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
|
|---|---|---|---|---|---|---|---|
bfb7a785-9ada-41ce-a923-d0c6071bd8ca | Pope v. McCrory | 575 So. 2d 1097 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1097 (1991)
John L. POPE
v.
William C. McCRORY and McCrory & Williams, Inc.
89-1497.
Supreme Court of Alabama.
March 1, 1991.
*1098 Bayliss E. Biles of Wilkins, Bankester, Biles & Wynne, Bay Minette, for appellant.
David P. Shepherd, Frank T. Hollon and Sam W. Irby, Fairhope, for appellees.
PER CURIAM.
John L. Pope appeals from a summary judgment for William C. McCrory and McCrory & Williams, Inc., on his claims of negligence and breach of contract. We affirm.
Viewed most favorably to Pope, the depositions and pleadings set out the following facts: Mr. Myron Rogers offered a parcel of property for sale. Mr. Larry Tisdale, interested in purchasing the Rogers property, contracted with the engineering firm of McCrory & Williams to perform a percolation test and to survey the property. McCrory & Williams performed the test and survey and prepared an application to install an individual water supply and prepared an on-site sewage disposal report that was filed with the Baldwin County Health Department. In turn, the Health Department approved the use of any onsite disposal system on the property. Subsequently, Mr. Tisdale decided not to purchase the property. Thereafter, John L. Pope bought the 4.8-acre parcel from Rogers.
At the closing of the Pope-Rogers sale, the seller's lawyer gave Pope a copy of the McCrory & Williams test report and survey. The County Health Department thereafter substituted Pope for Tisdale on the application to install an individual water supply and on the on-site sewage disposal report, in accordance with Department policy, and the report was used by the Department in reviewing Pope's building plans and issuing the necessary permits. While the septic tank was being installed, it was discovered that the water table in the tank hole was approximately three feet below ground and rising. Installation was stopped and approval of the septic tank permit was withdrawn.
Rule 56, A.R.Civ.P., sets out a two-tiered standard for determining whether to enter a summary judgment. In order to enter 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. Rule 56, A.R.Civ.P., RNH, Inc. v. Beatty, 571 So. 2d 1039 (Ala.1990). In determining whether summary judgment was properly granted, the appellate court must view the motion in a light most favorable to the nonmovant. 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 reviewing the trial court's decision, we are limited to those factors and that evidence considered by the trial court. Prudential Insurance Co. v. Coleman, 428 So. 2d 593 (Ala.1983), Turner, 475 So. 2d at 542.
Rule 56 is to be read in conjunction with the "substantial evidence rule" for actions filed after or on June 11, 1987. See § 12-21-12, Alabama Code 1975, and Bass *1099 v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Thus, to defeat a properly supported motion for summary judgment, Pope must present "substantial evidence, i.e., 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).
All parties agree that the issue on appeal is foreseeability. "The ultimate test of a defendant's duty to use due care is the foreseeability of the harm which would result if due care was not exercised." Alabama Power Co. v. Henderson, 342 So. 2d 323, 326 (1976). In Harris v. Board of Water & Sewer Commissioners of the City of Mobile, 294 Ala. 606, 320 So. 2d 624 (1975), we stated that where one party to a contract assumes a duty to another party to the contract and it is foreseeable that injury to a third party, not an original party to the contract, may occur upon a breach of the owed duty, the promissor owes a duty of care to all those within the foreseeable area of risk. The rationale behind our holding in Harris is explained by Professor Prosser:
W. Prosser, Law of Torts § 93 at 622 (4th ed. 1971).
Pope relies upon Harris in arguing that McCrory and McCrory & Williams owed him a duty of care, arguing that it was foreseeable that Pope would rely upon the results of the percolation test performed by McCrory and McCrory & Williams. Others similarly situated have relied upon Harris for support. Ray v. Montgomery, 399 So. 2d 230 (Ala.1980), provides a good example of such reliance.
In Ray, the plaintiffs, Henry and Patricia Ray, purchased a used residence from Dean and M.C. Montgomery; unknown to the Rays, the house had sustained termite damage. The Montgomerys had originally purchased the home from E.W. and Minniesota Bailey. The Baileys had contracted with Guaranty Pest Control for termite extermination, and the residence was treated on a yearly basis until the time it was sold to the Montgomerys. The Rays, citing Harris, argued that they were owed a duty of care from Guaranty even though the contract of sale between the Montgomerys and the Rays provided that the Montgomerys made no warranties other than as to title and had no liability for any defects or repairs. We stated in Ray:
399 So. 2d at 233.
As the Rays' reliance on Harris was misplaced, so is Pope's. The contract between Tisdale and McCrory & Williams was private, not public. Tisdale wanted to be sure that the land would "perc" before he bought it, to protect his investment, not that of someone else who might buy the lot if he did not. Pope was not a third-party beneficiary of the Tisdale-McCrory & Williams contract. To recover under a *1100 third-party beneficiary theory, Pope must show: 1) that the contracting parties intended, at the time the contract was created, to bestow a direct benefit upon him; 2) that he was an intended beneficiary of the contract; and 3) that the contract was breached. Sheetz, Aiken & Aiken v. Spann, Hall, Ritchie, Inc., 512 So. 2d 99 (Ala.1987). Pope has presented no evidence that would meet the Sheetz, Aiken test. The mere fact that Pope was given a copy of the test results by the seller's lawyer during the close of the property sale does not tend to prove that McCrory & Williams ever envisioned that Pope would be a direct beneficiary of its contract with Tisdale. See Colonial Bank of Alabama v. Ridley & Schweigert, 551 So. 2d 390, 396 (Ala.1989).
Summary judgment on Pope's negligence and breach of contract claims was proper. For the reasons stated herein, the judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur. | March 1, 1991 |
b2f1a575-7e4e-46e1-9fc9-2ffc48c1488e | Motors Ins. Corp. v. Williams | 576 So. 2d 218 | N/A | Alabama | Alabama Supreme Court | 576 So. 2d 218 (1991)
MOTORS INSURANCE CORPORATION
v.
Janice WILLIAMS, as administratrix of the estate of Amanda T. Steward, deceased.
89-1113.
Supreme Court of Alabama.
March 1, 1991.
*219 Grey Redditt, Jr. and Lisa A. Bradford of Inge, Twitty, Duffy, Prince & McKean, Mobile, for appellant.
Bob Sherling of Sherling, Browning & York, Mobile, for appellee.
MADDOX, Justice.
This case presents the question whether an insured did all he reasonably should have done to show that the tort-feasor/driver and the owner of the vehicle he was driving were uninsured, to shift the burden of proof to the carrier of uninsured motorist coverage to prove that the tort-feasor and owner were, in fact, insured. See Ogle v. Long, 551 So. 2d 914 (Ala.1989).
In August 1986, Amanda T. Steward and Joseph Hunter III were involved in an automobile accident. Steward incurred injuries and subsequently died from the injuries she received in the accident, which was caused by the alleged negligent actions of Hunter. Steward's daughter, Janice Williams, acting as administratrix of Steward's estate, sued Hunter[1] and Motors Insurance Corporation ("MIC"), Steward's carrier of uninsured motorist insurance.
After the jury returned a verdict in favor of the plaintiff, MIC filed a motion for a judgment notwithstanding the verdict or in the alternative for a new trial, which was denied. On appeal, MIC contends that the plaintiff failed to prove that Hunter was uninsured or that the owner of the vehicle was uninsured and therefore failed to qualify for uninsured motorist coverage.
Under Alabama law, the term "uninsured motor vehicle" includes vehicles in which neither the owner nor the operator carries bodily injury liability insurance. Ala.Code 1975, § 32-7-23. In order to prove coverage under this section, Williams has the burden of showing that the tort-feasor, Hunter, was uninsured. Barnes v. Tarver, 360 So. 2d 953, 956 (Ala.1978) ("[e]very jurisdiction which has considered the issue holds that the burden of proving entitlement to coverage under an uninsured motorist endorsement is upon the claimant"). Williams must prove not only that the tort-feasor driver was uninsured, but also that the owner of the vehicle was uninsured. Higgins v. Nationwide Mutual Ins. Co., 291 Ala. 462, 282 So. 2d 301 (1973).
Williams acknowledges her burden of proving that Hunter was uninsured, but submits that she falls within the exception adopted by this Court in Ogle, where the Court recognized an exception to the general rule that the burden of proof rests upon the claimant. The Court stated that if the claimant can show that he used "reasonable diligence to ascertain the uninsured status of the tort-feasor and such information was unobtainable," the burden would shift to the carrier of uninsured motorist coverage to prove that the tort-feasor was, in fact, insured. 551 So. 2d at 915-16. Therefore, if Williams used "reasonable diligence" to ascertain that Hunter was uninsured, then the burden is cast upon MIC to go forward with evidence that the tort-feasor/driver and the owner of the vehicle were, in fact, insured.
In the Ogle case, the court granted the defendant insurer's motion for a directed verdict, finding that Ogle and Evans, the plaintiffs, had failed to produce evidence of a reasonably diligent investigation sufficient to raise a presumption that the tort-feasor was uninsured. 551 So. 2d at 917. The record reflected that the plaintiff had *220 attempted to serve the alleged tort-feasor at a post office box and had then obtained a default judgment against him when he failed to answer the complaint following service by publication.[2]
The Court stated:
551 So. 2d at 916.
The facts in the present case differ substantially from those in Ogle. The record reflects that Williams hired a process server, a Mr. York, to try to locate Hunter. The address at which Williams requested service was obtained from the police incident report. York went to the house at that address and discovered that the house was vacant. York then asked a neighbor and a postman in the neighborhood if they knew where the residents of the vacant house had moved. He received a negative response from both.
In addition to the street address that was on the incident report, the attorneys for Williams gave York a second possible address for Hunter. York discovered that this address was the former residence of an uncle with the same name, whose whereabouts were unknown to the residents. At the suggestion of the residents, York went to the home of Hunter's mother. This suggestion proved to be fruitless, for his mother said she had not seen Hunter recently and did not know where he was.
York also checked the city directories for the cities of Mobile and Prichard and found nothing. He checked at the tag registration offices and telephoned several "Joseph" or "J. L. Hunters," but did not locate the Joseph Hunter III on whom service was to be made.
York later went back to the uncle's former residence to see if the residents knew where Hunter worked. He also returned to the mother's house to learn if Hunter was married, and found out that he was not.
Williams's complaint and summons were returned "NOT FOUND." Not only was Williams unable to find Hunter, but MIC also was unable to serve process on him. The record reveals that the cross-appeal filed by MIC was also returned "NOT FOUND."
In addition to the evidence of York's attempts to locate Hunter, the jury also had before it the statement of the plaintiff's attorney that he had called the state insurance department and had received no guidance from it:
MIC argues that this statement was not evidence and that it prejudiced the interests of MIC in the eyes of the jury. This argument has no merit, for although *221 there was a general objection to Sherling's capacity to be a witness, there was no objection to the statement itself or a motion to exclude the alleged improper remark. Clearly, Sherling was competent to be a witness in this case. Ala.Code 1975, § 12-21-161; see also McGehee v. Hansell, 13 Ala. 17 (1848) (the attorney for a party is a competent witness for him, unless interested). The objection was properly overruled on the ground asserted.
MIC argues that the trial court's refusal to admit into evidence the title history of the automobile was prejudicial error. Williams's counsel specifically objected at trial to the admission of this into evidence:
It is well established that rulings as to the admissibility of evidence such as that involved in this case, rest largely within the discretion of the trial court and will not be disturbed on appeal in the absence of a showing of abuse of that discretion. Russellville Flower Craft, Inc. v. Searcy, 452 So. 2d 478, 480 (Ala.1984). Furthermore, the general pre-trial order in this case specified:
We hold that the trial judge did not err in excluding the evidence.
We further hold that the plaintiff presented substantial evidence to the jury regarding the ownership of the automobile driven by the tort-feasor. The policeman who investigated the accident testified that he determined that Hunter was the owner of the automobile by running a tag check, which showed the car as being registered to Hunter. It was certainly reasonable for Williams to rely upon the information furnished by the policeman.
We now address the main issue in this case, whether the plaintiff presented sufficient evidence to allow the jury to find that Hunter was uninsured.
Because of the difficulty of proving a negative, the initial burden of proving the motorist was uninsured is somewhat relaxed. See Widiss, A Guide to Uninsured Motorist Coverage, § 2.39 at 77 (1969). The quantum of proof must be enough to convince the trier of fact that all reasonable efforts have been made to ascertain the existence of an applicable policy and that those efforts have proven fruitless. Ogle v. Long, 551 So. 2d at 918 (Hornsby, C.J., dissenting). In this case, the jury had substantial evidence that Williams acted with reasonable diligence in attempting to ascertain whether Hunter was insured.
While we hold in this case that there was substantial evidence that the plaintiff had exercised reasonable diligence *222 in attempting to ascertain whether the tort-feasor was insured, and that the question whether he was insured was thus properly submitted to the jury, we should not be understood as saying that in another setting this evidence would be enough. That determination must be made upon the facts in each case. Just as we noted in Ogle, an admission by the insurer or its agent would clearly have probative value on the question whether the tort-feasor was insured. 551 So. 2d at 916. Furthermore, an "affidavit, deposition, or even letter [from the owner or driver of the automobile] to the effect that they were uninsured at the time of the occurrence should control, although it must pertain to the time of the occurrence." Id.
On a motion for a directed verdict or for a new trial or for j.n.o.v., the evidence is to be viewed most favorably to the nonmovant, here the plaintiff. Bussey v. John Deere Co., 531 So. 2d 860, 863 (Ala.1988). Viewing the evidence most favorably to Williams, we hold that she produced substantial evidence of a reasonably diligent investigation sufficient to raise a presumption that Hunter was uninsured and to cast upon MIC the burden of going forward with the evidence by showing that the driver or the owner of the automobile was, in fact, insured. Thus, sufficient evidence existed to produce a conflict warranting the jury's consideration.
Therefore, MIC's motion for a directed verdict was properly denied. The judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] Hunter was never served with either the original complaint or with the cross-claim filed against him by MIC; both were returned "Not Found," with a notation indicating that Hunter had moved. Williams proceeded with her case against MIC. The law is clear that the insured is not required to first sue the uninsured motorist, but may directly sue the carrier of the insurance. State Farm Mut. Automobile Ins. Co. v. Griffin, 51 Ala.App. 426, 286 So. 2d 302 (1973).
[2] Preferred Risk, the carrier of uninsured motorist coverage, had moved to intervene in the lawsuit and to set aside the default judgment after the plaintiff notified it of her intention to file a claim for uninsured motorist coverage under the terms of her insurance policy. The trial court granted Preferred Risk's motion, set aside the default judgment, and joined Preferred Risk as a party defendant. | March 1, 1991 |
c1670c16-e429-45dd-bab1-0cdba9604035 | Ex Parte Lawhorn | 581 So. 2d 1179 | 1900423 | Alabama | Alabama Supreme Court | 581 So. 2d 1179 (1991)
Ex parte James Charles LAWHORN.
(Re James Charles Lawhorn v. State of Alabama).
1900423.
Supreme Court of Alabama.
April 11, 1991.
Rehearing Denied May 10, 1991.
Hank Fannin and Mark Smith Nelson, Talladega, for petitioner.
James H. Evans, Atty. Gen., and Robert E. Lusk, Jr. and William D. Little, Asst. Attys. Gen., for respondent.
*1180 HOUSTON, Justice.
James Charles Lawhorn was convicted of capital murder in the Circuit Court of Talladega County and was sentenced to death. In a unanimous decision, the Court of Criminal Appeals affirmed Lawhorn's conviction and sentence. See Lawhorn v. State, 581 So. 2d 1159 (Ala.Crim.App.1990), for a detailed statement of the pertinent facts. We affirm.
The Court of Criminal Appeals correctly resolved the nine issues discussed in its opinion. It is necessary for this Court to write to only one of the nine issues addressed in Presiding Judge Patterson's thorough and well-reasoned opinion whether the trial court appropriately considered mitigating and aggravating circumstances during the sentencing phase of the trial.
In its findings of fact at the sentencing phase of the trial, the trial court properly tracked the requirements of Ala. Code 1975, § 13A-5-51 ("Mitigating circumstancesGenerally"), and found an absence of mitigating circumstances. The trial court also stated the following:
The testimony of the five above-mentioned witnesses was heard and weighed by the jury and by the trial court. See Lawhorn v. State, supra, 581 So. 2d at 1177-78. Our scrutiny of that evidence of mitigating circumstances reveals nothing that outweighs the two statutory aggravating circumstances proven at trialthat the capital offense was committed for pecuniary gain and that the offense was especially heinous, atrocious, or cruel compared to other capital offenses. Accordingly, we cannot hold that the trial court or the jury erroneously weighed the evidence of mitigating and aggravating circumstances. See Beck v. State, 396 So. 2d 645 (Ala.1980).
Lawhorn has raised here 13 additional issues that were not presented to the Court of Criminal Appeals. The State contends that we should not consider these issues because they were raised for the first time in this Court. Because we have the power to consider any issue in a capital case concerning the propriety of the conviction and death sentence, and, more importantly, because a man's life hangs in the balance, we have fully considered each of *1181 those 13 additional issues raised by Lawhorn. In addition, we have independently searched the record for error. After careful research of the applicable law and after our exhaustive search of the record for error, we can find no reversible error in the proceedings below. We do feel, however, that the following issue, which was among the 13 additional issues raised by Lawhorn in this Court, warrants further discussion: whether it was reversible error to allow two of the State's witnesses to sit at the counsel table for the State during trial. The two witnesses, Frank Wallis and Ann Wallace, testified against Lawhorn. In his opening statement, the prosecutor began:
Mr. Wallis was an investigator with the Talladega County Sheriff's Department. Alabama appellate courts have time and again refused to hold it an abuse of discretion on the part of a trial court to allow a sheriff, police chief, or similarly situated person who will later testify to remain in the courtroom during trial. See, e.g., Jackson v. State, 502 So. 2d 858 (Ala. Crim.App.1986); Johnson v. State, 479 So. 2d 1377 (Ala.Crim.App.1985); Chesson v. State, 435 So. 2d 177 (Ala.Crim.App. 1983), and authorities cited in those cases. Likewise, we find no abuse of discretion on the trial court's part in allowing Mr. Wallis to sit with the prosecutor during the trial in the present case.
Although the decision to exclude or not to exclude witnesses from the courtroom remains a matter of discretion for the trial court, Ex parte Faircloth, 471 So. 2d 493 (Ala.1985); Elrod v. State, 281 Ala. 331, 202 So. 2d 539 (1967), in exercising that discretion, the trial court must seek to ensure that the prosecutor is not permitted to improperly influence the jury by injecting the integrity and prestige of his office and position into the trial of the case, so as to bolster the credibility of the State's evidence. See, e.g., Tarver v. State, 492 So. 2d 328 (Ala.Crim.App.1986); Waldrop v. State, 424 So. 2d 1345 (Ala.Crim.App.1982), appeal after remand, 462 So. 2d 1021 (Ala. Crim.App.1984), cert. denied, 472 U.S. 1019, 105 S. Ct. 3483, 87 L. Ed. 2d 618 (1985); Walker v. Davis, 840 F.2d 834 (11th Cir. 1988).
In the present case, Ms. Wallace, who was the prosecutor's secretary and trial coordinator, sat with the prosecutor during the trial and helped him to present the State's case. Serving in this capacity, Ms. Wallace was acting as an extension of the prosecutor himself and, under the rationale of the cases cited above, her presence at counsel's table might have constituted reversible error if her testimony had concerned a disputed factual matter that was material to Lawhorn's guilt or innocence. However, Ms. Wallace testified before the jury only as to the proper functioning of the tape recorder that was used to record Lawhorn's confession and as to the chain of custody of the tape. Lawhorn did not attempt to dispute that testimony; accordingly, Ms. Wallace's credibility was never an issue before the jury. After thoroughly reviewing Ms. Wallace's testimony, we conclude that the trial court did not abuse its discretion in allowing Ms. Wallace to remain in the courtroom, seated by the prosecutor. It is not necessary for us to decide whether reversible error would have occurred if Ms. Wallace had testified before the jury concerning a disputed factual matter that was material to the issue of Lawhorn's guilt or innocence. That issue is not before us.
We also note that on January 1, 1991, the new Alabama Rules of Professional Conduct became applicable. These rules govern the conduct of district attorneys. Brooks v. Alabama State Bar, 574 So. 2d 33 (Ala.1990). Rule 5.3 broadens the scope of lawyer responsibility as it relates to nonlawyer assistants and provides, in pertinent part, as follows:
We need not decide what effect this rule may have on future proceedings. It had no effect on this case.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur. | April 11, 1991 |
47316654-fc5a-4c62-a3b8-f6552b517384 | Ex Parte Bayliss | 575 So. 2d 1122 | 1900343 | Alabama | Alabama Supreme Court | 575 So. 2d 1122 (1991)
Ex parte Cherry R. BAYLISS.
(Re Cherry R. BAYLISS
v.
John Martin BAYLISS).
1900343.
Supreme Court of Alabama.
February 22, 1991.
Frank M. Bainbridge of Bainbridge, Mims & Rogers, Birmingham, for petitioner.
Stephen R. Arnold of Durward & Arnold, Birmingham, for respondent.
Prior report: Ala.Civ.App., 575 So. 2d 1117.
STEAGALL, Justice.
WRIT DENIED.
HORNSBY, C.J., and MADDOX, ADAMS and KENNEDY, JJ., concur.
ALMON, SHORES and HOUSTON, JJ., dissent.
HOUSTON, Justice (dissenting).
I would grant the petition for the writ of certiorari. Because Patrick Bayliss had no guardian ad litem[1] when his parents' divorce was granted, it is now necessary for the trial court to determine what kind of education Patrick would have received had there been no divorce. Patrick is an outstanding young man. See Ex parte Bayliss, 550 So. 2d 986 (Ala.1989). The divorce judgment awarded custody and the responsibility for Patrick's education to his mother, and this provision of the divorce was never modified. Patrick's attempts to talk with his father about college ended when his father refused to provide any financial support for Patrick to attend any college. Patrick, his mother, and the advisors at Altamont School (the private high school Patrick attended) investigated 23 colleges and universities. After consultation with the school officials, Patrick and his mother decided that the best college for Patrick was Trinity College. There are no facts to support a finding that the mother's decision *1123 concerning Trinity College was reached for a vindictive purpose or that, for any reason, it was clearly not the best choice for Patrick.
Mr. Bayliss earns 90.6% of Mr. and Ms. Bayliss's combined income. If he contributed a pro rata share (90.6%) toward Patrick's expenses at Trinity College, Mr. Bayliss would pay only 6% of his income (less than state and local sales tax) for Patrick's education. This certainly is not too great a burden.
Perhaps my judgment is influenced by events in my life, but "[w]hat other judgment can I judge by but my own?"[2] I am an Auburn University graduate, and I rejoice in that fact. However, when advisors recommended that my daughter attend Duke University for undergraduate school and that my son attend the University of Virginia for undergraduate school and Yale University for graduate school, and my children wanted to attend those universities, my wife and children and I, as a family unit, decided that my children should attend those universities. The cost of attending those schools was considerably more than the cost of attending Auburn University or any of our other fine state universities and colleges, and it was considerably more than 6% of my income for each child to attend those universities. This certainly is not said as a put-down of our state universities and colleges, for my niece, who is valedictorian (an honor neither of my children earned) at Eufaula High School, Class of 1991, will attend Auburn University as a freshman in engineering in the fall of 1991. This was a decision reached by her family unit, with her consent, and upon the recommendation of advisors. Patrick and his mother, as the remainder of their family unit, upon the recommendation of advisors, chose Trinity College for Patrick. Therefore, it is difficult for me to see why the Baylisses, as a family unit, would not have acceded to the recommendations of the advisor and the wishes of Patrick, if the family had not been separated by divorce.
I do not believe that either parent's contribution to a child's college education should be limited to the cost of attending a state university. The first question should be: What can the parents reasonably afford? After that has been ascertained, the trial court must decide what college or university the family unit probably would have selected if there had been no divorce. In this case, I think it would have been Trinity College.
I would grant the writ. Therefore, I dissent.
[1] I believe that the interests of the children of a marriage must be a major concern in divorce actions, and I believe that a trial court has a right to appoint a guardian ad litem to represent minor children's interests, if the trial court has any concern that the parents are looking out only for their own, and not their children's, interests.
[2] George Barnard Shaw, St. Joan. | February 22, 1991 |
af6c9800-18dc-496d-a58c-00b4b3aaf8f1 | Volkswagen of America, Inc. v. Dillard | 579 So. 2d 1301 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 1301 (1991)
VOLKSWAGEN OF AMERICA, INC.
v.
Edwin O. DILLARD.
89-1736.
Supreme Court of Alabama.
March 8, 1991.
Rehearing Denied April 11, 1991.
H. Dean Mooty, Jr. of Capell, Howard, Knabe & Cobbs, Montgomery, for appellant.
George H.B. Mathews, Montgomery, for appellee.
HOUSTON, Justice.
This is an appeal from a judgment based on a jury verdict entered against Volkswagen United States, Inc., a division of Volkswagen of America, Inc. ("Volkswagen"), in favor of Edwin O. Dillard and awarding him money damages based on a *1302 breach of a warranty given on the sale of a new 1987 Volkswagen automobile. We affirm.
Dillard sued Volkswagen, alleging the breach of an express warranty and claiming damages for loss of the value of the car, damages for mental anguish, and attorney fees and costs. The jury returned the following verdict:
The trial court entered judgment on the verdict and also awarded attorney fees of $15,000 and costs of $231.81. Volkswagen appealed, arguing that the trial court improperly charged the jury that it could award damages for mental anguish on Dillard's breach of warranty claim. That charge reads as follows:
The sole issue presented on appeal is whether damages for mental anguish are recoverable in a breach of warranty action relating to the sale of a new automobile.
The facts of the case are essentially undisputed.
In July 1988, Dillard purchased a new 1987 Volkswagen Scirocco automobile for $16,449.56. In connection with this purchase, Dillard received the Volkswagen warranty booklet and a folder in which the warranty was delivered, entitled the "VW Partnership." At the time Dillard purchased the automobile, he said, he thought it would be reliable and safe.
Dillard purchased the automobile from Southern States Collections, the then authorized Volkswagen dealer in Montgomery, which was succeeded by Parks Imports, Inc., as the local Volkswagen dealer. In April 1990, while Dillard's automobile was still under warranty, Parks Imports closed, leaving no Volkswagen dealership in Montgomery. Subsequently, Volkswagen appointed Jack Ingram Motors as its Volkswagen dealer, but kept this information from Dillard, even though his automobile was still in warranty and needed repairs. During the first year Dillard owned the automobile, he turned the automobile in for repair from 12 to 14 times. Repair reports indicate that he turned the automobile in on 21 occasions during the first year and a half. On one occasion, the automobile was kept for two months. Altogether, as of the date of the trial, the automobile had been in the shop for mechanical repairs for a period of four months. Not only had Dillard spoken with numerous people in the local Volkswagen dealerships and with Volkswagen's own representative about the problems with the automobile, but he had also written Volkswagen.
Dillard experienced "a hesitation, stalling, jerking problem" with the car and also "a grinding noise in the gear shift." There was no pattern to the loss of power, hesitation, and stalling problems. According to Dillard, the jerking problem, which occurs in every gear, suggests that there is "air or water in the gas line."
Although he had turned the automobile in for repairs, these problems continued. Because the automobile "cut off" and "stopped" when he pulled out in front of *1303 oncoming traffic, he had to make allowances for the possibility that the automobile might not accelerate properly. On occasion, when the car "died," Dillard could not get it to crank and was forced to push the automobile out of the street until the automobile reached normal operating temperatures oftentimes, he had to wait as long as 15 or 20 minutes. The automobile broke down one night and he had to walk home, the walk taking approximately three hours.
In addition to the problems heretofore discussed, the automobile also had a problem that caused white or light blue smoke to come out of the exhaust. The severity of the problem varied, but, at its worse, Dillard described the problem as follows:
When the automobile was smoking badly and was stopped at a light, it filled with smoke, which Dillard tried to combat by opening the window and vents and by turning on the air conditioner "full blast." There was no way to predict when the smoking problem was going to occur.
The automobile did not idle properly it would race, slow down, and then race. The automobile had a sun roof that leaked when it rained, so that Dillard used plastic to try to keep the rain out.
Dillard contends that the automobile's "stalling, cutting off, [and] losing power in the face of on coming traffic has caused him anxiety, embarrassment, and anger"; that "He has had near misses in driving his car as a result of its loss of power"; and that "When that happens it frightens him." Dillard also contends that the automobile's performance caused him frustration and disappointment and that the automobile had not been reliable or dependable, had put his life in jeopardy, had not provided him with safe transportation, and had caused him to worry. In fact, according to Dillard, it is the worst situation that he has ever been in in his life.
A Volkswagen representative testified that automobile owners have more emotional attachment to new cars than to used ones; that the situation he observed concerning the automobile's hesitation would have frustrated him; that he had no doubts about the legitimacy of the "stack full" of complaints about the performance of the automobile; that he agreed Dillard had some reason for questioning the durability and reliability of this particular automobile; and that Dillard's ownership of the automobile had been anything but pleasurable for a good portion of the time. In fact, with respect to the claim found in the VW brochure on the 1987 Volkswagen Scirocco that "[a] nationwide network of authorized Volkswagen dealers stands" behind the car, Volkswagen's representative testified that that "hasn't been the reality of the situation here."
Specifically, the Volkswagen representative testified as follows:
"FAHRVERGNÜGEN,"[1] THIS WAS NOT.
Although the general rule in Alabama is that mental anguish is not a recoverable *1304 element of damages arising from breach of contract, this Court has traditionally recognized the following exception to the rule:
B & M Homes, Inc. v. Hogan, 376 So. 2d 667, 671 (Ala.1979) (citations omitted) (emphasis added), quoting F. Becker Asphaltum Roofing Co. v. Murphy, 224 Ala. 655, 657, 141 So. 630, 631 (1932), which was quoted in Stead v. Blue Cross-Blue Shield of Alabama, 346 So. 2d 1140, 1143 (Ala. 1977).
These cases have not required mental anguish to be corroborated by the presence of physical symptoms. Rather, the only requirement in such cases is the presentation of evidence of mental anguish. Thereafter, the question of damages for mental anguish becomes a question of fact for the jury to decide. B & M Homes, Inc., supra. For actions on contracts for the repair or construction of houses or dwellings or the delivery of utilities thereto, where the breach affected habitability, see Orkin Exterminating Co. v. Donavan, 519 So. 2d 1330 (Ala.1988); Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297 (Ala.1987); Alabama Power Co. v. Harmon, 483 So. 2d 386 (Ala.1986); B & M Homes, Inc. v. Hogan, supra; Alabama Water Service Co. v. Wakefield, 231 Ala. 112, 163 So. 626 (1935); Becker Roofing Co. v. Pike, 230 Ala. 289, 160 So. 692 (1935); F. Becker Asphaltum Roofing Co. v. Murphy, supra; Hill v. Sereneck, 355 So. 2d 1129 (Ala.Civ.App. 1978); for actions on contracts of carriage, see Nashville C.S.L. Ry. v. Campbell, 212 Ala. 27, 101 So. 615 (1924), and for contracts to provide special accommodation, see Pullman Co. v. Meyer, 195 Ala. 397, 70 So. 763 (1915); and for actions on a physician's breach of contract to deliver a baby, thereby causing the mother to deliver a stillborn child, see Taylor v. Baptist Medical Center, Inc., 400 So. 2d 369 (Ala.1981).
In general, the Court has never applied this exception to the sale of a new automobile, so there is no precedent in Alabama for the recovery of damages for mental anguish resulting from a breach of contract or warranty in the sale of a new car. See Ford Motor Co., Inc. v. Phillips, 551 So. 2d 992 (Ala.1989).[2]
In the instant case, we are asked to widen the breach in the general rule beyond its present limits so as to allow the recovery of damages for mental anguish in a breach of warranty action involving the sale of a new automobile. Although the parties argue whether the facts of this case fit within the exception to the general rule as heretofore stated, because this case involves the sale of an automobile, we must examine this case in light of the Uniform Commercial Code, Article 2, Ala.Code 1975, § 7-2-101 et seq., dealing with sales, for *1305 guidance as to the proper measure of damages.[3]
The measure of damages for breach of warranty in the sale of goods is set forth in § 7-2-714(2), (3):
Section 7-2-715 reads, in pertinent part, as follows:
The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. If possible, the intent of the legislature should be gathered from the language of the statute itself. However, if the statute is ambiguous or uncertain, the Court may consider conditions that might arise under the provisions of the statute and examine the results that will flow from giving the language in question one particular meaning rather than another. John Deere Co. v. Gamble, 523 So. 2d 95, 96-97 (Ala.1988), quoting from Clark v. Houston County Comm'n, 507 So. 2d 902, 903-04 (Ala.1987).
The language of the above-cited sections is not ambiguous. Rather, the legislature expressly stated that it did not intend to limit "the seller's liability for damages for injury to the person in the case of consumer goods" and emphasized that such "[d]amages in an action for injury to the person [was to] include those damages ordinarily allowable in such actions at law."
Therefore, in order to resolve the issue before us, we must determine what the legislature intended by the words "injury to the person," as they relate to an award of damages for breach of warranty.
Black's Law Dictionary 786 (6th ed. 1990). (Emphasis added.)
Black's Law Dictionary 985-86 (6th ed. 1990). (Emphasis added.) (Citation omitted.)
When we researched further, looking to the section of the Alabama digest entitled "MEASURE OF DAMAGES (A) INJURIES TO THE PERSON," as it relates to contract and tort law, we found that the cases that are cited specifically therein allow for damages not only for physical injury but also for mental suffering. See 7A, Alabama Digest, Key nos. 95, 102.
Furthermore, over 75 years ago, in Vinson v. Southern Bell Telephone & Telegraph Co., 188 Ala. 292, 304-05, 66 So. 100, 103 (1914), the Court, in effect, explained what constituted "injury to the person" so as to justify an award of damages:
(Emphasis added.)
In addition, as previously stated, although Alabama historically did not allow the recovery of damages for mental distress where there was no accompanying physical injury, we have now adopted the rule that recovery may be had for mental suffering without the presence of physical injury, concluding in 1981 in Taylor v. Baptist Medical Center, supra, at 374, that "to continue to require physical injury ... would be an adherence to procrustean principles which have little or no resemblance to medical realities." (Emphasis added.) Consistent with the conclusion in Taylor v. Baptist Medical Center, consistent with contract and tort law in Alabama where damages for injury to the person are allowed for both physical injury and for mental anguish, and based on the express language of the UCC allowing damages for injury to the person in the case of a breach of warranty to include those damages ordinarily allowable in such actions at law, we do not interpret the UCC as restricting damages for breach of warranty for injury to the person solely to physical injury. Rather, we interpret that language as allowing *1307 the jury to award such damages for mental anguish as it, in its sound judgment and discretion, determines would reasonably and fairly compensate the person for the mental anguish suffered.
Therefore, in the instant case, based on the undisputed facts, which evince a breach of warranty that caused Dillard to suffer anxiety, embarrassment, anger, fear, frustration, disappointment, and worry (not to mention the undisputed facts that the automobile has not been reliable or dependable and has not provided him with safe transportation); and based on our conclusion that the intent of the legislature, when it provided for an award of damages for injury to the person for breach of warranty, was that those damages include not only damages to compensate for physical injury, but also damages to compensate for mental anguish, we conclude that the trial court properly charged the jury that it could award damages for mental suffering in an action for breach of a warranty given on the sale of a new car.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and INGRAM, JJ., concur.
KENNEDY, J., concurs in the result.
[1] "Fahr" comes from "fahren," which means "to drive" or "to ride," and Vergnügen means "pleasure, enjoyment; fun; entertainment." Langenscheidt's New College German Dictionary 185, 570 (1973).
[Reporter of Decisions' note: The word "Fahrvergnügen," suggesting the pleasure of driving, and particularly the pleasure of driving a German-engineered automobile, was the theme of an extensive Volkswagen advertising campaign being conducted at the time this opinion was released.]
[2] We must note at this point that the Phillips opinion could be misconstrued as setting such a precedent. See briefs of Dillard and Volkswagen; see, also, C. Gamble, Alabama Law Of Damages, § 35-18 (2d ed. 1990 Supp.) However, a close reading of that case, in light of a clear understanding of the resolution of the issues in Ford Motor Co. v. Burkett, 494 So. 2d 416 (Ala.1986) (the case on which this Court based its holding in Phillips), evinces an irreconcilable inconsistency in the two. It appears that the Court in Phillips addressed the issue of damages for mental anguish as it related to the breach of warranty claim, but then resolved the issue of such damages on the authority of Burkett, in which the trial court found evidence of misrepresentation and thus allowed an award of damages for mental anguish. Therefore, we find Phillips to be of no precedential value to the issue before us. However, even though we question the legal reasoning used by the Court in resolving the issue in Phillips, in light of our holding in the instant case, the result reached in Phillips was nonetheless correct.
[3] The exclusive remedy provided by the usual new vehicle contract is repair or replacement of the defective parts. Whatever the engineering difficulty is that makes an automobile a "lemon," no amount of repair or replacement is adequate to solve the problem; thus the exclusive remedy fails, and the UCC remedies prevail. Riley v. Ford Motor Co., 442 F.2d 670 (5th Cir. 1971); C. Gamble, Damages, § 35-3. In other words, where, because of the circumstances, an apparently fair and reasonable limitation or exclusive remedy fails in its purpose or operates to deprive either party of the substantial value of the bargain, that part of the agreement must give way to the general remedies provided by the UCC. See Bishop v. Sales, 336 So. 2d 1340 (Ala.1976); see, also, Volkswagen of America, Inc. v. Harrell, 431 So. 2d 156 (Ala.1983); Winchester v. McCulloch Bros. Garage, 388 So. 2d 927 (Ala.1980); C. Gamble, Damages, § 35-3. In addition, any limitation or exclusion of consequential damages for injury to the person is prima facie unconscionable. Section 7-2-719(3). | March 8, 1991 |
23dcf057-3bcf-40ee-8744-2d57bd9108d2 | Weaver v. Hood | 577 So. 2d 440 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 440 (1991)
Anthony Carl WEAVER
v.
Issac HOOD, et al.
89-1837.
Supreme Court of Alabama.
February 22, 1991.
Rehearing Denied March 22, 1991.
*441 Anthony Carl Weaver, pro se.
Charles M. Allen II, Asst. Atty. Gen., and Stacey Houston, Asst. Atty. Gen., for appellees.
ALMON, Justice.
Anthony Carl Weaver, an inmate in the custody of the Department of Corrections ("D.O.C."), appeals, pro se, from the dismissal of a complaint he filed against the Board of Adjustment ("the Board"), a number of D.O.C. officials and employees, and two other inmates.[1] In his complaint, Weaver alleged that the two inmate-defendants, Issac Hood and Edward Preers, had assaulted him. Although Weaver's complaint was inartfully drafted, it appears that he alleged that the D.O.C. defendants were under a duty to ensure his personal safety and that they violated that duty by allowing Hood and Preers to assault him. Finally, he alleged that the Board was the "subrogor" of injuries inflicted by inmates on inmates and thus was liable for his injuries. Weaver's complaint was styled as a "Complaint for Assault." The trial court dismissed it, stating:
Before filing his complaint in the state court, Weaver filed an action pursuant to 42 U.S.C. § 1983 in the federal district court for the Middle District of Alabama. That action arose from the same facts as those giving rise to Weaver's subsequent "assault" complaint, and the named defendants were substantially identical. There is no indication that Weaver attempted to *442 include his state law claims with his § 1983 action.
The trial court's dismissal appears to have been based on the prohibition against splitting a cause of action, codified at Ala. Code 1975, § 6-5-440:
(Emphasis added.)
The phrase "courts of this state," as used in § 6-5-440, includes all federal courts located in Alabama. Ex parte Canal Ins. Co., 534 So. 2d 582, 584 (Ala.1988). This Court has consistently refused to allow a person to prosecute an action in a state court while another action on the same cause and against the same parties is pending in a federal court in this State. Canal Ins., supra; Century 21 Preferred Properties, Inc. v. Alabama Real Estate Comm'n, 401 So. 2d 764 (Ala.1981). That principle has been applied where, as in the instant case, the separate actions involved both common law theories of recovery and theories of recovery peculiar to federal law. Century 21, supra. The rationale behind the application of the prohibition against splitting a cause of action in such cases is based on the recognition that federal law theories and state law theories are often parallel grounds for relief as to the same wrongful acts or disputes. Century 21, 401 So. 2d at 769.
When there is a single wrongful act or dispute and that single act or dispute supports both a cause of action under state law and a cause of action under federal law, there is, nevertheless, but one wrong or dispute and one cause of action; i.e., the act or dispute will support an action in either a state court or a federal court. Terrell v. City of Bessemer, 406 So. 2d 337, 339 (Ala.1981). In such cases, the plaintiff can include his state law claims in his federal action and can request that the federal court exercise its power of pendent jurisdiction to hear both sets of claims. Terrell; Century 21, supra.
In Terrell, this Court recognized a limited exception to the general rule against splitting causes of action. In that case, the plaintiff submitted his state law claim, along with his federal claim, to the federal district court. That court, however, declined to exercise its discretionary power of pendent jurisdiction. 406 So. 2d at 339. Recognizing that the plaintiff had done all that he could to combine his state and federal claims in one proceeding, this Court held that "under the facts of [that] appeal, [the plaintiff] should be afforded an opportunity to pursue his alleged common law theories of recovery in state court." Id.
Weaver urges this Court to apply the exception recognized in Terrell and reverse the dismissal of his complaint. Although he does not claim to have presented his common law claims to the federal court, as did the plaintiff in Terrell, he argues that to do so would have been pointless, because, he contends, the federal court had no jurisdiction to hear his state law claims. We do not agree. Our research reveals numerous § 1983 cases where federal district courts exercised pendent jurisdiction to hear a variety of state law claims. See, e.g., Revene v. Charles County Commissioners, 882 F.2d 870 (4th Cir.1989); Durso v. Rowe, 579 F.2d 1365 (7th Cir.1978), cert. denied, 439 U.S. 1121, 99 S. Ct. 1033, 59 L. Ed. 2d 82 (1979); Colaizzi v. Walker, 542 F.2d 969 (7th Cir.1976), cert. denied, 430 U.S. 960, 97 S. Ct. 1610, 51 L. Ed. 2d 811 (1977); Curtis v. Everette, 489 F.2d 516 (3rd Cir.1973), cert. denied, Smith v. Curtis, 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774 (1974); Montgomery v. City of Chicago, 670 F. Supp. 230 (N.D.Ill.1987).
Because Weaver did not present his state law claims in his federal action, he is not entitled to the limited exception to the prohibition against splitting causes of action set out in Terrell, supra. Therefore, the *443 dismissal of his complaint was proper, and the trial court's judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] The appellees have not filed briefs in this appeal. | February 22, 1991 |
4d681e4c-192e-4b7b-b024-845c84ddeecd | Black v. Baptist Medical Center | 575 So. 2d 1087 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1087 (1991)
James M. BLACK III
v.
BAPTIST MEDICAL CENTER, et al.
89-831.
Supreme Court of Alabama.
February 22, 1991.
Kenneth W. Mastrilli and Richard A. Bokor, Tampa, Fla., for James M. Black III.
Joe Espy III of Melton, Espy & Williams, Montgomery, for appellees Baptist Medical Center and Nurses Casey, Jackson and Jones.
Walter W. Bates and Silas G. Cross, Jr. of Starnes & Atchison, Birmingham, for appellee Josiah F. Reed, M.D.
Tabor R. Novak, Jr. and Joana S. Ellis of Ball, Ball, Matthews & Novak, Montgomery, for appellee Barry M. Stuman, M.D.
ALMON, Justice.
The plaintiff, James M. Black III, appeals from a summary judgment entered in favor of the defendants, Baptist Medical Center, Montgomery ("BMC") and a number *1088 of professional associations, physicians, and nurses,[1] in Black's action filed pursuant to Ala.Code 1975, §§ 6-5-480 et seq., the Alabama Medical Liability Act. The only issue presented is whether Black's action was properly commenced within two years of the alleged act, omission, or failure that gave rise to his claims, as required by Ala.Code 1975, § 6-5-482.
The acts complained of by Black allegedly occurred on November 15 or November 18, 1985, while he was a patient at BMC. An attorney licensed to practice law in Florida, Kenneth W. Mastrilli, submitted a complaint to the circuit court on Black's behalf on November 12, 1987, within the statutory period of limitations. However, Mastrilli was not licensed to practice law in Alabama and had not been admitted pro hac vice at the time the complaint was submitted. As a result, the defendants moved for summary judgment, arguing that Black's complaint had not been properly filed within the applicable statute of limitations. Mastrilli was notified of a hearing date that was set for that motion, but he did not appear. The defendants' motion was granted, and Black appeals.
The procedure for authorizing a nonresident attorney to appear in an Alabama court pro hac vice is set out in Rule VII, Rules Governing Admission to the Alabama State Bar:
Although Mastrilli did submit, along with Black's complaint, a motion to appear pro hac vice, that motion was not accompanied by a letter of introduction and recommendation to the circuit court from a member of the Board of Commissioners of the Alabama State Bar. Nor did a member of the board personally introduce and recommend Mastrilli to the court. Therefore, the motion did not comply with the requirements of Rule VII, and Mastrilli was not authorized to practice law in Alabama at the time he submitted Black's complaint. Herndon v. Lee, 281 Ala. 61, 199 So. 2d 74 (1967); Paul v. State, 48 Ala.App. 396, 265 So. 2d 180 (Ala.Crim.App.), cert, denied, 288 Ala. 747, 265 So. 2d 185 (1972). As a result of Mastrilli's failure to comply with the mandatory language of Rule VII, the complaint was a nullity and Black's action was not commenced within the applicable statute of limitations.
We note that an attorney licensed to practice law in Alabama filed a notice of appearance on Black's behalf on January 8, 1988, approximately two months after the statute of limitations had expired. That appearance did not cure the ineffective filing of Black's complaint. That licensed attorney later withdrew from the case.[2] In addition, Mastrilli finally submitted a letter of introduction and recommendation to the court from a member of the Board of Commissioners, as required by Rule VII, on May 16, 1988, approximately six months after the statutory limitations period had expired. However, neither of those events can be considered to "relate back" to the date on which Mastrilli originally filed his motion, and they cannot revive Black's action. A plaintiff's failure to properly commence an action within the time prescribed by the legislature is, as a general rule, *1089 fatal to his suit, and no court should excuse his delay. Plant v. R.L. Reid, Inc., 294 Ala. 155, 313 So. 2d 518 (1975).
Finally, Black argues that his case should not have been disposed of because his attorney failed to adhere to "a minor[,] technical[,] local rule of court." He contends that such a result would be unfair. While this Court sympathizes with Black's predicament, we do not agree with his characterization of Rule VII. The regulation of the admission of attorneys to practice before Alabama courts is a matter of great concern to the State and to this Court. Rules effecting such regulation cannot be considered minor. In addition, Rule VII is neither hypertechnical nor overburdensome; it sets out a fair procedure for ensuring that only properly qualified attorneys in good standing represent clients in our courts. Finally, we note that Florida, the state in which Mastrilli is licensed, has a rule similar to our Rule VII. See Article 2, subdivision 2, Integration Rules of the Florida Bar.
Because Black failed to properly commence his action within the applicable twoyear period of limitations, the trial court correctly entered the defendants' summary judgment. That judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Black's complaint named BMC, 12 professional associations, 13 physicians, and 4 registered nurses as defendants. Some of those defendants were voluntarily dismissed. Because this appeal involves only a procedural issue, those defendants will not be listed.
[2] A second Florida attorney has attempted to join Mastrilli as co-counsel, but despite his filing of a motion to appear pro hac vice, has made no other effort to comply with Rule VII. | February 22, 1991 |
d26d1852-b049-4b6e-ad60-acc1a6fca6f5 | Howell v. Cook | 576 So. 2d 227 | N/A | Alabama | Alabama Supreme Court | 576 So. 2d 227 (1991)
Sharon HOWELL, individually and as next friend of Robert Shane Rhodes
v.
Barry C. COOK and Carol L. Cook.
89-1363.
Supreme Court of Alabama.
March 1, 1991.
*228 David Gespass of Gespass, Johnson & Izzi, Birmingham, and Sarah Summerville, Irondale, for appellant.
Mark B. Boardman and Susan A. Smith of Porterfield, Harper & Mills, Birmingham, for appellees.
SHORES, Justice.
Sharon Howell, individually and as the next friend of Robert Shane Rhodes, appeals from a summary judgment for Barry and Carol Cook on Howell's claim of negligence. We affirm.
Viewed most favorably toward Howell, the supporting deposition sets out the following facts: Robert Shane Rhodes (hereinafter "Shane") and a friend of his offered to mow the Cooks' lawn. Carol Cook agreed, and a price was arranged, with the provision that Shane and his friend use their own lawnmowers and gasoline.
Shane was not wearing shoes as he mowed, and had stepped on numerous overripe peaches that had fallen from a nearby peach tree; while mowing a steep incline in the backyard of the Cook's house, Shane stepped on a hard, green peach. He lost his balance and fell; his foot slipped under the lawnmower and his foot was injured.
Howell filed the complaint on May 16, 1989; the Cooks answered on July 26, 1989. The Cooks also filed a motion for summary judgment, which was granted on April 24, 1990.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter 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. Rule 56, RNH, Inc. v. Beatty, 571 So. 2d 1039 (Ala.1990). In determining if summary judgment is proper, the trial court must view the motion in a light most favorable to the nonmovant, and, in reviewing a summary judgment, this Court is limited to reviewing the factors and evidence considered by the trial court when it granted the motion. Turner v. Systems Fuel, Inc., 475 So. 2d 539 (Ala. 1985).
Rule 56 is to be read in conjunction with the "substantial evidence rule" for actions filed on or after June 11, 1987. See § 12-21-12, Alabama Code 1975, and Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Therefore, in order to defeat a properly supported motion for summary judgment, Howell must present "substantial evidence," i.e., "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). Howell has failed to present substantial evidence that the Cooks breached any duty owed to Shane.
Shane was a business invitee on the Cooks' property, a fact admitted by both parties. Therefore, the Cooks owed Shane a duty to exercise reasonable care in maintaining their premises in a reasonably safe condition; but "the owner of the premises in such cases is not the insurer of the safety of his invitees and res ipsa loquitur is not applicable. Neither is there any presumption of negligence arising out of the mere fact of injury to the invitee." Bogue v. R & M Grocery, 553 So. 2d 545, 547 (Ala.1989), citing Shaw v. City of Lipscomb, 380 So. 2d 812, 814 (Ala.1980). For there to be any recovery for damages, it must be proven that Shane's fall resulted from a defect or instrument on the Cooks' lawn that was the result of their negligence and was something the Cooks had, or should have had, notice of at the time of the accident. Shaw, 380 So. 2d at 814.
This case is factually similar to Shaw v. City of Lipscomb. In Shaw, the plaintiff sought damages for injuries sustained when she slipped and fell in a city park on sweet gum balls that had fallen from a nearby tree. We said:
380 So. 2d at 815.
Just as it is natural and normal to find sweet gum balls under a sweet gum tree, so is it natural and normal to find peaches under a peach tree. As the plaintiff in Shaw could not expect the city to keep the ground under the sweet gum tree free and clean of all sweet gum balls all the time, Howell could not expect the Cooks to keep their grounds free of peaches. The Cooks violated no duty by not cleaning their yard of all the peaches found underneath the peach tree.
In Sutton v. Mitchell Co., 534 So. 2d 289 (Ala.1988), we noted that "`An invitor is not liable for injuries to an invitee resulting from a danger which was known to the invitee or which should have been observed by the invitee in the exercise of reasonable care.'" 534 So. 2d at 290, quoting Quillen v. Quillen, 388 So. 2d 985, 989 (Ala.1980). The record clearly reflects that Shane knew of the peaches, that the peaches were on the ground when he began cutting the yard, that he had stepped on several peaches prior to the accident (including some that he could not see), and that he was not paying attention to the peaches that might have been on the ground in front of him. Shane was fully aware of the peaches and of the fact that some were lying on the ground.
For the reasons stated, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | March 1, 1991 |
2cb7232a-a742-4f2a-a90d-1c0a86bbbe58 | Strickland v. General Motors | 578 So. 2d 1275 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1275 (1991)
Janice STRICKLAND
v.
GENERAL MOTORS ACCEPTANCE CORPORATION.
89-719.
Supreme Court of Alabama.
April 26, 1991.
Mac Borland, Jr., Dothan, for appellant.
William G. Hause and Charles D. Decker of Hardwick, Hause & Segrest, Dothan, for appellee.
ALMON, Justice.
Janice Strickland appeals from a judgment based on a directed verdict entered in favor of General Motors Acceptance Corporation ("GMAC") in an action arising from GMAC's repossession of her pickup truck. The question presented is whether the trial court correctly construed provisions in GMAC's retail installment sale contract that purportedly gave GMAC the right to repossess the truck.
In August 1988 Janice purchased a 1988 Chevrolet pickup truck from a dealership in Dothan. She planned to use the truck on her chicken farm. That purchase was financed by GMAC. Although the bill of sale from the dealership designated Janice as the sole owner of the truck, the certificate of title named both Janice and her husband, Gene, as the owners, because Gene co-signed Janice's note with GMAC. GMAC was listed on the certificate of title as a lienholder.
Gene had been convicted of a felony in 1987 but was not in custody at the time of the truck purchase because his appeal from that conviction was pending.[1] Gene's conviction was affirmed, and after the purchase he was ordered to report to the authorities. Part of the penalty assessed against him was a fine and court costs, a total indebtedness of $26,544. It appears that he was not able to pay that debt when he reported to the authorities, and, as a result, the circuit court issued a writ of execution ordering the Covington County Sheriff's Department to seize "any real or personal property" owned by Gene. Pursuant to that writ, the sheriff seized various items of personal property belonging to him, including the truck.[2]
GMAC learned that the truck had been seized, and on October 11, 1988, repossessed *1276 it while it was in the custody of the sheriff. A repossession report prepared by GMAC's agent stated that the reason for the repossession was not "because of [missed] payments," but because the truck had been "confiscated by [the] sheriff." The report also indicated that Janice was not notified of the repossession "immediately prior to repossession." After it repossessed the truck, GMAC sold it at an automobile dealer's auction.
Janice filed a complaint against GMAC, alleging that the corporation had breached its contract with her by repossessing the truck despite the fact that her payments were current; that it had converted the truck to its own use; and that it had disposed of the truck in a commercially unreasonable manner. GMAC filed a counterclaim, wherein it sought to recover the $898 balance on the note that it alleged was still outstanding after the sale of the truck. A trial was held, and at the close of the evidence the court directed a verdict in GMAC's favor on all of the counts in Janice's complaint. GMAC's counterclaim was dismissed without prejudice. Janice appeals from the directed verdict on her breach of contract and conversion claims, arguing that the court's construction of provisions in the retail installment sale contract was erroneous.[3]
At the outset, we note that the decision whether to grant a motion for a directed verdict is not within the discretion of the trial court. Thus, no presumption of correctness attends a ruling on such a motion. Zaharavich v. Clingerman, 529 So. 2d 978, 980 (Ala.1988). This Court's function, when reviewing such a ruling, is to view the entire evidence, and all reasonable inferences that could be drawn therefrom, in a light most favorable to the nonmoving party. Caterpillar Tractor Co. v. Ford, 406 So. 2d 854 (Ala.1981).
The language from the contract that gives rise to this dispute is reproduced below:
(Emphasis added.) A subsequent clause in the contract gave GMAC the right to repossess the truck if the buyer breached any agreement set out in the contract.
A representative of GMAC testified that the contract signed by Janice and Gene was a standard financing contract. He also testified that GMAC repossessed the truck because it considered the seizure of the truck by the sheriff to be "misuse." That testimony was consistent with the entries on GMAC's repossession report that indicated that the truck had been repossessed because of its confiscation by the sheriff.
When construing the contract, the trial judge held that the contract was an adhesion contract, i.e., a standard form contract that did not allow the buyer to bargain with GMAC regarding any of its terms. In addition, he held that because the contract had been drafted by GMAC, any ambiguities in it would be resolved against GMAC. Those holdings appear to be correct, see S. Williston, Williston on Contracts § 626, at 4:855-57 (3d ed. 1961), and have not been challenged by the parties to this appeal.
The trial judge went on to hold that despite the testimony from GMAC's witness, the phrase "misuse or confiscation" was ambiguous and could not serve as a basis for repossession in this case.[4] However, he then held that the phrase "You agree not to ... sell, rent, lease or otherwise transfer any interest in the vehicle" was not ambiguous, and that the term "transfer" included involuntary transfers *1277 of interest, such as the seizure by the sheriff pursuant to the writ of execution. He held that because the contract made no distinction between voluntary and involuntary transfers, the sheriff's seizure of the truck was a "transfer of [an] interest in the vehicle" by Janice that constituted a sufficient breach of the contract to support GMAC's repossession.
After reviewing the contract, this Court concludes that the trial judge's construction conflicted with certain rules for construing contractual terms. First, although we agree that the words "sell," "rent," and "lease" are unambiguous, we do not agree that the phrase "otherwise transfer" is susceptible of only one meaning. For example, there have been many decisions holding that the term "transfer" connotes a voluntary change of title. See, e.g., Mahoney v. United States, 831 F.2d 641 (6th Cir.1987), cert. denied, 486 U.S. 1054, 108 S. Ct. 2820, 100 L. Ed. 2d 922 (1988); Major Realty Corp. v. C.I.R., 749 F.2d 1483 (11th Cir.1985); National City Bank of New York v. Garzot, 83 F.2d 476 (1st Cir.), cert. denied sub nom., National City Bank of New York v. Fernandez, 299 U.S. 586, 57 S. Ct. 110, 81 L. Ed. 431 (1936); United States v. Firestone Tire & Rubber Co., 518 F. Supp. 1021 (N.D.Ohio 1981); and Giguere v. Morrisette, 142 Me. 95, 48 A.2d 257 (1946). However, in the specialized area of bankruptcy law, the term encompasses both voluntary and involuntary changes in ownership or possession. In re Pouncey, 59 B.R. 615 (Bankr.M.D.Ala. 1986); 11 U.S.C. § 101(50) (1986). Because that phrase is ambiguous and because GMAC drafted the contract, the phrase must be construed against GMAC. United States Fidelity & Guar. Co. v. Mason & Dulion Co., 274 Ala. 202, 145 So. 2d 711 (1962). This rule of construction is not harsh, "[s]ince one who speaks or writes, can by exactness of expression more easily prevent mistakes in meaning than one with whom he is dealing." Williston, § 621 at 4:760. By construing the term "otherwise transfer" to include involuntary, as well as voluntary, transfers, the court construed the phrase most strongly against Janice.
Additionally, courts do not favor constructions of contract terms or agreements that lead to a forfeiture. North Carolina Mut. Life Ins. Co. v. Terrell, 227 Ala. 410, 150 So. 318 (1933). A contract should be given a reasonable meaning that is equitable to the parties and that does not give one of them an unfair or unreasonable advantage over the other. Williston, § 620 at 4:751.
Finally, by construing the phrase "otherwise transfer" to include involuntary transfers, the court ignored the maxim noscitur a sociis, i.e., the principle that the meaning of words may be indicated or controlled by those with which they are associated. Nettles v. Lichtman, 228 Ala. 52, 152 So. 450 (1934). The inclusion of the prohibition against "otherwise transfer[ring]" the vehicle in the same sentence with the prohibitions against the plainly voluntary actions of "sell[ing], rent[ing], [or] leas[ing]," gives rise to the reasonable construction that that phrase prohibits only voluntary "transfers."
Reviewing Janice's contract with GMAC with these rules of construction in mind, this Court concludes that the trial court's construction was erroneous. For the reasons stated, we hold that the trial court's directed verdict for GMAC on Janice's breach of contract claim was error. Because the court's subsequent entry of a directed verdict on her conversion claim was predicated on its erroneous finding that the repossession was authorized by the terms of the contract, the judgment as to that claim is also due to be reversed. The judgment is reversed and the cause is remanded. We point out, however, that our decision is based solely on the issues presented in the parties' briefs as they relate to the trial judge's stated reasons for the directed verdict.
REVERSED AND REMANDED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Janice had not been implicated in Gene's criminal conduct.
[2] Janice has not alleged that the sheriff's seizure of the truck was improper.
[3] Janice has not appealed the judgment against her claim that GMAC sold the truck in a commercially unreasonable manner.
[4] The trial judge stated that the term "misuse" suggested physical abuse, and that the term "confiscation" probably applied only in cases where the vehicle had been seized because it had been used in, or was the fruit of, criminal activities. | April 26, 1991 |
b7ffc8f2-331c-4364-b7b0-e7242f272cee | Ex Parte Brown | 581 So. 2d 436 | N/A | Alabama | Alabama Supreme Court | 581 So. 2d 436 (1991)
Ex parte Willie James BROWN, Jr.
(Re Willie James Brown v. State).
89-1199.
Supreme Court of Alabama.
February 15, 1991.
Rehearing Denied April 5, 1991.
John C. Brutkiewicz, Mobile, for petitioner.
Don Siegelman, Atty. Gen., and Gilda B. Williams, Asst. Atty. Gen., for respondent.
KENNEDY, Justice.
Willie James Brown, Jr., was convicted of first degree robbery and was sentenced to 20 years in the state penitentiary. The Court of Criminal Appeals affirmed the conviction. 564 So. 2d 104. We granted the writ of certiorari to review his contention that the trial court erred in giving the following jury charge:
Brown contends that with this charge the trial judge inadvertently, but impermissibly, commented on the evidence and invaded the province of the jury as factfinder. Brown contends that the trial judge summarized the State's evidence and that he then told the jury to return a verdict based on his factfinding summary of the State's evidence; that by the trial judge's stating his version of the evidence twice, both times from the State's position, when there was evidence to directly contradict virtually every point of the State's contentions, the trial judge impliedly advocated to the jury the State's version of the facts of the case; and that the charge amounted to a general affirmative charge, which, when there is any conflict in the evidence, it is error for the trial court to give.
We agree that the trial court, however inadvertently, did comment on the evidence in its charge to the jury and that it erred in doing so. The trial court's summary of only the State's evidence amounted to a factual determination, which properly is left for the jury to decide without judicial advice on what facts should be found; furthermore, the trial court's delivery of its summation of only the State's evidence could reasonably have been taken to advocate the State's version of the evidence. Ala.Code 1975, § 12-16-11; Williams v. State, 520 So. 2d 179 (Ala.Cr.App.1987); Jones v. State, 488 So. 2d 48 (Ala.Cr.App. 1986); Pease v. City of Montgomery, 333 So. 2d 221 (Ala.Cr.App.1976).
Moreover, the charge was effectively a general affirmative charge, which stated, in effect, that if the jury believed the State's evidence, then it should convict Brown. See, e.g., Austin v. State, 555 So. 2d 324 (Ala.Cr.App.1989). "Such a charge should rarely, if ever, be given, for it tends to imply that the State's evidence should be given more weight and credence than the defendant's evidence." Austin, at 328. Although the error in giving an affirmative charge can be harmless or can be cured by corrective actions taken elsewhere by the trial court in the overall charges to the jury, Austin, at 328-29, Harris v. State, 412 So. 2d 1278 (Ala.Cr.App.1982), we find that in this case the trial court's overall charge to the jury did not render the error harmless and did not cure the error.
The judgment of the Court of Criminal Appeals is reversed and this cause is remanded for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS and INGRAM, JJ., concur.
HOUSTON, J., concurs in the result.
STEAGALL, J., dissents. | February 15, 1991 |
2170bf33-f19c-48cb-940a-5e6ff7835970 | Stewart MacH. and Eng'g Co. v. Checkers Drive in Restaurants | 575 So. 2d 1072 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1072 (1991)
STEWART MACHINE AND ENGINEERING COMPANY, INC.
v.
CHECKERS DRIVE IN RESTAURANTS OF NORTH AMERICA, INC., and Maidee G. Youngblood.
89-1000.
Supreme Court of Alabama.
February 15, 1991.
*1073 James L. O'Kelley of Arendall & O'Kelley, Birmingham, for appellant.
Richard L. Vincent of Vincent, Hasty, Arnold & Whaley, Birmingham, for appellees.
STEAGALL, Justice.
The plaintiff appeals from a summary judgment in favor of defendants Checkers Drive In Restaurants of North America, Inc., and Maidee G. Youngblood (hereinafter together referred to as "Checkers"). The only issue raised on appeal is whether the plaintiff, Stewart Machine and Engineering Company, Inc. (hereinafter "Stewart"), a foreign corporation, can bring suit and recover damages for an alleged breach of contract when, as a foreign corporation, it had failed to qualify to do business in Alabama. The trial court held that because Stewart was an unqualified foreign corporation, it could not use the courts of Alabama to recover damages. We agree.
Stewart is a Mississippi corporation with its principal place of business in Picayune, Mississippi. It is engaged in the business of constructing prefabricated buildings and/or parts of buildings to be transported to designated locations throughout the United States and assembled according to prescribed specifications.
Checkers is a Nevada corporation qualified to do business in Alabama. It is a franchisor engaged in the business of operating and licensing third parties to utilize a fast-food restaurant system of operation under the trademark and tradename of "Checkers."
In Mississippi, on February 3, 1988, after months of negotiation, Checkers and Stewart entered into a "Building Purchase Agreement," whereby Stewart was to manufacture the parts to construct two buildings pursuant to plans and specifications provided by Checkers. The agreement also required Stewart to deliver and construct a building at a designated site in Tuscaloosa, Alabama, and another building at a site in Birmingham, Alabama. The entire contract price reflected in the agreement is $95,261 for the two buildings.
After the buildings were completed, an inspection of the Birmingham site led to a dispute between the parties. The dispute *1074 involved Checkers's refusal to pay the balance of the contract price. Stewart sought a declaration of a materialman's lien from the judge of probate of Jefferson County against Checkers for $18,783.71.[1]
Stewart later sued Checkers to enforce the lien, as well as to recover damages for the alleged breach of contract by Checkers. In response, Checkers moved to dismiss, claiming that Stewart was a foreign corporation not qualified to do business in Alabama. The trial court ordered that the motion to dismiss be heard as a motion for summary judgment. Both parties then filed the appropriate affidavits with the trial court. On October 31, 1989, the trial court entered a summary judgment in favor of Checkers, citing Sanwa Business Credit Corp. v. G.B. (Boots) Smith Corp., 548 So. 2d 1336 (Ala.1989), as authority. Stewart appeals.
Stewart concedes that it was not qualified to do business in Alabama either at the time the contract was made or at the time performance of the contract was completed. However, Stewart claims it is immune from the effect of Alabama's "door closing" statutes because, it says, it was engaging only in interstate commerce and was therefore protected by the commerce clause in the United States Constitution.
First, we note the standard of review in summary judgment cases. For a summary judgment to be proper, there must be no genuine issue as to any material fact and the moving party must be entitled to a summary judgment as a matter of law. Rule 56(c), Ala.R.Civ.P.; Sanjay, Inc. v. Duncan Construction Co., 445 So. 2d 876 (Ala.1983).
Second, because Stewart concedes that it was not qualified to do business in Alabama at the time the contract was entered into or at the time of performance, a discussion of Alabama's "door closing" statutes is not necessary. Ala.Code 1975, § 10-2A-247(a); Art. XII, § 232, of the Alabama Constitution; and Ala.Code 1975, § 40-14-4, all bar foreign corporations not qualified to do business in Alabama from enforcing their contracts in the courts of this state. See Sanwa Business Credit Corp., supra; Green Tree Acceptance, Inc. v. Blalock, 525 So. 2d 1366 (Ala. 1988); Wallace Construction Co. v. Industrial Boiler Co., 470 So. 2d 1151 (Ala.1985); and Sanjay Inc., supra. However, businesses engaged in interstate commerce are protected by the commerce clause in the United States Constitution, U.S. Const., Art. 1, § 8, cl. 3, and are therefore immune from the effects of the "door closing" statutes. Wallace Construction Co., supra, and Johnson v. MPL Leasing Corp., 441 So. 2d 904 (Ala.1983). Additionally, we note a second exception for foreign corporations whose activities in Alabama are merely incidental to a transaction of interstate business. Wallace Construction Co., supra, and Johnson, supra.
Therefore, the focus of this case is on whether Stewart was engaged in interstate or in intrastate commerce; this issue is ultimately decided on a case-by-case basis. Green Tree Acceptance, Inc., supra, and Wallace Construction Co., supra. However, this Court has in the past held that "[a] construction contract supplying both material and labor is an example of the type of contract that is considered intrastate." Green Tree Acceptance, Inc., 525 So. 2d at 1371, citing Sanjay, Inc., 445 So. 2d at 879. This point was reiterated by this Court in Sanwa Business Credit Corp., 548 So.2d at 1341:
See, also, Green Tree Acceptance, Inc., supra, and cases cited therein.
However, not every contract that provides for labor is automatically deemed to involve intrastate commerce. In Wallace Construction Co., we held that in a contract for the sale of a complex boiler system that required the seller to supply labor for assembly, installation, adjustment, and *1075 activation of the boiler, as well as personnel training, these activities were both "necessary and incidental to the interstate sale of the boiler itself"; thus, the contract was held not to involve intrastate activity. 470 So. 2d at 1155. Nonetheless, Wallace Construction Co. is distinguishable from the case at bar. Wallace Construction Co. involved a complex system with some 300 to 400 separate parts that required approximately 300 days to assemble. Not only did the installation of the boiler require highly skilled laborers with expertise in boiler machinery, but personnel training was necessary to begin operation of the boiler. Because of the complexity involved with such a highly technical piece of machinery, supplying labor was a reasonable and appropriate incident of the sale.
In the instant case, the labor required was 1) to hire Birmingham Steel Erectors to remove the prefabricated building parts from the delivery trucks; 2) to position the building on the prepared site,[2] using a hydraulic jacking system; 3) to bolt and weld the building into place; 4) to attach all electrical wiring and test the drainage and ventilation; 5) to reattach the air-conditioning units to the building and test the system; and 6) to attach the porte-cochere, serving wings, and mounting angles to the building. The entire process required approximately four or five days of construction work. According to the contract, the "set-up charges" were made in a completely separate billing process from the manufacturing and delivery charges.
After careful review of the type of labor involved in the contract, as well as the demands of the contract itself, we are convinced that the contract between Stewart and Checkers involved more than the mere sale and delivery of materials. The construction and labor required to complete performance of the contract was substantial enough that it was not merely incidental to the sale of the structure. Although much of the construction work could be accomplished only at the site, the work was of a very general nature that could have been handled by almost any competent contractor and did not require the special expertise of Stewart. It is this element that distinguishes the Stewart-Checkers contract from the contract in Wallace Construction Co., supra.
Although we are mindful of the harshness of the rule, we conclude, based on the foregoing, that Stewart, as a nonqualified foreign corporation, should not be allowed to proceed in the Alabama court system to recover under any theory sounding in contract. Section 10-2A-247(a) has full application to the facts in this case.
Therefore, the judgment of the trial court is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur.
[1] It is not clear from the record whether Stewart obtained the lien.
[2] The site preparation was performed by an unrelated third party, O'Sullivan Construction Company. | February 15, 1991 |
99cb7a90-f5f3-4e8e-a2d6-80380c16bb35 | Fox v. HOLLAR CO., INC. | 576 So. 2d 223 | N/A | Alabama | Alabama Supreme Court | 576 So. 2d 223 (1991)
Miriam Gail Lumpkin FOX, individually and as mother and next friend of Kevin Lumpkin, a minor
v.
The HOLLAR COMPANY, INC., et al.
89-1263.
Supreme Court of Alabama.
March 1, 1991.
*224 Leon Garmon, Gadsden, for appellant.
James C. Stivender of Inzer, Suttle, Swann & Stivener, Gadsden, for appellees George Lumpkin and The Hollar Co.
Michael B. Maddox and Deborah Alley Smith of Rives & Peterson, Birmingham, for appellee Federated Mut. Ins. Co.
Eugene P. Stutts and Gary C. Smith of Spain, Gillon, Grooms, Blan and Nettles, Birmingham, for appellees Ozark Motor Lines and Joseph Stephen Eaglin.
INGRAM, Justice.
Miriam Gail Lumpkin Fox, individually and as next friend of her minor son Kevin, filed a seven-count complaint against The Hollar Company, Inc.; George Lumpkin (Kevin's father); Joseph Stephen Eaglin; Ozark Motor Lines, Inc.; and Federated Mutual Insurance Company. The action resulted from a December 21, 1987, traffic accident in which Kevin was injured while riding in a tanker truck driven by Lumpkin. The truck was owned by Lumpkin's employer, Hollar, and was insured by Federated. The truck collided with a tractor-trailer truck that had "jackknifed" in the roadway. The jackknifed truck was driven by Eaglin and was owned by Ozark Motor Lines. Both Lumpkin and Eaglin claim that a "phantom" vehicle started the sequence of events that resulted in the collision.
In her complaint, Fox alleged, among other things, that Lumpkin and Eaglin were negligent or wanton and that their negligence or wantonness caused the accident in which Kevin was injured. Fox also claimed a right to uninsured motorist insurance benefits from Federated. Prior to trial, however, Federated filed a motion for severance of the uninsured motorist claim. After both parties had presented briefs on the motion, and after a hearing on the motion, the trial court granted Federated's motion. Thereafter, the action proceeded to trial on Fox's negligence and wantonness claims. At the conclusion of the evidence, the trial court dismissed all wantonness claims, finding that Fox had presented no evidence of wantonness by any of the defendants. The jury returned a verdict *225 for the defendants, and the trial court entered a judgment on that verdict. Fox appeals.
Fox raises two issues. First, she contends that the trial court abused its discretion in severing the uninsured motorist claim from the underlying negligence action. Next, she argues that the trial court erred in submitting to the jury the question whether Kevin was a "guest" within the meaning of the Alabama guest statute, § 32-1-2, Ala.Code 1975. Fox asserts that because Kevin was under 14 years of age at the time of the accident, the trial court should have ruled that, as a matter of law, the guest statute was inapplicable.
Looking first to the severance issue, we initially note that Rule 18(c), A.R.Civ.P., makes severance mandatory where a damages claim and a liability insurance coverage question are presented in the same jury action. Furthermore, Rule 42(b) provides that the trial court may order a separate trial of a claim in furtherance of convenience or to avoid prejudice. The committee comments to Rule 42(b) indicate that the rule "gives the trial court a virtually unlimited freedom to order separate trials of claims, issues, or parties, as may seem dictated by convenience and the desire to avoid prejudice." However, the comments also indicate that separate trials are not to be granted merely because some of the parties might prefer separate trials. The same reasoning is applicable in the case of a severance.
We have previously stated that the power of the trial court to order a severance or separate trials to avoid prejudice necessarily encompasses broad discretion. Robinson v. Computer Servicenters, Inc., 360 So. 2d 299 (Ala.1978). In reviewing a ruling on a motion to sever or a motion for a separate trial, we will look only to determine whether the trial court clearly abused its discretion. Ex parte R.B. Ethridge & Assoc., Inc., 494 So. 2d 54 (Ala.1986). In Ethridge, we noted:
494 So. 2d at 58. (Emphasis supplied.)
In the case at bar, Fox asserts that she and Kevin were denied a fair trial of all of their claims against all defendants and that that denial created a prejudice that substantially outweighs any speculative prejudice to Federated by the simultaneous litigation of the uninsured motorist insurance claim against it and the underlying negligence claim against Hollar, Lumpkin, Ozark, and Eaglin. We disagree.
As noted above, the right of a party to litigate all claims in one proceeding is secondary to the overriding goal of preventing prejudice to the parties. In this case, the possibility of prejudice to Federated, had the claims against it not been severed, is clear. If the uninsured motorist claim asserted against Federated had been tried along with the claims asserted against Lumpkin and Hollar, the jury would certainly have learned of Federated's identity and the reason for its presence in the action. The jury would also have known that the Hollar truck was covered by an insurance policy that provided uninsured motorist coverage. In order to prove her claim for uninsured motorist insurance coverage, Fox would have been required to show that an insurance policy providing Hollar with uninsured motorist coverage was in existence at the time of the accident. When Fox proved the existence of insurance, the jury, either through the introduction of the policy itself, or by inference, would have learned that Federated provided Hollar with not only uninsured motorist coverage, but also with liability coverage. Therefore, the jury would have been exposed to the highly prejudicial fact that part, or all, of any judgment rendered against Hollar or Lumpkin would have been paid by Federated.
*226 Fox portrays this case as being closely analogous to Lowe v. Nationwide Ins. Co., 521 So. 2d 1309 (Ala.1988). The issue in Lowe was whether an insured may file a claim for underinsured motorist coverage against his or her own insurer in the same lawsuit with the insured's claim against the underinsured motorist and litigate all the issues in one proceeding. We answered in the affirmative. However, we note that this case is distinguishable from Lowe in one crucial respect. In Lowe, the tort-feasor's insurer and the plaintiff's underinsured motorist insurer were the same company. By contrast, in the present case, Federated insures only one of a number of alleged tort-feasors. Furthermore, the interests of those alleged tort-feasors are not concurrent with Federated's interest vis-avis the uninsured motorist claim. Federated would be seeking to convince the jury that the driver of the phantom vehicle, i.e., the uninsured motorist, was not at fault, while the alleged tort-feasors would be trying to convince the jury that the accident was entirely the fault of the driver of the phantom vehicle. We further note that even if we applied the procedure adopted in Lowe for determining whether an insurance coverage question can be tried along with an underlying liability question, the Lowe procedure does not conflict with the action taken by the trial court here.
Under the circumstances of this case, we find that the trial court reasonably could have determined that it would be virtually impossible to prevent the introduction of evidence that showed or tended to show that one of the parties would be indemnified by an insurance company. See Robins Engineering, Inc. v. Cockrell, 354 So. 2d 1 (Ala.1977). In light of this, we find no error in the trial court's severance of the uninsured motorist claim against Federated.
The second issue presented for our review is whether the trial court erred in submitting to the jury the question of whether Kevin was a guest within the meaning of the Alabama guest statute. Fox contends that because Kevin was a minor under 14 years of age, under the facts of this case the trial court, not the jury, should determine whether Kevin was subject to the guest statute, based upon his capacity to consent.
Section 32-1-2, Ala.Code 1975, sets forth the law in this state as it relates to guests, as follows:
The relationship between a host and a guest is consensual in nature and involves some acceptance by the guest of the relationship and its attendant hazards. Crovo v. Aetna Casualty & Surety Co., 336 So. 2d 1083 (Ala.1976). In the ordinary case, the question whether a rider is a passenger for hire or a guest is one of fact. See Roe v. Lewis, 416 So. 2d 750 (Ala.1982). The question here, however, is whether 11-year-old Kevin was legally capable of giving his consent to ride in the Hollar tanker truck driven by Lumpkin so as to bring him within the guest statute.
The applicability of the guest statute to a child under age 14 has previously been addressed by this Court. In the first case in which we considered the issue, Walker v. Garris, 368 So. 2d 277 (Ala.1979), we adopted the position that the question whether a child under 14 is subject to the guest statute is to be determined by the factfinder, based on the individual child's capacity to consent. The Walker holding was subsequently cited with approval in Knowles v. Poppell, 545 So. 2d 40 (Ala. 1989). In Knowles, we noted that the question of whether a 13-year-old girl was capable of consenting to be a guest within the meaning of the guest statute was for the jury's determination.
Fox, in her brief, analogizes the concept of a minor's consenting to become a guest *227 under the guest statute to the doctrine of assumption of the risk. She then cites to us a case from another jurisdiction holding that there is a rebuttable presumption that a child between the ages of 7 and 14 is incapable of exercising care and prudence and further that a child under the age of 14 is incapable of knowingly and voluntarily accepting an invitation to become a guest in an automobile so as to subject himself to a gross negligence or wantonness rule. See Smith v. Kauffman, 212 Va. 181, 183 S.E.2d 190 (1971). We note, however, that while the proposition advanced by Fox would be a viable approach to applying the guest statute to minors, it is inconsistent with our prior decisions.
The record in the present case reflects that the trial court followed the directives of Walker and Knowles. In instructing the jury, the trial court first read § 32-1-2. The trial court then charged the jury that it was to determine whether Kevin had given an intelligent consent. In other words, the trial court ruled that the question of whether Kevin had the capacity to consent was for the jury to determine. Therefore, we find no error by the trial court.
For the foregoing reasons, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES and STEAGALL, JJ., concur. | March 1, 1991 |
c1bafe6b-7784-4c11-a168-312dc9beb272 | Commercial Credit Corp. v. Lisenby | 579 So. 2d 1291 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 1291 (1991)
COMMERCIAL CREDIT CORPORATION and Jackie Scott
v.
Donnie LISENBY and Letha Lisenby.
Donnie LISENBY and Letha Lisenby
v.
COMMERCIAL CREDIT CORPORATION, et al.
89-1228, 89-1292.
Supreme Court of Alabama.
March 1, 1991.
Rehearing Denied April 11, 1991.
*1292 B.F. Stokes III and Harry B. Bailey III of Stokes & McAtee, Mobile, for appellants/cross-appellees.
William M. Cunningham, Jr. and Jacqueline M. McConaha of Sintz, Campbell, Duke, Taylor & Cunningham, Mobile, for appellees/cross-appellants.
SHORES, Justice.
Donnie and Letha Lisenby sued Commercial Credit Corporation and its employee, Jackie Scott; Brett Real Estate, Robinson Development Company, Inc. (hereinafter together "Brett Robinson"), and its employee, Beth Ann Pierce, alleging fraud and negligence in the sale of used residential real property. The trial court entered a summary judgment in favor of all defendants except Commercial Credit and Jackie Scott. The case went to trial and the jury returned a verdict for $35,000 in favor of the Lisenbys and against Commercial Credit and Jackie Scott. Commercial Credit and Jackie Scott appeal. The Lisenbys also appeal the summary judgment in favor of defendants Brett Robinson and Beth Ann Pierce, and the trial court's order dismissing counts 2, 5, and 6 of the original complaint. We reverse the judgment against Commercial Credit and Scott, and affirm the trial court's order dismissing counts 2, 5, and 6, and its summary judgment in favor of Brett Robinson and Beth Ann Pierce.
The parties do not dispute the facts. On September 17, 1984, Edna I. Gilley transferred title to her residence at 2714 Ralston Road in Mobile, Alabama, to Commercial Credit Corporation in lieu of foreclosure. Jackie Scott, branch manager of Commercial Credit, which then owned the property, made an inspection of the house and had some painting done and carpet replaced before listing the property, in October 1984, with Brenda Ray of Roberts Brothers, a realty company.
Shortly after Commercial Credit acquired the property, Jackie Scott talked to Lonnie Owen, who lived next door to the property. Owen, a retired employee of a floor covering company, told Scott that a new roof had been put on the house following Hurricane Frederic in 1979. He said flashing on the roof had been incorrectly installed and that this had allowed water to seep into and down the wall and collect in the carpet. Owen said he had helped the previous owner, Mrs. Gilley, dry out the carpet. Owen told Scott that he thought it would cost $500 to install gutters and eaves, and that this, in his opinion, would stop the rain from entering the wall.
In 1985, Charles G. Bitzer, Jr., made an offer to purchase the house. As a condition *1293 for sale, Bitzer required that Commercial Credit make a complete structural inspection and repair roof leaks in the back bedroom and front bedroom closet. Commercial Credit hired Floyd Rhodes, a roofer, to make repairs in the roof and to stop leaks noted in the inspection. Rhodes repaired leaks existing around the chimney and could find no leaks near the west wall. His work was completed in August 1985. Because of other difficulties not related to the issues in this case, Bitzer failed to close the deal.
In November 1985, Commercial Credit changed real estate companies and listed the house with Barbara Mitchell of Pope, Quint and Trusty. In March 1986, Mitchell obtained from a Ms. Boykin an offer to purchase the property. An FHA inspection made pursuant to the Boykin offer revealed rotten wood in the west side of the house and sheet rock damage on the west wall caused by a leak in the roof. Commercial Credit made the repairs suggested by the FHA. Jackie Scott hired Bob May to make those repairs. May's repairs included replacing a four-foot by eight-foot section of the west wall, replacing sections of floor joists, molding, floor sills, outside plasterboard and a four-foot by eight-foot section of the floor in the den, as well as outside trim around the windows and doors. The cost of May's repairs totalled $1,265. After these repairs were made, Boykin did not go through with the offer, due to her inability to obtain financing.
Commercial Credit again changed real estate companies and listed the home with Brett Robinson; Beth Pierce was Brett Robinson's agent. Letha Lisenby noticed the house while driving in the neighborhood in November 1986. She stopped and was shown the house by an unidentified man from Brett Robinson. Lisenby liked the house upon her initial tour and stopped looking at other houses on the market. She and her husband, Donnie Lisenby, hired Joanne Shreeves, an agent with Hamilton-Graddick Realty, to represent and advise them in connection with the purchase of the property. Shreeves took them on two or three more tours through the house. On November 25, 1986, the Lisenbys submitted to Commercial Credit a written offer to purchase the house. Prior to this offer, the Lisenbys had not had any conversations with Jackie Scott, nor with her boss, Ed Baxley, or anyone else from Commercial Credit.
The Lisenby offer required Commercial Credit to make all FHA inspection-required repairs, which it agreed to do on December 3, 1986, when it accepted the Lisenbys' offer. The FHA inspection cited several defects, including deficiencies in the plumbing, the electrical and heating and cooling systems, and kitchen equipment. The FHA inspection did not mention any problems related to any water leak or rot. Commercial Credit made the repairs according to the FHA inspection.
According to the Lisenbys' FHA inspection, Commercial Credit was required to provide an adequate heating system for the house. At the Lisenbys' request, Commercial Credit permitted Mrs. Lisenby's father, an air conditioning contractor, to install a central heating and air conditioning system. Jackie Scott first met the Lisenbys when she provided them with a key to the house so that the heating and cooling systems could be installed. While performing the work, Lisenby's father had occasion to look in the attic and under the house, where the system was installed. He was required to run floor vents to within six inches of the outside wall of the house, and he saw no rot in the area but did note some discoloration caused by water, which he did not believe was unusual. While working on the house and staying with his daughter, he never indicated to the Lisenbys that he saw anything wrong with the house.
During the week in which the heating and cooling systems were being installed, Lisenby inquired about a missing shingle on the west wall; the absence of the shingle revealed rot and wet wood. Present at this time were the Lisenbys; Joanne Shreeves, realtor for the Lisenbys; and Commercial Credit's representative, Ed Baxley. Either Shreeves or Baxley responded to the Lisenbys' inquiry about the shingle and rot by stating that the moisture was caused by condensation from a *1294 window unit air conditioner that was installed above the affected area. The Lisenbys accepted that explanation and there was no further mention of the topic.
At closing, the Lisenbys signed a document stating that they had "inspected the property and accept it in its present condition.... Brett Real Estate, Robinson Development Co., Inc., and Commercial Credit Corp. have fulfilled their obligation to us."
In February 1987, one month after closing, during a thunderstorm the Lisenbys noticed water seeping down the windows, the walls in the den, and the wall of the bedroom on the west side of the house. The Lisenbys hired Donald Cieutat, an electrical engineer and construction contractor, to inspect and repair various problems in the house. Cieutat discovered rot in three places in the perimeter sills (the large supports that run horizontally under the exterior walls of the house): under the west wall, under the north wall, and under the east wall. He also discovered rot where the air conditioner unit had been on the west wall. The repairs he made cost the Lisenbys $15,338.40.
The complaint against Commercial Credit Corporation, Jackie Scott, Brett Robinson, and Beth Ann Pierce, charged the defendants with fraudulent concealment and suppression of material facts that presented a dangerous condition in the house. The complaint also alleged willful intent to deceive and mislead the plaintiffs and negligent failure to disclose the defects in the house. The plaintiffs based their claim of liability upon the theory that the defendants had owed the plaintiffs a duty to disclose defects that they had, or should have had, knowledge of.
Ordinarily, sellers of used residential property have no duty to disclose any defect to a purchaser. Boswell v. Coker, 519 So. 2d 493 (Ala.1987). There are exceptions to this rule. Under § 6-5-102, Ala.Code 1975, the seller has a duty to disclose defects to a buyer if a fiduciary relationship exists between the parties. In addition, if the buyer specifically inquires about a material condition concerning the property, the seller has an obligation to disclose known defects. Whether reliance on the statements is justifiable is an issue that should be submitted to the jury for its determination. Hickox v. Stover, 551 So. 2d 259 (Ala.1989). See also Fennell Realty Co. v. Martin, 529 So. 2d 1003 (Ala.1988).
In the present case, neither Commercial Credit nor Scott had a duty to disclose the latent defect in the house to the Lisenbys. There was no fiduciary duty between the parties. The Lisenbys had also hired Joanne Shreeves, a real estate agent, to represent them in the transaction.
Commercial Credit and Scott did not owe the Lisenbys any duty to disclose a latent defect of which they were unaware. There was no evidence they had any knowledge of the condition of the wall or of the roof beyond what an inspection would reveal. In fact, after both the Bitzer and Boykin offers were made, FHA inspectors did not find the defect and Commercial Credit hired repairmen to complete the FHA-requested repairs. Knowledge of previous problems and repair of earlier difficulties does not impute or constitute knowledge of present problems. Speigner v. Howard, 502 So. 2d 367 (Ala.1987).
Once the repairs had been made pursuant to the FHA inspections, Commercial Credit and Scott had no way to discover new problems. Since they had obtained ownership in 1985, the house had been unoccupied. Had the roof and wall problems been noticable through inspection, Mrs. Lisenby's father could have possibly discovered them while he was installing the heating and cooling system under the house.
Under these undisputed facts, the law did not impose a duty on Commercial Credit or Scott to disclose a defect that they did not know existed in the house; therefore, the trial court erred when it denied their motion for directed verdict and again when it denied their motion for j.n.o.v.
The trial court correctly entered the summary judgment for Beth Pierce and Brett Robinson. There is no evidence that these defendants had knowledge of any kind that the house had a latent defect. *1295 Nor is there any evidence that these defendants made any representation to the plaintiffs of any kind. They were the agents with whom the property was listed when the Lisenbys made their offer. There is no evidence that the Lisenbys relied upon any statement by these defendants. The trial court correctly entered summary judgment in favor of these defendants.
We observe that if the Lisenbys relied upon any realtor it was Joanne Shreeves, who was hired to represent and advise them in the purchase of this property. They did not sue her.
The Lisenbys on cross-appeal argue that the trial court erred when it granted the motion of defendants Scott and Commercial Credit to dismiss counts 2, 5, and 6 of the Lisenby complaint; those counts alleged fraud by recklessness and mistake. From the evidence previously discussed, we conclude that these counts were properly dismissed by the trial court because there was no evidence that these defendants knew of any defects. Even if these defendants had knowledge of the defects, under these facts they still would not have had a duty to disclose anything to the Lisenbys.
Therefore, we reverse the judgment against Commercial Credit and Jackie Scott and render a judgment in their favor, and we affirm the dismissal of plaintiffs' counts 2, 5, and 6.
89-1228, REVERSED AND JUDGMENT RENDERED.
89-1292, AFFIRMED (as to the dismissal of counts 2, 5, and 6).
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | March 1, 1991 |
0caad897-d8c1-4dbe-b17e-fdfc9baa2246 | Worthington v. Palughi | 575 So. 2d 1092 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1092 (1991)
Shirley T. WORTHINGTON
v.
John Anthony PALUGHI, as administrator of the estate of Gregory O. Fields, Sr., deceased.
89-1455.
Supreme Court of Alabama.
March 1, 1991.
Mark R. Ulmer of Drinkard, Ulmer, Hicks & Leon, Mobile, for appellant.
Delano J. Palughi, Mobile, for appellee.
STEAGALL, Justice.
This is an appeal from a summary judgment in favor of John Anthony Palughi, as *1093 administrator of the estate of Gregory O. Fields, Sr., and against Shirley T. Worthington, declaring a conveyance from Esther Stroke Fields to be void, pursuant to Ala.Code 1975, § 6-10-3.
The undisputed facts in the case are as follows: Esther Stroke Fields and Gregory O. Fields, Sr., were wife and husband. Each had been previously married and each owned residential property in fee. After the Fieldses were married, they decided it was in their best financial interest to sell Gregory's residence and reside together in Esther's residence. On May 17, 1974, Esther and Gregory executed and properly recorded a deed conveying Esther's residence at 5109 Maudelayne Drive South, Mobile, Alabama, to themselves jointly with the right of survivorship.
On January 25, 1988, unknown to Gregory, Esther executed and recorded a warranty deed conveying "all her rights, title and interest" in the Maudelayne Drive residence to her daughter, Shirley T. Worthington. The deed contained only Esther's signature.
On May 10, 1988, Esther died. On June 1, 1988, Gregory filed an affidavit of survivorship in the Mobile County Probate Court, claiming ownership of the Maudelayne Drive residence in fee simple, based on the survivorship clause in the May 17, 1974, deed. Gregory continued to occupy the residence until his death on January 25, 1989.
After Gregory's death, the defendant, John Anthony Palughi, was appointed administrator of Gregory's estate. On December 11, 1989, Worthington filed a complaint to quiet title to the Maudelayne Drive property, and she filed a notice of lis pendens. Palughi filed a motion for summary judgment. Before the trial court ruled on Palughi's motion, Worthington amended her complaint to include a second count alleging unjust enrichment in the event the court found that she did not have an interest in the real property in question.
After a hearing on the matter, the trial court entered a summary judgment in favor of Palughi as to count one of Worthington's complaint; the trial court's ruling was based on Ala.Code 1975, § 6-10-3. The trial court did not rule on Worthington's claim of unjust enrichment.[1]
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, then 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, Palughi, in support of his motion in the light most favorable to the nonmovant, Worthington. Hanners, supra, and Bass, supra. With this standard in mind, we now address the merits of Worthington's contention.
The essence of the issue on appeal is whether one spouse can convey to a third party an interest in the homeplace held jointly by both spouses. Palughi argues that § 6-10-3 specifically prohibits one spouse from conveying "homestead property" to a third party unless the conveying spouse obtains the assent of the other spouse. Worthington contends that § 6-10-3 does not apply to the conveyance in this case, because, she says, the residential property in question did not constitute "homestead property."
Article X, § 205, of the Alabama Constitution (1901), provides a definition of "homestead":
(Emphasis added.)
Sections 6-10-2 and -3 are essentially a codification of Article X, § 205, of the Alabama Constitution (1901), but with some material differences in acreage (160 acres) and value ($5,000) of real property. We note that although each of these provisions deals with exemption of the homestead, not the subject of this appeal, they provide a definition of "homestead" useful for purposes of our discussion. Section 6-10-3 provides:
It is clear that the requirement of a spouse's signature on a conveyance is intended to protect that spouse from a conveyance of the homeplace without his or her assent. Gowens v. Goss, 561 So. 2d 519 (Ala.1990), and Leonard v. Whitman, 249 Ala. 205, 30 So. 2d 241 (1947). For this requirement to be applicable, it is necessary that the property in question be the actual place of residence, Wildman v. Means, 208 Ala. 487, 94 So. 823 (1922); it is undisputed that the property involved in the present case was the actual place of residence.
The undisputed facts in this case are that Esther attempted a conveyance of a one-half interest in the homeplace to a third party and that her spouse had not assented to the conveyance; such a conveyance without that assent is strictly prohibited by § 6-10-3. The trial court applied the statute and declared the conveyance null and void. Based on these facts, we conclude that there is no substantial evidence to create a genuine issue of material fact and that Palughi was entitled to a judgment as a matter of law. Thus, the trial court correctly entered Palughi's summary judgment.
Based on the foregoing, the judgment of the trial court is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur.
[1] We need not address the merits of Worthington's claim of unjust enrichment, for two reasons: (1) the trial court failed to rule on that issue, and (2) that issue was not raised on appeal. Furthermore, the trial court makes no mention of this claim in its Rule 54(b), A.R. Civ.P., order. | March 1, 1991 |
27a325f9-9849-4e80-a2b1-ebe1a3d9b26f | McIlvaine v. AmSouth Bank, NA | 581 So. 2d 454 | 1900034 | Alabama | Alabama Supreme Court | 581 So. 2d 454 (1991)
Eugene Thomas McILVAINE III, et al.
v.
AmSOUTH BANK, N.A., et al.
1900034.
Supreme Court of Alabama.
April 11, 1991.
Rehearing Denied May 17, 1991.
*456 Douglas Corretti and Mary Douglas Hawkins of Corretti & Newsom, Birmingham, and Gerald R. Hart, Jacksonville, Fla., for petitioner Eugene Thomas McIlvaine III.
E.C. Herrin, Birmingham, for petitioner Janet Gayle McIlvaine.
J. Michael Rediker of Ritchie and Rediker, Birmingham, and S. Stanley Kreutzer, New York City, for respondents.
INGRAM, Justice.
AmSouth Bank, as trustee of an inter vivos trust created in 1943 by Neva E. McIlvaine (settlor), filed an action for a declaratory judgment and instructions as to the proper distribution of a one-third share of the current and future net income from the trust. The settlor was a resident of the State of Florida when she created the trust. AmSouth's complaint alleged that the trust agreement provides that the net income from the corpus of the trust, which consists principally of common stock in the Torchmark Corporation, be paid in equal shares to the settlor's three children during their respective lifetimes, or, upon the death of a child, to the "lawful issue of the body" of such child for his or her lifetime. The complaint further alleged that Eugene Thomas McIlvaine, Jr. (Tommy), one of the settlor's children, died on April 11, 1989, the record date for the payment of a stock dividend to the trust. The trustee, therefore, sought instructions as to whether, under the terms of the trust, Tommy's estate or the successor beneficiaries were entitled to the dividend.
AmSouth also alleged that Tommy was survived by a natural son named Eugene Thomas McIlvaine III (Gene) and an adopted daughter, also named Neva E. McIlvaine, and that AmSouth was, therefore, uncertain as to whether future income should be paid solely to Gene or should be divided equally between Gene and Neva.
After answering the complaint, Gene filed a motion for summary judgment. Thereafter, Neva filed a cross-motion for summary judgment. Neva was joined in her motion by Dorothy J. McIlvaine, who is Tommy's widow and the executrix of his estate. The trial court denied Gene's motion for summary judgment and entered a summary judgment for Neva and Dorothy. The trial court instructed the trustee to pay the April 11, 1989, dividend to Dorothy J. McIlvaine as executrix of Tommy's estate and to divide one-third of the future net income from the trust equally between Gene and Neva. Gene appeals.
On appeal, Gene argues that the trial court erred in instructing the trustee to pay the April 11 dividend to Tommy's estate, because, he argues, Tommy died before the close of business on that date. He also contends that the trial court further erred in instructing the trustee to divide the future net income from the trust between Neva and him, because, he argues, the intent of the settlor of the trust, through her use of terms like "lawful issue of the body," was to exclude adopted children from taking under the trust.
The trial court found the facts related to this issue to be undisputed. The principal asset of the McIlvaine trust is common stock of the Torchmark Corporation. Torchmark, a Delaware corporation with its principal place of business in Birmingham, Alabama, declared a dividend on February 23, 1989, payable to stockholders of record at the close of business on April 11, 1989. The dividend was to be distributed on May 1, 1989. Tommy, the beneficial owner of one-third of the shares and, thus, of one-third of the dividends, died in New York City on April 11, 1989, at 7:15 a.m., E.S.T.
Based on the undisputed facts, the trial court held that Tommy became the beneficial owner of the dividend as of the declaration date (February 23, 1989) and, therefore, that his one-third share of the dividend should be paid to his estate. In reaching its holding, the trial court applied Delaware law in determining when the rights of the shareholder vest in a corporate distribution and Florida law in determining the rights of a trust beneficiary to a *457 dividend. Although neither party raises the trial court's choice of law as an issue, Gene does state that Alabama law should have been applied in determining the rights of the beneficiaries to the dividend. He goes on to note, however, that the law of Alabama and the law of Florida are consistent on the question, and therefore, he does not request our consideration of the issue.
In his appeal, Gene argues that the trial court erred in finding that Tommy's right to the dividend vested before his death. He asserts that Tommy's estate is not entitled to the dividend, because, he argues, although Tommy was alive for part of the day on April 11, 1989, he died prior to the close of business on that date. Gene asserts that, as a result, Tommy's share of the dividend should pass to Gene, who claims to be the successor beneficiary under the trust.
Initially, we note that as a general rule, a dividend belongs to those who are owners of the shares at the time it is declared and not to those who are owners of the shares at the time the dividend is paid. 3A W. Fratcher, Scott on Trusts § 236.2 (4th ed.1988). When a corporation declares a dividend, the dividend is separated from the assets of the corporation, and a debt to those who are shareholders at the time of the declaration is created, although payment of the debt is postponed. Selly v. Fleming Coal Co., 37 Del. 34, 180 A. 326 (1935); Scott on Trusts, supra.
However, where the dividend is payable to shareholders of record on a specified date subsequent to the declaration date, those who are shareholders on the record date are entitled to the dividend, because the debt created by the declaration is a debt to those who are shareholders on that date. Scott on Trusts, supra. Likewise, where corporate stock is held in trust, the estate of the income beneficiary is entitled to all regular cash dividends declared for the benefit of stockholders of record on dates prior to the beneficiary's death, despite the fact that the trustee may not actually receive such dividends until after the death of the income beneficiary. Wilmington Trust Co. v. Wilmington Trust Co., 25 Del.Ch. 193, 15 A.2d 665 (1940).
Thus, where a dividend is declared during the life of the income beneficiary and is payable to shareholders of record on a date prior to the death of the beneficiary, the dividend is included in the estate of the beneficiary, even though it is not payable until after the death of the beneficiary. See Hayward v. Blake, 247 Mass. 430, 142 N.E. 52 (1924); Scott on Trusts, supra; Restatement of the Law of Trusts § 236, ill. 7 (2d ed. 1959). Conversely, where a dividend is declared during the life of the income beneficiary and is payable to shareholders of record on a date subsequent to the death of the beneficiary, the dividend is not included in the estate of the beneficiary. See Nutter v. Andrews, 246 Mass. 224, 142 N.E. 67 (1923); Scott on Trusts, supra; Restatement of the Law of Trusts § 236, ill. 8 (2d ed. 1959).
In the present case, however, we are confronted with the unusual situation wherein the beneficiary died on the date designated by the corporation for the determination of its shareholders of record. Although there is no Delaware case considering the exact issue raised by the facts of this case, the trial court relied on a New York case that is on point. In In re Estate of Donahue, 78 Misc.2d 923, 357 N.Y.S.2d 777 (N.Y.Sur.Ct.1974), affirmed, 48 A.D.2d 815, 370 N.Y.S.2d 67 (1975), a dividend was declared to shareholders of record at the close of business on a certain day. A shareholder died at 6:30 a.m. on the record date. The shareholder, in her will, had named her son as income beneficiary of a testamentary trust whose corpus was the corporate stock on which the dividend had been declared. The issue for the court, therefore, was whether the dividend belonged to the estate of the deceased shareholder or to the income beneficiary. The Donahue court noted that if the decedent had died on the day before the record date, the dividend in question would have been considered income and would have rightfully belonged to the income beneficiary, and that if she had died on the day following the record date, the dividend would have *458 belonged to her estate. The court further reasoned that the shareholder's death on the day the dividend accrued required the court to consider the dividend as if it had been paid or distributed on that date. Therefore, the court held that the dividend belonged to the estate.
In reaching its conclusion, the Donahue court expressly refused to consider the fact that the shareholder lived through only a part of the record date and was, in fact, dead at the close of business on the record date. The Donahue court opined that to require a fiduciary to take into account the precise time of the shareholder's death and the exact hour and minute at which the corporation's business day ended would be burdensome and complicated. The court also noted that if fractions of a day were considered, fiduciaries would have to take into account time zones and time changes in distributions occurring close to the date of shareholder's death.
The trial court in the present case likewise refused to take into account a fraction of a day. In refusing to take into account the undisputed fact that Tommy had died before the close of business on the record date, the trial court concluded that "[w]ith the modern world's involvement with transnational and international travel across multiple time zones, the Court perceives that great confusion and uncertainty would arise if a `fraction of a day' rule were adopted." We agree.
Although Gene cites to us cases from various jurisdictions wherein the respective courts have taken into account fractions of a day, we have examined those cases and find none of them to be analogous to the facts in the present case. On the other hand, we find merit in the approach taken by the Donahue court, which refused to take into account a fraction of a day under facts similar to those presented here.
Generally, a day is considered to be an indivisible unit or period of time, and, thus, it is frequently stated that the law will not take into account fractions of a day. Under this general rule, any fraction of a day is deemed to be a full day. 86 C.J.S. Time § 16 (1954). To apply a "fraction of a day" rule to facts like those in the present case would lead to confusion as courts attempt to ascertain such factors as the exact hour and minute that an event takes place, the applicable time zones, or the hours of business of a particular corporation, to name but a few. We find that the trial court correctly held that Tommy was the beneficial shareholder of the stock on April 11, 1989, the record date, and that, as a result, his estate is entitled to the dividend.
In its complaint, AmSouth sought instructions from the trial court as to whether, under the terms of the trust agreement, Neva, Tommy's adopted daughter, would be entitled to share equally with Gene in one-third of the future net income from the trust. The trial court first held that, considering the facts surrounding the creation of the trust, as well as the terms of the trust itself, Florida law should be applied in interpreting the trust agreement. Neither party argues that the trial court's choice of law was reversible error.
The trial court, applying Florida law, found the trust agreement to be ambiguous and that, as a result, the settlor's intention could not be clearly ascertained from the words within the four corners of the agreement. Therefore, the court attempted to interpret the ambiguous provisions of the trust agreement by applying statutory and common law rules of construction. On the basis of perceived public policy concerns that adopted children be placed on an equal footing with natural children, the trial court gave retroactive effect to certain provisions in the Florida Adoption Act and held that Tommy's share of the income from the trust should be divided equally between his natural son and his adopted daughter.
The record in the present case reveals that Tommy divorced Gene's mother in 1946 and married Dorothy in 1953. In 1969, Tommy and Dorothy adopted Neva, who was less than a month old at the time. At his death, Tommy was survived by Dorothy and by Gene and Neva. The language that the trial court was asked to interpret *459 is found in Articles IV and V of the trust agreement:
(Emphasis supplied.)
On appeal, Gene argues that the trial court erred in holding that adopted children were not excluded by the express language of the trust agreement. He asserts that the terms used in the trust agreement had definite legal meaning at the time the agreement was executed and specifically operated to exclude adopted children from taking under the terms of the trust. He also contends that the retroactive application of the Florida Adoption Act provisions placing adopted children on an equal footing with natural children is unconstitutional under the facts of this case.
We begin our analysis of this issue by recognizing certain principles of Florida law: The most basic tenet in the interpretation of trust agreements is that a court should ascertain and give effect to the intent of the settlor. Bacardi v. White, 463 So. 2d 218 (Fla.1985). Unless the trust instrument is ambiguous, the intent of the settlor must be ascertained from the wording of the trust instrument itself and no extrinsic evidence of the settlor's intent is admissible. Knauer v. Barnett, 360 So. 2d 399 (Fla.1978). The settlor's intent should not be determined by a reading of isolated words and phrases, but, rather, the instrument as a whole should be considered and the settlor's general plan interpreted. First Nat'l Bank of Florida v. Moffett, 479 So. 2d 312 (Fla.Dist.Ct.App.1985).
The appellate courts of Florida have, on three separate occasions, addressed facts similar to those presented in the present case. In Green v. Quincy State Bank, 368 So. 2d 451 (Fla.Dist.Ct.App.1979), the First District Court of Appeals was faced with the issue whether an adopted child was included in the terms of an irrevocable inter vivos trust whose beneficiaries were the "living children" of the adopted child's natural parents. At the time of the execution of the trust in Green, the rights of an adopted child to inherit from its natural parents were statutorily preserved. The statutes, however, were subsequently changed to provide that an adopted child's rights of inheritance from its natural parents terminate with adoption. The Green court refused to apply the new statutes retroactively, holding that the construction of the terms of the trust agreement must be determined by the law in effect at the execution of the irrevocable trust agreement.
One year later, in Lewis v. Green, 389 So. 2d 235 (Fla.Dist.Ct.App.1980), petition for review denied, 397 So. 2d 778 (Fla.1981), the Fifth District Court of Appeals considered the question whether adopted children *460 are "issue" or "lineal descendants" for purposes of sharing in income from a testamentary trust. The court wrote:
389 So. 2d at 241. The Lewis court held that, because of the clear public policy expressed in the Florida statutes, there was no longer any reason to treat an adopted child differently from a natural child for purposes of intestate or testate inheritance.
The Second District Court of Appeals, in In re Martell, 457 So. 2d 1064 (Fla.Dist.Ct. App.1984), contemplated an issue similar to that presented in Green v. Quincy State Bank, supra: Whether an adopted child was entitled to share in the corpus of a trust to be distributed to the "issue" of the adopted child's natural father. The Martell court, citing Lewis v. Green, supra, noted that courts look to the law in effect when a testamentary trust terminates rather than the law at the time the will was written or when the testator died to determine whether an individual comes within a class of remaindermen designated by will to take at the expiration of a life estate. The court then applied the adoption statute in effect at the termination of the trust, which provided that adoption terminates the rights of an adopted child to inherit from the child's natural relatives. In applying the statute retroactively, the Martell court expressly disagreed with the holding in Green v. Quincy State Bank, supra, which had refused to apply the statute retroactively.
The trial court, in the present case, followed the Lewis and Martell holdings and reached the conclusion that Neva, the adopted grandchild of the settlor, should share in the net income of the trust. We agree with its decision.
In this case, the settlor used four different terms to describe the class of beneficiaries who would be entitled to the net income from the trust following the death of the named beneficiaries or to proceeds from the corpus upon the termination of the trust. In Article IV, the settlor used the term "issue," as well as "legal heirs at law," while in Article V, the terms "issue," "lawful issue of the body," and "issue of the body" are used. As the trial court noted, ambiguity exists because the words "lawful" or "legal" in the two phrases "legal heirs at law" and "lawful issue of the body" either can reflect an intention to exclude "unlawful" heirs or issue, i.e., children whose adoption was not legally effective or illegitimate children, or can be superfluous. The intrinsic ambiguity, as well as the lack of extrinsic evidence in the record regarding the settlor's intention to exclude adopted children, tends to show that the grantor did not specifically intend to exclude adopted children from the class of potential beneficiaries.
Furthermore, public policy, as expressed in the Florida statutes, indicates that adopted children are to be treated in the same manner as natural children, for purposes of inheritance. Section 72.06, Fla. Stat. (1941), provided that an adopted child "shall be declared the child and heir-at-law of the person applying for his adoption." In 1943, the legislature added that the adopted child shall be "entitled to all rights and privileges ... of a child born to such parent or parents in lawful wedlock." Ch. 21759, § 16, Fla.Laws (1943); as further amended, § 63.151, Fla.Stat. (1969). Further legislation in 1973 and 1975 created § 63.172, the present statute. See In re Estate of Carlton, 348 So. 2d 896, n. 1 (Fla.Dist.Ct.App.1977). Section 63.172, Fla. Stat. (1989), provides, in relevant part:
Section 732.108 further provides:
It is apparent that now, in Florida, the adopted child is transformed by legislative fiat into the heir, issue, and descendant of the adopting parent the same as natural children of the adopting parent.
Although Gene argues that his constitutional rights to due process are violated by the retroactive application of these statutes, we find no such violation. As noted above, a predecessor of § 63.172 was in effect in Florida as early as 1941, illustrating even then the preference that adopted children and natural children be treated equally. Therefore, although this case may involve the retroactive application of the present-day statute, there is no retroactive application of the policy underlying the modern statute.
Furthermore, a statute is not unconstitutionally retrospective in its operation unless it impairs a substantive, vested right. In re Martell, supra. A substantive, vested right is an immediate right of present enjoyment or a present fixed right of future enjoyment. City of Sanford v. McClelland, 121 Fla. 253, 163 So. 513 (1935). To be vested, a right must be more than a mere expectation based on anticipation that an existing law will continue in effect; it must have become a title, legal or equitable, to the present or future enforcement of a demand. Division of Workers' Comp. v. Brevda, 420 So. 2d 887 (Fla.Dist. Ct.App.1982).
Here, the retroactive application of the statute will not result in a taking of Gene's right to share in the net income of the trust; rather, the statute is being applied merely to determine who is to be included in an open class of beneficiaries. In 1943, when the trust was created, Gene was among the contingent members of a class of yet-to-be determined beneficiaries. His right to any part of the net trust income was completely contingent on his surviving Tommy. Furthermore, his portion of the net trust income was also contingent on the size of the class, which could not be determined until the moment of Tommy's death. Thus, he had no immediate, fixed right in 1943 to future enjoyment. The class was open, and his share was contingent. Therefore, we find no error in the trial court's application of the adoption statute to determine the beneficiaries under the trust and to determine the meaning of the trust terms when the settlor's intentions were unclear.
We conclude that the trial court correctly held that Tommy's estate is entitled to the dividend payable to shareholders of record on April 11, 1989, and that the trial court correctly instructed the trustee to divide one-third of the future net income from the trust equally between Tommy's natural son, Gene, and Tommy's adopted daughter, Neva. Therefore, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | April 11, 1991 |
13c4976a-df85-4949-89bc-13d7dad12d3f | McCorkle v. McElwey | 576 So. 2d 202 | N/A | Alabama | Alabama Supreme Court | 576 So. 2d 202 (1991)
Robbie Jean McCORKLE and Marita M. McElwey
v.
Elizabeth Jamieson McELWEY.
89-1641.
Supreme Court of Alabama.
February 15, 1991.
*203 Miles T. Powell, Decatur, for appellants.
J.G. Speake of Speake & Speake, Moulton, for appellee.
HOUSTON, Justice.
This is a declaratory judgment action filed by Robbie J. McCorkle and Marita M.
*204 McElwey ("plaintiffs") against Elizabeth J. McElwey.
The parties stipulate the following facts:
The trial court dismissed the present action, holding that it was "barred by the operation of res judicata" and holding that Elizabeth J. McElwey "may pursue any legal remedy available to her in the collection of the Judgment previously entered in her favor" against Robbie J. McCorkle and Marita M. McElwey. The plaintiffs appeal.
Dr. Raymond McCorkle, who was a former husband of Robbie J. McCorkle, the owner of the other undivided one-half interest in the property ("the property") referred to in paragraph two in the stipulation of facts and the purchaser of the property referred to in the stipulation of facts from Millie Kurtz (the mortgagee of the second mortgage on the property, who foreclosed that mortgage), filed a declaratory *205 judgment action to quiet title to the property, naming Elizabeth McElwey as a defendant and seeking a declaration that the sheriff's deed to Elizabeth McElwey no longer constituted a cloud on the title to the property. The trial court held that Elizabeth McElwey's deed was not a cloud on the title to the property and that she had no legal claim against the property. Dr. McCorkle, in the same action, sought a declaration that Elizabeth McElwey's purchase of the property at the sheriff's execution sale for $35,250.10 satisfied the $35,000 judgment against the plaintiffs. The trial court did not hold that Elizabeth McElwey's judgment was satisfied. In the present case, the trial court held, and Elizabeth McElwey here contends, that the conclusion of that action by Dr. McCorkle in that manner is res judicata as to the case now before this Court.
The trial court held that this present action was "barred by the operation of res judicata," so we address this issue first.
There are two aspects of res judicataclaim preclusion and issue preclusion (frequently referred to as "collateral estoppel"). The traditional res judicata case (frequently referred to as a "claim preclusion" case) involves prior litigation between a plaintiff and a defendant, which is decided on the merits by a court of competent jurisdiction, and then a subsequent attempt by the prior plaintiff or defendant to relitigate the same cause of action against the same defendant or plaintiff, or perhaps to relitigate a different claim not previously litigated but which arises out of the same evidence. It is well settled in Alabama law that this will not be allowed. A valid, final judgment on the merits of the claim extinguishes the claim. If the plaintiff won, the claim is merged into the judgment; if the defendant won, the plaintiff is barred from relitigating any matter that could have been litigated in the prior action. Likewise, under res judicata we have consistently rejected an attempt by a former defendant to relitigate issues that were, or could have been, raised in prior litigation that ended in a valid adjudication by a court of competent jurisdiction. Whisman v. Alabama Power Co., 512 So. 2d 78, 81 (Ala.1987). The plaintiffs in this action were not parties to the action to quiet title; therefore, there could be no claim preclusion.
While the issue preclusion aspect of res judicata does not require complete identity of parties, it does require that the party against whom res judicata is asserted either was a party or was in privity with a party to the prior action, or if a non-party, that the non-party's interests were adequately represented by a party in the prior action and that the relationship of the party and the non-party is not so attenuated that the application of res judicata would deny due process. Whisman v. Alabama Power Co., 572 So. 2d at 82. Unless the non-party to the prior litigation had counsel, cross-examined witnesses, introduced evidence, and participated in all phases of the former trial, the non-party would not have had a sufficient "laboring oar" in the prior litigation and precluding her from relitigating an issue would deny due process. Whisman v. Alabama Power Co., supra. Neither Ms. McCorkle (the former wife of Dr. McCorkle, the plaintiff in the action to clear title) nor Marita M. McElwey, whose relationship to the parties to the clear title action is not shown in the record, had a laboring oar in the clear title action so as to preclude them from litigating the issue of whether Elizabeth McElwey's judgment against them has been satisfied. Therefore, this appeal must be resolved by determining whether the facts stipulated constitute a satisfaction of the $35,000 judgment obtained by Elizabeth McElwey against the plaintiffs in this case.
In Thomas v. Glazener, 90 Ala. 537, 8 So. 153, 24 Am.St.Rep. 830 (1890), this Court held:
90 Ala. at 538, 8 So. at 153. (Emphasis added.) See, Goodbar, White & Co. v. Daniel, 88 Ala. 583, 7 So. 254, 16 Am.St. Rep. 76 (1890); Rutledge's Adm'r v. Townsend, Crane & Co., 38 Ala. 706 (1863); also, see, Thompson v. Wallace, 3 Ala. 132 (1841); but, see, Niolin v. Hamner, 22 Ala. 578, 582 (1853), in which this Court wrote "[t]he mere fact that the property has been sold by the sheriff, does not, in our opinion, necessarily operate a satisfaction of the execution under which it was sold, to the extent of the proceeds of the sale; nor does it place the funds necessarily beyond the control of the sheriff, so that he cannot give them to the rightful owner."
Black's Treatise on the Law of Judgments 1487-88 (2d ed. 1902), states:
(Emphasis added.)
In the case before us, Elizabeth McElwey has received nothing in satisfaction of her $35,000 judgment, which was awarded to her on December 2, 1982. At the sheriff's execution sale of the judgment debtor's interest in the property on January 23, 1984, Elizabeth McElwey bid the amount of the judgment. The judgment debtor's one-half interest in this property was conveyed to her. Subsequent to the sheriff's sale, a second mortgage was judicially foreclosed, and it was judicially determined that this second mortgage had priority over Elizabeth McElwey's judgment. The mortgagors of this second mortgage, Dr. McCorkle and one of the judgment debtors, Ms. McCorkle, did not defend against this judicial foreclosure, but permitted default judgments to be taken against them. After the mortgage was foreclosed, Dr. McCorkle purchased the property from the second mortgagee and filed an action to clear title to the property by holding that Elizabeth McElwey's deed to a one-half interest in the property was no longer a cloud on the title to the property. This was done. Elizabeth McElwey has no interest in the property (regardless of its worth) and has received no money to pay any part of the $35,000 that was awarded to her more than 8 years ago. Why should a court of equity not be allowed to relieve a creditor from the consequence of her purchase at an invalid sale? It should be allowed to do so. The phrase "Stare decisis et non quieta movere" (usually referred to as the doctrine of stare decisis) expresses the legal principle of certainty and predictability; it is literally translated as "[t]o adhere to precedents, and not to unsettle things which are established." Black's Law Dictionary 1406 (6th ed. 1990). By this opinion, we are unsettling things that have been established by this Court for more than 100 years; however, we are persuaded that the ground or reason of those prior decisions of this Court would not be consented to today by the conscience and the feeling of justice of the majority of those whose obedience is required by the rule on which the ratio decidendi of those prior decisions was logically based. Barnes v. Birmingham International Raceway, Inc., 551 So. 2d 929, 933 (Ala.1989); Ex parte Bayliss, 550 So. 2d 986, 994 (Ala.1989). To the extent that the following cases hold that a trial court, exercising its equitable powers, cannot relieve a judgment creditor from the consequences of her purchase of property at an execution sale of that property, when the judgment debtor had no title or interest of value in *207 the property sold, they are overruled: Thomas v. Glazener, supra; Goodbar, White & Co. v. Daniel, supra; Rutledge's Adm'r v. Townsend, supra; and Thompson v. Wallace, supra. When its equitable powers are invoked and it finds that equity and justice require it to do so, a trial court may relieve the judgment creditor from the consequences of her purchase of property at an execution sale of that property held to satisfy her judgment, when the judgment debtor had no interest of value in the property and the judgment creditor's deed to the property can be nullified or set aside as a cloud on the title to that property.
We do not feel it necessary to remand this case to the trial court, for we are affirming its action, since the case was submitted on stipulated facts and on the pleadings in this action and preceding actions. Equity and justice require that we hold that Elizabeth McElwey's judgment was not irrevocably satisfied by her purchase at the execution sale of property in which the present plaintiffs had no economic interest, and that Elizabeth McElwey may pursue any remedies available to her in the collection of the judgment entered in her favor in the Circuit Court of Lawrence County, case no. CV-82-39.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, STEAGALL, KENNEDY and INGRAM, JJ., concur. | February 15, 1991 |
6b0d739d-e427-4bf9-ac72-e8d1ec00fdcf | Ex Parte Woodson | 578 So. 2d 1049 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1049 (1991)
Ex parte Coleman WOODSON.
(Re Coleman Woodson v. City of Selma).
89-1336.
Supreme Court of Alabama.
February 15, 1991.
*1050 Bruce Boynton, Selma, for petitioner.
Alston Keith, Jr. of Keith & Keith, Selma, for respondent.
HORNSBY, Chief Justice.
The Court of Criminal Appeals affirmed Coleman Woodson's convictions for reckless driving and driving under the influence of alcohol in violation of a municipal ordinance of the City of Selma. The issue before us on this certiorari review is whether the City of Selma, by not introducing into evidence the applicable municipal ordinance, failed to make out a prima facie case against Woodson.
On March 12, 1987, Woodson was arrested for reckless driving and for driving under the influence of alcohol. He was convicted and sentenced in the Municipal Court of Selma on both charges. On his appeal to the Dallas Circuit Court, a jury found him guilty on both charges. On July 7, 1989, his reckless driving sentence was suspended, and he was assessed a $100 fine, was ordered to pay $25 to the Alabama Crime Victims' Compensation Fund, and was ordered to surrender his license to the court. For the driving under the influence conviction, Woodson was sentenced to 6 months in jail, was fined $2,500, and was ordered to pay $25 to the Alabama Crime Victims' Compensation Fund.
On October 25, 1989, Woodson filed a motion for a new trial, which the trial court denied. The Court of Criminal Appeals affirmed Woodson's convictions, without opinion. 567 So. 2d 1376 (1990).
Woodson argues that the City of Selma failed to make out a prima facie case against him because it failed to introduce into evidence Municipal Ordinance 17-1, which adopts the state offenses of reckless driving, Ala.Code 1975, § 32-5A-190, and driving under the influence, Ala.Code 1975, § 32-5A-191. Woodson also argues that his motion for directed verdict and his motion for acquittal were sufficient to preserve the issue of whether the City's failure to introduce the municipal ordinance was fatal to its prosecution.
The record indicates that the applicable municipal ordinance was never introduced in the jury trial. However, the record shows that the parties stipulated the following:
Woodson argues that the stipulation above means that the City could have introduced the municipal ordinance without any further predicate. That is, he says that by that stipulation the city clerk would not have been required to authenticate the ordinance or to testify that it was properly adopted.
In Felder v. City of Huntsville, 42 Ala. App. 488, 168 So. 2d 490 (1964), the appellant *1051 was convicted of violating a city ordinance. However, the City of Huntsville, pursuant to a stipulation that the ordinance in question could be introduced without further proof, failed to introduce the ordinance. The Court of Appeals held that the City of Huntsville had failed to make out its case against the appellant and that the trial court had committed error in pronouncing judgment.
Similarly, in Hanson v. City of Trussville, 539 So. 2d 1082 (Ala.Crim.App.1988), the appellant argued that his motion for judgment of acquittal had been erroneously denied because, he said, the City of Trussville had failed to make out a case against him because the ordinance under which he was prosecuted was never introduced. In Hanson, a pretrial stipulation was made whereby the ordinance could be introduced without the need for the city to establish the necessary predicate. The Court of Criminal Appeals, relying on Maxwell v. City of Mobile, 439 So. 2d 714 (Ala.Crim. App.), rev'd on other grounds, 439 So. 2d 715 (Ala.1983), held that the city was required to plead and prove the ordinance in order to make out a prima facie case. The court held that the city had failed to prove a necessary element of the offense charged by failing to introduce the applicable ordinance. As a result, the court held that the appellant's motion should have been granted. See also Baird v. Town of Ashville, 492 So. 2d 1029 (Ala.Crim.App.1986); Jones v. Town of Courtland, 452 So. 2d 1380, 1381 (Ala.Crim.App.1984).
The foregoing authority is applicable to the facts before us. The City of Selma failed to introduce the municipal ordinance adopting the applicable state offenses, even though there was a stipulation waiving the requirement that the city clerk authenticate the adoption of the ordinance. Accordingly, the City of Selma failed to prove a requisite element of its case. If the issue was properly preserved for our review, then this failure mandates a reversal of Woodson's convictions.
In regard to Woodson's argument that he had preserved for review the issue whether the City's failure to introduce the ordinance was fatal to the prosecution, we find Ex parte Maxwell, 439 So. 2d 715 (Ala.), conviction reversed on remand, 439 So. 2d 717 (Ala.Crim.App.1983), persuasive. In Maxwell, this Court considered whether the defendant's motion to exclude evidence preserved a similar issue regarding a city's failure to introduce the ordinance in question. This Court determined that the defendant's argument that the city had failed to make a prima facie case was sufficient to preserve the issue for review or appeal.
Further, in Hanson, the Court considered whether the appellant's motion to exclude evidence was based upon specified grounds so as to raise the issue before the trial court and to preserve the issue for appeal. In that case, the appellant did not specify the city's failure to introduce into evidence the applicable ordinance. Nevertheless, the court found that the trial court was put on notice as to a defect in the city's case where appellant stated numerous grounds in support of his motions.
In the instant case, Woodson, after presentation of the City's case, moved the trial court to dismiss the City's case or to acquit on the basis that the City had failed to introduce the appropriate ordinance and had therefore failed to make out a prima facie case. As this Court stated in Maxwell: "It is sufficient that the defendant state the ground that the prosecution has failed to make a prima facie case." Maxwell, supra, at 717.
Based on the foregoing, we conclude that the issue was preserved for appeal. Consequently, we reverse the judgment of the Court of Criminal Appeals and remand the case.
REVERSED AND REMANDED.
MADDOX, SHORES, ADAMS, HOUSTON and INGRAM, JJ., concur.
STEAGALL and KENNEDY, JJ., dissent. | February 15, 1991 |
a534ec5a-c20e-46fe-8c37-9eeded8867b0 | Ex Parte Pierce | 576 So. 2d 258 | 1900020 | Alabama | Alabama Supreme Court | 576 So. 2d 258 (1991)
Ex parte Andy Dwight PIERCE.
(Re Andy Dwight Pierce v. State of Alabama).
1900020.
Supreme Court of Alabama.
February 15, 1991.
W. Phil Eldridge, Hartford, for petitioner.
Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
This petition for the writ of certiorari presents the following question: Should this Court grant a petition for certiorari to review a decision of the Court of Criminal Appeals that affirmed the petitioner's conviction but also remanded the cause to the trial court for a new sentencing hearing? For the reasons we spell out in this opinion, we hold that the petition is premature and that the petitioner must await a final decision in the Court of Criminal Appeals that adjudicates all of the issues raised on his appeal.
Petitioner Andy Dwight Pierce was indicted for intentional murder during the course of a robbery. See § 13A-5-40(a)(2), Code of Alabama 1975. A jury found him guilty and recommended that he receive the death sentence. The judge accepted the jury's recommendation and sentenced Pierce to death.
On appeal to the Court of Criminal Appeals, the petitioner raised several grounds of alleged error, which he contends entitle him to a new trial. The Court of Criminal Appeals affirmed his conviction, but found that the admission of a victim impact statement during the sentencing phase of his trial violated his Eighth Amendment rights, stating that "this type of information is irrelevant to a capital sentencing decision, and that its admission creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner." Pierce v. State, 576 So. 2d 236 (Ala.Cr.App.1990).
The Court of Criminal Appeals remanded the case for a new sentencing hearing.
Pierce's petition to this Court is grounded on the provisions of Rule 39(c), Ala.R. App.P., which states that a "petition for writ of certiorari to this court in a criminal case in which the death penalty has been imposed as punishment shall be filed by counsel representing the petitioner on the appeal of the case, and will be granted as a matter of right."
Rule 39, Ala.R.App.P., provides that "[d]ecisions of the courts of appeals may be reviewed" if the conditions set out in that Rule are met. We could construe the word "decisions" in Rule 39 broadly to apply to a ruling, such as the one in this case, that affirmed the petitioner's conviction, but we believe that we should construe the word more strictly to apply only to those rulings that finally adjudicate all the issues pending in the court of appeals.[1]
*259 When the Court of Criminal Appeals remands a case for some action to be performed by the trial court, as it has in this case, it retains jurisdiction of the case. In this particular case, if this Court should grant the writ and the petitioner in the remand proceeding is not sentenced to death, then the very ground of his petition now before us would not be present.
Some of the problems that can develop if this Court entertains a petition to review a ruling of the Court of Criminal Appeals remanding a case to the trial court are shown by the case of Cardwell v. State, 544 So. 2d 987 (Ala.Cr.App.1989). In Cardwell, the Court of Criminal Appeals remanded the case for a hearing to clarify an issue central to the case. In that case, the wife of an assistant district attorney had served on the grand jury that had indicted the defendant. On appeal, the defendant argued that this "biased" grand jury had deprived him of his right to a fair trial. The Court of Criminal Appeals remanded for the trial court to determine if the assistant district attorney and his wife had discussed the case and to determine the role the wife had played in the grand jury's decision.
The State petitioned this Court for a writ of certiorari to review the ruling of the Court of Criminal Appeals that had remanded the case; this Court granted the petition, but later quashed the writ as having been improvidently granted.[2] The Cardwell case is an example of the problem that can be caused if this Court should consider a ruling such as was rendered in this case to be a "decision" that this Court would review under the provisions of Rule 39.
The Court of Criminal Appeals has not yet affirmed the petitioner's sentence of death, and there remains an issue concerning that sentence. The petition for the writ of certiorari, therefore, is premature and is due to be denied. Because we deny the petition on the ground that it is premature, we necessarily are not expressing any opinion as to whether it has any merit, and our denial is without prejudice to the petitioner's right to file another petition after the Court of Criminal Appeals finally adjudicates all of the issues pending before it on the appeal.
PETITION DENIED AS PREMATURELY FILED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] In construing Rule 39 as we do, we have applied the mandate of Rule 1, Ala.R.App.P., that the Rules "shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits."
[2] The report of the case at 544 So. 2d 987 shows only that the writ was quashed. We have examined the original records of this Court in order to determine what actually happened in that case and the reason the writ was quashed. It appears that the Court of Criminal Appeals, on March 8, 1988, issued its first opinion in the case. In that opinion the court remanded the cause to the circuit court with directions. That court denied the State's application for rehearing on April 12, 1988, and the State filed its certiorari petition, which this Court granted. After this Court quashed the writ as having been improvidently granted, the Court of Criminal Appeals wrote a "Second Opinion" on March 17, 1989, in which it remanded the cause for a hearing. 544 So. 2d at 990. On May 26, 1989, the court wrote its final opinion in the cause, styled "On Return to Remand." 544 So. 2d at 990. This Court was not asked again to review the Court of Criminal Appeals' action. | February 15, 1991 |
2cbf85d2-d59e-436d-91a8-a71a17e3d1ca | Harris v. MacOn County | 579 So. 2d 1295 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 1295 (1991)
Robert E. HARRIS, as executor of the Estate of Marvella B. Harris, and as father of Robbin S. Harris, a deceased minor
v.
MACON COUNTY.
89-1791.
Supreme Court of Alabama.
March 1, 1991.
Rehearing Denied April 11, 1991.
*1296 Frank H. Hawthorne and G. William Gill of McPhillips, Hawthorne & Shinbaum, Montgomery, for appellant.
H.E. Nix, Jr. and Alex L. Holtsford, Jr., Montgomery, and Edwin L. Davis, Tuskegee, for appellee.
SHORES, Justice.
This wrongful death case arises out of an automobile accident that occurred on May 7, 1988, in Macon County, Alabama. Robert E. Harris sued Macon County, alleging that Macon County had a duty to maintain the highways and roadways within its borders; that the county had breached this duty by negligently or wantonly allowing a dangerous condition to exist at the intersection of U.S. Highway 80 and County Road 69; and that his wife, Marvella B. Harris, and his daughter, Robbin S. Harris, sustained fatal injuries in the accident as a proximate result of Macon County's alleged negligence or wantonness.
Macon County answered with a general denial. On December 14, 1989, Macon County moved for summary judgment, claiming that the intersection in question had not been under the direction, control, or maintenance of Macon County, but had been under the exclusive direction, control, and maintenance of the State of Alabama. Harris subsequently amended his complaint to aver that Macon County had negligently or wantonly designed or constructed Highway 80 and had failed to warn persons of the danger of that intersection.
On August 2, 1990, the trial court entered a summary judgment in favor of the county as to all claims. The question before us is whether the trial court erred in holding that the intersection in question had been under the exclusive jurisdiction of the state highway department and, consequently, that Macon County has no liability in this case.
In support of its motion for summary judgment, Macon County presented the affidavit of James Horace, an assistant county engineer for Macon County. This affidavit read in part as follows:
(C.R. 26-27)
Harris filed a brief in opposition to the motion for summary judgment, attaching the affidavit of James Stephens, maintenance engineer for the State of Alabama. Stephens's affidavit stated in part:
"On June 3, 1988, the Macon County Commission passed a resolution that the intersection of Highway U.S. 80 and Macon County Road 69 was a dangerous and hazardous area in need of a caution signal. Said resolution was submitted to the Highway Department and we investigated and took corrective action, which included installing a flashing traffic signal."
(C.R. 37).
The court held a hearing on the motion for summary judgment on January 11, 1990. At that hearing, the plaintiff sought leave of the court to file a second affidavit of James Stephens. The trial judge gave the plaintiff 10 days to file the affidavit. The plaintiff did not file the second affidavit until February 14, 1990. On August 2, 1990, the trial judge entered a summary judgment in favor of the county. We affirm.
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 summary judgment was properly granted, a reviewing court must view the motion 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). Rule 56 is read in conjunction with the "substantial evidence rule" (§ 12-21-12, Code 1975), for actions filed on or after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (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 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 plaintiff contends that there was substantial evidence before the court indicating that the intersection in question was not under the exclusive control of the State of Alabama. We do not agree. Both affidavits establish that the State, not the county, maintained the intersection in question. The untimely affidavit of James Stephens does not dispute this fact. Stephens states in his late affidavit that a county may request permission from the state highway department to allow the county itself to install a traffic control device on a state-controlled roadway; that after a county makes such a request, the highway department determines whether the installation of the traffic control device on the state-controlled roadway is warranted; and that the state retains control of the decision whether to install the device. This affidavit reinforces the fact that the State of Alabama has exclusive control of the state-controlled roadways, like the one in this case.
The plaintiff argues that this Court should overrule its holding in Perry v. Mobile County, 533 So. 2d 602 (Ala.1988), which is on point with the present case. We decline to do so. In Perry this Court unanimously held as follows:
The plaintiff here, like the plaintiff in Perry, argues that a county has a duty to keep its roads in a reasonably safe condition for travel and to remedy defects in the roadway on receipt of notice of those defects; the plaintiff cites Jefferson County v. Sulzby, 468 So. 2d 112, 114 (Ala.1985), Macon County Comm'n v. Sanders, 555 So. 2d 1054, 1057 (Ala.1990), and Alabama Code 1975, § 23-1-80. However, as we said in Perry, the cases in which we have found this duty have been those in which the county controls the roadway, unlike the present case.
The evidence before the trial court on the motion for summary judgment reflects that the intersection in question was under the exclusive control of the State of Alabama. Both affidavits establish that the State, not the county, maintained the intersection in question. Further, any notice given to the county of an unsafe condition was given after the accident happened, not before.
For the reasons stated above, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and INGRAM, JJ., concur.
KENNEDY, J., concurs in the result. | March 1, 1991 |
36c6d67e-dead-4755-abe6-69e4218683bb | Ex Parte Lawson | 578 So. 2d 1052 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1052 (1991)
Ex parte Rebecka LAWSON.
(Re Rebecka Logan LAWSON v. CITY OF TUSCUMBIA).
Ex parte Rebecka LAWSON.
(Re CITY OF TUSCUMBIA v. Rebecka LAWSON).
89-1674, 89-225-M.
Supreme Court of Alabama.
February 15, 1991.
*1053 William J. Underwood, Tuscumbia, for petitioner.
Benjamin T. Gardner, Tuscumbia, for respondent.
PER CURIAM.
Rebecka Lawson was convicted in the Municipal Court of Tuscumbia of driving under the influence. Pursuant to Ala.Code 1975, § 12-14-70, she appealed to the circuit court. Neither she nor her attorney was present when her case was called for trial in circuit court, and that court dismissed her appeal. Pursuant to § 12-14-70(f), Lawson filed several motions to reinstate her appeal, and all those motions were denied. Lawson petitioned for a writ of mandamus to direct the trial court to reinstate the appeal; she also appealed to the Court of Criminal Appeals, which affirmed the trial court's judgment. 567 So. 2d 1371. We granted Lawson's petition for writ of certiorari to the Court of Criminal Appeals. We have consolidated Lawson's petition for the writ of mandamus with our certiorari review of the judgment of the Court of Criminal Appeals. Because the same issue is addressed by the petition for writ of mandamus and by the certiorari petition, we have used the briefs related to the writ of mandamus to aid in our disposition of both cases, thus avoiding having the parties rebrief the issues after we granted Lawson's writ of certiorari. Our discussion, except as otherwise indicated, addresses Lawson's certiorari petition.
On September 18, 1989, the trial court published its criminal docket, which included Lawson's case. On that day the court conducted a trial not related to Lawson's case. On September 19 and 20 Lawson's case was not called, because the court was trying other cases and was conducting other business. Lawson's attorney contacted the court on both September 19 and 20, settling two other cases and inquiring about Lawson's case and the criminal docket. On the evening of September 20, employees at the courthouse where the court was located informed Lawson's attorney that the next case was City of Tuscumbia v. A.R.
Lawson's attorney contacted A.R.'s attorney, and A.R.'s attorney informed him that A.R.'s case would be tried to a jury the next morning. Lawson's attorney had another case, involving D.H., that was numbered sequentially in a manner that indicated it would be tried before Lawson's case was tried.
The next morning, A.R.'s case was disposed of without a jury trial. Between 9:15 and 9:30 A. M., the trial court contacted Lawson's attorney to get him to come to the courthouse for D.H.'s case. At that time, Lawson's attorney was in bankruptcy court. Lawson's attorney arrived at the courthouse between 10:25 and 10:45 A.M. The court then informed Lawson's attorney that Lawson's appeal had been dismissed on the motion of the prosecution. Lawson's attorney immediately informed the trial court that he could have Lawson at the courthouse for trial within 15 minutes. Lawson states that she works at a location within five minutes' travel from the courthouse. At 1:30 that afternoon, Lawson filed a motion pursuant to § 12-14-70(f) to reinstate her appeal. The trial court denied that motion and other motions to reinstate the appeal.
Lawson contends that her appeal should be reinstated, or, alternatively, that she should at least be given a hearing on her § 12-14-70(f) motion. Because we decide this case on other grounds, we do not determine whether § 12-14-70(f) requires a hearing.
Section 12-14-70(f) provides:
(Emphasis added.)
When we review the holding of the trial court on the § 12-14-70(f) motion to reinstate, we determine whether the trial court abused its discretion in determining that Lawson did not show good cause for the reinstatement of her appeal. Miles v. City of Tuscaloosa, 555 So. 2d 345 (Ala.Cr.App. 1989); Wilson v. City of Prattville, 465 So. 2d 1169 (Ala.Cr.App.1984). The arguments against Lawson are directed toward showing that the dismissal was proper; although we might find that the trial court did not abuse its discretion in determining that there was inadequate evidence of good cause to excuse the default and allow the appeal to withstand the prosecution's motion to dismiss, the issue before this Court is whether denial of the motion to reinstate the appeal was proper. The statute provides both that the trial court shall dismiss the appeal, unless good cause is shown for default, and that the trial court may reinstate the appeal, if the defendant shows good cause for reinstatement.
Lawson's lawyer was in another court at the time Lawson's case was called; he was informed by courthouse employees that at least one other jury trial was to take place before Lawson's; the docket indicated several cases between the first case of the day, which was set for a jury trial, and Lawson's case; Lawson's lawyer arrived within an hour of when the case was dismissed; he offered to try the case immediately, if the trial court would allow it; Lawson says that her workplace was within five minutes' travel from the courthouse; she states that she would have been immediately available for that trial, if the trial court had reinstated her appeal; and Lawson moved for reinstatement within three to four hours of the dismissal. Considering these circumstances, we hold that the trial court abused its discretion when it denied Lawson's § 12-14-70(f) motion for reinstatement. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand; that court is directed to remand for the circuit court to set aside its dismissal and reinstate the appeal.
Because we reverse and because Lawson's petition for a writ of mandamus seeks in substance the same relief accorded by reversing the judgment, the petition for writ of mandamus is due to be dismissed as moot.
89-1674 REVERSED AND REMANDED.
89-225-M DISMISSED AS MOOT.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur. | February 15, 1991 |
f929c10e-bbc3-40df-9a5c-760e89c16f4b | Ex Parte JR | 582 So. 2d 444 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 444 (1991)
Ex parte J.R.
(Re J.R. v. State).
89-1518.
Supreme Court of Alabama.
March 1, 1991.
Richard S. Jaffe of Jaffe, Burton & Digiorgio, Birmingham, for petitioner.
Don Siegelman, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for respondent
PER CURIAM.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur.
KENNEDY, J., dissents.
KENNEDY, Justice (dissenting).
This Court granted certiorari review to determine whether the Court of Criminal Appeals was correct in affirming the juvenile court's decision to transfer the defendant for criminal prosecution in the circuit court, where he now stands charged with capital murder.
The defendant, J.R., was 15 years of age at the time he was alleged to have committed the crime with which he is charged. Since December 11, 1989, when he was transferred for criminal prosecution, the defendant has been incarcerated in the Jefferson County jail. On May 25, 1990, the Court of Criminal Appeals, without an opinion, affirmed the juvenile court's transfer order. 567 So. 2d 1370 (Ala.Cr.App.1990). On August 24, 1990, this Court stayed the criminal proceedings, granted the petition for writ of certiorari, and later granted a request for oral argument. The case was orally argued before this Court on December 10, 1990. Now, this Court deems it appropriate to quash the writ as improvidently granted. I dissent.
The defendant raised the following issues in his petition:
As a former trial court judge who for several years served in the juvenile court, I am acutely aware that several of the issues raised in the defendant's petition have been left unresolved. Not only should this Court be willing to resolve, by opinion, these issues for the protection of the rights of the defendant, the State, and the victim in this case, but also this Court should resolve these issues to further juvenile justice.
As I have said, the defendant raises several issues of importance to the juvenile justice system. For example, the points raised by the defendant in Issue V are, in my opinion, very important to the juvenile justice system. Furthermore, I believe that the defendant's arguments concerning Issue V are meritorious. For this reason, I will discuss the points raised concerning that issue and will suggest an appropriate burden of proof and a concomitant standard of review.
The defendant argues in regard to Issue V that there is no established burden of proof that must be met before a juvenile court can waive its jurisdiction and that this Court should establish an appropriate burden of proof.
Section 12-15-34 does not provide for the dispositional hearing a burden of proof that the prosecutor must carry before a juvenile court may determine that it is in the best interest of the child or the public to grant a motion to transfer. However, this Court established a burden of proof applicable to transfer hearings generally in Brown v. State, 353 So. 2d 1384 (Ala.1977). In that case, the defendant contended that § 12-15-34 violated his right to due process, specifically because § 12-15-34(f) requires merely that the juvenile court's order find that there is probable cause to believe that the allegations are true and correct. The defendant argued that the prosecutor should be required to prove beyond a reasonable doubt that the allegations are true and correct. This Court held:
353 So. 2d at 1387-88 (emphasis added).
This Court went a step further in Duncan v. State, 394 So. 2d 930 (Ala.1981), and defined probable cause as that which would "`warrant a man of reasonable prudence and caution in believing that the offense has been committed and that the person in question is the offender.'" 394 So. 2d at 932 (citation omitted). See also Ash v. State, 424 So. 2d 1381 (Ala.Crim.App.1982); Slaton v. State, 555 So. 2d 814 (Ala.Crim. App.1989). Citing Brown v. State, supra, we stated that hearings on a motion to transfer are properly classified as probable cause hearings, and that, therefore, the *446 strict standard of proof beyond a reasonable doubt does not apply. 394 So. 2d at 932.
In Brown and Duncan, the juveniles argued that there was not sufficient evidence to prove that they had committed the crimes alleged. Thus, the standard of proof established in Brown and developed in Duncan applies only to the probable cause phase of a transfer hearing. There is no established burden of proof that applies to the dispositional phase of a transfer hearing. The only pronouncement that appellate courts have made in regard to the burden of proof in dispositional hearings has been to hold that the record supported the findings on which a juvenile court based a transfer order. See Scott v. State, 501 So. 2d 1273 (Ala.Crim.App.1986); Cruse v. State, 489 So. 2d 694 (Ala.Crim.App. 1986).
In Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), the United States Supreme Court stated "that the waiver of jurisdiction is a `critically important' action determining vitally important statutory rights of juveniles." 383 U.S. at 556, 86 S. Ct. at 1055.
383 U.S. at 560-61, 86 S. Ct. at 1057 (citation omitted). Courts in other jurisdictions have provided a standard of proof where none has been statutorily imposed.[2] Because I conclude, as the United States Supreme Court has stated, that transfer hearings determine vitally important statutory rights of juveniles, I would hold that the prosecutor should be required to meet a specified standard of proof before a juvenile court could determine in the dispositional hearing that it is in the best interest of the child or the public to grant a motion to transfer.
In determining what standard of proof should be required, I look to Chapter 15 of Title 12 of the Alabama Code 1975, which governs juvenile proceedings. Article 2 of that chapter, entitled "Jurisdiction and Venue," and in which § 12-15-34 is found, provides that the juvenile court shall exercise exclusive original jurisdiction of delinquency proceedings. § 12-15-30. The jurisdiction of the juvenile court can be terminated only pursuant to the procedure provided in § 12-15-34. Article 3 of the same chapter, entitled "Procedure Generally," provides the procedure for "hearings [held] under Chapter 15." See § 12-15-65. Section 12-15-65(e) states the burden of proof required in delinquency, in need of supervision, and termination of parental rights hearings:
Thus, in order for a juvenile court to proceed to make proper disposition of a case under § 12-15-65(e), there must be clear and convincing evidence that the child is dependent and in need of care or supervision, is in need of care or rehabilitation as a delinquent child, or is a child in need of supervision, or that parental rights should be terminated.
In order to transfer a juvenile, § 12-15-34 requires, first, that there be probable cause to believe that the child committed the offense alleged (a felony), and, second, at the dispositional phase of *447 the hearing, that it is in the best interest of the child or the public to grant the motion to transfer. In my opinion, the right of a juvenile to remain within the jurisdiction of the juvenile system is equally as important as those rights protected by the due process requirements of § 12-15-65. This is especially true because "[i]n most cases, youths will not receive better rehabilitative services in the adult correctional system than are available in the juvenile system." B. Feld, The Juvenile Court Meets the Principle of the Offense: Legislative Changes in Judicial Waiver Statutes, 78 J.Crim.L. & Criminology 471, 497 (1987). Thus, I would hold that the same standard of proof should apply in transfer cases as now applies in delinquency, in need of supervision, and termination of parental rights hearingsthat is, I would hold that a juvenile court may grant a motion to transfer a juvenile if it finds from clear and convincing evidence that it is in the best interest of the child or the public to do so.[3]
The defendant also argues, and I agree, that this Court should establish a standard for reviewing a juvenile court's decision at the dispositional hearing that a juvenile should be transferred.
The standard of review for transfer hearings has developed since the passage of Act No. 1205, Ala. Acts 1975, from which came § 12-15-34. Winstead v. State, 371 So. 2d 418 (Ala.1979). The issue has been confused somewhat because the same standard of review has been applied to both the probable cause and the dispositional phases of the transfer hearing. This result has obtained because heretofore there has been no burden of proof established for the dispositional phase of transfer hearings. Also, the same standard of review has been applied to both the findings of fact and the legal conclusions of juvenile courts. I will summarize the development of the standard of review in transfer cases.
As I have stated, in Brown v. State, supra, this Court held that transfer hearings are properly classified as probable cause hearings. Additionally, we held that because the appellate court will review the record of the transfer hearing, the juvenile court in that case did not err in failing to state in writing its reasons for transferring the juvenile. Brown, supra, at 1388.[4] We held that in reviewing the record, Rule 52, A.R.Civ.P., precludes us from reversing the findings of the lower court unless the findings are clearly erroneous. Brown, supra.
In Williams v. State, 361 So. 2d 1157 (Ala.1978), this Court applied the clearly erroneous standard of review to the circuit court's transfer order:
361 So. 2d at 1157-58 (emphasis added). Thus, although the clearly erroneous standard of review set out in Rule 52 and applied in Brown, supra, applies only to findings of fact, we held in Williams that we will not reverse a lower court's order unless it is clearly erroneous.
In Winstead v. State, supra, this Court combined its review of the probable cause and dispositional phases of the transfer hearing. We stated that a transfer hearing is in the nature of a preliminary hearing to determine whether there is probable cause to believe that the juvenile committed the *448 crimes alleged. Winstead, supra, at 420. We then held that, based on a consideration of the factors listed in § 12-15-34(d), ample evidence existed to support the trial court's finding of probable cause. Id. It was at this point that the distinction between the probable cause and the dispositional phases of the transfer hearing was blurred. This Court said that the determination of probable cause is to be made in consideration of the factors listed in § 12-15-34(d). These factors are to be considered not to determine whether probable cause exists, but to determine at the dispositional hearing whether it is in the best interest of the child or the public to grant the transfer motion. This caused this Court, in later cases, to review the probable cause and dispositional phases of the transfer hearing by the same standard.
In Bragg v. State, 416 So. 2d 715 (Ala. 1982), this Court reviewed the propriety of both the juvenile court's finding of probable cause and its ruling in the dispositional phase of the hearing that the juvenile should be transferred. This Court stated:
416 So. 2d at 716, citing Duncan v. State, supra. We applied the "clearly erroneous" standard of review to both the probable cause and the dispositional phases of the transfer hearing.
Since Bragg, the standard of review has been expounded on, and, in Cruse v. State, 489 So. 2d 694 (Ala.Crim.App.1986), the Court of Criminal Appeals summarized as follows concerning the standard of review:
489 So. 2d at 697-700.
I agree that a juvenile court's determination that probable cause exists to believe that a juvenile committed the offense alleged should not be set aside unless it is clearly erroneous. However, I would hold, consistent with my discussion concerning burdens of proof, that a different standard should exist for reviewing the juvenile court's determination at the dispositional phase of the transfer hearing. I think it proper to apply the same standard of review to a juvenile court's determination that it is in the best interest of the child or the public to transfer as this Court applies in other instances where the prosecution must prove its case from clear and convincing evidence. See § 12-15-65(e).
For example, in child custody cases, the right of natural parents to maintain custody of their child may be overcome only by clear and convincing evidence. Columbus *449 v. State Department of Human Resources, 523 So. 2d 419 (Ala.Civ.App.1987); Johnson v. State, 485 So. 2d 1185 (Ala.Civ. App.1986). In Columbus, the parent whose rights were terminated argued that the ore tenus rule should not apply to the determination of the propriety of termination of parental rights. The Court of Civil Appeals replied:
523 So. 2d at 421.
Similarly, I would hold that an appellate court must find, within the record, clear and convincing evidence in order to affirm a juvenile court's determination at the disposition hearing that it is in the best interest of the child or the public to transfer the child for criminal prosecution.
My dissent is not meant to be a reflection on the wisdom of the juvenile court in this case. I am simply expressing my opinion that, by quashing the writ that we had issued to the Court of Criminal Appeals, which had affirmed without an opinion the juvenile court's orderwhich would ultimately result in an indictment for capital murderthis Court may have acted expediently, but certainly not justly.
[1] Transfer hearings are divided into two phases, the probable cause hearing and the dispositional hearing. At the probable cause hearing, the juvenile court determines whether there is probable cause to believe that the child committed the alleged crime. At the dispositional hearing, the juvenile court determines whether it is in the best interest of the child or the public to transfer the child.
[2] See, e.g., D.H. v. State, 561 P.2d 294 (Alaska 1977); Matter of Tacy, 427 N.E.2d 919 (Ind.App. 1981); Matter of Le Blanc, 171 Mich.App. 405, 430 N.W.2d 780 (1988); W.C.P. v. State, 791 P.2d 97 (Okla.Crim.App.1990); State in Interest of R.W., 717 P.2d 258 (Utah 1986).
[3] Because juvenile courts commonly hold the probable cause and dispositional phases of transfer hearings at the same time, I would caution juvenile courts to be aware of the different burdens of proof that pertain to the two phases of a transfer hearing.
[4] In regard to Issue VI, the defendant argues that § 12-15-34 requires a juvenile court to state in writing its reasons for transferring a juvenile. | March 1, 1991 |
7ff68625-98c8-4e06-8208-aac5c8c7f777 | Arthur v. State | 575 So. 2d 1191 | 1900220 | Alabama | Alabama Supreme Court | 575 So. 2d 1191 (1991)
Ex parte State of Alabama.
(Re Thomas Douglas ARTHUR
v.
STATE).
1900220.
Supreme Court of Alabama.
February 22, 1991.
Don Siegelman, Atty. Gen., and Andy S. Poole and William D. Little, Asst. Attys. Gen., for petitioner.
William Hovater, Tuscumbia, and H. Alan Gargis, Muscle Shoals, for respondent.
Prior report: Ala.Cr.App., 575 So. 2d 1165.
PER CURIAM.
WRIT DENIED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS and INGRAM, JJ., concur.
HOUSTON, STEAGALL and KENNEDY, JJ., dissent.
HOUSTON, Justice (dissenting).
I think that this case is distinguishable from Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988). I would reverse the judgment and remand the cause to the Court of Criminal Appeals.
STEAGALL, J., concurs. | February 22, 1991 |
0edacc20-bad6-41fe-abd9-d6eaa00cba3e | Carr v. Turner | 575 So. 2d 1066 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1066 (1991)
Angus W. CARR
v.
Leroy TURNER.
89-686.
Supreme Court of Alabama.
February 1, 1991.
Charles W. Woodham of Woodham & Gunter, Abbeville, for appellant.
Sam Clenney III, Abbeville, for appellee.
ADAMS, Justice.
The plaintiff, Angus Carr, appeals from a judgment for the defendant. The trial *1067 judge, as the trier of fact, determined that Carr had not met his burden of proving that he had obtained a prescriptive easement or an easement by necessity across the property of the defendant, Leroy Turner.
At the outset, we note that because the evidence in this cause was presented ore tenus, the determinations of the trial judge will not be reversed unless found to be "plainly erroneous or manifestly unjust." Ford v. Alabama By-Products Corp., 392 So. 2d 217 (Ala.1980); Tidwell v. Strickler, 457 So. 2d 365 (Ala.1984).
Angus Carr purchased his property, which is adjacent to the property of Leroy Turner, from John Ezzell. Ezzell, it seems, had occasionally used a driveway located on Turner's property to gain access to his own property. When Carr acquired Ezzell's land, Carr continued to do the same. Carr contended that he had used the road as an access to his land over the years and that, having done so, he had obtained an easement by prescription.[1] In the alternative, Carr argued that portions of his property are inaccessible during rainy weather except by Turner's driveway and, therefore, that he was entitled to an easement by necessity. The trial court held against him in regard to both contentions. We affirm.
We will first address Carr's argument that he was entitled to an easement by necessity. There was conflicting evidence as to whether Carr's property could be reached only by Turner's driveway or whether there was other access to Carr's property via a road located to the east of the driveway, which road gave direct access to Carr's property. Carr does not dispute the existence of a road to the east of his property; however, he contends that it is difficult to reach certain portions of his property from that direction due to the terrain and that access by that road is also cut off following a rain. Turner, in turn, offered testimony that after he had closed the driveway in question, he observed farming equipment and fertilizer trucks on Carr's property.
Oyler v. Gilliland, 382 So. 2d 517, 519 (Ala. 1980). Thus, the mere fact that Carr's alternate access was not as convenient or as cost efficient to use as was Turner's driveway is not, in itself, proof of an entitlement to an easement by necessity.
With regard to Carr's claim of an easement by prescription, there was evidence indicating that Ezzell and Carr's father, when he was managing Carr's property for Carr, had asked Turner's permission to use the driveway in question. The evidence was disputed as to whether Carr himself had asked permission to use the driveway. The trial court certainly was not plainly and palpably wrong in determining that the use of Turner's driveway, therefore, was permissive through the years and that an easement by prescription had not been created.
Ford v. Alabama By-Products Corp., 392 So. 2d 217, 219 (Ala.1980).
We cannot say that the trial court erred in its determination that the plaintiff had no easement. The judgment is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur.
[1] There is no dispute that Turner knew of Carr's use of his driveway. | February 1, 1991 |
6ad6e07d-aa19-402e-b80d-f4063ccecd73 | McCulley v. SOUTHTRUST BANK OF BALDWIN | 575 So. 2d 1106 | 1900038 | Alabama | Alabama Supreme Court | 575 So. 2d 1106 (1991)
Robert McCULLEY, as executor of the Estate of Sue Cheatham, deceased
v.
SOUTHTRUST BANK OF BALDWIN COUNTY.
1900038.
Supreme Court of Alabama.
March 1, 1991.
Dennis G. Pantazis of Gordon, Silberman, Wiggins & Childs, Birmingham, for appellant.
D. Charles Holtz of Wilkins, Druhan & Holtz, Mobile, for appellee.
HOUSTON, Justice.
Over a year after the death of Ms. Sue Cheatham, Robert McCulley, as executor of her estate, filed this action against South Trust Bank of Baldwin County ("the Bank"), alleging breach of contract, conversion, and suppression of material facts. The Bank filed a motion for summary judgment, alleging that "there are no genuine issues of material fact and judgment is due to be entered as a matter of law." Attached to the motion was a certified copy of Ms. Cheatham's death certificate, which showed that she died on February 7, 1986. All pleadings in the court file were offered *1107 in support of the Bank's motion. The trial court entered the following order on this motion: "Defendant's motion for summary judgment ... is hereby granted. Plaintiff is taxed with the costs."
The pleadings show that this action was not filed until March 4, 1987, over one year after the death of Ms. Cheatham.
Ala.Code 1975, § 6-5-462, provides, in pertinent part:
A claim sounding in tort, as do the executor's claims for conversion and suppression of material facts, does not survive the death of the allegedly injured party in favor of her personal representatives. Davis v. Southern United Life Insurance Co., 494 So. 2d 48 (Ala.1986); Lemmond v. Sewell, 473 So. 2d 1047 (Ala.1985); Gillilan v. Federated Guaranty Life Ins. Co., 447 So. 2d 668 (Ala.1984); Bates v. L & N Employees Credit Union, 374 So. 2d 323 (Ala.1979). There was no error in the trial court's entering summary judgment on the tort claims alleging conversion and suppression of a material fact.
A breach of contract claim upon which no action has been filed at the time of the death of the person holding that claim survives in favor of the deceased party's personal representative. The contract that the Bank is alleged to have breached was the contract relating to Ms. Cheatham's account at the bank. It is alleged, and evidence was introduced in opposition to the motion for summary judgment to show, that the Bank debited Ms. Cheatham's account for a $15,000 check drawn by Ms. Cheatham's husband, who was not a signatory on Ms. Cheatham's account. The Bank introduced the signature card that Ms. Cheatham signed when she opened the account at the Bank. When Ms. Cheatham signed this account card, she entered into a binding contract with the Bank. Parr v. Godwin, 463 So. 2d 129 (Ala.1984). The signature card expressly incorporated the terms of the Bank's rules and regulations into the contract. Ben Cheeseman Realty Co. v. Thompson, 216 Ala. 9, 112 So. 151 (1927). The Bank presented evidence that it delivered a copy of these rules and regulations to Ms. Cheatham. The rules and regulations provided that Ms. Cheatham "agreed to examine each statement of account... and to notify [the Bank] of any error contained in the statement ... within 10 calendar days after the closing date of the statement," and that "[e]ach statement of account [would] be conclusively deemed to be correct after such 10-day period." The rules and regulations further provided:
The Bank, in support of its motion for summary judgment, introduced a monthly statement of Ms. Cheatham's account covering the period from May 29, 1985, to June 27, 1985, which was sent to Ms. Cheatham no later than the beginning of July 1985. The statement showed that $15,000 was charged against Ms. Cheatham's account on June 12, 1985, the day after a deposit of $11,997.38 was made in the account. The statement showed an opening balance of $4,423.73 as of May 29, 1985, and a closing balance of $970.54 on June 27, 1985. The Dead Man's Statute limits the testimony that can be considered on this motion for summary judgment. Without questioning the Bank regarding the $15,000 debit, Ms. Cheatham closed her account at the Bank on September 11, 1985, three months after the $15,000 debit and two months after Ms. Cheatham should have notified the Bank that the $15,000 debit was an error. Ms. Cheatham's husband died in December 1985. Ms. Cheatham did not notify the Bank of any error *1108 in her account prior to her death on February 7, 1986, approximately seven months after Ms. Cheatham should have notified the Bank if the $15,000 debit was an error.
In his complaint, the executor of Ms. Cheatham's estate did not seek reformation of the contract on the ground that it was "unconscionable" and, therefore, unenforceable under the laws of the State of Alabama. Although he argues unconscionability in his brief filed in this Court, that issue is not before us. The contract that the Bank is accused in Count I of breaching required Ms. Cheatham to notify the Bank of any error contained in the statement of account sent to her within 10 calendar days after the closing date of the statement. She did not do so in regard to the $15,000 debit. Therefore, in accordance with the contract, the statement of account was "conclusively deemed to be correct after [the] 10-day period."
The Bank made a prima facie showing that it did not breach its contract with Ms. Cheatham. The executor did not submit any admissible evidence to create a genuine issue of material fact as to whether the Bank breached its contract with Ms. Cheatham. The trial court did not err in entering summary judgment on the breach of contract claim.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur. | March 1, 1991 |
24971f62-90b7-4ec2-8735-021ce7620bd9 | Espey v. Convenience Marketers | 578 So. 2d 1221 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1221 (1991)
James A. ESPEY, a minor, who sues By and Through his father and next friend and Guardian, James Q. ESPEY; and James Q. Espey
v.
CONVENIENCE MARKETERS, INC.
89-859.
Supreme Court of Alabama.
February 15, 1991.
Rehearing Denied April 5, 1991.
Joseph G. Pierce and Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellants.
J. Russell Gibson III and Michael S. Burroughs of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.
KENNEDY, Justice.
James A. Espey, suing through his father and guardian, James Q. Espey; and James Q. Espey, individually, filed an action against Convenience Marketers, Inc. ("Convenience"), alleging, among other claims, that they were entitled to damages from Convenience pursuant to Ala.Code 1975, §§ 6-5-70 and -71. James A. Espey was a minor at the time of the events that led to this case and is an incompetent. The father asserts a claim pursuant to § 6-5-70. Both the father and the son assert claims pursuant to § 6-5-71.
The trial court entered a summary judgment for Convenience. The Espeys appeal the summary judgment as to their claims pursuant to §§ 6-5-70 and -71.
*1222 On December 11, 1987, between 7:30 and 8:00 p.m., Connie Price, then 16 years old, drove her automobile by the house in Tuscaloosa where James A. Espey ("Jimmy"), then 18 years old, lived with his father, and picked up Jimmy and Thomas Edward Hammock. Throughout the entire evening, Connie was the driver of the automobile.
The three rode around for a while and then decided to buy beer and gasoline. They drove to the defendant's store, a Junior Food Mart in Northport. Jimmy went into the store, paid for the gasoline, and also bought some ice and twelve 12-ounce cans of Budweiser beer. The evidence indicates that Jimmy paid for the gasoline and beer with his father's credit card.
In two affidavits, one offered by the plaintiffs to oppose Convenience's summary judgment motion and one offered by Convenience to support its summary judgment motion, Hammock gives conflicting versions of other events that occurred at the service station. In the affidavit offered by the plaintiffs, Hammock states that Connie pumped gasoline into the automobile while Jimmy was inside the store. In the affidavit offered by Convenience, Hammock states that Connie stayed in the car while Jimmy was in the store and that Jimmy, not Connie, pumped the gasoline; he further states in that affidavit that they parked the automobile in such a manner at the gasoline pumps that "we could not see the clerk and I presume the clerk in the store could not see us."
There is no further factual dispute. According to Hammock, when Jimmy returned to the automobile, he told Connie and Hammock that the store's clerk had asked him for identification to prove his age; that he had told the clerk that he had left his identification at home, but that he was old enough to buy the beer; and that the clerk then sold him the beer.
According to Hammock, the three left the Junior Food Mart and picked up Deanna Patterson, a friend of Connie's. All four then rode to a graveyard in Cottondale and then to the spillway of Lake Tuscaloosa in Northport, and they drank the beer during this time. On their way home, travelling on McFarland Boulevard, Connie was driving her automobile towards the intersection of McFarland Boulevard and Hargrove Road at 75-80 miles per hour. An automobile proceeding on Hargrove Road went through that intersection, and Connie swerved to avoid that vehicle. She lost control of her automobile, and it collided with an electric utility pole.
Connie was killed. The plaintiffs allege that Jimmy was rendered totally disabled physically and was rendered mentally incompetent. Dr. Kenneth Warner, State Medical Examiner with the Alabama Department of Forensic Sciences, performed a post-mortem examination of Connie. He testified that as part of that examination, a blood alcohol analysis was performed, and that it indicated that Connie had a blood alcohol content of .13% at the time of her death. Dr. Warner testified that, based on his experience and training, he believes that Connie was intoxicated at the time of her death.
The original complaint in this action sought recovery from the estate of Connie Price, and the complaint was later amended to include as defendants State Farm Mutual Automobile Insurance Company, West Oil Company, and Convenience. Connie Price's estate and State Farm reached a pro tanto settlement with the plaintiffs, and the trial court dismissed the claims against those defendants. The trial court entered a summary judgment for West Oil Company. This appeal involves only the plaintiffs' claims pursuant to §§ 6-5-70 and -71 against Convenience.
Enacted originally as § 2467 of the 1907 Code of Alabama and referred to as the Civil Damages Act (see Parker v. Miller Brewing Co., 560 So. 2d 1030 (Ala. 1990)), § 6-5-70 provides:
Entering summary judgment for Convenience, the trial court held:
The parties do not seem to dispute in this appeal that the defendant unlawfully sold or furnished beer to Jimmy, a minor, and that Convenience was chargeable with notice or knowledge of his minority. Accordingly, the dispositive issue presented in relation to the trial court's judgment on Mr. Espey's claim under the Civil Damages Act is whether, for the purposes of the Civil Damages Act, the term "spirituous liquors" includes beer. Mr. Espey, of course, contends that it does.
Citing the concurring opinion in Laymon v. Braddock, 544 So. 2d 900, 904 (Ala.1989), Convenience argues that the term "spirituous liquors" in the Civil Damages Act does not include beer. To support that proposition, Convenience cites Tinker v. State, 90 Ala. 647, 8 So. 855 (1891), and § 28-3-1(15).[1] As we discuss presently, close scrutiny of Tinker and § 28-3-1(15) indicates that, except perhaps for dictum in Tinker that actually supports Mr. Espey's position, neither Tinker nor the Code provision is appropriate for determining the meaning of "spirituous liquors" in the Civil Damages Act. Instead, to determine whether the Legislature intended to include beer in the meaning of "spirituous liquors" in the Civil Damages Act, we must look to other case law and consider the historical context of Alabama's Prohibition movement, during which the Civil Damages Act was enacted.
Tinker, decided in the November 1890 term of this Court, involved an appeal from a conviction for selling "liquor" without a license. The statute involved in that case was a general law of local application that addressed "preventing the sale or giving away or otherwise disposing of spirituous or vinous liquor"; the alleged illegal sale involved lager beer, which the Court "judicially knew" to be "malt liquor." The trial court charged the jury that the sale of the lager beer was a violation of the prohibitory statute. The Court reversed the judgment and remanded the cause, because, it held, lager beer, which was "malt liquor," was not addressed by the statute, which addressed instead, the sale of "spirituous and vinous liquor." The Court, basing its holding on Allred v. State, 89 Ala. 112, 8 So. 56 (1890), held that "spirituous liquor means that which, in whole or in part, is composed of alcohol extracted by distillation." 90 Ala. at 648, 8 So. at 855.
Although at first glance that holding might seem dispositive of the issue we address today, closer scrutiny reveals that it is not. For its definition of spirituous liquor, Tinker cited Allred, which was decided the year before Tinker, in the November 1889 term. In Allred, Dr. Allred was indicted and convicted for retailing "spirituous," "vinous," or "malt" liquors, or "intoxicating bitters," without a retailing license. The statutes involved were §§ 629(3), 4036, and 4037 of the 1887 Code of Alabama. Section 629(3) is found in Title 7, Chapter 9, Article I. Chapter 9 specifically addressed "Licenses" and Article I specifically addressed "Businesses and callings for which licenses are required." Section 629(3) provided:
Sections 4036 and 4037 were located in Title 2, Chapter 7, Article 13. Chapter 7 addressed "offenses against public morality and decency," and Article 13 addressed "Disposing of Liquor Illegally and Violating Prohibitory Laws." Section 4036 provided:
Section 4037 provided:
These related licensing and criminal statutes specifically listed as distinct types of liquors "spirituous," "vinous," and "malt" liquors. Section 629(3) provided for licensing fees for retailers of those kinds of liquors; §§ 4036 and 4037 provided for enforcement of § 629 by providing criminal penalties for failure to comply with § 629. In this context, remembering that the statutes themselves delineate between three types of "liquors," consider what the Court in Allred said:
89 Ala. at 112-13, 8 So. 56-57 (emphasis added).
As the Court wrote in Allred, the trial court charged the jury on "intoxicating liquors," although the statutes involved addressed, instead, "spirituous," "vinous," and "malt" liquors. Confronted with that charge, the Court had to define "spirituous," "vinous," and "malt" for the purposes of the statutes involved, in order to determine if those types of liquors meant the same thing as "intoxicating" liquor, concerning which the trial court charged the jury. In that context, the Court announced the definition of "spirituous liquor" that Convenience argues should be used to define the term "spirituous liquors" in the Civil Damages Act.
This discussion, however, reveals that the definition of "spirituous liquors" upon which Convenience relies had nothing to do with the Civil Damages Act; instead, the definition was related to § 629, a licensing statute that for the purpose of license fees listed three distinct types of liquors, "spirituous," "vinous," and "malt" liquors, and §§ 4036-4037, which likewise listed as distinct types of liquors "spirituous," "vinous," and "malt" liquors and provided for the enforcement of § 629 by criminal penalties for failure to comply with that section. The progeny of Allred and Tinker also reflect that the term "spirituous liquors" in Allred and Tinker was related to a specific classification of "liquor," as opposed to other intoxicants, in licensing and criminal statutes, not the Civil Damages Act. *1226 Bouyer v. City of Enterprise, 4 Ala.App. 276, 58 So. 755 (1912) (although Bouyer did not directly address the definition of "spirituous liquors," it cited Allred; Bouyer involved an alleged violation and a subsequent conviction for violating an ordinance concerning selling without a license "spirituous, vinous, or malt liquors, or intoxicating drink"); Marks v. State, 48 So. 864,159 Ala. 71 (1909) (appeal of conviction under criminal statute; defines "spirituous," "vinous," and "malt" liquors and intoxicating bitters for purposes of Act 53, Ala. Acts 1907, Special Session, which was a statewide prohibition statute making it illegal, except in limited instances, to "manufacture, sell, barter, exchange, give away to induce trade, furnish at public places or otherwise dispose of spirituous, vinous, or malt liquors, intoxicating bitters"); Lambie v. State, 151 Ala. 86, 44 So. 51 (1907) (indictment and conviction under Act 13, Ala. Acts 1892-93, for selling "spirituous, vinous, or malt liquor" without a license); Dinkins v. State, 149 Ala. 49, 43 So. 114 (1907) (indictment and conviction for sale of "malt" liquor, which was prohibited by Act 273, Ala. Acts 1886-87, and § 5077, 1896 Code of Alabama, which was the recodification of § 4037, 1887 Code of Alabama, one of the code sections involved in Allred); Roberson v. State, 100 Ala. 123, 14 So. 869 (1894) (indictment and conviction for disposition of "intoxicating liquor" without a license); Harrison v. State, 91 Ala. 62, 10 So. 30 (1890) (indictment and conviction for selling liquor without a license); Brantley v. State, 91 Ala. 47, 8 So. 816 (1891) (indictment and conviction under local prohibitory act, Act 284, Ala. Acts 1886-87, for selling either spirituous, vinous, or malt liquors or intoxicating bitters within one mile of a church).
In Sarlls v. United States, 152 U.S. 570, 14 S. Ct. 720, 38 L. Ed. 556 (1893), the United States Supreme Court cited Tinker in a manner consistent with the preceding discussion. Sarlls was convicted for violating a federal statute by selling lager beer, which the indictment averred was a "spirituous liquor," to the Choctaw Indians in "Indian Country"; that statute provided that it was illegal to provide "spirituous liquor or wine" to "Indian Country." The Court stated that the issue presented was whether lager beer was a "spirituous liquor or wine"; it ultimately determined that lager beer was neither. The Court wrote:
152 U.S. at 571-75, 14 S. Ct. at 720-22 (emphasis added).
Accordingly, even the United States Supreme Court indicated that Tinker gave the definition of "spirituous liquors" for the purposes of criminal statutes; moreover, the Court's discussion and holding indicate that federal criminal and alcoholregulatory statutes at the time of Allred and Tinker made the same distinctions between "liquors" that the Alabama statutes and cases made.
Our discussion shows that Allred and Tinker's definition of "spirituous liquor" was based on licensing and criminal statutes that specifically delineated between various types and classes of "liquors." The Civil Damages Act is neither a criminal statute nor a licensing provision. Instead, both as it was originally enacted, and as it exists recodified today, the Civil Damages *1228 Act is a provision that creates a cause of action. As originally enacted, the provision was located in the "Torts" portion of the Code; now it is located in Alabama Code 1975 in Title 6, which addresses "Civil Practice," and in Chapter 5, which is entitled "Actions" and which includes the statutory right to various actions, such as, for example, wrongful death, § 6-5-410, and fraud, deceit, and misrepresentation, § 6-5-100 et seq. Accordingly, it is inappropriate to conclude, as Convenience does, that the definition of "spirituous liquors" found in Allred and Tinker is necessarily the definition that the legislature intended for the term "spirituous liquors" in the Civil Damages Act.
With the previous discussion in mind, consider Convenience's citation to § 28-3-1(15), Convenience's major authority for its argument apart from Tinker. Section 28-3-1(15) provides this definition of "liquors":
(Emphasis added.) Title 28 addresses "Intoxicating Liquor, Malt Beverages, and Wine" and, in addition to Chapter 3, which covers "Regulation and Control of Alcoholic Beverages in Wet Counties," Title 28 has chapters providing for "Elections as to Sale and Distribution of Alcoholic Beverages Within Counties and Cities" (chapters 2 and 2A), "Alcoholic Beverage Licensing Code" (chapter 3A), and other chapters concerning the regulation of the production, sale, and distribution of alcoholic liquids. A review of the substance of the provisions of Title 28 indicates that, like Allred and Tinker, § 28-3-1 gives a specific definition that is associated with specific regulatory statutes that are not related to the Civil Damages Act. Furthermore, § 28-3-1 itself limits its field of application to three provisions in Title 28: Title 28, chapter 3, the Alabama Table Wine Act, and the Alcoholic Beverage Licensing Code, § 28-3A-1 et seq. Even within those provisions, § 28-3-1 itself allows the definition to be modified if "the context clearly indicates otherwise." § 28-3-1. Accordingly, we find that § 28-3-1(15)'s definition of "liquor" is not determinative of the definition of the term "spirituous liquors" in the Civil Damages Act.
To summarize the discussion so far, we find that Convenience's analysis is inappropriately simple, because it focuses only on certain statutory and case law definitions of "spirituous liquors" without recognizing the context from which those definitions come. Our discussion of that context regulatory, licensing, and criminal statutesreveals that the definitions are not determinative of the definition of the term "spirituous liquors" in the Civil Damages Act. Accordingly, we do not accept Convenience's argument.
That does not necessarily mean that we accept Mr. Espey's argument either, however. Mr. Espey contends that at the time the Civil Damages Act was enacted, the use of the term "spirituous liquors" by itself in a statute, as the Legislature used the term in the Civil Damages Act, embraced all liquors or beverages containing alcohol, while its use along with other classes of liquorsfor example, malt or vinous liquorsconfined its meaning to liquors made by the process of distillation.
Mr. Espey cites dicta in Allred and Tinker to support his argument. In Allred, the Court wrote:
89 Ala. at 113, 8 So. at 56-57.
90 Ala. at 647-48, 8 So. at 855.
Also, in Sarlls, supra, the United States Supreme Court wrote "[t]hat by the term `spirituous liquors', used alone in a statute, it may with some plausibility be contended the legislature meant to signify all intoxicating drinks." 152 U.S. at 575, 14 S. Ct. at 722.
We have already established that the holdings of Allred and Tinker are not determinative of the definition of "spirituous liquors" in the Civil Damages Act. Although the dicta in those cases and in Sarlls may be instructive on the definition of "spirituous liquors," it is not determinative of that definition. To determine whether the legislature meant to include beer in the term "spirituous liquors" in the Civil Damages Act, although we should consider what the Court said in Allred and Tinker because the legislature may have been aware of the cases, we must also consider the tone of the time during which the Civil Damages Act was enacted and the logic of excluding beer from the coverage of Civil Damages Act. By taking an overall look at the Civil Damages Act, we avoid the mistake of oversimplifying, as both Convenience and, to a lesser extent, Mr. Espey did in their arguments.
The Civil Damages Act was enacted as § 2467 of the 1907 Code of Alabama. As we will discuss, 1907 was a year of monumental success and zeal for the Prohibition movement in Alabama. J. Sellers, The Prohibition Movement in Alabama, 1702 to 1943, 92-124 (1943); S. Hackney, Populism to Progressivism in Alabama, 302-05 (1969).
As a brief background to the events of 1907, consider that the sentiment favoring Prohibition began to grow in Alabama in the 1880s. With the establishment of the Alabama chapter of the Anti-Saloon League in 1904, the Prohibition movement in the state began to gather momentum. The Anti-Saloon League, given impetus by churches, was aggressive and well organized, and it quickly became powerful. Sellers, supra, at 102-03. In 1906, as regarded the sale of alcohol, there were four types of counties: 21 counties that had total prohibition by special act of the Legislature, 21 counties where various licenses were required to sell alcohol, 16 counties where only the county itself sold alcohol through a "dispensary," and 9 counties that had both dispensaries and saloons that operated by license arrangements.
Although total prohibition was the ultimate goal of the Anti-Saloon League and it was determined to push steadily towards that goal, the League was also determined not to push for more Prohibition legislation than popular sentiment supported. Accordingly, in 1906 the Anti-Saloon League prepared, as its first major legislation, a bill that provided that if one-fourth of the voters of any county should apply to the probate judge, he must order an election for that county on the issue of prohibition of the sale of alcohol in that county; in other words, the proposed legislation gave each county the local option to prohibit the sale of alcohol, although counties with dispensaries were excepted for two years. Sellers, supra, at 104; Hackney, supra, at 303.
The legislation was introduced in the Alabama House in January 1907. The manufacturers, distributors, and retailers of alcohol were strongly opposed to the legislation, of course, and the alcohol industry sought vigorously to defeat the bill. After several days of emotional testimony before the House Temperance Committee by Prohibition supporters and two speeches by lawyers representing the alcohol industry, the House approved the legislation by a vote of 81-2. Sellers, supra, at 108. The *1230 Senate amended the bill to say that elections on the local option might be held every two years and passed the legislation by a vote of 22-0. Senate Journal, 1907, pp. 1031-63. The House approved the bill as amended, and Governor Braxton Bragg Comer signed the legislation, which is Act 149, Ala. Acts of 1907. Later, in separate legislation, the legislature repealed the two-year exemption for dispensaries.
Coosa County was the first to try this new local option law, and the Prohibition referendum in that county passed by a landslide. Elections in Butler, Pickens, Talladega, and Tuscaloosa Counties followed, and in each county the Prohibitionists won landslide victories. Encouraged and admittedly surprised by the speed and margin of its success, the Anti-Saloon League decided to push onward for total statewide Prohibition. When rumors began circulating that Governor Comer would call a special session of the legislature to deal with railroad regulations, the Anti-Saloon League determined to convince Comer, who was generally a supporter of Prohibition, to include total statewide Prohibition legislation in the agenda for the special session.
As the time approached for Comer to convene the special session, Prohibitionists won landslide victories in nine more county local option elections; the Prohibitionists claimed a major victory by winning in Jefferson County, the most populous county in the state and a county thought by the alcohol industry to be able to resist the Prohibitionist forces. With the impetus from consistent landslide victories in the local option elections, the Anti-Saloon League and other Prohibitionist groups drafted proposed legislation to abolish all forms of legally manufacturing, distributing, or retailing alcohol. In early November 1907, on the first day of the special session, A.H. Carmichael, Speaker of the House and a Prohibitionist, introduced a bill
Act 53, Special Session, Ala. Acts of 1907.
Although those opposed to total statewide Prohibition were strongly opposed,[2] the opposition does not appear to have been very widespread. The House passed the bill by a vote of 66-25 and the Senate passed it by a vote of 32-2. The legislation's effective date was set as January 1, 1909. Sellers, supra, at 121.
Even with the passage of the total statewide Prohibition bill, the Prohibitionists continued to force local option elections, then win them in landslide victories. By the end of the year, December 31, 1907, only 17 of Alabama's 67 counties permitted any sale of alcoholic beverage. Sellers, supra, at 123. Accordingly, for the Alabama Prohibition movement, 1907 was a year of spectacular success: in one year, the legislature passed the Prohibitionists' long-sought local option law, and 29 of the 46 counties that allowed the sale of alcohol responded by voting for county-wide Prohibition; in the same year, the legislature passed legislation establishing total statewide Prohibition.
In that year, the legislature enacted the Civil Damages Act as a provision of the 1907 Code of Alabama. Considering the tone of the times in which the statute was enacted as a provision of the Code and considering the statute on its face, we hold that the Civil Damages Act is a "temperance" or "prohibition" provision, intended to deter the sale of "spirituous liquors" to minors, to deter the intoxication of the minor that would result from such a sale, *1231 and to provide a remedy for the aggrieved parties that the Act describes.
Given this purpose, we can discern no reason why the legislature would have intended the application of the Civil Damages Act to be restricted only to a case involving the sale of distilled liquors, not beer. Indeed, we conclude that the legislature intended the opposite; given the purpose of the statute, the legislature must have meant for the term "spirituous liquor" to include beer, because to hold otherwise would defeat the purpose of the statute. Although State v. Giersch, 98 N.C. 720, 4 S.E. 193 (1887), like Tinker and Allred, involved an appeal concerning a criminal statute, we find the language and reasoning of that case in addressing whether "spirituous liquor" means only distilled liquor to be instructive in our discussion today:
98 N.C. at 722-23, 4 S.E. at 194-95.
Aside from the fact that it would contradict the purpose of the Civil Damages Act to exclude beer from the meaning of "spirituous liquor," as a matter of common sense it would make no sense to conclude that the legislature intended the term "spirituous liquors" in the Civil Damages Act to mean only distilled liquors, not beer.[3] Notwithstanding Convenience's arguments, now shown to be inaccurate, concerning the definition of "spirituous liquors" and some dictionaries' definitions of "spirituous liquors," nothing indicates that the legislature intended the term "spirituous liquors" in the Civil Damages Act to apply only to distilled liquor, not beer. Logic, the purpose of the statute, and the historical context of the enactment of the Civil Damages Act all demand that beer be included within the meaning of "spirituous liquors" in the Civil Damages Act. Accordingly, we hold that for the purposes of the Civil Damages Act the term "spirituous liquors" includes beer.
Furthermore, notwithstanding the discussion so far, compelling public policy defeats Convenience's arguments and requires that beer be included within the meaning of "spirituous liquors" in the Civil Damages Act. If we held otherwise, the net result would be that no cause of action could be maintained under the Civil Damages Act for injuries caused by a seller or furnisher of alcoholic beverages to any minor in this state, if those beverages were produced by a means other than distillation. In other words, a retailer could escape civil liability for selling intoxicants to minors by restricting those sales to wine, beer, "wine coolers," and other non-distilled beverages.
Today our society is confronted with a tremendous number and variety of alcoholic beverages. Wine coolers and beer packaged *1232 in carry-out cartons are available on almost every corner and in the neighborhood grocery. Hundreds of millions of dollars are spent annually to promote dozens of brands of beer and wine. "Happy hours" featuring half-price beer are commonplace. Powerful automobiles, operated by minors, are commonplace.
Beer and wine are every bit as capable of causing inebriation as hard liquor. Whether the damage is caused by a retailer who sells hard liquor to a minor or by one who sells beer to a minor, the injury and suffering that could be the proximate result would be the same.
To hold, as Convenience asks us to, based on precedent that was established a century ago when circumstances were vastly different, and then to buttress that holding on an adherence to technical definitions not applicable to the Civil Damages Act, would visit a great injustice on both society and the law. The law should not permit such an artificial distinction between beer and wine on the one hand, and distilled liquor on the other, for the purpose of giving meaning to the term "spirituous liquors" as it is used in the Civil Damages Act.
The judgment of the trial court as to Mr. Espey's claim under § 6-5-70 is in error. In regard to his claim, that judgment is due to be reversed and the cause remanded.
Both Mr. Espey and his son Jimmy assert claims pursuant to § 6-5-71, Alabama's "Dram Shop" Act, based on Connie's intoxication. Mr. Espey argues that he also asserted a claim under § 6-5-71 based on Jimmy's intoxication. Section 6-5-71 provides in pertinent part:
(Emphasis added.)
As to Mr. Espey's alleged claim based on Jimmy's intoxication, the record indicates that Mr. Espey did not assert such a claim. The count setting out the plaintiffs' claim under § 6-5-71 identifies Connie Price as the intoxicated person that caused the plaintiffs' injuries. That count does not even allege that Jimmy Espey's own intoxication contributed to his injuries. In fact, nothing in the entire record can reasonably be read to assert a claim on behalf of James under § 6-5-71 arising from the intoxication of his son.
As to the plaintiffs' claims based on Connie's intoxication, we find the wording of the statute itself dispositive. The statute provides a cause 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."
Convenience sold the beer to Jimmy, not Connie; that is undisputed. The sale to Jimmy was contrary to the provisions of law, but the claim involved in this appeal involves the alleged disposition of beer to Connie. Although it may be argued with some merit that Convenience "otherwise dispos[ed]" of the beer to Connie, we will not hold that Convenience's sale of the beer to Jimmy, who then gave it to Connie, was a disposition of the beer to Connie by Convenience that was "contrary to the provisions of law." Consider this example. A clerk sells beer to an adult, who can legally buy the beer, and that adult later gives the beer to a minor. The clerk in the example has no right to refuse to sell the beer to the person legally entitled to buy it. According to the plaintiffs' argument, although the sale itself was legal, the retailer would be liable for selling the beer "contrary to the provisions of law." Such a holding would for all practical purposes impose strict liability on retailers of alcohol; we *1233 expressly reject such a holding.[4]
The judgment of the trial court as to the plaintiffs' claims made pursuant to § 6-5-71 is due to be affirmed.
The judgment is affirmed in part and reversed in part, and the cause is remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS and INGRAM, JJ., concur.
STEAGALL, J., concurs in the result.
HOUSTON, J., concurs in part and dissents in part.
HOUSTON, Justice (concurring in part and dissenting in part).
I concur as to the holding in regard to the claim based on § 6-5-71, Ala.Code 1975.
I dissent as to the holding regarding the § 6-5-70 claim, for most of the reasons stated in the majority opinion.
The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. If possible, the intent of the legislature should be gathered from the language of the statute itself. However, if the statute is ambiguous or uncertain, the Court may consider conditions that might arise under the provisions of the statute and examine the results that would flow from giving the language in question one particular meaning rather than another. John Deere Co. v. Gamble, 523 So. 2d 95, 96-97 (Ala.1988), quoting from Clark v. Houston County Com'n, 507 So. 2d 902, 903-04 (Ala.1987).
The term "[s]pirituous liquor" is not ambiguous. It was being used around the time the statutory predecessor of § 6-5-70 was enacted by the legislature to mean that alcoholic drink that in whole or in part was composed of alcohol extracted by distillation. "[S]pirituous liquor" had been defined in that manner by this Court prior to the enactment of the predecessor to § 6-5-70. Tinker v. State, 90 Ala. 647, 648, 8 So. 855 (1891). Neither beer nor wine was "spirituous liquor," Laymon v. Braddock, 544 So. 2d 900, 905 (Ala.1989). To say that the legislature had a momentary lapse of memory on one day in 1907 is *1234 nothing short of violating the separation of powers mandate (Alabama Constitution 1901, § 43) and § 6.11 of Amendment No. 328 of the Constitution, which appears to limit the power of this Court to "abridge, enlarge or modify the substantive rights of any party."
In 1907, adopting the statutory predecessor to § 6-5-70, the legislature used the term "spirituous liquors." In 1909, adopting the statutory predecessor to § 6-5-71, the legislature used the phrase "any liquors or beverages, [that] cause the intoxication of such person."
In my special concurrence in Laymon v. Braddock, 544 So. 2d at 904-06, I wrote the following:
(Emphasis in original.)
I was fully aware of the history surrounding the early 20th Century Prohibition acts when I wrote my special concurrence in Laymon v. Braddock, supra. See Martin v. Watts, 513 So. 2d 958 (Ala.1987) (Houston, J., dissenting, 513 So.2d at 981-87), in which this history is discussed in great detail.
When I wrote my special concurrence in Laymon v. Braddock, I thought "that wine and beer should be included in § 6-5-70." I still do. However, interpreting the words of § 6-5-70, I cannot hold that they are, unless I do what Alabama Constitution 1901, Article III, § 43, prohibits me from doing (exercising legislative power). I took an oath to uphold the Constitution, including § 43. Thanks to the majority opinion "wine and beer," are included in § 6-5-70. To legitimize this action, I implore the legislature to replace the term "spirituous liquors" in § 6-5-70, with the phrase used in § 6-5-71: "any liquors or beverages [that] cause the intoxication of such person." The majority opinion suggests that I took "an unduly narrow approach" in defining words in my special concurrence in Laymon v. Braddock, supra, in using the definitions found in five different dictionaries. In my opinion, the majority opinion interprets "spirituous liquors" in the same manner as the hubristic eggshell in the following literary classic:
Lewis Carroll, Through the Looking Glass, ch. VI (Nelson Doubleday, Garden City, N.Y.).
[1] Convenience bases its argument primarily on the concurrence in Laymon. That concurrence also argued as authority for its position five dictionaries' definitions of the term "spirituous liquor." Although there may be instances when it is necessary to base a judgment on such definitions, our discussion will show that that is an unduly narrow approach in this situation.
[2] Mobile leaders warned that if the statewide prohibition legislation passed, Mobile would secede from Alabama and establish home rule. Sellers, supra, at 121. They did not attempt to do so, however, when the legislation passed.
[3] Indeed, to read the Civil Damages Act to apply only to the sale of distilled liquors might well make the statute facially violative of the equal protection provisions of the United States and Alabama Constitutions.
[4] In regard to the plaintiffs' § 6-5-71 claim based on Connie's intoxication, the trial court wrote:
"As to the claim under 6-5-71, considering the evidence most favorably to the plaintiffs there is no evidence that the defendant furnished alcohol to the minor who caused the injury i.e. Connie Price. There was evidence that the defendant's clerk, who sold the beer, could have seen Connie Price if she had looked out the window of the store and thereby determined that Connie Price was a minor and that she could have been expected to consume the beer. However, there is no evidence that the clerk looked out the window or that she saw Connie Price. Therefore, there is no substantial evidence before the court to support the plaintiffs' claim that the defendant furnished beer to the minor who caused the injury as claimed under 6-5-71."
The trial court's use of the word "furnishing" in relation to § 6-5-71 does not precisely track the language of that provision, which states instead that "selling, giving or otherwise disposing of any liquors or beverages" is the basis for creating liability under § 6-5-71. That is an important distinction in terminology, because the term "furnishes" under the Civil Damages Act has a particular significance:
"We interpret the words `furnishes and furnishing' in § 6-5-70 to extend liability under § 6-5-70 to a seller or furnisher of spirituous liquors, who, from the totality of the circumstances, must reasonably infer that the person to whom the spirituous liquor is sold or furnished will permit a minor to consume some of this spirituous liquor."
Laymon v. Braddock, 544 So. 2d 900, 904 (Ala. 1989).
The bench and bar should understand that Laymon's "totality of the circumstances" test is specifically related to the terms "furnishes" and "furnishing" in § 6-5-70, Laymon, at 904, and that we have not yet applied a "totality of the circumstances" test to Dram Shop actions. That said, we understand that the trial court's use of the word "furnish" may have been a generic use of the word, as in to "provide," which was not related to Laymon`s specific meaning; indeed, on occasion, we have also used the terms "furnish" and "provide" in such a generic way in relation to § 6-5-71. James v. Brewton Motel Management, Inc., 570 So. 2d 1225 (Ala.1990); Parker v. Miller Brewing Co., supra, 560 So. 2d at 1033. By addressing only one portion of the trial court's holding in this footnote, we do not necessarily hold that the remainder of the trial court's holding was proper. | February 15, 1991 |
3e418f69-337b-4467-8abb-0ad51ddcb17d | Webster v. Church's Fried Chicken, Inc. | 575 So. 2d 1108 | 1900041 | Alabama | Alabama Supreme Court | 575 So. 2d 1108 (1991)
Gloria WEBSTER
v.
CHURCH'S FRIED CHICKEN, INC.
1900041.
Supreme Court of Alabama.
March 1, 1991.
Stephen M. NeSmith of Riggs & NeSmith, Montgomery, for appellant.
Henry C. Chappell, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
HOUSTON, Justice.
Gloria Webster sought to recover damages for negligence or wantonness for a *1109 criminal act (an attempted purse snatching) committed by a third party against her while she was on the defendant's premises. Webster alleged that she was injured while on the premises of the defendant, Church's Fried Chicken, Inc., when she was knocked to the ground by an unknown assailant who attempted to snatch her purse from her arm. She further alleged that, on the day she was injured, the defendant was under a duty to protect her from this kind of criminal act and that the defendant breached that duty.
The defendant moved for a summary judgment, with supporting evidence. The plaintiff opposed that motion by submitting evidence that, she says, showed that the employees of the defendant knew on the day that she was injured that criminal acts had previously occurred on the premises and that those acts made it foreseeable that the attempt to snatch her purse was an imminent probability. This Court recently reaffirmed the well-established rule that such a showing is necessary in this state to establish that a premises owner was under a duty to protect a business invitee from criminal activity. See, e.g., Bailey v. Bruno's, Inc., 561 So. 2d 509 (Ala. 1990).[1] The trial court entered a summary judgment in favor of the defendant, and the plaintiff appealed.
We have carefully reviewed the record in this case, including those portions of it that the plaintiff says support her theories of recovery. The record does show that from January 24, 1988, through December 1, 1988 (the day of the attempted purse snatching), there had been five other purse or jewelry snatching incidents involving patrons of the defendant. The record also shows that during that period other criminal acts were also committed on the defendant's premises, including several thefts that did not involve patrons of the defendant and certain acts of criminal mischief that were committed against the property of the defendant (e.g., objects were thrown through windows). However, after examining the evidence in the light most favorable to the plaintiff, as our standard for reviewing a summary judgment requires us to do, Stafford v. Mississippi Valley Title Ins. Co., 569 So. 2d 720 (Ala.1990), we conclude that the volume and nature of the criminal activity that had occurred on the defendant's premises prior to the incident involving the plaintiff is insufficient, as a matter of law, to show that it was foreseeable to the defendant that the attempt to snatch the plaintiff's purse was an imminent probability. Unlike the defendants in Nail v. Jefferson County Truck Growers Ass'n, Inc., 542 So. 2d 1208 (Ala.1988), the defendant in the case at issue did not have the sort of specialized knowledge that gives rise to a duty to protect. Our conclusion in this regard is dictated by, and the judgment is due to be affirmed on the authority of, Bailey v. Bruno's, Inc., supra (evidence of seven incidents involving violence or threats of violence during the 21-month period preceding the assault on the plaintiff held to be insufficient, as a matter of law, to establish that a duty to protect existed on the part of the defendant); Williams v. First Alabama Bank, 545 So. 2d 26 (Ala.1989) (evidence of two robberies during the approximate one-month period preceding the robbery of the plaintiff held to be insufficient, as a matter of law, to establish that a duty to protect existed on the part of the defendant); Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368 (Ala. 1986); Ortell v. Spencer Companies, Inc., 477 So. 2d 299 (Ala.1985) (evidence of eight incidents involving assault, theft, robbery, or burglary, during the three-year period preceding the robbery of, and the assault on, the plaintiff held to be insufficient, as a matter of law, to establish that a duty to protect existed on the part of the defendant); and Henley v. Pizitz Realty Co., 456 So. 2d 272 (Ala.1984) (evidence of 16 incidents involving a battery, the breaking and entering of automobiles, robberies, and thefts, during the 10-year period preceding the abduction and rape of the plaintiff held *1110 to be insufficient, as a matter of law, to establish that the defendant had a duty to protect).
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] We note that the present case is clearly distinguishable from Brock v. Watts Realty Co., [Ms. 89-1362, February 22, 1991] (Ala.1991), where this Court recently held that the duty on the part of the defendants to protect the plaintiff's decedent was created by housing code ordinances enacted by the City of Birmingham. | March 1, 1991 |
4e2c0e46-ca17-4ee3-a555-bc1374e575cd | McAllister v. Altus Bank | 578 So. 2d 1266 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1266 (1991)
Harry H. McALLISTER
v.
ALTUS BANK, a Federal Savings Bank.
89-1509.
Supreme Court of Alabama.
April 19, 1991.
*1267 Douglas Rogers, Birmingham, for appellant.
Stewart M. Cox and Frank C. Galloway III of Bradley, Arant, Rose & White, Birmingham, for appellee.
INGRAM, Justice.
This Court's original opinion of January 11, 1991, is withdrawn, and the following is substituted therefor.
During the late afternoon or evening of October 6, 1987, Harry H. McAllister and M. Dane Waters entered into a written contract for the sale of a parcel of land, designated as Lot 4, in Mountain Brook, Alabama. Waters had purchased the lot and two others, Lot 3 and Lot 7, the previous day. He had given two mortgages, one secured by Lot 3 and one secured by Lots 4 and 7, on the morning of October 6 to Altus Bank. The mortgage on Lots 4 and 7 was recorded on October 16, 1987. The contract for sale was recorded by McAllister on April 22, 1988.
The contract for sale was sufficient to meet the requirements for filing. It was in writing and was signed by the parties; it adequately described that property; and it was witnessed. It recited that $27,000.00 had been given in consideration for the sale of the land. The terms of the contract were as follows:
(Emphasis supplied.)
On June 10, 1988, Waters gave a second mortgage to Altus Bank, secured by Lots 3 and 4. Lot 7 had been released. The proceeds of this second mortgage were used to pay off the debt secured by the first mortgages. The second mortgage was recorded on June 14, 1988, and the satisfaction of the first mortgage on Lots 3 and 4 was recorded on October 13, 1988.
Waters did not deliver a deed for Lot 4 to McAllister on June 15, 1988, as stipulated by the terms of the contract; McAllister filed suit on July 11, 1988, to compel specific performance of the contract. On February 23, 1989, Waters filed a bankruptcy petition in the United States District Court for the Northern District of Alabama, naming McAllister and Altus Bank as creditors. The bankruptcy proceedings temporarily stayed the action in the trial court until a relief from stay was granted by the bankruptcy court.
McAllister learned of the second mortgage through the bankruptcy proceedings and, on September 18, 1989, added Altus Bank as a defendant in his action. His amended complaint requested the trial court to do three things:
Waters defaulted on the second mortgage, and Altus Bank foreclosed on the outstanding debt of $45,000.00 on August 18, 1989. Waters filed a motion to be dismissed from this proceeding on February 9, 1990. The motion stated that Waters had no interest in the property and that the remaining unresolved issues involved only McAllister and Altus Bank. Waters was dismissed without objection.
Altus Bank filed a motion for summary judgment, which was granted April 4, 1990. McAllister's motion to alter, amend, or vacate the summary judgment was denied on May 31, 1990, and he now appeals.
McAllister's argument on appeal is that material questions of fact existed as to whether his interest in the property was superior to Altus Bank's. He argues (1) that the evidence shows that Altus Bank was not a bona fide purchaser for value because it had notice of the contract for sale between McAllister and Waters and (2) that the second mortgage was a novation of the first mortgage and therefore was subject to the interest of McAllister.
Altus Bank contends that it is irrelevant whether it was a bona fide purchaser because, it says, Waters's failure to perform under the contract for sale resulted in McAllister's not having legal title to Lot 4. Altus Bank contends that the contract for sale required Waters to transfer clear title. However, title to Lot 4 was not clear on June 15, 1987, because it was burdened by the second mortgage. Altus Bank contends that, because Waters was unable to perform under the contract by transferring "clear" title on June 15, McAllister never received any interest in Lot 4.
McAllister claims an interest in Lot 4 through his contract for sale with Waters, recorded on April 22, 1988, under the provisions of § 35-4-51, Ala.Code 1975. That section provides that contracts, when executed in accordance with law, can be recorded in the office of the judge of probate, and that the recording of the contract for sale operates as notice of its contents. § 35-4-63, Ala.Code 1975. This recording alone, however, was not sufficient to create a property interest in McAllister.
Under the terms of the contract for sale, Waters was to "issue" a deed to Lot 4 when he sold Lot 3 or Lot 7, but in no event later than June 15. The contract for sale states that if the deed was delivered upon the sale of Lot 3 or Lot 7, Waters was to convey "clear" title. On the other hand, Waters was not required, by the terms of the contract for sale, to convey clear title on June 15, 1988. Therefore, the contract for sale, by its terms, did not prohibit Waters from further burdening the property prior to June 15, 1988.
On June 15, 1988, Waters possessed only an equitable right of redemption in Lot 4; Altus Bank possessed the legal title under the terms of the second mortgage. The debt secured by the first mortgage had been paid off on June 10, 1988, with the proceeds from the loan secured by the second mortgage. McAllister argues that because the second mortgage was given after the contract for sale was recorded, Altus Bank took the second mortgage with notice of the contract for sale. Therefore, McAllister argues that Altus Bank could not be a bona fide mortgagee and that the contract for sale has priority over the second mortgage.
Because the contract for sale was properly recorded, Altus Bank is deemed to have had notice of the contract for sale when it took the second mortgage. See § 35-4-63, Ala.Code 1975. However, the terms of the contract for sale stated that the lot was to be conveyed on or before June 15, 1988, but the contract did not prohibit Waters from encumbering the property. Although Altus Bank had notice of the contract for sale, the notice, by its terms, was insufficient to prevent Altus *1269 Bank from taking a valid second mortgage on the property on June 10, 1988.
Since the second mortgage had priority over the contract for sale, the issue is what right, if any, did McAllister have in the property? Clearly, on June 15, 1988, McAllister had a right to specific performance of his contract, a contract for the sale of real property that required Waters to make and deliver a deed to Lot 4. On the breach of a contract to convey land, the purchaser is entitled to specific performance of the contract. See Stone v. Gover, 1 Ala. 287 (1840). When the seller does not have complete title, the purchaser is entitled to whatever interest the seller has in the property. N. Hansford, Tilley's Alabama Equity, § 3-9(b) (2d ed. 1985) (citing Morrison v. Booke, 432 So. 2d 1227 (Ala. 1983)). However, McAllister's right to specific performance, and therefore his right to assert Waters' right of redemption, was never attained.
McAllister filed suit on July 11, 1988, to compel Waters to perform. He was entitled to Waters's equitable right of redemption in Lot 4 as of June 15, 1988. The equitable right of redemption is a property interest that can be transferred. McGowen v. Williams, 241 Ala. 588, 4 So. 2d 164 (1941). McAllister's right to specific performance arose on June 15, 1988, and "a court of equity ... will give effect to the transaction by fixing status and rights of the parties as if the deed was executed on the date it should have been executed," Copeland v. Warren, 214 Ala. 150, 152, 107 So. 94, 96 (1926). Therefore, the trial court could have ordered specific performance and declared that McAllister was the holder of Waters's equitable right of redemption as of June 15, 1988. It did not do so before Waters was dismissed.
Nonetheless, any existing claims by McAllister against Altus Bank to redeem the property were effectively extinguished by the trial court's dismissal of Waters upon his own motion and without objection. All McAllister's claims to Lot 4 were grounded upon his right to have the property transferred as prescribed in the contract for sale. In order to recover against Altus Bank on any theory, McAllister needed a declaration of his right to specific performance of the contract for sale with Waters. No such declaration was issued before Waters's dismissal, and such a declaration is barred without Waters as a party. Waters possessed rights in the property at the commencement of this suit, and no action of the trial court has declared the status of those rights, particularly whether they should have been conveyed to McAllister on June 15. We hold that such a declaration now would be inequitable without Waters before the trial court; therefore, Waters's dismissal cuts off McAllister from any recovery based upon this contract for sale.
For the reasons stated above, the summary judgment in favor of Altus Bank against McAllister is affirmed.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION GRANTED; AFFIRMED.
MADDOX and HOUSTON, JJ., concur.
ALMON and ADAMS, JJ., concur in the result. | April 19, 1991 |
f0cbbf7b-bf2e-4440-b949-c0825869f69b | Ellis v. City of Birmingham | 576 So. 2d 156 | N/A | Alabama | Alabama Supreme Court | 576 So. 2d 156 (1991)
Paul L. ELLIS d/b/a E.T.C. Equestrian College
v.
CITY OF BIRMINGHAM.
89-720.
Supreme Court of Alabama.
January 25, 1991.
Paul L. Ellis, pro se.
Michael Melton, Birmingham, for appellee.
MADDOX, Justice.
Paul Ellis, whose business was not funded by the City of Birmingham under a job training program, sued the City, the mayor, and the council members, claiming that he had an implied contract with the City and that the City had defrauded him by promising him that he would be funded and then not funding him. The trial court entered summary judgment for the defendants. We affirm.
Ellis invested in a business venture, allegedly in reliance upon false representations by the defendants. He sued for damages incurred when his business, E.T.C. Equestrian College, was not funded by the Birmingham-Jefferson County Job Training Consortium.
Ellis was a volunteer member of the Horse Racing Job Retraining Committee ("retraining committee"), a committee formed by the City Council of Birmingham to determine what jobs would be created by the advent of horse racing in Birmingham and what sources of training for these positions would be needed. This committee was to report its recommendations to the *157 city council and to the Birmingham-Jefferson County Job Training Consortium, a joint agency established to approve such recommendations and to distribute funds received from the federal government under the Joint Partnership Training Act ("JTPA") to the approved job training facilities.
The retraining committee recommended Ellis's Equestrian College to the Consortium as a job training facility. Ellis says that, based on this recommendation and alleged encouragement by various city officials to believe that he would receive federal funding if he submitted a training proposal, he spent considerable time and money in drawing up training proposals. However, the Consortium rejected his proposals on approximately 10 occasions.
Ellis asserts that the City and its council breached an implied contract when they failed to provide him with "promised" funding. He alleges that the defendants encouraged him to develop and promote a job training program, and that that encouragement constituted fraud and misrepresentation and created an implied contract with the City. His arguments are without merit.
To be actionable in fraud, a statement must misrepresent a material fact and the defrauded party must act upon that misrepresentation to his detriment. Ala.Code 1975, §§ 6-5-100 and -101; American Pioneer Life Ins. Co. v. Sherrard, 477 So. 2d 287 (Ala.1985). The alleged "encouragement" or misrepresentations to which Ellis refers are statements made by council member E.L. Blankenship and by Mayor Arrington.
Blankenship spoke to the committee as a whole, saying, in effect, that "$500,000 of JTPA money would be set aside to finance the start of the job training program," that "the funds would be available for the entities that were recommended by the committee," that "whoever got the contract to run the track would have to deal with the committee," and that "once you are funded, you can be pretty well assured that you will be funded each year." In contrast to Ellis's assertions, none of these statements could reasonably be construed to be a promise to fund Ellis's specific job training program. Any reliance by Ellis upon these statements would have been unreasonable.
The alleged misrepresentations of Mayor Arrington occurred during a Consortium meeting at which Ellis asked the mayor about his proposal. According to Ellis, the mayor responded, "some $200,000 has been set aside for that general purpose." The "general purpose" was the funding of those entities selected by the Consortium, not the funding of Ellis's specific job training program. Reliance upon this statement would also have been unreasonable.
A contract implied in fact requires the same elements as an express contract, and differs only in the "method of expressing mutual assent." Berry v. Druid City Hospital Board, 333 So. 2d 796, 799 (Ala.1976). Implied contracts normally arise in situations where there is a bargained-for exchange contemplated by the parties, but no overt expression of agreement. Welborn v. Snider, 431 So. 2d 1198 (Ala.1983).
There is no evidence in the record indicating that the parties intended to become contractually bound. The retraining committee simply recommended Ellis's Equestrian College as a training facility. There were no successful negotiations between Ellis and the Consortium; in fact, the Consortium rejected his proposals approximately 10 times. Thus, there was no evidence of any agreement or bargained-for exchange between Ellis and the defendants.
Ellis contends that the city representatives, by word and conduct, misrepresented the availability of funding that would be available for horse track job-related training proposals when submitted by training entities represented on the job retraining committee. It is clear, however, that any work beyond the preliminary proposal phase was to be performed only upon *158 approval by the Consortium of the proposals. Although Ellis disputes this, it is clear that the defendants did not have the power to approve Ellis's proposal.
In fact, the form provided by Ellis in the record to be completed upon agreement between the recipient of the federal funds and the retraining committee specifically stated:
Ellis cannot recover for breach of contract because no one ever authorized him to prepare any work beyond submitting a proposal.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. | January 25, 1991 |
cfd542f1-aaba-467b-b7c0-25c0301fa44e | Ex Parte State | 601 So. 2d 124 | We | Alabama | Alabama Supreme Court | 601 So. 2d 124 (1991)
Ex parte State of Alabama.
(Re C.W. TOMLIN
v.
STATE).
89-1188.
Supreme Court of Alabama.
March 15, 1991.
Rehearing Denied May 10, 1991.
*125 Don Siegelman, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for petitioner.
J. Fairley McDonald III of Copeland, Franco, Screws & Gill, Montgomery, for respondent.
KENNEDY, Justice.
C.W. Tomlin was convicted of rape and sodomy. The Court of Criminal Appeals reversed the conviction and remanded the case for a new trial. Tomlin v. State, 601 So. 2d 120 (Ala.Cr.App.1989). We reverse.
The sole issue on this certiorari review is whether Tomlin knowingly and intelligently waived his right to counsel.
Tomlin was indicted for rape and sodomy, both in the first degree. The victim was his six-year-old daughter. He appeared at arraignment on September 10, 1987, without an attorney. He stated that he was familiar with the charges against him, waived the reading of the indictment, and entered a not guilty plea for each offense.
At the arraignment, the court set the trial date for October 26, 1987. Tomlin notified the court that he would retain his own counsel. Tomlin was then ordered to appear on October 23, 1987, with counsel for a plea docket and was to have his counsel notify the court before October 1, 1987, that they were to represent Tomlin. Tomlin was also told that if counsel had not been retained, then he was to appear before the court on October 1, 1987.
Tomlin failed to appear, and a writ of arrest was issued. An attorney filed a notice of appearance of counsel on October 9, 1987, and the writ of arrest was set aside. The attorney filed a motion for a continuance on the grounds that he had not had sufficient time to prepare for trial. The motion was granted. The employed *126 attorney and Tomlin appeared before the court on February 19, 1988, and the trial was rescheduled for April 4, 1988.
On March 22, 1988, the attorney filed a motion for leave to withdraw as Tomlin's counsel, stating in his motion that Tomlin had failed to aid him in preparing a defense and that Tomlin "persists in conduct which renders it unreasonably difficult for me to carry out my employment effectively." The attorney also stated that Tomlin insisted on "engaging in other conduct that is contrary to my advice, though it is in a matter not pending before this court" and that Tomlin indicated that he was not interested in being represented and had ignored requests to meet with the attorney. The attorney noted that Tomlin had failed to pay his fees and indicated that he was incapable of doing so.
The attorney notified Tomlin of his pending withdrawal and informed him that the trial was scheduled for April 4, 1988. The court denied the motion for withdrawal and ordered counsel to appear in court on April 1, 1988, for a plea docket and on April 4, 1988, for trial.
On March 30, 1988, Tomlin sent a letter to the court releasing his attorney from service and aserting the right to represent himself. In the letter, Tomlin stated as follows:
Tomlin appeared for the April 1, 1988, plea docket and demanded that he be allowed to represent himself. The court dismissed Tomlin's attorney. Due to the complexity of the case, the trial judge appointed another attorney to assist Tomlin at trial. The following colloquy occurred at the April 1, 1988, plea docket:
We note that the Court of Criminal Appeals did not have before it the record of the April 1, 1988, proceeding when it rendered its judgment of reversal.
The jury found Tomlin guilty of rape and sodomy.
From the record of the sentencing hearing, we can infer that the court offered to appoint a lawyer for Tomlin when the case was initially brought before the court on September 10, 1987. Instead, Tomlin hired his own lawyer.
The following colloquy occurred at the sentencing hearing:
In Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), the Supreme Court held that a defendant has a Sixth Amendment right to represent himself in a criminal case. In order to conduct his own defense, the defendant must "knowingly" and "intelligently" waive his right to counsel, because in representing himself he is relinquishing many of the benefits associated with the right to counsel. Faretta, 422 U.S. at 835, 95 S. Ct. at 2541. The defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'" Faretta, 422 U.S. at 835, 95 S. Ct. at 2541 (other citations omitted).
The burden of proof in the present case is on the defendant. When a defendant has clearly chosen to relinquish his right to counsel and has asserted his right to self-representation, and on appeal asserts that he was denied the right to counsel, he has the burden of showing, "`by a preponderance of the evidence, that he did not intelligently and understanding waive his right to counsel.'" Teske v. State, 507 So. 2d 569, 571 (Ala.Cr.App.1987), quoting Moore v. Michigan, 355 U.S. 155, 161-62, 78 S. Ct. 191, 195, 2 L. Ed. 2d 167 (1957). The Supreme Court in Carnley v. Cochran, 369 U.S. 506, 516-17, 82 S. Ct. 884, 890-91, 8 L. Ed. 2d 70 (1962), held that when the record clearly shows that a defendant has expressly waived his right to counsel, the burden of proving that his waiver was not made knowingly and intelligently is on the defendant. "A waiver of counsel can only be effectuated when the defendant asserts a `clear and unequivocal' right to self-representation." Westmoreland v. City of Hartselle, 500 So. 2d 1327, 1328 (Ala.Cr.App.1986), citing Faretta, 422 U.S. 806, 95 S. Ct. 2525. If the record is not clear as to the defendant's waiver and request of self-representation, the burden of proof is on the State. Carnley, 369 U.S. at 517, 82 S. Ct. at 890-91. Presuming a waiver from a silent record is impermissible. Carnley.
Here, the record reflects that the court offered to appoint counsel for Tomlin. The case action summary sheet states that on September 10, 1987, Tomlin notified the court that he would retain his own counsel. In a letter to the court, Tomlin expressly requested that the attorney he had retained be released. Also, in the letter, Tomlin asserted his right to self-representation. On April 1, 1988, at the plea docket Tomlin again asserted the right to represent himself. Because Tomlin clearly asserted the right to self-representation and waived the right to counsel, he must prove that his waiver was not made knowingly and intelligently.
Although the Supreme Court in Faretta states that a defendant should be made aware of the dangers and disadvantages of self-representation, the Supreme Court does not require a specific colloquy between the trial judge and the defendant. "The case law reflects that, while a waiver hearing expressly addressing the disadvantage of a pro se defense is much to be preferred, it is not absolutely necessary. The ultimate test is not the trial court's express advice but rather the defendant's understanding." Fitzpatrick v. Wainwright, 800 F.2d 1057 (11th Cir.1986) (citations omitted). In each case the court needs to look to the particular facts and *129 circumstances involved, "including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938).
This court looks to a totality of the circumstances involved in determining whether the defendant knowingly and intelligently waived his right to counsel. Jenkins v. State, 482 So. 2d 1315 (Ala.Cr.App. 1985); King v. State, 55 Ala.App. 306, 314 So. 2d 908 (Ala.Cr.App.1975), cert. denied; Ex parte King, 294 Ala. 762, 314 So. 2d 912 (1975).
The Court of Criminal Appeals looked to factors set out in Fitzpatrick, 800 F.2d 1057, to determine if the waiver in this case was made knowingly and intelligently. Although the Court of Criminal Appeals found Tomlin's waiver invalid, we realize that the entire record was not before that court. That court relied upon the following factors:
601 So. 2d 120.
Upon a review of the record as a whole, we note that the conversation between the judge and Tomlin consisted of more than pro forma questions and pro forma answers. Tomlin was offered the opportunity to have counsel appointed and refused it. Tomlin retained his own counsel but failed to aid counsel in preparing for the case. Tomlin released his retained attorney. The trial judge stated to Tomlin that it would be difficult for Tomlin to represent himself. The judge notified Tomlin that he must comply with the rules of procedure. Tomlin clearly invoked his right to self-representation. Out of an abundance of caution, the court did appoint counsel to assist Tomlin at the trial. We find that the record, taken as a whole, reveals that Tomlin "knowingly and intelligently" waived his right to counsel.
King v. State, 55 Ala.App. at 309, 314 So. 2d at 911.
We reverse and remand for proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur. | March 15, 1991 |
c2d0ee25-b6a9-45c7-8ea7-9813fb952288 | Ex Parte Bailey | 590 So. 2d 354 | N/A | Alabama | Alabama Supreme Court | 590 So. 2d 354 (1991)
Ex parte State of Alabama.
Ex parte Jerry W. BAILEY.
(Re Jerry W. Bailey v. State of Alabama).
89-1663, 89-1676.
Supreme Court of Alabama.
February 22, 1991.
Rehearing Denied April 5, 1991.
*355 Don Siegelman, Atty. Gen., and Yvonne A. Henderson, Asst. Atty. Gen., for petitioner/cross-respondent.
Debbie Lindsey Jared and G.A. Lindsey, Elba, for respondent/cross-petitioner.
HORNSBY, Chief Justice.
Jerry Bailey was convicted for the murder of his wife (see Ala.Code 1975, § 13A-6-2) and was sentenced to life in prison. The Court of Criminal Appeals reversed his conviction on the ground that the expert witness, Dr. Alfredo Paredes, had improperly based his opinion on facts and conclusions contained in an autopsy report prepared by another expert. Bailey v. State, 590 So. 2d 351 (Ala.Crim.App.1990). In light of this holding, the Court of Criminal Appeals did not address Bailey's argument that the State had not presented sufficient evidence to convict him. The State of Alabama petitioned this Court for a writ of certiorari pursuant to Rule 39, A.R.App.P., on the ground that the Court of Criminal Appeals had incorrectly reversed the conviction on the expert opinion issue. Also, Bailey petitioned this Court for a writ of certiorari, arguing that the Court of Criminal Appeals had improperly failed to address his sufficiency-of-the-evidence argument. We granted both petitions and issued the writs. We set aside the judgment of the Court of Criminal Appeals, reverse the conviction, and render a judgment of acquittal for the defendant.
In its opinion, the Court of Criminal Appeals stated:
In its opinion, the Court of Criminal Appeals determined that Dr. Paredes's testimony as an expert was based partly on conclusions made by another expert in the autopsy report. The court relied upon this Court's decision in Salotti v. Seaboard Coast Line R.R., 293 Ala. 1, 299 So. 2d 695 (1974), and on its own decision in Wesley v. State, 575 So. 2d 108 (Ala.Crim.App.1989). However, this Court has reversed the judgment in that case. Ex parte Wesley, 575 So. 2d 127 (Ala.1990); see also Nash v. Cosby, 574 So. 2d 700 (Ala.1990). In Nash and Ex parte Wesley, we enunciated the rule that a medical expert may give opinion testimony based in part on the opinions of others when those other opinions have been admitted into evidence.
In the present case, the expert witness, Dr. Paredes, relied on the autopsy report prepared by another expert. The autopsy report was in evidence at the time of Dr. Paredes's testimony. Therefore, because the Court of Criminal Appeals relied on a case that we subsequently reversed in Ex parte Wesley, and because of our decision in Nash, we reverse the Court of Criminal Appeals' holding on this issue.
In a murder case, the state must prove the corpus delicti beyond a reasonable doubt:
Breeding v. State, 523 So. 2d 496, 500 (Ala. Crim.App.1987) (quoting Scanland v. State, 473 So. 2d 1182, 1185 (Ala.Crim. App.), cert. denied, 474 U.S. 1035, 106 S. Ct. 602, 88 L. Ed. 2d 581 (1985)).
Bailey asserts that the evidence presented does not establish: (1) that his wife was killed; (2) that she was killed by him; or (3) that he caused her death. Further, he argues that there was no evidence of a struggle or foul play. In denying Bailey's motions for directed verdict and for acquittal, the trial court stated that although the State's case was "shaky," it would allow the jury to decide. Bailey, *357 however, argues that the circumstantial evidence presented by the State supports an inference of innocence and that he was therefore entitled to a judgment of acquittal.
Much of the evidence in this case is circumstantial, but circumstantial evidence does not preclude the jury from determining a defendant's guilt or innocence. In Ex parte Davis, 548 So. 2d 1041 (Ala.1989), we stated that either circumstantial evidence or direct evidence may be used to prove the guilt of a defendant. Further, in reviewing the sufficiency of the evidence, we must view the circumstantial evidence in the light most favorable to the prosecution to determine whether the jury might reasonably have found that the evidence excluded every reasonable hypothesis except guilt. Ex parte Mauricio, 523 So. 2d 87 (Ala. 1987); Robinette v. State, 531 So. 2d 682 (Ala.Crim.App.1987); Barnes v. State, 429 So. 2d 1114 (Ala.Crim.App.1982); Cumbo v. State, 368 So. 2d 871 (Ala.Crim.App.1978), cert. denied, 368 So. 2d 877 (Ala.1979).
The general standard by which we review the evidence is as follows:
Robinette v. State, supra, at 687.
The more specific test to be applied in reviewing the sufficiency of circumstantial evidence is not whether the evidence excludes every reasonable hypothesis except that of guilt, but whether the jury might reasonably so conclude. Ex parte Mauricio, supra; Robinette v. State, supra; St. John v. State, 473 So. 2d 658 (Ala. Crim.App.1985); Jones v. State, 432 So. 2d 5 (Ala.Crim.App.1983); German v. State, 429 So. 2d 1138 (Ala.Crim.App.1982); Cumbo v. State, supra. Under this test, a jury verdict of guilt based solely on circumstantial evidence cannot be affirmed where the evidence reasonably supports an inference of innocence.
Applying these legal standards to the facts in this case, we conclude that the circumstantial evidence presented by the State was insufficient to allow the jury to fairly infer, beyond a reasonable doubt, that Bailey murdered his wife. Further, the evidence presented does not allow the jury to reasonably conclude that no reasonable hypothesis of innocence exists. The evidence presented tended to support an inference that Mrs. Bailey, while standing on the edge of the pond, became dizzy and fell forward into the pond and drowned.
The record reveals that Bailey picked his wife up from school on the day of her death. Bailey's testimony indicated that on the days that he took his walks his wife usually stopped at their house to change her clothes before accompanying him to the pond where he walked. Bailey, however, testified that on the day of her death Mrs. Bailey did not appear well and that she did not go into the house to change her clothes. Because of this, Bailey said, he went into the house and got his wife a cup of coffee and the newspaper. Although the Court of Criminal Appeals stated otherwise, the record reveals that Bailey testified that Mrs. Bailey let him out of the car for his walk and that she proceeded to the pond, and that when he arrived he did not see her immediately but eventually he did see her in the water.
Bailey testified that he jumped into the water to save his wife. He further testified that when he jumped into the water to get his wife, he might have hit her with his foot. He testified that he tried to get her out and that he thought her head was caught under some pine tree roots. He testified that he scratched his neck on these tree roots while getting his wife out of the water. He said that he finally got her to shore, where, he said, he tried to revive her. Not being able to revive her, he said, he went to the police station, where he appeared visibly upset and was crying. The record also reveals that Bailey told *358 several persons that he wished he had known how to save his wife.
The autopsy report listed the cause of death as drowning. The report showed no evidence of trauma on the body other than a contusion to the left shoulder. Toxicologic studies were negative, but the record reveals that the body had been embalmed before it was sent to the Department of Forensic Sciences. Dr. Paredes testified that the embalming of the body would not create any major changes with a body in cases of drowning except possibly in the rendering of the toxicologist's report.
Autopsy evidence also indicated chronic disease of the heart and lungs that may have contributed to Mrs. Bailey's death. In fact, Dr. Paredes testified that although Mrs. Bailey's heart and lung disease were not advanced, she had a narrowing of the arteries that could have caused her to become dizzy. Dr. Paredes, however, did not testify that Mrs. Bailey took medication for dizziness. He was unaware of her prior medical history. He further testified that a person who fainted would fall where he or she was standing. In his opinion, he thought that Mrs. Bailey was alive when she entered the water, because of the amount of water in her stomach and lungs. The autopsy report concluded that the manner of her death was undeterminable, because it depended on how she came to be in the water.
Investigation of the area of the accident revealed no evidence of a struggle or scuffle at the pond, and the body showed no evidence of a struggle. The autopsy report stated that there was no evidence of trauma except for the contusion on Mrs. Bailey's left shoulder. Mrs. Bailey's clothing was not torn, but was stained by water and mud. Consistent with the defendant's testimony that he found his wife face down in the pond, these stains appeared only on the front side of her clothing.
Police investigator Robert Johns testified that he searched the road that Bailey allegedly took his walk on, but that he found no signs of footprints in the sandy dirt. Johns, however, further testified that by the time he made this investigation four or five automobiles had travelled along this public road and 15 or more people had arrived at the scene. He admitted that this activity could have erased the footprints. Johns also testified that he searched the area where Mrs. Bailey's body was found but that he found no evidence of a struggle or scuffle.
The record reveals that a search was made for Mrs. Bailey's shoes and glasses (she wore her glasses all the time), the coffee cup, and the newspaper. The Court of Criminal Appeals incorrectly stated in its opinion that Mrs. Bailey's shoes and glasses were not found. One shoe was recovered, as well as her glasses and the newspaper. However, one shoe was not recovered and the coffee cup was not recovered. There was testimony that the shoe could have been sucked through a drain pipe which led into a dammed area that was not searched.
There was evidence that Bailey received $12,211.11 from the Alabama Teachers' Retirement System. Mrs. Bailey had been enrolled as a member of the Retirement System since 1966 and she had retained control over the beneficiary designation throughout that period. The evidence also indicated that Bailey received $49,135.99 in insurance proceeds from policies that were purchased in 1971 and 1978. Mrs. Bailey had also retained control over the beneficiary designation for the insurance policies.
The record reveals that several witnesses testified that Mrs. Bailey had been suffering from and complaining about dizziness prior to the time of her death. In fact, one of the witnesses had given Mrs. Bailey some medication, Antivert (a medication for inner ear problems), to help control her loss of balance. The record also reveals that one of Mrs. Bailey's co-workers had seen Mrs. Bailey stumble on some stairs and fall. There was other testimony that Mrs. Bailey appeared to be ill before her death. There was testimony that she had complained about being dizzy, that she was pale, and that she had lost weight.
The record reveals that Mrs. Bailey was not a proficient swimmer, but that she could "dog paddle." Also, she generally *359 would not go into deep water. Evidence showed that the pond where Mrs. Bailey drowned was man-made and that it sloped from the bank. The water in the pond where Bailey said he found Mrs. Bailey was approximately three feet deep.
In addition, Bailey's daughter, Diane Knox, testified that on the day of her mother's death, her mother had told her that she was going for a walk with her father and would be home later to go to a birthday party. Both of the Bailey children, who were living with their parents at the time of Mrs. Bailey's death, testified that, aside from normal marital disputes, their parents appeared to be getting along well together. Diane Knox additionally testified that her mother was aware that Bailey knew Sue Champion and knew that he had purchased some gasoline for her six months prior to Mrs. Bailey's death.
The nature of the circumstantial evidence presented in this case requires the jury to speculate as to whether Mrs. Bailey was murdered by her husband. We stated in Ex parte Mauricio, supra, at 94 (citations omitted):
Although the jury in the present case could consider circumstantial evidence and draw permissible inferences from such evidence, an inference beyond a reasonable doubt that Mrs. Bailey was murdered by her husband does not arise from the evidence presented in this case. Further, the evidence before us supports an inference that Mrs. Bailey, while standing on the edge of the pond, became dizzy and fell forward into the pond and drowned, without any involvement by Bailey. In addition to this, we note that Mrs. Bailey drowned in August 1981, but that Mr. Bailey was not tried for her alleged murder until April 1989approximately 8 years after her death. The record does not reveal the reason for the delay.
Our law is structured so that the guilty, not the innocent, shall be punished; therefore, if circumstantial evidence permits an inference consistent with innocence, such evidence will not support a conviction. See Tanner v. State, 291 Ala. 70, 277 So. 2d 885 (1973). In the present case, the circumstantial evidence presented by the State raised a strong inference of innocence; thus, a jury could not reasonably conclude that no inference of innocence existed. Consequently, the issue became a question of law for the trial court. See Ex parte Mauricio, supra. We conclude that the trial court improperly denied Bailey's motions for a directed verdict and for an acquittal at the close of the evidence. The Court of Criminal Appeals reversed the conviction, but did so on an improper ruling. That court's judgment is set aside, and, for the reasons herein stated, the conviction is reversed and a judgment of acquittal is rendered.
89-1663HOLDING AS TO EXPERT TESTIMONY REVERSED.
89-1676JUDGMENT OF REVERSAL SET ASIDE; CONVICTION REVERSED; AND JUDGMENT OF ACQUITTAL RENDERED.
MADDOX, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
KENNEDY and INGRAM, JJ., concur in 89-1663, and dissent in 89-1676. | February 22, 1991 |
3ea050ff-9086-465a-ae30-1937d2fb2da6 | Killough v. Jahandarfard | 578 So. 2d 1041 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1041 (1991)
Lomax KILLOUGH
v.
Majid JAHANDARFARD, as father and next friend of Princess Jahandarfard, deceased.
89-925.
Supreme Court of Alabama.
February 15, 1991.
Rehearing Denied April 11, 1991.
*1042 L. Tennent Lee III of Burr & Forman, Huntsville, and Michael B. Beers and Michael S. Jackson of Beers, Anderson, Jackson & Smith, Montgomery, for appellant.
Joseph M. Brown, Jr. and Andrew T. Citrin of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, and Gary V. Conchin of Higgs & Conchin, Huntsville, for appellee.
SHORES, Justice.
Lomax Killough appeals from a judgment based upon a jury verdict awarding Majid Jahandarfard $2.5 million on a claim against Killough. We affirm.
On July 18, 1988, Jahandarfard filed an eight-count complaint under Alabama Code 1975, § 6-5-391, based on the alleged wrongful death of his daughter, Princess. The child died of carbon monoxide inhalation asphyxiation due to a fire in the Jahandarfard house. The house was owned by Killough, who rented it to the Jahandarfards, and it was not equipped with a smoke detector on the morning of Princess's death. State and local law at the time of Princess's death required smoke detectors to be placed in rental units.
On November 9, 1989, the jury returned its verdict against Killough, and on the same day the trial judge entered a judgment in accordance with the verdict.
Killough filed a motion for a judgment notwithstanding the verdict ("J.N.O.V.") or, in the alternative, for a new trial or remittitur. Killough also requested that the trial court conduct a hearing in accordance with the mandates of Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), to review the judgment and consider remitting it based on excessiveness.
*1043 A Hammond hearing was held on January 4, 1990, but the trial court did not rule on any of Killough's motions; thus, on February 12, 1990, after the motions had been pending for 90 days, they were denied pursuant to Rule 59.1, A.R.Civ.P. The trial court failed to enter a Hammond order concerning the judgment, and Killough appealed.
We remanded the case to the trial court to enter a Hammond order, 578 So. 2d 1041, and on November 8, 1990, the trial court issued the following order:
Killough contends that the judgment entered against him pursuant to § 6-5-391, deprives him of his property in violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, and deprives him of equal protection of law under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 1, 6, and 22, of the Alabama Constitution. Killough also argues that the award of punitive damages in his case is a violation of the excessive fines clause of the Eighth Amendment to the United States Constitution and Article I, § 15, of the Alabama Constitution, that the Hammond review procedure does not adequately protect his due process rights, and that the verdict below is excessive.
Killough argues that § 6-5-391 provides no standards for the imposition of damages, in that a plaintiff may recover any amount a jury may assess for any wrongful act, omission, or negligence resulting in the death of a minor. This argument has been rejected by this Court; see Pacific Mutual Life Insurance Co. v. Haslip, 553 So. 2d 537 (Ala.1989); Central Alabama Electric Co-op. v. Tapley, 546 So. 2d 371 (Ala.1989); United American Ins. Co. v. Brumley, 542 So. 2d 1231 (Ala.1989); HealthAmerica v. Menton, 551 So. 2d 235 (Ala. 1989), cert. denied, ___ U.S. ___, 110 S. Ct. 1166, 107 L. Ed. 2d 1069 (1990); Olympia Spa v. Johnson, 547 So. 2d 80 (Ala. 1989), and it is here rejected again.
Killough contends that the exclusion of § 6-5-391 from legislation enacted by the Legislature and codified at §§ 6-11-1 through 6-11-30 is a violation of equal protection rights under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 1, 6, and 22, of the Alabama Constitution. Among other things, these statutes restrict punitive damages awards in tort actions *1044 (other than wrongful death actions) to those tort actions based upon acts of oppression, fraud, wantonness, or malice, proven by clear and convincing evidence. A cap of $250,000 is placed on punitive damages awards, excluding wrongful death actions. Killough argues that, because § 6-5-391 was excluded from the operation of the legislation, he was not given the same protection of law as other classes of defendants concerning the imposition of punitive damages; he argues also that the jury was allowed to award punitive damages if it was reasonably satisfied that Jahandarfard was entitled to recover based upon the evidence, and not on the basis of clear and convincing evidence that Killough consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to Jahandarfard. Further, Killough suggests that, but for the exclusion of § 6-5-391 from the legislation, he would be entitled to the application of the $250,000 cap on the jury's verdict.
The Legislature has elected to treat wrongful death tort-feasors differently from other tort-feasors, and the ability to so classify is a power inherent in the Legislature, so long as the classification bears a rational relationship to a state interest not prohibited by the United States Constitution. Nowak, Rotunda, and Young, Treatise on Constitutional Law: Substance and Procedure, § 18.3 at 324 (1986).
The only damages available in a wrongful death action in Alabama are punitive damages, Tapley, 546 So. 2d at 376, and this is the critical difference between wrongful death actions and actions addressed by the Legislature in the recent tort reform legislation. In Tapley, we also noted the Legislature's reasoning behind allowing only punitive damages in wrongful death actions:
Id.
In upholding our policy of awarding punitive damages in wrongful death actions, the United States Supreme Court recognized that the purpose was to "strike at the evil of the negligent destruction of human life." Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 116, 47 S. Ct. 509, 510, 71 L. Ed. 952 (1927). The Court went on to conclude that "it [is not] beyond the power of the legislature, in effecting such a change in the common law rules, to attempt to preserve human life by making homicide expensive." Id. at 116, 47 S. Ct. at 510. The Legislature has obviously decided that an arbitrary cap can not be placed on the value of human life. The exemption of wrongful death actions from caps on punitive damages awards bears a rational relationship to a legitimate state interest not prohibited by the Constitution, and the exemption does not violate the right to equal protection under the law.
In limiting the damages in a wrongful death action to punitive damages only, the Legislature reflects the conviction of the citizens of this state that the value of human life can not be measured in dollars. The loss felt by a parent in the death of a child can not be compensated. The pain of loss of a gifted, beautiful child is no more severe than the pain caused by the loss of an impaired child. In the Legislature's view, the value of the life of the community's most prominent citizen is no greater than the value of the life of its most desolate or despicable citizen. To leave with the jury the determination of what amount should be imposed as damages to punish the defendant who caused the loss and to deter others from similar conduct is a perfectly reasonable way to accomplish the legislative goal of deterring conduct that endangers life.
This notion is not unique to Alabama's wrongful death actions. The Supreme Court of the United States, in Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 *1045 L. Ed. 2d 440 (1987), recognized that the character of the victim was irrelevant to a determination of whether the defendant should be sentenced to death for taking the victim's life. In doing so, it recognized that the value of human life can not be measured. Whether a defendant is to be sentenced to death for taking another's life can not depend upon whether his victim was the community's most prominent citizen or its most desolate or despicable. The Alabama wrongful death statute, as construed by this Court for almost a century, is based upon the same conviction. We do not believe the Constitution extends to a defendant in a civil wrongful death action greater protection than it affords a criminal defendant whose life is at stake. Surely, the constitutional protection of a defendant's money can not exceed that extended to his life. See, also, South Carolina v. Gathers, 490 U.S. 805, 109 S. Ct. 2207, 104 L. Ed. 2d 876 (1989).
Alabama's law in a civil wrongful death action requires of the jury the same thing that Booth requires in a capital case: that the focus of the jury be the defendant's conduct. It can not consider the "value" of the victim in either case. It must make its determination of the punishment to be administered to the defendant based exclusively upon the culpability of the defendant. In the civil case, it must determine what amount of money is required to sufficiently punish the defendant, considering the gravity of the wrong committed. In the criminal case, it must consider the gravity of the offense, any aggravating circumstances, and any mitigating circumstances. It may not consider the value of the life of the victim in either case.
Killough argues that an award of punitive damages under Alabama's wrongful death statute constitutes an "excessive fine" and is a violation of the Eighth Amendment to the United States Constitution and Article I, § 15, of the Alabama Constitution. Not only has this Court rejected this argument, Kumar v. Lewis, 561 So. 2d 1082 (Ala.1990); Tapley, supra; Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812 (Ala.1988), but the United States Supreme Court has held that the Eighth Amendment's excessive fines clause is not applicable to awards of punitive damages in cases between private parties. Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989). Therefore, punitive damages awards under our wrongful death statutes do not violate the Eighth Amendment.
Killough argues that the procedure of post-verdict review of a jury's award of punitive damages, established by Hammond and its progeny, violates his right to due process of law. Specifically, Killough contends that the criteria of Hammond and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), are largely unreviewable and merely transfer discretion from the jury to the reviewing court. In "an abundance of concern for the preservation and protection of a defendant's constitutional right to due process," Pacific Mutual Life Insurance Co. v. Haslip, 553 So. 2d 537 (Ala.1989), this Court has created the Hammond post-verdict procedure. By the Hammond procedure, the civil defendant is protected in two ways: "First, a requirement of `reasonableness, of proportionality, of sensible relation between punishment and offense,' and, second, a guarantee of `not just bare survival, but continued productive economic viability'"; "due process mandates at all times, in all circumstances, and for all defendants, `fundamental fairness' at the hands of the law." C. Jeffries, A Comment on the Constitutionality of Punitive Damages, 72 Va.L.Rev. 139, 156, 151-52, as quoted in Industrial Chemical, 547 So. 2d at 838, 835. The mandates of due process within the punitive damages context also require a balance between the due process rights of the plaintiff and those of the defendant. Id. at 835. This is the goal of Hammonda balance of rights for both plaintiff and defendant.
This Court has consistently held that the Hammond post-verdict review provides the defendant with fundamental *1046 fairness while at the same time allowing society to perpetuate the punishment and deterrence of unacceptable conduct. See Industrial Chemical and Tapley, supra. The Hammond review process, considered with the other established safeguards (remittitur, motion for new trial, and appeal from the denial of either), provides the civil defendant a solid, committed, and true attempt at fundamental fairness.
As to the claim that the Hammond factors merely transfer discretion from a jury to a review court, we once again emphasize that "no attempt to enumerate all the factors which may be considered by the trial court has been made, [leaving that to the sound discretion of the trial court], ... and there can be no ironclad rule in considering the adequacy or excessiveness of a verdict. Each case must be determined by its own facts and on its own merits." Hammond, at 1379. The Hammond procedure gives the trial court a constitutionally sound framework for analysis and review of a jury's verdict, while allowing the trial court the freedom to consider other relevant factors. We know of no better method of insuring fundamental fairness for both plaintiff and defendant, nor has Killough suggested a better way, than the Hammond procedure.
The final argument advanced by Killough is that the verdict is excessive because, he says, it will have a devastating economic impact on him. Killough states that if he liquidated his total available net worth and applied the limits of his liability insurance (leaving him nothing), then $1.9 million of the jury's verdict would remain unsatisfied. The issue of whether an award could or would destroy a civil defendant has troubled both trial and appellate courts alike, and even the existence of Hammond does not relieve this Court of its responsibility to consider whether an award is excessive. Burlington Northern R.R. v. Whitt, 575 So. 2d 1011 (Ala.1990).
A jury's award of punitive damages will be considered excessive, as a matter of law, only if: 1) the jury's decision-making process was tainted by bias, passion, prejudice, or other improper motive, Black Belt Wood Co. v. Sessions, 514 So. 2d 1249, 1264 (Ala.1986); or 2) the verdict goes beyond that necessary to accomplish society's goals of punishment and deterrence. Green Oil Co., 539 So. 2d at 221. Having considered the record in this case, and having compared verdicts in similar cases that have come to this Court, we conclude that the award of $2.5 million is not excessive.
In its Hammond order, the trial court said that the jury's decision was not tainted by bias, passion, prejudice, or any other improper motive. As we noted in Hammond:
Hammond, 493 So. 2d at 1378. The trial court in the present case followed the factors of Hammond and Green Oil Co. in making its decision, and it was obviously in the best position to decide if the trial court's finding was based upon bias, passion, prejudice, corruption, or other improper cause.
As to the punishment and deterrence goals of punitive damages, the verdict in this case is not excessive in light of the fact that the case went to the jury on a theory of wantonness only; it was the jury's opinion that Killough's failure to equip the Jahandarfard home with a smoke detector was wanton and was the proximate cause of the death of the child. Such a finding reflects directly upon the gravity of Killough's conduct, the need to punish such conduct, and the need to prevent it from occurring again.
One factor of Hammond and Green Oil Co. is the financial position of the defendant. *1047 The trial court considered Killough's financial position when it refused to remit the jury's award, based upon the same economic impact argument Killough makes before us.
The defendant argued at the Hammond hearing that if the verdict was not reduced it would have a devastating financial effect on him. The defendant argued that his liability coverage was only $300,000 and that he was financially unable to bear the burden of the remainder of the verdict. In response to this argument, the plaintiff states to this Court that since the Hammond hearing, the defendant's insurance carrier has posted a supersedeas bond in the amount of $3.125 million. He has filed a motion in this Court to incorporate the supersedeas bond as a part of the record on appeal. This he has a right to do, since the trial court denied a similar motion, and since the defendant continues to argue that the verdict should be reduced because of the financial impact it will have upon him.
The fact that the judgment has been superseded by the insurance carrier is material to our treatment of this argument. In his original brief, the plaintiff argued that the reason the insurance carrier posted a supersedeas bond in an amount 10 times greater than the limits of the policy was that it recognized its potential liability to its insured in having refused to settle the case for the policy limits, although it was requested to do so prior to trial. The defendant does not challenge this explanation for his insurance carrier's posting a supersedeas bond for an amount greatly in excess of the policy limits. Neither does the insurance carrier, which presumably is defending the insured. We, of course, express no opinion as to whether the insurance company may be liable to its insured for failing to settle the underlying case for the policy limits, but the fact that the judgment against its insured has been superseded at its expense is material to the argument that the verdict, if not reduced, will have a devastating effect on the insured, an effect sufficient to destroy him financially.
These matters are material to our consideration of the trial court's action on the post-judgment hearing required by Hammond, because we must review these matters, as should the trial court, in view of the true impact upon the defendant, and to do that we must know the true facts.
The jury in this case has determined that the defendant was guilty of wanton conduct in causing the death of the plaintiff's daughter. The plaintiff has a right to have that determination made by a jury. This the constitution of this State guarantees to him. The Constitutions of the United States and of this State guarantee to the defendant equal protection of the laws and due process of law.
We hold that, under the facts of this case, the defendant's constitutional rights have not been violated. The record indicates that the trial court reviewed the verdict of the jury, permitting each side to present evidence in support of, and evidence in opposition to, that verdict, as is required under the procedure established in Hammond, restated in Green Oil Co., and subsequently reaffirmed in several cases. We can not hold that the constitutional rights of the defendant in this case have been violated by allowing the verdict of the jury to stand unreduced. Because the defendant's arguments are limited to constitutional challenges to the verdict and because we have rejected those challenges, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, KENNEDY and INGRAM, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., concur in the result.
MADDOX, Justice (concurring in the result).
I concur in the result reached that the verdict of $2.5 million is not excessive, but I should not be understood as agreeing with that portion of the opinion that holds that the procedure by which that verdict was reached comports with the due process requirements of the Fourteenth Amendment to the Federal Constitution.
*1048 The Supreme Court of the United States is now reviewing the due process issues in an appeal from a judgment of this Court entered in Pacific Mut. Life Ins. Co. v. Haslip, 553 So. 2d 537 (Ala.1989), cert. granted, ___ U.S. ___, 110 S. Ct. 1780, 108 L. Ed. 2d 782 (1990), and in that case the Court is expected to determine if Alabama's procedure for awarding punitive damages in civil cases is fundamentally fair, as the majority in this case holds. I dissented in Haslip and expressed the opinion that the Supreme Court of the United States may reverse the judgment of this Court in that case.[1]
I have always been of the opinion that wrongful death cases were in a different category insofar as the amount of punitive damages that could be awarded, but I have not agreed that Alabama's procedures were without Constitutional problems. See my opinion concurring in part and dissenting in part in Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812, 833 (Ala.1988). My opinion in Industrial Chemical was based primarily upon a statement made by the Supreme Court of the United States in Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 47 S. Ct. 509, 71 L. Ed. 952 (1927): "We cannot say that it is beyond the power of the legislature, in effecting such a change in common law rules, to attempt to preserve human life by making homicide expensive." 274 U.S. at 116, 47 S. Ct. at 510.
As the majority points out, the legislature has placed a cap on punitive damages awards, except in wrongful death actions. Consequently, the size of the award would not necessarily violate any legislative policy regarding a jury's right to award punitive damages in this case. Although a jury is not otherwise restricted in the amount it might determine would be sufficient to make a wrongful death "expensive," that fact does not necessarily answer the question posed herewhether the failure to give the jury some guidelines in making that determination is constitutionally infirm. Insofar as I can tell, this precise issue has not yet been considered by the Supreme Court of the United States, but is pending in the Haslip case.
If the Supreme Court of the United States reverses the judgment of this Court in Haslip, I am of the opinion that the procedure for making an award in a wrongful death case would not be treated differently from the procedure used in Haslip, and the fact that the Supreme Court has stayed judgments from this Court in wrongful death cases convinces me that this is so. That is why I concur in the result only.
SHORES, Justice.
APPLICATION OVERRULED.
HORNSBY, C.J., and ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., concurs in the result.
MADDOX, Justice (concurring in the result to deny rehearing).
On original deliverance, I concurred in the result, but pointed out that the United States Supreme Court had before it for review the case of Pacific Mut. Life Ins. Co. v. Haslip, 553 So. 2d 537 (Ala.1989), and that "the Supreme Court of the United States [might] reverse the judgment of this Court in that case," in which Alabama's procedure for awarding punitive damages was being challenged. The Supreme Court has now affirmed. Pacific Mut. Life Ins. Co. v. Haslip, ___ U.S. ___, 111 S. Ct. 1032, *1049 113 L. Ed. 2d 1 (1991), holding that Alabama's procedure for reviewing punitive damages awards "ensures meaningful and adequate review." In my opinion, the Supreme Court of the United States was under the impression that, in Alabama, the Hammond-Hornsby procedures guarantee that jury verdicts will be independently reassessed by both trial and appellate courts.
In a dissent in Armstrong v. Roger's Outdoor Sports, Inc., [Ms. 88-1190, March 8, 1991] (Ala.1991), decided shortly after the Haslip decision had been released, I stated that the Hammond-Hornsby review does not ensure an independent assessment of jury verdicts as envisioned in Haslip.[2] As I expressed in that dissenting opinion, I think that the opinion of the Supreme Court of the United States in Haslip was based, in part, on that Court's belief that the Hammond-Hornsby review ensured an independent assessment by trial and appellate courts. I pointed out in that dissent that counsel for Ms. Haslip argued before the Supreme Court that Alabama's procedure provided for an independent reassessment of the awards by juries of punitive damages,[3] and I think that it is clear from a reading of the opinion in Haslip that the Supreme Court erroneously concluded that the Alabama procedure provided for an independent reassessment of jury awards of punitive damages.
Even though I do not believe that the Hammond-Hornsby procedure authorizes the type of "independent reassessment" that I believe Haslip is based on, I concur in the result. I agree that, even if I did an independent reassessment in this case, I would conclude that the verdict in the amount of $2.5 million is not excessive, because this is a wrongful death case, and Alabama has the power "to attempt to preserve human life by making homicide expensive." Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 116, 47 S. Ct. 509, 510, 71 L. Ed. 952 (1927). I would also point out that the legislature, in the so-called "tort reform package," has not put a "cap" on punitive damages awards in wrongful death cases.
[1] Since the Supreme Court granted certiorari review in Haslip, that Court has stayed this Court's judgments in the following cases:
88-376Burlington Northern R.R. v. Whitt, 575 So. 2d 1011 (Ala.1990), stayed November 29, 1990.
89-0014Intercontinental Life Ins. Co. v. Lindblom, 571 So. 2d 1092 (Ala.1990), stayed in December 1990.
88-1289Southern Life & Health Insurance Co. v. Turner, 571 So. 2d 1015 (Ala.1990), stayed January 10, 1991.
Some of those cases are wrongful death actions, as this one is; that fact leads me to believe that in Haslip the court is primarily interested in Alabama's procedure for awarding punitive damages in all civil actions.
[2] In Armstrong, this Court held that the state legislature could not adopt an act authorizing an independent review of jury awards of punitive damages and declared unconstitutional an act doing so.
[3] In Haslip, in oral arguments before the Supreme Court, Haslip's counsel argued that "[t]he Hammond-Hornsby standard of review which the Alabama Supreme Court has been adopting since 1986, expressly provides that jury verdicts will be independently reassessed by trial and appellate courts in order to determine whether the amount set by the jury is more than would be necessary to accomplish society's goals of punishment and deterrence." (Emphasis added.) | February 15, 1991 |
5d9eaadb-ed1e-4d24-be0a-ff9a95c2ce94 | Ex Parte Holifield | 604 So. 2d 420 | N/A | Alabama | Alabama Supreme Court | 604 So. 2d 420 (1991)
Ex parte Julius HOLIFIELD.
(Re BIRMINGHAM BOARD OF EDUCATION, et al.
v.
Julius HOLIFIELD).
89-984.
Supreme Court of Alabama.
February 15, 1991.
Rehearing Denied May 10, 1991.[*]
*421 David A. Sullivan, Birmingham, for petitioner.
Gaile Pugh Gratton of Lange, Simpson, Robinson & Somerville, Birmingham, for respondents.
KENNEDY, Justice.
We issued the writ of certiorari to examine the narrow issue of whether a review panel lost jurisdiction over this case because of its failure to convene within a 60-day statutorily prescribed time period. Because we find the Court of Civil Appeals erred in its holding, we reverse and remand.
Julius Holifield was employed by the Birmingham Board of Education (hereinafter, the "Board"). Holifield was on nonprobationary status, when, on September 6, 1988, he received notice of his proposed termination by the Board. The notice stated that the termination was based upon Holifield's possession of a gun, in violation of School Board Policy # 3131, at Pratt Elementary School, where he was working.
Holifield was informed that he had 15 days after receipt of the notice to request a hearing before the Board on the proposed termination.
On September 12, 1988, Holifield requested a hearing, and one was set for October 6, 1988. It was continued on the request of Holifield's counsel, and it was held on October 20, 1988, and November 1, 1988. Following the hearing, the Board voted for dismissal. Holifield was notified of the Board's decision on November 2, 1988.
Holifield appealed. An employee review panel (hereinafter the "review panel") consisting of three people, was selected, pursuant to § 36-26-105, Code of Alabama 1975. One member of the review panel was selected by the Board, one was selected by Holifield, and one was agreed upon by both.
The review panel was required, under § 36-26-106, to meet within 60 days of the Board's decision. The Board's decision on Holifield's termination was made on November 2, 1988. The review panel scheduled a hearing for December 28, 1988, but continued the hearing by agreement of both parties. At the request of the Board, Holifield's counsel agreed to waive all objections to holding the hearing outside the 60-day statutory period, the very defect the Board now raises against him. The review panel held a hearing on January 19, 1989. The panel reconvened on several occasions and on March 10, 1989, ordered that Holifield's pay be brought current; that he be suspended for 50 days; and that he be re-employed in a department other than the paint department, with an equal position, compensation, and benefits.
Upon review in the circuit court, the Board was ordered to reinstate Holifield with all but 50 days' back pay.
On appeal, the Court of Civil Appeals reversed the circuit court's judgment and held that because the review panel had failed to convene within the 60-day period required by § 36-26-106, the review panel had lost jurisdiction to hear the case. 604 So. 2d 418.
We disagree.
The statute concerning the review panel provides as follows:
Section 36-26-106 states that the date of the review panel hearing "shall in no case" be later than 60 days from the Board's decision. In Washington v. Bessemer Bd. of Education, 547 So. 2d 888, 892 (Ala.Civ. App.1989), the Court of Civil Appeals held that the facts of each case will have to be considered in determining whether the parties would be bound by the 60-day requirement of § 36-26-106. In Washington, the Board did not select the first member of the review panel until after the 60-day *422 period had expired. The Court of Civil Appeals held that the legislature's intent was for the Board to select the first member of the panel. Because the Board caused the delay, the court held that the panel was not bound by the 60-day provision; to apply that provision would unfairly penalize the employee, the court said. The court also noted that an employee cannot benefit from his own improper delays or tactics.
In this case, the review panel, which had already been chosen, scheduled the hearing for December 28, 1988. Both parties agreed to the continuance because of the Christmas holidays. Also, Holifield agreed to waive his right to object to the panel's not holding a hearing within the 60-day period required by the statute. The evidence shows that on December 22, 1988, the Board's attorney wrote to Holifield's attorney, stating, "This is to confirm that you informed Mark Tippens [neutral member and chairman of the review panel] that you have no objection to the hearing in the above referenced matter being held after the Christmas holidays. This further confirms that you have waived your right to contest that the panel will not hold the hearing within the sixty day statutory framework. Based upon your representations, Mr. Tippens continued the hearing from its December 28, 1988 setting. He will notify us of the new setting." Also, an affidavit from Mark Tippens stated that there was an agreement as to the continuance. A continuance was requested and was agreed to by both parties. A delay resulting from an agreement to continue and a waiver by the employee of any objection to the holding of the hearing beyond the 60-day limit is not improper. It was not improper for the parties to agree to continue the scheduled hearing.
The purpose of the Fair Dismissal Act is to provide nonteacher employees with a fair and swift resolution of proposed employment terminations. Bolton v. Mobile County Bd. of School Comm'rs, 514 So. 2d 820, 824 (Ala.1987). As noted in Bolton, the Fair Dismissal Act is not an example of legislative clarity. As with any statute, "reasonableness must be read into the provisions" of this Act. 514 So. 2d at 824.
We find that this short delay was not improper under this fact situation. The review panel did not lose jurisdiction to hear this case simply because the hearing was briefly continued by agreement of the parties.
For the above stated reasons, the judgment of the Court of Civil Appeals is reversed and this cause is remanded for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
[*] "[Reporter of Decisions' note]: The Supreme Court on December 9, 1991, entered an order granting rehearing ex mero motu. On August 18, 1992, the Court withdrew its December 9, 1991, order." | February 15, 1991 |
271073cb-605c-4e47-8f76-0640ab05cc7e | Walls v. Bank of Prattville | 575 So. 2d 1081 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1081 (1991)
Wilma Milton WALLS
v.
BANK OF PRATTVILLE and the Estate of Daniel L. Tatum, Intervenor.
89-219.
Supreme Court of Alabama.
February 22, 1991.
*1082 Alfred Q. Booth, Prattville, for appellant.
J. Robert Faulk, Prattville, for appellees.
HORNSBY, Chief Justice.
On April 20, 1988, the appellant, Wilma Milton Walls, filed a declaratory judgment action to establish the beneficiary of a savings account established by Daniel L. Tatum, her deceased brother, at the Bank of Prattville. Wilma alleged that the name written on the signature card as the death beneficiary, "Wilma Middleton," was a scrivener's error, and that Tatum had intended that the beneficiary of the account be "Wilma Milton." On April 25, 1988, Tatum's estate moved to intervene in the action, and the Bank of Prattville counterclaimed for interpleader pursuant to Rule 22, A.R.Civ.P.
On November 15, 1988, the trial court granted the estate's motion to intervene and ordered that the testamentary gift of the funds in the savings account had lapsed and that the funds, therefore, must be paid to the estate. The trial court denied Walls's post-trial motion without the hearing required by Rule 59(g), A.R.Civ.P. Walls appealed, and this Court reversed the trial court's judgment for failure to comply with Rule 59 and remanded the case. Walls v. Bank of Prattville, 554 So. 2d 381 (Ala.1989).
On October 2, 1989, after a hearing consistent with Rule 59, the trial court issued an order denying the plaintiff's post-trial motion, which, in essence, sought again to have her declared the owner of the bank account. In its order, the court held:
We reverse and render a judgment for the appellant, Wilma Milton Walls.
Daniel L. Tatum was Walls's brother. On August 29, 1981, he opened a savings account at the Bank of Prattville. The signature card for that account was filled out by one of the bank's employees. A portion of the signature card provided a space for the person opening the account to list a death beneficiary for that account. The signature card for Tatum's savings account listed "Wilma Middleton" as the beneficiary. Tatum died February 28, 1987, with approximately $11,000 in the savings account at the Bank of Prattville.
On April 20, 1988, Wilma filed an action seeking a judgment declaring that the name "Wilma Middleton" on the signature card was a misspelling of "Wilma Milton," which was Walls's name at the time Tatum opened the savings account. Tatum's estate later intervened in this action on the grounds that "Wilma Middleton" does not exist and, therefore, that the gift of the funds in the account should lapse and the proceeds should be included in Tatum's estate.
The trial court heard ore tenus evidence on August 23, 1989. Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court's findings of fact; its determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Gaston v. Ames, 514 So. 2d 877, 878 (Ala.1987); Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So. 2d 1177 (Ala. 1981). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment. Gaston, supra; Smith v. Style Advertising, Inc., 470 So. 2d 1194 (Ala.1985); League v. McDonald, 355 So. 2d 695 (Ala.1978). The record in this case shows that the trial court improperly applied the law to the facts presented.
In Logan v. Citizens National Bank, 460 So. 2d 1239 (Ala.1984), this Court held that the designation of a beneficiary to receive proceeds under a payable-on-death (P.O.D.) provision is governed by the law of contract rather than the law of wills. Id. at 1242. In Logan we also stated the principle that "the intention of the parties controls in construing a written contract, and the intention of the parties is to be derived from the contract itself, where the language is plain and unambiguous." Logan, 460 So. 2d at 1242, citing Food Service Distributors, Inc. v. Barber, 429 So. 2d 1025 (Ala.1983).
The language in a contract, however, must be interpreted in light of all of the surrounding circumstances. Johnston-Clark Appraisal Co. v. State Dep't of Revenue, 392 So. 2d 1164 (Ala. 1980). If the language of a contract is ambiguous or uncertain, the surrounding circumstances, including the construction placed on the language by the parties, are taken into consideration so as to carry out the intention of the parties. City of Montgomery v. Maull, 344 So. 2d 492 (Ala.1977). In this case, the language of the P.O.D. provision would appear on its face to be unambiguous in naming "Wilma Middleton" as the beneficiary of Tatum's savings account. If this were the end of our inquiry, we would be compelled to affirm the trial court's judgment. However, when all of the evidence is considered, it is apparent that the P.O.D. provision naming the beneficiary contains a latent ambiguity.
"An ambiguity is latent when the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings." Thomas v. Principal Financial Group, 566 So. 2d 735 (Ala. 1990).
Once it is determined that a contract term is ambiguous, and one of the parties makes an offer of proof as to surrounding facts and circumstances that would clarify the meaning of the term, the determination of the true meaning is for *1084 the fact-finder. Quick v. Campbell, 412 So. 2d 264 (Ala.1982); Mass Appraisal Services, Inc. v. Carmichael, 404 So. 2d 666 (Ala.1981); Alpine Constr. Co. v. Water Works Bd. of the City of Birmingham, 377 So. 2d 954 (Ala.1979).
In this case, all of the parties agree that no such person as "Wilma Middleton" exists. In addition, all parties agree that a bank employee, rather than Tatum himself, filled out the P.O.D. card naming the beneficiary. It is also uncontested that Walls was Tatum's sister and that her name, at the time the signature card was filled out, was Wilma Milton. Walls alleges that there was a misspelling of the beneficiary's name on the signature card and that Tatum intended that sheWilma Miltonbe the beneficiary. Based on these facts, we find an apparent latent ambiguity as to the person Tatum intended as beneficiaryeither a nonexistent person or his sister, Wilma Milton.
At the August 23, 1989, hearing, the court stated that Tatum's intent was that his sister, Wilma Milton be the beneficiary:
In its order, however, the trial court stated that because Walls had not proven with clear and convincing evidence that there had been a mutual mistake or a scrivener's error, the proceeds would be included in Tatum's estate. In that same order, the court found that there was a unilateral mistake; in the hearing the court had found that Tatum's intent was that the beneficiary be his sister, Wilma Milton. Having found that there was a mistake and that the deceased's intent was that his sister be the beneficiary, the court should have construed the contract in accord with that intent. Charles H. McCauley Associates, Inc. v. Snook, 339 So. 2d 1011 (Ala. 1976). Therefore, we reverse the trial court's judgment and render a judgment in favor of the appellant.
REVERSED AND JUDGMENT RENDERED.
ALMON, ADAMS, STEAGALL and INGRAM, JJ., concur. | February 22, 1991 |
c9e2497b-453d-4115-a82c-75092983de87 | Ex Parte Cammon | 578 So. 2d 1089 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1089 (1991)
Ex parte Michael E. CAMMON.
(Re Michael E. Cammon v. State).
89-1442.
Supreme Court of Alabama.
February 15, 1991.
*1090 Greg Nicholas of Hale & Nicholas, Cullman, for petitioner.
Don Siegelman, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for respondent.
SHORES, Justice.
Michael E. Cammon was convicted of sexual abuse in the first degree, a violation of Ala.Code 1975, § 13A-6-66, and was sentenced to 10 years in the state penitentiary. The victim was his daughter. Cammon filed a motion for new trial, but it was denied by the trial court. The Court of Criminal Appeals, with Judge Bowen dissenting, affirmed Cammon's conviction on May 11, 1990, and on June 15, 1990, denied his application for rehearing. 578 So. 2d 1089.
In support of his motion for new trial, Cammon had offered an affidavit from his former wife, Rita Turney. In that affidavit Turney stated that the child, about a week or two before trial, had recanted her earlier statement accusing Cammon and instead accused her uncle. Turney's affidavit went on to say that Turney then informed J. W. Hicks, a victim relations officer, of the recantation. The new trial motion alleged that the State had failed to disclose to Cammon exculpatory evidencei.e., the daughter's recantation. The record is devoid of any response by the State to Cammon's motion.
This Court issued the writ of certiorari in order to review the question of the State's alleged failure to produce the exculpatory statement.
In April 1989, Turney filed a complaint with the Cullman County district attorney alleging that Cammon had sexually abused their six-year-old daughter. On August 10, 1989, a Cullman County grand jury indicted Cammon for first degree sexual abuse, and on August 28, 1989, the trial court entered a discovery order mandating the following:
Turney's affidavit stated that about two weeks before Cammon's trial, the daughter *1091 recanted her earlier story and told Turney that it was not her father but someone else who had sexually abused her. Turney's affidavit says that she informed the victim relations officer for the Cullman County district attorney, of the child's recantation of her earlier statement.
In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the United States Supreme Court enunciated the applicable standard for determining if a new trial is warranted because of the prosecution's suppression of exculpatory evidence:
373 U.S. at 87, 83 S. Ct. at 1196. Evidence is material if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different," and "A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). See also, Ex parte Dickerson, 517 So. 2d 628 (Ala.1987).
In order to establish a Brady violation, Cammon must establish: 1) that the prosecution suppressed the evidence (here the alleged statement of his daughter); 2) that the evidence was of a character favorable to his defense; and 3) that the evidence was material. Ex parte Brown, 548 So. 2d 993, 994 (Ala.1989), citing Ex parte Kennedy, 472 So. 2d 1106 (Ala.1985), cert. denied, Kennedy v. Alabama, 474 U.S. 975, 106 S. Ct. 340, 88 L. Ed. 2d 325 (1985). There is no question that such a recantation and accusation of another would be both exculpatory and material; therefore, the second and third requirements have been satisfied. There is a question whether the prosecutor suppressed the information.
The record does not clearly show that the prosecutor had knowledge of the child's alleged recantation before trial, but the trial court's discovery order did require the State to make available any material that was in its possession or that through due diligence might be learned, that could exculpate Cammon, negate the charge against him, or lead to reasonable doubt about his guilt. It is true that under Brady the good faith of the prosecution in not disclosing information is irrelevant, 373 U.S. at 87, 83 S. Ct. at 1196, but Brady does require that the information requested by a criminal defendant be known to the prosecution. United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397, 49 L. Ed. 2d 342 (1976). Knowledge of requested information is presumed when the information is in the prosecutor's files, Agurs, 427 U.S. at 110, 96 S. Ct. at 2400; Sexton v. State, 529 So. 2d 1041, 1045 (Ala.Cr.App.1988).
It is this lack of knowledge concerning who knew whatand whenthat compels us to reverse the Court of Criminal Appeals' judgment and remand the case to that court with instructions to remand it to the trial court for an evidentiary hearing regarding the alleged nonproduction of exculpatory evidence.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | February 15, 1991 |
ac7c52a9-2bf5-4eba-8ee1-379380770e85 | Morrow v. Town of Littleville | 576 So. 2d 210 | 1900024 | Alabama | Alabama Supreme Court | 576 So. 2d 210 (1991)
John MORROW
v.
TOWN OF LITTLEVILLE.
1900024.
Supreme Court of Alabama.
February 15, 1991.
*211 John R. Benn of Slusher & Benn, Florence, for appellant.
George W. Royer, Jr. of Sirote & Permutt, Huntsville, for appellee.
HOUSTON, Justice.
The plaintiff, John Morrow, appeals from a summary judgment for the defendant, the Town of Littleville, in this action seeking to recover damages under 42 U.S.C. § 1983 and for the breach of an employment contract. We reverse and remand.
The plaintiff's complaint, which was filed more than six months, but less than one year, after the occurrence of the incidents complained of, reads, in pertinent part, as follows:
The defendant moved for a summary judgment, arguing that the plaintiff had attempted to state a tort claim for the wrongful termination of an employment contract in count one[2] and, therefore, that that count, as well as the § 1983 claim set out in count two, was barred by Ala.Code 1975, § 11-47-23, which provides:
The defendant supported its motion with the affidavit of its town clerk, in which the clerk stated that the plaintiff had not presented any claims to her pertaining to the matters alleged in his complaint. The plaintiff argued that he had stated a claim for the breach of an employment contract in count one and, therefore, that he had satisfied the requirements of § 11-47-23 by filing his complaint within two years from the date his employment was terminated. See Marvin W. Sumlin Constr. Co. v. City of Prichard, 465 So. 2d 371 (Ala.1985), where this Court held that the filing of a complaint seeking damages for the breach of a contract is a sufficient claim for payment to satisfy the requirements of § 11-47-23. The plaintiff also argued that § 11-47-23 was not applicable to his § 1983 claim. The trial court agreed with the defendant and entered a summary judgment in its favor, finding that it was entitled to a judgment as a matter of law.
Thus, the issues presented for our review are 1) whether count one of the plaintiff's complaint states a claim for the breach of an employment contract and 2) whether § 11-47-23 is applicable to a § 1983 claim brought in a state court against a municipality. For the following reasons, we hold that § 11-47-23 is not a bar to either of the plaintiff's claims.
Although we are called upon to review a summary judgment in this case, the standard of review applicable to the first issue, as presented, is the one applicable to motions to dismiss:
Seals v. City of Columbia, 575 So. 2d 1061 (Ala.1991), quoting Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala.1985). (Emphasis in Fontenot.)
The plaintiff alleged in count one of his complaint that the defendant had a "Policy and Procedures Manual" and that the defendant had failed to follow the policies and procedures set out therein in terminating his employment. Construing the complaint liberally in favor of the plaintiff, as the applicable standard of review requires us to do, we must disagree with the defendant's contention that the trial court correctly characterized count one of the complaint as attempting to state a tort claim for the wrongful termination of an employment contract. Instead, we conclude that count one is sufficient to state a claim for the breach of an employment contract. This Court has held that an employee-at-will relationship can be modified by provisions in an employee handbook by which the employer promises not to discharge employees except by procedures or for causes set forth in the handbook:
The defendant relies on Stewart v. City of Northport, 425 So. 2d 1119 (Ala.1983), to support its argument that § 11-47-23 is a bar to the plaintiff's § 1983 claim. In Stewart, this Court held that § 11-47-23 was applicable to a § 1983 claim brought in a state court against a municipality. The Court stated, in part, as follows:
425 So. 2d at 1121. The Court went on to distinguish § 11-47-23 from Georgia's ante-litem notice provision and to hold that there were no constitutional barriers, such as the exhaustion of administrative remedies, to the plaintiffs' filing of their § 1983 action. The Court specifically held that Ehlers v. City of Decatur, Georgia, 614 F.2d 54 (5th Cir.1980), did not control that case.[3]
Relying on Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985); Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L. Ed. 2d 594 (1989); Acoff v. Abston, 762 F.2d 1543 (11th Cir.1985); and Jones v. Preuit & Mauldin, 876 F.2d 1480 (11th Cir.1989), the plaintiff argues that the only statute of limitations now applicable to a § 1983 claim filed in a court in Alabama, whether that court is a state court or a federal court, is the two-year statute of limitations set out in Ala.Code 1975, § 6-2-38(l). In essence, the plaintiff's argument is that Stewart v. City of Northport, supra, has been overruled by federal case law. We agree.
In Wilson v. Garcia, supra, the United States Supreme Court held that courts entertaining claims brought under § 1983 should borrow the state statute of limitations for personal injury actions. Later, in Owens v. Okure, supra, the Court held that where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims *214 should borrow the general or residual statute of limitations for personal injury actions. The rationale of the Court's holdings in Wilson and Owens is, perhaps, best explained in the following quote from Owens:
488 U.S. at 239-43, 109 S. Ct. at 576-78.
Thus, the United States Supreme Court has made it clear that there is only one statute of limitations in each state applicable to a § 1983 claim. In Alabama, § 6-2-38(l), supra, is the statute of limitations applicable to a § 1983 claim. See Jones v. Preuit & Mauldin, supra.
We note the defendant's argument that § 11-47-23 is not a statute of limitations. It is true that this Court has characterized § 11-47-23 as a nonclaim provision, see, e.g., Marvin W. Sumlin Constr. Co. v. City of Prichard, supra, and Ivory v. Fitzpatrick, 445 So. 2d 262 (Ala.1984); however, contrary to the defendant's assertions, our characterization of it as a nonclaim provision does not change the fact that § 11-47-23, if not complied with, would operate as a statute of limitations by barring a § 1983 claim. The exact nature of a nonclaim provision was explained in Ivory v. Fitzpatrick, supra:
445 So. 2d at 264. (Emphasis in original.)
We further note that in Acoff v. Abston, supra, the Eleventh Circuit Court of Appeals also recognized that § 11-47-23 operated as a statute of limitations and, construing *216 Wilson v. Garcia, supra, held as follows:
762 F.2d at 1546.
In light of the United States Supreme Court's holdings in Wilson v. Garcia, supra, and Owens v. Okure, supra, we hereby overrule Stewart v. City of Northport, supra, to the extent that it stands for the proposition that § 11-47-23 is applicable to a § 1983 claim filed in a state court in Alabama against a municipality.
For the foregoing reasons, the judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] The defendant does not dispute that count two states a claim for damages under § 1983.
[2] A tort claim for the wrongful termination of an employment contract has not been recognized in Alabama. See Salter v. Alfa Insurance Co., 561 So. 2d 1050 (Ala.1990).
[3] In Ehlers, then Judge Godbold, writing for a panel of the court, stated:
"Federal courts may not require exhaustion of state administrative or judicial remedies in a § 1983 action for damages for deprivation of a constitutional right. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Wells Fargo Armored Serv. Corp. v. Georgia Public Serv. Comm'n, 547 F.2d 938, 939-940 n. 1 (5th Cir.1977); Bryant v. Potts, 528 F.2d 621 (5th Cir.1976). States may not statutorily burden access to the federal courts with requirements federal courts themselves are prohibited from imposing. U.S. Const. art. VI, cl. 2 (Supremacy Clause). Contrast De Almanza v. Laredo Water Works Syst., 582 F.2d 970 (5th Cir.1978) (ante-litem notice constitutional as applied to state law claim in diversity suit). Georgia's ante-litem notice requirement therefore may not constitutionally be applied to this § 1983 action for damages for deprivation of a constitutional right."
614 F.2d at 56. In light of our holding in this case, we need not decide whether the Stewart court erred in holding that § 11-47-23 does not require a complainant to exhaust a state remedy prior to filing a § 1983 claim. | February 15, 1991 |
8e5f2190-eed1-4e5e-bdfa-1aff73e4e6ee | Industrial Risk v. Garlock Equipment | 576 So. 2d 652 | N/A | Alabama | Alabama Supreme Court | 576 So. 2d 652 (1991)
INDUSTRIAL RISK INSURERS, an unincorporated association
v.
GARLOCK EQUIPMENT COMPANY and Seyforth Roofing Company.
GARLOCK EQUIPMENT COMPANY
v.
INDUSTRIAL RISK INSURERS, an unincorporated association.
89-1079, 89-1115.
Supreme Court of Alabama.
February 8, 1991.
*653 Mark E. Spear and Thomas H. Nolan, Jr. of Brown, Hudgens, Richardson, Mobile, for appellant/cross-appellee.
Jean Seaburg and James E. Olds, Minneapolis, Minn., and William H. Mills of Redden, Mills & Clark, Birmingham, for appellee/cross-appellant Garlock Equip. Co.
Frank E. Lankford, Jr. of Huie, Fernambucq & Stewart, Birmingham, for appellee Seyforth Roofing Co.
MADDOX, Justice.
The primary issue presented by these appeals is whether an insurer who has paid to its insured, the owner, proceeds for damages incurred as a result of a fire that occurred during the construction of a shopping mall, is subrogated to the rights of the owner, and, if so, whether the insurer can sue a subcontractor that was allegedly negligent on the job and whose negligence, it argues, caused the fire.
The trial court determined, as a matter of law, that the insurer, Industrial Risk Insurers (hereinafter referred to as "IRI"), had no subrogation rights against a subcontractor on the job and therefore granted the motion for a directed verdict filed by a subcontractor, Seyforth Roofing Company. IRI appeals from that judgment. Garlock Equipment Company, the manufacturer of a tar kettle used by Seyforth, cross-appeals, contending that it is in the same legal position as Seyforth, and that although the jury returned a verdict in its favor, the trial court erred in denying its similar motion for a directed verdict. In deciding the primary issue, we must construe the provisions of IRI's "builder's risk" policy and determine, after a consideration of all the facts, whether Seyforth *654 and Garlock were entitled to a judgment as a matter of law on IRI's claim of a right to be subrogated to the rights of its insured, the owner.
IRI insured Jim Wilson & Associates, Inc. (hereinafter referred to as "JWA"), under a "builder's risk" policy against hazards in connection with the construction of the Galleria Mall in Hoover, Alabama. JWA acted as the "authorized representative" for Riverchase Mall Associates, a partnership that owned the Galleria Mall.
On June 5, 1985, while the Galleria Mall was under construction, a fire occurred on the roof of the mall's office tower, causing extensive damage to the roof and to the top floors of the tower. IRI paid $417,000 to JWA pursuant to the builder's risk policy. IRI claims that it thereby became subrogated to any potential claims that JWA may have had against the party or parties responsible for causing the fire.
On May 30, 1986, IRI sued Seyforth, the roofing subcontractor, and Garlock, the manufacturer of an allegedly defective tar kettle used by Seyforth. IRI claimed that Seyforth had agreed to indemnify JWA for damage or destruction caused by or resulting from work performed by Seyforth and that Seyforth's negligence had caused or had combined to cause the fire and resulting damage.
The trial court denied both Seyforth's motion to dismiss and its subsequent motion for summary judgment. However, at the close of all of the evidence, the trial court directed a verdict in favor of Seyforth. The jury later returned a verdict in favor of Garlock. Judgment was entered for Seyforth and Garlock.
IRI argues on appeal that the trial court committed reversible error in directing a verdict for Seyforth and erred in its jury instructions regarding IRI's claims against Garlock. Garlock maintains on cross-appeal that the trial court erred in denying its motion for directed verdict. Garlock also argues that IRI is not a real party in interest; that JWA has no interest in the proceeds paid by IRI as the result of the fire; and that JWA was contributorily negligent and had assumed the risk, thus defeating the claims to which IRI asserts it is subrogated.
Essentially, we must determine whether the trial court properly directed a verdict for Seyforth; whether it erroneously failed to grant Garlock's similar motion for directed verdict; and, if the trial court properly refused Garlock's motion for directed verdict, whether it erroneously instructed the jury, thereby prejudicing IRI. Initially, we must interpret the language found in the "General Conditions of the Contract for Construction" in conjunction with the language found in Seyforth's subcontract.
JWA entered into a contract with Harbert International, Inc., whereby Harbert International would be the general contractor for the construction of the Galleria Mall and the adjoining office tower. Harbert International then entered into a subcontract with McDevitt & Street Co. for the construction of the office tower; McDevitt & Street then entered into a subcontract with Seyforth for the construction of the office tower roof. In performing its duties under the subcontract, Seyforth used a tar kettle manufactured by Garlock.
McDevitt & Street's subcontract with Seyforth provided as follows:
In paragraph 12 of this subcontract, Seyforth agreed to "defend, indemnify and save harmless Contractor and Owner, and their agents, servants and employees, from and against any claim, cost, expense, or liability."
*655 IRI also points out that paragraph 14 required Seyforth to "comply with all statutes, ordinances, rules, regulations and orders" of the governmental body having jurisdiction over the construction. This paragraph mandated that Seyforth
Additionally, paragraph 25 of this subcontract stated that Seyforth "shall take reasonable precautions to protect the Work from loss or damage prior to acceptance by Owner." IRI argues that by the terms of the subcontract, Seyforth agreed to indemnify and hold the contractor and owner harmless from damage to or destruction of property. This, argues IRI, allows IRI the right of subrogation against Seyforth.
However, this subcontract also incorporates by reference JWA's "General Conditions of the Contract for Construction." Section 11.3.1 of the "General Conditions" states:
Section 11.3.6 of the "General Conditions" provides for a waiver of subrogation:
Seyforth maintains that its subcontract with McDevitt & Street acts in harmony with the incorporated "General Conditions"; that the language is clear and unambiguous with regard to the waiver of subrogation clause in the "General Conditions"; and that the trial court, by directing a verdict, correctly determined that as a matter of law IRI had contractually waived its right of subrogation against Seyforth. IRI contends that Seyforth's subcontract contains additional provisions contrary to Article 11 of the "General Conditions" and that those provisions in the subcontract take precedence over the "General Conditions" and that a material issue of fact is thus presented.
IRI relies on the case of United States Fidelity & Guaranty Co. v. Escambia Electric & Appliance Co., 384 So. 2d 1073 (Ala. 1980), in which this Court reversed a summary judgment entered in favor of a subcontractor that allegedly had deviated from the architectural plans when it installed, with the consent of the owner and with the architect's oral approval, a used heating/cooling system that allegedly caused a fire. The contractor in that case, Southern General, entered into a subcontract with Escambia Electric for the installation of a heating/cooling system in a high school athletic building under construction.
In Escambia Electric, Southern General had purchased a builder's risk insurance policy from U.S.F. & G. containing a "waiver of subrogation" clause similar to that incorporated by reference in Seyforth's subcontract with McDevitt & Street. When a fire damaged the building, U.S.F. & G. paid to Southern General the amount required to repair the structure. U.S.F. & G., as subrogee, then sued Escambia Electric, alleging that it had negligently installed the used heating/cooling system that allegedly caused the fire. Escambia moved *656 for summary judgment, and the trial court granted the motion. U.S.F. & G. appealed to this Court.
While recognizing that the subcontract between Southern General and Escambia Electric contained a waiver of subrogation clause, this Court reversed the judgment of the trial court and stated that there existed questions of fact with regard to whether Escambia's "installation of the [used] system was pursuant to the subcontract or whether it was an independent act outside the limits [of its subcontract with Southern General]." 384 So. 2d at 1074.
We have closely examined the facts in Escambia Electric, and we conclude that that case is distinguishable from the instant case. In Escambia Electric, this Court specifically stated that "Article 9 of the subcontract between Escambia and Southern General prevent[ed] U.S.F. & G. as subrogee of Southern General from bringing an action against Escambia," but that Article 9 would apply "only if the work performed by Escambia is pursuant to the subcontract." The Court then explained that summary judgment was not proper in that case because "a question of fact [was] presented as to whether the installation of the system was pursuant to the subcontract or whether it was an independent act outside the limits of Article 9." 384 So. 2d at 1074.
We believe that Escambia Electric stands for the general rule that an owner does not retain subrogation rights against a negligent contractor or subcontractor, when the owner's builder's risk insurance policy contains a "waiver of subrogation" clause. In this case, such a "waiver of subrogation" clause is incorporated by reference in Seyforth's subcontract with McDevitt & Street. The purpose of a waiver of subrogation clause is to require one party to the contract to provide property insurance for all of the parties. Board of Education v. Valden Associates, Inc., 46 N.Y.2d 653, 416 N.Y.S.2d 202, 389 N.E.2d 798 (1979).
In South Tippecanoe School Bldg. Corp. v. Shambaugh & Son, Inc., 182 Ind.App. 350, 395 N.E.2d 320 (1979), the court held that a builder's risk insurer was not entitled to subrogation against allegedly negligent contractors, subcontractors, materialmen, and architects. The court stated that all subcontractors and materialmen were included under the waiver of subrogation clause and that to allow subrogation would lead to conflicts of interest and costly litigation. Summary judgment was therefore, properly entered in favor of the subcontractors, materialmen, and architects.
Appellee Seyforth cites several more recent decisions for this rule. In Trump-Equitable Fifth Avenue Co. v. H.R.H. Construction Corp., 106 A.D.2d 242, 485 N.Y.S.2d 65 (1985), aff'd, 66 N.Y.2d 779, 497 N.Y.S.2d 369, 488 N.E.2d 115 (1985), which involved provisions virtually identical to those in JWA's contract with Harbert International (the AIA "General Conditions for the Contract of Construction" were incorporated by reference into the contract between Trump-Equitable and H.R.H.), the court held that fire damage to a construction project allegedly caused by the negligence of a subcontractor was covered by the builders risk policy and that the insurer could not recover in subrogation from the subcontractor's liability insurer for the damage to the construction project. The New York court found no conflict between the language in the subcontract and the "General Conditions" stating that the owner obtains first-party coverage for property loss in the event of damage to the building during construction and waives its right of subrogation. That court further held that the subcontractor maintains third-party coverage and thus does not contract away his liability.
Waiver of subrogation was further explained in Tokio Marine & Fire Insurance Co. Ltd. v. Employers Insurance of Wausau, 786 F.2d 101 (2d Cir.1986). There, the general contractor and its insurer brought a declaratory judgment action to determine which of several insurance policies covered water damage to a Florida construction project. The court stated that the provision in the subcontractor's contract that it indemnify and hold the general contractor or owner harmless from and against all *657 claims arising out of the acts or omissions of the subcontractor "extends only as far as the scope of the liability insurance," and that "[to] rule otherwise would ignore the purpose of a waiver of subrogation provision, which `in effect simply require [s] one of the parties to the contract to provide [property] insurance for all the parties.'" 786 F.2d at 105 (emphasis added), quoting Board of Education, supra, 46 N.Y.2d at 657, 416 N.Y.S.2d at 203, 389 N.E.2d at 799.
In Housing Investment Corp. v. Carris, 389 So. 2d 689, 690 (Fla.Dist.Ct.App.1980), the court noted:
Other jurisdictions in which courts have interpreted the waiver of subrogation clause to disallow subrogation as a matter of law include National Union Fire Ins. Co. v. Engineering-Science, Inc., 884 F.2d 1208 (9th Cir.1989); United States Fidelity & Guaranty Co. v. Farrar's Plumbing & Heating Co., 158 Ariz. 354, 762 P.2d 641 (App.1988); Village of Rosemont v. Lentin Lumber Co., 144 Ill.App.3d 651, 98 Ill.Dec. 470, 494 N.E.2d 592 (1986); American Ins. Co. v. L.H. Sowles Co., 628 F.2d 967 (6th Cir.1980); and J.F. Shea Co. v. Hynds Plumbing & Heating Co., 96 Nev. 862, 619 P.2d 1207 (1980).
The waiver of subrogation clause prevents disruption and disputes among parties to a construction project and eliminates lengthy lawsuits. All parties are protected because all property damage is brought under the builder's risk policy.
In Tuxedo Plumbing & Heating Co. v. Lie-Nielsen, 245 Ga. 27, 262 S.E.2d 794 (1980), the Georgia Supreme Court reviewed the meaning and enforceability of contract provisions similar to those in this case. After a fire allegedly caused by the contractor's negligence, the owner argued that the insurance was meant to cover only the owner. The court disagreed, stating that the owner could not recover from the contractor. "[The waiver of subrogation clause] shifts the risk of loss to the insurance company regardless of which party is at fault." 245 Ga. at 29, 262 S.E.2d at 794.
The parties to the instant suit expressly waived all rights against each other for damages caused by perils covered under the policy. We believe that it is clear that the parties intended to allocate property loss to IRI and to limit the recourse of JWA, the purchaser of the builder's risk policy, solely to the insurance proceeds from IRI. Thus, we hold that the trial court properly directed a verdict for defendant Seyforth Roofing Company.
With regard to defendant Garlock Equipment Company, we hold that Garlock is not an insured under IRI's builder's risk insurance policy. Garlock is not a named insured, nor is Garlock a subcontractor, sub-subcontractor, materialman, agent, or employee of the named insureds. Thus, Garlock was not entitled to a directed verdict, as was Seyforth, with regard to IRI's subrogation claims. Nonetheless, the jury returned a verdict in favor of Garlock. IRI appeals and maintains that the trial court instructed the jury erroneously with regard to its claims against Garlock. Garlock cross-appeals and claims that it was entitled to a directed verdict.
In its complaint, IRI alleged that Garlock had negligently and/or wantonly designed, manufactured, engineered, and sold a certain tar kettle that was being used at the time of the fire; that the tar kettle was defective and that its defective condition rendered it unreasonably dangerous; that Garlock negligently and/or wantonly failed to inform or warn the user of the dangerous condition of the tar kettle; and that the fire and resulting property damage was the proximate consequence of Garlock's negligence and/or wantonness.
Garlock asserted as affirmative defenses that the negligence of others contributed to and was the direct and proximate cause of the damage alleged by IRI; that the alleged damage was proximately caused and contributed to by the misuse and abuse of *658 the tar kettle; that IRI and its named insureds assumed the risk of such misuse and abuse; and that the alleged damage was proximately caused by an alteration or modification of the tar kettle.
IRI claims on appeal that the trial court gave to the jury a number of abstract instructions not based upon the evidence and, further, gave a confusing and erroneous instruction on the issue of whether the jury could impute the negligence of Seyforth or McDevitt & Street to IRI. Garlock contends, that, regardless of whether this negligence should be imputed to IRI, IRI waived any objection to any allegedly erroneous jury instruction.
At trial, after giving a lengthy instruction to the jury, the trial judge asked counsel to place their objections on the record. Counsel for IRI objected as follows:
These were IRI's only objections to the jury instructions. The trial court did not correct any of its instructions to the jury, and the jury returned a verdict for Garlock.
It is well recognized that the purpose for requiring a statement of the grounds for a party's objections or exceptions to an oral charge to the jury is to allow the trial court "an opportunity to correct the instructions and to avoid the waste of time and money from reversals resulting from oversight, technical omissions, or [remediable] mistakes." Nelms v. Allied Mills Co., 387 So. 2d 152 (Ala.1980) (quoting Feazell v. Campbell, 358 So. 2d 1017, 1020 (Ala.1978)). Therefore, a party waives any possible error as to the trial court's oral charge by failing to specifically object and state his grounds for objection. Campbell v. Employers Ins. Co. of Alabama, 521 So. 2d 924 (Ala.1988).
While we agree with IRI and hold that its objections were sufficient to preserve any alleged error in the trial court's instructions regarding the imputation to IRI of contributory negligence or assumption of the risk, we also hold that the error alleged by IRI is harmless. Rule 45, Ala. R.App.P., states:
After a thorough reading of the record, including the trial court's instructions to the jury, we consider it clear that the error alleged by IRI was harmless. The party alleging error on appeal must not only establish error, but must also show that it was probably prejudiced by the error. Johnson v. Langley, 495 So. 2d 1061 (Ala.1986). In this case, the trial court properly instructed the jury regarding both the Alabama Extended Manufacturer's Liability Doctrine and IRI's rights as a subrogee.
Although IRI claims that the trial court erred in stating that Seyforth's or McDevitt & Street's negligence could be directly imputed to IRI, it is true that IRI had rights against Garlock only as a subrogee of its insureds. The trial court instructed the jury that for Garlock to be liable for a defect in the tar kettle, the defect must have existed at the time it left Garlock's control and must have proximately caused the damage claimed by IRI. We hold that that instruction was correct and sufficient *659 to overcome the alleged error claimed by IRI. A thorough reading of the record clearly reveals that the alleged error was harmless. We, therefore, hold that the trial court properly directed a verdict in favor of Seyforth and properly submitted to a jury IRI's claims against Garlock. The judgment of the trial court is due to be, and it hereby is, affirmed.
89-1079, AFFIRMED.
89-1115, AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON, KENNEDY and INGRAM, JJ., concur. | February 8, 1991 |
0e8fe8b5-41ca-4970-b019-a24f1741f7ed | Southland Farms, Inc. v. Ciba-Geigy Corp. | 575 So. 2d 1077 | 1900112 | Alabama | Alabama Supreme Court | 575 So. 2d 1077 (1991)
SOUTHLAND FARMS, INC.
v.
CIBA-GEIGY CORPORATION.
1900112.
Supreme Court of Alabama.
February 15, 1991.
*1078 Bayless E. Biles of Wilkins, Bankester, Biles & Wynne, Bay Minette, for appellant.
W. Dewitt Reams, Victor T. Hudson and William W. Watts III of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellee.
PER CURIAM.
The United States Court of Appeals for the Eleventh Circuit has presented this certified question pursuant to Rule 18, A.R. App.P. 914 F.2d 220.
The Court of Appeals submitted the following statement of the facts, the procedural history, and the question:
The question of law certified to us is whether the disclaimer on the CIBA-GEIGY label is unconscionable or is reasonable under the Uniform Commercial Code (Ala. Code 1975, § 7-1-101 et seq.) and thus precludes the recovery of consequential damages.
We summarized the law in Alabama with respect to the unconscionability of a contract in Wilson v. World Omni Leasing, Inc., 540 So. 2d 713, 716 (Ala.1989). There, we cited comment 1 of the official comments to § 7-2-302, Code 1975, which sets forth the basic test to determine unconscionability:
540 So. 2d at 716. (Citation omitted.) As we noted in Wilson, an unconscionable bargain or contract is "one that no man in his senses, not under delusion, would make on the one hand, and that no fair and honest man would accept on the other." Id., Central Mining, Inc. v. Simmon Machinery Co., 547 So. 2d 529, 531 (Ala.1989). Unconscionability includes "an absence of meaningful choice on the part of one of the parties, together with contract terms that are unreasonably favorable to the other party." 540 So. 2d at 713, citing West Point-Pepperell, Inc. v. Bradshaw, 377 F. Supp. 154 (M.D.Ala.1974), and Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C.Cir.1985).
The Uniform Commercial Code recognizes the validity of a limitation or exclusion of consequential damages where the loss is commercial. Ala.Code 1975, § 7-2-719(3), reads as follows:
This Court has confirmed the validity of risk-shifting provisions in the commercial context in Kennedy Electric Co. v. Moore-Handley, Inc., 437 So. 2d 76 (Ala.1983), and in Puckett, Taul & Underwood v. Schreiber Corp., 551 So. 2d 979 (Ala.1989).
We stated in Puckett, Taul & Underwood:
551 So. 2d at 983.
Where a provision excluding consequential damages is so widely used and accepted in a particular trade that it can be characterized as a "usage of trade," it has been found to be reasonable. Comment 6 to § 7-1-205 makes it clear that a contract clause resting on "usage of trade," while not immune from a charge of unconscionability, is prima facie "reasonable" due to its broad-based commercial acceptance:
Agricultural chemicals are sold, on an industry-wide basis, subject to an exclusion of liability for consequential damages. The affidavit of Dr. Everett Cowett, director of technical services for the Agricultural Division of Ciba-Geigy, has attached to it sample labels from 18 different pesticide manufacturers, all containing clauses excluding consequential damages. Clauses excluding consequential damages are permitted under the U.C.C. because they are an allocation of unknown or undeterminable risks. Comment 3, § 7-2-719.
The Minnesota Supreme Court found an identical section of a Ciba-Geigy exclusionary clause to be reasonable in Kleven v. Geigy Agricultural Chemicals, 303 Minn. 320, 227 N.W.2d 566 (1975). That court concluded that the facts of nature and the nature of the product made the stated exclusion of consequential damages reasonable. The court reasoned as follows:
303 Minn. at 326, 227 N.W.2d at 572. In accord, Earl Brace & Sons v. Ciba-Geigy Corp., 708 F. Supp. 708 (W.D.Pa.1989); Slemmons v. Ciba-Geigy Corp., 57 Ohio App.2d 43, 385 N.E.2d 298 (1978).
In upholding the exclusion clause in Lindemann v. Eli Lilly & Co., 816 F.2d 199 (5th Cir.1987), the Fifth Circuit Court of Appeals noted the commercial context of transactions of this nature. The court noted that the purchaser was an experienced and sophisticated farmer who operated a large holding and had been using the product for years. The court saw these facts as establishing a course of dealing between the parties. These factors, the court felt, indicated that no procedural unconscionability existed. The court further found no *1081 substantive unconscionability, stating that "the principle of unconscionability is one of preventing oppression and unfair surprise, not the disturbance of allocation of risks because of superior bargaining power." 816 F.2d at 204. The court discussed the fulfilling of the risk-allocation function by such exclusion clauses as that in Lindemann, as follows:
816 F.2d at 204.
As these cases demonstrate, a consequential damages exclusion in the commercial context of the sale of agricultural chemicals is an accepted method of riskshifting in the industry.[1] Indeed, Southland Farms admits in its brief (p. 16) that the disclaimers on the labels of the Dual and Ridomil products involved here have been upheld in other jurisdictions and that those jurisdictions have held that consequential and incidental damages were not recoverable.[2] There are several reasons that make these clauses an accepted usage of trade: (1) the vagaries of nature and the nature of such products; (2) the fact that the numerous factors affecting crop yield are beyond the manufacturer's control; (3) the fact that if the potential for consequential losses were shifted to the seller, the cost of the product would be prohibitive; and (4) the fact that crop insurance is available to the farmer to mitigate any burdensome effect that such an exclusion would have.
We hold that the disclaimer on Ciba-Geigy's product is reasonable, and, therefore, that the exclusion acts to preclude the recovery of consequential damages.
QUESTION ANSWERED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] The Supreme Court of South Dakota found a disclaimer identical to the one in this case to be unconscionable. Durham v. Ciba-Geigy Corp., 315 N.W.2d 696 (S.D.1982). However, after Durham was decided, the South Dakota legislature enacted a statute that negated its holding.
[2] Citing: Kleven v. Geigy Agricultural Chemicals, 303 Minn. 320, 227 N.W.2d 566, at 572 (1975); Earl Brace & Sons v. Ciba-Geigy Corp., 708 F. Supp. 708 (W.D.Pa.1989); Slemmons v. Ciba-Geigy Corp., 57 Ohio App.2d 43, 385 N.E.2d 298 (1978). | February 15, 1991 |
486bb834-d7d2-483f-aa1a-5fc596df8bfb | Ex Parte Henderson | 583 So. 2d 305 | 1900321 | Alabama | Alabama Supreme Court | 583 So. 2d 305 (1991)
Ex parte Jerry Paul HENDERSON.
(Re Jerry Paul Henderson v. State).
1900321.
Supreme Court of Alabama.
April 11, 1991.
Rehearing Denied June 7, 1991.
Jonathan L. Adams and R.D. Pitts, Talladega, for petitioner.
James H. Evans, Atty. Gen., and P. David Bjurberg and William D. Little, Asst. Attys. Gen., for respondent.
STEAGALL, Justice.
Jerry Paul Henderson was convicted by a Talladega County jury of capital murder (Code of Alabama 1975, § 13A-5-40(a)(7)), and was sentenced to death.[1] The Court of Criminal Appeals affirmed the conviction; see Henderson v. State, 583 So. 2d 276 (Ala. Cr.App.1990). This Court granted Henderson's petition for writ of certiorari. Rule 39(c), A.R.App.P.
In his petition to this Court, Henderson raises the same 22 issues that he raised before the Court of Criminal Appeals. The opinion released by the Court of Criminal *306 Appeals provides a thorough treatment of each issue raised by Henderson. Henderson v. State, supra.
Our review of a death penalty case allows us to address any plain error or defect found in the proceeding under review, even if the error was not brought to the attention of the trial court. Rule 45A, A.R.App.P. "`"Plain error" only arises if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.'" Ex parte Womack, 435 So. 2d 766, 769 (Ala. Cr.App.1983), cert. denied, Womack v. Alabama, 464 U.S. 986, 104 S. Ct. 436, 78 L. Ed. 2d 367 (1983), quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir. 1981). This Court may take appropriate action when the error "has or probably has" substantially prejudiced the appellant. Rule 45A, A.R.App.P.
We have thoroughly reviewed the record before us for error regarding the issues raised by Henderson as well as for plain error not raised. Out of an abundance of caution, we have given special consideration to the issues involving the spousal privilege, self-defense, an alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and allegedly improper jury instructions. We find the rulings of the Court of Criminal Appeals to be correct on these issues and on the remaining issues presented to this Court for review. Furthermore, we have found no plain error.
Therefore, the judgment of the Court of Criminal Appeals is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
[1] Judy M. Haney, Henderson's sister-in-law, hired him to murder her husband, Jerry Wayne Haney. She was also convicted of capital murder and received a sentence of death. Her conviction has been appealed to the Court of Criminal Appeals (that court has remanded the case to the circuit court with directions to deal with a possible violation of Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987)). Haney v. State, [Ms. 7 Div. 148, March 29, 1991] (Ala.Cr.App.1991). | April 11, 1991 |
63cec4b5-08ca-48b9-bb82-683ae6ba8c7f | Brown v. Williams | 576 So. 2d 195 | N/A | Alabama | Alabama Supreme Court | 576 So. 2d 195 (1991)
Jerome BROWN
v.
Claudia WILLIAMS and Henry Williams, Jr.
89-1103.
Supreme Court of Alabama.
February 15, 1991.
*196 Jerome Brown, pro se.
Richard H. Ramsey, Dothan, for appellees.
PER CURIAM.
Jerome Brown appeals from the dismissal of his suit against Claudia and Henry Williams, Jr., alleging breach of a lease agreement and from a default judgment in favor of the Williamses in the amount of $16,624.48 plus costs on their counterclaim.
On March 1, 1987, Brown leased from the Williamses a building on East Burdeshaw Street in Dothan for a term of six months, renewable for additional six-month periods, with rent payable in equal monthly installments of $100. The lease required that the property be used exclusively as a retail business and stated, "Damages resulting from the tenant's use or negligence will be the responsibility of the tenant." The lease also provided, "If said premises are destroyed by fire, or rendered unfit for occupancy by fire, then said rent shall abate during the time it shall remain unfit or unsuitable for occupancy by reason of fire." The lease was silent as to the lessor's right of termination.
Brown operated a sandwich shop on the premises called VIP 2002 Restaurant. On March 28, 1988, the building was partially damaged by a fire that originated in the kitchen. The incident report classified the origin of the fire as "suspicious" due to the fact that "[a] hot plate with book matches on it, and a lamp lying in a pan with matches in it were both connected to an electrical timer that was on circuit # 13, the only breaker except the main that was not switched to the off position."
According to Brown, the Williamses orally terminated the lease on May 4, 1988, when Brown attempted to pay rent for the months of October, November, and December 1988. On October 12, 1988, Brown sued the Williamses for breach of the lease, and on November 9, 1988, the Williamses counterclaimed, alleging that the fire was the result of Brown's negligence and seeking $10,000 in damages plus interest, costs, and attorney fees. By letter dated December 5, 1988, the Williamses again notified Brown that his tenancy had been terminated and then demanded possession within 10 days.
Brown submitted a letter to the trial court from Dr. Mark F. Dean with Family Practice Clinic of Dothan, dated December 5, 1989; that letter reads, in part, as follows:
On February 28, 1990, the date set for trial, the trial court entered the following order:
In reviewing a dismissal, this Court must determine, based on the record, whether the plaintiff can prove any set of facts in support of his claims that would entitle him to relief under some cognizable theory of law. Rule 12(b)(6), Ala.R.Civ.P.; Barton v. Alabama Elec. Co-op., Inc., 487 So. 2d 884 (Ala.1986). A Rule 12(b)(6) motion should be granted only when it appears beyond a doubt that the plaintiff can prove no set of facts entitling him to relief. Hancock-Hazlett General Constr. Co. v. Trane Co., 499 So. 2d 1385 (Ala.1986).
*197 With respect to fire clauses in leases such as the lease in the present case, this Court has interpreted "destroyed by fire" to mean total destruction of the property covered by the lease, Tyson v. Weil, 169 Ala. 558, 53 So. 912 (1910); Penny v. Quinn, 16 Ala.App. 251, 251, 77 So. 240, 240 (1917) ("[a] partial destruction of a building does not terminate a lease, which provides for its termination if the premises are destroyed by fire"). See, also, Waters v. Merritt, 277 Ala. 346, 170 So. 2d 492 (1964), and Cambron v. Carlisle, 406 So. 2d 865 (Ala.1981). Thus, in order for a tenant to be relieved of his liability for rent under a "destroyed by fire" clause, the destruction of the premises by fire must be entire.
In order for a lessee to be absolved from liability for rent in the event of total destruction of the leased premises, however, the fire must have occurred through no fault of the lessee:
Cook v. Anderson, 85 Ala. 99, 103, 4 So. 713, 714 (1887) (citations omitted) (emphasis added). See, also, Joiner v. Brightwell, 252 Ala. 112, 39 So. 2d 414 (1949).
The affidavits of both Shelby Womack, Dothan's fire marshal, and Miles Lieberman, an investigator hired by Fenmar International Insurance Services to determine the cause and origin of the fire at Brown's restaurant, stated that the fire was incendiary in origin. Brown provided no evidence, expert or otherwise, to contradict those affidavits and he offered nothing other than a general denial in his answer to the Williamses' counterclaim. Thus, we are compelled to conclude, as did the trial court, that there are no facts that would support an action against the Williamses for breach of their lease agreement with Brown. Brown himself concedes that the Williamses gave him oral notice of termination on May 4, 1988, more than three months prior to the end of the leasehold period.
The lease here provided that its duration was for a period of six months, renewable at six-month intervals. As such, this lease was a combination of a tenancy for years and a periodic tenancy. Restatement (Second) of Property, Landlord and Tenant § 1.5(i).
Although the lease here is silent with regard to the lessors' right of termination, the general rule is that, in the absence of an agreement between the parties, a month's notice prior to the end of the leasehold period, when that period is a month or more, is adequate. Id. at § 1.5(f). Furthermore, oral notice of termination is sufficient. Id. We hold that the Williamses' oral notice in May 1988 effectively terminated Brown's lease and that they were entitled to possession at the end of that leasehold period, i.e., on September 1, 1988. Thus, the dismissal of Brown's suit was proper.
In reviewing the propriety of the default judgment entered in favor of the Williamses on their counterclaim, we must utilize the three-factor analysis set out in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So. 2d 600 (Ala.1988), and applied recently in Fries Correctional Equipment, Inc. v. Con-Tech, Inc., 559 So. 2d 557 (Ala.1990). We note, initially, that Brown moved to set aside the default judgment of February 28, 1990, and that his motion was denied on March 17, 1990.
The three factors to consider in deciding whether to set aside a default judgment are: 1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant's own culpable conduct. Fries Correctional Equipment, Inc. v. Con-Tech, Inc., supra.
*198 We find from the record that Brown does not have a meritorious defense, because the evidence in this case would support the default judgment. A trier of fact could certainly have found that the loss to the premises occurred through the negligence of the lessee, Brown. Although Brown asked the court to set aside its default judgment, he offered no evidence or explanation that would serve as a defense to the negligence claim if it should go to trial. Therefore, we conclude that Brown has not presented a "meritorious defense" to the negligence claim. Because Brown offered no meritorious defense, we need not analyze his motion to set aside the default judgment in regard to whether the Williamses would be prejudiced by granting his motion or whether the default resulted from his own culpable conduct. Kirtland v. Fort Morgan Authority Sewer Service, Inc., supra. We do note, however, that the scheduled trial date was a date after which Brown's physician had said he should be able to attend to his legal matters.
The dismissal of Brown's suit and the default judgment in favor of the Williamses are affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
ALMON, J., concurs in the result. | February 15, 1991 |
5fe58f52-f3c6-4559-957b-2d88099f407f | New Hampshire Fire Insurance Co. v. Curtis | 85 So. 2d 441 | N/A | Alabama | Alabama Supreme Court | 85 So. 2d 441 (1955)
NEW HAMPSHIRE FIRE INSURANCE CO.
v.
B. H. CURTIS, Jr.
1 Div. 639.
Supreme Court of Alabama.
December 22, 1955.
Rehearing Denied February 2, 1956.
*444 Alex T. Howard, Mobile, for appellant.
Caffey, Gallalee & Caffey, Mobile, for appellee.
PER CURIAM.
This is a suit by the insured, appellee, against the insurer, appellant, on a policy of insurance covering a tractor-trailer for damages resulting from a collision or upset. The suit was tried on a plea of the general issue and special plea No. 5.
Plea No. 3 refers to the policy which contains the "automobile endorsement", by which "loss, damage or returned premium, if any, under the said policy shall be payable as provided in said policy to Yellow Manufacturing Acceptance Corporation and B. H. Curtis, Jr. (plaintiff) as their interests in the property insured under this policy may appear". It is also provided that the interest of the acceptence corporation "shall not be invalidated by any act or neglect of the * * * conditional vendee of the property insured under said policy nor by any change in the title or ownership of said property".
The court sustained demurrer to defendant's plea No. 3, and that ruling is the basis of the first assignment of error.
The theory of plea 3 is based on the principle that under such a clause in the policy the insurer agreed to a split in the amount of the liability for the damage or loss between the insured as the purchaser and the acceptance corporation as the conditional seller. The effect of the principle justifies a separate claim by each. The acceptance corporation thereby has the first right to the extent of the amount owing it by the insured, not exceeding the total liability; and the insured (this plaintiff) is entitled to the balance of the amount of such liability. That is the settled law. Aetna Ins. Co. v. Koonce, 233 Ala. 265, 171 So. 269; Liverpool & London & Globe Ins. Co. v. Dickinson, 242 Ala. 107, 5 So. 2d 90; Piedmont Fire Ins. Co. v. Fidelity Mortgage Co., 250 Ala. 609, 35 So. 2d 352.
Under that principle the plaintiff, as the insured, can only recover the difference between the amount of the claim of the acceptance corporation and the amount of the liability of the insurer under the policy. The plea (No. 3) alleges the existence of the conditional sale contract held by the acceptance corporation, that plaintiff as the purchaser was in default and after the loss refused to pay up his default, and defendant adjusted with the acceptance corporation its claim under the conditional sale contract and found that the amount of the loss was $11,541.22; that the return premium amounted to $2,533.44, or a total of $14,074.66 which was paid to the acceptance corporation: that at that time plaintiff was indebted to said corporation on excess of the amount so paid.
We observe that if those facts are true, then under the principle stated above, plaintiff would have no claim by reason of the loss. The payment so made to the acceptance corporation would be as if directed by plaintiff and would completely pay the liability to plaintiff under the policy. We agree that this plea (No. 3) constitutes a good defense to this suit.
Plea No. 5 sets up substantially the same facts but alleges that by the payment of said sum to the acceptance corporation, defendant discharged itself from liability to that extent and in that amount, as against the amount of loss and damage claimed by plaintiff in this suit.
We think the difference here material between plea 3 and plea 5 is that in plea 3 it is alleged that the payment to the acceptance corporation covered the entire amount of defendant's liability under the policy. In plea 5 it is not so alleged, but states that defendant by said payment to the acceptance corporation discharged its liability to plaintiff to that extent.
The judge in his oral charge instructed the jury that "if the total amount payable under the policy as so found by you, that is the total amount of the value of the loss exceeds the total amount which was due *445 to the Yellow Manufacturing Acceptance Corporation and paid to them, the plaintiff is then entitled to recover the excess" with interest. That is a correct application of the principle of law referred to above. Plea No. 5 is sufficient to justify its application, and plea 3 would not be necessary nor add anything to the right of defendant in its application. We think there was no injury which resulted from the court's ruling as to plea 3.
We might observe in this connection that the fact of plaintiff's default in his payments to the acceptance corporation and his failure to clear that up is not a material factor except in respect to the amount of the debt to be paid to the acceptance corporation and its right to repossess the truck.
All the other assignments of error are based upon the judgment of the court overruling the motion for a new trial. They assign certain grounds of the motion in separate assignments. Those assignments are in the main that the verdict is contrary to the charge of the court in respect to the amount of the liability of appellant under its policy.
Plaintiff filed a replication to plea 5 alleging in substance that on February 3, 1953, the acceptance corporation elected to repossess and did repossess said tractor and trailer under the terms of said conditional sale contract and thereby discharged the indebtedness of plaintiff under said conditional sale contract.
The court sustained the demurrer to that replication and, at the instance of defendant, gave written charge No. 11, and instructed the jury in his oral charge, as we have stated,all of which indicates that the judge was of the opinion that a repossession of the truck by the acceptance corporation did not cancel the indebtedness of plaintiff to the acceptance corporation.
Appellee has cross assigned as error the giving of charge No. 11. We do not suppose that by doing so appellee sought to have the judgment of the trial court reversed or modified, but that it was the occasion for a renewal before this Court of the insistence made in the court below that such repossession had the effect of cancelling the indebtedness of plaintiff to the acceptance corporation. We think the trial court was in error in giving charge No. 11. Alexander v. Mobile Auto. Co., 200 Ala. 586, 76 So. 944; Emerson-Brantingham Implement Co. v. Arrington, 216 Ala. 21, 112 So. 428; S. F. Bowser & Co. v. Harris, 241 Ala. 113, 1 So. 2d 14; Bern v. Rosen, 36 Ala.App. 296, 55 So. 2d 361.
The evidence shows that the accident occurred on November 22, 1953, and that the acceptance corporation repossessed the wreckage or salvage on February 3, 1954, which was before the insurance company made any adjustment of the loss or paid the acceptance corporation anything in respect to it. This adjustment was made on April 27, 1954. The salvage was sold by the acceptance corporation for $1,800. So that, if on April 27, 1954, the plaintiff was not indebted to the acceptance corporation in any sum, the entire amount of liability for the loss was payable to plaintiff. It is not important that the repossession occurred subsequent to the wreck. The rights of plaintiff and of the acceptance corporation, respectively, were but an apportionment of the insurer's liability and that apportionment could be altered by a change of circumstances at any time before a settlement was made with the acceptance corporation. Aetna Ins. Co. v. Koonce, supra.
We have heretofore stated the Alabama law in respect to the repossession by the holder of a conditional sale contract of the property included in the sale; but we observe that in the instant case its effect is controlled by the Florida law. The conditional sale contract with the General Truck and Equipment Company, its transfer to the acceptance corporation, and the policy of insurance were all executed on the same day in Orlando, Florida. The wreck occurred in Mississippi. The plaintiff is a resident of Alabama. Under our statute, section 97, Title 7, Code, the courts of this *446 State have jurisdiction over a cause of action which arose in Florida provided proper service is had in this State. The substantive rights of the parties under the contract are controlled by the law of the State of Florida where the contract was executed. Furst & Thomas v. Sandlin, 208 Ala. 490, 94 So. 740; J. R. Watkins Co. v. Hill, 214 Ala. 507, 108 So. 244; New York Life Ins. Co. v. Scheuer, 198 Ala. 47, 73, So. 409; Western Union Tel. Co. v. Favish, 196 Ala. 4, 71 So. 183.
The law of Florida in this connection has not been introduced in evidence. When we seek to apply the law of a sister state, if it is of common law origin, the principle is that we will presume that the common law prevails if the law of that state is not introduced in evidence. If it is not of such origin (although we find a Florida statute adopting the common law of EnglandSection 2.01, Code), we will apply the Alabama law. Bank of Cottonwood v. Hood, 227 Ala. 237, 149 So. 676; Peet v. Hatcher, 112 Ala. 514, 21 So. 711; Kennebrew v. Southern Automatic Electric Shock Machine Co., 106 Ala. 377, 17 So. 545. It is of interest to note that the decisions of Florida, which we find in the reports, give the same effect to the repossession of property under a conditional sale contract as the law of Alabama. Baer v. General Motors Acceptance Corp., 101 Fla. 913, 132 So. 817; Jackson v. H. W. Wade Mfg. Co., 102 Fla. 970, 136 So. 689.
However, the trial judge proceeded upon a different theory of the law, and the jury was bound by the theory of the law which the judge charged them was applicable and they had no right to depart from it, although that theory was erroneous. A verdict contrary to it would have to be set aside on motion. Fleming & Hines v. Louisville & N. R. Co., 148 Ala. 527, 41 So. 683; Penticost v. Massey, 202 Ala. 681, 81 So. 637; City of Decatur v. Finley, 221 Ala. 101, 127 So. 518; Piedmont Fire Ins. Co. v. Tierce, 245 Ala. 415, 17 So. 2d 133; Franklin Fire Ins. Co. v. Slaton, 240 Ala. 560, 200 So. 564; White v. State ex rel. Hardegree, 256 Ala. 18(4), 53 So. 2d 599.
It is necessary, therefore, for us to go to other features of the trial in order to see if any other phase of the evidence justified a verdict for the plaintiff in the sum of $12,000.
During the trial it was agreed that the balance due the acceptance corporation at the time of the accident (November 22, 1953) was $16,643.38. That amount was arrived at as follows:
The insurance adjuster made a finding for his own purposes and calculated the amount of its liability based upon the policy provision which agreed to pay the total loss with a "deductible" of $500.
But the policy authorized the insurer to make repairs and fix the cost of doing so as its liability, and the adjuster claimed on that basis that such cost would only be $12,230.49 to restore the truck to its former condition, and thereby reduced the insurer's liability under the policy to $11,541.22. That amount was paid by defendant to the acceptance corporation. An additional sum of $2,533.44 was paid by defendant to the acceptance corporation as the amount of unearned premium which had been paid on the policy. The $11,541.22 plus $2,533.44 makes a total sum of $14,074.66 which was paid to the acceptance corporation on April *447 27, 1954, in full of the debt of plaintiff to it. That debt was discharged by a written release given defendant by the acceptance corporation in consideration of such payment.
As we have said, the true measure of defendant's liability to plaintiff on April 27, 1954, was the difference between the total liability for the loss with interest and the amount of the debt of plaintiff to the acceptance corporation. As to the debt due the acceptance corporation, defendant's settlement with it and its release in full for the sum of $14,074.66 is conclusive on defendant for the purposes of this suit that such liability was no more than that amount. Therefore, to ascertain plaintiff's interest in the loss the formula to be applied is the difference between that amount and the amount of the total liability.
From the evidence most favorable to the plaintiff, and conforming to the charge of the court, the following seems to be a proper computation of the amount of the total liability and of plaintiff's interest in it:
This represents the amount owing plaintiff by defendant as of December 22, 1955, according to the court's charge to the jury.
It is also insisted by appellee that the verdict could be justified on the ground that there was no indebtedness to the acceptance corporation because the assignment of the conditional sale contract was to the Yellow Manufacturing Credit Corporation, and not to the acceptance corporation. We cannot sustain that contention on the part of appellee. The evidence was undisputed that the transaction was with the acceptance corporation, which paid the seller (General Truck and Equipment Co.) and took over the contract, and all negotiations occurring since then have been made by it: that though there was such a corporation as the credit corporation, the assignment was made to it by mistake; and that it has never claimed to be the assignee and never asserted an interest in the assignment. The court in charging the jury treated the acceptance corporation as the assignee and no exception was taken to the charge. It is not necessary to the rights of the acceptance corporation to be named as the assignee when the evidence shows that it was intended to be the assignee and had the beneficial interest in the assignment. We are here dealing with beneficial interests.
The result is that there is no phase of the evidence which according to the charge of the court would sustain a verdict for $12,000. There being no other error in the record which adversely affects appellant's rights, it is necessary for us to reverse the judgment of the circuit court unless the appellee shall within thirty days from this date file in this Court a remittitur of all damages included in the judgment in excess of $6,851.14 with interest from December 22, 1955. If such remittitur is so filed, the judgment will be affirmed as reduced.
The judgment should be affirmed conditionally, section 811, Title 7, Code.
The foregoing opinion was prepared by Foster, Supernumerary Justice of this Court, while serving on it at the request of *448 the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Affirmed conditionally.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur.
On Rehearing.
PER CURIAM.
We cannot sustain the contention made by appellee on rehearing, as was also made on the original submission, that the truck including the trailer were worth more at the time of the wreck and immediately before than they were worth when purchased new. We do not find that the evidence sustains that contention.
However, in making the computation we deducted $500 from the amount of the loss occasioned by the wreck in ascertaining the amount owing by the insurer. This was in accordance with the terms of the policy which provided for a deduction of $500. Our attention is now called to the fact that the court charged the jury that it was agreed that the $500 had previously been deducted referring to the settlement made by the insurer with the acceptance corporation. There was shown in the transcript such an agreement acted upon by the court in so charging the jury. Therefore, it is not now a question of whether that should have been deducted in making the computation, but whether such deduction was violative of the agreement and the charge of the court. It appears to us that in view of that situation, appellee is correct in contending that such deduction should not now be made. It therefore becomes necessary for us to make a new computation of the amount of the liability of the insurer by reason of the wreck in order to determine the amount, if any, is owing by the insurer to the appellee, plaintiff, which computation is as follows:
Therefore, the judgment of this Court should be modified so as to reverse the judgment of the circuit court on account of the excessive amount thereof, unless appellee shall within thirty days from this date file in this Court a remittitur of all damages included therein in excess of $7,371.03. If such remittitur is so filed, the judgment will be affirmed as reduced otherwise it will stand reversed and remanded.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
As the judgment and opinion of this Court is thus modified, the application for rehearing is overruled.
Judgment and opinion of this Court modified, and as modified the application for rehearing is overruled.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur. | December 22, 1955 |
4df094cb-a371-4ea5-a1c8-ea8afb192420 | Evans v. Evans | 84 So. 2d 337 | N/A | Alabama | Alabama Supreme Court | 84 So. 2d 337 (1955)
Edna L. EVANS
v.
Maurice F. EVANS, Jr.
6 Div. 934.
Supreme Court of Alabama.
December 22, 1955.
Abercrombie & Weeks, Birmingham, for appellant.
Hogan & Calloway, Birmingham, for appellee.
STAKELY, Justice.
This is an appeal from a decree modifying a divorce decree as to the support and maintenance provisions thereof and refusing to hold the appellee in contempt for failure to pay alleged unpaid installments due for such maintenance and support.
*338 On September 17, 1943, Edna L. Evans (appellant) filed her bill for divorce against Maurice F. Evans (appellee). On May 18, 1944, the court entered a final decree dissolving the bonds of matrimony theretofore existing between Edna L. Evans and Maurice F. Evans. In the decree the court granted the care, custody and control of the minor children, Patricia Ann Evans and John Franklin Evans, to the mother Edna L. Evans. The court further ordered Maurice F. Evans to pay the complainant the sum of $100 each month for the support and maintenance of herself and of the children payable semi-monthly in installments of $50 each on the 12th and 27th days of each month, the first payment to be made on September 27, 1943.
On June 30, 1955, Maurice F. Evans filed a petition seeking to modify the provisions for support and maintenance contained in the divorce decree, alleging substantial changes regarding the station in life, earnings and earning capacities, prospective earnings and general financial abilities of the parties to the decree, the details being alleged in substance as follows. Maurice F. Evans has remarried and is now residing in Jackson, Mississippi, with his present wife. By his present marriage he is the father of two children, Sandra Kay Evans and Jeanine Clair Evans, who together with his present wife are solely dependent on petitioner for their support and maintenance. The birth of a third child is expected in the early part of August, 1955.
At the time of the original divorce decree of May 18, 1944, petitioner was earning in the neighborhood of $350 per month and his ex-wife Edna Evans and the children of his former marriage, John Franklin Evans and Patricia Ann Evans, were then his sole dependents. In October, 1949, petitioner was earning in the neighborhood of $700 per month and agreed to increase the amount payable monthly for the support and maintenance of the children of the former marriage to the sum of $120 per month.
In 1952 and 1953 the earnings of petitioner were greatly decreased due to a financial set back and a change in employment. Throughout 1954 his average earnings were approximately $284 per month and in 1955 his earnings averaged only a fraction above that amount monthly.
Because of the illness of his present wife and children and because of the increase in the cost of support and maintenance of the present wife and children and because of his earnings as compared with expenditures, necessary to support and maintain his present wife and children, petitioner is unable to maintain payments due his ex-wife Edna L. Evans for support and maintenance of the children of the former marriage with the sum of $120 per month nor the sum of $100 per month.
Petitioner is deeply in debt and his great financial obligations are such that he cannot adequately maintain and support his present wife and children and continue to pay his ex-wife Edna L. Evans support and maintenance for the children of the former marriage.
Edna L. Evans has brought action against petitioner in Jackson, Mississippi, and threatens to garnishee his wages and otherwise cripple and impair the earning capacity of petitioner. Furthermore Edna L. Evans is at present earning an amount which with a small substantially reduced support and maintenance by the petitioner will adequately support and maintain the children of the former marriage.
There was a demurrer to the foregoing petition, which, according to the record, was not acted upon by the court.
On July 12, 1955, a petition for a rule nisi was filed by Edna L. Evans in which it is alleged that Maurice F. Evans is in arrears in his payments to Edna L. Evans to the extent of $1,850 and that he has willfully failed to pay this sum as he was ordered to do by the court though he is able to do so. The petitioner prays the court to make an order requiring Maurice Evans to show cause as to why he should not be adjudged guilty of contempt of court for failure to obey the order of the court requiring him to pay the amount provided for by the original decree.
*339 Upon presentation of the verified petition of Edna L. Evans for a rule nisi for failure to comply with the decree rendered May 18, 1944, the court issued a rule nisi to Maurice F. Evans commanding him to appear before the court and show cause if he has any why the petition should not be granted and he be adjudged in contempt of court.
On May 23, 1954, Edna L. Evans filed a petition in the Circuit Court of the Tenth Judicial Circuit of Alabama, wherein the aforesaid divorce decree was rendered, alleging in substance the marriage and divorce to which reference has already been made and the decree for maintenance and support of the children of the former marriage to which reference has also been made, and further alleging that the children reside with the petitioner Edna L. Evans and are persons to whom a duty of support is owed, and that this duty has been imposed by Act No. 879 of the Legislature of 1951, Acts of 1951, p. 1515 as amended by Act No. 824, Acts of 1953, p. 1110, this petition further alleging that Maurice F. Evans has failed, neglected and refused to provide support to petitioner and the aforesaid minor children in accordance with their needs and that such failure, neglect and refusal has continued for a long period of time and since the month of December, 1953, Maurice F. Evans has not contributed to the support of petitioner and the minor children.
The prayer of the petition is that the court will find that respondent owes a duty of support to petitioner and the minor children and that a court of the State of Georgia may obtain jurisdiction of respondent and his property. It is further prayed that the court will cause a certified copy of this petition and an authenticated copy of the aforesaid Acts to be transmitted to the proper district court in Atlanta, Milton County, Georgia.
On March 26, 1954, the Circuit Court of the Tenth Judicial Circuit of Alabama certified that the petition of Edna L. Evans shows that Maurice F. Evans owes a duty of support to Patricia Ann Evans and John Franklin Evans, now in the custody of Edna L. Evans, and further certified that the petition sets forth facts showing that a District Court of Georgia, sitting in Atlanta, in the County of Fulton, Georgia, may obtain jurisdiction of Maurice F. Evans or his property and further that Maurice F. Evans, without just cause or legal excuse, failed to provide support for petitioner and the aforesaid minor children as required by the law and statutes of the State of Alabama, and further that Maurice F. Evans has paid $51.50 for the support of the aforesaid minor children since December 1953.
On November 17, 1954, there was a further order of the Circuit Court of the Tenth Judicial Circuit of Alabama, which decree ordered that the cause be and is hereby transferred to "Disposed of Docket of the Court" without prejudice and that the costs are taxed against respondent for the collection of which "let execution issue."
On July 19, 1955, the present cause was submitted for final decree upon the petition of Maurice F. Evans to modify the final decree of divorce heretofore rendered in the cause and upon the petition for rule nisi of Edna L. Evans and the rule nisi issued as prayed for in the petition. The court in its decree adjudged as follows. (1) That causes No. 57931 and 93982 are hereby consolidated (Cause No. 57931 is the cause in which the original decree of divorce was rendered and in which the petition for modification of the provisions for support and maintenance was filed, and Cause No. 93982 is the petition of Edna L. Evans filed under the aforesaid statutes of the State of Alabama in connection with the failure of Maurice F. Evans to contribute to the maintenance and support of petitioner and the minor children). (2) The court denied the petition of Edna L. Evans for the rule nisi and discharged the respondent. (3) The court found that the arrearage in payments of support and maintenance to the complainant Edna L. Evans amounted to the sum of $580. The court further provided that the foregoing amount shall be paid to Edna L. Evans at the rate of $10 per month, $5 on the first and 15th of each month hereafter until the aforesaid sum of $580 has been liquidated. (4) The court further *340 found that in lieu of the sum for support and maintenance heretofore ordered, the respondent shall pay to the complainant the sum of $25 on the first and 15th of each month thereafter, making a total of $60 each month, payable $30 on the first and fifteenth days of each month, effective for July, 1955. (5) The respondent was ordered to pay the complainant for her solicitor of record the sum of $100 for defending against the petition of Maurice F. Evans. (6) The costs were taxed against the respondent "for which let execution issue."
At the outset we call attention to the fact that while testimony was heard orally before the court on the petition for modification to which we have referred, the testimony is not contained in the present record. The result is that the facts as found by the court will be taken as true. Only such facts and those which are admitted in the pleadings can be considered. Edge v. Bice, Ala., 82 So. 2d 252. For cases considering an analogous situation where the case was tried on the law side of the docket see Chapman v. State, 249 Ala. 30, 29 So. 2d 286, and Central of Georgia Railway Co. v. Hinson, 262 Ala. 223, 78 So. 2d 286.
I. According to the record there was no ruling by the court on the demurrers of the appellant to the petition to modify. There was no error in this regard. This court has held that unless a party secures a ruling on a demurrer, it will be presumed on appeal that the demurrer was withdrawn or abandoned. McNeil v. State, 71 Ala. 71; Alabama National Bank v. Hunt, 125 Ala. 512, 28 So. 488; Newman v. Borden, 239 Ala. 387, 194 So. 836.
II. The court ordered that the petition for rule nisi be denied and discharged the respondent. The record fails to show an answer to the writ by Maurice F. Evans. We have often held that in proceedings involving the custody of children or their support and maintenance, we will not be governed by legal niceties in pleading. Since we do not find in the record any objection to the procedure here taken, we find no reversible error in this regard. Hardy v. Hardy, 250 Ala. 297, 34 So. 2d 212; Brown v. Jenks, 247 Ala. 596, 25 So. 2d 439; Rushing v. Rushing, 258 Ala. 390, 63 So. 2d 560. Furthermore the court had jurisdiction of the subject matter and the parties before it and accordingly the want of pleading may be waived and the party against whom the decree is adverse cannot be later heard to complain that there was no issue arrived upon in the case as such objection was waived by the party's introduction of evidence. Atkins v. Atkins, 253 Ala. 43, 42 So. 2d 650; Manufacturers' Finance Acceptance Corporation v. Autrey, 228 Ala. 149, 153 So. 181; Miller v. Bryant, 25 Ala.App. 564, 151 So. 362.
III. It is argued that the court was in error in consolidating case No. 57931 with case No. 95382. There was no objection in the lower court to this procedure. We find no error in this respect. Courts of equity have the inherent power to consolidate suits and hear them at the same time. This is so because the court has general power to take reasonable action for the transaction of and regulation of its business. Such a matter rests within the sound discretion of the court. Hagan v. Riddle, 209 Ala. 606, 96 So. 863; Ex parte Brown, 58 Ala. 536; § 259, Title 7, Code of 1940. We call attention to the fact as shown by the record, that the proceedings brought by appellant under the reciprocal support act to which we have referred, had been transferred to "the disposed of docket" without prejudice. We can see no injury to the appellant from the action of the court in consolidating the two cases. It seems to us that the court had the right to make this consolidation in the interest of uniformity and in order to clarify the situation as to the disposition of case No. 93982 when it consolidated that case with the case in which the decree of modification was made.
IV. As to the modification of the original decree for maintenance and support, we have before us only the petition for modification and the court's decree *341 thereon. We do not have the evidence on which the court acted in rendering its decree. According to the petition for modification, since the original divorce decree, Maurice F. Evans is living in another state with his present wife. By his present marriage he is the father of two children who together with his wife are solely dependent upon him for their support and maintenance. In addition a third child is expected who will, of course, be dependent upon the father for support. At the time of the original decree of divorce Maurice F. Evans was earning in the neighborhood of $350 per month. He increased the allowance of $100 per month to $120 per month when his earnings reached the amount of $700 per month. Conditions began to get worse in 1952 and so continued in 1953, 1954 and 1955. With loss of his job he was forced to accept another job paying considerably less money in an attempt to support his present family and continue to make payments to his former wife. In 1954 his average earnings were $284 per month and in 1955 only a fraction above that amount. His present wife became ill and he became deeply in debt. We think it is apparent that Maurice Evans simply did not have the money to support his present family and continue the support of his ex-wife and his former children as provided in the original decree. We want to make it clear that the fact that the husband has remarried, thereby increasing his expenses, is not within itself such a change in the condition of the parties as to justify a modification of the original decree for support and maintenance. It is equally true, however, that the fact that a divorced husband has remarried is a circumstance that may be considered along with other circumstances in weighing the equities of the case, where he requests the court to reduce support and maintenance payable to minor children. Stewart v. Stewart, 261 Ala. 374, 74 So. 2d 423; Garlington v. Garlington, 246 Ala. 665, 22 So. 2d 89.
When the entire situation is considered, it seems to us that the changes in circumstances are substantial and the court had the right in its discretion to modify the decree. We indulge the presumption, in the absence of any evidence in the record, that the evidence supported the decree of the court. McPherson v. Hood, 191 Ala. 146, 67 So. 994. We certainly are not able to say that the decree of the court which was based on evidence heard orally before the court was palpably wrong.
There was no effort in the decree of the court to abate amounts already due by Maurice Evans to his former wife Edna L. Evans. The court simply found that the amount in arrears aggregated $580 and proceeded after hearing the modification petition to provide additional time and method of payment for the accrued installments in arrears as the court had a right to do. Armstrong v. Green, 260 Ala. 39, 68 So. 2d 834. The court then proceeded, as it had a right to do, to reduce the amount of future payments in keeping with the financial ability of Maurice Evans.
It is true that Maurice Evans failed to pay a part of the accrued installments provided for in the original decree of divorce. The court, however, found that he was not guilty of contempt as he was unable to pay, as shown by the evidence. There is no doubt that inability to pay is a defense for failure to comply with the decree providing for payment. Ex parte Stephenson, 34 Ala.App. 1, 40 So. 2d 713; Ex parte Gunnels, 25 Ala.App. 577, 151 So. 605; Robertson v. State, 20 Ala.App. 514, 104 So. 561; Adair Bros. Co. v. Gilmore, 106 Ala. 436, 17 So. 544; Webb v. Webb, 140 Ala. 262, 37 So. 96; 12 Am.Jur. pp. 437-439.
We have carefully considered the record before us which, as we said at the outset, contains no evidence and on the record before us find that the decree of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., concurs.
LAWSON and MERRILL, JJ., concur in the result. | December 22, 1955 |
31bb9f77-5071-4cee-977c-baf36ee51601 | McDevitt & Street Co. v. Mosher Steel Co. | 574 So. 2d 794 | N/A | Alabama | Alabama Supreme Court | 574 So. 2d 794 (1991)
McDEVITT & STREET COMPANY
v.
MOSHER STEEL COMPANY.
89-652.
Supreme Court of Alabama.
January 11, 1991.
*795 Larry W. Harper and Philip F. Hutcheson of Porterfield, Harper & Mills, Birmingham, for appellant.
John W. Clark, Jr. and David M. Wilson of Clark & Scott, Birmingham, for appellee.
JONES, Justice.
This Court's opinion of November 21, 1990, is withdrawn, and the following is substituted therefor.
McDevitt & Street Company ("McDevitt"), the third-party plaintiff, appeals from a judgment denying its claim for indemnity against Mosher Steel Company ("Mosher"), the third-party defendant.[1] Because the issue regarding the affirmative defense of the validity and enforceability of the indemnity agreement is resolved adversely to Mosher as a matter of law, we reverse and remand.
Williams Eddins, Jr., the original plaintiff, was employed by Regional Steel Company, a construction subcontractor involved in the construction of the Riverchase Galleria in Birmingham, Alabama; he was injured while working on the Galleria construction site. Eddins sued Jim Wilson & Associates (the project owner), Harbert International, Inc. (the prime contractor for the project), McDevitt (the primary subcontractor), and The Travelers Insurance Company. The trial court granted the summary judgment motions of Jim Wilson & Associates and The Travelers Insurance Company before the trial began.
McDevitt and Harbert filed third-party complaints against Mosher (the structural steel subcontractor) based on an indemnity clause in the contract between McDevitt and Mosher. That indemnity clause states:
The trial court admitted evidence pertaining to the issues whether Eddins was doing "work" that was covered by the contract and, if he was, whether Eddins's accident was due to the sole negligence of McDevitt. At the close of all the evidence, McDevitt filed a motion for a directed verdict on its third-party complaint against Mosher. The trial court denied McDevitt's motion and instructed the jury as follows regarding the third-party complaint:
"Now, as far as the contract between McDevitt & Street Company and Mosher Steel Company, as I say, Mosher Steel Company admits it's a valid contract. But [Mosher says] that the sole cause of this accident to [Eddins] was the fault of McDevitt & Street Company and also Harbert International and it was not [Mosher's] fault. And [Mosher says] that in that indemnity clause, in that contract, it says [Mosher is] not liable; it was the sole fault of McDevitt & Street Company and Harbert. Well, [Mosher says] it as to McDevitt & Street Company *796 and they also say it as to Harbert as far as their respective claims are concerned.
McDevitt excepted to the second interrogatory submitted to the jury, stating that the language used by the trial court was misleading and confusing with respect to the question whether the work being performed by Eddins was covered under the contract. McDevitt argued that the language of the indemnity clause ("caused by, arising out of, resulting from, or occurring in connection with the performance of the Work") should have been substituted for the language used by the trial court ("for the furnishing and erecting of structural steel, bar joist, and metal deck between McDevitt & Street Company and Mosher Steel Company"). Because of our resolution of the directed verdict issue, however, we need not address this "jury instruction" issue.
The jury returned a verdict for Eddins and against McDevitt and awarded Eddins $600,000. With regard to the third-party complaint by McDevitt against Mosher, the jury answered both special interrogatories submitted to it by the trial court in the negative and found in favor of third-party defendant Mosher.
McDevitt filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied the motion and entered a judgment on the verdicts. McDevitt appeals.
McDevitt presents the following issues: (1) Did the trial court err in overruling McDevitt's motion for directed verdict and its motion for a J.N.O.V. with respect to McDevitt's third-party claim against Mosher? and (2) Did the trial court err in overruling McDevitt's motion for a new trial? In light of the evidence presented at trial, we hold that the trial court did err in overruling McDevitt's motions for directed verdict and J.N.O.V.
The standard of review to be applied in determining the correctness of a trial court's ruling on a motion for directed verdict and on a motion for a judgment notwithstanding the verdict has been well defined by this Court.
"Rule 50(e) of the Alabama Rules of Civil Procedure provides that motions for directed verdicts and judgments notwithstanding the verdict shall be decided in accordance with the scintilla evidence rule.[[2]] This court has stated on numerous *797 occasions that in civil cases, a question of fact must go to the jury, if the evidence, or any reasonable inference therefrom, furnishes a mere gleam, glimmer, spark, or a scintilla in support of the theory of the complaint. Furthermore, where a directed verdict is requested, the entire evidence must be viewed in a light favorable to the party opposing the motion. It is only where the facts are such that reasonable men must draw the same conclusion from them that the question is considered as one of law for the court. When a reasonable inference may be drawn, which is adverse to the party [making] the motion, the motion should be [denied]."
Weatherly v. Hunter, 510 So. 2d 151, at 153 (Ala.1987) (quoting from Draughon v. General Fin. Credit Corp., 362 So. 2d 880, 883-84 (Ala.1978)).
In light of this standard, the trial court should grant a motion for directed verdict or a motion for J.N.O.V. only if, from the evidence presented, the jury could reach but a single conclusion, in favor of the movant, or if the undisputed evidence entitled the movant to a judgment as a matter of law.
Essentially, McDevitt's motion for directed verdict (and its subsequent post-judgment motion for J.N.O.V.) raised two points: (1) that it was not the sole negligence of McDevitt that caused Eddins's accident; and (2) that the indemnity agreement was valid and enforceable against Mosher. As to the first point, the jury found that McDevitt was not solely at fault and rendered its verdict accordingly. Thus, the error, if any, in the trial court's denial of McDevitt's directed verdict motion on the third-party claim was rendered moot by the jury's verdict finding the injury not to have been solely the fault of McDevitt.[3]
As to the second point, Mosher defended against this issue with the argument that Eddins was not engaged in "work" as contemplated by the contract and that, therefore, the indemnity agreement was not enforceable against Mosher. This issue was improperly presented to the jury as a question of fact. The evidence presented at trial did not create a jury question as to whether Eddins was engaged in "work" as contemplated in the contract. There is no dispute that Eddins was "taking down" a steel structure at the job site when he fell.
To hold, however, that an employee who is performing a corrective measure on the job site is not engaged in "work" would be unreasonable in light of the job that had been undertaken. Obviously, on a job as extensive as the construction of a commercial building, mistakes will be made that require corrective measures. It is not as if Eddins had left the job site to run a purely personal errand. He was still engaged in work necessary for the completion of the job for which his employer had been hired. There was no deviation from the work being performed and, as a matter of law under the undisputed evidence, the trial court should have determined that Eddins was engaged in "work" as contemplated by the indemnity agreement.
We hold that the trial court should have held, as a matter of law, that the indemnity agreement was enforceable by McDevitt against Mosher. Therefore, the trial court erred in denying McDevitt's motion for directed verdict on the issue of whether Eddins was performing "work" as contemplated by the contract at the time of his accident; and, further, the trial court erred *798 in denying McDevitt's post-judgment motion for J.N.O.V.
For the foregoing reasons, the final judgment entered by the trial court is reversed, and the cause is remanded for entry of a judgment consistent with this opinion.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] The remaining parties to this lawsuit have settled their claims or have been dismissed.
[2] We note that the original complaint in this case was filed before the effective date of § 12-21-12, which substituted the "substantial evidence" rule for the "scintilla of evidence" rule, and that the third-party complaint was filed after the statute's effective date. The facts in support of Mosher Steel's defense of the third-party complaint are not sufficient to defeat McDevitt's directed verdict motion under either standard of proof; thus, whether the "scintilla of evidence" rule or the "substantial evidence" rule is applicable is of no material consequence.
[3] The law with respect to the enforceability of indemnity contracts, addressed in Industrial Tile, Inc. v. Stewart, 388 So. 2d 171 (Ala.1980), cert. denied, 449 U.S. 1081, 101 S. Ct. 864, 66 L. Ed. 2d 805 (1981), is not raised by this appeal. The parties agree that, under the instant contract, where the accident in question arises out of work covered by the construction contract, the indemnitee is entitled to recover from the indemnitor, unless the indemnitee is solely responsible for the injury incurred. | January 11, 1991 |
ffa28b24-681d-46ca-820a-328cb1f6e779 | Nash v. Cosby | 574 So. 2d 700 | N/A | Alabama | Alabama Supreme Court | 574 So. 2d 700 (1990)
Deborah NASH
v.
Dr. Joseph COSBY and Dr. Wilheim Tietke.
88-1068.
Supreme Court of Alabama.
July 20, 1990.
As Modified on Denial of Rehearing January 11, 1991.
Robert H. Ford of Brinkley, Ford, Chesnut & Aldridge, Huntsville, for appellant.
James E. Davis, Jr. and William W. Sanderson, Jr. of Lanier, Ford, Shaver & Payne, Huntsville, for appellee Dr. Joseph Cosby.
Patrick M. Lamar of Lanier, Ford, Shaver & Payne, Huntsville, for appellee Wilheim Tietke, M.D.
HORNSBY, Chief Justice.
Plaintiff, Deborah Nash, appeals from a jury verdict in favor of defendants, Dr. Joseph Cosby and Dr. Wilheim Tietke, in a medical malpractice action. We reverse and remand for further proceedings consistent with this opinion. The record reveals that Nash has suffered from medical problems associated with her colon and rectum and that she began receiving treatment for those problems as early as 1963. On April 22, 1986, Nash consulted Cosby, who diagnosed her as having a severe urinary tract infection. Cosby had knowledge of her prior medical history and admitted her to Huntsville Hospital. While Nash was hospitalized for the urinary tract infection, Cosby called in Tietke for a consultation regarding her colon and rectal problems. Tietke made several recommendations, including a small bowel follow-through and an upper G.I. series to rule out Crohn's disease, both of which Cosby *701 ordered. The radiology department at the hospital completed the small bowel follow-through and upper G.I. series, using a formula of barium sulfate on April 24, 1986. Dr. S.H. Falwell, a radiologist, determined that there were no contraindications to the upper G.I. test and that the test was negative for Crohn's disease. Nash was discharged by Cosby and was instructed to take Metamucil, a laxative, to assist her with bowel movements.
In June 1986, Nash went to Dr. LeWayne Lambert with a fecal impaction. He admitted her to Crestwood Hospital in Huntsville, where the impaction was removed nonsurgically. The fecal material in her colon contained 10%-20% of barium. In March 1987, Dr. Mark Carpenter performed a subtotal colectomy on Nash, removing approximately eight inches of her colon.
On May 19, 1987, Nash filed a complaint, alleging medical malpractice against Cosby relating to her oral ingestion of barium for the upper G.I. series and his failure to remove the barium, which she states was the reason for the subtotal colectomy. On April 22, 1988, Nash amended her complaint to state similar causes of action against Tietke, Huntsville Hospital, Marsha Daniell (a 4th-year medical student working at Huntsville Hospital), and Falwell. Huntsville Hospital, Daniell, and Falwell were dismissed from the lawsuit prior to trial. The case was tried before a jury, which returned a verdict in favor of Cosby and Tietke on February 1, 1989. This appeal is taken from the trial court's judgment based on that verdict.
Prior to trial, Nash filed a motion in limine to preclude the defendants from eliciting testimony concerning information contained in her medical records about a drug screening test and the results thereof. The trial court, after hearing argument by counsel, admonished the defendants to refrain from discussing the drug screening test until a voir dire hearing by the court could be held to determine its admissibility. The trial court deferred ruling on Nash's motion in limine until evidence was presented by the parties.
Nash argues that it was an abuse of discretion for the trial court to defer its ruling on her motion in limine and, specifically, argues that the trial court's deferring its ruling prejudiced her because, as a result of it, she was forced to disclose the drug screening test evidence during jury selection and direct examination. We disagree with Nash's argument.
It is well recognized that only adverse rulings by the trial court are reviewable on appeal. See Lewis v. Providence Hospital, 483 So. 2d 398 (Ala.1986). Because the trial court deferred its ruling, there is no adverse ruling for review. Although Nash cites C. Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala.L.Rev. 1, 15 (1981), as supporting her position, we find that a close review of the article supports the trial court's exercise of discretion:
We find no abuse of discretion and therefore no reversible error in the trial court's deferring its ruling on Nash's motion in limine until the matter arose at trial.
Tietke called as a fact witness Dr. R.G. Danley, Jr., one of Nash's prior treating *702 physicians. Danley was not named by any of the parties as an expert witness pursuant to the pretrial order entered June 30, 1988. During Nash's cross-examination of Danley, she attempted to elicit expert testimony, and Tietke objected on the ground that Nash had not named Danley as an expert witness pursuant to the pretrial order. The trial court sustained Tietke's objection and precluded Danley from testifying as an expert witness.
In Super Valu Stores, Inc. v. Peterson, 506 So. 2d 317, 338 (Ala.1987), this Court stated:
We find no abuse of discretion by the trial court in refusing to allow a witness not previously named as an expert to give expert opinions. See Rules 16 and 26(b)(4), A.R.Civ.P.
The trial court instructed the jury in its oral charge:
Nash objected to the trial court's oral charge, arguing that it was incorrect and incomplete. Specifically, Nash claimed that the jury charge did not include her claims against Cosby and Tietke for their failure to remove the barium and their failure to warn her concerning the need to expel the barium. The record shows that this objection was made after the jury retired to begin its deliberations; thus, the objection was untimely. See Rule 51, A.R. Civ.P. See, also, Hancock v. City of Montgomery, 428 So. 2d 29 (Ala.1983).
Nash claims that the trial court erred by disallowing certain hypothetical questions posed to her expert witness, Dr. Neil J. Farber. We agree.
For the sake of clarity, we quote the hypothetical questions Nash asked of Dr. Farber that she claims were improperly refused by the trial court:
"Q passed. Dr. Lambert noted that on July 4, 1986, he might, `have to consider surgical removal of barium impaction since it has been there three (3) months.' On 7-5-86, Dr. Lambert noted, `Doubt that amount of barium and degree of impaction will resolve short of surgical intervention. Apparently this bolus is evident on X-ray as early as April the 24th, 1986.' By 7-14-86, there had been, `Almost total removal of the barium containing fecal impaction.' Therefore, the barium impaction was inside Deborah from 4-24-86 to 7-14-86, or approximately 11 weeks. Deborah suffered from cervical and uterine prolapse *703 as a result of the barium fecal impaction. She also suffered from cystocele. On 7-16-86, a colonoscopic procedure was performed which revealed, `And the rectosigmoid multiple deep ulcerations were noted with exudative bases.' Further assume that Deborah was discharged from Crestwood Hospital on 7-21-86 after spending 25 days in the hospital. The discharge summary of Dr. Lambert listed discharge diagnosis as: `# 1mechanical bowel obstruction, # 2barium and fecal impaction, # 3-chronic constipation, # 4mild dehydration, # 5uterine prolapse, # 6cystocele, # 7history of recurrent urinary tract infections, # 8history of recurrent perirectal abscess.' Dr. Lambert stated that, `Deborah developed the uterine prolapse and the cystocele from the mass of barium and fecal impaction.' It was felt at that time that she would probably need a colectomy in the near future from the discharge notes. Now, based upon those additional facts, Dr. Lambert, do you have an opinion within a reasonable degree of certainty as to cause of the mechanical bowel obstruction and the prolapse and cystocele?
The record shows that the medical records upon which the hypothetical question was based had been previously admitted into evidence. We conclude that Dr. Farber should have been allowed to give his opinion as to causation, even though that opinion may have been based, at least in part, on the opinions, diagnoses, and conclusions of other doctors. In the usual case, a medical expert will refer to medical records in preparing to testify. Thus, it is unavoidable that an expert's conclusion in such a case will be influenced to some degree by the opinions and diagnoses found in those records.
Alabama has long followed the rule disallowing expert testimony that is based in part on the conclusions or opinions of others. See, e.g., Chinevere v. Cullman County, 503 So. 2d 841 (Ala.1987); Salotti v. Seaboard Coast Line R.R., 293 Ala. 1, 299 So. 2d 695 (1974). However, we choose *704 today to modify that rule of law to reflect a more enlightened viewpoint.
The rule disallowing expert opinion testimony that is based in part on the opinion of other persons has a long history. However, the recent trend has been toward allowing expert testimony that is based upon medical or hospital or psychological records, even in some cases where those records are not in evidence. See 31A Am. Jur.2d Expert and Opinion Evidence, §§ 85, 186 (1989). This trend recognizes that because of a growing tendency toward division of services in the medical field, any person who undertakes to make a diagnosis must necessarily rely on the opinions and tests of other persons. Records that are sufficient to support a diagnosis in a hospital should be sufficient to form the basis for expert testimony in the courtroom. Id.
"There is no mysterious logical fatality in basing `one expert opinion upon another'; it is done every day in business and in applied science." 2 Wigmore, Evidence § 682 (J. Chadbourn rev. 1979). See Buckler v. Commonwealth, 541 S.W.2d 935 (Ky. 1976); Schmidt v. Gibbons, 3 Ariz.App. 147, 412 P.2d 716, vacated on other grounds, 101 Ariz. 222, 418 P.2d 378 (1966); Missouri Pac. R.R. v. Sorrells, 201 Ark. 748, 146 S.W.2d 704 (1941); Holstein v. Quality Excelsior Coal Co., 230 Ark. 758, 324 S.W.2d 529 (1959); Doherty v. Dean, 337 S.W.2d 153 (Tex.Civ.App.1960); Williams v. Dawidowicz, 209 Md. 77, 120 A.2d 399 (1956); Miller v. American Car & Foundry Co., 145 S.W.2d 472 (Mo.App. 1940); Travelers Ins. Co. v. Childs, 272 F.2d 855 (2d Cir.1959); United States v. Williams, 447 F.2d 1285 (5th Cir.1971). See also Pierce, 5 Am.J. Trial Adv. §§ 277, 281 (1981).
In United States v. Partin, 493 F.2d 750 (5th Cir.1974), the court specifically allowed expert testimony that was based upon medical records that contained opinions and diagnoses of other persons. While Partin was a criminal case, we think its rationale is applicable to the expert-opinion-testimony scenario presented in this case. In Partin, the court ruled that the medical records themselves were not admissible unless the preparing doctor was available for cross-examination. However, the court ruled that the defendant's expert witness was entitled to rely on those records in forming his opinion, despite the fact that those records contained the opinions of other experts and could not be admitted directly into evidence. With his testimony based upon hospital records, the expert was allowed to state that the subject of those records suffered from schizophrenia and would have difficulty seeing and hearing. Partin, 493 F.2d at 762-64.
In Alabama medical records are admissible evidence, provided that the proper predicate has been laid. Carroll v. State, 370 So. 2d 749 (Ala.Cr.App.1979). See Rule 44, A.R.Civ.P. In this case Nash's medical records had been properly admitted into evidence and Dr. Farber was asked hypothetical questions that assumed facts that were stated in those records. Dr. Farber should have been allowed to testify in response to those hypothetical questions. We cannot state the proposition more succinctly than did the Supreme Court of Indiana:
Smith v. State, 259 Ind. 187, 285 N.E.2d 275 (1972).
Because Dr. Farber based his testimony on the plaintiff's medical records and was subject to cross-examination regarding the substance of his opinion, we believe that he should have been allowed to give the jury the benefit of his opinion under the rules of law expressed above.
*705 This error becomes even more evident in light of the fact that the defendants were allowed to elicit opinion testimony from their expert witness in a manner that was not allowed to the plaintiff. The defendants' expert, Dr. Dowd, had no firsthand knowledge of Deborah Nash's condition, but based his opinion strictly upon his review of the medical records generated by Nash's treatment. The plaintiff's objections to this testimony were overruled by the trial court.
In this case, Dr. Farber was asked hypothetical questions that assumed certain facts drawn from Deborah Nash's medical records, which had been properly admitted into evidence. We hold that those hypothetical questions were not objectionable merely because they assumed facts based on another doctor's observation or diagnosis. The rule disallowing expert testimony based on opinions or conclusions of others simply ignores the reality of current medical practice. It cannot be reasonably argued that doctors and other medical practitioners do not rely on the observations and conclusions of other medical professionals in making diagnoses. Thus, it is appropriate that those same conclusions and observations should be taken into account by any medical expert testifying as to an applicable standard of care or as to a breach thereof. We believe that use of such conclusions and observations would only improve the reliability of expert testimony on medical issues. Smith v. State, supra.
Because Nash's expert should have been allowed to give his response to the hypothetical questions posed to him, the judgment of the trial court is reversed and the cause remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
JONES, ALMON, SHORES, ADAMS and KENNEDY, JJ., concur.
MADDOX and STEAGALL, JJ., dissent.
STEAGALL, Justice (dissenting).
Deborah Nash's hypothetical questions to her expert witness, Dr. Neil J. Farber, were based on records containing the opinion of another doctor, Dr. LeWayne Lambert. Alabama case law is clear that testimony based in part upon the conclusions or opinions of others is not allowed. See Chinevere v. Cullman County, 503 So. 2d 841 (Ala.1987); Salotti v. Seaboard Coast Line R.R., 293 Ala. 1, 299 So. 2d 695 (1974); and Armstead v. Smith, 434 So. 2d 740 (Ala. 1983). Both United States v. Partin, 493 F.2d 750 (5th Cir.1974), appeal after remand, 552 F.2d 621 (5th Cir.1977), cert. denied, 434 U.S. 903, 98 S. Ct. 298, 54 L. Ed. 2d 189 (1977), and Smith v. Smith, 259 Ind. 187, 285 N.E.2d 275 (1972), cert. denied, 409 U.S. 1129, 93 S. Ct. 951, 35 L. Ed. 2d 261 (1973), cited by the majority, are criminal cases dealing specifically with the admission of expert psychiatric testimony based upon medical records containing expert opinions as to the sanity of another and, in my opinion, are limited to that context.
In regard to the testimony of the defendants' expert, Dr. Alan G. Dowd, Nash's objection was premised on the fact that Dowd had never examined the plaintiff. However, this Court held in Ravi v. Williams, 536 So. 2d 1374 (Ala.1988), that a physician without personal knowledge of the facts may nonetheless testify if that testimony is based upon either medical records or facts that are in evidence. The record discloses that Dowd's testimony was not based upon another expert's opinion, as the majority asserts, but was, rather, based upon the complete hospital record from *706 Huntsville Hospital and Dr. Joseph Cosby's office records, all of which were in evidence. Dowd's firsthand knowledge of Nash's condition is not required, under Ravi v. Williams, supra.
I, therefore, respectfully dissent.
MADDOX, J., concurs. | January 11, 1991 |
d6dad1f0-f50e-4c03-bc97-ad168cbc0cb2 | Armstrong v. Georgia Marble Co. | 575 So. 2d 1051 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1051 (1991)
David ARMSTRONG
v.
GEORGIA MARBLE COMPANY.
89-1097.
Supreme Court of Alabama.
January 11, 1991.
*1052 Allen G. Woodard and P. Russell Tarver of Cherry, Givens, Tarver, Aldridge, Peters, Lockett & Diaz, Dothan, for appellant.
B. Clark Carpenter of Wooten, Thornton, Carpenter, O'Brien & Lazenby, Talladega, for appellee.
KENNEDY, Justice.
This is an appeal of a summary judgment entered in favor of the defendant. We affirm.
The issues are: (1) what duty did the defendant, Georgia Marble Company, owe the plaintiff? and (2) was there evidence of a breach of that duty?
The plaintiff, David Armstrong, was an employee of Turner Painting Company, which had entered into a contract with Georgia Marble Company to sandblast and paint buildings owned by Georgia Marble; those buildings were located in Sylacauga, Alabama.
On July 10, 1986, Armstrong arrived at one of the buildings. He was instructed to help other employees wash the side of the building to prepare it for sandblasting and painting. Turner Painting Company was working on two roofs, a higher roof and a lower roof; the lower roof had skylights. Armstrong was helping other employees unload equipment onto the lower roof. Ken Turner, owner and vice-president of Turner Painting Company, instructed Armstrong and another employee to go to the higher roof and drop some ropes down to the lower roof. Sometime between the time Armstrong unloaded the equipment and the time he went to drop ropes from the higher roof, Turner told Armstrong that there were skylights on the lower roof of the building. Armstrong was not told where on the lower roof the skylights were located. There was dispute in the testimony as to whether these skylights were easily seen. Armstrong continued to work on the lower roof. As Armstrong began to leave the lower roof, he fell through a skylight and was injured.
Armstrong sued Georgia Marble for damages for the personal injuries he suffered in the fall. The court entered a summary judgment for Georgia Marble and Armstrong appealed.
A summary judgment is proper if 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. In reviewing a summary judgment, this Court must view the evidence in the light most favorable to the nonmoving party. Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So. 2d 818 (1975).
The duty owed by Georgia Marble Company to Armstrong is determined by whether the relationship between Georgia Marble Company and Armstrong was that of an owner of a premises and a business invitee or that of a master and a servant. Here, the parties agree that Georgia Marble Company did not retain the right to *1053 control the details of the work to be done by Turner Painting Company and its employees. Because Georgia Marble Company did not retain any control over the work to be done, the relationship between Georgia Marble Company and Armstrong was not that of a master and a servant. Their relationship was that of an owner of premises and a business invitee.
The owner of premises owes a duty to business invitees to use reasonable care and diligence to keep the premises in a safe condition, or, if the premises are in a dangerous condition, to give sufficient warning so that, by the use of ordinary care, the danger can be avoided. Knight v. Seale, 530 So. 2d 821 (Ala.1988) (citations omitted). In the instant case, skylights located on a roof where work was being done could be considered a dangerous condition. However, the owner of premises need not warn of dangers or defects that the business invitee knows of or that should be observed by the invitee in the exercise of reasonable care. Beck v. Olin Co., 437 So. 2d 1236 (Ala.1983).
The record reflects, without dispute, that Butch Pair, an employee of Georgia Marble Company, told Ken Turner, co-owner and vice-president of Turner Painting Company, and the supervisor on the job, about the skylights. Thus, Georgia Marble Company fulfilled any duty it had when it warned Ken Turner of the existence of the skylights.
In Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 189 So. 2d 474 (1966), this Court held that any duty on the part of the defendant to warn of dangers in the workplace would ordinarily be discharged by giving notice of the dangers to all supervisory personnel of the plaintiff. In that case, the plaintiff's employer had contracted with the defendant to repair a boiler. The plaintiff's employer knew of the defective switch on the boiler but failed to warn the plaintiff. This Court held that the defendant could not be held liable to the plaintiff because it had discharged its duty by warning the plaintiff's employer of the danger.
Once a third party discharges its duty by warning the employer, the duty of warning each of the employer's individual employees falls to the employer. "[T]he owner or occupier of particular property has a duty to warn the employees of an independent contractor who has undertaken to do work on the property, of dangers that are hidden on or inhere in that property, and ... this duty is discharged if those in charge of the work for the independent contractor are given warning or have knowledge of the danger." Gulf Oil Corp. v. Bivins, 276 F.2d 753, 758 (5th Cir.1960) cert. denied, 364 U.S. 835, 81 S. Ct. 70, 5 L. Ed. 2d 61 (1960); see, also, Cook v. Branick Manufacturing, Inc., 736 F.2d 1442 (11th Cir.1984).
Georgia Marble, through the undisputed evidence that it gave notice to the plaintiff's employer, made a prima facie showing that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law, Rule 56(c), A.R.Civ.P. The plaintiff did not rebut that showing. Thus, the trial court properly entered the summary judgment for Georgia Marble.
We disagree with the trial court's conclusion that Armstrong was contributorily negligent as a matter of law. However, because the summary judgment was properly entered because of Georgia Marble's undisputed discharge of its duty, we need not discuss the contributory negligence issue here.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur. | January 11, 1991 |
79f0e51a-ae6a-4ce4-85b9-c9440baca532 | Harrington v. Johnson-Rast & Hays Co. | 577 So. 2d 437 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 437 (1991)
Janet Lee HARRINGTON
v.
JOHNSON-RAST & HAYS COMPANY, INC.
89-1734.
Supreme Court of Alabama.
February 1, 1991.
Rehearing Denied March 15, 1991.
*438 Joseph W. Adams, Birmingham, for appellant.
W. Lewis Garrison, Jr. of Corley, Moncus & Ward, Birmingham, for appellee.
SHORES, Justice.
This is an appeal from a summary judgment entered in favor of the defendant, Johnson-Rast & Hays Company, Inc., a real estate sales agency. We affirm.
The plaintiff, Janet Lee Harrington, made a written offer to buy a house in Jefferson County, Alabama. An agent for Johnson-Rast & Hays prepared a statement showing the approximate closing costs, as is required by § 34-27-36, Ala. Code 1975. This statement reflected a down payment of $3,925 and closing costs of $5,853. Ms. Harrington then executed a real estate sales contract.
The plaintiff contacted a mortgage company, First General Lending Corporation, to arrange financing. First General prepared an estimate of "settlement charges" that she would incur in purchasing the property. This statement reflected a down payment of $4,000, closing costs of $5,050 and two mortgage payments of $1,260 each. This estimate exceeded the $8,000 the plaintiff possessed to purchase the house. She stopped payment on the $1,000 earnest money check tendered with the contract and ceased the loan qualification process. Subsequently, the sellers sued her on the sales contract and received a judgment of $500 against her.
Ms. Harrington sued Johnson-Rast & Hays on July 2, 1990. In her complaint she claimed that the defendant's agent had fraudulently induced her to sign the contract by misstating the amount of the closing costs.
The defendant filed a motion for summary judgment, which was granted by the trial court. In granting that motion, the trial court stated as follows:
(C.R. 29.) The plaintiff appeals.
Section 6-5-101, Code of Alabama 1975, provides as follows:
Thus, it has been held that for a plaintiff to recover in a fraud action, there must be proof (1) of a false representation; (2) that the false representation concerned a material existing fact; (3) that the plaintiff relied upon the false representation; and (4) that the plaintiff was damaged as a proximate result of the reliance. Hammond v. City of Gadsden, 493 So. 2d 1374, 1377 (Ala.1986), citing International Resorts, Inc. v. Lambert, 350 So. 2d 391 (Ala.1977).
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 summary judgment was properly granted, the trial court must view the motion in a light most favorable to the non-movant. Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981)." Turner v. Systems Fuel, Inc., 475 So. 2d 539, 541 (Ala.1985).
Here, the trial judge was correct in his holding that there could have been no justifiable reliance by the plaintiff, as a matter of law, because the statement she signed indicated that the amount of the closing costs were estimates only, subject to market and other changes. The judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | February 1, 1991 |
908aab47-9f71-41e3-a165-85766345049c | Tidball v. Orkin Exterminating Co. | 583 So. 2d 239 | N/A | Alabama | Alabama Supreme Court | 583 So. 2d 239 (1991)
John D. TIDBALL, et al.
v.
ORKIN EXTERMINATING COMPANY, INC.
89-1462.
Supreme Court of Alabama.
April 26, 1991.
Rehearing Denied June 28, 1991.
W. Mark Anderson III and Sandra R. Segal of Anderson & Nabors, Montgomery, for appellants.
Richard P. Decker and Jay Michael Barber of Decker & Hallman, Atlanta, Ga., for appellee.
*240 PER CURIAM.
John D. Tidball and his wife, Velma Jean, along with their son, John Paul, sued Orkin Exterminating Company, alleging that when they contracted with Orkin to treat their home for termites, Orkin told the Tidballs, in response to their specific inquiry, that it would not use a particular chemical, chlordane. The Tidballs further alleged, however, that chlordane was indeed used, and that, as a result, each of them suffered various physical ailments. The Tidballs, in their complaint, asserted breach of contract, fraud, and negligence claims against Orkin. Following a jury trial, the court entered a judgment for Orkin and against the Tidballs, in accordance with the verdicts returned by the jury. The Tidballs appeal.
The only issue raised in this appeal is whether the trial court erred in excluding from the jury certain testimony by one of the Tidballs' witnesses, Dr. Melvin D. Reuber. The trial court's ruling prohibited Dr. Reuber from giving his diagnosis of the Tidballs' ailments, which was based upon the Tidballs' symptoms as set out in their medical records and their depositions.
The record in the present case reflects that Dr. Reuber, a board-certified pathologist and a specialist in toxicology, has previously researched the effects of certain chemicals, such as chlordane, upon humans. The trial court allowed Dr. Reuber to testify, in a general nature, about symptoms that may arise from exposure to chlordane. However, the court refused to allow Dr. Reuber to give a diagnosis of the Tidballs based solely upon his review of their medical records or to otherwise give opinion testimony linking the symptoms allegedly suffered by the Tidballs to their exposure to chlordane. Dr. Reuber, by his own admission, never treated any member of the Tidball family as a physician and had never met them prior to coming into the courtroom on the day that he was to testify.
The trial court sustained objections to Dr. Reuber's testimony based on Orkin's citation of Perry v. Seaboard Coast Line R.R., 527 So. 2d 696 (Ala.1988), and Southern Ry. Co. v. Roberts, 380 So. 2d 774 (Ala. 1979). Perry, citing Roberts, stated a supposed general rule that "a medical opinion based solely upon the history and subjective symptoms related to the doctor solely for the purpose of enabling him to testify at trial is inadmissible." 527 So. 2d at 697 (emphasis in original). For the rule just quoted, Roberts cited a United States Sixth Circuit Court of Appeals opinion and added, "See Hagler v. Gilliland, 292 Ala. 262, 292 So. 2d 647 (1974)."
Hagler allowed the testimony by a manager of a local Alabama State Employment Service of his opinion, based on a history given him by the plaintiff and on his examination of her medical records, as to her permanent loss of employability. Obviously, the plaintiff did not consult the employment service manager for "treatment," so Hagler does not support the general rule set out in Roberts and Perry. Therefore, Perry and Roberts are overruled to the extent that they erroneously state a rule of inadmissibility of a medical opinion based solely upon the history and subjective symptoms related to a doctor solely for the purpose of enabling him to testify at trial.
In their brief, the Tidballs cite to us two of our recent decisions that we find correctly state the law relating to the issue presented in this case. In Seaboard System R.R. v. Keen, 514 So. 2d 1018 (Ala. 1987), the defendant appealed from the trial court's admission of a doctor's deposition into evidence, asserting that the doctor's testimony was inadmissible hearsay. The plaintiff had not seen the testifying doctor for treatment, but only to prepare him for trial. Seaboard argued that, under those circumstances, the degree of reliability of the plaintiff's statements to the doctor was not as high as it would have been if he had been seeking treatment. In affirming the judgment of the trial court, this Court held that such questions go to the weight of the testimony rather than its admissibility. Furthermore, in Ravi v. Williams, 536 So. 2d 1374 (Ala.1988), this Court held that a physician can state an opinion based on facts in evidence, so long as proper hypothetical *241 questions are propounded to the witness.
The admission of Dr. Reuber's testimony is supported not only by this Court's opinions in Keen and Ravi, but also by State Realty Co. v. Ligon, 218 Ala. 541, 119 So. 672 (1929), which is cited in both Hagler and Keen. There, Justice Bouldin, writing for the Court, stated:
Ligon, 218 Ala. at 543-44, 119 So. at 674 (emphasis added). Thus, the rule stated in Ligon was that the opinion of a medical expert should be admitted unless based on "facts" that were undisputedly false, and that any lesser cloud on the facts hypothesized, such as the plaintiff's motive for untruthfulness in consulting the expert solely for his testimony, would go to "the probative force of the opinion," not to its admissibility. This is a sounder and better established rule than that stated in Roberts and Perry.
The questions propounded to Dr. Reuber related to his opinion based on his examination of the Tidballs' medical records, their deposition testimony, and documents concerning the examination of the house for chlordane. There is no indication that any of the facts on which Dr. Reuber based his opinion were not in evidence; no objection was made on that basis. Therefore, we find that the court erred in sustaining the objections to Dr. Reuber's testimony, and we overrule Roberts and Perry to the extent they are inconsistent with Ravi, Keen, Hagler, and Ligon.
The judgment of the trial court is due to be reversed and the cause remanded for further proceedings consistent with the opinion of this Court.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, HOUSTON, KENNEDY and INGRAM, JJ., concur. | April 26, 1991 |
a7b37a7c-6bca-4b37-bfde-8c40df462c78 | Curtis v. Faulkner University | 575 So. 2d 1064 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1064 (1991)
William CURTIS, et al.
v.
FAULKNER UNIVERSITY.
FAULKNER UNIVERSITY
v.
William CURTIS, et al.
89-233, 89-249.
Supreme Court of Alabama.
February 1, 1991.
*1065 Ralph Loveless of Loveless & Banks, Mobile, for appellants/cross-appellees.
Matthew C. McDonald and Michael Gillion of Miller, Hamilton, Snider & Odom, Mobile, for appellee/cross-appellant.
PER CURIAM.
The plaintiffs appeal from a judgment granting defendant Faulkner University ("Faulkner") a new trial following the return of jury verdicts in the plaintiffs' favor. The plaintiffs are former students of Faulkner. Faulkner cross-appeals, challenging the trial court's denial of its motions for directed verdict and j.n.o.v.
Although it denied Faulkner's motion for j.n.o.v., the court granted its subsequent motion for a new trial and listed five reasons for doing so: (1) that the verdicts failed to do justice between the parties; (2) that the verdicts were so varying that it was apparent that they were the result of confusion, and were inconsistent with the jury instructions given; (3) that the verdicts were contrary to the law and the evidence; (4) that the verdicts were contrary to the great weight and preponderance of the evidence; and (5) that the verdicts were excessive so as to demonstrate bias, passion, prejudice, corruption, or other improper motive.
Because a reversal of the court's denial of Faulkner's motions for directed verdict and j.n.o.v. would render the students' appeal moot, we will address the cross-appeal first. Motions for directed verdict and j.n.o.v. test the sufficiency of the evidence, Casey v. Jones, 410 So. 2d 5 (Ala.1981), and should not be granted if, when viewed in the light most favorable to the non-movant, there exists a conflict in the evidence. Honeywell, Inc. v. Bel Air Corp., 518 So. 2d 100, 101 (Ala. 1987); Rule 50, Ala.R.Civ.P. Our review reveals a conflict in the evidence regarding the students' allegations. Therefore, the trial court's denial of Faulkner's motions was proper.
The students contend that the proper standard for reviewing all orders granting motions for new trial is set forth in Jawad v. Granade, 497 So. 2d 471 (Ala. 1986):
497 So. 2d at 477 (emphasis added). We do not agree with the students' contention. The standard announced in the Jawad opinion is limited to the review of orders granting a motion for new trial when "the sole ground" for granting the motion was that the verdict was against the great weight or preponderance of the evidence. Id.
In cases such as this one, where the court grants a motion for new trial for grounds other than, or in addition to, a finding that the verdict is against the great weight or preponderance of the evidence, our review is limited:
Kane v. Edward J. Woerner & Sons, Inc., 543 So. 2d 693, 694 (Ala.1989) (citation omitted). See also, Land & Assoc., Inc. v. Simmons, 562 So. 2d 140, 148 (Ala.1989).
A review of the record reveals a wide disparity between the amount of damages awarded to each plaintiff and a significant variance between the expenses incurred by each student and the amount of damages awarded. In addition, a review of the evidence does not indicate that the trial judge plainly and palpably erred by granting a new trial.
The judgment of the trial court is affirmed.
89-233AFFIRMED.
89-249AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur. | February 1, 1991 |
5ba56314-3338-4200-9811-51a7b6b98853 | Merritt v. Cosby | 578 So. 2d 1242 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1242 (1991)
Joanne Bullard MERRITT, as Administratrix of the Estate of Bennett Franklin Bullard, Deceased
v.
Willie COSBY.
89-1459.
Supreme Court of Alabama.
February 15, 1991.
Rehearing Denied April 5, 1991.
*1243 Timothy L. Dillard and Steven K. Goozee of Dillard and Ferguson, Birmingham, for appellant.
De Martenson and Prisca DeLeonardo of Huie, Fernambucq & Stewart, Birmingham, for appellee.
SHORES, Justice.
The plaintiff, Joanne Bullard Merritt (as administratrix of the estate of her deceased father, Bennett Franklin Bullard), appeals from a summary judgment in favor of the defendant, Willie Cosby, a co-worker of Bullard's. Merritt brought a wrongful death action pursuant to Ala.Code (1975), § 25-5-11 (part of the Alabama Workmen's Compensation Act). We affirm.
On July 23, 1987, Bullard was an employee of SONAT, Inc., and on that day, while working for SONAT, Bullard was involved in an accident that led to his death. Bullard was standing behind a tractor equipped with a Bush Hog attachment (a large mower) when a co-employee of Bullard's, Jerry McCollum, started the tractor's engine. The tractor began to roll backwards and McCollum attempted to use the brakes and stop the tractor, but the tractor could not be stopped in time to prevent the blades of the mower from striking Bullard. Bullard died as a result of the injuries received from the blades.
On June 16, 1988, Merritt filed a complaint in Jefferson County Circuit Court against Ford Motor Company, Bush Hog, Inc. (a division of Allied Products Corporation, Inc.), and 54 fictitiously named defendants, advancing various theories for the June 23, 1987, death of Bullard. The case was removed to the United States District Court for the Northern District of Alabama on February 17, 1989, but was remanded to the Jefferson County Circuit Court when Melson Tractor Company, an Alabama corporation, was added as a defendant. The complaint was transferred from Jefferson County to the Russell County Circuit Court on August 10, 1989, and on October 20, 1989, defendant Cosby was substituted for fictitiously named parties 46 through 51 as "those persons, firms, or entities who willfully or intentionally caused or contributed to the death of the plaintiff's decedent."[1]
Cosby filed a motion for summary judgment and the trial court granted it on May 10, 1990. The trial court made its judgment final pursuant to Rule 54(b), Ala.R. Civ.P., on June 14, 1990, and this appeal ensued.
Merritt contends that her substitution of Cosby after the statutory period of limitations had run complies with the requirements of Rules 9(h) and 15(c), and that, therefore, the substitution relates back to the time of the filing of the complaint. Merritt argues that she stated a cause of action against a fictitiously named *1244 defendant in the complaint and that she was ignorant of Cosby's identity because, she said, at the time the complaint was filed, her knowledge was insufficient to identify Cosby as someone who should have been a party to the suit. Cosby contends that for 20 years prior to the date of the accident both Bullard and Merritt knew his identity, and, more importantly, knew his position with SONAT as Bullard's supervisor. Therefore, Cosby says, on the date of Bullard's death, Merritt possessed sufficient knowledge of a potential cause of action against Cosby. We disagree.
The case now before us is quite similar to Alexander v. Scott, 529 So. 2d 951 (Ala. 1988). In Alexander, the plaintiff, seeking damages for personal injuries sustained while on the job, filed a complaint against three individuals, including her immediate supervisor; the complaint was also against a number of fictitiously named defendants. After the statutory period of limitations for negligence actions had run, the plaintiff amended her complaint, substituting two individuals for fictitiously named defendants "A," "B," "C," and "E," although at the time she filed her complaint she had known the names of the added individuals and their positions of authority with the common employer, Dexter Lock, Inc. It was not until the plaintiff began taking depositions that she became aware of certain facts that made it necessary to substitute individuals for the fictitiously named defendants. (See also, Dannelley v. Guarino, 472 So. 2d 983 (Ala.1985).)
In the case before us, Merritt had long known who Cosby was, but when the original complaint was filed she did not possess knowledge sufficient to identify Cosby as one who should be a party. It was not until Joel Phillips, president of Melson Tractor Company (the firm that performed service work on the tractor in question), was deposed on August 25, 1989, that Merritt learned of certain transactions between Melson employees and Cosby that serve as the basis of the claims against Cosby. Cosby was deposed on October 19, 1989, and the next day, October 20, 1989, he was substituted for one of the fictitiously named parties.
Cosby notes that Merritt requested of SONAT production of certain documents, under Rule 27(a), A.R.Civ.P., namely "[a]ny and all documents reflecting any and all repairs and maintenance on the Ford Tractor and Bush Hog [attachment] involved in this incident." Cosby argues that such a request demonstrates an anticipation on Merritt's part of other possible defendants and that Merritt should be precluded from adding him as a defendant after the statutory period of limitations had run.
Even if we were to accept Cosby's argument, the fact still remains that Merritt did not learn of certain conversations between Cosby and Melson Tractor employees until Joel Phillips was deposed. It was these conversations that alerted Merritt to the fact that Cosby should be made a party to the action. The record is devoid of any factual allegations that would demonstrate that, from the maintenance records produced by SONAT, Merritt could have discovered the content of discussions between Cosby and Melson Tractor employees concerning the tractor in question. Therefore, Merritt's substitution of Cosby does relate back to the original complaint under Rule 9(h), Ala.R.Civ.P., pursuant to Rule 15(c), Ala.R.Civ.P.
Ala.Code 1975, § 25-5-11, as amended, limits wrongful death actions that an employee's dependents may bring against an "officer, director, agent, servant, or employee of the same employer" to actions based on "willful conduct" that results in, or proximately causes, death, if the employee's death would be subject to compensation under the Alabama Workmen's Compensation Act. In Reed v. Brunson, 527 So. 2d 102 (Ala.1988), we set out what is considered "willful conduct":
"... [Therefore,] we believe the Legislature sought to insure that these kinds of cases would not be submitted to a jury without at least some evidence tending to show either 1) the reason why the co-employee defendant would want to intentionally injure the plaintiff, or someone else, or 2) that a reasonable man in the position of the defendant would have known that a particular result (i.e., injury or death) was substantially certain to follow from his actions. (A purpose, intent, or design to injure another was not intended to be reasonably inferable from evidence showing only knowledge and appreciation of a risk of injury or death short of substantial certainty that injury or death would occur.)"
527 So. 2d at 119-20. (Emphasis in original.)
Merritt contends that Cosby is guilty of willful conduct as defined by § 25-5-11(c) because, she says, Cosby, or a reasonable person in his position, would have known that a particular result (injury or death) was substantially certain to follow from his actions. The "actions" in question are the result of a March 31, 1987, conversation between Cosby and employees of Melson Tractor. The tractor in question was taken to Melson Tractor for repairs on March 31, 1987. It was discovered that the backing plates for the brakes (metal plates that shield the brakes from foreign material) for both rear wheels had been damaged, thus allowing large amounts of sand, dirt, and other debris to come in[2] and reducing the effectiveness of the brakes.
The Melson Tractor employees were so concerned about the condition of the backing plates that they asked Cosby, who was responsible for repair and maintenance of SONAT tractors in his district, to come by and inspect the plates. Cosby did go by, and, after inspecting the plates, had them straightened, even though Melson employees recommended that they be replaced. Cosby knew that the tractor was going to be used on terrain where mud, water, and sand were prevalent, that debris around the brakes reduced their effectiveness, and that the tractor would be in use around other SONAT employees.
The facts of this case simply do not support a finding of willfulness or willful conduct. At best, the facts establish wantonness, *1246 but a recovery for wantonness is not allowed under the language of § 25-5-11(c)(1). See Reed. Landers v. O'Neal Steel, Inc., 564 So. 2d 925, 927 (Ala. 1990). The evidence would probably establish that Cosby was guilty of negligence, but negligence, too, is insufficient to satisfy § 25-5-11(c)(1). See Reed. Williams v. Price, 564 So. 2d 408, 410 (Ala.1990).
There is no question that Cosby knew about the defective backing plates and knew that defective plates would allow debris to come in and reduce the effectiveness of the brakes. Nor is there any question that Cosby, upon his discovery of the defective condition of the plates, failed to have them replaced. The question is, did Cosby (in failing to replace the backing plates) consciously pursue a course of conduct with a design, intent, and purpose of inflicting injury?
The evidence indicates that Cosby did not replace the plates because the tractor was going to be transferred to another SONAT district and he did not want to spend money on a tractor that was not to be used in his district. It was not Cosby's design, intent, and purpose to inflict injury upon Bullard by not replacing the plates; it was his design, intent, and purpose to avoid spending money on a tractor that was not going to be used in his district. This fact will not support a finding of a design, intent, or purpose of inflicting injury. Nor does it meet the "reasonable man" prong of Reedi.e., it would not support a finding that a reasonable man in the position of the defendant would have known that a particular result was substantially certain to follow from his actions. There is no evidence that Bullard's death was substantially certain to follow from Cosby's actions.
In summary, the evidence submitted establishes that, as a matter of law, the death of Bullard was not caused by any willful conduct (within the meaning of § 25-5-11(c)) on Cosby's part. Thus, the action brought by Merritt, the personal representative, is barred, and the trial court properly entered the summary judgment for Cosby. The judgment is therefore due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
KENNEDY, J., dissents.
[1] This addition of Cosby as a party defendant was done after the two-year statutory period of limitations allowed for "[a]n action by a representative to recover damages for wrongful act, omission or negligence causing the death of the decedent." Ala.Code 1975, § 6-2-38. Therefore, in order for Merritt's action against Cosby not to be time-barred, the substitution must relate back under Rule 9(h), Ala.R.Civ.P., pursuant to Rule 15(c), Ala.R.Civ.P. Alexander v. Scott, 529 So. 2d 951, 952 (Ala.1988).
[2] At deposition, Joel Phillips stated that a double handful of sand was pulled out of the brake housing, and that sand was not normally found in the brake housing. | February 15, 1991 |
8892d6b9-006b-40e1-93e9-a629b6410ec0 | Ex Parte Morris | 83 So. 2d 717 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 717 (1955)
Ex parte James W. MORRIS.
In re James W. MORRIS.
v.
CITY COMMISSION OF BIRMINGHAM.
6 Div. 901.
Supreme Court of Alabama.
November 28, 1955.
*718 Rogers, Howard & Redden, Birmingham, for appellant.
Chas. H. Brown, Birmingham, for appellee.
SIMPSON, Justice.
Petitioner, James W. Morris, a former sergeant of police, was dismissed from the police force of the City of Birmingham. Thereafter, he made timely appeal to the Personnel Board of Jefferson County. After a public hearing, the Board affirmed the dismissal. Petitioner appealed the Board's finding to the circuit court. On that appeal, the three-judge circuit court reviewed the record and affirmed the action of the Board. These proceedings were transacted pursuant to the provisions of Code 1940, Title 62, § 330(42), 1953 Cum.Supplement to Vol. 9, p. 129. The case comes to this court by petition for certiorari seeking to review the judgment of the circuit court. Such procedure has been approved. Ex parte *719 Bracken, Ala., 82 So. 2d 629; Ex parte Darnell, 262 Ala. 71, 76 So. 2d 770.
The conduct complained of and on which the dismissal of petitioner was based is set out in the charge sheet of the Director of Police:
Of the evidence adduced, the circuit court said in its opinion:
The record is void of any legal testimony which tended to establish petitioner's knowledge or observance of the malfeasance of Ferguson except the testimony of Ferguson himself. Ferguson testified that petitioner was in the room where the safe was, and, of course, should have seen or heard him commit the unlawful act which he admitted he did. Therefore, if the testimony of Ferguson be believed, there would be a justifiable inference to conclude that petitioner had observed the unlawful act and was, therefore, guilty of the charge of conduct unbecoming an employee in the public service.
The determination of the weight and credibility of this evidence and to draw inferences from facts adduced was for the administrative body, the Board, in such an adjudicatory proceeding. 73 C.J.S., Public Administrative Bodies and Procedure, § 126, p. 447. Therefore, we are forced to the conclusion that it was within the province of the Board to conclude, and the circuit court to affirm, that the charge preferred against the petitioner was sufficiently supported by substantial and legal evidence within the meaning of the statute as to be due an affirmance here of the holding of the three-judge circuit court. Ex parte Bracken, supra.
Petitioner next contends that his rights have been substantially and materially prejudiced by the Board taking testimony of an alleged expert concerning his findings from Polygraph tests performed on petitioner. We think the circuit court adequately answered this argument when it found that while the testimony might not be legal evidence, its admission was not reversible error because the Board is not bound by technical rules of evidence. In the absence of statutory provisions, the Board has seen fit to adopt its own rules, one of which specifically applies to evidence, viz., Rule No. X, subsec. 10.5:
The adoption of such rules was within the prerogative of the Board. 42 Am.Jur., § 129, p. 460.
Moreover, since the Board is not composed of those learned in the law, we are unwilling to reverse because of indiscretion in admitting some illegal evidence. This view conforms to our holding as to a somewhat similar quasi-judicial body, the Public Service Commission, in North Alabama Motor Express v. Rookis, 244 Ala. 137,12 So. 2d 183.
Finally, petitioner argues that the circuit court erroneously decided that as a matter of law that court could not consider the weight of the testimony in arriving at its decision, and in holding that the evidence adduced was sufficient to support the Board's decision according to the "substantial evidence" rule.
The statute provides, Title 62, § 330(42), Code 1940, 1953 Cum.Supp:
We deem the issue raised by petitioner properly before us as a question of law. Ex parte Bracken, supra.
In its opinion, the three-judge panel of the circuit court said:
* * * it is our view that there need not be a preponderance of the evidence in order that the Board's decision may be upheld."
The court further indicated that though the decision of the Board was not supported by the weight (preponderance) of the testimony, it was supported by substantial and legal evidence.
The opinion of the court used the following definitions by which to measure the substantial evidence rule:
*721 Thus it appears that the circuit court concluded it was not within its province to weigh the evidence, but only to decide whether or not there was substantial legal evidence, Ex parte Bracken, supra; 73 C.J.S., supra, and consonant with such principle concluded against the petitioner and affirmed the decision of the Board.
Petitioner relies on decisions of this court in reviewing orders of the Public Service Commission as precedent for holding in the instant proceeding that the review in the circuit court should have been on a consideration of whether or not the decision of the Board was supported by the weight of the evidence. The Public Service Commission decisions rendered by this court, however, are not helpful, since under the Public Service Commission Act it is provided inter alia that the Commission's order shall be taken as prima facie just and reasonable and shall stand unless the court on appeal should conclude the order, decision or award, was based upon a finding of facts contrary to the substantial "weight" of the evidence. But the Civil Service Act now under consideration omits "weight" and limits review to a determination of whether the decision of the Board is supported by substantial legal evidence.
On a careful consideration of the whole case in connection with a study of the pertinent authorities, we are constrained to order an affirmance of the circuit court's decision. As was observed in Ex parte Bracken, supra, "we cannot say that the circuit court erred in holding that the board, with the discretion vested in it by the act to make such decisions, did not act arbitrarily and without substantial and legal evidence in adjudging on the stated facts that petitioner was guilty of conduct unbecoming an employee in the public service." 82 So.2d at pages 632-633.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and MAYFIELD, JJ., concur. | November 28, 1955 |
c952ac94-d554-4804-b6c0-2e6a7fd79af5 | Duncan v. State | 575 So. 2d 1208 | 1900463 | Alabama | Alabama Supreme Court | 575 So. 2d 1208 (1991)
Ex parte State of Alabama.
(Re Joe Cecil DUNCAN, Jr.
v.
STATE).
1900463.
Supreme Court of Alabama.
February 15, 1991.
Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for petitioner.
J.L. Chestnut, Jr. and Philip Henry Pitts, Selma, for respondent.
Prior report: Ala.Cr.App., 575 So. 2d 1198.
PER CURIAM.
The petition for writ of certiorari is denied as prematurely filed. See Ex parte Pierce, 576 So. 2d 258 (Ala.1991).
PETITION DENIED AS PREMATURELY FILED.
HORNSBY, C.J., and ALMON, ADAMS, STEAGALL and INGRAM, JJ., concur. | February 15, 1991 |
e66e8fbf-c5ca-4df6-a0a9-680cb7585f5c | Frazier v. City of Mobile | 577 So. 2d 439 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 439 (1991)
Kermit M. FRAZIER
v.
CITY OF MOBILE.
89-0239.
Supreme Court of Alabama.
February 8, 1991.
Rehearing Denied March 8, 1991.
Richard G. Alexander of Alexander and Associates, Mobile, for appellant.
Connie J. Morrow-Fundin, Mobile, for appellee.
KENNEDY, Justice.
This Court's original opinion of September 28, 1990, is withdrawn, and the following opinion is substituted therefor.
Frazier was employed by the City of Mobile (the "City") from August 1951 until *440 his retirement on March 1, 1982. In September 1951, the Alabama Legislature adopted Act No. 773, Acts of Alabama 1951, which enabled the City to establish a retirement fund for its employees. Act No. 749, Acts of Alabama 1967, allowed the City's employees to participate in the State retirement system and provided several options concerning how their retirement would be paid. Frazier chose an option that involved the State's paying a portion of his benefits and the City's paying him a supplement to what the State paid. The two acts entitled Frazier to retirement benefits equal to 55% of his salary at the date of his retirement.
On January 22, 1982, Frazier notified the City of his intent to retire on March 1, 1982. In February 1982, Frazier received a letter from an accountant named W.F. Egan, who at that time was employed by the City's payroll and records department. That letter stated that he was entitled to $373.15 from the City each month in addition to whatever he received as a monthly retirement benefit from the State. Frazier retired on March 1, 1982. He began receiving his State benefits, but he was not eligible for the City's supplement until he was 60 years old. In April 1987, when Frazier became 60 years old, be began receiving the $373.15 from the City each month.
In September 1986, the City was notified by its accountants that its payments of supplemental retirement benefits were exceeding the funds allocated for those payments. The City reviewed its payment of supplemental retirement benefits under Acts No. 749 and 773 and discovered that it was overpaying some individuals for those benefits. In October 1987, the City's mayor sent a letter to Frazier informing him that the City had been overpaying him for his supplemental retirement benefits and that, during the next five years, his benefits would be reduced from $373.15 monthly to $114.88 monthly. On December 27, 1988, Frazier filed this action against the City, alleging mistaken or reckless misrepresentation, and the trial court entered a summary judgment for the City.
The City contends that Frazier's action is barred by the notice requirement of Ala. Code 1975, § 11-47-23. Section 11-47-23 provides:
In Diemert v. City of Mobile, 474 So. 2d 663 (Ala.1985), we held that § 11-47-23 addresses tort claims against municipalities and requires that the claim be filed within six months of its accrual. Although the filing of an action within the six-month period would be sufficient presentment of the claim to comply with that provision, Diemert, at 666, some presentment of the claim within six months of its accrual is mandatory. Ivory v. Fitzpatrick, 445 So. 2d 262 (Ala.1984).
Frazier did not file his action or otherwise give notice of his claim within six months of its accrual. The action is barred, accordingly. § 11-47-23; Large v. City of Birmingham, 547 So. 2d 457 (Ala. 1989); Diemert, supra; Ivory, supra.
APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur. | February 8, 1991 |
add56e4c-bce5-43d5-b5b1-f95c776fb788 | Lynaum Funeral Home, Inc. v. Hodge | 576 So. 2d 169 | N/A | Alabama | Alabama Supreme Court | 576 So. 2d 169 (1991)
LYNAUM FUNERAL HOME, INC., and Carl Lynaum
v.
Taylor H. HODGE, Sr.
89-1172.
Supreme Court of Alabama.
January 25, 1991.
James D. Wilson III, Mobile, for appellants.
Carl Robert Gottlieb, Jr. and Stephen E. Clements of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellee.
HORNSBY, Chief Justice.
On May 27, 1987, Donald Parmer leased a funeral home chapel and lot from the appellee, Taylor Hodge, Sr. The lease specifically allowed the lessee to sub-let or assign the lease. Two days later, on May 29, 1987, Parmer sub-leased the property to *170 Magnolia Funeral Homes of Mobile, Inc., through its president Carl Lynaum. On March 10, 1988, Parmer assigned the May 27, 1987, lease to Lynaum Funeral Home, Inc., through its president Carl Lynaum. The assignment was made with Hodge's consent, although the terms of the lease did not require the lessor's consent.
Under the terms of the lease, the $3,000 rent was due on the first day of each month. The lease term was for 12 months, beginning June 1, 1987, with an option for the lessee to renew at the end of each 12-month period for up to nine years. The lease contained the following language:
(Emphasis added.)
On August 22, 1989, Hodge brought the present unlawful detainer action alleging that Lynaum was in default of the lease because of nonpayment of rent. Hodge later amended his complaint to include a claim for damages for the use and possession of the premises and for the cost of repairs to the air conditioning system and the roof of the leased building. This case was tried without a jury and the evidence was presented ore tenus; on February 20, 1990, the court awarded Hodge possession of the premises and awarded damages. We affirm.
Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court's findings of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Gaston v. Ames, 514 So. 2d 877, 878 (Ala. 1987); Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So. 2d 1177 (Ala.1981). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment. Gaston, supra; Smith v. Style Advertising, Inc., 470 So. 2d 1194 (Ala.1985); League v. McDonald, 355 So. 2d 695 (Ala.1978).
Lynaum argues that Hodge was estopped from terminating the lease due to late payments because Hodge had accepted late payments in the past. At the hearing, Lynaum testified that he was aware that the lease did not provide any grace period for late rental payments. Lynaum also testified that he knew that the lease preserved Hodge's right to terminate the lease even if Hodge had accepted the rental payments late. According to Lynaum's own testimony, he had paid the rent late on several occasions and had often written checks with insufficient funds available to honor the amount of the check.
The mere fact that the lessor accepted some overdue rent payments does not *171 waive his right to declare default where that right has been expressly reserved. USA Petroleum Corp. v. Jopat Building Corp., 343 So. 2d 501 (Ala.1977). The lease, quoted above, expressly reserved Hodge's right to accept late payments of rent without waiving his right to declare default. Therefore, we can not say that the trial court's holding that Lynaum was in default and that Hodge was entitled to possession was clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Gaston, supra; Cougar Mining Co., supra.
The trial court also awarded Hodge damages for the cost of repairing an air conditioning unit on the leased premises. Lynaum argues that this award was erroneous for two reasons. First, Lynaum states that Parmer was actually the owner of Magnolia Funeral Homes, and that Lynaum was merely acting as a manager when the repairs took place. Second, Lynaum argues that Hodge did not give him a five-day notice before declaring a default, as Lynaum says Hodge was required to do under the lease agreement.
The record reveals that the repairs were made on June 15, 1987. On that date, Parmer was the sub-lessor of the premises and Magnolia Funeral Homes, through its president Carl Lynaum, was the sub-lessee. As president, Lynaum signed the invoice authorizing the repair of the air conditioner. On March 10, 1988, Parmer assigned his interest in the May 27, 1987, lease to Lynaum Funeral Home, through its president Carl Lynaum, as allowed in the lease. Contained in that assignment was the following:
(Emphasis added.)
The lease agreement provided that the lessee was responsible for making any repairs to any equipment on the premises and that if the lessee failed to make such repairs, the cost of the repairs was payable to the lessor upon demand. Hodge testified that he paid the repair cost because Lynaum had not paid it and that he then demanded payment from Lynaum. Both Hodge and Lynaum testified that Lynaum had not paid the repair costs.
The assignment agreement between Parmer and Lynaum expressly provided that Lynaum assumed responsibility for all payments that were due the lessor, Hodge, under the lease. The lease provided that the lessee was liable for repairs and maintenance. Therefore, Lynaum assumed responsibility for the cost of repairs to the air conditioning unit.
We also find Lynaum's argument that he did not receive five days' notice of his failure to pay the cost of these repairs to be without merit. This argument is apparently based on the wording of a proposed lease Hodge's lawyer sent to Lynaum on June 29, 1989, for him to execute if he wanted to continue to occupy the premises. This proposed lease differs from the May 27, 1987, lease in that it contained no renewal option and would have required the lessor to give the lessee five days' notice before acting upon a default. However, Lynaum never signed the proposed lease sent to him on June 29, 1989. Consequently, it is of no effect.
The lease executed between Hodge and Parmer on May 27, 1987, does not require the lessor to give the lessee five days' notice before acting upon any default in the lessee's performance. It was this lease that Parmer assigned to Lynaum on March 10, 1988, and the terms of this lease govern the transactions before us. Therefore, Parmer was not required to give Lynaum five days' notice before acting on Lynaum's default in not paying for the repairs.
*172 Accordingly, the trial court did not err in holding that Lynaum is liable for the cost of the repairs. Its judgment is affirmed.
AFFIRMED
MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur. | January 25, 1991 |
d93ca37d-8b81-4033-af98-6419617ac922 | Southern Ready Mix v. AmSouth Bank | 576 So. 2d 188 | N/A | Alabama | Alabama Supreme Court | 576 So. 2d 188 (1991)
SOUTHERN READY MIX, INC., and Batey & Sanders, Inc.
v.
AmSOUTH BANK, N.A.
89-1607.
Supreme Court of Alabama.
February 1, 1991.
John R. Frawley, Jr., Irondale, for appellants.
William B. Hairston, Jr. and Judith C. D'Allessandro of Engel, Hairston & Johanson, Birmingham, for appellee.
MADDOX, Justice.
This appeal is from an interpleader action in which two unsecured creditors challenged another creditor's assertion that it is secured by a security agreement. The specific issue is whether the trial court, in entering a summary judgment in favor of AmSouth Bank, N.A., properly held that AmSouth's security agreement was valid and enforceable against two unsecured creditors because of a so-called "dragnet" provision in the security agreement.
The undisputed facts are as follows: In connection with the construction of a section of an Alabama state highway, Milton Construction Company, Inc. (hereinafter referred to as "Milton") hired A & M, Inc., as a subcontractor on the project. A & M subsequently contracted with two subcontractors, Southern Ready Mix, Inc., and Batey & Sanders, Inc., for them to provide materials and services in connection with *189 the highway construction. When Southern Ready Mix filed suit against A & M for the amount owed it, Milton initiated an interpleader action to discharge its debt to A & M in connection with the construction and paid $57,102.63 to the clerk of the Jefferson County Circuit Court. Southern Ready Mix and Batey & Sanders notified Milton that A & M had not paid them in full in connection with the construction. Southern Ready Mix claimed $58,984.21 plus reasonable attorney fees, and Batey & Sanders claimed that it was owed $4,850.28. Additionally, AmSouth notified Milton that A & M owed it $78,147 plus reasonable attorney fees pursuant to its security agreement giving it a priority interest in A & M's accounts receivable.
AmSouth filed a motion for summary judgment, claiming it had a security interest in A & M's accounts receivable. The trial court agreed and entered summary judgment in favor of AmSouth, finding that pursuant to the clear and unequivocal language of the "dragnet" clause in AmSouth's security agreement with A & M, AmSouth had a perfected security interest in A & M's accounts receivable and, therefore, was entitled to priority in Milton's interpleaded funds. Southern Ready Mix and Batey & Sanders (hereinafter referred to collectively as the "appellants") appeal, claiming that AmSouth's security agreement is invalid and that AmSouth is not entitled to priority.
On June 16, 1987, A & M entered into a security agreement with AmSouth. This agreement provided in pertinent part as follows:
This agreement was filed with the secretary of state on June 18, 1987. Although AmSouth advanced no loan to A & M at that time, A & M subsequently signed two notes to AmSouth: one on August 1, 1988, and the second on April 4, 1989, totaling $86,119.95. These notes were secured by distinct collateral designated on each note. The appellants maintain that the June 1987 security agreement between AmSouth and A & M was not supported by any value, and that Milton's interpleaded funds should be distributed pro-rata between each appellant and AmSouth.
AmSouth, however, asserts the validity of its security agreement and cites Ala. Code (1975), § 7-9-204:
AmSouth also cites as controlling the case of Dixie Ag Supply, Inc. v. Nelson, 500 So. 2d 1036 (Ala.1986). In that case, the debtor signed a security agreement containing a "dragnet" clause similar to the one signed by A & M in the present case. The issue in that case was whether one creditor's security agreement extended to the debtor's antecedent indebtedness to another creditor. The jury found in favor of the unsecured creditor and this Court reversed:
500 So. 2d at 1040.
Although we find Dixie Ag Supply persuasive, we are concerned here with whether the creditor's security agreement extends to the debtor's subsequent indebtedness to other creditors.
Ala.Code (1975), § 7-9-203(1), states:
Subsection (2) provides:
The requirement of value in subsection (1), above, was discussed in First Maryland Leasecorp. v. M/V Golden Egret, 764 F.2d 749 (11th Cir.1985). That court quoted Ala.Code 1975, § 7-1-201(44), which defines "value":
Applying this definition of "value" to the facts in that case, the Court of Appeals held for the party claiming a perfected security interest, stating that the "undisputed obligation to extend credit ... was certainly `consideration sufficient to support a simple contract.'" 764 F.2d at 753.
White and Summers state that under the Uniform Commercial Code, § 1-201(44)(a) and (d) (see Ala.Code 1975, § 7-1-201(44)(a) and (d)), a creditor's binding executory promise to extend credit or to make a loan constitutes value as of the time when the creditor's promise becomes binding. 2 J. White & R. Summers, Uniform Commercial Code § 24-6 at 320 (3rd ed.1988).
Several cases from other jurisdictions help illuminate the applicability of these U.C.C. sections. In State Bank & Trust Co. of Beeville v. First Nat'l Bank of Beeville, 635 S.W.2d 807, 809 (Tex.App. 1982), the court held that "a promise on the part of [the bank] to extend credit to the debtor ... constituted `value' given." The Supreme Court of Montana similarly held that one gives value for rights if he acquires them in return for a binding commitment to extend credit for the extension of immediately available credit, whether or not drawn upon. Taylor Rental Corp. v. Ted Godwin Leasing, 209 Mont. 124, 681 P.2d 691, 697 (1984).
Based upon the clear and unambiguous wording of the applicable Ala.Code sections and upon the cases interpreting those sections, we agree with the trial court that AmSouth's June 16, 1987, security agreement with A & M is valid and enforceable.
We now address whether A & M's two subsequent notes to AmSouth were intended to be secured by their June 16, 1987, security agreement. The aforementioned "dragnet" clause in AmSouth's June 1987 security agreement is valid in Alabama. *191 Ala.Code 1975, § 7-9-204; Ex parte Chandler, 477 So. 2d 360 (Ala.1985); Underwood v. Jarvis, 358 So. 2d 731 (Ala.1978); First National Bank of Guntersville v. Bain, 237 Ala. 580, 188 So. 64 (1939). Such clauses may secure debts between the parties to the agreement other than the debt that is specified in the agreement. Although there is additional collateral listed on A & M's two subsequent notes to AmSouth, we find nothing in the record that would show that A & M and AmSouth did not intend their June 16, 1987, security agreement to apply to any and all future advances from AmSouth to A & M.
Based on the foregoing, we hold that AmSouth has a valid and enforceable security interest in A & M's accounts receivable, as clearly referenced in the dragnet clause of AmSouth's June 16, 1987, security agreement. As a secured creditor, AmSouth is entitled to A & M's accounts receivable from Milton. We agree with the trial court that only after AmSouth's secured debt has been satisfied from A & M's accounts receivable, may the appellants, as unsecured creditors, recover from A & M amounts due them.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. | February 1, 1991 |
0f2fa1d5-d489-4303-9878-0411f442b58b | Ex Parte Slater | 575 So. 2d 1211 | 1900370 | Alabama | Alabama Supreme Court | 575 So. 2d 1211 (1991)
Ex parte Archie SLATER.
(Re Archie Slater v. State).
No. 1900370.
Supreme Court of Alabama.
February 15, 1991.
*1212 Ronnie L. Williams, Mobile, for petitioner.
Don Siegelman, Atty. Gen., and Beth Jackson Hughes, Asst. Atty. Gen., for respondent.
Prior report: Ala.Cr.App., 575 So. 2d 1208.
PER CURIAM.
The petition for writ of certiorari is denied as prematurely filed. See Ex parte Pierce, 576 So. 2d 258 (Ala.1991).
PETITION DENIED AS PREMATURELY FILED.
HORNSBY, C.J., and ALMON, ADAMS, STEAGALL and INGRAM, JJ., concur. | February 15, 1991 |
ff689ee3-fa27-4130-b5a6-184c3b9a6cce | Ex Parte Bonds | 581 So. 2d 484 | N/A | Alabama | Alabama Supreme Court | 581 So. 2d 484 (1991)
Ex parte Barbara Atkinson BONDS.
(Re James Walker BONDS v. Barbara Atkinson BONDS).
89-1643.
Supreme Court of Alabama.
February 8, 1991.
*485 William P. Cobb II and Patricia A. Hamilton of Balch & Bingham, Montgomery, for petitioner.
Floyd Minor, Montgomery, for respondent.
MADDOX, Justice.
We granted the wife's petition for writ of certiorari to the Court of Civil Appeals. The issue presented is whether the Court of Civil Appeals correctly reversed the trial court's interpretation of a property settlement agreement on the ground that the trial court had improperly modified that agreement, which had been made by the husband and wife and which had been incorporated into their divorce judgment. The petitioner claims that the trial court merely clarified the settlement agreement and that it had a right to do so. We agree. Therefore, we reverse.
The pertinent facts are as follows: On December 12, 1986, James and Barbara Bonds entered into a contract for the construction of a house. The contract provided for a total purchase price of $197,500 and provided that the Bondses would make a $20,000 down payment. To make the down payment, James borrowed $20,000 from AmSouth Bank. In April 1987, James and Barbara Bonds were divorced.
The Bondses' divorce judgment incorporated by reference a settlement agreement entered into between the Bondses on April 3, 1987. This agreement included a settlement with regard to the building contract. Section 9.4, "House under Construction," provided:
The builder completed the house more than one year after the divorce. On or about February 27, 1989, the builder, who had failed to include several amenities provided for in the contract, including a swimming pool, sold the house for $195,000 and received all proceeds from the sale. However, he never returned the $20,000 down payment to either James or Barbara Bonds. On September 15, 1989, James filed a petition alleging that Barbara had failed to pay him one-half of the $20,000, which he says was due him under the settlement agreement. On November 30, the trial court found Barbara liable to James in the amount of $8,116.29 and held that James should "make good (and better) faith efforts to collect the $20,000 [that] he claims is owed [to] him from the builder."
On December 8, 1989, the trial court amended its order to state that Barbara, after paying the $8,116.29, also "shall be responsible for ... one-half of the principal and interest remaining on the $7,000 balance due" on the debt. On January 8, 1990, the trial court again modified its order with regard to the repayment of the $20,000 loan to AmSouth:
On February 20, 1990, James appealed to the Court of Civil Appeals and on June 20, 1990, that court reversed the judgment and remanded the cause for a determination of damages. 581 So. 2d 481. The central holding by the Court of Civil Appeals was that the trial judge had impermissibly modified the settlement agreement that had been incorporated into the divorce judgment. Barbara's application for rehearing was denied, and she petitioned this Court for a writ of certiorari. We granted her petition on October 24, 1990.
The law regarding a trial court's discretion involving property settlements is well established. An order that clarifies a provision in a property settlement agreement does not constitute an improper modification. Lloyd v. Lloyd, 508 So. 2d 276 (Ala.Civ.App.1987). Additionally, where there are ambiguities in a settlement agreement, the trial court must construe the agreement so as to reflect the parties' intentions. Mayhan v. Mayhan, 395 So. 2d 1022 (Ala.Civ.App.1981). Under the ore tenus rule, the trial court's findings are subject to reversal only if they are plainly and palpably wrong, manifestly unjust, or not supported by the evidence. Robbins v. Robbins, 537 So. 2d 964 (Ala.Civ.App.1988). Thus, in reviewing the Court of Civil Appeals' reversal of the trial court's order of January 8, 1990, we must determine whether the trial court's order, construing Section 9.4 of the property settlement agreement, was plainly and palpably wrong, manifestly unjust, or not supported by the evidence.
Barbara argues that Section 9.4 is ambiguous and that the trial court properly interpreted that section in its January 8, 1990, order. She contends that, under the agreement, she is not required to contribute anything toward the $20,000 debt to AmSouth unless the sale of the house fails to provide sufficient funds to fully reimburse James for all interest and any portion of required principal paid. Barbara argues that the sale of the house provided sufficient funds to reimburse James for the entire $20,000 debt to AmSouth, but that the builder has refused to pay over to James any of the sale proceeds, including the $20,000 down payment.
James, on the other hand, maintains that Section 9.4 unambiguously states that he and Barbara would equally share in the expense of the $20,000 debt to AmSouth. James contends that the Court of Civil Appeals correctly reversed the trial court's order, and he argues that the order, requiring him to "exhaust all good faith efforts" to collect the $20,000 from the builder before Barbara would become liable, is an improper modification, rather than an allowable clarification, of the property settlement agreement. He also insists that Section 9.4 clearly provided that Barbara was to be responsible for repaying one-half of the interest and principal in regard to the loan with AmSouth if the sale of the house did not provide sufficient funds for reimbursement, and he alternatively asserts that because Barbara also signed the contract for construction with the builder, she has an equal responsibility to collect the $20,000 from the builder.
We conclude that the trial court merely "clarified" the property settlement agreement and did not improperly "modify" it. We further hold that the trial court's clarification of the agreement was within its discretion, and that the trial court's interpretation was not plainly and palpably erroneous, manifestly unjust, or without support in the evidence.
In Lloyd v. Lloyd, supra, a case involving a settlement agreement provision regarding the sale of the parties' house, the Court of Civil Appeals held that "if a property settlement's provisions directing and governing the sale are ambiguous, then a judgment clarifying such matters is not a modification of the agreement." 508 So. 2d at 278. In Weathers v. Weathers, 508 So. 2d 272 (Ala.Civ.App.1981), likewise, the trial court clarified a settlement agreement incorporated into a divorce judgment. Affirming the judgment of the trial court, the Court of Civil Appeals relied on contract law, stating:
508 So. 2d at 274.
We hold that the terms of the settlement agreement providing for Barbara to pay one-half of the $20,000 debt to AmSouth are ambiguous. Section 9.4 of the agreement, incorporated into the divorce judgment, requires that "the Husband be reimbursed from the sale" and that Barbara's obligation for one-half of the $20,000 debt is activated if the sale of the house fails to provide sufficient funds to fully reimburse James. These provisions do not express the terms by which James is to be reimbursed, nor do they explain under what circumstances either party may claim that the sale of the house failed to provide sufficient funds for reimbursement. Thus, we hold that it was within the trial court's discretion to clarify the settlement agreement; consequently, the judgment of the Court of Civil Appeals is reversed and this cause is remanded for the entry of an order consistent with this opinion.
REVERSED AND REMANDED WITH DIRECTIONS.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | February 8, 1991 |
52fc43f4-38a4-4e3e-a1e8-4ac9cf1eaa38 | Ferguson v. Commercial Bank | 578 So. 2d 1234 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1234 (1991)
Robert Myles FERGUSON and Nettie Mae Ferguson
v.
The COMMERCIAL BANK, et al.
89-1288.
Supreme Court of Alabama.
February 15, 1991.
Rehearing Denied April 5, 1991.
*1235 James Harvey Tipler of Tipler & Tipler, Andalusia, for appellants.
Christopher Lyle McIlwain of Hubbard, Waldrop, Reynolds, Davis & McIlwain, Tuscaloosa, for appellees.
SHORES, Justice.
This case presents the question whether an application for a temporary restraining order that was dismissed as moot was a judgment on the merits so as to bar a subsequent action under the doctrine of res judicata. We hold that it was not, and we reverse and remand.
On April 22, 1987, the plaintiffs, Robert Myles Ferguson and Nettie Mae Ferguson, filed an application for a temporary restraining order in the Circuit Court of Conecuh County, in an attempt to stop a foreclosure sale of property that they had mortgaged to defendant Commercial Bank. The trial judge, the Honorable Robert E. Lee Key, entered an order restraining Commercial Bank from foreclosing on the mortgages, conditioned upon the Fergusons' posting a surety bond in the amount of $250,000. This amount was reduced to $30,000 pursuant to a stipulation of the parties the next day. However, the Fergusons were still unable to post this bond because the premium would have equalled the bond amount. That same day, Judge Key entered an order dismissing the Fergusons' application for a T.R.O. as "moot," and the foreclosure sale took place as scheduled on April 23, 1987.
Apparently the foreclosure sale was defective. Commercial Bank began new foreclosure proceedings on the same property in June 1987. On November 14, 1988, the Fergusons filed a complaint against Commercial Bank, First Alabama Bank, and First Alabama Bancshares, Inc.,[1] alleging *1236 wrongful foreclosure, fraud, and intentional interference with business relations in connection with the foreclosure on the mortgage. The defendants filed a motion for summary judgment, arguing that the issues had been adjudicated when the Fergusons applied for a T.R.O. in Conecuh County prior to the first foreclosure, and that the suit was, therefore, barred by the doctrine of res judicata. The Honorable William H. Baldwin entered a summary judgment in favor of the defendants on the ground that the dismissal of the Fergusons' T.R.O. application as moot barred this action under the doctrine of res judicata. The Fergusons appeal from the summary judgment.
This Court has written:
Higgins v. Henderson, 551 So. 2d 1050, 1052 (Ala.1989). See Broughton v. Merchants Nat'l Bank of Mobile, 476 So. 2d 97, 101 (Ala.1985). If one of these elements is not present, the doctrine of res judicata is inapplicable.
A temporary restraining order is, as its name suggeststemporary. It is an emergency measure that will be granted only upon a showing that it is necessary to prevent immediate and irreparable injury, loss, or damage. A.R.Civ.P. 65(b). It can even be issued without notice to the adverse party, and, if so issued, expires in 10 days.
It is not contemplated by the Rules that a T.R.O. request will result in a hearing on the merits of the case. An emergency measure, an application for a T.R.O. is not an "action" in the ordinary sense. A proceeding on an application for a T.R.O., by its very nature, does not reach the merits of a case. A T.R.O. is granted to maintain the status quo until there is an opportunity for an adjudication on the merits. See Browning v. Wesco Co., 218 Ala. 544, 119 So. 660, 661 (1929).
The defendants focus on the word "dismissed" in Judge Key's order, arguing that the order was an involuntary dismissal under Rule 41(b), A.R.Civ.P. They point to the last sentence of that rule, which reads as follows:
A reading of the entire order, however, shows us that the key word in the order is "moot," not "dismissed." The trial judge's order states, "Petitioner not having filed required bond in any amount, petition is hereby rendered moot and matter dismissed out of Court and costs taxed to the Petitioner."
Mootness is a question of justiciability. If a case has become moot, or if a judgment would not accomplish an end recognized as sufficient in law, then there is no necessity for a judgment and the court will decline to consider the merits and will dismiss the case. See Chisolm v. Crook, 272 Ala. 192, 130 So. 2d 191 (1961), citing Ex parte McFry, 219 Ala. 492, 122 So. 641 (1929).
A dismissal based on mootness is not an adjudication on the merits. See 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4436, at 344 (1981). "[T]he holding of mootness is not a judgment on the merits and, as a nonmerits *1237 judgment, it does not bar further action on any matters not actually adjudged. Moore's Federal Practice Para. 0.405[5]." De Volld v. Bailar, 568 F.2d 1162, 1166 (5th Cir.1978). "It is well settled that the dismissal of a case because it is moot does not lay a basis for the application of the doctrine of res judicata." N. Sims Organ & Co. v. SEC, 293 F.2d 78, 81-82 (2d Cir. 1961), cert. denied, 368 U.S. 968, 82 S. Ct. 440, 7 L. Ed. 2d 396 (1962).
The Alaska Supreme Court has held that the dismissal as moot of an action to enjoin a foreclosure was not a judgment on the merits that precluded an action for damages arising out of the same events. Ostrow v. Higgins, 722 P.2d 936 (Alaska 1986). In Ostrow, the plaintiff/appellant was granted a T.R.O. barring foreclosure proceedings on her property, pending a hearing on her motion for a preliminary injunction. She did not pursue her motion for a preliminary injunction for more than nine months. The foreclosure sale took place, and she renewed her motion. However, she withdrew her motion after the defendants opposed it as moot, and the trial court dismissed the action with prejudice. The plaintiff then filed suit, claiming that the property had been wrongfully sold and that the sale had been improperly conducted. The trial court entered a summary judgment for the defendants on the grounds that Ostrow was precluded from raising issues that she had raised or could have raised in her first lawsuit. The Alaska Supreme Court reversed, stating as follows:
722 P.2d 936 at 938-39.
We find the reasoning of the Alaska Supreme Court persuasive in this case. The Fergusons' application became moot simply because they could not raise the funds to post a bond. We hold that the dismissal of their application for a T.R.O., which occurred because they failed to post a bond, was not a judgment on the merits so as to bar a subsequent action under the doctrine of res judicata.
The defendants also argue that the plaintiffs' claims, to the extent that they are based on fraud, are barred by the statute of limitations. The statute of limitations for fraud is two years. Alabama Code 1975, § 6-2-38. Because the record reflects that there is a genuine issue of material fact as to when the alleged fraud was, or should have been, discovered, see § 6-2-3, the fraud claims could not properly be disposed of on a motion for summary judgment. Rule 56, A.R.Civ.P.
This judgment is due to be reversed and the cause remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, ADAMS, KENNEDY and INGRAM, JJ., concur.
MADDOX and STEAGALL, JJ., dissent.
MADDOX, Justice (dissenting).
The issue before this Court involves the application of the doctrine of res judicata. The specific question presented is whether a person, having filed a complaint in the circuit court seeking to enjoin the foreclosure of a mortgage on the ground that the mortgage was obtained because of an alleged fraud practiced upon the mortgagor, *1238 and having suffered a dismissal of that action by failing to post the bond required by the trial court to enjoin the foreclosure, can, nevertheless, subsequently pursue an independent action to recover damages for the same alleged fraudulent conduct of the mortgagee, when all of the issues presented in the second action were either presented in the first action or could have been presented in that action.
The majority, treating the first action as nothing more than an application for a temporary restraining order, and treating the issue presented in the first lawsuit as nothing more than an application for temporary relief, holds that the trial judge erred in determining that the doctrine of res judicata barred the second action. I cannot agree with the majority's interpretation of Rule 41(b), Ala.R.Civ.P., which deals with involuntary dismissal of lawsuits, and the reasons for my disagreement can be summarized as follows: (1) the majority treats the first action as nothing more than an application for a temporary restraining order, when, in fact, it also sought permanent relief; and (2) the majority incorrectly holds that an involuntary dismissal of an action because of the failure of a party to post a bond is not a judgment on the merits under Rule 41(b).
It is unquestioned that the plaintiffs, in the first action, sought to enjoin the foreclosure by the bank of mortgages on the same two parcels of land involved in this action on the ground that the bank had practiced a fraud upon them. Had they posted the required bond, they could have obtained in the first action an adjudication of each of the claims that were contained in the second action. In fact, many of the allegations are almost identical.
The Complaint Sought Permanent Relief
The majority classifies the action the Fergusons filed in Conecuh County as "an application for a temporary restraining order" and classifies the verified complaint the Fergusons filed in Conecuh County as being an "application for a T.R.O." that was dismissed as moot "because they failed to post a bond," and states that because of that fact the dismissal was "not a judgment on the merits so as to bar a subsequent action under the doctrine of res judicata." The majority correctly states that the first action was dismissed "because [the plaintiffs] failed to post [the required] bond." In reaching the conclusion that the first complaint was only an application for a temporary restraining order, the majority unfortunately focuses its attention on only one of the demands for relief that were made in the first action. The record of that first action was made a part of the record that was before the trial court in this case, and a comparison of the allegations of the complaint in the Conecuh County action with the allegations contained in the complaint in this case shows that in many instances the allegations are identical. In the first action, the basis for the Fergusons' request for both temporary and permanent injunctive relief was their allegations that the defendants had defrauded them and that the defendants should be enjoined from foreclosing on "two groups of real property situated in Escambia and Conecuh County, Alabama," because of these acts of alleged fraud. In their complaint, the plaintiffs also alleged that "they stand ready, if necessary, to post a bond in an amount that this Court deems appropriate to stand as security for payment of any costs, damages or reasonable attorney's fees as may be incurred or suffered if it is found that Defendant has been wrongfully restrained or enjoined."
In any event, it is plain from a reading of the original complaint and the demand for relief in that complaint that the original action was not limited to a request for a temporary restraining order, as the majority holds. The demand for relief reads as follows:
For sake of clarity, I will refer to the first case that was filed in Conecuh County as Ferguson I.
The trial judge in Ferguson I, the Honorable Robert E. Lee Key, entered an order restraining Commercial Bank from foreclosing on the mortgages, conditioned upon the Fergusons' posting a surety bond of $250,000. The amount was reduced to $30,000 by stipulation of the parties, but the Fergusons still failed to post this bond. On April 23, 1987, the foreclosure sale took place.[2] That same day, Judge Key dismissed the Fergusons' complaint by entering the following on the case action summary sheet:
The Fergusons contend, and the majority holds, that the first action was based on an application for a temporary restraining order that, by its very terms, did not reach the merits of the case. The Fergusons cite Browning v. Wesco Co., 218 Ala. 544, 119 So. 660 (1929), for the proposition that a temporary injunction is not itself an adjudication on the merits, but rather is used to prevent any change in the status quo until such time as there is an opportunity for an adjudication on the merits.
Commercial Bank does not contest the proposition that a hearing on a motion for a temporary restraining order cannot constitute an adjudication, but rather points out that the temporary restraining order was conditionally granted and was subsequently dismissed, and contends that the dismissal was clearly a judgment on the merits by virtue of Rule 41(b).
Rule 41(b) provides in part:
Rule 41(b) has been interpreted to mean that a trial court has the inherent power to dismiss a cause for failure to comply with court rules or orders. See, e.g., Link v. Wabash R.R., 370 U.S. 626, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962); Ryder Int'l Corp. v. State, 439 So. 2d 162 (Ala.Civ.App.1983). For example, in Crutchfield v. Vogel, 233 Ala. 306, 171 So. 889 (1937), the Court held that the dismissal of an action to enjoin a foreclosure on the ground that the petitioner had failed to amend his petition in accordance with the trial court's order allowing 20 days within which to do so was "equivalent to a dismissal on the merits" and barred relitigation of the issues raised. See also Miller v. Local Mortgage Co., 459 So. 2d 918 (Ala.Civ.App.1984) (dismissal for failure to post bond after initial grant of order restraining foreclosure was adjudication on the merits); Savage v. Savage, 246 Ala. 389, 20 So. 2d 784 (1945) (dismissal for failure to amend within the time fixed by the court was an adjudication on the merits); Fife v. Pioneer Lumber Co., 237 Ala. 92, 185 So. 759 (1939) (dismissal for failure to amend within the time fixed by the court was an adjudication on the merits).
The United States Supreme Court pointed out the following:
Costello v. United States, 365 U.S. 265, 81 S. Ct. 534, 5 L. Ed. 2d 551 (1961). The majority states that "[a] dismissal based on mootness is not an adjudication on the merits," citing 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4436, at 344 (1981). Section 4436 is entitled "Lack or Refusal to Exercise Jurisdiction." Id. at 338. The majority focuses on the word "moot" in Judge Key's order, without considering why the action became "moot," that is, because the "[p]etitioner [did not file] required bond in any amount"; and the majority's reliance on cases dealing with a lack of jurisdiction or the refusal of a court to exercise jurisdiction are inapposite.
Even though the trial judge used the word "moot" in his order, he specifically stated that he was entering the dismissal because of petitioner's "not having filed required bond in any amount." Clearly, the dismissal by the trial judge was because of the Fergusons' failure to post the required bond, and it was the Fergusons' failure to post the bond that permitted the foreclosure to go forward, a foreclosure that the Fergusons now claim was "wrongful."
It would appear that the dismissal in this case on the ground of mootness was caused by the Fergusons' failure to post the required bond, and that the dismissal here comes within the provisions of Rule 41(b) "[f]or failure of the plaintiff to prosecute or to comply with ... any order of court."
The majority cites an Alaska Supreme Court case, Ostrow v. Higgins, 722 P.2d 936 (Alaska 1986), which admittedly holds that a dismissal based on the failure of a plaintiff to pursue a request for a preliminary injunction to prevent a foreclosure, which ultimately resulted in a dismissal of the plaintiff's action, was not an adjudication on the merits. Ostrow does not discuss the principle of law that a dismissal for want of prosecution is an adjudication on the merits, and insofar as it holds that an involuntary dismissal of an action because of the failure of a plaintiff to post a required bond should not be given res judicata effect, it should not be followed, because it is contrary to cases from this Court that deal with a plaintiff's failure to prosecute an action and is contrary to a holding in a Second Circuit Court of Appeals case that is based on strikingly similar operative facts.
In Browning Debenture Holders' Comm. v. DASA Corp., 605 F.2d 35 (2d Cir.1978), the plaintiffs had originally instituted a suit in federal district court in which they alleged that the bank, by its inaction, had violated its fiduciary obligations under an indenture agreement, as well as under a state statute. The action was originally dismissed in the district court because of the plaintiffs' failure to post a bond, the same reason stated by Judge Key in Ferguson I. The original plaintiffs in Browning subsequently sought to maintain a state claim based on many of the same operative facts that had been present in the first action, another fact that is strikingly similar to the facts here. The original defendants had filed their action in the district court to enjoin further prosecution of the state action on grounds of the preclusive effect of the original judgment. The district court enjoined prosecution of the state action; the Court of Appeals for the Second Circuit affirmed, holding as follows:
605 F.2d at 39. (Emphasis added except where indicated.) This case bears a striking resemblance to Browning, and even though the trial judge used the word "moot" in dismissing Ferguson I, it appears that the order of the trial judge in Ferguson I was obviously more than a dismissal of the application for the temporary restraining order, and was an adjudication on the merits within the meaning of Rule 41(b).[3]
Commercial Bank initially filed an answer in which it claimed affirmatively that this action was barred by res judicata. Later, it filed a motion for summary judgment, arguing that the issues had been adjudicated when the Fergusons suffered a dismissal of the Conecuh County action, and again arguing that the instant suit was barred by the doctrine of res judicata.[4]
The doctrine of res judicata was recently clarified by this Court in Garris v. South Alabama Production Credit Ass'n, 537 So. 2d 911 (Ala.1989):
537 So. 2d at 913-14.
If any one of these elements is not present, the doctrine of res judicata is *1242 inapplicable. Dominex at 1054; Fisher v. Space of Pensacola, Inc., 461 So. 2d 790, 791 (Ala.1984).
The only question presented here is whether the second and fourth elements have been met.
In Ferguson I, the Fergusons could have posted the reduced bond and pressed for a hearing on the motion for a preliminary injunction.[5] If they were unable to post the reduced bond, they could have amended the allegation of their verified complaint that "they stand ready, if necessary, to post a bond in an amount this Court deems appropriate" and could have asked the trial judge to enjoin the foreclosure until a declaration of rights could be made in the case; provided, of course, that the Fergusons gave security in a sum the court deemed proper under Rule 65(c), possibly even in an amount less than $30,000. Unquestionably, the Fergusons could have had litigated in Ferguson I all of the fraud claims they now raise in this action. In view of these facts, I do not believe that they should be permitted now to rely upon their own noncompliance with the court's requirement that they post a bond to bootstrap themselves into a position to relitigate the very same issues that they could have litigated in Ferguson I. Browning, supra.
The dismissal in this case was "on the merits" within the meaning of Rule 41(b). There was no initial bar to the trial court's reaching the merits of the issues presented in Ferguson I; Commercial Bank was put to the necessity of preparing a defense in that action; and that action was mooted only because of the Fergusons' "not having filed required bond in any amount." This construction of Rule 41(b) would seem to comport more closely to the mandate of Rule 1(c), Ala.R.Civ.P., that "[the] rules shall be construed to secure the just, speedy and inexpensive determination of every action."
STEAGALL, J., concurs.
[1] First Alabama Bancshares, Inc., had formed a subsidiary corporation, which was merged with Commercial Bank in 1985, thereby making the bank a wholly owned subsidiary corporation of First Alabama Bancshares, Inc. The name was changed to First Alabama Bank of Covington County and then the Bank was merged into First Alabama Bank, another wholly owned subsidiary of First Alabama Bancshares, Inc., effective August 16, 1985.
[2] Apparently, the foreclosure sale of the Conecuh County property on April 23, 1987, was defective, and the Bank began new foreclosure proceedings on the same property in June 1987.
[3] It is interesting to note that the judgment was filed at "Civil Final Record, Minute Book 18, Page 285," as shown on the face of the case action summary sheet in Ferguson I.
[4] The Defendants had previously raised the defense of "res judicata" as an affirmative defense to the action. They also filed a request that the Fergusons admit the verity of the Conecuh County proceedings. A copy of the document stating that defense and a copy of that request were filed in this action in support of the motion for summary judgment and were deemed admitted when the Fergusons did not respond to the request for admissions within the time permitted by the rules.
[5] In a brief filed in the trial court in this case in opposition to the motion for summary judgment, counsel for the Fergusons candidly admitted that he had asked for a hearing on the merits, and counsel stated in that brief, "Clearly, if the Court in the earlier proceeding had initially dismissed Plaintiffs' application for TRO, the Plaintiffs could have pressed on for a hearing on the merits for a preliminary injunction." | February 15, 1991 |
a848ec6c-a46d-466b-b515-325629a77cb6 | Friddle v. Raymond | 575 So. 2d 1038 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1038 (1991)
David W. FRIDDLE
v.
George A. RAYMOND.
89-998.
Supreme Court of Alabama.
January 11, 1991.
John T. Ennis, Sr. and E. Allen Dodd, Jr., Birmingham, for appellant.
*1039 K. Edward Sexton II and G. Daniel Evans, Birmingham, for appellee.
STEAGALL, Justice.
In 1983, David W. Friddle and George A. Raymond entered into a partnership for the purpose of practicing veterinary medicine under the name of Alford Avenue Veterinary Hospital, located in Birmingham, Alabama. On May 19, 1988, Friddle and Raymond entered into an agreement for the sale of Raymond's 50 per cent share in the partnership to Friddle. Friddle agreed to pay Raymond $70,481 under specified terms of payment extending over a three-year period, and the agreement was to take effect, retroactively, as of May 1, 1987. The agreement contained a covenant by which Raymond agreed not to compete with Friddle in the veterinary hospital business within six miles of Alford Avenue Veterinary Hospital for a period of three years. The agreement further provided that the future payments due to Raymond would be forfeited as liquidated damages should Raymond violate that covenant.
Friddle made several payments as required by the agreement, but when he learned that Raymond had practiced within the prohibited area after the execution of the agreement, Friddle ceased making payments and filed a suit seeking a judgment declaring the respective rights, responsibilities, and duties of the parties under the agreement. Raymond filed an answer, claiming that the covenant not to compete was void and unenforceable, and he counterclaimed for the past-due amounts pursuant to the agreement. Raymond then made a motion for summary judgment, and the trial court entered a summary judgment for Raymond on his counterclaim and resolved the declaratory judgment claim by ruling that veterinarians are professionals. Friddle then moved to vacate the summary judgment and attempted to amend his complaint to include a count alleging promissory fraud. Raymond then filed a motion to strike Friddle's amended complaint. On March 3, 1990, the trial court issued an order granting Raymond's motion to strike and denying Friddle's motion to vacate the summary judgment. Friddle appeals.
Although Friddle states in his brief that he is appealing from the trial court's order of March 3, 1990, he is actually appealing from the trial court's summary judgment in favor of Raymond. See Curtis v. Bill Byrd Automotive, Inc., [Ms. 89-1581, December 21, 1990] (Ala.1990). Therefore, our review of this case is governed by a familiar standard found in A.R. Civ.P. Rule 56. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Once the moving party has established 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; 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 the evidence offered by the moving party (Raymond) in support of its motion in the light most favorable to the nonmovant (Friddle). Hanners and Bass. With this standard in mind, we now address Friddle's contentions.
Friddle first contends that veterinarians are not "professionals" and are, therefore, not prohibited by § 8-1-1 from entering into restrictive covenants not to compete. Thus, the initial issue before us is whether the status of a "profession" is extended to the practice of veterinary medicine. It is undisputed that both parties to the contract are licensed veterinarians.
In Odess v. Taylor, 282 Ala. 389, 211 So. 2d 805 (Ala.1980), this Court stated several relevant factors to be considered in resolving the issue as to what constitutes a profession: professional training, skill, and experience required to perform certain services; delicate nature of the services offered; and the ability and need to make instantaneous decisions. In addition, the Court quoted the following excerpt from the late Dean Roscoe Pound's work, The *1040 Lawyer From Antiquity To Modern Times:
Odess v. Taylor, 282 Ala. at 396, 211 So. 2d at 812. In Odess, the Court held that physicians are professionals. This Court has also held that certified public accountants are professionals. Thompson v. Wiik, Reimer & Sweet, 391 So. 2d 1016 (Ala.1980); Gant v. Warr, 286 Ala. 387, 240 So. 2d 353 (1970).
Ala.Code 1975, §§ 34-29-60 through -94, governs the practice of veterinary medicine and provides specific qualifications required of licensed veterinarians, referred to as "professional qualifications." Considering the knowledge, skill, and education required of licensed veterinarians, as well as their duty to promote the public health, safety, and welfare of the State of Alabama, we consider it apparent that the legislature intended that persons licensed to participate in the practice of veterinary medicine be considered professionals. Section 34-29-62. It is likewise our view that persons who practice the science of veterinary medicine are members of a profession. Thus, we affirm the trial court's conclusion that veterinarians are professionals.
Having classified the practice of veterinary medicine as a profession and its members as professionals, we now address the merits of Friddle's claim regarding the enforceability of the restrictive covenant not to compete.
Section 8-1-1 provides the general rule that "[e]very contract by which anyone restricted from exercising a lawful profession, trade or business of any kind otherwise than is provided by this section is to that extent void." Although the remaining subsections of § 8-1-1 provide for exceptions to the general rule, including an exception for the sale of the good will of a business, this Court has stated on numerous occasions that a "professional" cannot fall within these statutory exceptions. Wyatt Safety Supply, Inc. v. Industrial Safety Products, Inc., 566 So. 2d 728, 730 (Ala.1990); Thompson v. Wiik, Reimer & Sweet, supra; Gant v. Warr, supra; Odess v. Taylor, supra. This point is further supported by the Court's observation that § 8-1-1 expresses the public policy of Alabama that contracts that place a restraint on trade are disfavored "`because they tend not only to deprive the public of efficient service but also tend to impoverish the individual.'" Wyatt Safety Supply, Inc., 566 So. 2d at 732 (quoting James S. Kemper & Co. Southeast, Inc. v. Cox & Associates, Inc., 434 So. 2d 1380, 1384 (Ala. 1983), citing Robinson v. Computer Servicenters, Inc., 346 So. 2d 940, 943 (Ala. 1977)).
Because veterinarians are professionals, they are not excluded from the general rule prohibiting covenants not to compete. Accordingly, the trial court properly ruled that the covenant not to compete is unenforceable.
Friddle's final contention is that the trial court erred in granting Raymond's motion to strike Friddle's amendment alleging promissory fraud. Friddle based his promissory fraud claim on the theory that at the time they entered into the agreement Raymond had no intention of abiding by its terms. He says he was intentionally deceived by Raymond.
Friddle attempted to amend his complaint after the trial court had entered a final judgment. His attempt was simply too late. See Government Street Lumber Co. v. AmSouth Bank, 553 So. 2d 68 (Ala. 1989), and cases cited therein. Under these facts, we find no abuse of discretion by the trial court in striking the amendment. Because we find no abuse of discretion by the trial court, we do not find it necessary to *1041 discuss the merits of the promissory fraud claim.
After careful review of the record, we conclude that the court properly entered the summary judgment in favor of Raymond and properly struck Friddle's amendment. Thus, the judgment is hereby affirmed.
AFFIRMED.
MADDOX, JONES, ALMON, SHORES, HOUSTON and KENNEDY, JJ., concur. | January 11, 1991 |
f64d6a4f-0fbf-4302-92fc-1e15099632c8 | Badie v. First Capital Mortg. Corp. | 576 So. 2d 191 | N/A | Alabama | Alabama Supreme Court | 576 So. 2d 191 (1991)
Gennie D. BADIE
v.
FIRST CAPITAL MORTGAGE CORPORATION.
89-1717.
Supreme Court of Alabama.
February 8, 1991.
*192 W. Eason Mitchell, Alabaster, for appellant.
David G. Hymer and T. Michael Brown of Bradley, Arant, Rose & White, Birmingham, for appellee.
HOUSTON, Justice.
The plaintiff, Gennie D. Badie, appeals from a summary judgment in favor of the defendant, First Capital Mortgage Corporation ("First Capital"), in this action to recover damages for breach of contract, negligent procurement of insurance, and fraud. We affirm.
The parties stipulated to the following facts:
Although the parties did not so stipulate, it appears to be undisputed that the premium for the credit life insurance was to be deducted and paid from the loan proceeds and that, pursuant to its standard operating procedures, First Capital conditioned its agreement to use a portion of the loan proceeds to pay for the insurance on its first receiving an affidavit from the plaintiff and her husband at the end of the three-day period following the loan closing confirming that they had not exercised *193 their option to cancel the loan. No such affidavit was received by First Capital.
Summary judgment was proper in this case if there was no genuine issue of material fact and First Capital was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on First Capital 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 it made that showing, then the burden shifted to the plaintiff to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against her. In determining whether there was a genuine issue of material fact, this Court must view the evidence in a light most favorable to the plaintiff, the nonmoving party, and must resolve all reasonable doubts against First Capital. Because this action was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence" rule. Ala.Code 1975, § 12-21-12. See Stafford v. Mississippi Valley Title Ins. Co., 569 So. 2d 720 (Ala.1990).
The plaintiff contends that the summary judgment on her breach of contract and negligent procurement of insurance claims was improper because, she says, a genuine issue of material fact existed as to whether First Capital agreed to have a credit life insurance policy on her husband in effect on the date of the loan closing.[1] She contends that the summary judgment on her fraud claim was improper because, she says, a genuine issue of material fact existed as to whether First Capital falsely represented to her at the closing that credit life insurance on her husband was in effect.
First Capital contends that the plaintiff neither alleged, nor submitted any evidence tending to show, that it agreed to have a credit life insurance policy on her husband in effect on the date of the closing. It argues that it was expressly prohibited by law from purchasing the insurance within the three-day rescission period and that, because the plaintiff's husband died within that period, it was entitled to a judgment as a matter of law on the breach of contract and negligent procurement of insurance claims. First Capital also argues that the summary judgment on the fraud claim was proper because, it says, the plaintiff neither alleged, nor submitted any evidence tending to show, that it made a false representation at the closing concerning the effective date of the credit life insurance.
For the following reasons, we agree with First Capital that it was entitled to a judgment as a matter of law on all three of the plaintiff's claims.
Count two of the plaintiff's complaint reads, in pertinent part, as follows:
(Emphasis added.)
As Count two of her complaint shows, the plaintiff alleged only that First Capital "promised to secure ... a life insurance *194 policy." She did not allege that First Capital agreed to have a policy in effect on the date of the closing. First Capital stipulated that it agreed to purchase credit life insurance on the plaintiff's husband. First Capital correctly points out, however, that it was prohibited by 12 C.F.R. § 226.23(c) from using any of the loan proceeds within the three-day rescission period to purchase the insurance. Section 226.23(c), which is part of Regulation Z, issued by the Board of Governors of the Federal Reserve System to implement the Federal Truth-in-Lending Act, provides, in pertinent part, as follows:
First Capital submitted evidence, which was not rebutted by the plaintiff, that its agreement to use a portion of the loan proceeds to pay the premium for the insurance was conditioned on its first receiving an affidavit from the plaintiff and her husband confirming that they had not exercised their right of rescission within the three-day period following the loan closing. Consequently, the undisputed facts showed that First Capital was under no obligation to have a life insurance policy on the plaintiff's husband in effect during the rescission period.
Because the undisputed facts showed that First Capital was under no contractual duty to have credit life insurance on the plaintiff's husband in effect during the three-day rescission period, First Capital was entitled to a judgment as a matter of law on the breach of contract claim. Likewise, because the undisputed facts also showed that First Capital was expressly prohibited under the law from purchasing the insurance within the three-day rescission period, a judgment as a matter of law was proper on the negligent procurement of insurance claim.
Count four of the plaintiff's complaint reads, in pertinent part, as follows:
(Emphasis added.)
As Count four of her complaint shows, the plaintiff alleged only that First Capital represented to her that "the life of Thomas Earl Badie would be adequately insured" and that that representation was false. She did not allege that First Capital represented to her at the closing that credit life insurance on her husband was in effect. As previously noted, First Capital stipulated that it agreed to purchase the insurance. Also, as previously noted, First Capital submitted evidence, which was not rebutted by the plaintiff, that its agreement to use a portion of the loan proceeds to pay the premium for the insurance was conditioned on its first receiving an affidavit from the plaintiff and her husband confirming that they had not exercised their right of rescission within the three-day period following the loan closing. Because the plaintiff neither alleged nor submitted any evidence tending to show that First Capital made a false representation concerning the effective date of the credit life insurance (i.e., that First Capital did not intend to obtain the insurance after the rescission period), the summary judgment on the *195 fraud claim was proper. See Benetton Services v. Benedot, Inc., 551 So. 2d 295 (Ala.1989), where this Court reiterated the well-established rule that if a fraud claim is based upon a promise to perform an act in the future, the plaintiff must prove that the promisor, at the time the promise was made, did not intend to perform.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] First Capital rescinded the loan agreement upon learning of the death of the plaintiff's husband, relieving the plaintiff of any liability under the note that she had executed at the closing. The plaintiff also sued First Capital for breach of contract in connection with its failure to disburse the loan proceeds to her. Summary judgment was entered in favor of First Capital on that claim; however, the plaintiff does not contest that aspect of the judgment on this appeal. | February 8, 1991 |
2785033d-7829-49bb-912f-98d77208e32b | Smith v. First Sav. of Louisiana, FSA | 575 So. 2d 1033 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1033 (1991)
Hugh V. SMITH, Jr.
v.
FIRST SAVINGS OF LOUISIANA, FSA, et al.
89-850.
Supreme Court of Alabama.
January 11, 1991.
*1034 Justice D. Smyth III of Robison & Belser, Montgomery, for appellant.
Charles W. Edmondson of Azar & Azar, Montgomery, for appellees.
JONES, Justice.
This action was commenced by First Savings of Louisiana, FSA ("First Savings"), and 48 individuals comprising the majority of the property owners in a subdivision development in Montgomery County, Alabama, against Hugh V. Smith, Jr., the original developer of the subdivision.
Challenging the trial court's rejection of his "covenants running with the land" argument, on which rejection the trial court based its summary judgment for the plaintiffs, Smith appeals. Because we hold that the covenants in issue, by their very nature, are personal and are not covenants running with the land, despite being explicitly characterized as the latter, we affirm.
During the early 1970's, defendant Hugh V. Smith, Jr., a Montgomery, Alabama, lawyer and real estate developer, was involved in the promotion, construction, development, and sale of a subdivision development known as Rolling Hills Golf And Racquet Club Plat No. 1 ("Rolling Hills"). (Although it is now known as "Oak Hills," the development will be referred to in this opinion as "Rolling Hills," as it was originally named.) Smith was the owner and principal developer of Rolling Hills during the initial promotion and development of the subdivision, which included a golf course, a tennis complex, and a country club.
On April 8, 1975, Smith and his wife recorded in the Montgomery County Probate Court a document containing covenants, easements, and restrictions pertaining to the Rolling Hills plat. Paragraph 10 of the recorded document, entitled "ARCHITECTURAL CONTROL," set out the guidelines for building construction and land use within the subdivision. Each guideline within Paragraph 10 specifically referred to an Architectural Control Committee as the authority for approving and disapproving actions authorized and governed by Paragraph 10. Paragraph 11 of the document reads: "MEMBERSHIP: The Architectural Control Committee is composed of Hugh V. Smith, Jr., or his designated representative."
Paragraph 12, "PROCEDURE," provides:
The introductory paragraph to a section of the document entitled "RESTRICTIONS" expressly states that the provisions contained therein are "to run with the land" and are to be binding on all parties for 25 years from the date of recording. According to the document, the initial 25year period is to be followed by automatic extensions of the restrictions and covenants for successive 10-year periods "unless an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part."
In 1985 Smith and his wife divested themselves of their remaining proprietary and pecuniary interests in any of the real property located within Rolling Hills. The unsold and undeveloped portion of the Rolling Hills subdivision has been since owned by several developers, whose ownership, in every instance, has resulted from a foreclosure sale (including the sale of Smith's final interest in the property when Rolling Hills was sold to Linton Road Company, Inc., in 1985, as well as the 1987 sale that gave First Savings its current ownership).
In September 1988, First Savings requested that Smith designate a successor to himself as the sole member of the Architectural Control Committee, because, although Smith no longer held any right, title, or interest in any of the Rolling Hills property, he was able to "dictate" the way in which the owners of Rolling Hills property could use and enjoy their property. Further, said First Savings, Smith's divesting himself of any pecuniary or proprietary interest in the Rolling Hills property was a "significant change in circumstances" that would allow a revision of the plat restriction concerning membership on the Rolling Hills Architectural Control Committee.
Smith refused to vacate his position as sole member of the Architectural Control Committee or to designate a successor, claiming (1) that he had fully performed all the duties and responsibilities required of him as sole member of the Architectural Control Committee; (2) that there was no obligation upon him to name a successor as the Architectural Control Committee; and (3) that the provision making him the sole member of the Architectural Control Committee was a covenant "running with the land," and was not a personal covenant.
Upon Smith's refusal, First Savings notified all Rolling Hills property owners that a public meeting would be held to discuss Smith's removal as the sole member of the Architectural Control Committee. At that meeting, a majority of the Rolling Hills property owners signed a petition approving the amendment of the Rolling Hills plat covenants and restrictions so as to allow resident Rolling Hills property owners to elect an Architectural Control Committee, and they agreed to begin the instant litigation. First Savings and a majority of the owners of developed lots in Rolling Hills filed a complaint for equitable and declaratory relief.
In Count I of their complaint, the plaintiffs alleged that Smith had relinquished all right, title, and interest in Rolling Hills; that, as the sole member of the Architectural Control Committee, Smith had performed the duties of that committee only on "isolated and rare instances"; that the plaintiffs were in need of a "regular participating entity who owns property in [Rolling Hills] to conduct the Architectural Control Committee"; and that Smith had refused to relinquish control of the committee or to name a successor to the committee. The plaintiffs then asked the trial court to reform the Rolling Hills restrictions and covenants so as to allow the creation of an Architectural Control Committee comprised of the present owners of Rolling Hills property.
In Count II of their complaint, the plaintiffs contended that Smith's control of the *1036 Architectural Control Committee amounted to a restriction "against the free use and enjoyment" of their property. The plaintiffs further claimed that the provision establishing Smith as the sole member of the Architectural Control Committee was a personal covenant and thus not a covenant "running with the land." The plaintiffs then stated that as a result of Smith's relinquishing his interest in Rolling Hills while retaining control of the Architectural Control Committee, the plaintiffs were "in doubt as to the applicability" of the plat restriction establishing the membership of the Architectural Control Committee. Based on these allegations, the plaintiffs asked essentially that the trial court declare covenant number 11 (membership of the Architectural Control Committee) to be a personal covenant between Smith and his immediate grantees and not a covenant running with the land.
In his answer, Smith controverted the affirmative allegations made in the complaint, raised various affirmative defenses, and asserted a counterclaim for recognition of a particular property interest in Rolling Hills or, alternatively, for monetary damages for First Savings' refusal to honor that interest. Both Smith and the plaintiffs moved for summary judgment. The trial court granted the plaintiffs' motion for summary judgment, both as to their complaint and as to Smith's counterclaim, and entered a final judgment against Smith. Smith appeals.
Smith first argues that the circuit court lacked jurisdiction to hear and decide the plaintiffs' claims, because the plaintiffs, says Smith, failed to follow the procedure set out in Ala.Code 1975, § 35-2-53, and because the plaintiffs "apparently" incorrectly relied on § 35-2-58 as the authority for their claims. We find, however, that neither § 35-2-58 ("Vacation and annulment of map or plat, etc., by circuit courtJurisdiction; parties") nor § 35-2-53 ("Vacation of plat or map by owner of lands") is applicable to the instant case.
Indeed, unlike the plaintiffs in the cases cited by Smith in support of his contention that the trial court lacked jurisdiction, the plaintiffs in this case do not seek to vacate or annul the plat establishing Rolling Hills or any portion of the plat as it relates to and controls the legal description and physical maintenance of the subdivision. Rather, the instant litigation was brought for "equitable and declaratory relief" in the form of the trial court's construction, interpretation, application, and, if necessary, amendment of one provision relating to the membership of the Rolling Hills Architectural Control Committee. We hold, therefore, that the circuit court had jurisdiction of the plaintiffs' claims.
Smith also contends that the summary judgment for the plaintiffs was improper because, he says, the plaintiffs produced no testimony or evidence to controvert the affidavits submitted by Smith in support of his motion for summary judgment. In those affidavits, four Rolling Hills lot owners stated that Smith had satisfactorily performed all of the required duties and obligations of the Architectural Control Committee and that they wished for Smith to remain in the position of sole member of that committee.
We find, however, that whether the testimony contained in those affidavits is controverted or not is of no significance to the issue of the propriety of the summary judgment. The affidavit testimony regarding Smith's performance as sole member of the Architectural Control Committee has no relevance to the plaintiffs' motion for summary judgment, which was based upon reasons for replacing Smith other than his performance. The plaintiffs raised no issue as to whether Smith had properly carried out the function of the Architectural Control Committee. Rather, the plaintiffs based their contention of the impropriety of Smith's remaining in control of the Architectural Control Committee after a significant change in circumstances (i.e., Smith's divesting himself of any right, title, and interest in the Rolling Hills realty) that, the *1037 plaintiffs allege, made Smith's continued control of the use and development of Rolling Hills a violation of both public policy and the plaintiffs' rights to freely use and enjoy their own property.
Smith next contends that the express language of the Rolling Hills plat requires that no amendment of the plat take place until the expiration of 25 years from the date of the recording (April 8, 1975), and that this time restriction is automatically extended for successive 10-year periods after the expiration of the first 25-year period unless a majority of the Rolling Hills owners, during one of the 10-year periods, agrees to a change in the covenants and restrictions. Smith concludes by pointing out case law that, according to his contention, supports the validity of the challenged restrictive covenant. See, e.g., Hill v. Rice, 505 So. 2d 382 (Ala.1987); and White v. Lewis, 253 Ark. 476, 487 S.W.2d 615 (1972).
The facts of the instant case, however, present a novel question, the precise answer to which does not appear in our case law: Does the established law of covenants and restrictions apply where, as here, the change sought to be made relates solely to the propriety of the membership of a subdivision's architectural control committee (where such a change in membership would not affect a tangible or physical attribute of the real property described and controlled by the recorded plat) and the possible replacement of a member thereof, who no longer retains any interest in the subdivision?
In answer to this question, we set out the holding of the trial court, in pertinent part:
We find no basis for reversal of the trial court's judgment on these issues. See, also, Boyle v. Lake Forest Property Owners Association, Inc., 538 F. Supp. 765 (S.D. Ala.1982); and Laney v. Early, 292 Ala. 227, 292 So. 2d 103 (1974) (and the cases cited therein).
Not specifically addressed in the trial court's judgment is Smith's assertion of the affirmative defenses of waiver, laches, estoppel, and the applicable statute of limitations. Smith claims that the equitable doctrines of waiver and laches defeat the plaintiffs' claim because the plaintiffs delayed 14 years before bringing this action for Smith's removal as sole member of the Architectural Control Committee. Further, says Smith, under Ala.Code 1975, § 6-2-34(6) ("Actions for the use and occupation of land"), the plaintiffs' action is barred by the applicable six-year statute of limitations.
We hold that the facts of the instant case do not invoke the application of § 6-2-34(6), and that the doctrine of laches does not bar this action, because Smith has not shown that the delay in bringing this action resulted in any prejudice to him. See Darden v. Meadows, 259 Ala. 676, 68 So. 2d 709 (1953).
Because we find no basis for reversal, the judgment of the trial court is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS and HOUSTON, JJ., concur. | January 11, 1991 |
4ef2665e-3825-406d-906c-6a62a3a5c16e | State v. BAY TOWING AND DREDGING CO. | 85 So. 2d 890 | N/A | Alabama | Alabama Supreme Court | 85 So. 2d 890 (1955)
STATE of Alabama
v.
BAY TOWING AND DREDGING CO., Inc.
1 Div. 649.
Supreme Court of Alabama.
December 22, 1955.
Rehearing Denied March 22, 1956.
*891 John Patterson, Atty. Gen., and Willard W. Livingston, Jas. R. Payne and Wm. H. Burton, Jr., Asst. Attys. Gen., for appellant.
Vickers & Thornton, Mobile, for appellee.
Burr, McKamy, Moore & Thomas and Frontis H. Moore, Birmingham, amici curiae.
MERRILL, Justice.
The taxpayer, appellee here and appellant below, took an appeal to the Circuit Court of Mobile County, in Equity, from a final assessment of sales tax pursuant to the provisions of Title 51, Sec. 140, Code of 1940. From a decree in favor of the taxpayer, the State of Alabama appeals.
The agreed statement of facts shows that the taxpayer is engaged in the business of dredging dead oyster shells from beneath Mobile Bay and selling and delivering said shells. It used six tugs or tugboats to tow barges in Mobile Bay and elsewhere. The assessment by the State Department of Revenue was for sales tax on purchases in Alabama of fuel and supplies used or consumed aboard each such tug. Three of the tugs operated only within the territorial waters of the State of Alabama, principally in Mobile Bay, and the assessment was paid as to them. But the taxpayer appealed from the assessment on the fuel and supplies used on the other three tugs, because they towed barges from Mobile westward as far as Baton Rouge, Louisiana, and easterly to Carrabelle, Florida over the route of the Intracoastal Waterway.
The taxpayer claims that it is exempt from the tax on the fuel and supplies consumed aboard these latter three tugs under the provisions of Code 1940, Title 51, Sec. 755(r) as amended, which reads in part:
The question for our determination is the proper construction of the phrase "ships plying on the high seas".
Without going into various and technical definitions, we hold that the word "ships" as used in this statute includes the tugs or tugboats used by the taxpayer here. See 39 Words and Phrases, Ship, p. 255.
The real question is to determine what the legislature meant by the use of the term "high seas".
The dictionary (Websteras quoted in United States v. Rodgers, 150 U.S. 249, 14 S. Ct. 109, 117, 37 L.Ed. 1071) definition is: "`high seas, (law,) the open sea; the part of the ocean not in the territorial waters of any particular sovereignty, usually distant three miles or more from the coast line.'"
The Congress of the United States has recognized a distinction between the high seas and inland waterways. In 33 U.S.C.A. § 151 we find: "Demarcation of high seas lines. The Secretary of Commerce is hereby authorized, empowered and directed from time to time to designate and define * * * the lines dividing the high seas from rivers, harbors and inland waters." And in subsection (12) of 46 U.S.C.A. § 224a, we read: "the term `high seas' means all the waters outside the line dividing the inland waters from the high seas, as defined in section 151 of Title 33".
*892 Also in 46 U.S.C.A. § 88 we find: "* * * By `coastwise voyage by sea' is meant a voyage on which a vessel in the usual course of her employment proceeds from one port or place in the United States or her possessions to another port or place in the United States or her possessions and passes outside the line dividing inland waters from the high seas, as defined in section 151 of Title 33."
The entire Intracoastal Waterway here involved is routed through bays, canals, rivers, or sounds and is protected by the mainland or rows of islands from the open gulf. True, there are straits or passes between the ends of the islands, viz., Dauphin Island and Petit Bois Island, but the waterway is still within sheltered or protected waters.
In our case of State v. Thames, Jackson, Harris Co., 259 Ala. 471, 66 So. 2d 733, 735, we quoted from several cases relative to rules of construction of taxing statutes. Without again citing the cases there mentioned, we refer to the rules that (1) taxation is the rule and exemption the exception, and exemptions ought not to be deduced from language of doubtful import; (2) "`"Courts can only learn what Legislature intended by what it has said, and have no right to stray into mazes of conjecture or search for an imaginary purpose, in construing statute"'"; and (3) the general rule where the language of the Statute is unambiguous, the clearly expressed intent must be given effect, and there is no room for construction.
If the legislature had intended to exempt these tugs and similar craft from the provisions of the sales tax it could have simply omitted "plying on the high seas" leaving the statute to read "* * * aboard ships either in intercoastal trade between ports in the State of Alabama and ports in other states * * *" etc. It requires no strained construction to say that the legislature meant ships "plying on the high seas" when it inserted that phrase into the statute; and we are clear to the conclusion that "high seas" does not include inland waters of a state or that part of the Intracoastal Waterway between the Mississippi River and Carrabelle, Florida.
The decree of the lower court is reversed and the cause is remanded with directions to that court to enter a decree denying the relief sought by the appellant in that court, the appellee here.
Reversed and remanded with directions.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | December 22, 1955 |
e7957d05-3d05-41d8-bf6e-509ddec78324 | Lynch v. Green Tree Acceptance, Inc. | 575 So. 2d 1068 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1068 (1991)
Grayham LYNCH
v.
GREEN TREE ACCEPTANCE, INC., and Robert E. Moorer.
89-1297.
Supreme Court of Alabama.
February 1, 1991.
*1069 James T. Baxter III of Berry, Ables, Tatum, Little & Baxter, Huntsville, for appellant.
Joan-Marie Pace of Lanier, Ford, Shaver & Payne, Huntsville, for appellee Green Tree Acceptance, Inc.
John O. Cates of Sadler, Sullivan, Herring and Sharp, Huntsville, for appellee Robert E. Moorer.
ADAMS, Justice.
In this malicious prosecution case, Grayham Lynch sued Green Tree Acceptance, Inc., and its attorney, Robert Moorer, alleging that a previous cause of action filed by Green Tree Acceptance against Lynch for conversion was filed maliciously and without probable cause. The court entered a summary judgment for the defendants; the plaintiff appeals.
The controversy in this case arises out of the following facts:
James and Jackie Hesterley purchased a mobile home in 1984, and signed a security agreement with Adventure Homes, Inc., of Cullman; their account was subsequently assigned to Green Tree Acceptance, which perfected its interest. In 1984, the Hesterleys rented a space from Grayham Lynch for their mobile home in Lynch's mobile home park. After having made eight payments on the trailer, however, the Hesterleys defaulted on their payments to Green Tree and on their rental payments to Lynch. Lynch, who needed the space where their mobile home was parked to rent to a paying tenant, had the Hesterleys' mobile home, with their permission, moved to his storage lot, which had no security, but was located within sight of a busy highway. Green Tree Acceptance thereafter learned that the mobile home had been moved. It inspected the mobile home and found that the air conditioner that had been on it when it was sold was no longer there. Green Tree then made arrangements for the mobile home to be picked up by the dealership that had sold it to the Hesterleys. Before it was picked up, however, it disappeared.
At the outset, we note the following:
Eidson v. Olin Corp., 527 So. 2d 1283, 1284 (Ala.1988). The only element at issue in this case is whether Green Tree Acceptance and its attorney had probable cause to initiate the original suit against Lynch.
Eidson at 1285 (emphasis added in Eidson).
Green Tree claims that its suit was filed on the advice of its attorney, Robert Moorer, and that it and Moorer had reason to assume that Lynch had something to do with the disappearance of the mobile home and/or the air conditioner.
Hanson v. Couch, 360 So. 2d 942, 945 (Ala. 1978). Although this issue is generally one for the jury, where there is no dispute as to the facts given to the attorney the issue is to be decided by the trial court. See King v. Farrell, 55 Ala.App. 147, 314 So. 2d 68, 71 (Civ.App.1975).
Considering the facts that he had before him at the time the initial suit was filed, it is clear to us that Green Tree's attorney had probable cause to initiate the suit against Lynch.[1] First, the attorney knew that when Lynch learned of the difficulties that the Hesterleys were having in making their payments, Lynch questioned Green Tree about the possibility of purchasing some of the appliances in the mobile home. Subsequently, the air conditioning unit on the mobile home turned up missing after the mobile home was moved to the storage lot; Green Tree was told by Lynch's son that the air conditioning unit was located behind the office of the mobile home park, which was owned and operated by Lynch. In addition, Lynch had moved the mobile home to a storage lot where there was no security for the mobile home and had done so without the permission of Green Tree. These facts, considered together, constitute probable cause for the filing of the initial suit by Green Tree against Lynch. The mere fact that summary judgment was entered for Lynch in that suit does not mean there was no probable cause to file the suit in the first place; otherwise, every defendant who gets a summary judgment in a case would be entitled thereafter to sue for malicious prosecution.
For the foregoing reasons, the judgment is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur.
[1] Lynch argues in his brief that the affidavits relied on by Green Tree in its motion for summary judgment were improperly before the trial court. This argument was raised for the first time on appeal and, therefore, will not be considered by this Court. | February 1, 1991 |
87f36bac-5c8d-41fa-a16a-469e7bc54674 | Chambers v. State | 84 So. 2d 342 | N/A | Alabama | Alabama Supreme Court | 84 So. 2d 342 (1955)
Sonny CHAMBERS, alias Sonny Boy,
v.
STATE of Alabama.
4 Div. 816.
Supreme Court of Alabama.
December 22, 1955.
*343 Roy L. Smith and Smith & Smith, Phenix City, for appellant.
John Patterson, Atty. Gen., and J. Noel Baker, Asst. Atty. Gen., for the State.
MERRILL, Justice.
Appellant was tried in the Circuit Court of Russell County under an indictment charging first degree murder. He was convicted of second degree murder and sentenced to 25 years in prison. From the judgment of conviction and the judgment overruling his motion for a new trial, he appeals.
The physical encounter between appellant and the deceased, in which the deceased sustained knife wounds which caused his death, took place in a drinking place in Phenix City. There were several eyewitnesses to the affair. The evidence as to the particulars of the difficulty is in dispute. Evidence for the state was to the effect that there was no argument between appellant and the deceased prior to the fatal encounter and that the attack made on the deceased by the appellant was unprovoked. The appellant adduced evidence to the effect that he had done nothing to provoke the difficulty and that he killed the deceased in self-defense.
The appellant took the stand to testify in his own behalf. On his cross-examination by the solicitor, the following transpired:
"(Exception by Mr. Smith.)
"The Court: I will overrule your objection.
"(Exception by Mr. Smith)"
The appellant contends that the allowance of this testimony was error as it was an attempt to prove the commission of the present offense by going into the particulars of another offense having no bearing on or relation to the instant case.
We are cognizant of the line of cases holding that in prosecution for a particular offense, evidence, as to the guilt of the accused of another distinct offense, unconnected with the one charged, is not admissible as substantive evidence to prove guilt of the offense charged. 6 Ala. Digest, Crim. Law. However, when *344 the accused takes the stand to testify in his own behalf, he does so in a dual capacity(1) as the accused and (2) as a witness. In his capacity as a witness his credibility may be impeached in the same way or ways in which the credibility of any other witness may be impeached. Stone v. State, 208 Ala. 50, 93 So. 706; Pitts v. State, 261 Ala. 314, 74 So. 2d 232. "A defendant, who testifies for himself as a witness, may be impeached in the same manner as other witnesses, by showing that he has been convicted of crime involving moral turpitude, or that he has made contradictory statements, or that he is a person of bad character." Carpenter v. State, 193 Ala. 51, 69 So. 531, 532; Gast v. State, 232 Ala. 307, 167 So. 554; Vaughn v. State, 235 Ala. 80, 177 So. 553; Title 7, § 435, Code 1940.
We think the matter complained of was properly allowed as an attack on the credibility of the witness for the purpose of impeaching his testimony. We are strengthened in our conclusion that no error prejudicial to appellant was committed by a portion of the oral charge to the jury wherein the lower court stated:
The appellant requested several written charges which were refused by the lower court. Charge 1 was a directed verdict for appellant. Charge 10 was in effect a directed verdict for appellant for first degree murder and charge 11 a directed verdict as to second degree murder. These charges were properly refused. The evidence was in conflict thereby causing a jury question as to the guilt or innocence of the appellant.
Charges 1-A and 6 are substantially the same charges. Both these charges were properly refused. While it is true that in Harris v. State, 96 Ala. 24, 11 So. 255 and Chaney v. State, 178 Ala. 44, 59 So. 604, charges substantially identical to these were held good, in those cases the evidence was without dispute that the defendant was free from fault in bringing on the difficulty and was under no duty to retreat. Such a factual situation does not exist here. For cases holding that such charges were properly refused, see Favors v. State, 32 Ala.App. 139, 22 So. 2d 914 (Charge 23); Abercrombie v. State, 33 Ala.App. 581, 36 So. 2d 111 (Charge 12); Brown v. State, 33 Ala.App. 97, 31 So. 2d 670 (Charge 14).
Charge 4 was discussed at length in the case of Walker v. State, 220 Ala. 544, 126 So. 848, 852. It was there stated that "* * * this principle of law is applicable and to be given in charge * * * where the evidence is such, as a matter of law, the defendant is under no duty to retreat." The evidence in the instant case falls short of showing that appellant was under no duty to retreat and the charge was properly refused. Likewise, charge 7 was properly refused as it was not predicated on a belief by the jury that the appellant was free from fault in bringing on the difficulty and that the appellant was under no duty to retreat.
Charge 5 was fairly and adequately covered by the judge in his oral charge to the jury.
The matters we have treated above are the same as those which were assigned as grounds for the motion for a new trial. It follows that the action of the lower court *345 in overruling the motion for a new trial should be sustained.
A careful consideration of the entire record fails to disclose the existence of any reversible error. The judgment is therefore affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | December 22, 1955 |
8298e6c4-bf77-4aaf-9a30-aa387fcc88a7 | West Point Manufacturing Co. v. Bennett | 83 So. 2d 303 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 303 (1955)
WEST POINT MANUFACTURING CO.
v.
William P. BENNETT.
5 Div. 626.
Supreme Court of Alabama.
November 10, 1955.
*304 Denson & Denson and Yetta G. Samford, Jr., Opelika, for appellant.
Lewis H. Hamner, Jr., Roanoke, for appellee.
PER CURIAM.
This controversy arose under the Workmen's Compensation Law, and was begun by a verified complaint as authorized by section 304, Title 26, Code. There was a judgment for plaintiff and defendant has brought it here by certiorari as authorized.
The issues were made by the verified complaint and verified answer to it. There was no occasion to prove the allegations *305 of the complaint which were admitted in the answer. The judgment "shall contain a statement of the law and facts and conclusions as determined by said judge". The foregoing is provided for in section 304, supra. The finding is mandatory, and a judgment for plaintiff or defendant without it must be reversed. Alabama Textile Products Corp. v. Grantham, Ala., 82 So. 2d 204; Diamond Coal Co. v. White, 262 Ala. 112, 77 So. 2d 372; Jackson v. Tennessee Coal, Iron & R. R. Co., 259 Ala. 85, 65 So. 2d 167; Bass v. Cowikee Mills, 257 Ala. 280, 58 So. 2d 589; Richardson Lumber Co. v. Pounders, 254 Ala. 285, 48 So. 2d 228.
It is said in Bryant v. Central Foundry Co., 217 Ala. 332, 116 So. 345, that there shall be "a determination by the trial judge of the facts established by the evidence, responsive to the issues presented, with the conclusion as to whether the facts found establish or fail to establish the liability asserted; and there should be a finding of every fact necessary to sustain the judgment of the court". (Italics supplied.)
We interpret the above as not requiring a finding of what is admitted in the answer. As to that there is no issue. But the finding should include all the other facts necessary to sustain a judgment. A recital of the evidence is not a finding by the court. It must result as a matter of law that the judgment was properly rendered on the facts found. When the trial court's finding is merely meager or omissive, this Court will look to the evidence to see if the judgment can be sustained on any reasonable view of it. Alabama Textile Products Corp. v. Grantham, supra; Ex parte Louisville & Nashville R. R. Co., 208 Ala. 216, 94 So. 289.
The only findings of fact by the trial court are as follows:
The facts necessary to support the judgment are:
1. That both parties are subject to the Workmen's Compensation Law, Sections 263, 270, Title 26, Code.
2. That a personal injury was sustained by plaintiff.
3. It was caused by an accident.
4. It arose out of his employment.
5. And in the course of his employment (section 270, supra).
6. (The amount awarded was for a permanent and total disability), so that he must have suffered such an injury. Section 279(E) 3, as amended, Title 26, pocket part, Code.
7. And facts showing that his weekly earnings justified an award of $23 weekly for four hundred weeks. Section 279(E) 3, as amended, supra.
The complaint alleges that defendant was subject to the Workmen's Compensation Law. This is admitted in the answer. We think the finding of the trial court in connection with the evidence sufficiently shows that plaintiff suffered an injury on the date named; that it was caused *306 by an accident; that the injury arose out of and in the course of his employment; and that it caused a total and permanent disability of plaintiff. Alabama Textile Products Corp. v. Grantham, supra.
The complaint also alleges that plaintiff was receiving a salary of $60 a week at the time of his injury. The answer denies that but alleges he was receiving $42.50 weekly. The court allowed the maximum of $23 weekly, which is within fifty-five per cent of the earnings which defendant admitted plaintiff was receiving. Section 279(E) 3, as amended, supra. The pleadings and findings are sufficient to support a judgment for the amount fixed in it.
"Conclusions of fact must be based on legal evidence; but, where there is any legal evidence to support the finding, such finding is conclusive, and no technical questions as to the admissibility of evidence will be here considered." Ex parte Sloss-Sheffield Steel & Iron Co., 207 Ala. 219, 92 So. 458, 459; Ex parte Louisville & Nashville R. R. Co., 208 Ala. 216(4), 94 So. 289; Ex parte Jagger Coal Co., 211 Ala. 11, 99 So. 99; Ex parte Woodward Iron Co., 211 Ala. 111(9), 99 So. 649; Majors v. Jackson Lumber Co., 244 Ala. 418, 13 So. 2d 885; Malbis Bakery Co. v. Collins, 245 Ala. 84, 15 So. 2d 705; Houser v. Young, 247 Ala. 562, 25 So. 2d 421.
The parties are entitled to have before this Court the evidence which was submitted in the trial court so that it may determine whether there was any legal evidence to support the finding and judgment, when a contrary contention is made. Ex parte Louisville & Nashville R. R. Co., supra; Ex parte Sloss-Sheffield Steel & Iron Co., supra; Alabama Concrete Pipe Co. v. Berry, 226 Ala. 204, 146 So. 271; Bass v. Cowikee Mills, 257 Ala. 280, 58 So. 2d 589. The court reporter's certified copy of the proceedings, including the evidence, is a part of the record, and it shows legal evidence to support the finding of the court.
Those assignments of error which relate to the objections made to evidence admitted by the trial court are not reviewable in this proceeding since there was sufficient legal evidence from which the conclusion reached could be drawn.
The judgment should be affirmed.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Judgment affirmed.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur. | November 10, 1955 |
84ba2dc4-17cd-49a8-bcb5-346ae9196d75 | Bush v. ALA. FARM BUR. MUT. CAS. INS. | 576 So. 2d 175 | N/A | Alabama | Alabama Supreme Court | 576 So. 2d 175 (1991)
Keith Lamar BUSH and Bonnie Dukes Bush
v.
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC.
89-589.
Supreme Court of Alabama.
February 1, 1991.
*176 Charles H. Volz III of Volz and Volz, Montgomery, for appellants.
Michael B. Beers of Beers, Anderson, Jackson & Smith, Montgomery, for appellee.
SHORES, Justice.
Alabama Farm Bureau Mutual Casualty Insurance Company, Inc., sought a judgment declaring that it had no obligation to pay the claim of Keith Lamar Bush and Bonnie Dukes Bush made under a homeowner's policy. It claimed that the Bushes' alleged loss was the result of arson. After a trial on the merits, the jury found in favor of Farm Bureau. The Bushes appeal from the judgment entered on that verdict. We affirm.
On April 25, 1986, a house in Lowndes County, Alabama, belonging to the Bushes, was destroyed by fire. There were several fires at the Bush house that dayone at 8:00 a.m., one at 9:00 a.m., one at 11:00 a.m., and the 7:30 p.m. fire that destroyed the house. On that date, the Bushes had a homeowner's insurance policy with Farm Bureau that was in full force and effect.
After the fire, the Bushes submitted a sworn proof of loss statement to Farm Bureau. Farm Bureau investigated the claim and then filed its declaratory judgment action. The Bushes filed a counterclaim alleging fraud and breach of contract for failure to pay benefits under the policy.[1] Farm Bureau asserted three affirmative defenses to the counterclaim: that the Bushes (1) caused the fire that destroyed the insured premises (arson); (2) intentionally misrepresented or concealed material *177 facts in their sworn proof of loss statement; and (3) made material misrepresentations of fact in the application for insurance concerning previous insurance loss and policy history.[2] The case went to trial on August 21, 1989. Following the selection of the jury, Farm Bureau filed a motion in limine, seeking an order preventing the presentation of any evidence pertaining to the defense that it had deleted from its complaint. This motion was granted by the trial judge.
The case proceeded to trial upon Farm Bureau's claims of arson and misrepresentation after the loss, and upon the Bushes' counterclaims alleging breach of contract, fraud, fraudulent and deceitful conduct, bad faith failure to pay an insurance claim, and outrage. (R.T. 911.)
At the close of Farm Bureau's evidence, the Bushes filed a motion for a directed verdict as to the claims alleging arson and misrepresentation after the loss; it was denied by the trial court. Farm Bureau filed a motion for a directed verdict on all counts of its complaint and on the Bushes' counterclaim. The trial court granted Farm Bureau's motion for directed verdict solely on the Bushes' claim alleging bad faith.
At the close of all the evidence, the Bushes again filed a motion for a directed verdict as to Farm Bureau's claims of arson and misrepresentation after the loss; that motion was denied. Farm Bureau filed a motion for a directed verdict as to the claim of outrage, and it was granted.
Thus, the case went to the jury on two theories asserted by Farm Bureau, arson and misrepresentation in the proof of loss statement, and on the Bushes' claims of breach of contract and fraudulent and deceitful conduct. (R.T. 1595.) The jury returned a general verdict in favor of Farm Bureau on both the complaint and the counterclaim. The Bushes filed a motion for JNOV or in the alternative for a new trial, which was denied by the trial court. This appeal followed.
The first issue presented is whether the trial court erred in granting Farm Bureau's motion in limine. Farm Bureau's motion sought to prevent the offering of any evidence relating to the alleged misrepresentation in the Bushes' application of insurance that Farm Bureau had deleted as a defense. In granting the motion in limine, the trial judge stated: "Well, the Court feels that the testimony regarding that would be confusing to the jury and would not add or take away from the case of each party and for that reason the motion is going to be granted. Let's not have a mistrial by bringing this out." (T.R. 57-58.) The Bushes now contend that such evidence constituted the basis of their claims and that the trial court's order was a prohibitive, absolute order and was therefore in error.
We recognize that the trial court has broad discretion in evidentiary matters. The general rule was stated in State v. Askew, 455 So. 2d 36 (Ala.Civ.App.1984), citing C. Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala.L.Rev. 1 (1981), as follows:
455 So. 2d at 37 (Ala.Civ.App.1984). In Perry v. Brakefield, 534 So. 2d 602, 607 (Ala. *178 1988), this Court cited Professor Gamble and stated: "The clear holding of these cases is that unless the trial court's ruling on the motion in limine is absolute or unconditional, the ruling does not preserve the issue for appeal." 534 So. 2d at 606.
There is no evidence that the ruling on the motion in limine was absolute or unconditional. While the trial judge did warn counsel not to cause a mistrial, he did not prohibit counsel from making an offer of proof of the excluded evidence. The record does not reflect that counsel for the Bushes made an offer of proof of any excluded testimony during the course of the trial. We find no error on the part of the trial judge in granting the motion.
The Bushes next contend that the trial court erred in allowing Tommy W. Shirley, a witness for Farm Bureau, to testify concerning the results of a test performed by Forensic and Scientific Testing Chemical Laboratory of Atlanta, Georgia, and to state his opinion, based thereon, as to the cause and origin of the fire. The Bushes contend that there was a break in the chain of custody of the debris samples from the fire that were tested by that laboratory. Shirley admitted that the samples of debris were shipped by United Parcel Service to the laboratory, not carried by him personally.
The Bushes cite Ex parte Williams, 548 So. 2d 518, 520 (Ala.1989), a criminal case in which this Court stated that the reason for requiring that the chain of custody be shown is to establish to a reasonable probability that there has been no tampering with the evidence. However, Williams also states that the evidence need not negate the most remote possibility of substitution, alteration, or tampering with the evidence, but rather must prove to a reasonable probability that the item is the same as, and not substantially different from, the evidence as it existed at the beginning of the chain. 548 So. 2d 518, 520.
In this case, Shirley testified at length as to the manner in which he collected, sealed, stored, and shipped the fire debris in paint cans via United Parcel Service; and he testified that his actions in this regard were standard procedure. Michael Byron, who worked at the laboratory in Atlanta, testified that he received these cans, properly sealed and labeled, from United Parcel Service. There is no evidence of any substitution, alteration, or tampering. The trial court did not err in allowing the testimony.
The next issue is whether the trial court erred in directing a verdict for Farm Bureau and against the Bushes on their bad faith counterclaim at the close of Farm Bureau's evidence. The Bushes argue that the directed verdict was premature, because they had not yet had an opportunity to present their case.
We outlined the elements that a plaintiff must prove in a bad faith case in National Security Fire & Casualty Co. v. Bowen, 417 So. 2d 179, 183 (Ala.1982). These elements have been recited again in National Sav. Life Ins. Co. v. Dutton, 419 So. 2d 1357, 1361 (Ala.1982), and Mueller v. Hartford Ins. Co. of Alabama, 475 So. 2d 554, 556 (Ala.1985), and in other cases. One of these elements is "the absence of any reasonably legitimate or arguable reason for that refusal [to pay the claim] (the absence of a debatable reason)."
We have said that the plaintiff has a heavy burden in proving a bad faith nonpayment. "In short, plaintiff must go beyond a mere showing of nonpayment and prove a bad faith nonpayment, a nonpayment without any reasonable ground for dispute. Or, stated differently, the plaintiff must show that the insurance company had no legal or factual defense to the insurance claim." National Sav. Life Ins. Co. v. Dutton, 419 So. 2d 1357, 1361 (Ala.1982), quoting National Security Fire & Casualty Co. v. Bowen, 417 So. 2d 179 (Ala.1982).
In this declaratory judgment action Farm Bureau proceeded first with its evidence, because of the nature of the action. The evidence before the trial court at the close of Farm Bureau's evidence presented *179 a reasonably legitimate or arguable reason for the denial of the claim; thus the tort claim could not go to the jury. As we noted in National Sav. Life Ins. Co. v. Dutton, "Ordinarily, if the evidence produced by either side creates a fact issue with regard to the validity of the claim and, thus, the legitimacy of the denial thereof, the tort claim must fail and should not be submitted to the jury." 419 So. 2d 1357 at 1362. Therefore, the trial court did not err in directing a verdict against the Bushes as to the tort of bad faith.
The next issue is whether there was sufficient evidence on the defense of arson, as that defense related to the claims of both Keith and Bonnie Bush, to prevail against the Bushs' motions for directed verdict, JNOV, and a new trial.
The evidence necessary to sustain the defense of arson has been described as follows:
Great Southwest Fire Insurance Co. v. Stone, 402 So. 2d 899, 900 (Ala.1981). In Great Southwest, we were quoting a statement from the brief of the insured. In Mueller v. Hartford Ins. Co., 475 So. 2d 554, 557 (Ala.1985), we quoted that statement again and approved it as "a correct statement of the law." The Bushes cite this language in an attempt to persuade this Court that the company must prove arson beyond a reasonable doubt. The Bushes are in error. An arson defense may be proven either by direct or by circumstantial evidence. Mueller v. Hartford Ins. Co. of Alabama, supra, at 557.
In order to establish a prima facie case of arson for the purpose of denying coverage under a fire policy, the insurance company must present (1) evidence of arson by someone, (2) evidence of motive on the part of the insured, and (3) evidence implicating the insured. Great Southwest Fire Ins. Co. v. Stone, supra, at 900. We have carefully read the record and we find sufficient evidence to support the jury's verdict for Farm Bureau on the arson defense as to both Bonnie and Keith Bush.
A fire was observed at the Bush's house on April 25, 1986, at approximately 7:30 p.m. Keith and Bonnie Bush were the last persons known to leave this house prior to the observation of the fire by neighbors. They had left the house at 7:00 p.m. to stay all night with friends in Prattville, taking their dog with them. This was the fourth fire at the house that day. The first two fires originated in the area of the kitchen cabinet, beneath the countertop range, and caused minor damage. The third fire was in the attic, directly above the kitchen cabinet area. The fourth fire completely destroyed the house.
The first fire was not reported by Keith Bush, but was reported by employees of a local welding business, P & B Welding, who observed smoke coming from the Bush house and ran over there. Jack Matthew Holly, Jr., testified that he and three other employees noticed smoke coming out of the eaves. He said that they went up to the house and that he observed Keith Bush throwing things out of the windows. There was thick smoke in the house. The others from P & B Welding took water from the pool and put out the fire, which was in a cabinet underneath the range. Holly said he did not see any flames.
Holly testified that an hour or two later the P & B employees noticed smoke again, coming from the same house. He said they again took water from the pool and pulled *180 out a portion of the countertop. He said that later in the morning they observed smoke again and returned to the Bush house, carrying fire extinguishers, and went up into the attic and put out the flames. Holly testified that he kicked a hole in the kitchen ceiling and poured 8 to 10 five-gallon buckets of water on the wall.
Holly went again to the house when Mrs. Bush came to P & B Welding seeking a flashlight. He found Mr. Bush in a closet. He was unable to say exactly what Bush was doing in the closet. Bush told him that he was ashamed to call the fire department again, and that he had it under control.
Tommy Shirley, a cause and origin expert from Special Investigation and Consultant Services of Alabama, Inc., and formerly a state deputy fire marshal, testified that his company was hired to conduct an origin and cause determination. Shirley testified that his investigation revealed burn patterns and evidence of "spalling," a chipping that occurs when excessive or extreme heat is applied to the surface of concrete. He found three lines of spalling radiating from the foyerone extending out across the den, the other straight across the foyer, and the other one extending out toward the kitchen. He testified that such spalling is indicative of an accelerant or combustible liquid being poured across the floor and that he knew of nothing that would cause that type of spalling pattern except an accelerant. He took samples from each line of spalling. It was Shirley's opinion that the fire that destroyed the house originated in the foyer of the house and was caused by the ignition of gasoline.
Shirley stated that he was able to eliminate any accidental or natural electrical cause of this fire. Tom Parsons, an electrician who went to the house on the afternoon of the fires, testified that the wiring and associated junction box and equipment were not involved in causing the fires.
Michael Byron, who was employed by Forensic and Scientific Testing Chemical Laboratory in Atlanta, Georgia, and who had been a forensic chemist for seven years, testified that he tested four samples of debris collected by Shirley, using the gas chromatograph test. The sample from the foyer revealed burned gasoline; the other three samples were negative.
Rodney Brown, a special investigator for Farm Bureau, testified as to the bases relied on by the insurance company in its refusal to pay the claim. He said that his file showed that there had been four fires in all at the Bush house that day. He stated that he interviewed 22 people who had been witnesses at the various fires, including Robert Harell, Sheriff Huelett, Tom Parsons, and Bo Riley. In the course of his investigation, Brown taped a statement of Stephanie Brooks, a 16-year-old neighbor of the Bushes, in the presence of her father. The tape was played for the jury. Stephanie said that she was at the Bush house prior to the Bushes' leaving for Prattville. She said that Keith Bush took baby pictures, baby clothes, suits, and scrapbooks out of the house and put them in his truck and his shop. She said that Bonnie Bush took school yearbooks. Stephanie said that Bonnie Bush gave her a number to call in case the house caught on fire again and told her to call if she heard or saw anything.
The record reflects that at the time of the loss the Bushes were having financial trouble. Keith Bush was self-employed and had owned a used car dealership for a year. Prior to this he had been a salesman, with an annual salary of $35,000. At the time of the fire loss, there were three mortgages of record on the house. The first secured a debt of $25,000; the second secured a debt of $4,000; and the third secured a $20,000 line of credit with an outstanding balance of $14,000. The Bushes had an income of approximately $1,800 per month, and their bills were approximately $1,800 per month.
The Bushes gave a sworn proof-of-loss inventory to Farm Bureau. In their statement, they claimed to have purchased over $20,000 worth of items in the past year. There is ample evidence that the inventory they submitted was grossly inflated. For *181 example they claimed $750 for 55 stuffed animals. Stephanie Brooks testified that the Bushes' teen-aged daughter had had the stuffed animals since she was a child. In addition, they listed 5 new business suits (although Keith Bush does not wear suits to work), 8 nightgowns, and 18 pairs of ladies' shoes. A month prior to the fire loss, Keith and Bonnie Bush had been made defendants in a lawsuit claiming $50,000 in damages. Because they could not afford a lawyer, they filed an answer pro se.
Rodney Brown, Farm Bureau's special investigator, testified that the decision to deny the claim was based upon his own investigation, Shirley's investigation, and Byron's report.
The Bushes next claim that the court erred in its oral charge to the jury. They argue that the trial judge confused the jury in stating Farm Bureau's burden of proof regarding misrepresentation. The record reflects that after the trial judge finished charging the jury, several possible misstatements were called to his attention. He asked counsel for charges to "clean up" the matter.
The trial judge then recharged the jury and asked, "Anything else?" Counsel for the Bushes replied, "No, your honor." Therefore, the oral charge is not reviewable by this Court, because no objection was made. Rule 51, A.R.Civ.P.
For the reasons stated above, the judgment based on the jury verdict for Farm Bureau is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] The case also went to the jury on a claim alleging fraudulent and deceitful conduct on the part of Farm Bureau in the handling of the Bushes' claim. The claim had not been asserted by the Bushes in their counterclaim, but was allowed by the trial court.
[2] Before the trial of the case, Farm Bureau deleted this affirmative defense that it had raised to the Bushes' counterclaim. | February 1, 1991 |
d55b1397-6218-4d96-84dd-bb1d2d3018ad | Ex Parte Hayes | 579 So. 2d 1343 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 1343 (1991)
Ex parte Donald HAYES.
(Re Donald HAYES, et al. v. James WHITE, et al.)
89-1469.
Supreme Court of Alabama.
February 8, 1991.
*1344 C. Knox McLaney III and J. Doyle Fuller, Montgomery, and James L. Hunt, Tuscumbia, for petitioners.
James D. Hughston, Tuscumbia, for respondents.
MADDOX, Justice.
This case presents the following question: Does a circuit court acquire personal jurisdiction of a class action suit when it is shown that one of the two named class action plaintiffs had died before the suit was filed and the other has notified the court that she does not desire to prosecute the action?
We have issued the writ of certiorari to the Court of Civil Appeals to review a judgment of that court affirming the trial court's dismissal of the class action suit. 579 So. 2d 1340. The petitioner here, Donald Hayes, had sought to intervene in the class suit. The trial court dismissed this case, stating that it never acquired personal jurisdiction, and the Court of Civil Appeals affirmed.
The pertinent facts are as follows. On June 7, 1985, a class action suit was filed against James White, as commissioner of revenue for the State of Alabama, and others, by Mr. and Mrs. Billie McClung,[1] "Individually and as representatives of the Plaintiffs' class," alleging that the County had assessed ad valorem taxes to a certain class of individuals at a rate exceeding the "current use" valuation, and, therefore, that a refund was due the members of that class.
The defendants filed answers to the complaint in which they admitted many of the allegations of the complaint, but they denied others and demanded strict proof of them. The record shows that at no time did the defendants specifically challenge the capacity of either plaintiff to maintain the lawsuit.
On October 21, 1986, over 16 months after the action was filed, Annie Mae McClung (Mrs. Billy McClung) filed a letter with the trial court requesting that the suit be dismissed and that the names of Mr. and Mrs. McClung be withdrawn from any documents concerning the suit.[2] On October 23, 1986, the trial court dismissed the case.
On November 17, 1986, the attorneys for the plaintiff class timely moved to reinstate the action, and in their motion stated that "an intervenor's complaint is being presented with this motion for reinstatement and that the named plaintiff will be allowed to withdraw once the intervenor's complaint is allowed." Petitioner Donald Hayes was the intervenor.
The next day, November 18, 1986, the trial court set aside its order of dismissal, reinstated the action, and substituted Donald Hayes for Mr. and Mrs. Billy McClung as representative for the plaintiff class. Subsequently, the defendants filed a motion to dismiss and a motion to strike the intervention, arguing that the trial court never had personal or subject matter jurisdiction of the class action. The trial court denied those motions, and this Court denied a request for petition to appeal that interlocutory order. See Singleton v. McClung, 514 So. 2d 347 (Ala.1987) (no opinion). Nevertheless, on September 22, 1989, the trial judge, stating that the "contents of the file are very confusing," entered an order of dismissal, and cited, in part, the following reasons for his action:
Donald Hayes appealed to the Court of Civil Appeals. That court affirmed the dismissal of the class action, stating that "[t]he record reveals that Billy McClung died prior to the filing of the complaint, and it is unknown whether he authorized the filing of the lawsuit in his name." We reverse.
Rule 23, Ala.R.Civ.P., provides four prerequisites to bringing a class action: (1) the class must be so numerous that joinder of all members is impracticable; (2) there must be questions of law or fact common to the class; (3) the claims or defenses of the representative parties must be typical of the claims or defenses of the class; and (4) it must appear that the representative parties will fairly and adequately protect the interests of the class. These requirements have been interpreted as follows:
Johnson v. Montgomery County Sheriff's Dep't, 99 F.R.D. 562, 564 (M.D.Ala.1983).
Although class certification is generally left to the sound discretion of the trial judge, we note that the trial judge, during the four-year course of this litigation, never ruled on the request for class certification, even though Rule 23(c)(1), Ala.R. Civ.P., directs that "as soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained." (Emphasis added.)
Furthermore, Rule 23(d)(2) states that the court may make orders requiring, for the protection of the class members, that notice be given to afford those members the opportunity to determine whether the named class representative is adequate to represent their interests and to intervene if necessary.
It is well recognized, as the defendants argue, that if the named plaintiff seeking to represent the class fails to establish the requisite case or controversy, he may not seek relief on his behalf or on behalf of the class. See Amason v. First State Bank of Lineville, 369 So. 2d 547 (Ala.1979); Lynch v. Baxley, 744 F.2d 1452 (11th Cir.1984). This Court has also stated, however, that when the interests of putative class members are not adequately protected by the class representative, or by the judiciary, the running of the statutory limitations period is tolled so that an unnamed member of the class may either intervene or be named individually. White v. Sims, 470 So. 2d 1191 (Ala.1985); First Baptist Church of Citronelle v. Citronelle-Mobile Gathering, Inc., 409 So. 2d 727 (Ala.1981).
In White v. Sims, this Court held that "the commencement of a class action tolls the statute of limitations until such time as an independent action is filed, or until the denial of class certification." 470 *1346 So. 2d at 1193. In essence, an unnamed member of the plaintiff class may intervene so that the class is adequately represented, so long as the intervention occurs prior to the running of the statutory period of limitations, which is tolled until the denial of class certification.
In United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S. Ct. 2464, 53 L. Ed. 2d 423 (1977), unnamed plaintiffs were allowed to intervene after the trial court had refused to certify the class. The United States Supreme Court affirmed and stated in dictum:
432 U.S. at 393, 97 S. Ct. at 2469, quoting Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452, 461 (E.D.Pa.1968).
In the present case, the court never ruled on the request for class certification, but rather dismissed the action when Mrs. McClung wrote to the court requesting that it remove the McClungs as the named plaintiffs and dismiss the case. Even if the court's action dismissing the case were considered a ruling on the request for class certification, the motion to intervene was sufficient to protect the plaintiff class and require a further ruling on class certification.
We are of the opinion that the record before us supports the argument of the petitioners that the trial court did have jurisdiction of the class suit. Even though it is undisputed that Billy McClung died before the suit was filed, Mrs. McClung, as his widow, had certain rights to her husband's estate, including any refunds which may have been paid as a result of the suit. Also, in the complaint, it was averred that "[p]laintiffs [which included Mrs. McClung as widow of Billy McClung] and members of their class have incurred and paid taxes to Defendants arising out of the ad valorem assessment for taxes due and payable since October 1, 1978."
We recognize that the parties are in disagreement on whether Mrs. McClung actually authorized the lawsuit, and that she testified as follows at a hearing on the question concerning authorization to file the suit:
Rule 9(a), Ala.R.Civ.P., provides as follows:
We hold that the provisions of Rule 9(a) are applicable to any civil action, including class actions. The record in this case does not indicate that the capacity of the plaintiffs to institute the class action was challenged *1347 "by specific negative averment," as required by Rule 9(a).
We also hold that the trial court in its discretion must make a determination regarding class certification as soon as practicable after the filing of a class action. If the refusal to certify the class is grounded on the inadequacy of the named class representative(s), then the appropriate persons may move to intervene as adequate representatives for the class and the running of the limitations period will be tolled from the filing of the class action until a final judicial determination regarding intervention and certification of the class.
Based on the foregoing, we hold that the trial court erred in finding that it did not have personal jurisdiction of the class action. We, therefore, reverse the judgment of the Court of Civil Appeals and remand for that court to order further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, STEAGALL and KENNEDY, JJ., concur.
[1] In the complaint, Mr. McClung's name is spelled "Billie." In other documents his name is spelled "Billy." In this opinion, we will be using the name "Billy" to refer to Mr. McClung.
[2] The letter reads as follows:
"October 21, 1986
"IN THE CIRCUIT COURT FOR COLBERT
COUNTY
STATE OF ALABAMA
"IN RE: Mr. & Mrs. Billy McClung, Plaintiffs
vs.
James White, et al., Defendants
Case No. CV-85-231
"TO WHOM IT MAY CONCERN:
"Please be advised that since the filing of the
above styled case, Mr. Billy McClung has
passed away and I, Annie Mae McClung, request
the above suit be dismissed and our
names be withdrawn from any and all legal
documents concerning this case.
"Sincerely,
"ANNIE MAE McCLUNG"
| February 8, 1991 |
3d8d974d-43de-4175-a8f6-9688e940ad6f | Brooks v. Alabama State Bar | 574 So. 2d 33 | N/A | Alabama | Alabama Supreme Court | 574 So. 2d 33 (1990)
Eleanor I. BROOKS
v.
ALABAMA STATE BAR.
89-932.
Supreme Court of Alabama.
December 7, 1990.
As Modified on Denial of Rehearing January 11, 1991.
Jere L. Beasley and Frank M. Wilson of Beasley, Wilson, Allen, Mendelsohn & Jemison, Montgomery, for appellant.
Robert W. Norris, General Counsel, Alabama State Bar, for appellee.
ALMON, Justice.
Eleanor I. Brooks, chief assistant district attorney for the Fifteenth Judicial Circuit, appeals from a private reprimand given to her by the Disciplinary Commission of the Alabama State Bar.[1] The Disciplinary Commission found that Ms. Brooks had violated Disciplinary Rules 7-107(A)(4) and 7-107(A)(6) of the Code of Professional Responsibility by making an extra-judicial statement on October 13, 1988, to a television reporter concerning a pending criminal case that she was prosecuting.
Proceedings before the Disciplinary Commission are governed by the Rules of Disciplinary Enforcement. Prior to December 13, 1988, Rule 1(a) of those Rules read as follows:
On December 13, 1988, this Court issued an order[2] amending Rule 1(a) to read:
This Court adopted the Code of Professional Responsibility on May 6, 1974,[3] and the Rules of Disciplinary Enforcement on *34 February 13, 1978.[4] On April 10, 1975, the Court decided Simpson v. Alabama State Bar, 294 Ala. 52, 311 So. 2d 307 (1975), and Watson v. Alabama State Bar, 294 Ala. 57, 311 So. 2d 311 (1975). Simpson involved a disciplinary proceeding under the Rules Governing the Conduct of Attorneys, which were in effect prior to the Code of Professional Responsibility and which will be hereinafter referred to as "the Rules Governing Conduct," against a district attorney for holding a press conference "concerning the disposition of a criminal case." 294 Ala. at 55, 311 So. 2d at 308. Watson involved a similar proceeding against a deputy district attorney.
The rule under which the Bar sought to discipline Simpson used the broad jurisdictional language, "all persons heretofore or hereafter admitted to practice law in the State of Alabama," 294 Ala. at 54, 311 So. 2d at 308. Nevertheless, the unanimous Court held that "a district attorney was not subject to discipline by the Board of Bar Commissioners for alleged violation of the Rules Governing the Conduct of Attorneys." 294 Ala. at 55, 311 So. 2d at 309. The Court noted that "The question of whether a district attorney may be disciplined for violation of [the] Code of Professional Responsibility is not before us." 294 Ala. at 57, 311 So. 2d at 310.
The courts have twice mentioned that Simpson did not decide whether district attorneys could be disciplined under the Code of Professional Responsibility. Honeycutt v. Simpson, 388 So. 2d 990 (Ala. 1980); Stringer v. State, 372 So. 2d 378, 382 (Ala.Crim.App.), cert. denied, 372 So. 2d 384 (Ala.1979). This Court, in holding district attorneys immune from civil suit for actions taken in pursuit of their official duties, made the following reference to Simpson, without remarking that a different result might obtain under the Code of Professional Responsibility: "See [Simpson], where this Court refused to allow the Alabama State Bar to discipline a District Attorney." Jones v. Benton, 373 So. 2d 307, 310 (Ala.1979).
A comparison in October 1988 of the Rules Governing Conduct with the Code of Professional Responsibility and the Rules of Disciplinary Enforcement, together with a study of the above-cited cases, would not have yielded a clear answer to the question of whether a district attorney or an assistant district attorney was subject to discipline by the Disciplinary Commission. Due process of law requires fair notice that one's conduct is subject to a law or regulation.
United States v. Hayes, 703 F. Supp. 1493, 1502 (N.D.Ala.1989). Cf. Ala. Const.1901, art. I, §§ 6, 7, and 13.
Ross Neely Express, Inc. v. Alabama Dep't of Environmental Mgt., 437 So. 2d 82, 84 (Ala.1983).
Because Ms. Brooks had reason to believe that her conduct was not governed by the Code of Professional Responsibility at the time she made the statement, due process prohibits the imposition of discipline on her under that Code. The order of reprimand is therefore reversed and the *35 cause is remanded for entry of an order setting aside the reprimand.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
JONES, J., dissents.
JONES, Justice (dissenting).
This case poses a difficult and important issue of first impression. The Court decides it, I believe, incorrectly.
On March 16, 1990, Ms. Brooks was privately reprimanded for making an extrajudicial statement to a Montgomery television station on October 13, 1988, concerning the results of tests on a criminal defendant and expressing an opinion as to the guilt of that defendant, in violation of DR 7-107(A)(4) and (6) of the Code of Professional Responsibility. DR 7-107(A)(4) and (6) provide, respectively, as follows:
"(A) A lawyer involved in a criminal matter shall not, from the time of the filing of a complaint, information, or indictment, the issuance of an arrest warrant, or arrest until the commencement of the trial or disposition without trial, make or participate in making an extra-judicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to:
"(4) The performance or results of any examinations or tests or the refusal or failure of the accused to submit to examinations or tests.
The lone issue is whether the Disciplinary Commission has the authority to reprimand an assistant district attorney for violations of the Code of Professional Responsibility.
The Preamble to the Rules of Disciplinary Enforcement (effective March 1, 1978) reads as follows:
As of October 13, 1988, Rule 1 of the Rules of Disciplinary Enforcement provided as follows:
"(a) Jurisdiction. Any attorney admitted to practice law in this State and any attorney specially admitted by any court of this State for a particular proceeding is subject to the exclusive disciplinary jurisdiction of the Supreme Court of Alabama and the Disciplinary Board of the Alabama State Bar, hereafter established."
Ms. Brooks contends that the Alabama Constitution of 1901, Art. VII, § 173 and § 174, provides the sole means of removal of district attorneys and assistant district attorneys from office. Therefore, says Ms. Brooks, the Disciplinary Commission is without jurisdiction to initiate disciplinary proceedings against district attorneys or their assistants. In support of her contention, Ms. Brooks cites and relies upon the two companion cases of Simpson v. Alabama State Bar, 294 Ala. 52, 311 So. 2d 307 (1975), and Watson v. Alabama State Bar, 294 Ala. 57, 311 So. 2d 311 (1975), wherein the Court answered in the negative the question whether a district attorney could be disciplined by the Board of Bar Commissioners of the Alabama State Bar (Disciplinary Commission). (At that time the only *36 method for removal of a district attorney was found in our Constitution.) However, the following language found in Simpson effectively precludes any application of that case to the facts presented here:
294 Ala. at 57, 311 So. 2d at 310; see, also, Honeycutt v. Simpson, 388 So. 2d 990 (Ala. 1980).
The majority takes the position that because the jurisdictional language found in the Rules Governing the Conduct of Attorneys in Alabama (see Simpson, supra) was similar to the jurisdictional language found in the Code of Professional Responsibility of the Alabama State Bar, the Code Ms. Brooks was charged and reprimanded under, Ms. Brooks had reason to believe that her conduct would be completely unrestrained insofar as the Code of Professional Responsibility was concerned. Further, the majority concludes (incorrectly, in my opinion) that the amendment of Rule 1 of the Rules of Disciplinary Enforcement effective December 13, 1988, included district attorneys for the first time. This conclusion is not borne out by the history of the ethics rules governing members of the Alabama State Bar.[5]
The conduct proscribed by DR 7-107 has at all times since May 6, 1974, remained the same. Thus, the proscribed conduct was already in place for more than 14 years before Ms. Brooks's alleged violation occurred. The only other change (the amendment to the Rules of Disciplinary Enforcement to specifically name district attorneys, which was consistent with DR 7-107's proscription) in no way limited the preexisting effect of DR 7-107 or the Rules of Disciplinary Enforcement. This change, which occurred on December 13, 1988, was merely a clarification of a procedural rule, not a change in the rules governing the conduct that all attorneys, including assistant district attorneys, must comply with. The majority opinion confuses a substantive rule with a procedural rule.
Admittedly, the jurisdictional language of the Rules Governing the Conduct of Attorneys in Alabama is similar to the jurisdictional language found in the Code of Professional Responsibility of the Alabama State Bar. However, a review of the two "Codes" reveals obvious dissimilarities. For starters, while the Code of Professional Responsibility specifically addresses the obligations of "public prosecutors" and "government lawyers" (see EC 7-11, EC 7-13, and EC 7-14), the Rules Governing the Conduct of Attorneys made no references to prosecutors. Correspondingly, DR 7-107(A) of the Code of Professional Responsibility provides that a lawyer involved in a criminal matter shall not make extra-judicial statements relating to, *37 among other things, the criminal record of a defendant, the possibility of a guilty plea, the existence or contents of any confession, admission, or statement of the defendant, his refusal to make a statement, or the performance or results of any examination or tests or the refusal to submit to examinations or tests. Viewed pragmatically, because pretrial publicity of the above matters would, in most cases, be detrimental, if not disastrous, to a defendant's case, the phrase "lawyer involved in a criminal matter," if not intended to refer exclusively to prosecutors, was obviously intended to include prosecutors. (See also DR 7-107(C) and DR 7-107(D).)
Additionally, on January 17, 1974, this Court heard oral arguments, pro and con, pertaining to the proposed "new" Code of Professional Responsibility. A cursory review of the transcript of that proceeding leads one to the inescapable conclusion that both the proponents and the opponents of the "new" Code were cognizant of the fact that DR 7-107 was applicable to prosecuting attorneys. Indeed, this was the central thrust of the debate. Similarly, Justice Maddox, concurring specially in this Court's May 6, 1974, order adopting the Code of Professional Responsibility, recognized that DR 7-107 was applicable to prosecuting attorneys:
In light of these facts, and particularly in light of the fact that Ms. Brooks is an experienced prosecutor, it is nothing short of naive to assume that she did not have a clue as to whether DR 7-107 was applicable to prosecutors. In my eyes, however, the question whether Ms. Brooks was genuinely confused with respect to the standard of ethics demanded of her as a lawyer and as a prosecutor is of no real consequence. Common sense alone should have been enough to enable Ms. Brooks to see that her pretrial comments to a television news reporter, on camera no less, could potentially deny the accused his right to a fair trial.
Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314 (1935).
The preceding words, expressed by Mr. Justice Sutherland, capture perhaps better than any others the essence and the magnitude of the prosecutorial responsibility. A prosecutor's motivations, as well as his tactics, must be above reproach at all times. His role as an advocate is tempered by an obligation of fairness, a duty to ensure that each trial results in an accurate determination of guilt and punishment. The prosecutor, however, is not above the shortcomings *38 that plague the rest of the legal profession. In other words, he is just as susceptible to human error as the rest of us. Consequently, if a prosecutor's zest for a conviction is without restraints, the potential for abuse, whether through malice or ignorance, would forever be the Achilles' heel upon the body of justice. As an officer of the Court participating in the search for truth, a prosecutor must certainly fight zealously, but he must do so within the framework of the Code of Professional Responsibility. Nothing less will satisfy.
Therefore, I am impelled to the conclusion that a district attorney, along with every other practicing lawyer in this state, must adhere to the standards set forth in the ethical code governing members of the Alabama State Bar and that this was no less true on October 13, 1988, than it is today. To hold otherwise would undermine the integrity of our criminal justice system.
Accordingly, I would affirm the Disciplinary Commission's decision.
ALMON, Justice.
OPINION MODIFIED, APPLICATION FOR REHEARING OVERRULED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur.
JONES, J., dissents.
[1] Ms. Brooks states in her appellant's brief that she "waived her rights to confidentiality and demanded that the proceeding be made public."
[2] See Ala. Reporter, 535-38 So.2d, at LXXI.
[3] See 293 Ala. at XCIX.
[4] Ala. Reporter, 353-55 So.2d, at XXXV.
[5] Three separate sets of rules are inferentially involved: 1) the Rules Governing Conduct of Attorneys in Alabama (superseded by the Code of Professional Responsibility on October 1, 1974); 2) the Code of Professional Responsibility of the Alabama State Bar (from October 1, 1974, to December 31, 1990); and 3) the Rules of Disciplinary Enforcement adopted in 1978. The Rules of Disciplinary Enforcement were amended on December 13, 1988, and a "new" set of rules (Rules of Disciplinary Procedure (Interim)) go into effect on January 1, 1991. Additionally, the "new" Rules of Professional Conduct, which replace the Code of Professional Responsibility, also go into effect on January 1, 1991. | January 11, 1991 |
c8e1729c-784e-427c-b8f2-a1b55a710839 | Sellers v. Sexton | 576 So. 2d 172 | N/A | Alabama | Alabama Supreme Court | 576 So. 2d 172 (1991)
Robert E. SELLERS, individually and as administrator of the Estate of Alicia Carol Sellers, deceased,
v.
Melanie D. SEXTON.
89-1707.
Supreme Court of Alabama.
January 25, 1991.
*173 David B. Byrne, Jr. and Steven J. Giardini of Robison & Belser, Montgomery, for appellant.
E. Hamilton Wilson, Jr. of Ball, Ball, Matthews & Novak, Montgomery, for appellee.
MADDOX, Justice.
The plaintiff in this wrongful death action appeals from a summary judgment for the defendant. The trial judge entered that judgment because he believed that Alabama's Guest Statute barred the plaintiff's negligence claim and that there was no wantonness shown, as a matter of law.
The facts are as follows:
Melanie Sexton and Alicia Sellers, both from Montgomery, were enrolled as first-year students at Judson College in Marion, Alabama, for the fall 1987-88 school term. It was their custom to ride together to and from Judson College and their homes in Montgomery. They would ride together on at least three out of four weekends. They would use Melanie Sexton's automobile, and, when they arrived at Montgomery, Alicia's mother would pay Melanie $10.00 to help cover the expenses.
The accident in question occurred at approximately 12:50 p.m. on January 8, 1988, on the second of a series of three bridges located between links 1040 and 1044 on County Road 6 in Perry County, Alabama. For several days prior to January 8, travel advisories had been issued because of expected inclement weather and the possibility of freezing precipitation. Sometime on the afternoon of January 7, in anticipation of this inclement weather, the Perry County engineer's office placed a coarse type of slag on several bridges in Perry County. This included the bridge on which this accident occurred.
On the weekend of January 8-10, 1988, Alicia and Melanie were scheduled to go on a school-sponsored ski trip. However, the ski trip was canceled because of the predicted bad weather. Because their trip had been canceled, they decided to return to Montgomery. They proceeded toward Montgomery on their usual routesouth on Alabama Highway 45, and then east on County Road 6. Melanie Sexton was driving at or about the maximum legal speed of 55 m.p.h. when she crossed the first of the three bridges on County Road 6. Melanie acknowledged that there was loose rock/stone on that bridge, that she believed that it was on the bridge because of pending bad weather, and that she did not slow down as she approached the second bridge. She further acknowledged that she normally slowed down before entering this bridge because of a wide curve to the left.
Upon entering the second bridge, Melanie lost control of her car, first pulling to the right and then, in an attempt to correct the direction of the vehicle, steering to the left and traveling completely into the lane of oncoming traffic. In attempting to correct her direction a second time, she over-steered to the right, then braked. The vehicle then went straight, hitting the right-hand guard rail. The vehicle bounced off the rail, swerved to the left, rotating counterclockwise directly into the path of *174 an oncoming truck; the right passenger side of the Sexton vehicle hit the left front of the truck.
Alicia Sellers was killed as a result of the collision. Her father, Robert Sellers, as administrator of her estate, filed a wrongful death action against Melanie Sexton, alleging both negligence and wantonness. Plaintiff now appeals from Melanie Sexton's summary judgment.
The plaintiff first contends that the trial court erred in relying on the Alabama Guest Statute as basis for the summary judgment as to the negligence claim. Our Guest Statute, § 32-1-2, Code of Alabama (1975), provides:
This section does not define the term "guest," but instead, leaves it up to the court to determine who is and who is not a guest. Roe v. Lewis, 416 So. 2d 750 (Ala. 1982); Harrison v. McCleary, 281 Ala. 87, 199 So. 2d 165 (1967). Several Alabama cases have held that, unless reasonable minds can reach but one conclusion from the uncontroverted facts, the dispute is a question of fact to be determined by the jury. McDougle v. Shaddrix, 534 So. 2d 228 (Ala.1988); Harrison v. McCleary, 281 Ala. 87, 199 So. 2d 165 (1967); Zemczonek v. McElroy, 264 Ala. 258, 86 So. 2d 824 (1956); Wagnon v. Patterson, 260 Ala. 297, 70 So. 2d 244 (1954).
The general rule is that if the transportation of a rider confers a benefit only on the person to whom the ride is given, and no benefits other than such as are incidental to hospitality, goodwill or the like on the person furnishing the transportation, the rider is a guest. However, if his carriage tends to promote the mutual interest of both himself and the driver for their common benefit, thus creating a joint business relationship between the motorist and his rider, or if the rider accompanies the driver at the instance of the driver for the purpose of having the rider render a benefit or service to the driver on a trip that is primarily for the attainment of some objective of the driver, the rider is a "passenger for hire" and not a "guest". Westbrook v. Gibbs, 285 Ala. 223, 231 So. 2d 97 (1970); Harrison v. McCleary, 281 Ala. 87, 199 So. 2d 165 (1967). The evidence in each particular case must be considered in determining whether a person is a guest or is a passenger for hire. Boggs v. Turner, 277 Ala. 157, 168 So. 2d 1 (1964).
The general rule is that the sharing of the cost of operating a car on a trip, when the trip is undertaken for pleasure or social purposes and the invitation is not motivated by, or conditioned on, such sharing, is nothing more than the exchange of social amenities and does not transform into a passenger for hire one who, without the exchange, would be a guest. However, where the offer of transportation is conditioned on the passenger's contribution toward the expenses, or where it appears that the arrangement for transportation bears one or more of the indicia of a business arrangement, especially where the arrangement is specifically for transportation, or comprehends a trip of considerable magnitude, or contemplates the repetition of more or less regular rides, the person paying for gasoline and oil consumed or contributing toward other automobile expenses is held to be a passenger for hire and not a guest. This is true even though the ultimate purpose of the arrangement may be for pleasure. Wagnon v. Patterson, 260 Ala. 297, 70 So. 2d 244 (1954).
Based on the rule of law stated in these cases, we find that there is a question of fact that should be determined by the jury. These two students were good friends who were often together in a social manner; however, they also had an arrangement for transportation that contemplated regular trips of considerable magnitude. A jury, therefore, could consider the relations between the driver and the passenger, such as: implied and expressed arrangements made between them as to the *175 conduct of the particular trip, the purpose of the trip, the benefits accruing to the driver and to the passenger from the trip, and any other factors that bring into proper focus the true status of the driver and the passenger at the time of the accident. Roe v. Lewis, 416 So. 2d 750 (Ala.1982).
The plaintiff next contends that the trial court erred in entering the summary judgment against his wantonness claim. This court has defined "wantonness" as the conscious doing of some act or omission of some duty under knowledge of existing conditions, while conscious that from the doing of such act or omission of such duty injury will likely or probably result. McDougle v. Shaddrix, 534 So. 2d 228 (Ala. 1988); Marshall v. Marshall, 284 Ala. 512, 226 So. 2d 298 (1969); Lankford v. Mong, 283 Ala. 24, 214 So. 2d 301 (1968); Jackson v. Cook, 275 Ala. 151, 153 So. 2d 229 (1963); Randolph v. Kessler, 275 Ala. 73, 152 So. 2d 138 (1963). The court must carefully consider the facts of each particular case in order to determine if evidence of wantonness exists. If there is any evidence from which a jury can reasonably infer wantonness, the issue should be presented to the jury. McDougle v. Shaddrix, 534 So. 2d 228 (Ala.1988).
In this case, there was evidence that Melanie Sexton was driving her car at or near the maximum posted speed limit when she entered a bridge that she should have known had been spread with rock/stone in preparation for bad weather. In addition, there was evidence that she knew that the bridge had a wide curve that would obstruct her view of any oncoming traffic. These facts constituted substantial evidence to support the wantonness claim. Therefore, the issue should have been presented to a jury. We reverse and remand for further proceedings in accordance with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. | January 25, 1991 |
ee5bfd8c-8b4d-4d8a-a339-fd466c899db5 | Marshall County Gas District v. City of Albertville | 83 So. 2d 299 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 299 (1955)
MARSHALL COUNTY GAS DISTRICT, et al.,
v.
CITY OF ALBERTVILLE, et al.
8 Div. 798.
Supreme Court of Alabama.
November 10, 1955.
*300 Starnes & Starnes, Scruggs & Scruggs and Marion F. Lusk, Guntersville, for appellants.
Maurice F. Bishop and Robt. S. Richard, Birmingham, and Mack Killcrease, Albertville, for appellees.
LAWSON, Justice.
This bill was filed in the Circuit Court of Marshall County, in Equity, by the City of Albertville, a municipal corporation; Floyd Brown, as vice-president and member of the Board of Directors of the Marshall County Gas District and as Mayor of the City of Albertville; and by Joe M. Davis, Robert Dickson, A. E. Childs, R. J. Chafin, and E. B. Adams, as members of the City Council of the City of Albertville, against the Marshall County Gas District, a public corporation; T. C. Crain and Woodrow Hinds, as members and Joe Starnes, as Secretary of the Marshall County Gas District.
The bill seeks injunctive and declaratory relief.
The respondents demurred to the bill as a whole and to each of its aspects; that is, grounds of demurrer were properly addressed to the bill as a whole, to the aspect seeking injunctive relief and to the aspect seeking a declaratory judgment.
The trial court sustained the demurrer of respondent Joe Starnes. As to the other respondents, a decree was rendered overruling their demurrer generally, without referring to the demurrer or grounds thereof addressed to the two aspects.
From that decree the respondents other than Joe Starnes have appealed to this court.
By separate assignments of error the appellants complain of the action of the trial court in overruling their demurrer to the bill as a whole and to each of the aspects to which their demurrer was addressed.
As we have heretofore shown, the trial court rendered a decree overruling appellants' demurrer generally, without referring to the demurrer or grounds thereof addressed to the separate aspects. Under our holding in Rowe v. Rowe, 256 Ala. 491, 55 So. 2d 749, the effect of such a decree was a ruling only on the demurrer to the bill as a whole. Percoff v. Solomon, 259 Ala. 482, 67 So. 2d 31, 38 A.L.R.2d 1100; Shaddix v. Wilson, 261 Ala. 191, 73 So. 2d 751; Tarlton v. Tarlton, 262 Ala. 67, 77 So. 2d 347.
If either aspect of the bill asserts matter of equitable cognizance, the demurrer to the bill as a whole was properly overruled. Percoff v. Solomon, supra; Sellers v. Valenzuela, 249 Ala. 627, 32 So. 2d 517.
*301 The case for declaratory relief made by the averments of the bill is substantially as hereafter set out.
On April 15, 1953, the cities of Albertville and Guntersville and the town of Arab, all in Marshall County, organized the Marshall County Gas District, under and pursuant to the provisions of Act No. 762, approved September 11, 1951, Acts of Alabama 1950-1951, Vol. 2, p. 1319, which provisions are included in the 953 Cum. Pocket Part to Vol. 6 of the 1940 Code of Alabama at pp. 258-267, as §§ 402(47)-402(66) of Title 37. We will sometimes hereafter refer to the Marshall County Gas District as the gas district and to the act approved September 11, 1951, supra, as the act.
Section 1 of the act reads:
During the negotiations leading up to and culminating in the organization of the gas district, "it was represented to and agreed with the City Council and people of the City of Albertville by the defendant and others interested in the project that the principal office of said Gas District would be in the City of Albertville, Alabama and on the basis of such representation and agreement the City Council of Albertville, Alabama adopted a resolution authorizing the participation of the City of Albertville in said Gas District and its incorporation, without the adoption of which said resolution the City of Albertville would not have participated in or been a party to said project."
Section 3 of the act provides that the certificate of incorporation shall state, among other things, "the location of the principal office of the district and its post office address", and the certificate of incorporation of the gas district contains the following statement: "The location of the principal office of said district and its post office address are Albertville, Alabama."
The method for amending the certificate of incorporation is spelled out in § 3 of the act, but no effort has been made by the board of directors, the governing body of the gas district, to have the certificate of incorporation amended in the manner so specified.
On or about July 13, 1954, at a time when no office of the gas district had been constructed contracted or arranged for in the City of Albertville, a majority of the members of the board of directors, namely, the defendants T. C. Crain and Woodrow Hinds, voted to purchase a tract of land in the City of Guntersville on which to erect a building to house the office, records and personnel of the gas district, and also voted in favor of a resolution authorizing themselves, together with the secretary of *302 the board of directors, Joe Starnes, to proceed with the purchase of a tract of land in the City of Guntersville on which to erect such a building. The complainant Floyd Brown, the other member of the board of directors of the gas district, opposed such action.
Paragraph 9 of the bill reads as follows:
The prayer of the bill reads in part as follows:
Controversies touching the legality of acts of public officials or public agencies, challenged by parties whose interests are adversely affected, is one of the favored fields for declaratory judgment. Scott v. Alabama State Bridge Corp., 233 Ala. 12, 169 So. 273.
The averments of the instant bill show a controversy between the directors of the gas district, a public corporation, which involves a construction of the act. See § 157, Title 7, Code 1940.
By an amendment to § 167, Title 7, Code 1940, the legislature has provided that the remedy for declaratory judgment shall not be construed by any court as an unusual or extraordinary one, but shall be construed to be an alternative or cumulative remedy. See § 167, Title 7, Code 1940, as amended, 1953 Cum.Pocket Part, Vol. 2, p. 37; Vinson v. Vinson, 256 Ala. 259, 54 So. 2d 509; Dozier v. Troy Drive In Theatres, 258 Ala. 417, 63 So. 2d 368.
The City of Albertville became a member of the gas district by virtue of action taken by its governing body and we think the mayor and the members of the city council, in their official capacity, were proper parties complainant to the instant bill.
The bill, in our opinion, shows such an actual controversy as to support the jurisdiction of the trial court for a declaratory judgment, and hence we hold that the trial court did not err in rendering a decree overruling the demurrer generally.
The decree is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | November 10, 1955 |
c949a033-3ce3-47ea-a96b-9c0dbda7fc4a | Seals v. City of Columbia | 575 So. 2d 1061 | 1900033 | Alabama | Alabama Supreme Court | 575 So. 2d 1061 (1991)
Robert Hence SEALS, individually and as administrator of the Estate of Misty Michelle Seals, deceased
v.
CITY OF COLUMBIA and Stanley E. Cook.
1900033.
Supreme Court of Alabama.
January 25, 1991.
*1062 Patrick M. Lavette of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
Herman Cobb of Buntin, Cobb & Shealy, Dothan, for appellees.
HOUSTON, Justice.
Robert Hence Seals, individually and as the administrator of his daughter's estate, sued the City of Columbia and one of its police officers, Stanley E. Cook, alleging, in pertinent part, as follows:
The trial court granted the defendants' motion to dismiss on the ground that Seals's complaint failed to state a claim upon which relief could be granted. The pertinent portion of the trial court's order is as follows:
Seals appealed. We reverse and remand.
The standard of review applicable to motions to dismiss is well settled:
Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala.1985). (Emphasis in original.)
The defendants contend that the trial court correctly dismissed Seals's complaint. They argue that in order to state a claim upon which relief could be granted, Seals had to specifically allege that Officer Cook's vehicle came into contact with the vehicle in which his daughter was riding or that Officer Cook otherwise "directly" caused his daughter's death.
Seals contends that his complaint was sufficient to state a claim upon which relief could be granted. He argues that it was premature for the trial court to enter a judgment for the defendants as a matter of law. We agree.
In Madison v. Weldon, 446 So. 2d 21 (Ala.1984), this Court held that, in the absence of proof of a lack of due care on the part of a police officer in operating his vehicle, a causal connection between the officer's pursuit of an offender and the injuries sustained by, or the death of, a third party involved in a collision with the fleeing offender could not be established. The rule regarding the conduct of a police officer in pursuit of a fleeing offender was succinctly stated as follows:
446 So. 2d at 28, quoting City of Miami v. Horne, 198 So. 2d 10 (Fla.1967). By its holding, this Court recognized that a lack of due care on the part of a police officer in operating his vehicle could be the proximate cause of the injuries sustained by, or the death of, a third party involved in a collision with the fleeing offender. In accord, see Blair v. City of Rainbow City, *1064 542 So. 2d 275 (Ala.1989), and Doran v. City of Madison, 519 So. 2d 1308 (Ala. 1988).[1]
Neither Madison v. Weldon, nor Blair v. City of Rainbow City, nor Doran v. City of Madison stands for the proposition that in order to state a claim upon which relief could be granted, Seals had to specifically allege that Officer Cook's vehicle came into contact with the vehicle in which his daughter was riding or that Officer Cook otherwise "directly" caused his daughter's death. Seals alleged that Officer Cook negligently or wantonly operated his police vehicle while in pursuit of Jimmy Watford and that Cook's negligence or wantonness was a proximate cause of his daughter's death. Seals also alleged that the City of Columbia had negligently or wantonly failed to train or supervise Officer Cook and that its negligence or wantonness in this regard caused his daughter's death. These allegations were sufficient under our rules of notice pleading to put the defendants on notice of the claims against them.[2] As this Court noted in Sanders v. Judson College, 514 So. 2d 890, 891-92 (Ala.1987), "[h]owever unlikely it may appear that [the] plaintiff can prove his case, the appropriate inquiry at this stage in the proceedings is the sufficiency of [the] plaintiff's allegations, not the sufficiency of his proof in support thereof." (Emphasis in original.)
We cannot say, as a matter of law, that Seals can prove no set of facts that would entitle him to relief; consequently, the judgment is due to be, and it is hereby, reversed, and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] In Blair v. City of Rainbow City and Doran v. City of Madison, the undisputed evidence showed that the police officers had exercised due care in pursuing the offenders; accordingly, the defendants in those cases were entitled to judgments as a matter of law.
[2] Interestingly, the defendants made the following statements in their brief:
"It is true that, as [Seals] argues, a lack of a collision between Officer Cook and [Seals's daughter] does not negate proximate cause. However, [Seals] did not suggest or allege any other form of direct causation on the part of Officer Cook."
"A police officer's actions in pursuing an escaping offender could, under certain circumstances, be the direct cause of injury to a third party involved in a collision with the offender. For example, if an officer intentionally rammed or chased a fleeing offender's vehicle into a third party's vehicle to prevent the offender's escape, then the actions of the officer could be held the proximate cause of any resulting injury to the third party." | January 25, 1991 |
f54284b1-c141-4ec6-af0f-b45f894b28f3 | Brittain v. Jenkins | 83 So. 2d 432 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 432 (1955)
Ed BRITTAIN
v.
W. A. JENKINS, Jr., Judge.
6 Div. 906.
Supreme Court of Alabama.
November 3, 1955.
Rehearing Denied November 28, 1955.
Morel Montgomery, Birmingham, for appellant.
Davies & Williams, Birmingham, for appellee.
MAYFIELD, Justice.
This is an appeal from a final judgment of the Circuit Court of Jefferson County, denying the writ and dismissing the petition for mandamus brought against the Honorable W. A. Jenkins, as Judge of the Intermediate Civil Court of Birmingham, Alabama.
On 4 February 1955 one Jesse Lee Booker filed a complaint against Ed Brittain, the appellant here, in the Intermediate Civil Court of Birmingham, Alabama, for damages resulting from a collision of the automobiles of the plaintiff and defendant.
The appellant, Brittain, filed a plea in abatement in the Intermediate Civil Court, setting up the pendency in the Circuit Court of Jefferson County of a prior action brought by him against Booker for damages arising out of the same collision. As to this plea, the respondent Honorable W. A. Jenkins, Jr., entered the following order:
*433 The appellant, Brittain, then filed his petition for writ of mandamus in the Circuit Court of Jefferson County praying that appellee, Judge Jenkins, be required to sustain appellant's plea in abatement. The respondent's demurrer to this petition was sustained on 6 May 1955. The petitioner, Brittain, refused to plead further, whereupon the petition was dismissed and the costs taxed against the petitioner. From this judgment the instant appeal was perfected.
It is clearly the general rule in this state that if the matters complained of, including a ruling on a plea in abatement, can ultimately be presented by an appeal, mandamus will not ordinarily be granted. Ex parte Morton, 261 Ala. 581, 75 So. 2d 500; Ex parte Jones, 246 Ala. 433, 20 So. 2d 859; Koonce v. Arnold, 244 Ala. 513, 14 So. 2d 512; Ex parte Taylor, 236 Ala. 219, 181 So. 760; State ex rel. Walker's Heirs v. Judge of Orphans' Court of Macon, 15 Ala. 740. Mandamus will not be granted for the mere purpose of a review. Ex parte Jackson, 212 Ala. 496, 103 So. 558, and cases cited therein.
This court, however, acting within its discretion has made certain exceptions to this general rule. A review by mandamus has been allowed where, because of the particular circumstances involved, appeal from a final judgment would not afford adequate reliefthis sometimes referred to as an emergency appeal. Ex parte Merchants National Bank of Mobile, 257 Ala. 663, 60 So. 2d 684; Ex parte Tucker, 254 Ala. 222, 48 So. 2d 24. It has similarly been held that the writ may be employed to vacate certain interlocutory rulings in divorce cases on the additional theory that a vital public interest is involved in such cases. Ex parte Davis, 249 Ala. 221, 30 So. 2d 648; Ex parte Weissinger, 247 Ala. 113, 22 So. 2d 510. The writ was also employed to review an interlocutory ruling in Thomas v. State, 241 Ala. 381, 2 So. 2d 772, a condemnation proceeding involving an automobile allegedly used for the illegal transportation of liquor. As to such use of the writ the opinion in that case cites as authority Ex parte Teague, 241 Ala. 53, 200 So. 892, wherein the propriety of the use of mandamus was not expressly considered.
In the instant case it does not appear that the matter complained of comes within any of the established exceptions to the previously stated general rule. It is, therefore, not necessary for our present consideration that we attempt to reconcile seeming inconsistencies arising out of prior exercise of this court's discretion or that we seek to arrive at a more definitive standard concerning the circumstances under which an exception may be made to the general rule. It is sufficient that we adhere to our prior ruling in the case of Jackson Lumber Co. v. W. T. Smith Lumber Co., 247 Ala. 661, 25 So. 2d 853, 854. There the plaintiff brought an action for conversion and in assumpsit against the defendant. Defendant filed pleas of set-off and to these plaintiff pleaded in abatement. From a judgment sustaining a demurrer to the plea in abatement plaintiff appealed and applied for an alternative writ of mandamus. As to the latter this court held:
It follows that the petition of the appellant was without merit and the judgment of the Circuit Court dismissing that petition is due to be, and is hereby, affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | November 3, 1955 |
85d0fdbe-f579-4823-a87b-7afa152c5e93 | Roan v. McCaleb | 84 So. 2d 358 | N/A | Alabama | Alabama Supreme Court | 84 So. 2d 358 (1955)
Fred E. ROAN
v.
Dale H. McCALEB.
1 Div. 630.
Supreme Court of Alabama.
November 28, 1955.
Rehearing Denied January 12, 1956.
*359 Bart B. Chamberlain, Jr., Mobile, for appellant.
M. A. Marsal, Mobile, for appellee.
PER CURIAM.
Appellee (plaintiff) recovered a judgment for $1,500, in trover, against appellant (defendant) for the conversion of a Ford automobile. The highest value of the Ford at the time of the conversion, or thereafter up to the time of trial as shown by some of the evidence, was $450.
The count in trover made no allegation of aggravating circumstances nor did it expressly claim exemplary or punitive damages. But it is apparent that the jury included an amount for punitive damages since no phase of the evidence justified an award of $1,500 for compensation. There was no claim for special compensatory damages. Swedenburg v. Copeland, Ala., 82 So. 2d 227. Punitive damages may be recovered in a trover suit the same as in trespass. Rhodes v. McWilson, 192 Ala. 675(7), 69 So. 69; Howton v. Mathias, 197 Ala. 457, 73 So. 92; Standard Oil Co. v. Davis, 208 Ala. 565(8), 94 So. 754; Brothers v. Brothers, 208 Ala. 258(2), 94 So. 175; B. F. Goodrich v. Hughes, 239 Ala. 373(11), 194 So. 842; Roberson Motors v. Heath, 36 Ala.App. 578, 60 So. 2d 862. The aggravating circumstances to justify punitive damages need not be alleged in the complaint. Brothers v. Brothers, supra; Sparks v. McCreary, 156 Ala. 382, 47 So. 332, 22 L.R.A., N.S., 1224; Roberson Motors v. Heath, supra.
The defendant was sued personally, not the corporation of which he was president, which was the Toulminville Motors; and he was probably acting for that corporation. Plaintiff's contention is that he carried his Ford automobile to a used car lot and had a negotiation with defendant, without any particular reference to the corporation. Further, that defendant made him an offer for the exchange of the Ford for a used Chevrolet and the payment of $995 by the plaintiff, thereby allowing him a credit of $300 for the Ford. Further, that plaintiff proposed to take the Chevrolet with him over night and try it out and report the next day, but that no trade was made; that defendant told him to sign a paper, which he did not read, so as to have the Chevrolet covered by insurance while in plaintiff's possession. That paper proved to be a printed form of a conditional sale contract with blanks not filled in, and *360 the blanks have never been filled in. That the next morning plaintiff went back to the used car lot and told defendant he had decided not to trade on account of certain defects he found in the Chevrolet. In the meantime the Ford had been sold and disposed of. There was evidence that defendant admitted participating in making that sale. There was also evidence of sharp language used by defendant to plaintiff.
Defendant testified there was a firm trade. So that contention became an issue for the jury. When the jury found for plaintiff that contention was settled for that trial. That was in effect a finding that defendant had not traded for the Ford and had no right to dispose of it. If he participated in doing so he converted it, and became subject to the trover action although he may have been acting for the corporation. Finnell v. Pitts, 222 Ala. 290 (5), 132 So. 2; Meyerson v. New Idea Hoisery Co., 217 Ala. 153(9), 115 So. 94, 55 A.L.R. 1231; 3 C.J.S., Agency, § 221, p. 131, note 93.
If the conversion was committed in known violation of the law and of plaintiff's rights with circumstances of insult, or contumely, or malice, punitive damages were recoverable in the discretion of the jury. Rhodes v. McWilson, supra; Ex parte Birmingham Realty Co., 183 Ala. 444, 63 So. 67.
The evidence further shows that two weeks after the conversion defendant reacquired plaintiff's Ford and offered to return it. Acceptance was refused because plaintiff claimed the Ford was not in the same condition as when left with defendant, but had been damaged. Of course, if the Ford had been accepted by plaintiff that would have been proper matter in mitigation of his damages, King v. Franklin, 132 Ala. 559, 31 So. 467; 89 C.J.S., Trover and Conversion, § 187, p. 653; and defendant's offer to return the Ford, though not accepted by plaintiff, could be considered by the jury in mitigation of punitive damages. Harden v. Conwell, 205 Ala. 191, 87 So. 673; 89 C.J.S., Trover and Conversion, § 199, p. 661, note 14, also §§ 180-187, pages 652-653.
There are only two rulings of the court which are assigned as errornumbers 3 and 4. No. 3 is for not giving the requested affirmative charge for defendant. While No. 4 is for not granting the motion for a new trial. We have demonstrated the absence of error in refusing the affirmative charge.
The assignment of error based upon a denial of the motion for a new trial brings up all questions of law and fact sufficiently set forth in the motion and argued on the appeal. Cobb v. Malone, 92 Ala. 630(2), 9 So. 738; Suits v. Glover, 260 Ala. 449, 71 So. 2d 49, 43 A.L.R.2d 465.
The argument is to the effect that the verdict is contrary to the great weight of the evidence and, in the alternative, that the verdict is excessive.
With respect to the argument that the verdict is contrary to the great weight of the evidence, it is sufficient to say that there was substantial evidence which supports the verdict, and its credibility was for the jury. The trial court in denying the motion for a new trial was not willing to set aside the verdict. We should not do so under the circumstances here shown.
With respect to the amount of the verdict, we have observed that it evidently included punitive damages. This Court in consultation has considered the question of whether the amount is excessive and has concluded not to require a reduction of it.
The judgment should be affirmed.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, GOODWYN and MAYFIELD, JJ., concur. | November 28, 1955 |
413a6fa6-43c4-4a30-9b57-01d65b87cb1f | Sullivan v. Cheatham | 84 So. 2d 374 | N/A | Alabama | Alabama Supreme Court | 84 So. 2d 374 (1955)
L. B. SULLIVAN, as Director, Department of Public Safety,
v.
Frank CHEATHAM.
8 Div. 791.
Supreme Court of Alabama.
November 28, 1955.
Rehearing Denied January 12, 1956.
*375 John Patterson, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., for appellant.
Britnell & McEntire, Decatur, for appellee.
MAYFIELD, Justice.
This is an appeal from the Circuit Court of Morgan County, brought under the provisions of the Motor Vehicle Safety-Responsibility Act, Act No. 704, appvd. Sept. 5, 1951, Gen. Acts of Alabama 1951, pp. 1224-1244, Code 1940, Tit. 36, § 74(42) et seq.
The threshold question for our consideration is whether or not the controversy between these parties, which resulted in this appeal, is now moot. Without specifically so deciding, it would appear from the whole record in this cause, that it is now beyond the power of the Director of Public Safety to take further action against the appellee, Frank Cheatham, under the provisions of Act No. 704, supra.
While there is doubt that there remains a justiciable controversy between the parties; the question presented is one of broad public interest, and one which deserves a decision by this Court. We are cited to no case, nor does our research reveal the existence of a case, construing the particular section of the Act in question. In the cases of Willis v. Buchman, 240 Ala. 386, 199 So. 892, 132 A.L.R. 1179, and Jones v. Crawford, 258 Ala. 278, 62 So. 2d 221, we find authority for the proposition that where a broad public interest is involved it is within the power of this Court to write to the issue even though such decision may not be determinative of any existing rights between the appealing parties.
In the case at bar, the appellee was the driver-owner of an automobile involved in a collision with one Stinson on 2 January 1954. Both parties filed accident reports with the appellant Director of Public Safety, within ten days after the accident. Stinson filed an affidavit claiming damage to his automobile in the amount of $568.50. On 11 February 1954, the Director of Public Safety commanded the appellee Cheatham to post with his Department the prescribed form showing that he had the requisite liability insurance policy, or in the alternative *376 to post bond in the amount of $568.50. The appellee was advised that unless he complied with this directive he was to turn over to the Department his driver's license, his registration certificates and license plates on or before 7 March 1954; such plates and licenses were subject to suspension under the terms of the Alabama Motor Vehicle Safety-Responsibility Act.
The appellee failed to post bond or give evidence of liability insurance and challenged the order of suspension. On 11 February 1954, the appellee took an appeal from the Director's order to the Circuit Court of Morgan County. The Circuit Court, without a jury, set aside the order of the Director. Appellant's motion for a new trial was overruled and the instant appeal was perfected.
The position of the appellee, both in the Court below and here, is that he was guilty of no fault or negligence in connection with the accident and, therefore, did not have to comply with the terms of the Act requiring the posting of security. The evidence of the appellee in the Trial Court tended to support his freedom from culpability in connection with the accident. The Trial Court ruled in favor of the appellee's contention. The most pertinent portion of such ruling is as follows:
The Court further held that it was its opinion from the evidence that the appellee was not liable to anyone for damages from this accident, and that accordingly the order of the Director should be set aside.
The question for our decision is whether or not the possible or probable existence of civil liability for an automobile accident, is a consideration in determining whether or not a particular owner or driver of an automobile is required to comply with the applicable provisions of the Motor Vehicle Safety-Responsibility Act. The language of the Act is as follows:
Section 2(b) of the Act provides that an appeal to the circuit court from any order or decision of the Director may be taken. This subsection further provides:
While this Court has not previously construed these sections, similar acts in other jurisdictions have been considered by appellate courts of some of our sister states.
Sections 2, 4, and 5 of the Texas Motor Vehicle Safety-Responsibility Act, Vernon's Ann.Civ.St. art. 6701h, are substantially identical to those same numbered sections of the Alabama Act. In Gillaspie v. Department of Public Safety, 152 Tex. 459, 259 S.W.2d 177, 181, the Supreme Court of Texas held:
In construing a section of the Kentucky Motor Vehicle Financial Responsibility Law, KRS 187.330, which is markedly similar to section 5 of the Alabama Act, the Court of Appeals of that state succinctly stated:
In the leading case of Rosenblum v. Griffin, 89 N.H. 314, 197 A. 701, 703, 115 A.L.R. 1367, it was stated by the New Hampshire Supreme Court:
See, also, Doyle v. Kahl, 242 Iowa 153, 46 N.W.2d 52; State v. Stehlek, 262 Wis. 642, 56 N.W.2d 514; Hadden v. Aitken, 156 Neb. 215, 55 N.W.2d 620, 35 A.L.R.2d 1003.
As we view it, the Act does not invest the Director with a discretion to determine who shall be required to post security for a given accident. The purpose of the Act is clearly to require and establish financial responsibility for every owner or operator of a motor vehicle "in any manner involved in an accident." To allow the Director, through his officers and agents, to decide the civil responsibility for accidents occurring on the highways would be a usurpation of the judicial function. The Act is designed to protect all persons having claims arising out of highway accidents.
While learned counsel argues with much force that it would be harsh to require an innocent accident victim to comply with the requirements of the Act, nevertheless it is clear that the Act was designed for the benefit of the public generally, and such public benefit would be seriously compromised if compliance was made dependant on a preliminary non-judicial determination of the existence of liability.
Some jurisdictions have, within their police power, required the operators of motor *379 vehicles to furnish evidence of financial responsibility before the issuance of a driver's license or certificate of registration. Our statute has oft been criticized as "allowing one free accident". Needless to say, the terms and application of the Act were a matter for the legislature; so long as they violate no constitutional guarantees.
Accordingly, we conclude that the Circuit Court was in error in setting aside the Director's order on the grounds that the appellee was free from fault in the particular accident. The judgment is due to be reversed and the cause remanded with instructions to dispose of any justiciable controversy that may still exist between the parties.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | November 28, 1955 |
2f090f85-c9bd-4e79-9d74-464f1fb335d0 | Parr v. City of Birmingham | 85 So. 2d 888 | N/A | Alabama | Alabama Supreme Court | 85 So. 2d 888 (1955)
Ronnie PARR, pro aml,
v.
CITY OF BIRMINGHAM.
6 Div. 948.
Supreme Court of Alabama.
December 22, 1955.
Rehearing Denied March 22, 1956.
Hogan & Callaway, Birmingham, for appellant.
W. L. Clark, Birmingham, for appellee.
MERRILL, Justice.
Appellant, a minor suing by next friend, sought damages against the City of Birmingham for injuries sustained when a wrought iron plaque fell on and broke his leg while he was in the Birmingham Art Museum which is located in the City Hall. The demurrer to appellant's complaint was sustained; he took an involuntary non suit because of the adverse ruling of the court and has appealed.
The real question before us is whether the operation of the museum by the City of Birmingham is a corporate act or an act in the exercise of a governmental function.
The statute authorizing museums is Code 1940, Title 37, Sec. 511, which reads:
Pursuant to this statute the Commission of City of Birmingham adopted Ordinance No. 783-F in August 1950 which provided for the creation of a Museum Board of the City of Birmingham to manage and operate a museum in space provided in the City Hall, but "The Board shall not have the right to sue or be sued, and all property and property interests accruing to it shall *889 be vested in and held for the City". Section 3 of the Ordinance reads:
In our recent case of City of Bay Minette v. Quinley, Ala., 82 So. 2d 192, 194, we discussed corporate acts and governmental functions of a municipality and although many other pertinent statements could be used, we quote the following where the court said:
It is clear to us that the operation of the Museum is not for the special benefit or profit of the corporate entity, but is for the common good of all and is in "the exercise of the sovereign power for the benefit *890 of all citizens," and was therefore, in the exercise of a governmental function. See also Williams v. City of Birmingham, 219 Ala. 19, 121 So. 14, and authorities therein cited where it was held that the operation of a golf course was a public governmental function and the city was immune from tort liability with respect to such function, even though reasonable fees were charged for the use of the course by the public.
It follows that the judgment of the circuit court should be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | December 22, 1955 |
6d452779-3a8d-4908-a3b8-e06f890f9aae | Siegelman v. Chase Manhattan Bank | 575 So. 2d 1041 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1041 (1991)
Don SIEGELMAN, as Attorney General for the State of Alabama
v.
CHASE MANHATTAN BANK (USA), NATIONAL ASSOCIATION.
CHASE MANHATTAN BANK (USA), NATIONAL ASSOCIATION
v.
Don SIEGELMAN, as Attorney General for the State of Alabama.
89-1020, 89-1104.
Supreme Court of Alabama.
January 11, 1991.
David Cromwell Johnson, Sp. Asst. Atty. Gen., Birmingham, and Thomas Whitwell Bowron II of Polson, Jones, Bowron & Robbins, Birmingham, for appellant/cross-appellee.
William D. Coleman and Richard F. Allen of Capell, Howard, Knabe & Cobbs, Montgomery, and Andrew J. Noble III of Bradley, Arant, Rose & White, Birmingham, for appellee/cross-appellant.
HORNSBY, Chief Justice.
This case presents the question of whether the financial institution excise tax, levied pursuant to Ala.Code 1975, § 40-16-1 et seq., applies to the credit card business conducted by national banks located outside Alabama with Alabama residents. The trial court, relying on this Court's decision in Ex parte Dixie Tool & Die Co., 537 So. 2d 923 (Ala.1988), held that because Alabama's financial institution excise tax was enacted at a time when the State was prohibited by federal law from taxing out-ofstate national banks and the legislature was aware of this federal law when enacting the tax, the tax could not be levied on these banks. We affirm.
The attorney general of the State of Alabama sued Chase Manhattan Bank (USA), *1042 National Association; Citibank (South Dakota), N.A.; Maryland Bank, N.A.; Bank of America National Trust and Savings Association; Colonial National Bank USA; and First Interstate Bancard Company, N.A., seeking a judgment declaring that the financial institution excise tax levied pursuant to Ala.Code 1975, § 40-16-1 et seq. ("the excise tax"), applies to out-ofstate national banks that solicit applications from residents of Alabama for Visa and MasterCard credit cards issued by these banks. By agreement, the banks are acting through Chase Manhattan Bank (USA), National Association ("Chase").
The facts of the case are stipulated as follows:
"1. The Chase Manhattan Bank (USA), National Association (`Chase') is a National Banking Association.
"2. Chase is located in Wilmington, Delaware and has no offices, branches or other places of business in Alabama....
"3. To facilitate the making of loans as authorized by the National Bank Act, Chase maintains credit card accounts.
"4. Chase issues credit cardsboth Visa and MasterCard.
"5. Chase has been issuing Visa credit cards since February, 1982 and MasterCard credit cards since March, 1985.
"6. Chase has issued Visa and Mastercard credit card accounts to persons residing in Alabama as well as to persons residing in other states.
"7. Since 1982 Chase has opened approximately 50,000 Visa and MasterCard credit card accounts with persons having billing addresses in Alabama out of a total of more than 4,000,000 credit card accounts opened by Chase during such period.
"8. From outside Alabama by direct mail Chase solicits credit card applications from persons residing throughout the United States, including from time to time persons residing in Alabama.
"9. Since 1982, Chase has from outside Alabama by direct mail solicited applications for credit card accounts from persons residing throughout the United States including, from time to time, persons residing in Alabama, and continues to solicit applications by direct mail from time to time from persons with Alabama addresses along with persons having addresses elsewhere.
"10. The Visa and MasterCard credit cards that are issued to persons residing in Alabama are valid for a term certain, up to 2 years, and the credit card may be used by the cardholder as long as he or she complies with the terms of the credit card agreement. The credit cards remain the property of Chase, and may be recalled by Chase or returned by the cardholder for any reason, or for no reason and have no value as a tangible item in and of themselves.
"11. An annual fee of $20.00 is charged on most Visa and MasterCard credit card accounts maintained with Chase by persons residing in Alabama; interest and fees are charged by Chase pursuant to the credit agreement ... in connection with said accounts.
"12. Chase has on occasion used the courts of Alabama to collect accounts of persons residing in Alabama which are delinquent.
"13. Persons residing in Alabama may use Visa and Mastercards throughout the United States and the world to purchase merchandise and services or to obtain cash advances.
"14. When Chase opens a credit card account in Delaware with a person residing in Alabama, that person is given a line of credit.
"15. Chase has never filed an excise tax return with the State of Alabama Department of Revenue.
"16. Chase has never paid any excise taxes to the State of Alabama Department of Revenue.
"17. Chase pays state franchise tax based on net income to the State of Delaware based upon 100% of its net income, and Chase does not pay income tax, Financial Institution Excise Tax, or any other income-based tax to any state except the State of Delaware.
*1043 "18. Chase's principal business consists of making loans in connection with its credit card accounts.
"19. A person residing in Alabama may obtain a Visa or MasterCard credit card account with Chase and obtain an extension of credit with respect to such account as follows:
"20. Chase Visa and MasterCard accounts may also be accessed through the use of credit card checks which when used are negotiated like any other check and clear through the Federal Reserve System in the same manner as checks drawn on checking accounts and are honored or dishonored by Chase in Delaware. A credit card may be used to obtain a cash advance from certain banks. Drafts for cash advances are settled through Visa (USA) Inc. or MasterCard International, Inc. interchange centers located outside Alabama along with sales slips amounts as described in paragraph 19(8).
"21. The relationship between the cardholder and Chase is governed by the Agreement....
*1044 "22. Chase does not act as a merchant bank for any merchant located in the State of Alabama.
"23. Chase has no directors, officers, agents or employees in Alabama, and it does not regularly send its directors, officers, agents or employees into Alabama in connection with performance of their duties for the bank.
"24. Chase does not receive payments in Alabama.
"25. Chase has no material contacts with Alabama other than those relating to credit card accounts described above.
"26. No national bank located outside the State of Alabama currently or in the past has paid the Financial Institution Excise Tax to the State of Alabama.
"27. No state or national bank, which does not have an office or branch in Alabama, pays or has paid the Financial Institution Excise Tax nor has such tax ever been assessed against any such entity by the State of Alabama. A number of such state and national banks without offices or branches in Alabama issue credit cards or provide other financial services to Alabama residents.
"28. Financial institutions with offices in Alabama pay the Financial Institution Excise Tax based on 100% of their income attributable to such offices regardless of the residence of their customers."
We must consider whether Alabama's excise tax can be imposed on the credit card business conducted by national banks located outside Alabama with Alabama residents. The State argues that the trial court would have held that the State could tax income derived by Chase from Alabama credit card holders "but for" the existence of 12 U.S.C. § 548, see infra, when the statute levying the excise tax (the "Excise Tax Statute") was enacted in 1935. In reaching its decision, the trial court relied on this Court's holding in Ex parte Louisville & Nashville R.R., 398 So. 2d 291 (Ala. 1981), Ex parte Dixie Tool & Die Co., supra, and N. Singer, 2A Sutherland Statutory Construction § 45.12 (Sands 4th ed. 1984), in finding that the legislature is presumed to be aware of existing federal laws and judicial enlargements when statutes are enacted or amended. Consequently, the trial court reasoned, the failure of the legislature to amend or reenact the Excise Tax Statute once Congress changed federal law to allow states to impose taxes on out-of-state national banks indicates the legislature's intent not to impose the excise tax on out-of-state national banks.
The State contends that the only impediment to the trial court's imposition of the excise tax on Chase is that the Excise Tax Statute was enacted when federal law prohibited such taxation. The State asserts that once that impediment was removed, the excise tax became fully applicable to out-of-state national banks. The State further argues that from the inception of the excise tax in 1935 to the most recent amendment in 1978 the Excise Tax Statute included any person, firm, or corporation doing business in Alabama as a national banking association.[1] In support of that argument, the State relies on the preamble to the Alabama Department of Revenue Regulations, which states that the excise tax is levied to give effect to federal law limiting the rights of states to tax national banking associations.[2] The State contends, based on Alabama statutes and the revenue regulations, that any national banking association or national bank doing business in Alabama is subject to the excise tax and that neither the statutes nor the regulations preclude taxation of out-of-state national banks.
*1045 Chase argues that the Excise Tax Statute has the same applicability today that it had when it was first enacted. Chase contends that both Ex parte Dixie Tool & Die Co., supra, and Ex parte Louisville & Nashville R.R., supra, control the resolution of this case, because the legislature is presumed to be aware of existing limitations on the state's power to act or of judicial enlargement of the state's permissible area and method of taxation.
To determine whether the excise tax applies to out-of-state national banks such as Chase, we must look to the language of the statute to determine the legislature's intent. See Tin Man Roofing Co. v. Birmingham Board of Educ., 536 So. 2d 1383 (Ala.1988), and Ex parte Holladay, 466 So. 2d 956 (Ala.1985) (duty of court in construing statute is to ascertain legislative intent, which may be gleaned from the language used, reason and necessity for the act or statute, and the purpose sought to be obtained). When determining legislative intent from the language used in a statute, a court may explain the language but it may not detract from or add to the statute. State ex rel. Graddick v. Jebsen S. (U.K.) Ltd., 377 So. 2d 940 (Ala.1979); Town of Loxley v. Rosinton Water, Sewer & Fire Protection Auth., Inc. 376 So. 2d 705 (Ala.1979); Employees' Retirement Sys. of Alabama v. Head, 369 So. 2d 1227 (Ala.1979); Alabama Indus. Bank v. State ex rel. Avinger, 286 Ala. 59, 237 So. 2d 108 (1970); May v. Head, 210 Ala. 112, 96 So. 869 (1923). Courts may not improve a statute, but may only expound it. Lewis v. Hitt, 370 So. 2d 1369 (Ala.1979); Alabama Indus. Bank, supra. In the case of taxing statutes, such statutes are to be construed strictly in favor of the taxpayer and against the taxing authority. Eagerton v. Terra Resources, Inc., 426 So. 2d 807 (Ala. 1982).
Accordingly, we must first look at the language of the Excise Tax Statute to determine the legislative intent. The excise tax applies to every "financial institution." That term is defined in Ala.Code 1975, § 40-16-1(1), in part, as follows:
The Excise Tax Statute further provides:
Ala.Code 1975, § 40-16-4.
Although the Excise Tax Statute defines "financial institution" as "any person, firm, corporation and any legal entity whatsoever doing business in this state as a national banking association," it does not explicitly include out-of-state national banks operating in the State in the same manner as Chase. In looking at the statute as a *1046 whole,[4] we find further evidence that the Excise Tax Statute does not include out-ofstate national banks in § 40-16-6. Section 40-16-6 provides for the distribution of income derived from the excise tax to the municipalities and counties "in which such financial institutions are located." Section 40-16-6 provides that one-quarter of the proceeds derived from the excise tax is distributed to the county, one-half of the proceeds derived from the excise tax is distributed to the municipality, and onequarter of the proceeds derived from the excise tax is distributed to the State's general fund. The factor controlling the distribution of the excise tax proceeds is the location of the financial institution. There is no provision in the Excise Tax Statute for the distribution of excise tax proceeds when a financial institution is not located in a county or a municipality in the State.[5]
Because the Excise Tax Statute does not expressly encompass national banks located outside Alabama and because no provision is made for the distribution of any proceeds derived from financial institutions not located in a county or a municipality in the State, we must look beyond the language of the statute. Although rules of statutory construction aid in ascertaining legislative intent, other factors may also be considered in resolving questions of legislative intent. Ex parte Burns, 266 Ala. 241, 96 So. 2d 308 (1957). In addition to looking at the language of the statute, courts may also look to the history of a statute. Bowlin Horn v. Citizens Hosp., 425 So. 2d 1065 (Ala.1982). Courts, however, may not indulge in conjecture or search for imaginary purposes. Alabama Indus. Bank v. State ex rel. Avinger, supra; State v. Zewen, 270 Ala. 52, 116 So. 2d 373 (1959). Additionally, courts may not "amend statutes so as to make them express what [the courts] conceive the legislature would have done or should have done." Town of Loxley v. Rosinton Water, Sewer & Fire Protection Auth., Inc., supra, at 708 (relying on May v. Head, supra). Neither is it the role of the courts to "usurp the role of the legislature and correct defective legislation or amend statutes under the guise of [judicial] construction." Town of Loxley v. Rosinton Water, Sewer & Fire Protection Auth., Inc., supra, at 708 (relying on Employees' Retirement Sys. of Ala., supra); see also Ex parte Holladay, 466 So. 2d 956 (Ala.1985).
A statute levying an excise tax was first enacted on October 22, 1932 (Ala.Acts 1932, Extra Session, Act No. 111, p. 107), but that statute was later repealed and was reenacted with amendments on April 4, 1933 (Ala.Acts 1933, Extra Session, Act No. 111, p. 104). The legislature repealed that statute and enacted the present Excise Tax Statute as part of the general revenue bill of 1935. Ala.Acts 1935, Act No. 194, Art. XII, Ch. I, §§ 346.1-346.6, pp. 428-34. Subsequent amendments have been adopted, but the legislature has never made provisions to include out-of-state national banks.
The purpose in levying the excise tax is to raise revenue for the State, not to enforce national or state banking laws. First Nat'l Bank v. State, 262 Ala. 155, 164, 77 So. 2d 653, 660 (1954) (Department of Revenue assessed an excise tax against a national bank on net income earned on a exchange/sales transaction). This Court has recognized that the Excise Tax Statute did not apply to out-of-state national banks because of the federal prohibition against such taxation. In State v. First Nat'l Bank of Mobile, 239 Ala. 492, 196 So. 114 (1940), the Court addressed the issue of whether bond premium amortization deductions made by a national bank in computing *1047 its net income for purposes of the state excise tax should be allowed or disallowed. In reaching its decision that part of the deductions claimed by the bank should be allowed while other deductions should be disallowed, the Court examined the relation between federal law and state law. The Court stated that:
Id. at 494, 196 So. 114. The Court further stated:
Id. at 496, 196 So. 114.
In 1969, Congress added a temporary amendment and a permanent amendment[6] to § 5219 of the Revised Statutes, 12 U.S.C. § 548. Public L. No. 91-156, S.Rep. No. 92-448, 92d Cong., 1st Sess., reprinted in, 1971 U.S.Code Cong. & Admin.News 2317, 2321. The temporary amendment provided:
Act of December 24, 1969, Pub.L. No. 91-156, 1969 U.S.Code Cong. & Admin.News (83 Stat.) 457-58.[7]
In 1973, Congress imposed a moratorium until September 12, 1976, during which time States could impose only one tax in addition to those enumerated in the temporary amendment to Public L. No. 91-156.[8] This moratorium expired without any action by Congress, leaving states free to tax out-of-state national banks subject to the permanent amendment to § 548. 12 U.S.C. § 548 provides:
In addition to the changes made by Congress, the United States Supreme Court has changed its analysis of the application of the Commerce Clause to state taxing statutes. Prior to its decision in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S. Ct. 1076, 51 L. Ed. 2d 326 (1977), the *1048 Supreme Court had held that any state tax imposed on the "privilege of doing business" in interstate commerce was per se unconstitutional. Spector Motor Serv., Inc. v. O'Connor, 340 U.S. 602, 71 S. Ct. 508, 95 L. Ed. 573 (1951). However, in Complete Auto Transit, Inc., the Supreme Court rejected this per se rule, reasoning that no economic consequence existed under the Spector rule and that the rule obscured the question of whether a state tax was unconstitutional. In rejecting the Spector rule, the Supreme Court enunciated a four-pronged test permitting states to tax interstate commerce as long as "the tax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State." 430 U.S. at 279, 97 S. Ct. at 1079. See also Amerada Hess Corp. v. Director, Div. of Taxation, New Jersey Dept. of the Treasury, 490 U.S. 66, 109 S. Ct. 1617, 104 L. Ed. 2d 58 (1989); Goldberg v. Sweet, 488 U.S. 252, 109 S. Ct. 582, 102 L. Ed. 2d 607 (1989); American Trucking Ass'ns, Inc. v. Scheiner, 483 U.S. 266, 107 S. Ct. 2829, 97 L. Ed. 2d 226 (1987); Wardair Canada, Inc. v. Florida Dep't of Revenue, 477 U.S. 1, 106 S. Ct. 2369, 91 L. Ed. 2d 1 (1985); Armco, Inc. v. Hardesty, 467 U.S. 638, 104 S. Ct. 2620, 81 L. Ed. 2d 540 (1984); Commonwealth Edison Co. v. Montana, 453 U.S. 609, 101 S. Ct. 2946, 69 L. Ed. 2d 884 (1981); Washington Stevedoring Cos. v. Department of Revenue, 435 U.S. 734, 98 S. Ct. 1388, 55 L. Ed. 2d 682 (1978). For a discussion of the history of state taxation under the Commerce Clause, see Hellerstein, State Taxation of Interstate Business: Perspectives on Two Centuries of Constitutional Adjudication, 41 Tax Law. 37 (1987).
In the case presently before us, the trial court in its opinion stated that Ex parte Dixie Tool & Die Co., supra, controlled the resolution of the case:
In Dixie Tool & Die Co., the Alabama Department of Revenue assessed a sales tax against an Alabama corporation for sales made to out-of-state buyers and to federal government contractors. The Court in Dixie Tool & Die Co. considered whether sales made by the corporation to out-of-state purchasers were subject to Alabama's sales tax. The sales tax provision in question was Ala.Code 1975, § 40-23-4(a)(17). This code section provides:
In its opinion, the Court in Dixie Tool & Die Co. recognized that the United States Supreme Court allowed taxation of interstate *1049 commerce if the tax met certain criteria. However, the Court stated:
537 So. 2d at 925 (quoting Ex parte Louisville & Nashville R.R., 398 So. 2d 291, 293 (Ala.1981) (emphasis in original)).
The trial court also relied on Ex parte Louisville & Nashville R.R., supra. In Ex parte Louisville & Nashville R.R., the Court considered "whether Alabama's gross receipts tax upon a railroad's earnings from `intrastate business' applies to receipts generated by the L & N Railroad's movement of goods between two points in Alabama." Id. at 292. The railroad gross receipts tax statute in question, Ala.Code 1975, § 40-21-57, provided:
The Court stated that the controlling issue in the case was whether in originally enacting the statute the legislature intended to tax these transactions:
398 So. 2d at 296-97. See also State v. Southern Elec. Generating Co., 274 Ala. 668, 151 So. 2d 216 (1963).
Like the question in Dixie Tool & Die Co. and Ex parte Louisville & Nashville R.R., the question before us is whether in originally enacting the Alabama Excise Tax Statute, the legislature intended to tax the net income derived by out-of-state national banks from solicitation of credit card applications from Alabama residents.
In determining the intent of the legislature, we presume that in enacting the Excise Tax Statute the legislature was aware of existing prohibitions against the State's power to tax national banks. When the Excise Tax Statute was enacted in 1935, federal law and judicial interpretation prohibited states from taxing out-of-state national banks. It was not until the Congressional moratorium expired in 1976 that states were allowed to tax out-of-state national banks. Even after the expiration of the moratorium in 1976, the Alabama legislature failed to amend or to reenact the Excise Tax Statute in light of the federal change. See Freeman v. Jefferson County, 334 So. 2d 902, 904 (Ala.1976) ("the rejection of an [a]mendment by the Congress which would have made the statute applicable to a given situation furnishes a strong inference that the statute was not intended to be applicable to that given situation"). Also, the Alabama legislature failed to amend or to reenact the Excise Tax Statute after the United States Supreme Court's 1977 announcement that there would no longer be a per se ban on taxation of interstate commerce. In fact, the last amendment to the Excise Tax Statute occurred in 1978, after the change in both federal statutory and judicial law that would have allowed taxation of out-of-state national banks, and no provision was then made for such taxation. Ala.Acts 1978, Special and Regular Sessions, Act No. 840, p. 1247. We do note, however, that a bill was introduced in the 1990 Regular Session of the Alabama legislature for the stated purpose of extending the Excise Tax Statute to out-of-state national banks, but it was not enacted. House Bill No. 944, Legislative Digest, Final Status p. 14 (May 3, 1990).[9]
In the present case, we recognize that under existing federal law and judicial enlargement states are able to tax out-ofstate national banks if their taxing measures are nondiscriminatory. See 12 U.S.C. § 548 (1988). However, when the Excise Tax Statute was enacted in 1935, federal law prevented taxation of out-of-state national banks. In addition to the changes implemented by Congress in 1976, the United States Supreme Court changed its position so as to allow taxation of interstate commerce. See Complete Auto Transit, Inc. v. Brady, supra.
Under prevailing Alabama statutory construction law, we presume that the legislature was aware of the federal law in 1935 and of the subsequent changes in that law in 1976, as well as the changes in the United States Supreme Court's analysis of the taxation of interstate commerce. Ex parte Louisville & Nashville R.R., supra, *1051 and Ex parte Dixie Tool & Die Co., supra. Although the Alabama legislature presumably was aware of Congress's enlargement of state taxing power over national banks, and of the United States Supreme Court's enlargement in regard to taxation of interstate commerce, it made no changes to the Excise Tax Statute.
This Court's role is not to displace the legislature by amending statutes to make them express what we think the legislature should have done. Nor is it this Court's role to assume the legislative prerogative to correct defective legislation or amend statutes. Consequently, we conclude that the Excise Tax Statute applies today in the same manner that it did when it was first enacted. Because states were prohibited from taxing out-of-state national banks at the time the statute levying the excise tax was first enacted and judicial interpretation disallowed taxation of interstate commerce, the State may not tax Chase, an out-ofstate national bank, in the absence of additional action by the Alabama legislature.
Because we hold that the Excise Tax Statute does not apply to Chase, we need not address any further issues raised. Consequently, the trial court's summary judgment in Chase's favor is due to be affirmed.
AFFIRMED.
ALMON, SHORES, HOUSTON, and KENNEDY, JJ., concur.
MADDOX and STEAGALL, JJ., concur specially, with opinion by STEAGALL, J.
STEAGALL, Justice (concurring specially).
I write specially to say that, in my opinion, out-of-state banks should be taxed in the same manner that in-state banks are taxed on revenues generated through credit cards held by Alabama citizens. This course of action is now available because existing federal laws permit taxation of out-of-state national banks. If I were in the legislature, I would support legislation to accomplish this result. However, I agree with the majority that the role of the judiciary is limited and that this matter should remain in the hands of the legislature.
MADDOX, J., concurs.
[1] In oral arguments before this Court, the State argued that the intent of the legislature in enacting the act levying the excise tax was to tax a transaction rather than a "person."
[2] "The Excise Tax on Financial Institutions is levied to give effect to the provisions of Federal law limiting the right of the states to tax national banking associations. It is not a tax on income but is an excise tax measured by income. The proceeds of the tax, after the expense of administration, are distributed one-half to the municipalities, one-fourth to the counties and onefourth to the general fund of the State."
Dept. of Rev.Reg., Preamble (emphasis added).
[3] The Department of Revenue, pursuant to the authority granted to it by Ala.Code 1975, § 40-16-3(e), further defines a "financial institution" as a "national banking association of any persons or entity which by employing monied capital as its principal business activity comes into competition with the business of national banks." Dept. of Rev.Reg. 810-9-1-.01(1) (1982). "Financial institutions" include common parent corporations but do not include insurance companies, individual citizens or fiduciaries who act in a representative capacity for individual citizens "merely because they make loans or investments of funds in bonds, notes or other evidences of indebtedness if such transactions are not made in competition with the business of national banks." Id. 810-9-1-.01(1)(b).
[4] "The cardinal rule for construction of a statute is to ascertain the legislative intent, which must be determined by examining the statute as a whole in light of its general purpose." Gulf Coast Media, Inc. v. Mobile Press Register, Inc., 470 So. 2d 1211, 1213 (Ala.1985). See also State ex rel. Moore v. Strickland, 289 Ala. 488, 268 So. 2d 766 (1972); Vick v. Bishop, 252 Ala. 250, 40 So. 2d 845 (1949).
[5] See also Ala.Code 1975, § 40-16-4(d): "The state shall have a lien upon the property of such taxpayer as provided for in this title for the collection of the taxes herein assessed." For such a lien to be enforced, Chase would have to have some property located in this state.
[6] The permanent amendment to § 5219 appears in the current version of 12 U.S.C. § 548 (1988).
[7] The temporary amendment was effective from December 24, 1969, through January 1, 1972.
[8] The State Taxation of Depositories Act of August 16, 1973, Public L. No. 93-100, 1973 U.S. Code Cong. & Admin.News (87 Stat.) 391, 397, provides:
"(b) The Congress finds that the national goals of fostering an efficient banking system and the free flow of commerce among the States will be furthered by clarifying the principles governing State taxation of interstate transactions of banks and other depositories. Application of taxes measured by income or receipts, or other `doing business' taxes, in States other than the States in which depositories have their principal offices should be deferred until such time as uniform and equitable methods are developed for determining jurisdiction to tax and for dividing the tax base among States.
"(c) With respect to any taxable year or other taxable period beginning on or after the date of enactment of this section and before January 1, 1976, no State or political subdivision thereof may impose any tax measured by income or receipts or any other `doing business' tax on any insured depository not having its principal office within such State."
[9] Other states have actively passed legislation in the face of the changes in federal law so as to tax the kind of transactions at issue in the present case. These states include Indiana, Iowa, and Tennessee. | January 11, 1991 |
c0f2e217-8b76-472c-8a75-375ea4ee149d | Stone Container Corporation v. Stapler | 83 So. 2d 283 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 283 (1955)
STONE CONTAINER CORPORATION
v.
William T. STAPLER et al.
1 Div. 635.
Supreme Court of Alabama.
November 10, 1955.
*284 Robt. B. Wilkins, Mobile, for appellant.
Alexander Foreman. Jr., Mobile, for appellees.
LAWSON, Justice.
William T. Stapler and several other persons who reside in a subdivision of the City of Mobile known as "Chateauguay Place" filed this bill in the circuit court of Mobile County, in equity, against Stone Container Corporation, a corporation. The bill, as amended, was for an injunction to require the abatement of a nuisance and for damages. To the bill as amended, hereafter referred to as the bill, the respondent filed a demurrer addressed to the bill as a whole, which was overruled by the trial court. From that decree the respondent has appealed to this court.
According to the averments of the bill, the thirty-one persons named therein as complainants own seventeen separate tracts of land in "Chateauguay Place." Three *285 individuals each own one tract. Each of fourteen couples, that is, husband and wife, appear to own one of the remaining tracts, although the relationship of man and wife is not expressly averred.
Paragraph Two of the bill reads, in part, as follows:
In other subparagraphs of Paragraph Two are set out similar averments as to all of the other complainants. The description of each tract of land contains the language italicized above, "said portion being bounded on the North by the South bank of Three Mile Creek." Paragraph Three of the bill reads:
The bill as amended contains many details of facts concerning the alleged nuisance and the injury suffered thereby, which we hereafter summarize.
When this bill was filed and for a period of time not in excess of four years prior thereto, respondent maintained its manufacturing plant at a point near the western limits of the City of Mobile on lands adjacent to Three Mile Creek, hereafter referred to as the creek. For use in connection with the manufacture of its finished products, the respondent pumps water from the creek into its plant and after the water has served the purpose for which it is withdrawn, it is discharged into the creek. When the water is withdrawn from the *286 creek it is clear and is suitable for fish to live in, for bathing and other sports, and for irrigation and manufacturing purposes. The respondent uses waste paper, pulp and dyes in connection with the manufacture of its finished products and as a result of the negligent, improper or wrongful manner in which the respondent discharges the water from its plant there is deposited in the creek "a great quantity of dye and suspended solids, in the form of pulp."
The waters and waste so discharged from the plant of the respondent discolor the creek and render it unsightly, filthy and unsanitary and cause the waters of the creek as they pass complainants' property and the property dedicated for public parks and as they flow under the public bridges to emit foul, deleterious, unpleasant, discomforting, noxious and unwholesome odors which permeate the air above such properties and enter the homes of complainants unless windows and doors are kept closed.
The matter so discharged into the creek has rendered it unfit for fish life, sports, irrigation or domestic purposes.
At times the waste matter so discharged has caused the creek to become almost stagnant and the waste then tends to congregate into small islands in the stream, which are favorable to the protection of the larvae of mosquitoes, which mosquitoes invade the atmosphere over the property of complainants and bite and annoy complainants, members of their families and their guests.
Some of the waste so discharged tends to fill up the bed of the creek and as a result at times of heavy rains the creek overflows its banks onto parts of the tracts of land owned by the complainants, and when the waters recede and return to their regular channel, large sheets of the pulp waste are left on the complainants' property, thereby disturbing the peace, comfort, health and rest of the complainants and depriving them of the lawful use of their land.
The action of the respondent in discharging the waste from its plant into the creek is continuous and has caused the value of complainants' property to become greatly depreciated.
In substance the bill prays that on final hearing the court will enter an order requiring the respondent, its officers, agents, servants and employees to cease discharging waste from its paper mill into the creek and requiring the respondent to clear and rid the bed of the creek of the deposits of matters discharged therein by the respondent. The bill also prays that the respondent be required to compensate the complainants for damages suffered by them during the twelve-month period immediately preceding the filing of the bill as a result of the alleged nuisance maintained by respondent.
The decree of the trial court reads in part as follows:
From that decree the respondent has appealed to this court and has made six assignments of error, the first of which challenges the action of the trial court in overruling the demurrer to the bill as a whole. The other assignments of error are to the effect that the trial court erred in overruling the demurrer to the several aspects which appellant and perhaps the trial court evidently considered the bill to encompass.
The demurrer, containing forty-two grounds, begins: "Comes now the Respondent and demurs to the bill of complaint as amended heretofore filed in the above styled cause and to each aspect thereof separately and severally, and for grounds therefor, sets down the following, separately and severally: * * *" Under repeated decisions of this court the demurrer was addressed only to the bill as a whole. First Nat. Bank of Birmingham v. Bonner, 243 Ala. 597, 11 So. 2d 348; Wells v. Wells, 249 Ala. *287 649, 32 So. 2d 697; Smith-Howard Gin Co. v. Ogletree, 251 Ala. 366, 37 So. 2d 507, and the many cases there cited; Cook v. Whitehead, 255 Ala. 401, 51 So. 2d 886; Groover v. Darden, 259 Ala. 607, 68 So. 2d 28.
It follows therefore that we will consider only the first assignment of error, which, as heretofore indicated, challenges the action of the trial court in overruling the demurrer to the bill as a whole. If any ground for relief, as pleaded, is sufficient, then the demurrer addressed to the bill as a whole was properly overruled, even though other aspects, if any, might be defective. Sellers v. Valenzuela, 249 Ala. 620, 32 So. 2d 520; Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So. 2d 11; City of Birmingham v. Fairview Home Owners Association, 259 Ala. 500, 66 So. 2d 775; Walker v. Walker, 261 Ala. 168, 73 So. 2d 522.
Section 1081, Title 7, Code 1940, defines nuisances as follows:
And the definition of a public and private nuisance is found in § 1084, Title 7, Code 1940, which reads:
Section 1086, Title 7, Code 1940, provides:
The averments of the bill establish a public nuisance. Richards v. Daugherty, 133 Ala. 569, 31 So. 934. In Mayor and Aldermen of Birmingham v. Land, 137 Ala. 538, 545-546, 34 So. 613, 615, this court held:
And we are fully persuaded that the averments of the bill show the complainants suffer from the conduct of respondent an inconvenience, annoyance and injury not endured by the general public and, of consequence, they suffer a substantial damage peculiar to them, not suffered in common by the general public. Being so circumstanced, complainants may in their own names and right maintain a bill to abate the nuisance notwithstanding the City could maintain a similar bill. McIntosh v. Moody, 228 Ala. 165, 153 So. 182, and cases cited; Hanna v. Harman, 230 Ala. 620, 162 So. 109.
Since the averments of the bill establish a public nuisance and the demurrer was addressed to the bill as a whole, we see no occasion to deal here with the grounds of the demurrer which take the point that the *288 bill shows on its face that the complainants had no riparian rights in the creek and therefore were not entitled to an injunction to abate a private nuisance.
Section 1088, Title 7, Code 1940, provides:
But the provisions of that section are not a bar to injunctive relief in the instant case, for it is expressly averred that the condition of which complaint is made is caused by the negligent, improper, or wrongful manner in which the respondent discharges the water from its plant into the creek. Martin Building Co. v. Imperial Laundry Co., 220 Ala. 90, 124 So. 82.
The averment that the complainants are the owners of the homes situated on the described real estate is an averment of an ultimate fact and not a conclusion of law. Sheffield Nat. Bank v. Corinth Bank & Trust Co., 196 Ala. 275, 72 So. 127; Beall v. Folmar, 199 Ala. 596, 75 So. 172. However, the complainants' right to maintain the bill is not dependent upon ownership of the property.
We will not treat those grounds of demurrer challenging the sufficiency of the averments of the bill seeking compensatory damages. As we have shown above, there was no demurrer to that aspect of the bill, the demurrer being addressed to the bill as a whole. The right to an injunction being sufficiently shown by the averments of the bill, we must affirm the action of the trial court in overruling the demurrer. See City of Birmingham v. Fairview Home Owners Ass'n, 259 Ala. 500, 66 So. 2d 775.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | November 10, 1955 |
2c11918a-073b-4a39-a255-0a92e0727f3c | Curjel v. Ash | 83 So. 2d 293 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 293 (1955)
Carol L. CURJEL et al.
v.
Anne Louise ASH.
1 Div. 631.
Supreme Court of Alabama.
November 10, 1955.
*294 Vickers & Thornton, Mobile, for appellants.
C. B. Arendall, Jr., Thos. G. Greaves, Jr., and Smith, Hand, Arendall & Bedsole, Mobile, for appellee.
LAWSON, Justice.
Miriam P. Jacobson died on July 15, 1951, leaving a last will and testament which was duly probated and admitted to record in the probate court of Mobile County on August 1, 1951, and on that date letters testamentary were issued to Carol Curjel, named in the will as executrix.
The second item of the will providing for a devise to Anne Louise Ash reads:
In the fifth item of her will the testatrix provided:
*295 On November 5, 1951, Carol Curjel and her husband, Hans Curjel, executed and delivered to Mrs. Hermoine C. Friend and Mrs. Barbara C. Steiner a quitclaim deed to property described in the conveyance as the premises "known as 221-A Dauphin Street," which conveyance was duly recorded in the probate court of Mobile County.
On January 11, 1952, Anne Louise Ash, acting by and through her father and next friend, filed her bill in the circuit court of Mobile County, in equity, against Carol Curjel and her husband, Hans Curjel; Mrs. Hermoine C. Friend and her husband, E. M. Friend, Jr.; Mrs. Barbara C. Steiner and her husband, Berghard Steiner. Augusta Eichold was also made a party respondent. Briefly stated, the purpose of the bill was to secure an adjudication holding in effect that the property described in the deed from Mrs. Curjel and husband to Mrs. Friend and Mrs. Steiner was a part of the property devised to Anne Louise Ash by Mrs. Jacobson. Demurrer filed by all of the respondents except Augusta Eichold was sustained on March 10, 1952.
Thereafter on March 18, 1952, her disabilities of non-age having been relieved, Anne Louise Ash filed her amended bill against the same persons made respondents to the original bill. The ultimate objective of the amended bill was the same as that of the original bill. The respondents other than Augusta Eichold filed their demurrer to the amended bill. Grounds of the demurrer were addressed to the bill as a whole and grounds of demurrer were addressed to the several aspects which the demurrants construed the amended bill to encompass, namely, (1) construction of the will of Miriam P. Jacobson, (2) removal of cloud on title, (3) quieting title and (4) declaratory relief. The trial court on May 19, 1952, rendered a general decree overruling the demurrer to the bill as amended. The effect of such a ruling was a ruling only on the demurrer to the bill as a whole. Rowe v. Rowe, 256 Ala. 491, 55 So. 2d 749; Percoff v. Solomon, 259 Ala. 482, 67 So. 2d 31, 38 A.L.R.2d 1100; Shaddix v. Wilson, 261 Ala. 191, 73 So. 2d 751.
From the decree of May 19, 1952, the respondents who had demurred to the bill as amended appealed to this court. We treated the bill as amended as having only one aspect, namely, a bill seeking a declaratory judgment. So construed, we held that the demurrer should have been sustained for the reason that the averments of the amended bill were not sufficient to show a justiciable controversy. We will not undertake to set out the averments and prayer of the amended bill which we considered on that appeal, for they are fully set out in our opinion then delivered. See Curjel v. Ash, 261 Ala. 42, 72 So. 2d 732.
After remandment Anne Louise Ash again amended her bill. The respondents who had previously demurred filed demurrer to the bill as thus amended, with grounds addressed to the bill as a whole and with grounds addressed (1) "to that aspect or phase * * * wherein it is sought to construe the will of Miriam P. Jacobson * * *"; (2) "to that aspect or phase * * * wherein it is sought to quiet title * * *"; and (3) "to that aspect or phase * * * wherein it is sought to obtain a declaratory judgment * * *." A decree was rendered wherein the demurrer was sustained generally. Again the complainant amended her bill and the demurrants refiled the demurrer last filed, with some additional grounds. The trial court thereupon rendered a decree overruling the demurrer addressed to the bill as a whole and the demurrers addressed to the three aspects which the demurrants construed the bill as last amended to encompass. From that decree the demurrants have prosecuted this appeal.
Appellee moves to dismiss the appeal on the ground that it is prosecuted in contravention of § 756, Title 7, Code 1940, which reads:
We have said that when on an appeal to this court a bill is held good as to substantial relief sought, although in the same opinion some features of the bill are held subject to demurrer, the equity of the bill is upheld within the meaning of the provisions quoted above and there cannot be an appeal from a subsequent interlocutory decree. Thomasson v. Benson Hardware Co., 224 Ala. 11, 138 So. 287; Sicard v. Ingalls, 250 Ala. 585, 35 So. 2d 342.
But on the first appeal of this case no substantial equity of the amended bill there under review was sustained. As indicated above, we treated that bill as seeking only declaratory relief and the effect of our holding was that the bill did not state a case for such relief, inasmuch as it failed to show a justiciable controversy between the parties.
The motion to dismiss the appeal is denied.
Counsel for appellants in brief filed here say: "The question for decision here is actually whether the amendments to the bill of complaint met the objections which this court pointed out in the opinion on the previous appeal." But our review here is not so restricted. We are required by statute to review the case anew without regard to the former decision. § 28, Title 13, Code 1940; Birmingham News Co. v. Birmingham Printing Co., 213 Ala. 256, 104 So. 506; Wilkey v. State ex rel. Smith, 244 Ala. 568, 14 So. 2d 536, 151 A.L.R. 765; Lucas v. Lucas, 258 Ala. 515, 64 So. 2d 70.
The amendments made after remandment have not changed the character of the proceeding and we think the amended bill here under review, to which we will refer hereafter as the bill, is one seeking relief under the declaratory judgment law, Code 1940, Title 7, §§ 156-168, as amended. So we will treat the bill as having only that aspect.
Wills are among the instruments which will be construed in an action for declaratory relief where the terms of the will are in dispute. §§ 156, 157, 159, Title 7, Code 1940; Montgomery v. Montgomery, 236 Ala. 161, 181 So. 92. In Fillmore v. Yarbrough, 246 Ala. 375, 20 So. 2d 792, 793, we said: "But under the declaratory judgments act, supra, the court takes jurisdiction of an actual controversy as to a justiciable question, and settles it though in doing so, it must construe a will when there is no other equity to confer jurisdiction on the court."
Ordinarily where a bill for declaratory relief shows a bona fide justiciable controversy which should be settled, the demurrer thereto should be overruled and a declaration of rights made and entered only after answer and on such evidence as the parties may deem proper to introduce on submission for final decree. The test of the sufficiency of such a bill is not whether the complaint shows that the complainant will succeed in getting declaration of rights in accordance with his theory or contention, but whether he is entitled to a declaration of rights at all. Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So. 2d 11; McCall v. Nettles, 251 Ala. 349, 37 So. 2d 635; City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So. 2d 658; Percoff v. Solomon, 259 Ala. 482, 67 So. 2d 31, 38 A.L.R.2d 1100; Waterworks and Sanitary Sewer Board v. Dean, 260 Ala. 221, 69 So. 2d 704.
But where no actual controversy as to a justiciable question is alleged, a demurrer to a bill seeking declaratory relief should be sustained. Alabama State Milk Control Board v. Graham, supra; Gilmer v. Gilmer, 245 Ala. 450, 17 So. 2d 529; Shadix v. City of Birmingham, 251 Ala. 610, 38 So. 2d 851.
The only grounds of demurrer which are sufficiently argued here to warrant *297 treatment are those which take the point that the averments of the bill are not sufficient to show an actual controversy as to a justiciable question. If we do not think those grounds of demurrer were well taken, then we must affirm the decree of the trial court, for on an appeal from a decree overruling a demurrer to a bill in equity grounds of demurrer not argued are treated as waived. Reeves v. Little, 262 Ala. 411, 79 So. 2d 55.
The bill discloses that the testatrix, Miriam P. Jacobson, when she executed her will on December 19, 1944, and at the time of her death on July 15, 1951, was the owner of certain real property which fronted on the south side of Dauphin Street in the City of Mobile, Alabama, which for present purposes may be described as a three-story building and the lot on which it stands. We will hereafter sometimes refer to that property as the building on Dauphin Street. The property is described in the bill by metes and bounds.
The bill alleges in effect that under the provisions of the second item of her will Miriam P. Jacobson devised all of the building on Dauphin Street to the complainant in that the testatrix at the time she executed her will and at all times before and after that date referred to, knew and considered all of the building on Dauphin Street as "221 Dauphin Street." The bill further avers: "That testatrix intended to devise the entire parcel of real property and the entire building thereon to Anne Louise Ash by the aforesaid second item contained in her said last will and testament, * * *"
However, the bill avers that as early as May, 1925, partitions were constructed on the first and second floors of the building on Dauphin Street, so that different tenants have occupied parts of the building. While the bill does not aver what particular part of the building on Dauphin Street was sometimes referred to as 221-A Dauphin Street, the bill does contain the following averments:
The averments of the bill summarized and quoted above in our opinion clearly disclose that the descriptive language, "that certain real property known as 221 Dauphin Street, in the City of Mobile, Alabama," presents a latent ambiguity as to what real property was devised by the terms of the second item of the will of Miriam P. Jacobson.
In our recent case of Cook v. Morton, 254 Ala. 112, 47 So. 2d 471, 474, we said: "Also the will presents a latent ambiguity as to what constituted at the time of testator's death the `house and lot known as my old home house and lot occupied at the time by J. V. Niles and family.' It was proper to remove these latent ambiguities by appropriate parol evidence to identify these properties and to give these descriptions the meaning which the testator intended they should have."
In DeMouy v. Jepson, 255 Ala. 337, 51 So. 2d 506, 510, we said:
In Achelis v. Musgrove, 212 Ala. 47, 101 So. 670, the issue was whether the description of lands devised by the testatrix to C. R. Musgrove included all the lands belonging to the testatrix not otherwise specially devised. The devise to C. R. Musgrove was of "`my home place, including my dwelling and the land lying contiguous thereto which I own'". We said: "Unquestionably, the descriptive language here in question presents a latent ambiguity which may be removed by appropriate parol evidence showing the circumstances which may illustrate the sense in which the testatrix used it, and thereby give to it a certain meaning and application."
In Vandiver v. Vandiver, 115 Ala. 328, 22 So. 154, 155, it was said in part as follows:
In Clark v. Goodridge, 51 Misc. 140, 100 N.Y.S. 824, 833, it was said: "There remains to be considered what was included in the devise of the real estate known as No. 250 Fifth avenue. Extrinsic evidence is admissible to show what property was `known as' No. 250 Fifth avenue. There is a latent ambiguity here, the explanation *299 of which may be made by parol evidence. * * *" Other cases with holdings to like effect are Hedrick v. Hedrick, 125 W.Va. 702, 25 S.E.2d 872; Truslow v. Ball, 166 Va. 608, 186 S.E. 71; Holmes v. Roddy, 176 Tenn. 624, 144 S.W.2d 788; Smith v. Coxe, 183 S.C. 509, 191 S.E. 422; In re Hotaling's Estate, 72 Cal. App. 2d 848, 165 P.2d 681; In re O'Loughlin's Will, 187 Misc. 914, 65 N.Y.S.2d 885; In re Holland's Estate, 180 Or. 1, 175 P.2d 156; Baines v. Ray, Tex.Civ.App., 251 S.W.2d 565; In re Gisler's Estate, 242 Iowa 933, 48 N.W.2d 866; Hurst v. Standard Oil Co., 308 Ky. 779, 215 S.W.2d 962; Logan v. Wiley, 357 Pa. 547, 55 A.2d 366; Rosenmeier v. Krauss, 118 Ind.App. 57, 75 N.E.2d 798.
The bill not only shows a latent ambiguity as to the property intended to be devised by the second item of the will, but shows, in our opinion, an actual controversy between Miss Ash on the one hand and Mrs. Curjel, one of the residuary devisees, and her grantees on the other. And we think the bill shows that the controversy is as to a justiciable questionthe rights of the parties in respect to the ownership of the land owned by testatrix at the time of her death. See Fillmore v. Yarbrough, supra.
The mere fact that the bill does not aver the exact part or parts of the building on Dauphin Street which Mrs. Curjel claims not to have passed to Miss Ash under the second item of the will or the identity of the property which Mrs. Curjel purported to convey in the quitclaim deed does not render the bill subject to those grounds of demurrer which are argued here.
We hold that the bill shows an actual controversy as to a justiciable question and that the decree of the trial court is due to be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and STAKELY, GOODWYN and MERRILL, JJ., concur. | November 10, 1955 |
ab850dde-6b41-4e69-adc9-43f042974988 | Ex Parte Board of Education of Blount County | 84 So. 2d 653 | N/A | Alabama | Alabama Supreme Court | 84 So. 2d 653 (1955)
Ex parte BOARD OF EDUCATION OF BLOUNT COUNTY et al.
6 Div. 962.
Supreme Court of Alabama.
November 28, 1955.
Rehearing Denied January 12, 1956.
*654 St. John & St. John, Cullman, for petitioners.
Johnson & Randall, Oneonta, for respondent.
SIMPSON, Justice.
This is an original proceeding seeking a writ of prohibition, mandamus or other appropriate remedial writ, by which to stay proceedings in the circuit court of Blount County on a petition for alternative writ of mandamus styled State ex rel. Amos A. Stewart et al., Case No. 3339, and to dismiss said petition for mandamus.
Patrons of the Blount County schools brought their petition for an alternate writ of mandamus in the circuit court seeking to vacate and annul a resolution of the Blount County Board of Education passed July 21, 1955. This resolution so altered the routes of county school buses as to prevent attendance of patrons' children in the city schools of Oneonta and thereby render of no effect a ruling of the State Superintendent of Education (decided in 1954 and reaffirmed in 1955 by the present Superintendent) as to a transportation controversy between the City and County School Boards. The ruling was evoked from the Superintendent under the provisions of § 163, Title 52, Code 1940.
*655 On consideration of the patrons' petition for an alternate writ of mandamus, the circuit judge (respondent here) issued a rule nisi.
Petitioners here sought and obtained from this court a rule nisi on a writ of prohibition. We are now asked to grant that writ and to order the petition for mandamus to be dismissed on the ground that the circuit court of Blount County is without jurisdiction to entertain the petition of school patrons against their Board of Education as presented by mandamus.
We note that the act complained of in the patrons' petition for mandamusthe Board's resolution of July 21stoccurred prior to the passage of Act 201, Regular Session, 1955 Acts (commonly known as the Placement Act, which repealed said § 163, supra, and other sections of the School Code). As the school laws were written at the time of the resolution, we had decided that a patron's remedy against his school board for enforcement of a public duty lay in mandamus. Board of Education of Jefferson County v. State, 222 Ala. 70, 131 So. 239.
However, we also note that the patrons' petition was not presented until Septemberi. e., subsequent to the effective date of the Placement Act, August 3, 1955.
In our view, at the time the circuit court took jurisdiction of the controversy the law providing the method for testing actions of local school boards was that specified in Act 201. Harlan v. State, 31 Ala.App. 478, 18 So. 2d 744; Evers v. State, 32 Ala.App. 84, 21 So. 2d 706. And with the repeal of said § 163 the prior order of the State Superintendent of Education became functus officio.
Act 201 provides, in part:
Since mandamus is an extraordinary remedy to be relied on only where there is no adequate remedy, we entertain the opinion that under the circumstances disclosed it was used improperly by the patrons to test the action of the school board. State ex rel. Holcombe v. Stone, 232 Ala. 16, 166 So. 602. Said Act 201, § 9, provides a method of appeal and review which until tested must be deemed adequate. When tested, should it be found inadequate, then *656 an extraordinary remedy may again be demanded. It is noted that said § 9 limits the right of appeal to a determination of whether any constitutional right guaranteed under the federal constitution has been violated. But the case before us does not require a discussion of this statutory appeal. The said Act 201 provides for certain preliminary steps, the filing of objection before the board, etc., which the patrons in the instant case did not pursue. Hence they have not exhausted their remedy provided by the act and the proceedings show on their face that the trial court was without jurisdiction to issue the rule nisi.
We leave undecided the question of whether mandamus or other extraordinary remedy will lie where the provisions of said act have been exhausted without providing an adequate remedy, such as where a board has committed a gross abuse of discretion or has acted arbitrarily on a controversy which does not rise to the appealable status mentioned in said § 9 (infringement of a constitutional right). That question is not presented by this proceeding.
It results that the circuit court has no jurisdiction to entertain the petition of mandamus presented by the patrons and the writ of prohibition should issue.
It is true as contended by the respondent judge that as a general proposition he does have the duty of determining his own jurisdiction under the accepted principle that every court of general jurisdiction has the judicial power to determine the question of its own jurisdiction. Ex parte Textile Workers Union of America, 249 Ala. 136, 30 So. 2d 247.
And as a general rule a writ of prohibition will not issue to an inferior court unless lack of jurisdiction has been brought to the attention of that court and a ruling on the question invoked. Donahoo v. St. John, 253 Ala. 604, 46 So. 2d 420. But as observed in the last-cited case:
The instant case falls within the last-stated principle because it appears from the answer of the respondent judge that he is contending that he does have jurisdiction and hence a challenge before him of his jurisdiction would have been unavailing. See also Ex parte Textile Workers Union of America, supra.
Writ of prohibition granted.
LIVINGSTON, C. J., and GOODWYN and MAYFIELD, JJ., concur.
SIMPSON, Justice.
Respondent contends that enactment of the placement bill froze every student in the school he had been attending previously, and further that local boards are thereafter prohibited from transferring any student or group of students without a finding by the board or its authority that such transfer is as to each individual pupil consistent with the test of the public and educational policy governing the admission *657 and placement of pupils in the public school system prescribed by the act.
We are of the opinion that respondent is mistaken only in his original premise: the Act was one designed to give the public school system flexibility, not rigidity; thus it did not so freeze pupils to their schools. Rather, it gave the local board full authority to place and replace students within its jurisdiction. The primary purpose of the Act was to fix responsibility for placement; the method chosen was the granting of wide discretionary powers to the local school board.
In seeking the legislative intent, we note from the House Journal that Act 201 as adopted was a substitute bill. When originally introduced as H.B. 296 it sought to create a placement board in each school district and empower that board to review school attendance rolls for placement of pupils. A comparative reading of Act 201 reveals that this provision was omitted; review of school rolls is not mentioned. The Act provides for the local board to determine pupil placement based on its own findings.
The Act as a whole must be construed as a broadening of the powers of local school boards because of its repeal of restrictive Code sections; viz., §§ 56, 93, 163, 167, 318, and 319 of Title 52, 1940 Code. Further, the Act in § 4 contemplates that the board shall possess full authority within its own district. It is inconceivable that one board may have jurisdiction within the district of another except with the consent of the home board. Thus the provisions for pupils' attendance of school outside their home district we deem to be permissive. Hence the withdrawal of county children from a city school by the county board does not, in our view, constitute a violation of the spirit of the Act, nor does it prima facie show an overstepping of the board's authority. The requirement for such act is that the board base its action on findings that such transfer or placement is as to each individual pupil consistent with tests of the public and educational policy prescribed by the Act, prescribed by the Act, viz.: (§ 4)
Until tested by the objection and appeal of a pupil's parent or guardian as prescribed by the Act, we are unwilling to say that the board has in the instance before us acted without the necessary preliminary findings.
Application overruled.
LIVINGSTON, C. J., and GOODWYN and MAYFIELD, JJ., concur. | November 28, 1955 |
6be51e75-213b-49a3-a9d7-3885766a4b70 | Personnel Board of Mobile County v. City of Mobile | 84 So. 2d 365 | N/A | Alabama | Alabama Supreme Court | 84 So. 2d 365 (1955)
The PERSONNEL BOARD OF MOBILE COUNTY
v.
CITY OF MOBILE et al.
1 Div. 590.
Supreme Court of Alabama.
November 28, 1955.
Rehearing Denied January 12, 1956.
*367 Albert J. Tully, Mobile, for appellant.
Fred G. Collins, Mobile, for appellees.
PER CURIAM.
The purpose of this suit is to obtain a declaration as to the constitutionality of Act No. 370, approved August 21, 1953. General Acts 1953, page 439.
The demurrer to the bill was sustained by the trial court: the demurrer expressing the view that said Act was not violative of the various sections of the Constitution referred to in the bill.
The bill of complaint recites that "your petitioner, the personnel board of Mobile County, Alabama, respectfully shows", etc. It then gives the names of the members of the personnel board; the City of Mobile, a municipal corporation, and Henry R. Luscher, the mayor; and other members of the city commission are named and made parties respondent, together with Dudley E. McFadyen who is the chief of police of the City of Mobile. The bill or petition does not expressly say that the members of the personnel board are made parties complainant; but it is signed by one of them as chairman. The appeal bond to this Court and the notice of appeal recite that the appeal is taken by complainant (the personnel board). The security for cost is signed in the name of the personnel board and Lon B. Moreland, chairman, and J. G. Scott, member, with a fidelity company as surety.
No question is raised on this appeal as to the power of the personnel board to bring this suit in its name. But it is necessary for us to take note of the question and determine whether the suit is by a party authorized by law to maintain it. The personnel board is a part of the civil service system applicable to Mobile County and to municipalities located therein as created by a local act approved September 15, 1939, Local Acts 1939, page 298. The duties and authority of the personnel board are prescribed by section 7 of the Act as the same was amended by Act No. 431, approved September 25, 1947, Local Acts 1947, page 288. Neither of those acts authorize the personnel board to sue or be sued, nor do those acts purport to constitute such board a corporation. It is our view that the board does not have the capacity in its name alone to maintain a suit for a declaratory judgment or for any other purpose. Under the local act the personnel board is a county agency having charge of a county-wide civil service system.
In the case of Consolidated Indemnity & Ins. Co. v. Texas Co., 224 Ala. 349, 140 So. 566, with reference to the state board of administration, we observed that it is not such an entity as to be able to maintain a suit. Neither can it be sued. We think that principle applies to a personnel board either of a county or a city, respectively.
But when an officer is confronted with the question of what are his duties under the law, and whether an act prescribing his duties and powers is violative of the Constitution, and a controversy arises between him and some person whose duties are adversely prescribed by law, such officer, because he is an officer, may sue the one who is controverting his authority and duties to obtain a declaration in respect to the controversy. Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So. 2d 479.
That principle would justify this suit by the individuals composing the personnel board against the city and its chief of police who are controverting with them the meaning and validity of the Act No. *368 370, approved August 21, 1953, as the same affects their respective official duties. As stated above, the individuals composing the personnel board are named in the bill or petition, and two of the three members of the board signed the appeal bond. See Smith v. Collier, 210 Ala. 23, 97 So. 101. Since there is no controversy as to the right of complainant to file this suit and to appeal to this Court, we will treat it as a virtual agreement that the persons so named as members of the personnel board are the complainants bringing this suit as a guidance to their official action.
The Act of 1939, supra, has direct application to a county-wide system in the County of Mobile and to the respective municipalities in the county. The bill or petition also alleges that the board has jurisdiction over the classified employees of the City of Mobile, including the chief of police and the police department. That allegation is not contested except that the Act of 1953, supra, purports to take that power away from the personnel board when the conditions named in the act have occurred.
The Act No. 370, approved August 21, 1953, is in form a general act with local application. It applies to a county, or a city or town, in any county "having, according to the last or any future Federal census, a population in excess of 225,000 inhabitants and less than 500,000 inhabitants". It also provides that if any city or town in such county is "subject to any county-wide Civil Service System, the Personnel Director and Personnel Board and other officials of any such county-wide Civil Service System shall have no rights, powers or duties with reference to the hiring, demotion, suspension or discharge of the Chief of Police of such City or Town or with respect to the fixing of his compensation or with respect to prescribing his working conditions".
The County of Mobile has a county-wide civil service system set up by the Local Act of 1939, supra. See Bates v. State ex rel. Conniff, 240 Ala. 609, 200 So. 779. It has a population range within the specified limits of 225,000 and 500,000. It is the only county in the State within that population range according to the last federal census. Jefferson County has more than 500,000 population, and Montgomery County has less than 225,000. Mobile County has 231,105. Counties having a population of 400,000 or more according to the last or any future federal census are governed by the Act approved July 6, 1945, Title 62, section 330(22) et seq., pocket part, Code. That act also is in form a general act, but applicable only to counties having the population stated above. Jefferson County is the only one which qualifies at present to be controlled by that act. Many times we have given it effect in Jefferson County.
The instant Act of 1953, supra, likewise has such a range of population that we think it does not infringe upon constitutional law. Opinion of Justices, Ala., 82 So. 2d 344; Taxpayers and Citizens of City of Alabama v. Board of Com'rs of City of Mobile, 252 Ala. 446, 41 So. 2d 597. The reference in the Act of 1953 to a county which may have a county-wide civil service system merely has the effect of emphasizing its effect in all counties within the classification whether or not there is in any of them a county-wide civil service system. It is not a double classification condemned in In re Opinion of the Justices, 256 Ala. 160, 53 So. 2d 881. We think the contention that the Act of 1953, supra, is a local act is not well sustained.
As a general rule a general law does not by implication amend or repeal a local law. Burns v. State, 246 Ala. 135, 19 So.2d 450(2); In re Opinion of the Justices, 244 Ala. 384, 13 So. 2d 762. But it may do so to carry out the intent of the legislature. Bates v. State ex rel. Conniff, 240 Ala. 609, 200 So. 779; Shepherd v. Clements, 244 Ala. 1, 141 So. 255; Heck v. Hall, 238 Ala. 274, 190 So. 280. It is so expressed in the Act of 1953, supra.
Appellant also insists that the Act of 1953 is a delegation of legislative power to a city. The act does permit a city within *369 the class designation to provide by ordinance that it shall have the right to hire, etc., the chief of police in the city and to fix his compensation; and also to confer upon the chief of police certain duties and powers in respect to the employees of the police department of the city.
It is of course well understood that the only authority which has the power to make State laws is the legislature. Section 44, Constitution. That means that a city or town cannot validly enact a State law, amend or repeal it. But the legislaure has the power to determine and fix the time when, place where and conditions on which a law otherwise complete within itself will be operative and effective. "And the operation of a law in a county or city may be left to a vote in that county or city." In re Opinions of Justices, 232 Ala. 60, 166 So. 710, 714; State ex rel. Crumpton v. Montgomery, 177 Ala. 212, 227, 59 So. 294; Ward v. State ex rel Parker, 154 Ala. 227, 45 So. 655; Ex parte Hall, 156 Ala. 642, 47 So. 199.
If the Act of 1953 is intended to mean that the changes there provided shall be operative and effective in such counties or cities within the class designated only when the "governing body of any such city or town" shall adopt a resolution or ordinance providing for such changes, it would not violate section 44 of the Constitution. It is not important that the governing body of the city is given such right rather than the voters of the city. That construction of the act could be very well given it if necessary to support the power of the legislature to enact it.
The legislature may authorize a municipal corporation to pass laws and ordinances applicable to its government so long as they are not inconsistent with State laws (section 89 of the Constitution), or other constitutional provisions. That has been the practice throughout the years. Sections 50 and 455, Title 37, Code. It cannot, of course, affect its charter powers. That is solely within the province of the legislature. But in respect to the operation of its local government, the legislature may authorize, as it has, the adoption of ordinances and resolutions not inconsistent with State laws to carry into effect the duties and powers conferred by law. Those duties and powers prescribed by lawall taken togetherconstitute its charter. State ex rel. Britton v. Harris, 259 Ala. 368(8), 67 So. 2d 26. It may exercise only such powers as are expressly granted by the legislature or necessarily implied in or incident to the powers expressly conferred and those indispensably necessary to the accomplishment of the objects of the municipality. Colvin v. Ward, 189 Ala. 198, 66 So. 98.
Without the Local Act of 1939, and except as limited by it or some other law or constitutional provision, the power of the city government of Mobile to enact ordinances governing its employees is broad. Hickman v. City of Mobile, 256 Ala. 141, 53 So. 2d 752; State ex rel. Hyland v. Baumhauer, 244 Ala. 1, 12 So. 2d 326; Title 37, sections 50 and 455; Title 62, section 461, Code. The Act of 1939 made a limitation on that power and conferred it on the personnel board. Tyson v. Arn, 259 Ala. 681, 68 So. 2d 526. The Act of 1953 curtailed that limitation, and restored it in part to the city authorities, but did not confer upon the city authorities the power to pass a law inconsistent with a State law.
The judgment of the Mobile Circuit Court, in Equity, should be affirmed.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, GOODWYN and MERRILL, JJ., concur. | November 28, 1955 |
5ec9acd0-a245-42a5-847f-d4a13a80820c | Crescent Amusement Company v. Knight | 82 So. 2d 919 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 919 (1955)
CRESCENT AMUSEMENT COMPANY
v.
James Horace KNIGHT, pro ami.
8 Div. 795.
Supreme Court of Alabama, Special Term.
September 22, 1955.
Rehearing Denied November 3, 1955.
*922 Eyster & Eyster, Decatur, for appellant.
Peach, Caddell & Shanks, Decatur, for appellee.
SIMPSON, Justice.
James Horace Knight, a minor suing pro ami, brought this action against the Crescent Amusement Company for damages arising out of an automobile accident on Highway 31 directly in front of the defendant's place of business, a drive-in theater near Decatur, Alabama.
The gravamen of the action is grounded on the alleged negligence of the servant of the defendant, acting within the line and scope of his employment as a flagman stationed on the highway by the defendant at its exist gate and directing the driver of the automobile in which the plaintiff was riding onto the highway when it was not reasonably clear of traffic and safe for travel, and as a proximate result of the alleged negligence of this flagman the automobile of one Motes ran into the rear of the automobile in which the plaintiff was riding, resulting in the alleged injuries. From a judgment for the plaintiff, the defendant brings this appeal.
Numerous errors are assigned by the appellant. Those properly up for consideration will be treated in the order discussed in brief of appellant.
Assignments 27, 28, 30, 31, 33, 34, 35, 36 and 37 charge error of the trial court in refusing to give the defendant's requested affirmative charge.
To have entitled the defendant to the affirmative charge the state of the evidence, construed most strongly against defendant, must have been such that the jury could not have found (1) that the defendant's flagman was guilty of negligence *923 proximately resulting in the alleged accident, or (2) that the negligence of the defendant's flagman concurred or coalesced with that of Mrs. Knight (driver of the car in which plaintiff was riding) or Motes (who ran into the rear of the Knight car) so as to proximately cause the plaintiff injury, or (3) that the flagman negligently participated in creating a condition which was dangerous under circumstances he should reasonably have anticipated would occur or that he negligently intervened in a situation he should have anticipated in the exercise of reasonable care, and the plaintiff was injured as a proximate result thereof.
As in most accident cases, the testimony was in conflict as to what parties to the accident were negligent and as to the exact positions of the two cars involved in their relation to the center line of the highway and the drive-in theater screen when the impact occurred. There is no material dispute, however, as to the relative positions of the flagman and the automobile driven by Mrs. Knight immediately before the flagman motioned her onto the highway, and it is not denied by the flagman that he saw the lights of an oncoming north-bound vehicle (Mrs. Knight was also traveling northwardly) prior to his go-ahead signal. There is some dispute as to the identity of this vehicle and as to its distance south of the theater exit when the flagman gave his signal, but it is not disputed that the Motes car was also south of the theater exit and traveling north.
In this state of the evidence, inferences adverse to the defendant being thereby created, we think it was a jury question as to whether the flagman was guilty of negligence (Spurlock v. J. T. Knight & Son, 244 Ala. 364, 13 So. 2d 396, and cases cited; McMillan v. Aiken, 205 Ala. 35, 88 So. 135); and, if negligent, whether that negligence proximately concurred in or caused the wreck. Watt v. Combs, 244 Ala. 31, 12 So. 2d 189, 145 A.L. R. 667; Aplin v. Dean, 231 Ala. 320, 164 So. 737; Briggs v. Birmingham Ry., Light & Power Co., 188 Ala. 262, 66 So. 95. We conclude, therefore, that the trial court did not err in submitting the issue to the jury.
Assignment 22 (Motion for a new trial)
It is contended that the jury rendered a quotient verdict and that the court erred in not setting it aside. As we view the evidence, it fails to establish that the jurymen entered into any agreement to abide by a verdict to be arrived at by any type of arithmetical computation. On the contrary, the affidavits offered tended to show that the judgment figure was finally fixed by group discussion and independent assent. Without an agreement in advance to abide by the results of addition and division, the verdict cannot be vitiated as quotient. Fortson v. Hester, 252 Ala. 143, 39 So. 2d 649; Alabama City, G. & A. R. Co. v. Lee, 200 Ala. 550, 76 So. 908.
It is also insisted that the verdict was against the great weight of the evidence and that the court therefore erred in refusing to grant the motion for a new trial on that ground. We regard the contention as untenable. There was sufficient evidence which if believed by the jury justified the verdict and the presumption in favor of the verdict is strengthened when the presiding judge overrules the motion. Hamilton v. Browning, 257 Ala. 72, 57 So. 2d 530.
Assignments 61, 62, 63 and 64
These assignments claim error in the failure of the trial court to exclude certain portions of the affidavits of several jurors on the hearing of the motion for a new trial.
Several rulings with respect thereto are consolidated and treated as one assignment in this series. That method of assigning error can avail nothing unless all are well assigned. Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So. 2d 594; Alabama Water Co. v. Wilson, 214 Ala. 364, 107 So. 821. Guided by this principle, we must conclude that the assignments cannot be sustained. Certainly the objection to that portion of *924 juror Oliver's affidavit in which he declared "* * * But there was no agreement of any kind at any time between or among any of the jurors that the result would be taken as the amount of the verdict * * *" is not well taken. As was stated in Mobile & O. R. Co. v. Watson, 221 Ala. 585, 588, 130 So. 199, 201:
Assignments 6 and 11
The questions here presented cannot be reviewed. In each instance no exception was reserved to the ruling of the court in sustaining the plaintiff's objection to the question. Tennessee Valley Sand & Gravel Co. v. Pilling, 35 Ala.App. 237, 47 So. 2d 236, certiorari denied 254 Ala. 10, 47 So. 2d 245.
Assignment 12
This assignment complains of the trial court's ruling in sustaining plaintiff's objection to the following question propounded by defendant to its witness, Officer Stanford: "When you looked and saw this car coming North on Highway 31 down there on the highway, at a point between the curve and the North edge of the woods, could you tell how fast it was running?" This ruling was rescued from error, if so, for two reasons: (1) Later examination of the witness indicated that he did not know the speed of the car inquired about and (2) substantially the same question, in better form, was permitted (though left unanswered) in subsequent examination of the witness by defendant. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix; Gulf, M. & O. R. Co. v. Sims, 260 Ala. 258, 69 So. 2d 449.
These assignments relate to the exceptions of the defendant to the court's oral charge.
But we entertain the view that these excepted-to portions of the charge, together with the entire oral charge on the question, correctly instructed the jury as to the duties of the flagman and the motorist under the circumstances related. We think the oral charge enunciated the applicable law. Somewhat analogous is the case of Louisville & N. R. Co. v. Cunningham Hardware Co., 213 Ala. 252, 104 So. 433 (a railroad crossing case), where the court, speaking through the late Mr. Justice Bouldin, stated:
We see no sound reason why the stated principle should not apply to the officer in *925 the instant case, who was at his post of duty directing traffic.
Appellant contends that the court erred in giving to the jury at the request of the plaintiff charge number 3 because it had a tendency to mislead and make uncertain a portion of the court's oral charge. The remedy in such a case, if so, was to ask an explanatory charge, since any misleading tendency would have been thus cured. Kendrick v. Birmingham Southern R. Co., 254 Ala. 313, 48 So. 2d 320; Moore v. Nashville, C. & St. L. R., 137 Ala. 495, 34 So. 617.
As we understand it, the contention of the appellant in regard to plaintiff's written requested charge number 4 is that the charge is contradictory and confusing. If the charge was indeed misleading, an explanatory charge could have cured the defect. Cases ubi supra.
It appears to us, moreover, that any possible misleading tendency was cleared up by the giving of defendant's charge number 70.
Objection is made that there is no evidence to support plaintiff's charge 10, giving of which appellant makes the basis of Assignment 25. The charge states a correct principle of law. St. Mary's Academy of Sisters of Loretto of City of Denver v. Newhagen, 77 Colo. 471, 473, 238 P. 21. But if the charge was abstract it had no tendency to prejudice the defendant's case and its giving could work no reversible error. Shelton v. State, 144 Ala. 106, 42 So. 30.
Appellant contends that given charge number 11 for plaintiff, made the basis of Assignment 26, does not express a correct principle of law, but we entertain the view that it comes within the authority of Goodwyn v. Gibson, 235 Ala. 19, 21, 177 So. 140.
Under the theory of the Cunningham case, supra, which we consider to be applicable, the charges here assigned were properly refused as unduly minimizing the reliance that may be placed upon a watchman or flagman. It is our understanding that the purpose of a flagman is to get travellers safely onto the highway and to aid them in clearing the congested or dangerous area.
On a careful study of the record in connection with the applicable law, we have concluded the case was fairly tried without substantial error to the defendant.
Affirmed.
LAWSON, GOODWYN, MERRILL and MAYFIELD, JJ., concur. | September 22, 1955 |
cb9c1094-9c13-473c-8064-032f70ab12f3 | Universal Underwriters Ins. Co. v. EAST CENT. INC. | 574 So. 2d 716 | N/A | Alabama | Alabama Supreme Court | 574 So. 2d 716 (1990)
UNIVERSAL UNDERWRITERS INSURANCE COMPANY
v.
EAST CENTRAL ALABAMA FORDMERCURY, INC., et al.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY
v.
FORD MOTOR COMPANY, INC., et al.
89-541, 89-613 to 89-622.
Supreme Court of Alabama.
September 28, 1990.
As Modified on Denial of Rehearing January 18, 1991.
*717 David E. Allred of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, and Bibb Allen of Rives & Peterson, Birmingham, for appellants.
H. Dean Mooty, Jr. of Capell, Howard, Knabe & Cobbs, Montgomery, for appellees Auburn Ford Lincoln Mercury, Inc. and Fred Rich.
Susan Shirock DePaola of Samford & Depaola and John N. Pappanastos, Montgomery, for appellee Mamie R. Green.
Edward B. Parker II, Montgomery, for appellee East Central Alabama Ford-Mercury, Inc.
Tabor R. Novak, Jr., Montgomery, for appellee Ford Motor Co. and Ira DeMent, Montgomery, for Youngblood-Perry Lincoln Mercury, Inc.
John W. Haley of Hare, Wynn, Newell & Newton, Birmingham, for amicus curiae Alabama Trial Lawyers Assoc.
HORNSBY, Chief Justice.
This opinion consolidates several cases concerning the right of Universal Underwriters Insurance Company ("Universal") to intervene in various lawsuits pending against defendants insured by Universal. We affirm the ruling of the trial court in *718 each case that Universal is not entitled to intervene under the present circumstances, but we remand the case for further proceedings consistent with this opinion.
In the first case ("East Central Alabama Ford-Mercury, Inc."), plaintiff Mamie Green sued defendants East Central Alabama Ford-Mercury, Inc., and Auburn Ford Lincoln-Mercury, Inc., claiming fraud; breach of express warranty; violation of the Magnuson-Moss Warranty Act; willful, wanton and reckless conduct; and conspiracy. The plaintiff alleges that the defendants sold automobiles repurchased from rental car companies as "factory executive" automobiles, i.e., as cars not previously owned or titled to anyone other than Ford Motor Company.
Universal, as the defendants' insurer, sought to intervene in the suit for the sole purpose of submitting special interrogatories or a special verdict form to the jury. Universal was attempting to resolve any insurance coverage questions that might be involved in the case without making its presence as an insurer known to the jury. Universal contends that some of the claims might be covered by Universal's policy and some might not be.
Under the insurance policy, Universal is obligated to indemnify for an injury caused by an "occurrence," which is defined under the policy as an accident resulting in injury "neither intended nor expected" by the insured. Universal contends that the intentional acts alleged in Green's complaint do not constitute an "occurrence." Universal also argues that the allegations of breach of express warranty and violation of the Magnuson-Moss Warranty Act are not expressly covered under the policy because each is an allegation of a breach of contract. In addition to its argument regarding the term "occurrence," Universal argues that the insurance policy specifically excludes fraudulent or intentional acts committed by its insured. In light of its uncertainty on these issues, Universal argued to the trial court that it was entitled to intervene because, it said, a determination of its liability under the insurance policy would be impossible if the jury returned a general verdict. The trial court, however, denied the petition to intervene. Universal appeals.
Consolidated with East Central Alabama Ford-Mercury, Inc. for purposes of this opinion are several cases in which Universal, as insurer of Youngblood-Perry Lincoln Mercury, Inc., and Franklin Perry, appeals from a denial by the trial court of its motion to intervene. These cases have previously been consolidated in Universal Underwriters Ins. Co. v. Youngblood, 549 So. 2d 76 (Ala.1989); these were before this Court on a different issue. In July 1989, this Court affirmed the trial court's ruling in Youngblood, holding that Universal had a duty under its insurance policy to defend the 10 actions filed against its insureds. The cases consolidated in Youngblood involved claims alleging breach of contract, negligence, misrepresentation, and suppression of material facts.
After our ruling in Youngblood, Universal sought to intervene pursuant to A.R. Civ.P. 24(a)(2) and 24(b)(2) for the purpose of presenting to the trial court either special verdict forms or special interrogatories to be given to the jury at the end of the trial. In an argument analogous to its argument in East Central Alabama Ford-Mercury, Inc., discussed above, Universal contends that it is faced with a situation where, under Universal's insurance policy, some of the claims made by the plaintiffs are covered, but others may not be covered. Universal argues that the incidents alleged in the contract counts are excluded from coverage by a provision in the policy and that the acts of intentional fraud alleged in the misrepresentation and suppression-of-material-facts counts are not included within the policy's definition of an "occurrence." Universal further contends that if a general verdict is returned against the insured defendants, Universal will have no way to determine what claims are covered under the policy. Based on these arguments, Universal asserts that it has an interest relating to the subject matter of the action that, under the rules of fairness *719 and equity, gives it a right of intervention, or, in the alternative, that permissive intervention should be allowed. The trial court denied the petition, and Universal appeals.
We first note that an order denying intervention as of right is appealable. Thrasher v. Bartlett, 424 So. 2d 605 (Ala. 1982). Universal claims that intervention is proper as of right under A.R.Civ.P. 24(a) or permissively under Rule 24(b).
Universal states that it is providing a defense for its insureds, East Central Alabama Ford-Mercury, Inc., Auburn Ford Lincoln-Mercury, Inc., Youngblood-Perry Lincoln Mercury, Inc., and Franklin Perry, pursuant to reservation of rights provisions whereby Universal may deny coverage after final determination of the case. Universal notes that under L & S Roofing Supply Co. v. St. Paul Fire & Marine Ins. Co., 521 So. 2d 1298 (Ala.1987), the attorney provided by the insurer to defend the insured is responsible to and obligated to the insured solely and not to the insurer. Under L & S Roofing Supply, the attorney provided by the insurer is constrained by an "enhanced obligation" to represent only the insured. The attorney under such a duty can take no action that would be detrimental to the insured's interest. It follows that defense attorneys hired by Universal for its insureds cannot represent Universal's interests and, consequently, cannot request special interrogatories or special verdicts concerning the coverage issue. Moreover, Universal is obligated to defend against all claims advanced by the insureds, even those not covered by the policy. Ladner & Co. v. Southern Guaranty Ins. Co., 347 So. 2d 100 (Ala.1977).
Universal argues that its interest will not be adequately protected unless it is allowed to intervene for the limited purpose of proposing special interrogatories or submitting special verdict forms to the jury so that the theories on which the jury's verdict is based can be determined. In support of this contention, Universal relies heavily on this Court's decision in Alabama Hospital Association Trust v. Mutual Assurance Society of Alabama, 538 So. 2d 1209 (Ala.1989). In that case, Alabama Hospital Association Trust ("AHAT") appealed from a summary judgment entered in favor of Mutual Assurance Society of Alabama ("MASA"). The claim arose from a prior medical malpractice judgment against certain doctors, who were insured by MASA, and Lloyd Noland Hospital, who was insured by AHAT. Both insurers provided attorneys for their insureds. After the trial, the "`case was then submitted to the jury on [plaintiff] May's claim against Lloyd Noland based at least in part, if not wholly, on the negligence of Habachy and Park.'" Id. at 1211 (quoting the trial court's opinion). The attorneys failed to request any special findings of fact by the jury, and the jury returned a general verdict in favor of May and against the hospital. AHAT paid part of the judgment and MASA paid part. Subsequently, AHAT claimed that it was a subrogee of the hospital for the recovery from MASA for the portion of the judgment that had been paid by AHAT. AHAT argued that the claim and the subsequent judgment against the hospital were based only on the negligence of the doctors, and that as a result, MASA, as the doctors' insurer, was the primary insurer and AHAT was the secondary insurer. In support of its argument, AHAT presented an affidavit of Jerry Argo, the foreman of the jury that had rendered the general verdict against the hospital. The affidavit, however, was executed more than three years after the verdict had been rendered.
The trial court stated that "`[b]y submitting the affidavit of the foreman of the jury, AHAT sought in effect to establish special findings of fact by the jury verdict more than three years after the verdict was rendered.... [Such affidavit] cannot be admitted in evidence after the trial for the purpose of establishing the negligent conduct which was the basis of the jury verdict.' " Id. at 1212 (quoting the trial court's opinion) (citations omitted). The trial court further stated:
"In the present case now before this Court, the affidavits and answers of the *720 jurors to questionnaires make evident the reason for the rule disallowing the use of jurors' affidavits to explain their verdict or to in effect make special findings of fact with respect to their verdict.
Id. at 1213.[1]
This Court agreed with the rationale of the trial court:
Id. at 1216.
Universal argues that this Court recognized the impossibility of going behind a general verdict to determine the theories on which the jury based its verdict and that it noted the trial court's suggestion for a cure to the problemasking "the court to require the jury to make special findings of fact at the time the case [is] submitted to the jury." Alabama Hospital Association Trust, supra, at 1213. Universal further argues that Alabama Hospital Association Trust is on "all fours" with the present case, except that in Alabama Hospital Association Trust the secondary insurer was seeking indemnity from the primary insurer. Universal states that even though it wishes to submit interrogatories or special verdict forms to the jury, it does not intend to participate in the jury phase of the trial. Therefore, Universal argues, its limited participation would not affect the cases presented by the plaintiffs.
Further, Universal asserts that Alabama Hospital Association Trust overrules United States Fidelity & Guaranty Co. v. Adams, 485 So. 2d 720 (Ala.1986), wherein the Court affirmed the trial court's denial of USF & G's motion to intervene in the underlying suit filed by the plaintiffs. In Adams, the plaintiffs sued Alabama Elk River Development Agency for damages suffered as a result of construction defects in a house purchased from Elk River. Elk River filed a third-party complaint against Highland Rim Constructors, Inc., the contractor; USF & G, insurer for Highland Rim, moved to intervene in the action pursuant to Rule 24(a)(2).
Id. at 721. The trial court, however, denied the motion and further denied USF & G's motion to reconsider. The trial court based its decision upon the determination that under Rule 24(a)(2) USF & G did not have an "interest" in the action. The trial court stated, and this Court agreed, that "`[t]he Petitioner does not have an interest in the transaction the subject of this lawsuit'" and that "`[i]ts interest is contingent upon the Plaintiffs' recovery of a verdict in the underlying action. The Petitioner may, by subsequent litigation, determine its liability in the event of the Plaintiffs' recovery.'" Id. (quoting the trial court's order).
The Adams Court also relied on Restor-A-Dent Dental Laboratories, Inc. v. Certified Alloy Products, Inc., 725 F.2d 871 (2d Cir.1984), in which the court found that the interest asserted by the insurance company was contingent upon the jury's verdict and the determination of indemnification of certain types of losses under the policy. The court in Restor-A-Dent focused primarily on whether the insurer had an interest sufficient to trigger the application of Fed.R.Civ.P. 24(a)(2). Although the court noted that the term "interest" was not easily definable, it deferred to the United States Supreme Court's statement that the interest necessary to support intervention of right must be "significantly protectable." See Donaldson v. United States, 400 U.S. 517, 531, 91 S. Ct. 534, 542, 27 L. Ed. 2d 580 (1971). That is, the interest must be direct and not remote or contingent. This Court concluded in Adams that USF & G had no interest in the transaction because the interest was contingent upon whether the plaintiffs recovered a judgment.
Universal argues that Alabama Hospital Association Trust overrules Adams because Alabama Hospital Association Trust postdates Adams and because Adams is based on A.R.Civ.P. 24(a)(2), which requires a finding of an "interest." Universal bases its argument on the premise that the Alabama Hospital Association Trust Court recognized the insurer's dilemma and that the insurer was not a party to the underlying lawsuit. As a result, Universal maintains that this Court recognized the trial court's suggestion for a cure by way of special findings of fact as the only method in which the insurer could determine its contract obligation. Universal attempts to distinguish Adams by arguing that the court in Adams specifically found that the insurer did not have the interest required under Rule 24(a)(2), while the trial court in the present case made no such finding and summarily denied Universal's petition.
In her brief, Plaintiff Mamie Green argues that Adams controls and that Universal misinterprets Alabama Hospital Association Trust. In Alabama Hospital Association Trust, there was no motion to intervene, nor was there any suggestion that intervention would be proper.
We conclude that Adams and Alabama Hospital Association Trust involve different issues. In Alabama Hospital Association Trust, the insurer attempted to establish special findings of factsan evidentiary findingthree years after the jury had rendered its general verdict. In Adams, however, this Court, following the trial court's findings, concluded that the insurer did not have a sufficient interest under A.R.Civ.P. 24(a)(2) because its interest was contingent upon the plaintiffs' recovery in the underlying action. Further, the Alabama Hospital Association Trust Court considered the issue of subrogation or indemnity against another insurer, but not the issue of intervention. Because Alabama Hospital Association Trust and Adams involve different issues, we conclude that Adams was not overruled by Alabama Hospital Association Trust. We note further that Alabama Hospital Association Trust is not applicable to the present case because that case did not address the issue of intervention under A.R. Civ.P. 24(a)(2) and 24(b)(2). The analysis in *722 Adams is directly applicable on the issue of intervention.
Universal also contends that it has a sufficient interest under Rule 24(a)(2) because it has agreed to indemnify the defendants for certain contingent liabilities that may arise under the terms and conditions of its policies with the defendants. Universal argues that under the principle of indemnity, it has an interest sufficient to warrant intervention as of right and that that interest is not contingent.
Plaintiff Green argues, in opposition, that Adams, supra, controls because the interest here, like the interest in Adams, is contingent upon Green's recovery in the underlying action. Moreover, Green notes that when an insurer refuses to defend or defends under a reservation of rights, the insurer is not precluded from determining the coverage issue in a declaratory judgment action either before or after the resolution of the underlying action. See also L & S Roofing Supply Co. v. St. Paul Fire & Marine Ins. Co., supra, at 1303-04 (relying on Tank v. State Farm Fire & Casualty Co., 105 Wash. 2d 381, 715 P.2d 1133 (1986)). Additionally, as noted by Auburn Ford Lincoln-Mercury, Inc., the insureds would be prejudiced by further delay if Universal were allowed to intervene at such a late date in the proceedings.
A. INTERVENTION
In these consolidated cases, Universal moved to intervene under either A.R.Civ.P. 24(a)(2) or 24(b)(2). Rule 24(a)(2) provides for intervention of right:
Rule 24(b)(2) provides for permissive intervention:
Crucial to our resolution of the question concerning Universal's right of intervention is a determination of the "interest" necessary to sustain that right. In State ex rel. Wilson v. Wilson, 475 So. 2d 194 (Ala.Civ.App.1985), the Department of Pensions and Security ("DPS") sought to intervene in a contempt proceeding brought by a mother against the father in an action seeking child support. The mother had assigned her child support rights to the State of Alabama in an agreement whereby DPS would establish, collect, and enforce the child support.
The Court of Civil Appeals held that under Rule 24(a)(2) DPS had an interest sufficient to enable it to intervene. The court stated:
Id. at 196 (emphasis added). The court found that as an assignee, DPS had a sufficient interest in collecting the child support payments regardless of whether DPS made payments to the mother and regardless of whether the assignment took place before the divorce. Moreover, the court indicated that it was doubtful that DPS could be adequately represented in the contempt proceeding without intervention. The court further stated, "We must adopt an approach to Rule 24(a)(2) which measures the right to intervene `by a practical rather than a technical yardstick.'" Id. at 197. The court noted that the legislature intended that §§ 38-10-1 through -11, Ala.Code *723 1975, which provide for the enforcement and collection of child support, were to be construed broadly to effectuate the purpose of having parents, not the state, support their children.
This issue has also been analyzed in two other cases, Randolph County v. Thompson, 502 So. 2d 357 (Ala.1987) (payment of sheriff's salary from county funds was a sufficient interest to allow the county intervention as of right in the sheriff's suit against the state for collection of his salary), and Blue Cross & Blue Shield of Alabama v. Mills, 526 So. 2d 595 (Ala.Civ.App. 1988) (insurer's interest in the possible recovery of previously paid medical expense payments did not entitle it to intervene as of right in an underlying workmen's compensation case). See also United States Fidelity & Guaranty Co. v. Adams, supra.
This Court has held that an insurer does not have an interest when that interest is contingent upon the recovery in another action. United States Fidelity & Guaranty Co. v. Adams, supra. We find no rationale to distinguish Adams from the present case. In light of the foregoing authority, we find that Universal does not have a direct, substantial, and protectable interest. Because Universal lacks such an interest under Rule 24(a)(2), it may not intervene as of right. Nevertheless, nothing in our law would bar Universal from litigating the coverage issue in a declaratory judgment action after the resolution of the underlying cases in this matter.
Permissive intervention under Rule 24(b)(2) is within the broad discretion of the trial judge. See Restor-A-Dent Dental Laboratories, Inc., supra. The standard for determining whether permissive intervention should have been allowed is whether the trial judge abused his or her discretion.
In Restor-A-Dent, the trial judge denied the insurer's motion to intervene under Rule 24(b)(2) because such intervention would burden the litigation in progress because of the delay. In affirming the trial judge's decision, the Court of Appeals noted that if this were the only reason for denying the motion then there would be an abuse of discretion. However, the Court of Appeals held that the trial court properly denied the motion because of additional reasons, including: (1) that the insurer had no great need for the relief it sought; (2) that there was no assurance that the main action would not be delayed; and (3) that the intervention by an insurer who supplied the insured's attorney could deter a settlement or could create a conflict of interest. The court noted that trial court had the discretion to grant intervention and that if intervention was granted, then "in view of the economy of time and effort inherent in the use of interrogatories in this situation," the limited use of interrogatories to the jury would not be an abuse of discretion. Id. at 877.
Unlike Rule 24(a)(2), Rule 24(b)(2) is a discretionary tool to be used by the trial courts. In the present case, we find no abuse of discretion in the trial court's order denying intervention. Although the present case may be completely resolved if a jury in the underlying cases returns a verdict for the defendants, or if the plaintiffs proceed on undisputed claims, we, nevertheless, recognize the dilemma faced by insurers. Because of this dilemma, we set forth a procedure by which permissive intervention may be allowed in this and similar cases.
Under this alternative procedure for permissive intervention, the trial would be bifurcated. In the first phase of the trial, the jury or judge would resolve issues of liability between the plaintiff and the insured defendant. The second phase would occur only if the jury or judge in the first phase rendered a verdict or judgment against the insured defendant. In the second phase, the insurance company would be allowed to enter and try, before the same jury or judge, only the insurance coverage issue. We emphasize that because of the many factors involved, a bifurcated *724 trial is not a matter of right for the insurer, but, rather, the decision of whether to allow intervention under this alternative procedure will rest within the discretion of the trial court as governed by the interests of justice and those factors articulated in A.R.Civ.P. 42(b). In order to avail itself of this remedy, the insurer must make, within a reasonable time, a motion to intervene under this procedure. The motion should be similar to a complaint for declaratory judgment made pursuant to A.R.Civ.P. 57. Should the trial court choose to allow intervention under this procedure, the insurer would be included in the discovery process with all parties in the underlying action. We note particularly that the insurer would be required to make available to the plaintiff, in the underlying action, all facts discoverable pursuant to the Alabama Rules of Civil Procedure, as well as the relevant insurance policy or policies. During the first phase, neither the jury nor the judge would consider the insurer's participation or the coverage issue. The jury would become aware of the insurer and the coverage issue only in the event that it rendered a verdict in the plaintiff's favor in the first phase. The judge would consider the coverage issue only if he or she rendered a judgment for the plaintiff in the first phase. If such a verdict or judgment occurs, then the trial would proceed to the second phase. In the second phase, the same jury or judge would hear and decide the coverage issue between the defendant insured and the insurer.
Bifurcated trials are not unusual in Alabama and are recognized under A.R.Civ.P. 42(b):
Id. (emphasis added.) The comments to Rule 42(b) further emphasize that a trial court has broad freedom to order separate trials on different issues or with respect to different parties in order to effectuate the goals of justice and judicial economy. This Court recognized in Coburn v. American Liberty Insurance Co., 341 So. 2d 717 (Ala. 1977), that Rule 42(b) may be used to separate the issues of liability from those of damages in a negligence case. The Court noted that the trial court is in a "position to evaluate, within the posture of the case, the matter of trial convenience and to shape the order of trial." See also Ex parte R. B. Ethridge & Associates, Inc., 494 So. 2d 54 (Ala.1986) (Rule 42(b) gives the trial courts great flexibility in complex litigation cases); Key v. Robert M. Duke Ins. Agency, 340 So. 2d 781 (Ala.1976) (distinction between separation and severance).
In addition to Rule 42(b), the Alabama Rules of Civil Procedure provide for separation of liability insurance coverage claims from damages claims. A.R.Civ.P. 18(c) provides as follows:
The comments to Rule 18(c) add:
In Desroches v. Complete Auto Transit, Inc., 409 So. 2d 417 (Ala.1982), the trial court ordered separate trials on the issue of liability and the issue of the validity of release agreements. In Desroches, the plaintiff signed release agreements and covenants not to sue and accepted money from the insurance company. She later retained counsel and sought to return the money and rescind the release agreements, *725 but the insurance company refused, and an action ensued. The defendants successfully moved the trial court to order separate trials on the issues of liability and of the validity of the release agreements. The plaintiff argued that the trial court exceeded its authority under Rule 42 in ordering separate trials. This Court, however, stated that "[f]or resolution of this issue we need look no further than subsection (c) of Rule 18, ARCP." Id. at 418. See also Holloway v. Nationwide Mutual Ins. Co., 376 So. 2d 690 (Ala.1979) (recommendation on remand that A.R.Civ.P. 18(c), 21, and 42(b) be utilized to avoid problems encountered at trial). Clearly, bifurcated trials are recognized and used in Alabama procedure in "furtherance of convenience or to avoid prejudice, or ... [when] conducive to expedition and economy." A.R.Civ.P. 42(b).
Although we recognize that Rules 42(b) and 18(c), are primarily applicable to joinder issues, we view these rules as instructive. The trial courts should consider the foregoing as guidance in deciding whether to allow permissive intervention under the procedure announced in this case.
We take special note of the distinction made in Key v. Robert M. Duke Ins. Agency, supra, between an order of severance and an order for separate trials. As stated in Key, severed claims become independent actions with judgments entered independently, while separate trials lead to one judgment. Key held that A.R.Civ.P. 54(b) applied "to actions in which `separate trials' are ordered pursuant to Rule 42(b)," but did not apply to claims severed from the original action. Id. at 783.[2] Because of the distinction between a severance and an order of separate trials and because of this Court's reliance on Rule 42(b) for the alternative procedure, we envision that this procedure for permissive intervention would result in separate trialsa first trial on the issue of liability and a second trial on the issue of insurance coverage. The logical result of the distinction made in Key between separate trials and severance is that the case would be final and appealable only when the necessary trials are completed.
Other jurisdictions have also recognized the utility of bifurcated trials. In California, the Court of Appeal in Equitable Life Assurance Society v. Berry, 212 Cal. App. 3d 832, 260 Cal. Rptr. 819 (1989), held that bifurcation of trial to try the issue of insurance coverage was proper. See also Ahmed v. Peterson, 186 Cal. App. 3d 374, 230 Cal. Rptr. 636 (1986) (bifurcation of breach of contract claim from negligence claim for purposes of introducing evidence was proper remedy); Wheels & Brakes, Inc. v. Capital Ford Truck Sales, Inc., 167 Ga.App. 532, 307 S.E.2d 13 (1983) (severance is a matter of discretion for the trial judge.). See generally Page & Sigel, Bifurcated Trials in Texas Practice: The Advantages of Greater Use of Texas Rule of Civil Procedure 174(b), appearing in 9 Rev. Litigation 49 (1990) and 53 Tex.B.J. 318 (April 1990) (expounding on the benefits of bifurcated trials under Rule 174(b), Texas Rules of Civil Procedurea provision similar to A.R.Civ.P. 42(b)).
In addition, we note that the Wisconsin legislature and judiciary have recognized the dilemma faced by insurance companies on insurance coverage disputes and have provided a remedy similar to the one enunciated in the present case. The Wisconsin legislature provided:
Wis.Stat. § 803.04(2)(b) (1988) (emphasis added).
In Mowry v. Badger State Mut. Casualty Co., 129 Wis.2d 496, 385 N.W.2d 171 (1986), a case involving breach of contract and bad faith failure to settle within the insurance policy limits, the Wisconsin Supreme Court recognized the competing interests between an insured, an insurer, and a plaintiff in an action for damages:
129 Wis.2d at 507-512, 385 N.W.2d at 177-78 (citations omitted). The court in Mowry found that the insurance company did not act in bad faith in refusing to settle the claim within the policy limits, because the issue of coverage was fairly debatable. Id. at 512-16, 385 N.W.2d at 179-80. The court further noted:
Id. 385 N.W.2d at 183-84.[3]
Because the present case introduces an alternative method for permissive intervention, *727 the trial court on remand may, in its discretion, grant or deny Universal's motion to intervene in a bifurcated action. If the trial court grants the motion to intervene for bifurcated trials, it should permit discovery with respect to Universal by the plaintiffs and schedule the proceedings for completion and trial by a set date. In the future, however, the insurer must file its motion to intervene in a bifurcated action within a reasonable time of its determination that insurance coverage disputes may exist. As with any discretionary device, the trial court's denial of such motions will be measured under the "abuse of discretion" standard. In addition, insurers and insureds, in the present case and in future cases, may have separate counsel. We emphasize that the trial courts must take extreme care so as to prevent inconsistent verdicts through the use of this procedure.
In light of the law under United States Fidelity & Guaranty Co. v. Adams, supra, and its progeny, we hold that Universal has not shown the required interest under A.R.Civ.P. 24(a)(2) to entitle it to intervene as of right. Further, we find no abuse of discretion in the trial court's denial of permissive intervention under A.R. Civ.P. 24(b)(2). However, in light of the alternative procedure set forth herein, we remand the case to the trial court for further consideration. Accordingly, the orders denying intervention are affirmed, and the cases are remanded for further proceedings consistent with this opinion.
AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
MADDOX, ALMON, SHORES and ADAMS, JJ., concur.
JONES, J., dissents, with opinion.
HOUSTON, J., dissents.
JONES, Justice (dissenting).
The majority opinion gives new meaning to the old expression "Too much sugar for a dime." "Overkill" is a mild description for the complicated bifurcated procedure prescribed by the majority as a substitute for the simple use of Rule 49, A.R.Civ.P. Having voluntarily offered to submit itself to the jurisdiction of the court, and thus having agreed to be bound by the jury verdict in the trial by the plaintiff against its potential insured, Universal, the insurer, asks simply to be allowed to intervene for the limited purpose of invoking Rule 49, which authorizes the jury's use of special interrogatories to designate under which, if any, of the claims it found for the plaintiff.
One would have thought (or at least I did) that the intervention prescribed in Lowe v. Nationwide Ins. Co., 521 So. 2d 1309 (Ala.1988), would be interpreted as direct authority (if, indeed, common sense was not of itself sufficient authority) for the proposition that Universal's interest in the outcome of the instant litigation, albeit both limited and contingent, would permit intervention concomitant with its limited interest. Indeed, Nationwide's interest in the Lowe case was equally limited and contingent.
The insurer's interest in both this case and in Lowe, in a broad sense, deals with the issue of coverage. In Lowe, the insured had no underinsured coverage (and, thus, the insurer had no liability) unless the jury's verdict for the plaintiff exceeded the amount of the primary coverage. Here, the insurer has no liability to the plaintiff, unless the jury awards the plaintiff damages under a theory of liability for which the policy provides coverage. A general verdict for this plaintiff may be sufficient for execution against these defendants, but, because certain of the plaintiff's theories are clearly outside the coverage provided by the policy, it would obviously not be sufficient for execution against Universal. This, then, is the classic case for the invocation of Rule 49.
*728 To be sure, its use may not answer all of the coverage questions necessary for the final disposition of questions regarding Universal's liability, but it will do all that ought to be done in the present litigation; and, if necessary, it will furnish a concrete basis for any future litigation between the plaintiff and the defendant's insurer. (For example, a verdict for the plaintiff under the fraud claim may not answer the ultimate "occurrence" issue.)
With all its sophistication, the majority's scheme for bifurcation leaves unanswered myriad problems. For example, the opinion seems oblivious to the fact that, once the trial is over (if we assume the plaintiff wins), the trial can not proceed with the same battery of lawyers; Universal must now wave goodbye to those lawyers who lost the first round, and trot in a new set of lawyers to try the second round. How does this awkward and time-consuming procedure square with the goals of judicial economy and caseload reduction, when compared with the simple invocation of Rule 49, which, in most instances, will dispose of the entire case?
In conclusion, I make three additional observations:
1. In answer to the plaintiff's fears that to allow intervention under these circumstances would permit the intervenor to clutter the lawsuit with a variety of interrogatories and thus confuse the jury, I would answer simply that trial judges know how to draft fair and impartial jury instructions, including interrogatories contemplated by Rule 49.
2. I cannot understand how the plaintiff will be prejudiced rather than aided by the trial court's granting of the petition for limited intervention. If the plaintiff intends to execute judgment only against the defendants (the insureds), the plaintiff can strip the insurer of any interest, and thus defeat the right of intervention, by merely confessing of record its intention not to proceed against the insurance company. If, on the other hand (as is most likely the case), the plaintiff intends to collect any judgment from the insurer, a general verdict that is based on multiple claims or theories, any one of which is not covered by the insurance policy, will avail the plaintiff nothing; and any further proceedings to clarify the coverage issue will not only require a retrial of the issues of liability, but will also risk a contrary result. If any two of the claims submitted to the jury are mutually exclusive, a general verdict for the plaintiff must be set aside as inconsistent, National Security Fire & Cas. Co. v. Vintson, 454 So. 2d 942 (Ala.1984); and, even if the claims are cumulative, if any one is determined not to be covered by the policy, there is no way of knowing that the jury based its verdict on a covered claim. Perhaps this is the reason legal commentators refer to Rule 49 as the judge's rule: lawyers refuse to use it even when it would be in their best interest.
3. To the trial judges: Under circumstances where, as here, a general verdict is inappropriate, use your own initiative and avoid a bifurcated trial simply by invoking the procedure authorized by Rule 49.
HORNSBY, Chief Justice.
OPINION MODIFIED, APPLICATION FOR REHEARING OVERRULED.
MADDOX, ALMON, SHORES and ADAMS, JJ., concur.
[1] This Court notes that under the facts of Alabama Hospital Association Trust, there was no issue presented regarding the enhanced obligation of the insurer to the insured. If, however, counsel representing Lloyd Noland and supplied by AHAT had requested special findings of fact at the time the case was submitted to the jury, a determination under the enhanced obligation criteria enunciated in L & S Roofing Supply Co. v. St. Paul Fire & Marine Ins. Co., 521 So. 2d 1298 (Ala.1988), would have been necessary.
[2] A.R.Civ.P. 54(b) provides:
"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. Except where judgment is entered as to defendants who have been served pursuant to Rule 4(f), in the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."
[3] The dissent in Mowry argued that, unlike the policy holder, the insurance company could better protect itself from liability for damages exceeding the policy limits by timely litigating the coverage issue before a settlement offer is made, and therefore the insurer, and not the insured, should bear the loss. As noted by the dissent, the insurer did not litigate the coverage issue in the bifurcated proceeding until a year and a half after the commencement of the action. Id. at 191 (Abrahamson, J., dissenting). | January 18, 1991 |
adc8695e-505c-4991-8b27-60cb241b019a | Sharpe v. Booker | 83 So. 2d 313 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 313 (1955)
Myra Booker SHARPE
v.
Merlie BOOKER et al.
3 Div. 732.
Supreme Court of Alabama.
November 10, 1955.
*314 Robt. H. Jones and J. B. Nix, Jr., Jones & Nix, Evergreen, for appellant.
Brooks & Garrett, Brewton and Caffey, Gallalee & Caffey, Mobile, for appellees.
STAKELY, Justice.
On February 1, 1955, Merlie Booker and Eleanor Booker filed their petition in the probate court propounding for probate and record an instrument in writing alleged to be the last will and testament of Elmer L. Booker, deceased, and Florence Eugenia Booker, deceased. The instrument is dated December 14, 1945, and executed in due form by both Elmer L. Booker, deceased, and his wife Florence Eugenia Booker, deceased.
The allegations of the petition show that Elmer L. Booker died on August 15, 1946, which is approximately eight and one-half years prior to the filing of the petition to probate the aforesaid alleged will as the last will and testament of Elmer L. Booker, deceased. The allegations show further that Florence Eugenia Booker died February 15, 1952, approximately three years prior to the filing of the petition to probate the alleged will as the last will and testament of Florence Eugenia Booker, deceased.
Notice of the filing of the aforesaid petition was duly served on Myra Booker Sharpe (appellant), who appeared in open court and filed a demurrer to the aforesaid petition so far as it sought to probate the alleged instrument as the last will and testament of Elmer L. Booker, deceased. The court overruled the demurrer and after hearing the evidence admitted the will to probate. There were objections to certain questions propounded in the taking of the testimony. The purpose of these questions was to object to the probate of the instrument as the last will and testament of Elmer L. Booker and to object to the probate of the instrument as the last will and testament of Florence Eugenia Booker, the grounds of the objection being assigned separately and severally. The objections to the evidence were all overruled by the court.
There is no bill of exceptions in the record, showing any such objections or any such rulings or showing exceptions to any such rulings and there is no plea of the statute of limitations in the record.
The record sets out only a transcript of the evidence certified by a court reporter.
A motion has been made in this court to strike the transcript of the evidence because bills of exceptions have not been abolished on appeals from judgments of the probate court. Under the authority of Terry v. Gresham, 254 Ala. 349, 48 So. 2d 437, this motion must be granted. This means that objections to admissibility of the evidence and the rulings of the court thereon cannot be reviewed here because of the absence of a bill of exceptions. Terry v. Gresham, supra. See Bivin v. Millsap, 238 Ala. 136, 189 So. 770.
And so we must look to the record to see whether we can pass on the question of the statute of limitations and we should observe here that § 34, Title 61, Code of 1940, which provides that wills shall not *315 be effective unless filed for probate within five years from the date of the death of the testator, is a statute of limitations. Fuller v. Qualls, 241 Ala. 673, 4 So. 2d 418.
This brings us to the ruling of the court on the demurrer. The probate court is a court of law. Moore v. Winston's Adm'r, 66 Ala. 296; Caperton v. Hall, 118 Ala. 265, 24 So. 122. And where it is sought in a court of law to interpose the statute of limitations as a defense, the statute of limitations must be specially pleaded. Ferguson v. Carter, 40 Ala. 607; Sharp v. Clopton, 218 Ala. 140, 117 So. 647; Tucker v. Tucker, 222 Ala. 595, 133 So. 714; Russell v. Garrett, 204 Ala. 98, 85 So. 420; Pyle v. Pizitz, 215 Ala. 398, 110 So. 822; Sovereign Camp, W. O. W. v. Carrell, 218 Ala. 613, 119 So. 640. The question of the statute of limitations is therefore not before this court.
There is another proposition to which we should refer in connection with the ruling of the court on the demurrer attacking the petition as a petition to probate the will of Florence Eugenia Booker. According to the allegations of the petition Elmer L. Booker and Florence Eugenia Booker died leaving assets in Escambia County, Alabama, and leaving "a joint last will and testament, duly signed and published by them," which was attested by two named witnesses and prays for probate of such instrument as the last will and testament of said decedents Elmer L. Booker and Florence Eugenia Booker. It is argued by the appellant that when the terms of the will that was offered for probate are considered, it is not a joint will as alleged, but was the individual will of Elmer L. Booker, the first to die and not the will of Florence Eugenia Booker. The will in terms is not set forth in the petition nor is is attached as an exhibit to the petition. We, therefore, are not able on the record before us to determine the question now sought to be raised. We think it appropriate to call attention to the fact that the petition alleges the execution of a joint will which was entitled to probate as the will of each testator. We appreciate very much the diligence of counsel in their efforts to furnish us with authority on the matter of joint wills. There seems to be little authority on the subject. In the case of Schumaker v. Schmidt, 44 Ala. 454, this court said:
From our examination of the record as presented here we consider that the judgment of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | November 10, 1955 |
45fbb8b3-742b-4536-a6a4-a5b80ad9bcc7 | McCord v. McCord | 575 So. 2d 1056 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1056 (1991)
Joel D. McCORD
v.
Thomas McCORD.
89-1452.
Supreme Court of Alabama.
January 11, 1991.
Joe W. Campbell of Lanier, Ford, Shaver & Payne, Huntsville, for appellant.
Donald N. Spurrier of Spurrier, Rice & Henderson, Huntsville, for appellee.
PER CURIAM.
The sole question presented on this appeal, in an action by a grandson against his grandfather for damages for injuries he sustained while working on his grandfather's farm, is whether the trial judge properly directed a verdict for the grandfather on the ground that the plaintiff had failed to present substantial evidence that the defendant grandfather, as an employer, had failed to provide his grandson, as an employee, with a safe place to work, as required by the provisions of the Employer's Liability Act, Ala.Code 1975, § 25-6-1 et seq.
The case was being tried before a jury. At the close of the plaintiff's case, the defendant moved for a directed verdict. After hearing arguments from both sides, the trial court directed a verdict in favor of the defendant.
Plaintiff Joel McCord is the grandson of defendant Thomas McCord. Thomas McCord owned a dairy farm, on which he employed Joel. Joel's responsibilities included rounding up the cows each day at 4:30 a.m., milking them, and then cleaning the milking lot.
On or about April 5, 1989, while Joel was milking the cows a calf ran from the barn. To prevent the calf from returning to the pasture, Joel chased it. In his pursuit, he slipped on a downed fence rail and fell on an iron post, rupturing his spleen. His spleen was later removed.
Joel sued his grandfather, alleging negligent maintenance of the farm premises and negligent failure to warn of a dangerous condition. At the close of the plaintiff's evidence, the trial court directed a verdict for the defendant.
The legal issue presented is whether Joel presented substantial evidence from which the jury could find or infer that his employer grandfather had failed to provide a safe place to work and had thereby breached the duty required by law. See § 25-6-1 and Bellew v. Sloan, 536 So. 2d 917 (Ala. 1988). In Bellew, that duty was stated as follows:
536 So. 2d at 919, (quoting Hill v. Metal Reclamation, Inc., 348 So. 2d 493, 494 (Ala. 1977).
Whether to direct a verdict is not within the trial court's discretion, and on review in an appellate court there is no presumption of correctness afforded such a ruling. Barksdale v. St. Clair County Comm'n, 540 So. 2d 1389 (Ala.1989). Our function is to review the entire evidence, and all reasonable inferences that a jury might have drawn therefrom, in the light most favorable to the nonmoving party. Thomaston v. Thomaston, 468 So. 2d 116, 119 (Ala.1985). Furthermore, to satisfy the "substantial evidence test," the nonmoving party is required to 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 Assur. Co. of Fla., 547 So. 2d 870, 871 (Ala.1989); Rowden v. Tomlinson, 538 So. 2d 15, 19 (Ala.1988).
We have reviewed the evidence in light of that standard of review, and we find that the trial court erred in directing a verdict. The evidence presented by Joel shows that: (1) Thomas McCord knew that the fence rail located in the area where Joel was working had been knocked down; and (2) that Thomas McCord had neither repaired the fence nor warned Joel of its condition. In connection with our review, we have also examined the photographs that were introduced into evidence. We disagree with the trial judge's conclusion that there was no substantial evidence of the alleged breach of duty.
Although there is evidence that Joel was himself negligent in causing his injury, Thomas McCord did not base his motion for directed verdict on the defense of contributory negligence. We acknowledge that contributory negligence is a defense under the Employer's Liability Act, as well as under the common law, Parham v. Taylor, 402 So. 2d 884 (Ala.1981); Brown v. Piggly-Wiggly Stores, 454 So. 2d 1370 (Ala.1984); and that contributory negligence may sometimes be found as a matter of law. In the majority of cases, however, questions of contributory negligence rest upon the facts or inferences from facts that are within the province of the factfinder to draw. Lewis v. Sears, Roebuck & Co., 512 So. 2d 712 (Ala.1987). With regard to this case, we believe that any issue of contributory negligence would be for the jury.
For the foregoing reasons, we hold that Joel McCord presented substantial evidence that Thomas McCord failed to provide a safe place for Joel to work. Therefore, we reverse the judgment based on the directed verdict and remand the cause for further proceedings.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, SHORES, HOUSTON, STEAGALL, and KENNEDY, JJ., concur. | January 11, 1991 |
367d85f1-dc6e-4376-bea5-01544982a558 | Bentley v. County Commission for Russell County | 84 So. 2d 490 | N/A | Alabama | Alabama Supreme Court | 84 So. 2d 490 (1955)
Hugh BENTLEY
v.
COUNTY COMMISSION FOR RUSSELL COUNTY.
4 Div. 841.
Supreme Court of Alabama.
December 22, 1955.
Rehearing Denied January 19, 1956.
*492 Paul J. Miller, Phenix City, for appellant.
J. W. Brassell, Phenix City, and Wm. Alfred Rose, S. M. Bronaugh, Robt. R. Reid, Jr., and White, Bradley, Arant, All & Rose, Birmingham, for appellee.
LAWSON, Justice.
This is a taxpayer's suit brought in the circuit court of Russell County, in equity, against the County Commission for Russell County, the governing body of that county, to restrain and enjoin the respondent from issuing and selling interest-bearing warrants for the purpose of obtaining money with which to construct and maintain public roads and bridges.
Following a hearing where the testimony was taken orally before the court, a decree was entered dismissing the bill and taxing the costs against the complainant. From that decree complainant below has appealed to this court.
The last sentence in Equity Rule 56, as amended (see pp. 218-219, 1953 Cum. Supplement, Title 7, Code 1940, Act No. 33, approved May 21, 1943, General Acts 1943, p. 28) dealing with "Oral examination in open court", is as follows: "In any such case where appeal shall be taken the court trying the case must require the testimony to be transcribed in typewriting, certified to by the stenographer, and filed in the cause." (Emphasis supplied.)
There is in the record what purports to be a transcript of the evidence presented on the trial below but it is not certified by the court reporter nor authenticated in any manner whatsoever.
The appeal is not subject to dismissal because of the failure of the court reporter to certify to his report of the proceedings. Central of Georgia R. Co. v. Hinson, 262 Ala. 223, 78 So. 2d 286. Our opinion in the case of Garrard v. State ex rel. Waid, 260 Ala. 486, 71 So. 2d 59, may be subject to the construction that an appeal will be dismissed because of such failure on the part of the court reporter, but it was not our intention to so hold. We did call attention to the fact that the court reporter had failed to comply with the requirements of Equity Rule 56, supra, but our holding that the appeal was subject to dismissal was based on the fact that there was no organization of court shown in the record and on the ground that the record did not contain the certificate required of the register by § 767, Title 7, Code 1940.
But because of the fact that the record before us does not contain the required certificate of the court reporter, the appeal must be treated as on the record proper. Central of Georgia R. Co. v. Hinson, supra; West v. Givens, 246 Ala. 395, 20 So. 2d 710. All facts found by the trial court will be taken as true and we can only consider the facts so found and those which are admitted in the pleadings. Edge v. Bice, Ala., 82 So. 2d 252.
It is well established that under the general law a large discretion is vested in the county governing bodies concerning the matter of public roads and bridges. § 43, Title 23, Code 1940, as amended; Burleson v. Court of County Commissioners of Marion County, 235 Ala. 576, 180 So. 572; Isbell v. Shelby County, 235 Ala. 571, 180 So. 567; Potts v. Court of Commissioners of Conecuh County, 203 Ala. 300, 82 So. 550; Ensley Motor Car Co. v. O'Rear, 196 Ala. 481, 71 So. 704; O'Rear v. Sartain, 193 Ala. 275, 69 So. 554; Henry v. Rogers, 19 Ala.App. 376, 97 So. 427. The County Commission for Russell County is vested with the same authority, power and duties in regard to the matter of roads and bridges as are the courts of county commissioners under the general law. Act No. 520, approved August 30, 1949, Acts 1949, p. 776.
The warrants involved are not to be a charge on the general credit of the county, and so expressly disclose on their face, but are payable solely from the funds receivable by Russell County from the gasoline tax levied by the State under the provisions of § 647, Title 51, Code 1940, as amended, and distributable under the terms of § 655 and amended § 657, Title *493 51, Code 1940. We have repeatedly held that the counties of this state have the right to issue and sell such warrants for the purpose of obtaining money with which to construct and maintain public roads and bridges. Lyon v. Shelby County, 235 Ala. 69, 177 So. 306; Herbert v. Perry, 235 Ala. 71, 177 So. 561; Isbell v. Shelby County, supra; Burleson v. Court of County Commissioners of Marion County, supra; Dodson v. Beaird, 237 Ala. 587, 187 So. 862; Bullock County v. Sherlock, 242 Ala. 262, 5 So. 2d 800; Cochran v. Marshall County, 242 Ala. 314, 6 So. 2d 489; Rollings v. Marshall County, Ala., 82 So. 2d 428.
The proposed warrants do not fall within any constitutional prohibition inasmuch as they do not affect the general revenue of the county nor the proceeds of any levy by the county for special county purposes under the constitution. Isbell v. Shelby County, supra, and cases cited.
In § 647, Title 51, Code 1940, as amended, is the following provision: "However, the governing body of each county is authorized to expend an amount not to exceed one-third of the total amount of such revenue that may be received by such county in the payment of any debt that may have been incurred by such county for the construction or maintenance of roads or bridges." The provision just quoted is not a limitation on the use of the gasoline tax fund, rather it is an enlargement of the other provisions of § 647, as amended, supra, that the gasoline tax fund "shall not be used for any purpose other than for the construction, improvement, maintenance and supervision of highways, and bridges and streets, including the retirement of bonds for the payment of which such revenues have been or may hereafter be pledged." See Cochran v. Marshall County, supra, where there is a full discussion of the purpose and effect of the provisions of § 647, as amended, supra, quoted above.
Reduced to its final analysis, this is really a suit wherein a taxpayer seeks to restrain by injunction the exercise of discretionary power of county officials. Our cases are to the effect that the action of a county governing body in the exercise of discretionary powers vested in it is not subject to judicial review except for fraud, corruption or unfair dealing. Terrell v. Marion County, 250 Ala. 235, 34 So. 2d 160; Board of Revenue of Etowah County v. Hutchins, 250 Ala. 173, 33 So. 2d 737; Potts v. Court of County Commissioners of Conecuh County, supra; Ensley Motor Co. v. O'Rear, supra; O'Rear v. Sartain, supra; Matkin v. Marengo County, 137 Ala. 155, 34 So. 171. See State ex rel. Austin v. City of Mobile, 248 Ala. 467, 28 So. 2d 177; Van Antwerp v. Board of Commissioners of City of Mobile, 217 Ala. 201, 115 So. 239; Pilcher v. City of Dothan, 207 Ala. 421, 93 So. 16; Townsend v. McCall, 262 Ala. 554, 80 So. 2d 262; Henry v. Rogers, supra.
Counsel for complainant below recognizes this rule, as is made to appear from the following statement contained in brief filed here on behalf of complainant: "The basis for the complaint and amendment being that the necessity for the above amount of money did not exist at this time and that the necessity for roads valued in the above amount did not exist at this time, and that should these warrants be issued by the appellees as now threatened it would be a fraud upon the taxpayers of Russell County, Alabama, and upon your complainant, and would cause irreparable injury, or that such action on the part of appellees is gross neglect of duty and that the said appellees should be enjoined and restrained from such sale as proposed."
The trial court found that the complainant failed to meet the burden which was upon him to establish fraud, corruption or unfair dealing and hence dismissed his bill. As heretofore indicated, we must review this appeal as if on the record and when so reviewed we cannot disturb the finding of the trial court that the evidence did not show fraud, corruption or unfair dealing on the part of the respondent in connection with the proposed issuance and sale of the warrants here involved.
*494 In treating the case in this manner, as we are compelled to do, we do not wish to be understood as indicating that a consideration of the proceedings set out in the record but not certified would lead to any different result.
The decree of the circuit court is due to be and is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | December 22, 1955 |
a3d15f2a-b603-4817-bf55-496ac131df72 | BARBER PURE MILK COMPANY v. Holmes | 84 So. 2d 345 | N/A | Alabama | Alabama Supreme Court | 84 So. 2d 345 (1955)
BARBER PURE MILK COMPANY
v.
Vernice HOLMES.
BARBER PURE MILK COMPANY
v.
Alva L. HOLMES.
6 Div. 749, 749-A.
Supreme Court of Alabama.
November 3, 1955.
Rehearing Denied January 12, 1956.
*347 J. P. Mudd and E. M. Friend, Jr., Birmingham, for appellant.
Gibson, Hewitt & Gibson, Birmingham, for appellees.
MAYFIELD, Justice.
This is an appeal from final judgments rendered in behalf of both appellees, the plaintiffs below, by the circuit court of Jefferson County. This appeal involves two actions, one for personal injuries to the plaintiff, Vernice Holmes, and the other for loss of consortium on the part of her husband, Alva L. Holmes. Both here and in the trial court, the actions were consolidated.
The accident out of which these cases arose occurred on 9 February 1952 at approximately 9:00 A.M. According to the testimony of Vernice Holmes, she had been in Greenwood's Cafe, Birmingham, shortly prior to the accident. As she left the cafe, she proceeded north on the east sidewalk along 20th Street. There is an alleyway which separates Greenwood's Cafe from the Tutwiler Hotel. As she approached this alleyway, she saw a milk truck drive into the alley which crosses the sidewalk. The truck stopped in a position partially blocking the sidewalk directly in front of Mrs. Holmes. She described the truck as being cream colored and bearing the name "Barber Pure Milk" in red letters. As Mrs. Holmes approached the truck she stopped for a few seconds and saw a negro man get out of the cab of the truck on the side on which she was standing, and run to the rear of the truck. As Mrs. Holmes started across the alley and around the end of the truck the man who had just alighted from the cab of the truck opened the rear door in a sudden manner causing it to strike her in the head. Mrs. Holmes has no knowledge of what happened from the time she was struck by the door of the truck until she regained consciousness that afternoon in the office of Dr. J. M. Donald, who is the physician of the Barber Milk Company. She does not know how she reached the company doctor's office, located at Five Points, Birmingham. Mrs. Holmes did not know Dr. Donald and did not meet him until she regained consciousness in his office.
A few days following the accident Mrs. Holmes identified a truck on the defendant's premises as being the same or "a similar truck" to that which caused her injury. At the trial she likewise identified photographs of one of the defendant's fleet of trucks.
No witnesses other than the plaintiff testified concerning the actual occurrences which led to Mrs. Holmes' injury. Considerable evidence was introduced by both the plaintiff and defendant regarding the extent of her injuries. The evidence of the defendant was purely negative and tended to show that none of its trucks were involved in the accident. Various of defendant's employees testified that they had no knowledge of the accident. They also testified as to the details of the defendant's routine operations which testimony tended to show that it was improbable that any of defendant's trucks would have been stopping in this particular alley at the time of the accident. Among the employees who testified was defendant's sales manager, who was notified of the accident by telephone shortly after it happened.
Mr. Arthur Greenwood gave evidence that he had no knowledge of the accident outside his place of business on the day in question. He further testified that milk trucks of dairies, other than defendant, also used this particular alley, daily. A police officer who was on duty one-half block from the place of the accident, at the corner of Fifth Avenue and 20th Street, also testified for the defendant. He stated that he knew nothing about the accident and further that when he made his investigation, approximately one week after Mrs. Holmes' injury, he was unable to find any person who witnessed the accident.
*348 The complaint of Vernice Holmes was originally in four counts. Counts 1, 2 and 4 were withdrawn by the plaintiff and the trial was had on count 3 alone, which is as follows:
"Count Three
The appellant strenuously urges that the trial court erred in overruling its demurrer to the complaint. The first proposition advanced in support of this contention is that the general averment of negligence will not suffice in the absence of a showing of a breach of duty owed by the defendant to the plaintiff. Such is a correct statement of the law. Appellant here relies on the case of Tennessee Coal, Iron & R. Co. v. Smith, 171 Ala. 251, 55 So. 170, 171, where it was stated:
We must determine whether the present complaint alleged facts from which the law will imply duty. In this regard, we held in Dozier v. Woods, 190 Ala. 279, 67 So. 283, the following:
The same proposition was restated in Buffalo Rock Co. v. Davis, 228 Ala. 603, 154 So. 556, which case was cited by appellee. The complaint in the present case states that the plaintiff was a pedestrian on a public street in the City of Birmingham. As a matter of law, she had a right to be at the place where the accident occurred. We are of the opinion that the allegation is sufficient to show a duty on the part of the defendant not to negligently or wantonly injure her. So considered, the general allegation of negligence was sufficient. See, also, Smith v. Tripp, 246 Ala. 421, 20 So. 2d 870, 871.
The complaint was technically defective in that it failed to allege sufficiently the relationship between the defendant or his servant and the instrumentality allegedly causing the injury. In Smith v. Tripp, supra, this court held:
The complaint did not contain sufficient allegations of the relation between the defendant servant and his control of the door of defendant's truck. This defect was challenged by apt demurrer and the trial court should have sustained the demurrer. See, Levans v. Louisville & N. R. Co., 228 Ala. 643, 154 So. 784; and Britling Cafeteria Co. v. Irwin, 229 Ala. 687, 159 So. 228. While this omission was technically error, the complaint as a whole stated a good cause of action. It is, therefore, error without injury, since it appears without dispute from the evidence that at the time of the injury, the negro helper, alleged to be a servant, agent or employee of the defendant, and against whom the negligent act is charged, was in actual manual control of the instrumentality causing the injury. Smith v. Tripp, supra; Birmingham Southern R. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339.
The principal issue contested at the trial concerned the ownership of the truck in question by the defendant and the agency of the alleged servant of the defendant. The essential questions of this controversy are clearly brought into focus by distinguished counsel for the appellant. He contends:
We are cited to no prior Alabama decisions which are dispositive of the complex issues as they are presented to this court by the appellant. Some aspects of the appellant's defensive position have, however, been considered by this court.
It is well-settled that proof of ownership of an automotive truck causing injury raises an administrative presumption that the person in possession and control of the truck is the agent or servant of the owner, and that he is acting within the line and scope of his employment. Rogers v. Hughes, 252 Ala. 72, 39 So. 2d 578, and cases cited therein.
In Hancock v. Liggett & Myers Tobacco Co., 253 Ala. 63, 64-65, 42 So. 2d 632, 633, the following statement is found:
In Dortch Baking Co. v. Schoel, 239 Ala. 266, 268, 194 So. 807, 808, the plaintiff, Schoel, brought an action for personal injury and property damage arising out of a collision between the plaintiff's autobike and a truck alleged to be owned by defendant, Dortch Baking Company. The question presented was the agency vel non of the driver of the truck. The facts essential to our consideration are set out in the following quoted portion of this court's opinion:
In Duke v. Williams, 249 Ala. 574, 579, 32 So. 2d 362, 367, which was also an action for personal injuries, this court said:
The Court of Appeals of Alabama has, since the submission of the present case, decided a factual situation closely akin to the present controversy. In Sears, Roebuck & Co. v. Hamm, Ala.App., 81 So. 2d 915, 918, that court said:
One of the text authorities cited in the foregoing case contains the following statement:
Taking the evidence most favorable to the plaintiff, as we are required to do, the testimony goes well beyond mere identification of defendant's name on the truck. The defendant regularly used trucks in making milk deliveries in the City of Birmingham. The plaintiff observed trucks on the premises of the defendant and during the trial examined a photograph of trucks belonging to the defendant. In both instances, the plaintiff identified a particular truck as being the same truck or identical to the truck involved in the accident. It is undisputed that the truck so identified was a part of the defendant's fleet. "Quite a few" of such trucks are owned by the defendant and are regularly used by it in making deliveries in downtown Birmingham. The plaintiff testified not only as to the name painted on the truck, but also as to its color, color of the lettering and the particular placement of defendant's name. The accident occurred at the entrance to a particular alley which is regularly used by the defendant in making its milk deliveries.
We conclude that the plaintiff's testimony was sufficient to establish prima facie that the truck was owned by the defendant and that an administrative presumption of agency was raised.
The appellant insists that the evidence shows that the injury complained of was not inflicted by the driver of the truck but by a negro helper. The company's position is that the presumption of agency may not be extended to a "mere occupant" of the vehicle.
According to plaintiff's testimony, the injury complained of was occasioned by the operation of the rear door of the truck and not by the movement of the vehicle itself. The evidence does not disclose whether the alleged servant of the defendant was the driver of the truckalthough the plaintiff seems to have proceeded throughout the trial on the theory that the servant actually inflicting the injury was merely a helper. There is evidence that when the truck came to a stop, the helper dismounted from the cab of the truck and proceeded to the rear and opened the door in such a manner that it struck the plaintiff in the head.
Negro helpers are employed by the defendant on its trucks and the practices carried out at the scene of the accident were consistent with the defendant's normal operations in the areawith the exception of the fact that on this particular occasion the door was opened in such a manner as to obstruct a part of the sidewalk and cause plaintiff's injury.
We are of the opinion that the same logic and policy considerations which give rise to a presumption of agency in the driver of a vehicle injuring a person because of the movement of a vehicle, are applicable to the alleged servant in the present case, who, under the circumstances disclosed by the evidence, was in control of the rear door of the truck at the time plaintiff was injured. We conclude that the administrative presumption was equally applicable to the helper who was shown to be in control of the unloading operation.
As to the nature and effect of such administrative presumption, this court in Tullis v. Blue, 216 Ala. 577, 578, 114 So. 185, 187, stated the following:
The administrative presumption as to ownership and agency is rebuttable, and if the evidence is strong, clear and undisputed that the operator of the vehicle was not the owner's servant, agent or employee, acting within the line and scope of his employment, the defendant is entitled to the general affirmative charge with hypothesis when requested in writing. Cox v. Roberts, 248 Ala. 372, 27 So. 2d 617.
The evidence which the defendant introduced in this regard was furnished by the drivers and helpers of two of his fleet of trucks which make regular deliveries in the vicinity of the locus of the accident, and by the defendant's sales manager. Their testimony was to the effect that they were not involved in any such accident as the plaintiff described, and to other facts which tended to indicate that it was improbable that any other of defendant's trucks were present in this particular alleyway at the time of the accident. Testimony, of a negative character, was also given by other witnesses who were in the general vicinity, but not at the scene of the accident at the time it occurred, to the effect that they had no knowledge of such an occurrence.
While the evidence adduced by the defendant at the trial tends to show that it was improbable that its trucks or servants were involved in the accident, there was no positive evidence of such. Nor was the defendant's evidence "strong and clear" to that effect. Therefore, the questions of ownership and agency were properly submitted to the jury for its determination. The jury is the proper trier of such disputed facts and inferences to be drawn therefrom. It is not the province of this court to usurp the jury's function and indulge in our own speculations and inferences from disputed evidence. We cannot say that the verdict rendered thereon was contrary to the great weight of evidence.
Appellant's assignments of error 39, 42, 43, and 45, assert that the trial court committed error in permitting hypothetical questions to be asked of appellees' expert medical witness. Appellant's contention of error is based on the theory that these hypothetical questions assume facts which were not in evidence. Counsel for appellant made timely objection to the questions and one of his grounds of objection was that the questions were predicated on facts not in evidence. However, to put the trial court in error, it is necessary that the objections to hypothetical questions point out definitely and specifically the vice inherent in the question. Although appellant's counsel generally stated his grounds of objection, he failed to point out to the trial court in what particular these questions *354 were objectionable. Therefore, the trial court was not in error in overruling the objections. Long Distance Telephone & Telegraph Co. v. Schmidt, 157 Ala. 391, 47 So. 731; Birmingham Electric Co. v. Glenn, 224 Ala. 620, 141 So. 537; 4 C.J.S., Appeal and Error, § 295 b (1), p. 588; II Elliott on Evidence, § 883, p. 162.
It is also contended that the following argument made to the jury by counsel for the plaintiff was error:
Traditionally, considerable latitude is allowed counsel in arguing the evidence and the reasonable inferences to be drawn therefrom. Trial courts will not be put in error in this particular unless there was a clear abuse of discretion, and the argument objected to was of such a character that it could not be eradicated from the minds of the jury by proper instruction.
Illustrative of the above rule is the case of Brown v. Johnston Brothers, 135 Ala. 608, 33 So. 683, 684. This was an action on a promissory note, wherein it was argued by counsel for the plaintiff concerning pleas of defendant including one of non est factum," "`If these pleas be true, then they charge the plaintiffs with forgery.'" It was argued on appeal that the remarks were manifestly improper and should have been excluded on the objection made by the defendant that the pleas did not charge the plaintiffs with forgery, nor was it necessary to charge them with forgery to avoid liability. This court held:
We cannot say that the trial court abused its discretion in failing to sustain objections to the quoted portion of counsel's argument in this cause.
We have given careful consideration to the remaining assignments of error urged on appeal and conclude that none of them would justify a reversal of the jury's verdict and the court's judgment thereon. Accordingly, each of the judgments of the lower court is due to be, and is hereby, affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | November 3, 1955 |
21d6bc30-598f-4e2e-87fe-45c3ab882d19 | Lomax v. Gibson | 584 So. 2d 445 | N/A | Alabama | Alabama Supreme Court | 584 So. 2d 445 (1991)
James P. LOMAX, Jr.
v.
W. Kenneth GIBSON, et al.
89-1449.
Supreme Court of Alabama.
February 1, 1991.
Rehearing Denied May 24, 1991.
James P. Lomax, Jr., pro se.
W.A. Kimbrough, Jr. and Frank Woodson of Turner, Onderdonk, Kimbrough & Howell, Mobile, for appellee W. Kenneth Gibson.
Philip H. Partridge and James W. Tarlton IV of Brown, Hudgens, Richardson, P.C., Mobile, for appellee Daniel A. Benton.
Jerry A. McDowell and Walter T. Gilmer, Jr. of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee Sam W. Irby.
ADAMS, Justice.
This is a legal malpractice action wherein the trial judge entered a summary judgment in favor of Kenneth Gibson, former attorney of the plaintiff, James P. Lomax, Jr. The sole issue raised by Lomax in his appeal is whether the statutory period of limitations had run when Lomax filed his malpractice action. We affirm.
In 1980, Gibson practiced with the firm of Taylor, Benton, Irby and Gibson. While Gibson was practicing with that firm, Lomax signed a contract for Gibson to represent him in a workman's compensation action against Bryson Environmental Services. The injury giving rise to Lomax's claim had occurred on January 19, 1979. The statutory period of limitations in a workmen's compensation action at that time was one year, and Gibson allegedly failed to pay the necessary fees for service of process in Lomax's case prior to the expiration of the statutory period on January 19, 1980.
Lomax contends that he did not learn until October 1986, that the required fees had not been paid. On October 14, 1986, Lomax settled with Bryson Environmental Services for $1,500. On October 13, 1988, Lomax filed this malpractice action against Gibson, and he later added the other partners of the firm of Taylor, Benton, Irby, and Gibson as defendants. The trial court entered a summary judgment as to all defendants.
The defendants argue that because the underlying workman's compensation claim was subject to a one-year statute of limitations and the statutory period of limitations on that claim expired on January 19, 1980, that, consequently, Lomax's malpractice claim accrued on that date. The defendants further contend that the applicable statute of limitations for Lomax's malpractice claim is set out in the Alabama Legal Services Liability Act, § 6-5-570 et seq., Code of Alabama 1975. Section 6-5-574(a) provides as follows:
The defendants argue that, even assuming the correctness of Lomax's argument, that he did not discover the alleged malpractice until October 1986, his claim, nevertheless, falls within the purview of that section. Therefore, the defendants argue, because the "act or omission or failure giving rise to [the] claim" occurred before August 1, 1987, Lomax would have had only until August 1, 1988, to file his claim against Gibson and his firm. Section 6-5-574(a), supra. Lomax filed in October 1988. Therefore, they argue, § 6-5-574(a) bars Lomax's action.
First, we note that § 6-5-581, part of the same Act, provides as follows:
While there seems to be a discrepancy within the Act with regard to the effective date of the statute, i.e., whether the Act applies only to omissions occurring after April 12, 1988, or whether the Act applies to acts occurring prior to that date, as § 6-5-574 implies, we need not attempt to unravel that mystery here, because, in either event, the trial court correctly entered the summary judgment in this case.
As stated above, if § 6-5-574 does apply to this action, then Lomax's action is barred. If, however, the Act, as § 6-5-581 implies, does not apply to acts or omissions that occurred prior to April 12, 1988, then the applicable statute of limitations would be six years, pursuant to § 6-2-34, Code of Alabama 1975. Section 6-2-34 states:
Thus, under that section, a party had six years from the accrual of his action to file.
Garrett v. Raytheon Co., 368 So. 2d 516, 518-19 (Ala.1979). The plaintiff's delay in discovering the right to bring an action did not toll the running of the statutory period unless fraud was involved. See Garrett at 521. Therefore, even if Lomax did not discover the act or omission until October 1986, that fact would not have extended the time he had to file his action under § 6-2-34, supra, unless fraud was involved. Applying that section and Garrett, supra, to the present case, we conclude that Lomax's claim accrued when he first had a cause of action against Gibson, i.e., when the statutory period of limitations in his workmen's compensation suit expired without Gibson's having paid the necessary filing fees. Thus, Lomax's action accrued on January 19, 1980. Six years from the accrual of the action would have been January 19, 1986. Lomax, however, failed to file his malpractice action until October 1988. Consequently, his malpractice cause of action was barred by the statute of limitations, and the trial court correctly *447 entered the summary judgment for all of the defendants.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur. | February 1, 1991 |
3af81193-5dd3-4434-bb2b-9eb88226c07b | Ex Parte King | 83 So. 2d 241 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 241 (1955)
Ex parte Leonard M. KING, Sr.
W. D. KENDRICK et al.,
v.
Leonard M. KING, Sr.
6 Div. 947.
Supreme Court of Alabama.
November 3, 1955.
*242 Edw. L. Ball, Bessemer, for petitioner.
Howard H. Sullinger, Bessemer, for respondents.
GOODWYN, Justice.
We granted certiorari to review the action taken by the circuit court of Jefferson County, Bessemer Division, in Equity, in a contempt proceeding against petitioner. The question presented is whether the punishment imposed exceeds that authorized by law.
On June 30, 1955, the County Commissioners of Jefferson County filed in said court a bill of complaint to enjoin petitioner "from selling or offering for sale beer or other alcoholic beverages" at his place of business known as "King's Place" situated near Genery's Gap in said county. The relief prayed for is grounded on the following allegations: (1) That "the location of said business * * * is not zoned for the sale of beer under the zoning regulations and restrictions adopted and promulgated by the governing body of said County, and is in direct violation thereof"; (2) that respondent (petitioner here) "is selling or offering for sale beer at said place of business without first having procured a Use Permit from the Building Commissioner of Jefferson County as required by law"; and (3), that respondent has had "due notice that he is violating the law", but that "notwithstanding such notice he is now and has been in the past openly and wilfully and knowingly operating said business in violation of the law", and that "the peace and welfare of the citizens of said community require that appropriate action be taken by this court to enjoin and abate said illegal operation carried on by the respondent at said place of business." Pursuant to a prayer to that end, a temporary injunction against petitioner was granted at the time the bill was filed.
On July 11, 1955, complainants filed a petition with the trial court alleging that respondent "has openly and wilfully violated the terms and provisions" of the temporary injunction and praying for issuance of a rule nisi to the respondent requiring him to appear and show cause why he should not be held in contempt of court because of "his wilful violations" of said injunction. On the same day a rule nisi was issued and served on the respondent requiring him to appear on July 12, 1955, and show cause why he should not be held in contempt. A hearing was had on the appointed day, whereupon the court rendered the following decree:
"Ordered and done this 12th day of July, 1955.
Indorsed on the decree is the following:
"Committed to Jail: Date, July 12, 1955
"Holt A. McDowell, Sheriff __________________
"Claude Wilson
"Filed in Office: July 12, 1955"
On July 22, 1955, respondent petitioned the court to set aside the contempt decree and to have the fine paid by him remitted. This petition was denied on August 3, 1955.
On July 28, 1955, respondent filed two separate motions for dissolution of the injunction, and on the same day filed his answer to the bill. The record does not disclose whether action has been taken on said motions; nor whether a final decree on the merits has been rendered.
The insistence of petitioner here is that the punishment imposed is in excess of that authorized by Code 1940, Tit. 13, §§ 9 and 143, while respondent here maintains that the punishment is within the limits prescribed by Code 1940, Tit. 7, § 1108.
Sections 9 and 143, Title 13, supra, are as follows:
Section 1108, Title 7, supra, is as follows:
It seems clear that § 1108, Tit. 7, has no application to this proceeding. That section is a part of Art. 2, Chap. 31, Tit. 7, dealing with "Nuisances", and, by its very terms, applies only when a party is found guilty of contempt under the provisions of said Art. 2. By referring back to § 1091 of Tit. 7, which is the first section in Art. 2, it is clear that the nuisance being dealt with in Art. 2 is the maintenance of a place "in or upon which lewdness, assignation, or prostitution is conducted, permitted, continued, or exists". In the instant case we do not have that situation but instead are dealing with an alleged violation of a zoning regulation. And we here note, aside from any other consideration as to the right of complainants to institute the injunction proceeding, such right is expressly given by Act No. 634, appvd. Sept. 4, 1951, Gen.Acts 1951, Vol. II, pp. 1089-1090, Code 1940, Tit. 62, § 330 (240a), 1953 Cum. Pocket Part, which is applicable to Jefferson County.
Although reference is made in petitioner's brief to the bill's want of equity, we do not understand him to question the jurisdiction of the trial court to entertain the suit. It seems clear that the trial court had jurisdiction of both the parties and the subject matter.
That brings us to a consideration of the applicability of §§ 9 and 143, Tit. 13, supra. Section 143, rather than Section 9, is made expressly applicable whem the circuit court or a judge thereof is "exercising equity jurisdiction". Whether Section 9 is or is not also applicable is of no moment.
It seems to us that what was said in Ex parte Hill, 229 Ala. 501, 503-504, 158 So. 531, is of controlling influence here. In that case the petitioner was adjudged in contempt of the equity court for violating a writ enjoining him from maintaining a liquor nuisance. It was ordered that petitioner "`be imprisoned in the county jail for ninety days'" from the date of the order "`as a punishment for such contempt'". In the opinion a distinction was drawn between a "civil contempt" and a "criminal contempt", and it was held that, while the statutory limitations on punishment, § 3798, Code 1923, § 9, Tit. 13, Code 1940; § 6481, Code 1923, § 143, Tit. 13, Code 1940, do not apply to civil contempts as there defined, such limitations do apply to criminal contempts. In holding that a criminal contempt was there involved and, therefore, subject to the statutory limitations as to punishment, this court said:
The question, then, to be decided is whether the contempt in the instant case is in its nature "civil" or "criminal". If "criminal" the punishment imposed exceeds the statutory limitations.
It seems to us, as said in Ex parte Hill, supra, that "the decree of the court settles that question. It is declared to be a punishment for what has been done, and it committed petitioner to jail for a definite period of time."
The distinction between civil and criminal contempts is thus stated in 12 Am.Jur., Contempt, § 6, p. 392:
Criminal and civil contempts are defined in 17 C.J.S., Contempt, §§ 5 and 6, pp. 7-8, to be as follows:
We conclude that the contempt under review is a "criminal contempt" and that the statutory limitations, §143, Tit. 13, supra, are applicable. It seems to us that the penalty is for past disobedience rather than to compel obedience.
To the extent that the decree exceeds the statutory limitations, it is modified, and as modified, it is affirmed.
Modified and, as modified, affirmed.
LIVINGSTON, C. J., and SIMPSON and MAYFIELD, JJ., concur. | November 3, 1955 |
4d03c4c0-c3cb-430c-ab31-a27f10c444a8 | Walding v. Blue Cross and Blue Shield | 577 So. 2d 853 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 853 (1991)
Jimmy WALDING and Marie Walding
v.
BLUE CROSS AND BLUE SHIELD OF ALABAMA, INC.
89-1173.
Supreme Court of Alabama.
March 8, 1991.
*854 Samuel A. Cherry, Jr. and Allen G. Woodard of Cherry, Givens, Tarver, Aldridge, Peters, Lockett & Diaz, Dothan, for appellants.
Lawrence B. Clark, Robert D. Hunter and Charles C. Pinckney of Lange, Simpson, Robinson & Somerville, Birmingham, and Alan C. Livingston of Lee & McInish, Dothan, for appellee.
ALMON, Justice.
Jimmy Walding and Marie Walding appeal from an interlocutory order of the trial court denying their motion to certify a class.
The Waldings filed a complaint against Blue Cross and Blue Shield of Alabama, Inc. ("Blue Cross"), on August 5, 1988, alleging breach of contract and bad faith failure to pay an insurance claim. They later amended their complaint, alleging that there were other insureds who were similarly situated, and moved for certification of a class of plaintiffs pursuant to Rule 23, Ala.R.Civ.P.[1] That motion was denied. The Waldings then settled their claims against Blue Cross for an undisclosed amount, and the parties filed a stipulation of dismissal with the trial court. The Waldings did not attempt to reserve any issues for appeal when that stipulation was filed. On April 11, 1990, the court entered a final judgment, dismissing the Waldings' complaint with prejudice and taxing costs to Blue Cross. Following the entry of final judgment, the Waldings appealed the court's denial of their motion to certify a class.
Blue Cross has filed a motion to dismiss the appeal, arguing that the Waldings' voluntary acceptance of the settlement and execution of a stipulation of dismissal without reservation precludes their appeal. In response, the Waldings contend that they should be allowed to continue to represent the other members of the purported class, even though they no longer have a personal stake in the outcome.
As a general rule, a party's consent to a judgment without reservation waives that party's right to appeal. State v. Coheley, 549 So. 2d 483 (Ala.1989); Price v. American National Bank of Gadsden, 350 So. 2d 328, 329 (Ala.1977). An exception to that rule is made in the case of a judgment consented to as the result of either fraud or mistake. Price, supra. This rule also applies in the case of interlocutory orders entered by consent, including those denying class certification, as they are part of the final judgment for purposes of appeal. Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S. Ct. 2454, 57 L. Ed. 2d 351 (1978).
Blue Cross directs this Court's attention to a recent decision by the United States Court of Appeals for the Eleventh Circuit, Shores v. Sklar, 885 F.2d 760 (11th Cir. 1989), cert. denied, ___ U.S.___, 110 S. Ct. 843, 107 L. Ed. 2d 838 (1990), as being dispositive of the Waldings' appeal. Although Shores involved a different underlying cause of action, its procedural history is very similar to that of the instant case. Shores sought to have a class certified pursuant to Rule 23, Fed.R.Civ.P. That motion was denied and Shores later accepted, without qualification, a settlement offer tendered by the defendant. After being *855 notified of Shores's acceptance of the offer, the district court entered a final judgment, with Shores's consent. Following entry of the final judgment, Shores filed a notice of appeal from the court's order denying class certification. 885 F.2d at 762.
The Eleventh Circuit, applying the consent-to-judgment waiver doctrine, dismissed Shores's appeal:
Id. That doctrine has been consistently applied by this Court. See Coheley, supra; and City of Bessemer v. Brantley, 258 Ala. 675, 65 So. 2d 160 (1953).
The Waldings contend that Shores is inapposite and that an earlier decision by the Eleventh Circuit, Love v. Turlington, 733 F.2d 1562 (11th Cir.1984), is controlling. We do not agree. Unlike the Waldings, the plaintiff in Love expressly reserved her right to appeal the district court's denial of class certification. 733 F.2d at 1564. Also, as was pointed out in Shores, the consent-to-judgment waiver issue was not raised in Love and was therefore not addressed by the court. 885 F.2d at 763. The only issue addressed in Love was whether the plaintiff's appeal of the denial of class certification was mooted by her acceptance of the settlement offer. 733 F.2d at 1564. As noted by the Eleventh Circuit in Shores:
885 F.2d at 764.
The Waldings also cite a number of cases as support for the proposition that class representatives should be allowed to appeal the denial of class certification, even if their own claims have been extinguished. Deposit Guaranty National Bank, Jackson, Mississippi v. Roper, 445 U.S. 326, 100 S. Ct. 1166, 63 L. Ed. 2d 427 (1980); First Baptist Church of Citronelle v. Citronelle-Mobile Gathering, Inc., 409 So. 2d 727 (Ala.1981); Jones v. Southern United Life Ins. Co., 392 So. 2d 822 (Ala.1981). However, unlike the Waldings, the plaintiffs in those cases did not consent to the court's entry of judgment. Therefore, they are inapposite.
In Roper, the plaintiffs refused a settlement offer that was tendered by the defendant after their motion to certify a class had been denied. Notwithstanding their refusal, the district court deposited the amount of the tender in its registry and entered a judgment for the plaintiffs, despite their repeated objections. 445 U.S. at 329-30, 100 S. Ct. at 1169-70. The plaintiffs appealed the denial of their motion to certify a class, and the Supreme Court held that their appeal could be maintained, noting:
445 U.S. at 332, 100 S. Ct. at 1171 (emphasis added).
In both First Baptist Church of Citronelle, supra, and Jones, supra, a summary judgment in favor of the defendants was entered after the plaintiffs' motions to certify a class had been denied, and their individual claims had been settled. In neither case had the plaintiffs/appellants consented to the entry of judgment against them. First Baptist Church of Citronelle, 409 So. 2d at 728; Jones, 392 So. 2d at 823.
We find the facts in Shores to be directly on point and find the rationale expressed in that opinion to be sound. Unlike the plaintiffs in Roper, supra; First Baptist Church of Citronelle, supra; and Jones, supra, the Waldings accepted a settlement offer and then entered into a stipulation of *856 dismissal without attempting to reserve any issues for appeal. Their consent to the judgment waived any right they had to appeal the court's denial of their motion to certify a class. Shores, supra; Coheley, supra; and Price, supra. Accordingly, Blue Cross's motion to dismiss the appeal is granted.
APPEAL DISMISSED.
HORNSBY, C.J., and STEAGALL and INGRAM, JJ., concur.
ADAMS, J., concurs in the result.
[1] The other members of the putative class were not identified and never received notice of the pending motion for class certification. As a result, the trial court's ruling in this case would not prejudice their ability to bring an independent action. | March 8, 1991 |
b82750a8-10fc-4053-8aad-7a1c25b7cd26 | Poole v. WILLIAM PENN FIRE INSURANCE COMPANY | 84 So. 2d 333 | N/A | Alabama | Alabama Supreme Court | 84 So. 2d 333 (1955)
James POOLE
v.
WILLIAM PENN FIRE INSURANCE COMPANY.
6 Div. 852.
Supreme Court of Alabama.
November 3, 1955.
Rehearing Denied January 12, 1956.
Hare, Wynn & Newell and Sadler & Sadler, Birmingham, for appellant.
Winston B. McCall, Victor H. Smith and Pritchard, McCall & Jones, Birmingham, for appellee.
SIMPSON, Justice.
This case comes to us on pleadings from the Circuit Court, Tenth Judicial Circuit, Jefferson County, wherein the plaintiff (appellant) took a nonsuit upon the court's *334 sustaining of the defendant's demurrer to plaintiff's replication number 7 (an answer to defendant's pleas 3 and 4 as amended).
The suit arose under a policy of insurance in which the defendant insured the plaintiff's ambulance against loss by fire to the extent of $3,000. The pleadings show that the vehicle was burned through the negligence of Drennen Motor Ensley, Inc., and that the plaintiff suffered a loss in excess of $6,000.
Defendant's pleas 3 and 4 in effect aver that the plaintiff ought not to recover because (1) the plaintiff has cut off the defendant's subrogation rights against the tortfeasor by executing the following release:
and (2) since the consideration for the release amounted to full coverage of the policy, this payment constituted a discharge of the defendant's liability.
In replication 7 the plaintiff answers that he made claim under his policy, but the claim was denied and remains unpaid; that his loss was in excess of $6,000; that subsequently to the claim denial he executed the above release in consideration of $3,000; that the defendant has waived any rights of subrogation which it may have under the terms of the policy; and that the defendant has waived any rights to claim the benefits of any payment made by the tortfeasor to the plaintiff.
The defendant interposed forty grounds of demurrer to this replication. The court sustained the demurrer. Plaintiff took a nonsuit and now appeals; his assignments of error properly bring up for review the ruling below sustaining the defendant's demurrer to plaintiff's replication 7, as an answer, separately and severally, to pleas 3 and 4 as amended.
From the judgment entry it is not specifically recited that appellant was forced to suffer a nonsuit because of adverse rulings of the trial court. However, upon comparison of the instant recital with that contained in the appeal record of the case of Ex parte Martin, 180 Ala. 620, 61 So. 905, we have concluded in favor of appellant and will proceed to review the stated ruling.
In undertaking such review, however, we are limited to consideration of only such rulings of the trial court as culminated in and superinduced the taking of the nonsuit. Calvert Fire Ins. Co. v. Maddox, Ala.App., 82 So. 2d 277, 279, certiorari denied Ala., 82 So. 2d 280.
The judgment entry recites a series of court rulings on December 6, 1954, in response to extensive pleadings. It shows that the plaintiff took a nonsuit following *335 ruling on the demurrer to replication 7, although there is no specific mention that the nonsuit resulted from this ruling, viz.:
"The recitals of the judgment as to the cause of the non-suit is conclusive, Garner v. Baker, 214 Ala. 385, 108 So. 38, and if the judgment entry does not specify with particularity the ruling or rulings necessitating the non-suit, `the court must for itself determine, within the recitals thereof (Long v. Holley, 157 Ala. 514, 47 So. 655), just what was the ruling or rulings which obstructed plaintiff's right "* * * to proceed in his effort for recovery." "City of Mobile v. Board of Revenue and Road Commissioners of Mobile County, 219 Ala. 60, 121 So. 49, 51." Calvert Fire Ins. Co. case, supra.
The import of the holding in the City of Mobile case, supra, and approved in the Calvert Fire Ins. Co. case, supra, is that in the absence of a specific recital or showing in the judgment that the rulings prior to that on the demurrer to replication 7 were material inducements to the nonsuit we should not so hold, but should conclude that the action of the court in sustaining the demurrer to replication 7 was the ruling which obstructed the plaintiff's right to proceed in his effort for recovery and therefore it is the only ruling up for review. "If this were not true, on such appeal, we would open the way to a consideration of all the rulings prior to the nonsuit, contrary to the uniform decisions of this court." City of Mobile case, supra [219 Ala. 60, 121 So. 51].
In replication 7 the appellant avers waiver in that he made claim upon the appellee for loss incurred, but this claim was denied, whereupon he made a compromise settlement with tortfeasor Drennen and executed the release above quoted. Two questions arise: (1) As a matter of pleading in connection with the asserted demurrer, do the facts alleged support an acceptable conclusion of waiver? (2) As a matter of law, does the denial of the policy claim by the insurer constitute a waiver of the insurance company's rights of subrogation which the company claims under pleas 3 and 4. Both questions are due an affirmative answer, resulting that the judgment must be reversed.
Replication 7 purports to answer pleas 3 and 4. In plea 3 the appellee sets out the following excerpt from the policy:
Taken together, the pleas and the replication show that under the policy subrogation rights accrue to the insurer upon payment of a claim. On October 13, 1950, the appellant filed a claim for payment; this claim was denied with no payment made. The replication concludes that by this affirmative denial the insurer waived his rights to subrogation.
In Corinth State Bank v. First National Bank of Florence, 217 Ala. 632, 117 So. 216, the rule was mentioned that *336 an intentional relinquishment of a known right amounts to a waiver of subrogation rights.
It is clear from the pleadings that the insurer was aware that his rights to subrogation arose only upon payment of a claim: he quotes the appropriate portion of the contract in his own plea. His refusal to pay is the relinquishment alleged in the denial of the claim." * * * There is no reason why a pleader should not draw his conclusion from the facts allegedwhere the facts admit of different conclusions, it is necessary that the pleader concludeprovided he draws the correct conclusion * * *." Sauls v. Leath, 213 Ala. 664, 106 So. 133.
We are impressed that the conclusion of waiver is acceptable within the restrictions set out in the cases of Cassimus Bros. v. Scottish Union & Nat. Ins. Co., 135 Ala. 256, 33 So. 163, and Mountain Terrace Land Co. v. Brewer & Jones, 165 Ala. 242, 51 So. 559, inasmuch as the insurer's denial (nonpayment) is the active and necessary fact underlying the conclusion.
When by its own conduct an insurer places the insured at such a disadvantage that the insured must proceed against the tortfeasor in order to save himselfand does sothe insurer thereby waives his right to subrogation. Powers v. Calvert Fire Ins. Co., 216 S.C. 309, 57 S.E.2d 638, 16 A.L.R.2d 1261; Roberts v. Fireman's Ins. Co., 376 Pa. 99, 101 A.2d 747; Weber v. United Hardware & Implement Mutuals Co., 75 N.D. 581, 31 N.W.2d 456. To hold otherwise is to force the insured to bring suit initially against the insurer and thereby lose the true value of that contract for which he has paid his premium; i.e., a contract of indemnity, North River Ins. Co. v. McKenzie, 261 Ala. 353, 74 So. 2d 599.
There is another principle immanent in the doctrine but which the pleading does not raise: Does nonparticipation by the insurer in suit brought by the insured against the tortfeasor amount to waiver? In this matter it would seem that the insurer's knowledge of the suit's pendency is material. Replication 7 is silent as to (1) pendency of a suit against the tortfeasor, (2) nonparticipation by the insurer and (3) the insurer's knowledge as to the suit's existence, although the replication admits compromise of the claim against the tortfeasor. The demurrer interposed does not raise these questions, so in this state of the pleading we must pretermit a ruling upon the effect of the insurer's nonparticipation in the suit against the tortfeasor. See Richards on Insurance, Vol. 3, § 430; Shawnee Fire Ins. Co. v. Cosgrove, 85 Kan. 296, 116 P. 819, 41 L.R.A., N.S., 719; 29 Am.Jur. 1009, § 1348.
In conclusion, it seems proper to say that this phase of the doctrine of subrogation has not been very well or clearly developed in our jurisprudence. It is rather nebulous and indecisive and there is nothing to guide decision except an adumbrant line which in the cases seems to lead first in one direction and then in another. We think, however, after considerable study and research, that the foregoing observations are consonant with modern authority and the best considered cases on the subject.
It results that replication 7 was not subject to the demurrer interposed and the judgment must be reversed.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and MAYFIELD, JJ., concur. | November 3, 1955 |
9062844d-8906-4ba6-847a-06c5ef46eb9e | Coon v. Coon | 85 So. 2d 430 | N/A | Alabama | Alabama Supreme Court | 85 So. 2d 430 (1955)
Venle COON et al.
v.
Rosa COON.
4 Div. 781.
Supreme Court of Alabama.
November 10, 1955.
Rehearing Denied February 2, 1956.
*431 J. A. Carnley, Elba, for appellants.
W. H. Baldwin, Andalusia, for appellee.
MERRILL, Justice.
This is an appeal from the Circuit Court of Covington County, Alabama, in equity. Rosa Coon, the appellee, was formerly the wife of A. M. Coon, now deceased, whose estate is the subject of this suit.
On 13 October 1947, the Circuit Court of Covington County, rendered a decree in an action for support and maintenance in which Rosa Coon was the complainant and A. M. Coon, now deceased, was the respondent. The court awarded Rosa Coon the sum of $75 per month as support and maintenance for herself and for her minor son, Wendell Coon, and a solicitor's fee of $150. Rosa Coon received no payments from A. M. Coon in compliance with the terms of the decree of the Circuit Court of Covington County.
On 28 November 1948, A. M. Coon secured an absolute divorce from Rosa Coon in the Circuit Court of Russell County. A. M. Coon then married Venie Coon. A. M. Coon died on 31 May 1950, leaving a widow and four children. His will was duly admitted to probate on 21 January 1952, and on that date, letters testamentary were issued to Venie Coon, as executrix. On 5 February 1952, Rosa Coon filed a verified claim against the estate of A. M. Coon in the amount of $2,250, which she claimed was due to her under the decree of 13 October 1947 rendered by the Circuit Court of Covington County.
On 7 February 1952, the administration of the estate was removed from the Probate Court to the Circuit Court. The inventory of the executrix filed on 5 September 1952, showed that at the time of his death, A. M. Coon owned personal property equal in value to $32. Venie Coon dissented from the will of her deceased husband and filed an application that homestead exemption be set apart for her and the minor children of A. M. Coon. It was alleged in this application of Venie Coon that the only property owned by A. M. Coon was his homestead, which at the time of his death was occupied by them. It was further alleged that the homestead property was not over 80 acres and had never exceeded $1,500 in value. The Court ordered the register to hold a reference and directed him to ascertain the facts which were necessary to set apart homestead exemption.
On 24 April 1953, Rosa Coon, the first wife, petitioned the court to fix a lien against the land of A. M. Coon for the payment of her claim. Pending consideration of this petition, the court stayed the order of reference. On 6 May 1953, Rosa Coon petitioned the court to appoint an administrator ad litem. Venie Coon demurred to both of these petitions. The court sustained the demurrers to Rosa Coon's first petition and demurrer to the second petition was overruled on 1 June 1953. On that date, the court appointed an administrator ad litem for the estate of A. M. Coon.
On 3 June 1953, the administrator ad litem petitioned the court to order a sale of the lands of A. M. Coon for the payment of Rosa Coon's claim against the estate.
The appellants' demurrers were overruled, whereupon they filed their answer. The principal averments of the answer were that the land in question was the homestead of A. M. Coon and was less than 160 acres in area and less than $2,000 in value. Upon motion of the administrator ad litem, the allegation in appellants' answer essential to the claim of homestead exemption was stricken.
The learned Chancellor took testimony and on 27 November 1953, rendered a decree ordering the land in question sold at public outcry and the proceeds distributed; first, to the payment of the cost of the proceedings; and secondly, to pay the appellee *432 the sum of $1,685, the amount found by the Chancellor to be due to her under her decree for separate maintenance; and thirdly, the remainder of the proceeds to be retained by the register to await the further orders of the court.
From the above decree, the appellants perfected their appeal on 11 January 1954. Appellee filed a motion to dismiss the appeal contending that this court is without jurisdiction in this matter, as more than thirty days elapsed from the date of the decree to the perfecting of the appeal. Appellee contends by her motion that this appeal is governed by the provisions of the Code of 1940, Title 61, Section 216. We shall first direct our attention to the motion to dismiss.
Title 61, Section 216, provides that from a judgment rendered on a disputed claim against an estate either party may appeal within thirty days. A proceeding under this Code section has as its only purpose the fixing of the rights of the parties to the funds in trust, so as to determine who is entitled to the proceeds on distribution. Tillery v. Commercial Nat. Bank of Anniston, 241 Ala. 653, 4 So. 2d 125. In effect, it is a decree in the nature of a declaratory judgment to determine the validity of the claim. Merchants Nat. Bank of Mobile v. Cotnam, 250 Ala. 316, 34 So. 2d 122. The instant decree, although dispositive of the claim of Rosa Coon was, in the main, essentially an order for the sale of the decedent's realty on petition of the administrator ad litem. An appeal from a decree of this finality is not governed by Title 61, Section 216.
The appellee also asserts that this court is without jurisdiction of this appeal for the reason that no citation of an appeal was served upon the administrator ad litem within the time and manner fixed and required by Code of 1940, Title 7, Section 801. The record discloses, however, that in the proceedings in the Circuit Court, the Honorable W. H. Baldwin acted both as attorney for the claimant, Rosa Coon, and as administrator ad litem. He also appears before this court in such dual capacity. The record further discloses that a copy of the citation of appeal was served on Honorable W. H. Baldwin. Service of citation of appeal on the attorney for the administrator ad litem was sufficient. Collins v. Thompson, 259 Ala. 82, 65 So. 2d 491.
The motions to dismiss the appeal are, therefore, overruled.
On the Merits
The question confronting us in this case is, shall a decree providing for the support and maintenance of the former wife, which was never a lien upon the homestead of her former husband, be superior to the homestead exemption in favor of his widow and minor children? We have found no case in this or any other jurisdiction which squarely answers this question.
It is established in this state that a decree for alimony is not such a debt within the meaning of the statutes as to allow a husband's claim of homestead exemption. Horan v. Horan, 259 Ala. 117, 65 So. 2d 486; Littleton v. Littleton, 224 Ala. 103, 139 So. 335; Ford v. Ford, 201 Ala. 519, 78 So. 873. But such a decree without a provision that it shall be a lien upon the husband's homestead, does not ipso facto create a lien. Barksdale v. Jordan, 253 Ala. 199, 43 So. 2d 406. Code 1940, T. 7, § 327, provides that executions on decrees are liens in the same manner as are executions in courts of law and T. 7, § 521, provides for liens on executions in law courts.
In the instant case, the husband had never paid any money pursuant to the decree; there had been no execution issued or notice of levy; and the record is silent as to any move having been made by the first wife to collect the award under the decree until after her former husband's death.
In this state there is a distinction made in the homestead which is exempt to a husband, and a homestead exemption in favor of the widow or minor children or both. Title 7, § 661 as it read at the time of the husband's death is as follows:
This exemption vests at the death of the owner, is free from administration and continues during the life of the widow and the minority of the children. Weber v. Short, 55 Ala. 311, Miller v. Marx, 55 Ala. 322. It will be noted that this exemption is "in favor of such widow and minor children, or either" and as evidence of the legislative intent the last sentence of Section 662, Title 7, as then applicable reads, "And in no case, and under no circumstances, shall the widow and the minor children, or either of them, be deprived of homestead or two thousand dollars in lieu thereof, if they or either of them apply therefor in manner as herein provided before final distribution of the decedent's estate."
There is no question but that the widow here has applied for the exemption in favor of herself, her infant daughter and the minor child of decedent by his former marriage before the final distribution of the decedent's estate.
The courts of this state have been alert in seeking to carry out the beneficient purposes of the exemption laws and it has been consistent public policy to try to protect wherever possible the rights of a widow or minor children, or either, in order that they might not become a public charge and that they might continue to have the protection of the family rooftree. Walker v. Hayes, 248 Ala. 492, 28 So. 2d 413. In the instant case it is not argued that the first marriage was not dissolved according to law, and the case was tried on the theory that the husband was free to contract the second marriage and that the second marriage was valid. While we have consistently held that a judgment for alimony cannot be defeated by the husband's claim of exemption, our research has failed to produce any case where this court has held that any decree of alimony which had not been established as a lien upon the homestead of the husband, was superior to the widow's claim of homestead exemption.
We certainly do not mean to intimate that the ex-husband of the first wife could defeat a decree for alimony or for support and maintenance by remarrying. But if the first wife delays in effecting a lien upon his property until his death, she must look to that portion of the decedent's property which is over and above the homestead exemption and in the instant case it is alleged that the decedent owned personal property of value of $32 and that the homestead property was not over 80 acres and had never exceeded $1,500 in value.
As evidence of the legislative intention to give a greater exemption in favor of the widow than to the husband during his lifetime, we point to the fact that § 661, now provides for an exemption in favor of the widow of $6,000 while the exemption in favor of the husband, provided for in § 625 of Title 7, remains at $2,000.
Our attention has been called to the case of Erlenbach v. Cox, 206 Ala. 298, 89 So. *434 465, which holds that judgment in a tort action against a husband and recorded during his lifetime was superior to his widow's claim of homestead exemption in his property.
We think there is a real distinction between the instant case and that of Erlenbach v. Cox, supra. The opening sentence of the opinion in that case is "Appellants recovered judgments in certain tort actions against one C. C. Cox, which judgments were duly and promptly recorded in Dallas county, as provided by law for the establishment of a lien upon all property of the defendant therein subject to levy and sale under execution." The court goes on to show that irrespective of the omission of the words "`contracted since the 13th day of July, 1868'" following the word "debt", and the addition of the sentence which we have heretofore quoted from § 662 of Title 7, that the rule still prevails in this state that there can be no claim of exemption against an execution issued on a judgment in an action ex delicto, and then we find this significant sentence: "The recordation of the judgments created a lien under the statute during the lifetime of the judgment debtor, and the complainants in filing this bill have pursued the proper course for the enforcement thereof."
It is very evident that the court placed much stress upon the fact that the judgments had been recorded during the lifetime of C. C. Cox.
As previously stated, no judgment or decree in the instant case had been recorded, nor had any lien attached during the husband's lifetime, although the provisions of § 585, Title 7, which provide for the creation of a lien for ten years for every judgment or decree recorded in the office of the Probate Judge, was open and available to the first wife from October 13, 1947 until the date of the death of her former husband, on March 31, 1950.
The lower court should have proceeded to ascertain the value of the homestead and if within the statutory protection, it should have been set aside to her and the minor children of decedent, including his minor children by both marriages, instead of being sold to satisfy the unrecorded claim of the former wife.
The decree of the lower court is reversed and the cause is remanded for further proceedings.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.
SIMPSON, GOODWYN and MAYFIELD, JJ., concur that the motions to dismiss the appeal should be overruled, but dissent as to the merits.
MAYFIELD, Justice.
I dissent. The basic statutory provision concerning the homestead exemption is found in Code of 1940, Tit. 7, § 625. The exemption is granted both to a living resident of this state and to his surviving widow and minor children.
Although the precise factual situation, in the case at bar, has not been previously presented to this court; prior interpretations of the homestead exemption statute by this court are, in my opinion, determinative of the present question.
It has been repeatedly held by this court that the exemption statute applies only to "debts contracted" and has no application to judgments based on tort, or liability in the nature of tort, such as decrees for alimony or separate maintenance. Horan v. Horan, 259 Ala. 117, 65 So. 2d 486; Crabtree v. Kirby, 225 Ala. 20, 142 So. 32; Erlenbach v. Cox, 206 Ala. 298, 89 So. 465; Schuessler v. Dudley, 80 Ala. 547, 2 So. 526, 60 Am.Rep. 124. The cases cited in the majority opinion hold that a husband's homestead exemption cannot prevail against a decree for alimony. The determinative point in each of the above cases is the nature of the alimony claim and not the status or identity of the person seeking the exemption. These cases are separate authority for the well-established principle that alimony *435 is not a "debt contracted" within the meaning of the Constitution of 1901, and the statutes by which the legislature gave life to the constitutional provision. In Rogers v. Rogers, 215 Ala. 259, 110 So. 140, this court stated that as related to exemptions, a demand for alimony previously decreed is in tort and not ex contractu.
No distinction between the exemption granted to an individual and that granted to his surviving widow and minor children is found in the Constitution of 1901, Sections 205 and 206; which provisions relate to the nature of the debts from which the homestead is exempt. Nor is such a distinction found in the basic statutory provisions, Title 7, Section 625, supra.
My understanding of the majority opinion is that it seeks the existence of such a distinction in two subsequent Code sections, Code of 1940, Title 7, Sections 661 and 662. Clearly, these sections are primarily concerned with the operation of the exemption benefit and not with the nature of the debts from which the homestead is exempt. These provisions and Section 625, must be considered in pari materia, and so considered they do not alter the rule as to which type of debt the exemption applies or does not apply.
The case of Erlenbach v. Cox, supra, clearly disposes of the contention that the legislature, by enacting sections 4196 and 4197 of the Code of Alabama 1907, enlarged the homestead exemption to make it proof against tort judgments. These sections of the Code were brought forward without any material change to the Code of 1940. This court's holding in the Erlenbach case is consistent with the position that these two Code sections did not alter the settled principle that the homestead exemption applies only to "debts contracted". In the Erlenbach case, this court decided that a recorded judgment in a tort action against a husband was superior to a claim of homestead exemptions by the widow. The present case involves the accrued claim for separate maintenance decreed to the first wife against the deceased, and the adversary claim of the surviving widow for homestead exemption from the deceased's estate. I think it clear that the pivotal point in the Erlenbach case was the principle that the exemption statute is applicable only to debts contracted. It is my further opinion that the question of recording of the judgment so as to establish a lien prior to the husband-debtor's death was not involved or necessary to a proper decision in the Erlenbach case. The first paragraph of that opinion stating that a lien has been established was merely descriptive of the action, and that the portion of paragraph six of that opinion in so far as it dealt with liens, was merely dicta. I am unable from my reading of this opinion to find justification for speculation that a contrary result would have been reached if the judgment had not been recorded so as to establish a lien on the property in question prior to the husband's death. It is my opinion that a claim against an estate arising out of a decree for past due alimony or support and maintenance decreed the first wife is, under our present laws, superior to a claim for homestead exemption, whether the claim be made by the husband-debtor or his surviving second wife. I regard the nature of the debt as determinative of the issue and not whether a lien on the property of the deceased debtor-husband was perfected prior to his death. While we must recognize that the exemption statute should be liberally construed, this does not mean that we can, by judicial construction, extend privileges not intended or contemplated by the legislature. It is my opinion that the claim of the first wife for the support and maintenance of herself and her minor child should prevail against the claim of the surviving second wife for homestead exemption. An extension of the present exemption beyond "debts contracted" is a matter properly for the consideration of our legislative body.
For the foregoing reasons, I believe that the decree of the trial court should have been affirmed and respectfully dissent from that portion of the majority opinion which pertains to the merits of the instant case.
SIMPSON and GOODWYN, JJ., concur. | November 10, 1955 |
f61bed71-828a-40f4-a088-2ad53511c81c | Denton v. State | 82 So. 2d 406 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 406 (1955)
Albert Sidney DENTON
v.
STATE of Alabama.
1 Div. 613.
Supreme Court of Alabama.
September 15, 1955.
*407 Albert Boutwell, Birmingham, and Geo. C. Hawkins, Gadsden, for appellant.
John Patterson, Atty. Gen., and J. Noel Baker, Asst. Atty. Gen., for the State.
MERRILL, Justice.
Albert Sidney Denton was tried and found guilty in Baldwin County under an indictment for murder in the first degree which charged that he killed Leroy E. Miller by shooting him with a pistol. He was found guilty and sentenced to life imprisonment in the penitentiary and from the judgment imposing that sentence, he appeals.
After the introduction of numerous witnesses, the state rested, and defendant moved to exclude all the evidence on the grounds that the state had failed to establish venue, had failed to show that the court had jurisdiction or had failed to show where the offense occurred. The motion was denied and this action by the trial court is the basis of the argument made in brief by appellant in this court.
The case of Britton v. State, 15 Ala.App. 584, 74 So. 721, 722, is directly in point; there the court said:
In citing the Britton case, supra, we do not agree with the sentence therein, "Proof of venue is jurisdictional and without such proof a conviction cannot be sustained." Long before the adoption of Circuit Court Rule 35 on June 23, 1913, 175 Ala. XXI, this court had held that failure to prove venue was not reversible error where no charge based on the sufficiency of the evidence was requested or given. In Hubbard v. State, 1882, 72 Ala. 164, this court speaking through Chief Justice Brickell said:
Also, this court said in Watts v. State, 1920, 204 Ala. 372, 86 So. 70:
State's witness Jones had testified that defendant told him in Jacksonville, Florida, after the remains of deceased's body had been discovered in Mobile County: "You remember my former buddy Hardin? I bumped off one of his friends for him in Bay Minettenear Bay Minette."
Moreover, defense witness Heflin testified on direct, that he was present when Miller had been killed at a private airport in Baldwin County and the following is from his cross-examination:
These facts and other inferences from the state's evidence made the question of venue one for the jury, and bring this case squarely in line with the rule of the Britton case, supra. Furthermore, there was ample evidence from which the jury could find beyond a reasonable doubt that there was a conspiracy to murder Miller and that part if not all of the acts constituting the offense occurred in Baldwin County even though the skeleton and clothing of deceased were found in Mobile County. Section 94, Title 15, Code of 1940 provides:
The trial judge charged the jury as to the question of venue including the effect of § 94, supra.
Prior to the taking of testimony, appellant moved for a change of venue. The bases for the motion were five affidavits that due to the unusual amount of newspaper publicity which pictured Denton as a gangster who had been connected with dangerous and notorious criminals, Denton could not receive a fair and impartial trial in Baldwin County; and that the chief topic of conversation in the county was that Denton would be tried on March 25, 1954. Four newspaper articles were attached to the motion as exhibits.
The following extracts from Campbell v. State, 257 Ala. 322, 58 So. 2d 623, 625, are dispositive of this question:
* * * * * *
* * * * * *
The motion for a change of venue was properly denied.
Among the grounds in the motion for a new trial were that the verdict was contrary to the evidence, the weight of the great preponderance of the evidence and that the defendant was entitled to the affirmative charge with hypothesis.
The record in this case unfolds a bizarre story. The deceased, Leroy Miller, a former Wyoming cowboy, operated the LynMar Fishing Lodge on Bon Secour River near Gulf Shores with his wife. He appeared to be a man of considerable means, owning a yacht, an airplane and several large automobiles. Miller and Nelson K. Hamilton, a Foley photographer, were partners in a gold-mining business in Mexico. They were both in Mexico from April to August 1952 and met the defendant Denton there in June. Denton was using the alias of Jimmy Montgomery. He returned to Mexico in July with Lurton L. Heflin and the two spent about ten days there. In early August Miller was shot in the arm and a bone was broken, necessitating the wearing of a cast. On August 15th, around noon, Miller and Hamilton arrived back in Foley. About 5:30 that afternoon and again about 9:00 o'clock that night, Miller received telephone calls at his home. It later developed that Heflin made these calls and made arrangements to pick up Miller later that night. At 6:00 o'clock, Miller's wife, Thompson and his wife and two other couples left to go to the dog races at Pensacola. Sometime after 9:00, Miller's daughter, her husband and Miller's mother and stepfather, saw a large black automobile drive up, heard Miller exchange greetings with the occupants of the car, saw him get in and leave. They never saw him again. It appears that six weeks later Miller's wife reported his disappearance to a city detective of Mobile and reported it to the Sheriff of Baldwin County four months after August 15th.
On February 17, 1953, one James Tait, while rabbit hunting, discovered a human skeleton by an old field road near St. Elmo in Mobile County. He reported this to the authorities and it was established by means of the clothing, the wired and broken arm bone, the cast and the teeth that the remains were those of Miller. Between the top and bottom layers of his rotting shirt were found a .38 and a .32 caliber pistol bullet.
It was known that Denton and Heflin had been at Gulf Shores on August 15, 1952 and had packed an automobile and left on August 17 (two witnesses so testified at the trial) and they were wanted for questioning concerning Miller's disappearance and death. On July 9, 1953, Denton was arrested in Gadsden and in a brief case in his car were two pistols,.38 specials. On July 13th he told two FBI Agents and the Sheriff of Baldwin County that he had had the pistols in his possession "since he bought them new or that he knew where they were at all times." In response to a question asked as to whether he was worried about the charge against him in Bay Minette in connection with the death of Miller, he said that he was not worried because he had been informed that the guns were manufactured after the date of the alleged offense. But a ballistics test revealed that one of his pistols fired the .38 bullet that was found between the two layers of Miller's decomposed shirt.
One of the state's witnesses was a federal convict, Cletus Goldman, who had been *410 convicted of "transporting interstate gems" and "armed robbery." A reasonable inference from his testimony is that he, his brother Myron, Denton, Heflin and one Hornbeck were members of the same gang. [At the time of the trial his brother Myron had been slain in a gun battle in Jacksonville, Florida, and Hornbeck was facing a death sentence in that state as the result of the slaying of a policeman in the same gun battle in which Myron Goldman was killed. Hornbeck v. State, Fla., 77 So. 2d 876.] He testified that he and the other four named were together in Savannah, Georgia, during the first ten days in February 1953 at the home of one Brewer, and that Hornbeck told them, in the presence of Denton, that Miller's wife had Howard Hardin, who operated the Canal Cafe at Gulf Shores, to hire Denton, Heflin and Hornbeck to kill Miller. He testified (quoting Hornbeck):
He said Hornbeck further stated that, "We shot him eleven times" and "we all put lead in him" and that they had to burn the car because there was blood in it from transporting Miller's body, but Denton had received more money than either of the other two for the killing.
Another witness for the state, Thomas C. Jones, a federal prisoner, serving his third term for stealing automobiles, testified that he had known Denton while they were serving a term together in the penitentiary and after they got out Denton was trying to get the witness to go into a venture with him and that in January 1953 in Jacksonville, "Mr. Denton told him that he had previously,before I got out of the pendone enough to get himself in the electric chair if he got caught; he said: `You remember my friend, Howard Hardinmy former partner in Atlanta' and I said `yes' and he said, `I took care of one of his friends in Bay Minette and have already bumped him off."
Denton did not take the stand in his own defense, but one of his witnesses was Lurton Heflin, a convicted bank robber. Heflin testified that he and Denton saw and talked with Miller in Mexico, that he made the two telephone calls to Miller the night he was killed, calling from Mobile; that he, one Nick Montos and a man named "Alex" picked Miller up in a black Lincoln; that they rode around a while, drank a couple of pints of whiskey, took Miller back near his home about one A. M. with arrangements to meet him at three A. M. at a private airport between Foley and Gulf Shores. He testified that he had $50,000 of Montos' money to pay for dope that was being flown in, but that Miller told them that the plane would be carrying $300,000 worth. "So we came to the agreement to give Lee (Miller) $50,000, and take the dope and have it weighed and analyzed and give him the balance." At 3 A. M. he, Montos and "Alex" arrived at the airport and met Miller, Nelson Hamilton and three other fellows, one of whom they called "John".
"Then there was a plane coming over and I heard Nelson Hamilton tell Lee to give the signal and they continued to argue and the plane went on by and it circled two times and he said: `All right, give the signal, give him the signal' and evidently Lee gave the wrong signal, because I heard some shotstwo different blasts, about four shots each, and naturally the rest of us ran up there and Hamilton had a gun in his hand and I asked what the deal *411 was and so theyI didn't want to get involved in something like that, and he said that Hamilton said that Lee was trying to mess him around, so I left."
He also testified that Denton was not present at the killing.
It can be seen that the evidence was conflicting but there was ample evidence to support the verdict of the jury. The motion for a new trial was properly overruled.
"In accordance with our duty in criminal cases, we have examined the record for any error, whether pressed upon our attention or not. We have considered additional rulings on evidence, the oral charge and rulings of the court on refused written charges. The record is free from reversible error and is due to be, and is, affirmed." McCall v. State, 262 Ala. 414, 79 So. 2d 51, 53.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | September 15, 1955 |
365227ee-98c0-4c0d-a3ad-98d7b919eb97 | Cleveland v. Cleveland | 83 So. 2d 281 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 281 (1955)
Josephine Hardeman CLEVELAND
v.
Willie Lee CLEVELAND.
6 Div. 900.
Supreme Court of Alabama.
November 10, 1955.
Lipscomb, Brobston, Jones & Brobston, Bessemer, for appellant.
McEniry, McEniry & McEniry, Bessemer, for appellee.
STAKELY, Justice.
This is the second time that the controversy here involved has been before this court. The former case which is reported as Cleveland v. Cleveland, 262 Ala. 90, 77 So. 2d 343, 345, was an appeal from a decree in equity denying relief to the appellant. In the first case to which we have referred there was an effort by a bill in the nature of a bill of review to set aside a judgment by default rendered in favor of Willie Lee Cleveland against Josephine Hardeman Cleveland. In the foregoing case this court held that the bill of complaint was subject to demurrer and affirmed the decree of the lower court. In the foregoing case, however, this court said:
The appeal in the case at bar is from an order denying appellant's motion to set aside and vacate the judgment by default entered against appellant on April 22, 1954 in the circuit court.
It is the position of the appellant here that the complaint on which the judgment was entered does not state a cause of action and therefore the judgment is void and should be expunged by the court.
We set out the complaint, omitting the style of the cause, on which the judgment was based:
It is correct that if the complaint does not state a cause of action a judgment based thereon is void on its face and a motion to expunge it is the proper remedy and should be filed in the court which rendered the judgment and without limit of time. Cleveland v. Cleveland, 262 Ala. 90, 77 So. 2d 343; Murphree v. Bishop, 79 Ala. 404. Furthermore, where the court denies the motion, an appeal is the proper remedy to review the order of the court. Griffin v. Proctor, 244 Ala. 537, 14 So. 2d 116; Constantine v. Constantine, 261 Ala. 40, 72 So. 2d 831; Northcutt v. Northcutt, 262 Ala. 98, 77 So. 2d 336; Robinson Co. v. Beck, 261 Ala. 531, 74 So. 2d 915.
In determining whether the complaint in the instant case states a substantial cause of action, we should consider carefully the difference between a situation where defects in the complaint are pointed out by demurrer and the situation here where the court is asked to set aside a judgment by default on the theory that the judgment is void. So far as we can ascertain the weight of authority, where a complaint for libel is involved, holds that the complaint should set out the particular defamatory words as published. There are jurisdictions, however, which hold to the contrary. 53 C.J.S. Libel and Slander, § 164b, pp. 255-256.
In the early case of Hill v. Ward, 13 Ala. 310, it was held that in actions for slander both as it respects the reputation of the party or his title to property, the slanderous words should be set out in the declaration. In Peinhardt v. West, 22 Ala. App. 231, 115 So. 80, the Court of Appeals held that the defamatory words should be set out in the complaint and that it is not sufficient to set out the publication in substance and effect. Contrary to the contention of counsel for the appellee, this court on review of the foregoing decision of the Court of Appeals, 217 Ala. 12, 115 So. 88, did not hold to the contrary, but merely held that the defamatory charge need not be set out in full and it is sufficient if the complaint contains as much as is necessary to show an actionable imputation. 53 C.J. S. Libel and Slander, § 164d, p. 256.
There seems to be no doubt that at common law, 1 Chitty on Pleadings, § 404 it was necessary to set out the defamatory words and the form of the complaint provided in § 223, Form 17, Title 7, Code of 1940, shows that the words of the alleged libel should be set out in haec verba.
In Weir v. Brotherhood of Railroad Trainmen, 221 Ala. 494, 129 So. 267, it is shown that the action of slander in all its varieties is one of peculiar strictness in respect of pleadings. In fact according to this authority there is no other civil action which has been treated so strictly by the courts.
But in all the foregoing authorities and the authorities to which we have been referred the court was dealing with a situation where there was a demurrer to the complaint and the sufficiency of the complaint as against the demurrer was determined. In the case at bar we must consider the force and effect of § 570, Title 7, Code of 1940, which reads as follows:
In Hershey Chocolate Co. v. Yates, 196 Ala. 657, 72 So. 260, it is shown that the object and purpose of the foregoing statute was to prevent the arrest or reversal of judgments as for mere defects in the form of the declaration and to uphold the judgment when such defects were complained of after verdict and judgment.
In Werten v. K. B. Koosa & Co., 169 Ala. 258, 53 So. 98, it was pointed out that the strict rule to be indulged against a pleader on demurrer, is not applicable when the sufficiency of the complaint is questioned by a general attack upon the judgment. And in the latter instance all doubts and intendments should be resolved in favor of, rather than against, the sufficiency of the complaint.
In Hall v. First Bank of Crossville, 196 Ala. 627, 72 So. 171, 174, in referring to § 4143 of the code then in effect, which is now § 570, Title 7, Code of 1940, the court said:
Our search has failed to find an authority where a judgment in a libel suit was attacked on a motion to set aside the judgment because the complaint on which the judgment was based did not state a substantial cause of action. It is our view that while the cases require strictness in ruling on the demurrer to the complaint, they call for liberality in treating the sufficiency of the complaint on a motion to set aside the judgment where it is contended that the complaint does not state a cause of action. It is true that the complaint in the case at bar does not set forth the language of the alleged libel, but the complaint does charge the substance of the alleged libel. It shows that the letter charged the plaintiff, among other things, with illicit relations with other men than her husband and while living with her husband. There can be no doubt that this is a charge of want of chastity on the part of a woman, which is libelous per se. § 912, Title 7, Code of 1940; Marion v. Davis, 217 Ala. 16, 114 So. 357, 55 A.L.R. 171. We accordingly do not think that under the provisions of § 570, Title 7, Code of 1940, to which we have referred, the judgment should be set aside.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | November 10, 1955 |
333b3cbc-46c8-4af2-bc29-5eb3934b5eda | Vines v. Crescent Transit Company | 85 So. 2d 436 | N/A | Alabama | Alabama Supreme Court | 85 So. 2d 436 (1955)
Pearl VINES
v.
CRESCENT TRANSIT COMPANY.
6 Div. 840.
Supreme Court of Alabama.
November 3, 1955.
Rehearing Denied February 2, 1956.
*438 Lipscomb, Brobston, Jones & Brobston, Bessemer, for appellant.
Bainbridge & Mims, Birmingham, and Huey, Stone & Patton, Bessemer, for appellee.
SIMPSON, Justice.
This is an appeal from a judgment of nonsuit suffered by the plaintiff. As amended, the complaint consisted of Counts A and B. The trial court sustained the demurrer to Count A and overruled the demurrer as to Count B. After overruling the demurrer to County B the defendant plead the statute of limitations of one year, Code 1940, Tit. 7, § 26. The plaintiff demurred to this special plea and upon the overruling of the plaintiff's demurrer, the plaintiff took a nonsuit and brings this appeal.
It appears that Count A was construed to be a suit for breach of contract and Count B in tort. We construe both counts to be a suit in contract claiming damages for the breach of an alleged implied contract for injuries resulting during the period when the plaintiff entertained the relation of passenger of the defendant transit company as a common carrier.
The two counts will more fully appear in the report of the case, but we will here state their substance. Count A alleges that the defendant (appellee) entered into an "implied contract" for a valuable consideration to safely transport the plaintiff from the City of Fairfield to a regular and customary stopping place of the defendant's bus in the City of Bessemer; that the defendant breached this contract by transporting her thirty feet beyond said customary stopping point and required and permitted her to alight at said point, which was not a reasonably safe place for disembarkation of passengers and as a proximate consequence of said breach of contract the plaintiff fell into an open culvert, obscured to appellant by darkness, causing her alleged injuries. Count B charges the defendant with the negligent breach of such implied contract.
From the rulings below and the argument of counsel, it would seem that the court concurred in the contention of the defendant that there could be no cause of action for the breach of the alleged contract by such passenger for personal injuries as alleged unless the defendant was guilty of negligence, in which case the action should be in tort. On this theory the court sustained demurrer to Count A and, considering that Count B was in tort, overruled the demurrer to Count B. As stated, the defendant then plead the statute of limitations of one year to Count B on the theory that the count was in case for the negligence of the defendant and, of consequence, overruled plaintiff's demurrer to this plea which superinduced the nonsuit.
We entertain the view that these rulings were laid in error. Both counts are of the same sortin assumpsit. They both claim damages for the breach of an implied contract. Count B carried the additional averment that the breach was negligent and the other count, A, only alleges the breach and does not allege in terms a negligent breach.
Both counts are based upon the breach of a contract. The fact that they allege that the contract was implied does not alter their status as for the breach of a contract. The ruling of the court sustaining the demurrer to Count A was predicated on the theory that such a state of facts as therein alleged did not state a cause of action. In this we differ. If the proof sustains the allegations, the breach. *439 of such a contract is actionable in assumpsit. That breach could be either voluntary or negligent. The allegation in Count A that defendant breached the contract by doing the act alleged to be a breach, is in substance that it was voluntarily done. So we have in that count an allegation of the existence of a contract and its voluntary breach to the damage of plaintiffa count in assumpsit.
Count B makes the same allegations as to the existence of the contract, but charges that defendant negligently breached said contract. The gravamen of that count is not a charge of negligence but the breach of the contract. The fact that it was negligently breached does not affect the nature of the cause of action. It was said in one of our leading cases that "if the cause of action as stated in our cases arises from a breach of the contract, the action is ex contractu, but if the cause of action arises from a breach of duty growing out of the contract it is in form ex delicto and case." Mobile Life Ins. Co. v. Randall, 74 Ala. 170; Tennessee C. I. & R. Co. v. Sizemore, 258 Ala. 344, 62 So. 2d 459; Waters v. American Cas. Co., 261 Ala. 252, 73 So. 2d 524; Sellers v. Noah, 209 Ala. 103, 95 So. 167; Western Union Tel. Co. v. Crumpton, 138 Ala. 632, 36 So. 517. It is also said in the Randall case, supra:
We said in the Sizemore case, supra:
"* * * the breach of a contract in not performing the obligation there expressed, or not doing it in the way specified, is not in tort * * *. If defendant omits to enter upon the duty to perform, however negligent that might be, that is not a negligent performance and not a tort. But if he does undertake to perform, his performance may be negligent, giving rise to a tort." (Emph. sup.) 258 Ala. 349, 62 So. 2d 463.
In the Waters case, supra, we said:
In the case of Malcolm v. Louisville & N. R. R. Co., 155 Ala. 337, 46 So. 768, 18 L.R.A.,N.S., 489, defendant negligently failed to stop a train for her to be carried pursuant to their contract, thereby causing personal injury to her. The court stated that "All the cases hold that a passenger, injured through the negligence or carelessness of the carrier, may proceed either upon the contract, * * * or proceed in tort, making the carelessness and negligence of the company the ground of his right of recovery". 155 Ala. 339, 46 So. 768-13 C.J.S., Carriers, § 663, p. 1235; 1 C.J.S., Actions, § 49(e-5), p. 1119.
*440 Corpus Juris Secundum also carries the well supported text that:
It will be observed that a negligent failure to perform a contract express or implied (as alleged in count B) is but a breach of the contract. But if in performing it, it is alleged that defendant negligently caused personal injury or property damage to plaintiff, the remedy is in tort, for it is not the breach of a contract express or implied, but the breach of an implied duty to exercise due care not to injure plaintiff or her property which is the gravamen of the action. When plaintiff purchased transportation to a certain place under a contract to carry her to a regular stopping place, there was an implied promise not to carry plaintiff beyond the customary place of discharge (a breach, being actionable in assumpsit), also an implied duty not to negligently cause her to be injured in performing the contract (a breach of which is actionable ex delicto).
The implied duty, not an implied promise to exercise due care not to injure her, must be redressed in a tort action. The breach of a public duty not to negligently injure plaintiff may also be a breach of the contract to stop for her discharge at the customary place. A breach of the contract is in the failure to act, (here, alleged failure to stop at the customary place); but in acting there may also be a breach of the public duty not to negligently stop at a dangerous place and thereby cause plaintiff personal injury, for which an action in case will lie.
Here the only charge against defendant is for the breach of an implied contract, which nonetheless counts on a contract because it was negligently breached. Neither count claims damages for injuries caused by the breach of a duty imposed by law, viz.: The negligence of defendant in putting her off at a dangerous place, but on the contrary, the breach of a contract of carriage.
It follows, as we stated above, and on original deliverance, both counts are in assumpsit. Count A is not subject to the demurrer interposed. The plea of the statute of limitations of one year is not applicable, and the demurrer to it should have been sustained.
Opinion modified on rehearing and application overruled. For the errors noted the judgment is reversed.
Reversed and remanded.
All Justices concur except LAWSON and MERRILL, JJ., who dissent.
The foregoing opinion prepared in response to an application for rehearing was brought to the full court, although the writer and Justices STAKELY and MERRILL did not participate in the consideration of the opinion delivered on original submission.
I find myself unable to agree with the foregoing opinion in so far as it holds that Count B is in contract, although I readily concede that the question as to whether the count is in contract or in tort is a close one.
In Wilkinson v. Moseley, 18 Ala. 288, quoted in Mobile Life Ins. Co. v. Randall, 74 Ala. 170, Mr. Justice Parsons, writing for the court, said:
*441 It was necessary to aver the contract in Count B, since a tort by the carrier cannot be committed upon the passenger as such unless the carrier-passenger relationship is created by contract, express or implied. Southern Ry. Co. v. Bunnell, 138 Ala. 247, 36 So. 380.
There is no averment in Count B of an express contract. In fact, it is alleged therein that the defendant "impliedly contracted with the plaintiff." The courts have been inclined to consider complaints of this character (against common carriers) as founded in tort unless a special contract very clearly appears to be made the gravamen or object of the complaint. New Orleans, Jackson & Great Northern R. Co. v. Hurst, 36 Miss. 660; Jacksonville St. Ry. Co. v. Chappell, 22 Fla. 616, 1 So. 10; Ft. Smith & W. R. Co. v. Ford, 34 Okl. 575, 126 P. 745, 41 L.R.A.,N.S., 745.
Construing the averments of Count B as a whole, I am of the opinion that the wrong or injury complained of was that the plaintiff, after acquiring by implied contract the right to travel on defendant's bus to a certain point and there to be afforded a reasonable opporunity to alight in safety, was negligently carried beyond that point by the defendant and "negligently required or negligently permitted to disembark at an unsafe place in violation of defendant's public duty."
In other words, I am of the opinion that the cause of action stated in Count B does not arise out of a breach of promise but from a breach of duty growing out of the contract and that the averments as to the implied contract should be considered as mere matters of inducement in which an action in case arises for a breach of duty to carry the plaintiff as a passenger. Southern Ry. Co. v. Bunnell, supra; Western Union Tel. Co. v. Krichbaum, 133 Ala. 535, 31 So. 607; Western Union Tel. Co. v. Waters, 139 Ala. 652, 36 So. 773; Western Union Tel. Co. v. Favish, 196 Ala. 4, 71 So. 183.
MERRILL, J., concurs in the foregoing views. | November 3, 1955 |
d14ddb69-4c83-442b-a2fe-2bfb1b4cf21f | Brooks v. State | 82 So. 2d 553 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 553 (1955)
Andrew BROOKS
v.
STATE.
5 Div. 621.
Supreme Court of Alabama.
September 22, 1955.
Russell & Russell, Tuskegee, for appellant.
John Patterson, Atty. Gen., Robt. Straub, Asst. Atty. Gen., and Edmon L. Rinehart, Montgomery, of counsel, for the State.
MAYFIELD, Justice.
The appellant, Andrew Brooks, was indicted and convicted of murder in the second degree and sentenced to the penitentiary for a term of thirty years. From this judgment, he prosecutes this appeal.
There were no eye witnesses to the encounter which led to the death of the deceased. The testimony in this cause was meager and presents very little conflict. The only testimony as to what happened immediately prior to and during the conflict was the evidence which the appellant gave in his own behalf on the witness stand and the evidence of Sheriff Preston Hornsby as to a voluntary statement which the appellant made to him upon his surrender after Gye's death. There is no substantial conflict in these two statements from appellant.
The facts established by the record show that the appellant, the deceased, and two *554 other negroes were engaged in a dice game behind the house of appellant's father in the early hours of the morning. The deceased was rolling the dice and "failed to make his point", but, nevertheless, picked up the wager. The appellant was afraid of the deceased who bore a bad reputation, and retired to his father's house through the kitchen. The deceased followed the appellant to the kitchen, and appellant, without pausing, went out the front door and around the north side of the house. The usual mode of exit from the house was around the south side as there was a garden fence which ran parallel to and very close to the north side of the house. Appellant testified that he thought the deceased would go around the south side of the house but he met him face to face on the north side between the garden fence and his father's house. The deceased drew back his hand as if to stab the appellant, whereupon Brooks struck the deceased in the neck with an ordinary pocket knife. The deceased then came to the front of the house where he collapsed and died. The record of the evidence does not make it entirely clear whether the appellant could have retreated from the actual scene of the encounter without increasing his peril.
The evidence is clear that the deceased died from the wound inflicted by the appellant and the only issue is whether or not appellant killed the deceased in the defense of his own life. The case was tried on this issue and the distinguished trial judge correctly instructed the jury, at great length, on the law of self defense.
There was considerable character evidence, and all of the witnesses established a good reputation for the appellant. The testimony is without dispute that the deceased's general reputation was bad for "peace and quiet." The witness, Melissa Johnson, when asked if she knew the deceased's general reputation for violence, blood-thirstiness, and dangerousness, replied: "I know he is dangerous for whipping up people." This answer, to which no objection was taken, can, we think, only be construed as an affirmative answer to the question propounded.
The evidence shows that in a voluntary statement which the appellant made to the Sheriff that the appellant told him that the deceased "had a name for being bad", and that he was "scared" of him.
The assignments of error relate primarily to refused requested charges and to one portion of the court's oral charge to which counsel for the appellant duly excepted.
The Judge charged the jury as follows:
We think that the clear import of this portion of the court's oral charge was that the bad character of the deceased could only be considered by the jury on the sole issue of determining who was the aggressor in the combat which led to the deceased's death.
Evidence of bad character of the deceased for peace and quietude, coupled with evidence of a general reputation for violence, blood-thirstiness or dangerousness, is admissible as having probative value on elements of the doctrine of self defense, other than the single issue concerning who was the aggressor.
In Brown v. State, 33 Ala.App. 97, 107, 31 So. 2d 670, 679, it was said:
Evidence of this type is also admissible for the purpose of showing a reasonable apprehension of immediately pending danger which would justify the accused in striking more quickly, under the circumstances prevailing at the time of the homicide. 40 C.J.S., Homicide, § 272, p. 1221; Long v. State, 23 Ala.App. 107, 121 So. 453.
The learned trial judge charged the jury as to elements of murder in the second degree and voluntary manslaughter. The jury, therefore, had the right to consider the character of the deceased in determining the degree of the defendant's guilt. Sanderson v. State, 28 Ala.App. 216, 181 So. 506.
Such evidence was in addition admissible to show the quo animo of the attack. McGuff v. State, 248 Ala. 259, 27 So. 2d 241; Rutledge v. State, 88 Ala. 85, 7 So. 335.
We, therefore, conclude that the trial judge's limitation of the character evidence in this case to the sole issue of who was the aggressor in the combat resulting in deceased's death was error.
Several written charges requested by the appellant and refused by the court are assigned as error. We pretermit consideration of these charges with the exception of Charge No. 12 which we believe requires comment.
Charge No. 12 is as follows:
The State contends that this charge was properly refused because it did not hypothesize freedom from fault in bringing on the difficulty. As we have before stated, the evidence was meager. However, there was no material conflict in the evidence and the whole evidence tended to show that the appellant killed the deceased while under a reasonable apprehension of immediate, pending danger to his own life. Further, if the evidence adduced for the State or the appellant is believed, we must reach the conclusion that the appellant was attempting to avoid combat with the deceased.
In Chaney v. State, 178 Ala. 44, 49, 59 So. 604, 606, in commenting on a charge which was identical to Charge No. 12, the court said:
This opinion cites the case of Gaston v. State, 161 Ala. 37, 49 So. 876; and Harris v. State, 96 Ala. 24, 11 So. 255. These cases show that the question of whether or not Charge No. 12 should have been hypothesized on freedom from fault in bringing on the difficulty depends upon whether there was evidence of this issue sufficient to make it a jury question. In the present state of the record, we find none.
We, therefore, conclude that under the state of the evidence in the instant case, that Charge No. 12 should have been given. The cause is, therefore, reversed and remanded.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | September 22, 1955 |
43b962b6-d31d-4daf-814e-73c8ef82c2c7 | McCary v. Crumpton | 83 So. 2d 309 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 309 (1955)
Daniel McCARY
v.
Blossom CRUMPTON.
5 Div. 629.
Supreme Court of Alabama.
November 10, 1955.
*310 Glen T. Bashore, Clanton, for appellant.
Omar L. Reynolds and Reynolds & Reynolds, Clanton, for appellee.
STAKELY, Justice.
Daniel McCary (appellant) brought an action against Blossom Crumpton (appellee) in the nature of an action in ejectment to recover certain described real estate lying in Chilton County, Alabama. Subsequently Blossom Crumpton made a motion asking the court to transfer the cause to the equity side of the docket. The motion was granted and thereupon Blossom Crumpton filed her original bill of complaint on the equity side of the docket. Daniel McCary demurred to the original bill of complaint.
The demurrer was overruled by decree of the court entered May 27, 1954. Daniel McCary thereupon filed an answer to the original bill of complaint. It is shown by stipulation of counsel that some testimony was taken on the issues made by the original bill and the answer. On August 21, 1954, after such answer was filed and after such testimony was taken, the complainant filed an amendment to her bill of complaint. There was a demurrer by Daniel McCary to the bill of complaint as *311 amended and to certain aspects thereof to which we shall later refer. The court overruled the demurrer. The appeal here is from this last mentioned decree overruling the demurrer to the bill of complaint as amended.
The allegations of the original bill, in addition to showing the names, ages and residences of the parties, the institution of the ejectment suit and the removal of the cause from the law side of the docket to the equity side of the docket, may be summarized as follows. Moses McCary, now deceased, made three promissory notes to Alabama Mineral Land Company for $80 each payable, respectively, on November 15, 1915, November 15, 1916 and November 15, 1917. Moses McCary died intestate in 1930 and Daniel McCary is his sole heir. The aforesaid notes were secured by a mortgage on the lands involved in this suit made by Moses McCary to Alabama Mineral Land Company on July 24, 1914. On February 2, 1918, the aforesaid mortgage and the indebtedness secured thereby was transferred and assigned by Alabama Mineral Land Company to T. U. Crumpton and Company, for a valuable consideration.
Copies of the aforesaid notes and mortgage are attached to the original bill of complaint marked exhibits thereto and made a part thereof.
The bill further alleges that the indebtedness evidenced by the aforesaid notes and secured by the aforesaid mortgage has not been paid and is still due and owing and that payment thereof was in default at the time of the filing of the suit, that during the year 1926 T. U. Crumpton Company, a corporation, was dissolved and shortly after the dissolution thereof the notes and mortgage which have been described were transferred and assigned in the course of liquidation of the affairs of such corporation to the complainant, Blossom Crumpton, who was a stockholder in the corporation, and that she is now the owner of the mortgage and the indebtedness evidenced by the notes.
It is further alleged that Blossom Crumpton is in possession of the lands and for more than twenty years prior to the filing of the suit at law in this cause, has been in the actual, adverse possession of the lands and has held the same continuously and uninterruptedly, openly and exclusively claiming to own the same as her own.
It is further alleged "by way of alternative" that if Blossom Crumpton does not have a lien on said land by virtue of the notes and mortgage she then claims title to the land by virtue of the fact that for more than twenty years she has held the actual, adverse, continuous and uninterrupted open and exclusive possession of the lands, claiming to own the same and that she has assessed and paid the taxes thereon as her own. The prayer of the original bill is that the court will make and enter a decree ascertaining and determining the amount of indebtedness due by and under the notes and will declare a lien upon the land to secure such indebtedness and will order and direct a sale of the lands for the satisfaction of the debt. The prayer is also for such other, further, different and general relief as in equity and good conscience the complainant may be entitled to.
The allegations of the amendment to the original bill show in substance that complainant is the owner and in peaceable possession of the lands involved in the litigation and that Daniel McCary claims or is reputed to claim some right, title, interest or incumbrance in and upon the land and further that no suit "is pending to enforce or test the validity of the complainant's title, claim or incumbrance upon the land." The bill as amended further alleges that the respondent be required to specify such title, claim or interest or incumbrance upon the land as he may have and prays that the court will decree that the complainant has title to the lands and the respondent no right, title or interest therein.
It appears to be the position of the appellee that this court should dismiss the appeal ex mero motu on the theory that this court has no jurisdiction of the appeal. It is argued that when the demurrer to the original bill was overruled and no appeal from such ruling was taken as provided by § 755, Title 7, Code of 1940, but on the *312 contrary the respondent answered the bill and testimony was taken in the cause and the complainant then filed an amendment to the original bill to which demurrer was overruled, that the respondent should have no right of appeal from the decree overruling the demurrer to the bill as amended on the theory that the amendment added no new parties, no new issue or no new theory of recovery in the controversy. We cannot agree with this position.
Section 755, Title 7, Code of 1940, provides for an appeal from any decree sustaining or overruling demurrer to a bill in equity to be taken within 30 days after the rendition thereof. It has been held that the word "bill" in the statute is used in a generic sense and includes an amended bill. Shields v. Hightower, 216 Ala. 224, 112 So. 834.
It is clear to us that the appellant had the right to take the appeal which is now before us and that we do have jurisdiction of the appeal and, accordingly, we will not dismiss the appeal.
In order to reach a proper conclusion in this case it would be well to analyze the bill as to its various aspects and the demurrers directed, respectively, thereto. We should also keep in mind that on appeal from a decree overruling a demurrer to a bill in equity the appellant cannot assign as error an interlocutory decree rendered over thirty days before the appeal was taken. Lampkin v. Strawbridge, 243 Ala. 558, 11 So. 2d 130; Gibson v. Edwards, 245 Ala. 334, 16 So. 2d 865. This means that on this appeal we will not consider the decree of the court overruling the demurrer to the original bill.
The bill as amended has three aspects. In the first aspect of the bill the complainant seeks to establish and enforce a lien on the property in order to procure payment of the indebtedness evidenced by the notes of $80 each which matured, respectively, on November 15, 1915, November 15, 1916, November 15, 1917. These notes were secured by a mortgage, as alleged in the bill. There is no doubt that equity has jurisdiction to establish liens on real estate and to foreclose mortgages on real estate. Alabama Butane Gas Co. v. Tarrant Land Co., 244 Ala. 638, 15 So. 2d 105; Taylor v. Shaw, 256 Ala. 467, 55 So. 2d 502. The demurrer to this aspect of the bill seeks to raise the question of laches in that it appears from the face of the bill as last amended that more than twenty years has elapsed since the law day of the notes described in the bill and before the date of the filing of the bill.
We do not think, however, that we need deal with the question of laches. The bill shows that the mortgagee or lienee has been in the actual, adverse, continuous, uninterrupted, open and exclusive possession of the lands claiming to own the same as her own for more than twenty years prior to the filing of the suit and assessing and paying taxes on the lands each year. In view of this allegation of possession by Blossom Crumpton we do not see why this defense does not constitute a defense to the action brought by Daniel McCary in the law court. This court has held that where after the law day of the mortgage the mortgagee has been in possession of the premises for ten years without any accounting for rent or other recognition of the equity of redemption remaining in the mortgagor or his privies, the right of redemption is barred. In the present case the adverse possession of Blossom Crumpton has been for more than twenty years and whether she seeks to establish her rights as mortgagee or lienee, does not appear to us to make any substantial difference. What we mean to say is that the rights of Blossom Crumpton here alleged show that she has a full and adequate defense in the law court. Coyle v. Wilkins, 57 Ala. 108; Dixon v. Hayes, 171 Ala. 498, 55 So. 164; Woods v. Sanders, 247 Ala. 492, 25 So. 2d 141; Garrett v. Brewton, 247 Ala. 490, 25 So. 2d 158; Killian v. Everett, 262 Ala. 434, 79 So. 2d 17.
The second aspect of the bill as amended relies on the title acquired through the actual, adverse possession of Blossom *313 Crumpton for more than twenty years to which we have referred. It is obvious that if she has an adequate remedy at law to present the defense set up by the first aspect of the bill, she certainly has an adequate remedy at law sought to be set up by the second aspect of the bill.
A third aspect of the bill is sought to be created by adding to the bill as last amended paragraphs which contain allegations which constitute a statutory bill to quiet title. As we have pointed out Blossom Crumpton is in possession of the property. Daniel McCary sued her for possession of the lands in an ejectment suit on the law side of the court. Blossom Crumpton has no right to substitute a statutory bill to quiet title for the pending action of ejectment because she can show her title, which is the legal title, as a defense to the action of ejectment. Perry v. Warnock, 246 Ala. 470, 20 So. 2d 867; Thompson v. Page, 255 Ala. 29, 49 So. 2d 910.
Besides the amended bill alleges that "no suit is pending to enforce or test the validity of such title, claim or encumbrance." When this allegation is considered in the light of the entire record, it appears that there was a suit pending in which the title to the property is involved when the case was transferred to the equity side of the docket. The suit pending was the ejectment suit. The demurrer that in this socalled aspect of the bill the complainant had an adequate remedy at law is good. Floyd v. Andress, 246 Ala. 301, 20 So. 2d 331; Owen v. Montgomery, 230 Ala. 574, 161 So. 816.
As stated at the outset the court overruled the demurrer without ruling on the demurrer as to the separate aspects of the bill. Under our decisions the effect of such a ruling is that it is a ruling only on the demurrer to the bill as a whole and the decree is due to be affirmed on appeal if any aspect is good. As we have shown no aspect of the bill is good and the demurrer should have been sustained to the bill and to each aspect of the bill. Rowe v. Rowe, 256 Ala. 491, 55 So. 2d 749; Adams v. Woods, Ala., 82 So. 2d 531.
The cause should be retransferred to the law side of the docket. Section 155, Title 13, Code of 1940; Perry v. Warnock, supra.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | November 10, 1955 |
35640958-f9ba-4129-bbf3-eb104843039a | Alabama Textile Products Corp. v. State | 83 So. 2d 42 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 42 (1955)
ALABAMA TEXTILE PRODUCTS CORP.
v.
STATE of Alabama.
3 Div. 726.
Supreme Court of Alabama.
September 15, 1955.
Rehearing Denied November 10, 1955.
*45 Albrittons & Rankin, Andalusia, for appellant.
John Patterson, Atty. Gen., Willard W. Livingston and H. Grady Tiller, Asst. Attys. Gen., for appellee.
Jack Crenshaw, Montgomery, amicus curiae.
MERRILL, Justice.
This is an appeal from a decree of the Circuit Court of Montgomery County, in Equity, sustaining demurrers to appellant's bill of complaint to the bill as a whole and to the various aspects of the bill. The bill presented an appeal under § 140, Title 51, Code of 1940, from a final assessment by the State Department of Revenue of franchise taxes against the appellant for the tax year 1952.
The excellent opinion of Judge Jones, which precedes the decree, is full, comprehensive and complete, and demonstrates that it is the result of much thought and research. Since we are affirming the decree, any opinion by us would cite and discuss most of the cases considered by Judge Jones in his opinion. We, therefore, quote and adopt his opinion on the same questions presented here, but we omit the portion of it which deals with the alleged violation of the Fifth and Fourteenth Amendments to the Constitution of the United States. Those aspects of the decree are not argued by appellant in this court and are not considered by us. The opinion of Judge Jones, with the noted exceptions, follows:
"The Alabama Textile Products Corporation, a corporation, will hereinafter be referred to as `the appellant' and the State of Alabama, one of the appellees in this cause, will hereinafter be referred to as either `the appellee' or `the State.'
"The appellant is a Delaware corporation, same having been chartered under the laws of said State on March 29, 1929 and qualified to do business in the State of Alabama on March 31, 1929, and has continuously done business as a foreign corporation in the state of Alabama since said time.
"This case arose in the Department of Revenue of the State of Alabama where, after due notice and a contest therein by the appellant, a final assessment was made and entered by the State Department of Revenue against the appellant for franchise tax in the amount of $10,506.61 and the appellant, within the time and in the manner provided by law, duly appealed from said final assessment to this Court.
"Within the time required by law, the appellant duly filed its bill of complaint in *46 this Court, making as parties appellee thereto Joe M. Edwards, as Commissioner of Revenue for the State of Alabama, the State Department of Revenue of the State of Alabama and the State of Alabama, and attached to the bill of complaint a copy of its franchise tax return for the year 1952.
"The bill of complaint alleges that the appellant was organized and granted its charter on March 29, 1929 under the laws of the State of Delaware and was duly qualified to do business in the State of Alabama on March 31, 1929; that its principal place of business in Alabama was and is Andalusia, Alabama, and that the corporation was and is engaged in the manufacturing of garments such as shirts and pajamas; that it was engaged in business during the franchise tax year 1952 in this State and also in the State of Florida.
"That on January 14, 1954 the Department of Revenue of the State of Alabama made and entered against the appellant a final franchise tax assessment for the tax year 1952 in the amount of $10,506.61; that the appellant, within the time and in the manner provided by law, duly perfected its appeal therefrom to this Court and within the time required by law, filed its bill of complaint herein; that the appellees and each of them, separately and severally, interposed demurrer to the bill of complaint as a whole and to the several and separate aspects thereof.
"The parties to this litigation appeared before the Court and orally argued the demurrer and later filed with the Court written briefs, and the matter is now before the Court for decree on said demurrer.
"The Commissioner and the State Department of Revenue as Appellees.
"Joe M. Edwards, as Commissioner of Revenue for the State of Alabama and the State Department of Revenue of the State of Alabama were each made parties appellee to the bill of complaint, and each interposed demurrer thereto. It is the opinion of the Court that the demurrer of these appellees should be sustained for they nor either of them are proper or necessary parties appellee to said suit. Section 140, Title 51, Code of Alabama 1940; State v. National Cash Credit Association, 224 Ala. 629, 141 So. 541, and Birmingham Vending Co. v. State, 251 Ala. 584, 38 So. 2d 876.
"What Is Capital?
"From the oral argument before this Court, as well as the written brief and argument of the appellant filed with the Court, it appears that its main contention was that `capital' should be redefined so as to include only the issued and outstanding capital stock, surplus and undivided profits and long term bonds maturing more than one year from accounting date, and that the actual amount of capital employed in Alabama could not exceed the aggregate sum thereof. With this contention, the Court cannot agree.
"The tax here in question is a constitutional tax provided for by Section 232 of the Constitution of Alabama 1901 which, as to a foreign corporation, provides, so far as here pertinent, as follows:
"Section 229 of said Constitution provides that the Legislature shall levy a franchise tax against domestic corporations and, so far as here pertinent, provides as follows:
"In compliance with the mandate of these constitutional provisions, the Legislature enacted Laws levying a franchise tax against domestic corporations and a franchise tax against foreign corporations. Section 347 of Title 51, Code of Alabama 1940, *47 levies a franchise tax against domestic corporations and said Section is as follows:
"Section 348 of Title 51, Code of Alabama 1940, levies a franchise tax against foreign corporations and same, so far as here pertinent, is as follows:
"It will be observed that the rate provided for by the Legislature for the tax against the domestic and against the foreign corporation is the same, namely, two dollars per thousand, but that with respect to the domestic corporation the tax is measured by the capital stock; whereas, with respect to the foreign corporation the tax is measured by `the actual amount of capital employed in this state.' What does that expression mean?
"The latest case to go before the Supreme Court of this State involving the franchise tax on foreign corporations is that of State v. Travelers Ins. Co., 256 Ala. 61, 53 So. 2d 745, 750. In that case the Supreme Court of Alabama, in language too clear for misunderstanding, stated:
"From this quotation it appears that the Supreme Court regarded the expression "actual amount of capital employed in Alabama"' as being itself the definition of what constitutes the measure of the tax. Furthermore, since their decisions have given said expression a fixed interpretation, it appears that there only remains to determine what that fixed interpretation is.
"Mr. Justice Simpson, the writer of said opinion, defined the expression as follows:
"After referring to the case of Louisville & N. R. Co. v. State, 201 Ala. 317, 78 So. 93, an opinion written by Mr. Chief Justice Anderson, and calling attention to the fact that he relied upon and quoted approvingly from the cases of St. Louis Southwestern R. Co. v. State of Arkansas ex rel. Norwood, 235 U.S. 350, 35 S. Ct. 99, 59 L. Ed. 265, and Postal Telegraph Cable Co. v. Adams, 155 U.S. 688, 15 S. Ct. 268, 360 L. Ed. 311, Mr. Justice Simpson stated:
"It will be observed that Mr. Justice Simpson, in the Travelers Ins. Co. case, supra, quoted from the case of Consolidated Coal Co. v. State, 236 Ala. 489, 183 So. 650, 651, as follows:
"In the Travelers Ins. Co. case, supra, the Court also quoted approvingly from the case of State v. Pullman-Standard Car Mfg. Co., 235 Ala. 493, 498, 179 So. 541, 544, 117 A.L.R. 498, as follows:
"The thought expressed in the Pullman-Standard Car Mfg. Co. case, supra, is also found expressed in the case of Ellis v. W. A. Handley Mfg. Co., 214 Ala. 539, 108 So. 343, 344, in language as follows:
"It will be observed that the W. A. Handley case, supra also holds that the indebtedness owed by the corporation and secured by mortgage is not deductible from the value of the assets of the corporation and that the value of the franchise or right of the corporation doing business in this State in its corporate name is the value of the property owned by the corporation. The Court, in that regard, remarked as follows:
"Referring again to the Travelers Ins. Co. case, supra, it will be noted that the Court held that certain items of property were included in the measure of the tax, and stated as follows:
"Then the Court stated the governing principle of law that applies in franchise *49 tax cases against foreign corporations as follows:
"It is here made plain that the governing principle of law is that all assets which have at least a legal situs in Alabama and used by the foreign corporation in this State are to be considered as the determining factor. This is certainly in line with the holdings of many of the cases that have gone to the Supreme Court of this State, reaching as far back as the case of Louisville & N. R. Co. v. State, 201 Ala. 317, 78 So. 93, 94; Id., 1918, 248 U.S. 533, 39 S. Ct. 18, 63 L. Ed. 406, where the Court stated:
"Reference is made in the case just quoted from, written by Mr. Chief Justice Anderson, to the debate in the Constitutional Convention where Mr. Kyle offered an amendment to what is now Section 232, substituting for the words there in `"in proportion to the amount of its capital stock"' the following: `"shall be based on the actual amount of capital employed in this state."' In the course of the remarks made by Mr. Kyle, he stated: `So this reaches the matter and makes it the property in possession of the state.' From this remark it must be adduced that Mr. Kyle understood that the franchise tax on foreign corporations would be measured by the actual amount of capital employed in this State and that it would not reach the capital of the corporation employed in another state. Furthermore, the Arkansas and the Adams cases quoted approvingly by Mr. Chief Justice Anderson in said opinion also show that property or the value of the assets of the corporation situated and used within the State were to constitute the measuring rod for the franchise tax here in question.
"In the Louisville & N. R. Co. case, supra, Mr. Chief Justice Anderson stated that the franchise tax levied on a foreign corporation was `* * * based upon the amount of "capital actually employed in this state," regardless of the proportion it may bear to the appellant's capital stock; * * *.'
"Mr. Justice Foster, in the case of Hollingsworth & Whitney Co. v. State, 241 Ala. 96, 1 So. 2d 387, 388, had before him questions involving the franchise tax law of this State. It was insisted by the taxpayer that the amount which had been expended at the end of 1939, in construction of the plant and in its various aspects and in appliances used in that connection, did not represent capital of the taxpayer employed in this State under Section 232 of the Constitution and under the franchise tax law then in force. The Supreme Court did not agree. After calling attention to the fact that the tax in question was an excise tax for the privilege of doing business in Alabama and that it was a tax for the privilege of exercising corporate functions and likewise emphasizing the fact that `the privilege is the subject of taxation, not the business itself,' he stated as follows:
"In State v. Burchfield Bros., 211 Ala. 30, 99 So. 198, 200, the question was asked: `Are the words "capital actually employed in the business" the equivalent of the words "net worth of the business," if effect be given to the plain intent of the statute when considered as a whole? [Citing cases.] They are not.'
"Mr. Chief Justice Livingston, in the case of State v. Jackson Securities & Investment Co., 243 Ala. 83, 8 So. 2d 573, 574, stated that: `The statutes are not of doubtful meaning * * *.' It was also held in that case that the value of the property owned by the corporation and used or employed by it in this State constituted the measure of the tax; that it was the fair and reasonable market value of the term `value' is defined in Section 1, Title 51, Code of Alabama 1940, and it is there defined to mean `the fair and reasonable market value of the taxable property'.
"The Consolidated Coal Co. case, supra, also made it perfectly clear that the franchise tax on a foreign corporation is not a property tax, nor a tax on the privilege of owning property in Alabama, without more, and that the value of property in Alabama may become material in estimating the amount of capital employed in Alabama. I am, therefore, at the conclusion that, as stated in the Travelers Ins. Co. case, supra, the governing principal of law is that all assets which have an actual or a legal situs in Alabama and which are used or employed by the foreign corporation in Alabama in the exercise of any business whatsoever, are to be considered as the determining factor or measure of the tax and that, therefore, the demurrer interposed by the appellee to this phase of the bill should be sustained.
"Intangible Personal Property
"The taxation of tangibles such as land and chattels is no longer fraught with difficulty for they are regarded as being localized at the place where the tangible itself is located for purposes of taxation. However, intangible personal property may and sometimes does present a more difficult problem largely from a jurisdictional standpoint. No state has a right to tax property whether it be tangible or intangible unless it can be said to have a situs in the taxing state. For a state to undertake to tax any class of property, the situs of which is not within the state, is to run afoul of constitutional provisions of due process of law or equal protection of the law. However, this is not to say that intangibles *51 cannot have a situs different from the domicile of its owner. This principle was recently demonstrated by the case of Curry v. McCanless, 307 U.S. 357, 59 S. Ct. 900, 905, 83 L. Ed. 1339. In that case, the question for decision was whether the States of Alabama and Tennessee may each constitutionally impose death taxes upon the transfer of an interest in intangibles held in trust by an Alabama trustee but passing under the will of a beneficiary decedent domiciled in Tennessee; and which of the two states may tax in the event that it is determined that only one state may constitutionally impose the tax. It was held that, under the circumstances of that particular case, both the State of Tennessee and the State of Alabama could constitutionally impose a death tax on the intangibles held by the Alabama trustee. The Supreme Court of the United States discussed in great detail the intangibles and the law governing same. After discussing the rights in tangibles, that is, land and chattels, the Court discussed at considerable length intangibles, and stated, in part, as follows:
Thus it appears that an intangible may be taxed at the domicile of the owner or at the commercial domicile of a corporation where the intangible is employed or used.
"In the case of Wheeling Steel Corporation v. Fox, 298 U.S. 193, 56 S. Ct. 773, 778, 80 L. Ed. 1143, the intangibles there involved were accounts receivable arising both from business done at the Wheeling, West Virginia, plant and accounts receivable arising from goods manufactured and sold at plants in other states, but all of which were held at Wheeling for collection. An ad valorem tax was levied upon these intangibles. In an opinion written by Mr. Chief Justice Hughes, it was held that these intangibles were subject to the ad valorem tax. As in the instant case, the corporation was a Delaware corporation but had its commercial domicile or chief place of business at Wheeling, West Virginia. With respect to the establishment of a commercial domicile, the Court stated as follows:
"In the instant case the facts are substantially as set out hereinabove with respect to the commercial domicile of the Wheeling Steel Corporation. The general business office of the appellant is maintained at Andalusia, Alabama; it is there that the management functions. The corporation has manufacturing plants in Florida but what it does from those plants is controlled from the center of authority at Andalusia. The trucks of the corporation are based at Andalusia and are there given their instructions and Andalusia is the home base of the airplane. The books of the corporation are kept there and all the goods are sold from the Andalusia office and all of the accounts receivable come to that office for collection. These facts establish the fact that the appellant's commercial domicile is at Andalusia, Alabama.
"The items of property and the value thereof as fixed and determined by appellee and the franchise tax assessed thereon were as follows:
"The bill of complaint alleges as follows:
"`Appellant admits and alleges that the value of the separate items of its property which were treated by Appellee as being located or having a legal situs in Alabama and the aggregate value of same (other than cash and consisting of items 2 through 7, inclusive) were and are as determined by Appellee. * * *'"
"Item 1 above (Total average monthly Alabama expense) $186,461.41, was determined by the Department of Revenue as follows:
From these figures we have developed the total average Alabama expense to be as follows:
"It is alleged in the bill of complaint: `* * * that the Alabama wages on a bi-weekly basis were the sum of to-wit, $114,207.56; that the Florida wages on a bi-weekly basis were the sum of to-wit, $21,631.30; that the total salaries (everywhere) paid monthly were the sum of towit, $211,601.62; that the total rent paid on a monthly basis was to-wit, $16,537.12; that the Florida part of the annual rent was the sum of to-wit, $4,999.92; that the total "other expense" (everywhere) was the sum of to-wit, $736,378.75 and that the total Florida "other expense" was the sum of to-wit, $58,784.20.' Then the first question that arises with respect to the intangibles is in regard to the $186,461.41.
"Alabama Average Expense$186,461.41.
"The items making up the above total of $186,461.41 consist of the following: $114,207.56bi-weekly wages. However, the salaries paid to the officers were not broken down into Alabama wages and Florida wages but were furnished to the Department as being a total of $211,601.62. Dividing said amount by 12 gives a sum of $17,633.46 salaries paid per month everywhere. Now, in order to allocate that part of the salaries that was paid to officers in Florida, the Department took as the Florida part thereof the ratio that the Florida by-weekly wages bear to the total bi-weekly wages of 15.92 per cent. 15.92 per cent of the said amount of $17,633.46 equals $2,807.25 of salaries paid to the Florida officers and which amount deducted from the above amount of $17,633.46 leaves a balance of $14,826.21. This latter amount added to the $114,207.56, the amount of Alabama bi-weekly wages, gives a total of wages and salaries of $129,033.77 as the amount of money necessary for the corporation to have had on hand to meet said expense on January 1, 1952, the law day of the tax.
"Item 4 is total monthly rent paid of $16,537.12 of which amount the rent paid in Florida was $4,999.92, leaving a balance of Alabama annual rent of $11,537.20 which amount divided by 12 months gives an average of $961.43 of rent paid per month and which amount represents cash which the corporation would have had to have had on hand on said law day in order to meet that particular obligation.
"Item 6 represents total `other expense' everywhere and Item 7 represents Florida expenses so that deducting the latter from the former gives Alabama `other expense' of $677,594.55 which amount divided by 12 months gives $56,466.21 of Alabama monthly `other expense' and which amount represents *55 the amount of money which the corporation must have had on hand on January 1, 1952, and, adding these three items of $129,033.72 and $961.43 and $56,466.21 gives $186,461.41 total Alabama average expense which the corporation must have had on hand or in bank or banks on the said date of January 1, 1952. The Court is of the opinion that the Department fairly estimated the amount that was necessary to be on hand or on deposit in banks to meet said expenses as of January 1, 1952, the law day of said tax and this conclusion is based largely upon the case of State v. Pullman-Standard Car Mfg. Co., 235 Ala. 493, 179 So. 541, 547, 117 A.L.R. 498. In said case the items making up a large part of the capital employed consisted of items of cash, accounts and notes receivable, inventories, and deferred charges. As the Court held that the plant which was owned by another corporation was not includible in the measure of the tax, it concluded that in addition to the items named, there should be included therein one-twelfth of the total annual rent paid, the Court in that regard, saying as follows:
"Insofar as the amount that is included in the $186,461.41 is concerned, the above quotation represents exactly what the Department did in this case, that is, took an average monthly rent which was $961.43 and included that in the measure of the tax.
"Certainly the corporation could not operate without capital to meet the bi-weekly and monthly pay rolls. In the Pullman-Standard Car Mfg. Co. case, supra, the Court, with respect to pay rolls there involved said as follows:
"Thus it appears that the Supreme Court has gone on record as approving the treatment of pay rolls just as the Court treated rent in that case. The Department was careful to eliminate all pay rolls that were payable to the wage-earners and officers in Florida where the amount thereof was not allocated by the taxpayer itself.
"This leaves for consideration only the `other expense' of $56,466.21. This was undoubtedly the other monthly expense in Alabama and simple mathematics applied to the figures as alleged in the bill clearly show the necessity for this additional capital if the corporation was to continue operation and this Court holds that the said sum of $186,461.41, the total of the items discussed above, was a reasonable sum to be included by the Department in the measure of the tax.
"By referring to the franchise tax return made by the appellant for the year 1952, there will be found under Section B(1) Cash Everywherethe sum of $217,043.45. While the appellant allocates only $62,133.47 of that amount to Alabama, it is perfectly obvious that said amount was insufficient to meet the current expenses that were payable on January 1, 1952. The appellant undertakes to justify the allocation of only $62,133.47 to Alabama on the theory that $150,000 of the $217,043.47 was on deposit in a Chicago bank and not subject to check. It appears to the Court that said sum of money was attributable to business done in Alabama; that it was made from sale of garments manufactured in Alabama. The appellant was a going concern with admitted capital of over five million dollars and it just does not stand to reason that the appellant would not have had available on January 1, 1952 sufficient funds with which to meet the pay roll of its employees and officers and other expense, all due as of that particular date. Furthermore, *56 bank accounts are intangible personal property and the commercial domicile of the corporation being at Andalusia, Alabama, it follows that the legal situs of the various bank accounts was Andalusia, Alabama. It also appears from the allegations of the bill that said $150,000 was, in some way, used in the nature of a security and the benefit flowing therefrom is certainly attributable to the business done in this State. The Court is, therefore of the opinion that the demurrer addressed to that aspect of the bill of complaint wherein the appellant seeks to avoid the franchise tax liability with respect to the said sum of $186,461.41 is well taken and should be sustained.
"$150,000Not Subject To Check.
"From what the Court has said hereinabove, it is apparent that the Court is of the opinion that the appellant is not entitled to exclude from the measure of the tax the $150,000 on deposit in the Continental National Bank & Trust Company, Chicago, Illinois. That sum or some other sum was necessary to meet current expenses. Furthermore, the return made by the appellant to the Department of Revenue had attached thereto a financial statement in which it appears that $212,133.47 of the $217,043.45 was by the appellant allocated to Alabama and that there was allocated to Florida only the sum of $4,909.98. This financial statement was made up as of September 30, 1951, three months before the law day of the tax. It may, therefore, be reasonably assumed from the facts alleged in the bill, when aided by the exhibit attached thereto, that as of January 1, 1952 the appellant had ample funds with which to meet pay rolls, rent and other expenses and that, therefore, to reduce the said sum of $186,461.41 by the sum of $150,000 would be both illogical and unreasonable and the facts alleged to not show that appellant is entitled to such relief. The Court is, therefore, of the opinion and holds that the demurrer of the appellee to that aspect of the bill of complaint wherein the appellant seeks a deduction of the $150,000 from its cash and bank deposits is well taken and should be sustained.
"Accounts Receivable of $514,802.91.
"The allegations of the bill with respect to accounts receivable of $514,802.91 were that the appellant had treated as Alabama assets said accounts receivable and that it was impractical if not impossible to segregate the accounts receivable resulting from the sale of products manufactured in Florida from the accounts receivable resulting from the sale of products manufactured in Alabama; that the accounts receivable reflect that part of the manufacturing operations carried on in Florida, as well as that part of the manufacturing operations carried on in Alabama, which had been converted as of the law day into the form of accounts receivable, and the proceeds thereof would be further employed in appellant's business both in Florida and Alabama without segregation of amounts to either state. In the opinion of the Court these allegations are insufficient to immunize any part of the accounts receivable from their inclusion in the measure of the tax. The return filed by the taxpayer and duly sworn to, allocated to Alabama all of said accounts receivable and the allegations of the bill also reflect that these accounts receivable arose from the sale of the finished product after it had been warehoused in Alabama and the accounts receivable were collectible by the corporation at its plant in Andalusia. It, therefore, appears that the goods sold resulting in these accounts receivable had a definite situs in Andalusia prior to their sale. Furthermore, the appellant could not by its own carelessness in keeping proper books and records immunize any part of the accounts receivable from the measure of the tax. In this connection see the Pullman-Standard Car Mfg. Co. case, supra, and State v. Southern Natural Gas Corp., 233 Ala. 81, 170 So. 178; Southern Natural Gas Corp. v. State, 301 U.S. 148, 57 S. Ct. 696, 698, 81 L. Ed. 970, and Wheeling Steel Corporation v. Fox, 298 U.S. 193, 56 S. Ct. 773, 778, 80 L. Ed. 1143 and State v. National *57 Cash Credit Association, 224 Ala. 629, 141 So. 541. The Court is, therefore, of the opinion that the demurrer of the appellee to the phase of the bill wherein and whereby the appellant seeks to avoid the liability with respect to any part of the said sum of $541,802.91 is well taken and should be sustained.
"Inventories of $3,746,562.88.
"While the appellant in its return allocated to the State of Alabama inventories of the value of $3,746,562.88, and although it alleges in the bill of complaint that said inventories were located on the law day in the warehouses in Alabama for final shipment to customers or for distribution to appellant's plants in Alabama and Florida in the normal course of the manufacturing processes conducted in both states, without segregation of amounts to either state, it alleges, in an effort to avoid tax liability with respect to the cloth, raw material and supplies which were kept on hand in Alabama warehouses, that these inventories were for manufacturing processes in Florida. This property being located in the warehouses in Alabama on the law day in question, and being constantly drawn from and used by the plants in Alabama, the Court is of the opinion that it is immaterial that part of it might ultimately find its way to the plant in Florida. Furthermore, the return shows that the total inventory in Alabama and Florida, there being no business conducted whatsoever in Delaware, the state of appellant's charter, was in the amount of $3,953,564.94. Deducting therefrom the amount allocated to Alabama of $3,746,562.88 leaves a balance of $209,002.06 of inventory which appellant allocated to Florida. The inventories in question having a situs in Alabama on the law day of the tax, and being principally used from by the plants in Alabama, the Court is of the opinion that the demurrer of the appellee to that phase of the bill which seeks to reduce the measure of the tax with respect to the inventories to an amount less than $3,746,562.88 is well taken and should be sustained.
"Indebtedness of Appellant.
"Appellant contends that the current indebtedness of $3,409,488.17, consisting of current accounts payable, current demand notes, accrued current taxes, and accrued wages and salaries, should be deducted from the appellant's capital employed in determining the amount of franchise tax due by the appellant to the State. The Court cannot agree with this contention. Borrowed capital is nonetheless capital because it is borrowed. It goes into and becomes a part of the operating capital of the corporation, and there is no provision in either § 232 of the Constitution of Alabama of 1901 or in § 348, Title 51, Code of Alabama 1940 (which implements the constitutional provision and levies the franchise tax) for a deduction or an exemption for borrowed capital. Furthermore, a case of similar import was before the Supreme Court in the case of Ellis v. W. A. Handley Mfg. Co., 214 Ala. 539, 108 So. 343, wherein it was held that the total value of a foreign corporation's property employed in this State, without deduction of mortgage indebtedness, is a proper basis for franchise tax. The Court, speaking through Mr. Chief Justice Anderson, remarked:
"It will be observed that the Court did not state whether or not the mortgage debt was a so-called `long term debt' or a socalled `short term debt', such differentiation evidently being considered by the Court as immaterial.
"In the case of State v. Banana Selling Co., Inc., 185 La. 668, 170 So. 30, 31, 107 A.L.R. 1298, the corporation was organized with a capital stock of only $5,000. However, it purchased bananas from the Fruit Dispatch Company and at the end of the year 1932 there was due by the corporation to the Fruit Dispatch Company $330,243.29, which was long past due, for bananas purchased from said Company and sold long before the end of 1932 and that same situation obtained for subsequent years, 1933 and 1934. The Court, under these circumstances, held that the amount owing by the taxpayer was not only not deductible but also includable in the measure of the tax. The Court stated:
"To similar effect, see Southern Realty Corporation v. McCallum, 5 Cir., 65 F.2d 934, writ of certiorari to the Supreme Court denied Southern Realty Corp. v. Heath, 290 U.S. 692, 54 S. Ct. 127, 78 L. Ed. 596; State v. Xeter Realty, 182 La. 414, 162 So. 29; State ex rel. Marquette Hotel Inv. Co. v. State Tax Commission, 282 Mo. 213, 221 S.W. 721, 723.
"In the latter case, the Missouri Court remarked:
"The Court is, therefore, of the opinion that the demurrer of the appellee to that phase of the bill of complaint which seeks a deduction or exemption of the indebtedness of $3,409,488.17 from the measure of *59 the tax is well taken and should be sustained.
"Mortgage from Vernon Bell.
"The appellant, in its bill of complaint, alleges that the mortgage executed by Vernon Bell to the appellant was on property located in Andalusia, Alabama, but did not allege whether the property conveyed thereby was personal property or real estate. Hence, the allegations of the bill of complaint are insufficient to bring said mortgage within the only exemption provided for by Section 348, Title 51, Code of Alabama 1940. The exemption referred to in said Section reads as follows:
"Hence, it is apparent that in order for said loan made by said appellant to the said Vernon Bell to come within said exemption, the loan must have been secured by mortgage on real estate in this State and upon which said mortgage there shall have been paid the recording privilege tax provided by law. Such allegations are wholly absent from the bill. The Court is, therefore, of the opinion that the demurrer of the appellee to that phase of the bill of complaint is well taken and should be sustained.
"Shares of Stock.
"It is alleged in the bill of complaint that the appellant owns shares of stock in Andalusia Brick & Tile Company, a defunct Delaware corporation formerly operating in Andalusia, Alabama, and that it had stock in said Corporation of a value of $8,600. It was admitted by the appellant on the bottom of Page 4 of the bill of complaint that `the value of the separate items of its property which were treated by Appellee as being located or having a legal situs in Alabama and the aggregate value of same * * * are as determined by Appellee as stated above. Item 5 in the property stated above is `Other investments (Foreign Corp. Stock)$8,850.00.' That is not an exact, accurate statement for under said Item 5, according to the allegations of the bill, there was included the Vernon Bell mortgage and the shares of stock in the Andalusia Brick & Tile Company, the former being valued at $250 and the latter at $8,600. The shares of stock of a foreign corporation owned by a foreign corporation whose commercial domicile is in Alabama, as is the case with the instant corporation, and the situs of the shares of stock presumably being in Alabama, there being no allegations in the bill to the contrary, are includable in the measure of the franchise tax of the corporation so owning said shares of stock. State v. Kidd, 125 Ala. 413, 28 So. 480; Kidd v. State of Alabama, 188 U.S. 730, 23 S. Ct. 401, 47 L. Ed. 669; State Tax Commission of Utah v. Aldrich, 316 U.S. 174, 62 S. Ct. 1008, 1011, 1012, 86 L. Ed. 1358; Arkansas Fuel Oil Corporation v. Fontenot, 225 La. 166, 72 So. 2d 465; People ex rel. Tobacco & Allied Stocks v. Graves, 250 App.Div. 149, 294 N.Y.S. 995, affirmed without opinion 277 N.Y. 723, 14 N.E.2d 821.
"In the Aldrich case, supra [316 U.S. 174, 62 S. Ct. 1012], the Supreme Court of the United States held that jurisdiction to tax was not restricted to the domiciliary state and stated as follows:
"Certainly the State of Alabama had extended both to the issuing corporation and to the holder of the shares of stock protection in many respects. While the issuing corporation was a Delaware corporation, presumably it had no place of business except Andalusia, Alabama. The allegations of the bill of complaint are, on demurrer, construed most strongly against the pleader. It is presumed that he has stated the best case of which the facts at his command are capable. The Court is, therefore, of the opinion that the demurrer of the appellee to that phase of the bill of complaint with respect to the shares of stock of said Andalusia Brick & Tile Company is well taken and should be sustained.
"Capital Assets$721,114.75.
"In the franchise tax return filed by the appellant, Page 2, Section B, Item 6(a) and (c), capital assets to the amount of $721,114.75 are allocated by the appellant to the State of Alabama. Said amount of $721,114.75 is the aggregate of buildings, machinery and equipment in the amount of $710,423.95 and land of the value of $10,690.80, making total, as stated, of $721,114.75. The Court understands that no question is raised by the appellant with respect to the correctness of the inclusion of these values in the measure of the tax. However, the appellant does allege that the trucks and transportation equipment aggregating $51,852.66 and included in item of $721,144.75 and located in Alabama are used for the operation of appellant's business in Alabama and Florida. In the first place, it appears that appellant is mistaken with respect to the trucks and transportation equipment being included in the $721,114.75 at the figure of $51,852.66 for the return filed by the appellant, Page 2, Section A. Item 6(a)Auto and Trucks under Column 4 shows that only $19,930.64 was included for trucks and transportation equipment. The appellant allocates that value of these trucks to the State of Alabama and, of course, it would not be done if they were not based in this State. Like any other tangible personal property, they are subject to taxation at their situs, and the fact that they are used in both Alabama and Florida by the appellant does not militate against the inclusion of their value in the measure of the franchise tax. The Court is, therefore, of the opinion that the appellee correctly included in the measure of the tax the said sum of $721,114.75 and that the demurrer interposed to that aspect of the bill of complaint is well taken and should be sustained.
"Cash Value of Life Insurance.
"The allegations of the bill are that the cash value of this life insurance was in the amount of $8,014.60 and that the policies insured the lives of its key executives but are held by appellant. From this we understand that the appellant is the beneficiary in said policies and that it pays the premiums, etc. Appellant sets up as a defense against the inclusion of the cash surrender value of these policies in the measure of the Alabama franchise tax that they were held by Security National Bank, Greensboro, North Carolina, as additional security for a bond issue of $527,500 which is also secured by a mortgage conveying all the capital assets of the appellant in Alabama and Florida and that the proceeds were used in the operation of appellant's business in both Alabama and Florida. The fact that the policies in question are used to secure a loan tends to show employment or use thereof and that the proceeds of the loan are used in this State is admitted by the appellant. The fact that some of the proceeds might be used in Florida when the commercial domicile or business situs of the corporation is Andalusia, Alabama, does not, in the opinion of the Court, militate against their inclusion in the measure of the tax. Furthermore, we must keep in mind that we are dealing here with an intangible and that an intangible for tax purposes may have at least two situses, one in the domiciliary state and one in the state where the corporation has established a *61 commercial domicile. Curry v. McCanless, 307 U.S. 357, 59 S. Ct. 900, 83 L. Ed. 1339; State Tax Commission of Utah v. Aldrich, 316 U.S. 174, 62 S. Ct. 1008, 86 L. Ed. 1358. Furthermore, we are not here dealing with an ad valorem tax but an excise tax which our Supreme Court has been careful to point out is not a direct tax on the property but a tax on the right or privilege of the corporation to engage in business in this State in its corporate name. In the case of State v. Southern Natural Gas Corp., 233 Ala. 81, 170 So. 178, 190; Southern Natural Gas Corp. v. State, 301 U.S. 148, 57 S. Ct. 696, 81 L. Ed. 970, the Supreme Court of Alabama, after referring to and quoting approvingly from the case of Wheeling Steel Corporation v. Fox, 298 U.S. 193, 56 S. Ct. 773, 80 L. Ed. 1143, to the effect that although the corporation was a Delaware corporation it had all its operations from a commercial domicile in Wheeling, West Virginia, and that consequently all the accounts receivable were subject to an ad valorem tax in Wheeling, said and held as follows:
"The Court is, therefore, of the opinion that the demurrer interposed to this aspect of the bill of complaint is well taken and should be sustained.
"Other Assets Aggregating $67,497.60.
"The appellant alleges in its bill of complaint that the item of other assets of $67,497.60 is made up of prepaid expenses, that is, amounts paid out by appellant for the following expense items which have future operating value:
"These items are each obviously intangible personal property. We have heretofore discussed to a considerable extent intangible property and here make reference thereto. The prepaid taxes in Alabama of $962.68 are on property the situs of which is in this State and hence, the money to the extent of the amount alleged for prepaid taxes is, in the opinion of the Court, includable in the measure of the tax. Certainly the payment of taxes has a direct relationship to the ownership and use of property. Attention is also called to the fact that the appellant allocated said tax to Alabama in its franchise tax return. See Page 2 of the return, Section B, Item 7.
"The next item under other assets is prepaid taxes in Florida of $932.77. *62 While it might have been more appropriate to have allocated that to Florida, the taxpayer in its sworn return, as hereinabove stated, same being a part of the bill of complaint by reference, saw fit to allocate said prepaid taxes to Alabama. As the rate of tax is only $2.00 per thousand, it is apparent that the tax would only be $1.86. The Court feels that the maxim de minimis non curat lexthe law does not care for, or take notice of very small or trifling mattersshould here apply.
"The next item of prepaid fire, theft, property liability and damage insurance of $54,252.16 is likewise an intangible and said amount of money is invested, used or employed by the appellant in the protection of its property from fire or theft and to secure itself against property liability and damage. It, therefore, has a direct relationship to the property affected, and in the opinion of the Court, the fact that the prepaid insurance made up of blanket policies covering employees conducting operations for the plants in Alabama and Florida and blanket policies on inventories and property and equipment in Alabama and Florida does not militate against the inclusion thereof in the measure of the tax. Such items are intangibles and since the situs of them could not be and is not in Delaware, the appellant doing no business there, the facts alleged do not militate against the inclusion thereof in the measure of the franchise tax. The corporation has definitely established in Alabama a commercial domicile and no doubt the policies in question are all actually held by the corporation at its plant in Andalusia, Alabama, so that they have not only a legal situs in Andalusia but an actual situs. The Court is, therefore, of the opinion that said item of $54,252.16 is properly includable in the measure of the tax.
"The next item of office group insurance officers' life$2,700.38 is likewise intangible personal property and the legal if not the actual situs of it is Andalusia, Alabama. It is certain that the capital of the corporation to the extent there expressed is employed in this State as are the other insurance policies. The Court is, therefore, of the opinion that same is properly includable in the measure of the tax.
"The next item is that of office group insuranceofficers and supervisory$4,439.54. What has been said hereinabove with respect to the foregoing items applies with equal force to this particular item. It is, therefore, the opinion of the Court that said amount is properly includable in the measure of the tax.
"The next item of deferred bond issue expense$3,210.07certainly has direct relationship to the carrying on of the business of the corporation in Alabama and the fact that some of the money obtained as a result of the bond issue was used in Florida, does not militate against the inclusion thereof in the measure of the tax.
"The next item included under other assets is the deposit for purchase of airplane$1,000. The allegation with respect to this item is that the airplane is used in the operation of the plants in Florida and Alabama although the hangar and its home station is in Alabama. From this allegation it is presumed that the airplane has actually been delivered and same is in use although only $1,000 has been paid thereon. With this construction upon the allegations of the bill, the conclusion is inescapable that the situs of the airplane is Andalusia, Alabama. The Court is, therefore, of the opinion that the appellant correctly allocated same to the State of Alabama and that the Department correctly included same in the measure of the tax. Hence, the demurrer interposed by the appellee to this phase of the bill of complaint is well taken and should be sustained.
"Appellant insists and alleges that appellee, in fixing the actual amount of capital employed by appellant in Alabama on the basis of the aggregate value of the separate items of property owned by appellant and located in Alabama or considered *63 as having a legal situs in Alabama, violated Section 232 of the Constitution of Alabama 1901 and also Section 348, Title 51, Code of 1940, which measures the franchise tax imposed on foreign corporations by the actual amount of capital employed in Alabama and not by the fair market value of the capital employed.
"The Court cannot agree with such contention. While it is quite possible that the appellee, in assessing the franchise tax against the appellant, should have taken into consideration the over-all value of the plants located in Alabama, together with all the property incident thereto but, in doing so, the Court is of the opinion that the Department would have come up with a value of the plants as a going concern in excess of the value placed thereon by it. In other words, the Department of Revenue determined that the value of the property located in Alabama or having a legal situs here was of the value of $5,253,304.15. In arriving at this value no consideration whatsoever was apparently given to the fact that the appellant shows that the good will of the corporation was of the value of $135,000. Page 2 of the appellant's return, Section B, Item 6, Capital AssetsGood Will $135,000. Good will was held to be intangible property and includable in the measure of the tax in the following cases and authorities: People ex rel. A. J. Johnson Co. v. Roberts, 159 N.Y. 70, 53 N.E. 685, 45 L.R.A. 126; 84 C.J.S., Taxation, § 194, p. 372 (which held that good will is includable in the measure of the tax as part of the capital of the corporation); 51 Am. Jur., Sections 865-867, pages 772-774.
"Certainly, a going concern is more valuable than one that is not in operation or has been dissolved or is in bankruptcy which is but to say that the unitary system, although it be confined entirely to the State of Alabama, has a greater value than its separate parts. Commonwealth v. Columbia Gas & Elec. Corp., 336 Pa. 209, 8 A.2d 404, 131 A.L.R. 933, 935 and Annotation thereto; Southern R. Co. v. Greene, 160 Ala. 396, 49 So. 404, 407; Kansas City, Memphis & Birmingham R. Co. v. Stiles, 192 Ala. 687, 68 So. 1018, affirmed by the Supreme Court of the United States 242 U.S. 111, 37 S. Ct. 58, 61 L. Ed. 176. Furthermore, in the case of State v. Travelers Ins. Co., 256 Ala. 61, 53 So. 2d 745, 749, the Supreme Court of this State in the last case before it dealing with franchise tax, stated that certain items are to be included in the measure of the tax. We quote:
Then the Court sets out various items which have heretofore been held to be includable in the measure of the tax such as the value of the plant, property employed in the office, nitrate of soda, the sum represented by one-half (one-twelfth) of the total annal rent for buildings, bills receivable which arose from the corporation's Alabama operations; real estate, plant and equipment used by taxpayer and sums expended in erecting the plant. Then the Court further remarked:
"It appears that the appellant also questions the use by the Department of Revenue of the fair and reasonable market value in determining the measuring rod to be applied in determining the franchise tax. The Supreme Court put that contention to rest in the case of State v. Jackson Securities & Investment Co., 243 Ala. 83, 8 So. 2d 573, 574, wherein Justice Livingston, now Chief Justice, held that the reasonable and fair market value of the assets of the corporation should be included in the *64 measure of the tax. He stated as follows:
"The Court is, therefore, of the opinion that the demurrer interposed to the above two phases of the bill of complaint is well taken and should be sustained."
As stated supra, the decree sustained the demurrers to the bill as a whole and to each aspect of the bill.
The appellant agrees in brief that the demurrers to that aspect which sought to make Joe M. Edwards, as Commissioner of Revenue, and the State Department of Revenue parties to the suit were properly sustained.
On an appeal by the taxpayer from an assessment made and entered by the Department of Revenue, as here, the assessment is prima facie correct and the burden is on the taxpayer to show that the total sum of employed capital, the basis on which the tax is computed, is erroneous. Code of 1940, Title 51, § 140; State v. Pullman-Standard Car Mfg. Co., 235 Ala. 493, 179 So. 541, 117 A.L.R. 498. Taking the allegations of the bill as true, "but construing them most strongly against the pleader, as must be done on demurrer, we are not of opinion that they meet and overcome the prima facie statutory presumption of the legality and correctness of the assessment and, therefore, the circuit court did not err in sustaining the demurrer[s]." Paramount-Richards Theaters v. State, 252 Ala. 54, 39 So. 2d 380, 384.
Affirmed.
LAWSON, SIMPSON, STAKELY and GOODWYN, JJ., concur. | September 15, 1955 |
cd384f67-3c32-4a70-b979-d9cfc1c44953 | City of Bay Minette v. QUINELY | 82 So. 2d 192 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 192 (1955)
CITY OF BAY MINETTE
v.
David M. QUINLEY.
1 Div. 634.
Supreme Court of Alabama.
August 18, 1955.
*193 J. B. Blackburn, Bay Minette, for appellant.
Telfair J. Mashburn, Jr., Bay Minette, for appellee.
STAKELY, Justice.
This is a suit by David M. Quinley to recover damages against the City of Bay Minette, a municipal corporation, for injuries alleged to have been sustained by him in falling on the stairs leading to the offices of the Police Department of the city. The question for decision is whether the city in maintaining its police station was acting in the performance of its governmental functions or in its corporate capacity.
The complaint consists of Counts A, B, C, D and E and in each of these counts there is the following averment:
"On towit: the 9th day of December, 1953, the defendant was a Municipal Corporation, and maintained offices for its Police Department, and a Recreation Room for its employees, on the second floor of a building, belonging to the Water Works and Gas Board of the Town of Bay Minette, on the East side of Hand Avenue, next door to the Baldwin County Jail in the Town of Bay Minette; that on the date aforesaid, at about 9:00 o'clock in the morning, the plaintiff went to the office of the Police Department of the City of Bay Minette, to obtain a blank form on which to report an accident to the State Highway Patrol; that when he started down the steps from the second floor on which was situated the office of the Police Department of the City of Bay Minette and the Recreation Room as aforesaid, his foot slipped; that there was no guardrail or handrail on said steps and, as a proximate consequence, plaintiff fell to the bottom of said steps."
The demurrer to each of the counts points out that the allegation shows on its face that the municipal corporation was engaged in doing a governmental act or performing a governmental function at the time and place of plaintiff's alleged injuries. Demurrer was overruled.
It is established in this state that a municipal corporation is liable for injuries caused by the wrongful or negligent performance of its corporate or ministerial duties and it is equally established that a municipal corporation is not liable for injuries caused by the wrongful or negligent performance *194 of its governmental functions. Densmore v. City of Birmingham, 223 Ala. 210, 135 So. 320.
In City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542, in referring to what is now § 502, Title 37, Code of 1940, it was said: "That section provides that: `No city or town shall be liable for damages for injury done to or wrong suffered by any person * * * unless,' inter alia, `the said injury or wrong was done or suffered through the neglect, carelessness, or failure to remedy some defect in the streets, alleys, public ways, or buildings after,' etc. We find no reason for supposing that so much of this section as we have quoted changes the previously prevailing law in respect to cases falling within its purview. * * *" See McSheridan v. City of Talladega, 243 Ala. 162, 8 So. 2d 831. And in McCarter v. City of Florence, 216 Ala. 72, 112 So. 335, it was shown that the foregoing statute, if making any change in the law at the time of its enactment, was intended to lessen or limit liability.
In McSheridan v. City of Talladega, supra, it was pointed out that the underlying test to determine whether the act is a corporate act or an act in the exercise of a governmental function, is whether the act performed is for the common good of all or whether it is for the special benefit or profit of the corporate entity. It would be well to consider further the difference between corporate or ministerial duties and what is meant by governmental functions. "One is of that kind which arises from the grant of a special power, in the exercise of which the municipality is as a legal individual; the other is of that kind which arises, or is implied, from the use of political rights under the general law, in the exercise of which it is as a sovereign. The former power is private, and is used for private purposes; the latter is public and is used for public purposes. * * * The former is not held by the municipality as one of the political divisions of the State; the latter is. In the exercise of the former power, and under the duty to the public which the acceptance and use of the power involves, a municipality is like a private corporation, and is liable for a failure to use its power well, or for an injury caused by using it badly. But where the power is intrusted to it as one of the political divisions of the State, and is conferred not for the immediate benefit of the municipality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for nonuser, nor for misuser by the public agents. * * *." Maxmillian v. Mayor, 62 N.Y. 160, 20 Am.Rep. 468; Robbins v. City of Sheffield, 237 Ala. 674, 188 So. 874; City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771.
In the present case the alleged negligence of the city lay in its failure to provide an adequate stairway to the offices of the police department of the city by reason of the absence of a guardrail or handrail in connection with the steps. So the question recurs as to whether the city in providing for and maintaining offices for its police department, was acting in a corporate capacity or in the discharge of a governmental function.
We are not able to find many decisions which touch on the actual situation here involved. In Hillman v. City of Anniston, 214 Ala. 522, 108 So. 539, 46 A.L.R. 89, it was held that the city could not be made responsible for injuries where a convict was injured by his guard, a police officer. There are other authorities to this effect. But here there is presented a duty of the municipal corporation with reference to the maintenance of a building devoted to the public purpose as an office for its police department. Section 502, Title 37, Code of 1940, to which we have referred, provides for the recovery of damages for failure "to remedy some defect in the streets, alleys, public ways, or buildings" under the circumstances set forth in the statute. It is clear that if the building is being used in a corporate capacity there could be a liability. But what is the nature of the use in the present instance? It seems to us that upon principle and from the authorities which we have been able to find, the city *195 was engaged in a discharge of a governmental function in maintaining offices for its police department. In 63 C.J.S., Municipal Corporations, § 903, p. 308, it is stated that, "Ordinarily a municipal corporation is not liable for the negligent maintenance or operation of police or fire stations * * *."
In Long v. City of Birmingham, 161 Ala. 427, 49 So. 881, 18 Ann.Cas. 507, this court held that the maintenance of the fire department of a municipal corporation was a governmental function. In Day v. City of Berlin, 1 Cir., 157 F.2d 323, the action was against a municipal corporation by one who was injured in a fall down a flight of steps in the defendant's city hall. It was held that the defendant was engaged in the performance of a public governmental undertaking and was exercising a governmental function and was immune from liability.
In the case of Wilcox v. City of Rochester, 190 N.Y. 137, 82 N.E. 1119, 1120, 17 L.R.A.,N.S., 741, a person engaged in repairing a police station building was injured by walking into an open door of an elevator shaft in the building. On appeal the judgment of the lower court was reversed, the court holding in substance that a city exercises a governmental function in maintaining a police station used in part as a jail for prisoners as well as in part for the accommodation of its police force and, accordingly, was immune from liability. In Wilcox v. City of Rochester, supra, the question was asked, "What powers and duties are there which can be conferred and imposed upon a municipality that more clearly constitute a function of general government than the power and duty to maintain a police force and provide suitable buildings for its occupation and use?" The court in Wilcox v. City of Rochester, supra, reasoned that the safe and proper maintenance of a police station building is an appropriate and necessary element in the maintenance of a police force and since it is, it necessarily follows that in maintaining a police station the city is acting in the exercise of a governmental function.
In view of the authorities to which we have referred, we consider that it is the better view that in maintaining its offices for its police department, the City of Bay Minette was engaged in the performance of a governmental function and accordingly could not be held liable for a defect in the steps used in connection therewith. It results that the court was in error in overruling the demurrer to the various counts of the complaint upon the ground to which we have referred.
Since the foregoing is our conclusion it is not necessary that other points in the case be considered. It results that the judgment of the lower court must be reversed and the cause remanded.
Reversed and remanded.
LAWSON, SIMPSON, GOODWYN and MERRILL, JJ., concur. | August 18, 1955 |
38082ce3-09df-41c4-989d-3832cf11ff38 | Smith v. Bryant | 82 So. 2d 411 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 411 (1955)
Nell Carnes SMITH
v.
Sybil C. BRYANT.
7 Div. 278.
Supreme Court of Alabama.
September 15, 1955.
*412 Roy D. McCord and Rowan S. Bone, Gadsden, for appellant.
E. G. Pilcher, Jack Floyd and Jas. C. Stivender, Jr., Gadsden, for appellee.
STAKELY, Justice.
This is a case involving certain procedural questions in connection with a contest of a will, in equity, under § 64, Title 61, Code of 1940.
Emmitt Carnes died on August 25, 1953, in Etowah County, Alabama. He executed an alleged will on March 9, 1953, while he was in a hospital in New Orleans, Louisiana. He left surviving him his wife, who is now Nell Carnes Smith (appellant), and a daughter Sybil C. Bryant (appellee).
The will was duly and legally probated in the Probate Court of Etowah County, Alabama, on the 17th day of September, 1953. The contest of the will was filed in the Circuit Court of Etowah County, in Equity, by Sybil C. Bryant, the daughter of the testator, who had not contested the will in the probate court. The jury returned the following verdict: "We, the jury, find the issues in favor of Sybil C. Bryant."
A number of incidents on which are based assignments of error occurred during the trial of the case. These incidents are assigned separately as error but we think we can consider them here together. The trial of the case took the following course. Opening statements were made to the jury and the court called for the first witness. The respondent (appellant here) made no move to call her witnesses. Without objection Sybil C. Bryant (appellee here) took the stand, and without objection placed the entire probate file containing the will and the order of the probate court showing its probate in evidence. The probate file contained the petition of Nell Carnes to probate the will and the waiver of the notice *413 to probate the will signed by Sybil C. Bryant. Included in such waiver were the following words: "* * * and the undersigned hereby consents that instrument may be immediately admitted to probate and record as the last will and testament of Emmitt Carnes, deceased."
Without objection the complainant introduced further evidence contesting the will, including testimony of the two attesting witnesses to the will, after which the complainant rested her case. The respondent then placed all of her witnesses on the stand and rested. The respondent then made the opening and closing arguments to the jury.
Dr. Homer Dale Kirgis testified that he performed a brain operation on Emmitt Carnes in New Orleans about the 9th day of March 1953 and that at the time the deceased signed the will he was mentally incompetent in the opinion of the witness. This witness testified that the deceased was suffering from a cancer on the brain and that a portion of his brain was removed.
After the testimony of Dr. Kirgis and before the testimony of the attesting witnesses was given, the respondent made a motion to designate herself as plaintiff in the case and Sybil C. Bryant as defendant. The court overruled this motion and this action of the court is assigned as error. After the testimony of Dr. Kirgis, the appellant also moved the court to dismiss the cause, the ground of the motion being that the complainant had offered in evidence during the trial the court file and proceedings in the Probate Court of Etowah County, including the decree of the court adjudging Emmitt Carnes to be of sound mind at the time he executed the will involved in this cause. Assignment of error is also based on the refusal of the court upon the motion of respondent to enter a mistrial immediately after the complainant rested her case and before the respondent introduced her evidence.
I. It appears to be the position of appellant that the case was tried backwards and that her substantial rights were affected by the foregoing rulings of the court. We do not agree with this position.
It is true that the statute, § 52, Title 61, Code of 1940, provides that upon trial of a contest of a will in the probate court the issues must be made up under the direction of the court between the person making the application, as plaintiff, and the person contesting the validity of the will, as defendant. When the case is transferred to the circuit court as provided in § 63, Title 61, Code of 1940, it is provided that the issues must be made up in the circuit court as if the trial were had in the probate court and then trial had in all other respects as trials in other civil cases in the circuit court. But in § 64, Title 61, Code of 1940, where there is the contest of a will in the equity court under the provisions of § 64, there is no requirement in the statute as to who shall be designated as plaintiff and who shall be designated as defendant. This difference in the foregoing statutes is referred to in Crawford v. Walter, 202 Ala. 235, 80 So. 73. However, in McCutchen v. Loggins, 109 Ala. 457, 19 So. 810, it was shown that when the probate of a will is contested in the chancery court under § 2000 (now § 64, Title 61, Code of 1940), those who claim under the probated will must show affirmatively its validity and become the actors. And further that the burden is upon the respondents to affirm and maintain the validity of the probated will and further that the complainants have no standing in the chancery court except as contestants.
In Copeland's Ex'r v. Copeland's Heirs, 32 Ala. 512, there was a bill in equity to set aside the probate of a will on the ground of mental incapacity, fraud and undue influence. Among other things the court said:
See also Mathews v. Forniss, 91 Ala. 157, 8 So. 661.
We call attention to the fact that in the present case the complainant in the original bill of complaint alleged that "the purported will was on the 17th day of September, 1953, probated in the Probate Court of Etowah County, Alabama, and that the said Sybil C. Bryant did not contest the said will when the same was offered for probate in the Probate Court of Etowah County, Alabama. We also call attention to the fact that the allegations here quoted from the bill were expressly admitted as true by the answer of the respondent.
While we have seen no statement by this court as to the exact manner in which trials should be had under the provisions of § 64, Title 61, Code of 1940, providing for a will contest in the equity court, we would say that the respondent, who is in effect the proponent, should first introduce the proceedings in the probate court, that is the petition to probate the will, the order fixing the time for hearing and giving notice, testimony of the attesting witnesses and proof of will, the decree admitting the will to probate and the will itself. Section 44, Title 61, Code of 1940, provides in effect that a will which has been admitted to probate must be received without further proof. The complainant, who is in effect the contestant, should then introduce testimony on which the alleged invalidity of the will is based. The respondent should then introduce the rebuttal testimony, if any. The respondent should then make the opening argument to the jury, the complainant should then make the argument for complainant and the respondent should have the closing argument.
We base our ideas as to the order of procedure after a study of our cases and in this connection refer also to statements contained in 57 Am.Jur. § 925, p. 608.
It is true that the order of the trial which we have outlined was not followed exactly in the case at bar. However, a number of reasons cause us to consider that the errors, if any, in the rulings of the court to which we shall refer, do not constitute reversible error.
In the equity court we are interested in substantive justice rather than in the mere technicalities of procedure, Segall v. Loeb, 218 Ala. 433, 118 So. 633; 19 Am. Jur. §§ 459-460, pp. 317-318, and the issues made by the pleadings in the case, should be a guide to the litigants. Furthermore it is a settled principle that neglect to take advantage of rights at the proper time will be regarded as a waiver of such rights. Collins v. State, 22 Ala.App. 323, 118 So. 264, certiorari denied 218 Ala. 250, 118 So. 265.
In the case at bar the respondent made no objection to the introduction of the complainant's evidence until a substantial part of the complainant's evidence had been introduced. The objection to the procedure, therefore, came too late. Furthermore under the express allegations of the bill it was necessary to show the probate of the will in the probate court because the probate of the will in the probate court is essential to the jurisdiction of the equity court. Wachter v. Davis, 215 Ala. 659, 111 So. 917. Certainly where the bill alleges the probate of the will in the probate court and the probate of such will is essential to the jurisdiction of the equity court, we will not say that it was error for the court to allow proof of the probate of the will under the circumstances in this case. Wachter v. Davis, supra.
It is argued however that the proof of the file in the probate court showed a signed statement by the complainant that she consented that the instrument be immediately admitted to probate and recorded as the last will and testament of Emmitt Carnes, deceased. It is contended that by reason of the fact that she introduced this evidence in the probate court, she cannot now impeach her own statement in the equity court. This view overlooks the *415 important purposes of § 64, Title 61, Code of 1940.
The origin, history and purpose of § 64, Title 61, Code of 1940, are discussed in Knox v. Paull, 95 Ala. 505, 11 So. 156. In that authority it is shown that the statute was enacted in order to give additional opportunity to contest the validity of a will which has been admitted to probate in the probate court. The idea is that applications to prove the will in the probate court usually follow close upon the death of the testator and the application for probate in the probate court comes on for hearing on short notice. It therefore frequently happens that persons interested in the proceedings are wholly unable to inform themselves as to the instrument offered for probate or the circumstances attending its execution. Facts affecting the validity of the will may be developed afterwards and the failure to discover them or to obtain evidence to prove them, may have been without the fault or any lack of diligence on the part of those interested in making the contest. Section 64 and its predecessors were, therefore, enacted so as to allow a reasonable time after a formal and regular probate for a contest of the validity of the will by all who did not make a contest in the probate court. The statute is not one of limitation but creates a new, substantive and independent right which may be exercised within the time prescribed. Kaplan v. Coleman, 180 Ala. 267, 60 So. 885.
We, therefore, do not think that the statement made in the probate of the will in the probate court should be so binding as to preclude proof by such declarant in the equity court of the facts in the case. Any statement theretofore made by the complainant in the case at bar in the probate court is not so binding upon her as to preclude her contest of the will in the equity court. Kaplan v. Coleman, supra.
As stated at the outset we do not consider that the various rulings to which we have referred were prejudicial to the appellant. They do not constitute reversible error. Authorities supra; Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.
II. It is argued that the court was in error in overruling the demurrer of the respondent to the bill of complaint. Attention is called to paragraphs G and H of the bill. The demurrer however was only a general demurrer directed to the equity of the bill. Without question the bill contains equity and unless amendable defects are duly objected to and pointed out with reasonable certainty, they will not be considered. Whiteman v. Taber, 203 Ala. 496, 83 So. 595. There was no error in this ruling of the court.
III. It is claimed that the court committed reversible error in failing or refusing to let Nell Carnes Smith answer questions propounded to her which sought to point out the fact that Emmitt Carnes himself drove his automobile with his wife in it from Gadsden, Alabama, to New Orleans, Louisiana, a day or two before the cancer was taken out of his brain. It is sufficient to say that these questions had been previously asked and answered without objection. The assignments of error are therefore based on a ruling of the court where the questions were repetitious.
We have examined other assignments of error but find no merit in them.
The judgment of the lower court is accordingly due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | September 15, 1955 |
72ee6ee7-8b24-4244-b687-cd4fb521388d | Barran v. Roden | 82 So. 2d 398 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 398 (1955)
Emmette L. BARRAN et al., d/b/a White Way Pure Milk Co.
v.
Jerry RODEN.
8 Div. 730.
Supreme Court of Alabama.
September 15, 1955.
Peach, Caddell & Shanks, Decatur, and Marion F. Lusk, Guntersville, for appellants.
Starnes & Starnes, Guntersville, and Beddow & Jones, Birmingham, for appellee.
LIVINGSTON, Chief Justice.
This is an appeal taken by complainants from a decree in equity sustaining a demurrer to an alleged aspect of the bill, but overruling the demurrer to the bill as a whole and to the other aspects of it.
An appeal will lie under Sec. 755, Title 7, Code of 1940, by complainants to review a decree sustaining a demurrer to an aspect of a bill in equity. Steele v. Freeman, 250 Ala. 336, 34 So. 2d 139; American Life Ins. Co. v. Powell, 260 Ala. 574, 71 So. 2d 872. This is not in conflict with McCary v. Davis, 257 Ala. 456, 59 So. 2d 569.
Appellee moved to dismiss the appeal because of certain proceedings had after the decree on the demurrer and before the appeal was taken. Those proceedings were had on July 8, 1953, the day on which said *399 decree was rendered. Appellee filed a full and complete answer to the bill which was not included in the transcript certified by the clerk, and, thereupon, on the same day, complainants proceeded to a hearing of said cause on testimony taken ore tenus and documentary evidence, and respondent offered evidence, all duly transcribed by the court reporter, when the cause was submitted, and upon said submission a decree was rendered. All of those proceedings are set out in the motion, but are not in the certified transcript. On that submission, the court merely made an order for a temporary injunction enjoining respondent with respect to the use of a certain storehouse, pending the further orders of the court, and denied temporary injunctive relief in other respects. No further proceedings are alleged to have occurred until August 6, 1953, when the appeal bond was approved. Thereupon, complainants filed an instrument entitled a "plea in Suspension," in which they prayed that further proceedings be suspended pending the decision of this court on said appeal. It is not alleged that the court made and entered an order on said prayer.
But nothing has been done in the cause since the appeal was taken so far as the motion shows. Appellee, therefore, expresses the opinion and belief that appellants waived their right to appeal from the decree on the demurrer, for that they should have appealed from such decree, if at all, "before proceeding further in said cause and waives his right to take such interlocutory appeal by proceeding further in the cause."
The theory on which that contention is made is in two aspects. One is where the appellant proceeds in the trial court after the appeal is taken. and the other is where he proceeds in that court after the decree and before the appeal is taken. But they both are controlled by the same reasoning. If further proceedings after the appeal would be an abandonment of the appeal, those same proceedings taken after the decree but before the appeal was taken would be an abandonment of the right to take an appeal later. The rule is stated to be that after an appeal is taken, the lower court "may proceed in matters which are entirely collateral to that part of the case which is taken up (by the appeal) but it can do nothing in respect to any matter or question which is involved in the appeal, and which may be adjudged by the appellate court." This is a limitation on the rule that after an appeal is taken the trial court cannot, pending that appeal, pass upon any matter involved on the appeal. Francis v. Scott, 260 Ala. 590, 72 So. 2d 93; Gibson v. Edwards, 245 Ala. 334, 16 So. 2d 865, and cases cited in them.
As to those matters which are entirely collateral to the questions involved on appeal, the court and parties are free to proceed notwithstanding the appeal if taken, or without affecting the right to appeal if not then taken. 4 C.J.S., Appeal and Error, § 212(e), p. 401.
A temporary injunction operative to preserve a status pending an appeal is not unusual. Browning v. Wesco Co., 218 Ala. 544, 119 So. 660. An order is frequently made pending an appeal for the payment of temporary alimony in an exercise of discretion by the court. Ex parte Spafford, 199 Ala. 309, 74 So. 358.
Appellee's showing for a dismissal of the appeal is not sufficient to meet the requirements of the principle, and it is overruled.
The assignments of error relate to a decree sustaining the demurrer to an alleged aspect of the bill. The demurrer was addressed to the bill as a whole, and separately to various alleged aspects of it. The bill, briefly speaking, was by a tenant who had leased from respondent, for a period of five years, a concrete block building situated on the south side of Mill Street in Boaz, and, who, for a like period, had leased from respondent two pak-ice machines, one located in a building at Attalla, and one located in the building on Mill Street at Boaz. Complainants had removed one pak-ice machine from Attalla to its *400 new building at Boaz; and according to the allegations of the bill:
The prayer contains the following:
The demurrer was sustained to the alleged aspect set out in the prayer above and marked (1) for identification.
The question on this appeal is not the sufficiency of the bill as a whole; so that presumptively we have a good bill free from demurrer as a whole, with what is claimed to be a prayer for unwarranted relief (coupled with an appropriate prayer for relief). The bill is not demurrable on that account. Endsley v. Darring, 249 Ala. 381(5), 31 So. 2d 317; Wilks v. Wilks, 176 Ala. 151, 57 So. 776; Zimmern v. Williams, 190 Ala. 442, 67 So. 277; McDowell v. Herren, 219 Ala. 370(4), 122 So. 336. "If under the averments of the bill complainant is entitled to relief of the character prayed, the court under the general prayer will mold the relief to meet the equities as they appear." Wood v. Cantrell, 224 Ala. 294, 140 So. 345, 346; Zimmern v. Williams, supra. We think that legal status obtains here. The demurrer should have been overruled. It relates only to an alternative feature of the prayer. For the purposes of this demurrer, we assume that there are sufficient allegations to entitle complainants to relief of the character otherwise specially prayed for. Therefore, the court will mold the relief under the general prayer to meet the equities developed on the trial. While the trial court should have overruled the demurrer to that feature of the prayer referred to, it was not prejudicial to sustain it. The complainant could obtain such relief on his general prayer if he shows an equitable right to it. Error must be prejudicial to be reversible. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.
It follows that the decree should not be reversed, but should be affirmed.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur in the result. | September 15, 1955 |
def57185-7be0-4d7f-9202-e0ba812f5353 | Wood v. Wood | 82 So. 2d 556 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 556 (1955)
Howard William WOOD
v.
Katherine P. WOOD.
8 Div. 801.
Supreme Court of Alabama.
September 22, 1955.
Harold T. Pounders, Florence, for appellant.
Orlan B. Hill, Florence, for appellee.
GOODWYN, Justice.
Appellee filed a bill of complaint in the circuit court of Lauderdale County, in equity, against appellant seeking a divorce *557 a vinculo matrimonii on the grounds of cruelty and also praying that the legal title to certain land, household furnishings and appliances, towards the purchase of which appellee had paid her individual funds, be divested out of appellant and vested in appellee. The bill also seeks alimony and solicitor's fees. Appellee answered the bill, denying most of its material averments and making his answer a crossbill. By the cross-bill he seeks a divorce from appellee on the ground of adultery.
This appeal is from the final decree granting a divorce to appellee and divesting out of appellant and vesting in appellee the title to said property, the decree providing that the property "is vested in complainant both in response to prayer to that effect in the bill of complaint and in response to general claims for alimony", subject to existing encumbrances.
Appellee makes the point that appellant's brief does not comply with Rule 9, Revised Rules of the Supreme Court, effective June 1, 1955, 261 Ala., Preface, pp. XIX, XXII, and for this reason should be affirmed. Rule 9 supersedes preexisting Rule 10, Code 1940, Title 7, Appendix, p. 1008. This rule, both old and new, among others, was adopted in aid of this court's consideration of errors relied on by the appellant for reversal. With respect to old Rules 10 and 11, prescribing the manner of preparing appellant's and appellee's briefs, we have said that they "were designed to serve useful and practical purposes, to enable this court to determine from the briefs of counsel whether there was error in proceedings in the court below, without making it necessary to explore the entire record." Schmale v. Bolte, 255 Ala. 115, 117, 50 So. 2d 262; Stanley v. Beck, 242 Ala. 574, 577, 7 So. 2d 276; New York Life Ins. Co. v. Mason, 236 Ala. 44, 49, 180 So. 775, at page 780. Patently present Rule 9 is designed for the same purpose.
It seems to us that the rules prescribing the manner of preparing briefs are clearly stated and that there should be no difficulty in complying with them. Although appellant's brief is not in strict compliance with the rules we are inclined to exercise our discretion in the matter and give consideration to it. Schmale v. Bolte, supra; Simmons v. Cochran, 252 Ala. 461, 463, 41 So. 2d 579; Guy v. Lancaster, 250 Ala. 287, 290, 34 So. 2d 499; Brothers v. Brothers, 208 Ala. 258, 259, 94 So. 175.
There appears to be no question as to the propriety of the wife seeking, in her bill for divorce a vinculo, to have the court divest the legal title to the property out of the husband and vest it in her. O'Bannon v. O'Bannon, 257 Ala. 246, 249, 58 So. 2d 779; Speegle v. Speegle, 251 Ala. 525, 526, 38 So. 2d 339; Roberts v. Roberts, 247 Ala. 302, 303, 24 So. 2d 136; Coffey v. Cross, 185 Ala. 86, 93, 64 So. 95; Singer v. Singer, 165 Ala. 144, 149, 51 So. 755, 29 L.R.A.,N.S., 819, 138 Am.St.Rep. 19, 21 Ann.Cas. 1102.
It is thus stated in O'Bannon v. O'Bannon, supra [257 Ala. 246, 58 So.2d 782]:
From Singer v. Singer, supra [165 Ala 144, 51 So. 757] is the following:
All of the evidence was taken orally before the trial judge. When that is the case, and the evidence is in conflict, the established rule, now so well-entrenched as to be axiomatic, is that his judgment will not be disturbed on appeal unless palpably wrong; his findings from the evidence being likened unto the verdict of a jury. Sills v. Sills, 246 Ala. 165, 169, 19 So. 2d 521; Cairnes v. Cairnes, 211 Ala. 342, 343, 100 So. 317.
We have carefully considered the evidence and find that it is in conflict, both as to the charge of cruelty and as to the amounts paid by the wife towards the purchase of the property. We find no basis in the evidence for disturbing the trial court's decree. There is ample evidence to support it. With respect to the property, it is to be noted that the wife has worked continuously since her marriage to appellant in 1934, and thus has had her own separate funds to contribute to the purchase of the property, as she testified she did. The evidence shows that her pay approximated $40 a week while the husband's pay, until his injury about a year before the rendering of the decree, approximated $450 per month. There are no children involved and no allowance was awarded the wife out of the husband's future earnings or income. The award of the property to the wife was in gross and was in response both to the prayer to that effect in the bill, based on the allegation that her earnings had been "devoted largely towards the payment of the properties", and to the claim for alimony.
There is no objection, in a proper case, to making an allowance of alimony in gross. Under the alimony statute, Code 1940, Title 34, Section 31, the allowance to the wife may be made in gross, payable presently or in the future, or may be made payable in installments, or it may be a combination of both methods. Roubicek v. Roubicek, 246 Ala. 442, 449, 21 So. 2d 244. The real estate was shown to have a value of $5,000 to $6,000, against which there is an existing mortgage of about $2,000, and the household furnishings and appliances to have a value of about $2,000. We cannot say that this award in gross, under all of the circumstances of the case, was excessive.
The decree is due to be, and is, affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MAYFIELD, JJ., concur. | September 22, 1955 |
b09c004a-f6bf-4cdd-bb5b-708e01bb2e4b | Henslee v. Henslee | 82 So. 2d 222 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 222 (1955)
Lola HENSLEE
v.
Lester C. HENSLEE et al.
6 Div. 480.
Supreme Court of Alabama.
August 18, 1955.
*223 Finis E. St. John and H. A. Entrekin, Cullman, for appellant.
John H. Chapman and A. L. Sapp, Cullman, for appellees.
GOODWYN, Justice.
This is a suit in equity seeking to have eighty acres of farm land located in Cullman County sold for division among the heirs at law of Mrs. Edna E. Henslee. All of the parties to the suit are children or grandchildren of Edna E. and J. C. Henslee, with the exception of Lola Henslee, joined as a party-respondent, who claims an interest in the property as the second wife and widow of J. C. Henslee. The bill of complaint also seeks a declaration that Lola Henslee has no such right, title, or interest in the property.
The respondent Lola Henslee answered the bill, praying that her answer be considered in the nature of a cross-bill, and denying that Edna E. Henslee was seized *224 of the suit property at her death. She alleges that title to the land was vested in her husband, J. C. Henslee, at his death, and prays that the property be sold for division subject to her homestead and dower interests.
The court below entered a final decree granting the relief prayed for in the bill of complaint and dismissing the cross-bill. From this decree Lola Henslee takes this appeal.
In September, 1928, Edna E. and J. C. Henslee lived with their children on the farm which is the subject of this suit. The record title to the property rested in J. C. Henslee, who, under date of September 1, 1928, executed a deed purporting to convey it to Edna and reciting as a consideration therefor, "$1.00 Love and Affection, & for the purpose of correcting a former deed, & in lieu of all my indebtedness to my wife."
It appears from the evidence that this deed was first acknowledged by the grantor before John W. Nuss, a Justice of the Peace of Cullman County, on September 15, 1928. The grantee, Edna Henslee, was present when the acknowledgment was taken.
On the same date, September 15, 1928, Edna Henslee made a deed purporting to reconvey the same property back to her husband, J. C. Henslee. This deed was acknowledged on that date before Adolphus L. Sapp, a notary public of Cullman County. The grantee, J. C. Henslee, was not present when the acknowledgment was taken.
Two days later, on September 17, 1928, the deed from J. C. to Edna was reacknowledged before S. J. Griffin, Judge of Probate of Cullman County, and, on that date, was filed for record under that acknowledgment. This second certificate of acknowledgment was pasted over, and partially obscured, the first certificate of John W. Nuss.
In August, 1930, Edna died intestate. J. C. continued to live on the place after his wife's death, and in 1932 married the respondent (appellant) Lola Henslee. On March 29, 1932, J. C., some months prior to his marriage to Lola, recorded Edna's deed purporting to reconvey the property to him. The property remained in his possession until his death in February, 1949, and is now in the possession of his widow, Lola Henslee.
Since appellees' right to relief is grounded upon Edna Henslee's title to the property, the first issue which must be determined is whether there was a valid delivery of the deed from J. C. to Edna.
From Skipper v. Holloway, 191 Ala. 190, 192, 67 So. 991, is the following:
Appellant seeks to rebut the presumption arising from the recordation of the instrument under two theories.
First, it is contended that the acknowledgment of S. J. Griffin, dated September 17, 1928, which is pasted to the instrument over the previous acknowledgment of John W. Nuss, is false and fraudulent and therefore *225 void; that the deed having been recorded under a void acknowledgment, the effect is that there was no legal recordation of the instrument at all; and that it follows, therefore, that the presumption of delivery must fall.
The burden is on the party attacking an acknowledgment to show that it is insufficient under the law. Federal Land Bank of New Orleans v. Sutton, 248 Ala. 529, 534, 28 So. 2d 553; Carroll v. Carroll, 236 Ala. 556, 558, 183 So. 857; Loyd v. Oates, 143 Ala. 231, 233, 38 So. 1022, 111 Am.St.Rep. 39. The certificate of a notary is presumptively correct, and the evidence necessary to impeach it must be clear and convincing. Lukes v. Alabama Power Co., 257 Ala. 590, 593, 60 So. 2d 349. Appellant seeks to have the court find, by way of inference, that the Griffin certificate is false and fraudulent, or "spurious", from the evidence that the deed had been acknowledged two days previously before John W. Nuss, and from the irregular appearance of the deed in that the Griffin certificate is pasted over the Nuss certificate. This evidence, although sufficient perhaps to create a suspicion as to the motive of the grantor, does not satisfy the degree of proof required of one who attacks the validity of an acknowledgment. Bailey v. McQueen, 253 Ala. 464, 467, 45 So. 2d 295; Federal Land Bank of New Orleans v. Sutton, 248 Ala. 529, 534, 28 So. 2d 553; Fies & Sons v. Lowery, 226 Ala. 329, 332, 147 So. 136. In the case of Freeman v. Blount, 172 Ala. 655, 664, 55 So. 293, 296, this court declared:
It is next contended by appellant that the deed was executed and recorded, not for the purpose of conveying the property to the grantee, but for the purpose of deceiving the grantor's judgment creditor.
In this connection, appellant points to evidence that on May 22, 1928, one C. B. Pope, Jr., suing by his next friend, C. B. Pope, Sr., filed a damage suit against J. C. Henslee for $5,000. On September 1, 1928, J. C. signed the deed conveying the suit property and certain personal property to his wife, Edna. On September 12, 1928, a judgment by consent in the amount of $100 was taken against J. C. and on September 15, 1928, he acknowledged the deed before John W. Nuss, and on the same day Edna made and acknowledged the deed purporting to reconvey the same property back to him. Two days later J. C. reacknowledged his deed to Edna before S. J. Griffin, the Judge of Probate, and filed the same for record under the second acknowledgment.
While this evidence may be indicative of an intent on the part of J. C. to place his property beyond the reach of his creditors, it is nevertheless a well established principle that a deed made to defraud creditors, which is fully executed by delivery, though void as to existing creditors of the grantor at the time of execution, is valid as between the parties, and the grantor and those claiming merely in succession to him are estopped from denying its validity. Webb v. Webb, 260 Ala. 426, 432, 70 So. 2d 639; Stamey v. Fortner, 233 Ala. 133, 134, 170 So. 196; First Nat. Bank of Birmingham v. Love, 232 Ala. 327, 337, 167 So. 703; Perkins v. Perkins, 206 Ala. 571, 572, 91 So. 256; King v. King, 61 Ala. 479, 482. The rule is thus stated in Stamey v. Fortner, supra [233 Ala. 133, 170 So. 197]:
*226 The deed, if delivered, was delivered before any right of Lola Henslee, as second wife of the grantor, attached to the property. And, of course, since J. C., at the time of such delivery, was married to Edna it could not be said that the conveyance was intended as a fraud on Lola, who married J. C. some four years after the deed was executed and about two years after Edna's death. Therefore, Lola stands in no better position than the heirs or personal representatives of J. C. to question the validity of the deed on the ground that it was made in fraud of creditors. King v. King, supra; Code 1940, Tit. 34, § 40.
Applicable here is the following from Powell v. Powell, 217 Ala. 287, 288, 289, 116 So. 139, 140:
See, also, the following: Taylor v. O'Barr, 242 Ala. 302, 303, 6 So. 2d 414; East v. Karter, 225 Ala. 556, 557, 144 So. 26; Stacey v. Taliaferro, 224 Ala. 488, 491, 140 So. 748. We do not find anything in the evidence sufficient to overcome the prima facie presumption of delivery. Rather than showing no delivery, it seems to us that the evidence tends strongly to show that J. C. intended that the instrument operate to convey title to Edna. For instance, during the years 1929 and 1930 the land was assessed for taxes in Edna's name. In April, 1929, she contracted to rent the land to her son-in-law. And after her death in 1930, the deed was found among her private possessions.
The next question before us is whether the deed, signed and acknowledged by Edna, purporting to reconvey the land to J. C. was delivered to him subsequent to delivery of his deed to Edna, and before Edna's death.
There is testimony to the effect that the deed from Edna to J C. was found among Edna's private papers immediately after her death. In such situation "the burden of proof is on the grantee to show such words or acts as clearly indicate delivery." Alford v. Henderson, 237 Ala. 27, 29, 185 So. 368, 369; Adams v. Logan, 260 Ala. 346, 349, 70 So. 2d 786.
We do not find evidence tending to support appellant's contention that the deed from Edna to J. C. was delivered to the grantee during Edna's lifetime. The evidence appears to be to the contrary. In addition to the above-noted fact that the deed was found among Edna's possessions after her death, there are the circumstances, also noted above, that the land was assessed for taxes in Edna's name for the years 1929 and 1930 and that she contracted to rent the land to her son-inlaw Appellant can take no comfort in the fact that the deed was filed for record, since this was not done until two years after Edna's death. A deed not delivered during the lifetime of the grantor confers no title on the grantee. Strange v. King, 228 Ala. 511, 513, 154 So. 115. Hence, the recording of the deed after Edna's death raises no presumption of delivery of the deed to J. C.
It is insisted by appellant that the testimony of A. L. Sapp and Mrs. Alma Duke Henslee is incompetent because violative of the so-called "Dead Man's Statute", Code 1940, Tit. 7, § 433. Both testified to conversations they had with Edna bearing on the question of delivery of her deed to J. C. It is also insisted that Mr. Sapp was incompetent to testify with respect to his conversation with Edna because that conversation was a privileged communication *227 between attorney and client. We see no necessity of discussing these points in view of our conclusion hereinafter stated. We are clear to the conclusion, after a careful consideration of all the competent evidence, that appellant has not met the burden of proof on the question of delivery of the deed from Edna Henslee to J. C. Henslee during Edna's lifetime. Therefore, the holding of the trial court that Edna died vested of title to the land, and that Lola Henslee, as J. C.'s widow, has no homestead or dower rights therein, is due to be affirmed. It is so ordered.
Affirmed.
LAWSON, SIMPSON, STAKELY and MERRILL, JJ., concur. | August 18, 1955 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.