel and allegedly told him to "calm down or you'll bleed to death."
Shortly thereafter, police officers from Mobile and Prichard arrived at the scene of the incident. The officers searched Murphy's car, but found no weapons or contraband. They searched the surrounding area and found a chrome-plated wrench five feet and one inch from the blood marks on the street.
We first consider whether the Court erred in refusing to instruct the jury on the use of force in self-defense.[2] Even though he did not prepare a written instruction and request that the trial judge give it to the jury, Pettway claims that his objection was sufficiently specific to preserve the question for review, and he cites Matkins v. State, 497 So. 2d 201 (Ala. 1986), in support of his argument.
The State contends that the trial court's refusal to instruct the jury on the law of self-defense was not properly preserved for appellate review, because Pettway's counsel did not direct the court to any particular pattern jury form, did not prepare any written *1199 instructions, or did not otherwise outline the substance of any instruction that he wished the court to give.
We have reviewed the record and find the following: After the close of the evidence, out of the presence of the jury, but before closing arguments and the trial court's instructions to the jury, Pettway's attorney orally requested that the trial judge give the "general charges ... in a case like this" and that he also instruct the jury on the presumption of innocence and "[a]lso the use of force in defense of a person." Pettway's attorney stated:
The record shows that the Court then inquired whether the defendant was making an arrest at the time of the incident, and whether he was in uniform, and then the following occurred:
Pettway's attorney, during the charge conference, requested the court to instruct the jury on resisting arrest, and cited the court to § 13A-3-28.
At the end of the charge conference, the court advised counsel on the general subjects on which he would instruct the jury, and the following occurred:
After the court orally instructed the jury and before the jury began its deliberations, Pettway's attorney again noted his objection, to which the court responded:
Based on a review of the record, and especially the record of the proceedings at the charge conference, we are of the opinion that the petitioner, even though he did not request the instructions in writing, preserved for review the issue of his entitlement to an instruction on self-defense. Ex parte McCall, 594 So. 2d 628 (Ala.1991). Matkins v. State, 497 So. 2d 201 (Ala.1986).
It is apparent from the colloquy between Pettway's counsel and the court that the court was aware of the substance of the instructions that counsel was requesting, and the reasons why such instructions should be given under the particular facts of his case.
Rule 14, A.R.Cr.P.Temp. (now Rule 21.2, A.R.Cr.P.), states that "[n]o party may assign as error the court's ... giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection." Based on our review of the record, much of which we have set out in this opinion, we find that petitioner's counsel complied with the requirements of this rule. The better practice, of course, would have been for trial counsel to have presented the court with a written instruction, but the record suggests that trial counsel gave to the trial court copies of the statutes upon which he wanted the jury instructed. Although this procedure is not a substitute for the presentation of a written instruction, we suggest that the trial judge could have insisted on counsel's presenting him with a written instruction that detailed exactly what he desired, so that the record would be complete. We do not commend the procedure used in this case, but from a reading of the colloquy, it is apparent that the trial judge not only understood what counsel was requesting him to instruct the jury on, but he also understood counsel's subsequent objection. Apparently the trial judge concluded, as did the Court of Criminal Appeals, that the theory of self-defense had no foundation in the evidence or in the law. We must disagree with the learned trial judge and the Court of Criminal Appeals on this issue.[3]
In King v. State, 478 So. 2d 318 (Ala.Cr. App.1985), the Court of Criminal Appeals stated the general rule regarding the court's duty to instruct the jury on the law of the case:
In order to determine whether the evidence is sufficient to necessitate an instruction and to allow the jury to consider the defense, we must view the testimony most favorably to the defendant. See Chavers, 361 So. 2d 1106. If there is the slightest evidence tending to prove a hostile act which can reasonably be interpreted as placing Pettway, at the time of the shooting, in apparent imminent danger to life or other grievous bodily harm, then the matter of self-defense becomes a question for the jury. See Domingus v. State, 94 Ala. 9, 11 So. 190 (1892).
We hold that a jury could find that a reasonable person, under the facts and circumstances in this case, would be justified in the belief that the use of force was *1201 necessary. We recognize that "the question is not merely what the defendant believed, but also, what did he have the right to believe," Ala. Code 1975, § 13A-3-23, and hold that the evidence in this case supported Pettway's right to believe that he was in imminent danger of bodily harm.
Domingus v. State, 94 Ala. 9, 11 So. 190, 192 (1892).
Based upon the evidence before the jury in this case, the judge should have instructed the jury on the issue of self-defense.[4] Consequently, the judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to the Court of Criminal Appeals with directions to remand it to the trial court for a new trial.
Having found grounds for granting the defendant a new trial, it is unnecessary for us to address whether Pettway was entitled to an instruction on the use of force in effecting an arrest. However, in view of the fact that we are remanding the case for a new trial, we hereby state that, based on the record before us, the Court of Criminal Appeals did not err in finding that "[t]he appellant's charges relating to the use of force by the appellant [are] without merit because the evidence did not indicate that the appellant was attempting to arrest the victim when he fired the shot." We do not agree totally with the finding of that court, however, that "[t]he appellant was [not] within his jurisdiction." The evidence is clear that he was "[not] on duty," but, as we understand the law, he could have made an arrest outside of the city of Prichard, if within the county.[5]
In summary, we hold that the Court of Criminal Appeals erred in affirming the trial court's judgment regarding the requested jury instructions on self-defense, but we affirm the judgment of the Court of Criminal Appeals insofar as it holds that the evidence presented did not show that the petitioner was entitled to an instruction on the law relating to the use of force in effecting an arrest. The judgment is reversed, and the cause remanded for proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] See Ex parte Moore, 493 So. 2d 988 (Ala.1986), in which this Court said that a petitioner who complies with Rule 39(k) "could, in effect, ask the Court of Criminal Appeals to adopt an opinion which would be favorable to his position"; see, also, H. Henzel, Complying with Rule 39(k), A.R.A.P. (How to Succeed on "Cert"), 45 Ala.Law. 270 (1984).
[2] Ala. Code 1975, § 13A-3-23(a) sets out under the heading "Use of Force in Defense of a Person" the following:
"(a) A person is justified in using physical force upon another person in order to defend himself, or a third person, from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for the purpose. A person may use deadly physical force if the actor reasonably believes that such other person is:
"(1) Using or about to use unlawful deadly physical force."
[3] The Court of Criminal Appeals affirmed because it found no basis in the evidence for the giving of the requested instruction.
[4] The State, on this point, does not argue that the instruction should not have been given, only that it was not requested in writing.
[5] Pettway was a police officer for the City of Prichard, but was off-duty on the night of the incident in this case, which took place in the City of Mobile. Mobile and Prichard are contiguous cities, both lying within Mobile County, Alabama.
It appears, therefore, that Pettway could have made an arrest without a warrant in his official capacity as a law officer, even though he was outside the city limits and police jurisdiction of Prichard, based on the provisions of Ala. Code 1975, § 15-10-1:
"An arrest may be made, under a warrant or without a warrant, by any sheriff or other officer acting as sheriff or his deputy, or by any constable, acting within their respective counties, or by any marshal, or policeman of any incorporated city or town within the limits of the county."
See also Brooks v. State, 471 So. 2d 511 (Ala.Cr. App.1985). Furthermore, in Ringstaff v. State, 480 So. 2d 50 (Ala.Cr.App.1985), the Court of Criminal Appeals held that the fact that a police officer was "off-duty" did not affect the legality of the arrest, citing Hutto v. State, 53 Ala.App. 685, 689-90, 304 So. 2d 29, 32-33, cert, denied, 293 Ala. 758, 304 So. 2d 33 (1974). | October 11, 1991 |
c912afcd-f323-4f96-9886-2ad9eed22334 | Public Systems, Inc. v. Towry | 587 So. 2d 969 | 1900746 | Alabama | Alabama Supreme Court | 587 So. 2d 969 (1991)
PUBLIC SYSTEMS, INC.
v.
Herman Kenneth TOWRY and Susan Dawn Adams.
1900746.
Supreme Court of Alabama.
September 6, 1991.
*970 Douglas C. Martinson and Douglas C. Martinson II of Martinson, Beason & Hooper, P.C., Huntsville, for appellant.
David C. Craddock, Huntsville, for appellees.
MADDOX, Justice.
The parties present us with several issues concerning the Alabama Trade Secrets Act, Ala.Code 1975, § 8-27-1 et seq.: (1) whether the customer lists and spreadsheet software data program developed by the plaintiff were trade secrets as defined by the Trade Secrets Act; (2) whether the defendants could be restricted by the Trade Secrets Act or otherwise from interfering with existing contract relationships of the plaintiff because the two parties did not enter into a covenant not to compete; (3) whether the defendants could be restricted by the Trade Secrets Act from contacting clients targeted by the plaintiff; and (4) whether the defendants could be restricted by the Trade Secrets Act or otherwise from interfering with the prospective advantage of the plaintiff in the eight grant applications that were produced by the plaintiff.
The essential facts of the case are as follows. The plaintiff, Public Systems, Inc., is a private, closely held corporation that specializes in providing financial and technical assistance to public and private agencies in Alabama and Tennessee to obtain financing for projects for public purposes, including water systems, sewer systems, and government housing. After the clients obtain financing, PSI assists them in administering and carrying out the projects in accordance with the various state and federal regulations.
The defendants, Herman Kenneth Towry and Susan Dawn Adams, are former employees of PSI. Towry worked as a consultant at PSI for approximately nine years. When he voluntarily terminated his employment, Towry was serving as vice-president of operations. Adams worked at PSI as a staff consultant for approximately one year, at which point she was terminated by PSI. As part of their duties, both Towry and Adams helped prepare grant applications for PSI, and when those grants were funded, they helped to supervise and administer the grant projects. Upon the cessation of their employment with PSI, Towry and Adams formed a company that would directly compete with PSI.
PSI brought this action against the defendants under the provisions of § 8-27-1, alleging that after their termination from PSI, Towry and Adams misappropriated the confidential information and trade secrets of PSI by using customer lists, confidential pricing information, techniques, and processes. PSI also alleged that Towry and Adams had tortiously interfered with the business contracts of PSI and its clients. The complaint specifically alleged:
PSI also requested that the trial court issue a temporary restraining order and a preliminary injunction, seeking to enjoin the defendants from contacting certain clients of PSI, from disseminating the alleged trade secrets, from hiring PSI's employees, and from retaining documents that allegedly belonged to PSI.
The trial court denied the motion, noting the following:
This is an interlocutory appeal from the trial court's denial of PSI's motion for a temporary restraining order and preliminary injunction. Initially, we define our scope of review in an appeal from an order denying a preliminary injunction. As stated in Alabama Educ. Ass'n v. Board of Trustees, 374 So. 2d 258, 260 (Ala.1979):
PSI contends that its spreadsheet software data program is a "trade secret" as defined in the Trade Secrets Act. That Act defines a "trade secret" to mean information that:
See Ala.Code 1975, § 8-27-2(1).
The burden is on the one asserting the trade secret, here PSI, to show that it is included or embodied in the categories listed in § 8-27-2(1). Towry and Adams concede that the program is included in the first two categories; clearly the plaintiff uses the information contained in the spreadsheet in its business, and the information is embodied in a spreadsheet software data program. They argue, however, that none of the last four categories applies; thus, they argue, the information cannot be afforded the protection of a trade secret.
The third requirement for trade secret protection is that the information "[i]s not publicly known and is not generally known in the trade or business of the person asserting that it is a trade secret." An examination of PSI's spreadsheet software data program reveals that the information the plaintiff seeks to protect is readily ascertainable or derivable from information that is publicly available. According to trial testimony, the spreadsheet began as an off-the-shelf computer program "available to *972 anybody who wants to go down to the software store and buy it." The program produces a screen of rows and columns and contains various command keystrokes to allow the user to modify the spreadsheet to insert blocks of information. The program also has the capability to perform mathematical calculations. There is no evidence in the record, and apparently no claim, that PSI made any changes to the technical aspects of the program; therefore, there is no trade secret protection in the program itself.[1] As stated in the comments to § 8-27-2, "the trade secret is not the object, process, etc., in which a trade secret is embodied, but is specific information."
All of the information compiled and embodied in PSI's spreadsheet data program is available to the public. The spreadsheet consists of a cover sheet, a key to the legends, a map and a multipage graph. The map is a reprint of an Alabama Department of Economic and Community Affairs ("ADECA") map that shows the counties of Alabama and the location of the regional planning and development commissions. PSI admits that the map is a state document with general dissemination.
The succeeding pages are in graph form. The first two columns contain the names of the cities and counties of Alabama. The third column, headed "REG.PLNCOM" shows the regional planning commission under whose jurisdiction each city and each county operates. The next columns, "1980 populations," "percent minority population," and "percent LMI [low and moderate income]," all contain information taken from the 1980 census.
The next two columns include a "community need factor" and a "DISCTYSTA" (distress county status), both figures were obtained from ADECA, are periodically published by ADECA, and are available to anyone who requests the information. The next column shows the "Fiscal Year 1989 Waste Water Treatment System Priority" as established by the Alabama Department of Environmental Management. This information is also generally available to the public.
The final columns contain a complete history of grant applications submitted by local governments. According to PSI, this information is obtained from ADECA and is information that one could obtain "if they knew what they were asking for."
Closely aligned with the requirements of (c), above, is the requirement of § 8-27-2(1)(d), that the information "cannot be readily ascertained or derived from publicly available information." What constitutes a trade secret is a question of fact for the trial court. Drill Parts & Service Co. v. Joy Mfg. Co., 439 So. 2d 43 (Ala. 1983). In this case, the trial court found that the software data program was not a "trade secret," based upon the fact that the information and the spreadsheet software were both "readily available" to the public. In cases where the evidence is presented ore tenus to the court and without a jury, the court's findings of fact are presumed to be correct and will not be set aside except for plain and palpable abuse of discretion. Chism v. Hicks, 423 So. 2d 143 (Ala.1982); Mac Pon Co. v. Vinsant Painting & Decorating Co., 423 So. 2d 216 (Ala.1982).
As stated in the comments to § 8-27-2, "[p]aragraph (d) is intended to disallow from trade secret protection information that is readily available and does not require substantial research investment to obtain." All of the information contained in the spreadsheet is readily available public information. While PSI claims that the spreadsheet took several years to develop, it appears that the development process would consist mainly of determining what information to obtain. We have examined *973 the record, and, considering our scope of review, we conclude that PSI has failed to show sufficient evidence that the trial court abused its discretion in not finding that the process of requesting that information and then plugging it into the computer grid would require a substantial research investment.
Saunders v. Florence Enameling Co., 540 So. 2d 651 (Ala.1988), dealt with a claim that a process of coating aluminum pipe was a trade secret. That case involved a process, rather than data, but the process was one that provided a superior product at a reduced cost. In that circumstance, it was the process itself that was the secret. In the present case, however, there was nothing secret about the process of getting the information. Consequently, PSI's claim that the display of publicly known information should be protected by the Trade Secrets Act has no merit. The trial court correctly found that the information was readily ascertainable or was derivable from publicly available sources and thus did not fall within the protected categories under the statute. Consequently, the trial court's ruling that the spreadsheet was not a trade secret is affirmed.
PSI also contends that its customer list should be granted the court's protection as a trade secret. It is undisputed, as a general proposition of law, that customer lists may, in proper circumstances, be afforded the protection of a trade secret. Birmingham Television Corp. v. DeRamus, 502 So. 2d 761 (Ala.Civ.App.1986). The courts addressing this issue have required that the lists be something more than a list of readily ascertainable potential clients. Id.; Affiliated Paper Companies v. Hughes, 667 F. Supp. 1436 (N.D.Ala. 1987). Those lists that have been afforded protection as trade secrets have contained specific information about customers, for example, their buying habits. See Zoecon Indus. v. American Stockman Tag Co., 713 F.2d 1174 (5th Cir.1983). Additionally, in those cases, the information was treated by the claimant as secret. See Calhoun v. Brendle, Inc., 502 So. 2d 689 (Ala.1986). PSI admits that it distributes to prospective clients a booklet that contains a listing of its clients. It is axiomatic that once made public, the customer list has no claim to trade secret protection.
We hold that the trial court did not abuse its discretion in denying the injunctive relief based upon its finding that the client list was not a trade secret.
The trial court denied PSI's request to enjoin Towry and Adams from contacting clients, noting that PSI and the defendants did not have a contract containing any restriction on the defendants' right to compete. The court cited Daughtry v. Capital Gas Co., 285 Ala. 89, 94, 229 So. 2d 480, 485 (1969), wherein this Court agreed with the proposition that "The majority, and the better considered, of the cases, support the proposition that one who is in no sense a party to a covenant not to engage in a competing business cannot properly be enjoined from engaging in such business." (Quoting Annot., 94 A.L.R. 345 (1935).)
In its brief, PSI contends that this case falls within the ambit of the tort of interference with business or contractual relations. In Fossett v. Davis, 531 So. 2d 849, 851 (Ala.1988), this Court recited the four elements of this tort:
Although a party might be able to show a competitor's wrongful interference with a contractual relationship, we conclude that PSI has failed to provide evidence from which the factfinder could infer that a wrongful interference had taken place here and that PSI had suffered damage as a result of that interference. Absent such evidence, we must hold that the trial court did not err in holding that Towry and Adams had a right to conduct a rival *974 business and to deal with former clients who, because of past services, may have elected to patronize them. See Joseph v. Hopkins, 276 Ala. 18, 158 So. 2d 660 (1963).
Because we hold that Towry and Adams have a right to conduct a competing business, we pretermit any discussion of issues three and four.
In summary, there is no merit to PSI's claim that the spreadsheet data program or the client list are trade secrets entitled to protection under the Alabama Trade Secrets Act. Further, absent a covenant not to compete, Towry and Adams have a right to conduct a competing business. For the foregoing reasons, the trial court's judgment denying the preliminary injunction is affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] We have recognized that a computer program, under appropriate circumstances, can be the subject of conversion. See National Surety Corp. v. Applied Systems, Inc., 418 So. 2d 847 (Ala.1982). In that same case, we also noted that there are certain property interests to be protected in computer programs. National Surety involved proprietary program packages developed primarily for sale; the essential ingredient of the package concept is the means of protecting the program itself, because, without protection, it would cease to be a commodity. In the present case, however, there was no claim of conversion. Furthermore, this case clearly does not involve the development of a program. | September 6, 1991 |
c0eceb40-54bb-4f2c-888c-44536f2e5606 | Wilson v. Cox | 589 So. 2d 723 | 1901230 | Alabama | Alabama Supreme Court | 589 So. 2d 723 (1991)
Partlow WILSON and Imogene Wilson
v.
Howard COX and Parks Log Company, Inc.
1901230.
Supreme Court of Alabama.
October 11, 1991.
*724 William W. Tally of Tally & Tally, Scottsboro, for appellants.
Michael L. Fees and Curtis L. Whitmore of Watson, Gammons & Fees, P.C., Huntsville, for appellees.
SHORES, Justice.
This case is before us for the second time. The first appeal, Wilson v. Dukona Corp., N.V., 547 So. 2d 70 (Ala.1989), recites the facts of the case:
547 So. 2d at 71. Partlow and Imogene Wilson then appealed from this judgment which awarded the plaintiffsW.S. Green, Jimmy W. Cochran, Mary F. Cochran, John M. Johns, and the Dukona Corporation, N.V.$20,127.60 in compensatory damages and $21,450 in punitive damages for the wrongful cutting of timber. The Wilsons appealed on the grounds that the punitive and compensatory damages found by the jury were excessive. This Court found the punitive damages to be excessive and affirmed the trial court, conditioned upon the plaintiffs' entering a remittitur in the amount of $21,450.
Prior to the submission of Wilson v. Dukona Corp. N.V. to the jury, the Wilsons entered into a settlement agreement with the Parks Log Company, Inc., and Howard Cox:
Id. at 71, n. 1. The judgment was entered against the Wilsons on January 12, 1987. On May 22, 1989, almost two and-one-half years later, the Wilsons filed a Rule 60(b)(6), A.R.Civ.P., motion for relief from judgment. The Wilsons contend that during *725 the trial Cox and a representative of Parks testified that they had cut approximately $20,548 worth of timber, which should have left $30,000 worth of timber to be cut, making the $41,000 payment required by the settlement possible. However, the hardwood remaining to be cut was actually worth only $10,000.
The trial court held a hearing on the motion. Billy Matthews, a forester, testified as to how much timber had been cut from the Wilsons' property. Partlow Wilson testified that he had relied upon the testimony of Cox and of the representative of Parks at the original trial when he agreed to the settlement. On March 17, 1991, the trial court denied the Wilsons' Rule 60(b)(6) motion. The Wilsons appeal.
Rule 60(b), A.R.Civ.P., provides as follows:
This Court has said that a strong presumption of correctness attaches to the trial court's ruling on a Rule 60(b) motion and that the decision whether to grant such a motion is within the sound discretion of the trial court. Ex parte Dowling, 477 So. 2d 400, 402 (Ala.1985). The standard of review is whether the trial court abused its discretion. Chambers County Comm'rs v. Walker, 459 So. 2d 861 (Ala.1984).
Reese v. Robinson, 523 So. 2d 398, 400 (Ala. 1988).
We have carefully examined the record in this case and find no abuse of discretion by the trial court. We affirm the decision of the trial court on the authority of Rule 60(b), A.R.Civ.P., and Alabama Farm Bureau Mutual Casualty Ins. Co. v. Boswell, 430 So. 2d 426 (Ala.1983); Textron, Inc. v. Whitfield, 380 So. 2d 259 (Ala. 1979); Smith v. Clark, 468 So. 2d 138, 140 (Ala.1985); and Combs v. Alabama Gas Corp., 577 So. 2d 1269, 1271 (Ala.1991).
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | October 11, 1991 |
41b99883-dfdb-4b02-9045-62faa795b146 | Aetna Life & Cas. v. ATLANTIC & GULF | 590 So. 2d 205 | 1900969 | Alabama | Alabama Supreme Court | 590 So. 2d 205 (1991)
AETNA LIFE & CASUALTY COMPANY, et al.
v.
ATLANTIC & GULF STEVEDORES.
1900969.
Supreme Court of Alabama.
September 6, 1991.
Rehearing Denied November 22, 1991.
*206 David A. Hamby and Thomas Nolan, Jr. of Brown, Hudgens, P.C., Mobile, for appellants.
Joe E. Basenberg and Brian P. McCarthy of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
HOUSTON, Justice.
David Turk was injured when he was hit by a piece of metal that had fallen from a crane at the Alabama State Docks in Mobile ("the State Docks").[1] At the time of his accident, Turk, a longshoreman for Atlantic & Gulf Stevedores ("Atlantic & Gulf"), was working as a member of a "gang" unloading aluminum ingots from the ship. Atlantic & Gulf had leased the crane from the State Docks pursuant to a written lease agreement. Fred C. Daniels, Audie L. O'Farrell, J.C. Lundy, E.G. Browning, Clarence Sheldt, W.M. McCrary, A.B. McKenzie, and William Moody were all employed at the State Docks at the time of Turk's accident and had various responsibilities in connection with the unloading of the ship. (These employees are hereinafter collectively referred to as "the State Docks employees.") Turk sued the State Docks employees and Aetna Casualty & Surety Company ("Aetna"), the insurance carrier for the State Docks, seeking damages under theories of negligence and wantonness. Turk sued Aetna under Ala.Code 1975, § 33-1-25, which authorizes a direct action against the insurance carrier of the State Docks.[2] Aetna and the State Docks employees filed a third-party complaint against Atlantic & Gulf, seeking indemnity based on the lease agreement between the State Docks and Atlantic & Gulf.[3] Because of the insolvency of Atlantic & Gulf's insurance carrier, Midland Insurance Company, and while the claims of Turk, Aetna, and the State Docks employees were pending, the Alabama Insurance Guaranty Association ("the Association") filed a declaratory judgment action against Turk, Aetna, the State Docks employees, and Atlantic & Gulf, seeking a ruling that it was not obligated under the Midland policy to defend Atlantic & Gulf or to otherwise provide coverage in connection with the indemnity claims brought against Atlantic & Gulf.[4]*207 The trial court stayed further proceedings in the original suit until a determination of the Association's obligations to Atlantic & Gulf under the Midland policy could be made. Thereafter, the trial court entered a summary judgment for Atlantic & Gulf in the declaratory judgment action, ruling that the indemnity claims filed against Atlantic & Gulf were "covered" claims under the Alabama Insurance Guaranty Association Act ("the Act"). Atlantic & Gulf prevailed in the declaratory judgment action, at least in part because it took the position that Aetna was not an "insurer" within the meaning of § 27-42-5.[5] The Association did not appeal from the judgment entered in the declaratory judgment action. Subsequently, Aetna and the State Docks employees settled with Turk, but continued to prosecute their indemnity claims against Atlantic & Gulf. Atlantic & Gulf moved for a summary judgment on the indemnity claims, arguing that the State Docks employees had suffered no monetary loss that would support their claims and that Aetna's claim was barred because Aetna was an "insurer" within the meaning of § 27-42-5.[6] The trial court granted Atlantic & Gulf's motion, and Aetna and the State Docks employees appealed. We reverse and remand.
The summary judgment was proper if there was no genuine issue of material fact and Atlantic & Gulf was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on Atlantic & Gulf to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. If that showing was made, then the burden shifted to Aetna and the State Docks employees to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against them. In determining whether there was a genuine issue of material fact, we must view the evidence in the light most favorable to Aetna and the State Docks employees and we must resolve all reasonable doubts against Atlantic & Gulf. Leighton Avenue Office Plaza, Ltd. v. Campbell, 584 So. 2d 1340 (Ala.1991). Because this case was pending on June 11, 1987, the applicable standard of review is the "scintilla of evidence" rule. Ala.Code 1975, § 12-21-12.
The dispositive issues in this case are as follows:
Citing King v. Capitol Amusement Co., 222 Ala. 115, 130 So. 799 (1930), Atlantic & Gulf contends that the indemnity claims of the State Docks employees were without merit, because, it argues, none of them was required to pay any attorney fees in connection with defending Turk's suit. The State Docks employees concede that Aetna bore the entire financial burden of the settlement with Turk; however, they argue that there are still questions to be resolved as to which of them had to pay attorney fees, as well as questions as to the amount that had to be paid. It may be true, as Atlantic & Gulf contends, that *208 Aetna assumed full financial responsibility for the defense of the State Docks employees. However, the record, confusing as it is, does indicate that the State Docks employees were represented at various stages of the litigation by attorneys who apparently were not hired by Aetna. It is certainly reasonable to assume that those attorneys charged for their respective services. Atlantic & Gulf correctly points out, and again the employees concede, that there is no evidence in the record showing that the employees actually paid any attorney fees in connection with their defense of Turk's claim. The State Docks employees correctly point out, however, that Atlantic & Gulf did not make a prima facie showing that they had paid no attorney fees in connection with the litigation. Therefore, because Atlantic & Gulf failed to make this prima facie showing, the burden never shifted to the employees to show that they had paid attorney fees in connection with defending Turk's suit. With the case in this posture (i.e., with the State Docks employees claiming indemnity for attorney fees paid in connection with defending Turk's suit, and no evidence showing that they paid no attorney fees), we have no alternative under our standard of review but to reverse the summary judgment with respect to the indemnity claims of the State Docks employees and remand the case for a determination as to whether any of the employees have an indemnity claim against Atlantic & Gulf for attorney fees allegedly paid in connection with defending Turk's suit.
With regard to the second issue, Aetna contends that Atlantic & Gulf was estopped under the "doctrine of inconsistent positions" from taking the position that it was an "insurer" within the meaning of § 27-42-5, and, thus, that the Act barred its indemnity claim. The thrust of Aetna's argument is that the issue concerning whether it was an "insurer" within the meaning of § 27-42-5 was fully adjudicated in the declaratory judgment action and, therefore, that Atlantic & Gulf was barred from relitigating that issue by taking a position contrary to the one that it had previously taken in the declaratory judgment action, in an attempt to defeat the indemnity claim. Aetna argues that it entered into a good faith settlement with Turk after it had been determined in the declaratory judgment action that its indemnity claim against Atlantic & Gulf was a "covered" claim under the Act, and that it was basically unfair for the trial court to allow Atlantic & Gulf to change its legal position in an attempt to avoid liability under its indemnity agreement. We agree.
Recently, this Court, in Porter v. Jolly, 564 So. 2d 434, 437 (Ala.1990), discussed the "doctrine of inconsistent positions":
In the present case, Atlantic & Gulf was successful in securing a judgment against the Association in the declaratory judgment action establishing that Aetna's indemnity claim was a "covered" claim under the Act. It accomplished this, at least in part by successfully arguing that Aetna was not an "insurer" within the meaning of § 27-42-5. As previously noted, no appeal was taken from that judgment. In an attempt to defend against Aetna's indemnity claim, however, Atlantic & Gulf changed its position completely and argued that Aetna was an "insurer" within the meaning of § 27-42-5 and that the Act barred Aetna's indemnity claim. The judgment that was entered in the declaratory judgment action established, insofar as that case was concerned, that Aetna was not an "insurer" within the meaning of the Act. See Blumberg v. Touche Ross & Co., 514 So. 2d 922 (Ala.1987) (discussing the doctrine of "the law of the case"). Therefore, if Aetna changed its position to its detriment in reliance on the judgment that had been entered in the declaratory judgment action, and on the legal position that had been taken by Atlantic & Gulf in that action, then Atlantic & Gulf was barred under the doctrine of inconsistent positions from changing its legal position in an attempt to defeat Aetna's indemnity claim. The record indicates that Aetna settled with Turk after the judgment was entered in the declaratory judgment action, but before Atlantic & Gulf changed its position and moved for a summary judgment on Aetna's indemnity claim. It would certainly be reasonable to assume that Aetna, at least in part, was motivated to settle with Turk by the judgment that had been entered for Atlantic & Gulf in the declaratory judgment action and by the legal position that Atlantic & Gulf had taken in that action. At the very least, there appears to be a fact question as to whether Aetna's settlement with Turk was influenced by the position that Atlantic & Gulf had taken in the declaratory judgment action. Accordingly, under the circumstances of this case, and in accordance with our standard of review, we hold that the summary judgment for Atlantic & Gulf on Aetna's indemnity claim was improper.
In light of our resolution of the second issue, we find it unnecessary to consider the other issues raised by Aetna.
For the foregoing reasons, the summary judgment for Atlantic & Gulf with respect to the indemnity claims of the State Docks employees and Aetna is reversed and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES and KENNEDY, JJ., concur.
MADDOX, J., concurs in the result.
[1] The State Docks, an agency of the State of Alabama, owns and operates the general cargo docking facility at the Port of Mobile.
[2] Section 33-1-25 was enacted to ameliorate the hardships and inequities caused by the exemption of the State Docks from civil liability under the doctrine of sovereign immunity. See Centraal Stikstof Verkoopkanter, N.V. v. Walsh Stevedoring Co., 380 F.2d 523 (5th Cir.1967); Benniefield v. Valley Barge Lines, 472 F. Supp. 314 (S.D. Ala.1979). When an insurer is sued pursuant to a direct action statute, as Aetna was here, it legally stands in the shoes of the insured. Aetna Casualty & Surety Co. v. Cooper Stevedoring Co., 504 So. 2d 215 (Ala.1986), cert. denied, 483 U.S. 1022, 107 S. Ct. 3268, 97 L. Ed. 2d 767 (1987).
[3] The lease between the State Docks and Atlantic & Gulf contained a specific indemnity clause and also incorporated by reference the terms of the Alabama State Docks Department Tariff No. 1-C, which provided that use of the State Docks' facility amounted to consent to the Tariff's terms. Those terms included an indemnity and hold harmless provision in favor of the State Docks and a provision requiring stevedores to maintain insurance naming the State Docks as an additional insured.
[4] The Association was created under the provisions of Ala.Code 1975, § 27-42-1 et seq., the Alabama Insurance Guaranty Association Act. The purpose of the Act was to "provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay in payments and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies and to provide an association to assess the cost of such protection among insurers." § 27-42-2.
[5] Section 27-42-5 provides that a "covered" claim does not include an amount due any "reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise." Atlantic & Gulf argued that Aetna had filed its third-party indemnity claim in the capacity of a "primary obligor" under the direct action statute.
[6] Atlantic & Gulf argued that the Act not only barred an insurer from making a claim against the Association, but also barred an insurer from making a claim against the holder of the worthless policy. | September 6, 1991 |
3ad52c95-742e-48b3-bed2-0cc0d9ee3173 | Brewton v. Young | 596 So. 2d 577 | 1901908 | Alabama | Alabama Supreme Court | 596 So. 2d 577 (1991)
Mabel BREWTON and Lillian Madison
v.
Raymond YOUNG and Joan Young.
1901908.
Supreme Court of Alabama.
October 25, 1991.
Rehearing Denied March 27, 1992.
James M. Byrd, Mobile, for appellants.
Richard Williams, Mobile, for appellees.
ADAMS, Justice.
Raymond and Joan Young filed this nuisance action, alleging that Mabel Brewton and Lillian Madison had a large number of dogs on their property, and that the barking and smell associated with the dogs prevented the Youngs from the enjoyment of their property. The trial Court entered a judgment enjoining Brewton and Madison from having more than five dogs on their property at one time. Brewton and Madison appeal. We affirm.
The evidence in this case was presented ore tenus; therefore, our standard of review is as follows:
Clark v. Albertville Nursing Home, Inc., 545 So. 2d 9, 12-13 (Ala.1989). The record is replete with testimony of neighbors of Brewton and Madison, who testified that the enjoyment of their homes was significantly impaired by the presence of at least *578 50 dogs on their property and that the barking was constant and the smell unbearable on warm days. In addition, the neighbors expressed concern as to the viciousness of some of the dogs and many of the neighbors said that they would not allow their children to walk by Brewton and Madison's property for fear that they would be bitten.
The trial court found that the dogs constituted a nuisance and enjoined Brewton and Madison from maintaining more than five dogs at their residence. In light of the evidence presented in the record, we do not consider the judgment of the trial court to be plainly and palpably wrong. Therefore, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur. | October 25, 1991 |
b30e5abb-03a7-40d7-92a5-48a0755d7192 | Hill v. City of Huntsville | 590 So. 2d 876 | 1900999 | Alabama | Alabama Supreme Court | 590 So. 2d 876 (1991)
Connie HILL and James Hill
v.
The CITY OF HUNTSVILLE.
1900999.
Supreme Court of Alabama.
November 1, 1991.
R. Wayne Wolfe of Wolfe, Jones & Boswell, Huntsville, for appellants.
Kerri J. Wilson, Asst. City Atty., Huntsville, for appellee.
KENNEDY, Justice.
On August 26, 1988, while Connie Hill was operating her motor vehicle in the City of Huntsville (the "City"), she lost control of the vehicle, was thrown from it, and was injured. On June 21, 1989, she presented notice to the City of a tort claim against it in relation to that accident. On December 12, 1989, Connie Hill filed an action against the City, alleging that the City had negligently maintained the road at the location of the accident and that its negligence had caused the accident and her resulting injuries. Connie's husband, James, joined the action as a plaintiff, claiming loss of consortium. The City moved for summary judgment and argued that the Hills had not complied with Ala.Code 1975, §§ 11-47-23 and -192, relating to claims against municipalities. The trial court entered summary judgment for the City, and the Hills appeal.
Section 11-47-23 provides that, against municipalities, "[c]laims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred." (Emphasis added.) Section 11-47-192 provides that the injured party should give notice of his injury by filing with the city clerk a sworn statement detailing the accident.
Some presentation of the claim within six months of its accrual is mandatory. Frazier v. City of Mobile, 577 So. 2d 439 (Ala.1991). A cause of action accrues as soon as the party in whose favor it arises is entitled to maintain an action thereon. Buck v. City of Rainsville, 572 So. 2d 419 (Ala.1990). In Diemert v. City of Mobile, 474 So. 2d 663 (Ala.1985), we held that the filing of an action within the six-month period was sufficient presentment of the claim to comply with §§ 11-47-23 and -192, Diemert, at 666. It is undisputed *877 that the Hills did not give notice of their claim to the City or file their action within six months of the date of the accident.
The Hills argue that the cause of action did not accrue on the date of the accident, because, as a result of the accident, Connie was physically and mentally incapable of handling her own affairs until June 1989, and the cause of action could not have accrued until that time. The Hills do not argue that Connie's physical and mental incapacity justify the waiver of the notification provisions of § 11-47-23, to enable Connie to bring the action, although she did not comply with the six-month notice requirement of § 11-47-23. No doubt, the record indicates that Connie was to some extent physically and mentally incapacitated until June 1989. Under the record in this case and pursuant to the arguments the parties have presented in this case, however, the Hills did not prove that Connie's physical and mental incapacity was so severe as to prevent the cause of action from accruing because she was not entitled to maintain it; accordingly, the Hills' argument that the action did not accrue until June 1989 fails. We emphasize that the Hills did not present an argument concerning waiver of the notice requirement of § 11-47-23.
The Hills did not file their action or otherwise give notice of their claims within six months of the accrual of those claims, and accordingly, the action is barred. §§ 11-47-23 and -192; Frazier, at 440; Large v. City of Birmingham, 547 So. 2d 457 (Ala. 1989).
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | November 1, 1991 |
f77ed8e1-d7a4-45d6-9686-693685a22c15 | Coleman v. BESSEMER CARRAWAY M. MED. CTR. | 589 So. 2d 703 | 1900505 | Alabama | Alabama Supreme Court | 589 So. 2d 703 (1991)
Jeanette COLEMAN and William Coleman
v.
BESSEMER CARRAWAY METHODIST MEDICAL CENTER.
1900505.
Supreme Court of Alabama.
October 4, 1991.
*704 Joe L. Tucker, Jr. of Hardin, Tucker & Martin, Birmingham, for appellants.
Crawford S. McGivaren, Jr. of Cabaniss, Johnston, Gardner, Dumas & O'Neal and Sara A. McGivaren, Birmingham, for appellee.
SHORES, Justice.
The plaintiffs, Jeanette Coleman and William Coleman, appeal from a summary judgment in favor of defendant Bessemer Carraway Methodist Medical Center ("Carraway") on claims of negligence. We affirm.
In November 1985, Jeanette Coleman was provided medical care by Dr. Jorge Caceres and Dr. E.A. Isabell at Carraway's medical facility. Prior to her surgery there, Mrs. Coleman's treating physician, Dr. Windsor, had ordered a CAT scan because of her complaint of migraine headaches. The radiology report of October 21, 1985, noted that "no lesion is seen within the brain itself" and indicated a soft tissue mass in the sinuses, suggesting a sinus tumor.
Dr. Windsor consulted with Dr. Caceres regarding the sinus tumor, and a series of tests was performed on October 23, 1985. Dr. Caceres and Dr. Isabell saw Mrs. Coleman several times in their office before the scheduled endoscopic nasal surgery on November 8, 1985. Dr. Isabell was to perform the surgery to remove the tumor, and he assured Mr. Coleman that he was qualified to do so.
The plaintiffs were informed that Dr. Isabell had recently been trained to do this surgery and that he would get the necessary instruments, because Carraway did not have them. Dr. Isabell's training included a laboratory course at Johns Hopkins Medical School, where he practiced microendoscopic procedures. Although he had had no experience with a live human being, the plaintiffs' expert otolaryngologist, Dr. Rand, had no criticism of Dr. Isabell's training. Dr. Caceres had read articles on the procedure and had reviewed Dr. Isabell's instructional materials.
On November 7, 1985, Mrs. Coleman was admitted to the hospital, and she signed a medical consent form relating to "endoscopic nasal surgery." Mrs. Coleman's preoperative diagnoses included "sinusitis" and a "cyst on CAT scan near sphenoid." The plaintiffs allege that before the surgery, there were notations on the charts *705 with regard to "nasal polyp with intracranial origin." The surgery was performed on November 8, 1985, by Dr. Isabell, and Dr. Caceres assisted.
Dr. Isabell performed a biopsy of the mass, and the pathologist, Dr. Reinhardt, reported to the doctors during the procedure that the mass was "benign neural tissue (glioma?)." Mrs. Coleman was discharged on November 10, 1985, and the discharge summary notation written by Dr. Caceres stated that the "final pathological findings were brain tissue."
Following Mrs. Coleman's discharge, her condition worsened, and she returned to the emergency room at Carraway on November 13, 1985. A CAT scan was performed on her at that time, which revealed evidence of intracranial bleeding. Mrs. Coleman was transferred to Brookwood Medical Center on November 13, 1985; she had paralysis to the right side of her body and was unable to speak. Mrs. Coleman later had to undergo neurosurgery.
The plaintiffs filed their complaint on September 17, 1987, contending that Dr. Isabell, Dr. Caceres, and Carraway were negligent and/or wanton in the medical care and services provided to Mrs. Coleman. On April 13, 1989, Carraway filed its motion for summary judgment, supported by affidavits. On February 20, 1990, the circuit judge entered a summary judgment on behalf of Carraway. This judgment was not certified as final pursuant to Rule 54(b), A.R.Civ.P., and thus remained subject to modification or alteration by the trial court.
In June 1990, the plaintiffs and Dr. Isabell and Dr. Caceres reached a settlement during the third week of trial. The plaintiffs then filed a motion to vacate the summary judgment that had been entered on behalf of Carraway. In July 1990, the circuit court judge dismissed with prejudice the defendant doctors, thereby making Carraway's summary judgment final. Rule 54(b); Morton v. Chrysler Motors Corp., 353 So. 2d 505 (Ala.1977). On October 23, 1990, the circuit court judge denied the plaintiffs' motion to vacate the summary judgment, finding, after hearing testimony for more than two weeks, that "there is not a scintilla of evidence that produces a genuine issue of material fact." The plaintiffs brought this appeal.
This case is governed by the "scintilla" rule because the alleged act occurred before June 11, 1987. §§ 6-5-54a and 6-5-552. On June 11, 1987, Alabama enacted the Medical Liability Act, codified as Alabama Code 1975, § 6-5-540.
Alabama Code 1975, § 6-5-552.
Pursuant to Rule 56, A.R.Civ.P., the standard of review is whether there was any genuine issue of material fact and, if not, whether Carraway was entitled to a judgment as a matter of law. The evidence must be viewed in the light most favorable to the nonmoving party, and a summary judgment can not be affirmed if there was a scintilla of evidence supporting the position of the nonmoving party. Dick v. Springhill Hospitals, Inc., 551 So. 2d 1034, 1037 (Ala.1989). In determining whether there was a genuine issue of material fact, the appellate court is limited to reviewing the factors and the evidence considered by the trial court when it entered the summary judgment. Purvis v. PPG Industries, 502 So. 2d 714, 716 (Ala.1987).
Thus, the sole issue in this case is whether, based on the facts before the trial court when the summary judgment motion was granted, there was a genuine issue of material fact and, if there was not, whether Carraway was entitled to a judgment as a matter of law.
The plaintiffs argue for the adoption of the "corporate negligence" doctrine, and claim that they have submitted more than a "scintilla" of evidence that defendant Carraway was negligent in its policies and procedures and in granting certain staff privileges. Under this doctrine, a hospital has a duty to assure the competence of its medical staff through its privileges, *706 selection, and review processes, and through supervision under certain circumstances. Insinga v. LaBella, 543 So. 2d 209 (Fla.1989). The facts in the present case show that Carraway was not negligent in its policies and procedures and in granting staff privileges to Dr. Caceres and Dr. Isabell; furthermore, Carraway met its duty to assure the competence of Dr. Caceres and Dr. Isabell. Therefore, the corporate negligence doctrine does not apply to the facts of this case.
In Carraway's "Medical Staff Bylaws, Rules and Regulations," the granting of its privileges is based upon the physician's education, training, experience, demonstrated competence, and references. Both Dr. Caceres and Dr. Isabell were granted otolaryngology privileges at Bessemer Carraway Medical Center, and their privileges included endoscopy. Under procedures established at the hospital, every two years physicians are required to reapply for privileges, and, if they fail to reapply, their staff privileges are terminated. In addition, Carraway is accredited by the Joint Commission on Accreditation of Hospitals (JCAH), an organization that reviews the policies, procedures, and privileges of medical staff members and sets standards for hospitals.
The plaintiffs are asking this Court to impose a duty on defendant Carraway "to supervise its physicians and know with some degree of certainty what exactly [is] being performed in [the] operating room." A hospital's standard of care does not require this degree of certainty and supervision. Alabama imposes upon a hospital a duty to use "that degree of care, skill and diligence used by hospitals generally in the community." Alabama Code 1975, § 6-5-484. The word "community" in this cause in Alabama means the national hospital community. Lamont v. Brookwood Health Services, Inc., 446 So. 2d 1018 (Ala. 1983). Carraway made a prima facie showing that it adhered to that community standard, which plaintiffs did not rebut. Even the plaintiffs' expert, Dr. McHugh, testified that Carraway's rules, bylaws, and procedures were "well written, as a matter of fact."
There are no facts to support plaintiffs' assertion that, prior to Mrs. Coleman's surgery, there were notations on the charts with regard to "intracranial origin." The information on Mrs. Coleman's hospital charts prior to surgery listed the procedure as being "endoscopic nasal surgery." Dr. Isabell's affidavit stated that the comments regarding "intracranial origin" were added to the charts after the surgery had been performed.
Carraway made a prima facie showing that it had not acted negligently in regard to Mrs. Coleman's surgery. The plaintiffs did not rebut that showing. Accordingly, the summary judgment in favor of Bessemer Methodist Carraway Medical Center is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | October 4, 1991 |
b579451c-2161-411f-8ffe-9d8ee4c8a840 | Ex Parte Weeks | 591 So. 2d 441 | 1900960 | Alabama | Alabama Supreme Court | 591 So. 2d 441 (1991)
Ex parte Todd WEEKS.
(Re Todd Weeks v. State.)
1900960.
Supreme Court of Alabama.
October 18, 1991.
Rehearing Denied December 13, 1991.
Douglas H. Scofield of Scofield, West & French, Birmingham, for appellant.
*442 James H. Evans, Atty. Gen., and Stephen N. Dodd, Asst. Atty. Gen., for appellee.
KENNEDY, Justice.
Todd Weeks was convicted for trafficking of cocaine, was sentenced to nine years in prison, and was fined $50,000. The Court of Criminal Appeals affirmed the judgment of the trial court, 579 So. 2d 718, and we granted certiorari review.
In June 1988, Weeks was indicted and charged in separate indictments for trafficking in cocaine, and in March 1989, he pleaded guilty to those charges. The trial court sentenced Weeks to 12 years3 years in prison and 5 years on probation and fined him $25,000. In May 1989, on Weeks's motion, the trial court set aside his guilty plea, because it was not voluntarily and knowingly made and because his trial counsel had a conflict of interest.
Weeks's case was consolidated for trial with a case against his mother, Donna Othella Weeks, who was also charged with trafficking in cocaine. At their trial, Donna Weeks was convicted, see Ex parte Weeks, 591 So. 2d 439 (Ala.1991), but the jury could not reach a verdict as to Todd Weeks, so the trial court declared a mistrial as to him. Todd Weeks was retried, was convicted, and was sentenced to 9 years in prison, and that judgment of conviction is the basis for our review in this case.
Weeks argues that there was insufficient evidence to support his conviction. He contends that his conviction was improperly based on the uncorroborated testimony of an accomplice. Thompson v. State, 374 So. 2d 388 (Ala.1979). That argument was not presented to the trial court, so there is no adverse ruling for us to review. Accordingly, we cannot consider the argument. Gotlieb v. Collat, 567 So. 2d 1302 (Ala.1990).
In a related argument, Weeks contends that apart from the allegedly uncorroborated accomplice testimony, the State's evidence was entirely circumstantial, and, he argues, a conviction based on entirely circumstantial evidence is due to be reversed, unless the evidence is such that a jury can conclude that the evidence excludes every reasonable hypothesis except guilt. See Ex parte Williams, 468 So. 2d 99 (Ala.1985). He argues that the evidence in his case did not exclude every reasonable hypothesis except guilt. Although we do not necessarily accept his premise that there was uncorroborated accomplice testimony, we reject the argument on another ground: the evidence was sufficient to allow the submission of the case to the jury, whose factual determinations we will not disturb unless the determinations are plainly erroneous or manifestly unjust. Harris v. State, 539 So. 2d 1117, 1124 (Ala.Cr.App.1988).
Keith Harmon is a law enforcement officer; Becky Barnes, who Weeks claims was an accomplice to the crime for which he was indicted and who provided the allegedly uncorroborated accomplice testimony, was Harmon's informant in the case against Donna and Todd Weeks. Todd Weeks's lawyer was cross-examining Harmon concerning Becky Barnes as an informant, when the following exchange occurred:
After that exchange, the trial court and counsel held an off-the-record discussion. At one point in the discussion, the State argued that the crime of giving false information to the police department was not a crime involving moral turpitude and therefore could not be used for impeachment purposes, and Weeks argued that he was entitled to an answer to his question because Barnes was a confidential informant, about whom he had the "right to test the *443 control and extent of being a confidential informant." In rebuttal to the State's argument, Weeks generally argued that giving false information to the police department was a crime involving moral turpitude, although he acknowledged he had no cases or specific authority to support that position. After the discussion, the trial court again sustained the State's objection.
Weeks makes two arguments based on the preceding facts. He contends that the trial court erred by holding that giving false information to a police officer was not a crime involving moral turpitude and thus could not be used for impeachment purposes. Assuming that the issue was preserved for review, Weeks does not explain how the trial court's holding disallowing impeachment of Barnes through Harmon through proof of a prior conviction of a crime supposedly involving moral turpitude in this situation constitutes reversible error. We make no determination as to whether the crime of giving false information to a police officer is a crime involving moral turpitude.
Weeks also argues that he was denied his right to a "thorough and sifting" cross-examination, Ala.Code 1975, § 12-21-137, by the trial court's "failing to permit defense counsel [to cross-examine] Becky Barnes regarding her prior conviction for giving false information to a police officer." Weeks implies that the trial court's decision regarding Harmon's testimony effectively restricted his cross-examination of Barnes. Weeks does not show us an adverse ruling concerning Barnes on the issue he argues, and the issue is not preserved for review. Furthermore, even if the issue had been preserved, Weeks's argument that the conviction for giving false information to a police officer would show bias or interest on the part of the witness lacks merit. Under the facts of this case, we do not discern how a conviction of giving false information to a police officer would show bias or interest.
Finally, Weeks contends that the trial court erred in sentencing him to nine years on the trial of his case after it had earlier sentenced him to a split sentence with only three years to serve based on his guilty plea, which was set aside. In Ex parte Weeks, his mother, Donna, raised a similar issue. She was sentenced to 12 years after a guilty plea, 3 to be served, and her plea was set aside because her attorney had a conflict of interest and because the plea was not made knowingly and voluntarily. After her trial and conviction, the trial court sentenced her 21 years and 7 months. Discussing the issue raised first by Donna Weeks and now Todd Weeks, we stated:
591 So. 2d at 440-41.
Weeks presented no evidence of actual vindictiveness by the trial court. Instead of indicating actual vindictiveness, the record reveals that the trial court repeatedly stated that it was imposing a harsher sentence because after trial it knew more about Todd Weeks's role in the incident upon which the charge was based. For example, the trial court stated:
The trial court did not err in resentencing Todd Weeks. Smith; Ex parte Weeks.
Weeks did not prove any reversible error. The judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | October 18, 1991 |
d5dcb0dd-661f-4f28-91ac-93af439f664f | Ex Parte Clements | 587 So. 2d 317 | 1901419 | Alabama | Alabama Supreme Court | 587 So. 2d 317 (1991)
Ex parte R. Barry CLEMENTS.
(In re COMMUNICATIONS RESOURCES, INC., a corporation; John H. Schuler, an individual; and William T. Koepsel, an individual v. R. Barry CLEMENTS).
1901419.
Supreme Court of Alabama.
August 30, 1991.
*318 Michael L. Edwards and Michael D. Freeman of Balch & Bingham, Birmingham, for appellants.
Michael L. Lucas and David A. Elliott of Burr & Forman, Birmingham, for appellee.
STEAGALL, Justice.
The plaintiffs, Communications Resources, Inc., John H. Schuler, and William T. Koepsel, sued R. Barry Clements, alleging breach of a stock purchase agreement; breach of fiduciary duty; intentional interference with business relationships; and misappropriation of trade secrets in violation of the Alabama Trade Secrets Act. The plaintiffs sought injunctive relief and compensatory and punitive damages. Clements counterclaimed, alleging fraud and breach of contract and asking the trial court to declare that the covenant not to compete, imbedded in the stock purchase agreement, is unenforceable. The plaintiffs moved to dismiss Clements's counterclaim, alleging that his claims are subject to arbitration pursuant to an arbitration clause in the stock purchase agreement. The trial court denied the motion to dismiss, but directed the parties "to submit all claims other than the claims for injunctive relief to an arbitrator in compliance with the terms of the stock purchase agreement." Clements petitions this Court for a writ of mandamus ordering the trial court to vacate its order directing Clements to submit his claims to an arbitrator.
On May 7, 1990, Communications Resources, Schuler, and Koepsel entered into a stock purchase agreement with Clements. The agreement provided, inter alia, that Communications Resources would employ Clements as vice president of the company and that Clements would "perform such duties as may be specified by the Board of Directors of the Company from time to time." The agreement also contains an arbitration clause, which provides:
Paragraph 14 of the agreement provides:
Paragraph 12 contains a covenant on the part of Clements not to compete with Communications Resources anywhere within the states of Alabama, Florida, or Louisiana; paragraph 13 contains provisions prohibiting disclosure of, and use of, confidential information.
*319 Clements argues that the Federal Arbitration Act ("FAA") does not apply to the stock purchase agreement in this case and that, under Alabama law, the arbitration clause is void and unenforceable.
The FAA applies to a transaction within this state if: (1) the contract involves interstate commerce, and (2) the contract contains an arbitration agreement voluntarily entered into by the parties. Ex parte Alabama Oxygen Co., 452 So. 2d 860 (Ala.1984). See, also, Fuller Construction Co. v. Industrial Development Board of the Town of Vincent, [Ms. 89-1793, Nov. 1, 1991], (Ala.1991). Because it is undisputed that there was an arbitration clause in the stock purchase agreement in this case, this Court must address only the question of whether the agreement was one involving interstate commerce.
This Court set forth the standard for determining whether the agreement has a sufficient nexus with interstate commerce activity to bring the agreement within the coverage of the FAA in Ex parte Warren, 548 So. 2d 157, 159-60 (Ala.), cert. denied, 493 U.S. 998, 110 S. Ct. 554, 107 L. Ed. 2d 550 (1989):
The plaintiffs argue that, because the covenant not to compete contained in the stock purchase agreement prohibits Clements from competing anywhere within Alabama, Florida, or Louisiana, it is clear that the parties contemplated that they would be engaged in interstate commerce. The plaintiffs allege in their reply brief that "Communications Resources indisputably has engaged in the sale of telecommunications equipment from its office in Birmingham to customers in other states."
A review of the pleadings and the stock purchase agreement (included with Clements's petition), however, reveals no support for this allegation. In their complaint, the plaintiffs alleged that "Communications Resources is engaged in the business of telecommunications equipment sales in Jefferson County, Alabama, throughout the states of Alabama, Florida, and Louisiana, as well as various other states." In his answer to the plaintiffs' complaint, Clements specifically denied this allegation and admitted only that "Communications Resources is engaged in the business of selling used telecommunication equipment in the Birmingham area, with some infrequent and sporadic sales being made outside the Birmingham area."
The fact that the covenant not to compete extended to Florida and Louisiana, standing alone, does not provide a sufficient nexus with interstate commerce activity. Based on the facts before us, we are compelled to conclude that the evidence in the record is not sufficient to support a finding that the agreement has a sufficient nexus with interstate commerce activity to bring the agreement within the coverage of the FAA. Accordingly, we turn to the laws of Alabama.
In Fuller Construction Co. v. Industrial Development Board of the Town of Vincent, supra, this Court restated its position that, unless the FAA is applicable, predispute arbitration agreements are void in Alabama as against public policy. On the authority of Fuller Construction Co., we hold that the arbitration clause, to *320 which Clements vehemently objects, is void and that Clements cannot be compelled to arbitrate his claims.
The writ of mandamus is granted and the trial court is ordered to vacate its order compelling arbitration.
WRIT GRANTED.
HORNSBY, C.J., and SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., dissents. | August 30, 1991 |
5482b826-9bc8-4e59-97fe-a68cb7e0be0d | Johnson v. State Farm Ins. Co. | 587 So. 2d 974 | 1901090 | Alabama | Alabama Supreme Court | 587 So. 2d 974 (1991)
Larry H. JOHNSON and Alice M. Johnson
v.
STATE FARM INSURANCE COMPANY and W. Kenneth McElhaney.
1901090.
Supreme Court of Alabama.
September 6, 1991.
M. Lloyd Roebuck of Kilborn & Roebuck, Mobile, for appellants.
*975 C. Robert Gottlieb, Jr. and William W. Watts III of Reams, Phillips, Killion, Brooks, Schell, Gaston & Hudson, P.C., Mobile, for appellees.
HOUSTON, Justice.
Larry H. Johnson and Alice M. Johnson appeal from a summary judgment entered in favor of State Farm Insurance Company and W. Kenneth McElhaney that was certified as final pursuant to Rule 54(b), A.R.Civ.P. We affirm.
The Johnsons' action against McElhaney and State Farm alleged reckless misrepresentation in a consumer transaction. The action is predicated upon statements that McElhaney, a State Farm agent, allegedly made to Ms. Johnson in a telephone conversation regarding flood insurance on the Johnsons' home. The crucial question is whether the Johnsons presented evidence that they justifiably relied on those statements. McElhaney and State Farm filed a motion for summary judgment with supporting evidence, in which they deny that McElhaney received any telephone call from Ms. Johnson or made any statement about flood insurance to the Johnsons at any time prior to the flooding of the Johnsons' house on March 15 or 16, 1990. Therefore, the defendants made a prima facie showing that there was no genuine issue of material fact with respect to the reckless misrepresentation claim. The trial court, therefore, could properly grant McElhaney and State Farm's motion for summary judgment, unless the Johnsons, in response, produced substantial evidence of each element of the cause of action for misrepresentation. Hope v. Brannan, 557 So. 2d 1208, 1210 (Ala.1990). To determine whether the Johnsons produced substantial evidence of each element of this cause of action, thereby creating a genuine issue of material fact, we must accept as true the evidence most favorable to the nonmovants, the Johnsons. See, Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala. 1990).
The essential elements of reckless misrepresentation are (1) a misrepresentation of a material fact, (2) made recklessly without knowledge, (3) which was justifiably relied upon the plaintiffs under the circumstances, and (4) which caused damage as a proximate consequence. Harris v. M & S Toyota, Inc., 575 So. 2d 74, 76 (Ala.1991).
The undisputed facts are as follows:
Johnson was 39 years old and had worked approximately 7 years as an aircraft mechanic. Ms. Johnson was 31 years old. From their depositions and Ms. Johnson's affidavit, it is evident that they have at least average intelligence.
On January 19, 1983, the Johnsons purchased a house located at 988 Glen Acres in Mobile, Alabama, from Mims Sales and Development, Inc.
The Johnsons had lived on Glen Acres for approximately two years before purchasing this house and had noticed the house for sale during that time. Several weeks before the closing, they met with Lambert Mims, the owner of Mims Sales and Development, Inc., and walked over the property with him. At that time, the Johnsons observed the drainage area or creek that ran along the back of the lot. They also noticed a watermark running totally around the house, approximately one and a half feet above ground level. The lot looked low to Mr. Johnson. These facts prompted the Johnsons to inquire of Mims whether there had ever been any flooding on the property. Mims replied by saying that to the best of his knowledge there had not been any flooding.
A few days later, they again met Mims at the property, walked around, observed the house, and again observed the watermark around the house. The Johnsons again questioned Mims about possible flooding and Mims said that to the best of his knowledge the property did not flood.
The Johnsons purchased the property. Ken McElhaney, Jr., son of the defendant McElhaney, attended the closing of the sale of the house in order to have the Johnsons sign an application for homeowner's insurance with State Farm. There was no discussion with McElhaney or anyone else at the closing about any flooding, potential *976 flooding of the property, or flood insurance.
Almost immediately after the closing, the Johnsons learned from numerous sources that indeed the property was subject to flooding and had previously been flooded. Three days after they moved in, Ms. Johnson heard from the woman who lived across the street that the house had been flooded twice in the past. The neighbor told Ms. Johnson that water had come through the windows and over the windows. Ms. Johnson did not necessarily believe this neighbor, because of a dispute she had had with her involving trash. When the Johnsons had their telephone hooked up, the telephone company's installer asked them if they had ever had water standing in the house. Ms. Johnson said that she did not know. The installer replied, "Well, I'm going to put you some new lines in because this house has held water before." Ms. Johnson testified that she believed this. Each time it rained, the water would come close to the house; this fact caused Ms. Johnson much worry. On one occasion, the flooding was so bad that it came all the way up to the carport, causing Ms. Johnson great concern. She called the county engineer's office often to ask what could be done about the drainage ditch.
Ms. Johnson finally contacted Bud Ames, of the county engineer's office. Ames visited the property and took pictures of the property on November 8, 1989. He told Ms. Johnson that the woman who had lived in the house before the Johnsons bought it had moved out because of the flooding and that Mims knew this before the Johnsons bought the house. Ames also told Ms. Johnson that Ames and Mims had walked around the lot before the Johnsons purchased the house and that Ames had told Mims there was nothing the county could do about the flooding. Ames told Ms. Johnson, in November 1989, that the house was in a flood zone and that it should never have been built there.
It was shortly after this that Ms. Johnson alleges that she had the telephone conversation with McElhaney, which McElhaney denies having. Reviewing the evidence concerning this alleged telephone conversation most favorably to the Johnsons, the nonmovants, one could conclude that the following transpired:
"Mr. McElhaney told [Ms. Johnson] that [the Johnsons] did not need flood insurance because this property was not in a flood zone. He also stated that flood insurance was too expensive and that it was not worth [their] while to purchase it because of the expense. These statements were made to [Ms. Johnson] by Mr. McElhaney before the property flooded." (Ms. Johnson's affidavit.)
Ms. Johnson called State Farm about flood insurance and talked with McElhaney. She did not ask him to issue flood insurance on the house. She merely discussed flood insurance with McElhaney, and he told her "it was not worth [the Johnsons'] while to get it because it was too expensive and [the Johnsons] really didn't need it" and "it was too expensive and it would not be worth [their] while to get that." (Ms. Johnson's deposition.) Ms. Johnson did not tell McElhaney that an employee of the county engineer's office had told her that the house was in a flood zone and should never have been built there or that the house had been flooded. She did not remember how much McElhaney told her the flood insurance would cost. She did not have flood insurance on the property at the time of her deposition and had not attempted to obtain such insurance.
After Ms. Johnson's telephone conversation with McElhaney, the Johnsons consulted a lawyer about the flooding problems. On February 1, 1990, the lawyer wrote a letter to Mims, informing Mims that the attorney was representing the Johnsons and that the value of their house had been impaired, because, he said, "it appears that the property flooded on a regular basis." Approximately two weeks before the house flooded, the Johnsons sued Lambert Mims, Mims Sales and Development, Inc., and certain other defendants (but not State Farm or McElhaney), alleging that those defendants had represented to the Johnsons that *977 the house had not been flooded and did not have a flood problem and alleging that those representations were false "and that the house had flooded in the past and was subject to a severe flooding problem." In each of the five claims in the original complaint, the Johnsons alleged that the house was subject to a severe flooding problem.
The Johnsons' house was flooded during the March 1990 south Alabama deluge. After that, the Johnsons amended their complaint to add McElhaney and State Farm as defendants, seeking damages from them for (1) reckless misrepresentation and (2) undertaking to advise the Johnsons of their flood coverage needs and then negligently advising them and negligently failing to assist the Johnsons in obtaining flood coverage on their house.
Clearly, there was substantial evidence of a representation made by McElhaney; and, because the property flooded and there was evidence that the property was in a flood zone, it could be reasonably inferred that the representation was made recklessly without knowledge. Whether the representation was of a material fact or of an opinion is a point of contention between the parties, but we need not decide that question, because the Johnsons did not, and could not, justifiably rely on this representation.
This case involved a consumer transaction involving the question whether there was a need to add flood coverage to a homeowner's insurance policy.
Prior to Chief Justice Hornsby's special concurrence in Southern States Ford v. Proctor, 541 So. 2d 1081, 1087-92 (Ala. 1989), this Court had permitted a consumer's contributory negligence to defeat that consumer's recovery in a fraud action as a matter of law. This Court had held that if a consumer plaintiff, acting as a reasonably prudent person exercising ordinary care, would have discovered the "true facts" before acting on the alleged misrepresentation, then, as a matter of law, the plaintiff could not have relied on the misrepresentation. Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757 (Ala.1983), overruled, Hickox v. Stover, 551 So. 2d 259 (Ala.1989). In doing so, this Court had permitted the reliance element that had been developed in commercial transactions (Bedwell Lumber Co. v. T & T Corp., 386 So. 2d 413 (Ala.1980)) to tread "into the arena of consumer transactions." Southern States Ford, 541 So. 2d at 1090. Chief Justice Hornsby, in his special concurrence in Southern States Ford, wrote that Bedwell Lumber Co. was not incorrectly decided; and two of the five Justices who concurred in Bedwell Lumber Co., including its author, joined the Chief Justice's special concurrence in Southern States Ford.
Chief Justice Hornsby proposed the following as the test for the reliance element in an action alleging consumer fraud:
541 So. 2d at 1091-92.
Chief Justice Hornsby's special concurrence in Southern States Ford did not purport to have this new "justifiable reliance" standard apply to commercial transactions. The "reliance" element in fraud actions based on commercial transactions remained as it had been since Bedwell Lumber, 386 So.2d at 415:
Hickox v. Stover, supra, involved a commercial insurance scenario. The alleged fraudulent misrepresentation was: "[T]he [insurance] coverage we are offering ... is *978 equal to the coverage provided by your existing [insurance] carrier...." 551 So. 2d at 261. The existing policy had an endorsement that negated the effect of a co-insurance provision ("amount of [insurance coverage in policy] represents 90% of the value of the property covered"). The replacement policy had the same co-insurance provision, but no endorsement negating that provision. The policy was sent to the insured and the insured was informed by separate letter to check its "equipment values" because the values stated in the new policy were the same as those stated for the last three years. The letter read, "The [new] policy has a 90% co-insurance provision which means the values are to be 90% of replacement. Please have someone check these values so that there will not be a problem if there is a loss." 551 So. 2d at 262.
There was a loss and there was a problem. Five Justices on this Court held that the plaintiff's reliance on the representation ("the coverage we are offering ... is equal to the coverage provided by your existing carrier") was not unjustified as a matter of law. The alleged misrepresentation was not so patently and obviously false that the plaintiff must have closed his eyes to avoid the discovery of the truth.[1]
If the Bedwell Lumber standard had been used, defendant Stover would have been entitled to a summary judgment as a matter of law, because plaintiff Hickox was notified in writing, not only by the policy, but by the separate letter, that if the values, which had been stated three years earlier, were not 90% of the replacement cost, then there would be a problem if there was a loss. Clearly, Hickox had knowledge of facts that ought to have excited inquiry (i.e., knowledge that if the insured value was not 90% of the replacement cost, he would have a problem if he had a loss). Bedwell Lumber.
Therefore, the standard that was proposed as a standard for reliance in consumer transactions only, was first applied in a per curiam opinion involving a commercial transaction only. Since Hickox v. Stover, supra, the reliance standard recommended only for consumer transactions has been applied in both consumer and commercial transactions: Grimes v. Liberty National Life Insurance Co., 551 So. 2d 329 (Ala. 1989) (consumer transaction, summary judgment for defendant affirmed); AT & T Information Systems, Inc. v. Cobb Pontiac-Cadillac, Inc., 553 So. 2d 529, 532 (Ala. 1989) (commercial transaction, judgment based on jury verdict for plaintiff affirmed, with four Justices stating "[w]hether reliance is justifiable in a given fraud action is a question of fact" and that "[c]onsequently, where there is a scintilla of evidence [substantial evidence after June 11, 1987, see § 12-21-12, Ala.Code 1975] that the reliance was justifiable, JNOV is improper"); Alfa Mutual Insurance Co. v. Brewton, 554 So. 2d 953 (Ala.1989) (consumer transaction, judgment based on jury verdict for plaintiff affirmed); McDowell v. Key, 557 So. 2d 1243 (Ala.1990) (consumer transaction, judgment based on jury verdict for plaintiffs affirmed, with Court noting that Cahaba Valley Development Corp. v. Nuding, 512 So. 2d 46 (Ala.1987), in which this Court used the "reasonable reliance" test in Bedwell Lumber and affirmed a judgment for the plaintiff, had weaker facts than McDowell v. Key, supra); Ramsey Health Care, Inc. v. Follmer, 560 So. 2d 746 (Ala.1990) (commercial transaction, judgment based on jury verdict for plaintiff affirmed); Land & Associates, Inc. v. Simmons, 562 So. 2d 140 (Ala.1989), cert. denied, General American Life Ins. Co. v. Simmons, ___ U.S. ___, 111 S. Ct. 1305, 113 L. Ed. 2d 240 (1991) (consumer transaction, judgment based on remitted jury verdict for plaintiff affirmed); E & S Facilities, Inc. v. Precision Chipper Corp., 565 So. 2d 54 (Ala.1990) (commercial transaction, judgment based on jury verdict for plaintiff affirmed); Griggs v. Finley, 565 So. 2d 154 (Ala.1990) (consumer transaction, judgment based on jury verdict for plaintiff affirmed); Withers v. Mobile Gas *979 Service Corp., 567 So. 2d 253 (Ala.1990) (commercial transaction (condemnation of right of way), summary judgment for defendant in fraud action affirmed); McConico v. Corley, Moncus & Bynum, P.C., 567 So. 2d 863 (Ala.1990) (consumer transaction, summary judgment for defendant affirmed); Rodopoulos v. Sam Piki Enterprises, Inc., 570 So. 2d 661 (Ala.1990) (commercial transaction, judgment based on jury verdict for plaintiff affirmed); Standard Furniture Manufacturing Co. v. Reed, 572 So. 2d 389 (Ala.1990) (commercial transactionemployee-employer representation concerning value of employee's pension plan; judgment based on jury verdict for plaintiff affirmed); Dixon v. South-Trust Bank of Dothan, N.A., 574 So. 2d 706 (Ala.1990) (commercial transaction, summary judgment for defendant reversed). Harris v. M & S Toyota, Inc., 575 So. 2d 74 (Ala.1991), involved a consumer transaction. The jury returned a verdict for the plaintiffs and a new trial was granted to the defendant, but not on the reliance issue. A majority of this Court held:
575 So. 2d at 77.
Curtis v. Bill Byrd Automotive, Inc., 579 So. 2d 590 (Ala.1990), involved a consumer transaction in which a summary judgment for the defendant was reversed; Commercial Credit Corp. v. Lisenby, 579 So. 2d 1291 (Ala.1991), involved a consumer transaction in which a judgment for the plaintiffs was reversed and a judgment rendered in favor of the defendant; and Hicks v. Globe Life & Accident Insurance Co., 584 So. 2d 458 (Ala.1991), involved a consumer transaction in which a summary judgment for the defendant was reversed and the cause remanded. In Hicks v. Globe Life & Accident Insurance Co., a Justice who was one of the five Justices who voted to adopt the "justifiable reliance" standard in Hickox v. Stover, supra, as the applicable standard, dissented and wrote that he would return to the reasonable reliance standard in consumer and commercial transactions, stating:
Hicks v. Globe, supra, at 469-70. (Almon, J., dissenting.)
For the edification of the bench and bar, we reiterate that the "justifiable reliance" standard, first proposed as a standard for consumer fraud transactions in Chief Justice Hornsby's special concurrence in Southern States Ford and adopted by five members of this Court as the standard in commercial fraud transactions in Hickox v. Stover, is the standard by which to test the "reliance" element in both consumer and commercial fraud transactions:
541 So. 2d at 1091-92.
Even using this standard, we conclude that the Johnsons could not have relied upon the alleged representations of McElhaney. The Johnsons knew that their house had flooded, and they knew that their house was in a flood zone and should never have been built there. The Johnsons did not share this information with McElhaney. *980 To allow the Johnsons to recover from State Farm and McElhaney for reckless misrepresentation would be to allow them not only to close their eyes to avoid the discovery of the truth, but also to close their eyes to the truth that was already known to them.
As we understand the Johnsons' second argument, it is no more than an attempt to assert that McElhaney and State Farm owed the Johnsons a duty to speak the truth. A duty to speak the truth is an essential element of fraud. Alfa Mutual Insurance Co. v. Northington, 561 So. 2d 1041, 1045 (Ala.1990); Colonial Bank of Alabama v. Ridley & Schweigert, 551 So. 2d 390, 396 (Ala.1989); George v. Federal Land Bank of Jackson, 501 So. 2d 432 (Ala.1986). However, the Johnsons did not request that State Farm provide flood insurance; McElhaney did not agree to and thereafter fail to procure flood insurance; considering the evidence most favorably to the Johnsons, it appears that they merely discussed flood insurance with McElhaney. In deciding the first issue in this case, we assumed for purposes of considering the summary judgment motion that what McElhaney said was a representation made recklessly; however, we now conclude that the Johnsons would have had to close their eyes and disregard all facts that they knew to be true, in order to rely on McElhaney's representations. We must conclude that any reliance by the Johnsons on what Ms. Johnson says he told her, was, as a matter of law, not "justifiable." The Johnsons knew, before talking with McElhaney, that when the storms of life were raging, their house would be in harm's way.
AFFIRMED.
ADAMS and INGRAM, JJ., concur.
HORNSBY, C.J., and SHORES, J., concur specially.
MADDOX and STEAGALL, JJ., concur in the result.
SHORES, Justice (concurring specially).
I agree with the holding in this case that the justifiable reliance standard adopted by this Court is the standard to be applied in fraud cases. Under that standard, a person can avoid liability to the person to whom he makes a representation by either speaking the truth or making a representation that is so patently and obviously false that it could not mislead the person to whom it is addressed unless that person closes his eyes to avoid the truth. This does not seem to me to be a harsh rule.
HORNSBY, C.J., concurs.
[1] On this issue, Hickox v. Stover, 551 So. 2d 259 (Ala.1989), was a 5 to 3 opinion, with Justices Maddox, Houston, and Kennedy each writing dissents to address the change in the law of reliance. | September 6, 1991 |
cd5d8758-3a13-4545-a5e9-7ce9704465be | Star Freight, Inc. v. Sheffield | 587 So. 2d 946 | 1900061 | Alabama | Alabama Supreme Court | 587 So. 2d 946 (1991)
STAR FREIGHT, INC.
v.
Essie Lee SHEFFIELD, as personal representative of the Estate of Willard Burney, deceased.
1900061.
Supreme Court of Alabama.
September 6, 1991.
*947 John F. Fox, Jr. of Taylor & Taylor, Philadelphia, Pa., Billy L. Church of Church & Trussell and Erskine R. Funderburg of Church, Trussell & Funderburg, P.C., Pell City, for appellant.
R. Ben Hogan III and Richard D. Stratton of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, for appellee.
W. Kirk Davenport and Richard L. Wyatt of Wallace, Wyatt & Davenport, Birmingham, *948 for appellee/intervenor Liberty Mut. Ins. Co.
HORNSBY, Chief Justice.
This wrongful death case arises from a motor vehicle accident that occurred on July 28, 1986. Essie Lee Sheffield, as the personal representative of the estate of Willard Burney, deceased, sued Star Freight, Inc., James Cook, Tommy Thompson, Linn B. Isbell, Southwire Machinery Division, Randy M. Chandler, and Sutherlin Leasing Company, alleging that the defendants had been negligent in operating their respective vehicles and that their negligence had caused the accident that killed Burney.
Defendants Sutherlin Leasing Company, Southwire Machinery Division, and Randy M. Chandler were dismissed. The court entered a default judgment against Linn B. Isbell. Liberty Mutual Insurance Company (Liberty Mutual), the uninsured/underinsured motorist insurer for Willard Burney, filed a motion for limited intervention, asserting its subrogation rights to any judgment received by Sheffield.[1] Prior to the trial of this case, Sheffield agreed to dismiss James Cook and Tommy Thompson, who were the agents of Star Freight at the time of the accident. Consequently, the only remaining defendant at the time of trial was Star Freight.
The jury returned a $200,000 verdict for the plaintiff Sheffield. Star Freight filed a motion for a judgment notwithstanding the verdict and a motion for a new trial. The trial court failed to dispose of these motions within 90 days, and this failure constituted a denial of the motions under A.R.Civ.P. 59.1. Star Freight appeals.
On July 28, 1986, Willard Burney was killed in a tractor-trailer collision on Interstate Highway 20 in St. Clair County, Alabama. Burney, who was driving the "Bulldog" tractor-trailer truck involved in this accident, had been driving in a group with two other trucks for 10 or 11 miles prior to the accident. One of those trucks was owned by Southwire Machinery and was operated by Randy Chandler. That truck was travelling in the left eastbound lane of I-20. Before the collision, the Southwire truck was running alongside Burney's vehicle. The other truck was owned by Star Freight and was operated by James Cook. The evidence presented was unclear as to which lane the Star Freight truck was travelling in. Cook and an eyewitness testified that the Star Freight truck was travelling in the left eastbound lane of I-20 behind the Southwire truck. The plaintiff's expert witness testified that in his opinion the Star Freight truck was travelling in the right lane behind the Bulldog truck that Burney was driving.
As these three vehicles were travelling east on I-20, another vehicle, operated by *949 Linn Isbell, entered the highway from the right shoulder of I-20. Apparently, Isbell was backing her vehicle on the emergency strip along the right side of the highway, lost control, and entered the highway. Defendant Star Freight contends that Isbell's vehicle caused the Bulldog truck driven by Burney to "jackknife" into the left lane directly in front of its truck. It further contends that the Southwire truck was knocked from the highway by a combination of the Bulldog truck's "jackknifing" into the left lane and the Isbell vehicle's crossing the highway. Star Freight stated that its truck collided with the left side of the "Bulldog" truck and that after the impact, its truck veered to the left into the median of the highway, where it overturned.
Based upon the opinion of John Sims, a mechanical engineer who testified as the plaintiff's expert, Sheffield contends that the Star Freight truck was "tailgating" the Bulldog truck, i.e., was following it too closely in the right lane. In reaching his opinion, Sims examined photographs and a videotape of the scene and considered the nature of the damage to the vehicles involved. He further examined a diagram drawn by Officer Jonathan Bryson, who was called to the scene of the accident; the deposition of Cook; and the Star Freight truck itself. Sims testified that he had considered the location and length of the various gouges and skid marks, the final resting places of the vehicles, and the damage to the vehicles to determine the sequence of events. Sims testified that in his opinion the Isbell vehicle passed in front of the Bulldog truck and was struck by the Southwire truck in the left eastbound lane. He also testified that the Star Freight truck collided with the rear of the Bulldog truck as that truck was jackknifing to a stop in the right eastbound lane. He further testified that the Star Freight truck came up the side of the "Bulldog" truck, which was jackknifing, and that the Star Freight truck struck the cab of the Bulldog truck, thus causing the driver of the Bulldog truck, Burney, to be ejected from his vehicle and be killed.
After Sims testified, the plaintiff rested, and the defendant indicated that it would not present any witnesses, and it also rested. The defendant moved for a directed verdict upon the basis that the evidence presented to the jury failed to establish any act of negligence on the part of Star Freight's agent that proximately caused or contributed to the death of Burney. Counsel for Star Freight stated:
The trial court denied the motion, and the case was submitted to the jury, which subsequently returned a $200,000 verdict for the plaintiff. Subsequently, the trial court denied Star Freight's motion for a judgment notwithstanding the verdict and its motion for a new trial.
Star Freight argues: (1) that the trial court erred in overruling its objection to John Sims's testifying as to his opinion regarding the proximate cause of the accident; (2) that the trial court erred in denying its motions for directed verdict, judgment notwithstanding the verdict, and new trial because of what it calls the lack of evidence supporting the plaintiff's contentions; and (3) that the judgment of $200,000 should be reduced because of Sheffield's receipt of $60,000 from Burney's uninsured/underinsured motorist insurance carrier, Liberty Mutual.
Sheffield contends: (1) that the trial court did not err by allowing her expert, John Sims, to testify, because, she says, *950 Star Freight failed to preserve the issue; the objection to the expert's opinions went to the weight of the testimony and not its admissibility; and there were substantial facts supporting the expert's opinions; (2) that the jury's verdict was not against the weight of the evidence so as to be palpably wrong and manifestly unjust; and (3) that the trial court did not err in denying Star Freight's motion to remit the verdict to $140,000 because of the plaintiff's receipt of $60,000 from Liberty Mutual, which was subrogated to a portion of the amount awarded to the plaintiff.[2]
1. The Expert Witness's Testimony
In Alabama Power Co. v. Robinson, So.2d 148, 152-53 (Ala.1983), this Court stated:
(Citations omitted.) This Court in Macon County Comm'n v. Sanders, 555 So. 2d 1054, 1058 (Ala.1990), also stated:
In this case, John Sims was qualified as an expert, but in its objection the defendant's counsel stated:
In its oral charge, the trial court instructed the jury as follows:
In reviewing the record in this case, we conclude that the trial court did not err in overruling Star Freight's objection to John Sims's rendering an opinion concerning the proximate cause of the accident. The trial court indicated both at the time of the objection and in his instruction that the jury was to assign the appropriate weight to the expert's testimony when that testimony was viewed with all the evidence presented in the case. In this regard, there was no abuse of discretion on the trial court's part, because it was the jury's duty to determine the weight to be accorded to the testimony of the witnesses. See Alabama Power Co. v. Courtney, 539 So. 2d 170 (Ala.1988) (objection to testimony based upon inadequacy of facts goes to the weight of the evidence, not to its admissibility); Hagler v. Gilliland, 292 Ala. 262, 292 So. 2d 647 (1974) (differences in testimony either by another expert or by another witness go to the weight of the evidence rather than to the admissibility of the evidence).
2. Motions for Directed Verdict; Judgment Notwithstanding the Verdict; and New Trial
A. Preservation of alleged error regarding motions for directed verdict, judgment notwithstanding the verdict, and new trial
Sheffield argues that Star Freight failed to preserve its right to appeal because, although Star Freight made a motion for a directed verdict at the close of the plaintiff's case, it failed to renew that motion after introducing Sims's affidavit into evidence. The following occurred after the plaintiff rested:
In Barnes v. Dale, 530 So. 2d 770 (Ala. 1988), this Court addressed whether it *952 could review a denial of a directed verdict, based upon a question of law, that was made at the close of the plaintiff's case but where the defendant had failed to renew his motion for a directed verdict at the close of all the evidence. This Court held:
Id. at 776. In interpreting the requirements of A.R.Civ.P. 50(b) and an appellate court's exercise of discretion in entering a judgment contrary to a jury verdict, this Court relied on Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968 (1st Cir. 1969). This Court wrote in Barnes:
"Bayamon, 409 F.2d at 971-72.
Id. 530 So. 2d at 779-80 (footnote omitted).
We conclude that Star Freight preserved its right to appeal even though it did not technically renew its motion for directed verdict after requesting that Sims's affidavit be placed into evidence. Like the evidence in Bayamon and Barnes, the affidavit that was admitted after Star Freight made its directed verdict motion held no surprises, and, in fact, it had been marked as an exhibit and testified to by Sims on cross-examination. The admissibility of evidence is a question of law for the trial *953 court to decide. Also, it is a question of law for the trial court whether to grant Star Freight's directed verdict motion, which struck at the heart of Sheffield's claim by a contention that Sheffield had failed to show that Star Freight proximately caused Burney's death. Consequently, Star Freight preserved its right to appeal the trial court's denial of its motions for directed verdict, judgment notwithstanding the verdict, and new trial.
B. Motions for directed verdict and judgment notwithstanding the verdict
Star Freight argues that the trial court erred in denying its directed verdict and J.N.O.V. motions because, it says, there was a lack of evidence supporting the plaintiff's case. In Burroughs Corp. v. Hall Affiliates, Inc., 423 So. 2d 1348, 1353-54 (Ala.1982), this Court stated:
See also Mallory v. Hobbs Trailers, 554 So. 2d 966 (Ala.1989).
Having reviewed the record, we conclude that the trial court did not err in denying Star Freight's motions for directed verdict and judgment notwithstanding the verdict. "The standard of review for the denial of motions for a directed verdict and a judgment notwithstanding the verdict is whether the party with the burden of proof has produced sufficient evidence to require a jury determination." Macon County Comm'n v. Sanders, 555 So. 2d 1054, 1056 (Ala.1990). In this case, Sheffield produced sufficient evidence to present a question requiring the jury to make a determination. The introduction of the expert witness's testimony in this case created a factual issue for the jury concerning the proximate cause of Burney's death; thus, the trial court's denial of Star Freight's motions for directed verdict and judgment notwithstanding the verdict was proper.
C. Motion for New Trial
Star Freight also argues that the trial court erred in denying its motion for a new trial, because, it argues, the verdict was against the weight of the evidence. In Burroughs Corp. v. Hall Affiliates, Inc., supra, at 1353-54, this Court stated that in reviewing sufficiency-of-the-evidence claims raised by motions for new trial, the "palpably wrong, manifestly unjust" standard is used, whereby the weight and preponderance of the evidence is examined. See also Casey v. Jones, 410 So. 2d 5 (Ala.1982). In Burroughs, supra, at 1354, this Court further stated:
Reviewing the evidence in this case most favorably to the verdict, we conclude that the jury was free to draw its own conclusions based on all the evidence presented. In its jury instruction, the trial court indicated that the jury was to assign the appropriate weight to the expert's testimony when that testimony was viewed with all the evidence presented in the case. See prior discussion supra. In this regard, the trial court was not palpably wrong or manifestly unjust in denying the defendant's motion for new trial, because it was the jury's duty to determine the weight to be *954 accorded to the testimony of the witnesses. See Hollis v. Scott, 516 So. 2d 576 (Ala. 1987).
3. Subrogation
During the trial of this case, Sheffield apparently believed that Liberty Mutual had a right to subrogation with respect to its payment of uninsured motorist insurance proceeds. However, she now argues that, under the authority of Powell v. Blue Cross & Blue Shield of Alabama, 581 So. 2d 772 (Ala.1990), and Motors Ins. Corp. v. Loftin, 277 Ala. 331, 170 So. 2d 281 (1964), the uninsured motorist benefits she received were received pursuant to a contract obligation that was owned by the estate. Consequently, Sheffield contends that Liberty Mutual is not entitled to subrogation because, she argues, it cannot be subrogated to funds paid to the personal representative pursuant to Alabama's Wrongful Death Statute.
Liberty Mutual contends that the Loftin case's distinction and rationale was limited by the recent decision of Sprouse v. Hawk, 574 So. 2d 754 (Ala.1990), wherein this Court held that uninsured motorist benefits paid in a wrongful death case are to be distributed according to the statute of descent and distribution. Liberty Mutual contends that these uninsured motorist benefits are not payable to the decedent's estate but rather are payable to the decedent's personal representative in lieu of damages recovered under the wrongful death statute. Liberty Mutual further contends that it is also entitled to subrogation under the rationale outlined in Powell, supra.
The subrogation issue in this case comes to us in a confused state as a result of Liberty Mutual's limited intervention at trial and the development of the issue after much of the litigation had taken place. After extensive review, we conclude that the primary issue under these facts is whether Liberty Mutual can enlarge or extend its equitable right of subrogation by contract.[3]
In Powell, this precise issue was not addressed, because the issue was moot. Powell, note 1. The Court in Powell addressed whether an insurer, under a subrogation contract, may subrogate itself to its insured's recovery from a third-party tort-feasor when that recovery does not exceed the insured's total loss. This Court held that no right of subrogation existed until the insured had fully recovered.
This Court recognizes the following:
Note, Conflicts Regarding the "No Subrogation Against Insured" Rule, 29 Drake L.Rev. 811, 811-12 (1980) (footnotes omitted). See also Powell, supra; International Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163 (Ala.1989).
*955 In Powell, this Court reiterated the general subrogation law:
"548 So. 2d at 164-65.
Powell, 581 So. 2d at 774-75.
In regard to uninsured motorist insurance, 12A Couch on Insurance 2d § 45:655 at 221-22 (1981 rev. ed.), states:
(Emphasis added.)
This Court has recognized that a right of subrogation exists in uninsured/underinsured motorist insurance cases. In Hardy v. Progressive Ins. Co., 531 So. 2d 885 (Ala. 1988) (summary judgment for the insurer reversed because the record failed to support the judgment), this Court stated that an underinsured motorist insurance carrier had no right of subrogation as to payments that were within a tort-feasor's limits of liability, but did have a right of subrogation for sums paid by the insurer in excess of the tort-feasor's limits of liability. See also Auto-Owners Ins. Co. v. Hudson, 547 So. 2d 467 (Ala.1989) (to preserve right of subrogation for underinsured motorist insurance proceeds, insurer must pay its insured the amount that the tort-feasor offers to pay in a settlement); Progressive Specialty Ins. v. Hammonds, 551 So.2d *956 333 (Ala.1989) (applying principle set forth in Auto-Owners Ins. Co. v. Hudson). However, as stated above, the issue here is not whether Liberty Mutual has a right of subrogation but rather whether Liberty Mutual can extend or expand its right of subrogation by contract.
In arguing that it has a right to extended or expanded subrogation, Liberty Mutual relies on the Florida case of International Sales-Rentals Leasing Co. v. Nearhoof, 263 So. 2d 569 (Fla.1972). In Nearhoof, the plaintiffs were injured in a multivehicular accident. They settled their uninsured motorist insurance claim for $19,500 and signed a release and trust agreement. The agreement provided:
Id. at 570. The uninsured motorist insurance carrier, in reliance upon the release and trust agreement, intervened in the plaintiffs' action against an insured joint tort-feasor. The jury returned a $70,500 verdict for the plaintiffs, and the uninsured motorist insurance carrier moved to recover its $19,500 payment. The trial court held that the carrier did not have a right of subrogation because the insureds recovered from an insured joint tort-feasor. The trial court allowed the joint tort-feasor to set-off $19,500 against the $70,500 judgment.
On appeal to the District Court of Appeal, that court concluded (1) that the defendant joint tort-feasor had no right of set-off and (2) that the trial court had correctly decided the subrogation issue. However, on appeal to the Florida Supreme Court, that court stated in regard to the subrogation issue:
Id.
In holding that the uninsured motorist insurance carrier in Nearhoof had a right of subrogation, the Florida Supreme Court relied on the Florida statute, which provided that an uninsured motorist insurance carrier had a right of subrogation where the insured recovered from any person or organization legally liable.[4] The Alabama Uninsured Motorist Statute has no similar provision. In fact, Alabama's Uninsured Motorist Statute makes no provision for subrogation in uninsured motorist cases.
The Uninsured Motorist Statute, Ala. Code 1975, § 32-7-23, provides:
(Emphasis added.)
As stated by this Court, the Uninsured Motorist Statute is construed so as to assure that a person injured by an uninsured motorist will be able to recover the total amount of his damages and that the insurer will not be allowed to insert provisions in the policy limiting the insured's recovery. Safeco Ins. Co. of America v. Jones, 286 Ala. 606, 243 So. 2d 736 (1970); Alabama Farm Bureau Mut. Cas. Ins. Co. v. Clem, 49 Ala.App. 457, 273 So. 2d 218 (1973).
In Auto-Owners Ins. Co. v. Hudson, 547 So. 2d 467, 468 (Ala.1989), this Court stated:
See also Sprouse v. Hawk, 574 So. 2d 754 (Ala.1990).
In this case, the parties admit that Liberty Mutual paid the $60,000 uninsured motorist benefits on behalf of Linn B. Isbell, the uninsured motorist, but that no money damages were ever assessed on the default judgment rendered against her. The parties also admit that the $200,000 judgment for Sheffield was rendered solely against Star Freight. Star Freight was not an uninsured motorist in this case. Liberty Mutual, under a "Release and Trust Agreement" signed by Sheffield purports to subrogate itself to Sheffield's recovery regardless of whether that recovery is from the uninsured motorist or another insured tort-feasor.
This "Release and Trust Agreement" reads:
(Emphasis added.)
In addition to the "Release and Trust Agreement," the insurance policy between Burney and Liberty Mutual provided:
"C. OUR RIGHT TO RECOVER FROM OTHERS
(Emphasis original.)
It is apparent that Liberty Mutual attempted to extend or expand its right of subrogation so as to recover its payment of uninsured motorist insurance proceeds in the event Sheffield recovered from any party, regardless of whether that party was an uninsured motorist. Liberty Mutual did this by requiring the execution of a "Release and Trust Agreement" by Sheffield. This agreement, however, contravenes the Uninsured Motorist Statute. We note that in Alabama Farm Bureau Mut. Casualty Ins. Co. v. Humphrey, 54 Ala.App. 343, 308 So. 2d 255 (1975), the Court of Civil Appeals considered whether a trust agreement or subrogation provisions in an insurance policy entitled the insurer to subrogate itself to any proceeds of settlement the insured received from any person legally liable for his injury. The Court of Civil Appeals held:
Id. 54 Ala.App. at 345, 308 So. 2d at 257-58.
The purpose of the Uninsured Motorist Statute is to protect insured persons who are legally entitled to recover damages from owners or operators of uninsured motor vehicles. An uninsured motorist insurance carrier can not limit or restrict that coverage. Under the facts in this case, the "Release and Trust Agreement" does purport to limit or restrict the uninsured motorist coverage.
Like the contract in Powell, where this Court held that the contract abrogated the principles of subrogation because the insurer sought reimbursement before the insured had fully recovered, the "Release and Trust Agreement" in the present case contravenes the Uninsured Motorist Statute.
Because the "Release and Trust Agreement" in this case contravenes the stated purpose of Alabama's Uninsured Motorist Statute, we hold that there is no extended or expanded right of subrogation in this case.[5]
4. Set-off
Star Freight argues that it has a right to a $60,000 set-off because, it says, the "Release and Trust Agreement" was a pro tanto release.[6] Star Freight contends *959 that, because the jury awarded Sheffield punitive damages of $200,000, it is liable as a joint tort-feasor only to pay $140,000 of the $200,000 judgment. We disagree. Although there was a $60,000 payment made by the plaintiff's uninsured motorist insurance carrier pursuant to its contract, there is no evidence that the "Release and Trust Agreement" was a pro tanto release; the $60,000 was not paid by Isbell, and Isbell was not released. Sheffield did not go to the jury against Isbell; rather, Star Freight was the sole defendant at trial. At trial, the jury determined liability and wrongful death punitive damages against Star Freight. Star Freight failed to object to the trial court's oral charge to the jury in respect to Isbell's liability for damages. Further, the "Release and Trust Agreement" was not even offered into evidence. See, e.g., Tatum v. Schering Corp., 523 So. 2d 1042 (Ala.1988); Bucyrus-Erie Co. v. Von Haden, 416 So. 2d 699 (Ala.1982).[7] Thus, from the record before this Court, it appears that Star Freight failed to preserve this issue for appellate review. See, e.g., Gotlieb v. Collat, 567 So. 2d 1302 (Ala. 1990); Campbell v. Alabama Power Co., 567 So. 2d 1222 (Ala.1990); Green v. Taylor, 437 So. 2d 1259 (Ala.1983).
For the foregoing reasons, we affirm the trial court's judgment.
AFFIRMED.
MADDOX, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Sheffield, as the administratrix of Willard Burney's estate, had signed a "Release and Trust Agreement" with Liberty Mutual, which stated:
"RELEASE AND TRUST AGREEMENT
"KNOW ALL MEN BY THESE PRESENTS that the undersigned Essie Sheffield as administratrix of the estate of Willard Burney, being of full age, for the sole consideration of Sixty Thousand & 00/100 ($60,000.00) paid by LIBERTY MUTUAL INSURANCE COMPANY and/or LIBERTY MUTUAL FIRE INSURANCE COMPANY (hereinafter referred to as LIBERTY), the receipt of which is hereby acknowledged, hereby releases, acquits, and forever discharges LIBERTY from all claims, known or unknown, that the undersigned may ever have against LIBERTY under the uninsured motorist coverage of its policy NO. AT1-751-001774-035 arising out of an accident that occurred on the 28th day of June 1986 at or near I-20; Pell City, Alabama.
"The undersigned further agrees to do whatever is proper to secure any rights he/she may have against any party who may be legally liable for the damages sustained by the undersigned in said accident, including taking in his/her own name any action necessary or appropriate to recover such damages. In the event of such recovery by judgment or settlement the undersigned shall reimburse LIBERTY, to the extent of its payments hereunder, less a pro rata share of the cost of securing such judgment or settlement, out of the proceeds of such recovery. The undersigned shall notify LIBERTY of all significant developments in any action undertaken to secure the undersigned's rights and shall execute and deliver to LIBERTY such instruments and papers as may be appropriate to secure the rights and obligations of the undersigned and LIBERTY established by the provisions of this agreement."
[2] Sheffield subsequently changed her position on Liberty Mutual's rights to subrogation based upon this Court's decision in Powell v. Blue Cross & Blue Shield of Alabama, 581 So. 2d 772 (Ala.1990). See discussion under the heading "Subrogation," infra.
[3] We do not consider in this case whether a right of subrogation exists in regard to wrongful death cases; rather, we address only the issue of whether an uninsured motorist insurance carrier may extend or expand its right of subrogation through contract.
[4] We note that two jurisdictions allow an uninsured motorist carrier to recover where its insured recovers from any party legally liable. However, the legislatures in those jurisdictions have provided for this type of subrogation by statute. See, e.g., Ackerman v. Prudential Property & Cas. Ins. Co., 83 Ill.App.3d 590, 39 Ill.Dec. 150, 404 N.E.2d 534 (1980); Stroud v. Liberty Mut. Ins. Co., 429 So. 2d 492 (La.Ct.App.1983). Cf. Harthcock v. State Farm Mut. Automobile Ins. Co., 248 So. 2d 456 (Miss.1971) (construed uninsured motorist statute to allow subrogation only when the injured party had recovered from the uninsured motorist).
[5] We note that even if the "Release and Trust Agreement" did not contravene the stated purpose of the Uninsured Motorist Statute, Liberty Mutual would still have no right of subrogation. Under the general principles of subrogation a subrogee steps into the shoes of its subrogor and that subrogee only gets those rights that its subrogor has. The subrogee can have no greater rights. In this case, Isbell was dismissed by the trial court as a party; thus Sheffield had no right to proceed against Isbell. Consequently, Liberty Mutual, as Sheffield's subrogee, had no right to proceed against Isbell. See discussion of subrogation supra.
[6] Star Freight relies on the case of Batchelor v. Brye, 421 So. 2d 1267 (Ala.Civ.App.1982), to support its position. However, that case is distinguishable. See Cooper v. Aplin, 523 So. 2d 339 (Ala.1988) (Maddox, J., dissenting) (distinguishing Batchelor v. Brye).
In Batchelor, the plaintiff settled with its uninsured motorist insurance carrier for $10,000 but proceeded against two joint tort-feasors. The jury returned a $30,000 verdict against both tort-feasors. One tort-feasor paid $20,000 into court and moved to have the $30,000 judgment satisfied. The motion was granted and the plaintiff appealed, arguing that the $10,000 paid by the uninsured motorist insurance carrier should not be treated as a partial payment of the $30,000 judgment. The Court of Civil Appeals disagreed with the plaintiff, reasoning that the plaintiff could recover only the amount that the jury decided was her total damages as to both tort-feasors.
In the present case, only the liability of, and damages against Star Freight were determined by the jury. The damages against Isbell were never considered by the jury in this case; thus Star Freight has no right of set-off against the proceeds paid on behalf of the uninsured motorist, Isbell.
[7] As noted in Powell v. Blue Cross & Blue Shield of Alabama, 581 So. 2d 772, note 5 (Ala.1990), the operation of the "collateral source rule" would prevent the introduction of evidence indicating that the plaintiff received insurance proceeds. However, we note that for cases filed after June 11, 1987, Ala.Code 1975, § 12-21-45, may apply. Section 12-21-45 provides:
"(a) In all civil actions where damages for any medical or hospital expenses are claimed and are legally recoverable for personal injury or death, evidence that the plaintiff's medical or hospital expenses have been or will be paid or reimbursed shall be admissible as competent evidence. In such actions upon admission of evidence respecting reimbursement or payment of medical or hospital expenses, the plaintiff shall be entitled to introduce evidence of the cost of obtaining reimbursement or payment of medical or hospital expenses.
"....
"(c) 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.
"(d) This section shall not apply to any civil action pending on June 11, 1987."
In the present case, however, neither Sheffield nor Star Freight attempted to introduce the "Release and Trust Agreement" into evidence; thus we are not presented with this issue. | September 6, 1991 |
70529338-3e1c-4e4e-bcbe-6022e1c14719 | Shoals Ford, Inc. v. Clardy | 588 So. 2d 879 | 1900828 | Alabama | Alabama Supreme Court | 588 So. 2d 879 (1991)
SHOALS FORD, INC.
v.
Maxine CLARDY, as conservator for Bobby Joe Clardy, non compos mentis.
1900828.
Supreme Court of Alabama.
October 18, 1991.
*880 Lindsey Mussleman Davis of Holt, McKenzie, Holt & Mussleman, Florence, for appellant.
Daniel E. Boone of Hill, Young & Boone, Florence, for appellee.
HOUSTON, Justice.
This Court's original opinion dated August 23, 1991, is withdrawn, and the following is substituted therefor:
Shoals Ford, Inc., appeals from a judgment based on a jury verdict in favor of Maxine Clardy, as conservator for Bobby Joe Clardy. We affirm.
Ms. Clardy sued Shoals Ford, seeking to have a transaction entered into between Shoals Ford and her husband Bobby Joe for the purchase of a 1989 Ford pickup truck set aside and to recover the monies paid by Bobby Joe to Shoals Ford, alleging that Bobby Joe suffered from a manicdepressive disorder[1] and was in a manic state when he transacted with Shoals Ford to purchase the truck and also alleging that Shoals Ford was negligent,[2] wanton, and willful in dealing with Bobby Joe. She sought compensatory damages, punitive damages, and rescission of the contract. Shoals Ford answered, asserting that it had acted without notice of Bobby Joe's incompetency, that the conservatorship proceeding was not instituted until nearly a month after Bobby Joe had purchased the truck, that the family members had been contributorily negligent in assisting Bobby Joe in purchasing the truck, and that there had been an accord and satisfaction. It amended its answer, adding the affirmative defense of estoppel and pleading "that there was no failure of consideration or undue influence taken of" Bobby Joe in his purchase of the truck and that Ms. Clardy failed to mitigate damages. Both Shoals Ford and Ms. Clardy filed motions for summary judgment, which the trial court denied. Both Shoals Ford and Ms. Clardy moved for a directed verdict, which the trial court denied. The jury returned a verdict in favor of Ms. Clardy in the amount of $6,715.02 in compensatory damages and $18,000 in punitive damages. Shoals Ford filed a motion for new trial or, in the alternative, for judgment notwithstanding the verdict, which the trial court denied. Shoals Ford appeals.
Shoals Ford contends that the evidence was insufficient to sustain the jury's verdict, because, it argues, Ms. Clardy failed to establish the elements necessary for recovery *881 in this case, specifically those elements relating to the incapacity of Bobby Joe at the time he consummated the transaction and took possession of the truck. It contends that the contract was completed, that the truck was delivered, and that Bobby Joe took possession of the truck, all on April 3, 1989, when all of the paperwork was finalized, and that, on that date, Bobby Joe was not incompetent.
Ms. Clardy contends that the evidence establishes that Bobby Joe completed the transaction on April 5, 1989, when he took actual possession of the truck, i.e., when he drove the truck off the lot, and that, on that date, he was incompetent to handle his affairs.
The well-settled law in Alabama is that contracts of insane persons are wholly and completely void. See, Williamson v. Matthews, 379 So. 2d 1245 (Ala.1980); Ala. Code 1975, § 8-1-170. In McAlister v. Deatherage, 523 So. 2d 387, 388 (Ala.1988), quoting from Weaver v. Carothers, 228 Ala. 157, 160, 153 So. 201, 202 (1934), this Court explained the cognitive (understanding) test that Alabama adopted in order to determine whether a contract can be avoided because of insanity:
"`[To] avoid a contract on the ground of insanity, it must be satisfactorily shown that the party was incapable of transacting the particular business in question. It is not enough that he was the subject of delusions not affecting the subjectmatter of the transaction, nor that he was, in other respects, mentally weak. A party cannot avoid a contract, free from fraud or undue influence, on the ground of mental incapacity, unless it can be shown that his insanity ... was of such character that he had no reasonable perception or understanding of the nature and terms of the contract.'"
Viewing the tendencies of the evidence most favorably to the prevailing party and indulging all reasonable inferences that the jury was free to draw, as required under our applicable standard of review, see Warren v. Ousley, 440 So. 2d 1034 (Ala. 1983), we find the following:
On April 1, 1989, Bobby Joe talked to Kelly Cole of Shoals Ford concerning the purchase of a truck; on that day he filled out the initial papers. By April 3, 1989, all the necessary paperwork had been completed and Bobby Joe had signed the necessary documents, but when he went to pick up the truck, he was advised that because of his poor credit rating, Shoals Ford would require a $10,500 down payment instead of the $5,000 down payment previously discussed. On April 5, 1989, Bobby Joe returned to Shoals Ford with the down payment and, at that time, picked up the truck.[3]
According to Ms. Clardy, Bobby Joe had suffered from a manic-depressive disorder for 15 years and was taking lithium to control his condition. She said that she observed in mid-March 1989 that Bobby Joe was becoming manic, but she said that because he was not violent and had not endangered himself or anyone else at that time, she could not involuntarily commit him for treatment. On April 5, 1989, Ms. Clardy received a telephone call from Leslie Clardy Daniel, Ms. Clardy and Bobby Joe's daughter ("the daughter"), concerning Bobby Joe's condition. The daughter told Ms. Clardy that Bobby Joe had threatened her and had obtained $500 from her to make the down payment on a truck he was going to buy from Shoals Ford. Subsequently, Ms. Clardy drove to Shoals Ford and noticed that the truck Bobby Joe had previously looked at, in her presence, was still on the lot. At that time she spoke with a salesperson, and she later telephoned a sales representative with Shoals Ford, concerning Bobby Joe's incompetency and asked that they not allow Bobby Joe to take the truckthat is, she told them that Bobby Joe was not working, that he was ill and would be committed, and that the truck *882 could not be insured. Thereafter, on April 5, 1989, Shoals Ford gave Bobby Joe possession of the truck after he gave it $10,000 as the down payment.[4] Ford Motor Credit Company eventually repossessed and sold the truck and mailed Ms. Clardy a check for $3,284.98, which left a balance of $6,715.02 of the $10,000 down payment unrecovered by Ms. Clardy.
According to the daughter, when Bobby Joe visited her around April 1, 1989, she tried to get him to resume taking his medicine. He became agitated and went out of control, threw his medicine into a burning pile of leaves, and then left. Around 5 A.M. on April 5, 1989, Bobby Joe returned to the daughter's house, banged on the doors and windows until he awakened the household, threatened their lives, and forced the daughter to write him a check for $500. When he left, the daughter telephoned 911 to report the incident and, as soon as the probate office opened, she telephoned the probate judge to inform him of the situation. She then went to her attorney's office, explained the situation to him, and asked that he prepare a petition to have Bobby Joe involuntarily committed for treatment. While in her attorney's office, she notified the bank to stop payment on the $500 check she had written to Bobby Joe and then called to notify Shoals Ford of Bobby Joe's mental condition, telling a representative that Bobby Joe would be coming in to purchase a truck, specifically describing the particular truck; telling the representative that Bobby Joe was not healthy; and telling the representative that she had filed a petition to have Bobby Joe involuntarily committed. She also asked Shoals Ford to call the Lauderdale County sheriff, a family member, her attorney, Riverbend Center for Mental Health, or the probate office for verification in the event Bobby Joe did appear at the dealership. She further explained to the representative that "buying sprees" was a symptom of Bobby Joe's illness, that he would not be able to make the payments, and that he was not insurable. When she notified Shoals Ford of the situation, it merely stated that if Bobby Joe had the money to purchase the truck, it was "none of her concern." Around 10 A.M. on April 5, 1989, she drove by Shoals Ford and, noticing that the truck was still there, she once again telephoned "to plead" with Shoals Ford to notify her when Bobby Joe arrived. At this time, the representative told her that "it was really not of concern to Shoals Ford."
According to Dr. Joseph W. Glaister, a local psychiatrist who had treated Bobby Joe since 1984, Bobby Joe suffered from a manic depressive illness, manic type, recurrent. Dr. Glaister testified that Bobby Joe's illness was episodic, that his competency could come and go, and that there were stages of the illness when, on mere observation, one might think that Bobby Joe was a slightly excessive, overly friendly individual. He further testified that Bobby Joe had been admitted to the hospital after regular working hours on April 5, 1989, and that when he saw Bobby Joe on April 6, 1989, Bobby Joe was incompetent. Furthermore, according to the testimony of Dr. Glaister, he could not visualize Bobby Joe being otherwise on April 5, 1989.
The daughter's attorney testified that he remembered the events of April 5, 1989, when the daughter contacted him, when he obtained a history of the events of the day, and when he prepared the commitment petition and other documents that were filed with the probate court on that morning. He stated that he did not prepare and file the petition to appoint Ms. Clardy as conservator and limited guardian for Bobby Joe until a month after the petition to commit, because Bobby Joe was hospitalized during that period of time and, in the attorney's opinion, had no opportunity to dissipate his estate.
Based on the foregoing, we hold that there was sufficient evidence to support the jury's verdict that during the period in questionfrom April 1, 1989 (when Bobby Joe began negotiations to purchase the *883 truck), to April 3, 1989 (when Shoals Ford alleges the transaction was completed), to April 5, 1989 (when Ms. Clardy alleges the transaction was completed)Bobby Joe was incompetent; that during that period of time, he was incapable of understanding and appreciating the nature, terms, and effect of the contract.
Shoals Ford also contends that the trial court erred in failing to give its requested jury charges and, following timely objection, erred in refusing to cure its errors.
In a jury case, a party is entitled to have its case tried to a jury that is given the appropriate standard by which to reach its decision, and a wrongful refusal of a requested jury charge constitutes a ground for a new trial. See, C.I.T. Financial Services, Inc. v. Bowler, 537 So. 2d 4 (Ala. 1988). An incorrect, misleading, erroneous, or prejudicial charge may form the basis for granting a new trial. See, Nunn v. Whitworth, 545 So. 2d 766 (Ala.1989). However, the refusal of a requested, written instruction, although a correct statement of the law, is not cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the trial court's oral charge. See, Rule 51, Ala.R.Civ.P. When examining a charge asserted to be erroneous, this Court looks to the entirety of the charge to see if there is reversible error. See, Grayco Resources Inc. v. Poole, 500 So. 2d 1030 (Ala.1986).
The trial court charged the jury as follows:
Shoals Ford, objecting to that charge, alleged that the statement about when possession occurred, under the facts of this case, was confusing to the jury and was clearly a misleading statement of the law and the facts in this case. It contends that from the charge, the jury was left with the impression that it was to look only at the events on April 5, 1989 (the date Bobby Joe actually drove the truck from the lot), and not at the events occurring at any previous time (i.e., without regard to the negotiations of April 1, 1989, and the completion of the paperwork on April 3, 1989, which is the date Shoals Ford alleges possession occurred because all of the paper work had then been completed).
In response to Shoals Ford's objection to this charge, the following colloquy occurred:
"The Court: Right."
From a review of the record, it is apparent, as the trial court noted, that all of the evidence presented by Shoals Ford was intended to prove to the jury that on April 3, 1989, upon completing the negotiations and filling out the necessary paperwork with *884 Bobby Joe, even though Bobby Joe had not made the full down payment and even though he did not pick up the truck, it had delivered the truck to him and he had taken possession of the truck; not on April 5, 1989, when he actually made the full down payment and drove the truck from the dealership. An argument now that the abovequoted jury charge was misleading and confusing to the jury is without merit, especially in light of the fact that the trial court did not mention any specific datesit did not mention either April 3, 1989, or April 5, 1989, as the date the jury was to consider. Furthermore, under the particular facts of this case, when considering the charge as a single entity, we cannot hold the trial court in error for so charging the jury. Rather, the trial court left the factfinding function to the jury; it simply guided the jury as to the applicable law.
We note that Shoals Ford contends that other specified charges were erroneous. However, it failed to argue those in its brief or to present legal authority to support such an argument or contention. Therefore, pursuant to Rule 29, A.R.App. P., we deem those contentions waived.
Shoals Ford also contends that the evidence is "so sparse and speculative" that it cannot justify the jury's finding of wantonness and its award of punitive damages. It bases its contention on the following argument:[5]
Whether a defendant's conduct was committed willfully, wantonly, or intentionally is a question for the jury on the issue of punitive damages (Surrency v. Harbison, 489 So. 2d 1097 (Ala.1986)), and on appeal there is a presumption of correctness as to the amount of punitive damages awarded by the trier of fact. See, Armstrong v. Roger's Outdoor Sports, Inc., 581 So. 2d 414 (Ala.1991) (a case in which this Court declared Ala.Code 1975, § 6-11-23(a), § 6-11-24(a), and the parenthetical portion of § 6-11-24(b) unconstitutional).
In Ala.Code 1975, § 6-11-20(b)(3), "wantonness" is defined as "conduct which is carried on with a reckless or conscious disregard of the rights and safety of others." In order to award punitive damages, the wanton conduct must be proven by "clear and convincing evidence," Ala.Code 1975, § 6-11-20(a), which is defined in § 6-11-20(b)(4) as follows:
The jury heard the testimony and observed the evidence presented by both Shoals Ford and Ms. Clardy. From our review of the record, and without restating *885 the facts of this case, we hold that from that testimony and from that evidence the jury could have found the wantonness on the part of Shoals Ford necessary to justify the award of punitive damages.
Shoals Ford also contends that there was an accord and satisfaction of the contract as a matter of law. The jury having properly found that the contract between Shoals Ford and Bobby Joe was void because of Bobby Joe's incompetency, there can be no accord and satisfaction; therefore, we pretermit any discussion on this issue.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED; APPLICATION OVERRULED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] Bobby Joe Clardy suffers from a mental disease known as bipolar disorder, which is more commonly called a manic-depressive disorder.
[2] Ms. Clardy subsequently withdrew the negligence count.
[3] Shoals Ford contends that the procedure it followed with Bobby Joe was what it called a "spot delivery," which is a procedure whereby a purchaser takes delivery before completing the down payment. Thus, it contends that delivery occurred on April 3, 1989, when the necessary paperwork was completed, even though Bobby Joe had not made the down payment and even though he did not actually pick up the truck at that time.
[4] Shoals Ford had increased the down payment from $5,000 to $10,500, but accepted the $10,000 amount for the down payment when Ms. Clardy and Bobby Joe's daughter stopped payment on the check the daughter says Bobby Joe forced her to write to him.
[5] We note that this constituted Shoals Ford's entire argument concerning the jury's finding of wanton conduct and its award of punitive damages. It did not argue that it had no duty to nullify the contract with Bobby Joe, absent a judicial determination of Bobby Joe's incompetence or something more definitive than the alleged phone calls from Ms. Clardy and the daughter to someone at the dealership concerning the situation, especially in light of the undisputed facts that a manic depressive's behavior is oftentimes difficult to ascertain and, as Dr. Glaister pointed out, "[there] are stages of the illness when, on mere observation, a person might think [Bobby Joe] was a slightly excessive, over-friendly individual." | October 18, 1991 |
b791b949-532a-4595-baaa-270366aca174 | DeAravjo v. Walker | 589 So. 2d 1292 | 1901333 | Alabama | Alabama Supreme Court | 589 So. 2d 1292 (1991)
Jose DeARAVJO and Frances DeAravjo
v.
Harold WALKER.
1901333.
Supreme Court of Alabama.
October 25, 1991.
*1293 Bibb Allen, Richard E. Smith and Rhonda K. Pitts of Rives & Peterson, Birmingham, and Bill Thomason, Bessemer, for appellants.
Marda W. Sydnor and Catherine L. McIntyre of Parsons, Lee & Juliano, P.C., Birmingham, for appellee.
ADAMS, Justice.
This is an appeal from a summary judgment, made final pursuant to Rule 54(b), in favor of Harold Walker, a real estate developer. We affirm.
The plaintiffs, Mr. and Mrs. Jose DeAravjo, purchased a house constructed by Langston Builders in Shelby County, Alabama. Langston Builders had purchased, for $10,000, the lot on which the house was built from Harold Walker, who had had the drainage system, the curbs, and the gutters installed prior to the sale of the lot. Following the construction of the house, it was discovered that the lot had a drainage problem that resulted in the flooding of the lot and house. As a result of damage to their property, the DeAravjos sued Langston Builders and Walker, alleging fraud based on their failure to disclose the propensity of the land to flood, and alleging breach of an implied covenant that the property was fit for the construction of a residence. The trial court entered a summary judgment in favor of Walker, holding that the doctrine of caveat emptor applied to the purchase of the lot and holding further that the DeAravjos were not in privity with Walker.
At the outset, we point out that the depositions and evidence before the court when it ruled on Walker's summary judgment motion indicate that Walker made no representations to the DeAravjos or to Langston. Walker testified in his deposition that he relied on an engineering survey and on the City of Alabaster's inspection in the construction of the drainage system, and there was no evidence offered which tended to show that Walker knew and failed to disclose that the drainage system would not adequately handle any drainage on the lot.
We reaffirm our recent holding in Morris v. Strickling, 579 So. 2d 609 (Ala. 1991), that the doctrine of caveat emptor applies with regard to the purchase of unimproved land:
Morris v. Strickling, 579 So. 2d 609, 610-11 (Ala.1991).
Furthermore, because the DeAravjos have offered nothing to indicate either that Walker was in privity with them or that Walker knew that the drainage system was inadequate for any suspected drainage problems prior to the sale of the property, we affirm the summary judgment of the trial court.
The judgment in this case is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur. | October 25, 1991 |
06ddff2c-cd10-4ac3-bc66-fc76a800e582 | Smith v. MBL Life Assur. Corp. | 589 So. 2d 691 | 1900263, 1900290 | Alabama | Alabama Supreme Court | 589 So. 2d 691 (1991)
Annie B. SMITH
v.
MBL LIFE ASSURANCE CORPORATION and Mutual Benefit Life Insurance Company.
MBL LIFE ASSURANCE CORPORATION and Mutual Benefit Life Insurance Company
v.
Annie B. SMITH.
1900263, 1900290.
Supreme Court of Alabama.
September 6, 1991.
Rehearing Denied October 4, 1991.
*693 Terrell Wynn, John W. Haley and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
Marshall Timberlake and James A. Bradford of Balch & Bingham, Birmingham, for appellees.
INGRAM, Justice.
Annie B. Smith sued MBL Life Assurance Corporation ("MBL") and its parent company, Mutual Benefit Life Insurance Company ("Mutual Benefit Life"), seeking to recover the proceeds of a $250,000 life insurance policy in which she was named as the beneficiary. Her brother, Robert D. Burchfield, was the insured under this policy. Smith asserted breach of contract, fraud, outrage, and bad faith claims against both defendants.
The trial court entered a summary judgment for the defendants on Smith's outrage claim, and the case proceeded to trial on the remaining three claims. At the conclusion of all of the testimony, the trial court directed a verdict in favor of the defendants on the bad faith claim and submitted the breach of contract claim and the fraud claim to the jury. The jury returned a verdict for Smith on both claims, assessing compensatory damages for breach of contract at $250,000 and punitive damages for fraud at $4,500,000. The trial court entered a final judgment against the defendants, after deducting $40,000 from the damages awarded by the jury, pursuant to the pro tanto settlement agreement that Smith had entered into with the defendants' soliciting agent, James R. Starnes.
Thereafter, the defendants filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, challenging the sufficiency of the evidence supporting the breach of contract claim and the fraud claim, and alleging that the punitive damages award was excessive. Pursuant to the defendants' motion, the trial court set aside its judgment and entered a judgment for the defendants notwithstanding the verdict on the fraud claim, on the ground that the jury's decision was not supported by the evidence. However, the *694 trial court entered a judgment on the jury's verdict on the breach of contract claim.
Subsequently, Smith appealed from the judgment notwithstanding the verdict on the fraud claim and from the entry of a directed verdict on the bad faith claim. The defendants cross-appealed from the trial court's denial of their motion for a directed verdict, motion for a judgment notwithstanding the verdict, and motion for a new trial on the breach of contract claim. Three issues are raised in this appeal: (1) whether there was sufficient evidence to support the finding of an insurance contract between Burchfield and the defendants; (2) whether the trial court erred in entering a judgment notwithstanding the verdict on Smith's fraud claim; and (3) whether the trial court erred in directing a verdict in favor of the defendants on Smith's bad faith claim.
The record reveals the following pertinent facts: On April 27, 1983, Burchfield met with Starnes to discuss the possibility of obtaining life insurance. At that time, Burchfield completed an application for a $250,000 "increasing premium whole life" insurance policy that was to be issued by MBL. When his application was taken, Burchfield gave Starnes a check in the amount of $73.10, made payable to "Mutual Benefit Life," to cover the first month's premium. In return, MBL, through Starnes, issued Burchfield a prepayment receipt. The prepayment receipt, which is the basis of Smith's suit, provides, in pertinent part:
"2. Conditional Insurance
"3. No Insurance if Above Conditions Not Met
On June 10, six weeks after completing the life insurance application and receiving the prepayment receipt, but prior to receiving a policy from the defendants, Burchfield died.
Prior to Burchfield's death, his application for life insurance was received by Edward Hohensee, an underwriter for the defendants. After reviewing the application and other reports regarding Burchfield, Hohensee made the decision to decline the application on behalf of MBL on June 6, 1983. Hohensee stated that his decision was based on his assessment of Burchfield's mortality risk as being beyond the underwriting standards for the insurance policy for which Burchfield had applied (i.e., beyond a 300% mortality risk factor, or an "H" rating). According to the underwriting cover sheet, Hohensee's decision to decline the application was endorsed on June 6, 1983, by Fred W. Dathe, an underwriting officer, and Henry Heise, the senior underwriting officer.
Hohensee further testified that after declining the application, but before receiving notice of Burchfield's death, he sent Burchfield's file to five reinsurance companies for "experimental underwriting." Hohensee indicated that the purpose of sending the file to these reinsurers was to determine if MBL might have somehow misjudged the file, as well as to allow the applicant a full opportunity for coverage if some form of insurance might have been *695 available. A copy of the file was forwarded to each of the reinsurers on June 14. After receiving notice of Burchfield's death, MBL received responses from each of the reinsurers. Four of the reinsurers declined to make an offer for any portion of the proposed risk. The fifth reinsurer, North American Life and Casualty, offered to participate in issuing the policy, although it would do so only at a mortality risk factor of 350% (a "J" rating), which MBL deemed unacceptable.
The final notation on the underwriting coversheet in Burchfield's file, made by Peter Krukiel, the supervising underwriter, indicates that Krukiel received a call on June 14 from Elvin Downer, manager of the defendants' claims department, who reported that Burchfield had died on June 10. The notation further states: "Noting application prepaid we should `complete' underwriting and forward policy, check to Elvin if insured or advise him if otherwise."
When Smith called Starnes to report Burchfield's death, Starnes told her that he was expecting a policy but had not yet received it. Starnes testified that on the same day that he learned of Burchfield's death, he received a note about a policy having been issued and that he would need to collect an additional premium. However, Smith testified that on July 10, she received a call from Starnes, who said that he had received a return of the $73.10 initial premium and that the defendants indicated that they could not issue a policy because of Burchfield's prior health problems. Smith refused the refund check and after an exchange of correspondence with the local agents and the defendants, she filed her action.
The first issue raised on this appeal is whether there was sufficient evidence to support the jury's finding of an insurance contract between Burchfield and the defendants. The defendants maintain that the evidence was insufficient for the jury to find that they had breached an insurance contract because, they argue, they could not, under their underwriting standards, have issued a life insurance policy to Burchfield at the time he applied.
Initially, we note that no ground for reversal is more carefully scrutinized or rigidly limited than one charging that a verdict is against the weight of the evidence. Kilcrease v. Harris, 288 Ala. 245, 259 So. 2d 797 (1972). The strong presumption of correctness of a jury verdict is strengthened by the trial court's denial of a post-judgment motion for a new trial. Christiansen v. Hall, 567 So. 2d 1338 (Ala. 1990). Therefore, we must review the tendencies of the evidence most favorably to the prevailing party and indulge all inferences that the jury was free to draw. Id. Moreover, a judgment based on a jury verdict will not be reversed unless the verdict is plainly and palpably wrong. Davis v. Ulin, 545 So. 2d 14 (Ala.1989). After reviewing the record in this case, we find ample evidence to support the jury's verdict on the breach of contract claim.
According to the terms of the prepayment receipt that Burchfield was given when the application was completed, Burchfield was entitled to have issued to him the policy that he applied for, or another policy based on the application as amended to provide for a different premium class or for the elimination or reduction of any portion or feature of the risk, if he met the underwriting standards for the policy that was to be issued. The defendants maintain that MBL could not have issued Burchfield the policy for which he applied because he did not meet the underwriting standards for that policy. They concede that Mutual Benefit Life does issue policies to individuals with mortality risk factors higher than that which they assigned to Burchfield. They did not, however, consider Burchfield for such a policy before declining his application. The defendants argue that MBL and Mutual Benefit Life are distinctly separate entities and that because Burchfield's application was made to MBL, a Mutual Benefit Life policy could not have been issued.
The record indicates that MBL is a wholly owned subsidiary of Mutual Benefit Life. The two companies share several directors, *696 and a majority of MBL's officers are also officers of Mutual Benefit Life. All of MBL's employees are paid by Mutual Benefit Life, and all of the underwriting for MBL is done by the underwriting department of Mutual Benefit Life. The home office of both companies has signs reading only "Mutual Benefit Life." The Birmingham general agent for both companies titled his agency "Mutual Benefit Life" and listed it in the telephone directory only under that name.
John Balmer, an underwriter for reinsurer North American Life and Casualty, testified that he received all of his information regarding Burchfield's application from Mutual Benefit Life and that he understood that he was dealing with Mutual Benefit Life, not MBL. Furthermore, a letter from Jack Lambdin, vice president of underwriting for Mutual Benefit Life, in which he denied that an insurance policy was in existence, was written on "Mutual Benefit Life" stationery and stated, "[W]e have determined that we could not have issued a life insurance policy." (Emphasis added.) Finally, although Burchfield made his check for the initial premium payable to "Mutual Benefit Life," it was deposited into the account of "MBL Life Assurance Corporation."
The record also reveals that Edward Hohensee, an underwriter for the defendants, admitted that no additional information would have been required of Burchfield in order for a decision to have been reached as to whether Mutual Benefit Life could issue a life insurance policy to Burchfield. Furthermore, Hohensee could not give an example of a person in a situation similar to that of Burchfield being declined insurance.
In view of the evidence presented to the jury, we find no error in the trial court's entry of a judgment based on the jury's finding that MBL and Mutual Benefit Life breached a contractual duty to issue a life insurance policy to Burchfield.
The second issue raised is whether the trial court erred in entering a judgment notwithstanding the verdict on Smith's fraud claim. Smith argues that she presented sufficient evidence to prove that the defendants intentionally lied to her about Burchfield's insurability.
In its order entering the judgment notwithstanding the verdict, the trial court noted that this was not a case in which the alleged misrepresentation occurred at the time of or before the application for the policy, thereby inducing the applicant to file the application for insurance; rather, this was a case in which the alleged misrepresentation occurred after the death of the applicant and it involved statements to the purported beneficiary as to whether there was insurance coverage.
A judgment notwithstanding the verdict is proper only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ and the moving party is entitled to a judgment as a matter of law. Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160 (Ala.1988). Whether the trial court erred in ruling on a motion for a judgment notwithstanding the verdict is tested by the purely objective standard of whether the party having the burden of proof has produced evidence requiring resolution by a jury. Ex parte Oliver, 532 So. 2d 627 (Ala.1988). On review of a judgment notwithstanding the verdict, the evidence must be reviewed in the light most favorable to the nonmoving party. Twilley v. Daubert Coated Products, Inc., 536 So. 2d 1364 (Ala.1988).
Initially, we note that the elements of actionable fraud based on a misrepresentation are: (1) a duty to speak the truth; (2) a false representation of a material existing fact made intentionally, recklessly, or innocently; (3) action by the plaintiff in reliance upon the false representation; and (4) damage proximately resulting from the false representation. Salter v. Alfa Ins. Co., 561 So. 2d 1050 (Ala. 1990). Assuming, without deciding, that Smith presented sufficient evidence of a duty by the defendants to speak the truth, *697 sufficient evidence of a false representation of a material fact, and sufficient evidence of damage resulting from the false representation, we find that she failed to present any evidence indicating that she acted in reliance upon the false representation.
The record clearly indicates that Smith neither believed nor relied upon the information communicated by the defendants when they represented to her that there was no insurance coverage on Burchfield's life. For example, in a letter to the defendants, Smith stated:
Instead of relying on the defendants' representation, Smith retained an attorney and sued to claim the existence and subsequent breach of an alleged contract.
In Jones v. Alabama Farm Bureau Mut. Cas. Ins. Co., 507 So. 2d 396 (Ala. 1986), this Court considered and rejected a fraud claim similar to that made by Smith. Jones involved a dispute between a policyholder and an insurer over whether certain property damage was covered under a homeowner's policy. After a demand by the policyholder for the policy proceeds, the insurer denied coverage and was sued by the policyholder on, inter alia, contract and fraud theories. The alleged fraud consisted of a representation made by the adjuster, after the loss, as to whether there was coverage. Noting that a fraud action requires proof of reliance and damage, as well as proof of a misrepresentation of a material fact, this Court affirmed a summary judgment in favor of the insurance company on the fraud claim:
507 So. 2d at 401.
Here, viewing the record in the light most favorable to Smith, as we are compelled to do, we find that she failed to present any evidence that she relied upon the defendants' statements that Burchfield was not insured. Therefore, we hold that the trial court correctly entered a judgment for the defendants on Smith's fraud claim, notwithstanding the jury's verdict in favor of Smith.
The third issue is whether the trial court erred in directing a verdict in favor of the defendants on Smith's bad faith claim. Smith argues that she made a prima facie showing that the defendants acted in bad faith in refusing to pay to her, as beneficiary, the proceeds of Burchfield's life insurance policy. Smith urges this Court to reverse the trial court's judgment on her bad faith cause of action. Curiously, Smith also insists that, because of the alleged presence of bad faith, the jury's award of punitive damages on her fraud claim may be upheld without the necessity of a new trial, in spite of the trial court's entry of a judgment notwithstanding the verdict on that claim.
In National Sec. Fire & Cas. Co. v. Bowen, 417 So. 2d 179 (Ala.1982), this Court set out the elements of the tort of bad faith:
Id. at 183. (Emphasis in original.)
In a typical case, the plaintiff, in order to make out a prima facie case of bad faith refusal to pay an insurance claim, must offer proof to show that the plaintiff is entitled to a directed verdict on the contract claim and, thus, is entitled to recover on the contract claim as a matter of law. National Sav. Life Ins. Co. v. Dutton, 419 So. 2d 1357 (Ala.1982). Ordinarily, if the evidence produced by either side creates a fact issue with regard to the validity of the contract claim, the bad faith claim must fail and should not be submitted to the jury. Id. If any one of the reasons for the denial of coverage is at least "arguable," this Court has stated that it need not "look any further, and a claim for bad faith refusal to pay the claim will not lie." Alfa Mutual Ins. Co. v. Smith, 540 So. 2d 691, 695 (Ala. 1988), quoting McLaughlin v. Alabama Farm Bureau Mut. Cas. Ins. Co., 437 So. 2d 86, 91 (Ala.1983).
However, as this Court has previously recognized, there are exceptions to the "directed verdict on the contract claim standard." See Safeco Ins. Co. v. Sims, 435 So. 2d 1219 (Ala.1983). In our recent opinion in Ex parte Blue Cross & Blue Shield of Alabama, 590 So. 2d 270 (Ala. 1991), Justice Houston carefully analyzed each of this Court's prior cases wherein extraordinary circumstances were held to exist so as to circumvent the applicability of the "directed verdict on the contract claim standard." However, after carefully considering those holdings, we find each to be based on facts distinguishable from the facts presented in this case.
For example, in Thomas v. Principal Financial Group, 566 So. 2d 735 (Ala.1990), which was discussed in Blue Cross and which was cited by Smith as being "just like" the present case, this Court noted that there was evidence that the defendant failed to examine medical records; that evidence allowed the inference that there had been an intentional failure to determine whether there was a lawful basis for denying the claim. Here, however, the underwriters at MBL made a detailed review of the application, medical records, and file and then duly declined the application as presenting a risk beyond its underwriting standards. The dispute in the present case centers on whether, under the language contained in the prepayment receipt, the defendants were under a duty to consider Burchfield for any policies that could be issued by Mutual Benefit Life. Therefore, in this case, as in a typical case, Smith, in order to be entitled to have her bad faith claim presented to the jury, must first have been able to prove that she was entitled to a directed verdict on her contract claim. This she could not do.
Here, the defendants presented an arguable and legitimate reason for denying Smith's claim as beneficiary of an insurance policy on Burchfield's life. The record clearly reveals a genuine issue of material fact regarding whether an insurance contract existed between Burchfield and the defendants.
As noted above, Burchfield applied to MBL for a life insurance policy. In return he was given a prepayment receipt specifying his contractual right to the policy that he applied for or, if he did not qualify for that policy, his right to any policy for which he did qualify.
After reviewing Burchfield's application and medical records, underwriters for MBL reached the conclusion that Burchfield did not qualify for any policy marketed by MBL and made the decision to decline the application. However, the defendants made the decision to decline the application without considering whether Burchfield met the underwriting standards for any of the policies marketed by MBL's parent company, Mutual Benefit Life. The defendants maintained that they could not have *699 issued a Mutual Benefit Life policy to Burchfield because, they argue, MBL and Mutual Benefit Life are separate and distinct entities and Burchfield made application only to MBL. The positions taken by Smith and the defendants created a question of fact regarding the interpretation of the terms of the prepayment receipt, thus precluding a directed verdict for Smith on her breach of contract claim. Because Smith was not entitled to a directed verdict on her breach of contract claim, and because she did not fit into the narrow exceptions prescribed in Blue Cross or Thomas, the trial court properly determined that Smith, as a matter of law, was not entitled to recover on her bad faith claim. Therefore, we hold that the trial court correctly directed a verdict for the defendants with regard to Smith's claim of bad faith.
The judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS, HOUSTON and STEAGALL, JJ., concur. | September 6, 1991 |
7dd3ba00-8fa5-4b28-bed2-ba2fb8b90c1c | McIsaac v. Monte Carlo Club, Inc. | 587 So. 2d 320 | 1900714 | Alabama | Alabama Supreme Court | 587 So. 2d 320 (1991)
Sheila McISAAC and John Paul Howard
v.
MONTE CARLO CLUB, INC., et al.
1900714.
Supreme Court of Alabama.
September 20, 1991.
*321 John W. Parker and L. Bratton Rainey III, Mobile, for appellants.
M. Lloyd Roebuck of Kilborn & Roebuck, Mobile, for appellees.
MADDOX, Justice.
This is a case of first impression, involving the application of Alabama's Dram Shop Act (Ala.Code 1975, § 6-5-71), and an Alcoholic Beverage Control Board regulation prohibiting a licensee from selling intoxicating liquor to one who is visibly intoxicated.[1] The specific issue presented is whether a person who allegedly participated in drinking that led to the intoxication of another can recover damages under the provisions of the Act for injuries incurred in an accident allegedly caused by the intoxication of the other person.
Plaintiff John Paul Howard was 21 years old at the time of the accident. Plaintiff Sheila McIsaac, his mother, claimed to have been injured in person, property, or means of support on account of her son's injuries. Howard and his mother sued the Monte Carlo Club, Franco Sebasianelli, and Lamar Boutwell, pursuant to the provisions of the Alabama Dram Shop Act, § 6-5-71, Ala. Code 1975, and in the complaint, as last amended, alleged various common law causes of action and violation of the Dram Shop Act; they alleged that the defendants had sold Donnie Frank Sellers intoxicating liquor while he was already visibly intoxicated, that is, contrary to law, and that as a proximate result thereof, Howard had suffered bodily injuries.
The defendants answered the complaint and subsequently filed a motion for summary judgment on the ground that the evidence showed that Howard was in complicity with the intoxicated person, and, therefore, was barred from any recovery. The trial court granted the motion, holding that the doctrine of complicity was applicable. The propriety of that judgment is the question presented on this appeal.
The evidence introduced in support of the motion for summary judgment, and that introduced in opposition thereto, indicate that on July 8, 1989, Sellers and Howard, went to the Monte Carlo Club, a lounge in the City of Mobile, at approximately 12:30 a.m. While they were in the Club, Sellers spent between $80.00 and $100.00 on the purchase of liquor for his consumption. Sellers and Howard left the Club at approximately 3:30 a.m., with Sellers operating his automobile. Howard was a passenger.
Shortly thereafter, a police officer pulled alongside Sellers and directed him to pull off the road. After stopping in a parking lot pursuant to the officer's instructions, Sellers sped off. The evidence is disputed regarding all that took place while the car was stopped. The defendants contend that the evidence shows that Howard participated in the decision to leave the scene. In any event, the police officer chased Sellers, who, according to the evidence, reached a speed in excess of 100 mph. During the chase, Sellers failed to make a turn and ran off the road, and in the ensuing accident Howard suffered severe injuries.
In entering a summary judgment for the defendants, the trial court made the following conclusions of law:
As we understand the doctrine of complicity, it precludes recovery for a plaintiff who willingly participated to a material and substantial extent in the drinking that led to the inebriate's intoxication. Sterenberg v. Sir Loin, Inc., 183 Ill.App.3d 631, 131 Ill.Dec. 941, 539 N.E.2d 294 (1989). Complicity, as noted by the trial court, has its genesis in judicial decisions. Nelson v. Araiza, 69 Ill. 2d 534, 538, 14 Ill.Dec. 441, 442, 372 N.E.2d 637, 638 (1978). It is based on the premise that one who is guilty of complicity in the inebriate's intoxication should not be allowed to recover under the Dram Shop Act. Id. Allowing the plaintiff to recover would undermine the purpose of the Actcontrolling abuses of the liquor trade. Id.
There seems to be a split among the jurisdictions that have considered the doctrine of complicity as to whether particular conduct shows, as a matter of law, such participation in the drinking by the person injured as to bar that person's recovery. See, Annot., "Third Person's Participating in or Encouraging Drinking as Barring Him From Recovering Under Civil Damages or Similar Acts," 26 A.L.R.3d 1112 (1965).
One of the jurisdictions adopting the doctrine of complicity based its decision on the fact that the legislation of the state consistently reflected efforts to narrow the liability of Dram Shop owners. See Nelson, 69 Ill. 2d 534, 14 Ill.Dec. 441, 372 N.E.2d 637. Another court determined the statute to be only remedial in nature, serving no purpose in deterring the sale of liquor to an intoxicated patron. Craig v. Larson, 432 Mich. 346, 355-57, 439 N.W.2d 899, 903 (1989).
Howard argues that this Court should not interpret Alabama's Dram Shop Act to permit the doctrine of complicity to bar a recovery. In his brief, he states:
Howard also states that prior Alabama cases construing the Dram Shop Act show that "the Alabama legislature had the specific purpose and intent, in adopting the act, to deter drunk driving," and that "[i]n an effort to accomplish this objective, the Alabama legislature has imposed liability upon the bar owner for any injury caused by the serving of liquor to persons already intoxicated and then placing them on the public roads of Alabama." He, therefore, contends that this State has adopted the view adopted in Connecticut (Passini v. Decker, 39 Conn.Sup. 20, 467 A.2d 442 (1983)), North Dakota (Aanenson v. Bastien, 438 N.W.2d 151 (N.D.1989)), and Florida (Booth v. Abbey Road Beef & Booze, Inc., 532 So. 2d 1288 (Fla.Dist.Ct.App. 1988)).
We have examined cases from other jurisdictions to see how other courts have interpreted the civil damages statutes in those jurisdictions, especially relating to the defenses that may be interposed. After having examined those cases, we find that the jurisdictions that have considered the question of the defenses available to a dram shop or tavern operator are not in agreement on whether an injured person's own negligence, complicity, or assumption of risk will bar recovery. Annot., "Contributory Negligence Allegedly Contributing to Cause of Injury as Defense in Civil Damage Act Proceeding," 64 A.L.R.3d 849 (1975); cf. Zucker v. Vogt, 329 F.2d 426 (2d Cir.1964) (Federal court, construing Connecticut law, held that contributory negligence was not a defense); see also, Sanders v. Officers Club of Connecticut, 196 Conn. 341, 493 A.2d 184 (1985); contra, Powers v. Niagara Mohawk Power Corp., 132 Misc.2d 123, 503 N.Y.S.2d 516 (N.Y.Sup.Ct.1986); Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982); Martin v. Heddinger, 373 N.W.2d 486 (Iowa 1985).
In determining the intent of the legislature, of course, we need not necessarily go to other jurisdictions, because this Court, in several prior cases, has examined the intent of the legislature in adopting the Dram Shop Act. In Martin v. Watts, 513 So. 2d 958, 961 (Ala.1987), this Court appended to its opinion a detailed history of the Act that had been written by the trial judge in that case. In Martin v. Watts, this Court held that intent is determined from the language of the Act, unless the language is ambiguous or leads to a result that the legislature could not have intended. The original legislative Act granting a right of action to a person injured in consequence of the illegal sale or disposition of intoxicating liquor or beverages was adopted by the legislature in 1909. See Ward v. Rhodes, Hammonds, & Beck, Inc., 511 So. 2d 159, 161 (Ala.1987). This Court, commenting on the intent and purpose of the 1909 Act in Webb v. French, 228 Ala. 43, 44-45, 152 So. 215, 216-17, (1934), stated the following: "This act, one of the companion prohibition bills of that special session, covers more than thirty pages, and broadly speaking, may be deemed a prohibition enforcement measure." Id. (emphasis added). "`The object of the early act was to correct the evils resulting from intemperate indulgence in intoxicating liquors, such as impoverishment of families, injuries to others, and the creation of public burdens.'" James v. *324 Brewton Motel Management, Inc., 570 So. 2d 1225, 1229 (Ala.1990), citing Matalavage v. Sadler, 77 A.D.2d 39, 432 N.Y.S.2d 103 (1980).
We conclude, based on these prior interpretations, that § 6-5-71 is penal in nature and that its purpose is to punish the owners of taverns who continue to serve customers after they have become intoxicated. The legislature intended to stop or to deter drunken driving facilitated by bar owners, in order to protect the public at large from tortious conduct committed by any intoxicated person who was served liquor by a bar owner while in an intoxicated condition. A right of action under § 6-5-71 runs in favor of two classes of persons; "(1) The person injured in person or property, [and] (2) [the] wife, child, parent, or other person ... who has been injured through loss of means of support because of personal injury to the person furnishing the means of support." Ward, 511 So. 2d at 161. The phrase "other person" constitutes a second class of claimants that encompasses "anyone who is proximately `injured in person, property or means of support by any intoxicated person or in consequence of the intoxication of any person.' And ... this category of plaintiffs is as broad as proof of proximate cause will permit." James, 570 So. 2d at 1229 (quoting Ward, 511 So.2d at 164). This Court has interpreted § 6-5-71 to encompass a broad spectrum of plaintiffs and will not now start limiting them to "innocent" parties alone. Consequently, we hold that the statute creates a strict liability[3] in favor of those persons covered under its provisions and authorizes those persons to maintain an action without regard to complicity or contributory negligence. To allow a plaintiff's contributory negligence or participation in the drinking to bar the plaintiff's recovery would be contrary to the purpose of the Dram Shop Act, as interpreted in prior cases decided by this Court. Cf. Dennis v. American Honda Motor Co., 585 So. 2d 1336 (Ala.1991), in which the Court held that contributory negligence was not a defense to an AMELD action, but did preserve the right of a defendant to plead assumption of risk or misuse of the product as a defense.
Although we hold that the Act creates strict liability in case of its violation, and that the defenses of complicity and contributory negligence are not available, we nevertheless hold that a defendant can raise as a defense that the injured party assumed the risk of injury, if the facts would support such a defense.
The assumption of the risk defense is not based on the plaintiff's fault or negligent conduct. See Kelton v. Gulf States Steel, Inc., 575 So. 2d 1054, 1055 (Ala.1991); Kemp v. Jackson, 274 Ala. 29, 145 So. 2d 187 (1962). The plaintiff must know that a risk is present and must understand its nature. See Kelton, 575 So. 2d at 1055; Employers Casualty Co. v. Hagendorfer, 393 So. 2d 999 (Ala.1981). His choice to incur the risk must be free and voluntary. See Kelton, 575 So. 2d at 1055; Kemp, 274 Ala. 29, 145 So. 2d 187, 194-95. Admittedly, assumption of the risk, contributory negligence, and complicity are related doctrines; however, saying that is a far cry from saying the terms are interchangeable, or even that in general they mean the same thing.
Assumption of the risk proceeds from the injured person's actual awareness of the risk. Id. Contributory negligence, however, stems from the fact that the injured person contributed to the creation of the risk. See Kemp, 274 Ala. at 37, 145 So. 2d at 195. Furthermore, with assumption of the risk the plaintiff's state of mind is determined by the subjective standard, whereas with contributory negligence the court uses the objective standard. Prosser and Keeton on Torts, § 68 at 495 (5th ed.1984). The factfinder looks at whether the plaintiff knew of the risk, not whether *325 he should have known of it. Kemp, 274 Ala. at 37, 145 So. 2d at 194.
At first glance, assumption of the risk and complicity appear to be similar in character. However, the two theories differ. Assumption of the risk is based on the concept that the plaintiff "knowingly assented" to the risk, id., whereas complicity is merely a "matter of involvement". Martin v. Heddinger, 373 N.W.2d 486, 489 (Iowa 1985). The doctrine of complicity focuses on preventing a person who participates in the drinking from recovering because that person is not innocent and is not entitled to protection under the Dram Shop Act. Berge v. Harris, 170 N.W.2d 621, 625 (Iowa 1969). The legislature, in adopting the Dram Shop Act, was interested in protecting those persons authorized therein to sue from the evils of liquor, innocent or otherwise. Assumption of the risk disregards a party's innocence or fault and focuses on whether he knew that there was a risk involved.
Based on the foregoing, we hold that the trial court erroneously granted the defendants' motion for summary judgment based upon the doctrine of complicity. The judgment of the court, therefore, is reversed as to Howard's claim and the cause is remanded to the trial court for further proceedings consistent with this opinion.
The next issue is whether Sheila McIsaac, Howard's mother, may recover under § 6-5-71 as a "parent ... who [is] injured in person, property or means of support by any intoxicated person or in consequence of the intoxication of any person." Ala.Code 1975, § 6-5-71. Howard, an adult, testified in his deposition that he had not lived at home for some time. Furthermore, he claimed that he was not a dependent, because he had a job with American Mobile Phone Company at the time of the accident.
McIsaac alleged in the complaint that she expended various sums of money on Howard as a result of the defendants' alleged violation of the Dram Shop Act; however, there was no evidence before the trial court to support her allegation. Upon filing their motion for summary judgment, the defendants produced evidence, through deposition excerpts, that there existed no genuine issue of material fact as to McIsaac's claims. Subsequently, the burden shifted to McIsaac to show, by admissible evidence, a genuine issue of material fact. Bridgeway Communications, Inc. v. Trio Broadcasting, Inc., 562 So. 2d 222 (Ala. 1990).
McIsaac failed to meet this burden in the trial court, and it is now too late for her to prove her allegations before this Court. This Court concludes that McIsaac presented no substantial evidence that she had been injured in "person, property, or means of support," as required by the Act. We affirm the summary judgment as to Sheila McIsaac.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and ADAMS, KENNEDY and INGRAM, JJ., concur.
HOUSTON, J., concurs in part and dissents in part.
STEAGALL, J., concurs in the result.
HOUSTON, Justice (concurring in part and dissenting in part).
I agree with the majority in its affirmance of the summary judgment against Sheila McIsaac's claim, but I dissent from the majority's reversal as to John Paul Howard's claim.
I agree with Judge Robert G. Kendall, the trial judge, that the doctrine of complicity is a judicially created exception to liability under the Dram Shop Act and that it should be adopted in Alabama. The doctrine of complicity is also referred to as the "non-innocent party doctrine" in Craig v. Larson, 432 Mich. 346, 439 N.W.2d 899 (1989). We have applied this doctrine, without naming it, by holding that "the intoxicated person is not a protected party under the Act" in regard to his injuries sustained as a result of his intoxication (Weeks v. Princeton's, 570 So. 2d 1232, 1233 (Ala.1990); Maples v. Chinese Palace, Inc., *326 389 So. 2d 120 (Ala.1980)), even though the statute purports to provide a remedy for "[e]very ... person who shall be injured in person ... by any intoxicated person or in consequence of the intoxication of any person" (emphasis added); and we have interpreted the statutory term "other person... injured" to include a category of plaintiffs "as broad as proof of proximate cause will permit." Ward v. Rhodes, Hammonds, & Beck, Inc., 511 So. 2d 159, 164 (Ala.1987); James v. Brewton Motel Management, Inc., 570 So. 2d 1225 (Ala. 1990); Parker v. Miller Brewing Co., 560 So. 2d 1030 (Ala.1990).
The doctrine of complicity, just like assumption of the risk, may involve a factual determination to be made by the trier of fact; however, in this case, viewing the evidence in the light most favorable to the nonmovant, the plaintiff, Howard, I would hold that Howard's claim is barred as a matter of law by the doctrines of complicity and assumption of the risk.
Howard telephoned Sellers so that the two of them could go out "just to drink." They each had two Wild Turkey "bourbons on the rocks" at a lounge referred to in the record and one of the briefs as "Adams." They then went to the Monte Carlo Club, where they continued to drink. Plaintiff, Howard, had 10 to 12 drinks; Sellers said he could not remember how many drinks he had, but he spent between $80 and $100 while at the Monte Carlo Club. They left the Monte Carlo Club between 3:00 a.m. and 3:30 a.m. and headed for a friend's apartment. They were pulled over by a policeman; however, because the policeman did not get out of his car, they "took off." Howard knew that he was participating in a criminal offense at the time he and Sellers decided to run from the policeman. Howard acted as a "lookout" while Sellers was operating the vehicle at a high rate of speed. Sellers failed to make a turn and ran off the road. After the accident, Howard and Sellers continued to flee from the police by sneaking throughout the neighborhood to find a telephone booth from which to call a friend to come get them. If Sellers cannot recover from the Monte Carlo Club, from which the intoxicating beverages were purchased (and we have held that he cannot, Weeks v. Princeton's supra), then Howard should not be permitted to do so, under the doctrine of complicity of "non-innocent party."
I would affirm the judgment of the trial court in its entirety and I compliment Judge KENDALL on his well-reasoned and well-written order.
[1] Ala.Code 1975, § 6-5-71, provides in pertinent part:
"(a) Every wife, child, parent or other person who shall be injured in person, property or means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall by selling, giving or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages."
The Alabama Alcoholic Beverage Control Board's regulation No. 20-X-6-.02(4), promulgated pursuant to § 28-3-49, makes it unlawful for an on-premises licensee to serve alcoholic beverages to any person who appears to be intoxicated.
[2] The defendants do rely upon Craig v. Larson, 432 Mich. 346, 439 N.W.2d 899 (1989) to support the judgment of the trial court. In Craig, as the plaintiffs point out, the court held, in part, that "the legislative history of the act reflects repeated efforts by the legislature to narrow the liability of Dram Shop owners [and that legislative amendments had] consistently limited, not expanded, Dram Shop liability."
[3] In Espey v. Convenience Marketers, 578 So. 2d 1221, 1232 (Ala.1991), this Court used an example of a legal sale of intoxicating liquor that was then given or sold to a minor, for instance, and said that liability would not be imposed, because "[s]uch a holding would for all practical purposes impose strict liability on retailers of alcohol." That statement, made in connection with the example used, should be read in the context in which it was used, and not otherwise. | September 20, 1991 |
d4a4740b-48ad-473b-a020-270af94a153b | Bowden v. E. Ray Watson Co., Inc. | 587 So. 2d 944 | 1900597 | Alabama | Alabama Supreme Court | 587 So. 2d 944 (1991)
J.B. BOWDEN and Metta Bowden
v.
E. RAY WATSON COMPANY, INC.
1900597.
Supreme Court of Alabama.
August 30, 1991.
*945 Larry C. Jarrell, Troy, for appellants.
Wade H. Baxley of Ramsey, Baxley, McDougle & Collier, Dothan, for appellee.
INGRAM, Justice.
The plaintiffs, J.B. Bowden and his wife, Metta Bowden, appeal from the denial of a new trial following a jury verdict in favor of the defendant, E. Ray Watson Company, Inc. ("Watson"), in their action alleging negligence and wantonness[1] on the part of the defendant in the operation of a tractor-trailer.
The jury heard testimony that on April 2, 1989, a tractor-trailer, after experiencing a "blowout" to the left steering tire, crashed into the Bowdens' home, resulting in damage to the home and other property owned by the Bowdens. The tractor-trailer was driven by an independent driver, Billy Ray Hill. Watson leased the tractor from Alice Wyatt. Watson owned the trailer that the tractor was pulling.
At trial, the jury returned a verdict in favor of Watson. The trial court entered a judgment for Watson, after which the Bowdens filed a motion for JNOV or, in the alternative, a new trial on the grounds that the verdict was contrary to law and was against the great weight of the evidence. The trial court denied that motion.
Unless a jury verdict is unsupported by the evidence or is against the weight of the evidence, so as to be palpably wrong and manifestly unjust, a judgment based upon that verdict, which was sustained by the trial court's refusal to grant a motion for a new trial, will not be reversed on either an "insufficiency of the evidence" ground or on a "weight of the evidence" ground. Cloverleaf Plaza, Inc. v. Cooper & Co., 565 So. 2d 1147 (Ala.1990). "`A jury verdict is presumed correct, and no ground for a new trial is more carefully scrutinized or more rigidly limited than an assertion that a jury verdict is against the weight of the evidence.'" Id.at 1149 (quoting Hallman v. Summerville, 495 So. 2d 626-27 (Ala.1986)).
The Bowdens argue that although the tractor was not owned by Watson, Watson voluntarily "assumed a duty to protect the general public from harm from the operation of its trucking operation when it set up a safety department, began actively inspecting the trucks, and made decisions regarding whether or not a truck was roadworthy (regardless of who the actual owner of the truck was, and regardless of any contractual obligation, of the owner of the truck, to maintain his truck in a safe condition)."
In support of their argument that Watson breached its assumed duty of inspection, the Bowdens point to the testimony of Watson's former safety director, Terri Ford, who testified that after inspecting the tires on the tractor on April 1, 1989, she made a written report recommending that the two steering tires be replaced. The Bowdens also point to the testimony of E. Ray Watson, president of E. Ray Watson Company, Inc., who testified that a dispatcher for Watson, with knowledge of *946 Ford's report, allowed the tractor to leave the "yard" without replacing the tires. Last, the Bowdens argue that Watson's negligence in failing to replace the tires is conclusively established by the fact that Watson, on its own initiative, reimbursed Alfa Insurance Company for the claims paid to the Bowdens arising out of the accident.
Conversely, Watson contends that the testimony the Bowdens rely upon was contradicted by testimony and other evidence presented at trial; e.g., the driver of the tractor-trailer, Billy Ray Hill, testified that it was ultimately his choice to drive the tractor-truck, Ford's report notwithstanding. The equipment contract between Alice Wyatt, as owner of the tractor-truck, and Watson, as lessee of the tractor, clearly stated that Wyatt was responsible for furnishing "all equipment and supplies, including fuel, oil, [and] tires."
In order to prove a claim of negligence, a plaintiff must establish a breach of a duty owed by the defendant to the plaintiff and must establish that the breach proximately caused damage to the plaintiff. Thompson v. Lee, 439 So. 2d 113 (Ala.1983).
Alabama clearly recognizes the doctrine that one who acts on his own volition, although under no duty to act, is thereafter charged with the duty of acting with reasonable care and is liable for harm caused by failing to so act. Osborn v. Brown, 361 So. 2d 82 (Ala.1978). The question of whether one voluntarily assumed a duty through affirmative conduct is a matter to be determined in light of all the facts and circumstances. Parker v. Thyssen Mining Const., Inc., 428 So. 2d 615 (Ala. 1983).
Factual disputes are to be resolved by the trier of fact. In the instant case, the jury was entitled to infer from the totality of the evidence that Watson was not guilty of any negligence that proximately caused the tractor-trailer to crash into the Bowden home. As this Court has observed:
Cloverleaf, supra, at 1149 (quoting Herrington v. Hudson, 262 Ala. 510, 514, 80 So. 2d 519, 522 (1955)).
In summary, we note that the evidence was such that a reasonable jury could have gone either way; however, the jury returned a verdict in favor of Watson, and this Court is unable to discern any reason to disturb the judgment entered thereon.
Accordingly, the judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS and STEAGALL, JJ., concur.
[1] At the close of the plaintiffs' case, the trial court granted the defendant's motion for a directed verdict on the wantonness count; no issue is raised on appeal concerning that directed verdict. | August 30, 1991 |
a2b08eec-f9a5-42e3-ba78-475789f54394 | Clark v. Container Corp. of America, Inc. | 589 So. 2d 184 | 1900325 | Alabama | Alabama Supreme Court | 589 So. 2d 184 (1991)
Billy Ray CLARK and Halliburton Industrial Services Division
v.
CONTAINER CORPORATION OF AMERICA, INC.
1900325.
Supreme Court of Alabama.
September 27, 1991.
*185 Richard H. Taylor and Robert J. Hedge of Jackson & Taylor, P.C., Mobile, for appellants.
Carroll H. Sullivan of Clark, Scott & Sullivan, Mobile, for appellee.
Richard W. Vollmer III of Reams, Vollmer, Phillips, Killion, Brooks & Schell, P.C., Mobile, for intervenor.
Forrest S. Latta of Pierce, Carr & Alford, Mobile, for amicus curiae Alabama Defense Lawyers Ass'n.
Matthew C. McDonald of Miller, Hamilton, Snider & Odom, Mobile, for amicus curiae Alabama Civ. Justice Reform Committee.
HOUSTON, Justice.
The following question was certified to this Court by the United States District Court for the Southern District of Alabama:
We assume that the phrasing of the question was intended as a guide and that it was not meant to restrict our consideration only to the constitutionality of Ala. Code 1975, § 6-11-3, but was intended to extend to all portions of Article I ("Structured Damages") of Chapter 11, of Title 6 (§§ 6-11-1 through 6-11-7).
Billy Ray Clark's claim arose out of an "injury done him in his ... person," while operating high pressure cleaning equipment for his employer, Halliburton Industrial Services Division ("Halliburton"). Halliburton had been engaged by Container Corporation of America, Inc. ("Container"), to perform industrial cleaning services at a Container facility. Clark was performing these services at the time he sustained his injury. The jury returned a verdict against Container in the amount of $822,600 in the United States District Court for the Southern District of Alabama, Southern Division. Of the total sum awarded, it is only the amount awarded for lost future wages ($289,800) that is in any way involved in this certified question,[1] because Container filed a post-trial motion requesting the court to structure the award of future damages in accordance with Ala.Code 1975, §§ 6-11-1 through 6-11-7, particularly § 6-11-3. The parties have stipulated as to the applicability of these statutes to this case. Clark, however, objected to the application of § 6-11-3 as violating four constitutional provisionsArticle I, §§ 6, 11, and 13, and Article III, § 42.
Alabama Code 1975, § 6-11-3, provides:
Article I, § 11, of the Constitution provides:
This is not the only place within the declaration of rights (Art. I, §§ 1-36) that the word "inviolate" is used. In § 36, the following appears:
(Emphasis added.)
"Inviolate" is defined in Black's Law Dictionary 826 (6th ed. 1990) as "Intact; not violated; free from substantial impairment."
Insofar as legislative power is concerned, § 11 of the Constitution has never been interpreted by this Court or the Courts of *188 Appeals of Alabama as doing more than restricting the legislature from denying or impairing the fundamental requisites of a jury, which are that the jury be composed of 12 persons, that they be impartial, and that their verdict be unanimous (Kirk v. State, 247 Ala. 43, 22 So. 2d 431 (1945); Baader v. State, 201 Ala. 76, 77 So. 370 (1917); Culbert v. State, 52 Ala.App. 167, 290 So. 2d 235 (1974); Brown v. State, 45 Ala.App. 391, 231 So. 2d 167 (1970); Dixon v. State, 27 Ala.App. 64, 167 So. 340 (1936), cert. denied, 232 Ala. 150, 167 So. 349 (1936); Judge Walter B. Jones, Trial by Jury in Alabama, 8 Ala.L.Rev. 274, 277 (1956); 16 Ruling Case Law 181 (1917)), in all cases in which the right of trial by jury existed at common law and in all cases where the right of trial by jury was secured by statute at the time the Alabama Constitution of 1901 was ratified.[2]Gilbreath v. Wallace, 292 Ala. 267, 292 So. 2d 651 (1974); Alford v. State ex rel. Attorney General, 170 Ala. 178, 54 So. 213 (1910); Tims v. State, 26 Ala. 165 (1855).
In Baader v. State, 201 Ala. at 77-78, 77 So. at 371-72, Justice Thomas wrote for this unanimous Court:
Judge Walter B. Jones, Trial by Jury in Alabama, 8 Ala.L.Rev. at 277 (1956), wrote:
Judge Cates, writing for the Court of Criminal Appeals in Brown v. State, 45 Ala.App. at 393, 231 So. 2d at 169, wrote: "All that the Constitution requires of a jury is that it be impartial, duodecimal and unanimous."
It is obvious from the proceedings of the Constitutional Convention of 1901 that the requirements that a jury's verdict be unanimous and that the number of jurors be 12 were set in stone by §§ 11 and 36 and were to remain free from encroachment by any department of government. See Official Proceedings, Constitutional Convention of 1901, Vol. 2, pp. 1677-1727. During the convention, a minority report sought to change what is now § 11 to: "The right of trial by jury as heretofore enjoyed, shall remain inviolate; but in civil actions three-fourths of the jury may render a verdict." This proposal was defeated by 81 votes to 29 votes. The number 12[3] was clearly not *189 to be violated, for the last delegate to speak before the vote at which the minority report was defeated, stated:
Official Proceedings, at 1723.
As for impartiality, that ideal, along with the ideal that a jury be composed of competent members, suffered in the debate, for, to support the amendment, there were allegations "that bribery stalks at noon time and sitteth in the courthouse in the evening hour." Id. at 1719. To oppose the amendment, there was the allegation that "[n]ine times out of ten you cannot get over three smart men on the jury on an average in this State. You know that is a fact." Id. at 1704.
Justice Jones, for a unanimous Court, wrote in Gilbreath v. Wallace, 292 Ala. at 271, 292 So. 2d at 655, "In Alabama the basic principles which apply to constitutional juries in criminal cases also apply in civil cases."
Query: The Constitution requires a 12-person, impartial jury that unanimously does what?
There is apparent in the Official Proceedings, Constitutional Convention of 1901, supra, an implicit understanding that a jury must function as a factfinder, for why would there be concern about whether the 12 persons were in complete agreement or accord, if it were not on the resolution of the facts necessary to determine guilt or innocence or to determine whether the plaintiff or the defendant prevails?
Section 6.11 of Amendment 328 to the Constitution, which was proclaimed ratified on December 27, 1973 (Proclamation Register No. 3, p. 32), provides:
(Emphasis added.)
There is some disagreement among the Justices on this Court as to what it is that the term "[t]hese rules" in the last sentence of § 6.11 does apply (see the per curiam opinion and the dissenting opinion of Houston, J., in Armstrong v. Roger's Outdoor Sports, Inc., 581 So.2d *190 414 (Ala.1991)); however, all Justices agree that the words "[t]hese rules" in the last sentence of § 6.11 clearly do not refer to the proviso addressing the right to trial by jury that precedes them and therefore do not empower the legislative department to change the right of trial by jury "by a general act of statewide application." The word "rule," as a noun, is defined as "[a]n established standard, guide, or regulation. Prescribed guide for conduct or action, regulation or principle [citation omitted]. A principle or regulation set up by authority, prescribing or directing action or forbearance; as, the rules of a legislative body, of a company, court, public office, of the law, of ethics." Black's Law Dictionary 1331 (6th ed. 1990). As a noun, the word "right" denotes "a power, privilege, faculty, or demand, inherent in one person and incident upon another"; and, giving the word a juristic content, "a `right' is well defined as `a capacity residing in one man of controlling, with the assent and assistance of the state, the actions of others.'" Black's Law Dictionary 1324 (6th ed. 1990).[4]
*191 When writing of the right to trial by jury there is, on one hand, a tendency to overwrite, to be too expansive of the right: to use "encomiums" and "panegyrics" (Alford v. State ex rel. Attorney General, 170 Ala. 178, 183-220, 54 So. 213, 214-25 (1910) (Mayfield, J., dissenting)); and, to use words unduly restricting any change in the jury system, such as "forbid[ding] the State through the legislative, judicial, or executive departmentone or allfrom ever burdening, disturbing, qualifying, or tampering with this right" (Gilbreath v. Wallace, 292 Ala. at 271, 292 So.2d at 651); and "never ... judicially abolish, curtail, or diminish ... the right" (Jawad, supra). On the other hand, there is the tendency to underwrite, to be unduly restrictive of the right: "Legislative regulations do not infringe our constitutional provision that the right to trial by jury shall remain inviolate so long as the essential elements of number, impartiality, and unanimity are preserved." Jones, 8 Ala.L.Rev. at 277; Baader v. State, supra; Brown v. State, supra.
The passage quoted above from Jawad should have been tightened to correctly state the judicial prohibition involved in that case: "There can never be good reasons for attempting to judicially abolish, curtail, or diminish the factfinding function of a jury."
If "[t]o provide that the right of trial by jury shall remain inviolate is to forbid the legislative ... department from ever burdening, disturbing, qualifying, or tampering with this right," (Gilbreath v. Wallace, 292 Ala. at 271, 292 So.2d at 651), can the legislature change the mode of selecting the venire from which jurors are chosen?
In 1901, in each county the county commissioners or members of the board of revenue constituted a board of jury commissioners (Code of Alabama 1897, § 4976); that board selected from male residents of the county over 21 and under 60 years of age the names of such persons not exempt from jury duty "as in their opinion [were] fit and competent to discharge the duties of... petit jurors with honesty, impartiality and intelligence, and [were] esteemed in the community for their integrity, good character, and sound judgment." (Code 1897, § 4982). It was from these names that the petit jurors were selected. There were numerous persons exempted from jury duty (Code 1897, § 4986), including, but not limited to teachers, attorneys, judges, physicians, dentists, ministers, firemen, students, school board members, mailmen, wardens, and county commissioners.
Now, a jury commission from each county (Ala.Code 1975, § 12-16-30) compiles a master list of all the persons in the county who may be called for jury duty (Ala.Code 1975, § 12-16-57); and no citizen can be excluded from jury service on account of race, color, religion, sex, national origin, or economic status (Ala.Code 1975, § 12-16-56). All persons selected for jury service must be selected at random from a fair cross section of the population of the area served by the court (Ala.Code 1975, § 12-16-55). No qualified prospective juror is exempt from jury service. (Ala.Code 1975, § 12-16-62). Sections 12-16-55, -56, -57, and -62 were enacted in 1978, after Amendment 328 was ratified.
In lieu thereof, Ala.Code 1975, §§ 12-16-145 and -146, provide an alternative plan and procedure for qualifying, selecting, drawing, summoning, and empaneling juries. Do these legislative changes burden, disturb, qualify, or tamper with the right to trial by jury? These were enacted after the ratification of the Constitution of 1901.
Whether the change in the composition or selection of potential jurors violates or substantially impairs the right secured by § 11 of the Constitution is not before us; and the mention of this is not to suggest that it does or that it does not.
*192 Judge Cates in Brown v. State, 45 Ala. App. at 395, 231 So. 2d at 171, wrote: "The mode of jury selection is basically one of statutory choice"; however, that was the same opinion in which Judge Cates wrote that § 11 requires only that a jury "be impartial, duodecimal and unanimous."
The general affirmative charge with hypothesis was used in Alabama prior to 1901. Alabama G.S.R.R. v. McAlpine & Co., 80 Ala. 73, 74 (1885); McElroy, The General Affirmative Charge with Hypothesis in Alabama, 1 Ala.L.Rev. 151 (1949). Where the party with the burden of proof presented evidence of each element of his cause of action by uncontradicted testimony, the case was sent to the jury but with a special direction that "if the jury believe the evidence; it must find for the plaintiff." This Court changed this by the last sentence of Rule 50(a), A.R.Civ.P.: "The order of the court granting a motion for a directed verdict is effective without any assent of the jury." (Emphasis added.)
At common law, the verdict of the jury had to be a general verdict, and no judgment could be rendered on a special verdict. Clay v. State, 43 Ala. 350 (1869). By Rule 49(b), A.R.Civ.P., this Court authorized special verdicts. According to the Committee Comments, "Rule 49(b) expressly cures the common law difficulty by express provision."
Whether these changes in the jury's function violate or substantially impair the right secured by § 11 and § 6.11 of Amendment 328 of the Constitution is not before us, and the mention of them is not to suggest that they do or that they do not.
It is obvious that neither the legislature nor the judiciary has considered §§ 11 and 36 of the Constitution as sacrosanct when dealing with certain aspects of trial by jury.
Under Ala.Code 1975, § 6-11-3(3)c.3., "Evidence of the present value of future damages is inadmissible in cases covered by this article, except at a hearing authorized by section 6-11-5, herein."
Alabama Code 1975, § 6-11-5, provides:
Therefore, § 6-11-3(3)c.3. and § 6-11-5 do transfer the function of determining the present value of future compensatory damages from the jury to the trial court. Was this a function of the jury at the time the Constitution of 1901 was ratified?
What are compensatory damages, if not an element of a cause of action? To the bench and bar all elements of a cause of action are essential in the trial of an action; but to a not-so-esoteric groupto us, the peopleas parties to litigation, whether damages are awarded and, if awarded, the damages awarded are the essence of the action, the indispensable property of and the reason for bringing and for defending the action.
At common law as it existed in 1819, and in 1901, it was a jury function to assess compensatory damages.
In Wood's Mayne on Damages § 791, at 739 (3rd English and 1st American ed. 1880), the following appears:
We are aware that the United States Supreme Court in Tull v. United States, 481 U.S. 412, 425-26, 107 S. Ct. 1831, 1840, 95 L. Ed. 2d 365 (1987), uses language suggesting that a jury is never required to assess any form of damages:
The Chief Justice and six Justices concurred. Justice Scalia, joined by Justice Stevens, dissented on this point "because in my view," wrote Justice Scalia, "the right to trial by jury on whether a civil penalty of unspecified amount is assessable also involves a right to trial by jury on what the amount should be." 481 U.S. at 427, 107 S. Ct. at 1840-41.
We are not dealing with a civil penalty in this case, as the United States Supreme Court was in Tull, but with compensatory damages, the remedy for an injury done to a person and to which the person has a right by § 13 of the Constitution.
At common law, it was a jury function to determine the life expectancy of a plaintiff who had suffered permanent injury. Alabama Mineral R.R. v. Jones, 114 Ala. 519, 21 So. 507 (1897). Mortality tables were admissible, but the tables were one of many factors to be considered by the jury. 114 Ala. at 533, 21 So. at 510-11; Mary Lee Coal & Ry. Co. v. Chambliss, 97 Ala. 171, 11 So. 897 (1892). Subsequently, the legislature adopted statutes concerning mortality tables, Ala.Code 1975, §§ 35-16-3 and 35-16-4. Since the adoption of these statutes, this Court has reiterated that mortality tables are not conclusive evidence of the life expectancy of a particular person. In Louisville & N.R.R. v. Richardson, 285 Ala. 281, 283, 231 So. 2d 316 (1970), this Court held:
(Emphasis added.)
The legislature, in adopting the mortality tables, did not prescribe the manner in which juries arrive at an amount of damages to compensate an injured plaintiff for his loss of future earnings.
The determination of the amount to which a plaintiff is entitled for his loss of future earnings was a jury question in a case tried to a jury, before the ratification of the Constitution. South & North Ala. R.R. v. McLendon, 63 Ala. 266, 273 (1879). At the time of the ratification of the Constitution, in cases tried to a jury, it was the jury's function to reduce future earnings to present value or present worth. McAdory v. Louisville & N.R.R., 94 Ala. 272, 10 So. 507 (1892).
The general rule regarding present value is aptly stated in 22 Am.Jur.2d Damages § 174, at 156-57 (1988):
22 Am.Jur.2d Damages § 176 at 157, contains the following discussion of the determination of a discount rate:
See Louisville & N.R.R. v. Trammell, 93 Ala. 350, 9 So. 870, 873 (1891) (a nonjury case); McAdory v. Louisville & N.R.R., 94 Ala. 272, 10 So. 507 (1892); Alabama Pattern Jury Instructions: Civil, 1., 11.11 (1974). In Birmingham Ry. Light and Power Co. v. Wright, 153 Ala. 99, 44 So. 1037 (1907), the Court indicated that Trammell and McAdory should be limited to death cases for which compensatory damages were recoverable because "[w]here the injury does not result fatally, the plaintiff will be the beneficiary of the damages recovered, and to allow him the value of his life, which he yet has, is, of course, absurd." 153 Ala. at 108, 44 So. at 1040. We are not awarding the value of life, but the present value of decreased future earnings. We cannot comprehend the statement quoted from Wright, but it cannot properly relate to the function of reducing the award for the decrease in future earning capacity to present value; however, if it does relate to that function, it is wrong and it is overruled to the extent that it does so relate.
The legislature has adopted a discount rate of six percent (6%) to be used in reducing compensation paid under the Alabama workmen's compensation provisions, Code, § 25-5-83, see Ex parte St. Regis Corp., 535 So. 2d 160, 162 (Ala.1988). However, the legislature has not adopted a discount rate to be applied in other areas.
Section 35-16-1 authorizes the superintendent of insurance and the superintendent of banks, within 30 days after final adjournment of each regular session of the legislature, to prepare an annuity table showing the present cash value of an annuity of $100 per month, month by month from 2 to 480 months at the following rates: 2, 2½, 3, 3½, 4, 4½, 5, 5½, and 6 percent. The secretary of state causes that table to be published in the bound volume of the acts of the legislature. See 1990 Acts of Alabama, Vol. 2, page 1588. Section 35-16-2 provides that these tables shall be received in all courts of this state as evidence of the facts therein stated, but that "nothing contained in this chapter shall affect the admissibility of other competent evidence when offered in a lawful and proper manner." Therefore, the discount rate to be applied in this case is a *195 question of fact for the jury. See 8 Am. Jur., Proof of Facts, Discount Rate, § 3, pp. 12-13 (1976).
It is apparent that the sentence "The fact-finder shall not reduce any future damages to present value," contained in § 6-11-3 and in § 6-11-5, does take away from the jury a factfinding function (when a jury is the factfinder) that was within the province of the jury at the time of the ratification of the Constitution of 1901.
Do these Code sections violate § 11 of the Constitution? And, insofar as the judiciary is concerned, do § 6-11-3(3)c. and § 6-11-5 violate § 6.11 of Amendment 328 of the Constitution?
The Seventh Amendment to the United States Constitution was ratified approximately 28 years before Alabama's first Constitution was ratified. So, we look to the historical events surrounding the Seventh Amendment for enlightenment as to what was excepted out of the state's general powers of government to "forever remain inviolate" (Article I, § 36, Alabama Constitution of 1901) (Article I, § 30, Alabama Constitution of 1819), insofar as "the right of trial by jury" is concerned.
Alexis de Tocqueville, Democracy in America 293 (1835; P. Bradley, rev. ed. 1945), astutely observed, "The jury is above all, a political institution, and must be regarded in this light in order to be duly appreciated."
The right to a civil jury played a bit part, but a greater part than any other right guaranteed by the Bill of Rights, in the 1787 Constitutional Convention at Philadelphia. The only recorded issue made of the absence of a bill of rights at that convention, that this Court has been able to find, was an objection that the document lacked a guarantee of jury trials in civil cases.
On September 12, 1787, Hugh Williamson of North Carolina raised this objection to the lack of a guarantee of a civil jury trial:
J. Madison, Debates in the Federal Convention, in 2 Records of the Federal Convention of 1787 (M. Farrand ed. 1911) n. 54, at 587-88.
On September 15, 1787, Charles Pickney of South Carolina and Gerry moved to annex to the end of Art. III, § 2, paragraph 3: "And a trial by jury shall be preserved as usual in civil cases." This proposal was defeated. J. Madison, Debates in the Federal Convention, in 2 Records of the Federal Constitution of 1787 at 628.
*196 Professor Charles W. Wolfram, in The Constitutional History of the Seventh Amendment, 57 Minn.L.Rev. 639 (1973), recounting the Antifederalists' attempts to defeat ratification of the United States Constitution without a bill of rights, lists and discusses several distinct and specific arguments in favor of civil jury trials:
57 Minn.L.Rev. at 670-71.
However, from a historical approach, it has not been determined what features of a civil jury trial were preserved to parties to civil litigation from the United States and its officers, agents, and employees.
Wolfram, 57 Minn.L.Rev. at 723-25. (Emphasis added.)
When the constitutionality of a duly enacted act of the legislature is challenged, we must remember that all questions of "propriety, wisdom, necessity, utility, and expediency" are exclusively for legislative determination. Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d 810, 815 (1944), cert. dismissed, 325 U.S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725 (1945). When the constitutionality of a duly enacted act is challenged, the only question for this Court is that of legislative power; and to determine that, we must determine whether the Constitution excepted that power from the power given the legislature.
Each of the Alabama Constitutions, from the Constitution of 1819 (Article I, §§ 28 and 30) to the present Constitution of 1901 (Article I, §§ 11 and 36), has excepted out of the general powers of government, the power to violate the right of trial by jury. What does that right entail? Twelve persons, who are impartial and who unanimously resolve disputed facts, following the instructions on the law to be applied, which are given to them by the trial court. The legislature can change the law, including the law of damages; however, the legislature cannot, just as we have held the judiciary cannot (Jawad v. Granade, supra), impinge upon the factfinding function of the jury.
We do not intend to lead a crusade "to a constitutional holy land"[5]; but we must agree with Justice Stone, who in Sadler v. Langham, 34 Ala. 311, 335 (1859), quoted with approval the following:
(Emphasis added.)
In this case, Clark had a constitutional right "`to a remedy by due process' for any injury done him, in his ... person." Constitution, § 13. "Remedy" is defined as "[t]he means by which a right is enforced or the violation of a right is ... compensated." Black's Law Dictionary, 1294 (6th ed. 1990). Clark had demanded a jury for the trial of his action; therefore, Clark had a right ("`a capacity residing in one man of controlling, with the assent and assistance of the state, the actions of others,' " Black's Law Dictionary, supra) to have the jury determine whether a compensable injury had been done him, in his person; and, if so, to determine the amount necessary to compensate him for that injury.
Therefore, the right that an individual, as a party to civil litigation, has to a trial by jury is protected by § 11 of the Constitution from the legislative, executive, and judicial departments of government and by § 6.11 of Amendment 328 from the judicial department. It is the right to have a jury of 12 impartial people unanimously resolve disputed facts.
Not only does Ala.Code 1975, § 6-11-3, remove from the jury the function of factually determining the amount of a plaintiff's remedy for an injury done to the plaintiff's person, but it also requires all defendants to pay an excessive amount on the first $150,000 of future damages when future damages are assessed. Defendants who are required to pay any future damages (and in the briefs accompanying this certified question there is an unsubstantiated statement that evidence was presented to the Alabama legislature prior to the enactment of § 6-11-3 that awards of future damages in most cases did not exceed $150,000) do not have the initial $150,000 of future damages reduced to present value, either by the jury or by the trial court. Therefore, § 6-11-3, as written, provides a remedy in excess of that due a plaintiff under the common law, as to any future damages not exceeding $150,000. We do not mean to imply that the legislative department cannot by another general act abolish the procedure or rule requiring that all damages for a decrease in future earnings be reduced to present value or even abolish all damages for loss of future earnings, Gasoline Products Co. v. Champlin, supra. That is not before us, for § 6-11-6 *198 provides: "Nothing in this article shall be construed to alter or affect the nature, elements, form, or amount of damages recoverable in any action."
Act No. 87-183, Acts of Alabama 1987 (Ala.Code 1975, §§ 6-11-1 through 6-11-7), contains a severability clause (§ 7):
The sentence in § 6-11-1 providing that "The fact-finder shall not reduce any future damages to present value"; all of § 6-11-3; and, consequently, all of § 6-11-4, since it has no operative effect apart from § 6-11-3; and all of § 6-11-5 violate §§ 11 and 13 of the Constitution, when a jury has been demanded, and as applied to the case of Billy Ray Clark and Halliburton Industrial Services Division v. Container Corporation of America, Inc.
We have a real concern about § 6-11-4(4) ("No certificate of judgment shall issue or be recorded against any defendant for that portion of an award of future damages which is structured") on several constitutional grounds; however, that sentence is inoperative without § 6-11-3; therefore, we omit any separate discussion of that sentence.
We also omit any discussion of whether § 6-11-3 violates Article I, § 6, or Article III, § 42, of the Constitution, because such a discussion is not necessary for the resolution of the case before the United States District Court for the Southern District of Alabama.
CERTIFIED QUESTION ANSWERED.
SHORES, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur in the result.
MADDOX, J., dissents.
ADAMS, Justice (concurring in the result).
Although I agree that Ala.Code 1975, § 6-11-3, violates the right to a trial by jury, I fundamentally disagree with the premises upon which the principal opinion stands. The opinion purports to hold that § 6-11-3 violates Ala. Const.1901, art. I, § 11, because the statute impairs a jury's factfinding function. However, the opinion appears to stand on at least three distinct propositions, none of which, in my view, is supported by law or logic. Consequently, I write specially to point out what I perceive to be the most serious weaknesses in the analysis of this constitutional issue.
The opinion's analysis of the unconstitutionality of § 6-11-3 begins with what I shall call "Proposition One," which is that "§ 11 of the Constitution has never been interpreted by this Court ... as doing more than restricting the legislature from denying or impairing the fundamental requisites of a jury, which are that the jury be composed of 12 persons, that they be impartial, and that their verdict be unanimous." At 187-188. A second proposition found in the opinion asserts that the second proviso in Amendment 328, § 6.11, "added something" not originally guaranteed by § 11, that is, an express reference to the common law comparable to that contained in U.S. Const. amend. VII. The opinion also appears to rest on a third proposition, which is that Amendment 328, § 6.11, preserves for Alabama litigants constitutional protection for the factfinding function of juries as that function existed at common law. The opinion consequently invites the conclusion that if the factfinding function of the jury is protected by the Constitution of Alabama, then it is protected by Amendment 328, § 6.11, not by § 11.
This Court has never, in a proper holding, narrowly interpreted the scope of § 11 as guaranteeing only (1) impartiality, (2) duodecimality, and (3) unanimity, to the exclusion of the jury's factfinding function as that function existed at common law. The language that gives rise to this proposition *199 springs from dictum in Baader v. State, 201 Ala. 76, 77 So. 370 (1917).
In that case, the defendant in a misdemeanor prosecution attempted to waive his right to a jury trial under a statute that required defendants, in order to preserve that right, to demand a trial by jury within five days of arrest or of the giving of bond. Nevertheless, at the request of the prosecution, which was made "several months after the prosecution had begun," the trial court conducted a jury trial. The defendant contended that his constitutional right to a fair trial was violated by this noncompliance with the statute. This Court, holding that the prosecution's request for a jury trial was not timely, reversed the judgment of the trial court. Although no issue was raised regarding the power of the legislature to provide for a waiver of the right to a trial by jury, the Court preliminarily discussed the subject in general terms. The Court's discussion, which was entirely unnecessary to the disposition of the issue presented, contained the statement that forms the basis of Proposition One.
The one case cited in Baader in support of this dictum was Spivey v. State, 172 Ala. 391, 397, 56 So. 232 (1911). Spivey, however, contains no formula regarding the "fundamental requisites of a jury" such as that which appears in Baader; nor is such a restriction on the scope of constitutional protection fairly inferable from Spivey.
The Baader dictum was once more cited by this Court in Kirk v. State, 247 Ala. 43, 22 So. 2d 431 (1945). Immediately following its reference to the language in Baader, however, this Court added the following qualification:
Kirk, 247 Ala. at 45, 22 So. 2d at 432 (emphasis added). It is thus clear that an application of the tripartite formula expressed in the Baader dictum was equally unnecessary to the resolution of the issue in Kirk.[6]
In fact, the principal opinion cites no case in which the Baader dictum formed the basis of this Court's holding, nor has my research revealed any. Moreover, the opinion ultimately concedes that the Baader dictum was "underwritten," that is, that it clearly did not describe the totality of protection afforded the role of juries by § 11. Consequently, I must conclude that this Court has never subscribed to the view that § 11 preserved only (1) impartiality, (2) duodecimality, and (3) unanimity, to the exclusion of the jury's traditional factfinding function.
In this connection, the opinion seems to imply that statutes regulating the "qualifying, selecting, drawing, summoning, and empaneling [of] juries" do not offend § 11. At 191. If that is so, it is because those statutes do not impair the jury's truly essential function, which is to resolve disputed issues of fact.
Amendment 328, § 6.11, through its express reference to the common law, afforded Alabama litigants no guarantees that were not already provided by § 11. The principal opinion properly recognizes that the fundamental function of the common law jury was to resolve disputed issues of fact. Baltimore & Carolina Line v. Redman, 295 U.S. 654, 55 S. Ct. 890, 79 L. Ed. 1636 (1935). Based on its application of Proposition One, however, the opinion attempts to distinguish § 11 from the Seventh Amendment, concluding that, unlike the Seventh Amendment, § 11 did not preserve that factfinding function. Enigmatically, it then likens the two constitutional provisions, stating:
At 195. (Emphasis added.)
In attempting to distinguish the protections afforded under the two provisions, the principal opinion goes seriously awry. "The Seventh Amendment is not materially different from Section 11." Poston v. Gaddis, 335 So. 2d 165, 167 (Ala.Civ.App.), cert. denied, 335 So. 2d 169 (Ala.1976). Both constitutional provisions preserve the right to trial by jury "as it was at common law." Poston, 335 So. 2d at 167. Consequently, issues regarding the scope of § 11 protections have always been resolved by our courts through an analysis of the function of the jury in the same or analogous cases at common law. See, e.g., Ex parte LaFlore, 445 So. 2d 932 (Ala.1983) (question of competency to stand trial was for the jury at common law; therefore, accused was guaranteed that right "by § 11 of the Constitution of 1901"); Kelley v. Mashburn, 286 Ala. 7, 236 So. 2d 326 (1970) ("Ejectment was known to the common law"; therefore, § 11 preserves right to jury trial in such cases); Ex parte Thompson, 228 Ala. 113, 152 So. 229 (1933) (nonjury disbarment proceedings did not violate § 11 because, under English common law, power to disbar was inherent in the judiciary and juries were not employed in such cases); Thomas v. Bibb, 44 Ala. 721, 724 (1870) (right preserved by § 11 extends to "cases in which it was conferred by the common law, to suits which the common law recognized amongst its old and settled proceedings and suits"); Boring v. Williams, 17 Ala. 510, 517 (1850) ("summary remedy" against tax collector for allegedly delinquent collections did not violate right to jury trial where summary remedies in such cases were "the practice from a period long anterior to the adoption of the constitution"); see also Crowe v. State, 485 So. 2d 351 at 363 (Ala.Crim.App.1984) ("advisory nature of jury's sentence verdict" did not violate § 11 because English common law juries did not determine criminal sentence and the purpose of § 11 is to "preserve the right to trial by jury as it existed in the English common law").
Moreover, this Court has long acknowledged the common law matrix that produced the guarantees contained in the Declaration of Rights and in § 11 in particular. In Mayor of Mobile v. Stonewall Ins. Co., 53 Ala. 570 (1875), this Court stated: "A state constitution is always interpreted in the light of the common law, and if it be not the first constitution, in the light of its predecessors." Id. at 577 (emphasis added). "The guaranties for the security of property and of personal liberty, found in the bill of rights, are borrowed chiefly from magna charta, and for their interpretation we look to the common law." Id. (emphasis added); see also State v. Alabama Power Co., 254 Ala. 327, 333, 48 So. 2d 445, 449 (1950); Crowe v. State, 485 So. 2d 351, 363 (Ala.Crim.App.1984) (section 11 "has remained virtually unchanged since the first state constitution was adopted in 1819" and it "draws its meaning from that early history"), rev'd on other grounds, 485 So. 2d 373 (Ala.1985), cert. denied, 477 U.S. 909, 106 S. Ct. 3284, 91 L. Ed. 2d 573 (1986). To suppose that the framers of the Alabama Constitution of 1819 contemplated a role for Alabama juries entirely different from that envisioned by our common law ancestors defies ordinary logic.[7]
If the first two propositions are to represent anything other than unrelated observations, *201 the reader must conclude that there is a third proposition supporting the principal opinion: that from the date of Alabama's statehoodDecember 14, 1819until Amendment 328 was proclaimed ratified on December 27, 1973, the essential factfinding function of the common law jury system was not protected by the organic law of this state. Attorneys on both sides of the bench will be amazed to discover that prior to 1973, according to the principal opinion, jury verdicts in Alabama could have been ignored with impunity and without fear of infringing on the right to a trial by jury.
Indeed, the respect for the sanctity of jury verdicts formed the basis for this Court's decision in Jawad v. Granade, 497 So. 2d 471 (Ala.1986). Although Mr. Justice Houston states that Jawad was decided under Amendment 328 as well as § 11, a number of the cases upon which the holding in Jawad rested were decided long before the adoption of Amendment 328. See, e.g., Castleberry v. Morgan, 28 Ala.App. 70, 178 So. 823 (1938) (refusing to follow the Cobb standard); McEntyre v. First National Bank of Headland, 27 Ala.App. 311, 313, 171 So. 913, 914-15 (1937) ("in exercising the power [to set aside a jury verdict], the court should be careful not to infringe the right of trial by jury, and should bear in mind that it is their exclusive province to... find the facts").
By far, the most puzzling aspect of the principal opinion is its failure to demonstrate the relevance of any of these disjointed propositions to the ultimate conclusion. More specifically, the opinion fails to demonstrate how the second proviso in Amendment 328, § 6.11, which operates as a restriction on the power of the judiciary, restrains the power of the legislature. Indeed, Mr. Justice Houston's analysis appears occasionally to lead away from the conclusion that Amendment 328, § 6.11, restrains the legislature's power. If his analysis does so concede, and if, as the opinion states, § 11 traditionally protected only (1) impartiality, (2) duodecimality, and (3) unanimity, rather than the jury's traditional factfinding function, then how can it be said that § 6-11-3 violates the right to a trial by jury as guaranteed by § 11?
If the statute, under the analysis offered in the principal opinion, does violate § 11, it must be because the protection for the jury's factfinding function, which was "added" in Amendment 328, § 6.11, has somehow become "engrafted" on § 11. Nowhere does the opinion demonstrate how or when this engrafting took place. Its discussion of Amendment 328, therefore, becomes irrelevant and the conclusion of the opinion that § 6-11-3 violates the right to a trial by jury as guaranteed by § 11 is not based on identifiable principles of logic.
In my view, the rationale of the principal opinion is seriously flawed, because it fails to apply a "stand up" § 11 analysis to the challenged legislation. I would hold forthrightly that § 6-11-3 violates the right to a trial by jury as that right is, and has always been, guaranteed by § 11 of the Constitution of Alabama.
MADDOX, Justice (dissenting).
The majority concludes that "[i]t is apparent that the sentence, `The fact-finder shall not reduce any future damages to present value,' contained in § 6-11-3 and in § 6-11-5 does take away from the jury a factfinding function (when a jury is the factfinder) that was within the province of the jury at the time of the ratification of the Constitution of 1901."
In Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So. 2d 810 (1944), this Court set out the rule that guides courts when reviewing the constitutionality of an act of the legislature:
246 Ala. at 9, 18 So. 2d at 814-15. (Emphasis added.)
I cannot agree that § 11 of the Alabama Constitution, which states that the right to trial by jury shall remain inviolate, limits the power of the legislature to deal with future damages for lost wages by providing for the structuring of those damages.
I recognize that juries had been permitted to assess damages for lost wages prior to the adoption of the 1901 Constitution, and I recognize that the framers of our Constitution intended to preserve the right of trial by jury, but I can find no support for the proposition that the right to trial by jury that § 11 declares inviolate applies to anything other than the principles that there must be 12 persons on the jury, that the jury must be impartial, and that the verdict of the jury must be unanimous.
Future damages are at best somewhat speculative, and I cannot believe that the legislature, vested with plenary power, is limited by any provision of the Constitution to deal with the recovery of future damages as it has in the act under review; consequently, I must respectfully dissent.
[1] The breakdown of the jury verdict was $300,000 for pain and suffering, mental anguish, permanent injury, disability, and disfigurement; $82,800 for lost past wages; $150,000 for punitive damages; and $289,800 for lost future wages.
[2] This Court has held that the legislature had the power to divest a lawyer of a right to trial by jury in a disbarment proceeding, despite the fact that when the Constitution of 1901 was ratified a jury trial was provided by statute in disbarment proceedings. Ex parte Thompson, 228 Ala. 113, 152 So. 229 (1933). This Court has held that the legislature had the power to provide for a jury of six persons in insanity inquisitions despite the existence of a statute providing for a jury of 12 persons in such hearings when the Constitution was ratified. Smith v. Smith, 254 Ala. 404, 48 So. 2d 546 (1950).
[3] Judge H.H. Grooms, in The Origin and Development of Trial by Jury, 26 Ala. Law. 162, 170 (1965), wrote:
"There have been various reasons assigned as to why the jury is composed of twelve persons. Initially, it appears that twelve was the favourite number of judges constituting a court among the early Saxons and Scandinavians. Also, that was the usual number of compurgators. The number twelve likewise prevailed on the Continent.
"`In analogy, of late the jury is reduced to the number of twelve, like as the prophets were twelve, to foretell the truth; the apostles twelve, to preach the truth; the discoverers twelve, sent into Canaan, to seek and report the truth; and the stones twelve, that the heavenly Hierusalem is built on: and as the judges were twelve anciently to try and determine matters of law; and always, when there is any waging law, there must be twelve to swear in it; and also as for matters of state, there were formerly twelve councillors of state....' (Guide to English Juries, by a person of quality. 1682.)
"As we have seen, the jury system was in its inception nothing but the testimony of witnesses, and to require that the twelve should be unanimous was simply to fix the amount of evidence which the law deemed conclusive."
(Emphasis added.)
[4] At the time of the ratification of Amendment 328, §§ 11 and 36 had been interpreted as restricting the legislature only from varying "the constituent number [12]," providing "for other than an unanimous verdict, and introducing regulations leading away from impartiality." Baader v. State, supra; Jones, Trial by Juries in Alabama, supra; and Brown v. State, supra.
The proviso in § 6.11 of Amendment 328 added something: "that the right of trial by jury as at common law ... shall be preserved to the parties." (Emphasis added.)
Justice Stone, in Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 498, 51 S. Ct. 513, 514, 75 L. Ed. 1188 (1931), construing the Seventh Amendment to the United States Constitution ["In suits at common law ... the right of trial by jury shall be preserved ..."], wrote the following for a unanimous Court in regard to what was encompassed by the Seventh Amendment:
"[W]e are not now concerned with the form of the ancient rule. It is the Constitution which we are to interpret; and the Constitution is concerned, not with form, but with substance. All of vital significance in trial by jury is that issues of fact be submitted for determination with such instructions and guidance by the court as will afford opportunity for the consideration by the jury which was secured by the rules governing trials at common law.... Beyond this, the Seventh Amendment does not exact the retention of old forms of procedure.... It does not prohibit the introduction of new methods for ascertaining what facts are in issue...."
(Emphasis added.)
In Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657, 55 S. Ct. 890, 891, 79 L. Ed. 1636 (1935), the United States Supreme Court held that the preserved substance of the common law right of trial by jury, as distinguished from mere matters of form or procedure, retained
"the common law distinction between the province of the court and that of the jury, whereby, in the absence of express or implied consent to the contrary, issues of law are to be resolved by the court and issues of fact are to be determined by the jury under appropriate instructions by the court."
(Emphasis added.)
However, this broadening of the language of § 11 by § 6.11 of Amendment 328 appeared in the form of a proviso.
The appropriate office of a proviso is to restrain or modify the enacting clause. Touart v. American Cyanamid Co., 250 Ala. 551, 555, 35 So. 2d 484, 486 (1948); Cooper v. State, 28 Ala. App. 422, 425, 187 So. 500, 502 (1939), cert. denied, 237 Ala. 533, 187 So. 503 (1939); 82 C.J.S. Statutes, § 381 at 883 (1953).
The Constitution is subject to the same general rules of construction as are other laws; Alabama State Docks Dep't v. Alabama Public Service Comm'n, 288 Ala. 716, 724, 265 So. 2d 135, 143 (1972), "due regard being had to the broader objects and scope of the constitution as a charter of popular government." 16 Am.Jur.2d Constitutional Law, § 91, at 417 (1979).
The enacting clause (§ 6.11) is:
"The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts...."
Therefore, the proviso that expands the language of § 11 of the Constitution to include the wording of the Seventh Amendment to the United States Constitution restrains or modifies only this Court's rulemaking power, because the appropriate office of a proviso is to restrain or modify the enacting clause; a proviso does not enlarge the enacting clause or confer a power or right. 82 C.J.S. Statutes § 381(3) at 888.
In Jawad v. Granade, 497 So. 2d 471 (Ala. 1986), we recognized that § 11 of the Constitution and § 6.11 of Amendment 328 (although it was not referred to specifically) restricted the judicial department of government from interfering with the factfinding function of a jury (the substance of a jury trial, Gasoline Products, supra). In doing so, we overruled a line of cases holding that decisions of trial courts granting new trials on the ground that the verdict is against the great weight or preponderance of the evidence "will not be reversed, unless the evidence plainly and palpably supports the [jury] verdict." We did this because we felt that this judicially adopted standard, which sprung from dicta in an 1891 case (Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891)), was not consistent with the constitutional right to trial by jury, which in 1986 encompassed not only § 11, but also, insofar as this Court is concerned, § 6.11 of Amendment 328 of the Constitution. In Jawad, 497 So. 2d at 476-77, a unanimous Court wrote, "[T]here can never be good reasons for attempting to judicially abolish, curtail, or diminish the constitutional right to trial by jury." Jawad involved the factfinding function of a civil jury.
[5] A paraphrase of Liva Baker's summation of Justice Holmes' career in The Justice from Beacon Hill: The Life and Times of Oliver Holmes 634 (Harper Collins 1991): "[Justice Holmes] had no loyalties to any group, and he led no crusades to a constitutional holy land."
[6] In Kirk, this Court held that Act No. 168, 1943 Ala. Acts 156, which provided that the parties could unanimously agree to accept a verdict rendered by a jury consisting of less than 12 members, did not offend the Constitution. Kirk, 247 Ala. at 48, 22 So. 2d at 434.
[7] If the framers of the Constitution did envision a role for Alabama juries comparable to that of common law juries, it was clearly beyond the power of this Court to remove the constitutional protections of that role by judicial interpretation. Section 11 prohibits the "state through the legislative, judicial, or executive department one or allfrom ever burdening, disturbing, qualifying, or tampering with this right to the prejudice of the people." Gilbreath v. Wallace, 292 Ala. 267, 292 So. 2d 651 (1974) (emphasis added). Clearly, the judiciary is subject to the same constitutional restraints as the legislative or the executive branch. | September 27, 1991 |
a17770c2-e082-49bf-bb11-a94fc859a709 | Todd v. Owens | 592 So. 2d 534 | 1900631 | Alabama | Alabama Supreme Court | 592 So. 2d 534 (1991)
Fred TODD
v.
Loyd P. OWENS and Dona M. Owens.
1900631.
Supreme Court of Alabama.
December 20, 1991.
Donald W. Stewart, Anniston, for appellant.
Jake B. Mathews, Jr. of Merrill, Merrill, Mathews & Allen, Anniston, for appellees.
MADDOX, Justice.
This is a boundary line dispute case. The issue before this Court is whether the judgment of the trial court, establishing the survey line as the true boundary, was contrary to the weight of the evidence and the law.
The parties in this case are coterminous landowners. The land line in dispute is the western boundary of Loyd Parmer Owens and Dona M. Owens's property, and the eastern boundary of Fred Todd's property. The Owenses contend that the boundary line is an old fence line that lies several feet to the west of the line described in their deed. Todd argues that the boundary line is the eastern line of the Owenses' property as that line is described in the deed by which Loyd Owens received the property in 1954.
The facts are as follows: Fred's parents, J.R. "Roscoe" Todd and his wife Myrtle Lou Todd, conveyed certain property to Loyd P. Owens by deed dated June 22, 1954.[1]
Roscoe Todd retained title to the property west of the Owenses' land. In 1984, Fred Todd purchased his parents' land from their estate. He had a survey of the land made by Billy Grizzard. That survey showed the eastern land line of Todd's property the same as the Owens's deed described the western boundary line to their property. Subsequently, Todd began putting up fence posts along the land line as described in the Grizzard survey and the Owens's deed. The Owenses sued Todd, claiming Todd had encroached upon the Owens land and that the true and correct boundary line should be the old fence line.[2]
*535 The trial court, in a nonjury trial, found in favor of the Owenses and ordered their surveyor, Cassidy Engineering Associates, to describe the true and correct boundary line between the parties. The trial court adopted Cassidy's survey in its order:
Todd appealed, contending that the trial court erred in adopting the survey that "followed the deed line for over 600 feet on the southern portion of the disputed boundary line, and followed a portion of the old fence line up to where it had originally attached to a barn on the property," because, he says, "both parties said the old fence line ran all the way to the southern corner of the property and that it looped over onto the [Owenses'] land where it circled a creek or pond." It appears as though the Owenses also dispute the trial court's judgment, contending that the trial court should have determined that the old fence line, as a whole, was the boundary. However, the Owenses submit that "[i]f any error has occurred in this case it only prejudices the Owenses" and, because they did not appeal, it is not a concern here.
The law applicable to this case has been stated by this Court in numerous cases:
Garringer v. Wingard, 585 So. 2d 898, 899 (Ala.1991). The presumption of correctness is especially strong in boundary line dispute cases because it is difficult for the appellate court to review the evidence in such cases. Bearden v. Ellison, 560 So. 2d 1042 (Ala.1990). Moreover, the presumption is further enhanced if the trial court personally views the property in dispute, as was done here. Bell v. Jackson, 530 So. 2d 42 (Ala.1988); Wallace v. Putman, 495 So. 2d 1072, 1075 (Ala.1986).
After a careful review of the evidence in this case, we find it clear that the trial court tried to effect a compromise. Todd argues that such a compromise effectually fixes the boundary line at neither of the points supported by the evidence, and that such a compromise is cause for reversal, citing Catrett v. Crane, 295 Ala. 337, 329 So. 2d 536 (1976). In Catrett, the trial *536 court created a totally new boundary line equidistant between the two disputed survey lines; this Court reversed, holding that there was no evidence to support the line fixed by the trial court. Id. at 338, 329 So. 2d 536. However, this is not what we have in the case before us.
In this case the trial court found that the evidence supported a finding that for approximately one-half of the line the old fence line was the boundary, and for approximately the second half of the line the court determined that the deed line was the true boundary. Neither party claims that the line fixed is, in its entirety, the true line; however, if any error has occurred in this case, it prejudices only the Owenses, and they did not appeal.
Having reviewed the evidence in this case, we conclude that the record contains credible evidence to support the trial court's finding as to that portion of the boundary line involved in this appeal; therefore, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and STEAGALL, JJ., concur.
[1] At the time Owens purchased the property, the old fence which he claims is the boundary line between the two properties was already in existence, although not mentioned in the deed.
[2] In June of 1989 the trial court judge granted the motion of Dona Owens (the wife of Loyd P. Owens) to add her as a party plaintiff on the grounds that she is a real party in interest and that she owns an undivided one-half interest in the property in dispute by way of a survivorship deed executed in June 1985. | December 20, 1991 |
71e27d4d-6293-48dd-808c-e93ff4a97527 | Ex Parte Duren | 590 So. 2d 369 | 1900162 | Alabama | Alabama Supreme Court | 590 So. 2d 369 (1991)
Ex parte David Ray DUREN.
(Re David Ray Duren v. State).
1900162.
Supreme Court of Alabama.
September 13, 1991.
Rehearing Denied November 15, 1991.
Rory Fitzpatrick, Don E. Gorton III and Patricia M. McCarthy of Bingham, Dana & Gould, Boston, Mass., for appellant.
James H. Evans, Atty. Gen., and Sandra J. Stewart, Asst. Atty. Gen., for appellee.
*370 MADDOX, Justice.
David Ray Duren appealed from the denial of his Rule 20, A.R.Crim.P.Temp., petition for relief from his conviction of capital murder and sentence of death. The Court of Criminal Appeals affirmed. 590 So. 2d 360. On certiorari review he contends that he was denied effective assistance of counsel during his trial and during his sentencing hearing.
In 1984, Duren was convicted of the October 20, 1983, robbery and murder of Kathleen Bedsole. On appeal, the Court of Criminal Appeals remanded the case to the trial court for the entry of specific written findings of fact relating to the punishment phase of the trial; on return to remand on October 14, 1986, that court affirmed Duren's conviction, and it denied rehearing on November 12, 1986, Duren v. State, 507 So. 2d 111 (Ala.Cr.App.1986); and this Court affirmed his conviction on April 10, 1987, Ex parte Duren, 507 So. 2d 121 (Ala. 1987). The United States Supreme Court denied certiorari. Duren v. Alabama, 484 U.S. 905, 108 S. Ct. 249, 98 L. Ed. 2d 206 (1987). Duren filed with the Jefferson Circuit Court a petition for Rule 20, A.R.Crim. P.Temp., relief, which that court denied. On August 24, 1990, the Court of Criminal Appeals affirmed that denial.
The Alabama Court of Criminal Appeals listed the facts surrounding the murder, as shown in the trial court's findings of fact, as follows:
Duren v. State, 507 So. 2d at 113-14.
During the trial of the case, Duren's sole "defense" was that he had meant to kill Charles Leonard instead of Kathleen Bedsole. Because Alabama recognizes the theory of transferred intent, that was not a defense. Duren was found guilty of a capital offense involving the robbery and intentional murder of Kathleen Bedsole, Ala. Code 1975, § 13A-5-40(a)(2), and was sentenced to death.
Duren contends that he was denied effective assistance of counsel during his trial and during his sentencing hearing. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), sets out the standard of proof required in an ineffective assistance of counsel claim. In that case, the United States Supreme Court states:
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
In Ex parte Womack, 541 So. 2d 47 (Ala. 1988), this Court discussed the applicability of Strickland to ineffective assistance of counsel claims in Alabama. That case stated:
Ex parte Womack, 541 So. 2d at 66-67.
Duren contends that he was denied effective assistance of counsel during his trial because Roger Appell, his attorney, presented a legally invalid defense rather than a legally valid defense based on intoxication.
Duren contends that Appell violated Disciplinary Rule 7-102, Code of Professional Responsibility of the Alabama State Bar (rescinded effective January 1, 1991, when the Rules of Professional Conduct became effective), which read:
In Strickland, the United States Supreme Court stated:
Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065.
Appell testified at the Rule 20 hearing that, after considering the prosecution's strong case against Duren, which included the facts that there was an eyewitness identification of Duren as the one who had committed the murder and that Duren had confessed to the murder on two separate occasions, he felt that he did not have a legally valid defense available. Appell further testified that he had hoped to persuade the jury that Duren did not have the specific intent to kill Kathleen Bedsole and therefore was guilty of murder rather than capital murder. Appell testified that if the jury, despite instructions from the judge on the invalidity of transferred intent as a defense, had believed him about Duren's actual intent and returned a verdict of guilty of murder rather than guilty of capital murder, it would have been in the best interest of his client to present the case in that light.[1]
The trial court made the following findings in regard to this issue:
We agree with the trial court that Appell's decision was not unreasonable under all the attendance circumstances; consequently, we agree that Duren has not shown that counsel was ineffective in this regard. He was trying to make the most of a bad situation for his client.
In Strickland, the United States Supreme Court held:
Strickland, 466 U.S. at 691, 104 S. Ct. at 2066.
Appell testified at the Rule 20 hearing that Duren had told him that he had taken the drug LSD on the day of the murder, but Appell also testified that Duren did not appear to believable on this point. Appell further testified that he wanted to present Duren as very believable and remorseful for what had happened. Above all, Appell testified, he wanted the jury to feel sympathy *374 toward Duren. Appell testified that he did not think that informing the jury that Duren may have been intoxicated on the day of the murder would be beneficial in his strategy to have the jury feel sympathy toward Duren.
We cannot say that Appell was unreasonable in choosing to handle Duren's trial in the way he did. We certainly cannot say that there is a reasonable probability that the result of the trial would have been different had Appell presented a defense other than the one he chose to present. Therefore, we hold that Duren did not receive ineffective assistance of counsel at his trial.
Duren also contends that Appell rendered ineffective assistance of counsel during his sentencing hearing. Duren asserts that Appell should have presented evidence of intoxication, substance abuse, and mental disorders as mitigating factors to be considered during his sentencing.
In Strickland, the United States Supreme Court held:
Strickland, 466 U.S. at 686-87, 104 S. Ct. at 2064. Therefore, we must consider Appell's conduct at the sentencing hearing in the same manner as we would consider it at trial. In other words, we must determine whether Duren has shown that the results of the sentencing hearing probably would have been different if Appell had presented evidence of Duren's drug, alcohol, and psychological problems as mitigating factors.
Appell testified at the Rule 20 hearing that he had talked with Duren and Duren's family many times in trying to determine what was the best approach to take at both Duren's trial and his sentencing hearing. Appell testified that he decided that a "mercy" approach would be the best way to present Duren to the jury. Using this approach, Appell prepared Duren to testify that he knew that what he had done was wrong and that he was very sorry for what had happened. In addition, Appell prepared Duren's aunt to testify concerning Duren's traumatic childhood. In taking this approach, Appell testified that he hoped that the jury would show mercy to Duren and sentence him to life without parole rather than sentence him to death. Appell further testified that he felt that if he introduced into evidence the testimony of a psychologist that had examined Duren, all hope would be lost. Appell testified about the psychologist's report and how he thought it would affect Duren's trial and sentencing hearing:
Appell was also aware of the fact that he had no way of proving that Duren was intoxicated other than Duren's statement that he had taken LSD on the day of the murder. As previously stated, Appell felt that that statement was not believable.
Under the Strickland test, a defendant has the burden of proving that, but for the ineffectiveness of his counsel, the outcome of his sentencing hearing probably would *375 have been different. Duren has failed to meet that burden.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
MADDOX, Justice.
Duren has filed an application for rehearing in this case; he states that he has made a strong showing that his trial counsel was ineffective and that he was prejudiced as a result. The State has also filed an application for rehearing; it asks us to modify our original opinion to hold that issues other than those issues purportedly raised by Duren, but not addressed by him in his brief (the ineffectiveness of counsel issues), were not properly presented to this Court or, in the alternative, to affirm the judgment of the Court of Criminal Appeals on each of the issues addressed by the Court of Criminal Appeals in its opinion. The State seems to be concerned that Duren, in his petition for the writ of certiorari and in his brief, argued only the two issues addressed by this Court in the original opinion, but Duren insists that he raised several other issues by making a reference to those issues in footnote one in his brief:
On his application for rehearing, Duren does indeed claim that there were other meritorious issues raised in his petition and addressed by the Court of Criminal Appeals that he wants us to address. Again, however, he devotes only one paragraph of his rehearing brief to call our attention to those issues:
Regarding the other issues alluded to by Duren, we note that the trial judge made findings of fact relating to these issues and that the Court of Criminal Appeals adopted those findings by the trial court. We find no error in those findings.
We have carefully considered Duren's application for rehearing and also the State's application for rehearing, and we are of the opinion that each is due to be denied.
APPLICATIONS FOR REHEARING OVERRULED; OPINION EXTENDED.
SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Appell testified as follows:
"A. I don't remember if that is the way I phrased it. But basically I was trying to convince the jury that it was a murder case, not a capital murder, there was no intent to kill the young woman that died.
"Q. As part of that it was your strategy to try to convince the jury that it was his intent to kill another victim, is that right?
"A. Well, I didn't know whethersort of, I guess that is right, but basically my intent was to convince the jury that he had no intent to kill the specific person that was killed, and therefore it wasn't a capital murder case, it was a murder case." | September 13, 1991 |
3babdaee-09a8-4506-ad3d-9a86e7c3588c | Jordan v. Reliable Life Ins. Co. | 589 So. 2d 699 | 1900748 | Alabama | Alabama Supreme Court | 589 So. 2d 699 (1991)
Carolyn L. JORDAN, as executrix of the Estate of James I. Jordan, Deceased
v.
RELIABLE LIFE INSURANCE COMPANY.
1900748.
Supreme Court of Alabama.
September 27, 1991.
James J. Thompson, Jr. and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
Steven F. Casey of Balch & Bingham, Birmingham, and Robert C. von Ohlen, Jr. and John B. Austin of Adler, Kaplan & Begy, Chicago, Ill., for appellee.
HORNSBY, Chief Justice.
Carolyn L. Jordan, as executrix of the estate of her husband, James I. Jordan, and as beneficiary of a group accidental death *700 insurance policy that James had with Reliable Life Insurance Company ("Reliable") through his employer, sued Reliable in the United States District Court for the Northern District of Alabama for benefits under her husband's policy after he died in an airplane crash. Pursuant to a provision in Jordan's policy that limited coverage to passengers, as opposed to pilots or members of the crew, Reliable denied coverage, because it determined that James was not riding in the plane as a passenger. Although James had piloted the aircraft during most of the flight in question, Jack Page, a professional flight instructor, who was giving James a refresher course in instruments-only flying, had assumed control of the plane immediately prior to impact. Page survived the crash and estimated that 30 seconds elapsed between his taking the throttle from James and the plane's crashing.
The federal district court awarded Carolyn Jordan the policy proceeds and interest at the "legal rate" prescribed by Ala.Code 1975, § 8-8-1, from the date she presented her claim to Reliable. Jordan v. Reliable Life Insurance Co., 716 F. Supp. 582 (N.D.Ala.1989). Reliable appealed the damages award to the United States Court of Appeals for the Eleventh Circuit, and Jordan cross-appealed the ruling on the rate of interest awarded. Jordan claims she is entitled to interest at the rate specified in Ala.Code 1975, § 27-1-17(b), instead of the legal interest rate. The Court of Appeals affirmed the award of damages, but certified to this Court the following question:[1]
Reliable argues that the one and one-half percent per month interest rate provided for in § 27-1-17(b) is inapplicable when in good faith an insurer denies a claim within 45 days after receipt of proof of loss for reasons the insurer regards as legitimate at the time the claim is denied. Conversely, Jordan contends that the statute requires an insurance company to pay one and one-half percent per month interest on the amount of benefits claimed in all cases in which it is ultimately required to pay, regardless of whether the company *701 had a defensible reason for denying the claim. We conclude that the construction argued for by Jordan is the more sound interpretation of § 27-1-17. An insured who successfully litigates is statutorily entitled to compensation for the insurer's detention of the policy proceeds. Although we do not dispute the statutory language allowing an insurer to deny a claim "for valid and proper" reasons, the insurer does so at the risk that the judiciary will subsequently determine that those reasons were, in fact, not "valid and proper." Should there be such a judicial determination, § 27-1-17 places the burden on the insurer and provides the insured with the specified one and one-half percent per month rate of interest to compensate for the insurer's withholding of the policy proceeds. The six percent legal interest rate provided in § 8-8-1 does not compensate the insured to the extent the legislature intended under the present circumstances. Moreover, application of the six percent rate could provide an incentive for insurers to deny claims because they can earn more than six percent from investing the policy proceeds to which the insured may ultimately be entitled during the period the claim is being litigated.
The legislature has not granted insurance companies the power to make conclusive decisions with regard to whether a claim is valid and proper. A grant of such a power would surely be contrary to what we understand to be the statute's policy of improving the insured's position relative to that of the insurer. The insurer must make its decision with the knowledge that the judiciary may subsequently review the decision. In fact, the statute clearly contemplates the possibility of the judiciary's presence in the resolution of claims. Subsection (b) of § 27-1-17 concludes with the words "until [the claim] is finally settled or adjudicated." A court is certainly not bound by an insurer's initial determination that a claim is invalid and improper.
A primary purpose underlying § 27-1-17 is to encourage insurers to act on claims within the 45-day period provided in the statute, and construing the statute so as to require the insurer to compensate the insured at the interest rate specified in § 27-1-17(b) furthers this purpose. Such a construction encourages insurers not only to act on claims within the 45-day period, but also to take measures that result in a high probability that the insurer's initial determination is correct. Obviously, if a claim is denied for valid and proper reasons, as later determined by the court, the insurer will not be liable for the payment of the rate of interest specified in § 27-1-17. Encouraging insurers to make proper decisions as to validity and propriety is surely one of the primary purposes of insurance regulation, and this Court should adhere to this purpose in its construction of insurance statutes.
In his treatise on statutory construction, Professor Singer writes:
N. Singer, Sutherland Statutory Construction, § 70.05, at 505 (4th ed.1986). There appears to be no legislative intent for the provisions of § 27-1-17 to be affected by an insurer's "defensible" interpretation of case law. Moreover, in Druid City Hospital Board v. Epperson, 378 So. 2d 696 (Ala.1979), this Court stated: "Where one interpretation of a statute would defeat its purpose that interpretation will be rejected if any other reasonable interpretation can be given it." Id. at 699. Reliable's interpretation of the statute would defeat the statute's purpose to compensate the insured for the period during which the policy benefits were not available. The reference to "valid and proper" in § 27-1-17(b) qualifies the 45-day requirement. The phrase does not qualify the one and one-half percent per month interest rate, which we believe the legislature intended to be applicable to claims *702 that are ultimately found to have been denied for invalid and improper reasons.
The title to the act from which § 27-1-17 originated indicates to some extent that the legislature did not intend to qualify the operation of § 27-1-17 in the manner suggested by Reliable. Clearly, the title of an act may serve as an aid to statutory interpretation. Hamrick v. Thompson, 276 Ala. 605, 165 So. 2d 386 (1964). The title reads in part: "and to provide that the insurance company shall pay interest on the unpaid amount of any such claims after a certain period of time from receipt of proof of loss." Act 81-371, Alabama Acts 1981 (emphasis added). This language indicates that the statutory rate of interest provided for in § 27-1-17(b) applies to all claims that are "finally settled or adjudicated" in the insured's favor.
Finally, we do not believe that this interpretation of § 27-1-17 would unfairly penalize insurers. Given the choice between 1) requiring insurers to bear the risk of a later judicial determination of invalidity and impropriety and 2) requiring those insured to forgo the benefits of policy proceeds they are rightfully entitled to, the former is more consistent with the overall intent of the legislature in regulating the insurance industry.
Therefore, we answer the question certified to this Court in the affirmative: the rate of interest specified in § 27-1-17 does apply when an insurer denies a health or accident claim based on a defensible interpretation of case law that is ultimately rejected by the court.
QUESTION ANSWERED.
SHORES, ADAMS and KENNEDY, JJ., concur.
MADDOX, ALMON and HOUSTON, JJ., concur specially.
ALMON, Justice (concurring specially).
I agree that § 27-1-17 imposes interest on the benefits payable under valid claims at a rate of "one and one-half percent per month," beginning "45 days after the insurer receives reasonable proof of the fact and amount of loss sustained." I agree that this interest rate applies even if the insurer initially denies the claim in good faith and the claim is only later held to be valid by being "finally settled or adjudicated." To me, these conclusions follow as a necessary result of the plain meaning of the statute. Paragraph (b) requires the insurer to pay the stated interest rate "[i]f the claim is not denied for valid and proper reasons by the end of said 45 day period." A "valid" reason for denying the claim is one that ultimately defeats the claim; I see no room for interpreting this to mean a "good faith" or "debatable" reason to deny the claim.
Some of Reliable's arguments focus on the language in paragraph (a) regarding "reasonable proof of the fact and the amount of the loss." The error in those arguments is that they treat the term "reasonable proof" as though it means reasonable proof of the validity of the claim, when, in fact, "reasonable proof of the fact and amount of the loss" was provided in this case by proof of Mr. Jordan's death and of the policy amount. That language cannot be construed to mean that the 45-day period does not begin to run unless and until the claimant produces "reasonable proof" that she is entitled to recover under the claim, i.e., until she establishes her legal position as being superior to that of the insurer.
Finally, I note that most of Reliable's arguments hinge on the premise that the 18% per annum rate is a punitive one. I simply note that § 27-1-17 derives from Act 81-371, Alabama Acts 1981, which was passed at a time when the prime rate of interest was 17½% or higher. See Record of Policy Actions of the Federal Open Market Committee, 67 Fed. Reserve Bulletin 565 (July 1981). Thus, it is equally probable that the legislature intended the rate simply as a compensatory one, paying health and accident insurance claimants a market rate of interest for the loss of use of the policy benefits during a dispute over the validity of the claim. The question of whether that statutory rate is out of proportion *703 to current market rates is a question for the legislature, not the courts.
MADDOX, J., concurs.
HOUSTON, Justice (concurring specially).
This certified question arises from an action to recover the $375,000 death benefit applicable to Mr. Jordan under a group accidental death insurance policy. Prejudgment interest is awarded in Alabama when the amount due is certain or capable of being made certain. State Farm Mutual Automobile Insurance Co. v. Fox, 541 So. 2d 1070 (Ala.1989). Prejudgment interest is recoverable in this action. This is not contested by Reliable. However, Reliable contends that Alabama's 6% per annum prejudgment interest rate is applicable (Ala.Code 1975, § 8-8-1) and that the 12% per annum interest rate on judgments is applicable (Ala.Code 1975, § 8-8-10). In its brief, Reliable states that it has fulfilled these obligations by paying to Ms. Jordan, as beneficiary, some $153,000 in interest.
It appears to me that our inquiry should be whether the legislature intended for the 18% per annum rate to apply to claims under health and accident insurance policies in lieu of the prejudgment interest and post-judgment interest rates provided for by the above-referenced Code sections. If not, then clearly the 18% per annum interest would be punitive, for it would be something in addition to the prejudgment and post-judgment interest rates that compensate for the loss of the use of the insurance benefit payable under the insurance policy. I agree with Justice Almon's special concurrence that the 18% per annum rate of interest provided for in § 27-1-17 was intended by the legislature to compensate for the loss of the use of the insurance benefits payable under the policy. The legislature intended for this rate of interest to be applied to claims under health and accident insurance policies, in lieu of the 6% per annum prejudgment interest and the 12% per annum interest on judgments applicable to other claims.
It is my understanding that Reliable has made no equal protection challenge to Ala. Code 1975, § 27-1-17, under the 14th Amendment to the United States Constitution; if it had done so, the question would be a matter to be resolved by the 11th Circuit Court of Appeals. There is no equal protection afforded by the Constitution of Alabama of 1901. See Moore v. Mobile Infirmary, [Ms. 89-1087, September 27, 1991] 1991 WL 190574 (Ala.1991) (Houston, J., disagreeing with the rationale of the Court's opinion, but concurring in the result).
[1] For a detailed discussion and analysis of the insurance policy provisions involved, see Jordan v. National Accident Insurance Underwriters, Inc., 922 F.2d 732 (11th Cir.1991). | September 27, 1991 |
9f42e15e-5250-45ef-b485-d5005dae6b66 | Ex Parte State Dept. of Revenue | 595 So. 2d 472 | 1901108 | Alabama | Alabama Supreme Court | 595 So. 2d 472 (1991)
Ex parte STATE DEPARTMENT OF REVENUE.
(Re STATE DEPARTMENT OF REVENUE, v. TELNET CORPORATION, et al. TELEMARKETING CORPORATION OF LOUISIANA, v. STATE DEPARTMENT OF REVENUE).
1901108.
Supreme Court of Alabama.
September 6, 1991.
Rehearing Denied December 6, 1991.
*473 Jimmy Evans, Atty. Gen., and Ron Bowden, Counsel, Dept. of Rev. and Asst. Atty. Gen., for petitioner.
Michael S. Jackson of Beers, Anderson, Jackson & Smith, Montgomery, and James G. Gann, Jr., Birmingham, for respondents Telnet, Delta, Montgomery Telemarketing, Telemarketing Corp., SouthernNet and Southland.
Mark D. Wilkerson of Parker, Brantley & Wilkerson, P.C., Montgomery, for respondent Gulf Tel. Co., Inc.
STEAGALL, Justice.
We granted the petition for writ of certiorari in this case to determine whether Act No. 88-542, Ala. Acts 1988 (codified at Ala.Code 1975, § 6-5-605), violates Art. 4, § 45, Constitution of Alabama. The codification of that provision reads as follows:
In its petition to this Court, the State Department of Revenue contends that Act No. 88-542 violates § 45 of the Alabama Constitution, which requires, in part, that each law passed by the legislature contain only one subject and that the subject be clearly expressed in its title. The title to Act No. 88-542 stated its purpose:
(Emphasis added.)
The Court of Civil Appeals held that the issue regarding the constitutionality of Act No. 88-542 was procedurally barred because it was not raised at the trial level: "Although the parties hint of a constitutional issue at the trial level, it was not raised in the pleadings; evidence as to the issue is not in the record, and the court did not rule on it; therefore, appellate review of this issue is foreclosed." State Department of Revenue v. Telnet Corp., 595 So. 2d 469, 471 (Ala.Civ.App.1991) (citations omitted). We find only the latter assertionthat the trial court did not rule on the constitutional issueto be correct.
The plaintiffs in the six cases on appeal to the Court of Civil Appeals were utility companies; each plaintiff stated in paragraph eight of its complaint that the Department of Revenue considered § 6-5-605 to be unconstitutional.[1] The Department of Revenue admitted that allegation in paragraph three of its answers to those complaints. The following language from one plaintiff's complaint is typical of the language of each complaint:
(Emphasis added.)
The plaintiffs acknowledged again in their pre-trial brief that the Department of Revenue contended that § 6-5-605 (Act No. 88-542) was unconstitutional. Finally, the trial court held that the Department of Revenue lacked the authority to "unilaterally declare or contend" that § 6-5-605 is unconstitutional. Specifically, the trial court held that § 6-5-605 had never been declared unconstitutional by any court in Alabama and that the Department of Revenue had no authority to ignore its terms.
Based on our review of the record, we find that the constitutionality of § 6-5-605 was at issue below, although the trial court declined to address it. Thus, that question is properly before us.
Looking again at the title to Act No. 88-542, we find it apparent that the act deals with a utility's right to recover damages for meter tampering and with how a "utility" company and a "telephone" company are defined. What is not apparent, however, is the effect of that definition for taxation purposes.
First, the reference in the title to the definition of utilities in Act No. 88-542 comes between two provisions regarding damages for meter tampering. Second, neither the definition provision in the title nor the body of the act mentions the fact that Act No. 88-542 effectively exempts long distance service carriers from the telephone gross receipts license tax of § 40-21-58. In Alabama State Dep't of Revenue v. Telamarketing Communications, 514 So. 2d 1388 (Ala.Civ.App.1987), the Alabama Court of Civil Appeals held that companies that resell long distance service are engaged in the "telephone business" for purposes of § 40-21-58. The Alabama Legislature subsequently amended that statute to include such resellers: "In addition to all other taxes imposed by this title, there is hereby levied a license or privilege tax upon each person engaged in the telephone *475 business which includes resellers in the state of Alabama for the privilege of engaging in such business...." (Emphasis added.)
By defining "telephone business" to mean providers of local exchange services only, § 6-5-605 effectively removes long distance service carriers from the reach of § 40-21-58. Although the provisions of § 6-5-605 regarding damages and, in effect, taxation, fall under the general category of utilities, those provisions deal with two different subjects, in violation of § 45 of the Alabama Constitution. "The Constitution is emphatic in its requirement that a statute shall not embrace more than one subject; a statute that violates the one-subject requirement is not saved by the fact that the title of the statute accurately reflects the several subjects of the statute. Ballentyne v. Wickersham, 75 Ala. 533 (1883)." Opinion of the Justices No. 326, 511 So. 2d 174, 177 (Ala.1987).
In this case, although the title reveals, on the surface, what is within the body of the act, it does not reveal what, in substance, the act contains.
Opinion of the Justices No. 323, 512 So. 2d 72, 75 (Ala.1987).
We hold that § 6-5-605 is unconstitutional, because it violates the one-subject requirement in § 45. Therefore, the judgment of the Court of Civil Appeals is reversed as to that issue. We hold, however, that the judgment of the Court of Civil Appeals is correct in all other respects and, as to those aspects, is due to be affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON and INGRAM, JJ., concur.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
The Court of Civil Appeals held:
595 So. 2d at 471. I do not believe that this Court can grant review of this constitutional question in the absence of some ruling on it in the trial court; consequently, I cannot agree that the Court should address it, and I must respectfully dissent.
[1] On August 17, 1989, the trial court consolidated the six cases that were filed against the Department of Revenue. | September 6, 1991 |
6abbda54-c9f9-4a3f-90fa-3c91000222b9 | Ex Parte Fisher | 587 So. 2d 1039 | 1901499 | Alabama | Alabama Supreme Court | 587 So. 2d 1039 (1991)
Ex parte Manson FISHER, Jr.
(Re Manson Fisher, Jr. v. State).
1901499.
Supreme Court of Alabama.
September 13, 1991.
David Schoen, Montgomery, for appellant.
James H. Evans, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for appellee.
Prior report: Ala.Cr.App., 587 So. 2d 1027.
PER CURIAM.
WRIT DENIED.
HORNSBY, C.J., and SHORES, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
MADDOX and ADAMS, JJ., dissent.
MADDOX, Justice (dissenting).
The petitioner raises several issues that he claims are meritorious, including a claim that the prosecutor used his peremptory strikes to exclude women from his jury. I think that this claim has merit, and I would grant his petition for the writ of certiorari to address that claim.
According to the opinion of the Court of Criminal Appeals, the petitioner's counsel objected to the prosecutor's striking of women from the jury, whereupon the prosecutor responded by stating that women were not a "racially cognizable group defined under Batson," and that, even if Batson applies, the defendant was not a female *1040 and, therefore, would lack standing to raise the issue.
The Court of Criminal Appeals agreed with the State's argument and held that "the standards of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), do not extend to `gender based' peremptory strikes." 587 So. 2d at 1030.
In Ex parte Bankhead, 585 So. 2d 112 (Ala.1991), this Court, although holding on original deliverance that a white defendant lacked standing to challenge the prosecutor's striking of black prospective jurors, on rehearing followed Powers v. Ohio, ___ U.S. ___, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), in which the Supreme Court of the United States held that a white defendant had standing to challenge the striking of black veniremen from his jury as a violation of the Equal Protection Clause. In Bankhead, this Court noted that the United States Supreme Court has held "that a defendant in a criminal case can raise a third-party equal protection claim on behalf of jurors excluded by the prosecution because of their race," and further said that "[b]ased on Powers, we must now hold that Bankhead, a white, has standing under the Equal Protection Clause to challenge the prosecutor's allegedly racially motivated use of peremptory challenges." 585 So. 2d at 117.
Shortly after Powers was released, the United States Supreme Court held, in Edmonson v. Leesville Concrete Co., ___ U.S. ___, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991), that the principles enunciated in Batson applied in civil cases. Shortly after its Edmonson decision was released, the Court, in Sky Chefs, Inc. v. Dias, ___ U.S. ___, 111 S. Ct. 2791, 115 L. Ed. 2d 965 (1991), issued a writ of certiorari to the Court of Appeals for the Ninth Circuit, vacated the judgment, and remanded the case to the Court of Appeals "for further consideration in light of Edmonson v. Leesville Concrete Co." In view of that action by the Supreme Court, I believe that the Court has recognized that a party has standing to challenge gender-based peremptory strikes. At least one State court has held that women qualify as a "cognizable group" within the meaning of the prohibition against the exercise of peremptory challenges to exclude prospective jurors on the basis of group bias. Di Donato v. Santini, 232 Cal. App. 3d 721, 283 Cal. Rptr. 751 (1991).
I believe that the petitioner has stated a meritorious claim under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), and Ex parte Branch, 526 So. 2d 609 (Ala. 1987), which applies the Batson principle in Alabama, and under Powers and Edmonson. I would grant the petition and review the decision of the Court of Criminal Appeals insofar as it holds that a male defendant has no standing to challenge the State's use of peremptory strikes to remove women from the jury solely because they were women; consequently, I must respectfully dissent. | September 13, 1991 |
ab9df503-d331-4694-a750-05a7e521fa5f | Ex Parte Jackson | 590 So. 2d 901 | 1901135 | Alabama | Alabama Supreme Court | 590 So. 2d 901 (1991)
Ex parte Paul JACKSON.
(Re Paul Douglas Jackson v. State).
1901135.
Supreme Court of Alabama.
November 15, 1991.
George W. Cameron III, Montgomery, for petitioner.
James H. Evans, Atty. Gen., and Jack W. Willis, Asst. Atty. Gen., for respondent.
INGRAM, Justice.
Paul Douglas Jackson was charged, in four separate indictments, with two counts of burglary in the third degree and two counts of theft in the first degree. Subsequently, the two indictments charging theft in the first degree were amended to charge theft in the second degree, and Jackson entered a guilty plea in regard to the two burglary charges and to the two theft charges contained in the four indictments. The trial court accepted Jackson's guilty pleas and sentenced him to four eight-year terms in the state penitentiary, with each term running consecutively. Jackson appealed his sentences to the Court of Criminal Appeals, which affirmed by an unpublished memorandum opinion. 579 So. 2d 711. This Court granted Jackson's petition for the writ of certiorari.
The issue Jackson raises is whether the trial court erred in sentencing him to four separate terms. Jackson argues that one burglary charge and one theft charge stemmed from one course of action and that the other burglary charge and theft charge stemmed from another single course of action. Jackson asserts that, because he formed the intent to take property from the two residences prior to breaking into the residences, the four consecutive sentences arising from only two courses of action violate the double jeopardy provision contained in § 15-3-8, Ala.Code 1975. However, before addressing whether the double jeopardy provision applies under the facts of this case, we first address the State's argument that Jackson failed to preserve the issue for appellate review.
The State, citing Phillips v. State, 518 So. 2d 833 (Ala.Crim.App.1987), and Montgomery v. State, 446 So. 2d 697 (Ala.Crim. App.1983), cert. denied, 469 U.S. 916, 105 S. Ct. 291, 83 L. Ed. 2d 227 (1984), asserts that the trial court cannot, on appeal, be placed in error based upon grounds not specified during the sentencing hearing. Jackson, on the other hand, argues that the alleged error is jurisdictional and is, therefore, not subject to waiver. In stating his argument, Jackson relies primarily on Ex *902 parte Harmon, 543 So. 2d 716 (Ala.1988), and Blair v. State, 549 So. 2d 112 (Ala. Crim.App.1988), cert. denied, 549 So. 2d 114 (Ala.1988). However, after reviewing the authority cited by Jackson, we hold that the issue he raises was not properly preserved for appellate review.
In Harmon, this Court reversed the Court of Criminal Appeals' holding that the issue of sentencing errors in imposing separate consecutive sentences on a joint indictment, when both charges stemmed from the same act, was not properly before that court because that issue had not been presented to the trial court in Harmon's petition for writ of error coram nobis or raised at a hearing on the petition. This Court reached its conclusion after finding that it was clear from the record and from the trial court's order that the trial court was aware of Harmon's contention that he could enter a guilty plea either to burglary in the third degree or to theft of property in the second degree, but not to both charges. The Court concluded that the trial court, in denying Harmon's petition for writ of error coram nobis, did, indeed, rule on the issue that Harmon was attempting to raise on appeal. In support of that conclusion, the Harmon court cited Ex parte O'Leary, 417 So. 2d 232 (Ala.1982), cert. denied, 463 U.S. 1206, 103 S. Ct. 3536, 77 L. Ed. 2d 1387 (1983), which Harmon noted in a parenthetical as holding that "the issue must be preserved at the lower court level before it can be reviewed on appeal." 543 So. 2d at 717.
We find the Harmon holding to be distinguishable from the holding in the present case. This Court, in Harmon, did not hold that the sentencing error of which the petitioner was seeking appellate review did not need to be preserved in the trial court. Rather, the Court concluded that the evidence in the record indicated that the trial court was sufficiently aware of Harmon's argument when it ruled on his error coram nobis petition. Here, there was never any objection in the trial court by Jackson to his being sentenced on the charges contained in all four indictments. The issue was first raised by Jackson in his appeal. Therefore, we hold that the rule of Harmon is inapplicable in the present case.
The other case relied upon by Jackson is Blair v. State, 549 So. 2d 112 (Ala.Crim. App.1988), cert. denied, 549 So. 2d 114 (Ala. 1988). Although Jackson correctly relies on Blair, we find that the Blair court incorrectly stated the law. In Blair, the appellant raised the issue of whether his sentence was improperly enhanced by the application of the Alabama Habitual Felony Offender Act. Blair's counsel, at Blair's sentencing hearing, objected only to the remoteness of some of the prior convictions and to some of the information contained in the presentence report. The Blair court correctly noted the principle that where no objection is made to an alleged error the issue is not preserved for appellate review. The court further noted that the issue in that case was not preserved. However, the Blair court then stated that the sentencing error was jurisdictional in nature and was, therefore, not subject to waiver. We find this latter proposition to be an erroneous statement of the law. See Biddie v. State, 516 So. 2d 846 (Ala.1987).
In stating the proposition (in Blair) that sentencing errors are not subject to waiver, the Court of Criminal Appeals relied on City of Birmingham v. Perry, 41 Ala.App. 173, 125 So. 2d 279 (1960). However, a reading of Perry reveals that the Court of Criminal Appeals' reliance on that case was misplaced in Blair.
The Perry case involved an appeal by the City of Birmingham from a judgment of the Jefferson Circuit Court discharging a petitioner upon a writ of habeas corpus. The petitioner had been convicted of two counts of contempt in the Recorder's Court of the City of Birmingham and had been sentenced to a term of 24 hours at hard labor for the city. However, Alabama law at the time of the sentencing provided that a recorder could punish a person in contempt of the recorder's court only by a fine not exceeding $10 and by imprisonment not exceeding 24 hours. The Court of Appeals, in affirming the Jefferson Circuit Court's discharge of the petitioner, stated:
41 Ala.App. at 175, 125 So. 2d at 282. (Citations omitted.)
The Court of Appeals in Perry was not confronted with the issue whether sentencing errors are subject to waiver by the failure to preserve those errors in the trial court. The Perry court did not rule on that issue, nor did it address the issue by way of dictum. Furthermore, our research has revealed that Blair is the only case to cite Perry in support of a conclusion that sentencing errors are not subject to waiver. In fact, the only case, other than Blair, in which Perry has ever been cited was Ferguson v. State, 565 So. 2d 1172 (Ala.Crim. App.1990), where the Court of Criminal Appeals held that when a court imposes a sentence in excess of that authorized by statute, it exceeds its jurisdiction, and the sentence is, consequently, void. While Ferguson correctly cites Perry, the Ferguson case is clearly not pertinent to the issue whether sentencing errors must be presented to the trial court before being raised on appeal.
Our research reveals no authority for the proposition that sentencing errors are jurisdictional and are not subject to waiver. Furthermore, we find no compelling reason to adopt such a proposition in the present case. Therefore, we overrule Blair v. State, supra, to the extent that it holds sentencing errors to be jurisdictional and, therefore, not subject to waiver.
Because the alleged error of which Jackson seeks review was not properly preserved for our review, we do not reach the merits of that alleged error. Biddie v. State, 516 So. 2d 846 (Ala.1987). The judgment of the Court of Criminal Appeals is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | November 15, 1991 |
c548eb71-182a-4f7e-a88e-beec823a24d2 | Robinson v. JMIC Life Ins. Co. | 697 So. 2d 461 | 1951153 | Alabama | Alabama Supreme Court | 697 So. 2d 461 (1997)
Lorena ROBINSON
v.
JMIC LIFE INSURANCE COMPANY, et al.
1951153.
Supreme Court of Alabama.
March 21, 1997.
C.S. Chiepalich and John Spencer of C.S. Chiepalich, P.C., Mobile, for appellant.
Michael S. McGlothren and Steve Olen of Olen & McGlothren, P.C., Mobile, for JMIC Life Ins. Co.
John D. Richardson and James Lynn Perry of Richardson, Daniell, Spear & Upton, Mobile, for Gulf Coast Motor Sales, Inc., d/b/a Palmer's Airport Toyota, Inc., and Don Merritt.
KENNEDY, Justice.
The plaintiff, Lorena Robinson, appeals from summary judgments in favor of the defendants, JMIC Life Insurance Company ("JMIC"), Gulf Coast Motor Sales, Inc., d/b/a Palmer's Airport Toyota, Inc. ("Palmer's"); and Don Merritt, on her claims alleging fraud, misrepresentation, deceit, and fraudulent suppression. We affirm in part, reverse in part, and remand.
The defendants sought summary judgments on Robinson's fraudulent suppression claim. That claim related to her securing a loan to finance the purchase of an automobile from Palmer's and her purchase of credit life insurance through Palmer's credit manager, Merritt. Robinson says that when Merritt asked her to execute documents in relation to the transaction, he should have disclosed to her that she was purchasing the credit life insurance.
At the outset, we note that the trial court's judgments adjudicated all of Robinson's claims. This was error, because the defendants had sought summary judgments only as to the fraudulent suppression claim. See Parr v. Goodyear Tire & Rubber Co., 641 So. 2d 769, 772 (Ala.1994); Henson v. Mobile Infirmary Ass'n, 646 So. 2d 559, 562 (Ala.1994); Sexton v. St. Clair Federal Sav. Bank, 653 So. 2d 959, 962 (Ala.1995); Bibbs v. MedCenter Inns of Alabama, Inc., 669 So. 2d 143, 144 (Ala.1995). Accordingly, as to Robinson's other claims, we reverse and remand. *462 As to the fraudulent suppression claim, we affirm.
As indicated, the crux of Robinson's fraudulent suppression claim is the contention that by his silence Merritt fraudulently suppressed the fact that Robinson was buying credit life insurance. In Henson v. Celtic Life Ins. Co., 621 So. 2d 1268, 1273-74 (Ala. 1993), the plaintiff claimed suppression of a material term in an insurance contract, by silence on the defendant's part; however, the plaintiff had executed an application that repeatedly referred to the matter alleged to have been suppressed. This Court held, therefore, that the plaintiff was "reasonably put ... on notice" as to the term and its importance. Here, although Robinson, a high school graduate, contends that she has poor reading skills, she concedes that she was capable of recognizing words like "credit life" and "insurance." These terms figure prominently and appear repeatedly in the documents she signed, but did not examine.
On one document, for example, Robinson signed directly by a box containing the following disclosures: "Credit Life $235.24." Another form signed by Robinson and related to her purchase of credit life insurance is entitled "Schedule of Insurance"; it refers to "insurance" or "life insurance" no fewer than 14 times. Certainly, given Robinson's ability to read and understand these key terms, and her decision not to examine the documents in issue before she signed them, we conclude that she cannot now complain that she was ignorant of the fact that she was purchasing credit life insurance.
Based on the undisputed facts, we affirm the defendants' summary judgments as they relate to the fraudulent suppression claim. As to Robinson's other claims, we reverse the summary judgments and remand the case.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
SHORES, HOUSTON, and COOK, JJ., concur.
ALMON, J., concurs in the result.
HOOPER, C.J., and MADDOX and SEE, JJ., concur in part and dissent in part.
MADDOX, Justice (concurring in part and dissenting in part).
The learned trial judge entered the following order:
*464 I also note that on April 2, 1996, the trial judge entered an order denying the plaintiff's motion to clarify, stating that the court's previous orders entering summary judgments in favor of the defendants were clear and unambiguous. That April 2, 1996, order states as follows:
The trial judge's statement of the material facts is supported by the record, and I agree completely with the judge's conclusions of law; consequently, I concur in the affirmance of the summary judgments as they relate to the fraudulent suppression claim. I must respectfully dissent, however, from the reversal of the summary judgments as they relate to the other claims alleged in the complaint.
HOOPER, C.J., and SEE, J., concur.
[1] Although the trial judge stated that he was making "findings of fact," I note that all material facts in this case are undisputed. | March 21, 1997 |
d6346336-5765-46da-b02a-ed1a9f4807ff | Wray v. Mooneyham | 589 So. 2d 181 | 1900286 | Alabama | Alabama Supreme Court | 589 So. 2d 181 (1991)
Billie H. WRAY and Laquita O. Wray
v.
John MOONEYHAM, as executor of the Estate of D.B. Mooneyham, deceased, et al.
1900286.
Supreme Court of Alabama.
August 23, 1991.
Rehearing Denied October 11, 1991.
*182 Dave Beuoy of Burke & Beuoy, Arab, for appellants.
B.J. McPherson, Oneonta, for appellees.
PER CURIAM.
In 1970, D.B. Mooneyham, Jack Mooneyham, and Joe Mooneyham purchased 173 acres of land in Blount County from Alton and Emma Gay. In 1988, Billie and Laquita Wray purchased 215 acres of land in Blount County from the heirs of W.E. Morris. Approximately 140 acres owned by the Mooneyhams are contiguous to approximately 103 acres owned by the Wrays.
After the Wrays purchased this property, they contracted with Drennen Timber Company to cut the timber on a portion of the land. After the timber company began cutting the trees, Jack Mooneyham approached Mr. Wray and advised him that he was cutting timber on land owned by the Mooneyhams. Mr. Wray did not order Drennen Timber Company to discontinue cutting timber; Drennen Timber Company continued cutting the timber, and received $10,000 for the timber cut on all of their acreage.
The Mooneyhams[1] filed a complaint in the Blount County Circuit Court, asking the trial court to determine the true and correct boundary line between their property and the Wrays' property. In their complaint, the Mooneyhams also sued the Wrays for damages for trespass. They alleged that they held the land under color of title and also by adverse possession. The trial court held that title to the disputed property was in the Mooneyhams, and it restrained and enjoined the Wrays from using the disputed property. Additionally, the trial court awarded the Mooneyhams $10,000 in damages.
The Wrays appeal, raising two issues. They argue that the trial court erred in holding that title to the disputed property was in the Mooneyhams. They also argue that the trespass damages awarded were unsupported by the evidence and were excessive. We address the issues in order.
It is undisputed that the boundary line between the Mooneyhams' property and the Wrays' property runs roughly north to south, and that the Mooneyham property is west of the Wrays' property. For a physical description of the disputed property, see Appendix 1. The remaining references to the property will be to Appendix 1.
The Mooneyhams argue that the boundary runs south from the "channel iron in the rockpile" to the "buggy axle" to the "pipe found." The Wrays argue that the boundary runs from the "channel iron in the rockpile" to the "railroad spike" to the "pipe found."
The trial court heard ore tenus evidence. Where testimony is presented ore tenus, the trial court's findings are presumed correct and will not be disturbed unless palpably erroneous, without supporting evidence, or manifestly unjust. Howell v. Bradford, 570 So. 2d 643, 644 (Ala.1990). This presumption is especially strong in boundary line disputes and adverse possession cases. Id. at 644; Scarbrough v. Smith, 445 So. 2d 553 (Ala.1984).
The evidence concerning the Mooneyhams' claim to the land by virtue of a deed (color of title) is conflicting; that is, the parties produced conflicting evidence concerning where the deed established the boundary line. However, the following evidence supports the trial court's judgment that established the boundary line in accordance *183 with the Mooneyhams' arguments concerning the location of the boundary line as established by the deed:
Pete Copeland, a former owner of the Mooneyham property, testified that his father had owned the Mooneyham property and that both he and his father had established the boundary east of the chert road where the Mooneyhams claim it to be.
Ray Jones, an owner of adjoining land, testified that before the Mooneyhams purchased the property, he was offered the Mooneyham property for sale and that the agent represented the boundary line to be as the Mooneyhams stated it to be.
Additionally, Frank Hollis, the Mooneyhams' surveyor, used the deed's description of the land, Government field notes and maps, surveys done in the area, and various points on the ground and calculated the boundary to be as the Mooneyhams assert it to be.
Viewing the evidence with the appropriate presumption of correctness, we hold that the trial court's determination of the boundary line is supported by the evidence.
The Wrays next argue that the damages for trespass were unsupported by the evidence and that they were excessive.
The correct measure of damages for trespass on land is the difference between the value of the land immediately before the trespass and the value immediately after it. Dollar v. McKinney, 267 Ala. 627, 103 So. 2d 785 (1958); See Boatright v. Morgan, 575 So. 2d 1091 (Ala.1991). The only evidence presented concerning damages was the testimony of Jack Mooneyham. Mooneyham stated that, in his opinion, the value of the tract of land of which the disputed property is a part,[2] was approximately $19,000 before the timber was cut and $10,000 thereafter.
Moreover, this Court has stated the following concerning damages in an action for trespass:
Mr. Wray admitted that he was informed at least twice by Jack Mooneyham that the boundary was in dispute, and that he was asked not to cut the timber until the dispute was resolved. Nevertheless, he made no effort to have Drennen Timber Company discontinue cutting the timber.
The trial court's award of $10,000 is supported by the evidence and is not excessive.
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur.
*184
[1] John Mooneyham, as executor, sued on behalf of the estate of D.B. Mooneyham, deceased.
[2] Although we have previously stated in this opinion that the Mooneyhams own 173 acres of land. Jack Mooneyham's statement concerning the value of the "tract of land" concerns only 33 acres. | August 23, 1991 |
f9f5c1f3-c7a8-4142-abe1-3bc329282878 | Maharry v. City of Gadsden | 587 So. 2d 966 | 1900735 | Alabama | Alabama Supreme Court | 587 So. 2d 966 (1991)
Mary MAHARRY and Gerald Maharry
v.
CITY OF GADSDEN.
1900735.
Supreme Court of Alabama.
September 6, 1991.
*967 Michael L. Roberts and Larry H. Keener of Floyd, Keener, Cusomano & Roberts, P.C., and John Edward Cunningham, Gadsden, for appellants.
George P. Ford of Ford & Hunter, P.C., Gadsden, for appellee.
MADDOX, Justice.
The issue presented in this case is whether the trial court erred in entering a summary judgment for the City of Gadsden based on a holding that "the city had no authority, right nor obligation to control, maintain or alter the roadway [where the accident occurred], nor [over] the design, striping or signing of same." Because we find that there was at least a "scintilla" of evidence that the city had control of the place of the accident, we hold that the trial court erred, and we reverse the judgment and remand the cause.
In the early 1980s, plans were made to connect Interstate Highway 759 (I-759) with State Highway 42 (S-42) somewhere in or around Gadsden, Alabama. The plans called for a joint effort by the state, city, and federal governments. Each was to contribute funds and consult on the project specifications. The state highway department advertised for bids and supervised the planning and actual construction of the project. Gadsden's chief engineer, Joseph Elmore, participated in the project at both of these stages. Copies of the project's blueprints were sent to Elmore, and he was involved in several inspections at differing stages of the project.
The resulting spur or connection roadway ran westwardly out of Gadsden as George Wallace Drive and connected with I-759 near a bridge over the Coosa River. This westward route sloped northward after passing the bridge. An exit to Highway 411 connected nearby. The eastbound and westbound lanes of this spur ran side-by-side; that is, there was no buffer or separating medium between the lanes.
On the evening of October 30, 1986, the Maharrys, appellants here and plaintiffs below, were travelling westward on this I-759 *968 spur. Mr. Maharry wanted to reach the exit to Highway 411 south and became confused as he saw the northward slope of I-759 west. According to his affidavit, he believed that the northward slope of the spur was the exit for Highway 411 north. In order to avoid exiting to Highway 411 north, he shifted one lane to the left. This lane turned out to be the eastbound lane of the I-759 spur. Immediately after changing lanes, the Maharrys collided with an eastbound vehicle.
On May 27, 1987, the Maharrys filed this action against the City of Gadsden, alleging negligent design and maintenance of a dangerous condition, and alleging negligent failure to correct, or ask for corrections on, the spur. The defendants filed a motion for summary judgment on January 10, 1989, asserting that the City had no obligation to correct the condition. The trial court agreed with the City's position and granted the City's motion for summary judgment. The Maharrys appealed.
The standard of review for a summary judgment motion has been repeatedly stated. In order to grant the motion, the court must find clearly that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Tripp v. Humana, Inc., 474 So. 2d 88 (Ala.1985). The movant bears the burden initially of showing the two prongs of the standard. Id. at 90. If this burden is met, the burden shifts to the non-movant to rebut the showing. Id. Because this action was pending on June 11, 1987, the "scintilla of evidence" rule applies. Ala. Code 1975, § 12-21-12. Our review is de novo. Tolbert v. Gulsby, 333 So. 2d 129 (Ala.1976), Frank Davis Buick AMC-Jeep, Inc. v. First Alabama Bank of Huntsville, 423 So. 2d 855 (Ala.Civ.App.1982).
It seems from our review that the City called into question almost every element of the Maharrys' cause of action, although the trial court bottomed its ruling on lack of "control." The basic elements of any negligence action are: 1) an obligation owed by the defendant to the plaintiff, 2) a breach of the standard of care applicable to that obligation, 3) causation, and 4) damage. See, Rutley v. Country Skillet Poultry Co., 549 So. 2d 82 (Ala. 1989). Having examined the documents submitted in support of, and those in opposition to, the motion for summary judgment in light of the scintilla standard, we conclude that the appellants met their rebuttal burden.
As to the obligation owed, the submissions of the Maharrys show several alternative theories upon which an obligation could be predicated. The major contention of the City was that no evidence of "control" was shown by the Maharrys.[1] The trial court used the lack of "control" as a reason for granting the City's motion for summary judgment.
We find that the Maharrys presented at least a scintilla of evidence tending to establish that the roadway at issue was not officially designated as a state road until after the accident. Viewing this evidence in the light most favorable to the Maharrys, it is logical to infer that the City had control because the state had not taken control of the roadway. Also, the Maharrys submitted a contract between the state and the City, from which a jury could have inferred control or ability to control. Thus, at the very least, the Maharrys presented a scintilla of evidence as to the obligation element.
Was there a scintilla of evidence that the City breached its obligation to the travelling public? We think so. The Maharrys offered the affidavit of Jack Chambliss, an engineer and traffic and roadway expert. That affidavit presents at least a scintilla of evidence that there was a failure to conform with standard traffic engineering *969 practices, and the Chambliss affidavit also was sufficient to show causation.
As to damage, the Maharrys submitted answers to interrogatories and depositions that more than adequately established a scintilla of evidence as to this element. In fact, there is no question that there was sufficient evidence of the damage element.
If the substantial evidence rule were applicable, it might be debatable whether the plaintiffs had sustained their rebuttal burden of showing a genuine issue of material fact. However, the scintilla rule applies, and we hold that there was at least a scintilla of evidence that the City had control of the roadway at the time of the accident. We hold, therefore, that the judgment of the trial court is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Last term, this Court held in Harris v. Macon County, 579 So. 2d 1295 (Ala.1991), that a right to control, or a right to participate in control, is necessary to hold a county or municipality responsible for negligent construction, design, or maintenance of a roadway. This was a slight shift from our holding in Perry v. Mobile County, 533 So. 2d 602, 604 (Ala.1988), which said that exclusive control was required. Both of these cases are distinguishable in that the "substantial evidence" rule applied to them. See § 12-21-12, Ala.Code 1975. | September 6, 1991 |
c38b30a8-b492-4602-9d09-ae5fcbdc7538 | Cannon v. State Farm | 590 So. 2d 191 | 1900796 | Alabama | Alabama Supreme Court | 590 So. 2d 191 (1991)
Elizabeth CANNON, a minor, By and Through her mother and next friend, Cynthia CANNON
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
1900796.
Supreme Court of Alabama.
August 30, 1991.
Rehearing Denied November 1, 1991.
*192 Michael J. Gamble of Cherry, Givens, Tarver, Peters, Lockett & Diaz, Dothan, for appellant.
Joel W. Ramsey of Ramsey, Baxley, McDougle & Collier, Dothan, for appellee.
STEAGALL, Justice.
Elizabeth Cannon, through her mother and next friend, Cynthia Cannon, appeals from a summary judgment entered in favor of State Farm Mutual Automobile Insurance Company in a case involving a claim for uninsured motorist benefits. The trial court ruled that Cynthia Cannon's automobile insurance policy did not provide coverage for accidents involving an "all-terrain vehicle" ("ATV") on property not considered a public road. We agree.
The facts in this case are essentially undisputed. On May 21, 1988, Billy Cannon (Cynthia's uncle and Elizabeth's granduncle), along with several other members of the Cannon family, attended a family cookout at the home of the Dansby family in Cottonwood, Alabama. Billy had brought with him his 1988 model Honda TRX 300 ATV. During the afternoon, Billy allowed the children to ride with him on the ATV, one passenger at a time. He would take the children for rides by crossing the paved road directly in front of the Dansby home, driving onto a vacant lot on the opposite side of the road, and then returning. During one riding trip, Billy and Elizabeth were returning from the vacant lot when an accident occurred. The following is Billy's deposition testimony regarding the accident:
As a result of the accident, Elizabeth's leg was broken. Billy had no insurance coverage on the ATV; his homeowner's insurance policy provided no coverage for any claim arising out of the accident.[1]
Cynthia made a claim to recover damages for her daughter's injuries under the uninsured motorist provisions of her automobile insurance policy with State Farm. She claimed that the accident occurred on the public road right-of-way and was, therefore, covered under the automobile policy. State Farm denied her claim, citing Section III of the policy (as amended), "Uninsured Motor Vehicle, Coverage U," which states:
Elizabeth Cannon, through her mother, Cynthia, sued State Farm, claiming benefits under her mother's policy. The trial court, on December 20, 1990, entered a summary judgment in favor of State Farm. The court's order reads, in pertinent part:
On that same day, Cannon filed a document styled as a motion for "summary judgment," asking the court to set aside its summary judgment in favor of State Farm. On January 2, 1991, the trial court denied Cannon's motion. Cannon appeals the summary judgment for State Farm.
State Farm moved to dismiss the appeal, contending that Cannon's February 13, 1991, notice of appeal was untimely because more than 42 days had passed from the trial court's summary judgment of December 20, 1990. Cannon asserts that her December 20 motion for summary judgment was also a post-judgment motion to set aside the judgment, pursuant to Rule 59(e), A.R.Civ.P., and, thus, that the running of the 42-day period within which to appeal was tolled until the trial court's ruling on her motion on January 2, 1991.
Although Cannon's December 20 motion was labeled a motion for "summary judgment," it contained the statement "Plaintiff request[s] the court to set aside the judgment previously entered"; this language is consistent with that of Rule 59(e). This Court considers the substance of a motion, rather than its style, in determining the kind of motion a party has filed. Sexton v. Prisock, 495 So. 2d 581 (Ala. 1986). Because of the substance of Cannon's motion, we consider it to be a motion properly brought under Rule 59(e), which provides for motions for new trial or to alter, amend, or vacate a judgment. Thus, we view Cannon's December 20 motion as a Rule 59(e) post-judgment motion.
A motion filed under Rule 59, even though it follows a summary judgment, *194 suspends the running of the time for filing a notice of appeal. See Rule 4(a)(3), A.R.App.P.; see, also, Sexton v. Prisock, supra. Therefore, Cannon's December 20 motion tolled the time for appeal. When the trial court ruled on the motion on January 2, 1991, Cannon had 42 days to file her appeal. Accordingly, her February 13, 1991, notice of appeal was timely filed. We deny State Farm's motion to dismiss the appeal.
Cannon contends that the trial court erred in entering a summary judgment based on its construction and application of the term "while on public roads." Alternatively, she argues that the trial court erred by failing to hold that the term "while on public roads" was ambiguous. State Farm asserts that the term "while on public roads" is not ambiguous, that Billy Cannon was not on a public road at the time of the accident, and, thus, that, under the policy provisions, State Farm is not liable for insurance coverage regarding the accident.
Initially, we point out that a summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P. Once the moving party has made a prima facie showing that no genuine issue of material fact exists, the burden shifts to the nonmovant to provide "substantial evidence" in support of his position. Ala.Code 1975, § 12-21-12; Rule 56, A.R.Civ.P.; Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990); Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989). The trial court is required to view all of the evidence offered by the moving party in support of its motion in the light most favorable to the nonmovant. Hanners, supra, and Bass, supra.
Additionally, we are governed by our previous decisions regarding the construction of insurance contracts. We have held that "[c]ourts are not at liberty to rewrite policies to provide coverage not intended," and that "[i]n the absence of a statutory provision to the contrary, insurance companies have the right to limit their liability and to write policies with narrow coverage." Altiere v. Blue Cross & Blue Shield of Alabama, 551 So. 2d 290, 292 (Ala.1989) (citations omitted). If a court determines that an insurance contract is ambiguous, it will resolve the ambiguity in favor of the insured. Id. Where no ambiguity exists, an insurance contract will be enforced as written. Monninger v. Group Ins. Service Center, Inc., 494 So. 2d 41 (Ala.1986). In light of these principles, we address the merits of Cannon's contentions.
The policy in this case does not define the term "public road." The thrust of this appeal concerns whether the accident occurred on a public road. If it did, State Farm is liable under the policy; if it did not, the policy does not provide coverage. Cannon argues that a "public road" includes a right-of-way extending 11 feet off the paved portion on each side of the road. State Farm contends that a "public road" extends only to the paved portion of the road. Because the parties construe the term "public road" differently, Cannon claims that the policy in question contains an ambiguity. We disagree.
"`The mere fact that adverse parties contend for different constructions [of a particular policy provision] does not of itself force the conclusion that the disputed language is ambiguous.'" Upton v. Mississippi Valley Title Ins. Co., 469 So. 2d 548, 554 (Ala.1985), quoting Antram v. Stuyvesant Life Ins. Co., 291 Ala. 716, 720, 287 So. 2d 837, 840 (1973). An ambiguity exists where a term is reasonably subject to more than one interpretation. See, generally, Black's Law Dictionary 73 (rev. 5th ed. 1979). However, we do not view the term "public road" as ambiguous as it pertains to insurance coverage.
We look to the plain, ordinary meaning or popular sense of the word "public road" as it pertains to this insurance contract. A "public road" has been defined as a road used for "general circulation of vehicles." J. Appleman, Insurance Law and Practice § 4291 (1979). A public road includes the "`traveled' portion" of a roadway, designed *195 or ordinarily used for vehicular travel, exclusive of the berm or shoulder. Bloomquist v. NWNL Gen. Ins. Co., 421 N.W.2d 416 (Minn.App.1988). The term "`public road' connotes that portion of the public way ordinarily used for vehicular traffic in contradistinction to the `sidewalk' area." Lally v. Automobile Mut. Ins. Co. of America, 114 R.I. 582, 585, 337 A.2d 243, 245 (1975). Thus, we agree with the trial court's holding that the term "public road," in the context of this uninsured motorist provision, means "the surface on which the [uninsured] might operate the vehicle."
The facts of this case support the trial court's holding. According to State Farm, the contract provision "except while on public roads" was intended to expand coverage under the policy. It appears that the expansion was intended for off-road vehicles that temporarily cross or move on public roads to reach a particular off-road site for recreation. However, Billy, the uninsured motorist, was not driving on the paved portion of the road; rather he had simply crossed the paved portion of the road and entered the front yard of the Dansby home. He stated in his deposition that he was in the "yard" when the accident occurred. Exhibits offered by both Cannon and State Farm, consisting of four photographs of the area where the accident occurred, provide undisputed evidence that Billy was well off the paved road and onto the front yard of the Dansby home when the accident occurred.
We conclude that under the facts of this case the trial court correctly construed and applied the terms of the insurance contract. Therefore, the judgment of the trial court is due to be, and it is hereby, affirmed.
MOTION TO DISMISS DENIED; AFFIRMED.
MADDOX, SHORES, ADAMS and INGRAM, JJ., concur.
[1] The record does not reveal the identity of the carrier of Billy's policy of homeowner's insurance; however, his policy is not the subject of this appeal. | August 30, 1991 |
417e7ef1-d313-41d5-84f7-bc8a04bccf52 | ALABAMA GREAT SOUTHERN R. v. Jackson | 587 So. 2d 959 | 1900284 | Alabama | Alabama Supreme Court | 587 So. 2d 959 (1991)
The ALABAMA GREAT SOUTHERN RAILROAD COMPANY
v.
Henry L. JACKSON.
1900284.
Supreme Court of Alabama.
September 6, 1991.
*960 Vernon L. Wells II and James E. Ferguson III of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellant.
Frank O. Burge, Jr. and Courtney B. Adams of Burge & Wettermark, P.C., Birmingham, for appellee.
HORNSBY, Chief Justice.
The Alabama Great Southern Railroad Company ("AGS") appeals from a judgment rendered on a jury verdict in favor of Henry L. Jackson in an action under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq. Jackson *961 sued AGS, alleging negligent infliction of emotional distress and claiming that AGS was negligent in conducting an unannounced "rules check" on the railroad line. The jury agreed with Jackson and awarded him $30,000 in compensatory damages.
AGS raises three issues on appeal; it challenges the trial court's denial of its motions for 1) a directed verdict; 2) a judgment notwithstanding the verdict; and 3) a new trial.
The undisputed facts are as follows: On the night of April 16, 1986, Jackson was the conductor on train number 179 traveling from Chattanooga, Tennessee, to Birmingham, Alabama. Jackson was positioned on the second engine unit, with four other crew's members appropriately positioned throughout the train. As conductor, Jackson was responsible for his crew's performing their duties within the established safety and operating rules of the railroad line. Unknown to Jackson, two supervisory employees of AGS, a Mr. Walton and a Mr. Sutton, had secretly boarded the train in Wauhatchie Tennessee, around 1:00 a.m. or 2:00 a.m. eastern standard time for the purpose of evaluating the crew's performance.[1] Walton and Sutton had climbed aboard the second locomotive because they believed no one was aboard that locomotive. However, upon boarding the locomotive, they discovered evidence of Jackson's presence, e.g., Jackson's bag or "grip," along with his clip board identifying the crew members. Walton and Sutton immediately began searching for ways to conceal their presence on the train, such as attempting to leave the train or to ride on the outside walkway of the second locomotive. They then observed Jackson approaching from the lead locomotive unit and quickly decided to hide in the small bathroom located in the "nose" of the locomotive. With the door closed, the bathroom was "very small and cramped for two men." Upon returning to the second locomotive, Jackson attempted to open the bathroom door, but it appeared to be jammed (Sutton was holding the door shut from inside the bathroom). Jackson resumed his duties of operating the train.
As the train continued moving southward, Walton and Sutton periodically opened the bathroom door to observe and evaluate Jackson as he performed his duties. Jackson occasionally heard noises coming from the bathroom area, but dismissed them as noise coming from a refrigerator located next to the bathroom. After a "substantial period of time" in the bathroom, Sutton's legs became cramped and the two men decided to leave the bathroom. To alert Jackson of their presence, they opened the bathroom door and "dropped a metal packing hook on the floor." When Jackson heard the noise, he looked toward the bathroom and saw that the door was now open. He approached the open door with his lantern, looked inside the bathroom, and saw two "figures from the chest down." He began hollering "Who is that?" and "Come out." When there was no response, Jackson again called out "Who is that?" and "Come out," whereupon Walton responded with "It's me, H.L. It's me, Walton." Walton said Jackson was visibly shaken by the incident, and Walton inquired whether Jackson was all right. The three men engaged in casual conversation for a few moments; then Walton and Sutton proceeded toward the lead locomotive for an inspection. In the lead locomotive, the two men found the brakeman sleeping, in violation of the railroad's operating rules. Later, Jackson was called to the lead locomotive, where a discussion took place concerning the violation. Soon thereafter, Walton and Sutton disembarked from the train during a stop in Attalla, Alabama. Jackson and his crew continued their run to Birmingham.
When Jackson's shift ended that morning, he began to experience chest pains and a severe headache, which continued for several days. After nonprescription drugs *962 failed to relieve his discomfort, Jackson visited a physician, Dr. Zeremba. After an examination, Dr. Zeremba placed Jackson in a hospital for a series of tests, which consisted of X-rays, an electrocardiogram (EKG), an upper gastrointestinal (G.I.) series of tests, a computerized axial tomography (CAT) scan, and a treadmill test. Dr. Zeremba placed Jackson on prescribed medication for his chest pains and headaches. Jackson's headaches persisted for approximately six months before they finally ceased. Dr. Zeremba made no conclusive findings as to the cause of Jackson's condition, but stated that the symptoms were consistent with stress; he did not indicate that Jackson was, in fact, suffering from stress or, more importantly, stress resulting from the incident of April 16, 1986. Moreover, the record contains no medical evidence of any physical injury suffered by Jackson.
On August 27, 1986, Jackson sued AGS, alleging negligent infliction of emotional distress and seeking $500,000 in damages. After a lengthy discovery process, a trial ensued in June 1990. At the close of Jackson's case, AGS unsuccessfully moved for a directed verdict. AGS renewed its motion at the conclusion of all the evidence, but the court again denied the motion. After the jury returned its $30,000 verdict in favor of Jackson, AGS motioned for a JNOV or, in the alternative, for a new trial. On October 3, 1990, AGS's two motions were denied by virtue of Rule 59.1, A.R.Civ.P. On appeal, AGS challenges the verdict as well as the trial court's denial of its motions for directed verdict, JNOV, and new trial.
AGS contends that the trial court erred in denying its motion for a directed verdict because, it argues, the FELA does not provide for a cause of action for a "purely emotional injury" unless there is evidence of "unconscionable abuse" or evidence that the plaintiff suffered a "severe emotional injury." AGS bases its argument on Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S. 557, 107 S. Ct. 1410, 94 L. Ed. 2d 563 (1987).
We note that our review of the denial of a directed verdict and JNOV in this FELA case is governed by the substantial evidence rule applicable in our state courts. As a general matter, FELA cases adjudicated in a state court are subject to the state's procedural rules. However, the substantive law governing such cases is federal. St. Louis Southwestern Ry. v. Dickerson, 470 U.S. 409, 105 S. Ct. 1347, 84 L. Ed. 2d 303 (1985). See, also, Burlington Northern R.R. v. Warren, 574 So. 2d 758 (Ala.1990), and cases cited therein. Thus, the standard for reviewing the denial of a motion for a directed verdict is whether the party with the burden of proof, in this case Jackson, has produced substantial evidence of the elements of his cause of action to require a jury's determination. Macon County Commission v. Sanders, 555 So. 2d 1054 (Ala.1990); see Ala.Code 1975, § 12-21-12. With this standard in mind, we address the merits of AGS's claims.
AGS claims that the case should not have been submitted to a jury because 1) it says there was no evidence that AGS's conduct constituted "unconscionable abuse" or that Jackson sustained a "severe emotional injury," as AGS says is required by the FELA; 2) there was no conclusive expert medical testimony establishing that Jackson's physical symptoms resulted directly from the conduct of AGS's employees; and 3) there was no evidence, AGS claims, that Jackson's reaction to Walton and Sutton in the locomotive restroom was foreseeable to AGS.
The core of AGS's argument rests on the authority of Atchison, Topeka & Santa Fe Ry. v. Buell, supra. That case, relied on so heavily by AGS, does not necessarily stand for the proposition that AGS claims it does. The Buell Court stated:
480 U.S. at 567, 107 S. Ct. at 1416. The Court went further to state:
480 U.S. at 568-70, 107 S. Ct. at 1417-18. The Buell Court simply did not address the question that AGS specifically contends it did. The terminology used by AGS can be found in a footnote in which the Buell Court simply commented on the unreasonableness of an argument contained in an amici curiae brief. 480 U.S. at 566-67, n. 18, 107 S. Ct. at 1416 n. 18.
The FELA was originally enacted by Congress in 1906 in order to "create[] a tort remedy for railroad workers injured on the job." Lancaster v. Norfolk & W.R.R., 773 F.2d 807, 812 (7th Cir.1985) cert. denied, 480 U.S. 945, 107 S. Ct. 1602, 94 L. Ed. 2d 788 (1987); Yawn v. Southern Ry., 591 F.2d 312, 317 (5th Cir.), cert. denied, 442 U.S. 934, 99 S. Ct. 2869, 61 L. Ed. 2d 304 (1979). The statute's main purpose was to enable injured railroad workers to overcome a number of traditional defenses to tort liability that had previously operated to bar their actions, including contributory negligence, contractual waiver of liability, the fellow-servant rule, and assumption of the risk. Lancaster v. Norfolk & W.R.R., 773 F.2d at 813; 45 U.S.C. §§ 51, 53-55. It was passed in response to the special needs of railroad workers, Sinkler v. Missouri Pacific R.R., 356 U.S. 326, 329, 78 S. Ct. 758, 761-62, 2 L. Ed. 2d 799 (1958), and must "be construed liberally for [their] protection." Fox v. Consolidated Rail Corp., 739 F.2d 929, 931 (3d Cir.1984), cert. denied, 469 U.S. 1190, 105 S. Ct. 962, 83 L. Ed. 2d 968 (1985).
As the Supreme Court stated in Urie v. Thompson, 337 U.S. 163, 181-82, 69 S. Ct. 1018, 1030-31, 93 L. Ed. 1282 (1949),
(Emphasis added.) The FELA provides that "every common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." (Emphasis added.) Because of its broad scope and somewhat open-ended wording, this Act has been interpreted to cover most injuries caused by railroad negligence, and the Act has not been limited to accidents that might be categorized as "railroad type injuries." Fox, supra; Harrison v. Missouri Pacific R.R., 372 U.S. 248, 83 S. Ct. 690, 9 L. Ed. 2d 711 (1963); and Masiello v. Metro-North Commuter R.R., 748 F. Supp. 199 (S.D.N.Y.1990).
Although the FELA allows an injured railroad employee to recover for injuries caused in whole or in part by the railroad's negligence, the Act does not define negligence or delineate what type of negligent acts are redressable. See Urie v. Thompson, supra. However, "[w]hat constitutes negligence for the statute's purposes is a Federal question, not varying in accordance with the differing conception of negligence applicable under state and local laws." Urie v. Thompson, 337 U.S. at 174, 69 S. Ct. at 1027. Thus, a determination of negligence is to be resolved under the common law principles established and applied in the federal courts. Id. To prevail on an FELA claim, a plaintiff must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation. Robert v. Consolidated Rail Corp., 832 F.2d 3 (1st Cir.1987); Adams v. CSX Transportation, Inc., 899 F.2d 536 (6th Cir.1990).
We have found through our review of FELA cases that the application of the FELA's negligence standard to a claim involving *964 negligent infliction of emotional distress remains an unsettled area of law. See Atchison, Topeka & Santa Fe Ry. v. Buell, supra, and Adams v. CSX Transportation, Inc., supra. Several circuits have considered such a claim and have reached a variety of conclusions.
In Adams v. CSX Transportation, Inc., supra, and Stoklosa v. Consolidated Rail Corp., 864 F.2d 425 (6th Cir.1988), the Court of Appeals for the Sixth Circuit considered the claim, but refused to answer whether such a claim is cognizable under the FELA, because it determined that the essential element of foreseeability was missing from the plaintiff's claim. In Lewy v. Southern Pacific Transportation Co., 799 F.2d 1281 (9th Cir.1986), the court stated as dictum that the FELA does cover claims for negligent infliction of wholly emotional injuries, but it did not allow such a claim. In Taylor v. Burlington Northern R.R., 787 F.2d 1309 (9th Cir.1986), the court held that the FELA applies to purely emotional injuries. In that case, a railroad employee was allowed to recover on a claim that harassment by a railroad foreman caused him to suffer paranoid schizophrenia. The District Court for the District of Montana reached a similar conclusion in Toscano v. Burlington Northern R.R., 678 F. Supp. 1477 (D.Mont.1987), where it held that "precedent in this circuit recognizing the right of railroad employees to assert claims under the FELA for `wholly mental injury' stands unassailed." In Hammond v. Terminal R.R. Association of St. Louis, 848 F.2d 95 (7th Cir.1988), cert. denied 489 U.S. 1032, 109 S. Ct. 1170, 103 L. Ed. 2d 229 (1989), the court foreclosed an action alleging emotional injuries absent some physical contact or threat of physical contact. In Moody v. Maine Central R.R., 823 F.2d 693, 694 (1st Cir.1987), the court stated, "We discern from the Buell opinion an attempt to leave the door to recovery for wholly emotional injury somewhat ajar but not by any means wide open." In Netto v. Amtrak, 863 F.2d 1210, 1213 (5th Cir.1989), the court stated that Buell "appears to invite the lower courts to parse the FELA in light of the specific facts of later cases," but it affirmed a summary judgment against the claim on the ground that the plaintiff had failed to provide evidence of unconscionable or outrageous conduct by the defendant railroad. More recently, in Outten v. National R.R. Passenger Corp., 928 F.2d 74 (3d Cir.1991), the court stated that "[u]ntil the parameters of a FELA claim for negligent infliction of emotional distress are more clearly delineated, the cases must be analyzed on an ad hoc basis." But see Outten, 928 F.2d at 79 (Mansmann, J., dissenting) (as a matter of law, the FELA provides recovery for negligent infliction of emotional distress). See, also, Holliday v. Consolidated Rail Corp., 914 F.2d 421 (3d Cir.1990), cert. denied ___ U.S. ___, 111 S. Ct. 970, 112 L. Ed. 2d 1057 (1991) (Mansmann, J., dissenting) ("FELA permits a recovery for emotional distress"). 914 F.2d at 424.
Our review of this unsettled area of the law reveals that a majority of the cases cited above indicate that a claim alleging negligent infliction of emotional distress is cognizable under the FELA, but that often claimants have not provided sufficient proof to sustain such a claim. In light of this authority, this Court holds that under the facts presented in this case, Jackson presented sufficient evidence to sustain his claim of negligent infliction of emotional distress. Netto v. Amtrak, and Outten, supra. See, also, Taylor v. Burlington Northern R.R., 787 F.2d 1309 (9th Cir.1986) (an employee can recover for a purely emotional injury if that injury occurs at the workplace and the injury is caused by the negligence of an officer, employee, or agent of the carrier).
In the instant case, AGS had instructed Walton and Sutton to conduct secret job evaluations of its employees during the night shifts. AGS continued this practice, despite its acknowledgment of vandalism occurring on its trains and its cautioning its employees to be on the "lookout for anything unusual." To further compound the problem, Walton and Sutton hid in the bathroom of the second locomotive in the early hours of the morning in an effort to remain unseen while continuing to perform an evaluation. When the two men made *965 the decision to exit the bathroom, they even shrouded their exit in mystery by first throwing an object on the floor to get Jackson's attention and then not answering his inquiry as to who was in the bathroom. Even then, Walton and Sutton waited for Jackson to approach them in the darkened bathroom. Finally, when Jackson approached the two men with his night lantern, they identified themselves and left the bathroom. Both admitted that Jackson appeared frightened.
It is evident from the record that Jackson had no expectation that any supervisors would be on his train, because he had been evaluated only a month earlier. His fear may very well have stemmed from having been warned to beware of vandals on the trains. Apparently, the jury concluded that when Jackson approached the open door of the darkened bathroom around 2:00 in the morning and saw two figures from the chest down, he had a reasonable basis for believing that he was in danger of immediate personal injury; that that belief caused him to suffer an emotional injury; and that the consequences of that injury caused the various physical problems Jackson suffered in the following months. The jury also apparently concluded that Jackson's emotional injury was foreseeable and that his injury was proximately caused by the conduct of AGS and its employees.
This Court is required to presume that the jury verdict is correct, and we will not set it aside unless the verdict is the result of bias, passion, prejudice, or other improper motive. Brown v. Seaboard Coast Line R.R., 473 So. 2d 1022 (Ala.1985).
The strength of the jury verdict is based upon the right to trial by jury, White v. Fridge, 461 So. 2d 793 (Ala.1984), and a jury verdict is presumed to be correct. Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160, 162 (Ala.1988). This presumption is strengthened by the trial court's denial of a motion for a new trial.
G.M. Mosley Contractors, Inc. v. Phillips, 487 So. 2d 876, 879 (Ala.1986). See also Hollis v. Wyrosdick, 508 So. 2d 704 (Ala. 1987).
Campbell v. Burns, 512 So. 2d 1341, 1343 (Ala.1987). (Citation omitted.) See also Ashbee v. Brock, 510 So. 2d 214 (Ala.1987); Jawad v. Granade, 497 So. 2d 471 (Ala. 1986); and White v. Fridge, supra.
Although the law governing negligent infliction of emotional distress under the FELA is "unsettled," the majority of the jurisdictions that have considered the question recognize such a cause of action under a particular set of facts. We join those jurisdictions.
Our review of the record establishes that Jackson presented substantial evidence of the elements of his cause of action. Here, the record establishes negligence and extreme conduct that placed Jackson in a situation where he was subject to a severe emotional shock. Under the facts of this case, we find no error in the trial court's denial of AGS's motions for directed verdict, new trial, and JNOV. Accordingly, the judgment below is affirmed.
AFFIRMED.
*966 SHORES, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
MADDOX and STEAGALL, JJ., dissent.
STEAGALL, Justice (dissenting).
The plaintiff, Henry L. Jackson, concedes that there is apparently no case extending the common law as far as the facts of this case to permit recovery for negligent infliction of emotional distress. Nonetheless, Jackson has asked this Court to set forth a new rule for FELA cases so that a railroad employee may recover for purely emotional injuries provided that he or she reasonably feared personal physical injury. In response, although it admits such a claim is an "unsettled" area of the law, the majority is creating such a rule and is allowing Jackson to recover for emotional distress.
I do not feel that this Court is at liberty to devise a federal standard for FELA claims based on negligent infliction of emotional distress. I am especially concerned with the majority's creating a federal cause of action for negligent infliction of emotional distress when this state does not recognize such a cause of action. See Allen v. Walker, 569 So. 2d 350 (Ala.1990), and cases cited therein.
As a state court, we must be cautious in our approach to FELA cases, because we are bound by the law established by the federal courts and are not entitled to enlarge that law. Salotti v. Seaboard Coast Line R.R., 293 Ala. 1, 299 So. 2d 695 (1974), and cases cited therein. Nonetheless, the majority has established a rule that is absent from the federal common law. As the court warned in Outten v. National Railroad Passenger Corp., 928 F.2d 74, 79 (3d Cir.1991):
More recently, the Outten decision has been followed in Huber v. National Railroad Passenger Corp., [Ms. 90-2045, April 17, 1991] 1991 WL 61149 (E.D.Pa.1991), and Smith v. Southeastern Pennsylvania Transportation Authority, [Ms. 88-5879, July 9, 1991] 1991 WL 127066 (E.D.Pa. 1991).
In Holliday v. Consolidated Rail Corp., 914 F.2d 421 (3d Cir.1990), the court foreclosed an action based on emotional injuries and warned of the dangers resulting from establishing a rule like the one the majority has created here:
914 F.2d at 427.
I find no authority in the present state of the common law to permit Jackson to recover on a cause of action based on negligent infliction of emotional distress. Thus, I would hold that the trial court erred in not directing a verdict for Alabama Great Southern Railroad Company.
MADDOX, J., concurs.
[1] Walton and Sutton had planned to perform a job evaluation of the crew of the "Purvis coal train"; however, that train had left the Chattanooga train station earlier than scheduled. Thus, Walton and Sutton boarded train number 179 instead. After the two boarded the train, they decided to conduct an evaluation of Jackson and his crew, despite the fact that Walton and Sutton had conducted an evaluation of Jackson and his crew the previous month. | September 6, 1991 |
9cec3f2a-f173-4431-b52d-3bdd40f19033 | Carpenter v. Davis | 688 So. 2d 256 | 1951612 | Alabama | Alabama Supreme Court | 688 So. 2d 256 (1997)
James C. CARPENTER
v.
Billy B. DAVIS, et al.
1951612.
Supreme Court of Alabama.
January 10, 1997.
*257 Thomas D. Motley, Dothan, for Appellant.
Alfred J. Danner, Geneva, for Appellees.
HOUSTON, Justice.
Billy B. Davis, Revon Tidwell, and Wendell Baker sued James C. Carpenter, seeking to compel Carpenter's compliance with certain restrictive covenants that had been recorded concerning the construction of homes in the Lake Home Subdivision in Geneva County. Carpenter filed a third-party complaint and various counterclaims. Carpenter moved for a summary judgment on the complaint, which the trial court denied. The plaintiffs moved for a summary judgment, which the trial court granted. The court held that Carpenter had violated the provisions of the restrictive covenants, and it permanently enjoined Carpenter from "residing [in], selling or transferring [his] dwelling ... until such time as he is in compliance with the restrictive covenants." The trial court made the summary judgment final pursuant to Rule 54(b), Ala.R.Civ.P. Carpenter appeals, arguing that the trial court erred in holding, as a matter of law, that Carpenter had violated the restrictive covenants of the subdivision and in permanently enjoining him from "residing [in], selling, or transferring [his] dwelling" until he had complied with the restrictive covenants.
The plaintiffs are all homeowners in the Lake Home Subdivision. Before the development of the subdivision, restrictive covenants were placed on the size of the dwelling that could be erected on each lot in the subdivision. Those covenants were filed on August 25, 1969. Carpenter acquired a deed to his lot on July 14, 1995, and duly recorded it on that same day. Thereafter, he started construction, and on August 16, 1995, while construction was still ongoing, Carpenter was notified by certified mail that his construction was not in compliance with certain restrictive covenantsspecifically, that the dwelling he was constructing contained less than 1150 square feet. The house was completed in October 1995; it consists of a heated area of 634 square feet, a storage room of 32 square feet, a porch of 169 square feet, and a carport of 696[1] square feet.
The restrictive covenants, as originally recorded, provided, in part, as follows:
(Emphasis added.)
A summary judgment is appropriate upon a showing that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. In reviewing a summary judgment, this Court will view the evidence in the light most favorable to the nonmoving party and will resolve all reasonable doubts against the moving party. Fincher v. Robinson Brothers Lincoln-Mercury, Inc., 583 So. 2d 256 (Ala.1991).
The facts in this case are undisputed; therefore, we will review the trial court's application of the law to those facts to determine whether the plaintiffs were entitled to a judgment as a matter of law.
Although restrictive covenants are valid and will be recognized and enforced when established by contract between the parties involved, Laney v. Early, 292 Ala. 227, 292 So. 2d 103 (1974), they are not favored in the law and will be strictly construed, with all reasonable doubts resolved in favor of the free and unrestricted use of land and against the restriction. See Ervin v. Deloney Construction, Inc., 596 So. 2d 593, 595 (Ala.1992), in which the Court, setting out the standard for reviewing for restrictive covenants, held that the term "`dwelling,' as that word is used in the restrictive covenant [at issue in Ervin was] simply another word used to mean a house in which a person or persons reside," and that the slight encroachment of Ervin's swimming pool and pumphouse onto the lot belonging to the adjoining landowner did not constitute the placement of a "dwelling" on that lot within the meaning of the restrictive covenant in that case; see, also Lange v. Scofield, 567 So. 2d 1299 (Ala. 1990). Where there is no inconsistency or ambiguity within a restrictive covenant, the clear and plain language of the covenant is enforceable by injunctive relief. Dauphin Island Property Owners Ass'n, Inc. v. Kuppersmith, 371 So. 2d 31 (Ala.1979); Spygley v. Miller, 356 So. 2d 644 (Ala.1978); Hall v. Gulledge, 274 Ala. 105, 145 So. 2d 794 (1962).
This Court has not specifically defined the term "dwelling" as it is used in restrictive covenants such as the one at issue in this case. Nevertheless, given the holding in Ervin v. Deloney Construction, supra, we think it apparent that the Court has concluded that the term "dwelling" means a house in which a person or persons reside. Furthermore, considering the restrictive covenants in this case as a whole (some provisions refer only to a "dwelling," while another refers to a "dwelling, garage or storage building"), we think it is readily apparent that the drafters of the covenants did not intend the term "dwelling" to include a garage or a storage building. Otherwise, they would not have delineated, in the alternative, the terms "dwelling, garage or storage building" in one of the provisions.
Because we conclude that neither a carport nor a storage room constitutes a place where one resides and, therefore, that neither can be considered part of the "dwelling," we must also conclude that there is not sufficient square footage for Carpenter's dwelling to comply with the restrictive covenants. (We note that in deciding the issue before us it is not necessary for us to decide whether a porch is part of a "dwelling.") The square footage of the house and its porch, together, is only 803 square feet; therefore, the "dwelling" is necessarily smaller than the area required by the covenants.
The trial court properly entered the judgment for the plaintiffs.
AFFIRMED.
HOOPER, C.J., and MADDOX, KENNEDY, and BUTTS, JJ., concur.
[1] While one document in the record indicates that the carport had 696 square feet, other filings in this case indicate it had 690 square feet. | January 10, 1997 |
2ff4709b-6129-4b40-b012-0c8a5ad0c8ef | Johnson v. Coshatt | 591 So. 2d 483 | 1901158 | Alabama | Alabama Supreme Court | 591 So. 2d 483 (1991)
Lawrence Dean JOHNSON
v.
Emmett M. COSHATT and Carol J. Coshatt.
1901158.
Supreme Court of Alabama.
December 20, 1991.
James P. Hess of Burwell, Hess, McMurtrie & Johnson, P.C., Huntsville, for appellant.
Jimmy F. Carnes of Carnes & Carnes, P.C., Albertville, for appellees.
HOUSTON, Justice.
The plaintiff appeals from a judgment entered in a boundary line dispute between coterminous landowners. We affirm.
Lawrence Dean Johnson sued Emmett M. Coshatt and Carol J. Coshatt, alleging ownership, by adverse possession, of a strip of land approximately five feet in width that adjoins and runs along the northeastern boundary of Johnson's property ("the disputed strip"). The disputed strip is an untravelled part of an easement 25 feet in width that was purchased by the Coshatts to provide a means of ingress to and egress from their landlocked property. The disputed strip gradually slopes down and away from Johnson's property to the portion of the easement that is travelled. Johnson also alleged that he had acquired by prescription the nonexclusive right to *484 use the Coshatts' easement. The trial court entered a judgment for the Coshatts and set the boundary between the parties' property.[1]
The issues presented for our review are 1) whether the trial court erred in finding that Johnson had not acquired ownership of the disputed strip by adverse possession and 2) whether the trial court erred in finding that Johnson had not acquired a prescriptive easement.
In Strickland v. Markos, 566 So. 2d 229, 232 (Ala.1990), this Court discussed the forms of adverse possession in Alabama:
The Court went on to explain that to satisfy the "open" and "notorious" possession elements, the claimant must present evidence sufficient to show "that his acts of dominion and control over the property were of such character and distinction as would reasonably notify the landowner that an adverse claim [was] being asserted against his land." 566 So. 2d at 232. The Court further defined "exclusive possession" as follows:
566 So. 2d at 235, quoting 2 C.J.S., Adverse Possession § 54 (1972).
In this case, Johnson, relying on the doctrine of "tacking," presented undisputed evidence that the tenants of his predecessor in title had cut the grass on the disputed strip for almost 40 years. See Strickland at 233 for an explanation of the doctrine of "tacking." However, other evidence, also undisputed, showed that, because of its location, it was convenient, and perhaps more desirable, for aesthetic purposes, for Johnson and the tenants of his predecessor in title to cut the grass on the disputed strip for the Coshatts and their predecessors in title; that the grass on the disputed strip did not grow very well and had to be cut only every two weeks during the growing season; and that it took only a few minutes to cut the grass. Other evidence also showed that at various times over the years the sons of the Coshatts' predecessors in title had used the disputed strip for certain purposes (e.g., to load lawn mowers and to run motorcycles across). The Coshatts recently installed a new underground water line on the disputed strip. From our review of the record, we conclude that the trial court did not err in finding that Johnson had not acquired ownership of the disputed strip by adverse possession. Considering the evidence as a whole, the trial court could have correctly concluded that the single undisputed fact that Johnson and the tenants of his predecessor in title had cut the grass on the disputed strip for almost 40 years was insufficient, as a matter of law, to establish that the Coshatts and their predecessors in title had been placed on notice that an adverse claim had been asserted against their property or that Johnson and his predecessor in title had exercised dominion over their property as sole owners, to the exclusion of all others.
In Bull v. Salsman, 435 So. 2d 27, 29 (Ala.1983), this Court discussed the kind of use that could give rise to an easement by prescription:
Although there was evidence in the present case that Johnson and the tenants of his predecessor in title had cut the grass on part of the Coshatts' easement (i.e., on the disputed strip) and that they had intermittently travelled over and parked their vehicles on the travelled portion of the easement, this evidence was also insufficient, as a matter of law, to show that their use of the easement was adverse to the Coshatts and their predecessors in title, under a claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge on the part of the Coshatts and their predecessors in title. The evidence was undisputed that the Coshatts and their predecessors in title had used the travelled portion of the easement continuously for many years as a means of ingress to and egress from their property. The record indicates that the trial court, after considering all of the evidence, correctly concluded that Johnson failed to overcome the presumption that his use of the Coshatts' easement, as well as the use of the easement by the tenants of his predecessor in title, was permissive.
For the foregoing reasons, the judgment is affirmed.
MOTION TO DISMISS DENIED; AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and STEAGALL, JJ., concur.
[1] The Coshatts moved to dismiss this appeal, arguing that Johnson made other claims that were not adjudicated below and that the trial court did not certify the judgment final pursuant to Rule 54(b), Ala.R.Civ.P. It appears to us, however, after reviewing the record, that although the trial court did not specifically address any of Johnson's claims other than his claim to the disputed strip by adverse possession, the trial court intended to adjudicate all of Johnson's claims in favor of the Coshatts. We note that the trial court stated in the judgment that Johnson's "demands for relief" were denied. Accordingly, the motion to dismiss this appeal is due to be denied. See Rule 58(b), Ala.R.Civ.P. | December 20, 1991 |
948d642e-df0b-46f1-a2ef-752da1273fa5 | Ex Parte Townsend | 589 So. 2d 711 | 1901528 | Alabama | Alabama Supreme Court | 589 So. 2d 711 (1991)
Ex parte James Edward TOWNSEND, Jr., Jimmy Davenport, and Roy Price Heald.
(Re James Edward TOWNSEND, Jr., et al. v. GENERAL MOTORS CORPORATION, et al.)
1901528.
Supreme Court of Alabama.
October 4, 1991.
*712 Leon Garmon, Gadsden, for petitioner.
D. Alan Thomas of Huie, Fernambucq & Stewart, Birmingham, for respondents Stuart Leach and General Motors Corp.
George P. Ford and Richard M. Blythe of Ford & Hunter, P.C., Gadsden, for respondents David J. Nolen, Jan Kilgore Veal, Eddie L. Taylor, Eugene L. Harrell, Mack Smith and Eugene T. Greeson.
G. Thomas Yearout, Birmingham, for respondent Joe Money Machinery Co., Inc.
Tom Burgess of London, Yancey, Elliott & Burgess, Birmingham, for respondent Pak-Mor Mfg. Co., Inc.
SHORES, Justice.
James Edward Townsend, Jr., Jimmy Davenport, and Roy Price Heald petition this Court for a writ of mandamus to the Honorable Stuart Leach, judge of the Circuit Court of Jefferson County, directing him to vacate his order of June 13, 1991, transferring a case from the Jefferson Circuit Court to the Etowah Circuit Court.
Ex parte Edgar, 543 So. 2d 682, 684 (Ala. 1989).
*713 On July 24, 1990, petitioners Townsend, Davenport, and Heald were injured in the City of Gadsden, Etowah County, when the brakes failed on the garbage truck on which they were riding. On March 15, 1991, they filed a complaint in Jefferson Circuit Court against General Motors Corporation, Pak-Mor Manufacturing Company, Inc., and Joe Money Machinery Company, Inc., claiming damages under the Alabama Extended Manufacturers Liability Doctrine and for breach of warranty; and against David J. Nolen, Jan Kilgore Veal, Eddie L. Taylor, Eugene L. Harrell, Mack Smith, and Eugene T. Greeson claiming damages based on negligence and/or wanton conduct.
On April 25, 1991, defendants Nolen, Veal, Taylor, Harrell, Smith, and Greeson filed a motion for change or transfer of venue from Jefferson County to Etowah County. On May 6, 1991, defendant Pak-Mor Manufacturing, filed a motion to dismiss, or, in the alternative, to transfer the case to Etowah County. The trial court on June 10, 1991, transferred the case to Etowah Circuit Court.
Defendants Nolen, Veal, Taylor, Harrell, Smith, and Greeson are residents of Etowah County. The plaintiffs, Townsend, Davenport, and Heald, are residents of Etowah County. The motor vehicle accident in question occurred in Etowah County. The investigation was done in Etowah County by Etowah residents, and the physical evidence surrounding the accident, including the vehicle, is located in Etowah County. Each of the plaintiffs received initial medical treatment in Etowah County, and the paramedics attending the plaintiffs after the accident reside in Etowah County. Even the wrecker driver lives in Etowah County.
The petitioners argue that Jefferson County is a proper forum because their witnesses are residents of, or regularly do business in, Jefferson County: employees or agents of Pak-Mor Manufacturing and Joe Money Machinery; Dr. Chi-Tso Huang and other medical personnel who treated Heald, Townsend, and Davenport; Heald's psychiatrist, Dr. Mallory Miree; and petitioners' expert witnesses.
General Motors is a foreign corporation doing business in Jefferson County. Pak-Mor is a foreign corporation not registered in Alabama, but it does business in Alabama by and through its distributor, Joe Money Machinery. Joe Money Machinery is a business entity with its place of business in Jefferson County, Alabama.
Where is the proper venue in a personal injury action against Joe Money Machinery, a domestic corporation? Under Alabama Code 1975, § 6-3-7, a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose. We are told that Joe Money Machinery was doing business by agent in Jefferson County at the time this suit was filed and at the time the cause of action arose. However, this is an action for damages based on personal injuries. Section 6-3-7 contains the following proviso with respect to actions based on personal injuries: "all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred." The injury occurred in Etowah County. Therefore, under the provisions of § 6-3-7, Etowah County is the only proper venue as to a domestic corporation in this personal injury action.
What is the proper venue as to Pak-Mor Manufacturing and General Motors, each of which is a foreign corporation with its principal place of business outside the State of Alabama?
Venue as to foreign corporations was the subject of Amendment 473 (proclaimed ratified April 1, 1988), which amended Article XII, § 232 of the Alabama Constitution of 1901. In pertinent part, that amendment provides: "Any foreign corporation ... may be sued only in those counties where such suit would be allowed if said foreign corporation were a domestic corporation."
Thus, insofar as venue is concerned, defendants General Motors and Pak-Mor may be sued only in those counties where a domestic corporation may be sued. Thus, *714 these two defendants are subject to the proviso in § 6-3-7 requiring that an action based on personal injuries be brought (against a domestic corporation, and now, by virtue of Amendment 473, against a foreign corporation) in the county where the injury occurred.
The Alabama constitution, as amended by Amendment 473, makes venue the same for domestic and foreign corporations and requires that they be treated identically for venue purposes. Ex parte Southern Ry., 556 So. 2d 1082 (Ala.1989). The result in a case such as the present one, this case being one based on personal injuries, was stated in Ex parte Newell, 569 So. 2d 725, 728 (Ala.1990):
What is the proper venue as to the individual defendants?
All of the individual defendants are residents of Etowah County. Section 6-3-2(a)(3) controls venue where individuals are sued in a personal action:
Thus, under the constitution and statutes of this state, the only proper venue in this case would be where the injury occurred (Etowah County); the county where the plaintiffs reside (Etowah County); or the county in which the individual defendants reside (Etowah County).
Venue was improper in Jefferson County. Accordingly, the trial court properly transferred this case to the Circuit Court of Etowah County. Rule 82(d)(1), Ala. R.Civ.P.
Because venue was improper in Jefferson County, the doctrine of forum non conveniens adopted in this state and codified at § 6-3-21.1, Code of Alabama 1975, has no application in this case. That doctrine has a field of operation only where the action is commenced in a county in which venue is appropriate.
Transfers under § 6-3-21.1 are within the discretion of the trial judge. Ex parte Canady, 563 So. 2d 1024, 1025 (Ala.1990).
Ex parte Smith, 533 So. 2d 533, 534 (Ala. 1988).
The United States Supreme Court has set forth guidelines for applying the doctrine of forum non conveniens:
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1947).
The doctrine of forum non conveniens is intended to prevent the waste of time, energy, and money and also to protect witnesses, litigants, and the public against unnecessary expense and inconvenience. Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S. Ct. 805, 809, 11 L. Ed. 2d 945 (1964).
Watson v. Defelice, 428 F. Supp. 1276, 1277 (D.D.C.1977).
The transferee forum must be "significantly more convenient" than the forum in which the action is filed, as chosen by the plaintiffs, to justify transfer. In re Oil Spill by "Amoco Cadiz" off Coast of France on March 16, 1978, 491 F. Supp. 170, 176 (N.D.Ill.1979).
We address the forum non conveniens doctrine because it is new to Alabama. The trial court should grant a motion to transfer on the ground that another venue is more convenient to the parties only when it is convinced that the right of the plaintiff to chose the forum is outweighed by the inconvenience to the parties. In order to make such a determination, the trial court may order a hearing, at which the burden is on the defendant to prove to the satisfaction of the trial court that the defendant's inconvenience and expense of defending the action in the venue selected by the plaintiff are such that the plaintiff's right to chose the forum is overcome.
WRIT DENIED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur. | October 4, 1991 |
d5415545-eecf-4280-a8cd-71822c1b89cf | City of Birmingham v. AmSouth Bank, NA | 591 So. 2d 473 | 1900799 | Alabama | Alabama Supreme Court | 591 So. 2d 473 (1991)
CITY OF BIRMINGHAM, et al.
v.
AmSOUTH BANK, N.A., et al.
1900799.
Supreme Court of Alabama.
December 13, 1991.
*474 Robert A. Jones, Jr. of Jones & Davis, P.C. and James C. Huckaby, Jr., Stephen L. Poer, James L. Richey and Ross N. Cohen of Haskell Slaughter Young & Johnston, P.A., Birmingham, for appellants.
James D. Pruett, Birmingham, for appellees.
Marshall Timberlake, William E. Shanks, Jr., James A. Bradford and Dana L. Thrasher of Balch & Bingham, Birmingham, for amici curiae Alabama Power Co., Energen Corp., O'Neal Steel, Inc., South Central Bell Telephone Co., Stockham Valves & Fittings, Inc. and Torchmark Corp.
SHORES, Justice.
The City of Birmingham ("the City") appeals from a judgment declaring the application and scope of the Birmingham occupational license fee (the "Occupational Tax") levied under Ordinance No. 70-75, as amended (the "Ordinance"). The appellees are AmSouth Bank, N.A.; AmSouth Financial Corporation; AmSouth Investment Services, Inc.; AmSouth Mortgage Company, Inc.; and the First National Bank of Birmingham, Alabama (collectively referred to as "AmSouth").
Following an audit of AmSouth in 1989 ("the audit"), the City assessed AmSouth $130,101.21 for unpaid occupational tax, interest, and penalties, for the period beginning January 1, 1984, and ending December 21, 1988. The assessment was on certain noncash compensation and indirect cash compensation. AmSouth paid $14,607 for occupational tax due on one item included in the audit, but objected to the assessment on the remaining items, leaving a balance due on the assessment of $115,494.21. AmSouth filed this declaratory action in Jefferson County, requesting, in pertinent part, the following:
The City answered AmSouth's complaint and filed a counterclaim, seeking to reduce the unpaid portion of the assessment to judgment. Subsequently, the City amended its answer to allege affirmative defenses, and amended its counterclaim to seek a judgment declaring that these forms of compensation were properly taxable under the Ordinance. After the City learned of the existence of additional forms of what it alleged was compensation that AmSouth paid to its employees, it scheduled another audit to determine whether AmSouth owed occupational tax with respect to these additional *475 forms of "compensation" and filed an action against AmSouth pursuant to Alabama Code 1975, § 11-51-150 et seq., seeking an accounting from AmSouth for a determination of what, if any, occupational taxes AmSouth might owe with respect to these additional forms of "compensation." The trial court consolidated these suits for trial, and after hearing ore tenus evidence and after reviewing testimony from numerous depositions, found as follows:
Based on that finding, the trial court held as follows:
The trial court entered a judgment as to the above-cited issues and made it final pursuant to Rule 54(b), A.R.Civ.P. The City appeals.
The Ordinance contains the following provisions pertinent to this appeal:
(Emphasis added.)
The director of finance promulgated the "Rules and Regulations for Birmingham Occupational License Tax" ("the Rules and Regulations"), effective December 1, 1970, in accordance with the authority given him in § 8 of the Ordinance. The Rules and Regulations read, in pertinent part, as follows:
"EMPLOYERS AFFECTED:
"EARNINGS USED TO MEASURE THE TAX:
Section 4 of the ordinance and § 1(f) set out above leave no doubt that the City Council intended to impose the occupational tax on "all salaries, wages, commissions, bonuses or other money payment of any kind, or any other considerations having monetary value." The regulations promulgated pursuant to the ordinance by the director of finance provide that the tax is to be measured as a percentage of "all salaries, wages or other compensation having monetary value". This language is consistent with the language of the ordinance. However, the regulations also state that "employers are required to make a payroll deduction at the rate of 1% on all earnings paid to the employees for work done within the corporate limits of the City." This language in the regulations is more restrictive than the ordinance and the language of the regulation measuring the tax at a percentage of all salaries, wages, or other compensation having monetary value. Therefore, an ambiguity exists between the ordinance and the regulation and between two provisions of the regulation itself.
City ordinances are subject to the same general rules of construction as are acts of the legislature. S & S Distributing Co. v. Town of New Hope, 334 So. 2d 905 (Ala.1976). In John Deere Co. v. Gamble, 523 So. 2d 95, 99-100 (Ala.1988), quoting from Clark v. Houston County Comm'n, 507 So. 2d 902, 903-04 (Ala.1987), this Court set out the following general rules of statutory construction, which also apply to city ordinances:
A basic rule of statutory construction is that ambiguous tax statutes are construed against the taxing authority and in favor of the taxpayer. Alabama Farm Bureau Mutual Casualty Insurance Co. v. City of Hartselle, 460 So. 2d 1219 (Ala. 1984); Owen v. West Alabama Butane Co., 278 Ala. 406, 178 So. 2d 636 (1965); see, also, Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S. Ct. 260, 76 L. Ed. 422 (1932). The Ordinance is a tax ordinance.
Another basic rule of statutory construction is that a long-standing interpretation given a statute or ordinance by officials charged with its administration is highly persuasive as to the intent of the legislative body when it enacted the statute or ordinance and, consequently, the meaning of the statute or ordinance. This is especially so where the long-standing interpretation has controlled how the public has conducted its business. See S & S Distributing Co. v. Town of New Hope, supra; Owen v. West Alabama Butane Co., 278 Ala. 406, 178 So. 2d 636 (1965). As this Court stated in International Union of Operating Engineers, Local Union No. 321 (AFL-CIO) v. Water Works Board of the City of Birmingham, 276 Ala. 462, 465, 163 So. 2d 619, 623 (1964):
The trial court found, and the evidence supports its finding, that up until the 1989 audit the City had never interpreted the ordinance, or applied the occupational tax, to any compensation other than base wages and salaries, although the ordinance clearly permits the application of the tax to any compensation having any monetary value. For this reason, apparently applying some theory of estoppel, the trial court held that the City could not now impose the tax on compensation other than base salary. In this regard the trial court erred. The Ordinance itself is unambiguous. It clearly provides for a tax upon any compensation having any monetary value. The regulation also provides that the tax is to be measured as a percentage of all salaries, wages, or other compensation having monetary value. It is only because the regulation states that employers are required "to make payroll deductions at the rate of 1% on all earnings paid to employees" that an ambiguity exists. This ambiguity in the regulation, which conflicts with the Ordinance itself, can not bar the City from now insisting that the Ordinance be given its plain meaning.
There is no reason why the City can not now begin to apply the tax as the Ordinance provides, i.e., to make it applicable to compensation of all kinds having a monetary value. To hold that the City can not now impose the tax as clearly provided for by the Ordinance defeats the clear purpose of the Ordinance.
We reverse the trial court's holding that the City may not now change its interpretation of the Ordinance. We affirm its holding that the new interpretation may not be applied retroactively.
We reverse the trial court's holding that items generally termed "fringe benefits," such as profit sharing plans, thrift plans, stock option plans, group life insurance, and medical benefits, are not subject to the occupational tax. We hold that the City is free to apply the occupational tax to these forms of compensation, but that it may not do so retroactively.
We affirm the trial court's holding that to the extent that the City has not taxed retirement benefits, or other payments made to an individual after the individual has terminated employment, it may not now change its interpretation of the Ordinance to include those payments under the occupational tax.
We reverse the trial court's holding that if the City has not taxed payments from a particular type of plan received by a person *478 after employment has terminated, it may not tax the same type of payments made to an individual whose employment has not terminated. We hold that the City may, from the date of this opinion, tax any form of compensation, as defined by the Ordinance, that any employee within the City of Birmingham is paid.
We affirm the trial court's holding that portions of direct compensation that are subject to the occupational tax, but which are placed in plans that are qualified under ERISA, must either be made subject to the withholding and reporting provisions of the Ordinance at the time the employer makes its contribution to the ERISA plan, or be reported by the employee at the time of withdrawal.
We reverse the trial court's holding that any changes in the application of the Ordinance must be approved by the City Council.
The judgment of the trial court is affirmed in part and reversed in part.
AFFIRMED IN PART AND REVERSED IN PART.
HORNSBY, C.J., and MADDOX, ALMON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
HOUSTON, J., concurs in the result in part and dissents in part.
HOUSTON, Justice (concurring in the result in part and dissenting in part).
I concur in the result reached by the majority insofar as it does not permit the City to collect back taxes, penalties, and interest; however, I disagree with both the rationale and the result reached by the majority insofar as it holds that the rules and regulations promulgated by the director of finance are void as a matter of law.
Looking to the language of Section 8 of the Ordinance, which specifically states that the regulations promulgated by the director of finance are binding on AmSouth as an employer, one sees that AmSouth was required to make a payroll deduction of 1% on all earnings paid to employees for work done within the corporate limits of the Citythat is, AmSouth was required to make a payroll deduction of 1% on all salaries, wages, or other compensation having monetary value paid to employees for work done within the City's corporate limits. Section 4 of the Ordinance requires employers to deduct from each payment due each employee one per centum of compensation due. The Rules and Regulations promulgated in accordance with Section 8 of the Ordinance, which Rules and Regulations "shall be binding upon all ... employers," including AmSouth, require that employers make a payroll deduction of 1% on all earnings paid to employees. "Due" is defined in Black's Law Dictionary 499 (6th ed. 1990) as "[o]wing; payable; justly owed.... Owed, or owing, as distinguished from payable. A debt is often said to be due from a person where he is the party owing it, or primarily bound to pay, whether the time for payment has or has not arrived." The phrase "earnings paid to the employee[s]" is much less inclusive than the phrase "compensation due each employee." While the definition of the word "earnings" and the definition of the word "compensation" may differ, I need not address this issue, for it is apparent that the phrase "earnings paid to the employee[s]" and the phrase "compensation due each employee" have different meanings. Under the Ordinance, employers such as AmSouth were required to deduct the tax on earnings paid to an employee and compensation due an employee. Reasonable persons would recognize that these two phrases do not mean the same thing; therefore, an ambiguity exists. See S & S Distributing Co. v. Town of New Hope, 334 So. 2d 905 (Ala.1976).
Ambiguous tax statutes or ordinances are construed against the taxing authority and in favor of the taxpayer. Alabama Farm Bureau Mutual Casualty Insurance Co. v. City of Hartselle, 460 So. 2d 1219 (Ala.1984); Owen v. West Alabama Butane Co., 278 Ala. 406, 178 So. 2d 636 (1965); see, also, Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S. Ct. 260, 76 L. Ed. 422 (1932). Following this rule, *479 the deduction is based on earnings paid, not compensation due.
In this case, the trial court, after having heard ore tenus evidence, found the following:
(Emphasis added.)
The occupational tax is applicable only to earnings paid to employees by employers until the director of finance changes the Rules and Regulations promulgated by him. Therefore, based on the foregoing, under the facts of this case, and applying the ore tenus standard of review, see Paige v. State Farm Fire & Casualty Co., 562 So. 2d 241 (Ala.1990), I would hold that the trial court was not plainly and palpably erroneous in its interpretation of the scope of taxation of the Ordinance prior to any change in these Rules and Regulations.
The Rules and Regulations promulgated by the director of finance in accordance with Section 8 of the Ordinance created an ambiguity by imposing a tax less inclusive than that permitted by the Ordinance, for the Ordinance bound employers, such as AmSouth, to follow the regulations promulgated. Because the Ordinance itself is unambiguous except to the extent that it binds employers, such as AmSouth, to follow the regulations promulgated by the director of finance (Section 8), the ambiguity can be eliminated if the director of finance changes the Rules and Regulations to allow the City to tax to the full extent authorized by Section 4 of the Ordinance. | December 13, 1991 |
c4933980-d440-43bc-bfbb-ea0dc054fc9b | Ex Parte Cowgill | 587 So. 2d 1002 | 1901290 | Alabama | Alabama Supreme Court | 587 So. 2d 1002 (1991)
Ex parte Ronald Ray COWGILL.
(Re Ronald Ray COWGILL v. BOWMAN TRANSPORTATION, INC.)
1901290.
Supreme Court of Alabama.
August 30, 1991.
Robert Wyeth Lee, Jr., Birmingham, for petitioner.
John F. Whitaker, Birmingham, for respondent.
*1003 HOUSTON, Justice.
We granted Petitioner Ronald Ray Cowgill's request to review the Court of Civil Appeals' holding that under the plain language of the Workmen's Compensation Act "there is no provision ... for the assessment of attorney's fees for the obtaining of medical and surgical expenses." 587 So. 2d 1000, 1002. The Court of Civil Appeals, affirming the trial court's order overruling Cowgill's motion to tax attorney fees against Bowman Transportation, Inc. ("Bowman"), reasoned as follows:
587 So. 2d at 1002. (Citations omitted.)
Cowgill, however, does not seek relief under the Act itself but rather in "the use of the inherent ... equity powers retained by the [trial] court to grant attorney's fees and thus effectuate the beneficent purpose of the Act."
The trial court, overruling Cowgill's motion to tax attorney's fees against Bowman, held in pertinent part as follows:
It is well settled that attorney fees are recoverable only where authorized by statute; when provided in a contract; or in certain equitable proceedings when the interests of justice so require, as in the case when the opposing party has acted in bad faith. See Reynolds v. First Alabama *1004 Bank of Montgomery, N.A., 471 So. 2d 1238 (Ala.1985), for an in-depth discussion of the exception to the "American rule" of awarding attorney fees. In the instant case, as the trial court held and as the Court of Civil Appeals held, there is no provision in the Act that allows an award of attorney fees under the circumstances before us, nor is there a contract that provides for such fees. Therefore, if we were to allow such an award, we would have to do so by invoking the equitable jurisdiction of the court so as to effectuate the beneficent purpose of the Act, which should be liberally construed in favor of the employee. In the exercise of our equitable powers, we would look to the acts of the employer to determine whether the employer was justified in refusing the payment of the requested medical and surgical expenses or whether its refusal to pay was done in bad faithi.e., whether the employer willfully and contumaciously refused to provide the expenses for the medical care necessarily and directly related to the on-the-job injury. If the actions of the employer evinced bad faith, then we would be inclined to exercise our equitable powers and, thus, utilizing our policy-making function, probably would be inclined to assess attorney fees against the employer for those bad acts. However, in this case, the trial court found that Bowman's dispute with Cowgill as to the requested expenses was asserted in good faith; and that finding is not in dispute. Therefore, under these circumstances, we could not equitably require the employer to pay the attorney fees incurred to settle the dispute.
Based on the foregoing, we quash the writ as improvidently granted.
WRIT QUASHED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, STEAGALL and INGRAM, JJ., concur. | August 30, 1991 |
967f34e4-38f9-4a36-9196-48f4ff55be21 | Trammer v. Bernstein | 596 So. 2d 572 | 1900742 | Alabama | Alabama Supreme Court | 596 So. 2d 572 (1991)
George TRAMMER
v.
Dr. Michael BERNSTEIN.
1900742.
Supreme Court of Alabama.
August 23, 1991.
Rehearing Denied March 27, 1992.
*573 Thomas Allan Wingo, Jr., Birmingham, for appellant.
H.C. Ireland III of Porterfield, Harper & Mills, Birmingham, for appellee.
ADAMS, Justice.
The plaintiff, George Trammer, appeals, contending that the trial court's determination that the statutory period of limitations had run with regard to his cause of action was error, and, therefore, that the summary judgment for the defendant was improper. We reverse and remand.
Between June 1987 and December 1987, the defendant, Dr. Michael Bernstein, performed two eye operations on George Trammer. Then, in December 1987, Dr. Bernstein allegedly advised Trammer that there was nothing further that Bernstein could do for him and that his vision should return to normal. Trammer contends that on March 17, 1988, he consulted another doctor and that that doctor said that he needed another operation in order to save his eye and that his eye would not, as stated by Dr. Bernstein, return to normal without the further surgery. Trammer sued Dr. Bernstein on March 16, 1990, alleging misrepresentation. The trial court entered a summary judgment for Dr. Bernstein, holding that the applicable statute of limitations was two years, pursuant to § 6-5-482(a), Code of Alabama (1975), and that the two years allowed had expired. Section 6-5-482 reads as follows:
§ 6-5-482, Code of Alabama (1975) (part of the Alabama Medical Liability Act, § 6-5-480 et seq.). Trammer contends that the two-year statutory period of limitations had *574 not run because, he argues, § 6-5-482(b) provides for the application of the "saving" provision of § 6-2-3, Code of Alabama (1975), to a cause of action for fraud or misrepresentation, with the express limitation that such an action would be barred if not brought within four years after the act, omission or failure complained of. See § 6-5-482, supra. Section 6-2-3 states:
At the outset, we note that in Benefield v. F. Hood Craddock Clinic, 456 So. 2d 52 (Ala.1984), we considered a claim brought by a woman alleging that her doctor had intentionally withheld information regarding certain medical problems she was having. Relying on § 6-2-3, Code of Alabama 1975, and not proceeding under § 6-5-482, she sued 10 years after the act or omission that she said injured her, alleging that that act or omission had been a fraudulent one. This Court stated:
Benefield v. F. Hood Craddock Clinic, 456 So. 2d 52, 53-54 (Ala.1984). In Benefield, the plaintiff was attempting to bring her cause of action out from under the Medical Liability Act because that Act provided that, notwithstanding the provisions of § 6-2-3, "no action shall be commenced more than four years after the act, omission or failure complained of." She filed her action 10 years after the act or omission. Therefore, her only possible way to recover was to attempt to bring her cause of action completely out from under the provisions of the Act. Such is not the case here. The plaintiff does not argue that his cause of action is not subject to the provisions of the Medical Liability Act; rather, he contends that the provisions of § 6-5-482(b) allow him to bring a fraud or misrepresentation action under the Medical Liability Act, subject to the two-year discovery rule of § 6-2-3 and the four-year maximum for such an action set forth in § 6-5-482(b). We agree.
Instructional on the issue before us is the case of Bowlin Horn v. Citizens Hospital, 425 So. 2d 1065 (Ala.1982). In that case, Justice Maddox considered the following issue:
425 So. 2d at 1070. In that case, the plaintiff, Ms. Horn, sued her doctor in 1979 for having left a piece of a sweged needle in her during an appendectomy performed in 1971. 425 So. 2d at 1066. This Court held that her action was barred, having been brought beyond the maximum limitations period of four years, and stated:
425 So. 2d at 1070-72 (footnotes omitted) (some emphasis original, other emphasis added). It is clear to us from a reading of Bowlin Horn, that a plaintiff should be entitled to maintain an action based on fraud or misrepresentation arising out of an act or omission by a physician as long as that action was filed within two years of the discovery of the fraud or misrepresentation and within four years of the act or omission. This case differs from Smith v. Bay Minette Infirmary, 485 So. 2d 716 (Ala.1986), in that in Smith the plaintiff alleged negligence and not fraud. In Smith, Justice Shores stated:
485 So. 2d at 717.
For the foregoing reasons, we hold that Trammer filed his action for misrepresentation against Dr. Bernstein within the statutory period of limitations.
REVERSED AND REMANDED.
HORNSBY, C.J., and HOUSTON, KENNEDY and INGRAM, JJ., concur.
MADDOX and STEAGALL, JJ., dissent.
*576 MADDOX, Justice (dissenting).
"The form of the action is not the decisive test in actions against physicians, surgeons and dentists for malpractice. The decisive test is the substance of the action." Sellers v. Edwards, 289 Ala. 2, 6, 265 So. 2d 438, 440 (1972). In this case, the majority of this Court has embraced form over substance and has allowed the plaintiff to bring a medical malpractice action in the guise of a claim alleging fraud and misrepresentation, thus avoiding the statute of limitations set out in Ala.Code 1975, § 6-5-482.
The facts, as set out in the majority's opinion, are relatively simple. In 1987, Dr. Michael Bernstein performed two eye operations on his patient, George Trammer. In December 1987, Dr. Bernstein informed Trammer that there was nothing further he could do for him, that his eye would return to normal, and that he would have no more pain. Thereafter, Trammer began experiencing pain in his eye and continued to lose his sight. On March 17, 1988, a second doctor informed Trammer that his eye would not return to normal and that another operation was required to save his eye. On March 16, 1990, Trammer filed suit against Dr. Bernstein. The trial court found that the true substance of Trammer's complaint was malpractice and that his claim was barred by the applicable two-year statute of limitations.
The pertinent section of the "Alabama Medical Liability Act" provides as follows:
§ 6-5-482(a).
This section was applied in Benefield v. F. Hood Craddock Clinic, 456 So. 2d 52 (Ala.1984). In Benefield, the plaintiff alleged that her physician had fraudulently misrepresented to her that she had a biological or medical condition that she did not in fact have. In reliance on her doctor's diagnosis, she decided not to have children and refused to obtain certain forms of medical care. Further, because of the information given her by her physician, she lived in fear of losing her life. In that case, this Court quoted, with approval, the trial court's judgment:
This Court then said:
456 So. 2d at 54.
This case is like Benefield. Dr. Bernstein's opinion that Trammer would not suffer any future problems with his eye was clearly made as part of his post-operative treatment of Trammer and was clearly communicated during the course of his treatment of Trammer. It is axiomatic that Trammer's right of action accrued at that time and expired two years from that date, in December 1989. The statute specifically says that "[a]ll actions against [medical care providers], whether based on contract or tort" are barred if not commenced within two years next after the act or omission. A fraud action is a tort action. Thus, Trammer's complaint, filed on March 16, 1990, was filed outside the period of limitations and was barred, as correctly determined by the trial court.
This Court's majority opinion essentially construes the statute to read "all actions, except actions for misrepresentation or fraud" must be filed within two years, and the opinion has effectively established a precedent allowing a plaintiff to avoid the statute of limitations set forth in the Medical Liability Act by couching his or her *577 medical malpractice claim in terms of misrepresentation or fraud. A plaintiff may now avoid this two-year statute of limitations by merely alleging that the physician promised an outcome other than that experienced by the plaintiff. Essentially, for purposes of the two-year statute of limitations established by the Medical Liability Act, medical malpractice claims may now be brought as claims of misrepresentation or fraud after the two-year period has expired.
STEAGALL, J., concurs. | August 23, 1991 |
7698813d-9392-464b-b529-91b67f6940a8 | Hunt v. Hubbert | 588 So. 2d 848 | 1901902, 1901907 | Alabama | Alabama Supreme Court | 588 So. 2d 848 (1991)
Guy HUNT, individually and as Governor of the State of Alabama
v.
Paul HUBBERT, et al.
Guy HUNT, individually and as Governor of the State of Alabama
v.
Wayne TEAGUE.
Guy HUNT, individually and as Governor of the State of Alabama
v.
James E. FOLSOM, Jr., et al.
G. Robin SWIFT, individually and as Finance Director of the State of Alabama, and Robert L. Childree, individually and as Comptroller of the State of Alabama
v.
Paul HUBBERT, et al.
G. Robin SWIFT, individually and as Finance Director of the State of Alabama, and Robert L. Childree, individually and as Comptroller of the State of Alabama
v.
Wayne TEAGUE.
G. Robin SWIFT, individually and as Finance Director of the State of Alabama, and Robert L. Childree, individually and as Comptroller of the State of Alabama
v.
James E. FOLSOM, et al.
1901902 to 1901907.
Supreme Court of Alabama.
October 2, 1991.
*849 Walter R. Byars of Steiner, Crum & Baker and H. William Wasden and Mark D. Hess, Montgomery, for appellant Governor Guy Hunt.
Richard F. Allen of Capell, Howard, Knabe & Cobbs, P.A. and A. Lee Miller, Montgomery, for appellants G. Robin Swift, Jr. and Robert L. Childree.
Robert D. Segall and E. Terry Brown of Copeland, Franco, Screws & Gill, P.A., Montgomery, for Dr. Paul Hubbert and Dr. David Bronner.
Richard N. Meadows and Jim R. Ippolito, Jr., Montgomery, for appellee Dr. Wayne Teague.
William M. Slaughter, James C. Huckaby, Jr., Frank M. Young III and Richard H. Walston of Haskell, Slaughter, Young & Johnston, and Jerome Tucker, Birmingham, for appellees James E. Folsom, Jr., et al.
KENNEDY, Justice.
On July 29, 1991, the last day of the 1991 Alabama regular legislative session, before the legislature's adjournment sine die (final adjournment of the session), the legislature passed the 1991 educational appropriations bill, House Bill 203. On August 8, 1991, the Governor of Alabama, Guy Hunt, attempted to approve portions of that bill and to disapprove other portions of it.
Three actions were filed challenging the Governor's attempted disapproval of portions of House Bill 203. Each action sought a judgment declaring that the Governor's attempted disapproval of portions of House Bill 203 was unconstitutional and requested that the Governor; G. Robin Swift, the State Finance Director; and Robert L. Childree, the State Comptroller, be enjoined from acting in a manner inconsistent with House Bill 203 as enacted by the legislature.[1] David Bronner and Paul Hubbert, individually and in their capacities as members of the Public Education Employees Health Insurance Board, filed one action; Wayne Teague individually and in his capacity as state superintendent of education, filed another action; and James E. Folsom, Jr., lieutenant governor of Alabama, and numerous state senators and representatives filed the third action. All three actions were consolidated for trial. For the sake of simplicity, we refer to all the arguments made by all the plaintiffs as Teague's arguments, and we refer to all the arguments made by all the defendants as the Governor's arguments.
On September 9, 1991, shortly after these actions were filed in the circuit court, the Alabama Senate requested this Court's opinion on the same issues as were raised in these actions. Pursuant to our longsettled policy of declining to issue advisory opinions on questions pending in litigation, see Opinion of the Justices No. 306, 447 So. 2d 1305 (Ala.1984); Opinion of the Justices No. 298, 431 So. 2d 496 (Ala.1982); *850 Opinion of the Justices No. 289, 410 So. 2d 388 (Ala.1982); and Opinion of the Justices No. 214, 294 Ala. 589, 319 So. 2d 715 (1975), we did not immediately address the advisory opinion request, preferring to wait and address the questions in a full adversary proceeding. In light of the importance of the issues presented, these cases presenting those issues were expedited on appeal so that we could quickly answer the questions presented by them. With the issuance of this opinion, the Senate's request is moot. See Opinion of the Justices No. 332, 588 So. 2d 864 (Ala.1991).
The parties argued to the trial court that §§ 125 and 126 of the 1901 Alabama Constitution and those sections' interpretation were dispositive of the issues presented by the three consolidated actions. The trial court entered an order that stated pertinently:
"Therefore, it is hereby
The parties have stipulated all the facts necessary to decide this case. The legislature passed House Bill 203 on July 29, 1991, and it adjourned sine die that same day. On August 8, 1991, the Governor attempted to approve a portion of House Bill 203 and to disapprove a portion of it by marking through certain provisions in red ink and initialing those marked-out provisions. The Governor signed the end of House Bill 203 with the following language:
"Date: 8-8-91
"Time: 7:20 P.M.
Also, on August 8, the Governor sent a letter to the clerk of the House of Representatives and to the secretary of state detailing the portions of House Bill 203 that he had disapproved.
Finally, the parties stipulated:
"Had the Governor not believed that he had the power under Section 126 of the Alabama Constitution to disapprove only a part or parts of House Bill 203 to eliminate the portions of the Bill he believed to be detrimental to the best interests of the State of Alabama, he would have approved and signed the Bill as presented to him without striking out any portions thereof and without the [language above his signature expressing his disapproval.] Accordingly, if, as a matter of law the Governor did not have the constitutional power to disapprove *851 only certain portions of House Bill 203, the Governor's signature at the foot of the Bill indicates his approval of the entire Bill."
The Governor's power to veto legislation comes from §§ 125 and 126 of the 1901 Alabama Constitution. A clear understanding of the issues presented in this case requires an understanding of the formal procedural interaction between the executive and the legislative branches in relation to the legislature's passing legislation and the Governor's approving or disapproving it.
Section 125 provides pertinently:
(Emphasis added.)
Section 125 on its face thus establishes that as a final stage of the enactment of a bill into law, the Governor may either sign a bill or allow it to become law without his *852 signature by not returning it to the legislature within six days of its presentation to him. When the legislature is in session, the Governor may disapprove, or veto, a bill by returning it, along with his objections, to the house of its origination within six calendar days (excluding Sundays) of the bill's presentation to him. When the legislature is in session, the Governor may also propose executive amendments to bills presented to him; those amendments become law only if the legislature adopts them, of course.
Section 125 further provides a somewhat different procedure to be followed in the five days prior to final adjournment. A bill presented to the Governor in the five days before the legislature's final adjournment may be approved by the Governor, who may take as long as 10 days after the legislature's final adjournment to approve the bill. A bill presented to the Governor in the last five days before the legislature's final adjournment may still be returned by the Governor to the legislature with the Governor's objections or amendmentspresumably this includes a § 126 item disapproval from an appropriations billand the bill as modified by the Governor becomes law if the legislature passes it before the legislature's final adjournment. If the Governor does not approve a bill that is presented to him in the five days before the legislature's final adjournment, the bill dies, because of these combined factors: for a bill to become a law, (1) the Governor must approve it or, (2) if the Governor disapproves it, it must be repassed by the legislature, thus overriding the Governor's veto, or (3) the bill may become law by the passage of timesix daysif the Governor neither approves nor disapproves it; if a bill is presented in the last five days, it cannot become law by passage of six days without the Governor's acting on it; the legislature cannot act on the bill, of course, after its final adjournment. As to bills presented within the last five days before final adjournment that the Governor has not acted upon at final adjournment, the Governor may either approve them or allow them to die.
When the Governor does not approve a bill and thus allows it to die, as described above, the Governor is said to have exercised a "pocket veto." Note that the Governor does not accomplish a pocket veto by taking any affirmative actionreturning the bill to the legislature with his objections or amendments, for examplebut, rather, the Governor accomplishes a pocket veto by inaction, by not affirmatively approving the bill.
Consider the facts of this case. The Governor did not pocket veto the contested portions of House Bill 203. Quite the opposite, he affirmatively acted by striking those provisions that he considered inappropriate. Also of note, the Governor's actions occurred after the legislature had adjourned sine die. The Governor did not simply approve or disapprove the entire bill, as § 126, on its face, authorizes him to do, but, instead, disapproved specific items of House Bill 203. Accordingly, the action the Governor took can be accurately described as a post-adjournment item veto.
Section 126 provides:
Section 126 provides for item vetoes in appropriation bills, such as House Bill 203, but that section does not explicitly address item vetoes after the legislature's adjournment sine die.
*853 Considering our discussion so far, we find the dispositive issue in these appeals to be:
This is an issue of first impression.
The Governor makes his argument in relation to § 125 primarily in two ways. First, he contends that Courts in other states construing provisions similar to § 125 (and § 126) have allowed the governor a post-adjournment item veto. Those cases from other states, some of which do not directly address the issue as stated here, construe constitutional provisions materially different from §§ 125 and 126. The constitutions of Arkansas, North Dakota, Wyoming, Washington, Florida, Idaho, and Colorado, from which states the Governor has cited cases, all have veto provisions materially different from those of the Alabama Constitution. Those states require an active post-adjournment veto; that is, where the adjournment of the legislature prevents a bill's return, the bill nonetheless becomes law unless the Governor affirmatively vetoes it by filing objections with the secretary of state. They require no message to the legislature and contemplate no further legislative action. See, Dickinson v. Page, 120 Ark. 377, 179 S.W. 1004 (1915); State ex rel. Sandaker v. Olson, 65 N.D. 561, 260 N.W. 586 (1935); State ex rel. Jamison v. Forsyth, 21 Wyo. 359, 133 P. 521 (1913); State ex rel. Greive v. Martin, 63 Wash. 2d 126, 385 P.2d 846 (1963); Green v. Rawls, 122 So. 2d 10 (Fla. 1960); Wheeler v. Gallet, 43 Idaho 175, 249 P. 1067 (1926); In re Interrogatories of the Governor, 195 Colo. 198, 578 P.2d 200 (1978). The Court in State ex rel. Martin v. Zimmerman, 233 Wis. 442, 289 N.W. 662 (1940), expressly notes that the Wisconsin constitutional provision regarding the partial veto is not comparable to provisions similar to that of Alabama.
Equally damaging to the persuasive value of the majority of the cases cited by the Governor is the fact that they involve issues different from that presented here. That is true of the decisions from New Mexico, Arkansas, Washington, Florida, Idaho, Montana, and Colorado. State ex rel. Dickson v. Saiz, 62 N.M. 227, 308 P.2d 205 (1957); Dickinson v. Page, 120 Ark. 377, 179 S.W. 1004 (1915); Green v. Rawls, 122 So. 2d 10 (Fla.1960); Cenarrusa v. Andrus, 99 Idaho 404, 582 P.2d 1082 (1978); Wheeler v. Gallet, 43 Idaho 175, 249 P. 1067 (1926); The Veto Case: Mills v. Porter, 69 Mont. 325, 222 P. 428 (1924); In re Interrogatories, 195 Colo. 198, 578 P.2d 200 (1978). The central issue in those cases was not the power of the governor to exercise a post-adjournment item veto; rather, these cases involved such issues as whether the "item" sought to be vetoed by the governor was in fact an "item"; Green; Cenarrusa, Wheeler; whether the item veto power gave the governor the authority to reduce an item of appropriation, The Veto Case; whether the governor had timely exercised the veto power, Dickinson, Cenarrusa, In re Interrogatories; or whether the item veto power was limited to general appropriations bills, as opposed to any bill containing appropriations. Dickinson.
The Governor also argues that a proper analysis of § 125 begins with a historical review of the provision as it was enacted into the 1901 Constitution and, he argues, leads to the conclusion that he has the authority to exercise a post-adjournment item veto. We agree that a proper analysis of § 125 begins with a historical review of the provision.
Section 125 of the 1901 Constitution is based on Art. V, § 13, of the 1875 Alabama Constitution, which provided:
"Sec. 13. Every bill which shall have passed both houses of the general assembly, shall be presented to the governor; if he approve, he shall sign it; but, if not, he shall return it with his objections to that house in which it shall have originated, who shall enter the objections at large upon the journals; and the house to which such bill shall be returned shall proceed to reconsider it; if, after such *854 reconsideration, a majority of the whole number elected to that house shall vote for the passage of such bill, it shall be sent, with the objections, to the other house, by which it shall likewise be reconsidered; if approved by a majority of the whole number elected to that house, it shall become a law; but in such case the votes of both houses shall be determined by yeas and nays; and the names of the members voting for or against the bill shall be entered upon the journals of each house respectively. If any bill shall not be returned by the governor within five days (Sundays excepted), after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the general assembly, by their adjournment, prevent its return, in which case it shall not be a law. And every vote, order, or resolution, to which the concurrence of both houses may be necessary (except questions of adjournment, and of bringing on elections by the two houses, and of amending this Constitution), shall be presented to the governor, and, before the same shall take effect, be approved by him, or, being disapproved, shall be repassed by both houses according to the rules and limitations prescribed in the case of a bill."
A comparison of Art. V, § 13, to § 125 reveals that § 125 contains these modifications from its predecessor:
1. Section 125 authorizes the Governor to return a bill to the legislature with an executive amendment.
2. Section 125 extends from five to six days the time before a bill becomes law if not returned by the Governor after it is presented to the Governor.
3. Section 125 allows the Governor to approve bills presented to him within 5 days before final adjournment at any time within 10 days after final adjournment.
The proceedings of constitutional conventions are valuable in determining the meaning and purpose of constitutional provisions. City of Montgomery v. Graham, 255 Ala. 685, 53 So. 2d 363 (1951). Accordingly, we look first to the proceedings of the 1901 Constitutional Convention for aid in interpreting § 125.
A review of the debate on allowing executive amendments indicates that the drafters did not intend for § 125 to authorize the Governor to make post-adjournment executive amendments. Official Proceedings, Constitutional Convention of 1901, Vol. 1, pp. 618-82. There are at least two specific bases for that conclusion. First, the drafters meant, at least as regards § 125, that if a bill is passed within the last five days before the legislature's final adjournment, it dies unless the Governor approves it:
Official Proceedings, Vol. 1, p. 623. That there can be no post-adjournment executive amendment would seem to be necessarily true as a practical matter: the legislature must approve an amendment for it to become law and if the legislature is adjourned it obviously cannot approve an amendment. In addition to these considerations, the tone of the discussions concerning granting the Governor the power to make an executive amendment does not indicate any intent to extend to the Governor any power to make an executive amendment that is not apparent from the face of the provision:
"MR. LOWE (Jefferson [County]).... It seems to me that the proposition [to allow executive amendments] embraced in the report of the committee is the most radical and the most far-reaching that has yet come before this Convention. The proposition embraces the idea and carries with it the theory that the Governor may move amendments to bills pending before the General Assembly. *855 It strikes down the line of demarkation which has existed from the beginning between the different and co-ordinate departments of government. For that reason, Mr. President, I shall oppose the provision in the report of the committee.
Official Proceedings, Vol. 1, pp. 629-30.
Note that the power to offer an executive amendment is a power to take an affirmative action in disapproving legislation, and that the power to offer a postadjournment executive amendment would be a power to take an affirmative action in disapproving legislation after final adjournment. As we discussed, § 125 does not authorize a post-adjournment executive amendment, and the provisions of § 125 concerning executive amendments thus cannot be construed to indicate that the Governor is authorized after adjournment to take the affirmative actions involved in a post-adjournment item veto.
Section 125 also varies from its predecessor by allowing the Governor 10 days after final adjournment to approve bills presented in the last 5 days before final adjournment. The purpose of that extension of time for the Governor to approve bills was described by the chairman of the Convention's committee on the executive department:
Official Proceedings, Vol. 1, p. 620.
The following quote is representative of the discussion of the bill by delegates to the Convention:
"MR. COBB.... The Governor of the State of Alabama, is, in a very important *856 sense, a part of its legislative department. In the Constitution, we provide before any act in the nature of legislation shall become a law, it shall have the approval and assent of the Governor. The supposition and intention is that the acts of the General Assembly shall be carefully scrutinized by the Chief Executive in order to prevent hasty and improvident legislation. Now, any provision which increases his power in this regard and gives him a better opportunity so to scrutinize the actions of the General Assembly is a wide departure from heretofore existing precedents. But I have no respect for precedents merely as such. If we can find a better way we should pursue it, and not hamper ourselves and tie ourselves to the old way just because it is the old way. The gentleman from Montgomery, my distinguished friend, Governor Oates, has been unable, as has every other gentleman on this floor, and as they will be unable, to point out one single solitary objection to the proposition made here by the report of the committee. And this, for the reason that where bills go to him within a certain time of the adjournment, he can easily prevent these bills from becoming laws, by simply refusing his assent. The Legislature adjourns and the laws are not enacted. He may often times find himself in this situation. Here is a bill about which he has doubt. It is an important matter. He is willing to trust the Attorney-General or any other friend, but he wants to pass his own cool and deliberate judgment upon it. He has not the time to do it, and, therefore, out of abundant caution, he refuses to let it become a law at all. Give him this ten days and he will have this opportunity to deliberate, to consider, and to examine and thus avoid the difficulty of refusing to permit a good measure to become a law by reason of the lack of opportunity afforded him to examine it. What is the harm, I repeat, and as has been repeated heretofore? If he approves the bill, it is a law; if he refuses to approve it, it is not a law. What harm is it to give him a little time to say whether he will approve it? His approval of it before the adjournment of the Legislature can have no possible effect different from his approval of it ten days after the adjournment ...."
Official Proceedings, Vol. 1, pp. 623-24. (Emphasis added.)
Accordingly, the provision in § 125 allowing the Governor 10 days after adjournment to approve legislation passed in the 5 days prior to final adjournment allowed a practical remedy to the situation created when a large number of bills passed the legislature on the last day of the session. As Mr. Cobb indicated, the delegates to the convention were acutely aware that under the 1875 Constitution legislation died if not approved by the Governor prior to final adjournment. The 10-day period provided the Governor the time to read and review the bills, and then, with approval of a bill, to allow it to become law.
From this discussion it should be clear that the provision of § 125 allowing the governor to approve a bill up to 10 days after final adjournment did not alter or increase the actions that the Governor could take in relation to bills passed in the last 5 days days prior to the legislature's final adjournment. Indeed, the provision gives the Governor the same two options the Governor previously had, to approve the bill or let it die; the provision simply allows the Governor more time10 days in which to exercise these options.
Allowing the Governor time after adjournment to decide whether to approve a bill or let it die does not provide the Governor a post-adjournment item veto. Section 125 does not even allude to a veto of items within a bill. Furthermore, the only post-adjournment "veto" created by § 125 is the "pocket veto"a veto of an entire bill achieved by the Governor's doing nothing to that bill. The only power that § 125 provides the Governor after the legislature's final adjournment is to approve bills presented to him within five days of the legislature's final adjournment. Quite simply, after the final adjournment of the legislature, § 125 does not provide the Governor an affirmative power to disapprove *857 a bill or items of a bill. Accordingly, the Governor's arguments that § 125 provides him authority for a post-adjournment item veto fail.
Section 126 is based on Art. V, § 14, of the 1875 Alabama Constitution, which provided:
Comparing § 14 to § 126 reveals at least three primary differences:
1. Section 126 contains the word "approve" in the first clause.
2. Section 126 requires that the Governor "in his message" fully set out in writing specific reasons for disapproving certain items.
3. Section 126 states that "the enrolled bill shall not be returned with the Governor's objection."
Section 126 does not expressly address whether its item-veto provisions apply after the legislature's adjournment sine die. There is virtually no pertinent discussion concerning this issue recorded in the proceedings of the Constitutional Convention.[3] Accordingly, our analysis of § 126 is based on the text of the provision and the relationship of that provision to § 125.
The Governor argues that when § 126 is read in pari materia with § 125, the sections provide that he is entitled to approve or disapprove items within appropriation bills at any time during the 10 days following the legislature's sine die adjournment. The Governor contends that because the Constitutional Convention added the word "approve" to Art. V, § 14, when drafting § 126, and the same Convention, when drafting § 125, added to Art. V, § 13, the provision allowing approval of bills during the 10 days following the legislature's final adjournment, the intended effect of those two modifications of the 1875 Constitution for the 1901 Constitution was to allow the Governor to either approve or disapprove items within appropriation bills at any time within 10 days after the legislature's final adjournment.
The Governor also states that according to the plaintiffs, § 125 limits him to approving bills after final adjournment; he contends, however, that § 126 contains no language limiting his actions after adjournment. To the contrary, he argues, § 126 expressly allows him to approve or disapprove items in an appropriation bill without regard to final adjournment, as long as he acts within 10 days of final adjournment. If the drafters of the Constitution had intended the supposedly restrictive language of § 125 to apply to § 126, they would have included it in that section, the Governor contends.
Finally, the Governor argues that if the item veto does not survive adjournment, *858 § 126 is redundant in relation to § 125, because § 125 allows for an executive amendment that serves the same purpose as an item veto.
Except for the Governor's final argument, all his contentions are arguably meritorious. The argument that § 126 is redundant if the item veto does not survive final adjournment is meritless, because it fails to acknowledge the difference between an executive amendment and an item veto. When an executive amendment is proposed, that amendment must be approved by the legislature to become law. Presumably, if the item veto is exercised prior to final adjournment, the items approved become law, while the items vetoed are treated in accordance with the provisions of § 125 concerning after-veto procedures. Section 126 is not redundant in relation to § 125, regardless of whether the item veto of § 126 can be used by the Governor after the legislature's final adjournment.
Teague contends that the Governor's arguments effectively ignore the provisions of § 126 that do not expressly favor the Governor's position. Teague argues that § 126, given below, read in its entirety, refers to an item veto in terms of a procedure that can be accomplished only when the legislature is not adjourned sine die:
(Emphasis added.)
As we mentioned earlier, § 126 differs from its predecessor provision in the 1875 Constitution in that it contains the requirement that the Governor set out "in his message" the items he disapproved. Teague argues that because § 126 requires the Governor to state "in his message" specifically and in writing the items he disapproves, the item veto provisions of § 126 can be invoked only with a Governor's message to the legislature stating specifically the items that the Governor disapproves. Teague further contends that the term "message" is a term of art and refers to the only way the Governor can make substantive communications to the legislature or, for that matter, the only way the houses of the legislature can communicate between themselves; in neither situation, Teague argues, can there by a "message" if the legislature (or the other house of the legislature) is not in session. The House and Senate Journals seem to indicate that the practice involving messages is as Teague describes it. Teague contends that these arguments thus lead to the conclusion that § 126 does not authorize a postadjournment item veto, because, if the legislature is adjourned, the Governor cannot proffer to the legislature the very message that § 126 requires. In support of that argument, and to indicate that the Governor's writing to the clerk of the House of Representatives and to the secretary of state is not a "message" within the meaning of § 126, Teague cites State ex rel. Crenshaw v. Joseph, 175 Ala. 579, 586, 57 So. 942, 944 (1911), wherein a plurality of the Court stated:
"`A message from the executive to either branch of the Legislature, delivered to an officer of the body, who may not even be a member, and when it is not in session, for transmission and delivery to "the House" when it shall reconvene, is an anomaly in parliamentary law. Messages from the executive to either branch of the General Assembly are invariably delivered to the House while in session, and not to the officers for them. Such has been the immemorial usage, and the same custom obtains concerning messages from one house to the other. There is neither parliamentary nor statute law which confers any functions upon the secretary or clerk of either house, while they are in recess, concerning *859 the reception of messages from the other house or from the executive. Parliamentary law absolutely divorces clerks and secretaries from such functions, and is so exacting in this regard that one house will not receive a message from the other if the house sending the message is not in session. Indeed, it would seem that the express language of the Constitution, which requires the return "to the House," would repeal any parliamentary or statute law or custom, if such had obtained, whereby the return might be made to the clerk or secretary of the House, while it was not in session, for delivery to it when it reconvenes.'"
Teague also contends that the provision in the last clause of § 126, that the bill not be "returned" with the Governor's "objection," indicates that § 126 authorizes the Governor to veto items of a bill only before the legislature's final adjournment, because, he argues, unless the legislature is in session to act on the returned vetoed items and the Governor's objections to them, there is no reason for the Constitution to require the Governor to return his objections; returning the vetoed items with objections to an adjourned legislature would indeed be futile and is contradictory to the procedure for a pocket veto inherent in § 125, Teague contends.
Finally, Teague contends that § 126 provides that its item veto is to be used in accordance with the provisions of § 125 for action upon a bill after a veto; he bases that argument on the language of § 126 stating that "the item or items disapproved shall be void, unless repassed according to the rules and limitations prescribed for the passage of bills over the executive veto." Teague argues, as we have held, that § 125 provides no post-adjournment item veto, no authority for an affirmative action of disapproval after final adjournment, and he argues that the phrase quoted immediately above refers to a situation where the affirmative action of the Governor (in an item veto) is valid only if reconsidered and not overridden by the legislature in accordance with § 125. Accordingly, Teague concludes, § 126 does not authorize post-adjournment item vetoes, because, after the legislature has adjourned, it cannot consider the Governor's item veto pursuant to § 125.
We find Teague's arguments more convincing than the Governor's, because Teague's arguments involve a less strained interpretation of both the text of § 126 and its relationship to § 125 and because Teague's arguments address § 126 in its entirety, not just isolated portions of it. The plain language of § 126 contemplates that upon the legislature's receipt of the Governor's message disapproving an item or items of a bill and expressing his objections thereto, those items may be repassed by the legislature according to the rules prescribed in § 125 for the passage of bills over the Governor's veto. As this opinion has indicated, however, unless the legislature is in session, the legislature may not, pursuant to the provisions of § 126, (1) receive a "message" from the Governor (2) have the bill "returned" to it (3) consider the Governor's "objection," or (4) repass the bill over the Governor's veto. The Governor has not presented a sufficient reason or argument for us to interpret § 126 in a manner that would effectively serve to deny enforcement of its provisions described immediately above. Accordingly, considering all the arguments, we hold that § 126 does not authorize an Alabama Governor to item-veto an appropriations bill after the legislature has adjourned sine die.
We expressly reject the argument that some combination of the provisions of §§ 125 and 126 can be construed to create authority for the Governor to exercise a post-adjournment item veto. At the same time § 125 was amended to provide the Governor 10 days after the legislature's final adjournment within which to approve legislation passed in the five days before the legislature's final adjournment, § 126 was amended to require expressly that the Governor's item veto be set out in a message. This combination of amendments indicates that the grant to the Governor of additional time to approve legislation did not authorize an extension of time beyond *860 the legislature's final adjournment for him to exercise the item veto.
The trial court did not err in its judgment. That judgment is due to be affirmed.[4]
1901902AFFIRMED.
1901903AFFIRMED.
1901904AFFIRMED.
1901905AFFIRMED.
1901906AFFIRMED.
1901907AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS,[*] STEAGALL and INGRAM, JJ., concur.
MADDOX, J., concurs specially.
HOUSTON, J., concurs in the result.
MADDOX, Justice (concurring specially).
Before studying the history of the power of the Governor to partially veto an appropriations bill, especially after the final adjournment of the legislature, I thought that the Governor had no such power; however, after studying the history and purpose of the "line item" veto provisions, as are contained in § 126 of the 1901 Alabama Constitution, I concluded that the question was more debatable than I first had thought.
Under the 1901 Alabama Constitution, the Governor, when considering for approval or disapproval bills passed by the legislature, is exercising a lawmaking function, and the power of executive veto has been given to the Governor in every Constitution ratified by the people of this State, starting in 1819. In 1875, the people provided for the Governor to have an additional specific power to "disapprove of any item of any bill making appropriations of money."[5] That special power to exercise an item veto of an appropriations bill is contained in § 126 of the 1901 Constitution.[6]
The general purpose of giving the Governor "line item" veto power over appropriations bills, at least in part, was to prevent "logrolling," a practice the framers of the 1901 Constitution attempted to preclude by other provisions of the 1901 Constitution, one being § 45.[7]
*861 It is clear to me that the people, in § 126 and its predecessor, intended to grant to the Governor a special power to check legislative power, especially legislative power to pass appropriations bills.
The specific question presented here, of course, is not whether the Governor can partially veto an appropriations bill presented within time for the Governor to return it to the legislature while it is still in session, but whether the Constitution provides that the Governor can exercise his partial veto of an appropriations bill, even after the legislature has adjourned sine die. The question is made more difficult because of the history of budget-making in this State, and the action taken by the people in response to what has occurred in the budget-making process in the past. For many years, the legislature did not pass the appropriations bills until the final days of the session, and on at least one occasion the legislature adjourned a regular session sine die without passing an appropriations bill at all.[8]
Because the general fund and educational appropriations bills are usually some of the last items of business considered by the legislature, as was the case during the recently concluded regular session,[9] the power of the Governor to exercise a lineitem veto is never quickened because the bill is not presented to him while the legislature is still in session.
The people, of course, are aware of what has transpired in the past regarding bills making basic appropriations, and the people have directly addressed the responsibilities of not only the Governor, but also of the legislature, in the budget-making process, and have provided in Amendment No. 448 to the 1901 Constitution that the Governor "[o]n or before the second legislative day of each regular session of the legislature,... transmit to the legislature for its consideration a proposed budget for the then next ensuing budget period," and in Section (C) of that amendment have provided that "[t]he duty of the legislature at any regular session to make the basic appropriations for any budget period that will commence before the first day of any succeeding regular session shall be paramount." (Emphasis added.) Amendment No. 448, proclaimed ratified December 10, 1984 (the "Budget Isolation Amendment"). There is only one exception to the requirement of the Budget Isolation Amendment that appropriations bills must be "paramount": the house in which a bill is pending can, by adoption of a resolution concurred in by three-fifths of the quorum present, consider other legislation. The legislature, in its wisdom, has adopted many of these socalled "budget isolation resolutions" in the past, and obviously adopted many of them during the regular session just concluded, because the act under consideration is Act No. 91-732.
I recognize, of course, that the legislature, by routinely adopting these budget isolation resolutions, could violate the spirit and intent of the Budget Isolation Amendment, but judicial restraint compels me to respect the decisions of a coordinate branch *862 of government so long as it is acting within the power granted to it by the people, and it is not "clear beyond a reasonable doubt" that it is unconstitutional. Ala. State Fed. of Labor v. McAdory, 246 Ala. 1, 18 So. 2d 810 (1944). The legislature has the power to decide if there are items of legislation that are more paramount than the appropriations bills.[10] I further recognize that the legislature, by not presenting the appropriations bills to the Governor in sufficient time before final adjournment for him to exercise his power of partial veto, could effectively write out of the Constitution the provisions of § 126 that give the Governor that power. Nevertheless, I have read the debates of the Constitutional Convention on what are now §§ 125 and 126,[11] have studied the briefs submitted by the parties in this action, and have listened to the oral arguments, and because I have great respect for the doctrine of separation of powers, and not being convinced that the people have granted to the Governor the power he sought to exercise, I am compelled to conclude that the 1901 Alabama Constitution does not give the Governor the power to partially veto an appropriations bill after the legislature has adjourned sine die.
To sustain the Governor's partial veto in this case would require a liberal reading of the 1901 Constitution, and, in effect, would require that much of the partial veto language in § 126 be included into the language of § 125. I cannot go that far. In that regard, I agree with that portion of Justice Houston's special concurrence regarding the rule of construction that must be applied. I concur in the majority's opinion that holds that the Governor could not partially veto House Bill 203.
HOUSTON, Justice (concurring in the result).
The exigency of these expedited appeals has prevented my having time to determine whether the majority opinion, which reaches the result that I believe must be reached in this case, reaches it for the reasons that I think it must be reached. Therefore, I concur in the result and write. I regret that the exigency of the moment also prevents me from putting my belief and reasoning into more impressive words.
The Constitution is subject to the same general rules of construction as are other laws; Alabama State Docks Dep't v. Alabama Public Service Comm'n, 288 Ala. 716, 724, 265 So. 2d 135, 143 (1972), "due regard being had to the broader objects and scope of the constitution as a charter of popular government." 16 Am.Jur.2d Constitutional Law § 91, at 417 (1979).
In John Deere Co. v. Gamble, 523 So. 2d 95, 99-100 (Ala.1988), this Court set out the following general rules of statutory construction:
"`The fundamental rule of statutory construction is to ascertain and give effect to the intent of the Legislature in enacting the statute. Advertiser Co. v. Hobbie, 474 So. 2d 93 (Ala.1985); League of Women Voters v. Renfro, 292 Ala. 128, 290 So. 2d 167 (1974). If possible, the intent of the Legislature should be gathered from the language of the statute itself. Advertiser Co. v. Hobbie, supra; *863 Morgan County Board of Education v. Alabama Public School & College Authority, 362 So. 2d 850 (Ala.1978). If the statute is ambiguous or uncertain, the court may consider conditions which might arise under the provisions of the statute and examine results that will flow from giving the language in question one particular meaning rather than another. Studdard v. South Central Bell Telephone Co., 356 So. 2d 139 (Ala. 1978); League of Women Voters v. Renfro, supra.'
I cannot determine from the language of § 126 of the Constitution the intent of the framers of the Constitution in regard to the Governor's right to veto items in an appropriations bill after the final adjournment of the Legislature. Furthermore, reading the provision of § 125 of the Constitution, which deals with the Governor's power to approve a bill submitted to him during the last 5 legislative days within 10 days after the final adjournment of the Legislature, in conjunction with § 126, I cannot determine the intent of the framers of the Constitution in regard to the Governor's right to veto items in an appropriations bill after the final adjournment of the Legislature.
Because § 126 is ambiguous or uncertain in regard to the Governor's right to veto items in an appropriations bill after the final adjournment of the Legislature, I examined the official proceedings of the Constitutional Convention of 1901; and I could not ascertain the intent of the framers of the Constitution in this regard from these proceedings.
Therefore, in accordance with rules of constitutional construction, I "examine[d] results that will flow from giving the language in question one particular meaning rather than another." John Deere Co.
What is the nature of an executive veto?
The English King, as a constituent part of the supreme legislative power, once had the absolute prerogative of rejecting any measure passed by the two Houses of Parliament; the royal assent was an integral and indispensable part of the legislative process, which, in theory at least, could not be overcome by any further legislative action by the two Houses of Parliament other than that of reaching an accommodation with the King. I Blackstone, Commentaries on the Laws of England, ch. II, p. 177; ch. VII, p. 253 (1765). Although this practice had effectively been abandoned in England long before the close of the American colonial period, absolute executive vetoes were still exercised by some royal governors within the American colonies. See Commonwealth ex rel. Attorney General v. Barnett, 199 Pa. 161, 48 A. 976 (1901). This use of the absolute executive veto created such discontent among the colonists that the absolute executive veto was listed first among the enumerated grievances in the Declaration of Independence: "He has refused his assent to laws the most wholesome and necessary for the public good."
With the grievances of the past in mind, the framers of all of the Alabama Constitutions have divided the powers of government into three distinct departments, with the legislative power being given to one, those that are executive to another, and those that are judicial to another, see § 42, Ala. Const. 1901, and they have prohibited each department of government from exercising *864 any of the powers of the other two departments, "except in the instances ... expressly directed or permitted," see § 43, Ala. Const. 1901. Therefore, there is no "right" of executive veto except that expressly provided for in §§ 125 and 126, Constitution.
82 C.J.S. Statutes § 52 (1953).
In regard to the use of the terms "liberal" and "strict" with respect to the construction of statutes, and, consequently, constitutions, 2A N. Singer, Sutherland Statutory Construction § 58.02 (Sands 4th ed. 1984), states:
"`Liberal' is often used to signify an interpretation which produces broader coverage or more inclusive application of statutory concepts. What is called a liberal construction is ordinarily one which makes a statute apply to more things or in more situations than would be the case under a strict construction."
I believe that the framers of the Alabama Constitution intended for the Governor's veto powers enumerated in §§ 125 and 126 of the Constitution to be narrowly or strictly construed so as not to thwart the lawmaking powers of the legislative department. See Ex parte Coker, 575 So. 2d 43 (Ala.1990) (Houston, J., concurring in the result).
Because I cannot determine that § 126 of the Constitution authorizes a post-adjournment item veto of an appropriations bill by the Governor, I must vote to affirm the judgment of the trial court.
[1] House Bill 203 became Act No. 91-732.
[2] "Enrolled bill" means the final copy of the bill that the legislature has passed; it is presented to the Governor for his signature.
[3] Former Governor Jones, chairman of the Convention's committee on the executive department, did mention the reason for adding the clause that we have numbered "3":
"MR. JONES (Montgomery [County])The next Section is Section 14. I desire to state in behalf of the Committee that the only change in that relates to a question of practice. The present Constitution says the Governor can veto a specific item of an appropriation bill and the question then arose as to whether it was his duty to send the bill back with his message and as he has already approved the bill, the opinion seemed to be that it had no business back in the House and this provides that in his message he shall set out specifically the item to which he objects and file the bill with the Secretary of State instead of returning it to the House." Official Proceedings, Vol. 1, p. 682.
The clear import of these remarks is that the committee was concerned about the return of a signed act to the legislature. Therefore, its decision was that the approved portion of the bill would be sent to the Secretary of State and the vetoed items would be returned to the legislature along with the Governor's objections to them. Those remarks appear to contemplate an item veto only during the session.
[4] Although it might otherwise have been unclear, the Governor stipulated that had he not believed that he had the authority to veto portions of Act No. 91-732, he would have approved the entire bill. Accordingly, there is no issue as to whether the Governor would have "pocket vetoed" the entire bill in order to invalidate the portions he disapproved rather than have those portions become law.
[*] Although Justice Adams did not attend oral argument, he has studied a recording of that argument.
[5] Art. V. § 14, Constitution of 1875.
[6] During the 1901 Constitutional Convention debates, Mr. Jones of Montgomery, who was chairman, described the purpose of what is now § 126, as follows:
"I desire to state in behalf of the Committee that the only change in that relates to a question of practice. The present Constitution says the Governor can veto a specific item of an appropriation bill and the question then arose as to whether it was his duty to send the bill back with his message and as he has already approved the bill, the opinion seems to be that it had no business back in the House and this provides that in his message he shall set out specifically the item to which he objects and file the bill with the Secretary of State instead of returning it to the House."
Official Proceedings, Constitutional Convention 1901, Vol. 1, p. 682.
[7] Section 45, which states, in part, that all laws shall contain but one subject, exempts general appropriations bills, of course, but a strong argument could be made that the people, in 1875, gave to the Governor line item veto power to allow the Governor to strike from those bills appropriations that might have been the result of logrolling. Unquestionably, after 1875, if the Governor disapproved of an item or items in an appropriations bill, he could strike those out, and approve the remaining parts of the bill, file it with the secretary of state, and it then became the law. Mr. Jones, during the debates in the 1901 Constitutional Convention, said regarding what is now § 126:
"MR. JONES (Montgomery)I would state on behalf of the committee that the draft of this section was taken from the old Constitution, with a few words describing the practice....
"....
"MR. ROBINSONYou would have the enrolled bill with that item disapproved of by the Governor in the Secretary of State's office and you have the action on the veto in the journal?
"MR. JONESThere is some slight incongruity either way, but it seemed highly improper to the committee to have a bill before the House that was already a law and with which the House had nothing to do. It should be regulated one way or the other, but the committee has no set desire about that matter."
Official Proceedings, Constitutional Convention, 1901, Vol. 1, p. 683. Insofar as I can tell, the practice followed between 1875 and 1901 was not changed. I was unable, because of the lack of time, to look in all the original records in the Department of Archives to determine exactly how line-item vetoes were treated procedurally, but there is little question that in the case of an appropriations bill, when the Governor approved an item of appropriation, it was the law. Executive amendments made under the provisions of § 125, of course, required that the enrolled bill be returned to the legislature with a message from the Governor stating his objections. The enrolled appropriations bill, in cases of a line-item veto, definitely was not returned to the legislature. That is clear from the debates.
[8] In Wallace v. Baker, 336 So. 2d 156 (Ala.1976), the Governor, by executive order, attempted to appropriate public funds for education when the legislature had adjourned without having passed an appropriations bill. This Court held that the Governor was without authority to make appropriations and that he would have to call a special session of the legislature.
[9] The legislature, during the recently concluded regular session passed a general appropriations bill, but the Governor pocket-vetoed it. The Governor called a special session to pass an appropriations bill and that special session has just concluded.
[10] A legislative practice, of course, even though of long duration, can violate fundamental law. For years, the legislature passed general bills of local application (so-called GBLA's), and this Court, many years later, in Peddycoart v. City of Birmingham, 354 So. 2d 808 (Ala.1978), held the practice to be unconstitutional.
It would seem to me that the purpose of budget isolation resolutions would be to adopt legislation that would directly or indirectly affect the budget process, such as revenue-producing measures, etc.
[11] Mr. Oates made a comparison between the present Constitution and the provisions of the 1875 Constitution, and regarding §§ 125 and 126, he set out the following:
"[The Governor's] veto of bills and other powers are somewhat extended, but better defined than in the present Constitution."
(Emphasis added.) Official Proceedings, Vol. IV, p. 4930. Note: The printer of the official proceedings at p. 49-50 omitted a line from this quote, but I obtained the original copy of the proceedings from the Department of Archives, and it correctly shows this quote.
Even though the power of the Governor to exercise his veto power "[was] somewhat extended," I do not believe that the framers intended to extend it to permit an executive veto of items or items of an appropriations bill. | October 2, 1991 |
f90b67f4-380d-451a-962d-e59b47a5f1e3 | Blythe v. Sears, Roebuck & Co. | 586 So. 2d 861 | N/A | Alabama | Alabama Supreme Court | 586 So. 2d 861 (1991)
Charles BLYTHE
v.
SEARS, ROEBUCK & COMPANY and Emerson Electric Company.
89-1566.
Supreme Court of Alabama.
August 23, 1991.
*862 Alva C. Caine of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
Samuel H. Franklin and Adam K. Peck of Lighfoot, Franklin, White & Lucas, Birmingham, for appellee.
INGRAM, Justice.
The appellant, Charles Blythe, was injured while operating a Craftsman Weed Wacker gas-powered, curved-shaft line trimmer. The line trimmer was owned by the parents of Blythe's girlfriend, Donna Bassett. It had been modified by the attachment of a 10-inch metal blade. The line trimmer carried a warning that stated:
The metal blade had been attached to the line trimmer by Jessie Turner, who was the boyfriend of Donna's sister, Lynn. The blade, purchased at a Handy City store, stated on its packaging that it was for use on a Weed Eater model XR-90 line trimmer. The model XR-90 is unlike the curved-shaft line trimmer in that it is a straight-shaft line trimmer marketed with a metal blade and corresponding safety features that are not on a curved-shaft line trimmer. Blythe was injured when the blade kicked back and cut his leg. His leg *863 was ultimately amputated because of the injuries suffered.
Blythe filed suit against Sears, Roebuck & Company, the retailer of the line trimmer, and Poulan/Weed Eater, a division of Emerson Electric Company and manufacturer of the line trimmer, claiming that the line trimmer was defectively designed because a metal blade would easily fit a curved-shaft line trimmer, such as the Craftsman Weed Wacker, and claiming that the fact that a blade would easily fit created a dangerous condition. Blythe also claimed that the failure to put on the blade a warning that the blade was not to be used with a curved-shaft line trimmer made the blade unreasonably dangerous.
Sears and Poulan presented expert testimony from Ronald Loyd, who had designed the line trimmer and the blade, as well as other products, while employed with Poulan from 1973 to 1982. Loyd testified that there were design features of the line trimmer that prevented a metal blade from being easily attached, including the fact that the hub of the line trimmer was larger than the hole in the blade. He also testified that, in his opinion, the instruction on the metal blade package, stating that the blade was to be used with a straight-shaft line trimmer, taken along with the warning provided on the shaft of the curved-shaft line trimmer, was adequate. Blythe, during the cross-examination of Loyd, attempted to introduce a new metal blade that carried the warning: "Do not use on unit with curved drive shaft." The trial judge excluded the evidence as evidence of a subsequent remedial measure.
The jury returned a verdict against Blythe and in favor of Sears and Poulan. Blythe moved for a new trial, based upon the trial court's exclusion of the evidence of the new warning on the metal blade manufactured after the date of Blythe's accident. The trial court denied the motion, and Blythe appealed.
The single issue on appeal is whether evidence of a subsequent design change should have been admitted for the purpose of impeachment of an expert witness who had testified that the product was safe as marketed. "It is axiomatic that rulings as to the admissibility of evidence rest largely within the discretion of the trial court. Such rulings will not be disturbed on appeal in the absence of a gross abuse of discretion." Russellville Flower Craft, Inc. v. Searcy, 452 So. 2d 478, 480 (Ala. 1984).
The general rule excluding evidence of subsequent remedial measures is that "evidence of repairs or alterations made, or precautions taken, by the defendant after the injury to the plaintiff in an accident is not admissible as tending to show the defendant's antecedent negligence [or culpable conduct]." C. Gamble, McElroy's Alabama Evidence § 189.02(1) (4th ed. 1991) (citing Macon County Comm'n v. Sanders, 555 So. 2d 1054 (Ala.1990); Hyde v. Wages, 454 So. 2d 926 (Ala.1984); Banner Welders, Inc. v. Knighton, 425 So. 2d 441 (Ala.1982)). Subsequent remedial measures have been excluded on two grounds: (1) evidence of a subsequent repair or change was irrelevant to show antecedent negligence, see Hart v. Lancashire & Yorkshire Ry., 21 L.T.R. 261, 263 (1869), cited in Comment, The Impeachment Exception to Rule 407: Limitations on the Introduction of Evidence of Subsequent Measure, 42 U.Miami L.Rev. 901, 903 (1988); see also Proposed Rules of Evidence, 46 F.R.D. 161, 236 (1969); and (2) public policy favored promoting safety by removing the disincentive to repair, see Alabama Power Co. v. Marine Builders, Inc., 475 So. 2d 168, 171-72 (Ala.1985); see also Probus v. K-Mart, Inc., 794 F.2d 1207, 1210 (7th Cir.1986). Even though the rule was established to exclude evidence of subsequent repairs, evidence of such repairs could be introduced for purposes other than proving negligence or culpable conduct. One of the other purposes was impeachment.
Evidence of subsequent remedial measures was used for impeachment purposes to prevent a defendant from gaining an unfair advantage from self-serving, false, or misleading statements that would go unchallenged under the exclusionary rule. See Going v. Alabama Steel & Wire Co., *864 141 Ala. 537, 37 So. 784 (1904), Bedgood v. T.R. Miller Mill Co., 202 Ala. 299, 80 So. 364 (1918); Frierson v. Frazier, 142 Ala. 232, 37 So. 825 (1904). These cases allowed a defendant who made self-serving, false, or misleading claims to be impeached by evidence of a subsequent remedial measure that contradicted his testimony or constituted a statement or act inconsistent with his present testimony.
When evidence of a subsequent remedial measure is offered to impeach a witness's statement through evidence of a prior inconsistent act, the Alabama cases seem to require (1) that the introduction of the testimony a party seeks to impeach has been initiated by the defendant; see, e.g., Bedgood v. T.R. Miller Mill Co., supra; (2) that the testifying witness had some control over the subsequent repair or alteration; see, e.g., Frierson v. Frazier, supra; and (3) that the evidence meet the test established by Holland v. First National Bank of Brewton, 519 So. 2d 460 (Ala.1987). The rationale seems to be that evidence of a subsequent remedial measure is not evidence of conduct inconsistent with the testimony of a witness who did not authorize or direct the change because, in regard to such a witness, the change cannot be said to be the "prior act" of the witness. However, it is apparent that such evidence may be inconsistent with the same testimony from a witness who had authorized the change. See Frierson v. Frazier, supra; see also Brown v. Flying Wheels Motorcross Club, 569 So. 2d 313 (Ala.1990) (this Court held that although evidence of a subsequent remedial measure could be admissible to impeach, it was properly excluded by the trial court under Holland, supra.)
If an attempt is made to use evidence of a subsequent remedial measure to impeach the testimony of a witness who did not authorize or direct the change, the cases from this jurisdiction, as well as federal cases interpreting Fed.R.Evid. 407, seem to require that the evidence clearly contradict the testimony of the witness. Evidence of a subsequent remedial measure can be introduced to show that the witness has testified in a false or misleading manner, and the very existence of the subsequent remedial measure, if it clearly contradicts the witness's testimony, is clear and convincing evidence that the witness's testimony is false. See Bedgood, supra. Also, evidence of a subsequent remedial measure may be introduced when the witness testifies in superlatives, e.g., that the condition was "the safest" or the "the best." Compare Muzyka v. Remington Arms Co., 774 F.2d 1309 (5th Cir.1985) (expert testified that the rifle manufactured by the defendant was the "safest" and "best" rifle of its kind; testimony as to subsequent design change was allowed), with Probus v. K-Mart, Inc., supra (expert testified that material used in the plastic cap was "appropriate for its intended use"; testimony as to subsequent change in material used was not admitted). The rationale behind this rule is that if the plaintiff were allowed to impeach the defendant or his witness who testified that the condition was safe at the time of the accident, the exception for impeachment would become the rule. Probus, 794 F.2d at 1210.
The case of Hardy v. Chemetron Corp., 870 F.2d 1007 (5th Cir.1989), illustrates the rationale and application of impeachment through contradiction of a witness's testimony with evidence of a subsequent remedial measure. In Hardy, the plaintiff was injured while cleaning a bacon-slicing machine. She filed a products liability action, alleging that faulty wiring had caused her injury. The defendant contended that the accident was the result of the plaintiff's employer's improper maintenance of the machine and not the result of faulty wiring. The plaintiff then sought to introduce evidence of the defendant's subsequent rewiring of the machine in order to "impeach [the defendant's] `trial position'" that the cause of the accident was not the wiring. Id. at 1010-11. (Emphasis supplied.) The Fifth Circuit Court of Appeals held that to allow the plaintiff to impeach the defendant's "trial position" would be the same as allowing the plaintiff to use the evidence of the rewiring to "prove" the defendant's negligence. The court stated:
Id. at 1011 (quoting Public Service Co. of Indiana v. Bath Iron Works Corp., 773 F.2d 783, 792 (7th Cir.1985) (in turn quoting Flaminio v. Honda Motor Co., 733 F.2d 463, 468 (7th Cir.1984))).
In Holland, supra, this Court established a three-factor test for the admissibility of evidence of subsequent remedial measures offered for impeachment. The three factors are:
Id. at 462 (citing Gamble and Windle, Remedial Measures Doctrine in Alabama: From Exclusion to Admissibility and the Death of Policy, 37 Ala.L.Rev. 547 (1986)). We now hold that when the alleged "impeachment" does not meet the standards set out above, the evidence of subsequent remedial measures is irrelevant; that is, not probative of the issue of credibility of the witness.
On direct examination, Loyd did not controvert the feasibility of placing a new warning sticker on the metal blade, nor did he make any exaggerated statement as to the warnings on the metal blade. He testified that he had not been involved in the subsequent change. His direct testimony pointed to the express warnings on the curved-shaft line trimmer and the design of the curved-shaft trimmer and the metal blade as an adequate safety system.
Blythe conducted a lengthy cross-examination on this point, during which the trial court allowed him to question Loyd regarding the new warning on the blade. The trial court allowed Blythe to use the new metal blade during his cross-examination, but did not allow the new metal blade to be admitted into evidence.
In argument before the trial court, Blythe's counsel stated:
In his brief to this court, Blythe argues that the reason he wanted to admit the evidence was to argue that, "If the defendants really believe the product is safe, then why did they add, the very next year, a warning which warns of the very danger that injured Rusty Blythe?" "[T]he trial judge should guard against the improper admission of evidence to prove prior [culpable conduct] under the guise of impeachment." Hardy v. Chemetron Corp., 870 F.2d at 1011. Trying to prove prior culpable conduct on the part of Sears and Poulan through the use of the subsequent warning appears to be precisely what Blythe was trying to accomplish through the admission of the subsequent warning on the metal blade. Therefore, we are unable to hold that the trial court's refusal to allow the new metal blade into evidence was an abuse of his discretion.
Loyd testified that the blade and the line trimmer, together as a system, were safe and that the warnings were adequate. He was cross-examined on this point, and Blythe's counsel was allowed to use the *866 new blade and package during this cross-examination, but he was not allowed to admit them into evidence. The trial judge did not abuse his discretion in excluding this evidence of a subsequent remedial measure.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | August 23, 1991 |
9e6e2ff3-079e-42b7-83de-b7f4cbbafa32 | S/M INDUSTRIES v. Hapag-Lloyd AG | 586 So. 2d 876 | 1900897 | Alabama | Alabama Supreme Court | 586 So. 2d 876 (1991)
S/M INDUSTRIES, INC.
v.
HAPAG-LLOYD A.G.
1900897
Supreme Court of Alabama.
August 23, 1991.
*878 Michael B. Smith, Mobile, for appellant.
David M. O'Brien of Reams, Philips, Killion, Brooks, Schell, Gaston & Hudson, Mobile, for appellee.
SHORES, Justice.
The defendant, S/M Industries, Inc., appeals from a judgment for Hapag-Lloyd, A.G., on claims alleging breach of bailment contract, conversion, and breach of duty by a public warehouse. We affirm.
The trial court entered an order succinctly setting out the facts, which are undisputed, and resolving the legal issues correctly. We adopt the trial court's order as the opinion of this Court.
"1. Hapag-Lloyd, A.G. is a corporation organized and existing under the laws of West Germany. Hapag-Lloyd, A.G. is a worldwide carrier of oceangoing cargo. Hapag-Lloyd, A.G. brings the present action on its own behalf and pursuant to an assignment of rights from Knud Erichsen & Company (Testimony of Joann Daughdrill and Elmar Hafkemeyer, pages 8, 24; see also plaintiff's exhibit 13).
"2. Knud Erichsen & Company is a corporation organized and existing under the laws of Denmark. In the present case, Knud Erichsen & Company was at all times acting on behalf of the several manufacturers of the furniture comprising the shipment of goods to the United States (Testimony of Erik Sorensen, pages 7, 8).
"3. Scandinavian Import Systems was at all times relevant a furniture dealer operating in Daphne, Alabama and was the intended receiver of the goods or shipment here concerned (Testimony of Joann Daughdrill).
"4. Biehl & Company was in 1987 and 1988 the steamship agent for Hapag-Lloyd, A.G. in the port of Mobile. As steamship agent Biehl's activities included the handling of cargo discharged at Mobile from Hapag-Lloyd, A.G. in Mobile. At trial plaintiff presented the testimony of Joann Daughdrill. Mrs. Daughdrill was at all relevant times the representative of Biehl & Company who handled this shipment. Mrs. Daughdrill is no longer employed by Biehl & Company. (Testimony of Joann Daughdrill)
"5. S/M Industries is a corporation organized and existing under the laws of the state of Alabama. S/M Industries began operating as a public warehouse in Mobile in August, 1987. S/M Industries received the shipment or goods here concerned for storage on October 12, 1987 (Testimony of David Boyes).
"6. The shipment here concerned consisted of shipping container HLCU435653-1 containing 737 cartons of new furniture. The container had been shipped on board the M/V GULF SPIRIT from Bremmerhaven to Mobile arriving on or about February 5, 1987. Prior to being placed in the container, the cartons of new furniture were collected in the warehouse of Knud Erichsen & Company and there prepared for shipment to the United States. (Testimony of Erik Sorensen, pages 7, 8)
"7. The named shipper of the goods here concerned was Knud Erichsen & Company. Hapag-Lloyd, A.G. issued an original bill of lading to Knud Erichsen & Company *879 covering the goods contained in the shipment. Knud Erichsen & Company in turn forwarded the original bill of lading to the First Alabama Bank in Mobile under instructions that the bill of lading was not to be released to Scandinavian Import Systems until full payment of the invoices forwarded along with the bill of lading were paid. The original bill of lading was later returned to Knud Erichsen & Company when the intended receiver was unable to pay for the goods. After the return of the bill of lading to Knud Erichsen & Company, the outstanding invoice amounts and charges against the cargo were to be paid to Knud Erichsen & Company. (Testimony of Erik Sorensen, pages 8, 9, 10, 20, 21)
"8. Shortly before the arrival of the M/V GULF SPIRIT in Mobile, Biehl & Company acting as agents for Hapag-Lloyd, A.G. contacted Scandinavian Import Systems to advise of the arrival of the container of furniture for which Scandinavian Import Systems was the intended receiver. Upon the arrival of the M/V GULF SPIRIT the container here concerned was discharged from said vessel and placed on the dock at Pier 2 of the Alabama State Docks. (Testimony of Joann Daughdrill)
"9. Shortly after the arrival of the shipment, Biehl & Company again contacted Scandinavian Import Systems to inquire as to their intentions regarding the cargo. Biehl & Company was advised that Scandinavian Import Systems had not been able to make financial arrangements so as to obtain the original bills of lading but were attempting to do so. The container remained on the docks from February, 1987 to October, 1987. During that period of time Biehl & Company contacted Scandinavian Import Systems on several occasions inquiring as to their intent with regard to the cargo. On each occasion Biehl & Company was advised that Scandinavian Import Systems was attempting to make arrangements to pay for the cargo. (Testimony of Joann Daughdrill)
"10. After an initial free time of approximately 10 days, while the container remained on the docks expenses were being incurred against the cargo for storage and demurrage. (Testimony of Joann Daughdrill)
"11. In late September, 1987 Knud Erichsen & Company, after conferring with the various manufacturers, requested Hapag-Lloyd, A.G. through its agents in Mobile to arrange for the cartons to be stripped from the container and placed in storage in a reputable warehouse in Mobile until such time as Scandinavian Import Systems could make payment for the goods and outstanding charges or until a new buyer or buyers could be found for the goods. Pursuant to the instructions of Knud Erichsen & Company and Hapag-Lloyd, A.G., Biehl & Company contacted several warehouses in Mobile and eventually made arrangements with Harwell & Carey, Inc., a local warehouse, to receive and store the goods. Biehl's arrangement with Harwell & Carey for the storage of the goods included that the goods were being stored for Hapag-Lloyd, A.G., that the storage charges could be paid when the goods were picked up and that the goods would not be released by Harwell & Carey without the written authorization of Biehl & Company. (Testimony of Joann Daughdrill and Erik Sorensen, page 11)
"12. It was Biehl & Company's understanding that the goods were delivered to Harwell & Carey from the Alabama State Docks on October 12, 1987. (Testimony of Joann Daughdrill) In addition to the invoice cost of the goods, when the shipment left the Alabama State Docks the following charges were outstanding against the goods:
*880 "The outstanding charges against the shipment when the same was removed from the Alabama State Docks was $13,186.27. (Testimony of Erik Sorensen, pages 13-17)
"13. On November 4, 1987 Biehl & Company discovered for the first time that the container had not been delivered to Harwell & Carey for stripping and storage but instead had been delivered to S/M Industries apparently pursuant to an agreement between Harwell & Carey and S/M Industries. Biehl & Company first received notice of S/M Industries' involvement when it received an invoice from S/M Industries dated November 2, 1987. (See plaintiff's exhibit 6) The invoice was received by Biehl & Company on November 4, 1987. Upon receipt of the invoice Biehl & Company in the person of Joann Daughdrill contacted David Boyes of S/M Industries. Mrs. Daughdrill had contacted S/M Industries to first confirm that they in fact were in possession of the shipment and to make sure that the goods had been received by S/M Industries under the original agreement between Biehl & Company and Harwell & Carey. During the course of the telephone conversation between Joann Daughdrill and David Boyes, David Boyes on behalf of S/M Industries agreed that the storage charges for the goods could be paid when the goods were picked up as opposed to payment in advance or on a monthly basis. S/M Industries also agreed that the goods would not be released without Biehl & Company's written authorization. In confirmation of the agreement reached on November 4, 1987, S/M Industries acknowledged in writing that the goods would not be released without Biehl & Company's written authorization. (See plaintiff's exhibit 1) Plaintiff's exhibit 1 was executed by Jim Moore, a 50 percent owner of S/M Industries. The parties do not dispute that the signature on plaintiff's exhibit 1 is that of Jim Moore. (Testimony of Joann Daughdrill)
"14. The evidence is undisputed that had the warehouse requested that the storage charges for the goods be paid in advance or on a monthly basis instead of allowing payment when the goods were picked up, Knud Erichsen & Company and/or Hapag-Lloyd, A.G. would have paid the storage charges in accordance with such request. (Testimony of Elmar Hafkemeyer, pages 17, 18 and Erik Sorensen, page 19) There is also undisputed evidence that had the warehouse not agreed that the goods would be held until written authorization for their release was received from Biehl & Company, Hapag-Lloyd, A.G. would have caused the goods to be removed to another warehouse. (Testimony of Elmar Hafkemeyer, pages 18, 19)
"15. Subsequent to the storage of the goods in the warehouse, Scandinavian Import Systems was able to make financial arrangements to secure the release of two consignments of the goods. The charges due on the two consignments were paid to Knud Erichsen & Company in Denmark. After Knud Erichsen & Company's receipt of the outstanding amounts due on the two consignments, Knud Erichsen & Company issued delivery orders to Scandinavian Import Systems. Upon receipt of the delivery orders, Scandinavian Import Systems then presented the same to S/M Industries requesting release of the goods covered by the delivery order or orders in question. Once Scandinavian Import Systems presented the delivery order or orders to S/M Industries a representative of S/M Industries contacted Biehl & Company to advise that delivery orders had been presented and requested authorization to release the goods covered by the delivery orders. Upon receiving advice from S/M Industries that certain delivery orders were in hand, Biehl & Company issued written authorization to S/M Industries for the goods covered by the delivery orders. At the same time, Biehl & Company advised S/M Industries that the outstanding storage charges for the goods covered by the delivery orders should be collected by the warehouse and that the delivery orders should be retained with a copy being forwarded to Biehl & Company. This procedure was followed for the release of two consignments of goods on December 11 and December 16, 1987. (See plaintiff's exhibits 7 and 8) With regard to the release *881 of goods on December 11 and 16, Biehl & Company was also advised by Knud Erichsen & Company that delivery orders had been issued covering certain consignments. Despite its request to S/M Industries, Biehl & Company never received a copy of the delivery orders presented. (Testimony of Joan Daughdrill and Erik Sorensen, pages 20-23; also see plaintiff's exhibit 15)
"16. At the time of the release of the two consignments of cargo in December, 1987 Scandinavian Import Systems paid to S/M Industries the outstanding storage charges then due on the goods released. (Testimony of David Boyes)
"17. After payment of all outstanding charges to Knud Erichsen & Company, a further delivery order was issued on January 18, 1988 covering six cartons of furniture. Biehl & Company was not informed that the delivery order had been issued either by S/M Industries or Knud Erichsen & Company. No claim is made with regard to the six cartons covered by the delivery order of January 18, 1988.
"Excluding the six cartons covered by the delivery order issued on January 18, 1988, there remained in S/M Industries subsequent to the deliveries of the two consignments in December, 1987 a total of 582 cartons of furniture. (Testimony of Erik Sorensen, page 23)
"18. On February 18, 1988 S/M Industries released to Scandinavian Import Systems the remaining 582 cartons of furniture upon Scandinavian Import Systems' payment of the outstanding storage charges of S/M Industries. The release of the 582 cartons was without the knowledge of Biehl & Company, Hapag-Lloyd, A.G., Knud Erichsen & Company, or the manufacturers of the goods. The release of the goods by S/M Industries was without authorization from Biehl & Company and not pursuant to any delivery order issued by Knud Erichsen & Company. (Testimony of Joan Daughdrill and David Boyes)
"19. The invoice cost of the 582 cartons released by S/M Industries on February 18, 1988 was $28,886.19. (Testimony of Erik Sorensen, pages 24, 25; see also plaintiff's exhibit 2A-2I and the conversion table converting foreign currencies to U.S. dollars for each delivery order) The outstanding charges due Hapag-Lloyd, A.G., Knud Erichsen & Company, and the various suppliers on the 582 cartons released by S/M Industries was $7,121.85. (Testimony of Erik Sorensen, pages 24, 25; see also table of pro rata charges due against 582 cartons)
"20. Biehl & Company, Hapag-Lloyd, A.G., Knud Erichsen & Company, and the various suppliers were unaware of the release of the 582 cartons until June, 1988 when Biehl & Company at the request of Hapag-Lloyd, A.G. contacted S/M Industries to confirm that the cargo remained in their warehouse. Biehl & Company was advised at that time that the goods had been released to Scandinavian Import Systems in February, 1988. Biehl & Company immediately placed S/M Industries on notice that S/M Industries was to be held responsible for the unauthorized delivery of the 582 cartons of furniture.
"21. In May, 1988 Scandinavian Import Systems declared bankruptcy. There were no funds available for the payment for the 582 cartons and the outstanding charges relating thereto.
"22. Hapag-Lloyd, A.G. is obligated to Knud Erichsen & Company and the suppliers for the invoice cost plus the outstanding charges against the goods. Neither Knud Erichsen & Company nor suppliers have been paid for the goods here concerned or the outstanding charges. (Testimony of Erik Sorensen, pages 27, 28, 76, 77 and Elmar Hafkemeyer, pages 23, 24)
"1. Plaintiff brings the present action under theories of breach of bailment contract, conversion, and breach of duty by a public warehouse. The Court shall discuss each of plaintiff's theories in the above order.
"2. A bailment is defined as the delivery of personal property by one person to another for a specific purpose, with a contract, express or implied, that the trust *882 shall be faithfully executed, and the property returned or duly accounted for when the special purpose is accomplished, or kept until the bailor reclaims it. Farmer v. Machine Craft, Inc., 406 So. 2d 981 (Ala. Civ.App.1981) In order for a bailment to exist the bailee must have voluntarily assumed the custody and possession of the property for another.
"There is no doubt that S/M Industries voluntarily assumed the control of the 737 cartons held under a bill of lading by Knud Erichsen & Company and in the possession of Hapag-Lloyd, A.G. as carrier for Knud Erichsen & Company. The Court finds that a contract of bailment was entered into between Biehl & Company, as agent for Hapag-Lloyd, A.G. and S/M Industries on or about November 4, 1987. The Court further finds that under the terms of the bailment contract, S/M Industries understood that their storage of the goods was on behalf of Hapag-Lloyd, A.G., S/M Industries agreed that the storage charges could be paid when the goods or any portion of them were picked up, and S/M Industries further agreed that the goods would not be released without the written authority of Biehl & Company. The bailment contract between Biehl & Company and S/M Industries was not gratuitous as S/M Industries was to receive a fee for the storage of the goods. The existence of the bailment contract and the intent of the parties is evidenced by the written acknowledgement by S/M Industries that the goods would not be released without the written authority of Biehl & Company. (See plaintiff's exhibit 1)
"3. Defendant admits that the 582 cartons in question were delivered to Scandinavian Import Systems without authorization from Biehl & Company. On this basis the Court finds S/M Industries in breach of its bailment contract with Biehl & Company and, absent some legal defense,... liable in damages to plaintiff Hapag-Lloyd, A.G.
"4. Defendant raises as a defense a lack of consideration for its promises to Hapag-Lloyd, A.G. Defendant claims that since its storage charges were not in fact paid by Hapag-Lloyd, A.G. it had no obligation to honor its agreement with Biehl & Company acting as agents for Hapag-Lloyd, A.G. In the first instance defendant's position in this regard begs the question. The Court has previously found that defendant agreed that its storage charges could be paid when the goods or any portion of them were picked up. This alone is sufficient consideration to support its promises to Biehl & Company. Even if this were not the case, the validity of a contract is not affected because the consideration may not have moved from the party to whom the obligations of the contract are extended and in whom the right of enforcement resides. Willingham v. Lankford, 257 Ala. 595, 60 So. 2d 387 (1952). There is ample evidence that had the agreement between Biehl & Company and S/M Industries required payment of S/M Industries' storage charges in advance or on a monthly basis the same would have been paid either by Knud Erichsen & Company or Hapag-Lloyd, A.G.
"5. There is even further consideration to support S/M Industries' promise not to release the cargo without Biehl & Company's written authorization. The uncontradicted testimony of Elmar Hafkemeyer establishes that had S/M Industries not agreed to hold the cargo until written authorization for its release was received from Biehl & Company, Hapag-Lloyd, A.G. would have required the cargo to be moved to another warehouse. That which creates and carries benefit to the party promising, or causing trouble, injury, inconvenience, prejudice, or detriment to the other party, is sufficient consideration to support the promise under consideration. Files v. Schaible, 445 So. 2d 257 (Ala.1984). In relying on S/M Industries' written promise that the cargo would not be released without Biehl & Company's written authority, Hapag-Lloyd, A.G. suffered a legal detriment as it certainly had the right to, and by the uncontradicted testimony would have, removed the goods from S/M Industries' warehouse absent such a promise. Files v. Schaible, supra, and First Alabama Bankshares, *883 Inc. v. McGahey, 355 So. 2d 681 (Ala.1977).
"The Court finds that defendant's contention that there was no consideration for its promises to Hapag-Lloyd, A.G. is without merit. Having found that S/M Industries breached its contract of bailment, [the court concludes that] plaintiff is entitled to recover damages under count one of its Complaint.
"6. Hapag-Lloyd's second cause of action is for conversion. The gist of an action for conversion is that the defendant wrongfully exercised dominion over the plaintiff's personal property in exclusion or defiance of his rights, where he has a general or special title to the property, or he has the immediate right to possession of the same. Ott v. Fox, 362 So. 2d 836 (Ala. 1978) There is no issue raised regarding Hapag-Lloyd's immediate right to possession of the goods here concerned at the time of S/M Industries' delivery of the same to Scandinavian Import Systems. Knud Erichsen & Company held title to the goods and immediate right of possession by virtue of the negotiable bill of lading issued on delivery of the goods for ocean carriage. Hapag-Lloyd's right to immediate possession was pursuant to the authority of Knud Erichsen & Company, as ocean carrier of the goods, and as a bailor of the goods vis-á-vis S/M Industries.
"A conversion may occur where there is a wrongful delivery to a third party of personal property by a bailee resulting in its loss to the owner of the property. A delivery to an unauthorized person is as much a conversion as would be the sale of property, or an appropriation of it to the bailee's own use. In such a case neither a sincere or apparently well-founded belief that the delivery to an unauthorized person was right nor the exercise of any degree of care constitutes a defense even to a gratuitous bailee. Treadwell Ford, Inc. v. Wallace, 49 Ala.App. 308, 271 So. 2d 505 (1973).
"Defendant in the present case admits that its delivery of the 582 cartons to Scandinavian Import Systems was in knowing violation of its agreement with its bailor, Biehl & Company. If an action for conversion will lie against a bailee who mistakenly delivers goods to an unauthorized person, such an action will surely lie against a bailee who knowingly does so. The Court finds that S/M Industries' delivery of the 582 cartons to Scandinavian Import Systems on February 18, 1988 was a conversion of the goods against the rights of Knud Erichsen & Company, the various suppliers, and Hapag-Lloyd, A.G. entitling Hapag-Lloyd, A.G. to recover damages for the same.
"7. Plaintiff's third and final cause of action seeks recovery for defendant's breach of its duties as a public warehouseman. To some extent plaintiff's right of recovery is subsumed by its recovery under count one. A public warehouseman owes a duty of ordinary care for the protection of goods delivered into its possession. If there be injury or loss of goods during the bailment, the burden devolves on the bailee or warehouseman to acquit himself of want of diligence in respect thereto. Churchill v. Walling, 205 Ala. 509, 88 So. 582 (1921), Hatchett & Brother v. Gibson, 13 Ala. 587 (1848). A warehouseman is liable for the delivery of goods to the wrong person. Kitchens v. Mann, 16 Ala. App. 599, 80 So. 173 (1918). Defendant's delivery of the 582 cartons to Scandinavian Import Systems in knowing violation of its agreement to store the goods is a breach of the obligation owed by a warehouseman. Plaintiff is likewise entitled to recover under count three of its Complaint.
"8. Having determined that plaintiff is entitled to recover on each of the three counts of its Complaint, the Court must now assess damages against the defendant. For the loss of property through the wrongful acts of another, a plaintiff is entitled to recover the market value of the property at the time the wrongful act was committed. Gamble, Alabama Law of Damages, § 36-49, 50 (1982) Plaintiff offered in evidence at trial the original invoices covering the 582 cartons here concerned. The amounts shown on the invoices are in foreign currency (Danish kroner, Swedish *884 kronor, and Norwegian kroner). After converting the invoice amounts based on the stipulated exchange rate, the invoice cost of the goods here concerned the U.S. dollar equivalent is $28,886.19. In determining the market value of the goods here concerned, the Court is of the opinion that there should be added to the invoice cost the seafreight and other related charges incurred against the goods totalling $7,121.85. The addition of the latter figure will reflect the true cost or value to any potential purchaser of these goods in the United States. The Court therefore assesses total compensatory damages against defendant in the amount of $36,008.04. Plaintiff is also entitled to interest at the rate of 6 percent per annum from February 18, 1988, the date of S/M Industries' delivery of the goods here concerned to Scandinavian Import Systems. Gamble, Alabama Law of Damages, § 36, 50 (1982).
"9. Based on the foregoing the Court hereby enters judgment against defendant and in favor of plaintiff for compensatory damages in the amount of $36,008.04 plus interest at the rate of 6 percent from February 18, 1988.
"DONE this the 25th day of May, 1990.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | August 23, 1991 |
f89813bf-dec7-40db-990e-2d8d94a86f60 | Baker v. Heatherwood Homeowners Ass'n | 587 So. 2d 938 | 1900417, 1900886 | Alabama | Alabama Supreme Court | 587 So. 2d 938 (1991)
Alex and Suzy BAKER
v.
HEATHERWOOD HOMEOWNERS ASSOCIATION, et al.
1900417, 1900886.
Supreme Court of Alabama.
August 30, 1991.
*939 Dennis G. Pantazis and Naomi Hilton Archer of Gordon, Silberman, Wiggins & Childs, Birmingham, for appellants.
Richard D. Mink and Courtney H. Mason, Jr. of Mason & Fitzpatrick, Birmingham, for appellees.
MADDOX, Justice.
These cases present the following questions: (1) Under the provisions of Rule 40, A.R.C.P., as amended, effective August 1, 1990, must a case in which injunctive relief is requested be set on the trial docket "at least 60 days before the date set for trial"? (2) Did the trial court err in failing to rule on the defendant's counterclaim? (3) Did the trial court err in failing to allow the defendants to present evidence on the issue of selective enforcement of the covenant? (4) Did the trial court err by failing to grant the defendant's motion for "directed verdict"[1] and (5) Can a party appeal a judgment of contempt of a court order in a civil proceeding and an award of attorney fees or must such an order be reviewed by certiorari?
Two cases, 1900417 and 1900886, have been consolidated on appeal. In the first case, Alex and Suzy Baker appeal from a trial court order that permanently enjoined them from erecting and maintaining a "satellite dish" on their property in violation of a restrictive covenant that was in force on their property. It is in this appeal that the Bakers claim: (1) that the trial court erred in entering the trial date on the docket less than 60 days before the date of the trial, because of the provisions of A.R.C.P. 40(a); (2) that the trial court erred by failing to rule on their counterclaim; (3) that the trial court erred in failing to allow the Bakers to present evidence on the issue of selective enforcement of the covenant; and (4) that the trial court erred by failing to grant their motion for a "directed verdict" at the close of the plaintiffs' case.
*940 In the second case, the Bakers appeal from the trial court's award of fees to the plaintiffs' attorney based on contempt proceedings brought by the plaintiffs in which they sought to have the permanent injunction that had been issued by the trial court enforced. The Bakers contend that the trial court erred in awarding attorney fees because (1) they say there was not sufficient legal evidence before the trial court to support the order to pay $2,000 in attorney fees, and (2) they say the plaintiffs had failed to prove that their attorney had performed services that would support the award of $2,000.
In the latter part of 1989, Alex and Suzy Baker enlisted the aid of a Brigham-Williams real estate agent to help them find a house in the Birmingham area. At that time, the Bakers allegedly informed the agent that one requirement in any house that the Bakers would consider buying would be that they could install a satellite dish that would be used by Alex Baker in his commercial real estate business.
The Bakers eventually decided to buy a house in the Heatherwood subdivision in Shelby County. Before the closing, the Bakers requested a list of any covenants or restrictions in place on that property. Alex Baker testified that no covenant restricting the use of satellite dishes appeared in that list. The Bakers bought the house and proceeded to move their satellite dish from their home in Montgomery to their new residence. After the Bakers had brought the dish to their new house, but before they had it installed, they received notice that the use of the satellite dish might be subject to a covenant restricting the use of satellite dishes. Nevertheless, they proceeded to install the dish on their property.
The Heatherwood Homeowners Association brought suit, asking for declaratory and injunctive relief and asking that the court enforce the provisions of the covenant restricting the use of satellite dishes.
The record shows that the Association's complaint was filed on August 3, 1990, and that the defendants were served on August 10, 1990. The record further shows that the defendants filed a motion to dismiss the complaint on September 24, 1990. The trial court overruled the motion to dismiss on September 28, 1990, and on October 5, 1990, set the case for trial on October 17, 1990, at 9:00 a.m. On October 18, 1990, after the defendants had filed a motion for continuance, the trial court rescheduled the case for trial on November 2, 1990, at 9:00 a.m.
The defendants filed an answer to the complaint on October 10, 1990, in which they made a demand for jury trial, and on October 16, 1990, filed a motion to continue on the grounds: (1) that they had not had adequate time to complete discovery; (2) that they had demanded a trial by jury; and (3) that Rule 40(a), A.R.Civ.P., required that the court not set a case for trial in less than 60 days after the case was docketed by the clerk.
On October 19, 1990, the Association filed a motion for leave to amend its complaint to strike from the complaint its request for declaratory relief, and at the same time filed a motion to strike the defendants' demand for a jury trial, on the ground that the complaint, as amended, requested only injunctive relief and that the defendants were therefore not entitled to a jury trial on the complaint.
The defendants filed another motion for a continuance on the date of trial, November 2, 1990, and also filed a counterclaim in which they alleged that the Association had selectively enforced the restrictive covenant relating to satellite dishes, and that the selective enforcement had caused them damages, including interruption of business activity.
The trial court, sitting without a jury, heard ore tenus evidence and entered an order permanently enjoining the Bakers from maintaining the satellite dish on their property in violation of the restrictive covenant. The trial court ordered the removal of the satellite dish from the Bakers' property within 21 days of November 9, 1990. When that time had elapsed, the Association filed motions for criminal and civil *941 contempt sanctions against the Bakers, and for attorney fees.
On January 11, 1991, the trial court conducted an evidentiary hearing and found that the Bakers had failed to comply with its order to remove the satellite dish, but allowed the Bakers five more days to comply with its order. On January 18, 1991, the trial court entered an order holding that the request for contempt sanctions was moot because the Bakers had removed the satellite dish from their property within the additional five days that had been allowed by the trial court. However, the trial court did award the Association $2,000 in attorney fees to compensate the Association for the fees it had incurred in seeking to have the injunction enforced against the Bakers.
We first address the issues raised by the Bakers in their first appeal, those issues being that (1) the trial court erred in setting the trial date in violation of the provisions of Rule 40(a), A.R.Civ.P., which provides, in part, that "[t]he trial of actions shall be set by entry on a trial docket or by written order at least 60 days before the date set for trial," (2) that the trial court erred in failing to rule on their counterclaim, (3) that the trial court erred in refusing to allow them to enter evidence of the Association's selective enforcement of the covenant, and (4) that the trial court erred in failing to grant their motion for a "directed verdict."
After reviewing the Bakers' first issue, we conclude that this case comes within an exception to the 60-day requirement. Rule 40(a), provides as follows:
(Emphasis added.) The Bakers argue, of course, that none of the exceptions to Rule 40(a) applies in this case. We disagree.
It is apparent from the record that the Association amended its complaint to request only injunctive relief, and that that was the only issue tried by the court. Rule 40(a) specifically provides an exception "where a shorter period of time is available under the provisions of Rule 65 (`Injunctions')." Rule 40(a) therefore, allows a trial judge to set requests for a temporary restraining order or preliminary injunction, for example, before the 60-day period has elapsed. Therefore, the trial court did not err in setting the case for trial less than 60 days from the entry on the trial docket because the only relief requested was injunctive in nature.
The second issue raised by the Bakers is that the trial court erred in failing to rule on their counterclaim. On October 10, 1990, the Bakers filed their answer to the Association's complaint. On November 2, 1990, the day of the trial, and almost one month after filing their answer to the Association's complaint, the Bakers filed a counterclaim against the Heatherwood Homeowners Association, alleging selective enforcement of the covenant and claiming damages in the amount of $10,000.
In order to determine this second issue, we must determine whether the counterclaim was compulsory, and therefore, should have been filed with the Bakers' *942 answer to the complaint. In Brooks v. Peoples Nat'l Bank of Huntsville, 414 So. 2d 917 (Ala.1982), this Court held:
"While this court has never specifically adopted a test for determining whether a counterclaim is compulsory, the Committee Comments indicate that it was the intent of the drafters of the rules to adopt the `logical relationship' test. The Committee Comments to Rule 13 state that `[a] counterclaim is compulsory if there is any logical relation of any sort between the original claim and the counterclaim.'
414 So. 2d at 919-20. See also Ex parte Canal Ins. Co., 534 So. 2d 582 (Ala.1988); Desroches v. Ryder Truck Rental, Inc., 429 So. 2d 1010 (Ala.1983); and Ex parte Fletcher, 429 So. 2d 1041 (Ala.1982).
The rule on compulsory counterclaims should receive a "`broad realistic interpretation in light of the interest of avoiding a multiplicity of suits.'" Brooks, at 919, quoting Carter v. Public Finance Corp., 73 F.R.D. 488 (N.D.Ala.1977). In this case, the original claim and the counterclaim arose out of the same aggregate core of operative facts. Therefore, the counterclaim brought by the Bakers was a compulsory counterclaim and, because it was a compulsory counterclaim, the Bakers should have filed it on October 10, 1990, the day they answered the Association's complaint. The Bakers failed to do this; therefore, their counterclaim was untimely filed. Because the counterclaim was untimely, we hold that the trial court did not err in failing to rule on it.[2]
As to their third issue, the Bakers contend that the trial court erred in refusing to allow them to introduce evidence of the Association's alleged selective enforcement of the covenants that govern the Heatherwood subdivision. We disagree. This Court has followed the general rule that restrictive covenants in deeds will be enforced even though other owners of lots in the subdivision have violated the restrictions without objection. See Tubbs v. Brandon, 374 So. 2d 1358 (Ala.1979); Dauphin Island Property Owners Ass'n, Inc. v. Kuppersmith, 371 So. 2d 31 (Ala.1979); and Brown v. Morris, 279 Ala. 241, 184 So. 2d 148 (1966). Therefore, the trial court *943 did not err in refusing to admit evidence of other alleged violations.[3]
As to their final issue on the first appeal, the Bakers contend that the trial court erred in failing to grant their motion for a "directed verdict," because, they say, the Heatherwood Homeowners Association had failed to offer any evidence that the Bakers had violated the covenants referred to in the complaint. The Bakers contend that the Heatherwood Homeowners Association, in its complaint, stated that the Bakers were subject to the covenants governing the Fourth Sector, Second addition, of the Heatherwood subdivision. However, the Bakers are actually subject to the covenants governing the original Fourth Sector of the Heatherwood subdivision. The failure of the Association to specify the proper set of covenants in its complaint, the Bakers contend, failed to "show with accuracy and clearness all matters essential to plaintiffs' right to relief."
Rule 15(b), A.R.Civ.P., and the Committee Comments explaining Rule 15 address this issue raised by the Bakers. The Committee Comments state:
(Emphasis added.)
In this instance, the Heatherwood Homeowners Association introduced into evidence a copy of the deed conveying a house and lot in the Heatherwood subdivision to the Bakers, along with a copy of the restrictive covenants applicable to that specific house and lot. This copy of the restrictive covenants clearly states that "no satellite dishes are permitted on any lot." The Bakers failed to object to the introduction of this evidence. Because the Bakers failed to object to the admission of this evidence, we hold that the pleadings are to be treated as if amended to conform to the evidence introduced by the Association. This reflects the intent of the drafters of Rule 15(b) as expressed in the Committee Comments. Therefore, the trial court did not err in denying the Bakers' motion for a "directed verdict."
In the second appeal, the Bakers contend that the trial court erred in awarding attorney fees to the Heatherwood Homeowners Association based on the contempt proceedings brought by it and in which it sought to have the permanent injunction that had been issued by the trial court enforced. The Bakers contend that the trial court erred in awarding attorney fees because (1) they say there was insufficient legal evidence before the trial court to support the order to pay $2,000 in attorney fees, and (2) they say that the plaintiffs had failed to prove that their attorney had performed services that would support the award of $2,000.
The trial court's order stated:
Nevertheless, the trial court imposed sanctions by ordering the defendants to pay the plaintiffs' attorney fees and the court costs for the contempt proceeding. On appeal, both parties treat the order as an adjudication of contempt. For purposes of the appeal, we will treat the order to pay the attorney fees as having been imposed as a sanction arising out of the Bakers' failure to timely comply with the trial court's order of November 9; in that sense, the order is in the nature of a contempt adjudication.
The association claims that the Bakers' appeal should be dismissed because, they *944 claim, an appeal will not lie from an adjudication of contempt; the proper method of review, they say, is by certiorari or, if the party is in jail, by habeas corpus. Parker v. Reaves, 531 So. 2d 853 (Ala.1988) (appeal from contempt order requiring a party to pay costs and attorney fees was dismissed), and the cases cited therein. Although this is a correct statement of the law as it existed prior to the adoption of Rule 33, Alabama Rules of Criminal Procedure, effective January 1, 1991, it is no longer the law. Rule 33.6 provides:
Rule 33 applies to the contempt proceeding even though this is a civil proceeding.[4] The contempt order appealed from was entered after January 1, 1991; therefore, the procedural requirements of the Rule were applicable. Here, there was substantial compliance with the requirements of the Rule, and the record shows that the $2,000 award of attorney fees was made only after the Bakers had had notice and an opportunity to be heard.
After carefully reviewing the record on appeal, we hold that the trial court acted within its sound discretion in awarding attorney fees to the Association for the contempt proceedings. See Moody v. State ex rel. Payne, 355 So. 2d 1116, 1119 (Ala.1978). We hold that the trial court did not err in ordering the defendants to pay the plaintiffs' attorney fees in the amount of $2000.
1900417 AFFIRMED.
1900886 AFFIRMED.
HORNSBY, C.J., and HOUSTON, KENNEDY and INGRAM, JJ., concur.
[1] The motion, styled as a "motion for a directed verdict," was one made as provided in Rule 41(b), A.R.Civ.P., which states, "[A]fter the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief."
[2] The Bakers do not argue that it was an abuse of discretion for the trial court not to allow their counterclaim to be filed late, as provided for in A.R.Civ.P. 13(f).
[3] The Bakers do not show in their brief, nor can we find any evidence in the record, that any other covenant violations actually occurred or, if they did, that they involved the use of a "satellite dish." Therefore, we see no reason to exclude the Bakers from the general rule that restrictive covenants in deeds will be enforced.
[4] One of the criticisms received by this Court when it was considering the adoption of the Rules of Criminal Procedure was that Rule 33 applied to contempts in civil cases. See, Maddox, Alabama Rules of Criminal Procedure, p. 818 (1990). | August 30, 1991 |
392b693f-f53c-45b0-a622-89dbe81bc1ee | Hereford v. Jefferson County | 586 So. 2d 209 | 1900708 | Alabama | Alabama Supreme Court | 586 So. 2d 209 (1991)
George L. HEREFORD and Terry Lynn Parks
v.
JEFFERSON COUNTY, et al.
1900708.
Supreme Court of Alabama.
August 23, 1991.
Alicia K. Haynes, Birmingham, for appellants.
Charles S. Wagner, Asst. County Atty., Birmingham, for appellee Jefferson County.
J. Fred Wood, Jr. and Terry McElheny of Dominick, Fletcher, Yeilding, Wood & Lloyd, P.A., Birmingham, for appellees Walter Brandon and Al Finley.
STEAGALL, Justice.
On September 15, 1985, William Blevins, a prisoner in the Jefferson County jail serving a sentence of life without parole, was mistakenly released instead of William Blevins McCrary, also a prisoner at the jail, who was to have been released pursuant to a suspension of his sentence. On October 14, 1985, Blevins robbed George Hereford and Terry Parks at the Quality Auto Parts store, which they own and operate. Blevins was later arrested and convicted of the robbery.
Hereford and Parks sued Jefferson County; Melvin Bailey, individually and in *210 his capacity as sheriff of Jefferson County; Deputy Ernest Poelnitz; Deputy Walter Brandon; Deputy Al Finley; and Deputy Deidre Poole, alleging negligence and wantonness in releasing Blevins. The trial court entered a summary judgment for Poelnitz, to which the plaintiffs consented, and, on Poole's motion, severed the claim against her. On August 21, 1990, the trial court entered a summary judgment for all of the remaining defendants. Hereford and Parks appeal.
Our first inquiry is whether the defendants are immune from suit. If they are, then the judgment for them was proper. In Parker v. Amerson, 519 So. 2d 442 (Ala.1987), the Eleventh Circuit Court of Appeals asked this Court to decide whether a sheriff is an employee of a county for purposes of holding the county vicariously liable. We held that a sheriff is an employee of the state, rather than a county, based on the following constitutional provision: "The executive department shall consist of a governor ... and a sheriff for each county." Article V, § 112, Alabama Constitution of 1901. As executive officers, sheriffs have sovereign immunity under Article I, § 14, of the Alabama Constitution, which reads: "[T]he State of Alabama shall never be made a defendant in any court of law or equity." The only exceptions to such immunity are for actions brought against a sheriff:
519 So. 2d at 443. None of those exceptions applies here.
We also held in Parker v. Amerson, supra, that Ala.Code 1975, § 14-6-1, which made a sheriff civilly liable for the acts of his jailer, was unconstitutional as being in derogation of Article I, § 14, of the Alabama Constitution. Applying the holdings of that case to the instant case, we are compelled to conclude that Sheriff Bailey, as an executive officer of the State of Alabama, has sovereign immunity under § 14; thus, Jefferson County cannot be vicariously liable. See, also, Oliver v. Townsend, 534 So. 2d 1038 (Ala.1988).
We must reach the same conclusion with regard to Deputies Brandon and Finley. In Mosely v. Kennedy, 245 Ala. 448, 450, 17 So. 2d 536, 537 (1944), this Court stated, "In general, the acts of the deputy sheriff are the acts of the sheriff. The deputy sheriff is the alter ego of the sheriff." (Citations omitted.) In dealing with the same issue that is present here, the federal appellate court in Carr v. City of Florence, Alabama, 916 F.2d 1521, 1526 (11th Cir.1990), affirmed summary judgments for the Lauderdale County sheriff and his deputies, stating:
We hold, therefore, that the summary judgments for defendants Jefferson County, Sheriff Bailey, and Deputies Brandon and Finley were correct and are due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS and INGRAM, JJ., concur. | August 23, 1991 |
3d039fde-c841-412b-8e94-9f6481231d85 | Evans v. Sunshine Jr. Stores, Inc. | 587 So. 2d 312 | 1900409 | Alabama | Alabama Supreme Court | 587 So. 2d 312 (1991)
Rickey EVANS and Emily J. Evans, as parents of Ronald Eugene Evans; and Rickey Evans, as administrator of the Estate of Ronald Eugene Evans, deceased
v.
SUNSHINE-JR. STORES, INC.
1900409.
Supreme Court of Alabama.
August 30, 1991.
*314 Eason Mitchell, Alabaster, for appellants.
Jack J. Hall and John M. Fraley of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellee.
STEAGALL, Justice.
Rickey Evans and Emily J. Evans, as parents of Ronald Eugene Evans, and Rickey Evans, as administrator of the estate of Ronald Eugene Evans, deceased, appeal from a summary judgment entered in favor of Sunshine-Jr. Stores, Inc., in an action to recover damages for the death of Ronald Eugene Evans. This judgment was made final pursuant to Rule 54(b), A.R.Civ.P.[1]
Ronald Eugene Evans was killed when his automobile collided with a pickup truck driven by Earl Simpson, Jr., at approximately 12:25 a.m. on May 6, 1989. At the time of the accident, Simpson was driving under the influence of alcohol. At approximately 11:45 p.m. on May 5, Simpson had purchased a 12-pack of beer from Sunshine-Jr. Stores in Columbiana, Alabama. Rickey Evans and Emily J. Evans, as parents of Ronald Eugene Evans, and Rickey Evans, as administrator of the estate of Ronald Eugene Evans, deceased, sued Sunshine-Jr. Stores, alleging that it had negligently and wantonly caused the death of Ronald Eugene Evans and claiming damages under Ala.Code 1975, § 6-5-71, "The Dram Shop Act." The trial court entered a summary judgment in favor of Sunshine-Jr. Stores and denied the Evanses' subsequent motion to alter, amend, or vacate that summary judgment. The Evanses appeal.
Under Alabama's Dram Shop Act, any person or the personal representative of any person injured or killed by an intoxicated person has a cause of action against one who "by selling, giving or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause[s] the intoxication of such person." Ala.Code 1975, § 6-5-71. The Evanses allege that Sunshine-Jr. Stores, a licensee of the Alabama Alcoholic Beverage Control Board ("ABC Board"), violated Regulation 20-X-6-.15 of the regulations promulgated by the ABC Board by allowing Simpson to drive on its premises while under the influence of alcohol. The Evanses contend that because the regulations of the ABC Board have the full force and effect of law, pursuant to Ala.Code 1975, § 28-3-49, they have a cause of action under the Dram Shop Act based on the alleged violation of Regulation 20-X-6-.15. That regulation provides:
This Court is not persuaded by this argument. The cause of action created by the Dram Shop Act is confined to the unlawful selling, giving, or otherwise disposing of liquors or beverages. Moreover, the language in Regulation 20-X-6-.15 sets forth the consequences for criminal conduct on the premises of a licensee and provides that the licensee shall be accountable to the ABC Board for criminal conduct. It does not appear that Regulation 20-X-6-.15 was promulgated to impose liability to third parties for criminal conduct on the premises of an ABC Board licensee. This Court concludes that the Evanses do not have a cause of action under the Dram *315 Shop Act based on the alleged violation of Regulation 20-X-6-.15.
The Evanses also contend that they have a cause of action under the Dram Shop Act based on an alleged violation by Sunshine-Jr. Stores of Ordinance No. 295 of the City of Columbiana, Alabama, which reads:
Ordinance No. 295 was enacted on December 20, 1979, and became effective on January 1, 1980. At the time the ordinance was passed and became effective, Ala.Code 1975, § 28-3-260(2), provided, inter alia, that it was unlawful for a liquor licensee to sell alcoholic beverages to any person visibly intoxicated. On September 30, 1980, § 28-3-260 was repealed by the Alabama legislature and as of the time of the accident in this case, there was no Alabama law prohibiting the sale of alcoholic beverages by an off-premises liquor licensee to any person visibly intoxicated.[2] The Evanses argue that the city ordinance preserved the state law that was in effect at the time of the passage of the ordinance and that the ordinance, therefore, prohibited the sale of alcoholic beverages by an off-premises licensee to a visibly intoxicated person.
This Court, in distinguishing between "specific reference statutes" and "general reference statutes," has held that a specific reference statute is one that incorporates an earlier statute by specific and descriptive reference thereto and that a general reference statute is one that refers generally to the law relating to the subject under consideration. Shelby County Commission v. Smith, 372 So. 2d 1092 (Ala.1979); Carruba v. Meeks, 274 Ala. 714, 150 So. 2d 195 (1963). A general reference statute includes not only the law in force at the time the adopting act became effective, but also any subsequent modifications to the general law, unless there is a clear expression of a contrary legislative intent. Shelby County Commission v. Smith, supra. A general reference statute or ordinance assures that the city ordinance is not inconsistent with state laws and "puts the local government behind the suppression of evils defined and made public offenses by state law." Casteel v. City of Decatur, 215 Ala. 4, 4, 109 So. 571, 572 (1926). Any ordinance adopted by a municipality on the authority granted to the municipality by Ala.Code 1975, § 11-45-1, must not be inconsistent with the general *316 laws of the state. Lanier v. City of Newton, 518 So. 2d 40 (Ala.1987). An ordinance is inconsistent with the general laws of the state if the municipal law prohibits anything that the state law permits. Lanier v. City of Newton, supra.
This Court finds that Ordinance No. 295 is a general reference ordinance encompassing the state law in effect at the time the ordinance became effective, as well as the subsequent modifications to the state law. Even if the city council of Columbiana had clearly expressed its intent to the contrary, the ordinance, to be consistent with the laws of Alabama, must necessarily be interpreted as conforming to the state law at the time § 28-3-260 was repealed by the Alabama legislature. Consequently, § 28-3-260 was not preserved by the ordinance and the ordinance did not prohibit the sale of alcoholic beverages by an off-premises licensee to a visibly intoxicated person. The Evanses do not have a cause of action under the Dram Shop Act based on an alleged violation of this ordinance by Sunshine-Jr. Stores.
The Evanses' final contention is that where there is no cause of action under the Dram Shop Act, they should be allowed to proceed under a common law negligence theory. Specifically, the Evanses allege that by executing a document required by the ABC Board, which provided that alcoholic beverages would not be sold to intoxicated persons, Sunshine-Jr. Stores assumed a duty to refrain from selling alcoholic beverages to intoxicated persons. The Evanses allege that Sunshine-Jr. Stores breached that duty by selling alcoholic beverages to Simpson, who they allege was intoxicated.
As a general rule, Alabama does not recognize a common law cause of action for negligence in the dispensing of alcohol. Jackson v. Azalea City Racing Club, Inc., 553 So. 2d 112 (Ala.1989). However, in Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala.1984), this Court, by a narrow majority, recognized a limited exception for allowing such a cause of action in the situation where, through legislative oversight, there is a hiatus in the law during which there are no provisions making it unlawful for a licensee to dispense alcohol to an intoxicated person.
In Buchanan, this Court set out the history of the offenses giving rise to a cause of action under the Dram Shop Act:
463 So. 2d at 122-23. This Court then noted that in September 1982, the ABC Board promulgated Regulation 20-X-6-.02, which has the full force and effect of law and prohibits the sale of alcoholic beverages to a visibly intoxicated person. Buchanan, supra, at 123.
*317 Regulation 20-X-6-.02, however, was limited in its application to on-premises licensees of the ABC Board. The hiatus exception recognized in Buchanan, therefore, is limited to a negligence cause of action against an on-premises licensee during the gap from September 1980 to September 1982. That exception does not allow a negligence cause of action against an off-premises licensee such as Sunshine-Jr. Stores. The May 6, 1989, accident occurred over seven years after the ABC Board promulgated Regulation 20-X-6-.02. If the ABC Board had intended to prohibit an off-premises licensee from dispensing alcohol to a visibly intoxicated person, it could have done so when it promulgated Regulation 20-X-6-.02.[3] It is not apparent from these facts that a hiatus of law was created due to legislative oversight. This Court concludes that the accident giving rise to the Evanses' claim does not fall within that narrow exception recognized in Buchanan, supra. The Evanses cannot be permitted to proceed under a common law negligence theory.
In determining whether a trial court's ruling on a summary judgment is proper, this Court is limited to reviewing the same evidence considered by the trial court when it granted the motion and must review the evidence in the light most favorable to the nonmoving party. Turner v. Systems Fuel, Inc., 475 So. 2d 539 (Ala. 1985). A summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to the judgment as a matter of law. Rule 56, A.R.Civ.P.; RNH, Inc. v. Beatty, 571 So. 2d 1039 (Ala.1990). Reviewing the evidence before this Court in a light most favorable to the Evanses, this Court holds that the trial court correctly entered the summary judgment in favor of Sunshine-Jr. Stores.
AFFIRMED.
MADDOX, SHORES, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
[1] Earl Simpson, Jr., was named as a defendant also. The summary judgment did not relate to him, however, and he remains a party to the action.
[2] On September 27, 1982, the Alabama ABC Board promulgated Regulation 20-X-6-.02, which prohibits the sale of alcoholic beverages by an on-premises licensee to any person visibly intoxicated. See Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala.1984).
[3] John M. Harbert III, who was chairman of the ABC Board at the time Regulation 20-X-6-.02 was promulgated, stated in his affidavit (which was submitted by Sunshine-Jr. Stores):
"The [ABC] Board made a conscious decision, in the exercise of its statutorily granted authority, not to include off premises licensees in the regulation prohibiting sales to persons acting in such a manner as to appear to be intoxicated, and the exclusion of such licensees was intentional and was not, by any means, an oversight." | August 30, 1991 |
233becc1-d137-4818-bba3-f2399bd0890a | Casey v. Travelers Ins. Co. | 585 So. 2d 1361 | 1900821 | Alabama | Alabama Supreme Court | 585 So. 2d 1361 (1991)
J.W. CASEY
v.
The TRAVELERS INSURANCE COMPANY.
1900821.
Supreme Court of Alabama.
August 23, 1991.
*1362 John W. Kelly III and William T. Faile, Selma, for appellant.
Dennis R. Bailey of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.
SHORES, Justice.
This is an appeal from a summary judgment in favor of The Travelers Insurance Company ("The Travelers") as to Count I of J.W. Casey's complaint alleging breach of contract. The judgment was made final pursuant to rule 54(b), A.R.Civ.P. Count I[1] of Casey's complaint alleged that the written loan agreements between the parties had been modified by an oral agreement of September 28, 1983, and ratified by the parties' course of dealing. Casey filed suit on June 26, 1986, against The Travelers. In his complaint, he alleged that The Travelers' agent had orally promised to release the real property mortgaged to the company upon certain conditions, that the company had breached this contract by denying his requests for partial releases in 1982 and 1985, and that this had caused him to have to declare bankruptcy.
The Travelers filed a motion for summary judgment as to Count I, contending that that count was barred as a matter of law by the Statute of Frauds and the statute of limitations. The trial court entered a summary judgment for The Travelers on that count. Casey appeals. We affirm.
The facts show that between 1974 and 1982 Casey entered into seven loan agreements with The Travelers in order to finance his purchases of timber land. As security for the loans, Casey executed mortgages on timber property located in Butler, Crenshaw, Lowndes, Montgomery, Elmore, Coosa, and Macon Counties, and on his farm and homestead. The amounts borrowed by Casey ranged from $125,000 to $2.3 million.
After Casey mortgaged his property, the value of the land declined. In 1982, Casey requested a partial release of 40 acres of land in Butler County. Casey offered to pay The Travelers $500 per acre of land released. Casey alleges that in a telephone conversation with Dale Morrison, agent of The Travelers, Morrison agreed to release the land. However, in a letter to Casey dated November 27, 1984, Morrison stated:
The second denial of a requested partial release pertained to land located in Crenshaw County that Casey had purchased in 1980. Morrison had retired from The Travelers at the time this denial took place. Casey offered The Travelers $700 per acre in exchange for a release of 100 acres of property covered by the 1980 agreement, and the company denied his request.
The issue before the Court is whether the trial judge erred in entering the summary judgment for The Travelers. Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, the trial court must determine: 1) that there is no genuine issue of material fact, and 2) that the moving party is entitled to a judgment as a matter of law. The standard for making that determination, as applied to the defense of the Statute of Frauds, is as follows:
"`[E]ven though [the] plaintiff may produce [evidence of] a genuine issue of *1363 material fact [on matters such as the terms or existence of a contract], if the other side makes out a prima facie case under a special plea of the affirmative defenses of the Statute of Frauds, or the statute of limitations, it is incumbent upon the opposite party to come forward with at least a scintilla of proof that these defenses do not apply to him. Otherwise, summary judgment is appropriate. Thompson v. Wilson, 474 So. 2d 657, 660 (Ala.1985).'"
Durham v. Harbin, 530 So. 2d 208, 210 (Ala.1988). Therefore, our task is to determine whether, under the applicable law, a scintilla of evidence supports Casey's position.[2]
We first consider whether the trial court erred in entering The Travelers' summary judgment on the grounds that any oral agreement of the parties as to the release of the real property would be void under the Statute of Frauds because it was not "subscribed by the party to be charged." Alabama Code 1975, § 8-9-2.
The Statute of Frauds is codified at § 8-9-2, Code 1975, and provides in pertinent part as follows:
"Certain agreements void unless in writing.
"....
The Statute of Frauds prevents enforcement of an oral agreement concerning the sale of land, even though both parties may acknowledge the existence of the agreement. Smith v. Smith, 466 So. 2d 922, 924 (Ala.1985).
The issue in this case is the release of land, not the sale thereof. However, it is clear that an agreement to release lands from the effect of a mortgage is an agreement for the transfer of real property and thus falls within the Statute of Frauds. This Court has made it clear that an oral contract to give a mortgage to secure a debt would be void. Pattillo v. Tucker, 216 Ala. 572, 113 So. 1 (1927). We have also held that after the execution of a mortgage, the mortgage cannot be extended by parol agreement to secure debts or obligations other than those that were secured in the original writing. Weatherwax v. Heflin, 244 Ala. 210, 12 So. 2d 554 (1943). The converse would also be true. An oral agreement to release those lands subject to a written mortgage would have to be in writing. McCoy v. Wynn, 215 Ala. 172, 110 So. 129 (1926).
According to Osborne, Mortgages, § 68, p. 103 (1951), an agreement to relinquish real property secured by a mortgage obligation is within the Statute of Frauds. The Supreme Judicial Court of Massachusetts has held that oral agreements for the partial release of real estate mortgages are not enforceable because of the Statute of Frauds:
Duff v. United States Trust Co., 327 Mass. 17, 97 N.E.2d 189 (1951). On the authority of the cases cited above and the Statute of Frauds, we hold that any oral agreements of the parties for the partial release of mortgages are void under § 8-9-2.
Casey next argues that the Statute of Frauds should not prevent the enforcement of the alleged oral agreement, because, he says, there was a "history of *1364 partial performance of the oral contract whereby the defendant entered into a series of partial releases of mortgaged property in accordance with the terms of the oral contract." In Darby v. Johnson, 477 So. 2d 322 (Ala.1985), this Court described the part performance exception:
Id. at 326-27.
The record in this case reflects that while partial releases had been executed with regard to several of Casey's loan transactions, these were within the terms of the loan agreements between the parties that gave the discretion to The Travelers to determine when releases should be given. The mortgage agreements of the parties contained the following provisions concerning partial or whole releases:
"....
There was no partial performance with regard to the release requests that form the subject of this litigation. Furthermore, the evidence reflects that Casey did not fall within the requirements of the partial performance exception that he "pay some or all of the purchase price and be put in possession of the land by the seller." Darby v. Johnson, supra.
Finally, Casey contends that the The Travelers is estopped from raising the Statute of Frauds because, he says, the company fraudulently induced him to borrow money from the company upon the oral representations of Dale Morrison. This Court has said that "the fraud required to make this showing must be `inherent fraudthat is, an intention not to perform operating from the inception of the transaction,' Darby, at 327, and a mere refusal to perform a promised act is insufficient evidence of such inherent fraud to allow equity's intervention, see Darby at 326." Durham v. Harbin, 530 So. 2d 208, 212 (Ala.1988). We have carefully *1365 searched the record and find that there was no evidence of an intention not to perform operating from the inception of the transactions.
For the reasons stated above, The Travelers' summary judgment on the breach of contract claim is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and STEAGALL, JJ., concur.
[1] A motion for summary judgment as to Count II had been previously dismissed. Summary judgment was granted as to Count III on April 15, 1987, and affirmed on appeal to this Court in Casey v. Travelers Insurance Co., 531 So. 2d 846 (Ala. 1988). A motion for summary judgment was also filed as to Counts IV and V, but it was denied by the trial court.
[2] This case was pending on June 11, 1987, and thus is governed by the "scintilla rule" rather than the "substantial evidence rule." See § 12-21-12, Alabama Code 1975. | August 23, 1991 |
fff83af4-f730-4fdc-acfb-331e72fc44e3 | Butler v. Aetna Finance Co. | 587 So. 2d 308 | 1900408 | Alabama | Alabama Supreme Court | 587 So. 2d 308 (1991)
Allan BUTLER and Joan Butler
v.
AETNA FINANCE COMPANY, d/b/a ITT Financial Services.
1900408.
Supreme Court of Alabama.
August 30, 1991.
*309 Randall W. Nichols of Burns & Mackey and Stephen C. Olen, George W. Finkbohner III and Royce Ray III of Finkbohner, Lawler & Olen, Mobile, for appellants.
Lawrence B. Voit, Robert E. Clute, Jr. and Barry L. Thompson of Silver & Voit, Mobile, for appellee.
INGRAM, Justice.
Allan and Joan Butler, husband and wife, appeal from a summary judgment for Aetna Financial Company, doing business as ITT Financial Services ("ITT"), on the Butlers' claims of fraudulent misrepresentation, deceit, fraudulent concealment, wantonness, and outrageous conduct. The Butlers' claims stem from ITT's alleged conduct regarding a consumer credit contract that the Butlers entered when they purchased a television from Rex Radio and Television, Inc. ("Rex").
The record reveals that on October 24, 1988, the Butlers purchased a television from Rex by way of a consumer credit contract. Rex subsequently assigned the contract to ITT. At the time of the purchase, the Butlers completed a credit application. *310 After the application was approved, Allan Butler executed[1] the contract. The contract provided that the balance owed on the television was to be paid in full within 90 days and that no interest would be charged. The contract indicated that, at the time of purchase, the balance owed on the television was $285.39 and that payment in full of the unpaid balance was required on or before January 24, 1989. The face of the contract also indicated that the contract did not extend financing beyond the due date and that if the debt was not paid in full by the due date, the buyer would be in default.
After the contract was assigned to ITT, the Butlers received from ITT a written confirmation of the transaction. ITT also telephoned to verify that the Butlers had the television. The written confirmation reflected, among other things, the final due date of January 24, 1989, for the $285.39 balance. After receiving the confirmation notice and the telephone call from ITT shortly after the purchase, the Butlers' next contact with ITT occurred when an ITT employee contacted the Butlers on January 30, 1989, which was six days after the contract had gone into default for nonpayment. On that date, an ITT employee telephoned the Butlers and informed them that they were in default on the contract and that the matter needed to be resolved that day. ITT informed the Butlers that if they wished to finance the balance owed on the contract with ITT, the annual interest rate would be 27 percent.
The Butlers testified that salespersons at Rex had informed them when they purchased the television that if they paid the balance owed on the contract within 90 days, no interest charges would be incurred. The Butlers further testified that they were informed by Rex personnel that if they did not pay off the account within 90 days, then ITT would automatically set up payments on the account and send them a payment book without their having to complete any additional forms.
When questioned about what Rex employees had said about the interest rate that ITT would charge if the account was set up on payments at the end of 90 days, Joan Butler testified in her deposition that Allan asked a salesperson, "[W]ell, about what interest rate do they [ITT] charge?" She testified that the salesperson replied, "I'm not sure, but it is somewhere between 10 and 15 percent." When questioned again during the same deposition about exactly what statements the Rex salesperson had made, Joan testified: "I know he said it is between 10 and 15 percent. He might have said `I think' or `I'm not sure.' I don't remember his exact wording."
It is undisputed that the Butlers failed to pay the balance owed on the contract by the due date and that they never contacted ITT or another lender about refinancing the account prior to the due date. After ITT contacted the Butlers about the default, Allan checked with at least one other lender about making a loan to pay off the ITT account. He found the other lender's interest rate of 23 or 24 percent to be comparable to the rate quoted to him by ITT. The Butlers refinanced the debt with ITT on January 31, 1989, and then sued Rex and ITT in April 1989.
The primary issue raised in this appeal is whether the Butlers presented substantial evidence as to each of their causes of action so as to make summary judgment for ITT improper. However, before addressing the propriety of the summary judgment for ITT, we must examine the issue whether the salespersons at Rex were acting as agents of ITT when they allegedly related to the Butlers information as to interest rates offered by ITT in the event of the refinancing of the contract.
First, it is axiomatic that for an agency relationship to exist, there must be a right of control by the principal over the agent. National Sec. Fire & Cas. Co. v. Bowen, 447 So. 2d 133 (Ala.1983). Furthermore, agency is to be determined by the *311 facts and not by how the parties characterize the relationship. Id.
Here, the Butlers argue that Rex salespersons were acting as agents of ITT when they made the statements that the Butlers say they made concerning the interest rate that would be applicable if the balance owed on the contract was not paid in 90 days and when, according to the Butlers, they represented to them that if the account was not paid off in 90 days the balance would automatically be set up on monthly payments. However, under the evidence that was before the trial court when it entered the summary judgment for ITT, we find nothing to support a finding that an agency relationship existed between Rex and ITT.
In Kimbrel v. Mercedes-Benz Credit Corp., 476 So. 2d 94 (Ala.1985), this Court addressed the issue whether an agency relationship existed under facts quite similar to those of the present case. There, the question was whether an agency relationship existed between a finance company and the seller of a tractor so as to make the finance company liable for the actions of the seller. While the finance company in Kimbrel had a right of approval of the buyer's credit and its name appeared on the contract of sale and it dictated the terms of the buyer's payments, the Court concluded that none of those actions was inconsistent with the extending of credit by an institution. The Court further held that the actions would not legally amount to a ratification of any statements made during negotiations by the employees of the seller of the tractor and that there was nothing in the record that would support a finding of agency.
Likewise, in the present case, we find that the Butlers presented no evidence that would support a finding of an agency relationship between Rex and ITT. The Butlers testified that the Rex salespersons handled the credit transaction, that the salespersons were knowledgeable about interest rates and about the circumstances surrounding a failure to pay off the balance within 90 days, and that the salespersons told them that Rex used ITT for financing all the time. Also, the Butlers presented the deposition of an ITT representative, Rowland Burrell, who confirmed that the financing documents were provided to Rex by ITT. However, just as in Kimbrel, we find none of these actions to be inconsistent with the extending of credit by an institution. Furthermore, there is no other evidence in the record that would support a finding of agency. Therefore, we conclude, based on the evidence before the court on the summary judgment motion, that ITT could not be liable to the Butlers for misrepresentations made to them by Rex personnel.
Addressing now the issue whether summary judgment for ITT was proper on the Butlers' claims of fraudulent misrepresentation, deceit, fraudulent concealment, wantonness, and outrage, we initially note that a motion for summary judgment may be granted only when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P; Southern Guar. Ins. Co. v. First Alabama Bank, 540 So. 2d 732 (Ala.1989). The burden is, therefore, upon the moving party to clearly show that there is no material fact in dispute, and all reasonable inferences from the evidence are to be viewed most favorably to the nonmovant. Southern Guar. Ins. Co., supra.
Rule 56 is read in conjunction with the "substantial evidence rule," § 12-21-12, Ala.Code 1975, for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989). In order to defeat a properly supported motion for summary judgment, the plaintiff must present substantial evidence, i.e., "evidence of such weight and quality that fairminded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co., 547 So. 2d 870, 871 (Ala.1989).
After reviewing the evidence in the record in light of our conclusion that the salespersons at Rex were not agents of ITT, we find that the Butlers failed to *312 present sufficient evidence to preclude a summary judgment for ITT.
The Butlers addressed their fraudulent misrepresentation, deceit, and fraudulent concealment claims in tandem in their brief, arguing that they had presented substantial evidence as to each claim. However, the evidence presented by the Butlers as to these three causes of action consisted primarily of their testimony as to the conduct of Rex employees and what those employees told the Butlers about financing the purchase of the television. Excluding the evidence of the conduct of Rex employees, we find that the Butlers failed to present sufficient evidence of fraudulent conduct by ITT to defeat ITT's summary judgment motion.
We also find that the Butlers failed to present substantial evidence of outrageous conduct by ITT. In order to establish the tort of outrageous conduct, the law requires substantial evidence of conduct creating emotional distress so extreme that no reasonable person could be expected to endure it. American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala. 1980).
In Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38 (Ala.1990), this Court, while not condoning the secured creditor's threatening, abusive, and insulting language in attempting collections, and its wrongful threats of repossession and sale of the collateral, and its filing of an adverse credit report, held that such tactics do not rise to the level of extreme conduct required to recover damages for the tort of outrage. Here, without cataloging every interaction between ITT and the Butlers, we find that, after viewing the evidence in the record in the light most favorable to the Butlers, as we are required to do, we must conclude that the Butlers failed to present substantial evidence of conduct by ITT that would support a claim based on the tort of outrage.
Finally, we conclude that the Butlers failed to present substantial evidence of wantonness by ITT. "Wantonness" is defined as "[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others." § 6-11-20(b)(3). While the Butlers argue in their brief that the jury should be allowed to consider whether the conduct of ITT, taken as a whole, demonstrates a reckless or conscious disregard for their rights as consumers, they did not present adequate evidence of wantonness to survive a summary judgment motion. In light of the evidence that was presented to the trial court by the Butlers, we find no error by the trial court in granting ITT's motion for summary judgment as to the Butlers' wantonness claim.
Considering the foregoing, we conclude that the summary judgment for ITT is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS and STEAGALL, JJ., concur.
[1] Although only Allan executed the contract, the parties do not address the issue of Joan's standing as a plaintiff in this action. | August 30, 1991 |
e4f1b513-6f81-495f-bedd-1b2c6f3c9dea | Ex Parte Comer | 591 So. 2d 13 | 1900230 | Alabama | Alabama Supreme Court | 591 So. 2d 13 (1991)
Ex parte Shirley COMER.
(Re Shirley Comer v. State.)
1900230.
Supreme Court of Alabama.
August 16, 1991.
Arthur Parker, Birmingham, for petitioner.
James H. Evans, Atty. Gen., and Mary Elizabeth Culberson, Asst. Atty. Gen., for respondent.
HORNSBY, Chief Justice.
This Court's opinion of June 14, 1991, is withdrawn and the following is substituted therefor: We granted the writ of certiorari in this case to review the judgment of the Court of Criminal Appeals in Comer v. State, 572 So. 2d 886 (Ala.Crim.App.1990). In an unpublished memorandum opinion, the Court of Criminal Appeals stated that *14 the issue "concerning use of [Comer's] prior statement to impeach her is without merit." For reasons set out in this opinion, we must remand for further proceedings.
The petitioner, Shirley Comer, was convicted of arson and was sentenced to nine years in prison. We granted her petition for the writ of certiorari in order to review whether the statements used to impeach Comer were admissible. Comer argued in her petition that the prosecutor impeached her on cross-examination based on statements that she had given to a police officer. Comer argues that the use of this statement is in conflict with this Court's opinion in Walker v. State, 369 So. 2d 825 (Ala.1979), because the statement was admitted without any evidence that it was voluntarily given.
Comer owned and operated a retail clothing business. On May 4, 1987, a fire occurred at her business and extensively damaged the building. A fire department inspector determined that the fire had been intentionally set, and he contacted the police department. A police investigator obtained a search warrant and inspected the building where the fire had occurred, and he also suspected arson. On May 5, 1987, the investigating police officer interrogated Comer at the office of the City of Cullman fire department regarding the fire. The interrogation was made and tape recorded at that office and was later transcribed. The transcript of that interrogation contains the following colloquy:
The police officer continued to question Comer, and he conducted a lengthy interrogation. At trial, defense counsel objected to the admission of the statements made at the May 5, 1987, interrogation on the grounds that Comer had not waived her right against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution. After an in camera inspection of the transcript, the trial court ruled that Comer had not clearly and fully waived her right against self-incrimination when she made the statements to the police officer. The trial court held that the statements were inadmissible and sealed the transcript.
At trial, the State presented evidence that the fire was the result of arson and that it had been intentionally set on the inside of the building. The door to the building was locked when city firefighters arrived. The testimony at issue involved the whereabouts of a key to Comer's store.
When Comer made her statement to the police investigator on May 5, 1987, she stated that there were two keys to the store. Comer said that she carried one key with her and that the second key was used by an employee, but was usually kept in a plastic container located on Comer's desk at the store. At trial, Comer testified that she had brought the second key home with her and that she had left it in a brass bowl on a bookshelf.
The prosecution used Comer's May 5, 1987, statement to impeach her testimony regarding the location of the second key. Defense counsel objected to the use of the prior statement on the grounds that the prosecution had not laid the proper predicate. The trial court overruled the objection:
The State argues that it established the proper predicate for impeaching Comer with her prior inconsistent statement, citing C. Gamble, McElroy's Alabama Evidence § 201.10 (3d ed. 1977). Comer argues that in order for the prosecutor in this case to lay the proper predicate, under our decision in Walker, supra, he was required to affirmatively show that Comer voluntarily made the inculpatory statement.
In Walker, 369 So. 2d at 826, this Court held that in order for the State to establish the proper predicate for impeaching a defendant with a prior inconsistent statement made in a custodial setting, the State must affirmatively show that the inculpatory statement was voluntarily made. Walker, 369 So. 2d at 825. Our decision in Walker was based on our decision in Campbell v. State, 341 So. 2d 742 (Ala.1976), where this Court said:
341 So. 2d at 744. (Emphasis original.)
Our decisions in Walker and Campbell were based on United States Supreme Court decisions in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975), which apply only to statements made while the declarant is in custody. See, Campbell, 341 So. 2d at 743. Miranda, supra, defined "custody" as "questioning initiated by law enforcement officers after a person has been ... deprived of his freedom of action in any significant way." The record in this case is insufficient for this Court to determine whether Comer was in custody, and, thus, whether Walker applied, at the time the police officer interrogated her. The record merely shows that the investigating police officer questioned Comer at the fire department office on May 5, 1987, the day after the fire occurred. Comer was not indicted until over three months later, on August 26, 1987.
The mere fact that a police officer questioned Comer at the fire department office is not enough to determine whether the questioning was a custodial interrogation as defined under Miranda. Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977); California v. Beheler, 463 U.S. 1121, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983); Hooks v. State, 534 So. 2d 329 (Ala.Crim.App.1987) (defendant is not in custody where he voluntarily goes to police station and voluntarily answers questions). Therefore, we cannot determine whether Walker applies in this case.
However, custody is not crucial to our holding in this case. We hold that once a police officer informs a person of his or *16 her rights under Miranda, the police must honor that person's exercise of those rights even if the individual is not in custody.[2] Although the Miranda warnings may not have been required if the May 5, 1987, interrogation was noncustodial, once the police officer advised Comer of her rights he was bound to honor her exercise of those rights. Tukes v. Dugger, 911 F.2d 508 (11th Cir.1990).
We quote with approval the reasoning behind this rule as explained by the federal court in Tukes:
911 F.2d at 516 n. 11.
Because we conclude that the inculpatory statement was obtained in violation of Comer's "right to remain silent," as promised her by the investigating officer, it was inadmissible in the State's case-in-chief.
The record in this case shows that the police officer interrogated Comer at the fire department office about the fire at her business. Although arguably this may have been a noncustodial setting, the police officer read Comer her rights, as enunciated in Miranda. After being advised of her rights, Comer clearly attempted to exercise her Fifth Amendment right against self-incrimination by stating that she did not want to answer any questions. At that moment, the interrogation should have ceased. Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627-28; Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313 (1975); Martin v. Wainwright, 770 F.2d 918, 923 (11th Cir.1985); Ex parte Johnson, 522 So. 2d 234, 236 (Ala.1988); and Bush v. State, 523 So. 2d 538, 553 (Ala. Crim.App.1988). The police officer, nonetheless, continued to question Comer, and she eventually made several statements concerning the fire at her business, which the prosecutor later used for impeachment purposes at trial.
In Mosley, supra, the Supreme Court elaborated on the scope of a suspect's rights under the Miranda rule to stop police questioning through the exercise of the right to remain silent:
In this case, the record shows that after Comer, during her May 5, 1987 interrogation, asserted her right to "cut off questioning" that right was not "scrupulously honored." Comer's statement to the police officer that she did not care to answer any of the officer's questions was an unequivocal invocation of her right to remain silent. Nevertheless, the officer continued to question her. Therefore, we hold that the police officer's continued questioning of Comer violated the dictates of Miranda and Mosley and that the inculpatory statements *17 made at the May 5, 1987, interrogation were obtained in violation of Comer's Fifth Amendment right against self-incrimination.
Because we conclude that the inculpatory statement was obtained in violation of Comer's "right to remain silent," as promised her by the investigating officer, it was inadmissible in the prosecution's case-in-chief. We now must consider whether Comer's prior statement was admissible for impeachment purposes.
In Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), the United States Supreme Court held that, although a criminal defendant's prior statement may have been obtained in violation of his Miranda rights, it may be used for impeachment purposes to attack the credibility of the defendant's trial testimony if it was voluntarily made and its trustworthiness satisfies legal standards. See also, Campbell, supra.
In this case the record is insufficient for this Court to determine whether Comer's prior statement was made voluntarily or was the product of coercive influences. If Comer's prior statement was made voluntarily, then it was admissible to impeach her trial testimony and her conviction should stand. If, on the other hand, Comer's prior statement was the result of coercive influences, then it was inadmissible even for impeachment purposes and Comer should be given a new trial. Because the record does not indicate the circumstances surrounding the prior statement and the trial court made no determination as to whether the prior statement was made voluntarily, we remand this case for a hearing on this issue and proceedings consistent with this opinion.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; REMANDED; APPLICATION OVERRULED.
MADDOX, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] The investigator's office at the City of Cullman police department and the fire department office, where the interrogation took place, are both located in the Cullman city hall.
[2] We note that the mere administration of the Miranda warnings does not convert a noncustodial situation into "custody." See e.g., Davis v. Allsbrooks, 778 F.2d 168, 172 (4th Cir.1985); United States v. Akin, 435 F.2d 1011, 1013 (5th Cir.1970); United States v. Gordon, 638 F. Supp. 1120, 1133 (W.D.La.1986). | August 16, 1991 |
50b96599-a77f-4ce8-8ca9-bad8df6e3f81 | Raybon v. Allstate Ins. Co. | 589 So. 2d 710 | 1901257 | Alabama | Alabama Supreme Court | 589 So. 2d 710 (1991)
J.G. RAYBON
v.
ALLSTATE INSURANCE COMPANY.
1901257.
Supreme Court of Alabama.
October 4, 1991.
*711 Bryan G. Duhe, P.C., Mobile, for appellant.
Mark E. Spear and James Flint Liddon of Richardson, Daniell, Spear & Upton, P.C., Mobile, for appellee.
SHORES, Justice.
This case arises out of a claim involving an insurance policy. The plaintiff, J.G. Raybon, attempted to file a claim against the policy with Allstate Insurance Company, and was told that no policy was in effect at the time of the incident because his wife had canceled it approximately three months earlier. The question of whether the policy was actually canceled is still before the trial court.
The plaintiff's complaint stated three causes of action: (1) breach of contract; (2) bad faith on behalf of Allstate; and (3) fraud. The trial judge entered a summary judgment with regard to the bad faith claim, on the authority of Old Southern Life Insurance Co. v. Spann, 472 So. 2d 987 (Ala.1985), and, with regard to the fraud claim, on the authority of Watkins v. Life Insurance Co. of Georgia, 456 So. 2d 259 (Ala.1984). The judgment was made final pursuant to Rule 54(b), A.R.Civ.P. In Watkins, we stated:
456 So. 2d at 263.
We agree with the conclusions reached by the trial court. Accordingly, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur. | October 4, 1991 |
27971c62-5f3b-4289-8fc9-39d09baa2df3 | Ex Parte Samuels | 584 So. 2d 963 | 1901455 | Alabama | Alabama Supreme Court | 584 So. 2d 963 (1991)
Ex parte Vada SAMUELS.
(Re Vada Samuels v. State).
1901455.
Supreme Court of Alabama.
August 23, 1991.
Kathlen M. Warren, Gadsden, for Vada Samuels.
James H. Evans, Atty. Gen., for the State.
Prior report: Ala.Cr.App., 584 So. 2d 958.
INGRAM, Justice.
The petition for writ of certiorari is denied.
In denying the petition for writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973).
WRIT DENIED.
HORNSBY, C.J., and SHORES, ADAMS and STEAGALL, JJ., concur. | August 23, 1991 |
939ddde7-ad67-4362-bd89-fa1b1cb49802 | Ex Parte Madden | 602 So. 2d 1192 | 1900313 | Alabama | Alabama Supreme Court | 602 So. 2d 1192 (1991)
Ex parte Bobby Wayne MADDEN.
(Re Bobby Wayne Madden
v.
State).
1900313.
Supreme Court of Alabama.
August 23, 1991.
Mac Downs, Gadsden, for petitioner.
James H. Evans, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for respondent.
KENNEDY, Justice.
Bobby Wayne Madden pleaded guilty to, and was convicted of, one count of burglary, one count of rape, and two counts of sodomy, all in the first degree. At the sentencing hearing, the State presented evidence of three prior felony convictions in Georgia. Madden was sentenced under the Habitual Felony Offender Act, Ala.Code 1975, § 13A-5-9, to life imprisonment without the possibility of parole.
Madden appealed from his sentence to the Court of Criminal Appeals. He argued that he had been improperly sentenced under the Habitual Felony Offender Act. Specifically, he argued that the trial court had erroneously enhanced his sentence for having three prior felony convictions where two of the convictions were for sodomy, one anal and the other oral, and arose from the same transaction; he argues that those two prior convictions should have been considered as one felony conviction for purposes of enhancement in Alabama. The Court of Criminal Appeals, in an unpublished memorandum opinion, 575 So. 2d 1256 (Ala.Crim.App.1990), held that the issue was not properly before that court because, the court wrote, Madden should have attacked the validity of the prior convictions by petitioning for post-conviction relief in Georgia. See Johnson v. State, 541 So. 2d 1112, 1115 (Ala.Crim.App. 1989).
Madden argues here that the Court of Criminal Appeals' decision conflicts with this Court's decision in Ex parte Lockett, 548 So. 2d 1045 (Ala.1989). In that case, the defendant was convicted of manslaughter and was sentenced to 99 years' imprisonment. The Court of Criminal Appeals affirmed the conviction and the sentence, without opinion. Subsequently, the defendant instituted a proceeding for post-conviction relief in the court of conviction. The trial court denied the petition, and the Court of Criminal Appeals affirmed, again without opinion. In his petition to this Court, the defendant in that case averred that, at the sentencing phase of his trial, the State had failed to give him notice of its intention to proceed under the Habitual Felony Offender Act. This Court cited Rule 20.2(a)(5), A.R.Crim.P.Temp. (now Rule 32.2(a)(5), A.R.Crim.P), which states:
This Court held in Lockett that a claim of improper enhancement of a defendant's sentence under the Habitual Felony Offender Act is properly presented in a direct appeal to that court. We further held that, pursuant to Rule 20.2(a)(5), the defendant's failure to raise that issue on appeal could not be remedied in a Rule 20, A.R.Crim. P.Temp., proceeding.
Madden argues that the Court of Criminal Appeals erroneously based its affirmance of his sentence on Johnson v. State, supra. In Johnson, a defendant complained of the State's failure to disclose to him, after giving notice of its intention to prosecute under the Habitual Felony Offender Act, that his prior felony convictions had occurred when he was a juvenile. The Court of Criminal Appeals, rejecting the defendant's argument, held that the proper forum for attacking the validity of prior convictions used for enhancing punishment in Habitual Felony Offender Act proceedings would be in the court of conviction by post-conviction petition.
In this case, the Court of Criminal Appeals based its decision that it could not review on direct appeal the validity of prior felony convictions used for purposes of enhancement on its decision in Johnson. While Johnson contains an accurate statement of the law, it is not applicable to the facts of this case. Madden does not argue that his prior felony convictions in Georgia are invalid, but that, for purposes of enhancement under the Habitual Felony Offender Act, the two prior sodomy convictions should be considered as one felony conviction under Alabama law. Thus, we hold, based on Ex parte Lockett, that the Court of Criminal Appeals is not precluded from reviewing on direct appeal the question whether the two prior sodomy convictions, which arose from a single transaction, should be considered as one felony conviction for purposes of enhancement of Madden's sentence under the Habitual Felony Offender Act.
Accordingly, the judgment of the Court of Criminal Appeals is reversed and the cause is remanded to that court for a review consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON and INGRAM, JJ., concur. | August 23, 1991 |
53406478-b06e-45f9-a98a-b929890ef8be | Plitt v. Griggs | 585 So. 2d 1317 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 1317 (1991)
Hilda C. PLITT, as administratrix of the Estate of Patrick Plitt, deceased
v.
Dr. Thomas M. GRIGGS.
89-1017.
Supreme Court of Alabama.
August 16, 1991.
*1318 Tom Dutton of Pittman, Hooks, Marsh, Dutton & Hollis, Birmingham, for appellant.
John S. Key of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellee.
Wendell R. Morgan, General Counsel, for amicus curiae Medical Ass'n of the State of Ala.
KENNEDY, Justice.
Hilda C. Plitt, as administratrix of the estate of Patrick Plitt, deceased, filed an action in the Madison Circuit Court against Dr. Thomas M. Griggs, alleging that he had negligently caused the death of Patrick Plitt.[1] At the close of the plaintiff's evidence, the trial court granted the defendant's motion for a directed verdict. Ms. Plitt appeals from the resulting judgment.
Patrick Plitt had difficulty sleeping, and he consulted a physician, Dr. Paul LeGrand. Dr. LeGrand diagnosed Mr. Plitt as having a sleep disorder known as obstructive sleep apnea, which is a condition whereby a person's air passage is obstructed while sleeping, causing him to awaken numerous times during the night. As a consequence, Plitt would experience exhaustion during waking hours, often falling asleep doing normal daily activities. Dr. LeGrand discussed with Mr. Plitt the treatment alternatives. Two options were nonsurgical. The third alternative was a surgical procedure known as uvulopalatopharyngoplasty ("UP3"), by which a palatal resection is done, that is, the part of the air passage causing the obstruction is removed. Plitt opted for the UP3 surgery. Dr. LeGrand recommended that Dr. Griggs perform the surgery.
Dr. Griggs performed the surgery, without complications, at approximately 11:30 a.m. Thereafter, Plitt rested in a recovery room for about 90 minutes. To relieve the post-operative pain, Dr. Griggs prescribed 0.3 milligram dosages of Buprenex. According to Dr. Griggs, a dosage of Buprenex would relieve pain for four to six hours. Doses were administered at 2:00 p.m. and 9:00 p.m.
Dr. Griggs instructed the hospital staff to observe Plitt hourly for the first four *1319 hours following the surgery and then once every four hours thereafter. Dr. Griggs testified that in cases where the surgery was difficult or the patient had excessive bleeding or swelling he would recommend that the patient be placed in the intensive care unit and monitored mechanically. He stated that Plitt had no problems during surgery or in the recovery room. He testified that he saw Plitt at approximately 3:30 p.m. Hospital records indicate that hospital personnel checked on Plitt in his hospital room 16 times between 1:30 p.m. and 11:45 p.m. The records show that Plitt's vital signs were measured and recorded 5 times during this period. On the fifth visit, Plitt was found to be nonresponsive. Attempts to resuscitate him failed.
After having filed this action against Dr. Griggs, Hilda Plitt designated Dr. Herbert J. Dietrich as an expert medical witness. In her brief, Ms. Plitt states that Dr. Dietrich answered questions concerning his practice of medicine, his sources of income, his prior experiences as an expert witness in medical malpractice cases, his yearly earned income, his hourly rate for giving expert medical testimony, and the extent of his activities as an expert medical witness during 1988, the year preceding the trial. Dr. Griggs, in his brief, does not dispute that Dr. Dietrich answered such questions. Accordingly, we will proceed as if Dr. Dietrich had provided the above information.
While deposing Dr. Dietrich, counsel for Dr. Griggs asked Dr. Dietrich to give the name of the accountant who prepared his 1988 tax return. Dr. Dietrich refused to answer the question. Dr. Griggs filed a motion to compel Dr. Dietrich to answer the question. In that motion, Dr. Griggs argued that Dr. Dietrich's accountant could provide information regarding the amount of income generated by Dr. Dietrich from testifying on behalf of plaintiffs in medical malpractice actions.
The trial court granted the motion by the following order:
Dr. Dietrich refused to answer the question. He did not testify at trial. In an affidavit in opposition to Dr. Griggs's motion for summary judgment, Dr. Dietrich stated that he believed Dr. Griggs's operative treatment was substandard in that he allowed the use of what Dr. Dietrich considered to be an inappropriate anesthesia. Dr. Dietrich also stated that Dr. Griggs's post-operative care of Patrick Plitt was substandard because, Dr. Dietrich said, he failed to order adequate monitoring of Patrick Plitt during his recovery.
At trial, counsel for Ms. Plitt presented Dr. Derek Spencer Lipman as an expert medical witness. During his examination, Ms. Plitt's counsel asked Dr. Lipman to give his opinion concerning whether Dr. Griggs's treatment of Patrick Plitt fell below the standard of care due medical patients recovering from UP3 surgery. Defense counsel objected to the question on *1320 the grounds that Dr. Lipman was not qualified to answer, under Ala.Code 1975, § 6-5-548, because, unlike Dr. Griggs, he was not certified by the American Board of Otolaryngology. The trial court sustained the objection.
On appeal, Ms. Plitt raises three issues.
Ms. Plitt argues, based on this Court's decision in Ex parte Morris, 530 So. 2d 785 (Ala.1988), that the trial court exceeded the scope of its authority by ordering Dr. Dietrich to provide Dr. Griggs with the name of the accountant who prepared his 1988 tax return. Dr. Dietrich, she argues, had the right to refuse to divulge the identity of his accountant, and, therefore, she should have been allowed to call Dr. Dietrich as a witness. Ms. Plitt notes that Dr. Dietrich provided extensive information at deposition concerning his practice of medicine, his sources of income, and his prior experiences as an expert witness in medical malpractice cases.
Rule 26 governs the scope of discovery. It states in pertinent part:
"....
"....
The Alabama Rules of Civil Procedure permit very broad discovery, and the rules are to be construed broadly and *1321 liberally. Ex parte Dorsey Trailers, Inc., 397 So. 2d 98 (Ala.1981); Campbell v. Regal Typewriter Co., 341 So. 2d 120 (Ala.1976). However, Rule 26(c) recognizes that the right of discovery is not unlimited and gives the court broad power to control the use of the process and to prevent its abuse by any party. The rule does not place an arbitrary limit on discovery, but vests the trial court with discretion in the discovery process. Ex parte Dorsey Trailers, supra; Campbell v. Regal Typewriter Co., supra. Therefore, where the trial court has issued an order compelling discovery, this Court will reverse that order only in those cases where a clear abuse of discretion is shown. See Ex parte Dorsey Trailers, supra, citing Ex parte Alabama Power Co., 280 Ala. 586, 196 So. 2d 702 (1967).
The trial court is bound to exercise its broad discretion in a manner that will implement the policy of full disclosure of relevant information and at the same time afford a party, or others, maximum protection against harmful side effects that would result from unnecessary disclosure. Ex parte Dorsey Trailers, supra; Ex parte Guerdon Industries, Inc., 373 So. 2d 322 (Ala. 1979).
Rule 26 plainly indicates that discovery is not limited to matters competent as evidence at trial. "Relevancy," as used in our discovery rules, means relevant to the subject matter of the action; evidence is relevant if it affords a reasonable possibility that the information sought will lead to other evidence that will be admissible. Ex parte Dorsey Trailers, supra; Drews v. Bank of Wadley, 350 So. 2d 402 (Ala.1977); 8 Wright and Miller, Federal Practice and Procedure § 2008 (1970).
In Ex parte Morris, supra, a medical malpractice case, the plaintiff retained two expert witnesses, both of whom were deposed by defense counsel. Subsequently, the defendants filed a motion to compel the plaintiff's experts to produce their federal and state income taxes for the nine years preceding the request. The plaintiff filed a motion in opposition to the defendants' motion and requested a protective order pursuant to Rule 26(c). The trial court granted the defendants' motion. The plaintiff filed a petition for a writ of mandamus to this Court, asking it to order the trial court to vacate its order compelling her expert witnesses to produce their income tax records.
This Court granted the petition and held:
530 So. 2d at 789.[2]
In determining whether the trial court clearly abused its discretion in ordering *1322 Dr. Dietrich to provide the name of the accountant who prepared his 1988 tax return, we must first determine whether that was relevant information that would invoke the discovery policy of full disclosure. Dr. Griggs stated that he requested disclosure of the name of Dr. Dietrich's accountant to attempt to verify statements by Dr. Dietrich that tend to show bias, that is, to verify Dr. Dietrich's testimony concerning the percentage of income received from testifying in medical malpractice actions. In Ex parte Morris, although we held that the qualified privilege against disclosing personal income tax records outweighed our liberal policy of discovery, we stated that the income tax records sought to be discovered in that case were of value in tending to show the bias of the plaintiff's expert witness. There is no question that Dr. Dietrich's accountant could provide relevant information concerning Dr. Dietrich's income earned from testifying in medical malpractice cases.
Next, we must determine whether requiring Dr. Dietrich to identify his accountant would produce harmful side effects as a result of unnecessary disclosure. See Ex parte Dorsey, supra. Ms. Plitt argues that to allow Dr. Griggs to obtain financial information about Dr. Dietrich from his accountant is to emasculate our decision in Ex parte Morris. Dr. Griggs argues that the trial court did not abuse its discretion in requiring Dr. Dietrich to provide him with the name of his accountant or be precluded from testifying at trial. He contends that, in order to show bias, he could have Dr. Dietrich's accountant verify Dr. Dietrich's testimony concerning the approximate percentage of income received from testifying as an expert witness in medical malpractice cases without divulging the total amount of income earned by the witness from all sources. He also argues that, if the witness's accountant is deposed, Ms. Plitt could seek an order, pursuant to A.R.Civ.P., Rule 26, limiting the information that the accountant could divulge.
We hold that the trial court did not clearly abuse its discretion in ordering the plaintiff's expert witness to identify the name of the accountant who had prepared his 1988 tax return. By holding as we do in this case, we do not overrule our holding in Ex parte Morris that the qualified privilege against disclosure of personal income tax records outweighs the value of those records. Mere identification of his accountant's name alone would not prejudice Dr. Dietrich. On the other hand, Dr. Dietrich could be prejudiced if his accountant were to divulge financial information not necessary to show bias. However, the means by which to prevent such prejudice from occurring is not by refusing to produce the name of the witness's accountant. Rather, the trial court may make any order that justice requires in order to protect the witness from annoyance, embarrassment, or oppression. Rule 26(c). Unlike income tax records, an accountant who prepares income tax records is able to divulge certain information regarding which the trial court decides if there is any prejudicial effect, and an accountant is able to withhold information the probative value of which the trial court decides is outweighed by its prejudicial effect. Given the trial court's broad discretion to protect a party or person by limiting the scope of cross-examination of a witness at deposition or trial, Ms. Plitt or Dr. Dietrich could have sought to deter Dr. Griggs from discovering prejudicial information by filing a motion for a protective order under Rule 26(c). Thus, in ordering Dr. Dietrich to state the name of *1323 the accountant who prepared his 1988 income tax return, the trial court did not clearly abuse its discretion.
Ms. Plitt also argues that the trial court should have allowed Dr. Dietrich to testify at trial despite his refusal to disclose the identity of the accountant who had prepared his 1988 income tax return. The trial court has discretion in choosing discovery sanctions, and its decision will not be disturbed on appeal absent an abuse of discretion. Johnson v. Langley, 495 So. 2d 1061 (Ala. 1986); Deaton, Inc. v. Burroughs, 456 So. 2d 771 (Ala.1984); Tucker v. Tucker, 416 So. 2d 1053 (Ala.Civ.App. 1982). See Rule 37, A.R.Civ.P. We find no abuse of discretion by the trial court in this case.
As we have stated, at trial Ms. Plitt presented Dr. Derek Lipman as an expert medical witness. During examination, Ms. Plitt's counsel asked Dr. Lipman to state his opinion concerning whether Dr. Griggs's care of Patrick Plitt fell below the applicable standard of care. Counsel for Dr. Griggs objected on the ground that Dr. Lipman was not qualified to answer the question as an expert medical witness, because of § 6-5-548(c). For the sake of clarity, we quote the following provisions of § 6-5-548:
"....
(Emphasis added.)
Dr. Griggs is a licensed physician and, additionally, he is certified by the American Board of Otolaryngology. Dr. Lipman received his education and medical certification in his native country, South Africa. Thereafter, he emigrated to the United States, and, since 1977, he has been licensed to practice medicine in the state of Oregon. Although he is certified in otolaryngology by the South African Medical Council, he is not certified by the American Board of Otolaryngology, as is Dr. Griggs. Section 6-5-548(e) provides that a health care provider may testify as an expert medical witness in an action for damages against another health care provider based on a breach of the standard of care only if he is a "similarly situated health care provider." In this case, Dr. Lipman is not a "similarly situated health care provider," because he is not certified by "an appropriate American board in the same specialty" (see § 6-5-548(c)), in this case, the American Board of Otolaryngology.
*1324 Ms. Plitt argues that § 6-5-548 deprives her of equal protection under the United States Constitution and the Alabama Constitution. Specifically, she argues that, because the provisions of § 6-5-548 apply only to medical malpractice actions, the statute imposes a restriction on medical malpractice plaintiffs not imposed on other types of plaintiffs.
In Gideon v. Alabama State Ethics Commission, 379 So. 2d 570 (Ala.1980), this Court enunciated the procedure for determining whether a statute draws a classification that violates the Equal Protection Clause of the Fourteenth Amendment:
379 So. 2d at 573-74.
Because this case involves neither a "suspect class" nor a "fundamental right," the rational basis test is the proper test to apply to the appellant's equal protection challenge. Thus, we must determine (a) whether the classification furthers a proper governmental purpose, and (b) whether the classification is rationally related to that purpose.
In § 6-5-548(e), the legislature stated that its purpose in enacting § 6-5-548 was "to establish a relative standard of care for health care providers." We hold that the establishment of such a standard of care is a proper governmental purpose. Thus, we must determine whether the classification is rationally related to that purpose.
We hold that the requirement of § 6-5-548(c)that health care providers who testify as expert medical witnesses in actions for damages against a health care provider certified by an "appropriate American board as a specialist" be certified by an "appropriate American board in the same specialty" as the health care provider against whom he or she testifiesis rationally related to the purpose of establishing a relative standard of care for health care providers. It may be rationally stated that such a requirement ensures that expert medical witnesses are qualified to state whether health care specialists have breached the standard of care. Furthermore, it is not irrational to state that ensuring that expert medical witnesses are qualified *1325 to testify concerning the appropriate standard of care may result in testimony stating a standard of care that is fair and reasonable. Accordingly, we hold that § 6-5-548(c) does not violate the Equal Protection Clause of the United States Constitution.
Ms. Plitt also argues that § 6-5-548(c) violates her right of equal protection under the Constitution of Alabama. Sections 1, 6, and 22 of Article I, Constitution of Alabama 1901, combine to guarantee the citizens of Alabama equal protection under the laws. Black v. Pike County Commission, 360 So. 2d 303 (Ala.1978), aff'd, 375 So. 2d 255 (Ala.1979). However, Ms. Plitt states no reason, and we are aware of none, that our analysis of the equal protection issue under the United States Constitution should not be equally applicable to her equal protection issue regarding the Alabama Constitution; therefore, we consider the above analysis to apply equally to that issue. See Jefferson County v. Braswell, 407 So. 2d 115 (Ala.1981).
Ms. Plitt argues that, because she introduced medical treatises that, she argues, establish the appropriate standard of care in this case, the trial court erred in granting Dr. Griggs's motion for a directed verdict. We disagree.
The rule concerning the type of evidence required to establish a breach of the appropriate standard of care in medical malpractice cases is well settled in this state:
Swendsen v. Gross, 530 So. 2d 764, 768 (Ala. 1988), citing Powell v. Mullins, 479 So. 2d 1119, 1120 (Ala.1985).
The facts of this case do not fall within the exception to the general rule. Therefore, expert medical testimony is required to establish what is and what is not proper medical treatment and procedure. Ms. Plitt did not produce such evidence.[3]
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Initially, Huntsville Hospital was a party defendant. The trial court granted Huntsville Hospital a final judgment, and Ms. Plitt does not appeal from that judgment.
[2] In Ex parte Morris, we balanced the liberal policy of the discovery rules against the emergence of a qualified privilege against disclosure of a person's income tax records. In support of the policy that the rules of discovery be liberally construed, we set out the pertinent parts of subsections (b) and (c) of Rule 26. We then stated:
"It is well recognized that the courts have liberally construed the rules on discovery so as to provide both parties with relevant information fundamental to proper litigation on all the facts. Ex parte Old Mountain Properties, Inc., 415 So. 2d 1048 (Ala.1982). The Supreme Court synopsized the liberal standard in an often-quoted passage from the leading case of Hickman v. Taylor, 329 U.S. 495, 507, 67 S. Ct. 385, 91 L. Ed. 451 (1947):
`We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of "fishing expedition" serve to preclude a party from inquiring into the facts underlying his opponent's case.'
"This liberality has its limits, however, and Rule 26(c), supra, grants the trial court the power to control the use of the process and to preclude its abuse by any party. Old Mountain Properties, supra."
Ex parte Morris, 530 So. 2d at 787.
In support of the emergence of a policy disfavoring the disclosure of an individual's income tax records, the Morris Court cited St. Regis Paper Co. v. United States, 368 U.S. 208, 82 S. Ct. 289, 7 L. Ed. 2d 240 (1961), in which the United States Supreme Court stated in dictum that income tax records and related documents are not absolutely privileged. We then cited the decisions of lower federal courts and other state appellate courts indicating the development of a qualified privilege imposing a high standard of relevancy on those seeking to discover income tax records. See Ex parte Morris, supra, at 787-89.
For a complete discussion of the balancing of the rules of discovery and the qualified privilege against disclosure of personal income tax records, see Ex parte Morris, supra.
[3] We note that Dr. Griggs does not argue that § 6-5-548 requires a plaintiff in a medical malpractice action to establish by expert medical testimony that the defendant breached the appropriate standard of care. Therefore, we do not address that issue. | August 16, 1991 |
2ac4cc83-007a-46b2-8a2c-f78328c90db4 | Dennis v. American Honda Motor Co. | 585 So. 2d 1336 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 1336 (1991)
Autrey L. DENNIS, Jr., an incompetent, who sues By and Through his mother and court appointed guardian, Wilhemenia DENNIS, et al.
v.
AMERICAN HONDA MOTOR COMPANY, INC.
89-1841.
Supreme Court of Alabama.
August 16, 1991.
Patrick M. Sigler and Stephen C. Moore, and Daniel A. Pike, Mobile, for appellant.
De Martenson of Huie, Fernambucq & Stewart, Birmingham, and Charles J. Fleming of Gardner, Middlebrooks & Fleming, Mobile, for appellee.
Ted Taylor and Leah O. Taylor of Taylor & Roberson, Prattville, for amicus curiae Alabama Trial Lawyers Ass'n.
KENNEDY, Justice.
This is an appeal from a judgment based on a jury verdict in favor of the defendant. We reverse and remand.
The issue is whether the trial court erred in charging the jury on contributory negligence as it related to the cause of the accident.
On August 23, 1985, 18-year-old Autrey Dennis, Jr., was severely and permanently injured when the motorcycle he was driving collided with a log truck. When the collision occurred, Dennis was wearing a used *1337 "Hondaline Stag" motorcycle helmet. These helmets were marketed and distributed by American Honda Motor Company ("Honda") in 1976.
Dennis and his mother sued Honda, claiming that under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), the helmet was defective in its design and manufacture and that the helmet was not fit for its particular purpose. The plaintiffs also alleged two counts of negligence and two counts of wantonness against Honda.
At trial, the testimony concerning the cause of the accident was conflicting. A witness for the plaintiffs testified that she saw the accident happen. She stated that the log truck was making a wide right turn (using two lanes of traffic) when the truck hit Dennis. Testimony from the driver of the log truck and two witnesses who arrived on the scene immediately after the collision, indicated that Dennis was speeding and ran into the back of the log truck. Also, evidence from a forensic scientist suggested that Dennis's motorcycle struck the rear of the truck.
Both parties had expert witnesses testify as to the safety of the helmet. One of the plaintiffs' experts testified that the helmet did not adequately manage the impact of the accident and thus, proximately caused Dennis's injuries. The expert further testified that in his opinion the helmet did not meet the Snell Memorial Foundation safety standards or the safety standards for the Department of Transportation when it was placed on the market.
Experts for Honda testified that the helmet worn by Dennis was too loose fitting because the comfort lining was missing from the inside of the helmet. They testified that as a result of the loose fit of the helmet, the helmet could not protect from an impact as well as it should have. An expert also testified that because of the loose fit and because of where the impact occurred, Dennis's helmet would tend to slide upwards, exposing the forehead. The expert testified that no open-faced helmet on the market would have provided any greater protection from this type of severe impact than the "Hondaline Stag" helmet.
During the trial court's oral charge to the jury, the judge stated as follows:
The trial court then charged the jury on applicable motor vehicle safety law under Title 32, Ala.Code 1975. The trial court stated that a violation of the motor vehicle safety law may be considered by the jury on the issue of contributory negligence. (R.T. 1763-67)
The plaintiffs specifically objected to the portions of the trial court's jury charge concerning contributory negligence as it related to the cause of the accident. The trial court overruled the objection and refused the request for an explanatory charge on contributory negligence. The jury returned a verdict in favor of the defendant.
As stated earlier, the issue in this case is whether the trial court erred in charging the jury on contributory negligence as it related to accident causation. Specifically, the plaintiffs argue that the trial court erred in charging that if the jury found Dennis to be contributorily negligent in causing the accident, he would be barred from recovery under his products liability claim.
First, the gravamen of an action under the AEMLD is that "the defendant manufactured or designed or sold a defective product which, because of its unreasonably unsafe condition, injured the plantiff or damaged his property when such product, substantially unaltered, was put to its intended use." Atkins v. American Motors Corp., 335 So. 2d 134, 139 (Ala.1976). The purpose of the AEMLD is to protect consumers from injuries caused by defective products. General Motors Corp. v. Edwards, 482 So. 2d 1176 (Ala.1985).
An action brought pursuant to the AEMLD is similar to a strict liability tort action under § 402A, Restatement (Second) of Torts, (1964). However, this Court rejected the no-fault concept of § 402A when it established the AEMLD. The Court retained the concept of fault in that "[t]he fault of the manufacturer, or retailer, is that he has conducted himself unreasonably *1339 in placing a product on the market which will cause harm when used according to its intended purpose." Atkins, 335 So. 2d at 140. "Because our holding rejects the no-fault strict liability concept of the Restatement, we deem it appropriate to reemphasize that our retention of the fault concept is to be treated in the context of a defective condition, which renders the product unreasonably dangerous or unsafe when put to its intended use, rather than in the context of traditional notions of negligence law." Atkins, 335 So. 2d at 139. The defendant must pay the consequences of placing an unreasonably dangerous or defective product on the market. "The negligence of the defendant is that he has conducted himself in a negligent manner by placing a product on the market causing personal injury or property damage, when used to its intended purpose." Casrell v. Altec Industries, Inc., 335 So. 2d 128, 132 (Ala.1976).
There are certain defenses allowable to a claim under the AEMLD. As set out in Atkins, supra, general denials and affirmative defenses are available.
The affirmative defenses available are: (1) lack of causal relation, (2) assumption of risk, and (3) contributory negligence. To prove lack of causal relation, the defendant must establish that there is "no causal relation in fact between his activities in connection with handling of the product and its defective condition." Atkins, 335 So. 2d at 143. As to the defense of assumption of the risk, this Court adopted the language in Comment N to § 402A of the Restatement:
Atkins, 335 So. 2d at 143. Although contributory negligence is recognized generally as a defense to AEMLD actions, the Atkins Court seemed to indicate that the defense is available only under certain defensive theories, e.g., "plaintiff's misuse of the product." 335 So. 2d at 143.
We therefore hold that the defense of contributory negligence as it related to accident causation was not a defense to recovery under this AEMLD claim.[1]
A defendant's negligence alleged in an AEMLD action is that he placed a defective product, which was unreasonably dangerous, on the market. A plaintiff's mere inadvertence or carelessness in causing an accident should not be available as an affirmative defense to an AEMLD action. To allow a plaintiff's negligence relating to accident causation to bar recovery would go against the purpose of the AEMLD, which is to protect consumers from defective products. The defense of contributory negligence in an AEMLD action should be limited to assumption of the risk and misuse of the product. The plaintiffs' negligence relating to accident causation should not bar recovery.
In Caterpillar Tractor Co. v. Ford, 406 So. 2d 854 (Ala.1981), the jury's finding that a tractor used in a strip mining operation was defective because of the failure of the manufacturer to provide a roll-over protective structure was supported by the evidence. The manufacturer argued that the driver of the tractor, as a matter of law, was contributorily negligent or had assumed the risk. The Court held that it was a jury question whether the driver was contributorily negligent. The Court noted that there was a distinction between contributory negligence and assumption of risk. The Court held that for the manufacturer to prove contributory negligence, he must show that the driver appreciated the danger under the surrounding circumstances and that the driver acted unreasonably with that knowledge and appreciation. Clearly, the Court in that case was referring to the definition of "assumption of risk" stated in Atkins, supra, when it discussed the defense of contributory negligence.
*1340 Contributory negligence was not a defense to an AEMLD claim in Harley-Davidson, Inc. v. Toomey, 521 So. 2d 971 (Ala.1988). In that case, the motorcyclist was injured when his helmet became fogged and caused him to lose control of the motorcycle and collide with an automobile. This Court held that the motorcyclist was not contributorily negligent, because he "was wearing the helmet properly with all four snaps fastened" and "there [was] no evidence that he failed to exercise reasonable care in wearing the helmet." 521 So. 2d at 974 (citation omitted). Clearly, this Court referred to product misuse in discussing contributory negligence as a defense. We note that although the helmet in the instant case did not cause the collision between the motorcycle and the truck, there is a question of whether the helmet failed to provide adequate protection.
The products liability claim in the instant case is consistent with the "crashworthiness doctrine" referred to in General Motors Corp. v. Edwards, 482 So. 2d 1176 (Ala. 1985). In that case, a Chevrolet Chevette automobile burst into flames after being struck from the rear by another automobile. The driver and her husband were severely burned and both of their children died in the fire. This Court found Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.1968), to be persuasive authority on the "crashworthiness doctrine."
In Larsen, the Eighth Circuit Court of Appeals found that while a manufacturer is under no duty to design an accident-proof vehicle, the vehicle manufacturer does have a duty to design its product so as to avoid subjecting its user to an unreasonable risk of injury in the event of a collision. That court reasoned that collisions "are a statistically foreseeable and inevitable risk within the intended use of an automobile" and that "while the user must accept the normal risk of driving, he should not be subjected to an unreasonable risk of injury due to a defective design." General Motors Corp. v. Edwards, 482 So. 2d at 1181, citing Larsen, supra.
This Court agreed that Larsen was "more in keeping with the purpose of the AEMLD, which is to protect consumers against injuries caused by defective products." Edwards, 482 So. 2d at 1181-82.
In Cooper v. Bishop Freeman Co., 495 So. 2d 559 (Ala.1986), rev'd on other grounds, Burlington Northern R. Co. v. Whitt, 575 So. 2d 1011 (Ala.1990), the plaintiff was injured while operating a fabric pressing machine. The plaintiff had her arm beneath the head of the machine prior to the injury. This Court stated that "the term `assumption of risk' has been used to describe a form of contributory negligence applicable to factual situations in which it is alleged that the plaintiff failed to exercise due care by placing himself or herself into a dangerous position with appreciation of a known risk." Cooper, 495 So. 2d at 563. The Court held that the jury instructions on assumption of risk as to the plaintiff's AEMLD claim against Bishop Freeman were correct. However, the evidence did not support a jury charge on contributory negligence as to the AEMLD claim. "There was no evidence that plaintiff's actions in placing her arm beneath the machine without having a garment in place was in any way improper so as to give rise to an inference that the plaintiff was negligent." Cooper, 495 So. 2d at 563. In fact, it was necessary for the plaintiff to place her arms beneath the pressing head to position a garment for pressing. The resulting injury would have occurred regardless of whether there was a garment on the work surface when the pressing head fell.
Certainly, a foreseeable use of a motorcycle helmet is to protect the head from injuries if the motorcyclist is involved in an accident. In fact, a motorcycle helmet is a safety device designed to protect the motorcyclist's head from injury, regardless of who caused the accident. It would be wholly inconsistent to allow the manufacturer of a safety device such as a motorcycle helmet to design a defective product and then allow that manufacturer to escape liability when the product is used for an intended use, i.e., the very purpose of the helmet.
At the present time, contributory negligence generally is a complete bar to recovery *1341 in a negligence action in seven jurisdictions. Those jurisdictions are: Alabama, the District of Columbia, Maryland, North Carolina, South Carolina,[2] Tennessee, and Virginia. Four of these jurisdictions have addressed the question of whether contributory negligence is a defense to strict tort liability in products liability law.
In East Penn Mfg. Co. v. Pineda, 578 A.2d 1113 (D.C.App.1990), the District of Columbia Court of Appeals held that the manufacturer and seller of a truck battery that exploded and injured the plaintiff could not raise contributory negligence as defense to a claim based on strict liability. The court cited Young v. Up-Right Scaffolds, Inc., 637 F.2d 810 (D.C.Cir.1980). In Young, the plaintiff was injured when the scaffolding he was disassembling collapsed. The plaintiff claimed damages on the basis of negligence and on the basis of strict liability for injuries caused by a defective product. The Court of Appeals held that the trial court erred by failing to instruct the jury that contributory negligence is not a defense to a claim based on strict liability and that contributory negligence on the plaintiff's part would not bar his recovery under the theory of strict liability. However, that Court noted that contributory negligence would have been available as a defense to the negligence count.
The defendants in Young argued that contributory negligence was indistinguishable from product misuse and assumption of risk and that, therefore, the failure to instruct the jury was harmless error. The Young court stated that under the facts of the case the jury could have considered the plaintiff to have been contributorily negligent but not responsible for product misuse or assumption or risk and therefore that the failure to instruct the jury that contributory negligence is not a defense to a claim based on strict liability was reversible error. That court distinguished between assumption of risk and product misuse. "Assumption of risk requires conscious apprehension of danger." Young, 637 F.2d at 815. "Product misuse is use of a product in a manner not reasonably foreseen by the defendant." Id.
The Maryland courts have also addressed the issue of contributory negligence as a defense on an action based on strict liability. In Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 495 A.2d 348 (1985), the plaintiff was severely burned when her nightgown ignited as a result of its proximity to a front burner of her electric stove. The court stated:
Ellsworth, 303 Md. at 589, 495 A.2d at 356.
In Wallace v. Owens-Illinois, Inc., 300 S.C. 518, 389 S.E.2d 155 (Ct.App.1989), the South Carolina Court of Appeals held that contributory negligence was not a defense to an action based on strict liability for injuries caused by a defective product. The court also noted the difference between assumption of risk and ordinary contributory negligence: "Unlike contributory negligence, which is based on carelessness and inadvertence, assumption of risk requires deliberate and voluntary choice to assume a known risk." Wallace, 300 S.C. at 520, 389 S.E.2d at 158.
In Ellithorpe v. Ford Motor Co., 503 S.W.2d 516 (Tenn.1973), the plaintiff was injured when her automobile collided into the rear of a stopped automobile. Although the plaintiff was wearing a lap seat belt, the impact caused the plaintiff's upper body to go forward and strike a protruding emblem on the steering wheel. The Tennessee Supreme Court followed Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.1968), in holding that collisions are *1342 clearly foreseeable by the manufacturer and that the manufacturer therefore has a duty to minimize the harm of inevitable accidents by utilizing a reasonably safe design. That court held that ordinary contributory negligence was not a defense to strict liability actions. "Ordinary negligence, defined generally as the failure to exercise the care of a reasonably prudent man, is not a proper defense to strict liability actions." Ellithorpe, 503 S.W.2d at 521 (citations omitted). The court stated two reasons for not allowing contributory negligence as a defense to an action based on strict liability:
Ellithorpe, 503 S.W.2d at 521 (citations omitted).
Ellithorpe, 503 S.W.2d at 521-22.
The Ellithorpe court held that the conduct giving rise to a strict products liability action was not based on negligence and that, therefore, the defense of contributory negligence was not available. The court did note that assumption of risk was available as a defense in actions based on strict products liability.
We note that in many comparative negligence jurisdictions, the defense of contributory negligence is inapplicable in a products liability action.[3]
We conclude that contributory negligence relating to accident causation will not bar a recovery in an AEMLD action. Lack of causal relation, product misuse, and assumption of risk are still valid defenses to an AEMLD action.
In the instant case, the plaintiffs also alleged negligence on the part of the defendant. Of course, contributory negligence would still be a defense to a negligence claim. The trial court should have distinguished between the AEMLD claim and the negligence claim, noting the defenses applicable to each claim.
Based on the foregoing, the judgment is reversed and the cause is remanded for a new trial. Discussion of all other issues presented on appeal is pretermitted.
REVERSED AND REMANDED.
*1343 HORNSBY, C.J., and ALMON, SHORES, ADAMS and INGRAM, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., dissent.
MADDOX, Justice (dissenting).
When this Court adopted the Alabama Extended Manufacturer's Liability Doctrine, it specifically stated under a section of the opinion styled "DEFENSES" that "[t]he defendant may assert the negligent conduct of the plaintiff in using the product, as well as the defense of assumption of risk." Casrell v. Altec Industries, Inc., 335 So. 2d 128, 134 (Ala.1976).
That statement in the case that established the AEMLD doctrine is quite plain and specific. It should not be ignored or changed.
What other States permit or do not permit in the way of defenses is irrelevant. Alabama did not adopt the Restatement completely, but retained considerations of "fault." Alabama also retained the defense of contributory negligence.
I must respectfully disagree with this change in the law regarding the AEMLD.
HOUSTON and STEAGALL, JJ., concur.
[1] We note that a plaintiffs' misuse of the product and assumption of risk would be available defensively in an AEMLD claim.
[2] In Nelson v. Concrete Supply Co., ___ S.C. ___, 399 S.E.2d 783 (1991), the South Carolina Supreme Court held that for all causes of action based on negligence arising on or after July 1, 1991, the doctrine of comparative negligence will apply.
[3] See Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978); Nichols v. Coppola Motors, Inc., 178 Conn. 335, 422 A.2d 260 (1979); Shields v. Morton Chemical Co., 95 Idaho 674, 518 P.2d 857 (1974); American Optical Co. v. Weidenhamer, 404 N.E.2d 606 (Ind.App.1980), rev'd on other grounds, 457 N.E.2d 181 (Ind. 1983); Austin v. Raybestos-Manhattan, Inc., 471 A.2d 280 (Me. 1984); Busch v. Busch Construction, Inc., 262 N.W.2d 377 (Minn. 1977); Lippard v. Hondaille Industries, Inc., 715 S.W.2d 491 (Mo. 1986); Krueger v. General Motors Corp., 240 Mont. 266, 783 P.2d 1340 (1989); Melia v. Ford Motor Co., 534 F.2d 795 (8th Cir.1976) (applying Nebraska law); Holloway v. State, 239 N.J.Super. 554, 571 A.2d 1324 (1990); Robinson v. Parker-Hannifin Corp., 4 Ohio Misc.2d 6, 447 N.E.2d 781 (1982); Kirlcland v. General Motors Corp., 521 P.2d 1353 (Okla.1974); McMeekin v. Harry M. Stevens, Inc., 365 Pa.Super. 580, 530 A.2d 462 (1987); Roy v. Star Chopper Co., 584 F.2d 1124 (1st Cir.1978), cert. den., 440 U.S. 916, 99 S. Ct. 1234, 59 L. Ed. 2d 466 (1979) (applying R.I. law); Klug v. Keller Industries, Inc., 328 N.W.2d 847 (S.D.1982); Guadiano v. Fleishman, 636 S.W.2d 785 (Tex.App.1982) rev'd on other grounds, 651 S.W.2d 730 (Tex. 1983). | August 16, 1991 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.