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616ddbb3-66f2-4b35-8f8c-fb7f2c1ce608 | Sullivan v. Davis | 83 So. 2d 434 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 434 (1955)
Malcolm Leo SULLIVAN
v.
Willie Mae DAVIS.
3 Div. 723.
Supreme Court of Alabama.
November 3, 1955.
Rehearing Denied November 28, 1955.
L. H. Walden and Rushton, Stakely & Johnston, Montgomery, for appellant.
Cates & Huddleston, Montgomery, for appellee.
MAYFIELD, Justice.
This is an appeal from a judgment in favor of the plaintiff-appellee, Willie Mae Davis, rendered by the circuit court of Montgomery County.
Plaintiff's action was brought against two defendants: Sullivan, the appellant, who was the driver of the automobile in which Willie Mae Davis, the appellee, was a passenger, and Boddie, who was the driver *435 of the automobile which collided with the appellant Sullivan's car. The first count of plaintiff's complaint charged negligence, and the second wantonness. The verdict of the jury was in favor of defendant Boddie and in favor of the plaintiff, but against the defendant Sullivan under the negligence count of the complaint.
The single issue presented by this appeal is whether or not the plaintiff was a guest in the automobile of the defendant Sullivan, at the time of the injury, within the meaning of the Code of 1940, Title 36, § 95. Appellant's position is that Willie Mae Davis was a guest within the meaning of the guest statute above, and that he was not, therefore, liable to her for simple negligence. The error with which the appellant charges the trial court was its refusal to give two written charges; the first being the affirmative charge for the defendant without hypothesis; and the second, a charge that under the facts adduced at the trial the plaintiff was a "guest".
There is virtually no conflict in the evidence concerning the plaintiff's status in defendant's automobile at the time of the accident. The plaintiff, a negro woman, is a practical nurse and had previously nursed the defendant Sullivan and members of his family. At the time of the accident, the defendant's wife was a patient in a Montgomery hospital. On the date of the accident the defendant Sullivan's daughter contacted the plaintiff and told her that the defendant's wife, Mrs. Sullivan, was in the hospital and asked that she come to the hospital so that they might have a family conference relative to obtaining the plaintiff's services to care for Mrs. Sullivan after she was discharged from the hospital. The plaintiff replied that she had no way to get to the hospital or back to her home. The defendant's daughter told the plaintiff that she would pick her up at her home and take her to the hospital, and that her father, the defendant, would take her home after the conference. The plaintiff agreed to these arrangements and went to the hospital to see Mrs. Sullivan. At the hospital, the plaintiff agreed with the defendant, Mr. Sullivan, that when his wife was taken home from the hospital the next day, the plaintiff would serve her at her home as a practical nurse. After this agreement was reached the plaintiff left the hospital for her home with the defendant, Mr. Sullivan, operating the automobile. While the defendant was returning the plaintiff to her home, his automobile was engaged in a collision with the automobile of Boddie. This accident was the basis of the present action. Title 36, § 95, Code of Alabama 1940, is as follows:
Our statute, and most similar enactments in other jurisdictions, do not define the term "guest". The definition of the pivotal term "guest" has largely been left to judicial construction. The so-called "guest statute" was designed to provide relief for drivers of automobiles who had extended their hospitality to passengers, and were then subjected to suit, under the common law, which held the driver responsible to his guests for a breach of duty to exercise ordinary care. Courts have generally held in determining who are "guests" within the meaning of such statute that they would not extend the influence of the statute beyond the evils which the legislature intended to correct. Blair v. Greene, 247 Ala. 104, 22 So. 2d 834; Arkansas Valley Co-op Rural Electric Co. v. Elkins, 200 Ark. 883, 141 S.W.2d 538; Russell v. Parlee, 115 Conn. 687, 163 A. 404; Thuente v. Hart Motors, 234 Iowa 1294, 15 N.W.2d 622; Smith v. Clute, 277 N.Y. 407, 14 N.E.2d 455; Johnson v. Smither, Tex.Civ.App., 116 S.W.2d 812.
*436 In construing our guest statute this court has previously given consideration to the meaning of the terms "guest" and "transported without payment therefor". Blair v. Greene, supra; Wagnon v. Patterson, 260 Ala. 297, 70 So. 2d 244. It is urged by both parties to this appeal that these cases are not fully determinative of the question at bar.
In 2 Restatement of Torts, 1273, Section 490 defines a "guest" as one carried gratuitously and who may not, therefore, recover under the guest statute for simple negligence, and a "passenger" as one transported for hire or reward. Wagnon v. Patterson, supra; Annotation, 10 A.L.R.2d 1351, 1353. Most courts pay lip service to these definitions, but seem to find great difficulty in applying them to the varied factual situations which require adjudication. The commercial and social relationships that can exist between the driver of an automobile and his passenger are almost as numerous and varied as human activity itself. At one extreme we have the "hitchhiker" guest who clearly falls within the purview of the statute. At the other extreme we have the passenger who pays the driver to be transported to a particular place and who is unquestionably beyond the scope of the statute. Between these two extremes the dividing line may at times become illusory and shadowy. It is sometimes necessary to enter into a detailed examination of the present and former relations between driver and passenger; implied and expressed arrangements made between them as to the conduct of the particular trip; the purpose of the mission; the benefits accruing to the driver and passenger from the expedition; and any other factors that bring into proper focus the true status of the parties at the time of the accident which give rise to the legal action.
A majority of this court concurred in that portion of the dissenting opinion of Livingston, J. [present Chief Justice], in Blair v. Greene [247 Ala. 104, 22 So. 2d 837], supra, in which he quoted, with approval, extracts from the decisions of other jurisdictions:
Additional support of the above propositions may be found in Russell v. Parlee, supra; Peery v. Mershon, 149 Fla. 351, 5 So. 2d 694; Leonard v. Stone, 313 Ill. App. 149, 39 N.E.2d 388; Knutson v. Lurie, 217 Iowa 192, 251 N.W. 147; Bailey v. Neale, 63 Ohio App. 62, 25 N.E.2d 310; Hoover v. Harris, 177 Tenn. 467, 151 S.W.2d 152. In Wagnon v. Patterson, supra, is the following statement [260 Ala. 297, 70 So.2d 249]:
To the same effect are the following cases: Bree v. Lamb, 120 Conn. 1, 178 A. 919; Sigel v. Gordon, 117 Conn. 271, 167 A. 719, Leonard v. Stone, supra; Thuente v. Hart Motors, supra; Monison v. McCoy, 266 Mich. 693, 256 N.W. 49; Smith v. Clute, supra; Hale v. Hale, 219 N.C. 191, 13 S.E.2d 221; Duncan v. Hutchinson, 139 Ohio St. 185, 39 N.E.2d 140; Smith v. Pacific Truck Express, 164 Or. 318, 100 P.2d 474; O'Hagan v. Byron, 153 Pa.Super. 372, 33 A.2d 779; Scotvold v. Scotvold, 68 S.D. 53, 298 N.W. 266; Chumley v. Anderton, 20 Tenn.App. 621, 103 S.W.2d 331; Henry v. Henson, Tex.Civ.App., 174 S.W.2d 270; Hart v. Hogan, 173 Wash. 598, 24 P.2d 99. Corpus Juris Secundum states the proposition as follows:
In Blair v. Greene, supra, this court quoted the following statement from Humphreys v. San Francisco Area Council, etc., Cal.App., 129 P.2d 118, with approval:
The above statement, however, must be considered together with the general rule that a mere incidental benefit to the driver is not sufficient to take the rider out of the guest statute. The benefit conferred must in some degree have induced the driver to extend the offer to the rider. Further, courts have generally held that the benefit must be material and tangible and must flow from the transportation provided. Druzanich v. Criley, 19 Cal. 2d 439, 122 P.2d 53; Bree v. Lamb, supra; Liberty Mut. Ins. Co. v. Stitzle, 220 Ind. 180, 41 N.E.2d 133; Thuente v. Hart Motors, supra; Srajer v. Schwartzman, 164 Kan. 241, 188 P.2d 971; Brody v. Harris, 308 Mich. 234, 13 N.W.2d 273, 155 A.L.R. 573; Nyberg v. Kirby, 65 Nev. 42, 188 P.2d 1006, 193 P.2d 850; Hale v. Hale, supra; Voelkl v. Latin, 58 Ohio App. 245, 16 N.E.2d 519; Melcher v. Adams, 174 Or. 75, 146 P.2d 354; Schiltz v. Picton, 66 S.D. 301, 282 N.W. 519; Henry v. Henson, supra; Iron v. Sauve, 27 Wash. 2d 562, 179 P.2d 327.
In the instant case the relationship between the defendant driver and the plaintiff passenger was clearly that of prospective employer and employee. There was no social relationship between the parties. It was the legal duty, as well as his pleasure, for the defendant to provide proper nursing care for his wife. The trip which resulted in the plaintiff's injury was undertaken by the defendant and his daughter to facilitate negotiations leading to the employment of the plaintiff as a practical nurse for defendant's sick wife. Under the circumstances of this particular case we cannot hold as a matter of law that no tangible benefit flowed to the defendant-appellant from the automobile trip, or that such benefit did not induce the defendant to transport plaintiff. Indeed, the evidence tends to indicate the contrary. It follows that the requested charges which are necessarily based on the converse premise were properly refused.
The judgment of the circuit court is due to be, and is hereby, affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | November 3, 1955 |
7f24574a-d960-488c-bbfd-5afa6051f83b | Bryson v. State | 84 So. 2d 785 | N/A | Alabama | Alabama Supreme Court | 84 So. 2d 785 (1955)
Ola Mae BRYSON
v.
STATE.
8 Div. 820.
Supreme Court of Alabama.
October 13, 1955.
Rehearing Denied February 2, 1956.
*786 Bradshaw, Barnett & Haltom, Florence, for petitioner.
John Patterson, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., opposed.
LAWSON, Justice.
Ola Mae Bryson was convicted in the circuit court of Lauderdale County of manslaughter in the first degree.
The judgment of conviction was affirmed by the Court of Appeals.
On July 15, 1955, during the Special Term, Ola Mae Bryson filed in this court her petition for writ of certiorari to review and revise the opinion and judgment of the Court of Appeals. The petition was accompanied by brief.
The Attorney General on August 2, 1955, filed brief in opposition to the petition for writ of certiorari.
Thereafter on August 4, 1955, the writ of certiorari was issued in compliance with an order of this court and the Clerk on the same day wrote counsel for Ola Mae Bryson and the Attorney General as follows:
Rule 39 of the Revised Rules of this court, in pertinent parts, reads:
On August 12, 1955, petitioner filed what is styled a reply brief but made no request for oral argument.
On August 25, 1955, during the Special Term, the cause was submitted on briefs, inasmuch as neither the petitioner nor the State requested oral argument in the manner and within the time prescribed in Rule 39, supra.
Following the adoption of Supreme Court Rule 45, Code 1940, Title 7, Appendix, substantial error is not presumed, but the burden is upon the appellant to show error, and before a reversal of the judgment is to be had it must appear to the appellate court that the error complained of has probably "injuriously affected substantial rights of the parties", to use the language of the rule. Kabase v. State, 244 Ala. 182, 12 So. 2d 766; Roubicek v. Roubicek, 246 Ala. 442, 21 So. 2d 244; Lakey v. State, 258 Ala. 116, 61 So. 2d 117.
The Court of Appeals applied the doctrine of error without injury in disposing of the insistence that the trial court erred in not granting the defendant's motion for a mistrial because Mr. Potts, one of the solicitors for the State, said: "We didn't know him, didn't know where he was or what his name was" after the court had made the statement: "When a witness is available to either side, you can't comment on it." The court's statement was by way of sustaining the following objection interposed by counsel for the defendant: "The defendant objects to the argument of the attorney [Mr. Potts] `Where is Dodie?', and move to exclude it on the ground that he is just as available to the State as to the defendant."
We have consistently refused to review the Court of Appeals in the application of that doctrine in the absence of a statement of all pertinent facts disclosed by the record. Birmingham Electric Co. v. Echols, 249 Ala. 589, 32 So. 2d 379; Campbell v. State, 216 Ala. 295, 112 So. 902; Grant v. State, 235 Ala. 663, 180 So. 333. We are unwilling to hold from the facts as set out in the opinion presently under review that the Court of Appeals erred in applying the doctrine of error without injury. Moreover, we are of the opinion that any injurious effect which the statement may have caused could have been eradicated by corrective action by the court, but the defendant did not request such action prior to making the motion to declare a mistrial
Counsel are allowed considerable latitude in drawing their deductions from *788 the evidence. Arant v. State, 232 Ala. 275, 167 So. 540. And the propriety of argument of counsel to the jury depends upon the particular issues, facts and atmosphere of each case. Bell v. State, 227 Ala. 254, 149 So. 687. We are in accord with the holding of the Court of Appeals that under the facts of this case the trial court did not err in overruling the defendant's objection to the following argument made by the solicitor: "J. B. Bryson, the deceased, did not have an opportunity to have a trial before a jury like you good men." As pointed out, that was a necessary conclusion from the evidence. The argument is not unlike that which the Court of Appeals held did not transcend the limits of permissible argument in Polk v. State, 31 Ala.App. 473, 18 So. 2d 698, 700, which case is cited in the opinion here under review. The statement of the solicitor there considered was: `"The defendant gave the deceased the same deal that they gave the boys at Pearl Harbor'".
After more careful consideration, it is our studied opinion that the judgment of the Court of Appeals should be affirmed. It is so ordered.
Affirmed.
All the Justices concur. | October 13, 1955 |
f0eb0b5b-4933-45fc-b96a-79c9daca35fa | Williams v. Board of Education of Lamar County | 82 So. 2d 549 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 549 (1955)
Druella WILLIAMS
v.
BOARD OF EDUCATION OF LAMAR COUNTY et al.
6 Div. 872.
Supreme Court of Alabama.
September 22, 1955.
*550 Arthur D. Shores, Birmingham, for appellant.
Harold G. Downing and Young & Young, Vernon, for appellees.
GOODWYN, Justice.
This is an appeal from a judgment of the circuit court of Lamar County denying appellant's petition for a peremptory writ of mandamus to be directed to the County Board of Education, the members of said Board, and the County Superintendent of Education, to reinstate appellant as a teacher in the public schools of the County. Involved in the case are the rights of a teacher who has attained "continuing service status" under the Teachers' Tenure Law, Code 1940, Tit. 52, § 351 et seq., as amended by Act No. 773, appvd. Sept. 16, 1953, Gen.Acts 1953, p. 1040.
This proceeding is controlled by amendatory Act No. 773, supra, which became effective on September 16, 1953.
On June 8, 1954, the Board of Education notified appellant in writing that the Board would meet on July 2, 1954, for the purpose of considering the cancellation of appellant's contract as a teacher, giving as the reason therefor a "justifiable decrease in the number of teaching positions". On June 15, 1954, appellant filed with the Board notice of an intention to contest the cancellation. The hearing was held by the Board at the appointed time, after which the Board voted unanimously to cancel appellant's contract because of a "justifiable decrease in the number of teaching positions." Appellant was notified of the Board's decision on July 6, 1954. On July 15, 1954, she gave notice of appeal. On September 13, 1954, she filed her petition for mandamus in the circuit court of Lamar County. The alternative writ was issued on that day and made returnable on September 24, 1954. Appellees answered the petition and hearing was had on the return date. On October 1, 1954, judgment was rendered denying the petition and taxing the costs against appellant. The appeal here was taken from that judgment on October 11, 1954, within the thirty days allowed by § 1074, Tit. 7, Code 1940. Submission was had here on April 19, 1955.
Prior to passage of Act No. 773, supra, it was provided that the action of the Board "may be reviewed by petition for mandamus filed in the county where said school system is located." § 358 Tit. 52, Code 1940, as amended by Act No. 410, appvd. July 7, 1945, Gen.Acts 1945, p. 646. In Act No. 773, supra, §§ 360 and 361 (which superseded § 358, Tit. 52, supra, as amended), it is provided as follows:
No doubt the provision for appeal to the Tenure Commission prompted appellant's action in giving the notice of appeal on July 15, 1954. But the Tenure Commission referred to in sections 360 and 361 has not been established. The result is that there is no effective provision for appeal; nor is there any provision in the present Tenure Law expressly giving the right of review by mandamus. However, the Circuit Court properly entertained the petition for mandamus. State ex rel. McIntyre v. McEachern, 231 Ala. 609, 613, 166 So. 36; Helms v. Alabama Pension Commission, 231 Ala. 183, 185, 163 So. 807; Williams v. Board of Dental Examiners of Alabama, 222 Ala. 411, 413, 133 So. 11; State ex rel. King v. County Board of Education, 214 Ala. 620, 622, 108 So. 588. See, also, Board of Education of Choctaw County v. Kennedy, 256 Ala. 478, 483, 55 So. 2d 511, 515. And the case is properly here by appeal from the final judgment denying the peremptory writ. Code 1940, Tit. 7, § 1074.
It seems to be well established that the finding of a quasi judicial board, such as the Board of Education in this case, "`may be reviewed by certiorari or mandamus (respectively when appropriate), if it is wholly "unsupported by the evidence, or is wholly dependent upon a question of law, or is seen to be clearly arbitrary, or capricious".'" Board of Education of Choctaw County v. Kennedy, supra; State ex rel. McIntyre v. McEachern, supra; Helms v. Alabama Pension Commission, supra.
The following general rule for reviewing decisions of school boards rendered pursuant to Teachers' Tenure Acts is found in 47 Am.Jur., Schools, § 141, p. 399:
The reason given by the Board for cancelling appellant's contract is one of those enumerated in Section 358 of Act No. 773, supra. That section is as follows:
We have carefully examined and considered the evidence and find that the ground for cancellation of appellant's contract, as found by the Board of Education, is amply supported by the evidence. And we do not understand appellant to seriously question such finding. Her insistence seems to be that cancellation of her contract was for "personal" reasons and that she should not have been denied the right to question the Superintendent of Education with respect thereto. We gather from the evidence and the questions asked that appellant was seeking to establish as such "personal" reason the fact that she had failed or refused to take up residence in the community where she was teaching. It appears that the Board of Education had adopted a rule establishing such policy and that, prior to the Board's notification to appellant on June 8, 1954, the Superintendent had a discussion with appellant about not moving to her school community in the course of which he "told her she could be dismissed for insubordination."
It is to be noted that "insubordination" is one of the authorized grounds for cancelling an employment contract with a teacher on continuing service status. Sec. 358 of Act No. 773, supra. But that is not the ground on which the Board based its cancellation of appellant's contract. As we see it, the only pertinent inquiry was whether there was a "justifiable decrease in the number of teaching positions". That being established, the reason for selecting appellant's contract as the one to be cancelled was not open to inquiry. We find nothing in the Tenure Act establishing a criterion for determining what particular tenure teacher's contract should be cancelled when there is a "justifiable decrease in the number of teaching positions". In such situation, it seems to us that the right of selection is a matter resting entirely with the employing Board of Education. In this connection, see Pickens County Board of Education v. Keasler, Ala., 82 So. 2d 197, where it was held that the contract of a teacher who has obtained continuing service status cannot be cancelled because of a justifiable decrease in the number of teaching positions when there is retained by the Board a teacher who is qualified to teach but has not obtained continuing service status.
Appellant places principal reliance for reversal on the case of State ex rel. Steele v. Board of Education of Fairfield, 252 Ala. 254, 40 So. 2d 689. The facts and circumstances of that case are quite different from those in the instant case. There, the ground relied on for cancellation was "insubordination".
From what we have said it follows that the judgment appealed from is due to be affirmed. So ordered.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MAYFIELD, JJ., concur. | September 22, 1955 |
ce23aac6-38e6-47ca-b3a7-8ddba64cd967 | State v. Reynolds Metals Company | 83 So. 2d 709 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 709 (1955)
STATE of Alabama
v.
REYNOLDS METALS COMPANY.
8 Div. 813.
Supreme Court of Alabama.
November 28, 1955.
John Patterson, Atty. Gen., and Willard W. Livingston and H. Grady Tiller, Asst. Attys. Gen., for appellant.
Clopper Almon, Sheffield, and Mitchell & Poellnitz, Florence, for appellee.
*710 PER CURIAM.
This is an appeal by the State from a decree in equity on a ruling from a use tax assessment made by the State Department of Revenue. The decree upheld the assessment as to some of the items and set it aside as to others.
The parties candidly have reduced the argument to two classes of items. One class consists of reels, on which large aluminum cables are wound, and spools on which small aluminum wire is wound; and the other class is that of steel balls for ball machines. The decree held that these items are not subject to the use tax. Therefore, we shall confine our discussion to those items.
In the argument of counsel the same principles are treated as applicable to the reels and spools, and we shall so treat them in this discussion.
The taxpayer is a manufacturer in this State engaged in the manufacture of tangible personal property for sale, consisting, so far as new material, of aluminum cables and wires. The cables are large wire products used mainly for transmission of electric current by electric power companies who are presumably consumers. The small wire is used for purposes not specified. The taxpayer does not use or consume any of such products produced by it, but such products are sold to consumers. The reels and spools are purchased by the taxpayer outside of the State, shipped to and stored by the taxpayer. The wire which is produced cannot be successfully disposed of unless it is wound on such reels and spools. Upon a sale of the wiring there is an accompanying invoice on which is separately listed the amount and price of the wire or cable and the number and price of the reels and spools. The purchaser pays the amount of the combined invoice. There is an notation at the foot of the invoice to the effect, in substance, that the empty reels or spools may be returned within eighteen months if in good condition: the taxpayer paying the return freight charges and allowing credit for the full amount which had been charged and paid. The taxpayer makes no profit on the transaction with reference to the reels and spools. When they are returned they are rewound and again disposed of as before, and this process continues as often as they are available and suitable for such use.
The taxpayer claims that its purchase is at wholesale and not subject to the use tax provided in section 788, Title 51, Code, imposed upon the storage, use or consumption of tangible personal property bought at retail outside of the State and stored, used or consumed within the State. Paramount-Richards Theatres, Inc., v. State, 252 Ala. 54, 39 So. 2d 380. The tax is not levied on the storage, use or consumption in this State of tangible personal property bought at wholesale outside of the State and stored, used or consumed within the State, as defined.
Section 787(d), Title 51, Code, defines a wholesale transaction within the meaning of the tax levy. It includes (1) purchases sold by wholesalers to licensed retail merchants and jobbers, dealers, or other wholesalers for resale; but not those to be resold by wholesalers to consumers not for resale. It also includes (2) the sale of tangible personal property to a manufacturer or compounder, which enters into and becomes an ingredient or component part of the manufactured or compounded product for sale and "the furnished container and label thereof". So that when a manufacturer or compounder of tangible personal property produces his product and purchases a container and label for it, all for sale, the process of doing so constitutes the transaction a wholesale sale in respect to the material which enters into it and the container. Alabama-Georgia Syrup Co. v. State, 253 Ala. 49, 42 So. 2d 796.
The first aspect of the statute requires the sale to be made to licensed retail merchants, jobbers, dealers and other wholesalers for resale. The circumstances here described do not come within that aspect of a wholesale transaction because it does not involve a sale by a wholesaler to a licensed retail merchant, jobber, dealer or other wholesaler. The second aspect includes a sale *711 to a manufacturer or compounder of tangible personal property which enters into and becomes an ingredient of the manufactured or compounded product and the container and label thereof furnished by the manufacturer or compounder, all for resale. Alabama-Georgia Syrup Co., supra; Poer v. Curry, 243 Ala. 76, 8 So. 2d 418.
The problem confronting us is whether the reels and spools are containers which the taxpayer as a manufacturer of cables and wire uses in the completed unit and sells along with the cables and wires, or has them for sale. That problem, as its statement indicates, has two features which we will treat in the inverse order. The first feature, therefore, is whether those reels and spools are purchased by the taxpayer for sale as containers of the cables and wires. The taxpayer contends that the circumstances herein recited show that in making a sale of the cables and wires there is also a sale of the reels and spools. The State contends that a sale is not shown but only a plan by which the taxpayer is assured of a return of its property which, in substance and reality, always remained the property of the taxpayer. Both contentions are supported by good authority and logic.
On the part of the State counsel cite the case of District of Columbia v. Seven Up Washington, 93 U.S.App.D.C. 272, 214 F.2d 197, which is very much in point. It is there held that the substance of such transaction is not a sale but intended to insure a restoration of the property to the taxpayer and, therefore, the transaction for the purchase of the containers was at retail and their use subject to the tax. But there was an exclusionary provision which was not intended for the exemption to apply merely because, as between respondents and their customers, a sale of the containers occurred. Such an exclusionary provision is likewise emphasized in Gay v. Canada Dry Bottling Co., Fla., 59 So. 2d 788, 790. In those cases the courts were dealing with an exemption in which the strict construction is against the taxpayer. It was held that the mere passing of the title to the consumer is not the sole criterion of whether it is a sale as there contemplated; and that it was not a purchase by one who wanted the container for his own use or to resell. The purchaser had no use for it and presumably bought it only because it was necessary in order to acquire its contents. The decision was largely governed by another statute limiting the exclusion to containers "intended to be used one time only". In this connection see the case of Consumers Co-op. Ass'n v. State Commission of Revenue & Taxation, 174 Kan. 161, 256 P.2d 850, in which the same reasoning is used, also emphasizing the language of the exemption provision in the statute.
On the other hand, we are not here dealing with a strict exclusionary exemption to be construed most favorably in the interest of the State. We are construing the meaning of a tax levy. It is only applicable when the property used in this State was bought at retail in another state. Our problem is to apply the term "retail". This is defined as all sales of tangible personal property except those defined as wholesale. Section 787(e), Title 51, Code. We do not look to the definition of a "wholesale sale" as an exemption, but to articulate the meaning of a retail sale. The strict construction is against the State. Paramount-Richards Theatres, Inc. v. State, 256 Ala. 515(2), 55 So. 2d 812; Alabama-Georgia Syrup Co. v. State, 253 Ala. 49, 42 So. 2d 796; State v. Southern Kraft Corp., 243 Ala. 223, 8 So. 2d 886; State v. Olan Mills, Inc., 258 Ala. 303, 63 So. 2d 796.
Our statute defining a sale as set out in the Uniform Sales Act of the Code, Title 57, section 25, Rule 3(1), confirms the contention that the transaction is a sale. That statute is as follows:
That principle existed without the statute. Foley v. Felrath, 98 Ala. 176, 13 So. 485.
In the case of Consolidated Paper Co. v. Nims, 306 Mich. 216, 10 N.W.2d 833, under circumstances similar in legal effect to those here involved, the court held that the transaction was a sale within the contemplation of such a tax levy referring to the definition in the Uniform Sales Act, supra. The same situation was so construed in Goebel Brewing Co. v. Brown, 306 Mich. 222, 10 N.W.2d 835, another Michigan case. Likewise, the theory was upheld in the following cases: Commonwealth of Mass. v. Brandon Farms Milk Co., 249 Mass. 531,144 N.E. 381, 35 A.L.R. 780; Coca Cola Bottling Plants v. Johnson, 147 Me. 327, 87 A.2d 667; Dewey Portland Cement Co. v. Crooks, 8 Cir., 57 F.2d 499; La Salle Cement Co. v. Commissioner of Internal Revenue, 7 Cir., 59 F.2d 361; Buck v. Com'r of Internal Revenue, 9 Cir., 83 F.2d 627.
We agree with the trial court that the circumstances here shown manifest a purpose to resell the reels and spools when the taxpayer buys them and does resell them in the transactions that follow. Therefore, that feature of the controversy is favorable to the taxpayer.
We shall not consider another feature of the controversy, that is, whether the reels and spools should be classified as containers for the purposes contemplated by the statute. We are mindful of the general definition of a container.
We repeat that this is a tax levy, not an exemption and, therefore, the law should be liberally construed in favor of the taxpayer. Paramount-Richards Theatres, Inc. v. State, 256 Ala. 515(2), 55 So. 2d 812; Alabama-Georgia Syrup Co. v. State, 253 Ala. 49, 42 So. 2d 796; State v. Southern Kraft Corp., 243 Ala. 223, 8 So. 2d 886. We think the term "container" should be held to include the reels and spools necessary to make the cables and wires marketable, and in a sense "contain" them. Their use, storage or consumption in this State should not therefore be considered taxable under the use tax statute. Section 788, Title 51, Code.
Steel Balls.
The other feature of the controversy involved on this appeal is whether certain described steel balls are exempt from the use tax. The exemption is set up in section 789, Title 51, and as amended is set out in the pocket part of the Code as subsection (p), formerly (q), but with no difference in meaning. It is as follows:
The bill alleges and the agreed facts admit that "when a pot is dismantled the pot lining is put through a reclamation process by * * * (the taxpayer) for the purpose of reclaiming the cryolite in the lining. This lining is removed from the pot and is put through a hammer mill and then through a ball mill and thereafter is put into solution with certain chemicals and this solution is pumped from one phase of the process to another". The agreed facts further show that the balls "are bought prefabricated and are used as replacements for balls used in the ball machine. This is a machine in which the balls and used pot lining material are rotated together in such a way that the balls pulverize the material. The material is then put into chemical solutions which are circulated by electric pumps. The reclaimed cryolite is used by * * * (the taxpayer) in the manufacture of aluminum in the process hereinabove set out".
*713 The evidence shows that the balls were bought especially for that machine and were used for no other purpose; that they are customarily so used in such machine and are necessary to its operation and could not be operated without them. The taxpayer does nothing to the balls before using them, but they are used in the condition in which they are purchased and are stored until used.
The taxpayer contends, and the court agreed, that the machinery was used for processing tangible personal property, and the steel balls, purchased by the taxpayer and used in the machine, were a part of the same and were made for use in its operation, and hence necessary for such operation and customarily so used, and therefore exempt. The argument made in brief of counsel for the State is to the effect that the machine here in question is not used to manufacture nor compound tangible personal property and therefore it is not exempt. But under the provisions of the statute the exemption not only applies when the machine is used to manufacture or compound tangible personal property but also to process it. It is true that the definition of a wholesale sale in its second aspect applies only to manufacturers or compounders. That definition is not applicable to the exemption provided in section 789(p), (formerly (q), supra, which includes processing also. The taxpayer does not contend that its purchase of the balls is by a wholesale transaction and, therefore, not covered by the levy which only applies to the use of property acquired at retail sales. The purchase of the balls was undoubtedly at retail under the statutory definition. Their use would be taxable but for the exemption. The exemption applies to machines which process tangible personal property regardless of the use or disposition to be made of it when processed. Curry v. Alabama Power Co., 243 Ala. 53, 8 So. 2d 521; State v. Advertiser Co., 257 Ala. 423, 59 So. 2d 576; State v. Alabama Gas Corp., 258 Ala. 356, 62 So. 2d 454; Southern Natural Gas Co. v. State, 261 Ala. 222, 73 So. 2d 731.
The State does not contend that the balls are not such part of the machinery so used as is contemplated by the exemption. In that connection we note the case of Anderson & Sons Co. v. Glander, 154 Ohio St. 561, 97 N.E.2d 29, where it was held that the parts of machinery for processing must have a direct part in it. We are convinced that here the balls had a direct part in the process. It is our opinion, therefore, that the decree of the trial court 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 |
d02f09e4-ecd0-4845-93b4-72586f4ddb94 | Lauderdale County Cooperative v. Lansdell | 83 So. 2d 201 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 201 (1955)
LAUDERDALE COUNTY COOPERATIVE, Inc.
v.
M. R. LANSDELL et al.
8 Div. 794.
Supreme Court of Alabama.
September 15, 1955.
Rehearing Denied November 10, 1955.
*203 Bradshaw, Barnett & Haltom, Florence, for appellant.
Mitchell & Poellnitz, Florence, for appellees.
PER CURIAM.
This is an appeal by defendant from a judgment rendered in favor of plaintiffs for a breach of contract. See opinion on former appeal260 Ala. 452, 71 So. 2d 70.
After the cause was remanded, it was tried at law with a jury resulting as indicated above. It was tried on two counts. They are both of the same import. Count 1 as amended will be set out in the statement of facts. It will be observed that it alleges that plaintiffs stored cotton in defendant's warehouse. The cotton was materially damaged by water, and plaintiffs made demand upon defendant for settlement of its liability to plaintiffs because of such damage, and, in settlement and discharge of such claim and by way of compromise, the defendant agreed that "it would dry the cotton of plaintiffs and pay for the irreparably damaged portion of the same and return to plaintiffs the loss damaged portion dried and in a good or better condition than said cotton was before said water damage, and of market value equal or better than before damage".
The question which seems to be most argued by counsel on appeal is whether there was a sufficient consideration alleged for the contract, or shown by the evidence. There was first a demurrer to the complaint claiming that the complaint showing a verbal contract, or one not alleged to be in writing, must show that existence of a sufficient consideration; and that it is insufficient in that respect. The court overruled the demurrer. The defendant then filed pleas. Plea 1 was the general issue and plea 2 was that there was no consideration for the contract alleged in the complant. Plaintiffs demurred to these and other pleas. The demurrer to pleas 1 and 2 was overruled, and sustained as to the other pleas. After the evidence was taken, at the written request of plaintiffs, the court charged the jury that if they believe the evidence they cannot return a verdict for *204 defendant based on its plea No. 2. So that the question is properly presented and very earnestly and ably argued. This question was also indirectly involved on the former appeal and there argued; but was there considered only on the question of whether the issues were available at law or whether there was equity involved. We thought there was a sufficient showing for a consideration, and so stated on that appeal. That view is challenged and the question again argued on this appeal.
The theory of appellant's argument is largely based on what was said in respect to the question presented in Daniel v. Hughes, 196 Ala. 368, 72 So. 23, 24. In that case it was shown to be settled that the existence of a mere controversy will not suffice to support an agreement to settle. And that "`"The surrender of a mere assertion of claim, or the withdrawal of a threat to sue, when the claim is without legal merit, whether its legal validity is known or not, will not uphold a release, or agreement of compromise." [And] "When a claim is absolutely and clearly unsustainable, at law or in equity, its compromise constitutes no sufficient legal consideration."`" The complaint there, to which the demurrer was sustained, was patently insufficient in that respect.
The same thought, variously expressed, is given effect in many of our cases, as that there must be a bona fide claim based on colorable right, such as conflicting or indeterminate testimony from which inferences are to be drawn, Ex parte Southern Cotton Oil Co., 207 Ala. 704, 93 So. 662; or that the result of a proceeding on the claim is doubtful, Russell v. Wright, 98 Ala. 652, 13 So. 594; Ernst Bros. v. Hollis, 86 Ala. 511, 6 So. 85; or there is some reasonable ground for controversy. Burleson v. Mays, 189 Ala. 107, 111, 66 So. 36.
The allegations of the complaint show the existence of a material matter in dispute, and that it was settled by the agreement alleged to have been made by defendant. That sufficiently pleads the existence of a consideration. Ex parte Southern Cotton Oil Co., supra (2). That was put in issue by the plea of the general issue and by special plea 2. If the claim for damages set up in the complaint was fictitious, without any basis, not in good faith, not even of a doubtful nature, and not so appearing on its face, the burden was upon defendant in that respect. Hartford Fire Ins. Co. v. Clark, 258 Ala. 141 (3), 61 So. 2d 19.
The court gave the general charge for plaintiffs on the issue as to a consideration for the alleged contract.
It is undisputed that plaintiffs had twenty-six bales of cotton in defendant's warehouse; that on February 13, 1948, while said cotton was thus stored, it was materially damaged by flood waters flowing into the warehouse, caused by an overflow of the river. If in fact the contract as alleged in the complaint was made, which is disputed, it was in settlement of that damage. Was that a claim made in good faith and of a doubtful sort? The law applicable to a warehouseman's duty is set forth in section 526, Title 2, Code, which requires of him an exercise of reasonable and ordinary care to protect the property stored from damage (as from the elements), and makes him liable for any loss or injury to the goods which could have been avoided by the exercise of such care. This is no more than the duty which obtains without the statute. Bethea-Starr Packing & Shipping Co. v. Mayben, 192 Ala. 542, 68 So. 814; Seals v. Edmondson, 71 Ala. 509; 56 Am.Jur. 384, section 136.
This damage to the bailed property having been caused by the violence of nature, there is no presumption of negligence on the part of the defendant-bailee, and on the trial of a suit against him the burden to produce some evidence of his negligence would be upon the plaintiffs. Seals v. Edmondson, supra; Higman v. *205 Camody, 112 Ala. 267, 274, 20 So. 480; Aircraft Sales & Service, Inc., v. Bramlett, 254 Ala. 588(7), 49 So. 2d 144. But that burden is met if the evidence which proves the damage, though it be the violence of nature, tends to show negligence on the part of defendant. Aircraft Sales and Service, Inc., v. Bramlett, supra.
The negligence of warehousemen is usually a question for the jury, considering the manner in which the cotton is stored and protected, in the light of its location and surroundings and the effort made to protect it after and even before the danger becomes imminent. Whittington v. Cameron Compress Co., Tex.Civ. App., 268 S.W. 216.
The cases cited in this connection by appellant of Oktibbeha County Cotton Warehouse Co. v. J. C. Page & Co., 151 Miss. 295, 117 So. 834, and Crittenden & Co. v. North-British & Merc. Inc. Co., 5 Cir., 31 F.2d 700, are both suits against the warehouseman, and the question was whether the evidence was sufficient to sustain liability. It was not a question of whether the facts disclosed justified a voluntary settlement by defendant without litigation.
The real controversy here is not the liability of defendant for the damage to the cotton, but whether there was a claim which justified its discharge by the contract, if there was such a contract. Defendant could see that his negligence in respect to the damage would be an issue in a suit on that claim, and that it would probably be left to the jury to determine whether he was negligent in respect to danger from the flood, and, rather than submit the issue to a jury, he preferred to make settlement for the damageassuming that he made the contract as alleged. We see no reason why this could not be legally done as here claimed by plaintiffs. Those factual circumstances were without dispute, and the court has a right to give an affirmative instruction, on written request, as to their effect upon the issue of consideration. If plaintiffs did not have a bona fide claim of a doubtful sort for damage to their cotton, there is nothing in the record to support the contention.
Joint Action.
Appellant also insists that one of the plaintiffs Ralph Lansdell did not have such interest in the cotton as would support his joinder as a plaintiff in this action. According to appellant's showing Ralph Lansdell only had a landlord's lien for the value of one-fourth of the cotton grown on a certain forty, and plaintiff M. L. Lansdell was his tenant with the legal title. But, as we explained on the former appeal, this action is not for damages for the destruction of plaintiffs' interest in the cotton. In such a suit the nature of that interest would control the nature of his claim, and whether the suit would be in case, trover, or trespass, and the right to join them as plaintiffs. Defendant could voluntarily accept both claims as valid and settle them by making a joint promise satisfactory to them both. The promise by defendant may have been with or for both plaintiffs having an undivided interest without regard to the respective ratio of that interest in the cotton or the nature of their respective rights. The suit is properly on the contract, alleged to be joint, where both parties have a community of interest. Winter-Loeb Grocery Co. v. Boykin, 203 Ala. 187, 82 So. 437.
Admission of Evidence.
It is insisted that the court erred in admitting evidence of the value of the cotton after it was returned to plaintiffs, when they offered to sell it and could not because it was not marketable. That was before July 31, 1948. The legality of such evidence extends to the claim of damages in the complaint. There is here only a claim of general damages. On such a claim the measure is the difference between the value of the cotton after it had been processed and returned to plaintiffs, in its condition at that time, and what its value would have been had it been in as good condition as required by the contract. But plaintiffs *206 had borrowed from the Commodity Credit Corporation and deposited the receipts as security with the agreement that plaintiffs could sell the cotton at any time before July 31, 1948, if they could get more than was owing to the Commodity Credit Corporation. The purpose was to enable plaintiffs to hold the cotton for a better price. This was known to defendant, as shown by the evidence, since the defendant negotiated and conducted the transaction with the Commodity Credit Corporation.
The evidence introduced showed the basis of a claim for special damages available when so alleged and claimed in the complaint. But it must also be alleged in the complaint that defendant had notice of those special facts which are necessary to support the special damages. Bell v. Reynolds, 78 Ala. 511; Dominey v. Johnson-Brown Co., 219 Ala. 666(4), 123 So. 52. There were no such allegations in the complaint, but objection was not made on that ground nor is it so argued here.
We think plaintiffs had the right to take advantage of their contract with the Commodity Credit Corporation, known to defendant, and when the cotton advanced to a satisfactory price whereby they could realize something for their equity, they had a right to sell the cotton before July 31, 1948, and fix that as the date on which to compute values. And having that right they could also try to sell the cotton in the open market, acting as expediently and fairly as they could and the result would be evidence of the market value and of the unmarketable condition of the cotton. See the cases of Swedenburg v. Copeland, Ala., 82 So. 2d 227; McFadden v. Henderson, 128 Ala. 221(10), 29 So. 640; Cortner v. Anderson, Clayton & Co., 225 Ala. 575, 577(3), 144 So. 443.
Plaintiffs' counsel in their argument before the jury made a computation on a blackboard showing the amount of plaintiffs' damages after deducting the debt to the Commodity Credit Corporation. The jury accepted that computation and based their verdict on it. There was no impropriety in that procedure.
It results from the foregoing that the judgment of circuit court 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 LAWSON, STAKELY and MERRILL, JJ., concur. | September 15, 1955 |
611b1630-aec4-4358-be0f-5c8e6b5d4af4 | Jefferson Iron & Metal Company v. Bethune | 81 So. 2d 674 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 674 (1955)
JEFFERSON IRON & METAL COMPANY et al.
v.
John H. BETHUNE (Birmingham Building Company).
6 Div. 808.
Supreme Court of Alabama.
June 30, 1955.
*675 E. M. Zeidman, Roderick Beddow and Lawrence Dumas, Jr., Birmingham, for appellants.
Deramus, Fitts, Johnston & Mullins, Harvey Deramus and Harvey Elrod, Birmingham, for appellee.
LAWSON, Justice.
This is an appeal from a judgment granting a new trial to appellee, the plaintiff below.
The transcript filed in this court does not contain the pleadings on which the cause was submitted to the jury; the evidence taken on the main trial; or the court's oral charge or the written charges requested by the parties.
The motion for a new trial filed by the plaintiff in the court below contained sixty-three grounds, many of which dealt with the trial court's rulings on the admission and exclusion of evidence and many others challenged the action of the trial court in the giving and refusal of written charges.
However, the judgment from which the appeal is taken shows that the new trial was granted "for and because of the circumstances and misconduct as charged and set forth in Grounds 15-20 inclusive and Ground 63, and only because of the same * * *."
The grounds of the motion for a new trial upon which the trial court based its action all related to the claim of misconduct on the part of a juror.
The transcript filed in this court is so constructed as to present for our review the one question as to whether or not the trial court acted correctly in granting the new trial on the grounds stated in its judgment.
The rule is well established that our review of the action of the trial court in granting a motion for new trial is not limited to the grounds on which the motion was granted. It is open to appellee to show error in the trial on any other of the grounds assigned in the motion. Rhodes v. Roadway Express Co., 261 Ala. 14, 73 So. 2d 740; Montgomery City Lines v. Scott, 248 Ala. 27, 26 So. 2d 200; Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So. 2d 224.
The burden is on an appellant to show error and that it is prejudicial. King v. Scott, 217 Ala. 511, 116 So. 681. The appellant is under the duty of seeing that his appeal is perfected according to the requirements of statutes and rules of court. Graham v. State, 30 Ala.App. 179, 2 So. 2d 463.
We take note of the fact that the certificate of the clerk, as amended, does not show that the transcript contains "a full and complete transcript of the record and proceedings in the case". § 767, Title 7, Code 1940.
We cannot say in view of the incomplete record before us that error, if any, on the part of the trial court in granting the *676 motion for a new trial on the stated ground constituted prejudicial error. Some or all of the other grounds of the motion may have been well taken.
It follows that the judgment appealed from is due to be affirmed. It is so ordered. The disposition which we have made of the case makes it unnecessary to treat appellee's motions to dismiss the appeal and to strike the transcript.
The judgment is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | June 30, 1955 |
4aacac18-a35c-4e7c-ac05-94c757ed6454 | Abernathy v. Thornton | 83 So. 2d 235 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 235 (1955)
Lucy ABERNATHY
v.
Jay THORNTON et al.
6 Div. 874.
Supreme Court of Alabama.
September 22, 1955.
Rehearing Denied November 3, 1955.
D. G. Ewing, Earl McBee, Birmingham, and Alex. Smith, Jr., David McKay Enslen, Fayette, for appellant.
John A. Altman, Carrollton, and Edwood Rutledge, Haleyville, for appellees. Deramus, Fitts, Johnston & Mullins, Birmingham, amici curiae.
SIMPSON, Justice.
Lucy Abernathy sued Jay Thornton, O. C. Morgan and Oscar Roden for alleged invasion of her right of privacy. The trial court sustained demurrer to the complaint and by reason of this adverse ruling the plaintiff took a nonsuit and brought this appeal.
The pertinent allegations of the complaint on which the plaintiff sought to rest her right of action are: In June, 1953, the defendants Thornton and Morgan were engaged in publishing a newspaper in Fayette, Fayette County, Alabama, under the name of The Northwest Alabamian and The Fayette Banner. Roden was employed by the newspaper as a reporter. On June 9, 1953, Curtis J. Abernathy, Jr., son of the plaintiff, was shot and killed in Winfield, Marion County, Alabama, by a bullet from a rifle striking him behind his left ear. The body of the deceased was carried to a funeral home, and while there the defendant Roden took a picture of the upper portion of deceased's *236 body showing a metal object protruding from his head. On the 11th of June the picture was published in said newspaper, together with a news story of the shooting. The newspaper account was that a woman named Ann Hall, who had lived in Fayette as Mrs. C. J. Abernathy, Jr., before moving to Winfield, was placed in jail and charged with the murder of the plaintiff's son. It was also stated that the deceased was on parole from a federal offense and had served time in Kilby Prison (Alabama State Penitentiary), which account also reported that law enforcement officers were investigating the case. No mention was made of the plaintiff in the news story and nothing therein or on the accompanying photograph showed any relationship between the plaintiff and the deceased.
This court has had occasion recently to consider what constitutes an actionable invasion of the right of privacy. The action, of course, is in tort and it is said to be the unwarranted appropriation of exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. Smith v. Doss, 251 Ala. 250, 37 So. 2d 118; Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So. 2d 314.
But as was held in these two cases, the right of privacy does not prohibit the publication of matters which are of legitimate public or general interest, as where the plaintiff has become a public character and has thereby waived his right to privacy; or in the ordinary dissemination of news and events or in connection with the life of any person in whom the public has a rightful interest or where the information would be of public benefit.
It was pointed out in the Bell case, supra, that while a public character does not relinquish his right of privacy and his waiver thereof is limited to that which may be legitimately necessary and proper for public information, if the use of his name or picture is incidental to an occurrence of legitimate news value his right of privacy has not been unlawfully invaded.
One of the approved statements of the principle, pertinent here, is found in 4 Restatement of the Law (Torts), § 867, p. 400:
The following from Cases on Torts, p. 504, by Hepburn (former dean of the University of Alabama Law School), impresses us as being a good statement of the theory:
Guided by these general principles, it is made clear that the complaint fails to state a cause of action. The plaintiff rests her right on what is denominated "relational" right of privacy. That is, the right to be spared unhappiness through publicity concerning her dead son because of her relationship to him. We may lay aside a determination of the soundness vel non of such a theory; and conceding its correctness for purposes of decision here, the plaintiff would still have no right of action. Her son had become such a public character that, had he not died, the photographs and publication of the circumstances of his death were matters of legitimate public interest in the proper dissemination of news through the newspapers and he had thus forfeited his claim to privacy, and the relational right must be subject to at least the same limitations as the ordinary right of privacy. Smith v. Doss, supra; Washington University Law Quarterly 1953, pp. 109-112.
Hence Mrs. Abernathy still makes no showing of actionable violation of any right of privacy, even under the relational theory. In addition to the fact that nowhere was she mentioned in the publication, her son, by his conduct, had become at least sufficiently notorious to have waived his right of privacy that would prevent the publication of his picture in connection with the newspaper story. See Metter v. Los Angeles Examiner, 35 Cal. App. 2d 304, 95 P.2d 491.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and MAYFIELD, JJ., concur.
SIMPSON, Justice.
As will appear from the opinion on original deliverance, the complaint attempted to state a cause of action for the invasion of the right of privacy. Yet on rehearing the appellant treats the argument as if she were claiming a trespass or some kind of tort against the deceased's body and vesting the right of action in her because its allegations show a right of action arising out of interference with burial rights. We deem this argument as inappropriate inasmuch as the complaint failed to allege any actionable trespass on the body as such or any unwarranted interference with burial rights, but depended solely on the invasion of the right of privacy as the cause of action.
As pointed out previously, without deciding whether or not a cause of action for an invasion of the right of privacy was stated, it was the opinion of the courtand still is that in this suit the notoriety of the deceased *238 as shown by the complaint constituted a forfeiture of any claims to privacy, resulting that the judgment of nonsuit was well sustained.
Opinion extended and application for rehearing overruled.
LIVINGSTON, C. J., and GOODWYN and MAYFIELD, JJ., concur. | September 22, 1955 |
7ff0b93e-cbb1-4dcb-bef9-5c663379efa8 | Evans v. National Microsystems, Inc. | 576 So. 2d 207 | N/A | Alabama | Alabama Supreme Court | 576 So. 2d 207 (1991)
Jim EVANS
v.
NATIONAL MICROSYSTEMS, INC.
89-1759.
Supreme Court of Alabama.
February 15, 1991.
Marvin H. Campbell, Montgomery, for appellant.
Mike Brock of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
SHORES, Justice.
Jim Evans appeals from a summary judgment for National Microsystems, Inc. (hereinafter referred to as "Microsystems"), on his claims of breach of contract and fraud. We affirm the summary judgment as to the fraud claim, but reverse and remand as to the breach of contract claim.
In 1982, Evans was employed by National Industries, Inc., but in 1987 he went to work for Microsystems. Microsystems is a spin-off corporation of National Industries, and apparently National Industries and Microsystems had each agreed not to hire the other's employees without the other's consent. In 1989, due to poor sales and financial *208 difficulties, Microsystems decided to reduce its work force. In early May 1989, it circulated the following memorandum to all of its employees:
At the time the memorandum was circulated, Evans was unaware that his job was to be eliminated. On May 22, 1989, in a meeting with George Rutland (a member of Microsystems' management), Evans was told that he was to be terminated. In the same conversation, Rutland told Evans that he would receive severance pay equal to three months' salary and that if he would submit a letter of resignation then he would receive a letter stating Microsystems' consent for National Industries to hire him. The same offer was presented to Evans by Charles Woods, head of accounting and/or personnel at Microsystems, but at a later date.
Evans submitted his letter of resignation to Rutland on Thursday, May 25, 1989. Between Monday, May 22, and Thursday, May 25, Evans sought employment with National Industries and received an offer from it on the evening of May 23, conditional upon Evans's leaving Microsystems and obtaining a letter of consent from Microsystems. He did not work on Tuesday, May 23, or Wednesday, May 24, but reported to work on Thursday and Friday, May 25 and 26. He went to work for National Industries on May 30, 1989.
Evans received his letter of consent from Microsystems and was paid through the week of May 22, 1989, but never received the promised severance pay. When he asked why he had not been given the promised severance pay, Evans was told that he would not receive severance pay because he had immediately obtained other employment.
Evans contends that the memorandum circulated to all Microsystems employees and the representation made through Rutland and Woods, that he would be paid three months' severance pay if he resigned, was an offer and that he had accepted it by continuing to work for Microsystems through May 29, 1989, and by tendering his resignation as requested. Evans further argues that Microsystems fraudulently induced him to resign by the promise of severance pay. Microsystems replied by saying that: (1) Evans was an employee at will and thus there was no obligation to give him severance pay; (2) the promise of severance pay was too indefinite to be an offer; and (3) Evans had no right to severance pay, and, therefore, no fraud was committed.
*209 In its order, the trial court stated that the memorandum's promise of severance pay was not itself specific enough to be an offer, yet "ripened" into an offer when Rutland and Woods promised Evans that the severance pay would equal three months' salary. The trial court held that Evans's continuing employment with Microsystems did not constitute an acceptance of the offer of severance pay; thus, it held, there was no genuine issue of material fact concerning whether Evans accepted the offer. The trial court went on to hold that submission of the resignation letter was not sufficient consideration to support the promise of severance pay and that Evans had failed to adduce any evidence that Microsystems did not intend to honor its promise at the time it was made.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter 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. RNH, Inc. v. Beatty, 571 So. 2d 1039 (Ala.1990).
Turner v. Systems Fuel, Inc., 475 So. 2d 539 (Ala.1985). Rule 56 is to be read in conjunction with the "substantial evidence rule" (§ 12-21-12, Ala.Code 1975) for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 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 trial judge based his holding upon Hoffman-La Roche, Inc. v. Campbell, 512 So. 2d 725 (Ala.1987). In that case we determined that an employee's continuing to work after a promise was made in a handbook was sufficient to constitute a binding unilateral contract, and we said that the existence of such a contract could be determined by employing the following analysis:
Id. at 735.
Extending the Hoffman-La Roche analysis to this case, the trial court reasoned that the first two elements had been shown; it said that the memorandum was made "ripe" by the actions of Rutland and Wood, was specific enough to be an offer, and was communicated to Evans via its distribution. However, the trial court held that the third element of the analysis had not been shown. The trial judge stated: "Based on the undisputed facts in this case, the Court finds that the resignation neither conferred a pecuniary benefit on Microsystems nor caused any trouble, injury, inconvenience, prejudice or detriment to Evans." (C.R. 46). The court reasoned that there was no genuine issue of material fact concerning whether Evans had accepted the offer, because he did not continue in the employ of Microsystems based on an offer of severance pay.
We disagree. The third element of the Hoffman-La Roche analysis is that "the employee must have accepted the offer by retaining employment after he has become generally aware of the offer," and that case states, "His actual performance supplies *210 the necessary consideration." 512 So. 2d at 735. Under the fact situation in Hoffman-La Roche, the employee showed his acceptance of the offer made to him by continuing on the job. Under the fact situation presented in this case, the employee showed his acceptance of the offer made to him by tendering his letter of resignation. His performancethe tendering of his resignation eliminated his right to any unemployment benefits he might collect and was sufficient consideration for Microsystems' promise of severance pay. Microsystems derived a pecuniary benefit from Evans's agreement to give up his entitlement to unemployment compensation, because under Alabama law the payment of unemployment benefits increases an employer's contribution rate. § 25-4-54, Code 1975. Indeed, the memorandum states that "[e]mployees being dismissed are eligible for unemployment benefits."
Evans did not raise on appeal the ruling on his claim of fraud. Therefore, we will not review it. General Finance Corp. v. Smith, 505 So. 2d 1045 (Ala.1987).
For the reasons stated above, the trial court erred in granting Microsystems' motion for summary judgment on the contract claim. The judgment is due to be affirmed as to the fraud claim and reversed as to the contract claim, and the cause is due to be remanded for further proceedings on the contract claim.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | February 15, 1991 |
2bd27c00-2835-4f58-8b39-b0a44c9e1327 | Edge v. Bice | 82 So. 2d 252 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 252 (1955)
Ellis F. EDGE
v.
W. O. BICE.
8 Div. 757.
Supreme Court of Alabama.
August 18, 1955.
Russell W. Lynne, Decatur, for appellant.
Eyster & Eyster, Decatur, for appellee.
PER CURIAM.
This is an appeal by complainant from a final decree, in equity, rendered on a bill filed to redeem land from a mortgage, and *253 the cross bill seeking to foreclose said mortgage.
The note and the mortgage given to secure it were dated August 12, 1949. The note was due and payable "on or before January 15, 1958". Neither the note nor mortgage contained any reference to partial payments and contained no other acceleration clause. Bearing the same date and witnessed by the same notary public, these same parties made a contract of sale and purchase of the same land included in the mortgage. On the same day the seller in that contract (who was also the mortgagee) made a deed to the purchaser (this complainant), reciting full payment of the purchase price which is the same as the consideration recited in the contract. The contract shows the full consideration of $5,500, of which $1,500 was paid in cash with the balance of $4,000 payable in installments. The note and mortgage were for the principal sum of $4,000 "with interest from date" (that means at six percent per annum Title 9, section 60, Code). The contract provides that the balance of $4,000 is payable in one hundred monthly installments of forty dollars each. To the first monthly installment of forty dollars was to be added twenty cents as interest, and on each monthly installment thereafter twenty cents was to be added to the total amount of the preceding installment; so that each would be twenty cents more than the last preceding installment. That is at the rate of six percent per annum on each installment from date to maturity.
It seems to be conceded that the contract, note and mortgage were to be taken together, and mean that the note of $4,000 due on or before January 15, 1958 was to be payable in installments as stated above.
The bill alleges in paragraph 5 "that under and by virtue of terms of the said contract made `Exhibit A' hereto the complainant had the right and privilege of prepayment of said indebtedness without interest, and that prior to the filing of the bill of complaint in this cause, complainant tendered to the defendant the sum of two thousand and eighty dollars ($2080.00) the balance due on said mortgage, and the said defendant refused and failed to accept the same as payment in full of the said mortgage, on the ground that the same was insufficient, that is to say that interest for the full period of the time of the said mortgage was not included in said sum". This means that complainant had paid forty-eight of the installments, aggregating $1,920 and the interest on them in the sum of $235.20, leaving unpaid the principal sum of $2,080. This amount, without interest, complainant paid into court upon filing the bill and tendered as a full and complete discharge of the balance of the indebtedness, and also offered in the alternative to do equity. He claimed the right to pay that amount without interest by reason of the terms of paragraph 5 of said contract, as follows:
Complainant contends that this means that if he pays the installments with interest to that day, as above stipulated, the balance of the principal may be paid in full at that time without paying any interest on it. The trial court did not agree with that construction of the contract. We think the ruling was manifestly correct.
The evidence of witnesses taken orally before the trial judge was not transcribed, as provided by Equity Rule 56 as amended, Code 1940, Tit. 7 Appendix, and is not before this Court. In the final decree the court observed that "the testimony of the witnesses is of little help in resolving the controversy". That probably explains why it was not transcribed. All facts found by the court will be taken as true. We can only consider them and those which are admitted in the pleading. Thomas v. Thomas, 246 Ala. 484, 21 So. 2d 321; White v. White, 246 Ala. 507, 21 So. 2d 436.
*254 The court ascertained that the interest on $2,080 from the date of the transaction to the date of filing this suit was $499.20, which is six percent per annum for four years, (that seems to be correct); and further found that the interest on said $2,080 from the date of filing the suit to the date of the decree at six percent per annum is $41.53, and that an attorney's fee chargeable to complainant is $100, making a total of interest and attorney's fee of $640.53. The court thereupon denied relief to the complainant and granted relief on the cross bill; and rendered a personal judgment against the complainant with a waiver of exemption for said sum of $640.53 and costs of court. The principal sum of $2,080, by agreement of the parties, was ordered paid by the register to the respondent.
A personal judgment was not appropriate at that time except as to costs. The proper decree would be to allow complainant thirty days in which to pay the sum ascertained, and in default of its payment the property should be sold. If the sale does not produce a sufficient amount, an execution may be ordered on motion to collect the balance, if there is a personal liability then due. Equity Rule 119½, pocket part Code 1940, Tit. 7 Appendix; Graham v. O'Neal, 242 Ala. 72, 4 So. 2d 897; Flagg v. Florence Discount Co., 228 Ala. 153, 153 So. 177; Hamill v. McCalla, 228 Ala. 281, 153 So. 412; Hall v. Noble, 215 Ala. 444, 111 So. 14; Hastings v. Alabama State Land Co., 124 Ala. 608, 26 So. 881; Baker v. Young, 90 Ala. 426, 8 So. 59; Teal v. Lewis, 85 Ala. 218, 4 So. 695; Johnson's Adm'r v. Ward, 82 Ala. 486, 2 So. 524; Presley v. McLean, 80 Ala. 309; Winston v. Browning, 61 Ala. 80, 84.
The decree of the trial court should be here so modified as to eliminate any personal judgment against complainant except for the costs, and to allow complainant thirty days in which to pay into the circuit court, in equity, the sum of $640.53 for the respondent and the costs of the circuit court in the cause. If that is not done, the trial court should make such decree of sale as may be appropriate to effectuate the right of cross complainant to a foreclosure of the mortgage.
On account of the necessity to correct the error in the decree the costs of appeal should be taxed against appellant and appellee in equal amounts.
Appellee in briefs calls attention to the failure of appellant to certify that a copy of the assignments of error had been served on appellee as required by amended Supreme Court Rule 1. The record is silent as to that, and no attention was directed to it on the submission of the case in this Court. That was a waiver by appellee of the requirement. It is not jurisdictional.
It is also insisted that we should not consider the merits of the appeal because appellant's brief did not comply with Rule 1, supra. But we have held that when appellant's brief does not comply with the rule, if it fairly and helpfully makes the points upon which appellant relies the Court may in its discretion consider those points on their merits. Simmons v. Cochran, 252 Ala. 461, 41 So. 2d 579; Schmale v. Bolte, 255 Ala. 115, 50 So. 2d 262.
The decree of the trial court should be modified, as indicated above, and 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.
Modified and affirmed.
LAWSON, SIMPSON, GOODWYN, MERRILL and MAYFIELD, JJ., concur. | August 18, 1955 |
e199d6cb-cabf-4c06-89d0-18ae837f87ab | Pickens County Board of Education v. Keasler | 82 So. 2d 197 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 197 (1955)
PICKENS COUNTY BOARD OF EDUCATION
v.
Iva Conner KEASLER.
6 Div. 630.
Supreme Court of Alabama.
August 18, 1955.
W. A. Davis, Aliceville, and John H. Curry, Carrollton, for appellant.
LeMaistre, Clement & Gewin and Perry Hubbard, Tuscaloosa, for appellee.
GOODWYN, Justice.
This proceeding relates to the Teachers' Tenure of Employment Law, Code 1940, Tit. 52, Chap. 13, § 351 et seq., as amended.
Appellee, Iva Conner Keasler, a teacher on continuing service status in the public school system of Pickens County, Alabama, made written request to the County Board *198 of Education for a hearing on the Board's proposed cancellation of her employment contract; this pursuant to § 357, Tit. 52, supra. On conclusion of the hearing the Board cancelled her contract. Thereupon, appellee filed in the Circuit Court of Pickens County a petition for mandamus to review the Board's action. Sec. 358, Tit. 52, as amended by Act No. 410, appvd. July 7, 1945, Gen.Acts 1945, p. 646 [now § 360]. The alternative writ was issued and the Board made answer thereto. A hearing was then had on the petition, the evidence being taken orally before the trial court. After the hearing the trial court granted a peremptory writ of mandamus to be directed to the Board of Education ordering and directing it to return appellee to an active full-time teaching status. This appeal is prosecuted by the Board from that judgment. Code 1940, Tit. 7, § 761.
The grounds for cancellation of an employment contract with a teacher on continuing service status "may be made for incompetency, insubordination, neglect of duty, immorality, justifiable decrease in the number of teaching positions, or other good and just cause; but cancellation may not be made for political or personal reasons." Code 1940, Tit. 52, § 356 (§ 356 is carried as § 358 in the 1953 Act amending Chapter 13, Title 52, Code 1940, Act No. 773, appvd. Sept. 16, 1953, Gen.Acts 1953, pp. 1040, 1042. The 1953 amendments, however, have no application to this case). The grounds relied on by the Board of Education are that there was a "justifiable decrease in the number of teaching positions" and also "other good and just cause" said to consist of refusal of the trustees of the several schools in the county to accept the assignment of appellee to their schools. See § 140, Tit. 52, Code 1940.
It appears from the evidence that appellee holds a class 5 certificate and that at the time of the cancellation of her contract the Board of Education retained the services of four teachers qualified to teach in the same grades as appellee who had not obtained continuing service status.
As we view the case the determinative question for decision is whether the contract of a teacher who has obtained continuing service status may be cancelled because of a justifiable decrease in the number of teaching positions when there is retained by the Board of Education a teacher who is qualified to teach in the same position, but who has not obtained continuing service status.
The position taken by the appellant Board is that the teachers retained, though not having continuing service status, hold certificates of a higher grade than appellee; that the cancellation of appellee's contract was in line with the Board's established policy of increasing the level of qualifications of the teachers in the school system; and that, unless the Board has such authority, it cannot meet its responsibility of training the youth of the county. On the other hand appellee's position is that the Tenure of Employment Law was adopted for the purpose of giving to the teacher stability of employment; that so long as appellee was qualified to perform the teaching service, the Tenure Law gives to her priority over those who have not obtained continuing service status. Cited in support of her position is the Indiana case of Watson v. Burnett, 216 Ind. 216, 23 N.E.2d 420, 423. That court, in discussing a provision (Ind.Acts 1927, pp. 259, 260) identical to that contained in § 356, Tit. 52, supra, had this to say:
From Seidel v. Board of Education of Ventnor City, 110 N.J.L. 31, 164 A. 901, 902, affirmed 111 N.J.L. 240, 168 A. 297, is the following:
See, also, 47 Am.Jur., Schools, § 139, pp. 397-398, where it is said:
The second ground for cancellation relied on by appellant is without merit. We see no necessity of deciding whether refusal by school trustees as provided for in § 140, Tit. 52, supra, would constitute "other good and just cause" under § 356, Tit. 52, supra, inasmuch as the requirements of § 140 are not shown to have been complied with.
From what we have said it follows that the judgment of the trial court awarding the peremptory writ of mandamus is due to be affirmed. It is so ordered.
Affirmed.
LAWSON, STAKELY, MERRILL and MAYFIELD, JJ., concur. | August 18, 1955 |
4db8b823-d99f-40a1-8754-32399d84049d | Smith v. Chickamauga Cedar Company | 82 So. 2d 200 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 200 (1955)
Shirley SMITH
v.
CHICKAMAUGA CEDAR COMPANY, Inc.
6 Div. 894.
Supreme Court of Alabama.
August 18, 1955.
Russell W. Lynne, Decatur, for appellant.
St. John & St. John, Cullman, and Scott, Dawson & Scott, Fort Payne, for appellee.
GOODWYN, Justice.
The appellant brought suit against appellee for breach of a written contract entered into on December 11, 1953, for cutting logs into lumber. The complaint, as last amended, consisted of three counts. The contract, which is made a part of each of the counts, provides, in material respects, as follows:
The breach of the contract is said to consist of failure and refusal on the part of appellee to place logs at the location furnished by appellee for cutting of the logs by appellant. There is no claim that appellee has failed to pay appellant for the cutting of logs actually furnished. The position taken by appellant, and as alleged in the complaint, is that logs, although obtainable by appellee in Cullman County and adjoining counties, were not furnished after March 18, 1954; that "it was feasible and economical to have such logs manufactured into lumber having due regard for market conditions and the availability of such logs in such vicinity"; that he has at all times been "ready, willing and able to manufacture said logs into lumber as stipulated in said contract"; that he "was put to much expense in the purchase and installation of proper mills, saws, machinery and equipment and mill supplies and paraphernalia to carry on said enterprise"; and that by reason of "the defendant's breach of the said contract the plaintiff lost the fruits and profits of carrying on said enterprise and his said machinery and equipment were thereby proximately caused to deteriorate in value and damaged by the nonuse thereof." It is further alleged that appellee stopped the placing of logs "through pretense or subterfuge and not in good faith but through mere pretext."
*202 Appellee demurred to the complaint. The principal ground is that, under the provisions of Section 9 of the contract, the furnishing of logs for cutting is left to the sole discretion of appellee, thereby rendering the contract so indefinite and uncertain as to be unenforceable. The demurrer was sustained. Because of this adverse ruling, plaintiff suffered a nonsuit to be taken and prosecutes this appeal from the judgment of nonsuit.
It is an approved principle that "the law does not favor, but leans against the destruction of contracts because of uncertainty; it will, if feasible, so construe the contract as to carry into effect the reasonable intention of the parties if that can be ascertained." Hamilton v. Stone, 202 Ala. 468, 469, 80 So. 852; McIntyre Lumber & Export Co. v. Jackson Lumber Co., 165 Ala. 268, 274, 51 So. 767, 770. But, as stated in Jones v. Lanier, 198 Ala. 363, 366, 73 So. 535, 536, the court "cannot set up a contract for the parties". See, also, Pizitz-Smolian Co-op. Stores v. Meeks, 224 Ala. 330, 331, 140 So. 442.
It seems to us that Section 9 of the contract clearly leaves to appellee the right, at its own option and discretion, to determine what quantity of logs, if any, should be furnished for cutting into lumber by appellant. There is no provision in the contract obligating appellee to furnish any specified number of logs, nor is there any criterion furnished by the contract for ascertaining the number of logs to be furnished by appellee. The provision is that logs will be furnished "in such quantities as Lumberman (appellee) deems feasible and economical". That means, as we interpret it, such logs as appellee should determine, in its sole discretion, to be feasible and economical. Webster's New International Dictionary, 2d Ed., p. 685, defines the word "deem" as follows:
The same authority, pp. 926, 814, defines "feasible" and "economical" as follows:
"3. Likely; probable; reasonable."
It seems to us in applying these definitions to the obligation assumed by appellee under the contract, that appellee is given "an unlimited right to determine" the extent of its performance with respect to the furnishing of logs, thereby rendering its obligation too indefinite for legal enforcement. As stated in 12 Am.Jur., Contracts, § 66, p. 568:
From Sloss-Sheffield Steel & Iron Co. v. Payne, 186 Ala. 341, 346, 64 So. 617, 618, is the following:
*203 As stated in Restatement of the Law of Contracts, Vol. I, § 32, pp. 40-41:
The applicable principle is thus stated in 17 C.J.S., Contracts, § 36c(1), pp. 364-365:
From 1 Williston on Contracts, Rev.Ed., §§ 37, 43, pp. 98-99, 126, is the following:
It follows, from what we have said, that the judgment appealed from is due to be affirmed. It is so ordered.
Affirmed.
LAWSON, STAKELY, MERRILL and MAYFIELD, JJ., concur. | August 18, 1955 |
30c323bc-136c-4f53-846b-13599b1bf2f8 | Van Antwerp-Aldridge Drug Co. v. Schwarz | 82 So. 2d 209 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 209 (1955)
VAN ANTWERP-ALDRIDGE DRUG CO.
v.
Sam L. SCHWARZ.
1 Div. 629.
Supreme Court of Alabama.
August 18, 1955.
Johnston, McCall & Johnston, Mobile, for appellant.
D. R. Coley, Jr., Mobile, for appellee.
The following charge (substantially the same as charge 9) was refused to defendant:
"10. The Court charges the jury that before you can return a verdict for the plaintiff in this case you must be reasonably satisfied from the evidence that the *210 plaintiff, his servants or employees, applied the mixture sold to him by the defendant, in the manner and according to instructions given him by the agent, servant or employee of the defendant."
STAKELY, Justice.
This suit was instituted by Sam Schwarz (appellee) against Van Antwerp-Aldridge Drug Co., a corporation (appellant), for the loss and destruction of certain pecan trees owned by the appellee. The case was tried on counts 4, 5 and 7 of the complaint to each of which the appellee pleaded the general issue. Count 4 claims damages of the defendant for breach of an express warranty in that in May 1951 an agent, servant or employee of the defendant while acting within the line and scope of his employment, sold to the plaintiff a mixture composed of axel grease, chlorodane and D.D.T. and advised him that it was a good, efficient and safe composition to be applied by the plaintiff to his pecan trees to rid the trees of caterpillars. It is further alleged in substance that relying thereon the plaintiff did buy a quantity of the aforesaid composition for which he paid a consideration to the defendant, that the plaintiff did thereupon apply the composition to certain of his pecan trees and that shortly thereafter and as a direct and proximate consequence of the application of the composition fourteen of the pecan trees died and became worthless.
Count 5 is substantially similar to count 4.
Count 7 claims damages for breach of warranty in the sale of a chemical composition by the defendant's agents, servants or employees while acting within the line and scope of their employment as such to the defendant during the month of May, 1951, it being warranted that the chemical composition would be a safe composition to be used on certain pecan trees owned by the plaintiff for the purpose of ridding the same of caterpillars when, in fact, that chemical composition was poisonous in nature to the trees and did in fact upon the application of same to the trees cause fourteen of the plaintiff's trees to die. There was verdict and judgment for the plaintiff in the sum of $1,500. Motion for new trial was overruled by the court.
I. The plaintiff was allowed to prove his damages by showing the reasonable value of the trees prior to their destruction. The testimony of witnesses supported by pictures introduced in evidence showed the death of the trees. There was testimony tending to show the good condition of the trees and their value prior to application of the mixture on the trees. It is insisted by the appellant that the proper method of proving damages where growing trees are destroyed or damaged is by proving the reasonable market value of the realty before and after the destruction of the trees. Such authorities as Howell v. City of Dothan, 234 Ala. 158, 174 So. 624; Alabama Great Southern R. Co. v. Russell, 254 Ala. 701, 48 So. 2d 249; Loper v. Ganguet, 250 Ala. 584, 35 So. 2d 341; W. T. Smith Lumber Co. v. McKenzie, 256 Ala. 496, 55 So. 2d 919, are cited to support the position of the appellant.
However in the case of Jefferson Lumber Co. v. Berry, 247 Ala. 164, 23 So. 2d 7, 9, 161 A.L.R. 544, this court said:
See also Mitchell v. Billingsley, 17 Ala. 391; Sedgwick on Damages, Vol. 3, p. 1925.
The suit here is for damages to fruit trees growing out of the breach of an alleged express warranty and is not an action for trespass to the land itself. As was said in Alabama Great Southern R. Co. v. Russell, supra [254 Ala. 701, 48 So. 2d 251], "In any event, the matter to be determined by the jury on the evidence is what amount will provide full compensation for the loss to the owner." There was no error in allowing the plaintiff to prove the reasonable value of the trees prior to their alleged destruction.
II. In view of what we have said there was no error in refusing written charges limiting plaintiff's recovery to nominal damages. Authorities supra; World's Exposition Shows, Inc., v. B. P. O. Elks No. 148, 237 Ala. 329, 186 So. 721.
III. It is argued that the court was in error in refusing to give at the request of the defendant charges 9 and 10. It is insisted that these charges should have been given by the court so that the jury could have decided whether or not the mixture was applied in the manner the defendants' agent suggested. We think it is true that if the material had been sold with the condition that it must be applied in some specified manner and the purchaser failed to apply it in the manner prescribed by the defendants' agent, then the purchaser could not recover for the damage done. In other words it would have been incumbent upon the plaintiff to show that he did apply or use the substance in the manner prescribed and made a condition of the warranty. Landman v. Bloomer, 117 Ala. 312, 23 So. 75; Curb v. Stewart, Adams & Co., 215 Ala. 511, 110 So. 804. We have carefully considered the evidence however and do not find that there was any condition to the warranty Under the circumstances there was no issue involved as to any condition attached to the warranty and the charges requested were abstract and, therefore, properly refused.
IV. It is argued that the defendant was entitled to the general affirmative charge with hypothesis. The affirmative charge was requested separately as to counts 4, 5 and 7. Counts 4 and 5 each allege that the plaintiff relied on an express warranty that the compound that he purchased was a good one and would not injure his trees and since this is true it is argued there can be no implied warranty in keeping with such cases as Holt Lumber Co. v. Givens, 196 Ala. 640, 72 So. 257; Grasselli Chemical Co. v. City Ice Co., 200 Ala. 172, 75 So. 920. However we now have §§ 18 and 21, Title 57, Code of 1940, to consider. Section 18 reads as follows:
In substance the testimony of the plaintiff showed that he went into the place of business of the defendants and inquired for some substance which he could apply on trees and which would prevent or stop caterpillars in the trees and that the agent or servant of appellant, acting within the line and scope of his employment, sold to him the compound with the representation that it would keep the caterpillars off his trees and would be good for the trees. There is testimony tending to show that the plaintiff purchased the substance relying upon the representation that it would be a good, safe and efficient compound for the purposes for which he wished to buy it. We think it is clear that the testimony showed an express warranty under the provisions of the foregoing statute.
*212 In addition to the foregoing we call attention to the provisions contained in § 21, Title 57, Code of 1940, as follows:
The allegations of Count 7, which follow the code form, § 223(24), Title 7, p. 203, Code of 1940, do not allege an express warranty and therefore the question as to whether there was an express or implied warranty which was relied on by the plaintiff would depend upon the evidence. Under the evidence the plaintiff who was the purchaser made known to the seller the particular purpose for which the substance was required and that he relied upon the skill and judgment of the seller as to whether the merchandise was reasonably safe for the purposes for which he bought it. Since the adoption of the foregoing statutes there may be an implied warranty which is not inconsistent with the terms of an express warranty. See Wise v. Central Iowa Motors Co., 207 Iowa 939, 223 N.W. 862, and cases collected at pp. 227-278, Uniform Laws Annotated, Sales § 15. We find no such inconsistency under the evidence as to negative an implied warranty. Not only, as we have shown, was there proof tending to show an express warranty to sustain Count 7, but there was evidence tending to show an implied warranty which would sustain Count 7. It seems to us beyond dispute that questions for the jury were presented by the evidence and that the court was not in error in refusing the affirmative charge or the affirmative charge as to either Counts 4, 5 or 7
V. It is argued that the court was in error in overruling the motion for a new trial. The grounds of the motion for a new trial raise the questions which we have already covered in this opinion. There was no error committed by the court in overruling the motion for a new trial.
It results that the judgment of the lower court is due to be affirmed.
Affirmed.
LAWSON, SIMPSON, GOODWYN and MERRILL, JJ., concur. | August 18, 1955 |
b31db1a5-2b98-4cea-b1c5-e032a80cad83 | Gamble v. Cloud | 82 So. 2d 526 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 526 (1955)
Barbara Dell GAMBLE
v.
Annie Dell CLOUD et al.
4 Div. 842.
Supreme Court of Alabama.
September 15, 1955.
W. G. Hardwick, Dothan, for appellant.
John W. Rish and H. K. & J. F. Martin, Dothan, for appellees.
J. Hubert Farmer, Dothan, amicus curiae.
PER CURIAM.
This is an appeal from a judgment of the circuit court sustaining a demurrer to the contest of a will, which had been removed into that court, and dismissing it. The contest involves the will of Lilly Dell Feagle who died November 12, 1954.
The contest was filed by this appellant and others jointly, alleging that they are the next of kin of testatrix, and demanded a transfer of it to the circuit court as provided in section 63, Title 61, Code. A transfer was ordered as demanded. Later this appellant filed a separate contest to the probate of the will, and sought to show her right to contest as a person who, had testatrix died intestate, would have been an heir or distributee of her estate, and as the next of kin contestant alleged:
The other contestants also filed a separate contest, alleging they are the next of kin of testatrix, and would have been the sole and only lawful heirs of deceased had she died intestate; that deceased left no children or their descendants, no father or mother, no brothers or sisters or their descendants, and no husband; but that these contestants are her first cousins, and are the surviving children of William B. Bell, deceased, who was an uncle of Lilly Dell Feagle. Their contest is not here involved.
These last named contestants and the proponent, separately demurred to the contest of this appellant. The demurrer of each was separately sustained, and appellant was allowed twenty days in which to amend. This constitutes the first and second assignments of error. Appellant having failed to amend the contest within twenty days, the court dismissed it; and this constitutes the third assignment of error.
This latter judgment was in all respects final insofar as concerned the contest of this appellant, and was appealable to this Court as authorized by Title 61, section 63, Code. Therefore, we will not consider the alternate motion for mandamus which was made by appellant for the purpose of review.
The only issue before us is one of law, and that is whether an adopted daughter of a deceased brother of testatrix has such an interest in the estate, or is so related to testatrix, as to have a right under Title 61, section 63, to contest the probate of the will.
Appellant's brief makes the statement that she was legally adopted by J. L. Dell in 1927. We do not find that allegation in the contest to which demurrer was sustained. But it is not challenged by appellees, so that it will be so treated on this appeal. The law in effect at the time of the adoption was as set out in the Code of 1923, being section 9302. When testatrix died on November 12, 1954, the Code of 1940, sections 1 to 9, Title 27, was in forcethe Code having become effective in 1941.
This Court recently decided the case of Franklin v. White, Ala., 82 So. 2d 247, in which several questions were disposed of incidentally affecting the question here presented. Two important principles there settled, and material here, were that the law providing for inheritance by an adopted child, or by the adoptive parent as an heir of the child, in effect at the time of the death of the person whose estate is involved, is controlling; and, second, that if the adopted child dies before the adoptive parent, under the provisions of our statute now in force, as contained in the Code of 1940, the adoptive parent does not inherit from the child. This is so because the statute does not provide for such inheritance and the question is controlled solely by the statute. We have no disposition to re-enter the field there so well cleared.
We do not have here the exact factual status as in the case of Franklin v. White, supra. But the same theories and arguments there cited are pertinent. Section 5, Title 27, Code, is the controlling statute. It undertakes to describe the respective rights and duties of the adoptive parent and child. The adopting parent or parents are "invested with every legal right in respect to obedience and maintenance on *528 the part of the child as if said child had been born to them in lawful wedlock, and the child shall be invested with every legal right, privilege, obligation, and relation in respect to education, maintenance and the rights of inheritance to real estate, or to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock." There is no provision for the child to inherit from collaterals or others than the adoptive parent or parents. The right of inheritance is controlled by statute, as said above.
To accept the view of appellant is to hold that an adoptive parent may not only make another his heir, but he can also make an heir to his collateral kin without their knowledge and consent. There are many cases which refuse to accept such a construction of their statute. In re Hewett Estate, 153 Fla. 137, 13 So. 2d 904; Reeves v. Lowe, 213 Miss. 152, 56 So. 2d 475; Welch v. Funchess, Miss., 71 So. 2d 783; Bradley v. Tweedy, 185 Wis. 393, 201 N.W. 973, 38 A.L.R. 1, annotation page 8; In re Harrington's Estate, 96 Utah 252, 85 P.2d 630, 120 A.L.R. 830, annotation page 837. The authorities are legion and the arguments all strongly oppose a different theory of construction.
In the instant case the adoptive father of appellant died before the testatrix whose will is here in question. If he had died after the death of testatrix, he would have been the heir next of kin and inherited from her before his death which would have in turn passed to the adopted child. Allen v. Pugh, 206 Ala. 10(7), 89 So. 470. That not being the situation here involved, that theory has no application.
We are not here concerned with the claim of the cousins of testatrix to contest the will as argued by counsel amicus curiae and, therefore, will not respond to that brief.
The demurrer of the proponent supports the judgment of the circuit court and it 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 LAWSON, STAKELY and MERRILL, JJ., concur. | September 15, 1955 |
c5cce969-08e1-4421-9ac1-c37ecc03ae0f | Draper v. Sewell | 82 So. 2d 303 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 303 (1955)
Jerry M. DRAPER et al.
v.
Louise Draper SEWELL.
7 Div. 274.
Supreme Court of Alabama.
August 18, 1955.
*304 Young, Aird & Young, Anniston, for appellants.
Wm. C. Bibb, Anniston, for appellee.
MERRILL, Justice.
This is an appeal from a decree of the Circuit Court of Calhoun County, in Equity, dismissing appellants' bill of complaint. The bill seeks a sale for division among joint owners and tenants in common of a certain city lot and house located thereon which cannot be equitably divided without *305 a sale for division. Appellee's answer to the bill avers that she has a fee simple title to the property.
The evidence was heard ore tenus by the trial judge. His findings of fact and conclusions of law are substantially as follows: The property which is the subject matter of this litigation constituted all the real property owned by John H. Draper who died intestate on November 18, 1934, leaving surviving him as his sole heirs at law his widow, Sue C. Draper, one daughter, Louise Draper Sewell, the appellee in this cause, and two minor grandchildren, Jerry M. Draper (born October 2, 1924) and Robert M. Draper (born July 27, 1926). These grandchildren, sons of a deceased son of John H. Draper, are the appellants here.
The judge further found that the property constituted the homestead of John H. Draper; that at the time of the death of John H. Draper, A. P. Agee held a mortgage on the said property on which was due a balance of approximately eight hundred dollars; that said mortgage was executed by John H. Draper and his wife, Sue C. Draper, in 1922 to secure a debt owed to A. P. Agee; that subsequent to the death of John H. Draper, Sue C. Draper paid off the mortgage and that A. P. Agee on January 7, 1935, assigned and transferred the mortgage to her; that on November 13, 1937, Mrs. Sue C. Draper transferred and conveyed said mortgage to the appellee, Mrs. Louise Draper Sewell; that on January 24, 1938, the appellee foreclosed the mortgage and as authorized by its terms, became the purchaser at the foreclosure sale and on the same date conveyed to Mrs. Sue C. Draper a life estate in the property, reserving to herself the remainder in fee simple; that some three or four years prior to the death of Mrs. Sue C. Draper on January 9, 1954, the appellants acquired knowledge of the fact that the appellee was claiming adversely to their interest in the property by reason of the foreclosure of the Agee mortgage; that appellants did not offer to pay their proportionate part of the consideration paid to A. P. Agee, as aforesaid, prior to the filing of the bill in this cause on January 22, 1954, and that the offer to do so made in the bill in this cause was not made within a reasonable time after they knew that the appellee claimed to hold adversely to them and knew or should have known the true state of the legal title; that by their delay the appellants are barred from now asserting any interest in and to the said property, and that the bill of complaint should be dismissed.
The assignments of error made by the appellant are as follows:
The following findings are established without dispute: John H. Draper died intestate in 1934 owning in fee simple the property here in question, subject to a mortgage which he and his wife had executed in favor of A. P. Agee in 1922. This property constituted all the real estate owned by said John H. Draper. He left surviving him as his only heirs at law the persons noted in the finding by the judge, above. The transactions which took place subsequent to the death of John H. Draper in relation to the Agee mortgage,its acquisition by the widow Mrs. Draper, the transfer of same to the appellee, the foreclosure of same and the purchase by appellee at the foreclosure sale and the transfer or conveyance of the life estate to Mrs. Draper, are matters of record. The mechanics of these transactions are not in controversy but their effect is disputed.
We first direct our attention to the effect of the acquisition of the Agee mortgage by the widow, Mrs. Draper. On the death of her husband, Mrs. Draper became a life tenant of the property. By her purchase of the Agee mortgage Mrs. Draper became the holder of an outstanding incumbrance on the property in addition to the life estate which she already possessed. What was said in the case of Ward v. Chambless, 238 Ala. 165, 189 So. 890, 893, is applicable to the factual situation here:
Mrs. Draper, being the legal holder of the mortgage and the debt secured thereby, could make a valid transfer of same. This she did by means of an instrument dated November 13, 1937, in which she conveyed and transferred to the appellee "that certain mortgage together with the indebtedness secured thereby" and in addition thereto all her "right, title, interest and claim in and to the real estate described in said mortgage." By means of this instrument, the appellee became subrogated to the rights and interest of Mrs. Draper.
The appellants contend that there was no consideration for the mortgage transfer from Mrs. Draper to the appellee and that the same is, therefore, void as to them and that the doctrine of subrogation and contribution does not apply. We cannot agree with this contention. The transfer itself recites as consideration, "the sum of five dollars ($5.00) and other good and valuable consideration." In addition thereto, it is undisputed that immediately on foreclosure sale of the property, the appellee, *307 who purchased at the foreclosure sale, conveyed a life estate therein to Mrs. Draper. Also, there is undisputed evidence showing that Mrs. Draper lived without charge to her at the home of the appellee for a period of time in excess of fifteen years.
We next direct our attention to the effect of the foreclosure of the mortgage and the purchase of the property at the foreclosure sale by the appellee. We said in the case of Salter v. Odom, 240 Ala. 462, 199 So. 687, 688:
* * * * * *
Thus, as stated above, the purchase by the appellee at the foreclosure sale inured to the benefit of all the cotenants. In order to secure the benefit of said purchase, however, it was necessary for the appellants to make, or offer to make, their proportionate contribution to the purchase of the property within a reasonable time. Whether the offer by the appellants in the present bill to contribute their proportionate share of the expense of the purchase comes within a reasonable time is the next matter for our consideration.
The term "reasonable time", as applied to the period allowed one cotenant to contribute or offer to contribute his proportionate share of the cost of acquiring an outstanding claim against the property by another cotenant, has been given no fixed definition by our cases. In Savage v. Bradley, 149 Ala. 169, 43 So. 20, 123 Am.St. Rep. 30, it was observed:
See also Williams v. Massie, 212 Ala. 389, 102 So. 611, 615, for the following quotation from Judge Freeman's work on Cotenancy:
In Ruffin v. Crowell, 253 Ala. 653, 46 So. 2d 218, 223, this court said:
In the instant case, the younger of the two appellants reached his majority in July 1947, some nine and one-half years after the purchase of the property at the foreclosure sale by the appellee and some six and one-half years before the filing of this bill. During the minority of appellants the time limitation within which they had to pay or offer to pay their proportionate share of the expenses of the purchase of the property, did not expire. Title 7, § 36, Code of 1940; Winsett v. Winsett, 203 Ala. 373, 83 So. 117; Courson v. Tollison, 226 Ala. 530, 147 So. 635.
But the appellee contends, and the trial judge so found, that appellants had notice of the purchase and title claimed by appellee and that such notice was had after they became sui juris and some three or four years prior to the filing of the bill in this cause.
We have said in cases of this nature that the claim of one cotenant against the other cotenant or cotenants must be actually known to such other cotenant in order to defeat his rights to the property involved. Gilb v. O'Neill, supra; Markstein v. Schilleci, 258 Ala. 68, 61 So. 2d 75. In this case there was evidence from which a finding that the appellants had actual notice and knowledge could be made. The trial judge so found, and the testimony being ore tenus before the court, the conclusion of fact will not be here disturbed unless palpably erroneous. Penny v. Penny, 247 Ala. *309 434, 24 So. 2d 912; Frank v. Johnson, 261 Ala. 642, 75 So. 2d 153.
It follows that the decree of the lower court should be affirmed.
Affirmed.
LAWSON, SIMPSON, GOODWYN and MAYFIELD, JJ., concur. | August 18, 1955 |
de444cd4-b054-4e62-bf01-40680db1da50 | Henslee v. Merritt | 82 So. 2d 212 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 212 (1955)
M. Douglas HENSLEE et al.
v.
Grace MERRITT et al.
6 Div. 493.
Supreme Court of Alabama.
August 18, 1955.
*214 John H. Chapman and A. L. Sapp, Cullman, for appellants.
Finis E. St. John and H. A. Entrekin, Cullman, for appellees.
GOODWYN, Justice.
This is an appeal from a final decree of the circuit court of Cullman County, in equity, establishing a resulting trust in forty acres of farm land in favor of the appellee, Lola Henslee.
The appellants are devisees under the will of J. C. Henslee, who died in Cullman County on February 29, 1949. They filed a bill to have the land sold for division among the devisees, subject to the provisions of the will.
Lola Henslee, the testator's widow and also a devisee under the will, elected to dissent from the will. She was made a respondent to the bill filed by appellants. She answered the bill, making her answer a cross-bill, therein denying that the land was subject in any way to the administration of the estate of J. C. Henslee, and alleging equitable ownership in herself by virtue of having furnished from her own separate estate the money used in purchasing the land, and praying that the court enter a decree establishing in her favor a resulting trust in the land.
Appellants, in answer to the cross-bill, deny that Lola Henslee paid any part of the purchase price, and allege in the alternative that if she did furnish the purchase money she did so as a gift or loan to J. C. Henslee, with no expectation of repayment. They further allege that if Lola ever had any right to have a resulting trust declared in her favor, such right is barred by the statute of limitations of ten years, adverse possession, and laches.
As argued here, the questions for decision are:
I. Whether appellee, Lola Henslee is, barred from having a resulting trust decreed in her favor by the statute of limitations of ten years, Code 1940, Tit. 7, § 20.
II. Whether the decree establishing a resulting trust in the land in favor of appellee, Lola Henslee, is supported by competent evidence.
None of the evidence was taken orally before the trial judge. Accordingly, on review here there is no presumption in favor of his findings from the evidence. We must sit in judgment on the evidence. Redwine v. Jackson, 254 Ala. 564, 569, 49 So. 2d 115; Butler v. Guaranty Savings & Loan Ass'n, 251 Ala. 449, 450, 37 So. 2d 638. In doing so we have not considered evidence thought to be violative of what is commonly referred to as the "dead man's statute", Code 1940, Tit. 7, § 433.
Code 1940, Tit. 7, § 18, provides as follows:
Code 1940, Tit. 7, § 20, supra, provides, in pertinent part, the following limitation:
"The following must be commenced within ten years:
* * * * * *
This court has held that in a suit to have a resulting trust declared "the statute of limitations is ten years as in the nature of a suit for the recovery of land since land is the subject matter of the suit." Knowles *215 v. Canant, 255 Ala. 331, 334, 51 So. 2d 355, 358; Barnett v. Waddell, 248 Ala. 189, 195, 27 So. 2d 1; Woods v. Sanders, 247 Ala. 492, 495, 25 So. 2d 141; Miles v. Rhodes, 222 Ala. 208, 209, 131 So. 633. Cf. Smith v. Hart, 259 Ala. 7, 9, 10, 65 So. 2d 501; Van Ingin v. Duffin, 158 Ala. 318, 321, 48 So. 507, 132 Am.St.Rep. 29.
A cause of action accrues "`as soon as the party in whose favor it arises is entitled to begin and prosecute an action thereon'". Esslinger v. Spragins, 236 Ala. 508, 513, 183 So. 401, 405; Van Ingin v. Duffin, supra; 1 Am.Jur., Actions § 60, P. 451.
The following general rule pertaining to the running of the statute of limitations against a resulting trust was approved by this court in Haney v. Legg, 129 Ala. 619, 627, 30 So. 34, 36, 87 Am.St.Rep. 81:
Ordinarily, without more, the fact that the husband had the land conveyed to himself would constitute such a repudiation of his trust relation to his wife that he would, from that time be regarded as holding adversely to her. Thornton v. Rodgers, 251 Ala. 553, 557, 38 So. 2d 479; Brackin v. Newman, 121 Ala. 311, 313, 26 So. 3. And the statute of limitations would begin to run from such repudiation of the trust. Thornton v. Rodgers, supra; Chambless v. Kennamer, 214 Ala. 293, 294, 107 So. 908; Haney v. Legg, supra; Brackin v. Newman, supra. See, also, Miles v. Rhodes, 222 Ala. 208, 209, 131 So. 633; Martin v. Kelly, 132 Ala. 201, 203-204, 31 So. 476.
Where, however, there is a recognition by the trustee of the cestui's rights, lapse of time can constitute no bar to relief. Cash v. Cash, 258 Ala. 364, 366, 63 So. 2d 27; Thornton v. Rodgers, supra; Haney v. Legg, supra; South v. Pinion, 207 Ala. 122, 124, 92 So. 420. And it is held that each new recognition of the trust by the trustee affords a new beginning for the running of the statutory period. Jacksonville Public Service Corporation v. Profile Cotton Mills, 236 Ala. 4, 7, 180 So. 583; Bromberg v. First Nat. Bank of Mobile, 235 Ala. 226, 231, 178 So. 48; Snodgrass v. Snodgrass, 176 Ala. 282, 287, 58 So. 199; Whetstone v. Whetstone's Ex'rs, 75 Ala. 495, 502.
This brings us to the question whether there was a recognition by the trustee, J. C. Henslee, of the rights of the cestui, Lola Henslee, so as to avoid the running of the statutory period of ten years.
The forty-acre tract of land was purchased from the Georgia Loan & Trust Company in the name of J. C. Henslee in May or June, 1935. It appears that this fact became known to the appellee at that time or very shortly thereafter. A road runs between the forty acres and the farm occupied by J. C. and Lola, and the two properties are not of the same tract of land. The forty acre tract was assessed for taxes in the name of J. C. Henslee during his lifetime. In 1932, J. C. and Lola both signed a timber deed selling the timber on the forty acres to a lumber company. Payment was made by check to J. C. Henslee and Lola testified that J. C. did not give her any of the money. The land was rented by Henslee to various tenants from the time of purchase until his death and the testimony is undisputed that the rentals were paid to J.C. and not to Lola. It is without dispute that J. C. still had the legal title to the forty acres at the time of his death.
If the statute began to run against Lola at the time of execution of the deed to J. C. in 1935, as we think it did, her right to a resulting trust was barred 10 years thereafter, that is, in 1945, unless there was an intervening recognition of her rights by J. C. As we view the evidence, we think it is *216 sufficient to support a finding of such recognition.
L. E. Reeves, a witness for complainants, testified that in 1939 or 1940 J. C. told him that "he borrowed the money from his wife to buy the back forty." This witness further testified as follows: "He was trying to sell me the place. He said he owed Mrs. Henslee the money and wanted to sell me the place to pay her back." It seems to us that this was a clear recognition by the trustee that the cestui's funds were used for the purchase of the property and, in effect, a recognition of the existence of the trust, thus ending, before the running of the statutory period, J. C.'s adverse holding against Lola. Thus, the running of the 10 year statutory period commenced anew as of that time. And, unless there was another recognition within the new period, the running of the statute would have been complete in 1949 or 1950.
W. F. Blankenship, a witness for appellee, Lola Henslee, testified that he was "making a crop on the place" in 1945 and 1946 and that J. C. Henslee told him in 1946 that "his wife, Mrs. Lola Henslee, furnished him the money to get that forty." In our opinion, this was a new recognition of the trust by J. C. before the running of the new statutory period, thus affording still another new beginning for the running of the statute. Since this recognition was in 1946 the bar of the statute will not be operative against Lola until 1956. Obviously, her cross-bill was filed well within the statutory period.
Also applicable here is the following from Sims v. Sims, 259 Ala. 296, 297, 66 So.2d 445:
The principal witness for appellee, Lola Henslee, in establishing the fact that it was her money which was paid in purchase of the land was Asa B. Fuller. However, appellant insists that Fuller's testimony should not be considered because it was not included in Lola Henslee's note of testimony in this case. Rule 57, as *217 amended, Alabama Equity Rules, Code 1940, Tit. 7, Cumulative Pocket Part, Appendix. But it was included in the note of testimony in the companion case No. 4664. It seems clear to us that the parties and the trial court treated the instant case (No. 4773) and case No. 4664, for all practical purposes, as if consolidated, although a separate decree was rendered in each case. In view of the unusual circumstances we are unwilling to say that the trial court erred in considering Fuller's testimony. Certainly, the purpose of the rule has been served since the decree affirmatively shows that the chancellor considered Fuller's testimony. As stated in Turner v. Turner, 193 Ala. 424, 431-432, 69 So. 503, 506:
Fuller's testimony was to the effect that he was the agent of the grantor, Georgia Loan & Trust Company, in the transaction which resulted in the conveyance of the forty acres in 1935; that he was paid as earnest money the sum of $100 by J. C. Henslee who told him that the money was furnished by Lola Henslee; that he first tendered the deed to Henslee who told him that his wife, Lola, was furnishing the purchase money and wanted to pay him herself; that he then went to the Henslee home, tendered the deed to appellee, Lola Henslee, and received from her $600, the remainder of the purchase price.
There is also evidence of declarations of J. C. Henslee with respect to use of Lola's separate funds for purchase of the land. As stated in Lehman v. Lewis, 62 Ala. 129, 134:
Although such evidence is to be received with caution, Miles v. Rhodes, 222 Ala. 208, 210, 131 So. 633; Heflin v. Heflin, 216 Ala. 519, 521, 113 So. 535; Lehman v. Lewis, supra, it nevertheless is competent and seems to support and strengthen the testimony of Fuller. We have already noted the testimony of W. F. Blankenship and L. E. Reeves. In addition, George O. Johnson, a real-estate agent, testified that Lola and J. C. listed the land for sale "two, three or four years ago", and that Lola claimed the land as her own in his and J. C.'s presence, and that the latter did not deny her claim.
It is our opinion that the evidence clearly supports the finding of the court below that the money used to purchase the suit property was furnished by appellee, Lola Henslee. This state of the evidence affords a presumption of a resulting trust in favor of the wife, and she may either charge the property with the payment of the money or claim the property itself. Thornton v. Rodgers, 251 Ala. 553, 556, 38 So. 2d 479, supra; Mandelcorn v. Mandelcorn, 228 Ala. 590, 593, 154 So. 909, 93 A.L.R. 322. This presumption having arisen, the burden was on appellants, claiming under the will of J. C. Henslee, of establishing by clear and convincing evidence that the purchase money was a gift to said J. C. Henslee from Lola Henslee. Adams v. Griffin, 253 Ala. 371, 373, 45 So. 2d 22, supra. This they failed to do. Nor do we find evidence justifying a conclusion that the purchase money was furnished by Lola as a loan to J. C.
The decree declaring a resulting trust in favor of appellee, Lola Henslee, is due to be affirmed. It is so ordered.
Affirmed.
LAWSON, SIMPSON, STAKELY, MERRILL and MAYFIELD JJ., concur. | August 18, 1955 |
00652097-1bf7-4ac6-a3ab-63f9cd5adcc8 | Shell Oil Company v. Edwards | 81 So. 2d 535 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 535 (1955)
SHELL OIL COMPANY et al.
v.
A. D. EDWARDS et al. (and cross appeal).
6 Div. 620.
Supreme Court of Alabama.
June 16, 1955.
*537 White, Bradley, Arant, All & Rose, Douglas Arant and Alex S. Lacy, Birmingham, for appellants.
Wm. Soroka, Ingram Beasley, Birmingham, and E. C. Yokley, Nashville, Tenn., for appellees.
Chas. H. Brown, Birmingham, for cross-appellee City of Birmingham.
PER CURIAM.
The main appeal in this case is by the respondents, to whom we will sometimes refer as Jackson and associates, from a final decree in equity wherein they were "enjoined from locating a filling station in Block 5, Crestwood Addition Woodlawn Highlands, First Sector, except on the southwest corner fronting one hundred and fifty (150) feet on Crestwood Boulevard and extending south one hundred and twenty-five (125) feet". Complainants have cross appealed and are A. D. Edwards and wife, who purchased a house and lot immediately east of said Block 5 in November 1952, together with twelve intervenors who likewise have purchased homes in the subdivision.
The facts developed by the pleading and evidence, briefly stated, are: Jackson and associates acquired in 1943 a large tract (205 acres) of undeveloped woodland south of the Woodlawn section of the City of Birmingham. They intended to convert this property into a very high class residential district when an appropriate time arose. In 1946 a subdivision map was completed for them by an engineer retained for that purpose. This map was filed for record in the probate office on June 18, 1946. It contained a diagram of residence lots, streets, etc., usual in such matters. The State had acquired a right of way for a four lane super-highway with dividing parkway, which extended through the southern portion of the area thus surveyed and designated. The map indicated the location of the highway which is sometimes referred to as Crestwood Boulevard. The area surveyed was designated "Crestwood Addition to the Survey of Woodlawn Highlands". The super-highway has been constructed and is the location of highway or road No. 78 extending from Birmingham to Atlanta. In a general way it extends from the west eastwardly and separates the lots as divided by the survey. The area was wholly undeveloped. Block No. 5, here considered, adjoins the highway on the north according to the map, and is west of 56th Street, which connects traffic from First Avenue, North, at Woodlawn with the highway. Block No. 5 was therefore in the northwest corner of the intersection of 56th Street, South, and the super-highway. The subdivision plan and map showed the northern portion of Block No. 5 to be divided so as to contain three residential lots. The remainder of the block was labeled on the map "Reserved for Crestwood Business Section". That area, as marked, was about two acres of 436 feet wide as it abutted the super-highway, and 317 feet wide south of the residence lots 1, 2 and 3, and extended north from the super-highway 429 feet.
The subdivision plan was approved by the City Commission of Birmingham on June 18, 1946, when Jackson and associates began clearing the property and constructing streets. On July 1, 1946, Jackson wrote to the Zoning Board of Adjustment requesting that Block No. 5, with the exception of lots 1, 2 and 3, be zoned "commercial". The city in its comprehensive zoning plan had originally zoned all this property for residences as was its custom in respect to such territory in its raw undeveloped status. The zoning board issued a certificate on July 30, 1946 showing that Block No. 5, with the exception of lots 1, 2 and 3, was zoned "commercial", and so recommended to the city commission in 1947. But the city commission took no action in that respect until September 19, 1950, when the zoning board again brought it to their attention. On that day the city commission passed ordinance No. 797-F, which classified as "commercial" Block No. 5, with the exception of lots 1, 2 and 3. No question was raised as to the procedural requirements in adopting the ordinance (section 15 of the amended bill), except that it was not authorized by law, in that, it does not *538 alter or rearrange the boundary of any zone or district, Title 37, chapter 16, Code, and that the city did not give any recognition to the restrictions and limitations in exercising the power conferred by Title 37, section 779. See, Title 62, section 715.
Before that ordinance was adopted, and on June 10, 1947, Jackson and associates filed in the probate office certain restrictions which were declared to apply to the Crestwood subdivision, except such portion as was "Reserved for Crestwood Business Section", which was expressly omitted. Jackson and associates prepared and distributed a large amount of advertising matter with a map of the subdivision showing that Block 5, with the exception of lots 1, 2 and 3, was "Reserved for Crestwood Business Section". As stated above, the complainants are A. D. Edwards and wife who purchased an attractive house and lot across 56th Street, immediately east of Block 5, in November 1952. There were twelve intervenors who had purchased homes in the subdivision. Most of those homes were purchased by the present owners after Block 5 had been rezoned by the city commission. There is evidence that Jackson and his associates did not emphasize their purpose to carry out the plans for the business area, but at times indicated that there would be a long delay in that respect. Mr. Byrum, chairman of the board of adjustment of the city, testified in response to complainants' counsel:
On January 14, 1953 Jackson leased to Shell Oil Company (a respondent) a portion of Block 5 in the southeast corner, 150 feet on Highway No. 78 and 125 feet along 56th Street. On February 24, 1953 the city commission adopted a resolution permitting Shell Oil Company to erect a drive-in filling station on that lot. This was approved by the chief building inspector, chief of the fire department, the city engineer and the traffic officer of the police department of the City of Birmingham. On the same day the city building inspector issued a permit for the construction of the service station, and on May 14, 1953 the fire department issued a permit for the installation of the tanks for said station.
On March 10, 1953, Mr. William Soroka, who appears as attorney for complainants, wrote Mr. Jackson that "the original plan drawn by Mr. Van Keuren for a most modern and elaborate shopping center is acceptable by the property owners of Crestwood". (Mr. Van Keuren is an architect and had made a preliminary drawing for a shopping center in Block 5.) That letter also contained the following: "Anything less, or short of that, is not acceptable. It was represented by your agents that the cost of such a shopping center would be $200,000 to $250,000, and that is in keeping with our demands. We purchased our property and our homes with the understanding that the shopping center would be the finest, in keeping with the homes in Crestwood". The drawing showed an automobile service station on the corner of 56th Street and Crestwood Boulevard. Jackson claims that he could not get the shopping center developed as contemplated. The Korean War had something to do with it at first. But that he (Jackson) always intended that Block 5 should be a shopping center with a filling station on this corner. This is about ten blocks from First Avenue, North, at Woodlawn where there is a shopping center. There are also some small stores and service stations on Fifth Avenue, South. There was not shown to be any pressing need for a filling station in Block 5. Jackson in a *539 letter to Soroka advised him that any development "will be handled in such way as not to hurt any of our good friends in Crestwood". About three hundred very expensive and highly restricted residences have been built in the subdivision, some before and some after the rezoning.
Most of the witnesses who testified thought that a service station at this point was not needed and would depreciate the value of the residences. An effort was made to compensate Jackson in the sum of $10,000 if he would convert that area into residential property and to guarantee a maximum price for the lots. On April 1, 1953, Mr. Soroka and other property owners petitioned the zoning board to amend the zoning layout so as to change Block 5 (except lots 1, 2 and 3) from commercial to residential. The board had a public hearing and numerous residents were represented and testified. The zoning board adopted a resolution recommending that the city commission consider unfavorably the petition to amend. The city commission had a hearing on April 7, 1953 and denied the petition. On that day the instant bill of complaint was filed.
The evidence was conflicting as to the probable effect of the proposed filling station on the property in the subdivision. We assume the trial court reached the conclusion that it would be harmful and work "hurt, inconvenience, or damage" to property owners in Crestwood, or some of them here complaining, section 1081, Title 7, Code, and that it would be a nuisance on the southeast corner of Block 5, but not on the southwest corner of that block, about three hundred feet away, and that the damages in consequence of such nuisance would be irreparable, not merely possible, but to a reasonable degree certain, section 1083, Title 7, and, therefore, the erection of the filling station on the southeast corner should be enjoined but not on the southwest corner.
The pleadings do not put in issue any question in respect to the southwest corner. The effect of that feature of the decree is a finding that a filling station on the southeast corner would work hurt, inconvenience, or damages, whereas it would not do so on the southwest corner. That conclusion is only valuable as the finding of a fact, and can have no other force. The decree was very broad in its terms and enjoined respondents from locating a filling station anywhere on Block 5, except on the southwest corner on an area of 150 feet on the boulevard and extending back 125 feet. The court in the same decree expressed the opinion that the ordinance No. 797-F of the city commission, adopted September 10, 1950, is valid in all respects. But there was no decree to that effect. Thompson v. Maddux, 105 Ala. 326, 16 So. 885; Hill v. Hill, 211 Ala. 293, 100 So. 340; Lyall v. Lyall, 250 Ala. 635, 35 So. 2d 550; Employers' Ins. Co. v. Brooks, 250 Ala. 36(4), 33 So. 2d 3. We mention that at this time because there is a cross-appeal by complainants in the original bill, who assigned as error that feature of the decree holding the ordinance valid. Those assignments have no decree of the court on which to rest.
We will here observe that most certainly the validity of that ordinance is material to the result decreed by the court. If the ordinance is void it is not of any value as evidence, and the area would be zoned "residential"; if it is valid, it must be given such value as authorized by law. The amended bill admits the due adoption of the ordinance but alleges that it is unconstitutional, null and void principally because it is "piece-meal" or "spot" zoning; damaging to property owners; not a fair exercise of the police power; arbitrary; not authorized by law, Title 37, Chapter 16, Code; violates the equality clause and due process clause of the Fourteenth Amendment. All of the objections may be included in that analysis.
While the cross-appeal and cross assignments of error cannot be upheld because there is no feature of the decree to support them, we must take a look as the ordinance rezoning the area to see if it is void, assuming that it was duly adopted. We take judicial knowledge of the ordinances of the City of Birmingham. Title *540 7, section 429(1), Pocket Part Code. Therefore, we take judicial knowledge of its initial zoning ordinance and amendments to it, which have been often before us. Water Works Board of City of Birmingham v. Stephens, Ala., 78 So. 2d 267. The city has full police power, which includes the power to make a conprehensive zoning ordinance and amend it. Title 62, section 654, Pocket Part Code. Hawkins v. City of Birmingham, 248 Ala. 692, 29 So. 2d 281.
We take judicial notice that it is comprehensive as required by section 777, Title 37, Code, and Title 62, section 710, and recognize that the zoning of a "spot", not a part of a comprehensive plan, is not authorized by law. Chapman v. City of Troy, 241 Ala. 637, 4 So. 2d 1; Davis v. City of Mobile, 245 Ala. 80, 16 So. 2d 1; Johnson v. City of Huntsville, 249 Ala. 36, 29 So. 2d 342; Alabama Alcoholic Beverage Control Board v. City of Birmingham, 253 Ala. 402, 44 So. 2d 593; Phillips v. City of Homewood, 255 Ala. 180, 50 So.2d 267: but that is not here undertaken. This ordinance as amended being a part of a comprehensive plan is not "spot" zoning.
Our cases do not indicate that the city may not amend its comprehensive plan by changing an area in it from one use to another. On the other hand, section 779, Title 37, and section 715, Title 62, Code, give express authority to do so. The nature and purpose of the zoning power together with its limitations and restrictions have been so often stated by our decisions, we need not repeat them. In addition to the cases cited above, see Leary v. Adams, 226 Ala. 472, 147 So. 391; Marshall v. City of Mobile, 250 Ala. 646, 35 So. 2d 553; Jefferson County v. City of Birmingham, 256 Ala. 436, 55 So. 2d 196.
It is admitted that the ordinance was duly adopted and, therefore, that there was a public hearing after notice was given when these complainants and intervenors could have been present and heard by the city commission. Sections 778, 779, Title 37, Code. The city commission's act in adopting the amendment was the result of a recommendation by all the city officers whose duty it was to see that the safety and comfort of the people are protected. They are the officers charged by law as experts on the subject to make recommendation in that respect.
The effect of the city ordinance is not to permit a service station to be operated on a lot in Block 5 as indicated, but to enact that the city zoning system will not prohibit that to be done on the proposed lot. It simply eliminates one reason for its disallowance. The right is therefore controlled by other principles. Jackson and his lessees are not authorized to erect and maintain a nuisance on the lot in question. A filling station is not per se a nuisance though located in a residential section. Gillette v. Tyson, 219 Ala. 511, 122 So. 830; Fletcher v. Barnard, 222 Ala. 380, 133 So. 29; Leary v. Adams, 226 Ala. 472, 147 So. 391; Bloch v. McCown, 223 Ala. 348, 135 So. 633; Maples v. Milton, 232 Ala. 483, 168 So. 868; Milton v. Maples, 235 Ala. 446, 179 So. 519.
Section 1081, Title 7, Code, provides that a nuisance is "anything that worketh hurt, inconvenience, or damage to another * *. The inconvenience complained of must not be fanciful, or such as would affect only one of a fastidious taste, but it should be such as would affect an ordinary reasonable man." A proposal may be enjoined before the structure is made only when it will cause "irreparable damages, and such consequences are not merely possible, but to a reasonable degree certain". In such event equity will "interfere to arrest a nuisance before it is completed." Section 1083, Title 7, Code.
It is settled by our decisions that the mere fact of depreciation or diminution of value, without more, is unavailing as a ground for equitable relief to enjoin the operation of a filling station. Nevins v. McGavock, 214 Ala. 93, 106 So. 597; Fletcher v. Barnard, supra; Milton v. Maples, 235 Ala. 446, 179 So. 519; Marshall v. City of Mobile, supra. That sort of hurt *541 alone therefore does not classify a filling station as a nuisance.
So we inquire as to when its operation will be a nuisance near a residential district, but in an area which is not zoned against it and whose zoning status would permit it. It was said in Maples v. Milton, 232 Ala. 483, 168 So. 868, that a filling station may become an abatable nuisance if "there be a continuing emission of odors, vapors, dust, smoke, gas and noise" and the headlights of automobiles, glaring station headlights, flashing at unreasonable hours of the night into the bedrooms and other portions of the premises, which will disturb the peace and comfort of the complainant and household, together with the operation of a tire service station on said lot which will be attended with loud and disagreeable noises due to the manipulation of steel or other metal parts with hammers and other instruments, all of which will work hurt, inconvenience and damage. Those allegations in substance are made in the bill in the instant case.
When that case was heard on the evidence, a final decree was rendered denying the injunction on the ground that those allegations were not sustained. Milton v. Maples, 235 Ala. 446, 179 So. 519. The evidence showed that the adjoining area was not strictly residential; that other filling stations were nearby; that the filling station was neatly kept; that no noise or offensive odors came from it; that it had a neat appearance; that no inconvenience was experienced from the presence of the station. There was no zoning question involved.
Those cases illustrate the theory that a filling station merely should not be classified as a nuisance because it may cause depreciation in the value of nearby residential property, when it is located on a lot zoned for such enterprise; and that such a business is not per se a nuisance. But it may be so conducted as to become a nuisance as was alleged, but not proven, in the Maples case, supra.
In the instant case the proposal is not only not a nuisance per se, but has the unqualified approval of the city commission, the zoning board of adjustment, the building inspector, the chief of the fire department, the city engineer and traffic officer. The zoning for "commercial" was adopted before complainants purchased their property. The maps from the beginning showed that this property was reserved for business.
The decree of the court seemed to assume that any sort of filling station on the southeast corner of Block 5 would be per se a nuisance on account of the surrounding residential restricted area. That philosophy does not conform to our cases. The filling station when completed may be conducted as in the Maples case, supra, and not be a nuisance. The lights may be screened off so as not to cast rays in complainant Edwards' house. If it is so operated as to be a nuisance when it is constructed, these complainants would then have just case to complain. There is no evidence that it will be so operated. When lights will not be cause to complain has been treated with respect to other enterprises conducted at night. Drennen v. Mason, 222 Ala. 652, 133 So. 689; Downey v. Jackson, 259 Ala. 189, 65 So. 2d 825.
The decree should be reversed and one here rendered denying relief to complainants and intervenors and dismissing the cause.
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.
Cross-appeal dismissed.
Reversed and rendered.
LIVINGSTON, C. J., and SIMPSON, GOODWYN and MAYFIELD, JJ., concur. | June 16, 1955 |
234521f1-b5dd-49a4-a439-918dd7479f8a | Grimes v. Jackson | 82 So. 2d 315 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 315 (1955)
Annie GRIMES
v.
James Robert JACKSON.
4 Div. 823.
Supreme Court of Alabama.
June 16, 1955.
*316 Alice L. Anderson, Enterprise, for petitioner.
Braxton B. Rowe, Enterprise, opposed.
SIMPSON, Justice.
Certiorari to the Court of Appeals.
It was the opinion of the Court of Appeals that the three matters numbered a, b, and c under § 1 constituted but one assignment of error and that since two of these assignments were bad, the entire assignment of error was of no avail. Bryan v. Day, 228 Ala. 91, 151 So. 854; White v. Henry, 255 Ala. 7, 49 So. 2d 779; Tucker v. City of Birmingham, 35 Ala.App. 540, 50 So. 2d 777.
Without deciding whether or not assignments b and c were too general to invite review, we note that it is stated in the beginning of § 1 that "the court erred in denying appellant's motion for a new trial set out on page 62 of the transcript herein." This assignment had the effect of raising as a distinct assignment of error every ground stated in the motion for new trial except that the verdict was contrary to law. Of such is the import of the celebrated case of Cobb v. Malone, 92 Ala. 630, 9 So. 738. A general assignment of error on appeal grounded on the refusal of the trial court to grant a motion for a new trial is sufficient to invite a review of the ruling on the basis of any ground well stated in the motion and properly argued by appellant; that is, when the motion for new trial is sufficient to specify the precise error alleged to have occurred, a general assignment of error on appeal for refusing the motion is sufficient to bring up for review those matters so precisely set out in the motion. See also Peoples Tel. Co. v. Buchanon, 37 Ala.App. 371, 374, 68 So. 2d 854. Cf. Groover v. Darden, 259 Ala. 607, 68 So. 2d 28.
We think, therefore, that the Court of Appeals should have treated all points properly raised by the motion for new trial and argued in that court. Of consequence the judgment of that court must be reversed.
Reversed and remanded.
All the Justices concur. | June 16, 1955 |
da4188ef-4142-489a-a349-3e2315467dac | Jordan v. CLARKE-WASHINGTON ELECTRIC MEMBER. CORP. | 80 So. 2d 527 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 527 (1955)
A. E. JORDAN
v.
CLARKE-WASHINGTON ELECTRIC MEMBERSHIP CORP.
1 Div. 616.
Supreme Court of Alabama.
May 19, 1955.
*528 Scott & Porter, Chatom, for appellant.
Adams, Gillmore & Adams, Grove Hill, for appellee.
PER CURIAM.
This is a petition for mandamus filed by appellant to require appellee to furnish electric service to him. The court sustained a demurrer to the petition and permitted an amendment to it. The court then sustained the demurrer to the petition as amended and dismissed it and rendered judgment against petitioner for the costs. Whereupon petitioner moved the court for a nonsuit for the purpose of reviewing the court's ruling sustaining the demurrer and dismissing the cause. The court granted the motion and ordered the nonsuit.
The one assignment of error is with reference to the decree sustaining the demurrer to the petition as last amended. We suppose this was done in an attempt to follow section 819, Title 7, Code. But this statute has no application when there is a final judgment disposing of the cause. The appeal is from the judgment dismissing the cause as well as from the nonsuit. Therefore, the appeal is sufficient for all purposes. Sections 761, and 1074, Title 7, Code. We will disregard the effort to take a nonsuit.
If the petition was subject to the demurrer interposed, and petitioner desired to amend again he should have so indicated. Failure to do so justified a judgment of dismissal. So that, our inquiry is whether the petition as last amended is subject to the demurrer interposed.
The petition refers to defendant as a corporation, but does not set out any part of the declaration of incorporation by which it may be determined whether it was under authority of Chapter 3, Title 18, section 31 et seq. Section 34, Title 18, requires the name shall include the word "cooperative", which seems to be absent from the name of this defendant. But it is apparent from the briefs and averments of the petition that it was incorporated by virtue of that statute. Section 38 of Title 18 is with reference to membership in the cooperative, and authorizes by-laws to prescribe the qualifications and requirements pertaining to membership. The petition does not show what they are.
Section 33 of Title 18 provides that the cooperative shall have power (among others) "to distribute, sell, supply, and dispose of electric energy to its members, to governmental agencies and political subdivisions, and to other persons not in excess of ten percent of the number of its members".
We have held that a cooperative organized under Acts approved February 7, 1935 and July 8, 1935, General Acts 1935, p. 100 and p. 229, Code 1940, Tit. 18, § 10 et seq., has "the duty of supplying all persons accessible to its lines with electricity when they meet the conditions prescribed." Alabama Power Co. v. Cullman County Electric Membership Corp., 234 Ala. 396(7), 174 So. 866, 869; City of Montgomery v. Greene, 180 Ala. 322, 60 So. 900; City of Mobile v. Bienville Water Supply Co., 130 Ala. 379, 30 So. 445. The present statute, section 33, Title 18, Code, does not prescribe such an absolute duty.
The petition alleges that petitioner has offered on numerous occasions to comply with any regulations imposed upon the members of the corporation, and it has offered to furnish petitioner with electric service but has not done so. Petitioner's residence, where he desires electric service, is alleged to be approximately one and one-half miles from defendant's service lines at Chatom. The petition does not set out the provisions of the by-laws as to the requirements for membership, and that petitioner has complied with them or offered to do so, or that non-members equal in number to ten percent of its membership are not already being served, and that he is accessible to its lines. As a matter of law it is not the absolute duty of a utility *529 bound to serve the public to extend its lines for one and one-half miles in order to serve one or two customers when they are not shown to be otherwise entitled to service.
The legal principle is that "the right of an inhabitant or group of inhabitants of a community or territory served by a public service company to demand an extension of service for their benefit is not absolute and unqualified, but is to be determined by the reasonableness of the demand therefor under the circumstances involved". That depends upon "the need and cost of such extension, and the return in revenue which may be expected as a result of the extension; the financial condition of the utility; the advantages to the public from such an extension; and the franchise or charter obligation to make such extension". 43 Am.Jur. 602, section 48.
In 58 A.L.R. 543, where the authorities are fully annotated, the principle is expressed as follows: "While the utility cannot fix the limits of the proposed extension at territory which will yield an immediate profit, and, on the other hand, cannot be required to make unreasonable extensions, there is a point midway between these extremes at which the utility may require of the proposed consumer assistance in the necessary outlay in furnishing the service".
It must be shown by the petition that petitioner has a clear legal right to demand an extension of the service wires to his home, that he is entitled to electric service from defendant, and that he has no other remedy to obtain it but a mandamus directing defendant to do so. Horton v. Interstate Telephone & Telegraph Co., 202 N.C. 610, 163 S.E. 694, 83 A.L.R. 947; 34 Am.Jur. 890, section 105. See, City of Decatur v. Mohns, 235 Ala. 640(2), 180 So. 297.
The petition as amended does not show such right according to the provisions of section 33, Title 18, supra, and other applicable principles, and the demurrer to it was properly sustained. By petitioner not seeking further amendment, his petition was dismissed without error. The judgment of the circuit court 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 LAWSON, STAKELY and MERRILL, JJ., concur. | May 19, 1955 |
bb30a8e9-6c3d-4d40-9679-e73f944fb0ec | Massey v. United States Steel Corporation | 86 So. 2d 375 | N/A | Alabama | Alabama Supreme Court | 86 So. 2d 375 (1955)
Lena Mae MASSEY
v.
UNITED STATES STEEL CORPORATION, T. C. I. Division.
6 Div. 786.
Supreme Court of Alabama.
August 18, 1955.
Rehearing Denied April 12, 1956.
*376 Lipscomb, Brobston, Jones & Brobston, Bessemer, for appellant.
Burr, McKamy, Moore & Tate, Wm. Henry Beatty, Birmingham, for appellee.
LAWSON, Justice.
This is a workman's compensation case instituted in the circuit court of Jefferson County, Bessemer Divison, by Lena Mae Massey against United States Steel Corporation, T. C. I. Division, to recover compensation for the death of her husband, Felix Monroe Massey.
We granted certiorari on application of the plaintiff below to review the trial court's judgment denying compensation.
Plaintiff's husband, to whom we will sometimes hereafter refer as the employee, died in a hospital in Fairfield on August 13, 1952. Death was "due to a dissecting aortic aneurysm." The words just quoted are from the trial court's finding of facts, which goes into a rather detailed discussion of the medical testimony as it relates to the meaning of the words "dissecting aortic aneurysm." We think it will suffice for present purposes to say that the trial court found that death was caused by the rupturing of a soft pulsating tumor containing blood, which tumor resulted from preternatural dilation of the diseased coating of a large blood vessel.
The rupture occurred on the afternoon of August 11, 1952, just as the employee was completing a shower bath in a bathhouse which the defendant company owned and maintained on its premises and which its employees were not required to use, but were permitted to use if they so desired, without any charge.
At the time of his death Massey was employed as a hoisting engineer, that is, he operated a machine which pulled the workmen from the "ore slope to the limestone slope." His duties did not require strenuous physical labor nor were his working conditions abnormal.
The last shift on which the employee worked was from 7:00 A. M. to 3:00 P. M. on August 11, 1952. At about 3:00 P. M. he went to the "check-house" located near the mouth of the mine, where he checked out for the day. He was entitled to no compensation after he checked out and he *377 was then free to go about his own affairs, having completed his duties for the day.
After checking out Massey "walked at a fast pace or moved at a slow trot" to the bathhouse located approximately two city blocks from the check-out house. Upon arriving at the bathhouse, the employee proceeded to take a shower bath with unheated water, although heated water was available. As heretofore shown, Massey was in the act of coming out from under the shower when he was stricken and fell to the floor. The use of the unheated water after a rapid walk on a warm day increased the employee's blood pressure and caused the diseased or weakened blood vessel wall to break.
The foregoing is a summary of the finding of facts as made by the trial court.
Having found those facts to exist, the court was confronted with the question as to whether they were sufficient to support the conclusion that the death of plaintiff's husband was caused by an accident arising out of and in the course of his employment. § 253, Title 26, Code 1940.
The court concluded from those facts that the employee's death was caused by an accident which occurred in the course of his employment, but further determined that the accident did not arise out of the employment and proceeded to render judgment in favor of the defendant below.
The appellant, plaintiff below, does not question the finding of facts made by the trial court. She admits that such finding is correct and has not brought to this court the evidence taken on the trial below.
It is the appellee's insistence that the sole question presented for our consideration is whether or not the trial court correctly concluded from these facts that the accident which it found caused the death of plaintiff's husband did not arise out of his employment. We cannot agree that our review is so limited. Our review is of the judgment rendered in favor of the defendant, not of the reasons given by the trial court for rendering that judgment. In other words, we are not limited to a consideration of the conclusion reached by the trial court upon which it denied recovery to plaintiff. Before we would be justified in reversing the judgment, we must be satisfied from the facts as found by the trial court that it correctly concluded that the death of plaintiff's husband was caused by an accident which was in the course of his employment and be satisfied further that the trial court incorrectly concluded from the facts as found that the accident did not arise out of the employment.
We will consider first the question as to whether the facts as found by the trial court as to the cause of death are sufficient to support the conclusion that death of the employee was caused "by an accident" within the meaning of our compensation law. § 253, Title 26, Code 1940.
The trial court's conclusion that death was caused "by an accident" was not based on a finding that the rupture was caused by a fall, slip or blow, but was grounded on the finding "that the unheated shower after a rapid walk on a warm day increased his blood pressure and caused the dissecting [rupture] aortic aneurysm."
In § 262, Title 26, Code 1940, it is said:
In Pow v. Southern Const. Co., 235 Ala. 580, 180 So. 288, it was pointed out that an injury to be compensable need not be an external traumatic injury. And in Gadsden Iron Works v. Beasley, 249 Ala. 115, 30 So. 2d 10, we upheld an award where the cause of death was a heart attack. In De Arman v. Ingalls Iron Works *378 Co., 258 Ala. 205, 61 So. 2d 764, 767, we said: "The test as to whether injury is unexpected and unforeseen so if received on a single occasion occurs `by accident' is that the sufferer did not intend or expect that injury would on that particular occasion result from what he was doing."
And in the cases of Davis Lumber Co. v. Self, Ala., 82 So. 2d 291, and Alabama Textile Products Corp. v. Grantham, Ala., 82 So. 2d 204, this day decided, we upheld awards where the injuries were not caused by a fall, slip or blow.
Other courts have held that death was caused "by an accident" when it was shown to have resulted from the rupturing of an arterial aneurysm due to exertion and strain. Evans v. Cavanagh, 58 Idaho 324, 73 P.2d 83; Southern Shipping Co. v. Lawson, D.C., 5 F. Supp. 321; Larson v. Blackwell Lumber Co., 48 Idaho 136, 279 P. 1087; Kayser v. Eric County Highway Dept., 276 App.Div. 789, 92 N.Y.S.2d 612; Jones v. Town of Hamden, 129 Conn. 532, 29 A.2d 772; Haskell & Barker Car Co. v. Brown, 67 Ind.App. 178, 117 N.E. 555. See E. Baggot Co. v. Industrial Commission, 290 Ill. 530, 125 N.E. 254, 7 A.L.R. 1611; Lumbermen's Mut. Casualty Co. v. Griggs, 190 Ga. 277, 9 S.E.2d 84; Bussey v. Globe Indemnity Co., 81 Ga.App. 401, 59 S.E.2d 34; Fealka v. Federal Mining & Smeltering Co., 53 Idaho 362, 24 P.2d 325.
We hold that the trial court correctly concluded that the death of the employee was caused "by an accident" within the meaning of our compensation law, having found that death was caused by the rupturing of an aortic aneurysm and that the immediate cause of the rupture was the exertion and strain incident to walking rapidly and the cold shower. Of course, the fact that the aorta was in a diseased condition does not preclude compensation. Gadsden Iron Works v. Beasley, supra.
We have often found it necessary to construe the words "arising out of and in the course of his employment", § 253, Title 26, Code 1940, but it has been said no all-embracing definition has yet been found. Carraway Methodist Hospital v. Pitts, 256 Ala. 665, 57 So. 2d 96. Every case involving these words should be decided upon its own particular facts and circumstances and not by reference to some formula. But it is usually said that the phrase "arise out of" employment refers to employment as the cause and source of the accident. Southern Cotton Oil Co. v. Bruce, 249 Ala. 675, 32 So. 2d 666. The rational mind must be able to trace the resulting injury to a proximate cause set in motion by the employment and not by some other agency. Dean v. Stockham Pipe & Fittings Co., 220 Ala. 25, 123 So. 225. We have said that the phrase "in the course of his employment" refers to the time, place and circumstances under which the accident took place. An injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in doing something incident to it. Mobile Liners v. McConnell, 220 Ala. 562, 126 So. 626; Southern Cotton Oil Co. v. Bruce, supra; Carraway Methodist Hospital, Inc., v. Pitts, supra.
The question before us also involves proper application of subdivision (j) of § 262, Title 26, Code 1940, as amended, which defines the circumstances in general terms when an accident arises out of and in the course of one's employment. See Sloss-Sheffield Steel & Iron Co. v. Thomas, 220 Ala. 686, 127 So. 165. That subdivision purports to exclude from compensation all injuries and death except while employees are "engaged in, on, or about the premises where their services are being performed, or where their service requires their presence as a part of such service at the time of the accident, and during the hours of service as such worker." This clause has received much consideration.
In Jett v. Turner, 215 Ala. 352, 110 So. 702, 703, we said that the part of the subdivision (j) quoted above contains the following three conditions: "(1) One of relation `while engaged in' the service, while *379 the hazards of the employment are present, risks which the law aims to make in some measure the burden of industry rather than the burden of the victim of the accident. (2) One of place, viz., `On or about the premises' where their services are being performed, or where their service requires their presence as a part of such service at the time of the accident.' (3) One of time, viz., `during the hours of service as such workmen.'"
This court has had occasion to consider the provisions of subdivision (j), supra, with reference to injuries to employees caused by accident occurring on the premises of the employer shortly after the employees' actual service as workmen had been completed for the day and while actually engaged in the act of leaving the premises of the employer en route to their homes.
In House v. Louisville & N. R. Co., 208 Ala. 216, 94 So. 289, we upheld an award made for the death of an employee which resulted from falling over a rail or track situated on the employer's premises. The employee's actual service had been terminated only a few minutes before the fall and at the time of the fall the employee was in the act of leaving the employer's premises by a route or way of departure which the employees were authorized to use in going to and from their homes. In that case, after taking cognizance of the provisions of law now codified as subdivision (j) of § 262, Title 26, Code 1940, and of the phrases "arising out of" and "in the course of employment", we said:
"Definitions or descriptions of these phrases, elsewhere approved, are repeated in Ex parte Majestic Coal Co. [Ala., 93 So. 728] supra. It will now suffice to say, in the light of those authorities, that an employee's injury is within the prescription of these phrases of the Alabama act if, when the injury was received, the employee was either doing the work or performing the service he was engaged to do or perform, or was engaged in an act or service naturally related thereto, such as a reasonable judgment would refer either to the express or the implied elements of the contract of employment, such as a reasonable conception would conclude to be a natural incident of the employee's engagement. Within the purview of such naturally related and incidental acts in the course of the employment is the movement of the employee in entering, at the appropriate time, the employer's premises to discharge his function; his preparation to begin and to terminate his actual service; and to leave the premises at an appropriate time after the completion of his actual service. Gane v. Norton Hill Co., 2 K.B. (1909) 539; Terlecki v. Strauss, 85 N.J. L. 454, 89 A. 1023; 1 Honnold, pp. 358, 367, 368 et seq." 208 Ala. 219, 94 So. 292.
In Overton v. Belcher, 232 Ala. 396, 168 So. 442, we reversed the judgment of the circuit court denying compensation to the widow of an employee where it was made to appear that the employee was killed on the premises of his employer and while leaving the place of employment at the end of his day's service. The employee died as a result of injuries received when he was run over by a truck owned by the employer and which the employee was attempting to board for the purpose of riding to his home in accordance with an established custom.
The cases to which we have just referred are authority for the proposition that plaintiff's right to compensation for the death of her husband is not destroyed merely because his actual services for the day had been completed, or because he was not at the location on the employer's premises where his actual services were performed.
In Hayes v. Alabama By-Products Corp., 242 Ala. 148, 5 So. 2d 624, we affirmed a judgment of the trial court denying compensation for death caused by an accident which occurred in a bathhouse, after working hours, and on property owned by the employer but under lease to a third person. The bathhouse had been constructed by the lessee at his own expense and without the knowledge or consent of the employer. The employee was permitted by *380 the lessee to use the bath for the sum of $1 per month. The employer provided no bathing facilities for its employees. We took note of our holdings in the Jett and Overton Cases, supra, but distinguished them from the case there at hand on the ground that "here the employee was injured when using services not provided free by the employer, but rather provided by a third person at a charge to the employee." That ground of distinction does not exist here for, as shown above, the bathing facilities were furnished by the employer, which permitted the employees the use thereof without compensation. There is an additional distinction between the case at bar and the Hayes Case, supra. Here the facilities were located on the premises where the employee performed his services for the employer while, as shown above in the Hayes Case, supra, the bath was on premises leased by the employer to a third person for the purpose of operating a boarding house. The case of Colorado Industrial Commission v. Rocky Mount Fuel Co., 107 Colo. 226, 110 P.2d 654, like our Hayes Case, involved an accident which occurred while the employee was using a shower for which he had to pay compensation.
Our holdings in the House and Overton Cases, supra, are based on the proposition that an employee, while in the act of leaving his employer's premises, where his service has been performed, at an appropriate time after the completion of his actual service, is engaged in an act naturally related and incidental to the service or work which he was engaged to perform. We think the same rule applies to the facts of the instant case where the employee, although not actually moving off the premises at the time he was stricken, was taking a bath at the time and place and in the manner heretofore related in preparation for his homeward journey after a day's work in a mine.
The case of Carraway Methodist Hospital v. Pitts, supra, is authority for the proposition that the workmen's compensation law may be applicable although the employee was not actually on duty at the time of injury.
In denying compensation on the ground that the accident did not arise out of the employment, the trial court observed:
We think the heat exhaustion cases should stand in a class by themselves, because their generalized nature makes it difficult factually to attribute the attack to the work or to an act incident thereto.
But in a case such as this, where there is a breakage of a blood vessel resulting *381 from strain or exertion, the question of compensation or not should be determined much in the same manner as if a leg or arm was broken.
In the House Case, supra, the employee was not engaged in the performance of the actual duties for which he was employed. He elected to pursue a route across his employer's premises which would lead him to a place where he could catch a train operated by his employer. He was not required to follow that route or to ride the train. He fell over a railroad track, broke his leg, and died as a result of that injury. As shown above, we held compensation properly awarded. And in the Overton Case, supra, we held compensable the death of the employee who was killed when "he attempted to board this truck, slipped and was thrown under the wheels, the truck passing over his body." There the employee acted voluntarily in attempting to catch the truck. There was no requirement that he leave the premises on his employer's truck and certainly he was not expected to attempt to board a moving truck.
The questions presented on this review are difficult of decision, but we feel that the facts as found by the trial court lead to the conclusion not only that the employee's death was caused "by an accident," but that the accident arose out of and in the course of the employment. See Taylor v. 110 South Pennsylvania Avenue Corp., 117 N.J.L. 346, 188 A. 689; Terlecki v. Strauss, 85 N.J.L. 454, 89 A. 1023; Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S.W. 152, 13 A.L.R. 524.
The judgment of the circuit court is reversed and the cause is remanded, with directions to the circuit court to fix the compensation and enter judgment for plaintiff.
Reversed and remanded.
SIMPSON, GOODWYN, MERRILL and MAYFIELD, JJ., concur. | August 18, 1955 |
101e8c2b-2754-456f-a801-6493381dc9e3 | Tolbert v. City of Birmingham | 81 So. 2d 336 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 336 (1955)
Mae TOLBERT
v.
CITY OF BIRMINGHAM et al.
6 Div. 427.
Supreme Court of Alabama.
June 16, 1955.
*337 Geo. Rogers and W. A. Jenkins, Jr., Birmingham, for appellant.
Wm. L. Clark, Birmingham, for appellee City of Birmingham.
Bainbridge & Mims, Beddow & Jones and Robt. W. Gwin, Birmingham, for individual appellees.
GOODWYN, Justice.
Appellant, plaintiff below, brought suit against the City of Birmingham to recover damages for personal injuries allegedly sustained on October 31, 1949, as the result of a fall on a defective public sidewalk. To comply with Code 1940, Tit. 62, § 659, plaintiff filed with the City Clerk of Birmingham on November 22, 1949, a sworn statement of claim reciting the following:
The original suit was filed on December 22, 1949.
The City demurred to the complaint and on November 1, 1950, moved for a non-suit on the ground that Mrs. L. A. Latham, as lessee, and Dr. Dan C. Donald and Mrs. Dan C. Donald, as owners, of the property abutting the defective sidewalk should have been joined as parties-defendant for the reason that they are "the persons primarily liable for the condition of the sidewalk at the placed referred to in the plaintiff's complaint." The City's motion for non-suit contains an averment to the effect that on May 24, 1950, the City's attorney of record informed the plaintiff's then attorney of record of the names of the parties that should have been joined with the City as parties-defendant. Plaintiff answered the motion, denying each and every allegation and demanding strict proof. Evidence on the motion was then taken orally before the court. Thereupon the court, on November 2, 1950, entered judgment that said parties should have been joined as defendants and that "unless the complaint is amended so as to join said parties as defendants the motion for a nonsuit will be granted." The complaint was then amended on November 24, 1950, by adding said parties as defendants and amended further on March 24, 1952, by adding the following to the one count of the amended complaint:
The newly joined defendants, Mrs. Latham and the Donalds, interposed a plea, separately and severally, that "the cause of action, as alleged in the plaintiff's complaint as last amended, is barred by the statute of limitations of one year." Plaintiff demurred to this plea.
The City demurred to the complaint as last amended. The grounds assigned all go to the sufficiency of the sworn statement, supra, filed with the City Clerk on November 22, 1949, to meet the requirements of Code 1940, Tit. 62, § 659, supra. This section applies specially to the City of Birmingham and provides as follows:
"§ 659. Claims for personal injury and property damage filed within ninety days.No suit shall be brought or maintained nor shall any recovery be had against the city on a claim for personal injury, or for neglect or wrongful injury to personal property, unless within ninety days from the receipt of such injury, a sworn statement be filed with the city clerk, or the city officer corresponding thereto, by the party injured, stating substantially the manner in which the injury was received and the day and time and place where the accident occurred, and the damage *339 claimed, and stating with substantial accuracy the nature and character of the injury received and the street and house number where the party injured resides."
For requirement for filing of tort claims against cities generally, see Code 1940, Tit. 37, §§ 476, 504. The specific defects pointed out by the demurrer are that the complaint shows on its face that the sworn statement filed with the city clerk (1) "does not sufficiently state the place where the accident occurred", (2) "does not show with sufficient certainty whether the alleged accident occurred on Third Avenue North between 23rd and 24th Streets or on 24th Street between 2nd and 3rd Avenues, or on 21st Street between 2nd and 3rd Avenues", and (3) "does not state the street and house number of plaintiff" nor "with sufficient certainty the residence address of the plaintiff."
Judgment was rendered overruling plaintiff's demurrer to the plea of the statute of limitations and sustaining the City's demurrer to the complaint as last amended. Plaintiff's motion for a non-suit being granted, she brought this appeal for review of said rulings.
Argument is made on behalf of the City that to permit a claimant "to ignore the requirements of the statute pertaining to the joinder of persons liable with the City and thereby place such persons in a position where they can set up the statute of limitations as a defense after being joined upon order of the trial court, the power to defeat the purpose of the mandatory provisions of the statutes referred to is within the hands of the attorneys for the claimant." It is further argued "that the term `personal defense' as used in Section 503 [Code 1940, Tit. 37] was never intended to apply to a defense under the statute of limitations which is allowed to operate as a result of a deliberate failure on the part of the claimant's attorneys to join as parties defendant the persons primarily liable"; and that "a contrary conclusion by this Court in this case would virtually emasculate the mandatory provisions pertaining to the joinder of the persons who are primarily obligated to respond in damages to a claimant."
Code 1940, Tit. 7, § 26, prescribes a limitation of one year within which an action for personal injuries must be commenced. It is shown by the complaint that the injuries were sustained on October 31, 1949. And the record shows that the action against defendants Mrs. Latham and the Donalds was commenced on November 24, 1950, more than a year after the injuries were sustained, by adding them as parties-defendant in the suit against the City, which was commenced within the one year period. In this situation, it seems clear that the demurrer to the plea was properly overruled.
We have held that, as against a party added by amendment, the statute of limitations continues to run until the amendment is filed making him a party to the suit. Ruffin v. Crowell, 253 Ala. 653, 658, 46 So. 2d 218; Birmingham Gas Co. v. Sanford, 226 Ala. 129, 133, 145 So. 485; Sibley v. Bowen, 222 Ala. 13, 14, 130 So. 547; Roth v. Scruggs, 214 Ala. 32, 34, 106 So. 182, 185. As stated in the last cited case of Roth v. Scruggs:
In discussing the question in Sibley v. Bowen, supra [222 Ala. 13, 130 So. 548], we said the following:
We see nothing in § 503, Tit. 37, Code 1940, supra, which has the effect of suspending the running of the statute of limitations as to persons who are jointly liable with the City. Section 503 is as follows:
As we view it, the legislature simply did not see fit to make the running of the statute of limitations unavailable as a defense to parties who might be joined as defendants with the City. It is obvious, as argued by the City, that such omission makes it possible for a plaintiff to circumvent the effective joinder as defendants of parties who might be jointly liable with the City. But the remedying of that situation rests with the legislature and not with us.
That a plea of the statute of limitations is a "personal defense" seems to be well established. May v. Mathers, 233 Ala. 654, 657, 172 So. 907; Evans v. Faircloth-Byrd Mer. Co., 165 Ala. 176, 179, 51 So. 785; Stoutz v. Huger, 107 Ala. 248, 253, 18 So. 126; 53 C.J.S., Limitations of Actions, § 24, p. 958; 34 Am.Jur., Limitation of Actions, Sects. 13, 405, pp. 23, 318.
The remaining question to be decided is whether the statement of claim filed with the City Clerk on November 22, 1949, meets the requirements of § 659, Tit. 62 Code 1940, supra. We are constrained to hold that it does. We have held that the filing of a claim in accordance with Section 659 is mandatory and a condition precedent to the right to sue the City. But we have also held that substantial compliance will suffice; and that technical accuracy is not required. Cole v. City of Birmingham, 243 Ala. 561, 563, 11 So. 2d 148; City of Birmingham v. Hornsby, 242 Ala. 403, 405, 6 So. 2d 884; Downs v. City of Birmingham, *341 240 Ala. 177, 185, 198 So. 231; City of Birmingham v. Weston, 233 Ala. 563, 565, 566, 172 So. 643, 109 A.L.R. 970; Grambs v. City of Birmingham, 202 Ala. 490, 492, 80 So. 874; City of Birmingham v. Edwards, 201 Ala. 251, 255, 77 So. 841; McKinnon v. City of Birmingham, 196 Ala. 56, 57, 58, 71 So. 463. The statute does not contemplate that the statement of claim shall be drawn with all the technical nicety of a pleading.
In discussing the sufficiency of the statement of claim required by Section 659, supra, this court, in City of Birmingham v. Hornsby, supra [242 Ala. 403, 6 So. 2d 885], had this to say:
The place where the injuries were received is described in the complaint as being "at or near the Southwest corner of the intersection of Twenty-fourth Street and Third Avenue, North, on the West side of Twenty-fourth Street, to-wit, at or near the corner where Twenty-fourth Street intersects Third Avenue, North, in the City of Birmingham, Jefferson County, Alabama." In the complaint as last amended there is further identification of the place as being on the public sidewalk which abuts upon the premises of the individual defendants designated as 2331 3rd Avenue, North. In the statement of claim the place is described as being on a public sidewalk "at or near the Southwest corner of the intersection of 24th Street and 3rd Avenue, North," and also as being "on the West side of Twenty-first Street, to-wit, at or near the corner where Twenty-first Street intersects Third Avenue, North". In this situation the first question presented is whether the statement of claim is rendered fatally defective in giving two entirely different locations as the place where the accident occurred. We think not, and will give our reasons for so holding later on in this opinion. There is then presented another question: Assuming, as we must in the present posture of the case, that the correct location is that as alleged in the complaint, was the description of that location as given in the statement of claim a sufficient compliance with the requirements of Section 659, supra? Our view is that the description is in substantial compliance with the statute and that the statement of claim, on its face, is not fatally defective. We proceed to give our reasons for these conclusions.
With respect to the first question, it seems to us that the principle approved in Cole v. City of Birmingham, supra [243 Ala. 561, 11 So. 2d 149], is analogous to the situation here and is of controlling influence. In that case a notice to the municipality stated that claimant sustained his injury on two different dates. In holding that the notice was not so defective as to prevent maintenance of the action, this court observed that "although two dates are mentioned in the notice, the city authorities were advised that the claimant hoped to recover for an injury sustained on one of the days mentioned in the notice, and while the imperfection in the notice probably required the city authorities to investigate as to the condition of the street on both days, we do not think this fact should be held to prevent the plaintiff from having her day in court."
Also in the Cole Case this court quoted with approval the following from Canter v. City of St. Joseph, 126 Mo.App. 629, 105 S.W. 1, 2:
As to the second question, it is to be noted that the ruling under review is on a demurrer to the complaint. The effect of the judgment sustaining the demurrer going to the sufficiency of the statement of claim is to hold that its insufficiency is affirmatively shown by the statement itself. Tested in the light of the purpose of the statuteto afford the municipal authorities an opportunity to investigate the claimwe cannot, in the present status of the case, say that the place of the accident is inadequately stated. "At or near the Southwest corner of the intersection of 24th Street and 3rd Avenue, North", to be sure, places the accident at two possible points, one on 24th Street and the other on 3rd Avenue, North. But one of these places is the correct location. Accordingly, there seems no good reason why the principle applied in answering the first question is not also applicable here.
Stating the "street and house number where the party injured resides" is ordinarily indispensable to the maintenance of the action, and a statement of claim which contains no reference to the claimant's place of residence is fatally defective. But that does not mean that the law requires the performance of an impossibility, as where the claimant's residence is on an unnamed road or street or does not have a house number. In such a situation, it seems to us that the statute is complied with where there is a bona fide attempt to comply with the law and the statement filed accomplishes its purpose of notice. The purpose of the requirement is to enable the municipal authorities to locate or to communicate with the claimant. And this purpose is accomplished "if an address is given at which or through which claimant may be found in order that the municipal authorities may make such investigation of the merits as may be desired." 63 C.J.S., Municipal Corporations, § 925, p. 356. We are unwilling to hold that the statement of claim now before us affirmatively shows a noncompliance with the requirements as to claimant's residence. We judicially know that the residence addresses of rural inhabitants are often stated in the same manner as claimant stated her residence. For us to say, at this stage of the case, that the purpose of the statute has not been substantially complied with would take us into the realm of conjecture and speculation. We would not be warranted in assuming that the municipal authorities have been unable, by the exercise of reasonable diligence, to locate claimant's residence from the address as given or that they have been misled by the address as given. Those are questions more properly to be determined from evidence which might be offered on the particular issues.
From what we have said it follows that the action of the trial court in overruling the demurrer to the plea of the statute of limitations is due to be here affirmed, and that the action of the trial court in sustaining the demurrer to the complaint as last amended and dismissing the suit should be reversed and the cause remanded. It is so ordered.
Affirmed in part, reversed in part, and remanded.
All the Justices concur. | June 16, 1955 |
e963fb20-5ef8-4654-8009-94d1bc002d6a | Weekley v. Horn | 82 So. 2d 341 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 341 (1955)
Herman Henry WEEKLEY
v.
Sarah HORN, as Adm'x.
1 Div. 604.
Supreme Court of Alabama.
August 18, 1955.
Rehearing Denied September 22, 1955.
J. B. Blackburn and Jas. R. Owen, Bay Minette, for appellant.
John Chason, Chason & Stone, Bay Minette, and Robt. E. Hodnette, Jr., Tonsmeire & Hodnette, Mobile, for appellee.
MAYFIELD, Justice.
This is an appeal from a judgment rendered in favor of the plaintiff by the Circuit Court of Baldwin County. The action was for wrongful death under Code of 1940, Title 7, Section 123. Appellant's principal insistence relates to a single assignment of error, wherein it is contended that the trial court erred in overruling ground 6 of his motion for a new trial. The pertinent portion of that motion is as follows:
We must first decide whether the affidavit of Derrill Stuart could properly be considered in connection with a motion for a new trial.
The general rule in Alabama, as well as in a majority of jurisdictions, is that affidavits of jurors will not be accepted for the purpose of impeaching their own verdict. Florence Coca Cola Bottling Co. v. Sullivan, 259 Ala. 56, 65 So. 2d 169; Lackey v. Lackey, Ala., 76 So. 2d 761; Birmingham Electric Co. v. Yoast, 256 Ala. 673, 57 So. 2d 103, 30 A.L.R.2d 907; Gulf States Steel Co. v. Law, 224 Ala. 667, 141 So. 641; Continental Casualty Co. v. Ogburn, 186 Ala. 398, 64 So. 619; Birmingham Ry. Light & Power Co. v. Moore, 148 Ala. 115, 42 So. 1024. The basis for the rule is well expressed in Gulf States Steel Co. v. Law, supra [224 Ala. 667, 141 So. 645], as follows:
There is an exception to the general rule that the affidavits of jurors will not be received to impeach their own verdict. This exception arises when the affidavits tend to show the extraneous facts which have influenced the verdict. Central of Georgia Ry. Co. v. Holmes, 223 Ala. 188, 134 So. 875; Alabama Fuel & Iron Co. v. Powaski, 232 Ala. 66, 166 So. 782; McCormick v. Badham, 204 Ala. 2, 85 So. 401; Dulaney v. Burns, 218 Ala. 493, 119 So. 21; Alabama Fuel & Iron Co. v. Rice, 187 Ala. 458, 65 So. 402. It is on this exception that appellant relies and grounds his contention.
No cases are brought to our attention wherein this court has sought to define the meaning of extraneous facts within the stated exception. The cases which the appellant brings to our attention involve the consideration by juries of papers, documents, a dictionary, etc., which were not introduced into the evidence. We shall not here attempt to define and limit the term extraneous facts as embraced in the exception to the general rule. Each case must be decided in the light of attending circumstances.
Our prior opinions clearly establish that remarks between jurors during their deliberation, even though improper, are not such extraneous facts. In Central of Georgia Railway Co. v. Holmes, supra [223 Ala. 188, 134 So. 877], is found the following:
The following statement is found in Alabama Fuel & Iron Co. v. Powaski, supra [232 Ala. 66, 166 So. 787]:
While the decisions of our sister states are not uniform, the best considered opinions from other jurisdictions seem to have reached the same conclusions. In adopting the rule of a previous Massachusetts case, the Supreme Court of Michigan stated:
In Brabham v. State of Mississippi, 96 F.2d 210, 214, rehearing denied at 97 F.2d 251, certiorari denied 305 U.S. 636, 59 S. Ct. 103, 83 L. Ed. 409, the Court of Appeals for the Fifth Circuit said:
See, also, Margiotta v. Aycock, 162 Va. 557, 174 S.E. 831; Columbia Amusement Co. v. Rye, 288 Ky. 179, 155 S.W.2d 727.
To allow the deliberations of juries and the propriety of their discussions to be impeached by affidavits would abrogate the rule rather than create an exception. If the rule were otherwise it would allow and invite a veritable barrage of post trial affidavits, garnered and sought by nonsuccessful litigants in search of reversible error. This is the reason behind the rule which prevents a consideration of such affidavits.
In the light of the above, we conclude that the affidavit of Derrill Stuart comes within the general rule that jurors may not, by their own mouths, impeach their own verdict, and that this affidavit could not properly be considered on motion for new trial. As nothing further was offered in support of this portion of the motion, it follows that the sixth ground for the motion for new trial was properly overruled.
Appellant also makes assignments of error to the effect that the verdict is contrary to the evidence, and that the verdict is contrary to the charge of the court concerning contributory negligence. No authority is cited in support of these portions of the appellant's argument. However, we have carefully reviewed the evidence contained in the record. It is not disputed that George Craige died as the result of being struck by the defendant's automobile. The testimony adduced by the plaintiff was clearly sufficient to establish negligence on the part of the defendant and the absence of contributory negligence on the part of the deceased. While defendant's evidence was in direct conflict in many material respects, the credibility of the evidence made a jury question and the jury determined the question against the defendant. We, therefore, find that the trial court did not err in refusing to set aside the verdict.
It results that judgment is due to be, and is hereby, affirmed.
Affirmed.
LAWSON, STAKELY, GOODWYN and MERRILL, JJ., concur. | August 18, 1955 |
5bf27ce0-1df2-4207-ade4-740b60e6379a | Rhodes v. Schofield | 82 So. 2d 236 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 236 (1955)
C. C. RHODES
v.
W. B. SCHOFIELD.
4 Div. 839.
Supreme Court of Alabama.
August 18, 1955.
*237 Baldwin & Baldwin, Andalusia, for appellant.
J. C. Fleming, Elba, for appellee.
PER CURIAM.
This is an appeal from a final decree in equity rendered on a trial heard on testimony given ore tenus before the trial judge.
The bill of complaint was filed by a married man and sought to vacate a mortgage alleged to have been executed by complainant and his wife to respondent to secure an alleged indebtedness of $5,000, borrowed for the purpose of paying to a corporation then being organized, the consideration for capital stock issued to him at the time.
The bill first alleges that complainant and his wife did not execute (sign) the mortgage at all, but complainant does not seem to rely on that contention at this time. There is no doubt but that he and his wife did sign the instrument. In the alternative, the bill alleges that the mortgage was without consideration (this is not supported by the evidence), and that there is no due date of the note which is secured by the mortgage and it is not in default. The theory on which that contention is based is that the note, secured by the mortgage, recites: "In terms as stated below, I or we promise to pay to the order of W. B. Schofield (respondent) five thousand and no/100 dollars for value received, in lawful money of the United States, without interest payable at the First National Bank of Opp, in Opp, Alabama." It then contains provisions waiving exemptions and for an attorney's fee, after which is the following: "The above sum of five thousand dollars ($5,000.00) to be paid by C. C. Rhodes (the complainant) from his share of the profits from the operation of the Opp Livestock Market as said business concern shall ear(n) [sic] profits." The bill alleges that respondent has advertised the land for sale under the power given in the mortgage. It prays for a cancellation of the mortgage and offers to do equity, but does not seek an injunction of the sale.
*238 An amendment to the bill alleges that the land described in the mortgage (which consists of 105 acres) was occupied by complainant as a homestead at the time of the purported execution of the mortgage; that it purports to be acknowledged before J. C. Rodgers as a notary public in said county; that at that time said Rodgers was not a duly commissioned notary public in said county and had not executed an official bond, and that the mortgage is void for want of proper acknowledgment before an officer authorized by law. It then alleges that respondent has proceeded with a foreclosure sale of the land under the power contained in the mortgage, and at the sale J. M. Chambers became the purchaser; that he has conveyed his interest so acquired to the respondent, and that the sale to Chambers and by him to respondent are clouds on his title and should be cancelled, with prayer for such cancellation and for general relief.
There was no demurrer to the bill as finally amended, but there were answer and cross bill. They admit that complainant and his wife resided on the land as a homestead when the mortgage was executed. Respondent neither admitted nor denied that Rodgers was a duly qualified notary public. (The court found that he was not duly qualified.)
The cross bill alleges that the land included in the mortgage was of the value of $6,000 at the time of the execution of the mortgage, to wit, November 16, 1948; that the land to the extent the homestead exceeds in value $2,000 is subject to said mortgage and as to it the mortgage is not invalid by the failure to have a proper acknowledgment by the wife; that if the mortgage was not duly witnessed or acknowledged, it operates as an agreement to make a valid mortgage to the extent that the land was worth more than $2,000 at that time. It prays that on final hearing the value of the land be appraised and that a homestead of the value of $2,000 be carved out of it and the remainder be subjected to cross complainant's debt, and for general relief. Complainant's answer to the cross bill merely denies in general terms its allegations.
From the evidence taken before the trial judge, he found in substance that complainant's wife signed the mortgage before an officer (Clarence Byrd) who did not certify to an acknowledgment and did not sign it as a witness. That complainant then took it to J. C. Rodgers, "purporting to be a notary public, although in fact he was not such a notary", and complainant "at said time placed his signature on said instrument": that he then took the instrument bearing his signature and that of his wife and delivered the same with the note to respondent. "The court further finds from the evidence that said instrument, namely, said purported mortgage, was not witnessed nor was any acknowledgment taken of C. C. Rhodes (complainant) by any person authorized to do so, the said J. C. Rodgers not being a notary public, and that the said Clarence Byrd never certified, as required by law, the acknowledgment of Mrs. O. B. Rhodes."
The court found other facts not controverted nor material here to rehearse, and decreed:
(1) The purported mortgage was not duly executed as such and is ineffective to the extent that the land is exempt as a homestead; and not properly executed as a mortgage to the extent that the land exceeds in value $2,000.00, but to that extent it is effective as a contract to execute a mortgage.
(2) That a lien was thereby impressed on such excess.
(3) A personal judgment against complainant was rendered for $5,000.
(4) The foreclosure under the power of sale was declared null and void.
(5) The foreclosure deed was cancelled.
(6) That complainant has thirty days in which to pay said debt of $5,000.00 and the costs of court.
*239 (7) If said debt is not paid in thirty days, the register will hold a reference and report:
(a) The amount of any mortgage indebtedness to the Federal Land Bank secured by a mortgage on all of said land.
(b) The market value of it all on November 16, 1948, "as though no mortgage had been placed thereon".
(c) Describe a homestead as of November 16, 1948 not exceeding in value $2,000.00 out of said land, taking into consideration a mortgage, if there is one to the Federal Land Bank, guided by the selection of complainant.
(d) Describe land not included in the selected and approved homestead, also the amount of the mortgage, if any, to the Federal Land Bank that should be charged against said area not so selected.
(8) Further orders and relief were deferred.
Under this heading appellant contends that a personal judgment was improperly rendered against him for $5,000, and bases his argument to that effect upon two propositions: (1) that the note secured by the mortgage was only payable upon a contingency which is not shown to have occurred, and (2) that the debt is payable only out of a certain fund and has no other effect.
Before reaching that contention, we should call attention to the fact that in case of this kind, whether it is a bill to redeem or to cancel a mortgage on the one hand, or to foreclose a mortgage on the other, a personal judgment is only authorized by Equity Rule 119½ (see pocket part Code 1940, Tit. 7 Appendix and 240 Ala. XVI).
With respect to that situation, we observed in the case of Graham v. O'Neal, 242 Ala. 72, 4 So. 2d 897, 900:
It is of course well understood that when a mortgage is invalid and the mortgagor files a bill in equity to have it vacated on that account relief will be denied him unless he restores the consideration which he received from the mortgagee. Leonard v. Whitman, 249 Ala. 205, 30 So. 2d 241. But a personal judgment therefor is not due to be rendered against such a complainant except as authorized by Equity Rule 119½, supra. To obtain the benefit of that rule it is not necessary that the cross bill pray for the judgment. Qualls v. Union Central Life Ins. Co., 242 Ala. 619, 7 So. 2d 558. Therefore, a personal judgment should not have been rendered.
But when a personal judgment is the only error in the decree, it may be corrected on appeal to this Court and, as corrected, the decree in that respect will be affirmed. Winston v. Browning, 61 Ala. 80, 84; Baker v. Young, 90 Ala. 426, 8 So. 59.
We shall now consider appellant's propositions 1 and 2, supra, in this connection. The trial court found that no profits had been earned by the corporation and that there were no prospects of earning any and *240 that operations had been closed since the fall of 1950 and its assets disposed of. The bill of complaint in this suit was filed in June 1951. The evidence shows that after the certificates of stock in said corporation were issued to complainant, he "put them up" as collateral security for a loan from another party and that they were being so held at the time of the trial.
The court reasoned that the mortgage and note were not void on account of the clauses to which we have referred, and that they did not specify the only source from which payment of the debt should be made; and further reasoned that there would have been no occasion for a mortgage if it was understood that the debt was to be paid exclusively from the profits of the corporation. The court therefore found and decreed that the maturity of the note was a reasonable time after the corporation ceased to operate and its assets were disposed of; that the prospect of making a profit then terminated, and that a reasonable time thereafter had occurred so as to make the note due and payable, and, further, that there had been a default in the payment of the note at the time the bill was filed. The court cited in this connection the case of McCully v. McCully, 184 Okl. 264, 86 P.2d 786, to which we will refer and analyze.
The important question is whether the instrument, properly interpreted, means that the profits to be derived by complainant from the corporation constitute the only source from which the payment of the debt is agreed to be made. Otherwise stated, it is whether the payments are conditioned upon receiving profits from the corporation and whether the only promise in effect is to pay such profits as may be received and to pay the debt only to that extent.
Title 39, section 6, Code, relating to negotiable instruments is interesting in this connection in aid of the meaning of a conditional promise to pay. It has been generally said that this statute is an embodiment of a common law principle, and is that an unqualified promise to pay is unconditional although coupled with "an indication of a particular fund out of which reimbursement is to be made"; also that a "promise to pay out of a particular fund is not unconditional".
The distinction between those two principles is not very clear. It is said in 7 Am. Jur. 854, section 119: "The courts seem to have experienced some difficulty in determining whether particular instruments require payment to be made out of a particular fund. The true test in every case under the Uniform Act as well as the common law is whether the general credit of the maker or drawee accompanies the instrument. If it does, the instrument is negotiable (unconditional), otherwise it is not. Sacred Heart Church Building Committee v. Manson, 203 Ala. 256, 259, 82 So. 498. The wording of the particular instrument is not determinative of the question, but the intention of the parties as disclosed by the surrounding circumstances must also be considered. In this connection, it is to be borne in mind that the negotiability of bills and notes is favored in law, and whenever the promise can be held unconditional without doing violence to the ordinary meaning of the language used, it will be so held". (Italics supplied.)
Complainant insists that the case of People's Bank of Mobile v. Moore, 201 Ala. 411, 78 So. 789, 790, is direct authority for the proposition that the payment of the note here in question is conditioned upon the receipt of profits from the corporation. The Court in that case was dealing with the obligation of an endorser under the terms of his endorsement of a note, and held that it was limited to a fund to be derived by the maker of the note from a specified contract. The endorsers of the note obligated themselves as follows: "`The undersigned indorsers assume the contract shown by the face of this note. Payable from Pass Aux Heron U. S. Government contract, to be completed about June 1st, 1914'". The note was payable on demand by the maker without referring to such a contract. The question was whether the liability of the endorser extended only to receipts from the contract named in the endorsement. The Court said "the defendant's liability is limited *241 to the fund to be derived by the maker of the notes from the government contract specified, and conditioned upon its sufficiency to pay the notes, whether in whole or in part". As an aid in reaching that conclusion, the Court referred to the negotiable instruments statute which we have mentioned. It will be observed that there was no other instrument or circumstance which shed light upon an interpretation of those terms of the endorsement instrument. Particularly, there was no security that the endorser would pay the debt. He had given no mortgage as such security. This statute is also referred to in the case of Nall v. Bland Lumber Co., 35 Ala.App. 503, 49 So. 2d 228, which is here cited for the purpose of showing the close range of interpretation which exists in an effort to determine whether the note is conditional or unconditional; and, especially, whether by such clause the obligor designated a certain fund as the only source from which payments are to be made.
The body of the note here in question is a promise to pay $5,000 "in terms as stated below". Then follows a waiver of exemptions, provision for attorney's fee, and the last clause in the note contains the provision, in substance, that the $5,000 is to be paid by the maker from his share of the profits of the corporation. The mortgage which was executed at the same time by the complainant refers to the indebtedness as being represented by a promissory note payable at the office of the First National Bank of Opp, and then provides, "Now, in order to secure the prompt payment of said note when due * * *, we * * * do hereby grant, bargain, sell and convey" and after the habendum clause it contains the usual terms of a mortgage, "but if said indebtedness or any installment thereof is not paid at maturity, then the entire debt secured hereby shall become due and payable". The instrument was drawn by a lawyer.
The authorities agree, as shown above, that the terms of a note alone are not the only factor to be considered in determining whether the promise is unconditional or whether it is merely the indication of a source from which the payee of the note may be reimbursed.
We agree with the trial court that the execution of a mortgage to secure the note bears an implication which is important in that respect. Does that mean it is to secure the payment by the mortgagor only of such fund as he may receive from the profits of the corporation, or does it mean security to the mortgagee that the profits of the corporation will be sufficient to pay the debt? It could mean one or the other.
It appears that the complainant and respondent were interested in the corporation, and it could hardly be anticipated at the time that there would be difficulty on the part of the respondent, as payee of the note, to receive under such agreement the profits of the corporation which would result from complainant's ownership of stock in it. It seems to us that the most natural result of such status is the holding in line with the trial court that the mortgage was intended to secure payment of the debt according to the very terms of the mortgage. It would therefore indicate that the parties understood that it was security for the debt to be paid and that the profits would be sufficient to do so.
The question here is not whether the note is negotiable but whether its payment is conditioned upon an event which has not occurred and will not occur. The note is not negotiable unless it is payable at a time in the future which is then determinable. Title 39, Section 7, Code. But as a non-negotiable note it is not void for uncertainty, though payable at a time not then determinable. Kraus v. Torry, 146 Ala. 548, 40 So. 956; Dantzler v. Scheuer, 203 Ala. 89, 82 So. 103.
In the case of McCully v. McCully, supra, [184 Okl. 264, 86 P.2d 787], to which the trial court referred, the debtor executed a note payable ten years after date for $7,500, with interest and attorneys' fees. At the same time another instrument was executed referring to the note and providing that the *242 maker "`desires to pay this note out of the proceeds of his share of oil and gas royalty'". Therefore, it was agreed between the parties that the debtor should pay to the other party "`the one-half ½ of all such proceeds for oil and gas royalty, that he may hereafter receive, and such payments shall continue until the entire debt is liquidated'". The court held on appeal that the note and instrument executed at the same time constituted one contract and, construing them together, they meant that the debtor merely pledged one-half of his royalties to the payment of the debt. It differentiated the situation from another Oklahoma case of West v. Anderson, 171 Okl. 165, 42 P.2d 543, in that, in the latter case the creditors agreed to take their pay from the sale of gas therein referred to, but in the McCully case, supra, "nowhere in the agreement does the plaintiff agree to look alone to such proceeds of said royalty." And so it is here.
The case of Dearing v. Moffitt, 6 Ala. 776, is subject to the same comment as is the case of Peoples Bank of Mobile v. Moore, supra. There as no security nor other circumstances affecting the meaning of the promise.
We conclude therefore that the first assignment of error is well taken only on the theory first above discussed, but we cannot concur with appellant's view that the promise to pay was void for uncertainty or payable only on a condition which has not occurred.
Those assignments relate to a question which arose by virtue of an amendment to the bill filed April 24, 1953, and the cross bill filed March 2, 1955.
Appellant argues that there is no evidence as to the value of the land as of November 16, 1948, although the court is alleged to have found it to be worth more than $2,000. We do not find that in the decree. But the register was required to make a finding of such value which would be reflected in the final decree.
The burden is on one seeking to set aside a mortgage of the homestead because it was not executed as required by section 626, Title 7, Code, to show that the homestead was such as described in section 625, Title 7. Metropolitan Life Ins. Co. v. Estes, 228 Ala. 582, 155 So. 79. It is only a homestead within the limits there fixed which is controlled by section 626, supra. Drake v. Drake, Ala., 80 So.2d 268(5). And the court, as we observed above, will not grant such relief to complainant mortgagor except upon condition that he restore the consideration which he received. While the bill seeks a cancellation of the mortgage in its entirety because it is upon the homestead, complainant is relieved of complying with such condition by virtue of the cross bill which seeks to have the court set apart to complainant out of that tract of 105 acres a homestead of the value of $2,000, free from the mortgage held by respondent, and to foreclose that mortgage in respect to the balance of the tract not set apart as a homestead. That procedure proposed by the cross bill and pursued by the court is not prejudicial to complainant, but beneficial in that it relieves him of the duty to restore the $5,000 to respondent as a condition which he would otherwise be bound to perform to obtain such a favorable decree as sought by the cross bill.
The rule is well established that if a homestead not exceeding $2,000 in value and not exceeding 160 acres in area, can be practicably carved out of a home place which exceeds either of such limits, that portion only is exempt and subject to the requirements of section 626, supra. Where the conveyance is of a larger tract, including the homestead, which has not been selected or set apart, the conveyance is valid as to the excess over and above the quantity to which the owner is entitled by way of exemption. "In such case (it is said), the legal title to the whole passes to the grantee, with the reserved power in the grantor to withdraw the exempted portion from the operation of the conveyance, by some proper act of selection, by which it is separated from the other". De Graffenried *243 v. Clark, 75 Ala. 425; McGuire v. Van Pelt, 55 Ala. 344. See Estes v. Metropolitan Life Ins. Co., 232 Ala. 656, 169 So. 316; Moses v. McClain, 82 Ala. 370, 2 So. 741; Farley v. Whitehead, 63 Ala. 295.
We repeat, complainant here (the mortgagor) contends that the evidence does not show that the home place exceeds in value $2,000. But we answer that it was all prima facie subject to the mortgage, and complainant should show either that it is all within the statutory limits and therefore exempt, or select a portion of it not exceeding $2,000 in value after deducting any valid mortgage on it existing on November 16, 1948. His bill does not seek such relief in either aspect.
It is apparent that the court by virtue of the cross bill was trying to do for complainant what he was entitled to have done, although complainant had the burden in that respect and had not sought that relief. Complainant has no cause to complain of that proceeding by the court. The court was of the opinion that to the extent that the tract of 105 acres exceeded in value $2,000, the mortgage was nevertheless not valid to pass the title, not having been witnessed nor acknowledged, but operated as an agreement to mortgage and thereby created an equitable lien.
It is of course a correct principle that a mortgage signed but not witnessed or acknowledged as required by law has that effect, (except as to an exempt homestead). Wilkins v. Reliance Equipment Co., 259 Ala. 348(10), 67 So. 2d 16; Niehuss v. Ford, 251 Ala. 529, 38 So. 2d 484. Section 22, Title 47, Code, requires at least one witness; and section 24, Title 47, provides that an acknowledgment complies with that requirement. When the certificate is not operative as such, the signature of the purported officer may be a good attestation, sufficient to comply with section 22, supra. Copeland v. Dabbs, 212 Ala. 489, 129 So. 88; Nashville C. & St. L. R. Co. v. Hammond, 104 Ala. 191, 15 So. 935.
But whether or not it is operative to pass the legal title, considering the absence of authority of the officer making the certificate of acknowledgment, a court of equity may enforce it to the extent that it embraces property not exempt. That is evidently what the trial court proposed to do.
We think there was no error in the ruling of the court with respect to the validity and maturity of the mortgage in question and in refusing to cancel the same on the prayer of complainant, but that there was error in rendering a personal judgment against appellant for the sum of $5,000. However, such error is not sufficient to justify a reversal of the decree, but on that account the decree should be modified so as to eliminate the same from it. Further proceedings in respect to any personal liability on the part of appellant must be pursued in accordance with Equity Rule 119 ½, supra.
As corrected, the decree 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.
Corrected and affirmed.
LAWSON, SIMPSON, STAKELY, GOODWYN, and MERRILL, JJ., concur. | August 18, 1955 |
fa56631b-1ee1-4761-bdf7-e588765cf8db | Franklin v. White | 82 So. 2d 247 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 247 (1955)
John FRANKLIN
v.
Russell L. WHITE.
6 Div. 867.
Supreme Court of Alabama.
August 18, 1955.
*248 Morel Montgomery, Birmingham, for appellant.
Kingman C. Shelburne, Birmingham, for appellee.
GOODWYN, Justice.
The single question for decision is whether an adoptive parent inherits from his adopted child.
The appellant, John Franklin, adopted Ruby Louise White on July 3, 1924, by a written declaration of adoption acknowledged by him before the Judge of Probate of Jefferson County, Alabama, and recorded in said probate office, all in accordance with the then existing law. § 5202, Code 1907, as amended by Act No. 132, approved March 11, 1911, Gen.Acts 1911, p. 114. The same law was carried into the 1923 Code as § 9302, which went into effect on August 17, 1924, pursuant to Proclamation by the Governor of July 17, 1924. At the time of adoption, Ruby Louise White was 15 years of age. In appellant's declaration of adoption he stated that "he wishes her hereafter to be known by her present name, and desires that she inherit his estate, all as provided by Section 5202 of the Code of Alabama, as amended by the Act of the Legislature of Alabama entitled `An Act to amend Section 5202 of the Code of Alabama', approved March 11, 1911."
*249 Ruby Louise White died intestate in Jefferson County, Alabama, on December 23, 1953, leaving a personal estate of an estimated value of $6,000. Her natural parents predeceased her. Letters of administration, issued on the petition of Russell L. White, named as her only surviving heirs at law her natural brothers and sister, viz.: the petitioner, Russell L. White, Louie White, John L. Franklin, Jr., and Lorene White. Appellant filed a petition to intervene in the administration proceedings praying that he be declared a legal heir of the intestate and a distributee of her estate. Appellant's claim is based entirely on his relation as adoptive father of the intestate. The Probate Court entered a decree denying him relief. This appeal is from that decree. Code 1940, Tit. 7, §§ 775-776; Hudson v. Reed, 259 Ala. 340, 341, 66 So. 2d 909; Purcell v. Sewell, 223 Ala. 73, 74, 134 So. 476; Awbrey v. Estes, 216 Ala. 66, 67, 112 So. 529.
The question presented is one of first impression in Alabama. However, this court has recognized the principle that "the right of adoption is purely statutory, and in derogation of the common law", and that unless the statute by express provision or necessary implication confers upon an adoptive relative the right to inherit the property of an adoptive relative who dies intestate, such right does not exist. Benefield v. Faulkner, 248 Ala. 615, 618, 29 So. 2d 1; Meeks v. Cornelius, 244 Ala. 532, 14 So. 2d 145.
The prevailing rule is stated in 1 Am.Jur., Adoption of Children, § 55, pp. 654-655, as follows:
With these general principles in mind we proceed to an examination of the adoption laws of this state to determine whether the legislature, either by express provision or necessary implication, has, in derogation of the common law, given an adoptive parent the right of inheritance from his adopted child.
The adoption law, as it existed at the time of the adoption of Ruby Louise White in 1924, provided as follows, § 5202, Code 1907, as amended by Act No. 132, approved March 11, 1911, Gen.Acts 1911, p. 114, supra:
The applicable law as of the time of Ruby Louise White's death in 1953 was, in pertinent part, as follows, Code 1940, Tit. 27, § 5:
Appellant contends, and appellee agrees, that appellant's rights are to be determined by the law in effect at the time of the child's death rather than the law in effect at the time of her adoption. That appears to be the generally accepted rule, 2 C.J.S., Adoption of Children, § 64, p. 458; and we have so considered this case.
Appellant takes the position that § 5, Tit. 27, supra, particularly the phrase that "the natural parents of the child if living shall be divested of all legal rights and obligations due from them to the child or from the child to them", operates to divest the children of the natural parents, that is, the adopted child's natural brothers and sister, of any rights which they might otherwise have in the adopted child's estate. We see nothing in the quoted phrase justifying that interpretation. The Ohio Court of Appeals, in National Bank of Lima v. Hancock, 85 Ohio App. 1, 88 N.E.2d 67, 74, was called upon to answer a similar contention in construing a phrase from their adoption statute identical to the one relied on here by appellant. What was there said is sufficient, we think, to dispose of the contention, viz.:
Appellant further contends that the phrase, "the adopting parent or parents of *251 the child shall be invested with every legal right in respect to obedience and maintenance on the part of the child as if said child had been born to them in lawful wedlock", should be construed as vesting in the adoptive parent the right to inherit from his adopted daughter. We find no merit in this contention. It may be answered by simply pointing out that the legislature has seen fit to limit the adoptive parents' "legal rights" to rights of "obedience and maintenance".
According to the weight of authority "the general statutes of inheritance are modified and set aside by statutes regulating the effect of adoption only so far as there is some specific provision in the statutes for adoption inconsistent with the application, in such cases, of the general inheritance statutes." Baker v. Clowser, 158 Iowa 156, 138 N.W. 837, 839, 43 L.R.A., N.S., 1056; Edwards v. Yearby, 168 N.C. 663, 85 S.E. 19, L.R.A.1915E, 462; Hole v. Robbins, 53 Wis. 514, 10 N.W. 617; In re Kay's Estate, 127 Mont. 172, 260 P.2d 391; McKinney v. Minkler, Tex.Civ.App., 102 S.W.2d 273; Upson v. Noble, 35 Ohio St. 655; White v. Dotter, 73 Ark. 130, 83 S.W. 1052; Dodson v. Ward, 31 N.M. 54, 240 P. 991, 994, 42 A.L.R. 521; National Bank of Lima v. Hancock, supra; Russell v. Jordan, 58 Colo. 445, 147 P. 693.
Under our general statutes on descents and distributions, Code 1940, Tit. 16, §§ 1(5), 10, the property of Ruby Louise White goes to her natural brothers and sister, her natural parents having predeceased her. And unless there is "some specific provision in the statutes for adoption inconsistent with the application" of the descent and distribution statutes the latter control. It seems too clear to admit of argument that our present law of adoption confers the right of inheritance on the adopted child only, and must be confined to that. We see no necessity of referring to the numerous cases from other jurisdictions construing adoption statutes with varying provisions. We are satisfied to rest our decision on the provisions of our own statute, which, it seems to us, clearly confers on the adopted child the right to inherit from the adopting parent but does not confer on the adopting parent the right to inherit from the adopted child.
Appellant earnestly insists that to deprive an adoptive parent of the right of inheritance from his adopted child would, in many cases, result in harsh and unreasonable consequences inconsistent with the principles of equity and justice. To this insistence we must answer that the right of inheritance by an adoptive parent from his adopted child must be given solely by statute and cannot be based on principles of equity.
What was said by the Supreme Court of Oregon in In re Frazier's Estate, 180 Or. 232, 177 P.2d 254, 261, 170 A.L.R. 729, is particularly appropriate here:
The decree of the Probate Court is due to be, and is, affirmed.
Affirmed.
LAWSON, MERRILL and MAYFIELD, JJ., concur. | August 18, 1955 |
03f045fe-ff99-4501-a0e0-a9acaeb6a5a7 | Barnett v. Barnett | 80 So. 2d 626 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 626 (1955)
C. G. BARNETT et al.
v.
Dera BARNETT et al.
6 Div. 623.
Supreme Court of Alabama.
May 26, 1955.
*628 Robt. A. Sapp and A. L. Sapp, Cullman, for appellants.
Marvin H. Galin, Cullman, for appellees.
GOODWYN, Justice.
Appellants, complainants below, filed a bill in equity seeking cancellation of several conveyances of lands in which their father, C. A. Barnett, deceased, had an interest, and also seeking, in event the relief should be granted, a sale of the lands for division among the father's heirs. The basic ground for relief is that the execution of the several deeds was the result of undue influence exerted over C. A. Barnett by Dera Barnett, one of the respondents, who, it is alleged, "claims to be the wife or widow" of said C. A. Barnett. The testimony was taken orally before the court, after which a final decree was rendered denying relief and dismissing the bill. This appeal is from that decree.
Complainants are C. G. Barnett and S. E. Barnett, children of C. A. Barnett by his second wife, and Annie C. Barnett and Mrs. Maude Barnett Hollingshead, children of C. A. Barnett by his first wife. Respondents are G. L. Barnett and Sydney H. Barnett, children of C. A. Barnett by his first wife; William Jack Barnett, a son of Sydney H. Barnett; Dera Barnett; Cullman Savings & Loan Association, Inc.; and Darrel R. McNeal and wife, Fay Marie McNeal.
Dera Barnett married C. A. Barnett in 1927 and lived with him continuously thereafter as his wife until his death in 1950. William Jack Barnett and the McNeals are grantees of lands purchased by them from Dera Barnett, being some of the lands here involved. G. L. Barnett and the Cullman Savings & Loan Association are the holders of two mortgages on the lands purchased by William Jack Barnett
As last amended, the bill alleges that Dera Barnett was married in 1906, to one Evans; that some time in 1914 they separated; that in 1922 Dera married one Sams without obtaining a divorce from Evans; that Sams left Dera after several years; that they were not divorced; that Dera, in 1926, came to work for C. A. Barnett as a cook and dishwasher in a cafe or tourist establishment; that an illicit intimacy sprang up between Dera and C. A. Barnett; that, as a result of this relationship, C. A. Barnett was divorced by his wife, Tennessee Barnett, in 1927; that when C. A. Barnett married Dera he believed her to be a single woman but that the relationship was adulterous; and that he "openly continued the adulterous relationship, publicly claiming her as his lawful wife, until his death in 1950."
The bill further alleges that in 1939 C. A. Barnett purchased two pieces of property which were conveyed by the sellers to C. A. Barnett and Dera jointly; that in 1939 C. A. Barnett was 69 years old, in ill health and mentally weak; that Dera occupied a confidential relationship to him and exerted a dominating influence over him; that as a result of this undue influence she was named as a grantee in the deeds. Similar allegations are made with respect to additional property purchased in 1945. The bill further alleges that in 1943 and 1948, as a result of Dera's undue influence, C. A. Barnett conveyed his interest in these properties to Dera; that on September 9, 1950, the day he died, he joined with Dera in conveying, for a grossly inadequate consideration, a part of this property to William Jack Barnett; that C. A. Barnett was 79 years old, mentally weak and dying and subject to undue influence exercised by Dera; that William Jack Barnett had knowledge of the fraudulent nature of the transaction; that the holders of the two mortgages on the property also had such knowledge. The bill further alleges that in 1951, after C. A. Barnett's death, Dera conveyed certain of the property to the McNeals, also with notice of the fraudulent nature of the transaction.
Appellants seek cancellation of the deeds and mortgages and to be declared, together with G. L. and Sydney H. Barnett, the owners of an undivided one-sixth interest each in the property.
*629 Appellees deny all the allegations of fraud, undue influence and the inability of C. A. Barnett to manage his own affairs. William Jack Barnett, the McNeals and the Cullman Savings & Loan Association deny any knowledge of the alleged fraudulent nature of the transactions.
Appellants take the position that the relationship between C. A. Barnett and Dera Barnett was illicit in its inception and that, being so, the unlawful relationship continued, since the marriage ceremony between them in 1927 was invalid because of Dera's two prior and allegedly undissolved marriages. They further contend that the strong and clear proof required to establish a valid common-law marriage entered into by parties free to do so is lacking; that where one party to an illicit relationship gives property of considerable value to the other party, excluding natural objects of his bounty, the donee must prove that the gift was freely made and not induced by fraud and undue influence, citing Shipman v. Furniss, 69 Ala. 555, 44 Am.Rep. 528. Appellants further insist that, assuming the existence of a valid marriage between C. A. Barnett and Dera Barnett, the existence of the confidential relationship which exists between husband and wife casts the burden on the grantee or donee in transactions between them to show that the transactions were fair and equitable and not the result of undue influence, and that Dera has not met this burden.
It seems to us that the decree of the trial court adequately and correctly deals with the questions presented here, except as to whether the parties contracted a common-law marriage, assuming that their marriage in 1927 was not valid. It appears that Dera married her second husband, Sams, in March 1922, and that the last information she had concerning him was a telegram she received about 1925 that he had died. Since the marriage ceremony with C. A. Barnett was not entered into until 1927, it is apparent that the required seven years' absence, raising a presumption of Sams' death, had not then expired. The question then presented is whether Dera and C. A. Barnett entered into a common-law marriage. It is our view that even though it should be held that Dera was incapable of entering into a valid marriage with C. A. Barnett in 1927, that, nevertheless, their marriage ripened into a valid common-law marriage prior to the execution of the first deed here involved in 1939.
The following principle from Hunter v. Lynn, 256 Ala. 501, 506, 55 So. 2d 849, 853, quoting with approval from Hill v. Lindsey, 223 Ala. 550, 552, 137 So. 395, is peculiarly applicable to the circumstances of this case, viz.:
Except as indicated we adopt the following portion of the trial court's decree:
"In the bill as last amended, the complainants apparently attempt to bring their case within the influence of the case of Shipman v. Furniss, 69 Ala. 555. This case seems to be the leading case in this jurisdiction laying down principles of law governing gifts between a man and woman who are living in illicit relationship. These principles have been followed in subsequent cases. Under such conditions the burden is on the donee to establish the fact that the gift was in good faith, supported by sufficient consideration, and that it was not a result merely of the undue influence or constructive fraud which grew out of the illicit relationship.
"The respondents contend that the relationship between the alleged widow and C. A. Barnett, deceased, was that of husband and wife, and that a ceremonial marriage was performed between said parties, and that there was no illicit relationship existing between them. If this be true, different rules would govern the transactions between the parties. Section 74, Title *630 34 of the Code of 1940 provides that the relationship between husband and wife is a confidential relationship, and that the relationship must be taken into consideration in determining the effect of transactions between them. Our courts have taken the position that this statute was passed for the purpose of protecting a wife from imposition or advantage in business transactions taken by the husband by reason of influence growing out of the marriage relation. Cragford Bank v. Cummings, 216 Ala. 377, 113 So. 243. This construction is placed upon this statute because under the common law the husband is presumed to be the dominant of the two parties to the marriage and it is assumed that it was necessary to protect the wife's interest in connection with her property by such statute. Norrell v. Thompson, 252 Ala. 603, 42 So. 2d 461; Merchants' National Bank of Mobile v. Hubbard, 222 Ala. 518, 133 So. 723, 74 A.L. R. 646. If the husband is the dominant party in a marriage, which the law presumes is the state of facts, the wife is incapable of exercising undue influence upon him; but the presumption that the husband is the dominant party is merely a presumption, and it is rebuttable. Wherever the evidence is sufficient to rebut this presumption, and to show undue influence exercised by the wife against the husband, courts of equity will intervene to protect against such undue influence.
"One of the questions which the Court must decide in resolving the issues in this case, is whether or not C. A. Barnett and Dera Barnett were lawfully married, or whether they were living in an illicit relationship. The evidence shows that the widow, Dera Barnett, married Tom Evans in 1906, and that he abandoned his wife and four children in 1914, and went to the state of Arkansas. He was to have sent for the wife and children, but he failed to do so, and in 1917 Dera Barnett received a newspaper clipping from a friend, stating that Tom Evans had died. The evidence does not show that she, or anyone else has heard of Tom Evans since said time; and she stated that she has not heard from him since then. Sometime later she married a Mr. Sams, and she testified that her husband, Sams, died at Ft. Scott, Arkansas, and that she did not remember the date. She stated that she received a telegram from a daughter of Mr. Sams in Ft. Scott, Arkansas, advising her of his death; and she stated that she has not heard anything from Sams since receiving this telegram. The evidence shows that she went to work for Mr. Barnett in 1927, and that she worked in a cafe and tourist camp for him for a while, and that Mr. Barnett and his wife separated later, and that she and Mr. Barnett went through a ceremonial marriage in Giles County, Tennessee on August 28, 1927. It is the contention of the complainants that the respondent, Dera Barnett, was incapable of contracting marriage because of the fact that she had previously been married and said marriage, or marriages, had not been dissolved by death or divorce. The complainants do not offer any evidence concerning this issue except the evidence of previous marriages.
"There is also the presumption that the life of a person continues for seven years after he is last heard from, and that his death will be presumed after the lapse of that time; and if a woman contracts a second marriage in the belief, however ignorantly entertained, that she may do so, but when in fact her first spouse is alive, and the parties to the second marriage intending matrimony, not concubinage, live together as man and wife until the lapse of seven years after the first husband is last heard from, then actual marriage is thereby established, because we recognize common law marriages. Walker v. Walker, 218 Ala. 16, 117 So. 472. None of these presumptions is conclusive, and they are subject to being rebutted by evidence in any given case; but where the evidence does not rebut the presumptions, experience and public policy has taught that the presumptions should stand.
"In the case before us the parties attempted to enter into a valid marriage on August 28, 1927. They lived together as husband and wife from that time until September 9, 1950, a period of more than twenty-three years. During this period of time the evidence shows that these parties labored together in more than one business. A large part of the time the business in which they engaged was a cafe business, operated on a small scale, in which the respondent, Dera Barnett, actively engaged in such things as cooking and serving customers, while the deceased, C. A. Barnett, handled the management of the business. The Court is of the opinion that the evidence establishes the fact that both former husbands of the widow were deceased at the time she contracted the marriage with C. A. Barnett. The Court is also of the opinion that even though the evidence had not established this fact, that both former husbands had been absent without cause and unheard of for more than seven years before she attempted to marry C. A. Barnett, and that each of these former husbands was presumed dead at the time she entered into the marriage ceremony with C. A. Barnett. The Court therefore holds that C. A. Barnett and Dera Barnett were lawfully married, and that they were not living in an illicit relationship during the time recovered by the transactions involved in these issues.
"The facts stated above concerning the operation of the business by the said widow and C. A. Barnett would be sufficient to furnish consideration for the deeds in question, because the Court finds that a large part of the money which went into the purchase of the said real estate was made by the joint efforts of C. A. Barnett and Dera Barnett. Were there not such evidence before the Court, the burden would be upon the complainants to show that the deceased, C. A. Barnett, did not intend to make her a gift of the property deeded to her in this case. When the relationship of husband and wife is shown, and it is shown that the husband pays for property and puts it in his wife's name, it is presumed that the husband intended to make the wife a gift of said property. North British & Mercantile Ins. Co. v. Sciandra, 256 Ala. 409, 54 So. 2d 764, 27 A.L.R.2d 1047. In the case before us this presumption is not rebutted by the evidence.
"The Court therefore finds that there was a valid marriage existing between the parties, and that the rules of law laid down in Shipman v. Furniss, supra, do not apply in the case at bar, and that there was adequate consideration passing between the said Dera Barnett and the said C. A. Barnett in the transactions wherein the said Dera Barnett obtained an interest in said property, and that in addition to said consideration, the law presumes said property is a gift to the wife, and the Court does not find that this presumption has been overturned by the evidence. As stated above, *632 the presumption that the husband is the dominant of the two parties to a marriage is rebuttable. In the case at bar there is little evidence to the effect that the wife, Dera Barnett, was the dominant party. Most of the evidence introduced on this issue is to the effect that the husband, C. A. Barnett, was the dominant party, and the Court does not find evidence sufficient to base a holding of undue influence which is alleged to have been practiced by the wife against the husband. It is true that during that period of time between the time when Dera Barnett started to work for Mr. Barnett, and their marriage, he seems to have been very much infatuated with the respondent, Dera Barnett. No evidence is introduced which shows that she took any active part in attempting to gain his affections. This relationship was changed to a legal and valid marriage, as held above, before any of the conveyances involved herein were attempted. The Court therefore finds that the presumption that C. A. Barnett was the dominant party in the marriage with Dera Barnett has not been overturned by the evidence, and the Court finds that said Dera Barnett did not practice any undue influence on the said C. A. Barnett in connection with any of the conveyances in question in this suit.
"There was evidence before the Court to the effect that the deceased, and the widow, Dera Barnett, executed a deed to William Jack Barnett to part of the property involved in this case, on the day of the death of the deceased, and about six hours before the time of his death. This property had been formerly deeded to the respondent, Dera Barnett, and C. A. Barnett owned very little interest in the same at the time he executed the deed. This fact would not be sufficient to validate a deed, however, which was otherwise invalid. The testimony shows that Mr. Barnett had been in ill health for several months; that he had been able to converse intelligently with his friends and acquaintances over this period of time, and that he was afflicted with the usual inabilities and weaknesses of old age. Otherwise his ability to transact business affairs was not affected until a few hours before his death. The testimony shows that he was weak and nervous at the time he signed the deed in question, but the Court is of the opinion that the complainants have not borne the burden of proof which is cast upon them of establishing the fact, which is alleged, that he was wholly incapable of executing a deed at this time. As stated above, he merely joined with his wife in conveying what was already her property, under the holding of the Court above. The evidence does not show that the intentions of Mr. Barnett concerning said property will be offended by permitting this deed to stand. The evidence also shows that an adequate consideration was passed by William Jack Barnett to Dera Barnett, and his grand father, for the property. One witness for the complainants testified that the property was worth, in his opinion, $5,000 after William Jack Barnett made certain improvements on the property. The evidence shows that the cost of said improvements was over $2,000, and the consideration paid for the property to Mr. and Mrs. Barnett was $3,500. To further establish the fact that Mr. and Mrs. Barnett were dealing as competent persons in this transaction, the evidence shows that they had agreed to sell this property to William Jack Barnett several weeks before, and that it was not until September 9, 1950, that a loan was completed out of which the purchase price of the property was to be paid. The evidence showed that Mr. and Mrs. Barnett, because of the illness of Mr. Barnett, had become indebted, and it was Mr. Barnett's desire to dispose of the property, and to pay his debts with a part of the money, and use the balance of the money for living expenses. He had no indication, according to the evidence, that his life was about to come to an end as suddenly as it came after the execution of the deed. He seemed to have been attempting to provide for the future of himself and his wife in disposing of the property and obtaining necessary cash. This is in accord with other evidence that Mr. Barnett had not lost all of his power to transact business affairs.
"The validity of the deed from Dera Barnett to the respondents, McNeals, after she *633 became a widow, and the validity of the mortgage from William Jack Barnett and his wife, Theresa Clara Barnett to Cullman Savings & Loan Association, and the validity of the mortgage from William Jack Barnett and wife to Gilbert L. Barnett, depends upon the conveyances already held valid herein, in so far as this case is concerned. Since the Court holds that the grantors in the conveyances to said grantees had good title to the property, it follows that said conveyances are valid."
The decree appealed from is due to be and is affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MAYFIELD, JJ., concur. | May 26, 1955 |
15d4ba6c-00ce-46ca-9ec2-e5f643772f34 | Vardaman v. Benefit Ass'n of Railway Employees | 82 So. 2d 272 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 272 (1955)
Charles VARDAMAN
v.
BENEFIT ASSOCIATION OF RAILWAY EMPLOYEES, Inc.
8 Div. 784.
Supreme Court of Alabama.
August 18, 1955.
*273 Marion F. Lusk, Guntersville, for petitioner.
F. Raymond Ingram and W. E. Prescott, III, Birmingham, and Starnes & Starnes, Guntersville, opposed.
MAYFIELD, Justice.
This case comes to us on petition of the Benefit Association of Railway Employees, Inc., for certiorari to the Court of Appeals to review and revise the judgment of that court.
This is an action on an insurance policy which provides for certain benefits for disability resulting from illness. Charles Vardaman, the insured, filed a complaint in two counts in the circuit court, both counts claiming damages for breach of the insurance contract. The insurer demurred, and as to both counts of the complaint the demurrers were sustained. Plaintiff thereupon suffered a nonsuit and appealed to the Court of Appeals. That court reversed the lower court, holding that it erred in sustaining demurrers to the second count of the complaint, designated Count BB. We granted certiorari to review this action of the Court of Appeals.
The pleadings are not set out in extenso in the opinion of the Court of Appeals. As the case comes before us, however, we may look to the record to aid our understanding of the issues presented. Cranford v. National Surety Corporation, 231 Ala. 636, 166 So. 721.
In Count BB of the complaint it was alleged that the plaintiff was insured under a policy of insurance issued by defendant; that on March 2, 1948, the policy was in full force and effect; that on that date the plaintiff became wholly disabled on account of illness, and has since been wholly and continuously disabled; that such illness was covered under the terms of the policy, by which the defendant agreed to pay the plaintiff $80 per month for and on account of said illness for a period of eighteen months. It was also alleged that *274 the plaintiff gave formal written notice of such illness to defendant on July 14, 1948; that the plaintiff did not know or have reasonable grounds to believe that his illness would ultimately constitute a basis for a claim under the provisions of Part V of the contract of insurance until less than ten days prior to the giving of formal written notice on July 14, 1948; that notice was given to defendant as soon as was reasonably possible, and that plaintiff has done and performed all other things required of him under the terms of the policy of insurance. Further, that the defendant has refused to pay to the plaintiff said $80 per month or any part thereof. Plaintiff claimed of the defendant the sum of $400 damages for breach of contract alleging that one installment became due on each of five monthly dates beginning with July 4, 1948.
The insurance policy was attached to and made a part of the complaint. The most pertinent provisions of the policy are as follows:
* * *
* * * * * *
The essential question for our determination concerns the effect of Insured's failure to give notice of disability within the time specified on his rights to the benefits provided by the insurance policy. On this point the Court of Appeals held that the failure to give notice at the time disability developed did not destroy the right, but *275 was simply a postponement of the accrual until notice was given.
It is a cardinal principle that in construing the terms of an insurance policy, ambiguities must be resolved in favor of the insured. Especially is this true as to clauses which might work a forfeiture of the benefits of the policy. Sovereign Camp, W. O. W. v. Miller, 231 Ala. 336, 164 So. 742. To be effective forfeitures must be expressed in unmistakable terms. Taber v. Royal Ins. Co., 124 Ala. 681, 26 So. 252. As the rule has been stated by the Supreme Court of Arkansas in Smith v. Mutual Life Ins. Co. of New York, 188 Ark. 1111, 69 S.W.2d 874, 876:
This does not mean, however, that the parties may not contract as they see fit, so long as they do not offend some rule of law or contravene public policy, and this court will not attempt to alter the expressed intentions of the parties if they are clear and unambiguous. Northam v. Metropolitan Life Ins. Co., 231 Ala. 105, 163 So. 635, 111 A.L.R. 622.
In connection with the question now before us this court, in Prudential Ins. Co. v. Gray, 230 Ala. 1, 159 So. 265, 266, stated as follows:
This holding is in accord with the statement found in 29 Am.Jur., Insurance, § 1105, p. 829, which is as follows:
Guided by the stated principles, we must now look to the express provisions of the policy. It is significant that under Part V of the policy the insurer's liability is predicated upon the existence of a disability only not upon the giving of notice that such disability exists. The importance of the distinction is clearly revealed by the opinion of this court in Metropolitan Life Ins. Co. v. Phillips, 236 Ala. 259, 182 So. 35. In that case by express provision of the policy the obligation to pay the benefits was made to depend upon the submission of proofs of disability. The requirement of proofs was held to be a condition precedent to liability for benefits. The provision in Part V of the instant insurance policy is of converse effect.
Standard Provisions (4) and (5) require that notice of disability caused by illness be given within ten days. Although it is stated therein that failure to give notice within the required time will not invalidate a claim if the giving of such notice was not reasonably possible, those sections do not provide that failure to give notice, though reasonably possible, will invalidate a claim. It may be argued that the provisions imply the latter meaning. To be given effect, however, such a provision must be expressed and not appear by implication only.
Under Section (a), Miscellaneous Provisions, compliance with all of the conditions of the policy is made a "condition precedent to recovery". Does this provision make the existence of all liability under the policy depend on strict compliance with the notice requirement? In our opinion it does not. We feel, rather, that the language selected and used by the insurer at this point must be interpreted to mean that no immediate right to receive payment or to bring suit exists under the policy until the notice requirement is satisfied. Such construction is in harmony with other provisions of the policy and with the previously stated rules of construction by which we are bound.
The case of Home Ins. Co. of New York v. Murphy, 223 Ala. 566, 137 So. 393, concerned a requirement in an automobile insurance policy that the insured give notice within sixty days of any loss. The policy contained the further provision: "No suit or action on this policy or for the recovery of any claim hereunder be sustainable in any court of law or equity unless the assured shall have fully complied with all of the foregoing requirements." Commenting on the requirement of notice in that policy, this court said:
We perceive no reason why the stated rule should not be applied in the instant case. The provision here, as in the Home Insurance Co. Case, contains no clear stipulation compelling forfeiture upon failure to give notice within the prescribed time.
On this basis we conclude that the demurrers to Count BB of the complaint should have been overruled. As the question is now before us it is not necessary that we consider whether plaintiff's allegations concerning the reasonable impossibility of his giving notice within ten days would have been sufficient if our holding had been otherwise. Nor is it necessary that we consider the effect of any defensive matter which may hereafter be pleaded.
The judgment of the Court of Appeals is due to be, and is hereby, affirmed.
Affirmed.
LAWSON, GOODWYN and MERRILL, JJ., concur. | August 18, 1955 |
1631642a-ead3-4538-8a38-ec87b2df2955 | Carter v. City of Gadsden | 88 So. 2d 689 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 689 (1955)
Homer CARTER
v.
CITY OF GADSDEN et al.
7 Div. 234.
Supreme Court of Alabama.
August 18, 1955.
Rehearing Denied June 30, 1956.
*690 Roy D. McCord and Rowan S. Bone, Gadsden, for appellant.
Hawkins & Rhea, Gadsden, for appellees.
LAWSON, Justice.
This suit was brought in the circuit court of Etowah County by Homer Carter against the City of Gadsden, a municipal corporation; Roy Wallace, individually and as Mayor of the City of Gadsden; Carl Temple, individually and as Electrical Inspector of the City of Gadsden; and E. L. Mount, individually, and as City Fire Marshal of the City of Gadsden.
Demurrer was sustained to the original complaint which consisted only of Count One. The complaint was amended by adding Counts A, A-1 and B-1, but demurrer was sustained to the complaint as thus amended. Thereafter the complaint was amended by adding Count C and by withdrawing all other allegations of the complaint as amended.
Count C reads as follows:
*692 Demurrers interposed to Count C by the City of Gadsden, Roy Wallace, Carl Temple and E. L. Mount in their official capacities were sustained. Demurrers of Wallace, Temple and Mount interposed to that count in their individual capacities were overruled. Thereafter there was an agreement to plead in short by consent.
The cause came on for trial before the court and a jury. The plaintiff rested after presenting his own testimony and that of an official of the Alabama Power Company. Subsequent events are disclosed by the following judgment entry:
"Ruling On Motion To Exclude Evidence, And Non Suit.
From that judgment the plaintiff below has appealed to this court. It is a final judgment which "put the case out of court." Wood v. Coman, 56 Ala. 283, cited approvingly in Martin v. Alabama Power Co., 208 Ala, 212, 94 So. 76; Thomas v. White, 244 Ala. 128, 12 So. 2d 567; Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530.
We will consider only those assignments of error which challenge the trial court's action in excluding the plaintiff's evidence on motions of the defendants Wallace and Mount. They are the only assignments of error argued in brief of counsel for appellant and it is well settled that assignments of error not argued in brief are treated as waived. Eddleman v. Cade, 261 Ala. 154, 73 So. 2d 362. Moreover, on this appeal we are limited to a consideration of only the rulings of the court which culminated in and superinduced the taking of the nonsuit. Mullins v. Alabama Great Southern R. Co., 239 Ala. 608, 195 So. 866; Cauble v. Boy Scouts of America, 250 Ala. 152, 33 So. 2d 461.
The practice of entertaining a motion by the defendant, at the conclusion of the plaintiff's evidence, to exclude the evidence has been condemned and criticized. Dorough v. Alabama Great Southern Ry. Co., 221 Ala. 305, 123 So. 602; Johnson v. Shook & Fletcher Supply, 245 Ala. 123, 16 So. 2d 406, yet the trial court will not be put in error for doing so where the plaintiff's evidence does not make out a prima facie case. See Dorough v. Alabama Great Southern Ry. Co., supra, overruling in this respect Stewart Bros. v. Ransom, 200 Ala. 304, 76 So. 70; Mount Vernon-Woodberry Mills v. Little, 222 Ala. 605, 133 So. 710; W. E. Herron Motor Co. v. Maynor, 232 Ala. 319, 167 So. 793; Sharpe v. Western Ry. of Alabama, 234 Ala. 507, 175 So. 542; Roebuck v. Hooie, 250 Ala. 363, 34 So. 2d 460; Hamilton v. Browning, 257 Ala. 72, 57 So. 2d 530; Riley v. Riley, 257 Ala. 636, 60 *693 So. 2d 432; Atlantic Coast Line R. Co. v. French, 261 Ala. 306, 74 So. 2d 266.
On August 19, 1952, the Alabama Power Company disconnected the electricity running into plaintiff's dry cleaning plant at 817 East Broad Street, Gadsden. Plaintiff owned the building in which he operated the dry cleaning plant. He constructed the building in 1946 or 1947 and had continuously operated a dry cleaning establishment in part of the building. The Alabama Power Company acted in accordance with a written order signed by the defendants Temple and Mount, a copy of which order went to Mayor Wallace. Temple signed the order "as Electrical Inspector of the City of Gadsden, Alabama" and Mount signed as "City Fire Marshall, City of Gadsden, Alabama." The reason given to the Alabama Power Company for the order was "because the electrical installations or wiring on said premises are in violation of the provisions and requirements of the Official Building Code of the City of Gadsden, Alabama."
Section 103.1, Chapter 1 of the Building Code of the City of Gadsden provides:
The validity of Section 103.1, Chapter 1, of the Building Code, supra, is not questioned. No other provision of the Building Code of the city or of any other ordinance was introduced in evidence. We do not take judicial notice of ordinances of a city the size of Gadsden. Owen v. Hampson, 258 Ala. 228, 62 So. 2d 245. See § 429(1), Title 7, Code 1940, 1953 Cum. Pocket Part, p. 79.
Plaintiff's case is grounded in the main on the averment that the defendants "did maliciously, illegally and wrongfully order and direct the Alabama Power Company, a corporation, who were exclusively furnishing the electricity for the plaintiff's said building and place of business, to disconnect said electricity from said place of business and no longer furnish electricity therefor." By making the averments that the defendants acted "maliciously, illegally and wrongfully" the plaintiff assumed the burden of offering evidence to support such averments.
Before considering the question as to whether or not the plaintiff met that burden, it is necessary to determine what meaning is to be attributed to the words last quoted. There is no discussion of that question in briefs filed here on behalf of the parties, but we think that those words as used in this complaint should be construed as charging that the defendants, although acting under color of their official positions, did so without legal right and acted purposely with the intention of violating the rights of the plaintiff to his injury. Woodson v. Bailey, 210 Ala. 568, 98 So. 809; Mobile County v. Williams, 180 Ala. 639, 653, 61 So. 963; Snead v. Phillips, 31 Ala.App. 148, 13 So. 2d 435. When that construction is placed on the words "maliciously, illegally and wrongfully," as used in the complaint, we feel that a cause of action is stated against the defendants. We do not know authority or see reason in absence of statute for saying that those who act as this complaint charges the individual defendants with acting should not be required to answer in damages to the injured person. Wisher v. City of Centralia, 273 Ill.App. 168; Carr v. City of *694 Anchorage, D.C., 114 F. Supp. 439. Cf. Baker v. Mueller, D.C., 127 F. Supp. 722.
We have made a detailed analysis of the testimony adduced on behalf of the plaintiff, which has been given careful consideration in consultation. However, we do not think any useful purpose will be served by including that detailed statement in this opinion.
The evidence shows beyond peradventure that the city authorities of Gadsden had been trying to get the plaintiff to have the electrical wiring in his place of business changed so as to comply with the requirements of the City's building code since as early as 1948 or 1949. It is clear from the evidence that the plaintiff recognized that such repairs should be made. Although he promised on at least two occasions, in writing, to have those repairs made he failed to do so and his explanation for not carrying out his promises is that the city authorities refused to permit him to make the improvements himself, although he was in all respects qualified to do so in view of his long experience as an electrician.
The record shows that as late as July 25, 1952, in a letter which plaintiff wrote to the defendant Wallace, he recognized that the electrical installations in his plant did not comply with the city's requirements.
Plaintiff was permitted to testify over the objection of the defendants to the effect that on August 19, 1952, the day on which the electricity was cut off from his place of business, that the electrical wiring and electrical installations therein fully met the standards prescribed by the building code of the city of Gadsden. It is apparent that the trial court permitted the plaintiff to so testify after having concluded, no doubt, that he had shown that he was sufficiently familiar with the building code of the city and with electrical installations in dry cleaning plants to express such an opinion as an expert.
But the fact remains that the record before us shows that the Alabama Power Company acted on August 19, 1952, under a direction or order given it on August 13, 1952, signed by the defendants Temple and Mount. That order was just one of several which had been given to the Power Company after notice was given to plaintiff, but action had not been taken thereon because of the promises made by the plaintiff to have the conditions in his plant remedied. In so far as the evidence before us shows, the conditions in the plaintiff's place of business on August 13, 1952, were the same as they were on July 25, 1952, on which date, as heretofore indicated, plaintiff admitted in writing that the electric wiring and other electrical installations did not meet the city's requirements.
The only evidence which counsel for plaintiff argues in brief as indicating that Mount acted in any wise other than in good faith and in accordance with the duties of his office is that which tends to show that on one occasion several months prior to the time the electricity was disconnected he told the plaintiff in effect that if he did not comply with the city's requirements that he, Mount, would have to declare plaintiff's place of business to be a fire hazard. In our opinion this falls far short of showing that Mount acted wrongfully, illegally or maliciously.
In so far as the defendant Wallace is concerned, the record shows clearly that he and the plaintiff had been friends for some time. Plaintiff supported Wallace in his race for mayor and Wallace and his family had been customers of plaintiff. Wallace was not mayor when plaintiff was first advised that the conditions in his place of business did not meet the city's requirements and when, after taking office, he was apprised of the situation by Temple and Mount, Mayor Wallace requested a conference with plaintiff, at which time plaintiff expressed appreciation for the leniency which the city authorities had extended to him and promised to have the required changes made within a period of sixty days from that date, to wit, February 19, 1952 However, plaintiff failed to comply and in *695 July Temple and Mount again notified plaintiff that the corrections would have to be made or they would have to request the Power Company to cut off his electricity. Plaintiff did not make the corrections and Temple and Mount ordered the Power Company to discontinue electric service. But Mayor Wallace had another conference with plaintiff, July 25, 1952, at which time plaintiff again recognized the fact that there were conditions which needed to be corrected, and we construe the record to show that he promised to have those conditions rectified. In any event, Mayor Wallace shortly after that conference was held wrote a personal letter to the Alabama Power Company asking them to disregard the previous notice which had been given it by Temple and Mount to disconnect plaintiff's electricity.
The action which was taken thereafter on August 13, 1952, to which we have alluded above, was taken by Temple and Mount in so far as this record shows without the express direction of Mayor Wallace. The matters which we have heretofore related concerning the relationship of plaintiff and Mayor Wallace and the courtesy which the latter had extended to the former clearly refute the charge that such part as the mayor played in the matter of disconnecting plaintiff's electricity was done with any ill feeling or intentional injury to the plaintiff. Nor are we impressed that the statement made by plaintiff that in the conference of July 25, 1952, Mayor Wallace indicated disapproval of plaintiff's presence and participation in a public meeting held sometime between February 19, 1952, and June 28, 1952, in opposition to a measure in which the Mayor was interested, is sufficient to support the averments of the instant complaint.
Mayor Wallace, under the facts of this case, cannot be held liable for the misconduct of Temple, if the latter could be said to have been guilty of misconduct. State v. Kolb, 201 Ala. 439, 78 So. 817, 1 A.L.R. 218; Langis v. Byrne, 222 Ala. 183, 131 So. 444; Tuscaloosa County v. Shamblin, 233 Ala. 6, 169 So. 234; Holland v. Fidelity & Deposit Co. of Maryland, 225 Ala. 669, 145 So. 131.
We have given this case careful and studied consideration and feel constrained to the conclusion that the plaintiff had failed to make out a prima facie case at the time the trial court on motion excluded the evidence as to the defendants Mount and Wallace, and hence the judgment appealed from should be affirmed.
Affirmed.
SIMPSON, GOODWYN, MERRILL and MAYFIELD, JJ., concur.
On Rehearing
LAWSON, Justice.
This application for rehearing has been pending for a long time. It was filed by counsel who did not participate in the trial below or on the original submission here. We do not frown upon applications for rehearing for they are often helpful and we do not expect counsel to come apologetically in the discharge of this important function, but boldly and manfully we wish to see him stand up and labor with us when done in a considerate manner. But the brief filed in support of this application for rehearing is of such a nature that the author of the opinion has felt constrained to have the other participating Justices read it carefully in the light of the record before us. They have done so. As indicated in the original opinion the questions presented are not without difficulty but they were decided only after a careful and painstaking consideration of the record, the briefs filed on original submission and considerable effort at research on our part.
We feel that our holdings on original submission should stand.
Application for rehearing overruled.
LIVINGSTON, C. J., and SIMPSON, STAKELY, GOODWYN and MERRILL, JJ., concur. | August 18, 1955 |
a05840d6-1731-4928-9918-5b2f0ad200f6 | Cooper v. City of Fairhope | 83 So. 2d 321 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 321 (1955)
Austin A. COOPER, Admr.
v.
CITY OF FAIRHOPE.
1 Div. 614.
Supreme Court of Alabama.
June 30, 1955.
Rehearing Denied November 10, 1955.
*322 Hamilton, Denniston, Butler & Riddick, Mobile, for appellant.
Beebe & Swearingen, Bay Minette, for Appellee.
STAKELY, Justice.
Austin A. Cooper as administrator of the estate of James W. Cooper, deceased (appellant), brought this suit against the City of Fairhope, a municipal corporation (appellee), to recover damages for the "alleged neglect, carelessness or failure to remedy a defect in one of the streets of the city after the same had been called to the attention of the Council of the City of Fairhope or after the same had existed for such an unreasonable length of time as to raise a presumption of knowledge thereof on the part of said Council." The court sustained the demurrer to the complaint and thereupon the following judgment was entered:
"Comes the plaintiff, by his attorney, and by leave of the Court enters a non-suit in this cause; by reason of adverse rulings on the pleadings in sustaining defendants demurrers; and the same having been considered by the Court:
"It is ordered and adjudged that the defendant go hence without day and recover of the plaintiff the costs in this behalf expended for which execution may issue."
In discussing the essentials of a judgment of nonsuit which will support an appeal under § 819, Title 7, Code of 1940, we refer to Mitchell v. National Life & Accident Ins. Co., 30 Ala.App. 301, 5 So. 2d 115, 116, certiorari denied 242 Ala. 135, 5 So.2d 116:
"* * * `There should be an order of the court granting the nonsuit, dismissing the case, taxing the costs, and directing execution to issue for it, if not paid, to make the judgment complete and final. * * * A final judgment is necessary to give jurisdiction on appeal to this court of the case, it cannot be waived by the parties, and, for want of it, we cannot review the rulings of the trial court, and the appeal must be dismissed. * * *'"
As we understand the situation, the proposition is advanced in the instant case by the appellee that the judgment entered is not such a final judgment as will support an appeal because the judgment fails to show a dismissal of the case and therefore the appeal should be dismissed. In Thomas v. White, 244 Ala. 128, 12 So. 2d 567, 568, the judgment entry after reciting that the plaintiff moved for a nonsuit on account of adverse rulings of the court, continues in the following language:
"`It is therefore considered and adjudged by the court that the defendant can go hence and have and recover of the plaintiff all costs incurred in this prosecution, for which let execution issue.'" The court said: "This order `put the case out of court,' and constitutes a final judgment. Wood v. Coman, 56 Ala. 283, cited approvingly in Martin v. Alabama Power Co., 208 Ala. 212, 94 So. 76."
We accordingly conclude that the appeal is not due to be dismissed.
In view of our holding that the appeal is not due to be dismissed we must consider the sufficiency of the complaint on demurrer. There are two counts in the complaint. The difference in the two counts will be explained later.
In order to recover in a suit of this kind against a municipality the complaint must contain allegation of facts which bring the plaintiff's case within the provisions of § 502, Title 37, Code of 1940. City of Bessemer v. Chambers, 242 Ala. 666, 8 So. 2d 163; City of Montgomery v. Quinn, 246 Ala. 154, 19 So. 2d 529. In a suit under § 502 there must be allegations in the complaint *323 showing a duty on the part of the municipality. City of Birmingham v. Wood, 240 Ala. 138, 197 So. 885; Smith v. City of Birmingham, 243 Ala. 124, 9 So. 2d 299. Furthermore in an action for injury the complaint must allege necessary details so as to show that the street may be so defective as to be dangerous. City of Birmingham v. Wood, supra. When it comes to providing warnings, barriers or lights, the duty of the city is to use ordinary care only. City of Birmingham v. Whitfield, 29 Ala.App. 454, 197 So. 666. Whether the particulars alleged support the allegation that the place was not reasonably safe is a question of law to be raised by demurrer. City of Birmingham v. Wood, supra; West v. Spratling, 204 Ala. 478, 86 So. 32.
Count one contains general allegations showing that the injuries and death of plaintiff's intestate were proximately caused by the defendant's neglect, carelessness or failure to remedy a defect in Summit Street. The allegations show that the plaintiff's intestate was riding at night as a passenger in a car operated by one Leslie T. Oliver northwardly on Summit Street, a short distance from the northern end thereof, that the car continued northwardly to the end of Summit Street and was precipitated or did travel northwardly beyond the end of Summit Street so that it passed through a wire fence running approximately along or adjacent to the northern end of the street and perpendicular to the line of the street so that the car continued forward and northwardly about 20 feet at which point it collided with the front of a house that was occupied by one A. H. Wadewitz.
The allegations further show that the approach by automobile from the south on and along Summit Street toward the northern end thereof is on a decline so that at night the northern end was not readily visible at reasonably safe distance therefrom, that the only connecting street at the northern end of Summit Street was a narrow street which ran only westwardly and approximately at right angles thereto, that on each of the two gateposts in the aforesaid fence, which were in the line of Summit Street and which were five feet apart, was located a round, red reflector about 4 feet from the ground facing southwardly so that at night they had the appearance of the taillights of a truck or automobile, that the defect was in the fact that Summit Street to the traveller thereon had the appearance at night of continuing northwardly beyond the actual termination thereof and there was no adequate warning signal, sign or other means of warning the travelling public indicating the terminations of the street or the existence of the right angle turn or otherwise indicating the proximity of danger to the travelling public in vehicles proceeding on and along that portion of Summit Street.
When the allegations of count one are considered there is nothing to show that a defect exists within the limits of the street. A mere slope is not a defect. City of Birmingham v. Monette, 241 Ala. 109, 1 So. 2d 1, 133 A.L.R. 1020. But if a dangerous condition exists outside the street limits but so near thereto that it endangers travel thereon because of the want of protecting barriers, warnings or lights with the probability of injury therefrom, then the city can be held liable. McQuillin on Municipal Corporations, 3rd Ed., Vol. 19, pp. 216-220. Our cases illustrate this situation.
In City of Montgomery v. Moon, 208 Ala. 472, 94 So. 337, a girl eight years old while walking along a sidewalk which abutted a railroad cut, fell into the cut at a place where it was unguarded. This court, citing McQuillin, recognized the duty of a municipality to provide a guard in that case. In City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4, the plaintiff at night was walking along a street to a point where it reached a railroad cut at which point there was a bridge, narrower than the street, going across the cut. This left a space of about four feet between the streetcar trestle and the foot passage bridge which space was unguarded. Plaintiff stepped into this open space and suffered serious damage. Recovery was allowed. In City of Anniston v. Greene, 26 Ala.App. 513, 162 So. 570, the city was held liable where a cement sidewalk extended for a half block past an intersection *324 where it terminated on the bank of a creek with an abrupt step into the creek, without any light, bannister or other warnings. An example of the liability of the city even where a defect is created by another is found in City of Bessemer v. Brantley, 258 Ala. 675, 65 So. 2d 160. There the city had constructed a driveway across the sidewalk to the street and the vehicular use of the driveway by tenants of an adjacent building created a crack in the sidewalk. The city was nevertheless held liable to a pedestrian who was thereby injured.
But what is the situation in the instant case? There is a slope of Summit Street to its northern dead end. Abutting the street there is a house and lot, the front of the house being only 20 feet from the street. In front of the house and across the front end of the lot is a fence with posts and red reflectors thereon as described in the complaint. In other words there is no excavation, pitfall, declivity or other dangerous condition beyond the street. In order to reach the house from the street as in the present case it was necessary for the occupants of the car to become intruders or trespassers upon the premises of another. 43 C.J. pp. 1037-1039; 63 C.J.S., Municipal Corporations, § 822.
For aught that appears the red reflectors were not placed there by the city and were not on city property. If the reflectors appeared to be the taillights of a car, the driver on the street had no business to crash into the supposed car, all of which brings us to say that the duty of the city should not be confused with the duty owing by the driver to his passengers.
As we have shown the plaintiff must allege facts which show a duty on the part of the municipality and bring the case within § 502. Authorities supra. Upon a consideration of the matter we do not think that the pleader has met the requirements in count one of the complaint.
Count two is similar to count one with the exception that the allegations with reference to the posts and reflectors are omitted from count two. The principles which we have stated as being applicable to count one are clearly applicable to count two.
It results that the judgment of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.
Application for rehearing overruled.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | June 30, 1955 |
19e6c6f5-58a8-4760-87b1-5d3437a8d1ad | Hipp v. McMurry | 81 So. 2d 531 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 531 (1955)
Odus HIPP, Adm'r,
v.
Luther Lee McMURRY et al.
6 Div. 659.
Supreme Court of Alabama.
June 16, 1955.
*533 Hugh A. Nash, Oneonta, for appellant.
Leland Randall, Oneonta, and Geo. D. Finley, Birmingham, for appellees.
LAWSON, Justice.
According to the record before us, the original bill was filed in the circuit court of Blount County, in equity, on March 24, 1950, by Rollie A. Hipp against Odus Hipp, sometimes referred to in the record and in briefs as Otis Hipp, but we will use hereafter the name set out in the caption to the bill.
The purpose of that bill was to secure a decree declaring void a deed which the complainant, Mrs. Rollie A. Hipp, executed on or about June 20, 1934, wherein she conveyed to her son Odus approximately seventy acres of land situate in Blount County for a consideration of five dollars and the grantee's agreement "to take care of the grantor during her natural life."
On April 26, 1950, upon the suggestion of the death of Mrs. Rollie A. Hipp, and on motion, the trial court entered an order reviving the cause in the name of Luther Lee McMurry, William W. McMurry and Nova Jane Kennedy, all of whom are children of the original complainant born to her prior to her marriage to the father of Odus Hipp.
Thereafter the bill was amended by making Odus Hipp a party respondent in his capacity as administrator of the estate of Mrs. Rollie A. Hipp. Marvin Hipp, a brother of Odus Hipp and a half-brother of the substituted complainants, was also made a party respondent. The amended bill averred that the parties to the suit constituted all the heirs of Rollie A. Hipp, deceased.
A decree pro confesso was taken against Marvin Hipp.
Odus Hipp filed an answer in his representative as well as in his individual capacity.
The answer of Odus Hipp was made a cross bill and it was averred therein that cross-complainant had performed his agreement to support his mother and that in doing so he had expended large sums of money for her care and support and that he had spent certain sums of money in making permanent improvements on the property. The cross bill prayed that the trial court ascertain the value of such expenditures made by the cross-complainant and make any decree that might be rendered cancelling the deed contingent upon the payment to cross-complainant by cross-respondents of the sum so ascertained. It was also alleged in the cross bill that on the night that Mrs. Rollie A. Hipp died the cross-respondent Mrs. Nova Kennedy removed from the premises of cross-complainant certain articles of personal property which belong to him, as well as other items of personal property which belong to the estate of Rollie A. Hipp, deceased, and that the said Nova Kennedy refuses to return such property after demand. The cross bill prays that Nova Kennedy be required to return the personal property so removed or pay therefor.
The cross-respondents filed an answer to the cross bill wherein they averred that any claim which cross-complainant might have for money expended in support of his mother and in the making of permanent improvements to the suit property is more than offset by money which cross-complainant owes the estate of his mother for rent or for the use and occupation of the premises.
The cause was submitted for final decree on the pleadings to which we have referred above and on the testimony noted by the *534 register, which testimony was not taken orally before the trial court.
The trial court decreed substantially as follows: 1. The deed from Rollie A. Hipp to Odus Hipp was declared null, void and of no present effect. 2. That Odus Hipp is entitled to the sum of $2,000 for his services to his mother and expenditures made on her behalf and for improvements placed by him on the suit property after the execution of the deed and prior to the time this suit was filed; that "said sum shall be and constitute a lien on the premises superior to all other liens or claims except taxes and costs." 3. "It is further Ordered, Adjudged, and Decreed by the Court that other questions raised in the Cross-Bill as to personal property are not adjudged herein but that the Cross-Bill as to same be and it is dismissed without prejudice."
After his application for rehearing was overruled, Odus Hipp appealed to this court.
The allegations of the original bill, as well as those of the amended bill, bring this case within the provisions of § 15, Title 20, Code 1940, which reads:
We have said that the statute just quoted is sui generis. The option there given becomes a matter of right if exercised in the statutory manner. Heartsill v. Thompson, 245 Ala. 215, 16 So. 2d 507. See Walker v. Walker, 261 Ala. 168, 73 So. 2d 522.
The right to rescind, which the grantor has in a conveyance subject to the provisions of § 15, Title 20, supra, is a personal right, not a property right, and is not transferrable until the grantor has elected to rescind during his lifetime and has taken proceedings in equity to annul the conveyance. Petty v. Hall, 257 Ala. 145, 57 So. 2d 620.
But where the grantor in his lifetime has elected to rescind during his lifetime and has filed his bill in equity to accomplish that purpose, the right ceases to be personal and becomes a property right. Petty v. Hall, supra; Garthright v. Wilson, 261 Ala. 302, 74 So. 2d 440.
It has been held by this court that when such a grantor has a proceeding in equity to annul the conveyance and dies before there is a final decree in that cause, the right descends to his heirs and they may revive it in their names and prosecute it to a conclusion. Petty v. Hall, supra, and cases there cited.
Our view of the evidence is that Mrs. Rollie A. Hipp, although in advanced years and unwell, was fully cognizant of the effect of the suit filed in her name against her son Odus on March 24, 1950, and that it was not a result of undue influence exerted over her by the appellees.
The trial court did not err in decreeing the deed under date of June 20, 1934, to be null, void and of no present effect. § 15, Title 20, Code 1940.
Appellant argues that the trial court was in error in not allowing him more than $2,000 for his services to his mother and expenditures made by him on her behalf and for permanent improvements placed by him on the property conveyed to him in the deed which the trial court declared void.
The rule is that where a grantor rescinds a deed, of which a material part of the consideration is support and maintenance, the grantee, having complied with the terms of the conveyance, may be compensated for reasonable expenditures and services performed in caring for the grantor and for the value of such reasonable permanent improvements to the property which the grantee has made which in equity and good conscience appear to be just. Petty v. Chamberlain, 253 Ala. 453, 45 So. 2d 161. In Cornelius v. Walker, 248 Ala. *535 154, 27 So. 2d 17, we held that although a complainant in a suit of this kind does not have to offer to do equity in order to maintain his bill, nevertheless a court of equity on proper pleading and proof may proceed to do full justice between the parties in regard to all matters growing out of the transaction brought before the court.
The record before us is voluminous. Most of the testimony adduced is concerned with the appellant's claim for reimbursement. As shown above, the testimony was not taken ore tenus, hence we indulge no presumption as to findings of fact. It is our duty to sit in judgment on the evidence. Butler v. Guaranty Savings & Loan Association, 251 Ala. 449, 37 So. 2d 638. And in sitting in judgment on the evidence in this case, we have been confronted with the problem of ascertaining that part of the evidence offered which, under existing laws, we may consider in determining the rights of the parties under the pleadings. Redwine v. Jackson, 254 Ala. 564, 49 So. 2d 115. We must consider only such testimony as is relevant, material, competent and legal. Rudicell v. Rudicell, Ala., 77 So. 2d 339; Code 1940, Title 7, § 372(1), 1953 Cum. Pocket Part, Vol. 2, p. 71; General Acts 1943, p. 105. In briefs filed here no effort has been made by counsel for either side to pick out the good from the bad, to separate the wheat from the chaff, and there is much of the latter.
We will not undertake to set out the evidence which we think is properly considered in connection with appellant's claim for reimbursement. It has been considered in consultation with care. We are of the opinion, after a very careful analysis of the record before us, that the amount allowed to appellant by the trial court is reasonable and does justice between the parties.
The trial court did not err in refusing to pass on the controversy in regard to the personal property, since that controversy did not relate to the original bill nor grow out of the transaction which the original bill brought before the court. Ex parte Arrington, 259 Ala. 243, 66 So. 2d 96, and cases cited.
The appeal was taken from the final decree only, as was proper. But there is an assignment of error challenging the action of the trial court in overruling appellant's application for rehearing. The decree overruling the application for rehearing is not subject to review by assignment of error made on appeal from the final decree. Whitman v. Whitman, 253 Ala. 643, 46 So. 2d 422; McNeil v. Hadden, 261 Ala. 691, 76 So. 2d 160.
The decree is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | June 16, 1955 |
2bcad8d7-2aa4-4ef5-ab5b-f5483ffc24f6 | White v. State | 81 So. 2d 267 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 267 (1955)
P. C. WHITE
v.
STATE ex rel. Conrad M. FOWLER, Solicitor.
7 Div. 243.
Supreme Court of Alabama.
May 12, 1955.
Rehearing Denied June 23, 1955.
*268 J. Edmund Odum, Birmingham, for appellant.
Robt. Straub, Asst. Atty. Gen., for appellee.
GOODWYN, Justice.
This is a proceeding in the nature of quo warranto, Code 1940, Tit. 7, § 1136, brought by the state on the relation of the solicitor of the Eighteenth Judicial Circuit charging P. C. White, appellant, a chiropractor, with intruding "into the profession of treating or offering to treat diseases of human beings, (a profession requiring a license or certificate or other legal authorization within the state), without having obtained a certificate of qualification from the State Board of Medical Examiners of the State of Alabama, or the license required by law," and further charging that he "is still unlawfully practicing said profession in Clay County, Alabama." Code 1940, Tit. 46, §§ 259, 261. The prayer of the petition is that defendant be required "to show cause by what warrant or authority he is practicing said profession"; that he be "excluded from said *269 profession and be prohibited from practicing the same in Clay County, Alabama, until he shall have complied with the law"; and that "such other, further and different orders and processes be made and issued by the court, as the statute in such cases provides" and that there be granted "such other, further and different relief as the nature of the case may require". A motion to quash and demurrer to the petition both, in turn, being overruled, appellant filed an answer denying the averments of the petition and trial was had before a jury. At the close of the trial the trial judge, pursuant to written request of the state, gave the general affirmative charge against defendant without hypothesizing the charge on a belief of the evidence. The jury rendered the following verdict: "We, the jury, find the issues in favor of the plaintiff and that the respondent is guilty as charged in plaintiff's petition." Judgment on the verdict was entered by the court. This appeal is from that judgment.
This is the second trial and appeal in this case. On the first trial the trial court, on request of the state, gave the affirmative charge against defendant hypothesized upon a belief of the evidence. The jury returned a verdict for the defendant. The state then filed a motion to set aside the jury's verdict and grant a new trial. This motion being granted, the defendant appealed to this court. We affirmed. White v. State ex rel. Hardegree, 256 Ala. 18, 53 So. 2d 599.
It appears from appellant's brief that the grounds relied on for reversal are as follows:
I. That § 259, Tit. 46, Code 1940, supra, "is discriminatory against chiropractors in that it violates the Fourteenth Amendment to the Constitution of the United States."
II. That a practitioner of chiropractic does not, in performing the work of his profession, "intrude into the profession of treating or offering to treat diseases of human beings", and, therefore, such practitioner is not subject to the provisions of Code 1940, Tit. 46, §§ 259, 261, supra.
III. That appellant was forced to give evidence against himself in violation of Constitution 1901, Art. 1, § 6.
IV. That the general affirmative charge without hypothesis, requested by the state, should not have been given.
V. That it was error to refuse to permit appellant's attorney to argue the case to the jury.
VI. That it was error to refuse to permit appellant's attorney to poll the jury.
VII. That the trial judge failed to sign his name to the requested written charges to the jury, as required by Code 1940, Tit. 7, § 273.
VIII. That the judgment, in excluding and prohibiting appellant from practicing his profession in the State of Alabama and not limiting the exclusion and prohibition to Clay County only, was not responsive to the pleadings.
We proceed to a discussion of these grounds in the order set out:
I
No authority is cited in support of this ground except a reference to the Fourteenth Amendment to the Constitution of the United States. It is apparent that appellant lays little store by this ground. Counsel's argument with respect to the present law, Code 1940, Tit. 46, § 259, supra, being unfair and discriminatory in not authorizing a separate board of chiropractors for examination of chiropractors, in the manner provided for chiropodists, is something which might be persuasive with the Legislature in seeking a change in the law. However, we are unable to accept the argument as a basis for declaring the present law, as applied to the profession of chiropractic, to be violative of either the state or the federal constitution. We think it was clearly within legislative competency, in the exercise of the police power of the state, to prescribe a method for examining chiropodists different from that prescribed for chiropractors. Although both professions *270 involve the treatment of "diseases of human beings", within § 259, Tit. 46, supra, there are basic differences between them.
II
In support of this ground, appellant cites cases from several other jurisdictions. No Alabama case is relied on. We see no need to discuss these out of state cases since the question appears to have been definitely decided by the courts of Alabama contrary to the position taken by appellant. Owen v. State ex rel. Bailes, 240 Ala. 582, 583, 200 So. 412; Donovan v. State, 215 Ala. 55, 56, 109 So. 290; Robinson v. State ex rel. James, 212 Ala. 459, 460, 461, 102 So. 693; Ex parte Wideman, 213 Ala. 170, 172, 104 So. 440, denying certiorari in Wideman v. State, 20 Ala.App. 422, 104 So. 438. See Bragg v. State, 134 Ala. 165, 32 So. 767, 58 L.R.A. 925, holding that the practice of "medicine" embraces the practice of "osteopathy".
In Donovan v. State, supra [215 Ala. 55, 109 So. 291], the defendant (appellant) was charged with treating diseases of human beings without a license. When testifying as a witness, he was asked if he treated or offered to treat diseases. Objections to these questions were sustained. On appeal here, this court said:
From Robinson v. State, supra [212 Ala. 459, 102 So. 695], is the following:
III
The appellant was called as a witness by the state. He willingly and without objection answered questions propounded to him. At no time was any point made that he was being "compelled to give evidence against himself". He was represented at the trial by able counsel. At one point during appellant's testimony, the trial judge directed attention to the rule against compelling an accused to give *271 evidence against himself. Thereupon counsel for appellant stated, in effect, that no immunity was being claimed. In this situation it is clear that appellant waived any immunity from testifying, if such he had. Nothing we have said is to be taken as holding that § 6, Art. 1, Constitution 1901, could have been invoked by appellant as a basis for refusing to testify. We simply do not now pass on that question as being unnecessary to a decision.
IV, V, and VI
The following general rules are well established in this jurisdiction:
It is not questioned that the evidence of both the state and the appellant shows that appellant was engaged in the practice of chiropractic. Nor is it disputed that appellant has not received a certificate of qualification under § 259, Tit. 46, Code 1940, supra. The disputed issue is the insistence by appellant that the practice of chiropractic is not an intrusion "into the profession of treating or offering to treat the diseases of human beings". That question, however, has already been determined by decisions of this court contrary to appellant's insistence. See discussion under II, supra. Therefore, the giving of the general affirmative charge without hypothesis, as requested in writing by the state, was within the stated rule and not erroneous.
The giving of the peremptory instruction left nothing for the jury to consider. Their only duty was to sign the verdict as directed. Hence, error was not committed in refusing to permit appellant's counsel to argue the case to the jury. Chichester v. First Nat. Bank of Birmingham, 242 Ala. 227, 229, 5 So. 2d 772; Harris v. State, 215 Ala. 56, 58, 109 So. 291, supra; Reed v. Ridout's Ambulance, Inc., 212 Ala. 428, 433, 102 So. 906; Dorough v. Alabama Power Co., 200 Ala. 605, 607, 76 So. 963. Nor was it error to refuse the request of appellant's counsel to poll the jury. Harris v. State, supra; Reed v. Ridout's Ambulance, Inc., supra. As stated in the Reed case, at page 433 of 212 Ala. at page 910 of 102 So.:
VII
In brief of counsel for appellant it is stated that the requested written charges to the jury, instead of being signed by the trial judge as required by Code 1940, Tit. 7, § 273, were stamped with a rubber stamp bearing the judge's name. If such was the case, there is nothing in the record to indicate it. When the record does not disclose the fact assumed as a ground of an assignment of error, such ground for error cannot be considered on appeal. Davis & Co. v. Thomas, 154 Ala. 279, 283, 45 So. 897. On appeal, all questions must be determined by the record, and matter dehors the record will not be considered to contradict the record. Bell v. Bell, 245 Ala. 513, 514, 17 So. 2d 872.
VIII
It is argued that it was error to prohibit appellant from practicing throughout the state since the petition sought only to prohibit him from practicing in Clay County. While the petition specifically prays that defendant be prohibited from practicing in Clay County, it also contains a prayer for "such other, further and different relief as the nature of the case may require". We judicially know that the requirement of a certificate of qualification under §§ 259 and 261, Tit. 46, Code 1940, supra, is co-extensive with the state and that, without such certificate, appellant will not be authorized to practice anywhere in the state. Our view is that error was not committed in prohibiting appellant from practicing throughout the state. This conclusion is supported by the case of State ex rel. Weatherly v. Birmingham Water Works Co., 185 Ala. 388, 414, 64 So. 23, 31, Ann.Cas.1916B, 160, where it was said:
This seems to be the general rule, thus stated in 74 C.J.S., Quo Warranto, § 49, p. 270:
From what we have said it follows that the judgment appealed from is due to be affirmed. It is so ordered.
Affirmed.
All the Justices concur, except MAYFIELD, J., not sitting. | May 12, 1955 |
f5786d6a-91d3-49c0-917a-25653dd0b23b | Alabama Textile Products Corporation v. Grantham | 82 So. 2d 204 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 204 (1955)
ALABAMA TEXTILE PRODUCTS CORPORATION
v.
Lena GRANTHAM.
4 Div. 833.
Supreme Court of Alabama.
August 18, 1955.
*205 Albrittons & Rankin, Andalusia, for appellant.
Frank J. Tipler, Jr., Andalusia, for appellee.
LAWSON, Justice.
This is a suit under the Alabama Workmen's Compensation Law, Code 1940, Title 26, § 253 et seq., instituted by Mrs. Lena Grantham against her employer, Alabama Textile Products Corporation, a corporation, to recover compensation for an alleged personal injury which she averred was caused by an accident arising out of and in the course of her employment.
The answer of the defendant employer specifically denied that Mrs. Grantham sustained *206 a personal injury caused by an accident arising out of and in the course of her employment and on the trial adduced evidence tending to show that Mrs. Grantham's disability was the result of arthritis and other infirmities having no origin in her employment.
The trial court rendered a judgment in favor of the employee and against the employer. The amount of the judgment was based on the court's finding that the employee was permanently and totally disabled.
At the threshold of this case is a question which is not argued but which bears on our right to review the matters which are argued: Has there been a sufficient compliance with § 304, Title 26, Code 1940, which provides, among other things, that the determination and judgment of the court "shall contain a statement of the law and facts and conclusions as determined by said judge." In Ex parte Sloss-Sheffield Steel & Iron Co. (Greek's Case), 207 Ala. 219, 92 So. 458, 459, we said of the provisions of law just quoted, § 28, Acts 1919, pp. 206-239, as follows: "The required statement of law, facts, and conclusions is necessary to make serviceable the review by certiorari which the statute provides * * *." And in Bryant v. Central Foundry Co., 217 Ala. 332, 116 So. 345, it was said of § 7578, Code 1923, the progenitor of § 304, Title 26: "The statute contemplates, not a recital of the evidence, with its conflicting lights and tendencies, but 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."
Where the trial court completely fails to comply with the provisions of § 304, Title 26, supra, to which we referred above, the judgment of the trial court will be reversed by this court. Bass v. Cowikee Mills, 257 Ala. 280, 58 So. 2d 589; Richardson Lumber Co. v. Pounders, 254 Ala. 285, 48 So. 2d 228. But a substantial compliance with these provisions will suffice. Bryant v. Central Foundry Co., supra; Ex parte Sloss-Sheffield Steel & Iron Co., supra. And we have held that where the trial court's finding of fact is merely meager and omissive, this court will look to the evidence in the case to see if on any reasonable view of the evidence the judgment of the court can be sustained. Ex parte Louisville & N. R. Co., 208 Ala. 216, 94 So. 289. See Bass v. Cowikee Mills, supra, citing as authority for its holding the case of Ex parte Shaw, 210 Ala. 185, 97 So. 694.
The burden was upon the plaintiff in this case to present evidence sufficient to reasonably satisfy the trial court (1) that she suffered a personal injury; (2) that such personal injury was caused by an accident; and (3) that the accident which caused the personal injury arose out of and in the course of her employment. New River Coal Co. v. Files, 215 Ala. 64, 109 So. 360; Black v. Alabama Dry Dock & Shipbuilding Co., 249 Ala. 209, 30 So. 2d 456. And there should have been an express finding by the trial court that each of those facts was established by the evidence.
In the record now before us, that which is captioned "Judgment of the Court" is a "determination" as that word is used in § 304, Title 26, as well as a judgment. It contains a "finding of facts" as well as the court's "conclusion." In its "finding of facts," after referring to the evidence presented, the trial court stated: "We [sic] find from the evidence of Dr. Palmer that petitioner did suffer a herniated [intervertebral] disc as the proximate result of an accident while in the employment of the defendant on July 17, 1953." And in its "conclusion" the trial court stated: "The court concludes from the evidence in this case that the plaintiff has suffered an injury as she claims in her petition while employed by the defendant and that such injury was a herniated or ruptured [intervertebral] disk." We have inserted the word "intervertebral" because Dr. Palmer, the orthopedic surgeon who *207 treated Mrs. Grantham on many occasions and upon whose testimony the trial court found that Mrs. Grantham sustained a personal injury, stated that "the most probable diagnosis" of her injury was "a herniated intervertebral disk," which words according to our understanding are used to describe a condition which results when parts of a layer of fibrocartilage normally situated between certain vertebrae in the spine protrude through an abnormal opening. See article on Intervertebral Disc Injuries in Workmen's Compensation Cases, by Larry Alan Bear, Vanderbilt Law Review, Vol. 6 (1952-53), pp. 883-905.
The parts of the determination and judgment quoted above are in our opinion clearly sufficient to constitute a finding by the trial court that the plaintiff did suffer a personal injury which was caused by an accident. But the words "while in the employment of the defendant" and "while employed by the defendant" can be said to mean no more than that at the time the employee was injured the relationship of employer and employee existed between the plaintiff and defendant, and such a finding would not make the accident compensable. As before indicated, the injury must be caused by an accident arising out of and in the course of employment to be compensable. Hardisty v. Woodward Iron Co., 214 Ala. 256, 107 So. 837; Jones v. Sloss-Sheffield Steel & Iron Co., 221 Ala. 547, 130 So. 74. For an accident to "arise out of employment" the employment must have been the cause and source of the accident and the resultant injuries must be traceable to a proximate cause set in motion by the employment, not by some other agency. Foster v. Continental Gin Co., 261 Ala. 366, 74 So. 2d 474. And an injury to an employee "arises in course of employment" within the compensation act when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling duties of his employment or engaged in doing something incident to it. Southern Cotton Oil Co. v. Bruce, 249 Ala. 675, 32 So. 2d 666. However, we think the finding of the trial court in this respect is merely omissive and under the rule of the Bass Case, supra, we can look to the evidence in the record to see if on any reasonable view of it, the judgment of the trial court can be sustained. See Ex parte Big Four Coal Mining Co., 213 Ala. 305, 104 So. 764; Hearn v. U. S. Cast Iron Pipe & Foundry Co., 217 Ala. 352, 116 So. 365; Ex parte Sloss-Sheffield Steel & Iron Co., 207 Ala. 219, 92 So. 458.
It is argued here by the employer, the defendant below, that the trial court erred in finding that Mrs. Grantham had suffered a herniated intervertebral disk. Much of that argument is directed to a discussion of the weight of the evidence, with which we are not concerned. Workmen's compensation cases are not triable de novo in this court on the evidence taken below nor reviewed even as the finding of a judge sitting without a jury, as in ordinary trials at law or in equity upon testimony of witnesses examined before the court. Our duty in this type case is simply to ascertain whether there was any legal evidence to sustain the conclusion of the trial court. If any reasonable view of the evidence supports such conclusion, then the judgment will not be disturbed. Dunning v. Republic Steel Corp., 257 Ala. 1, 59 So. 2d 606; Paramount Coal Co. v. Williams, 214 Ala. 394, 108 So. 7; Foster v. Continental Gin Co., supra.
As shown above, there was medical testimony to the effect that the most probable diagnosis of Mrs. Grantham's condition was that she was suffering from a herniated intervertebral disk. This was the testimony of Dr. Palmer, who treated Mrs. Grantham on many occasions, and was made with full knowledge of her past illnesses. We think the testimony of Dr. Palmer, together with that of the plaintiff below, was sufficient to support the finding of the trial court as to the personal injury suffered by the plaintiff. Dunning v. Republic Steel Corp., supra; Hewitt v. Cheraw Cotton Mills, 217 S.C. 90, 59 S.E.2d 712; Lowery v. W. Horace Williams Co., La.App., 8 So. 2d 704; Purity Biscuit Co. v. Industrial Commission, 115 Utah 1, 201 P. *208 2d 961; Woodson v. Kendall Mills, 213 S.C. 395, 49 S.E.2d 597.
The testimony of plaintiff and that of Dr. Palmer also supports the finding and judgment of the trial court to the effect that the plaintiff is totally and permanently disabled.
The question is presented as to whether the evidence is sufficient to support a finding that such injury was caused "by an accident" within the meaning of our workmen's compensation law.
The defendant is a manufacturer of shirts and other wearing apparel. At the time of the alleged injury complainant, Mrs. Grantham, was employed by defendant to sew together the backs and fronts of shirts on an electric sewing machine. She had been so employed for nearly twenty-three years. It was plaintiff's duty to secure the fabric from a bin, the sides of which were almost as high as her waist. On July 17, 1953, according to the plaintiff, she leaned over the sides of the bin to lift a bundle of fabric weighing about ten pounds and as she was in the act of lifting it she felt sensations as if she had a "catch in her back" or as if needles had been stuck in her back. She became weak and nauseated, but after a few minutes rest she resumed her duties. That was her last day of work.
There was no finding by the trial court that the injury was caused by a blow, slip, fall or that it resulted from any unusual strain or exertion. But such findings are not necessary to support the conclusion that an injury of the kind which this plaintiff sustained was caused "by an accident" within the meaning of our workmen's compensation law when suffered in the manner outlined above. Gulf States Creosoting Co. v. Walker, 224 Ala. 104, 139 So. 261; De Arman v. Ingalls Iron Works Co., 258 Ala. 205, 61 So. 2d 764; Purity Biscuit Co. v. Industrial Commission, 115 Utah 1, 201 P.2d 961; Rivero v. Leaveau, La.App., 45 So. 2d 418; Mills v. Monte Christi Corp., 10 N.J.Super. 162, 76 A.2d 839; Neylon v. Ford Motor Co., 10 N.J. 325, 91 A.2d 569; Gray v. Employers Mut. Liability Ins. Co., Fla., 64 So. 2d 650; Vitale v. Haeser, Fla., 64 So. 2d 657; Falk v. Balch, Fla., 64 So. 2d 658; Glass v. G. A. Miller Co., Fla., 65 So. 2d 749; Larson's Workmen's Compensation Law, Vol. I, p. 519, § 38.20.
The only other matter presented for our consideration is whether or not the trial court erred in holding that there was a sufficient compliance with the provisions of § 294, Title 26, Code 1940, which reads:
The record clearly reflects a very "good reason" why the employer did not receive notice of the plaintiff's actual injury within the five-day period, and that is that the serious injury to her back had not manifested itself within five days from the time of the accident. Swift & Co. v. Rolling, 252 Ala. 536, 42 So. 2d 6.
The judgment of the trial court is affirmed.
Affirmed.
SIMPSON, STAKELY, GOODWYN and MERRILL, JJ., concur. | August 18, 1955 |
ba4d1cf6-9701-442b-9dc5-8cb2ab1507e3 | Prince v. Lowe | 82 So. 2d 606 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 606 (1955)
W. M. PRINCE et al.
v.
Henry C. LOWE.
5 Div. 601.
Supreme Court of Alabama.
February 24, 1955.
Rehearing Granted June 23, 1955.
Further Rehearing Denied October 13, 1955.
J. A. Walker, Jacob Walker, Jr., Walker & Walker, Opelika, for appellants.
L. J. Tyner, Opelika, for appellee.
MERRILL, Justice.
This is an appeal by the defendants in a damage suit from a judgment in favor of the plaintiff, Henry C. Lowe. The suit arose out of a collision of Lowe's automobile with defendants' truck and as a result of the collision Lowe received a broken back.
Assignments of error 4 to 16, inclusive, deal with objections to questions propounded by plaintiff to two doctors or with *607 motions to exclude the answers after they were permitted. The chief objection assigned to the questions was that they called for hearsay testimony, although many other grounds of objection were stated.
Dr. Samford is a specialist in the field of X-ray and Dr. Owsley was Mr. Lowe's attending physician. Dr. Samford, Dr. Owsley and Dr. Jack Hughston held conferences dealing with the injuries to Mr. Lowe's back. Plaintiff showed more than once that Dr. Jack Hughston was "the bone specialist" from Columbus, Georgia. Dr. Hughston was not present at the trial. Dr. Samford and Dr. Owsley each testified as to their individual diagnosis and prognosis of the case but, following that testimony, each was asked on direct examination what Dr. Hughston said in the conferences and whether the opinion or conclusion of the witness was concurred in by the other doctors. We quote these questions and answers from the record omitting the objections, the rulings of the court, the motions to exclude, the exceptions and a few nonpertinent remarks.
Testimony of Dr. Samford:
The court announced that the record would show that the evidence was admitted on the authority of three cases: Grammer v. State, 239 Ala. 633, 196 So. 268; Franklin Life Ins. Co. v. Brantley, 231 Ala. 554, 165 So. 834 and Taylor v. Atlantic Coast Line R. Co., 232 Ala. 378, 168 So. 181.
The exact question before us has not been decided many times. In 1886 in the case of Village of Ponca v. Crawford, 18 Neb. 551, 26 N.W. 365, 367, a doctor was on the stand and testified in part as follows:
The court then said:
The next case we find is that of Hussey v. State, 87 Ala. 121, 6 So. 420, 425, decided in 1888, where the court said:
In 1937 the Court of Appeals of Tennessee, upholding the lower court in excluding testimony of one doctor who related the opinion of another doctor, said in Tevis v. Proctor & Gamble Distributing Co., 21 Tenn.App. 494, 113 S.W.2d 64, 70:
In the case of Bluebird Baking Co. v. McCarthy, Ohio App., 1935, 36 N.E.2d 801, 805, the court in holding that the lower court erred in permitting the witness, a local surgeon, to quote "a reputably recognized brain specialist", cited with approval the following statement: "* * * `the testimony of a physician that other physicians concurred with him in his opinion is hearsay.'"
In Jones on Evidence, Civil Cases, 4th Ed. Vol. 1, p. 297, it is said: "By hearsay is meant that kind of evidence which derives its value, not solely from the credit to be attached to the witness himself, but also in part because of the veracity and competency of some other person from whom the witness may have received the information."
In Wigmore on Evidence, 3rd Ed. Vol. 5, § 1362, we find: "It is sufficient to note that the Hearsay rule, as accepted in our law, signifies a rule rejecting assertions, offered testimonially, which have not been in some way subjected to the test of crossexamination."
Wharton, Criminal Evidence, 11th Ed. § 427, says: "Hearsay evidence may be defined as that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests, also, in part, on the veracity and competency of some other person."
It would appear that the quoted testimony of Drs. Samford and Owsley was hearsay under the general rule and the rule in Alabama, unless within an exception recognized in the cases cited by the court below. The case of Franklin Life Ins. Co. v. Brantley, supra [231 Ala. 554, 165 So. 837], on the question before us says:
*610 This statement is a relaxation of the general rule that a patient may not testify what his doctor told him in reference to his injuries. Blackman v. Johnson, 35 Ala. 252 [2]; Alabama G. S. R. Co. v. Arnold, 80 Ala. 600, 2 So. 337; Taylor v. Atlantic Coast Line R. Co., supra, and Hornaday v. First Nat. Bank of Birmingham, 259 Ala. 26, 65 So. 2d 678 [7]. But the case is not authority for the proposition that one doctor may testify what another doctor thought or said, unless the citations of and comment on the Texas case is such authority. We consider this Texas case later. The only other authority cited by the court in the Brantley case is 29 C.J. p. 284 and Rocci v. Massachusetts Accident Co., 226 Mass. 545, 116 N.E. 477. The text in Corpus Juris is:
The Rocci case is cited in Note 6, 29 C.J. p. 284, and is authority for the text, but it should be borne in mind that the physician himself testified that he advised the patient to make the move. Thus the patient's statement was merely cumulative and if there was error in permitting him to testify that his doctor ordered him to move, it would not be reversible error because the doctor also testified to the same thing.
In Taylor v. Atlantic Coast Line R. Co., supra [232 Ala. 378, 168 So. 183], this court held that where plaintiff had testified that Dr. Edge had made an X-ray picture of his knee, the lower court properly sustained an objection to this question: "`What did the doctor tell you in reference to the condition of your knee?'" because "the unsworn opinion of a physician, like any other expert, is mere hearsay. The proper method of proving the result of Dr. Edge's examination was to examine him as a witness." The court refers to the holding in the Brantley case, supra, notes the text in Corpus Juris and the Rocci case, supra, and says:
We now come to consider the case of Grammer v. State, supra [239 Ala. 633, 196 So. 273], where the court, in discussing the fact that Dr. Kay, an expert on mental disease connected with Bryce Hospital, had been permitted to testify, without objection, that "`it was the unanimous opinion of the medical staff that Mr. Grammer was not insane" at all conferences that discussed the matter, and that "it was my feeling and the feeling of the rest of the medical staff that" etc., said on rehearing:
The authorities cited are the Brantley case, supra; the Taylor case, supra, and the Texas case, which was also cited in the Brantley case. We have already discussed the first named cases and we quote the pertinent part of the decision in the Tillman (Texas) case [84 Tex. 31, 19 S.W. 295]. The background of that case was that the action was on an insurance policy and the insured, Goslin, was found in his locked store in a dying condition "from the effects of morphine or opium poison administered by himself", either by mistake or to commit suicide. The court said:
It will be noted that the question was asked on cross examination and not direct, and was a legitimate question with the apparent aim of impeaching or modifying the direct testimony of Dr. Smoot. It was a question which could have been and, under our rules, should have been answered "yes" or "no". But the answer was not responsive to the question and the defendant went into a detailed explanation of the difference of opinion between him and Dr. Leake. We do not think the Tillman case is helpful in deciding the question before us.
In 32 C.J.S., Evidence, § 570, we find: "It has been said that corroboration cannot be had by reciting the judgment of others on the subject," citing Indiana Natural & Illuminating Gas Co. v. Anthony, 26 Ind. App. 307, 58 N.E. 868. That case holds that an expert may be asked his opinion on a matter, but it would not be competent for him to say what opinion other experts might have on the subject.
It is our opinion that the lower court should have sustained the objections to the questions to Dr. Samford and Dr. Owsley which are quoted herein on the grounds that they called for hearsay evidence and they represented an attempt to bolster their testimony with that of a third party not under oath or subject to cross examination. Too, this third party expert was the only recognized specialist in the particular field and as between experts with different experience and qualifications, the testimony *612 of the one with the greatest experience and the more specialized knowledge of the question involved is entitled to the greater weight. 32 C.J.S., Evidence, § 572, p. 420, Note 77; Linn v. Terrell Compress & Warehouse Co., La.App., 142 So. 193; Benedict v. United States, D.C., 270 F. 267; Lapham v. United States, D.C., 93 F. Supp. 276.
The appellee knew that Dr. Hughston lived in Columbus, Georgia, and could not be compelled to come to this state to testify. Adequate provision to meet such circumstances is provided in Code of 1940, Title 7, Article 6, §§ 457-474, which provide for procuring testimony by deposition. The proper method to put the testimony of Dr. Hughston before the jury was either to have him testify in person or by deposition.
We reaffirm the rule laid down in Hussey v. State, supra, and since that conflicts with the quoted portion of the opinion in Grammer v. State, supra, the former must prevail.
It is never easy to reverse a judgment where it is obvious that both the trial attorney and the trial court followed to the letter the latest pronouncement of this court, and a check of the questions against the quoted portion of the Grammer case shows that to have been done here. But it is our duty to correct a statement in our decisions which, in our considered opinion, improperly states the law. Insofar as our study reveals, the quoted part of the Grammer case has not been followed by this court since it was announced and this case presents the first opportunity of this court to reconsider the matter.
In view of the fact that the case must again be tried, we do not deem it necessary to discuss assignments of error 1, 2 or 3.
The judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.
LAWSON, STAKELY, GOODWYN and MAYFIELD, JJ., concur.
LIVINGSTON, C. J., and SIMPSON, J., dissent.
SIMPSON, Justice (dissenting).
If the question were original I would concur in the majority opinion that the testimony with reference to Dr. Hughston was inadmissible as hearsay because the Hussey case seems to exposit the better rule.
But the question is not original and the rule of the Grammer case has prevailed in this jurisdiction for some fifteen years and was the governing rule of evidence which the trial Judge was required to follow in the instant case. And no doubt many other cases not brought up for review have also been governed by this latter case.
The rules of evidence touching the admissibility of expert testimony are not always exact, but at times somewhat adumbrant, and since the holding in the Grammer case does not impress me to be so unreasonable I would not overrule it.
I therefore respectfully dissent.
LIVINGSTON, C. J., concurs in the foregoing dissent.
On Rehearing.
PER CURIAM.
On further consideration of the matters treated on original submission, Justice Lawson joins with Chief Justice Livingston in concurring with the views expressed by Justice Simpson on original submission. Justice Mayfield concurs in the conclusion reached by Justice Simpson, but his views are stated in a concurring opinion which will be hereafter set out. It results, therefore, that the majority of the court now hold that the judgment of the trial court should not be reversed for the sole reason assigned in the court's opinion written on original submission. It follows, therefore, that other questions which were asserted by counsel for appellant as constituting *613 reversible error but which were not treated on original submission must now be considered. These are assignments of error 1, 2 and 3. They are:
We treat them in chronological and reverse order.
Assignment No. 3. Appellants concede that it has been proper in the past for the jury panel to be asked whether or not any juror was an officer, agent or employee of a named insurance company, but insist that since January 1, 1952, the effective date of the Motor Vehicle Safety Responsibility Act, Title 36, § 74(42) et seq., Pocket Part, Code of 1940, such action is improper because of § 74(52), Title 36, Code of 1940, Pocket Part, of said act which provides:
We cannot agree with this contention. There is no conflict in the section quoted above and Title 30, § 52, Code of 1940, and the rule of our cases holding that "`"the plaintiff is entitled, upon his seasonable and proper motion, to have the jurors from whom the trial jury is to be selected qualified as to their relation to, or interest in, any insurance company which would be liable, in whole or in part, for any judgment that might be rendered against the defendant."'" Fortson v. Hester, 252 Ala. 143, 39 So. 2d 649, 651; Cox v. Bennett, 250 Ala. 698, 36 So. 2d 86.
Assignment No. 2. The insistence that defendants were entitled to the affirmative charge with hypothesis is based on the contention that plaintiff was guilty of contributory negligence because he allegedly violated § 12(b), Title 36 of the code in that he did not give audible warning with his horn or other warning device before attempting to pass defendant's truck while proceeding in the same direction.
The collision occurred on Highway 169 between Opelika and Crawford around 2:30 in the afternoon. The weather was fair. The plaintiff was driving his own automobile and was accompanied by his service manager, Exton Black. The truck, which belonged to defendant Prince, was being driven by his foreman, defendant Shaneyfelt, who was accompanied by Henry Stevens and Eunice Edwards, two negro men. Both vehicles were traveling south, the truck in front of plaintiff's automobile. The truck was partially loaded with sawmill slabs which were to be thrown off at Edward's home. The highway was on rolling terrain. The plaintiff topped a hill going 50 to 55 miles an hour when the truck was about halfway down the hill. He followed the truck 75 or 80 yards until he could see around the curve or far enough to be safe, and "then I pulled out to pass him, and there was no signal given * * * and as I got, well even with his almost front fender, without any warning, no signal, he cuts to the left at a side road there that led into his house I suppose." This *614 road that the truck was turning to the left to enter was a private drive leading to Edward's house. The front left fender of the truck locked with the right front wheel of the automobile and the automobile turned over to the left, and plaintiff and Black were thrown clear of it. Defendant Shaneyfelt testified:
He further testified that he put both hands on the wheel and made the turn to the left of the pavement where the impact occurred. When he last looked back, plaintiff's car was in the right lane and Shaneyfelt did not know plaintiff was trying to pass. The horn was not sounded from the rear but it blew as the vehicles collided. Plaintiff and Black testified that they could not definitely say whether or not plaintiff sounded his horn. Stevens, the middle man on the seat of the truck was a witness for plaintiff. He, Shaneyfelt and Edwards all testified the horn blew at or near the time of impact. Irrespective of the exact time the horn on plaintiff's automobile was sounded, we think a jury question was presented under the rule of Triplett v. Daniel, 255 Ala. 566, 52 So. 2d 184, 186, where it was said:
The trial court properly refused to give the affirmative charge with hypothesis.
Assignment No. 1. It is argued that the motion for a new trial should have been granted because the verdict was contrary to the evidence and because it was excessive. The first question is answered by Hamilton v. Browning, 257 Ala. 72, 57 So. 2d 530, 536, where the court said:
Some of the rules applying to the amount of the verdict are contained in Montgomery City Lines v. Davis, 261 Ala. 491, 74 So. 2d 923, 925, where the court, speaking through Justice Clayton said:
* * * * * *
We do not think the amount of the verdict, $15,000, was excessive under the principles stated supra.
Having treated all the argued assignments of error, the application for rehearing is granted and the judgment of the lower court should be and is affirmed.
Application for rehearing granted.
Affirmed.
LIVINGSTON, C. J., and LAWSON and SIMPSON, JJ., concur.
MAYFIELD, J., concurs specially.
STAKELY, GOODWYN and MERRILL, JJ., dissent as to that part of the opinion holding admissible the evidence considered by the court in the original opinion.
MAYFIELD, Justice (concurring specially).
I am of the opinion that the logic of Mr. Justice MERRILL'S opinion is unassailable and that the doctrine in the case of Grammer v. State, 239 Ala. 633, 196 So. 268, should be expressly overruled and no longer followed by the bench and bar of this State. But I am not convinced and persuaded that the action of the learned trial judge in following the Grammer case, supra, which was clearly the law of Alabama at the time of the trial, and the admission of cumulative evidence under the authority of this case, was error of sufficient magnitude to substantially affect the outcome of the trial. For this reason, I am of the opinion that the judgment of the lower court should be sustained.
*616 MERRILL, Justice (dissenting).
This is a very peculiar decision. As I understand it, all seven Justices agree that the original opinion states "the better rule", that the testimony with reference to what Dr. Hughston "said", "thought", "was afraid to" and "concurred in", was hearsay and that the holding in the Hussey case is sound. It appears that four of us, a majority, hold that the Grammer case, supra, is overruled and the original opinion correctly states the law to be followed in the future, but four members of the court, also a majority, hold that the law as set out in the original opinion does not apply to this particular case, insofar as the result is concerned, or, to express it another way, the majority thinks the judgment in the instant case should be affirmed, but warns that the next case on the same law and the same facts will be reversed.
Section 43 of our constitution provides for the distribution of powers of government "to the end that it may be a government of laws and not of men." This decision appears to be opposed to the "end" at which the quoted part of § 43 seems to be aimed.
The original dissent by Justice SIMPSON, together with the concurring opinion of Justice MAYFIELD, has now become the majority insofar as the result is concerned, and as I understand that original dissent, it is based on the doctrine of stare decisis because "the rule of the Grammer Case has prevailed in this jurisdiction for some fifteen years and was the governing rule of evidence which the trial Judge was required to follow in the instant case."
All judicial decisions are by necessity ex post facto. If we followed the rule of stare decisis as contended for by the majority, no case would ever be overruled by this court irrespective of how wrong, improper or ill-conceived it might have been, because as stated by the majority, "no doubt many other cases not brought up for review have also been governed by this latter [the Grammer] case." But consider the case of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487, a judicial landmark in our jurisprudence. There the Supreme Court of the United States overruled Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865, which had been followed in many cases for 96 years. And incidentally that decision reversed a judgment in favor of the plaintiff for $30,000, which was twice the amount of the judgment in the instant case. We know of no responsible authority who contends now that Erie R. Co. v. Tompkins is wrong or that the Supreme Court of the United States should not have decided as it did because the lower court and the circuit court of appeals followed Swift v. Tyson, supra, which had been the law for 96 years, or that the judgment in the Erie case should not have been reversed because the plaintiff had secured one for $30,000 by following Swift v. Tyson, supra, and all the cases which followed it. Verily, a majority of this court has added a new and strange concept to records of judicial pronouncements.
A fine statement expressing the proper limits on the applicability of the doctrine of stare decisis is found in Helvering v. Hallock, 309 U.S. 106, 119, 60 S. Ct. 444, 451, 84 L. Ed. 604, where the court said:
In 14 Am.Jur., "Courts", § 82, we find:
The Supreme Court of Louisiana in Miami Corporation v. State, 186 La. 784, 173 So. 315, 320, quoted approvingly from another case as follows:
That opinion also says that "it must be remembered that only seldom can a single decision serve as a basis for stare decisis, and never where opposed to previous decisions, and especially where such previous decisions are overruled without being referred to, as if having escaped altogether the attention of the court." These principles are especially appropriate in reference to the Grammer case because as we stated in the original opinion, "the quoted part of the Grammer case has not been followed by this court since it was announced" in 1940; it overruled the Hussey case without referring to it; and it is a fair assertion to make that the Hussey case escaped the attention of the court when the Grammer case was being considered.
But what has this court done and said about overruling cases which have been followed by this court and recently so?
In Hand v. Stapleton, 145 Ala. 118, 125, 39 So. 651, where this court twice previously in the same case had construed the same local act the same way and then reversed the two previous holdings, the opinion begins:
It should be remembered that the decision in the Grammer case was by a divided court.
The recent case of Redwine v. Jackson, 254 Ala. 564, 49 So. 2d 115, 125, overruled Warner v. Warner, 248 Ala. 556, 28 So. 2d 701, and Justice Lawson, speaking for the majority, said:
The Redwine case shows that the Warner case was followed at least in the two cases cited. Yet the Grammer case, which apparently is clearly wrong and upsets a rule of fifty-two years standing and has never been followed by this court, should not be overruled because "The rules of evidence touching the admissibility of expert testimony are not always exact, but at times somewhat adumbrant".
It being impossible in my mind to justify the holding of the majority on the grounds stated, I must of necessity dissent.
STAKELY and GOODWYN, JJ., concur. | June 23, 1955 |
fba4ee9c-a9ee-4e70-a478-54016ea43b52 | Kelley v. Sutliff | 80 So. 2d 636 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 636 (1955)
Joseph Asbury KELLEY
v.
Grace R. SUTLIFF.
6 Div. 617.
Supreme Court of Alabama.
May 26, 1955.
*637 Edw. T. Rice, Birmingham, for appellant.
Jos. S. Mead, Birmingham, for appellee.
LIVINGSTON, Chief Justice.
This is an appeal from a final decree in equity sustaining the contest of a will in a proceeding under Sec. 64, Title 61, Code of 1940. The case was before this court on a former appeal from an interlocutory decree overruling a demurrer to the bill, as amended. We affirmed that decree. Kelley v. Sutliff, 257 Ala. 371, 59 So. 2d 65.
This litigation grows out of the execution of two instruments, both in the form of a will, by Jesse Thompson Requardt, who, at the time of her death in February, 1950, was a resident of the State of Pennsylvania. The first of these instruments is as follows:
"Signed, sealed and delivered by the said Jesse (Dixie) Thompson Requardt in the presence of us, who at her request and in her presence and in the presence of each other, have subscribed our names as witnesses
The first of these wills was presented for probate by the appellant, Kelley, to the Probate Court of Jefferson County, Alabama, and was by that court admitted to probate April 19, 1950. Thereafter, August 26, 1950, appellee, Grace Sutliff, filed her bill in the circuit court, in equity, exhibiting the latter instrument, dated July 30, 1947, alleging its due and legal probate in the State of Pennsylvania on May 31, 1950. The prayer of the bill was that the latter instrument be declared to be the last will of the testatrix and that the former will be revoked.
On return of the case to the lower court after affirmance here of the decree on demurrer, the respondent-appellant filed an answer by which he denied generally those allegations of the bill that the purported will made in Maryland was the last will of the testatrix, that it was duly probated in Pennsylvania, and that it served to revoke the earlier instrument made and probated in Alabama. More specifically, the answer alleges that the instrument executed in 1942 by Jesse Thompson Requardt was a conveyance in praesenti by her to the respondent of the real estate therein described, wherein and whereby she retained a life estate therein; and on its face shows the purposes and circumstances under which the same was made, and that the instrument shows on its face to have been signed, sealed and delivered to respondent by Jesse Thompson Requardt; that said instrument shows on its face that it was the desire and purpose of the maker of the instrument to presently grant to and vest in respondent the remainder in and to such real estate "to be his now and forever, to be disposed of as he shall will and direct."
On the submission, complainant offered in evidence the purported later will and evidence tending to show the death of the testatrix, and the fact that she had executed that will some three years before her death. There was further offered an exemplified record of the probate of the will in the State of Pennsylvania, this latter over the objection of the respondent. There was, also, some evidence offered with respect to the procedure of that state with respect to the probating of a will. The respondent offered testimony to the effect that the instrument executed in 1942 was, on the day of its execution, delivered to the respondent and that it remained in his possession until the date of its filing for probate. On cross-examination of the respondent, he testified that from the date of the execution of the instrument to the death of the testatrix, respondent collected the rents on the property and remitted her share of the rents to the testatrix.
The final decree recites that:
The decree further recites:
With one exception, to be hereinafter stated, we are in agreement with the conclusion reached by the trial court and stated in its decree quoted above. The sole and only appropriate purpose of this proceeding, brought under Title 61, Sec. 64, Code 1940, is the contest, the revocation, of a will already admitted to probate. The sole and only ground of contest relied upon is revocation by a subsequent will. It very clearly appears that the instrument of April 19, 1942, was propounded by the respondent and was duly probated and recorded as the last will of Jesse (Dixie) Thompson Requardt. Laying to one sideas we did on former appealthe question of estoppel, that is, the right of appellant to proceed to a judgment or decree of the probate court admitting the instrument to probate as a will, and then later, in this proceeding, to take the opposite position that the instrument is not a will, but some sort of conveyance operating in praesenti, not subject to probate, we proceed to a determination of the character of that instrument.
On former appeal, Kelley v. Sutliff, 257 Ala. 371, 59 So. 2d 65, 68, we observed that the instrument "looks more like a will" than a deed, and that it contains no apt words of conveyance. While recognizing the liberal construction of Tit. 47, § 23, Code 1940, as requiring no particular words but only such as disclose the intention of the maker, see Henry v. Brown, 143 Ala. 446, 39 So. 325, we cannot escape the conclusion, upon a re-examination of the instrument as it now appears before us, that it was intended by the maker as a will and not as a conveyance. Though the instrument contains the words "to be his now and forever," they cannot be separated and read out of context, viz.: "It is my desire to have my share of the property * * * revert to my dear cousin Joseph Asbury Kelley, in the event of my death to be his now and forever," etc. (Italics supplied). We are unable to find any other words or expressions within the four corners of the instrument inconsistent with the idea of a will, a devise, or bequest, effective in futuro, "in the event of my death." The only evidence aliunde is that given by the respondent in his testimony that the instrument was delivered to him and remained in his possession. Appellant lays stress upon the wording of the attestation clause "signed, sealed and delivered." These words form no part of the instrument itself. They cannot serve to change the nature of the instrument. Moreover, the mere delivery of a will to a designated beneficiary does not give to the instrument an irrevocable quality. A will is an instrument by which a person *641 makes a disposition of his property to take effect after his decease, and which is, in its own nature, ambulatory and revocable during his life. It is this ambulatory and revocable quality which forms the characteristics of a will. Daniel v. Hill, 52 Ala. 430; Blacksher Co. v. Northrup, 176 Ala. 190, 57 So. 743, 42 L.R.A., N.S., 454. A subsequent legally executed will revokes a prior one. Tit. 61, Sec. 26, Code 1940.
The question next in order is whether the later will exhibited was in legal effect a revocation of the former will. On the face of it, the instrument is in form a will, properly executed and witnessed, as required by our statute, Tit. 61, Sec. 24, Code 1940. It will be observed that this instrument recites that it revokes all former wills made by the testatrix. On the former appeal, we called attention to this fact, but pointed out that the prima facie effect of this later instrument might be rebutted by appropriate pleading and proof showing a contrary intent on the part of the testatrix. As we have noted above, respondent offered no more than a general denial. There was nothing before the trial court, nor is anything before us, evidencing any intent on the part of the testatrix other than as expressed in the later instrument.
We said on the former appeal that "under the circumstances here shown, the execution of a subsequent will is the important question here to be considered." It is well to bear in mind that this is not a proceeding to probate the later will. Indeed, the equity court is without jurisdiction to probate a will, that being a matter resting exclusively in the jurisdiction of the probate court. Wachter v. Davis, 215 Ala. 659, 111 So. 917; Ex parte Russell, 239 Ala. 641, 196 So. 718; Tit. 61, Sec. 35, Code 1940. Contests in equity courts are purely statutory. Tit. 61, Sec. 64, Code 1940; Ex parte Russell, supra. Probate of the Maryland will (the maker being a resident of the State of Pennsylvania) might be undertaken under either Sec. 35, subd. 3, or Sec. 46, as amended, of Title 61 of the Code. So far as appears, no application under either statute has been presented to the probate court of Jefferson County. While there was other evidence, sufficient, we think, to show execution by the testatrix of a subsequent will, the complainant introduced in evidence an exemplified record of the probate of that will in the State of Pennsylvania. Respondent objected to the introduction of this record, and on appeal devotes much argument to the proposition that the method of probate followed by the Register of Wills in that state, being different in material respects to the procedure required in Alabama for the proof of a will, cannot be given effect under the law of Alabama. Much reliance is had upon our case of Hall v. Proctor, 242 Ala. 636, 7 So. 2d 764, enunciating the principles (1) that the lands of intestate descend under the law of the place of situation of the thing, and personalty descends under the law of the domicile; and (2) that the probate of a will in one state is not controlling as to descent of realty in another state. The essence of these principles is that to be effective to pass title to realty the purported will must be sufficient to that end under the laws of the place and proven or probated in the state wherein the realty is situated. Provision for probate of a foreign will is afforded and prescribed by §§ 35 and 46, Tit. 61, Code 1940. Under the former section, prior probate in the state of testator's domicile is not necessary. Frederick v. Wilbourne, 198 Ala. 137, 73 So. 442. To reiterate, the question before the trial court, and before us, was the existence of a subsequent will executed by the testatrix. An exemplified record of the probate of the will in Pennsylvania was competent evidence upon this question.
We have stated hereinabove our agreement with the decree appealed from with one exception. That exception is to this language of the decree: "If such writing is a will, it can be probated in the Probate Court of Jefferson County, Alabama, under Title 61, Section 46, Supplement to 1940 Code of Alabama." True, the trial court observed its lack of jurisdiction to probate the instrument as a will, and the decree contains no adjudication that the instrument in question be probated. The quoted language *642 of the decree might be susceptible of interpretation as a judicial conclusion that the proof offered was conclusive of the right of a proponent to have the will probated in Alabama without other proof than compliance with Section 46, supra. We do not wish to here affirm such a conclusion. The matter of probating the will in Alabama is one which must be first addressed to the probate court, and this, we think, without encroachment upon its primary jurisdiction. With this reservation, the decree appealed from is due to be, and is hereby affirmed.
Affirmed.
SIMPSON, GOODWYN and MAYFIELD, JJ., concur. | May 26, 1955 |
39f78cd9-2a73-4c1e-b2f1-8d8840366a27 | Caffee v. Thompson | 81 So. 2d 358 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 358 (1955)
Pat CAFFEE et al.
v.
J. D. THOMPSON et al.
4 Div. 735-735-A.
Supreme Court of Alabama.
June 16, 1955.
*359 Jas. H. Bradford, Birmingham, for appellants.
John C. Walters and E. C. Orme, Troy, for appellees.
GOODWYN, Justice.
Appeal by respondents from decree in equity determining ownership of "ancestral" land and ordering sale of the land for division among the joint owners.
We put to one side questions not material to a decision on the merits, and direct our attention to the one feature which we think is determinative of the case.
Stated hypothetically, the facts are these: A, the owner of certain real estate in Pike County, Alabama, dies intestate leaving surviving him his wife and one child, B. A leaves no other children or their descendants. Thus the land descended to B subject to the dower interest of A's wife. Code 1940, Tit. 16, § 1. The wife dies. Later, B dies intestate leaving surviving him, as his only heirs and next of kin, C, D, E and F, blood aunts and uncle on his *360 mother's side, and G, H, and J, blood aunt and uncles on his father's side.
Query: Who inherits the land from B?
To answer the question calls for a construction of § 5, Tit. 16, Code 1940, which is as follows:
The position taken by appellants is that G, H and J inherit to the exclusion of C, D, E and F for the reason that the property is "ancestral", that is to say, since B inherited it from his father, B's paternal aunt and uncles inherit it from him to the exclusion of his maternal aunts and uncle. The insistence is that § 5, supra, so provides.
On the other hand, it is claimed by appellees that § 5, supra, has no application to this case since it applies only when the rights of an intestate's kindred of the half-blood are involved; that we are not here concerned with the rights of B's kindred of the half-blood; and that, therefore, all of B's aunts and uncles, on his mother's side as well as on his father's side, inherit the land in equal parts.
The trial court held in accord with appellees' insistence, and, we think, correctly so. Clearly, it seems to us, § 5 is not applicable to this case.
There is no dispute that all the aunts and uncles are B's "next of kin" and are entitled to inherit the land from him, in equal parts, by virtue of Code 1940, Tit. 16, § 1, subdiv. 7, unless § 5 is to be construed as changing the rule of descent there prescribed. Deloney v. Walker, 9 Port. 497, 499-501; Gardner v. Kelsoe, 80 Ala. 497, 500, 501, 2 So. 680. So, to answer the query we have only to decide whether § 5 excludes from the inheritance of ancestral land all kindred of the intestate in the same degree who are not of the blood of the ancestor from whom the land came to the intestate.
It is quite clear that the controlling principle of our statute providing for the descent of property, Code 1940, Tit. 16, § 1, is that it shall descend to the intestate's next of kin, whether of the blood of his ancestor or not; and not that an intestate's ancestral estate shall descend only to those who are of the blood of the ancestor from whom it came. This was fully recognized in the early case of Deloney v. Walker, supra, where the counterpart of our present statute of descents and distribution was under consideration. It was there said:
The statute there under consideration (Aikin's Dig. 128) was as follows:
The corresponding provisions of the present law, to the extent here pertinent, are found in §§ 1, 2, 3, 4 and 5, Tit. 16, Code 1940, which, except for § 5, set out above, provide as follows:
It can readily be seen that the statutory provisions considered in Deloney v. Walker, supra, with respect to the right of an intestate's aunts and uncles to inherit from him, are, in material respects, the same as the present provisions. We might well rest our decision on that case, except for the wording of § 5, supra, particularly the last clause of that section which begins with the phrase "in which case". Let us see to what extent § 5 should be construed as changing the controlling principle of the statute of descents, recognized in Deloney v. Walker, that an intestate's next of kin, whether of the blood of his ancestor or not, inherit his ancestral estate.
Section 5, supra, is part and parcel of the legislative scheme establishing rules of descent and must be construed with reference to such related statutory provisions. Mostilla v. Ash, 234 Ala. 626, 629, 176 So. 356.
The section first provides, in effect, that kindred of the half blood inherit equally with those of the whole blood in the same degree. Obviously, this is an enlargement of the controlling principle, for, under the common law, kindred of the half blood were excluded, and this exclusion applied even though they were of the blood of the ancestor from whom the land came. The next provision, and in the same sentence with the provision placing kindred of the half blood on an equality with those of the whole blood, is the following exception or limitation to the general rule of equality: "unless the inheritance came to the intestate by descent, devise, or gift from or of some one of his ancestors; in which case all those who are not of the blood of such ancestor are excluded from the inheritance as against those of the same degree." Clearly, this section treats only of kindred of the half blood, for it is their rights alone which are therein defined and limited. The first clause of the section, in clear and distinct language, affirmatively establishes the rule in favor of the half blood. What follows is a limitation or exception to that rule. And for us to say that the legislature intended to prescribe a new rule of inheritance in the clause expressly limiting the application of the general rule affirmatively given would, it seems to us, be contrary to the plain grammatical construction of § 5. Unless is used to introduce an exception to the right of the half blood. All that follows is dependent on it and qualified by it; and defines the exception to the rule stated in the first clause. In which, case refers to the stated exception with respect to ancestral property. The exclusion is not of "all persons" but "all those", the relative pronoun "those" relating back and clearly signifying those of the half blood. That exclusion is strictly a limitation on the right of kindred of the half blood to inherit under the rule of § 1, Tit. 16, Code 1940, supra. But in this case there are no kindred of the half blood to be affected by the limitation of § 5. All of the aunts and uncles are of the whole blood to the intestate, in the same degree, and are entitled, therefore, to inherit the land in equal parts by virtue of the rule of descent prescribed by § 1, Tit. 16, supra.
Appellants, in support of their position, cite the following: Johnson v. Copeland's Adm'r, 35 Ala. 521; Cox v. Clark, 93 Ala. 400, 9 So. 457; Coleman v. Foster, 112 Ala. 506, 20 So. 509; and Purcell v. Sewell, 223 Ala. 73, 134 So. 476. In each of those cases there was involved the rights of next of kin of the half blood. As already noted, *363 we are not here concerned with the rights of kindred of the half blood.
The decrees appealed from are due to be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MAYFIELD, JJ., concur. | June 16, 1955 |
3cc90808-03ff-4a34-9389-5621964560d4 | Vinson v. Vinson | 83 So. 2d 215 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 215 (1955)
Marilyn Walters VINSON
v.
Thomas Emory VINSON.
7 Div. 256.
Supreme Court of Alabama.
August 18, 1955.
Rehearing Denied November 17, 1955.
*216 J. J. Cockrell, Birmingham, for appellant.
McKay & Worthy, Sylacauga, for appellee.
LAWSON, Justice.
The appeal is from a decree of the circuit court of Talladega County, in equity, rendered on July 22, 1954, changing the provisions of a decree rendered by that court on January 8, 1952, which relate to the custody of the minor children of Thomas E. Vinson and his former wife, Mrs. Marilyn Walters (Vinson) Shannon.
Under the decree of January 8, 1952, the wife was awarded an absolute divorce on the ground of adultery. As to the custody of the children, the decree provided:
On July 13, 1954, Thomas E. Vinson filed in the circuit court of Talladega County, in equity, the following petition, wherein he refers to himself as the respondent and to his former wife as the complainant, the places they occupied in the original litigation which lead to the decree of January 8, 1952:
After her demurrer to the petition was overruled, Mrs. Shannon filed an answer wherein she averred in substance as follows: That the father is not a suitable and proper person to have custody of the minor children for the reason, among others, that since the divorce decree he has married and is living with the woman whose name was alleged in the bill for divorce as the one with whom he had committed adultery; that the mother, Mrs. Shannon, is a fit and suitable person to have the care, custody and control of the children and is able to provide for them. The answer concluded as follows: "Premises considered, the complainant prays that the decree of this court be not modified so as to give respondent any custody or control over said minor children but that they shall at all times and places be in the care, custody and control of your complainant, and your complainant will ever pray etc."
The husband evidently treating the language of the prayer as being sufficient to constitute a cross bill, filed his demurrer thereto, which was overruled.
Thereafter the cause came on for hearing wherein the witnesses were examined orally before the court. After finding that Mrs. Shannon had wrongfully deprived her former husband, Thomas E. Vinson, of the privilege of visitation with his children as granted to him in the decree of January 8, 1952, and finding further that it would be to the interest of the children to visit with their father, the trial court decreed in part as follows:
We have said that a decree fixing the custody of minor children is conclusive of the interests of the children and the rights of the parents, so long as the status at the time of the decree remains without material change and that the burden is on the party seeking a change of custody to show some change of conditions or other substantial reason for the change of custody. White v. White, 247 Ala. 405, 24 So. 2d 763; Wren v. Stutts, 258 Ala. 421, 63 So. 2d 370; Padgett v. Padgett, 248 Ala. 234, 27 So. 2d 205; Ogle v. Ogle, 251 Ala. 623, 38 So. 2d 864.
But in the case at hand we think the only change in status which it was incumbent upon the father, Thomas E. Vinson, to allege in order to justify the court's consideration of his petition for change of custody was that he had been discharged from the military service. This, for the reason that the decree of January 8, 1952, not only in its recital of facts, but in its ordering parts as well, clearly discloses that the trial court was awaiting the discharge of the father from military service before fixing the permanent custody of the children. That decree was intended to be conclusive of the interests of the children and the rights of the parents only so long as the father remained in the military service.
In his petition Vinson alleged, among other things, that he has been discharged from the service; that he is able to care for his children in a fit and proper manner; that he is a fit and proper person to have their custody in the home of his parents, who are persons of good character, and that it is to the best interests of the children that their custody be awarded to his care during the non-school summer months. Such averments made the petition good as against the demurrer interposed. In proceedings of this nature mere legal niceties are not favored. Easterling v. Caton, 260 Ala. 543, 71 So. 2d 835, and cases cited.
It is immaterial in this case whether the provisions in the decree here under review which spell out the exact dates on which the children shall visit their father in the home of his parents be considered as awarding partial custody or as an implementation of the provisions of the previous decree relating to visitation. The trial court was fully justified under the facts which it found to exist and in view of the temporary nature of the custody provisions of the decree of January 8, 1952, to award partial custody to the father after *219 his return from the service without any other showing of changed conditions, for, as we have indicated above, the decree of January 8, 1952, did not purport to award permanent custody to the mother. The facts of the instant case are clearly distinguishable from those present in the case of Dawn v. Dawn, 90 U.S.App.D.C. 226, 194 F.2d 895, upon which appellant relies.
The parties to the appeal maintained their home in Sylacauga, Talladega County, prior to their divorce in January, 1952, although, as shown before, at the time that decree was rendered Vinson was in the service. After the divorce the then Mrs. Vinson and her three children moved to the home of her parents in Birmingham. She secured a job and her mother looked after the children during working hours for five days a week. In September, 1953, the appellant was married to Mr. Shannon, who was divorced by his first wife on the ground of cruelty. After her marriage to Shannon, appellant and the three children born of her marriage to Vinson moved into a home provided by Shannon located approximately five miles from the home of her mother in Birmingham. Appellant has continued to work, as does her second husband. Five days a week the children are driven to the home of appellant's parents, where they are cared for by her mother. The oldest child was of school age, being nine years old at the time of the hearing in July, 1954. He attended a school located only a few blocks from the home of his maternal grandparents. Neither of the other two children had entered school. Sammy was six years of age and Elizabeth four.
Sometime prior to December 23, 1953, the date of his discharge, Vinson was married to his alleged paramour. Although he still maintains his legal residence in Sylacauga, Vinson secured employment in Birmingham, where he and his second wife maintain an apartment. They have a young baby. He frequently visits his parents in their home in Sylacauga and the evidence shows that it is feasible for him to spend much of his time there during the periods fixed in the decree for the children to be in the home of their paternal grandparents.
Construing the decree here under review as providing for divided custody, it does not follow for that reason alone that it is erroneous. Since the children are entitled to the love, advice and training of both father and mother, divided custody is not wrong in principle, if the best interests of the children are thereby subserved. Sneed v. Sneed, 248 Ala. 88, 26 So. 2d 561; McGregor v. McGregor, 257 Ala. 232, 58 So. 2d 457; Wheeler v. Wheeler, 249 Ala. 119, 29 So. 2d 881. The trial judge expressly found that it would be to the best interests of the Vinson children that they be permitted to be with their father in the home of his parents on the specified dates. This finding could well have been founded in part on the extreme hostility which the trial court found that the mother entertains towards her former husband and to some extent towards his parents. As before pointed out, the evidence was taken orally before the trial judge and thus he had the advantage of this court as to questions of fact, for he was able to observe the personalities of the parties, their bias, their demeanor, manner and reactions. It is this type of case which calls for the application of a strong presumption in favor of the findings of the trial judge.
One of the pertinent inquiries in cases involving controversies between parties over the custody of children is which party was at fault in terminating the marital relation. Piner v. Piner, 255 Ala. 104, 50 So. 2d 269; Hammac v. Hammac, 246 Ala. 111, 19 So. 2d 392.
In the case at bar the decree of January 8, 1952, is conclusive as between the parties of Vinson's marital misconduct. Johnson v. Johnson, 215 Ala. 487, 111 So. 207; Hanby v. Hanby, 229 Ala. 527, 158 So. 727. And we said in the cases just cited that a decree granting a divorce to the husband on the ground of the wife's adulterous acts is conclusive of her relative unfitness to have the custody of the children. See McGregor *220 v. McGregor, supra. But we recently said in the case of Easterling v. Caton, supra:
Under the evidence presented in this case, we cannot say that the marital misconduct of Vinson which precipitated the divorce should stand as a conclusive bar to all future contacts with his children. As we have often said, the matter of prime concern is the welfare of the children and after a careful reading of the record before us, in connection with the trial court's finding of fact, we are of the opinion that the decree here under review is based on what the trial court concluded, after hearing the evidence and viewing the parties and their witnesses, was for the best interest of the children. We have not overlooked the fact that Vinson has married the woman alleged to have caused the divorce from his first wife. But the children are not to be under her control in any way. As shown before, they are to be with their paternal grandparents in Sylacauga during the comparatively short period each year when they are in the legal custody of their father.
We have treated above the assignments of error which have been argued in brief and no reversible error appearing therein, the decree appealed from is due to be affirmed. It is so ordered.
Affirmed.
STAKELY, GOODWYN, MERRILL and MAYFIELD, JJ., concur. | August 18, 1955 |
f4720e8b-6184-4221-b75e-521abe24183e | Tankersley v. Webb | 82 So. 2d 259 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 259 (1955)
Bessie H. TANKERSLEY
v.
Hilda S. WEBB.
5 Div. 620.
Supreme Court of Alabama.
August 18, 1955.
McKee & Maye, Opelika, for appellant.
Walker & Walker, Opelika, for appellee.
MERRILL, Justice.
Appellant (plaintiff below) sued to recover damages for the alleged conversion of certain enumerated items of personal property including "miscellaneous hand painted china as follows: * * *." Appellee pleaded in short by consent. The jury returned a verdict for the appellee and from the judgment rendered thereon appellant perfected this appeal.
The two assignments of error raise the point that the trial court erroneously overruled the objection of appellant to certain evidence. Each instance of which appellant *260 complains arose on the cross examination of the appellant. We omit some remarks in the record which are not necessary to the decision before us. The first follows:
It should be noted that the only ground of objection interposed in the first instance was "that is immaterial to this case." No ground of objection was interposed in the second instance and no motion to exclude was made in either instance.
Where as here the defendant has pleaded "in short by consent the general issue, with leave to give in evidence any matter which, if well pleaded, would be admissible in evidence in defense of this action, in whole or in part, to have effect as if so pleaded," the admission of evidence that tends to support any valid defense, not required to be presented by sworn plea, was proper. Johnston v. Isley, 240 Ala. 217, 198 So. 348, and authorities cited therein.
Circuit Court Rule 33, Code 1940, Tit. 7 Appendix, applies to the objection that the matter objected to was immaterial. It reads:
In the first ruling of the lower court which is assigned as error, the answer was not responsive, and was in the negative when the witness said, "How she assisted, I don't know." The rule that the overruling of an objection to a question is harmless, where the witness answers that he does not know, or does not remember, is applicable here. Brown v. Johnston Bros., 135 Ala. 608, 33 So. 683; Gates v. Morton Hardware Co., 146 Ala. 692, 40 So. 509; Southern Cotton Oil Co. v. Harris, 175 Ala. 323, 57 So. 854; Kellett v. Cochran, 239 Ala. 313, 194 So. 805; 2 Alabama Digest, Appeal and Error, 1048(5).
*261 The second ruling of the lower court which is assigned as error does not constitute reversible error. The answer "not all of it" was in the negative and favorable to the objector (appellant). National Surety Co. v. Boone, 227 Ala. 599, 151 So. 447; Ballard v. Baker, 227 Ala. 143, 148 So. 835; Page v. Hawk, 250 Ala. 26, 33 So. 2d 8.
As to both rulings of the lower court we think the principle is applicable that where the ground of objection to the admission of evidence was general or no ground was stated, the action of the lower court in overruling such objection will be sustained unless the evidence is "patently inadmissible." Chandler v. Goodson, 254 Ala. 293, 48 So. 2d 223; White v. Henry, 255 Ala. 7, 49 So. 2d 779. See also Harvey v. Bodman, 212 Ala. 503, 103 So. 569, where it was held that where there was no motion to exclude the answers to questions admitted over general objections, there was nothing presented for review.
We do not think the evidence quoted supra was "patently inadmissible." The record as a whole indicates that the purpose of the question in the first instance was to show the motive for a gift of the personalty involved from the plaintiff to the defendant, because of defendant's aid in supervising the construction of appellant's home. The testimony in the second instance was admissible and relevant at least on the question of damages. King v. Franklin, 132 Ala. 559, 31 So. 467.
Substantial error is not presumed and the burden is on the appellant to show error. McCall v. State, 262 Ala. 414, 79 So. 2d 51; Kabase v. State, 244 Ala. 182, 12 So. 2d 766. Appellant has not carried the burden on this appeal and the judgment is due to be and is affirmed.
Affirmed.
LAWSON, GOODWYN and MAYFIELD, JJ., concur. | August 18, 1955 |
888283bf-3748-4d92-9dc5-0bb19803baa3 | Barber Pure Milk Company v. Young | 81 So. 2d 328 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 328 (1955)
BARBER PURE MILK COMPANY
v.
Willie YOUNG.
6 Div. 716.
Supreme Court of Alabama.
May 19, 1955.
Rehearing Denied June 23, 1955.
*329 Sadler & Sadler, Birmingham, for petitioner.
Abele & Witcher, Birmingham, opposed.
LAWSON, Justice.
This damage suit was brought in the circuit court of Jefferson County by Willie Young against Barber Pure Milk Company, a corporation hereafter referred to as the petitioner.
Young's claim for damages was based on the averment that the petitioner negligently caused a large quantity of water to flow over and upon the premises which he occupied in the city of Birmingham, thereby doing injury to some of his personal property and making his place of abode less comfortable and convenient.
Young recovered a judgment in the sum of $500, which judgment was affirmed by the Court of Appeals.
Writ of certiorari was issued out of this court on the application of petitioner to review the opinion and judgment of the Court of Appeals.
At the time the writ was issued the writer entertained the view that the Court of Appeals held that the evidence was sufficient to support a finding by the jury that *330 the injury to Young's property resulted from the negligent manner in which the ditch was constructed and that petitioner was liable although all of the work incident to the construction of the ditch was done by an independent contractor.
However, upon a more careful reading of the opinion it appears that the Court of Appeals held that the evidence was sufficient to support a finding that petitioner was negligent in having the ditch constructed according to the plans and specifications submitted to the contractor. There is no language in the opinion of the Court of Appeals expressly stating that the independent contractor was negligent in the manner in which he constructed the ditch and, on the other hand, it appears that the conclusions reached by the Court of Appeals that the affirmative charge was properly refused petitioner by the trial court is based in the main on the following statement: "As to whether the appellant should reasonably have foreseen that substituting a straight channel with freshly dug and unprotected banks, in lieu of a meandering long existent channel, with a consequent increase in the velocity of the water so concentrated, and with a natural increase in the mud, silt, and debris carried, would result in clogging the culvert into which both the old and the substituted channel were connected, was a question of fact properly submitted to the jury."
We must look to the opinion of the Court of Appeals for the facts, Barnes v. State, 244 Ala. 597, 14 So. 2d 246, and the opinion here under review does not purport to set out all of the facts in the case.
It is well settled that on certiorari we do not examine the evidence shown by the record to see if it supports conclusions of the Court of Appeals on the effect of it. Mutual Savings Life Ins. Co. v. Osborne, 247 Ala. 252, 23 So. 2d 867. We cannot therefore say that the Court of Appeals was in error in holding that the trial court correctly refused the general affirmative charge requested by the petitioner and in overruling the grounds of petitioner's motion for a new trial to the effect that the verdict was contrary to the great weight and the great preponderance of the evidence.
The Court of Appeals held that defendant's requested charge number 8 was properly refused on the ground, among others, that the principle therein sought to be enunciated was adequately covered in the court's oral charge. Whether or not the charge was covered by the oral charge of the trial court is a question of law presented for decision by this court. Brown v. State, 249 Ala. 5, 31 So. 2d 681. We have examined the oral charge of the court and agree with the holding of the Court of Appeals that because of the oral charge the trial court did not err in refusing charge number 8.
Although we are of the opinion that the judgment of the Court of Appeals must be affirmed, we wish to point out our disagreement with certain statements contained in the opinion which do not affect the result.
It is said in the opinion of the Court of Appeals as follows: "Obstructing the flow of waters, so as to divert its natural flow and thereby work injury to the properties of another will, if the obstructions result from negligence, constitute a tort in the nature of a private nuisance. Mobile & O. R. Co. v. Red Feather Coal Co., 218 Ala. 582, 119 So. 606." (Emphasis supplied.)
Actually the holding in the case last cited is as follows [218 Ala. 582, 119 So. 608]: "Obstructing the flow of waters, so as to divert same from its natural flow and thereby work injury to the properties of another, is a tort in the nature of a private nuisance. The law charges the tortfeasor with the duty to avoid such result. No express averment or proof of negligence is required. (Authorities cited.)"
The opinion of the Court of Appeals contains language which indicates that principles which apply to the diversion of streams are different from those which *331 apply to the diversion of surface waters. Aside from any question of the rights of riparian owners to the use of streams which flow through their lands, there is no difference in this state between the principles applicable to running streams and surface waters. Savannah, A. & M. Ry. v. Buford, 106 Ala. 303, 17 So. 395.
The judgment of the Court of Appeals is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | May 19, 1955 |
271c9b6c-2951-411a-bbc5-443cb112c233 | First National Bank of Birmingham v. Lowery | 81 So. 2d 284 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 284 (1955)
The FIRST NATIONAL BANK OF BIRMINGHAM
v.
Lillian Mason LOWERY.
The FIRST NATIONAL BANK OF BIRMINGHAM
v.
E. A. LOWERY.
6 Div. 485, 486.
Supreme Court of Alabama.
May 12, 1955.
Rehearing Denied June 23, 1955.
*285 Marvin Williams, Jr., Davis & Williams, Birmingham, for appellant.
Hare, Parsons, Wynn & Newell, W. L. Longshore, Birmingham, for appellees.
LIVINGSTON, Chief Justice.
The two cases before us were consolidated for trial in the circuit court and will here be treated together on appeal.
Each case was tried upon a simple negligence count. The cases were tried on plaintiffs' amended complaints. The amended complaints in each instance allege that on May 27, 1950, defendant, appellant, was the proprietor or owner of the premises in Leeds, Alabama, known as the First National Bank of Birmingham, Leeds Branch. Further, the complaints allege that on aforesaid date, plaintiff, Lillian Mason Lowery, was present upon said premises as "a customer and invitee of the defendant." It is averred that as Lillian Mason Lowery stood or walked upon the floor of defendant bank, she slipped and fell, and as a proximate consequence thereof, broke her left leg at the hip joint. The two complaints state that defendant, at the time of the fall, negligently maintained the premises where Lilliam Mason Lowery was injured in a condition so slippery as to be not reasonably safe to stand or walk upon. E. A. Lowery, husband of the injured party, is the plaintiff in the second complaint. His claim also is for damages and is based upon medical expenses and loss of services.
In each case, defendant filed a plea of the general issue in short by consent, with leave, etc. At the conclusion of the evidence, both cases were submitted to the jury. Verdicts of $7,500 and $2,000 were returned in favor of Lillian Mason Lowery and E. A. Lowery, respectively.
Motions for a new trial were duly filed in each case and overruled. Thereafter, defendant prosecuted this appeal.
Appellant contends that reversible error was committed by the trial court in its refusal to give the affirmative charge on behalf of the defendant. The basis of said contention is that the evidence fails to show Mrs. Lowery to have been an invitee on defendant's premises at the time of the accident.
Appellant argues that Mrs. Lowery entered the bank building on a mission which was for her benefit alone; as a consequence, she was a mere licensee rather than an invitee.
The evidence shows that Mrs. Lowery entered the bank for the sole purpose of having a one-hundred dollar bill changed into bills of smaller denominations. This change was needed to enable a patient to pay a bill which he owed to Dr. E. A. Lowery.
In support of the contention that plaintiff was a licensee, appellant cites Cobb v. First National Bank of Atlanta, 58 Ga.App. 160, 198 S.E. 111. In that case, plaintiff entered defendant bank to obtain a blank form of a promissory note for her own use, and the Georgia Appellate Court held that plaintiff was a licensee rather than an invitee.
Appellant also cites Prudential Ins. Co. of America v. Zeidler, 233 Ala. 328, 171 So. 634, 636, which states the following principle:
The Alabama law on this proposition is stated in Alabama Great Southern Railway Co. v. Godfrey, 156 Ala. 202, 47 So. 185, 190, *286 in which Mr. Justice Haralson speaking for the court said:
The Supreme Court of Missouri in the case of Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679, 686, states the rule as follows:
This statement of the law has been followed in cases in several other jurisdictions: notably, Shoffner v. Pilkerton, 292 Ky. 407, 166 S.W.2d 870; Mills v. Heidingsfield, La.App., 192 So. 786; Nezworski v. Mazanec, 301 Mich. 43, 2 N.W.2d 912.
In the case of Wool v. Larner, 112 Vt. 431, 26 A.2d 89, 92, this proposition of law is stated thusly:
In the case at bar, we are of the opinion that the plaintiff, Mrs. Lowery, was an invitee. An invitation may be implied from the very nature of the business which a bank conducts, and from the fact that it is customary for a bank to provide a money-changing service for the public. The plaintiff would be reasonably justified in believing that entering a bank for the purpose of getting a large bill changed is consistent with the intentions and purposes of the bank owners, and is in accordance with the intention and design for which the place is adapted and allowed to be used.
The case at bar is distinguishable from Cobb v. First National Bank of Atlanta, supra, by the fact that the furnishing of blank promissory note forms is not in the usual course of a bank's business, and not a function which a bank is generally expected to perform; whereas, the changing of money is in the usual course of a bank's business, and is a function which a bank is generally known to perform. It is well known that banks have been changing money for the public as a matter of course and that money is changed not only for those who are intent on transacting some immediate business with the bank, but also for all those who request that change be made.
It is insisted by appellant that the trial court committed reversible error in overruling appellant's objection to the following question propounded to the witness who had been qualified as one experienced in the maintenance of terrazzo floors:
Appellant's contention is that the question called for an answer directed to the ultimate fact in issue, and is, therefore, objectionable.
The issue which the jury had to decide in this case was whether defendant was negligent in the maintenance of its floors, and, if so, whether such negligence was the proximate cause of plaintiff's injury. The question propounded to the witness appears to be designed not to elicit an opinion or conclusion invasive of the province of the jury, but rather to elicit a fact which the jury must have in order to draw its own conclusion as to the ultimate issue. We conclude there was no error in allowing the witness to answer the question. Appellant's brief grouped this assignment of error with assignments of error 4, 16 and 19 for the purpose of argument. This court has consistently held that where several assignments of error are grouped and argued together in brief, and one is found to be without merit, the court will not consider the others. Gulf M. & O. R. Co. v. Sims, 260 Ala. 258, 69 So. 2d 449; Taylor v. Taylor, 251 Ala. 374, 37 So. 2d 645; Moseley v. Alabama Power Co., 246 Ala. 416, 21 So. 2d 305; Sovereign Camp W.O.W. v. Davis, 242 Ala. 235, 5 So. 2d 480; Morgan-Hill Paving Co. v. Thomas, 223 Ala. 88, 134 So. 480. This rule cannot be evaded by the appellant's including in his brief a request that the court consider each assignment of error separately and severally. Having found one assignment of error to be without merit, the court will not consider those that are grouped with it in argument.
Appellant further contends that the trial court erred in not giving the general affirmative charge on behalf of the defendant on the theory that there was no evidence in the case to sustain a finding of negligence by the jury. In support of this contention, appellant argues that the owner of real property cannot be guilty of negligence merely by virtue of applying wax to a floor, whether the floor be of terrazzo or of some other material.
Plaintiff introduced evidence tending to prove not only that the floor where plaintiff was injured had been waxed, but *288 also that defendant used an improper type wax, and that defendant did not use approved methods of applying the wax or of removing accumulations of old wax. This evidence was disputed by defendant's witnesses. Under these circumstances, we are of the opinion that the question of defendant's negligence as well as that of plaintiff's contributory negligence were proper ones for the jury. F. W. Woolworth Co., Inc., v. Erickson, 221 Ala. 5, 127 So. 534; Ten Ball Novelty & Mfg. Co. v. Allen, 255 Ala. 418, 51 So. 2d 690.
Appellant assigns as error the trial court's action in overruling appellant's motion to exclude the following testimony of the witness, W. C. Walker:
"The floor wasseemed to me like as slick as it could be almost."
Appellant contends the testimony is inadmissible on the grounds it is an opinion or conclusion of the witness.
This court has held that where a fact cannot be reproduced and made apparent to the jury, a witness may describe the fact according to the effect produced on his mind; or if, from the nature of a particular fact, better evidence is not obtainable, the opinion of a witness derived from observation is admissible. Mayberry v. State, 107 Ala. 64, 18 So. 219; Baugh v. State, 218 Ala. 87, 117 So. 426; Alaga Coach Line, Inc., v. McCarroll, 227 Ala. 686, 151 So. 834, 92 A.L.R. 470; Rowe v. Alabama Power Co., 232 Ala. 257, 167 So. 324; Johnson v. Martin, 255 Ala. 600, 52 So. 2d 688. Under this rule of law, the testimony of the witness is admissible. It would appear that the fact of slipperiness could not be conveyed to the jury in any way other than the witness testifying to the impression he formed by observation. Having determined this assignment of error to be without merit, the court will not consider assignments of error 6, 19, 11 and 18 which are grouped with it in argument.
We have carefully examined the evidence and conclude that the preponderance of the evidence is not clearly against the verdict of the jury. We shall not disturb the trial judge's ruling on appellant's motion for a new trial. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Smith v. Smith, 254 Ala. 404, 48 So. 2d 546. We will not consider assignments of error 22, 23 and 25 which are argued in bulk with the assignment of error concerning the trial judge's ruling on appellant's motion for a new trial.
We find no reversible error in the record.
The judgment in both cases before us is affirmed.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur. | May 12, 1955 |
bef20879-290e-4781-a1c4-e0cd187b1ed0 | Porter v. Roberson | 82 So. 2d 244 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 244 (1955)
Hassle PORTER et al.
v.
Lula ROBERSON.
4 Div. 724.
Supreme Court of Alabama.
August 18, 1955.
J. Robt. Ramsey, Dothan, for appellants.
L. A. Farmer, Dothan, for appellees.
GOODWYN, Justice.
This is a proceeding in equity to cancel and set aside a deed. It is here on appeal from the final decree granting relief.
There are six assignments of error, five of which relate to the overruling of demurrers to the bill as a whole and to its several aspects. In view of our conclusion that the decree is not supported by the evidence, we confine our discussion to the sixth assignment which goes to the rendering of the final decree.
On October 13, 1944, Lula Roberson, complainant below and appellee here, executed a general warranty deed conveying to her brother, Mathew Porter, a house and lot in Houston County, reserving to herself a life estate in said property. On the same day Mathew Porter filed the deed for record in the Houston County Probate Office. Lula's signature to the deed, which was by mark, was witnessed and acknowledged by the attorney *245 who prepared the deed. This attorney died on July 9, 1948. The recited consideration was "One and no/100 dollars and other valuable considerations to us in hand paid by Mathew Porter, the receipt whereof we do hereby acknowledge".
Mathew Porter died intestate on November 4, 1949, leaving surviving him, as his only heirs and next of kin, his widow, Hassie Porter, and one child, Annie Laurie Leonard, the respondents below and appellants here.
The grounds relied on for relief may be summarized as follows:
I. There was no consideration for the deed.
II. Execution of the deed was obtained by false and fraudulent representations on the part of Mathew Porter.
III. The deed was never executed by complainant.
All of the evidence was taken before a commissioner. Accordingly, no presumption is to be indulged in favor of the trial court's findings from the evidence. It is our duty to sit in judgment on the evidence as though presented to us de novo. Redwine v. Jackson, 254 Ala. 564, 569, 49 So. 2d 114; Butler v. Guaranty Savings & Loan Ass'n, 251 Ala. 449, 450, 37 So. 2d 638.
We here note that at the time of taking the testimony both Mathew Porter and the attorney who prepared, witnessed and acknowledged the deed, were deceased. Therefore, in sitting in judgment on the evidence we must exclude from consideration any evidence rendered inadmissible by the so-called "Dead Man's Statute", Code 1940, Tit. 7, § 433. This statute provides as follows:
The complainant seeks, under this aspect, to cancel the deed for the reason that no consideration passed from Mathew Porter to her. We have held that the mere fact that a deed is without consideration does not make it subject to cancellation for that reason. Young v. Blonk, 261 Ala. 542, 543, 74 So. 2d 910; Cook v. Whitehead, 255 Ala. 401, 410, 51 So. 2d 886; Wells v. Wells, 249 Ala. 649, 651, 32 So. 2d 697. A deed is valid and operative as between the parties and their privies, whether founded on a consideration or not. Houston v. Blackmon, 66 Ala. 559, 562, 41 Am.Rep. 756; Ely v. Pace, 139 Ala. 293, 298, 35 So. 877. As stated in Wilfe v. Waller, 261 Ala. 436, 437, 74 So. 2d 451, 453:
The decree cannot be supported by this aspect of the bill.
It seems to be complainant's theory under this aspect that the deed should be cancelled because Mathew fraudulently represented to her that he would make a will in her favor if she would make a will in his favor; that Mathew had, at the time, no intention of making such will and that she was thereby deceived into executing the deed, thinking it was a will. The principle applicable to that contention is thus stated in Zuckerman v. Cochran, 229 Ala. 484, 485, 158 So. 324, 325:
See, also, Barber v. Stephenson, 260 Ala. 151, 155, 69 So. 2d 251, and cases there cited.
We have given most careful consideration to the evidence bearing on this aspect and do not find present that degree of proof which is required to establish the alleged fraud (assuming, without deciding, that, if proved, it would justify cancellation of the deed). The legal evidence concerning the representations on the part of Mathew is scant and unimpressive. The principal evidence is by complainant herself. But her testimony cannot be considered. Code 1940, Tit. 7 § 433, supra. The only other evidence was from Willie Mae Porter, with whom Mathew was then living, and her son, James Oscar Daniels. These witnesses testified they heard Lula and Mathew talking at Willie Mae's home and that, during the conversation, the making of wills to each other was discussed. This conversation was said to have taken place on October 12, 1944, the day before the deed was executed. The taking of their testimony was on January 20, 1952. The general rule is that fraud, when alleged, must be clearly and satisfactorily proven. Henderson v. First Nat. Bank of Birmingham, 229 Ala. 658, 663, 159 So. 212; Southern Ry. Co. v. Arnold, 162 Ala. 570, 577, 50 So. 293. We are constrained to hold that that degree of proof has not been met.
The evidence is without dispute that both parties went to the lawyer's office on the day the deed was executed and that the lawyer then prepared the deed and witnessed and acknowledged it. There is no evidence that any false representation was at that time made by Mathew Porter. The insistence under this aspect is that complainant did not execute the deed. She could neither read nor write. The deed shows her signature to have been affixed by mark. The evidence clearly and forcefully establishes the good reputation of the attorney. The only living witnesses to the transaction in the attorney's office, other *247 than complainant, were Willie Mae Porter and James Oscar Daniels. These two witnesses testified that they were present on the occasion; that they did not hear the deed read to complainant nor did they see it executed by her; and that no papers of any kind were signed by either Lula or Mathew. On the other hand it is undisputed that a paper was prepared by the attorney; that Lula furnished the $4 for payment to the attorney; that the paper was handed by the attorney to Mathew for the purpose of taking it to the Court House for recording; that Lula, Willie Mae and James Oscar waited at the street entrance of the lawyer's office for Mathew to return from the Court House; and that the deed was, on the same day, filed for record in the Probate Office of Houston County. Lula takes the firm position that she went to the attorney's office for the purpose of making a will. Yet, she stoutly maintains that she executed no paper whatever while there, although she agrees that the attorney did prepare a paper for which she paid out the sum of $4. It is difficult to reconcile such testimony with her insistence that the paper was neither read to her nor executed by her.
This court is committed to the proposition that an acknowledgment is entitled to great weight and can be impeached only by evidence that is clear and convincing. 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; Freeman v. Blount, 172 Ala. 655, 55 So. 293. As stated in Bailey v. McQueen, supra 253 Ala. 464, 45 So.2d 297]:
We cannot say that the testimony on behalf of complainant is sufficient, under the rule, to impeach the truthfulness of the facts stated in the notarial acknowledgment.
From what we have said it follows that a decree is due to be entered here reversing the decree of the trial court and denying the relief sought by complainant. It is so ordered.
Reversed and rendered.
LAWSON, SIMPSON, STAKELY and MERRILL, JJ., concur. | August 18, 1955 |
1ff49a33-eec9-4b11-9c40-f8a5867bc892 | Kimbrough v. Hardison | 81 So. 2d 606 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 606 (1955)
W. P. KIMBROUGH
v.
Frances Grant HARDISON et al.
3 Div. 729.
Supreme Court of Alabama.
June 30, 1955.
Knabe & Nachman, Montgomery, for appellant.
Godbold & Hobbs, Montgomery, for appellees.
MERRILL, Justice.
This is an appeal from a decree sustaining the demurrer to the substituted bill of complaint as a whole and to each aspect of the substituted bill.
The appellant Kimbrough is the complainant. In the substituted bill he alleged the following facts. Appellee Grant owns certain described real estate in Florida. He attempted to convey that property to his daughter, appellee Frances Grant Hardison. Kimbrough had a claim for damages against Grant arising out of an automobile accident on December 22, 1950. Suit had been filed claiming these damages prior to this attempted conveyance and a judgment was *607 found against Grant and recorded in Florida prior to the time that this attempted conveyance was recorded there.
The bill alleged that the attempted conveyance of the Florida realty from Grant to Hardison was a fraud on Kimbrough, a creditor; that Hardison was not a bona fide purchaser for value `but that the attempted conveyance was voluntary and without consideration; that the attempted conveyance was made with the intent to hinder, delay and defraud Kimbrough, as a creditor of Grant in his lawful suit, damages, debts and demands and that the purported conveyance was null and void and that the parties to it should be ordered to set it aside. There was also an averment that the appellees knew the purported deed was fraudulent at the time it was given. It was also averred that the appellee Hardison owned certain described real property in Montgomery. Both appellees are residents of Montgomery County, Alabama, and personal service was had on each of them. In the substituted bill appellant asked the following equitable relief against the appellees:
(1) An order to appellees to reconvey the Florida property and undo their alleged fraud; (2) an order to undo the fraudulent conveyance in any other appropriate manner which would vitiate the fraud; (3) a judicial declaration that title to the Florida property had been fraudulently divested out of Grant and into Hardison; (4) an order declaring a lien on the Florida property for the payment of Kimbrough's debts; (5) an order requiring appellee Grant to pay his debtthe judgment for damages claimedor in the alternative require him to sell the Florida property and make payment of the debts out of the proceeds of the sale; (6) a declaration of lien against the Alabama property of appellee Hardison; and (7) an injunction against the appellees from further conveyances, assignments or deeds of either the Florida or Alabama properties until the payment of appellant's claim.
The lower court sustained the demurrer to the bill as a whole and to each aspect of the bill.
Appellant's theory is that an equity court in Alabama has the power to order the fraudulent vendor and the fraudulent vendee, both of whom are properly before it, to undo their fraudulent conveyances so that Kimbrough, the creditor, may be free to pursue his ordinary creditor's liability against his debtor and that equity in such a case may act in personam against persons within its jurisdiction and order them to perform acts in other states or countries. In support of this theory appellant cites Penn v. Lord Baltimore, 1 Vesey Senior 444; Massie v. Watts, 6 Cranch 148, 3 L. Ed. 181; Guild v. Guild, 16 Ala. 121; Allen v. Buchanan, 97 Ala. 399, 11 So. 777; Lamkin v. Lovell, 176 Ala. 334, 58 So. 258; Horst v. Barret, 213 Ala. 173, 104 So. 530; Peoples' Bank v. Barret, 216 Ala. 344, 113 So. 389, and Hume v. Kirkwood, 216 Ala. 534, 113 So. 613.
Two applicable statutes are:
There is no question but that equity does act in personam and does order a party, in certain situations, to perform or refrain from certain acts relating to land in another jurisdiction, and the authorities cited by appellant and listed supra, sustain *608 that proposition. But we have not found, nor have we been cited, any Alabama authority which extends equity jurisdiction to the point of permitting a creditor to set aside an allegedly fraudulent conveyance of land in another state.
The distinction between the rights of one who had title to land, either legal or equitable, and the rights of a mere creditor is clearly drawn in the case of Lide v. Parker, 60 Ala. 165. In that case a contract creditor prayed that a deed of trust to land in Mississippi be set aside as fraudulent and that respondent account for all money received under the deed of trust and rents and profits. A demurrer raised the question of jurisdiction because the lands were in Mississippi. The chancellor overruled the demurrer, holding that the bill presented a case for equitable relief and that if the transaction be found fraudulent as against the creditors, the court might by personal decree against the defendants, compel them to account for the lands in Mississippi. In reversing the decree and dismissing the bill, this court said:
In West Point Mining & Mfg. Co. v. Allen, 143 Ala. 547, 39 So. 351, the complainant, a judgment creditor, filed a bill to annul a deed of trust to lands in Tennessee which was alleged to have been fraudulent as to the creditors. The respondent demurred upon the ground that the property conveyed was in Tennessee. The appeal was from the decree overruling the demurrer. This court quoted from Lide v. Parker, supra, and from Bump on Fraudulent Conveyances, p. 498, where it is said, "`The courts of one state have no jurisdiction or authority to set aside a fraudulent conveyance of land situate in another state'" and further stated:
The distinction between the line of cases cited by appellant and the rule announced by the Lide and West Point cases is again pointed out in Craig v. Craig, 219 Ala. 77, 121 So. 86, 87, where the prayer was for a decree annulling a deed on the grounds of fraudulent misrepresentation and breach of a condition subsequent, and to require respondent to reconvey the land to complainant. A plea to the jurisdiction alleged that the land was located in Georgia. This court said:
We think it is clear that our cases do not sustain the right to file a creditor's bill in equity to set aside an alleged fraudulent conveyance of lands situated outside of Alabama, although the parties are residents of this state and are properly before the court. This disposes of all appellant's assignments of error except 8 and 9.
These assignments of error are concerned with paragraph 8 of the substituted bill and prayers 6 and 7, supra. Paragraph 8 reads:
"`A bill without equity will not support an injunction of any character under any circumstances.'" Loop National Bank of Mobile v. Cox, 255 Ala. 388, 51 So. 2d 534, 537; City of Birmingham v. Bollas, 209 Ala. 512, 96 So. 591; Pearson v. Duncan & Son, 198 Ala. 25, 73 So. 406, 3 A.L.R. 242; McHan v. McMurry, 173 Ala. 182, 55 So. 793. There is no allegation that connects the respondent Hardison in any way with the appellant's claim and judgment for personal injuries against respondent Grant, and the other aspects of the bill lacking equity, the allegation in paragraph 8 and the prayer for an injunction is not sufficient to give equity to the bill. Cf. American Nat. Bank & Trust Co. v. Powell, 235 Ala. 236, 178 So. 21, 29, 30.
The decree of the lower court is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | June 30, 1955 |
9152791f-4789-4729-a844-a1d80bf4acc6 | Davis Lumber Company v. Self | 82 So. 2d 291 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 291 (1955)
DAVIS LUMBER COMPANY
v.
Mable SELF.
6 Div. 690.
Supreme Court of Alabama.
August 18, 1955.
St. John & St. John and Jack C. Riley, Cullman, for appellant.
Julian Bland, Cullman, for appellee.
LAWSON, Justice.
Certiorari was granted on petition of Davis Lumber Company, employer, to review a judgment of the circuit court of Cullman County awarding compensation to the widow and minor children of Early Dolphus Self, deceased.
The trial court found that on January 15, 1953, deceased, while employed by Davis Lumber Company as a laborer, sustained a personal injury caused by an accident which arose out of and in the course of his employment *292 and which injury resulted in his death.
Self began work for Davis Lumber Company several months prior to January 15, 1953, the day on which the plaintiff below claims her husband suffered an injury which she also claims proximately caused his death. Self was a comparatively small man weighing approximately 135 pounds and about five feet six inches tall. His duties, in part, consisted of helping in the stacking of lumber, which had to be lifted and then carried a distance of from ten to thirty feet to the point where it was stacked. Some of the green timber weighed more than 300 pounds. On the afternoon of January 15, 1953, while assisting in the lifting and carrying of a timber, Self complained of severe pain in his back. His complaint at the time was that he had strained his back and had a catch in it. He stopped work. He turned pale and appeared to be in pain, but refused medical assistance at the time. After a short rest he began to work at lighter tasks. When he arrived at his home after work he made complaint of pain in his back. His wife administered to him as best she could. He returned to his place of employment the next day, but again performed only light work. That was his last day of work.
Prior to January 15, 1953, the employee had been in good health. He had made no complaint of any pain in his back before that date.
Self's home was in Cullman County eight or nine miles from the city of Cullman. On Sunday afternoon, January 18, 1953, he was carried to Cullman to see Dr. L. H. Clemmons, to whom he made complaint of pain in the lower part of his back and to whom he related the events of the afternoon of January 15. On that occasion Dr. Clemmons made only a "cursory examination" and prescribed for the backache." Thereafter, on January 27 and on February 2 Self was carried to the office of Dr. Clemmons, where on both occasions he made complaint of pain in his back. Apparently Dr. Clemmons continued to treat Self as if the pain in his back was caused by a pulled or strained muscle. On February 6, 1953, Self was admitted to the Cullman Hospital on the recommendation of Dr. Clemmons. While in the hospital Dr. Clemmons found that Self had a tender prostate gland, but treated him for a back injury because of the complaint of pain in the back, legs and abdomen and because of other symptoms usually indicating a back injury. However, none of the many X-ray pictures which were made revealed a broken bone or any other defect in the back. Self, while in the hospital, became progressively worse and had what Dr. Clemmons described as "a changing neurological picture." Because of the facts just mentioned, Dr. Clemmons referred Self to Dr. Stanley Graham, a neurosurgeon in Birmingham. On February 12, 1953, Self was carried from the Cullman Hospital to Jefferson Hospital in Birmingham, where he remained until March 1, 1953, under the care of Dr. Graham. On March 1, 1953, Self was removed to his home in Cullman County where he remained until his death on March 14, 1953, during which period of time he was not seen by a physician until approximately one hour before his death.
Dr. Clemmons would not execute the certificate of death but had it sent to Dr. Graham, who did execute it. According to that certificate, the disease or condition which directly led to death was "myelo radiculitis."
Dr. Graham did not testify in this case. Dr. Clemmons was called by the plaintiff. Dr. Stitt, Dr. Dodson and Dr. Barnes, all general practitioners in the city of Cullman, as is Dr. Clemmons, were witnesses for the defendant. Dr. Stitt and Dr. Dodson had examined Self one time while he was in the Cullman Hospital at the request of Dr. Clemmons, but their examinations were not exhaustive. Dr. Barnes never saw Self.
The doctors who testified were each questioned as to the meaning of the words "myelo radiculitis." They used varying language in their answers, but we think the substance of their answers is the same and that a composite answer is to the effect that those words are used to indicate an inflammation *293 of the spinal cord and the posterior nerve roots. See definition of "myeloradiculitis," The American Illustrated Medical Dictionary, by Dorland, 21st Edition.
Two of the doctors, Clemmons and Stitt, were questioned as to whether "myelo radiculitis" is a fatal malady. Dr. Clemmons said he did not know. Dr. Stitt stated that it "possibly could be" but that in all his practice he had never heard of it being fatal. Dr. Barnes and Dr. Dodson were not questioned along that line, although it was brought out that Dr. Dodson had been suffering from that condition for several months at the time of the trial. We observe here that while two of the doctors indicated that they were not aware that "myelo radiculitis" would prove fatal they, along with the other two doctors, recognized that Dr. Graham was an outstanding neurosurgeon and they did not question his diagnosis.
The medical testimony differed as to the cause of "myelo radiculitis." The testimony of the doctors on this point is hereafter summarized.
Dr. Clemmons stated in effect that it could be caused by a sudden jar, strain or "jolt" of the body resulting from the lifting or carrying of a heavy object such as a heavy timber. He also stated that an X-ray would not show "myelo radiculitis."
Dr. Stitt testified that "it is usually caused from some infection in the body and could be caused from a tumor, with an interference of the blood supply, and could be caused by a virus infection in the cord nerve roots itself." He answered in the negative the question "Is it the result of working such as lifting?" He also testified that "myelo radiculitis" could be caused by infection; that a tender prostate indicated infection. He answered "Yes, sir" to the following question: "Is it possible that the infection of a prostate as reflected by tenderness could be transmitted to the nerve roots of the spine and cause inflammation of it." On cross-examination Dr. Stitt stated in effect that an injury to a person suffering with "myelo radiculitis" could "proximately contribute to his death."
Dr. Dodson stated that "myelo radiculitis" is caused by infection and injury; that lifting does not cause it unless the lifting "injured the spinal cord or the spine in the process"; that an injury sufficient to cause death would be reflected by X-ray; that infection from the prostate "could cause it."
Dr. Barnes was not interrogated as to the cause of "myelo radiculitis."
Dr. Stitt, Dr. Dodson and Dr. Barnes, in response to hypothetical questions, gave their opinion that the alleged injury was not the cause of death. They expressed no opinion as to what was the cause of death.
Dr. Clemmons very frankly stated that he had no opinion as to the cause of death. His testimony clearly shows that he was of the opinion that Self sustained a back injury, either to the spinal cord or the nerve roots, but he was unwilling to express the opinion that the injury did or did not cause or contribute to death. He did state, however, that in his opinion the injury which he found from his examination and treatment of Self could have produced death. He also expressed the opinion that Self's "prostate trouble" did not cause or proximately contribute to his death.
The burden was on the appellee, plaintiff below, to reasonably satisfy the trial court by competent evidence that the death of her husband resulted from a compensable injury. Alabama Pipe Co. v. Wofford, 253 Ala. 610, 46 So. 2d 404; Ex parte Alabama Dry Dock & Shipbuilding Co., 213 Ala. 88, 104 So. 251; Ex parte Big Four Coal Mining Co., 213 Ala. 305, 104 So. 764. In other words, the burden was on plaintiff to reasonably satisfy the trial court by competent evidence (1) that her husband sustained a personal injury, (2) which was caused by an accident arising out of and in the course of his employment, and (3) to show by the same character of evidence a causal connection between the injury so received and death. There must be legal evidence of the facts necessary to *294 relief. The conclusion of the trial court cannot be allowed to rest on surmise. Sloss-Sheffield Steel & Iron Co. v. House, 217 Ala. 422, 116 So. 167. But circumstantial evidence is a recognized form of proof in compensation cases as well as in others. Gulf States Creosoting Co. v. Walker, 224 Ala. 104, 139 So. 261.
Counsel for the employer concedes the well-established rule to the effect that if there is any reasonable view of the evidence that will support the conclusion reached by the trial court, its finding and judgment will not be disturbed here. Sloss-Sheffield Steel & Iron Co. v. House, supra; Mobile Liners v. McConnell, 220 Ala. 562, 126 So. 626; Birmingham Post Co. v. McGinnis, 256 Ala. 473, 55 So. 2d 507. But having made that concession, they then direct our attention to the principle that where there is a total lack of evidence in the trial to support the finding of a material fact, a question of law is presented which this court will review. Then follows the argument that there is a total lack of legal evidence in this case to support the trial court's finding that the death of the employee resulted from a compensable injury.
As heretofore indicated, we think the testimony of Dr. Clemmons amply sufficient to support the finding that on the afternoon of January 15, 1953, Self, as a result of a strain or exertion incident to the lifting and carrying of a heavy timber, sustained an injury to the nerves in or around his spine.
But there is no evidence that the injury was caused by a fall, slip or blow or that it resulted from an unusual strain or exertion; hence, the question is presented as to whether the injury was caused "by an accident" within the meaning of our compensation law. A similar question was presented in the case of Alabama Textile Products Corporation v. Grantham, Ala., 82 So. 2d 204. A back injury was also involved in that case and we held that the evidence supported a finding that the injury was caused "by an accident" within the meaning of our compensation law, although there was no finding of a fall, slip or blow or that the injury resulted from unusual strain or exertion. We think the holding in that case is applicable to the instant case. We will not repeat here the authorities cited in the Grantham case in support of our holding.
The question remains as to whether the plaintiff met the burden which was upon her to show by competent evidence a causal connection between the injury and the death. We think she met that burden.
As heretofore shown, Dr. Stitt, Dr. Dodson and Dr. Barnes stated that in their opinion there was no connection between the alleged injury of January 15, 1953, and Self's death on March 14.
On the other hand, Dr. Clemmons testified in effect that it was his opinion that there was a possible causal relationship between the injury and death and Dr. Dodson testified that the injury could cause the condition shown to have caused death.
Testimony as to mere possibilities is generally insufficient to sustain an award under the Workmen's Compensation Law. But here we have a sequence of occurrences from the time of the injury to the death which we think sufficient to raise a natural inference that the death was caused by the injury. True, there was expert evidence to the contrary, but it was for the trial court to believe it or not. Warlick v. Driscoll, 68 Idaho 552, 200 P.2d 1014; Gudeman Co. v. Industrial Commission, 399 Ill. 279, 77 N.E.2d 807; Woodson v. Kendall Mills, 213 S.C. 395, 49 S.E.2d 597; Josi's Case, 324 Mass. 415, 86 N.E.2d 641. In Walker v. Hogue, 67 Idaho 484, 185 P.2d 708, 711, it is said:
We are of the opinion when the evidence is viewed in the light favorable to the widow of the employee, as must be done on this appeal, the facts and circumstances shown by the record are such as to warrant the conclusion reached by the learned trial court.
The judgment appealed from is due to be affirmed. It is so ordered.
Affirmed.
SIMPSON, STAKELY, GOODWYN and MERRILL, JJ., concur. | August 18, 1955 |
1681d76b-c3f4-425b-9f61-9c9477a31954 | Scott v. Hales | 575 So. 2d 1058 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1058 (1991)
H.K. SCOTT, et al.
v.
Philip HALES, et al.
89-1857.
Supreme Court of Alabama.
January 25, 1991.
Robert W. Hanson, Albertville, for appellants.
Charles A. McGee, Ft. Payne, for appellees.
MADDOX, Justice.
The issues presented for review are: (1) whether the certificates of judgment, properly recorded in the probate office of the county, were renewed in accordance with law, and (2) whether the certificates of judgment satisfied the requirements of Ala.Code 1975, § 6-9-210, so as to constitute a lien on property under the provisions of § 6-9-211.
Truman Hicks, H.K. Scott, J.E. Hammonds, Ronald J. Williams, and Herman Hales recovered judgments against Philip and Dorothy Hales on June 8, 1978, in the Circuit Court of DeKalb County.[1] The certificates *1059 of judgment were recorded on July 12, 1978. On September 26, 1978, a deed dated March 28, 1971, was recorded in the probate office; that deed purported to convey 80 acres of real property from Philip and Dorothy Hales to Ira and Dora Hairston. H.K. Scott, Ronald J. Williams, and David Hammonds[2] filed a complaint on January 28, 1988, seeking to set aside the conveyance to the Hairstons and to enforce a judgment lien by a sheriff's sale of the property.
The complaint alleged that the property was transferred with the intent to hinder, delay, or defraud creditors and was therefore void pursuant to Ala.Code 1975, § 8-9-6. The complaint was later amended to add a count under the recordation statute, Ala.Code 1975, § 35-4-90. The plaintiffs filed a motion for summary judgment. The court held a hearing on the motion in October 1988; the defendants did not respond to the motion and at that time had not answered the complaint.
In May 1989 the defendants answered the complaint, alleging that the certificates of judgment did not contain the information required by Ala.Code 1975, § 6-9-210, in order to constitute a lien against any property. They argued that the judgments were defective and could not constitute a lien on the Haleses' property because (1) they failed to state the amount of court costs assessed against the Haleses; (2) they failed to state the Haleses' address; and (3) 10 years had expired from the date of the judgment, and, in essence, the court was being asked to execute on judgments that had not been properly revived. The defendants further alleged that the plaintiffs' judgments had been paid in full. The plaintiffs filed a lis pendens notice in the present case on October 10, 1989.
On January 8, 1990, the trial court granted the plaintiffs' motion for summary judgment, thereby entitling them to enforce a lien that they contended had been created by the filing of the certificates of judgment. However, in April 1990, in response to the defendants' motion for judgment notwithstanding the verdict, for new trial, and for reconsideration, the court vacated its previous order and entered judgment in favor of the defendants.
The court stated its reasoning for vacating its previous order as follows:
On appeal, the plaintiffs argue that the trial court erred in declaring that the certificates of judgment did not constitute a lien on the Haleses' property. We agree with their argument and reverse the judgment of the circuit court.
The certificates of judgment prepared by the register of the Circuit Court of DeKalb County did not show the address of the Haleses, nor did they show the amount of court costs assessed against the Haleses in the judgment. The second order entered by the trial court did not address these issues, but found that the "notice of lis pendens, the mechanism for keeping the lien alive for more than 10 years, was not filed until after June 8, 1988, the date on which the lien otherwise expired." Consequently, we will first address the issue of whether the requirements of the lis pendens statute, § 6-9-211, have been observed.
Many cases can be cited for the proposition that §§ 6-9-210 and 6-9-211 are "in derogation of the common law and [are] to be strictly construed." Ball v. Vogtner, 362 So. 2d 894 (Ala.1978); Duncan v. Autauga Banking & Trust Co., 223 Ala. 434, 136 So. 733 (1931). However, this Court has often noted that the statutory requirements must be viewed in relation to the purpose of those requirements. See, e.g., Bowman v. Southtrust Bank of Mobile, 551 So. 2d 984 (Ala.1989); Bank of Anniston v. Farmers & Merchants State Bank, 507 So. 2d 927 (Ala. 1987). The sole purpose of a lis pendens notice is to afford notice to a bona fide purchaser who might purchase the property during the pendency of the action. Batson v. Etheridge, 239 Ala. 535, 195 So. 873 (1940).
Admittedly, in this case no lis pendens notice was filed prior to the date the lien would otherwise expire in order to keep the lien alive; however, this is not determinative, because from the facts placed in evidence it appears that the Hairstons had actual notice of the pending action to enforce the lien. The Hairstons, parties in this action, were served with complaints in this action in February 1988. Consequently, because they had actual notice of the action, noncompliance with the lis pendens statute would be irrelevant. See First Alabama Bank of Tuscaloosa v. Brooker, 418 So. 2d 851 (Ala.1982). In Brooker, this Court said, "`If ... there was actual notice, it is immaterial whether the statutory notice was given or not given.'" *1061 418 So. 2d at 854 (quoting Lee v. Macon County Bank, 233 Ala. 522, 172 So. 662 (1937)).
The defendants had actual notice of the action by virtue of their receipt of the complaint in this action; that actual notice makes the plaintiffs' noncompliance with the lis pendens statute inconsequential. Brooker.
Furthermore, we hold that the certificates of judgment were sufficient under § 6-9-210 to constitute a lien on the Haleses' property. Although the Haleses' address did not appear in the certificates, we hold that, under the principles announced in Bank of Anniston and Bowman, this omission was not fatal. The certificates show that the judgment was entered on June 8, 1978, and they specify the dollar amount. They also show that H.K. Scott and others were the plaintiffs in whose favor the judgment was entered and that the Haleses were the defendants.
However, it cannot be said that the certificates of judgment were sufficient under § 6-9-210 to constitute a lien on the Haleses' property for the amount of court costs assessed in the circuit court. That amount was not set out in the certificates of judgment. We adhere to the views expressed in Miles v. Gay, 280 Ala. 131, 190 So. 2d 686 (1966), and Morris v. Waldrop, 213 Ala. 435, 105 So. 172 (1925), that a statement of the amount of court costs assessed against a judgment debtor is a material requirement of the statute, because such a statement is necessary to provide notice of the amount of the lien. However, in accordance with the rationale set forth in Bowman and Bank of Anniston, we do not view the omission of a statement of this amount as precluding the creation of a lien in the plaintiffs' favor for the amount of each respective judgment stated.
A motion for summary judgment may be granted only when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The uncontroverted evidence in this case shows that the defendants were not entitled to a judgment as a matter of law. As expressed by this Court in Bowman, "[t]o hold otherwise would be a triumph of form over substance." 507 So. 2d at 930.
For the foregoing reasons, the summary judgment is reversed and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES and KENNEDY, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
The failure to file the lis pendens notice in the probate office within 10 years of the date of judgment in accordance with Code of Alabama 1975, § 6-9-211, would cause the lien to expire as to all except those having actual knowledge of the pendency of the action to enforce the lien filed within 10 years of the date of the judgment.
[1] Truman Hicks, H.K. Scott, J.E. Hammonds, Ronald J. Williams, and Herman Hales each recovered a judgment against Philip and Dorothy Hales in the following amounts:
[2] David Hammonds is the personal representative of the estate of J.E. Hammonds, deceased. | January 25, 1991 |
287625a6-893c-4f82-a80d-458900f54107 | Welch v. State | 81 So. 2d 901 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 901 (1955)
Carl WELCH
v.
STATE.
5 Div. 610.
Supreme Court of Alabama.
May 12, 1955.
Rehearing Denied June 23, 1955.
*902 Bernard F. Sykes, Asst. Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the petition.
McKee & Maye, Opelika, opposed.
MERRILL, Justice.
Title 15, Section 305, Code of 1940, is as follows:
The sole question before us is whether the provisions of said section were violated by the occurrence stated in the opinion of the Court of Appeals. We quote: "The defendant did not testify in the case nor introduce any evidence otherwise.
"In his argument to the jury the prosecuting officer stated that `he had a good case and the defense had not offered any evidence.'
"* * * when the prosecuting officer made the statement of instant concern, the court overruled the objection and stated: `I don't think that is directly commenting on the fact that the defendant did not testify. If I thought so, I would certainly sustain your motion.'"
(We were in doubt as to whether it was the trial court or the defendant who first injected the question of the defendant's failure to testify. We went to the record to clarify this uncertainty and it reveals that counsel for defendant assigned that specific ground when he interposed his objection.)
We cannot agree that the remark in the instant case is such as to result in a reversal of the case.
In his dissent in the case of Coats v. State, 36 Ala.App. 515, 60 So. 2d 257, 260, certiorari granted 257 Ala. 406, 60 So. 2d 261, wherein the decision of the Court of Appeals was reversed, the late lamented Presiding Judge Carr of the Court of Appeals, enunciated the following which we think is a correct statement of the law:
We have examined the authorities cited following this statement and they support the proposition. Also, in the case of Littlefield v. State, 36 Ala.App. 507, 63 So. 2d 565, 570, certiorari denied 258 Ala. 532, 63 So. 2d 573, where the defendant was convicted of obtaining a county warrant by false pretenses, and the warrant bore the endorsement of the defendant, the Court of Appeals, in commenting on the solicitor's statement to the jury that "`Nobody denies that's the signature of Cleve Littlefield'", said:
For annotation on defendant's failure to produce testimony see 68 A.L.R. 1139.
Furthermore, the trial court was in a position to observe the situation, the demeanor of the solicitor, the inflection of his voice and all the attending circumstances. The judge was an experienced trial lawyer before he assumed his duties on the bench, and his statement shows that he fully understood the question presented and that he "would certainly sustain the motion" if he thought it amounted to commenting on the fact that the defendant did not testify. We are in agreement with the trial court that the statement was neither a direct nor a covert reference to the failure of the defendant to testify, and it would be a rather strained construction to conclude otherwise. Broadway v. State, 257 Ala. 414, 60 So. 2d 701; Washington v. State, 259 Ala. 104, 65 So. 2d 704.
The judgment of the Court of Appeals is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, SIMPSON and STAKELY, JJ., concur.
MAYFIELD, J., dissents.
MAYFIELD, Justice (dissenting).
The chief prosecuting officer for the State is prohibited from doing by indirection that which he is barred from doing directly. The statement of the solicitor that the "defense has offered no evidence" effectively directed and focused the attention of the jury upon the fact that the defendant had exercised his constitutional privilege against self incrimination. This is expressly forbidden by our statute. For this reason I must respectfully dissent. | May 12, 1955 |
569ad2f2-28f3-48a3-a3c6-090bf6257ba7 | Birmingham Trust Nat'l Bank v. Garth | 81 So. 2d 590 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 590 (1955)
BIRMINGHAM TRUST NAT'L BANK
v.
Ethel Mae GARTH et al.
8 Div. 789.
Supreme Court of Alabama.
June 30, 1955.
*591 Smyer, Smyer, White & Hawkins, Birmingham, and Woodroof & Woodroof, Athens, for appellant.
Maurice F. Bishop and Robt. S. Richard, Birmingham, and D. U. Patton, Athens, for appellees.
MERRILL, Justice.
This is an appeal from a decree of the Circuit Court of Limestone County, in Equity, overruling demurrer to the bill of complaint as amended, to terminate a trust. The complainants (appellees) are Ethel Mae Garth, the daughter of the testator, and the six children of Ethel Mae Garth. The respondent-appellant bank is the trustee under the will of the testator.
To use the language in appellees' brief, "The bill seeks to terminate the trust created under the will, and a declaration of rights of the parties thereunder." The testator, L. C. Hightower, died on June 2, 1934, and the will was admitted for probate in Limestone County on June 28, 1934. The administration of the trust estate was transferred to and is pending in the circuit court, in equity.
The verified bill, with the will attached as an exhibit, shows that all the complainants are over 21 years of age except the youngest child of Ethel Mae Garth, who is over 18 and has had her disabilities of nonage removed and would become 21 on December 13, 1954; that the widow of L. C. Hightower, deceased, is dead; that a specific legacy to a sister of the testator was terminated by her death; that a specific legacy of $25 per month to a niece was terminated by her renunciation and release of same; that the only reason for the existence of the trust is a provision in the will providing for the payment of $500 per month to his daughter, Ethel Mae Garth, during her life; that Ethel Mae Garth is willing to renounce her interest in the estate; that complainants have requested respondent to terminate the trust and divide the corpus as provided in the will and respondent refuses so to do.
The respondent filed a demurrer consisting of 101 grounds which was overruled.
Item 3(f) of the will provided in pertinent part:
This case would present some close and interesting questions if we reached them, but under the allegations of the bill, which are construed more strongly against the pleader, we do not reach the real questions which are capably argued by counsel for the parties.
The theory of complainants' bill is that the renunciation by Ethel Mae Garth of all her life interests in a part of the income from the trust, accelerates the trust, so that it can be terminated immediately with the same result as if she had died. This theory was also followed by the trial court as his opinion states: "The purpose of the trust will have been fulfilled in December, 1954 with the renunciation of Ethel Mae Garth and her youngest child becoming twenty-one years of age."
Complainants have no existing justiciable controversy with respondent unless there has been a renunciation by Ethel Mae Garth. Appellees in brief make the categorical statement, "* * * and Ethel Mae Garth has renounced her interest in the trust and requested a termination of the trust estate." The statement quoted from the opinion of the trial court in the preceding paragraph shows that he, too, treated the cause as if there had been a renunciation by Ethel Mae Garth. The reply brief of appellant is just as emphatic when it states, "Mrs. Garth has not renounced her life estate." But has such a renunciation been alleged in the bill? It appears that there has been a deliberate and studied effort not to so allege. Paragraph 9 of the original bill stated in part:
One of the several grounds of demurrer to the original bill was: "It affirmatively appears from the Bill of Complaint that Ethel Mae Garth, a life tenant under the trust, has not relinquished her rights under the trust."
Subsequently, the bill was amended by amending paragraph 9 to read as follows:
The same grounds of demurrer were reassigned to the bill as amended together with many others, three of which again pointed out that a renunciation by Ethel Mae Garth had not been alleged.
We quote from several of our cases which deal generally with the requirements of equity pleading.
In Collins v. Thompson, 259 Ala. 82, 65 So. 2d 491, 493, we said:
We must agree with appellant that the bill as amended does not meet the requirements stated in these cases as to the direct and positive allegation of the renunciation of her interests by Ethel Mae Garth. Also "the bill must clearly show the title and interest of the complainant in the subject-matter of the suit and a present right to sue," Hicks v. Biddle, 218 Ala. 2, 117 So. 688, 690. A clear allegation of Mrs. Garth's renunciation is required to give complainants a "present right to sue" in this proceeding to terminate the trust.
In the case of Collins v. Thompson, supra, we said: "Here the allegations show complainants to be `ready, willing, able and eager' to pay their debt, but upon their own terms." The allegations of the bill in the instant case seem to say that Ethel Mae Garth is willing to renounce if we should hold that such action would permit the termination of the trust immediately, and if we should so hold, then her children will pay her $500 per month when the estate is distributed to them. The allegations of the bill as amended in respect to the present renunciation present only a moot case "`which seeks to determine an abstract *594 question, which does not rest upon existing facts or rights.'" Postal Telegraph-Cable Co. v. City of Montgomery, 193 Ala. 234, 69 So. 428, 429.
A similar situation was considered in Bennett v. Fidelity Union Trust Co., 122 N.J.Eq. 455, 194 A. 449, 451, where the court said:
See also In re Stone's Estate, 21 N.J.Super. 117, 91 A.2d 1.
We cite statements from a few of our cases dealing with the declaratory judgment feature of the instant case. "The courts will not render purely advisory opinions nor decide moot cases under the guise of declaratory judgments." Donoghue v. Bunkley, 247 Ala. 423, 25 So. 2d 61, 68. "Courts of equity have no authority to give such (advisory) opinions." Bates v. Baumhauer, 239 Ala. 255, 194 So. 520, 523. "The declaratory judgment statutes do not empower courts to decide moot questions, abstract propositions, or to give advisory opinions, however convenient it might be to have the questions decided for the government of future cases." Shadix v. City of Birmingham, 251 Ala. 610, 38 So. 2d 851, 852.
It follows that there is no equity in the bill as amended, one of the grounds of demurrer, and the facts alleged show no bona fide existing justiciable controversy. Shadix v. City of Birmingham, supra; Werneth v. Hanly, Ala., 78 So. 2d 299.
We have considered the primary questions, that of the allegations affecting the termination of the trust and the declaratory judgment feature, but there remain certain other aspects of the bill as treated by the parties and the court below. These are that the trust is void as one for accumulation only; that the trust should be terminated because of changed circumstances and all the beneficiaries are in economic need; and that the trust violates the law against perpetuities.
Although the trial court overruled the demurrer "to the bill as a whole and to each and every aspect of the bill to which it is addressed," he makes the following statement in his opinion:
We are in accord with this statement, which is dispositive of those two aspects of the bill.
The aspect of the bill seeking to terminate the trust because it violates the law against perpetuities, Title 47, § 16, Code of 1940, evidently was not urged in the court below, and was expressly abandoned in oral argument here. However, since we are dealing with the allegations of the bill, we consider it proper to state that the will is an exhibit to the bill and it shows on its face that the trust provision does not violate the rule against perpetuities. Ramage v. First Farmers & Merchants Nat. Bank, 249 Ala. 240, 30 So. 2d 706; Henderson v. Troy Bank & Trust Co., 250 Ala. 456, 34 So. 2d 835.
It is not intended that anything said or any case cited in this opinion should indicate, directly or indirectly, our views as to the questions in this matter if and when there is an absolute and unconditional release and renunciation by Ethel Mae Garth.
*596 The decree of the lower court is reversed, one is here rendered sustaining the demurrer to the bill; the cause is remanded and complainants are allowed twenty days to amend, as they may deem proper.
Reversed, rendered and remanded.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | June 30, 1955 |
cdc211fb-69b8-4ec9-874d-5a0480df6e5d | Horn v. Dunn Brothers, Inc. | 79 So. 2d 11 | N/A | Alabama | Alabama Supreme Court | 79 So. 2d 11 (1955)
W. L. HORN, as State Commissioner of Revenue,
v.
DUNN BROTHERS, Inc.
3 Div. 669.
Supreme Court of Alabama.
March 24, 1955.
*13 Si Garrett, Atty. Gen., and H. Grady Tiller and Wm. H. Burton, Asst. Attys. Gen., for appellant.
Jack Crenshaw, Montgomery, for appellee.
MAYFIELD, Justice.
This is an appeal from a final decree of the Circuit Court of Montgomery County, sitting in equity, rendered on 15 May 1953. After submission in this Court, the term of office of Joe M. Edwards, as Commissioner of Revenue, expired, and W. L. Horn was appointed his successor. By agreement of the parties, and with the consent of this Court, W. L. Horn has been substituted as appellant in the stead of Joe M. Edwards.
The complainant-appellee-taxpayer filed an original bill for a declaratory judgment. It was alleged that it was a Texas Corporation with its principal place of business in Dallas, Texas. Further, that there exists a reciprocal agreement between the State of Texas and the State of Alabama as to mileage taxes and that the taxpayer's operation comes within the terms of this agreement. The bill alleged that a justiciable issue existed between the taxpayer and the Commissioner of Revenue as to the construction of such agreement and as to the rights and liabilities of the taxpayer under this agreement. The taxpayer prayed for a declaration of right construing the terms of this reciprocal agreement and enjoining the Commissioner from requiring the taxpayer to pay further fees and taxes on its interstate operation.
The reciprocal agreement between Alabama and Texas was purportedly made pursuant to the statutory authority contained in the Mileage Tax Act, Title 48, Section 301(46), Code of Alabama 1940, as amended. Paragraph 5 is the portion of that agreement which is most pertinent to the present controversy.
The Circuit Court of Montgomery County entered a declaration of right in favor of the taxpayer on 29 February 1952, in which it ordered, declared and decreed:
No appeal was taken by the Commissioner of Revenue from this declaratory judgment. The taxpayer filed an application for refund with the State Department of Revenue in the amount of $6,118.36, on 9 October 1952, under the provisions of Title 51, Sec. 913, Code of Alabama 1940, as amended. The amount claimed represented mileage tax paid by the taxpayer during a period beginning in September 1949 and ending in October 1950. The taxpayer's application for refund was refused by the Commissioner on 19 November 1952. On 21 January 1953, the taxpayer filed a petition in the Circuit Court alleging the refusal of its claim for refund and praying that the Court make such supplemental orders as were necessary to give full force and effect to its declaration of right of 29 February 1952. The Commissioner filed demurrers and answers to this petition. The principal contention was that the amount which the taxpayer sought to have refunded was paid on intrastate operations. The Commissioner also filed a motion for severance in which he asserted that the mileage fees which constituted the subject of the petition related to a period prior to those which were the subject of the Court's decree of 29 February 1952. Further, that the taxpayer was attempting to merge two separate suits. The Commissioner prayed that the two causes be severed and treated as two separate suits.
The trial court overruled the Commissioner's demurrer and motion for severance upon a hearing held 15 May 1953. The court below made a finding of fact based on oral testimony and numerous exhibits placed into evidence, that of the total amount claimed by the taxpayer $5,731.92 was for mileage fees paid on interstate operation. The court thereupon, decreed as follows:
From this decree the respondent-Commissioner appealed. We are met at the threshold with the problem of the scope of this appeal. It is contended by the Commissioner and argued exhaustively and with force by his able solicitor that the decree of 29 February 1952, was merely a preliminary or intermediate decree. The Commissioner's solicitor strenuously maintained that this decree and the "final" decree of 15 May 1953, are presently before this Court.
The declaration of right rendered on 29 February 1952, fully ascertained and declared the rights of the parties and settled the equities. It resolved all the issues then before the Court and provided for no further proceedings. It was, therefore, a final decree. Ex parte Sparks, 254 Ala. 595, 49 So. 2d 296; Carter *15 v. Mitchell, 225 Ala. 287, 142 So. 514; O'Rear v. O'Rear, 227 Ala. 403, 150 So. 502; Moorer v. Chastang, 247 Ala. 676, 26 So. 2d 75. The rendition of a supplemental decree does not divest a prior final decree of its finality. As was stated in 30 C.J.S., Equity, § 582, page 975:
Having elected to take no appeal from the decree of 29 February 1952, the State Department of Revenue lost its right of appeal. Our consideration, is accordingly limited to the trial court's decree of 15 May 1953, from which this appeal is prosecuted. See Burgin v. Sugg, 210 Ala. 142, 97 So. 216; Cochran v. Miller, 74 Ala. 50.
The State Department of Revenue now contends that the proceedings below and the decree from which they prosecute this appeal are void as violative of Section 14 of the Constitution of Alabama 1901, which provision prohibits making the State of Alabama a defendant in any court of law or equity. This question was not raised in the nisi prius court, and the taxpayer insists that it may not now be raised for the first time. With this insistence, we cannot agree. If the appellant's contention were valid, neither the court below nor this court has the jurisdiction to render or countenance the decree of 15 May 1953. Among the questions for consideration on this appeal is the problem of jurisdiction of the trial court as a basis for jurisdiction of this Court. Our Court has consistently held that it will take notice of the question of jurisdiction at any time or even ex mero motu. Scott v. Alabama State Bridge Corporation, 233 Ala. 12, 169 So. 273.
While we may in no manner impinge upon the immunity of the State from suit, adherence to strict formalism would necessarily extend the inclusiveness of Section 14 of our Constitution beyond the policy consideration which occasioned its existence. In the interpretation and application of Section 14 of the Constitution, this Court has stated that it would seek a common sense approach to the problem of the State's immunity from suit. We have pointed out that it is the nature of the suit or the relief demanded which the courts consider in determining whether an action against a State officer is in fact a suit against the State in violation of the Constitutional prohibition. Glass v. Prudential Ins. Co., 246 Ala. 579, 22 So. 2d 13.
When State officers are required to perform ministerial acts, they derive no comfort or immunity from Section 14, supra. Curry v. Woodstock Slag Corporation, 242 Ala. 379, 6 So. 2d 479; State v. Clements, 217 Ala. 685, 117 So. 296.
In State Board of Administration v. Roquemore, 218 Ala. 120, 117 So. 757, 759, the petition sought a writ of mandamus to compel the respondent to audit and voucher for payment petitioner's account for hay sold to the State Highway Department. After noting that by statute the State Highway Department was required to pay for material furnished out of the Highway fund, this Court said:
The critical question here presented is whether or not after a taxpayer has received a declaration of right, he is entitled to a refund of certain taxes, and whether after refusal of such refund by the State Department of Revenue upon the petition of the taxpayer, a court of equity is empowered to order the State Department of Revenue to take affirmative action on the taxpayer's refund. The Commissioner contends not, saying, in effect, that under Tit. 51, § 913, as amended, supra, his disposition of the taxpayer's petition is discretionary; that regardless of the merits of the taxpayer's claim, if the Commissioner chooses not to certify that the taxpayer is entitled to a refund, this decision is final. And, that any suit seeking to compel such certification is an action against the State forbidden by Section 14 of our Constitution. Possibly the soundness of the Commissioner's contention would depend upon the absence of any clear, legal duty under the circumstances.
The Code of Alabama 1940, Tit. 51, § 913, as amended, authorizes the refund of taxes paid directly to the State Department of Revenue upon petition of the taxpayer within three years of such payment where, by mistake of fact or law, an amount was paid in excess of the amount due. This section further provides:
The taxpayer made application for refund and the Commissioner refused the application. This application was made in conformity with, and based upon, the declaration of right which he received in the equity court, and from which declaration the Commissioner chose not to prosecute an appeal.
It is manifestly fitting and proper that in order to maintain orderly government, each taxpayer is required to furnish his fair share of the State's revenueits life blood. Of no man is one drop in excess of his share required. The citizen is required to render unto Caesar those things which are Caesar'sbut not to make further obeisance.
It is harsh and unjust for the State to withhold overpayments made through mistake by the over-conscientious taxpayer. When the Legislature of Alabama enacted Section 913, supra, they thereby created the machinery for the satisfaction of the State's moral duty to refund taxes erroneously paid. It is inconceivable that the Legislature could have intended that the basic purpose for which they enacted the statute could or should be thwarted by arbitrary actions of the State Department of Revenue. Nor do we believe that the framers of the Constitution intended to attempt to control the internal workings of the State tax collecting machinery when Section 14, supra, was written into the basic organic law. The historical *17 reasons for the need of governmental immunity from suit are too well known to here require review.
We do not find it here necessary to decide the limits of the discretionary power given to the State Department of Revenue under Section 913, supra. The decree of 29 February 1952, established the taxpayer's right to a refund for taxes paid on interstate operations. All that remained to be done by the State Department of Revenue was the computation of such refund and the necessary certification to the comptroller. At lease, to that extent, the duties of the Commissioner were ministerial only.
What, then, was the nature of the relief demanded? The supplemental decree of 15 May 1953, only required the Commissioner to perform an established duty.
No judgment against the State was sought or granted. True, the decree may ultimately touch the State treasury. Yet, the State treasury suffers no more than it would, had the Commissioner initially performed his clear bounden duty. The State of Alabama, as well as the taxpayer, has an interest in the proper performance of official duties by its Department Heads. We, therefore, conclude that the present suit is essentially personal in nature and consequently does not fall within the purview of the prohibition set out in Section 14, of the Constitution of 1901.
The State Department of Revenue argues further that the decree of 15 May 1953, is a nullity in that it granted affirmative relief which would have been valid, if at all, under a procedural writ of mandamus on the law side. Code of Alabama, Tit. 7, § 163, provides that further relief may be granted on a declaratory judgment whenever necessary or proper. The further relief referred to means coercive relief. Borchard Declaratory Judgment 2d Ed. (p. 441); Dozier v. Troy Drive In Theatres, 258 Ala. 417, 63 So. 2d 368. Having received a declaratory judgment defining his right to the refund, the taxpayer is not precluded from securing further relief from the same court of equity under Tit. 7, § 163, supra, because of the possible availability of a common law writ of mandamus. Section 163 of Title 7, supra, was intended as an ancillary remedial statute.
The Circuit Court heard testimony ore tenus concerning whether the taxpayer's operation was interstate or intrastate in nature. After a consideration of the evidence, we cannot find that the nisi prius court's conclusion as to these facts was palpably wrong. Its findings, therefore may not be disturbed. Carlisle v. Blackmon, 257 Ala. 599, 60 So. 2d 332; Donald v. Reynolds, 228 Ala. 513, 154 So. 530. We, therefore, hold that the judgment of the Circuit Court of Montgomery County, in equity, is due to be, and is hereby, affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | March 24, 1955 |
7971b817-db92-4cfd-991f-6c1a4005fd01 | McGinney v. Jackson | 575 So. 2d 1070 | 1900193 | Alabama | Alabama Supreme Court | 575 So. 2d 1070 (1991)
Addie McGINNEY
v.
Willie JACKSON.
1900193.
Supreme Court of Alabama.
February 1, 1991.
*1071 Dennis J. Knizley of Knizley and Powell, Mobile, for appellant.
Larry C. Moorer, Mobile, for appellee.
SHORES, Justice.
Addie McGinney sued several persons who had sold her a house. Her complaint also named as a defendant the sellers' Century 21 Action Realty agent, Willie Jackson, individually. The case went to trial, and, after some evidence was heard, the court granted the plaintiff's and sellers' joint request for a mistrial, thus eliminating the sellers as defendants. Willie Jackson was the only remaining defendant. On March 23, 1990, the trial court entered a summary judgment for him. McGinney appeals. We affirm.
Jackson was the Century 21 Action Realty agent through whom McGinney purchased her house. McGinney admits that she visited the house at least twice before purchasing it. Because she could go only before or after work, it was almost dark each time she toured the premises. Despite her inability to see the house under daylight, McGinney admits that she knew of several items in the house requiring repair.
The purchase agreement, dated July 29, 1980, specified that certain items be repaired by the sellers. Closing was to take place no later than September 19, 1980. The purchase agreement also contained a disclaimer, which read: "Real estate agents are not principals and are not to be held liable for any conditions or non-performance of this agreement."
The purchase agreement refers to an addendum that describes the nine items to be repaired by the seller. The addendum, dated July 31, 1980, is somewhat faulty. McGinney signed on the line marked "seller" and A. Evans, one of the sellers, signed under the line marked "buyer." Willie Jackson signed as a witness above the proper heading.
McGinney, having obtained financing, moved into the house on or about December 1, 1980. She found rotten bathroom floors and faulty plumbing. Because of a leaky roof, rain came into the rooms and further damaged the floors. McGinney tried on several occasions to contact Jackson concerning the condition of her house and the promise, listed in the agreement and addendum, to repair. Jackson never replied. To date, McGinney has made only minor repairs to the house; those have been made at her own expense.
The complaint alleges breach of warranty, fraud, and breach of contract against Jackson.
"Breach" consists of the failure without legal excuse to perform any promise forming the whole or part of the contract. *1072 17 Am.Jur.2d Contracts § 441 at 897 (1964). Here, the promise was to make certain repairs to the plaintiff's house according to the addendum list referred to in the purchase agreement. The controversy in this case concerns who is responsible for making the repairs. The plaintiff argues that Jackson was not acting as an agent and binding his principals, the sellers, but was personally promising that the work would be completed.
When an agent discloses his agency relationship, the presumption is that he intends to bind only his principal. Sealy v. McElroy, 288 Ala. 93, 257 So. 2d 340 (1972). This presumption is overcome by evidence that the agent assumed personal liability. Owens v. Durden, 440 So. 2d 1079 (Ala.Civ. App.1983).
Jackson did not personally guarantee the completion of the repairs. McGinney produced no evidence at trial, nor is there any other evidence in the record, indicating an intention on Jackson's part to bind himself and not his principals, the sellers. Jackson signed the addendum agreement on the line designated "witness." The purchase agreement also contained the following disclaimer: "Real estate agents are not principals and are not to be held liable for any condition or nonperformance of this agreement." Furthermore, the plaintiff admits that she knew that Jackson did not own the property himself; she knew that Jackson was merely selling the house for the owners. She clearly knew of the agency relationship.
In Gillis v. White, 214 Ala. 22, 106 So. 166 (1925), this Court stated: "When one contracts merely as agent of a disclosed principal, he binds either principal or himself, but not both." Because Jackson never bound himself personally, the addendum and the purchase agreement bound only the sellers or principals of the property. The plaintiff could have pursued only the sellers, or principals, on breach of contract or warranty causes of action based upon the purchase agreement and its addendum. The plaintiff has no valid contract or breach of warranty cause of action against Jackson.
The plaintiff's complaint further alleged that Jackson made fraudulent representations insuring the completion of the repairs. These allegations of fraud are based upon the purchase agreement and the addendum. Assuming that Jackson did fraudulently misrepresent facts, intending to deceive the plaintiff, he did so in 1980. The plaintiff's cause of action in fraud would be barred by the then-applicable oneyear statute of limitations, because her suit was not brought until 1986. Alabama Code 1975, § 6-2-39 (since repealed).
Therefore, the trial court did not err in entering Jackson's summary judgment. Rule 56, A.R.Civ.P. Accordingly, that judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | February 1, 1991 |
96263752-4a10-46d5-9353-0a311de51431 | Ex Parte Bracken | 82 So. 2d 629 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 629 (1955)
Ex parte Ward BRACKEN.
In re Ward BRACKEN
v.
Ray MULLINS, Personnel Director.
6 Div. 883.
Supreme Court of Alabama.
August 18, 1955.
Rehearing Denied October 13, 1955.
Jas. B. Smiley, Birmingham, for appellant.
*630 Huey, Stone & Patton, Bessemer, for appellee.
SIMPSON, Justice.
Certiorari to the circuit court of Jefferson County to review a judgment of that court sustaining the finding of the Personnel Board adjudging the petitioner here guilty of charges preferred against him of conduct unbecoming an employee in the public service and demoting him. Code 1940, § 330, Title 62, as set out in the 1953 Pocket Part, with its subsections.
We are met at the threshold with the inquiry of whether any court has jurisdiction to review the findings of the Personnel Board. The argument seems to run that since the civil service law confers no right on the employee to hold the employment that therefore he has no standing in court in a proceeding to remove him from employment or to demote him. This same contention was advanced in Ex parte Darnell, 262 Ala. 71, 76 So. 2d 770, and was disapproved by this court and we think soundly so. The rationale underlying being that under § 139 of the Constitution the Board itself occupied a quasi judicial status and that therefore the act was within constitutional bounds in allowing the appeal to the circuit court.
We assume the city clerk falls within the classified service as defined by § 330(22), Title 62, Pocket Part. Such an employee, of course, is subject to the restrictions of the act and is entitled to its benefits so long as those restrictions and benefits remain the law there applicable. Of course, the legislature could abolish the position in which one is employed or the city could do so, State ex rel. Hyland v. Baumhauer, 244 Ala. 1, 12 So. 2d 326, and no vested right of the employee would thereby be affected. But as long as the position lasts, and the law remains as it is, if the Board dismisses, demotes or suspends the employee without such cause as is provided by the statute, he has thereby been deprived of a right which the law confers on him and to accord him judicial review by the act does not run afoul the Constitution. City of Meridian v. Davidson, 211 Miss. 683, 53 So.2d 48(1).
The strict constitutional question presented by the instant proceeding is whether an employee of the city of Homewood has the right to invoke the power of this court conferred by § 140 of the Constitution to superintend and control the circuit court of Jefferson County by a common law writ of certiorari with respect to its judgment on appeal from the decision or ruling of the Personnel Board of Jefferson County acting under the said civil service law (said § 330 with its subsections, supra).
The petitioner was the city clerk of the city of Homewood and as stated the Board found him guilty of the charge preferred against him and demoted him. He appealed to the circuit court under § 330(42), Title 62, Code, and that court affirmed the judgment of the board. By the instant proceeding in this court he seeks to have this court review the ruling of the lower court by an exercise of its right to issue such remedial writ as may be necessary to give it general superintendence over inferior jurisdictions under § 140 of the Constitution. This court did issue the writ of certiorari to the circuit court and thereby elected to exercise such power as it has jurisdiction to do. Such power and jurisdiction are here questioned by the respondent.
A similar power exists in the circuit court by statute. § 126, Title 13; § 1072, Title 7, with an appeal to this court provided in § 1074, Title 7.
Section 330(42), Title 62, supra, sets forth the provisions for dismissal, demotion and suspension of employees covered by the act, provides for a hearing of the charges before the Personnel Board and also an appeal from that decision to the circuit court. The section as pertinent now provides: "The decision of the board based upon all proceedings before the board shall be final subject to appeal by either party to the circuit court to review questions of law and the question of whether or not the decision or order of the board is supported by the substantial and *631 legal evidence. On such appeal the circuit court shall review the record and shall affirm, reverse, remand or render said cause. The decision of the board shall be controlling until reversed on appeal as provided for herein. * * * [The presiding judge designates three circuit judges to hear the appeal and it is further provided:] The opinion of the majority of three judges to whom such case is assigned shall be determinative of the case and there shall be no appeal to any appellate court of Alabama." The statute would seem to have about the effect a certiorari would. See City of Meridian v. Davidson, supra, and cases cited.
The legislature may limit, restrict or abolish appeals. Constitution 1901, § 140; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803. But in the same constitutional section is conferred on the Supreme Court a general superintendence and control over all inferior courts. Williams v. Louisville & N. R. Co., 176 Ala. 631, 58 So. 315. But the right of certiorari is not affected by any appeal provisions of the act and on certiorari a limited review would be available. These are questions of law including a misapplication of law to the facts as found by it and when there is no evidence to support the finding. Ex parte Alabama Textile Products Corp., 242 Ala. 609, 7 So. 2d 303, 141 A.L.R. 87; Cranford v. National Surety Corp., 231 Ala. 636, 166 So. 721; Alabama Power Co. v. City of Fort Payne, 237 Ala. 459, 187 So. 632, 123 A.L.R. 1337.
As we understand it, there is some contention that under such an appeal provision in the act making the judgment of the circuit court final, this court is inhibited from reviewing any action by certiorari. The legislature, however, cannot prohibit this court from exercising the power granted it under § 140 of the Constitution. It has the same power in that respect over inferior jurisdictions with limited power as it is when granted final jurisdiction. An analogous case is found in Williams v. Louisville & N. R. Co., supra, where although the act creating the Court of Appeals gave it final appellate jurisdiction in certain cases, it was held that certiorari to the Supreme Court under the power granted by § 140 of the Constitution would lie. The language there applied seems applicable here:
We reach the conclusion, therefore, that this court is not prohibited by § 330(42), Title 62, supra, to issue a writ of certiorari to the circuit court to superintend and control that court to a limited extent in respect to the instant controversy. By that review, however, we are limited to a consideration of the proper application of the law involved and whether the ruling was supported by any legal evidence. If so, the judgment will be affirmed.
The said civil service law has provided proper judicial review for the protection of a civil service employee by an appeal to the circuit court. When so, the law cannot deprive him of his right to obtain a writ of certiorari from this court to look *632 into the question of whether or not the circuit court committed an error of law or that its ruling was contrary to the legal evidence. Being permitted to appeal to the circuit court to protect his interests, for like reason he is permitted to seek a review of that ruling pursuant to the authority of § 140 of the Constitution if this court exercises its discretion to allow such review.
It is next contended by the petitioner that the office of clerk of the city of Homewood had a fixed term of four years beginning on the date of his election by the council under the provisions of § 405, Title 37, Code of Alabama, thereby bringing him within the protection of § 175 of the Alabama Constitution, and removable from office only by impeachment and that therefore the Personnel Board was without authority to act in the premises. See Bradford v. State, 226 Ala. 342, 147 So. 182. We do not regard the argument as tenable. The civil service law, supra, had the effect of modifying said § 405 in so far as terms of office of municipalities of Jefferson County are concerned and as respects officers elected by a city council. Section 330(22) of the civil service act specifies the employees and officers who come within the classified service and those in the unclassified service. It excepts officers elected by popular vote from the classified service and includes all other offices and positions in the county and municipal service and then expressly repeals all laws or parts of laws inconsistent with or in conflict with the act, § 330(47), Tit. 62, 1953 Cum. Pocket Part, Vol. 9. This repealing clause, therefore, eliminated the office which petitioner held from the influence of said § 405. Stone v. State ex rel. O'Connor, 30 Ala.App. 500, 8 So. 2d 210. It is therefore the conclusion of the court that petitioner did not hold office for a fixed term, but such tenure as would be subject to termination pursuant to the provisions of the civil service act. He therefore did not come within the protection of § 175 of the Constitution as construed in the Bradford Case, supra. Touart v. State, 173 Ala. 453, 56 So. 211.
It finally remains to consider whether or not the decision of the Board was justified under the facts. The limited appeal authorized by said § 330(42) restricted review by the circuit court to the question of whether or not the decision or order of the Board was supported by substantial and legal evidence, and our review here of the judgment of the circuit court is controlled by our rule of review by certiorarithat is whether or not that court's decision is supported by any legal evidence.
The record discloses that petitioner as fiscal officer and city clerk paid certain persons for services rendered the city without first including the names on the payrolls submitted to the director of personnel for approval and certification as required by § 24 of the law, § 330(44), Code 1940, Tit. 62, and the rules and regulations of the board; in some cases persons receiving compensation were for services rendered for positions in the classified service, although they had not stood examinations or been certified and appointed thereto as required by law, and in other cases the persons paid worked in positions in the unclassified service. Section 330(44) makes unlawful such payments before certification by the director of personnel. The current regulations of the Personnel Board provided for the dismissal, demotion or suspension (Rule 10) of any employee in the classified service who was guilty of "conduct unbecoming an employee in the public service." The board held and the circuit court affirmed that the commission of the aforesaid unlawful acts constituted substantial and legal evidence establishing that such conduct was "unbecoming an employee in the public service." While we, like the circuit court, are impressed that the decision of the board in demoting the petitioner was rather drastic in view of the fact that no bad faith on the part of petitioner was shown, 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 *633 that petitioner was guilty of conduct unbecoming an employee in the public service.
We are constrained to let the judgment stand.
Affirmed.
LAWSON, STAKELY, GOODWYN and MERRILL, JJ., concur. | August 18, 1955 |
414a5fa0-0417-4943-984d-ce295ef909ff | Bell v. Birmingham Broadcasting Company | 82 So. 2d 345 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 345 (1955)
George A. BELL
v.
BIRMINGHAM BROADCASTING COMPANY, Inc.
6 Div. 779.
Supreme Court of Alabama.
June 16, 1955.
Rehearing Denied September 22, 1955.
*346 Hogan & Calloway, and George Peach Taylor, Birmingham, for appellant.
Lange, Simpson, Robinson & Somerville, Wm. H. Cole, Birmingham, for appellee.
SIMPSON, Justice.
Plaintiff sued the defendant for a violation of plaintiff's right of privacy. From an adverse judgment the plaintiff has brought this appeal. For prior appeal where the pertinent rules of law were discussed, see Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So. 2d 314.
Plaintiff, a radio announcer of some experience, had called the 1950 University of Alabama football games for defendant. Evidence of the plaintiff tended to show that after the 1950 season some conversation was had with the defendant's agent in regard to plaintiff calling the games for the 1951 season. In February of 1951 plaintiff was interviewed by defendant's agent and inquiry made as to his availability to call the games for the coming season. Plaintiff informed him that he would be in position to call the games and there seems to have been a more or less general understanding that plaintiff would be employed by the defendant to call the games. However, the salary was not agreed upon, it being thought best to wait and see if plaintiff would call the baseball games and see how large a network defendant was able to line up for the football games. During the spring and summer defendant solicited sponsors and network stations, advising them that the plaintiff was going to call the games for them. Defendant also gave a story to a daily newspaper published in Birmingham which appeared with a picture of the plaintiff stating that he would call the games for the coming season for the defendant. When the time approached for the coming football season, instead of employing the plaintiff, the defendant employed another announcer and never employed the plaintiff. It is on this basis that the plaintiff contends that his privacy was violated by using his name and picture in the instances referred to. The defendant contended that the plaintiff had waived his right of privacy.
It was shown by the evidence that when the defendant's agent contacted the plaintiff in February, 1951, he told the plaintiff that the defendant wanted to get an early start in soliciting the sponsors and stations. During the trial the defendant was permitted to prove that it was the general custom and practice of radio stations to use the names of sports announcers in soliciting sponsors and network stations for sports events. The court in its oral charge to the jury instructed them that they could consider such custom in determining whether or not the plaintiff expressly or impliedly waived his right of privacy and consented to the use of his name and picture. To further elucidate this matter plaintiff sought to interrogate some of the witnesses as to whether or not it was the general custom and practice in the radio business to use an announcer's name in solicitation if the radio station did not have him under contract. The court sustained the defendant's objections to these questions. We entertain the view that this evidence was improperly excluded to the prejudice of the plaintiff. It had a direct bearing upon exactly what the rights and obligations of the parties were with respect to their dealings. By way of analogy we quote the following from Sampson v. Gazzam, 6 Port. 123, 30 Am.Dec. 578, and quoted with approval in Douglas & Mizell v. Ham Turpentine Co., 210 Ala. 180(2), 97 So. 650, 652: "`Where a custom or usage is proved to exist, in relation to a particular trade or pursuit, if *347 it be general, all persons engaged therein, are presumed to contract in reference to such usage.'"
Waiver is generally defined as the intentional relinquishment of a known right. 56 Am.Jur., §§ 2 and 15, pp. 102, 115. While it is to be conceded that intent necessary to constitute waiver may be implied from the act of the party involved, the inquiry still is what was the intent of the party as manifested by his actions. We think, therefore, that the plaintiff should have been permitted to show the extent and limit of the custom in the radio business by interrogating the witnesses as to whether or not it was the custom to use an announcer's name and picture when not under contract. For the error in sustaining the defendant's objections to this evidence, the judgment must be ordered reversed.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and MAYFIELD, JJ., concur. | June 16, 1955 |
41cc9514-9b39-46ab-869b-c7da2397c266 | Reed v. Hill | 80 So. 2d 728 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 728 (1955)
William E. REED
v.
Hon. Robert M. HILL, Judge.
8 Div. 726.
Supreme Court of Alabama.
May 26, 1955.
*729 Harry Strange, Russellville, for petitioner.
Mitchell & Poellnitz, Florence, for respondent.
SIMPSON, Justice.
This is a petition for a writ of mandamus by Reed, who was the plaintiff in a tort action against one Howell in the Law and Equity Court of Franklin County. The tort action grew out of a collision of motor vehicles.
Universal Underwriters Insurance Company filed a bill in equity for a declaratory judgment to determine whether or not it was liable as insurance carrier of Howell. The issues as finally developed, by bill and answer, seem to be whether or not Howell notified the Company of a substitution of vehicles or whether or not the requirement of such notice was waived. Along with petitioner's answer to the bill for declaratory judgment, he filed a demand for a jury trial of the issues raised by the answer, which demand was denied by the trial court. The object of the instant petition is to secure an order from this court directing the trial court to grant petitioner Reed a jury trial.
It may be conceded that a party to a bill seeking a declaratory judgment is entitled to a jury trial as a matter of right if he would have had such a right in the cause of action for which the declaratory relief may be considered a substitute. Tuscaloosa County v. Shamblin, 233 Ala. 6, 169 So. 234; Annotation, 13 A.L.R.2d 777.
But in all other cases a jury trial on issues presented by a bill in equity for a declaratory judgment is permissive only. § 164, Title 7, Code 1940. See Shamblin's case, supra (syl. 3).
The question then in this case is whether or not the issues presented by the bill for declaratory judgment and the answer thereto are legal ones which but for the bill petitioner could have demanded a jury trial at law.
Petitioner sued Howell in a court of law. He has shown no right to a legal cause of action against Howell's insurance carrier. See 46 C.J.S., Insurance, § 1191 and Goodman v. Georgia Life Insurance Co., 189 Ala. 130, 66 So. 649. The only right we know that petitioner could have against the insurance carrier is the equity proceeding provided for in § 12, Title 28, *730 Code 1940. That section gives to the plaintiff in judgment a vested interest by way of hypothecation in the amount due the insured by the insurer after the rendition of the judgment against the insurer. Macey v. Crum, 249 Ala. 249, 30 So. 2d 666; George v. Employers' Liability Assur. Corp., 219 Ala. 307, 122 So. 175, 72 A.L.R. 1438. This statutory proceeding is to enforce that right or interest by way of an equitable lien
created by the statute and enforceable only in equity. Therefore, the right to a trial by jury to determine a controversy purely legal in nature does not here obtain and the pertinent rule stated above is inapplicable.
Writ denied.
LIVINGSTON, C. J., and GOODWYN and MAYFIELD, JJ., concur. | May 26, 1955 |
2474a84e-3d9b-4d76-b313-19dc77037036 | Berness v. State | 83 So. 2d 613 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 613 (1955)
Francis Louis BERNESS
v.
STATE.
8 Div. 742.
Supreme Court of Alabama.
June 16, 1955.
Rehearing Denied November 17, 1955.
*614 John Patterson, Atty. Gen., and L. E. Barton and Owen Bridges, Asst. Attys. Gen., for petitioner.
T. Eugene Burts, Jr., Florence, opposed.
MAYFIELD, Justice.
The defendant, Berness, was convicted of murder in the second degree. The Court of Appeals reversed and remanded this judgment. The State, through its Attorney General, petitioned this court for certiorari to review and revise the judgment of the Court of Appeals. The reversal by the Court of Appeals was based on admonitions and instructions given to certain members of the jury, outside of the court house, during the noon recess, in the absence of the defendant. The pertinent interchanges between the judge and members of the jury were reported in the opinion which we here review:
*616 We granted certiorari to consider the State's contention that the Court of Appeals erred in holding "that any communication between the trial court and a member or members of the jury during recess and outside the courtroom negates the court's jurisdiction to render judgment". As a basis for the above pronouncement, the Court of Appeals relied on Neal v. State, 257 Ala. 496, 497, 59 So. 2d 797, 798, wherein this court held:
Neal v. State, above, was a criminal prosecution for a capital felony and this fact must be borne in mind when we consider the applicability of the above statement to the present factual situation.
We view the determinative questions here presented as: (1) Whether the strict and inflexible rule above quoted from Neal v. State has applicability in non-capital felony cases. (2) And, whether or not, the rule if applicable, should be applied to the case at bar. We are cited no cases wherein these precise questions have been decided by this court.
It is fundamental that a defendant has the right to be present at every stage of his trial for the commission of a felony. His presence is in fact essential to the validity of his trial and conviction unless there has been a clear and unequivocal waiver of this right by the defendant. Frost v. State, 225 Ala. 232, 142 So. 427. We are not here dealing with the absence of counsel from the courtroom during a part of the proceedings as was discussed in our very recent case of McCall v. State, Ala., 79 So. 2d 51. Any re-examination and comment upon that opinion by this writer would be obiter dicta.
Without recourse to decisions of other jurisdictions, let it suffice to say that we are clear to the conclusion that the admonitions and instructions given by the trial judge to the jurors, during the noon recess, in the absence of the defendant constituted error unless such irregularity was properly waived by the defendant.
We hold the view here, as in the case of Lee v. State, 244 Ala. 401, 13 So. 2d 590, 592, that the inflexible rule which prohibits the defendant from waiving his right to be present at any stage of his trial, should be limited to capital felony cases. This standard is the prevailing rule in most jurisdictions. In Lee v. State, supra, the following statements are found:
We now deal with the method by which the defendant's clear and unequivocal right to presence at every stage of the trial may be waived. The great weight of authority is summed up in the simple statement found in 23 C.J.S., Criminal Law, § 975, p. 311:
Our Alabama cases make it clear that the right of the defendant to be present when a felony verdict is returned cannot be waived, unless such waiver is made in the presence of the defendant, by his consent, or with his acquiescence. Consent or acquiescence cannot be presumed and must affirmatively appear from the record. Lee v. State, supra; Wells v. State, 147 Ala. 140, 41 So. 630; Cook v. State, 60 Ala. 39, 31 Am.Rep. 31. We see no reason why a less stringent rule should be applied to the defendant's "right of presence" at other stages of his trial.
We are of the opinion that a criminal defendant in a non-capital felony case may waive his continuous presence at the trial. But that this waiver must be of an affirmative and positive nature and made by him personally, as for example where he voluntarily absents himself from the courtroom during the conduct of his trial. Our holding that such conduct constitutes an affirmative and voluntary waiver of the constitutional right, personal to the defendant, is consistent with the holding in McNutt v. State, 25 Ala.App. 129, 142 So. 773, certiorari denied 225 Ala. 282, 142 So. 774.
Let us now bring these general principles to bear on the instant case. As was pointed out by the Court of Appeals, "the spontaneous actions of the very able trial judge were motivated by his earnest desire to see that this case was conducted according to all of the rules of trial procedure, the observance of which he had studiously enforced so long as the participants were under his direct and orderly control."
As laudable as were the attempts of the trial judge to antidote the drop of poison injected into the trial by the jurors' failure to observe his instructions; nevertheless, he was debarred from any intercourse relative to an important incident of the trial with the jurors except in the presence of the defendant, and also his counsel if counsel was reasonably available.
Objection to the admonitions and instructions given by the trial judge to the jurors in the absence of the defendant was made for the first time by motion for a new trial. A valid waiver of defendant's right could only be inferred from the defendant's, or his counsel's, failure to make proper objection and motion prior to the conclusion of the trial. The inference from the record is that the defendant personally had no knowledge whatsoever that such a conversation was taking place. And it is further inferable, that the contents of the conversation between the judge and jurors was unknown until such time as the judge dictated into the record his actions and conversation with the jurors on the hearing of the motion for new trial.
It is not necessary, however, for us to make these inferences to arrive at a proper decision of this case. For, if counsel was without power to waive this right which was personal to the defendant, the accused was not constitutionally uncloaked by his counsel's passive acquiescence.
We therefore conclude that the defendant, Berness, did not waive his right to be present at the interchange between judge and jurors that occurred outside of the court house.
It follows that the judgment of the Court of Appeals is due to be, and is, affirmed.
Affirmed.
*618 LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.
MAYFIELD, Justice.
The State's application for rehearing" is based on the following contentions:
In seeking a definition of the word "trial" by our Alabama courts, we are cited to the cases of Hirshfelder v. State, 19 Ala. 534, 539; Byers v. State, 105 Ala. 31, 16 So. 716; Denson v. Caddell, 201 Ala. 194, 77 So. 720; Lee v. State, 31 Ala.App. 91, 13 So. 2d 583. The State contends that these cases are authority for the proposition that a recess or any occurrence during the recess thereof, outside of the court house, is not a part of the "trial". We have carefully considered these cases and do not consider them authority directly, or by inference, for the proposition for which they were advanced. The State further cites the cases of State v. Neal, 350 Mo. 1002, 169 S.W.2d 686, 693; and State v. Spotted Hawk, 22 Mont. 33, 55 P. 1026, 1028. These cases are not applicable to the situation in the case at bar. The first case dealt with the defendant's absence from the court room during a motion to quash an information, and the second case dealt with defendant's absence during an argument on a demurrer to an information.
In a criminal cause, the term "trial" does not include the arraignment or other merely preparatory proceeding which may be taken prior to the time of the administering of the requisite oath to the jurors. Byers v. State, 105 Ala. 31, 16 So. 716, 717, supra; Hunnel v. State, 86 Ind. 431, 434; McCall v. United States, 1 Dak. 320, 46 N.W. 608, 611; United States v. Curtis, 25 Fed.Cas. pages 726, 727, No. 14,905; Commonwealth v. Soderquest, 183 Mass. 199, 66 N.E. 801, 802. The word "trial" when used in connection with criminal proceedings means proceedings in open court, after pleadings are finished, down to and including rendition of the verdict. Rosebud County v. Flinn, 109 Mont. 537, 98 P.2d 330, 333. Therefore, the Neal Case and the Spotted Hawk Case, supra, are not precedent for the present situation.
We cannot agree with the validity of the State's argument to the effect that as he court had declared a short recess, the "trial" was not then in progress so as to require the presence of the defendant at the time additional admonitions and instructions were given to some members of the jury by the presiding judge.
It is necessary for the orderly administration of justice that the trial court have disciplinary power over the jurors, the parties, and officers of the court, continuously from the beginning of the trial to the final return of the verdict. The manner in which the trial court exercises this discipline, is a matter of supreme interest to the defendant. Unless he voluntarily absents himself, he and his counsel, if reasonably available have a right to be present at every exchange between the judge and jury, where the conversation is germane to any important incident of the trial.
The State next contends that the instructions and admonitions which the distinguished trial judge gave the offending jurors was "an extrajudicial communication between judge and jury". On the contrary, the inquiry conducted by the judge among the offending jurors outside the court house went to the very heart and essence of the validity of the trial. The judge's investigation was directed to the question of whether or not some members of the jury had disregarded his instructions and admonitions just prior to the noon recess by having improper communication with a distant relative of the deceased girl *619 during the course of the trial. As laudable as were the motives of the trial court, the admonitions and additional instructions which he gave these jurors outside of the court house, were an important incident of the trial. This being true, it required the defendant's presence and the presence of his counsel, if reasonably available. The judge undoubtedly realized that unless he took immediate and summary action to see that his prior instructions were carried out by the jurors, he would have to declare a mistrial. Beyond peradventure, that was the reason that he did not recall the jury in the presence of the defendant.
Nevertheless, had the defendant and his counsel been present at the time the judge investigated this misconduct on the part of the jurors, they may well have deemed it advisable to request the trial judge to press the investigation further or give additional instructions or admonishments to the recalcitrant jurors. Had they been present, the defense may well have deemed the misconduct of the jurors sufficient basis for a motion for a mistrial. The defendant did not learn of the exact nature of the judge's finding until he dictated a statement into the record on motion for new trial. We cannot, therefore, say that this was error without injury. We believe the motion for a new trial should have been granted.
All contact between an impaneled jury, counsel for the parties, and other officers of the court, which does not occur in open court, should be avoided. However, we do not wish to be understood as saying that where there are normal exchanges of conversation between officers of the court, or others not connected with the trial or an important incident of the trial, that such conversations can be made the predicate for error.
Opinion modified and extended; application for rehearing overruled.
LIVINGSTON, C. J., and SIMPSON and STAKELY, JJ., concur.
LAWSON, GOODWYN and MERRILL, JJ., dissent. | June 16, 1955 |
fdea69da-9d39-4eca-9077-0c9d403d8788 | Stremming Veneer Co. v. Jacksonville Blow Pipe Co. | 83 So. 2d 224 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 224 (1955)
STREMMING VENEER CO.
v.
JACKSONVILLE BLOW PIPE CO.
5 Div. 627.
Supreme Court of Alabama.
November 3, 1955.
*225 Grady Reynolds and Reynolds & Reynolds, Clanton, for appellant.
Jos. J. Mullins, Clanton, for appellee.
PER CURIAM.
This is an appeal by defendant from a judgment in favor of plaintiff for goods and chattels sold and for work and labor done. The complaint is on the common counts. The defense was the general issue and the customary leave.
Prior to June 30, 1950, and in 1946 and 1947, plaintiff did much work for defendant in a plywood plant at Maplesville, Alabama. Defendant had two plants at Maplesville, plant No. 1 being across the railroad from plant No. 2. The work done by plaintiff included installing and servicing blowpipes and equipment to take sawdust and shavings to the furnaces. For that work defendant had paid plaintiff a large sum aggregating approximately $20,000 to $30,000. Plaintiff was then an unincorporated enterprise located in Jacksonville, Florida. Plaintiff became incorporated on March 15, 1948 in Florida, and began operations as a corporation on January 1, 1949. After this incorporation, and in 1949, plaintiff furnished labor and material for a dust collector for defendant's plant No. 1, and repaired some equipment there. On December 3, 1949 plaintiff sent defendant a bill for that service amounting to $3,365.08, less payments of $646 made to workmen on the job, which left a balance of $2,719.08. Defendant refused to pay it on account of defects claimed in the material and labor which had been supplied at plant No. 2.
The evidence shows that plaintiff had not qualified to do business in Alabama as a foreign corporation, and therefore could not recover the balance claimed for said work and material furnished for the dust collector at plant No. 1 in 1949. On June 30, 1950 the plaintiff qualified to do business in Alabama, and on that day Mr. Montgomery, president and general manager for plaintiff, went to Maplesville, where defendant's plants were situated, and saw Mr. Stremming, president and general manager of defendant, and they had some sort of verbal agreement. Mr. Stremming testified that he told Mr. Montgomery they (his corporation) would not pay him for the dust collector at plant No. 1, the amount of which was $2,719.08, unless he made the system work properly in plant No. 2. Mr. Montgomery testified that on June 30, 1950 at Maplesville, he agreed with Mr. Stremming after he examined the deficiency caused by the overload in plant No. 2, that he would correct and guarantee it if defendant would agree to pay the $2,719.08. To this defendant agreed.
Plaintiff claims to have written a letter on July 3, 1950 to defendant confirming the verbal agreement of June 30th. This letter named certain items of work and material necessary to correct the troubles in the blowpipe system at plant No. 2 and from Graham's plant to plant No. 1, and recited that in consideration of the above defendant *226 was to pay plaintiff $2,719.08 when the plants were performing properly. It is noted that this is the exact amount of the balance of the invoice for the dust collector at plant No. 1 claimed by plaintiff, which it could not collect by law because plaintiff in performing that service was a foreign corporation and not qualified to do business in Alabama.
A carbon copy of the above letter was introduced in evidence. No notice to produce the original had been given before the trial began. What amounts to a demand was then made, but defendant did not have the original letter in court. Plaintiff testified that the original was properly addressed, stamped and mailed to defendant. The court overruled the objection and defendant excepted. Plaintiff also introduced a letter from defendant to plaintiff of July 12, 1950 referring to its letter of July 3, 1950, stating "your letter seems to conform very much with our conversation with the exceptions of you not having in there about repipping two belt sanders setting next to the corner of the roll feed sanders".
It is clear that error occurred in overruling the objection to the introduction in evidence of this carbon copy. The notice to produce on the trial or before the trial must be such as will enable a compliance. Clark v. Henderson, 244 Ala. 237 (17), 12 So. 2d 743; Sovereign Camp W.O. W. v. Ward, 196 Ala. 327(4), 71 So. 404; Thomas Bros. v. Williams, 170 Ala. 522, 54 So. 494. That principle is of course admitted, but it is insisted that the ruling was without injury to defendant since the letter by defendant of July 12th was an admission that such letter contained a true statement of the contract. Phillip Olim & Co. v. C. A. Watson & Sons, 204 Ala. 179, 85 So. 640. But defendant's letter of July 12th was in answer to plaintiff's letter of July 3d, not an answer to what purports to be a copy of that letter. Defendant was entitled to have evidence introduced according to the rules. But a violation must appear to be prejudicial. Supreme Court Rules, rule 45, Code 1940 Tit. 7 Appendix. Defendant did not deny having the original letter of July 3d though it was not in court. If the instrument offered was not a true copy of the letter of July 3d defendant could have quickly so discovered during the progress of the trial and called attention to it since the original was in his office some fifteen miles from the place of trial. We do not see where the substantial rights of defendant were violated by this error.
A similar legal status applies to a letter of July 19th by plaintiff to defendant. A carbon copy of it was offered and allowed over objection because it was secondary and no notice to produce the original had been given. We fail to see any prejudice in this ruling, though erroneous, considering the nature of the letter.
The contract should be treated as represented by the letter of July 3d, the answer to it of July 12th and the letter of July 19th. True, the letter of July 12th added a feature which was not expressly accepted by plaintiff, but was impliedly accepted in the letter of July 19th. The question was, as the court charged the jury, whether defendant owed plaintiff anything for labor and material under the contract of June 30, 1950, which were supplied subsequent to that date. Defendant contended that plaintiff did not perform the contract as represented by the confirmatory letters. Plaintiff claimed to the contrary. The verdict awarded plaintiff one-half of the claim.
Plaintiff introduced a document which was a carbon copy of an original memorandum made in quadruplicate by plaintiff. No one of them was sent to defendant and it had not notice of or connection with such memorandum. Plaintiff claimed the right to use it as evidence under section 415, Title 7, Code, as a memorandum "made in the regular course of any business, and [that] it was [in] the regular course of the business to make such memorandum". Plaintiff made proof in accordance with that statute. But it is not every memorandum made in the regular course of business, according to a custom in that business, that is admissible under the statute. Section 415, supra, does not operate *227 to admit evidence which is inherently inadmissible. "Opinions circumventing the opinion rule are no more admissible in a memorandum in evidence than they would be in oral testimony." Mahone v. Birmingham Electric Co., 261 Ala. 132(3), 73 So. 2d 378, 381; Deal v. Hubert, 209 Ala. 18, 95 So. 349. A party to a suit cannot make an office memorandum containing conclusions, opinions, hearsay and irrelevant statements, which are illegal evidence, and cause it thereby to be admissible against an opponent when it may have a prejudicial effect on him. Deal v. Hubert, supra.
In the instant case this memorandum was described by plaintiff's witness as a shop order, "instructions to the shop about jobs they are to do as well as instructions to the installation mechanic as to work he is to do when he gets on the job and receives the materials that are shipped to him and which are itemized on this shop order", and that it is made in four copies. "The original is kept in the shop order book and the first carbon copy is sent to the shop because they sometimes get them messed up in the shop and so this is the shop order that was sent to the shop and the writing on here is the writing of the superintendent of the shop where it says here, `Taken by our truck, July 6th, 1950,' and the check marks there indicate that the material has been shipped." The memorandum consists first of instructions to the installation mechanic, containing the expression of an opinion about the cause of the trouble; his interpretation of the agreement; what Mr. Graham said about some features of it; what is necessary to be done, with an itemized statement of the material needed. Much of this would be inherently incompetent as evidence given by a witness having knowledge and expressing the views there set out. It cannot be made competent by putting it in a memorandum and claiming legality under section 415, supra. The judgment should be reversed for that error.
It is also insisted that the motion for a new trial should have been granted because the verdict split the claim in half, without evidence to support it, and is said evidently to be a compromise. There was no proof offered on that contention, if any were admissible.
In order for a verdict to be set aside because it is a compromise, it should appear that some of the jurors "surrendered their conscientious convictions as to some material issues or right of recovery in return for certain concessions by the other jurors on another issue". 89 C.J.S. Trial, § 472, p. 112. And "where the verdict which the jury returns cannot be justified upon any reasonable hypothesis presented by the evidence, it ought obviously to be set aside. Neither the court nor jury have the right to arbitrate or compromise differences between the parties". Holcombe & Bowden v. Reynolds, 200 Ala. 190, 75 So. 938; Metropolitan Life Ins. Co. v. Ray, 28 Ala.App. 357, 184 So. 282.
We are unable to say that the jury did not give due consideration to the amount of the controversy, and did not fix the damages upon a consideration of the merits of the respective contentions.
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.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON, GOODWYN and MAYFIELD, JJ., concur. | November 3, 1955 |
cd8f7c89-2d31-47b4-a399-b390c27e7b3b | Gayden v. State | 80 So. 2d 501 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 501 (1955)
Lewis R. GAYDEN
v.
STATE.
3 Div. 722.
Supreme Court of Alabama.
May 12, 1955.
*502 Robt. Straub, Asst. Atty. Gen., and Wm. F. Thetford, Circuit Sol., Montgomery, for the petition.
Hill, Hill, Stovall & Carter, Hill, Hill, Whiting & Harris, Montgomery, opposed.
SIMPSON, Justice.
The writ of certiorari to the Court of Appeals was granted and on a studious consideration of the case the judgment of that court will be ordered affirmed.
The opinion of the Court of Appeals impresses us as such an apodictical application of the fundamental principle of all free governments that the law secures to every person who is brought to trial on a charge of crime that the acts which constitute his alleged guilt shall be set forth with reasonable certainty in the indictment he is called upon to plead to, that, except for the urgent argument of counsel and the dissenting opinion, further elaboration would seem a redundancy.
Indictments must always conform to the mandates of our organic law. The emphasis in our cases "that in all criminal prosecutions, the accused has the right * * * to demand the nature and cause of the accusation" now § 6 of the Constitution of 1901is not meaningless tautology, but one of the cornerstones of our Bill of Rights. As was observed by the late lamented Mr. Justice Brown in Spooney v. State, 217 Ala. 219, 222-223, 115 So. 308, 312;
And that provision and the others of our Bill of Rights "are to be largely and liberally construed in favor of the citizen." Dorman v. State, 34 Ala. 216, 238.
We are further restrained in this case by the requirements of the Fourteenth Amendment to the Constitution of the United States. The following utterances by our Federal courts are pertinent: "No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal." Cole v. State of Arkansas, 333 U.S. 196, 201, 68 S. Ct. 514, 517, 92 L. Ed. 644. "The petitioner charged that he had been denied any real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process * * *." Smith v. O'Grady, Warden, 312 U.S. 329, 334, 61 S. Ct. 572, 574, 85 L. Ed. 859. "An intelligent and full understanding by the accused of the charge against him is a first requirement of due process." Bergen v. United States, 8 Cir., 145 F.2d 181, 187.
Regardless of some ill-considered, loose expressions in some of the cases, the law is and always has been that it is not enough to charge against a defendant a mere legal conclusion as justly inferential from facts not set out in the indictment. United States v. Almeida, 24 Fed.Cas. pages 775, 776, No. 14,433.
See also Williams v. State, 12 Tex.App. 395.
The two counts of the indictment under consideration are numbers 5 and 6, as follows:
For a better understanding of the question, a breakdown of the various alternatives (eleven in number) prescribed by the statute and charged in the indictment would be useful. Rather than charging these various alternatives in the two counts of the indictment, suppose the defendant had been charged, as would have been possible, in twenty-two counts, or in twenty-two indictments; that in eleven of these the defendant is charged with obtaining morphine and in the other eleven with obtaining opium. The indictment or counts so charging in their numerical order would be that the prescribed drug was obtained by:
The effect of the argument by the State and the dissenting opinion is that a defendant in Alabama can be put to trial on the above twenty-two charges without any additional information in any of the instances as to the acts he is charged with having committed because (1) the charges are in the words of the statute and (2) the crime charged is one against the publica rather unusual innovation in criminal pleading, in our mind.
*504 By no means do we intend to detract from the general rule that it is sufficient to charge the elements of a statutory offense in the words of the statute. In passing, however, it is well to note that the real contention before us is not that the indictment does not charge an offense, but that the defendant is not apprised of the thing or things that he is alleged to have done in such a way as that they amounted to a crime. Stated another way, it may be conceded that the defendant is sufficiently informed of the crimes with which he is charged, but it by no means follows that he has been sufficiently informed of the acts which allegedly constituted those crimes. As example, if the indictment had charged that the defendant "did commit murder," he would be informed of the crime charged against him, but no student of the law with the slightest conception of constitutional liberty would suggest that he could be put to trial on such an indictment against his will. See 1 Wharton, Criminal Proceedings, § 270 (10th Ed., 1918), and authorities supra. So, a parallel to the general rule that a crime may be charged in the language of the statute is another contemporary and equally important principle that it is not sufficient if to do so would deprive the defendant of a constitutional right. As was said in United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819:
The following statements illustrate when an indictment may and may not properly be drawn in the words of the statute: "Undoubtedly, the language of the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged." United States v. Hess, 124 U.S. 483, 487, 8 S. Ct. 571, 573, 31 L. Ed. 516. "It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species,it must descend to particulars. * * * A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances." United States v. Cruikshank, 92 U.S. 542, 559, 23 L. Ed. 588 (this case apparently decided before the practice of using bills of particulars became prevalent in federal courts, 4 Barron, Federal Practice and Procedure, p. 32). See also State v. Seay, 3 Stew. 123, 131; Danner v. State, 54 Ala. 127; Grattan v. State, 71 Ala. 344; Rivers v. State, 97 Ala. 72, 12 So. 434. These two related principles are so well understood it is hardly necessary to mention them except to point out that there is nothing magical about the words of the statute concerning an indictment charging in that language when a person's constitutional rights are involved.
The classification of the offenses charged in the indictment as against the "public" rather than against "persons" or "persons and property" in order to avert specificity of allegation is by no means persuasive. We have found no case nor have we been directed to one which asserts the proposition that the defendant is entitled to less (or no) constitutional protection when he is charged with a crime against the public. My brethren of the minority have evidently been led astray by the recognized rule that when a crime is against the person the indictment must allege the name of the person and when it is against property the owners of the property must be stated. But it is a pure illusion, to say that under our cases when persons or property are involved in crimes "against the public" the persons or owner of the property need not be set forth *505 in the indictment. As a general proposition, it may be safely asserted that in crimes against property an essential element is that the property involved is not that of the defendant and so to allege that the property belonged to a particular person shows it not to have been the property of the defendant. But if that were the only office of the allegation it could be accomplished by other means. The fundamental reason, as we see it, that the names of persons must be alleged in these two instances is not by reason of any magical classification of the offenses, but because by the very nature of the crimes it is generally necessary to make such allegations in order to inform the defendant of the acts he is charged with having committed.
To say, as does the minority opinion, that less specificity of allegation is required where the indictment charges a so-called "public offense" than an offense against "persons" or "persons and property" is, to our minds, a complete non sequitur of the constitutional mandate that every defendant is entitled to know with reasonable certainty the nature and cause of the accusation he is to defend against.
The theory is illustrated in one of our Code sections. Section 245, Title 15, provides in substance that when an offense has been committed upon or in relation to quasi public property or belongs to an association or collection of individuals, the indictment need not allege the ownership, but the property must at least be described by the name by which it is commonly known "or in any other manner which may sufficiently identify the property."
Likewise apposite is the holding in Grattan v. State, 71 Ala. 344, where the indictment merely charged the defendant did "unlawfully and knowingly buy cotton in the seed." The court held:
Thus it seems that the rule requiring the allegation of the name of the owner of the property was intended to inform the defendant rather than to satisfy formalism. Though steadfastly maintaining that the classification of offenses is immaterial with reference to definiteness in an indictment, the essential being that reasonable certainty of allegation is required in all cases, it is to be noted that the crime charged in the Grattan case is more in the nature of an offense against the "public" rather than one against "property" or "persons."
In Rivers v. State, 97 Ala. 72, 12 So. 434, it was charged that the defendant offered one Warren three dollars in money, "with intent to induce or influence said Warren to commit a certain crime punishable as a felony, to wit, the crime of perjury * * *." Again insisting that classification is immaterial, it will be noted that this is a crime against the "public." The charge is more certain than the twenty-two charges lodged against the defendant in the case before us. Yet the court held it to be constitutionally deficient for failure to allege the facts to be sworn to, the person or court before whom the oath was to be taken, and the legal proceedings involved and the names of the parties.
The case of Barnett v. State, 54 Ala. 579, involved a charge of unlawfully uttering a paper to serve the purpose of money. Again insisting that classification makes no *506 difference, it would seem that this was a crime against the public. There the court stated:
True, as pointed out in the opinion of the minority, the defendant in the case at bar is not charged with forgery, etc., but only with obtaining the drugs by such means. But in the Barnett case the instrument involved was not the "gist of the action" either, but the court said the paper had to be described. In the Grattan case the ownership of the cotton was not important, but the court said that the indictment should charge from whom the defendant was alleged to have bought it. And in the Rivers case the defendant was not charged with perjury, but the court held that the facts would have to be alleged which it was claimed would have amounted to perjury. A fortiori, therefore, the defendant at bar cannot be properly charged with unlawfully obtaining a drug by fraud, or forgery, or misrepresentation, etc., without the indictment setting out the facts which constituted the alleged crimes.
It will be noted also that the defendant is charged with obtaining the drugs by "use of a false name." Section 259 of Title 15, Code 1940, contains three forms involving false pretenses. We note that forms 59 and 60 set out the name used and the amount received, and form 61 sets out the name used and the substance of the instrument used in the alleged crime. The indictment in the instant case does not conform in principle to these approved forms.
An indictment somewhat similar to but more specific than the one in the case at bar was held to be defective under the Fifth and Sixth Amendments of the Constitution of the United States. Skelley v. United States, 10 Cir., 37 F.2d 503.
The opinion of the minority indicates that cases from other jurisdictions are not persuasive, but proceeds to cite some as supportive of its holding. Simpson v. State, 129 Fla. 127, 176 So. 515, 516, is of no help to that end. The indictment in that case charged the defendant with selling *507 "eight cigarettes containing cannabis, from which the resin had not been extracted." It also charged that the act was committed on the 15th day of March, 1934. Without approving the indictment in that case, it is readily seen that it is much more definite and certain than any of the twenty-two charges leveled against the defendant in the case before us.
The case of People v. Lee Foon, 275 N.Y. 229, 9 N.E.2d 847, is also cited by the minority, but it hurts more than helps their cause. The dissenting opinion quotes only the first sentence of a paragraph in that case. The entire paragraph reads:
It is also suggested that we should follow the New Mexico form which is asserted to be, "that A. B. did falsely make (or alter) a prescription for a narcotic drug." 1953 Comp. § 54-7-40. If we are to learn anything about criminal procedure from New Mexico, it would seem that a better place to start would be with the following Code provision:
That a bill of particulars may supplement a vague and indefinite indictment so as to afford an accused due process of law is well settled, People v. Bogdanoff, 254 N.Y. 16, 171 N.E. 890, 69 A.L.R. 1378; Commonwealth v. Jordan, 207 Mass. 259, 93 N.E. 809; Eagleston v. United States, 9 Cir., 172 F.2d 194, certiorari denied, 336 U.S. 952, 69 S. Ct. 882, 93 L. Ed. 1107, but a defendant in our jurisdiction is not afforded the benefit of such procedure. So we must advert to the original thesis that if his constitutional rights are to be protected, such matters must be set out in the indictment.
It is but to repeat the axiomatic that due process requires that no person shall be deprived of life, liberty or property without a fair hearing, but one cannot have a fair hearing unless notified of the charges to be defended against. "Fraud," "misrepresentation" and "concealment of a material fact" and the other crimes charged are vague terms and no civil pleading could stand the test of apt demurrer if a complaint merely averred "plaintiff claims of defendant $100 for that defendant did take such amount of money from plaintiff by `fraud' or by `misrepresentation' or by `concealment of a material fact' or etc." Certainly property cannot be of a higher value or entitled to greater protection in the eyes of the law than liberty.
With due respect for the dissenting opinion and the able author thereof, we are constrained to say that it impresses us as more significant for what it does not say than for what it undertakes to say. No analysis is made to demonstrate that the defendant could under our constitutional guaranties get a fair trial under the indictment as framed. But it is said that the opinion conforms to previous decisions of this state "for over 100 years". In this there is disagreement, but to entertain such *508 a view would be no more persuasive nor sustain the soundness of the theory. Wisdom sometimes drags its tardy feet and comes late, but when it comes it should not be rejected because prior generations have been deprived of its beneficent glow. The able solicitor who argues for the State says that the opinion of the Court of Appeals would commit the "prosecuting officials of this state upon an uncharted sea full of hidden rocks and shoals." This is a debatable question, but if so we would answerif that be the sea of constitutional liberty then let us embark at once.
Affirmed.
LIVINGSTON, C. J., and MAYFIELD, J., concur.
LAWSON, J., concurs in the result.
STAKELY, GOODWYN and MERRILL, JJ., dissent.
MERRILL, Justice (dissenting).
The opinion which follows, except for the last five paragraphs, was prepared as the opinion of the Court, but it was not accepted by the majority.
The defendant was convicted of violating § 255, Title 22, Code of 1940, as amended, which is a part of the Narcotic Drug Act. The Court of Appeals held that the demurrer to Counts 5 and 6 of the indictment should have been sustained. The State filed a petition for certiorari to have that ruling reviewed by this Court and we granted the writ.
The Court of Appeals held Counts 1, 2, 3, 4 and 7 of the indictment good as against demurrer, following the case of Coshatt v. State, 37 Ala.App. 422, 69 So. 2d 877, which is exactly in point, and other cases cited. The sufficiency of those counts is not now before us.
The question presented to us relates to that part of the opinion of the Court of Appeals which holds that Counts 5 and 6 were subject to demurrer because "The indictment * * * in no manner or means apprised the accused of the specific offense which he was called on to defend, nor did it give him any sort of notice of the circumstances upon which the prosecution was based."
The pertinent part of the statute, Code of 1940, Title 22, § 255, Pocket Part, reads: "Any person who possesses, sells, furnishes, or gives away any cocaine, alpha or beta eucaine, opium, morphine, heroin, or isonipecaine contrary to the provisions of this chapter, or obtains or attempts to obtain a narcotic drug by fraud, deceit, misrepresentation or subterfuge, or by the forgery or alteration of a prescription or written order, or by the concealment of a material fact, or by the use of a false name or the giving of a false address, is guilty of a felony, and upon conviction for the first offense shall be imprisoned for not less than two nor more than five years. * * *"
Counts 5 and 6 of the indictment were identical except that count 5 identified the drug as opium and count 6 substituted the word "morphine" for opium. Count 5 charged that the defendant "did obtain a narcotic drug, to-wit: opium, by fraud, deceit, misrepresentation or subterfuge, or by the forgery or alteration of a prescription or written order, or by the concealment of a material fact, or by the use of a false name or the giving of a false address."
Generally speaking there are three types of crimes under the laws of this State. They are:
1. Crimes against persons, examples of which are murder, assaults, rape, defamation, etc.
2. Crimes against persons and property, examples of which are robbery, larceny, false pretense, trespass by cutting timber, etc.
3. Crimes against the public, examples of which are gaming, violating the prohibition laws, practicing law, medicine, or dentistry without a license, vagrancy, and one like the case at bar, violating the narcotics *509 law. Of course, as stated in Wharton's Criminal Law, Vol. 1, § 14, "All crimes are crimes against the public. But crimes directly affecting persons or individuals are uniformly considered crimes against such person or individuals." Wherever in this opinion we refer to crimes against the "public" we are referring to the third type of crime listed supra as distinguished from crimes directly affecting persons or persons and property.
Counts 5 and 6 literally follow the language of the statute, and as stated in the opinion of the Court of Appeals, the general rule is that an indictment which substantially follows the language of the statute is sufficient. 12 Ala.Digest, Indictment & Information, However, after recognizing the general rule, the Court of Appeals cites every case listed in Indictment & Information, as exceptions to the general rule, except the case of Mitchell v. State, 248 Ala. 169, 27 So. 2d 36, and Collins v. State, 28 Ala.App. 400, 185 So. 779 (Pocket Part), and that court, as well as we, recognize that they are not applicable to the question before us. It is fitting that we consider the cases cited in the opinion as exceptions, and as we shall demonstrate, there is a scarcity of cases where the offense was one against the "public". But first we note a few code sections from the Code of 1940, Title 15:
We now proceed to analyze the cases cited in the opinion of the Court of Appeals. The case of State v. Brown, 1837, 4 Port. 410, was decided on the point that the indictment failed to follow the words of the statute. The court said: "The indictment in this case not conforming to the terms of the statute defining the offense, the court below should have arrested the judgment." The statement quoted in the opinion of the Court of Appeals was not necessary for a decision in that case.
The case of Turnipseed v. State, 1844, 6 Ala. 664, wherein the indictment was for inflicting cruel punishment upon a slave and was thus a crime against a person, was like the Brown case, supra, decided prior to the adoption of the chapter on indictments, which first came into the Code of 1852.
The indictment in Anthony v. State, 1856, 29 Ala. 27, charged "That Anthony, a slave, the property of Elias G. Hodges, did attempt to poison Elias G. Hodges, a white person, and Mary C. Hodges, a white person." The statute is set out in the first sentence of the opinion and a reading of it shows that the indictment did not follow the language of the statute.
In Carter v. State, 1876, 55 Ala. 181, the indictment was for illegal voting. The Court of Appeals is correct that this court held the indictment "should have shown that the election was one for county and state officers." But that averment was necessary if the statute was to be followed, because the statute, Code of 1867, § 211, stripped of qualifications said: "Every white male citizen of age of 21 years * * * is * * * a qualified elector, and may vote * * * for all officers elective by the people." Emphasis supplied. The court said: "The indictment ought to *510 have shown that the election (general or special) was one for county or state officers or for what officers it was held."
The indictment in Grattan v. State, 1882, 71 Ala. 344, attempted to charge an offense against person and property and the court correctly held that the ownership of the seed cotton which had been bought or the name of the vendor should have been alleged.
The next case cited is Watt v. State, 97 Ala. 72, 11 So. 901. That case holds that the indictment, drawn in identical compliance with the statute, was not subject to demurrer.
The charge in Miles v. State, 1891, 94 Ala. 106, 11 So. 403, was for defamation, which is an offense against a person. The court correctly ruled that the original affidavit was "insufficient to authorize the issue of a warrant of arrest."
In the case of Jackson v. State, 1938, 236 Ala. 75, 182 So. 83, the indictment charged that the accused, "`did possess, keep, own, set up, operate, or conduct, or did permit to be set up, operate, or conducted, a gambling device, contrary to law.'" The Court of Appeals had said:
The Court of Appeals reversed both the Likos and the Jackson cases. On certiorari this Court said:
This Court remanded both cases to the Court of Appeals whereupon they were both affirmed.
The offenses charged in the Jackson and Likos cases, supra, were offenses against the "public". The averments were in the alternative and no facts were set out. There is no contention in the instant case that the indictment fails to describe sufficiently or completely the narcotic which the defendant is alleged to have fraudulently obtained.
In Cheshire v. State, 1913, 8 Ala.App. 253, 62 So. 994, the indictment attempted to charge false pretense in securing money from an insurance company. We are impressed with and concur in the final statement in the short opinion of the court: "In fact, it [the indictment] is not (as set out in the record) an intelligible statement of any offense."
The indictment in State v. Dodd, 1919, 17 Ala.App. 20, 81 So. 356, followed the language of the statute and the Court of Appeals reversed the order of the lower court sustaining a demurrer to the indictment, even though the offense charged was against a person and property.
In the case of Jackson v. State, 1952, 36 Ala.App. 466, 58 So. 2d 901, 902, the Court of Appeals held that the indictment charging malicious injury to property without stating *511 the name of the owner of the property was demurrable. It was also said:
The indictment in Bazzell v. State, 1919, 16 Ala.App. 663, 81 So. 183, was for false pretense, an offense against persons and property. It did not follow the form prescribed by the statute. It charged the false pretense as having been made to one Wilson to get fertilizer from a fertilizer company or one Narramore, and the court pointed out the defect in the sentence following that part of the opinion quoted in the opinion of the Court of Appeals, viz.: "Where the indictment alleges that the false pretense was made to one person and that the goods were obtained from another, it is subject to demurrer, unless it shows some relation between the person to whom the pretense was made and the other, with reference to the title or possession of the goods."
In Addington v. State, 1916, 16 Ala.App. 10, 74 So. 846, 851, the court said: "The indictment is not subject to demurrer because several matters are alleged as false pretenses, some of which constitute false pretenses within the statute, and others do not. The averments as to those not within the statute will be treated as surplusage, unless they are descriptive averments. * * *"
It was held in Jones v. State, 1937, 28 Ala.App. 254, 182 So. 402, another false pretense case, that the counts in the indictment followed the code form and the demurrers to each were properly overruled.
The case of Holloway v. State, 37 Ala. App. 96, 64 So. 2d 115, certiorari denied 258 Ala. 558, 64 So. 2d 121, holds that the State failed to prove the material allegations of the indictment for false pretense and the defendant was due the general affirmative charge.
We now consider some of the cases dealing principally with crimes against the "public" where the indictment did follow the words of the statute.
In Allen v. State, 33 Ala.App. 70, 30 So. 2d 479, 481, the accused was indicted for selling adulterated milk which is prohibited by § 188, Title 2, Code of 1940. The indictment charged that the accused "`did sell an article of food, namely, milk, which was adulterated in that it contained added water, contrary to Title 2, Section 306 of the Code of Alabama 1940.'" The Court of Appeals held that the incorrect reference to the code section in the count was surplusage but the count "adequately informed the accused of the offense he was charged with committing, and the court properly overruled the demurrers thereto."
In Finley v. State, 28 Ala.App. 151, 181 So. 123, 124, the indictment charged five defendants with violating § 596, Code of 1923, of the Corrupt Practice Act, § 282, Title 17, Code of 1940. Twenty-five grounds of demurrer were held properly overruled and the court said:
The indictment in Gideon v. State, 28 Ala.App. 177, 181 So. 126, charged that the accused "`did possess, keep, own, set up, operate, or conduct, or permit to be set up, operated or conducted a gambling device, towit: a machine mechanical device, contrivance, appliance, or intervention, *512 in the use of which a consideration was paid or deposited, and there was gambling or the hazarding of small amounts of money or property to win larger amounts of money or property, against,'" etc.
The defendant demurred that the alleged device is not named or described to show that it is such a device as prohibited by law; that it does not aver facts to show that it was unlawful for the defendant to possess it; "that the indictment is in the alternative, and some of the acts charged are innocent acts." The Court of Appeals said, after quoting the general rule:
In Harris v. State, 28 Ala.App. 528, 189 So. 787, 789, it was charged that the defendant "`did (set up) carry on, or was concerned in setting up or carrying on a lottery or device of like kind (or gift enterprise), or a scheme in the nature of a lottery (or gift enterprise); or did sell or dispose of a lottery or gift enterprise ticket, or ticket in a scheme in the nature of a lottery (or gift enterprise; or did receive money or take an order for a lottery or gift enterprise) ticket, or ticket in a scheme in the nature of a lottery (or gift enterprise) or was interested or concerned in selling or disposing of a ticket in a lottery (or gift enterprise), or a scheme in the nature of a lottery (or gift enterprise), or did act for or represent another person in selling or disposing of such a ticket, against'", etc.
The Court of Appeals said:
The conviction was affirmed.
The indictment in Davis v. State, 16 Ala. App. 149, 75 So. 825, 826, was for train wrecking. The Court of Appeals said: "The several counts in the indictment follow almost literally the words of the statute. Acts 1911, p. 381. The demurrers thereto were properly overruled."
In Thomas v. State, 156 Ala. 166, 47 So. 257, 258, the indictment charged that the defendant "`willfully administered to Onether Crawford, who was a pregnant woman, a drug or substance, or used or employed an instrument, to procure her miscarriage; the same not being necessary to preserve her life, and not done for that purpose, against'", etc.
Judge Anderson wrote:
*513 In Riley v. State, 32 Ala.App. 180, 23 So. 2d 10, 11, the accused was charged with violating the Alabama Food and Drug Act, Code of 1940, Title 2, Article 18, § 304. Twenty-seven grounds of demurrer were overruled. The Court of Appeals said:
The indictment in Clark v. State, 21 Ala.App. 207, 106 So. 872, under Title 29, § 131, charged that the accused "`did manufacture, sell, give away, or have in possession a still, apparatus, appliance, or device or substitute therefor, to be used for manufacturing prohibited liquors or beverages, against'", etc.
The grounds of demurrer were that the indictment is vague and uncertain, failed to inform the defendant of the offense with which he is charged and the indictment failed to describe the still, apparatus, appliance, or device, or substitute therefor and that it charged no offense. The Court of Appeals said: "Demurrers were interposed to count 2, but were overruled, and properly so."
The indictment in Porter v. State, 20 Ala. App. 74, 101 So. 97, 98, charged distilling and possession of a still. The court said: "(2) The demurrer to the indictment was properly overruled. Each of the two counts of the indictment followed substantially the language of the statute defining the offense, and was sufficient."
Nix v. State, 27 Ala.App. 94, 166 So. 716, 717, while not strictly a case in which a "public" offense was involved, was concerned with the giving of a worthless check but the complaint did not set the check out verbatim. The court said:
In Jordan v. State, 26 Ala.App. 122, 156 So. 642, the court said:
Perhaps we should mention some of our code forms. There is no particular magic about one of these forms. The legislature merely prescribed a short, acceptable statement of pleading to be used in indictments for certain offenses. This court said in Jinright v. State, 220 Ala. 268, 125 So. 606, 607,
Thus we see that Section 6 of the Constitution of Alabama guarantees the right of the accused to be informed of the nature and cause of the accusation and it is said in the opinion of the Court of Appeals that the counts under consideration "in no manner or means apprised the accused of the specific offense which he was called on to defend."
Our code forms of indictment are found in Code of 1940, Title 15, § 259. In the light of the constitutional requirement and the objection in this case as to lack of information, we mention four forms, all of which deal with "public" offenses.
Form 22.Betting with a minor: "A. B., being of full age, bet with C. D., a minor." The statute, § 268, Title 14, contains several alternatives.
Form 71.Lotteries: "A. B. set up, or was concerned in setting up or carrying on, a lottery." The statute, § 275, Title 14, is very comprehensive and the word "or" is used at least 25 times.
Form 85.Physicians: "A. B. did practice medicine or surgery without a license and contrary to law." The accused is not informed as to whom he may have treated or offered to treat, what system of treatment he is charged with using, whether he is charged with having written prescriptions and if so, how many, or where it was, or what act or acts are charged to him, but we have used the form for many years.
Form 111.Vagrants: "A. B. was a vagrant." The statute, § 437, Title 14, contains 13 subdivisions, proof of any one of which will support a conviction for vagrancy. The accused would not be informed, for example, as to whether he was charged with being an able-bodied idler, a bootlegger, a drunkard, a professional gambler, a beggar or a prostitute, but the indictment in the words of the form has been held good where it was urged that it violated the Constitutions of Alabama and of the United States.
We have read many cases from other jurisdictions but find that they are of little help when it comes to deciding a question which is essentially one of the proper form of pleading in this state. For example, § 422 (now § 3305) of the Public Health Law of New York, McK. Consol. Laws, c. 45, which is the same as our § 254, Title 22, provided:
The charge was that the defendant "`unlawfully did possess and have control of a certain narcotic drug.'" In the face of objections that no crime was charged and that it was not alleged what narcotic drug was possessed, five members of the court held:
In New Mexico, where the statute is practically identical with ours, the form for indictment for false making of a prescription is, "That A. B. did falsely make (or alter) a prescription for a narcotic drug" and for uttering a false prescription, "That A. B. did utter and publish as true a certain false prescription for a narcotic drug, well knowing the same to be falsely made (or altered)." Vol. 8, New Mexico Statutes 1953, § 54-7-40. We do not cite these indictments with approval but merely to demonstrate the divergence in the requirements of some states and the contrast with the model from Nevada which appears in the opinion of the Court of Appeals.
*515 The Supreme Court of Florida had trouble with the question of an indictment under their Uniform Narcotic Drug Act, F.S.A. § 398.01 et seq. In the case of Simpson v. State, 129 Fla. 127, 176 So. 515, 517, the defendant was charged with unlawfully selling "`eight cigarettes containing cannabis, from which the resin had not been extracted.'" The defendant urged in his motion to quash the indictment that the indictment charged no offense, the allegations were so vague and indefinite as to mislead him and expose him to the danger of another prosecution for the same offense, and the allegations were insufficient to charge a violation of the Uniform Narcotic Drug Act. The court first said:
But on rehearing the court said:
There are few if any crimes against the "public" which have more serious consequences than the illegal traffic in and peddling of narcotic drugs. The legislature enacted a law against the evil using ordinary understandable language. The act is comprehensive but not nearly as extensive as some other statutes governing "public" offenses, indictments for which we have held sufficient over and over again when the language of the statute was followed. It has never been required in this state that proof need be pleaded in the indictment. We think the following statement in the opinion aptly shows wherein the Court of Appeals erred in holding Counts 5 and 6 to be insufficient.
The appellant is not charged with forgery which in this state consists of three degrees. The charge is obtaining a particular narcotic drug under a section of our Uniform Narcotic Drug Act, penalizing the obtaining of this narcotic drug by certain means, one of which is the forgery or alteration of a prescription or written order. The indictment charges one crime and the various acts set out in the indictment constitute the manner and way in which the accused allegedly committed said crime.
*516 The indictment meets the requirement of § 232, Title 15, Code of 1940, which is cited by the Court of Appeals.
The Code of 1940 deals with Indictments in Title 15, Chapter 11. Practically all of the sections, 227 to 259 inclusive first were codified in the Code of 1852. Some of the sections have been set out supra. It is obvious that the legislative intent for over 100 years has been to simplify our form of pleading in indictments. It is a well-established rule of construction that even as to penal statutes, we should carry out the obvious intent of the legislature to be gathered from the words of the law; and the particulars as to time, place and circumstance, not constituting essential elements in the crime, may be dispensed with in the indictment by the statute and be left as matter of proof. Noles v. State, 24 Ala. 672. In Rivers v. State, 97 Ala. 72, 12 So. 434, this Court said: "We have held that under our system of pleading `Indictments are rather a statement of legal conclusions than of facts.'"
The constitutionality of indictments dealing with "public" offenses which were not as specific as indictments dealing with offenses against persons or property has been conclusively settled by our decisions. We cite three such cases. In Burdine v. State, 1854, 25 Ala. 60, the indictment substantially in the language of the statute, charged that defendant and others "played at a game with cards, or dice, or at some device or substitute therefor, at a tavern, inn, storehouse for retailing spirituous liquors, or house or place where spirituous liquors were, at the time, retailed or given away, or at a public house, highway, or at some other public place, or at an outhouse where people resorted; against the peace and dignity of the State of Alabama."
The court said: "The form of indictment is in accordance with section 3506 of the Code, which provides, that where offences are of the same character, and subject to the same punishment, the defendant may be charged with the commission of either in the same count in the alternative. The objection to this provision, urged on the part of the appellant, is, that it is in violation of the tenth section of the first article of our bill of rights, which entitles the accused to be informed of the nature and cause of the accusation, and to have a copy thereof. The object of this clause of the constitution was, to enable every person, against whom a criminal prosecution was instituted, to defend himself against it if innocent; and a due regard to the intent and spirit of this provision would require us to pronounce against any indictment, whatever might be its form, which was obviously insufficient to secure this result. But the fact that the defendant may be charged with the commission of one or the other of two or more offences, which are specified with legal certainty in the indictment, does not render him the less able to defend himself against either of the charges which are alleged. It is true that he may be required to meet each one of the offences; but he would have been obliged to do this, if the indictment, instead of pursuing the form used, had been framed with different counts, alleging the commission of all the offences which are here charged in the same count. We do not think that any constitutional right of the defendant can be impaired by sustaining the indictment in its present form."
The short opinion in Coleman v. State, 1907, 150 Ala. 64, 43 So. 715, follows:
"Haralson, J. The indictment, in its first count, charged defendant in Code form, with selling whiskey without a license and contrary to law.
"The second count, a little more specific than the first, but containing the averments of the first, gave the name of the person to whom the liquor was sold, or for whom it was procured, or whom he aided in procuring the same.
"The first count was demurred to on the ground that the indictment failed to allege the name of the person to whom the alleged sale was made, and to whom and where the same was sold, or when the defendant procured or aided the party named in procuring the liquors.
*517 "That the indictment is in Code form (No. 79), or, that it is not sanctioned by sections 5076 and 5077 of the Code of 1896, is not questioned; but the contention is, that the statute authorizing the form of indictment, and dispensing with any allegation as to the name of the person to whom the alleged sale was made, and when and where made, is unconstitutional and void, being in violation of the Bill of Rights, which secures to the defendant the right to be informed of the nature and cause of the accusation against him.
"This is not a new question, and has been long ago, and repeatedly, since, determined against the contention of appellant. Noles v. State, 24 Ala. 672; Mayo v. State, 30 Ala. 32; Cochran v. State, 30 Ala. [542] 546; Bailey v. State, 99 Ala. [143] 145 [13 So. 566]; Jones v. State, 136 Ala. [118] 122, 123, 34 So. 236; Guarreno v. State, [148 Ala. 637] 42 So. 833.
"Nor was it necessary to allege the name of the person to whom the liquor was sold, nor the particular time or place at which it was sold. Authorities supra; Caldwell v. State [146 Ala. 141], 41 So. 473; Lee v. State [147 Ala. 133], 41 So. 677."
We think the Coleman case and the Walker case, next cited, clearly show that the rule in the Grattan case, supra, does not apply to a "public" offense because the court in that case said, "The present indictment is for an illegal purchase by the defendant of property belonging to another. * * * An averment of ownership, in our judgment, is just as essential to certainty in this case, as in that of receiving stolen goods, burglary, arson or larceny." Those are crimes against property, while gaming, selling whiskey without a license and public drunkenness are strictly public offenses.
The opinion in Walker v. State, 150 Ala. 87, 43 So. 188, reads:
"Simpson, J. The appellant was indicted and convicted of the offense of appearing in a public place, etc., while intoxicated, under section 4656 of the Code of 1896.
"The only point insisted upon by the appellant is that section 4903, which dispenses with any more particular designation of the place than `in a public place,' is violative of our Bill of Rights, securing to a defendant the right to be informed of the nature and cause of the accusation against him. This proposition has been thoroughly considered by this court, and the constitutionality of such provision upheld. Jones v. State, 136 Ala. [118] 123, 34 So. 236; Noles v. State, 24 Ala. 672; Elam v. State, 25 Ala. 53.
"There being no error in the record, the judgment of the court is affirmed."
We note in passing that a code form for public drunkenness came into the Code of 1907, and since that time it has been necessary to name the public place.
We have not found, nor have we been cited, any Alabama case where the offense was "public" that this court has nullified the indictment when it followed substantially the words of the statute defining the crime and setting the penalty therefor.
In 1860, Stone, J., in Lewis v. State, 35 Ala. 380, had this to say:
"Having shown that a slave may be guilty of an attempt to commit rape on a white female without actually assaulting her, if we were to go further and require that the indictment shall express the particular acts of which the attempt consists, we should greatly innovate on our present brief and simple forms of indictment, and introduce a particularity of averment and description, which would in many cases amount to a denial of justice." [Italics supplied.]
To adopt and force upon the courts of this state the Nevada model of indictment as set out in the opinion of the Court of Appeals would upset, except as to code forms, what has been the established rule by statute and decision in this state for over 100 years.
The demurrer to counts 5 and 6 of the indictment was properly overruled. These counts follow the language of the statute *518 and charge every element of the offense, and are sufficient under the decisions cited supra.
The judgment of the Court of Appeals should be reversed and the cause should be remanded.
The majority opinion strikes an appealing note; and were it not for the long-standing decisions of this court cited in this dissenting opinion, which seem to me to be conclusive of the question before us, I would join with the majority. My view is that if there is to be a change in the law now the wisdom and extent of such change are more properly addressable to the legislature than to the court. Clearly, provision could and might well be made by legislative act requiring an indictment to recite details of the charge to be defended against or in some other way providing for furnishing an accused with such details, such as a bill of particulars.
Beginning with cases reported in 1853, 23 Ala., to 1916, 200 Ala., the question of the sufficiency of the indictment was the rule rather than the exception in criminal cases, and it has been raised many times in later Supreme Court and Court of Appeals cases. For the past 30 years, the question of the validity of an indictment has not recurred so often, because the law was generally considered settled in the minds of both bench and bar.
I fear that the result of the opinion of the majority will have a far-reaching effect which is both unsettling and bordering on disastrous. In view of the constitutional grounds assigned for holding the two counts bad in the instant case, can there be little doubt that all the accepted and previously approved indictments for violating the prohibition law, distilling, lottery laws, the code forms specified herein and many others not listed and particularly all of the indictments which follow the language of the statute, would fall for lack of "specificity", when the same rule as stated in the majority opinion is applied to them? It would seem that it would become the duty of an attorney defending his client under indictment in most criminal cases from this day forward to raise the question of the sufficiency of the indictment and hope for a favorable ruling irrespective of how many times the courts of this state had held it to be good and not violative of § 6 of the Constitution of Alabama or the Constitution of the United States.
There has always been a great difference in the amount of information required in indictments in the State Courts and those in the Federal Courts. Since the majority opinion is based largely on Federal cases, a proper question would seem to be,at what point does the Alabama rule of pleading cease to prevail, and the Federal rule become a part of our pleading?
I, therefore, respectfully dissent.
STAKELY and GOODWYN, JJ., concur in the foregoing views. | May 12, 1955 |
97e845ac-2e89-4ce8-90e4-c64e4e04114b | Troy Bank & Trust Company v. Brantley | 82 So. 2d 618 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 618 (1955)
TROY BANK & TRUST COMPANY, as Trustee,
v.
Oliver W. BRANTLEY et al.
4 Div. 767.
Supreme Court of Alabama.
June 30, 1955.
Rehearing Denied October 13, 1955.
Marion Rushton, Montgomery, and J. H. Wilkerson, Troy, for appellant.
John Patterson, Atty. Gen., pro se.
Oliver W. Brantley, Troy, Files Crenshaw, Steiner, Crum & Baker and Ball & Ball, Montgomery, Alto V. Lee, III, Dothan, and John W. Lapsley, Selma, for appellees.
MAYFIELD, Justice.
The genesis of the present litigation is found in the cases of Henderson v. Troy Bank & Trust Co., reported at 250 Ala. 456, 34 So. 2d 835; and Tumlin v. Troy Bank & Trust Co., 258 Ala. 238, 61 So. 2d 817. These two cases are commonly known to the Bench and Bar of Alabama as the Henderson Will Cases.
Presently before us for consideration are two decrees rendered on the complainant-appellees' collateral petition for an award of counsel fees and expenses incurred in the prosecution of this litigation. These two decrees awarded solicitors' fees, fixed the expenses, and taxed them as costs under the provisions of Section 63, Title 46, Code of Alabama 1940, and the decision of the Supreme Court rendered in the Tumlin Case, supra. It is from the trial court's decrees, rendered on this petition, *619 that the appellant perfected this appeal here.
We are not here concerned with the principal controversy revolving around the validity of the trusts created by the late Governor Henderson's will. This matter, after protracted litigation, has been laid at rest by the decisions in the two abovecited cases. The single inquiry brought into focus by the assignments of error, is the propriety of the nisi-prius court's action in awarding solicitors' fees and expenses to the appellees' solicitors, who were, in the main, unsuccessful in their major contention, and taxing these items as costs against the respondent-trustee.
The first decree in this proceeding, dated 17 March 1953, which overruled appellant's demurrer, not only delineates the facts of the present controversy, but sets out the contentions of the opposing parties and summarizes the law applicable to these contentions. For a better understanding of the present case, this decree is set out in extensio:
"Opinion and Decree on Complainants' Petition for Allowance of Attorneys' Fees and Expenses and Respondents' Demurrer Thereto.
"This matter has come on for hearing before the undersigned Judge on the 15th Judicial Circuit of Alabama, sitting in equity, in the Circuit Court of Pike County, in Equity, by special designation of the Chief Justice, and by agreement of all the parties concerned.
"The history of this litigation, and the result thereof, may be found in the decisions of the Supreme Court of Alabama in 250 Ala. 456, 34 So. 2d 835; and [258] Ala. [238], 61 So. 2d 817. In the latter decision of that Court, some of the Justices concurred, and some concurred in the result, or specially, and two of the Justices dissented. All of the Justices, however, concurred Per Curiam in rendering this judgment:
"Following that, complainants filed their petition in this cause seeking allowance of a reasonable attorneys' or solicitors' fee, together with reasonable expenses incurred in the prosecution of this litigation, to be taxed as a part of the costs herein. Respondents filed a demurrer to that petition. It was argued orally before the court on February 20, 1953, and briefs submitted by both sides, and the matter taken under consideration by the court.
"Two approaches or contentions are involved; the one that the Per Curiam language of the Supreme Court, in taxing all costs against the Trustee, intended thereby to include as part of the costs attorneys' or solicitors' fees and expenses for complainants, and consequently that such is the law of the case, and cannot be changed except by the Supreme Court which rendered that judgment. The other is that if such be not the case, this court has the judicial discretion and right under the provisions of Title 46, Section 63, of the Code, to allow and fix for complainants such attorneys' or solicitors' fees and expenses, to be taxed as a part of the costs herein; and that the court should do so.
"To these, respondents say and contend, (1) that the Supreme Court's opinion and decision did not intend, and should not be construed, to cover complainants' attorneys' or solicitors' fees and expenses; and (2) that this court cannot and should not allow to complainants' attorneys or solicitors fees and attendant expenses, because the proceedings were adversary and also the result was contrary to complainants' contention.
"The pertinent provisions of Title 46, Section 63, of the Code are:
"This section of the Code is an amplification and amendment to and codification of an Act of 1903 (Acts 1903, p. 33). Unaided by statute, a court of equity has the power or right, in connection with the administration of a trust, to allow the Trustee and the Trustee's solicitors reasonable fees and expenses. So, also, should it become necessary for the Trustee to receive instructions of the court or a construction of the instrument, such fees and expenses would be allowable. As originally enacted, the Act of 1903 authorized the allowance of attorneys' fees only to the attorneys or solicitors representing petitioners in a suit or proceeding. As amended and codified, the present Code section authorizes the allowance of attorneys' or solicitors' fees to `any party in the suit or proceeding,' which shall be taxed as a part of the costs in such suit or proceeding. This is not to say that under a literal construction of the language or words of the statute, attorneys' or solicitors' fees must or may be allowed in all proceedings and under all circumstances. The contrary is true, as stated in Bidwell v. Johnson, 191 Ala. 195, 67 So. 985 [987]:
"This Code section does give broader powers to a court of equity with respect to the allowance of solicitors' or attorneys' fees for all parties than the court might otherwise have. The history of this legislative Act and its subsequent amendments and codification may be found in Dent v. Foy, 214 Ala. 243, 247, 107 So. [210]; Bidwell v. Johnson, 191 Ala. 195, 198, 67 So. 985; King v. Smith, 247 Ala. 1, 3, 22 So. 2d 336; Clarke v. Clarke, 246 Ala. 170, 174, 19 So. 2d 526.
"In support of their first contention, complainants argued and showed to the court, by way of an exhibit, that the Supreme Court in its initial opinion had taxed the costs in this case against complainants because, as the Supreme Court then stated, it was an adversary proceeding and the losing party should pay the costs, under the applicable statutes relating to all adversary proceedings, but that in the later opinion of the Supreme Court, that page or statement was removed, and the Supreme Court then, in a Per Curiam judgment, taxed all costs against the Trustee Appellee. Thus, according to complainants' contention, the Supreme Court intentionally changed its opinion, in which it had stated that the proceedings were adversary and accordingly that costs were taxable against complainants, and by its later opinion reached a different conclusion and taxed all costs against the Trustee Appellee, which could include reasonable attorneys' fee under Title 46, Section 63, of the Code. In support of this contention, this Court's attention was called to the statement made by the Supreme Court in its opinion in Thurlow v. Berry, 247 Ala. 631, 25 So. 2d 726 [734]:
and it was stated by complainants by way of precedent that pursuant thereto not only were all court costs taxed to and paid by the Trustee, but in addition reasonable attorneys' fees and expenses of all parties, including the losing parties. In further support of the first contention, complainants stated in argument that in the case of Ramage v. Ramage, [258] Ala. [81], 61 So. 2d 432 [436], where the Supreme Court in its opinion said:
not only that the Trustee was required to pay court costs, but also attorneys' *621 fees and expenses for all parties, including the losing parties. Since that suit was tried in this court, this court knows by way of precedentwhether or not it has in the case at bar judicial knowledge of the record in that casewhat occurred in that case, viz.: that it did allow and fix for all parties thereto a reasonable solicitors' or attorneys' fee plus reasonable expenses.
"In the light of the above, this court is inclined to the opinion that the Supreme Court, in its Per Curiam judgment, intended to tax the Trustee not only with court costs, but all other costs, including reasonable attorneys' fees and expenses which are permitted to be taxed under the provisions of Title 46, Section 63, of the Code above quoted.
"The second contention or issue involves the power vel non of a court to allow, under the provisions of said Code section, reasonable attorneys' or solicitors' fees to complainants, together with reasonable expenses in connection with this litigation; and also whether, if the court be empowered under said Code section, or otherwise, to make such allowance, the court in these proceedings, in its judicial discretion, should do so. In King v. Smith, supra [247 Ala. 1, 22 So. 2d 338], the Supreme Court of Alabama said:
"The instant case, as this court knows and has been stated in its opinions of some of the Justices of the Supreme Court rendered in this cause, involved the construction of the late Governor Henderson's will. Complainants contended that some of its provisions violated certain rules of property viz.: the rule against perpetuity and the rule against accumulations. This, respondents denied, and respondents were successful in their contentions, though there were dissenting opinions rendered by some of the Justices of the Supreme Court, as well as concurrences in the result. The issue being raised by demurrer was necessarily "one of law, and being one of law, necessarily involved the construction of the provisions of the will itself. The estate is a large one, alleged in the bill of complaint at the time of its filing to be in excess of $5,000,000. This court believes, as stated in some of the dissenting opinions of the Justices of the Supreme Court, it was advisable or necessary for them to be construed, and such construction would benefit the estate and the Trustee in its administration thereof. In other words, the decisions and opinions of the Supreme Court and the issues involved in this litigation in this court all show that the proceedings were instituted in good faith, and on reasonable grounds.
"Since the Trustee was not a beneficiary under the will, and had no pecuniary interest in the result of the suit, other than its Trustee's fees, and the contentions of the parties had no effect on the quantum of the estate, then under the decisions of the Supreme Court of Alabama the proceedings were not adversary. Hanson v. First Nat. Bank, 217 Ala. 426, 430, 116 So. 127; Vaughn v. Vaughn, [258] Ala. [336], 62 So. 2d 466, 472; dissenting opinions in Tumlin v. Troy Bank & Tr. Co., [258 Ala. 238] 61 So. 2d 817.
"An exhaustive note and collation of authorities on the subject of allowance of attorneys' or solicitors' fees and expenses in such proceedings is contained in 9 A.L.R. 2d, beginning on p. 1132. That note follows the report of the decision In re Atwood's Trust, 227 Minn. 495, 35 N.W.2d 736, 9 A.L.R.2d 1126. In that case, the Supreme Court of Minnesota allowed to unsuccessful parties reasonable attorneys' fees, saying that, since the provisions of the will were ambiguous, a construction thereof was advisable or necessary.
"The use of the word `ambiguous,' in my mind, is not determinative of the issue now before this Court for decision. In other words, whether words or language used in an instrument be ambiguous creates no different situation from whether unambiguous words or languages result in uncertainty and therefore ambiguity of the legality of such language or provisions of a will. In either instance, it would be a *622 question for the construction of the court; and if doubt exists, such doubt should be removed in the interest of the estate and all parties concerned by a proper construction and decision of the court as to the meaning or legality of the provisions of the will involved.
"In Evans v. Safe Deposit & Tr. Co., [190 Md. 332] 58 A.2d 649 [656], the court of Maryland at first taxed the costs against the unsuccessful heirs and parties, but later, on motion for modification thereof, taxed them against the trust estate, saying:
"There, doubt existed on questions of law and the construction of an instrument, which the court found to be tested in good faith by the parties, and accordingly taxed all costs against the estate.
"In Tolman v. Reeve, 393 Ill. 272, 65 N.E.2d 815, 824, the Supreme Court of Illinois said:
"In Alabama, the statute above referred to specifically authorizes a court of equity to make allowances for reasonable attorneys' and solicitors' fees to all parties to the proceedings to be taxed as a part of the costs. This statute gives broader powers to a court of equity in such proceedings than it might otherwise have. 9 A.L.R.2d, at p. 1147.
"As stated by the annotator in that note or annotation at p. 1168, under the heading `Effect of statute or lack thereof.':
"This court knows as a matter of precedent, whether or not it has judicial knowledge thereof, that in the case of Ramage v. Ramage, supra, which arose in and was tried by this court, reasonable attorneys' or solicitors' fees and their expenses were allowed by this court to all parties, including those who were unsuccessful in their contention. By way of precedent, the statement was made to the court in argument that in Thurlow v. Berry, supra, solicitors' fees and expenses were allowed from the trust estate to all parties, including those who were unsuccessful in their contention.
"Alabama cases illustrating the power of a court of equity in its judicial discretion to allow reasonable attorneys' fees and expenses to all parties to proceedings involving the administration of a trust, or the construction of a trust instrument, are: King v. Smith, supra; Clarke v. Clarke, supra; Dent v. Foy, supra; Bidwell v. Johnson, supra.
"This court judicially knows the record and history of this case, and is of the opinion that the proceedings herein were instituted and carried on by complainants in good faith and on reasonable grounds.
"For the foregoing reasons, the court is of the opinion that complainants' petition for the allowance out of the trust estate of reasonable attorneys' or solicitors' fees and expenses in connection with this litigation should be sustained and allowed, and that respondents' demurrer thereto is not well *623 taken and should be overruled. Accordingly, let the Register enroll the following decree:
"`This cause coming on to be heard, was submitted to the court upon complainants' petition for the allowance of reasonable attorneys' or solicitors' fees and expenses as therein prayed, and upon respondent's demurrer thereto. The court having heard oral arguments thereon by the respective solicitors of the parties herein, and written briefs by the parties having been submitted to the court, and the court having heard and considered the same, is of the opinion that said demurrer is not well taken and should be overruled,
"`It Is Therefore Ordered, Adjudged, And Decreed by the Court that said demurrer be and the same is hereby overruled.
"`Respondents may have 30 days from this date within which to file their answer to said petition if they be so advised.'
"Done this March 17, 1953.
After the rendition of the above-quoted decree, the trustees filed their answer and the court took testimony.
On 22 September, a further decree was entered awarding a very large sum to petitioners' solicitors as fees and for expenses incurred in this lengthy litigation. The reasonableness of this award is not brought under direct attack on this appeal. Rather, the position of the appellant seems to be that as this was "antagonistic litigation" complainants' solicitors are not entitled to any fees and expenses whatsoever, because they had failed to obtain a construction of the will in line with their contentions in the original cases. The appellant does point out, however, that it is within the inherent power of this court to modify the quantum of the original award.
Appellant's proposition of law IX states:
However, no evidence was introduced below tending to show the unreasonableness of the award to the appellees' solicitors and no argument is advanced in the brief and argument of appellant directed to the amount of the award.
In appellant's fourth assignment of error, it is contended that the trial court erred "in awarding petitioner $110 (an obvious and self-correcting error of the pen) as fees and expenses to be paid by the Troy Bank & Trust Company and taken out of the trust fund and assets of the estate of Charles Henderson in its possession * * *". This assignment is not sufficient to challenge the amount or reasonableness of the award.
The trial court rested its decree on three grounds. First, the chancellor's commonlaw power to award solicitors' fees to the contending parties out of the corpus of the trust; secondly, this court's opinion in the case of Tumlin v. Troy Bank & Trust Co., supra, which found the law and assessed all of the costs against the trustee. And, thirdly, the statutory authorization found in Section 63 of Title 46 in cases involving the administration of a trust to pay attorneys' fees to "any party in the suit or proceeding" and to "tax as a part of the costs in such suit or proceeding such reasonable attorney's fee".
The trial court rested its decision upon these three above named-pillars. Before examining the Alabama cases that reflect light upon this controversy, it might be well to consider the general principles involved as they have been treated by other *624 jurisdictions. The rationale of the Alabama cases has undoubtedly been affected by a consideration of principles conceived to be controlling by the courts of some of our sister states.
Two general theories should be borne in mind as we dissect these decisions. The first we will refer to as the "common fund" theory. This concept is well expressed in the following federal cases: Trustees v. Greenough, 105 U.S. 527, 26 L. Ed. 1157; Hobbs v. McLean, 117 U.S. 567, 6 S. Ct. 870, 29 L. Ed. 940; Buell v. Kanawha Lumber Corp., D.C., 201 F. 762. Reduced to its lowest common denominator, this concept embraces a situation where one litigant has proceeded alone at his own expense and has either created, protected, or preserved a fund in which others are entitled to share. In this situation the litigant may clearly recover his costs, including attorneys' fees out of the common fund.
The second theory, which is the basis of similar recoveries, arises in situations where a testator has expressed himself so ambiguously as to make it necessary or advisable to institute an action to obtain a construction of his will. Here also, it is proper to order payment out of the estate of reasonable fees for the attorneys of the parties instituting the action. See Annotation 79 A.L.R. 536; 142 A.L.R. 1470. These two theories embody two separate legal principles and their application must not be confused.
In litigation of the type now at bar, the courts of our sister states have not always recognized the twain principles, or else they have been unwilling to follow the logical line of demarcation between them. The courts which pay lip service to the second theory usually refuse the allowance of attorneys' fees to an heir asserting a construction of an ambiguous will, when the asserted construction would render a provision of the will void or terminate a trust therein created. See Thatcher v. City of St. Louis, 335 Mo. 1130, 76 S.W.2d 677; In re Hughes' Estate, 78 Ohio App. 143, 69 N.E.2d 216; Tramell v. Tramell, 162 Tenn. 1, 32 S.W.2d 1025, 35 S.W.2d 574. This conclusion is probably reached upon the reasoning that the heir has not attempted to preserve or protect the fund but has rather asserted a construction which would destroy the intended fruits of the trust and pluck them for his personal benefit. It is interesting to speculate whether courts which have reached this conclusion have not changed theoretical horses in the middle of their decisional streams. The validity of allowing fees to the contending parties in suits for the construction of ambiguous wills is not that a common fund has been increased, preserved or benefited; but, rather that the testator by choosing the words that provoked the controversy thereby subjects his estate to the financial consequences of the suit.
What is the logical difference between a case where the testator's phraseology was ambiguous and a case where his intention is clear but the legal validity of a provision embodied in the will is doubtful? In the first case, the uncertainty is produced by words selected by the testator, and in the other, it arises from the lex momentus as applied to the plan or scheme selected by the testator. There is no real distinction either in principle or in practical application. But, as the case before us involves the construction of ambiguous language, as well as the possible violation of established legal principles in the execution of the testator's scheme, it is not profitable to further pursue the matter.
Theoretical confusion is compounded by those cases that enunciate the rule that a party may recover attorneys' fees from the estate for the construction of an ambiguous will where the suit is instituted merely for the purpose of securing a construction of the will; but attorneys' fees will be denied where the heir attempts to obtain something for himself by a will construction which he advocates. See, Craw v. Craw, 210 Ill. 246, 71 N.E. 450; Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104. The rationale of these cases is supported by neither reason nor logic. These courts assume that the world is populated by kindhearted heirs with gold-lined purses who altruistically institute costly suits for the sole purpose *625 of being of aid and assistance to others. While this assumption would do credit to mankind, it overlooks the realities of human nature in our highly commercialized society. Few suits for the construction of trusts would be instituted if the party bringing them did not hope to personally gain from the prevalence of his contentions. The statements in these cases seem to be directly in conflict with pronouncements from the same jurisdictions that the hope of personal benefit by the party instituting the suit does not determine the propriety of the allowance of fees out of the estate. See, Glaser v. Chicago Title & Trust Co., 333 Ill.App. 550, 77 N.E.2d 844; Lang v. Taussig, Mo.App., 1946, St. Louis, 194 S.W.2d 743, 748.
One is irresistably drawn to the conclusion by an analysis of the above cases that the courts did not feel that the equities of the particular controversy before them lay on the side of awarding fees. Further, they indulged in some rather loose and confusing language in reaching this conclusion. The question in each case should be what happened and not why it happened; except as the question of motivation bears on the question of good faith in determining if the suit was "reasonable and necessary", the result "beneficial" and whether the court abused its sound discretion in finding that the institution of the litigation was of genuine assistance in determining the questions involved in the trust.
In Ingraham v. Ingraham, 169 Ill. 432, 48 N.E. 561, 49 N.E. 320, the bill was brought by an heir who prayed for a construction of a testamentary trust holding that its establishment was a violation of the rule against perpetuities and accumulations. The trust was upheld in both the trial and appellate courts and attorneys' fees out of the estate were awarded the petitioner. In Singer v. Taylor, 91 Kan. 190, 137 P. 931, the daughter of the deceased contested the will on the grounds of undue influence, and also asserted that a certain clause was ineffectual to transfer a large part of the estate. She lost both contentions but was awarded attorneys' fees for that part of her litigation which involved the construction of the will. The fact that both sides joined in the prayer for the construction does not seem to have materially influenced the rationale of this case. Whatever may be the qualifications that subsequent decisions from the same jurisdiction have placed upon these cases, they seem to us to be sound and worthy of approval.
Probably, the foreign case closest in point to the case at bar is that of Schenectady Trust Co. v. Emmons, 263 App. Div. 542, 33 N.Y.S.2d 688, 689:
The court went on then to speak of the New York statute, somewhat similar to our own:
We, therefore, conclude that as far as the general established principles of equity are concerned, that the trial court did not abuse its discretion in the instant case. We must now determine whether the Alabama rule has been definitely established contrary to those general equitable principles.
Early Alabama cases express hostility towards the concept of making an estate pay the attorneys' fees of losing parties in the litigation concerning the estate. See, Grimball v. Cruse, 70 Ala. 534; Foster v. Foster, 126 Ala. 257, 28 So. 624; Jordan v. Farrow, 130 Ala. 428, 30 So. 338. Apparently, to alleviate the harshness of such decisions in meritorious cases, and return to the general equitable principle, our legislature, in 1903, passed the act which is now known as Section 63 of Title 46 of the Code of Alabama 1940. This section, as quoted in part above, contained the provision that attorneys' fees could be paid to "any party in the suit or proceeding".
The clear verbage of this provision would indicate an intent to allow the trial court, in its sound discretion, to award attorneys' fees in meritorious cases involving the construction of trusts, even though litigation was "antagonistic". But, in applying this statute, our court seems to have been inordinately influenced by the "common fund" theory. In Bidwell v. Johnson, 191 Ala. 195, 67 So. 985, 987, it is stated:
The court then submitted the proposition that the attorney's fee had to be for the benefit of all and stated:
This construction was followed by later Alabama cases in the decisions to a point that the rule is solidified that before a party may recover his attorney's fee incurred in the administration of a trust or estate, *627 such service must have inured to the benefit of the common estate. Coker v. Coker, 208 Ala. 239, 94 So. 308; City Bank & Trust Co. v. McCaa, 213 Ala. 579, 105 So. 669; Dent v. Foy, 214 Ala. 243, 107 So. 210; Farmers Bank & Trust Co. v. Borroughs, 217 Ala. 97, 114 So. 909; King v. Smith, 247 Ala. 1, 22 So. 2d 336; Kimbrough v. Dickinson, 251 Ala. 677, 39 So. 2d 241.
The fact that the principle embodied in the statute is akin to the "common fund theory" does not, of necessity, mean that it is identical. The statute encompasses the "common fund theory" but is not so circumscribed. In the trial court's consideration of what is a benefit to the estate or trust, it was not limited to the question of what would have been such a benefit as would have authorized a recovery of attorney's fee under the "common fund theory". To reason otherwise would be a judicial pronouncement that the statute did not change the law.
The Act says, that in a proper case, attorneys' fees may be taxed as "a part of the costs". Three cases recently before this court involved the construction of a testamentary trust. In each case this court required that the trustee pay all of the "costs". Ramage v. Ramage, 258 Ala. 81, 61 So. 2d 432; Thurlow v. Berry, 247 Ala. 631, 25 So. 2d 726; Clarke v. Clarke, 246 Ala. 170, 19 So. 2d 526. Attorneys' fees were properly a part of the "costs" in these cases. We are advised that they were allowed and paid without contest.
In the instant case where the "estate" owned the majority control of the "trustee" bank, the trustee would naturally have been most reluctant to have sought a construction. This involved ownership and control of the trust corpus, appellees compare to a snake's effort to swallow its own tail. The issues raised were vital to the administration of the trusteven to its very existence. The trust was benefited by having the cloud of illegality removed from the legal actions of its trustee. The trial court was authorized to invoke its discretion to award the appellees attorneys' fees out of the trust.
The appellant argues that unless this court reversed the award made by the trial court that "no trust in Alabama will be safe". This argument overlooks the fact that such an award rests in the sound discretion of the trial courts, and that unless the institution of the action was reasonable, necessary and beneficial to the trust, and gave assistance to the trial court in deciding the vital issues involved, the courts would not and could not make awards of attorneys' fees in "antagonistic" litigation. We have too much confidence in the trial courts of Alabama to be disturbed by the fears that plague the appellant. And if such an abuse of discretion should occur in the future, it is removable here. We conclude that the trial court, in the instant case, did not abuse its discretion and that the decree allowing the award is due to be affirmed.
Affirmed.
SIMPSON, J., concurs in the opinion.
LAWSON, GOODWYN and MERRILL, JJ., concur specially.
LIVINGSTON, C.J., and STAKELY, J., dissent.
LAWSON, GOODWYN and MERRILL, Justices, concurring specially.
There are five assignments of error, but the brief filed in this court on behalf of the appellant presents for our consideration the sole question as to whether or not the trial court erred to a reversal in awarding attorneys' fees in any amount for the attorneys who represented the complainants in the so-called Henderson Will Cases. See Henderson v. Troy Bank & Trust Co., 250 Ala. 456, 34 So. 2d 835; Tumlin v. Troy Bank & Trust Co., 258 Ala. 238, 61 So. 2d 817.
In Tumlin v. Troy Bank & Trust Co., supra, the trial court dismissed the complainants' bill after sustaining demurrer thereto and taxed the complainants with the costs. From that decree the complainants *628 appealed to this court. On original submission a decree was entered in this court affirming the decree of the trial court in all respects. Application for rehearing was overruled, but only after all of the Justices of this court who participated in the case concurred in ordering that the decree entered on original submission be modified "so that all the costs which have accrued in this case be taxed against Troy Bank & Trust Company, as trustee." A decree was forthwith entered in this court in accordance with that order.
Our decree taxing the costs against the trustee did not purport to include attorneys' fees and it was not a directive to the trial court to tax such fees as a part of the costs in the case.
But the fact that we did see fit to tax the costs against the successful party in this litigation, although without doubt the unsuccessful parties had as their sole objective the destruction of the charitable trust provisions in Governor Henderson's will, is a factor which, in my opinion, has considerable bearing on the question of instant concern.
The taxation of costs in equity causes is governed by Equity Rule 112, Code 1940, Title 7, Appendix, which in pertinent part reads: "Costs will be imposed by the court or judge having jurisdiction at such times during the litigation as he deems proper, subject to correction for improper exercise of his discretion, and may be apportioned by him between the parties * * *."
In Dozier v. Payne, 244 Ala. 476, 477, 14 So. 2d 376, 377, Mr. Justice Bouldin, writing for the court, said:
So our action in taxing the trustee, the successful party, with all of the costs of the litigation, thereby reversing the action of the trial court in that regard, can be justified only on the ground that we were of the opinion that after indulging all fair intendments in favor of the trial court's ruling relative to the taxation of costs, we concluded that such ruling was unjust and unfair. That conclusion was based unquestionably on our belief that the legality of the charitable trust provisions of the will was not free from doubt and that a judicial determination that those provisions were valid redounded to the benefit of the trust estate, and for that reason it should bear the costs of the litigation, irrespective of the fact that the litigation was conceived and prosecuted in an atmosphere entirely antagonistic to the maintenance of the charitable trusts.
In view of the position taken by all of the participating Justices relative to the taxation of costs, we are not inclined to hold that the trial court erred in decreeing that fees of the attorneys representing the original complainants be paid out of the trust estate. Therefore, we concur in the conclusion reached in the opinion prepared for the court by Mr. Justice MAYFIELD, *629 but on that ground alone. We do not wish to concur with all that is said in that opinion for the reason that we feel that, whether intended or not, the effect of that opinion may be to override many decisions of this court of long standing. | June 30, 1955 |
3339b40e-38cf-48bc-92f5-8fd6b4d3e84f | Bates v. Rentz | 81 So. 2d 349 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 349 (1955)
H. O. BATES
v.
Juanita RENTZ.
4 Div. 821.
Supreme Court of Alabama.
June 16, 1955.
*350 Hiram J. Brogden, Jr., and Prestwood & Prestwood, Andalusia, for appellant.
A. R. Powell, Jr., Andalusia, for appellee.
MERRILL, Justice.
Appellant sued appellee for damages arising out of a collision between their automobiles at an intersection in the City of Andalusia. Appellee pleaded the general issue and filed two pleas of recoupment, one based on negligence, the other on wantonness. The verdict and judgment thereon was for the defendant on the complaint and for the plaintiff on the pleas of recoupment. Appellant's motion for a new trial was overruled and he appeals.
Appellee has moved the court to dismiss the appeal and strike the transcript of the evidence for alleged non compliance with Code of 1940, Title 7, § 827(1) and Supreme Court Rule 48, Code 1940, Tit. 7, Appendix. She takes the position that since § 827(1) requires that the party desiring to appeal must give notice to the court reporter within five days after he perfects his appeal, requesting the evidence to be transcribed, any deviation therefrom should vitiate the appeal. In the instant case the judgment was dated October 14, 1954. The appeal was taken January 15, 1955. The court reporter filed the transcript of the evidence with his certificate that he had notified the attorneys of record of such filing on January 4, 1955. The mere fact that the court reporter filed the transcript in the clerk's office eleven days before the appeal was taken, will not vitiate the appeal. It is not the purpose of the statute or the rule to penalize promptness on the part of the reporter or the appellant. The motions are without merit.
Assignment of error No. 1 complains of the action of the trial court in refusing *351 to allow an amendment to plaintiff's complaint. As originally filed and when testimony at the trial was begun, the complaint did not claim damages for permanent injuries. While the plaintiff was being examined, a question tending to show permanency of an injury was asked, the defendant objected and the following took place:
"The Court: Have you got a claim for permanent injuries?
"Mr. Prestwood: Yes, sir.
"The Court: Overrule the objection."
The witness testified that his arm still hurt him so that he turned sick when he raised it. Just before the plaintiff rested, he offered to amend the complaint to show permanent injuries. The record does not disclose whether the amendment was actually prepared and in writing, but after objection by the defendant the court said:
The request to amend was overruled and the plaintiff excepted. We assume that the trial court meant that granting the request to amend would entitle the defendant to show the nonpermanency of the injuries by rebuttal evidence and this would be unfair to defendant when she possibly had no evidence available since no damages for permanent injuries had been claimed.
Pretermitting the question of whether the offer of amendment should have been granted, the error, if any, was without injury because the jury verdict was a positive finding that the defendant was not guilty of the negligence with which she was charged, and the jury declined to award any damages for those injuries claimed in the complaint and proved by the evidence. We, therefore, hold that the plaintiff was not substantially injured by the trial court's ruling. Supreme Court Rule 45.
Assignment of error No. 2 is not considered since the record shows no exception by the plaintiff to the action of the court. There is nothing for us to review. American Rubber Corp. v. Jolley, 260 Ala. 600, 72 So. 2d 102; Allison v. Owens, 248 Ala. 412, 27 So. 2d 785.
Assignment of error No. 3 is that, "The trial court erred in charging in its oral charge on wanton misconduct by the plaintiff."
Without discussing the merits of this contention, we dispose of this assignment of error by stating that the jury found for the appellant on the matter of wantonness. Had the jury found for the appellee on the matter of wantonness, they could have awarded the appellee damages. This would have been so regardless of whether the jury believed the appellee guilty of negligence since contributory negligence is no defense to wantonness. A. B. C. Truck Lines v. Kenemer, 247 Ala. 543, 25 So. 2d 511 [24]; Alabama Power Co. v. Kendrick, 219 Ala. 692, 123 So. 215. We said in Austin v. Tennessee Biscuit Co., 255 Ala. 573, 52 So. 2d 190, 192:
See Stephens v. Middlebrooks, 160 Ala. 283, 49 So. 321.
Even assuming that the court's charge on wantonness was incorrect, "A determination that an erroneous charge has been given does not carry with it an automatic reversal. It is only when the error complained of `has probably injuriously affected the substantial rights of the parties' that we are authorized to reverse; and this is to be determined `after an examination of the entire cause'." Morgan *352 County v. Hill, 257 Ala. 658, 60 So. 2d 838, 840.
Assignment of error No. 4 is not sufficiently argued to apprise us of the manner in which it is contended the trial judge erred. Assignments of error not argued are treated as waived. Morgan County v. Hill, supra; Reese v. Mackentepe, 224 Ala. 372, 140 So. 550; Cobb v. Hand, 12 Ala.App. 461, 68 So. 541.
No reversible error has been shown and the judgment is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | June 16, 1955 |
c481aac4-b8d3-46aa-b970-482d32269d54 | Smith & Gaston Funeral Directors v. Wilson | 79 So. 2d 48 | N/A | Alabama | Alabama Supreme Court | 79 So. 2d 48 (1955)
SMITH & GASTON FUNERAL DIRECTORS, Inc.
v.
Maude Gray WILSON.
6 Div. 685.
Supreme Court of Alabama.
March 24, 1955.
G. P. Benton, Fairfield, and Wm. L. Clark, Birmingham, for appellant.
Wm. B. McCullough and Kingman C. Shelburne, Birmingham, for appellee.
GOODWYN, Justice.
Maude Gray Wilson, plaintiff below and appellee here, brought action against appellant, Smith and Gaston Funeral Directors, Inc., to recover damages growing out of an alleged trespass upon the grave of plaintiff's husband. The suit was commenced on January 24, 1952.
The case was tried on counts A, B, C, D, E, and F which charge the defendant with trespassing upon a lot or plot of land in the Grace Hill Cemetery in which plaintiff's deceased husband, Eli Gray, was buried in 1937. The suit seeks recovery of damages for mental anguish as well as punitive damages.
For the purposes of this appeal, it may be said that the counts, in substance, aver that the defendant, through its servants, agents and employees, while acting within the line and scope of their employment and authority as such, during the months of May, June, July, August and September, 1950, willfully, wantonly and intentionally trespassed upon the said grave lot and disturbed, desecrated and obliterated the said grave and its marks of identification. The jury returned a verdict in favor of plaintiff for $500. This appeal is from the judgment of the circuit court rendered pursuant to said verdict. There was no motion for a new trial.
It appears from the evidence that Grace Hill Cemetery was acquired by defendant in 1948; that for many years prior to that time, the care of the cemetery had been *49 neglected; that during the spring and summer of 1950 the defendant took steps to clear a part of the cemetery of an overgrowth of vines and weeds and to open up some of the roadways; and that it was in the doing of this work that the trespass to the grave of Eli Gray was committed.
It further appears that Grace Hill Cemetery has been in operation for more than sixty years; that it consists of about 25 or 30 acres west of Montevallo Road and south of Elmwood Cemetery, in Jefferson County, and is divided into five sections known as A, B, C, D, & E; that it consists of a great number of small burial plots or sites; that Eli Gray was buried in Section E, where only single graves were sold; that the other sections have block and lot numbers, evidencing, as we understand it, plots for multiple burials. Although privately owned, it is our view that it is properly classified as a "public cemetery", in contrast to a "private cemetery", and we have so dealt with it here. Smith and Gaston Funeral Directors, Inc. v. Dean, Ala., 80 So. 2d 227.
It further appears that plaintiff did not get a deed to Eli Gray's burial site but that said site was given a grave number for which she paid $15. It further appears that in 1938 the plaintiff had a concrete slab erected over Eli's grave for which she paid $35. The slab showed the name "Eli Gray", together with the date of his birth and death. Plaintiff testified that this grave was located near a sweetgum tree; that she visited the grave three or four times a year; that the last time she saw it in good condition was in 1949; that she attempted to locate the grave after her daughter's death in 1951; that on this occasion the concrete marker and the sweetgum tree were gone; that the ground around the grave had been pulled down and torn up; that she could not identify the spot where her husband was buried; that she bought the lot through the undertaker and picked out the lot herself; that in paying for the funeral, there was an additional amount added to pay for the grave and that the undertaker handled it as a matter of convenience for her.
The questions presented on this appeal are stated in appellant's brief to be as follows:
The answers to questions II and III have, we think, been sufficiently dealt with in the case of Smith and Gaston Funeral Directors, Inc. v. Dean, Ala., 80 So. 2d 227. We there held against appellant's contentions and see no need for further discussion of these two questions here.
To a certain extent we have also, in the same case, answered question No. I. In that case the claim was for punitive damages only. There was no claim for mental anguish as in the present case. The problem now presented is to determine whether the present action is one in case, rather *50 than in trespass, since damages for mental anguish, as well as punitive damages, are sought. Appellant seems to rely principally on the specially concurring opinion in Holder v. Elmwood Corporation, 231 Ala. 411, 414, 165 So. 235, as supporting its contention that the action is in case. The further insistence is that since it is an action in case it is barred by the statute of limitation of one year. Code 1940, Tit. 7, Sec. 26, supra. Our view is that the action is in trespass, that it is subject to the statute of limitation of six years, and is not barred. Code 1940, Tit. 7, Sec. 21, supra. In the Holder case one of the heirs of a grantee of a right of interment in Elmwood Cemetery sought to recover damages for mental anguish only for trespass to the lot. The other heirs did not join in the suit. It was held that the heir who brought the suit could maintain it. The difference between the members of the court participating in a consideration of that cause was with respect to the nature of the action there brought by the one heir. All of the participating justices agreed that the plaintiff could maintain the cause of action. Justice Gardner, later Chief Justice, wrote that he thought the action was one in trespass. The other three justices concurred in the result reached by Justice Gardner, but joined in a special concurrence in which they stated their view that the action was one in case. It is to be noted that in the instant cause the plaintiff is the grantee of the right to bury her deceased husband in the cemetery plot and, as such, is the sole owner of the possessory interest in the plot or burial site. Accordingly, her situation is different from that of the plaintiff in the Holder case which dealt with tenants in common. There are no tenants in common with the plaintiff here who must join with her in prosecuting the action. Although plaintiff and her deceased first husband, Eli Gray, have living children and other heirs at law, they are not tenants in common with plaintiff of Eli's burial site.
That mental anguish is recoverable in an action of trespass to property committed "under circumstances of insult or contumely" is well recognized. B. F. Goodrich Co. v. Hughes, 239 Ala. 373, 379, 194 So. 842, 847; Louisville & N. R. Co. v. Fletcher, 194 Ala. 257, 259, 69 So. 634; Mattingly v. Houston, 167 Ala. 167, 52 So. 78. See, also, Bessemer Land & Improvement Co. v. Jenkins, 111 Ala. 135, 151, 18 So. 565, 569, 56 Am.St.Rep. 26, where, in an action of trespass quare clausum fregit for removing a body from a grave, it was held:
But the claim for mental anguish in connection with a claim of general damages for a trespass and for punitive damages does not change the nature of the suit from being that of a trespass to one in case.
Since the question is not now presented, we pretermit discussion of what the rights of plaintiff's and Eli's children and other heirs at law would have been, had they been, at the time of the trespass, tenants in common of the possessory right to Eli's burial site. As noted in Smith and Gaston Funeral Directors, Inc. v. Dean, Ala., 80 So. 2d 227, supra, only three of the justices joined in the specially concurring opinion in the Holder case, supra, and we do not now wish to be understood as passing on the question there discussed.
The judgment appealed from is due to be, and is, affirmed.
Affirmed.
LIVINGSTON, C.J., and LAWSON and SIMPSON, JJ., concur. | March 24, 1955 |
9c10f75b-50a2-42ea-8805-270170473891 | Kendall Alabama Company v. City of Fort Payne | 79 So. 2d 801 | N/A | Alabama | Alabama Supreme Court | 79 So. 2d 801 (1955)
KENDALL ALABAMA COMPANY
v.
CITY OF FORT PAYNE.
7 Div. 221.
Supreme Court of Alabama.
April 28, 1955.
*802 Hawkins & Meadows, Fort Payne, for appellant.
Leonard Crawford and C. A. Wolfes, Fort Payne, for appellee.
MAYFIELD, Justice.
This is an appeal from a final decree rendered by the Circuit Court of DeKalb County, Alabama, in Equity.
Appellant-complainant's amended bill of complaint alleged that, on or about 1 September 1952, complainant set about opening a gasoline service station in the City of Fort Payne, Alabama, which municipality is the respondent-appellee in this action. The bill of complaint alleged that on 12 September 1952, complainant-appellant installed two 4,000 gallon gasoline tanks at its service station in Fort Payne, Alabama. Subsequently thereto, on 16 September 1952, the appellee municipal corporation by ordinance attempted to limit the size of storage tanks at service stations to 1,100 gallons capacity. Among other features of the ordinance was the provision making it unlawful to install tanks of a greater capacity than 1,100 gallons at any place where gasoline is sold at retail. On the day following the adoption of this ordinance, the municipal corporation notified complainant that it was in violation of this ordinance and would have to remove its 4,000 gallon gasoline tanks which it had installed on or about the 12th of September 1952. The bill further alleged that the respondent municipal corporation threatened to arrest the employees of the appellant company every day unless the tanks were removed.
Other facts were alleged in the bill of complaint which are not pertinent to the matter here considered on this appeal.
The prayer of the bill of complaint prayed for a decree enjoining respondent from attempting to enforce the ordinance against complainant pending the termination of the suit. Complainant further prayed that on final hearing a decree be entered permanently enjoining respondent from attempting to enforce the ordinance against complainant; or that a decree be entered declaring that complainant was not in violation of the ordinance, or declaring the ordinance void; or for general relief.
The cause was submitted on the pleadings and an agreed statement of facts with additional testimony of certain witnesses.
The trial court rendered its decree denying the relief sought on 26 May 1953. From this decree the complainant-appellant here prosecutes this appeal. The appellant took five assignments of error. This court has repeatedly, continuously, and consistently said that assignments of error that are not argued must be considered as waived. Morgan County v. Hill, 257 Ala. 658, 60 So. 2d 838. In the brief before this court, the appellant presents only two propositions of law. No argument whatsoever is advanced in support of Proposition II. Proposition I is directed to a definition of the word "install" citing Funk and Wagnall's and Black's Dictionaries. The argument in support of Proposition I is brief and consumes less than a single page. Neither the proposition nor the argument is addressed to any specific assignment of error. While it is our feeling that this court should treat with the very right of every cause in so far as it is possible to do so within its established rule, we must reluctantly conclude that the appellant's brief does not constitute a sufficient compliance with Supreme Court Rules 10 and 12, Code 1940, Tit. 7 Appendix, to warrant a review.
However, this court has properly held that it will give a liberal application to its Rules and will condone noncompliance when the record is short and simple, and when a compliance with the cited rules far as it is compliance with the cited rules is not essential to an understanding of the argument. McMillan v. Fabretta, 231 Ala. 188, 163 So. 793; Brothers v. Brothers, 208 Ala. 258, 94 So. 175. Therefore, in *803 reliance on these precedents, we have examined the sole contention presented in the appellant's brief, that the Circuit Court erred in not decreeing that its tanks were installed prior to the adoption of the ordinance in question. Unfortunately such a finding was not specifically sought in the appellant's bill, although it did contain a general prayer for relief.
The Chancellor's decree found the following:
Obviously, the decree of the Chancellor is based on grounds other than those argued by the appellant company. Nothing further being presented for argument, no basis exists for our reversing the lower court's decree.
We do not here decide the reasonableness of the regulation which point is not argued. Nor have we considered whether such ordinance is a valid exercise of the police power of the municipal corporation. The record is silent as to the present status of the appellant's business.
Accordingly, the decree of the Circuit Court, in Equity, is due to be, and must be, affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | April 28, 1955 |
ea3218db-7afa-4653-bb72-b032a7acb3fe | Ex Parte Cooke | 83 So. 2d 195 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 195 (1955)
Ex parte Stockton COOKE, Jr.
Petition for Review.
8 Div. 723.
Supreme Court of Alabama.
June 16, 1955.
Rehearing Denied November 3, 1955.
*196 Stockton Cooke, Jr., pro se, and Thomas C. Pettus, Moulton, for petitioner.
Harold M. Cook, Birmingham, for Board of Commissioners.
MAYFIELD, Justice.
This is the petition of Stockton Cooke, Jr., licensed and enrolled by the Supreme Court of Alabama to practice law in this State.
He here seeks to review the action of the Board of Commissioners of the State Bar which disbarred him.
The petitioner was found guilty under four charges. Charge 1 alleged a violation of Rule No. 27, Section A, of the Rules Governing the Conduct of Persons Admitted to the Practice of Law in the State of Alabama as approved by this court.
It is charged that the petitioner, while acting as attorney for a St. Paul, Minnesota, company collected and received, as attorney for that firm, the sum of $169.35 from one of its debtors on 20 September 1949. The detailed specification charges that petitioner did not remit this sum that he had collected, but acting with bad faith and with fraudulent purposes, misappropriated his client's money either by failing to pay it over promptly to his client or by appropriating to his own use all or part of the funds.
Charge 2 alleges a violation of the above said rule by the misappropriation of $25.00 belonging to the same firm and collected from the same debtor on 26 February 1949.
Charges 3 and 4 relate to the conviction of the disbarred attorney in the United States District Court for the Northern District of Alabama of the offense of embezzlement on 25 November 1941.
Charge 3 alleges a violation of Rule No. 30, Section A, of the Rules Governing the Conduct of Persons Admitted to the Practice of Law in the State of Alabama, in that the petitioner having been convicted of the said offense of embezzlement, continued to, refused, failed, neglected or omitted to promptly surrender, in the manner provided by law, his license to practice as an attorney of the State of Alabama.
Charge 4 alleges a violation of Rule No. 37(b), Section A, in that the attorney was convicted of embezzlement in the United States District Court.
The Grievance Committee of the Alabama Bar filed charges before the Board *197 of Commissioners against petitioner on 7 July 1952. The petitioner nowhere challenges the power and authority of the Board of Commissioners to act in this proceeding. The legality of such proceedings is wellsettled, and is presently the law of Alabama. Ex parte Dozier, Ala., 77 So. 2d 903; Ex parte Grace, 244 Ala. 267, 13 So. 2d 178.
Although no formal order was entered, by agreement, and with the overt consent of the petitioner, testimony was taken in Birmingham before a Commissioner on 18 January 1953. By his answer, the petitioner denied each and every charge. The Board of Commissioners of the Alabama State Bar considered the cause, and heard the arguments of the parties on 8 May 1953. On this same day, the Commissioner adopted a resolution finding the petitioner guilty of all charges and disbarred him.
Stockton Cooke, Jr., filed his petition in this court to review these proceedings on 12 June 1953. The evidence is compelling and we are satisfied that this attorney is guilty of the offenses contained in the charges. In fact, his defense was slightly more than perfunctory. He stated that he could "not remember" receiving the debtor's checks and he was positive that he did not "personally" get the money from these checks. The brief which the petitioner filed in this court, in his own defense, is less than three pages in length, and consists of a simple reassertion of his previous testimony. While it is crystal clear that the petitioner was guilty not only of professional but of criminal misconduct in the misappropriation of his client's funds in the year 1949, his accountability to the Board of Commissioners on 7 July 1952 must be examined in the light of the limitation, if any, on such punitive action.
Title 7, Section 24, Code of Alabama 1940, is as follows:
"The following must be commenced within three years:
While it appears that a majority of the states have with considerable logic denied the power of the legislature to place a statute of limitation on proceedings to disbar attorneys; nevertheless, our recent case of Ex parte Dozier, supra, applied the statute and held it valid. By this we are bound.
The Board of Commissioners contends the limitation has no efficacy when applied to charges 3 and 4 because of the continuing nature of the offense. The Rules, approved by this court, in connection with the violation contained in charges 3 and 4 are as follows:
*198 The Board of Commissioners contends that under Rule (b) the privilege of practicing law is ipso facto forfeited upon conviction and that no further act or proceeding is required to work disbarment. In State ex rel. Sanford v. Riddle, 213 Ala. 430, 432, 105 So. 259, 260, this court observed, in speaking of a statute identical in substance as Rule (b):
This policy, that the right of the individual must sometimes yield to the common good of the whole profession, is too firmly established to require review.
Yet, as we view the Rule, it is not spontaneous in its operation or self-executory. Disbarment is mandatory under the Rule only in the sense that a lighter punishment of reprimand or suspension may not be adjudged. The Rule provides that upon conviction an attorney must be disbarred. It does not provide that he is thereby disbarred. The responsibility still remains upon the Bar of this State, and the courts, to take affirmative action of record to rid the Bar, and the rolls of this Court, of an attorney, who by his criminal conviction, has conclusively established himself as being unworthy to be a member of our noble profession. Since we conclude that the operation of the Rule is not automatic, charge 4 was barred by the statute of limitation. Similarly, we are of the opinion that charge 3 was barred by the statute. The Board of Commissioners contends that Rule 30 imposes on attorneys convicted of certain offenses, the affirmative duty of surrendering the physical license. Further, that the Rule contemplates punishment for an unreasonable delay in complying with this mandatory feature of the Rule, and because of its continuing nature, the statute of limitation has no application. In Ex parte Dozier, supra [77 So. 2d 908], we disposed of a similar contention concerning a different duty in words which have some application here:
While it is not customary to detail the evidence adduced against disciplined attorneys in the opinions of this Court, some knowledge of the evidence in the present case is necessary to an understanding of our decision. The evidence in support of charges 1 and 2 clearly shows that the alleged amounts were collected on the specified dates and that remittance to the client was not made at the time of collection or within a reasonable time. The petitioner made a report to a firm of attorneys in St. Paul representing his client, that the debtor had promised to make a substantial payment on April 23, 1949. This St. Paul firm of attorneys made inquiries of the petitioner relative to these accounts on July 6, 1950, March 18, 1951, October 5, 1951, and again on November 12, 1951. The last of these letters to petitioner threatened to refer the matter to the Bar Association. Petitioner made no reply to any of these communications. On 21 December 1951, this St. Paul firm of attorneys, by registered mail, demanded the amounts collected and threatened legal action in the event the petitioner failed to comply. On January 3, 1952, petitioner wired the St. Paul firm of attorneys as follows:
"Remittance being mailed to you today."
No remittance was mailed on that date.
*199 Over six months later, on 7 July 1952, disbarment proceedings were instituted by the Grievance Committee.
Petitioner made the collection, which is the basis of charge 2, on 26 February 1949, more than three years before the Grievance Committee instituted proceedings against him. The Board of Commissioners contends that the statute of limitations has no applicability to charge 2 since the collection involved in the charge was an integral part of an entire transaction which was not completed until 21 September 1949. This contention is not valid. The misconduct charged did not occur within three years of the commencement of this proceeding. Its connection with subsequent misconduct, involving the same collection account, is without legal significance in so far as the running of the statute of limitations is concerned.
Nor do we view petitioner's promise on 3 January 1952, to remit the funds which he had collected as extending the running of the statute of limitations. It was the act of misappropriation, and not the indebtedness of the attorney to the client, that constituted the disbarrable conduct. Neither could subsequent repayment of the misappropriated funds alter or change the character of the misconduct. The misappropriation activated the running of the statute and petitioner's subsequent promises to repay did not interrupt the effective span of the statute. It is further argued, by way of analogy, that under the provisions of Code of 1940, Tit. 7, § 40, petitioner's promise tolled the statute. That statute pertains to civil suits and is not here applicable. The instant disbarment proceeding is not a civil suit. Ex parte Montgomery, 244 Ala. 91, 12 So. 2d 314.
We conclude therefore as to charge 2, the statute of limitations had run and the proceedings by the Grievance Committee as to this charge of misconduct were barred.
Having concluded that three of the charges that were the basis of the petitioner's disbarment were barred by the statute of limitations, we must perforce now consider the penalty that shall be imposed upon the petitioner. We are mindful that the successful application of the statute of limitations to three of the charges of misconduct against petitioner does not cleanse him of the moral taint connected with the commission of this highly unprofessional conduct. We are further mindful that petitioner's conduct strikes at the very honor and integrity of the Bar as a whole, and that the interests of the public and the legal profession alike demand severe action.
We are now brought directly to the inquiry of whether or not this court should affirm the order and judgment of the Board of Commissioners of the Alabama State Bar. After consultation and due deliberation, we are of the opinion that the Resolution of Disbarment should be affirmed subject to the petitioner's right to apply for reinstatement, at a future date, under Section C, as amended, of the Rules of the Board of Commissioners as approved by the Supreme Court of Alabama. It is so ordered.
Affirmed.
LIVINGSTON, C. J., SIMPSON and GOODWYN, JJ., concur.
As was pointed out on original deliverance, the defense interposed by Stockton Cooke, Jr., in this court was slightly more than perfunctory and consisted of a pro se brief of a little less than three pages. However, upon application for rehearing, Mr. Cooke employed counsel who fully and diligently briefed the cause. In order to meticulously preserve the rights of the petitioner, we suspended execution pending a determination of the application for rehearing. However, this court has said in an unbroken line of cases that matters not presented on appeal cannot be considered on application for rehearing. In our original opinion we carefully considered every matter brought to the court's attention at that time.
*200 There is, however, one feature of the application for rehearing which the court, under its inherent power to do full justice, believes to be worthy of comment and discussion.
The ex parte affidavit of a person not a party to this proceeding is filed in this court for the first time on application for rehearing. Such affidavit is to the effect that the affiant secretly took from petitioner's desk the debtor's check which petitioner had previously collected from his client's debtor. According to the affidavit this check had previously been endorsed by the petitioner and was the basis of Charge One. The affiant states that she cashed the check, retained the money and did not tell petitioner or anyone else of her theft of the check until just prior to the filing of the affidavit, and after deliverance of the original opinion in this case. The brief on rehearing directs this court's attention to its power to make independent inquiry into the merits of a disbarment case. It is urged that, pursuant to Section B, Rule 29 of the Amended Rules Governing the Conduct of Attorneys in Alabama, heretofore approved by this court, that we should order the taking of additional testimony touching the question raised for the first time on rehearing by the aforementioned affidavit.
It is true that in consideration of disbarment proceedings this court possesses inherent power, as well as specific statutory authority, to take such action as is agreeable to its judgment. Ex parte Thompson, 228 Ala. 113, 152 So. 229, 107 A.L.R. 671; Code of Alabama 1940, Tit. 46, § 25. In disbarment proceedings there can be no doubt that under a clear showing of extraordinary and demanding circumstances that this court has the power of independently pursuing factual questions even though raised for the first time on rehearing. In the case before us, however, even if we assume for the purposes of argument, the complete truth and accuracy of the statements contained in the ex parte affidavit, we are nevertheless of the opinion that the prior judgment of this court should not be disturbed. Even if the endorsed check which the petitioner had received had been stolen from him, it would not relieve him of the responsibility of making remittance to his client in the face of the repeated demands by his client for payment and the several promises of the respondent over a long period of time that payment of the collected money was forthcoming. Petitioner's guilt of the misconduct is clear. His duty to remit the funds which he had collected and held in trust for his client was unqualified.
We have given due consideration to whether the matter presented on rehearing justifies a modification of the order of disbarment. We have concluded that it does not for the reasons previously stated in the original opinion. This being our conclusion, the court feels that it would not be justified in resorting to the extraordinary procedure of taking additional testimony in this cause.
If the petitioner should hereafter elect to exercise his right to apply for reinstatement as a member of the Bar, the matter contained in the ex parte affidavit may be presented along with proof of his character and fitness at the time of his application for reinstatement to the Board of Bar Commissioners, as tending to mitigate the moral taint of the offense for which petitioner has suffered disciplinary action.
Opinion extended and application for rehearing overruled.
LIVINGSTON, C. J., and SIMPSON, and GOODWYN, JJ., concur. | June 16, 1955 |
15d41fbd-7a9e-4efd-a0d9-decc8d9ef984 | Hunt v. Ward | 79 So. 2d 20 | N/A | Alabama | Alabama Supreme Court | 79 So. 2d 20 (1955)
John Roy HUNT
v.
John M. WARD.
6 Div. 828.
Supreme Court of Alabama.
March 24, 1955.
*22 Tweedy & Beech, Jasper, for appellant.
Fred Jones, Haleyville, and Rankin Fite, Hamilton, for appellee.
PER CURIAM.
This is an appeal from a judgment for plaintiff in a suit for damage to his truck. The damage resulted from a collision with a car driven by defendant on the highway between Haleyville and Double Springs in Winston County, Alabama. Approaching the place of the collision the road extended generally southwesterly and northeasterly for a distance, but at that point there was a distinct curve to the north,the curve being to the left of defendant driving toward Double Springs. At the curve the south side of the road was elevated on account of it. There was a downgrade in each direction from the crest of the hill. Plaintiff's truck was following another truck driven by one Wamsley also traveling toward Haleyville. They were traveling upgrade as was defendant who was approaching from the opposite direction. They were each on his right side of the road until near the crest when the first truck, which we will designate as the "pick-up" truck leading plaintiff's truck by twenty-five or thirty yards, turned to his left into and across the lane in which defendant was approaching from the opposite direction. Defendant caused his car to slip down to his left and toward plaintiff's truck which was still in its right lane of traffic, resulting in the collision which damaged plaintiff's truck. There was a solid yellow line on the right side of the center white line leading toward Haleyville as the trucks were traveling. The "pick-up" truck had to cross that yellow line to *23 get into and over the lane in which defendant was traveling. That line was said by some of the witnesses to prevent passing by one traveling on the same said of the road. Defendant was injured, became unconscious and was carried to a hospital. Plaintiff's driver was not injured.
Plaintiff's evidence tended to show that the "pick-up" truck was completely off the hard surface on the left hand side of the road, where the driver had gone to get a person going to Haleyville, and it was not the sole cause of the defendant so maneuvering his car as to collide with plaintiff's truck.
We will treat the assignments of error in their logical order.
The first and second assignments are not well taken. When a document is offered in evidence, some of which is competent and material, and some is not, and a general objection is made to the whole, it is not reversible error to overrule the objectionMobile Light & R. Co. v. Ellis, 209 Ala. 580(10-11), 96 So. 773,nor to sustain it. Montgomery City Lines v. Callahan, 247 Ala. 23, 22 So. 2d 339; Smith v. Kifer, 36 Ala.App. 79(7), 52 So. 2d 399. That is the status of the written statement signed by plaintiff's truck driver, which was offered in evidence, and to which objection was sustained.
Assignments of error 17, 18, 19, 20 and 21.
There was testimony that after the accident plaintiff's truck was on the farm of Ray Motor Company. Plaintiff had bought another truck from Ray Motor Company, but did not trade in the damaged truck nor have it repaired.
The several questions involved in these assignments seek to ascertain how the truck reached the farm of Ray Motor Company and who carried it there. This occurred on the cross examination of plaintiff. We cannot see that this was relevant to any issue. Sometimes there is no reversible error in the admission of irrelevant matter on cross examination, but it is not reversible error to deny its admission.
Assignment of error No. 12.
It is claimed that during the trial, plaintiff's counsel frequently injected in it the existence of insurance by defendant. The court sustained the objections as made, but on each occurrence refused defendant's motion for a mistrial. Those matters were also included in a motion for a new trial after the verdict and judgment. The motion was overruled.
Plaintiff's witness Barnett was his truck driver on the occasion of the accident. He signed a written statement afterward as to the occurrence referred to above. The statement was offered in evidence but objection to it was sustained. It was exhibited to the witness and he admitted signing it.
Plaintiff's counsel asked him about the person to whom he made the statement, and he said he did not remember his name. He was then asked "if he told you he was representing the insurance company covering Mr. Roy Hunt's car". Objection was sustained: motion for a mistrial was overruled, and exception noted.
Assignment No. 13.
And again witness was asked "if he said he was investigating for an insurance company". Objection was sustained: motion for a mistrial was overruled and defendant excepted.
With respect to those assignments we observe that is is sometimes admissible and relevant to have it appear for certain material purposes or incidentally that defendant had liability insurance. When a witness had interested himself about the case, it was held in Pittman v. Calhoun, 231 Ala. 460(4), 165 Ala. 391, to be permissible as tending to establish bias to show that the witness represented the company carrying insurance for defendant.
We cannot say that it was wholly improper to ask the questions here involved. But the objection was sustained and the *24 questions did not indicate a purpose to get before the jury the incident of insurance without any show of right to do so. We think that it was not sufficient to require the court to grant a mistrial or a new trial. It is not every reference to insurance which is of such nature that the court should withdraw the case and grant a new trial. Pittman v. Calhoun, 233 Ala. 450(3), 172 So. 263.
Assignment No. 14.
Defendant was testifying as a witness and was asked by plaintiff's attorney on cross examination, if defendant did not tell plaintiff at a specified time and place, "It was my fault, and I want the insurance company to pay you, and if they don't pay you, you sue me and I will make you a good witness". The court sustained an objection, but overruled a motion for a mistrial, and defendant excepted.
Assignment No. 15.
Plaintiff's counsel asked defendant on cross examination if he did not at a certain time and place say to plaintiff, "Tell your truck driver that if I have to die that it wasn't his fault, and that I want my insurance company to pay for you trouble". The court sustained the objection, but overruled the motion for a mistrial, and defendant excepted.
Assignment No. 16.
Plaintiff's counsel asked plaintiff as a witness in rebuttal the following question: If defendant "told you to tell your driver that if I have to die, it wasn't his fault and that it was my fault, and I'm going to have my insurance company pay you for it". The court sustained defendant's objection to the question, but overruled his motion for a mistrial, and he excepted.
Appellant insists that his motion for a mistrial on account of the frequent reference to his insurance should have been sustained. Also that his motion for a new trial on the same ground should have been sustained.
Assignments of error 14, 15 and 16 are more nearly akin to each other than to assignments 12 and 13, although they all involve a question of evidence in respect to defendant's liability insurance covering this transaction, and therefore we will treat them separately from assignments 12 and 13. They include what may be termed an admission against interest in accepting the blame for the collision and exonerating plaintiff's truck driver. It has been held that such expressions are admissible on that theory. Clark v. Farmer, 229 Ala. 596(7), 159 So. 47.
In the same breath and as a part of the declaration, and to emphasize it, defendant went further and said he wanted (or was going to have) his insurance company pay for the trouble. The trial court declined to permit this proof evidently on the theory that it injected into the evidence the fact of defendant's insurance. But we have said it is not every such effort which is illegal. It was said in Smith v. Baggett, 218 Ala. 227, 118 So. 283, and approved in Pittman v. Calhoun, 233 Ala. 450, 172 So. 263, and Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757, 761, that: "It is unquestionably well settled that proof that a defendant had indemnity insurance is not admissible as an independent fact, but we have had cases where it is (admissible) when collateral to other material facts or so associated with or interwoven as to be inseparable that it becomes admissible and can only be eradicated or neutralized as bearing upon the defendant's liability by a limitation upon the effect of such evidence." See, also, Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829; Ex parte Rowell, 248 Ala. 80, 26 So. 2d 554.
In Smith v. Baggett, supra [218 Ala. 227, 118 So. 285], the Court was dealing with evidence that defendant said to plaintiff, "`Let it stay over there and I'll see the insurance man; send him over there to look at it and then he would have it moved off and have it fixed.'" The Court stated that it was not prepared to hold that it was improper to make that proof.
*25 In the instant case we are not prepared to hold that the proposed evidence was improper, but, if so, the objection being sustained, the question was not sufficient to require a mistrial or a new trial. Pittman v. Calhoun, 233 Ala. 450, 172 So. 263.
Assignment No. 7.
This assignment is as to refused charge X3. It is sufficient to say that the substance of this charge was covered in the court's oral charge and given charge X4.
Assignments of error 9 and 27.
These assignments relate to the refusal of charge 11 requested by defendant to the effect that every member of the jury must be reasonably satisfied that plaintiff is entitled to a verdict.
We have a line of cases holding that such a charge should be given. They are reviewed in City of Birmingham v. Bowen, 254 Ala. 41, 47 So. 2d 174, where it was held that its substance was included in the oral charge and given written charges. Such is the status of this record as there discussed. For the reason there assigned, the refusal of charge 11, supra, was not reversible error.
Assignments 10, 11, 28 and 29.
The charges referred to in these assignments are covered by given charge No. 15. Cf. Mobile Cab & Baggage Co. v. Armstrong, 259 Ala. 1, 65 So. 2d 192.
Assignments 8 and 26.
These assignments relate to refused charge No. 7, which was covered by charge No. 6 and the oral charge.
Assignments 6, 22, 23, 24 and 25 relate to the amount of recovery involved, the admission of certain evidence and the refusal of a charge. Assignments 3, 4, and 5 raise the contention on a motion for a new trial on the ground that the verdict was excessive. The court overruled objection to the evidence that the value of the use or hire of plaintiff's truck was forty or fifty dollars a week, and that it would have taken three weeks or a month to get the parts and fix it. It was also proven that it would reasonably cost about $1,000 to do so.
The court refused a requested written charge to the jury that plaintiff cannot recover for the loss of the use of the truck. The court in the oral charge did not mention that claim nor the matter of interest or the amount it would take to repair and restore the truck to its original condition: but instructed the jury that if they find for the plaintiff they should fix the amount of the recovery so as "to put him back like he was before the accident happened". The jury returned a verdict for plaintiff and assessed his damages at $1,500. The evidence for plaintiff tended to show that the truck was worth $1,400 before the accident and $200 afterward, or $1,250 before and $150 after, making a difference of $1,100 or $1,200. The truck was not repaired but plaintiff immediately bought another to take its place. The old damaged truck had been left unused on the farm of Ray Motor Company.
The law fixes a standard by which to measure plaintiff's damages. When so, and it is not left to the mere discretion of the jury, the amount so ascertained should bear interest at the rate of six per cent per annum from the date of the accident to the date of the judgment. Title 9, section 60, Code; Roe v. Brown, 249 Ala. 425, 31 So. 2d 599; Rochelle v. Rochelle, 235 Ala. 526(6), 179 So. 825; Harden v. Wood Lumber Co., 235 Ala. 310(9), 178 So. 540; Tennessee Coal, Iron & R. Co. v. Jourdan, 221 Ala. 106, 128 So. 132; Mobile & Ohio R. Co. v. Williams, 219 Ala. 238(21), 121 So. 722; Alabama Power Co. v. Allen, 218 Ala. 416(8), 118 So. 662; Atlanta & Birmingham Air Line Ry. Co. v. Brown, 158 Ala. 607, 48 So. 73.
The primary rule is generally stated to be that the damage is embraced in the formula that it is the difference in the value of the truck before and after the accident, caused by the accident. If it is so damaged as not to be repairable and has no value after the accident, it would be *26 simply its value at the time of the accident (less its junk value, if any). On this amount interest should be allowed. If it is repairable and the owner sees fit to repair it and while doing so he is deprived of its use and incurs other expense in that connection, he may have the reasonable cost of the parts and labor in making the repairs together with the reasonable cost of transporting it and other incidental cost, if any, and the reasonable value of its use or hire during that time, on the theory that he could have hired one for use during that period: also interest on the total as indicated above. See, Mobile Light & Power Co. v. Gadik, 211 Ala. 582, 100 So. 837; Blackmon v. Gilmer, 221 Ala. 554, 130 So. 192; Plylar v. Jones, 207 Ala. 372, 92 So. 445; Southern Ry. Co. v. Reeder, 152 Ala. 227, 44 So. 699.
If the owner of the damaged truck abandons it and buys another for his own use, he has thereby mitigated his damages and may only recover the amount of the depreciation in the value of the damaged truck, on the theory that to mitigate his damages he could have immediately sold it at its depreciated value. The amount of such depreciated value should be deducted from the amount of its value immediately before the accident to ascertain the principal sum of his actual damage. When so found, interest should be added from the date of the accident to the date of the judgment. Interest of course runs on the judgment until it is paid. Title 9, section 63.
We do not know how the jury arrived at the figure of $1,500 for their verdict. It should not be more than $1,200 with interest at the rate of six per cent per annum from the date of the accident, May 28, 1953, to the date of the judgment.
We find no other error in the record. Therefore by authority of section 811, Title 7, Code, we should affirm the judgment on condition that within thirty days appellee shall file in this Court a remittitur of the damages in excess of $1,200 plus interest as indicated above. If this is not done, the judgment should be reversed and the cause 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.
Affirmed conditionally.
LIVINGSTON, C. J., and SIMPSON, GOODWYN and MAYFIELD, JJ., concur. | March 24, 1955 |
73cf928b-a63a-41bb-baff-92b3c0735702 | Drake v. Drake | 80 So. 2d 268 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 268 (1955)
Thelma J. DRAKE
v.
Louis V. DRAKE.
6 Div. 750.
Supreme Court of Alabama.
April 14, 1955.
Rehearing Denied May 26, 1955.
*269 Victor H. Smith, Kelvie Applebaum and Chas. M. Hewitt, Birmingham, for appellant.
Chas. W. Greer, Birmingham, for appellee.
MERRILL, Justice.
Louis V. Drake and his wife, Thelma, each own an undivided one-half interest in a house and lot in Birmingham which admittedly is worth between $9,000 and $10,000. Louis filed the bill in this cause to sell the property for division. Thelma filed a plea showing that they had been married for 20 years, that the deed was made to them jointly; that she had continuously occupied the property as her homestead; that subsequent to the purchase of the property she had been granted a divorce a menso et thoro from complainant but no divorce a vinculo matrimonii had ever been rendered against either of them; that until the rendition of the decree both parties had occupied the premises as their homestead; and that she protested and objected to any sale for division.
*270 The plea was declared to be insufficient, and respondent filed her answer and cross bill setting up in more detail the matters shown in the original plea, alleging that she was due an accounting for the cost of improvements to the property for which she had paid, and she prayed that the court would grant an accounting, hold that the property could not be sold for division because it was her homestead, or if it could be sold, that the court decree that "the sum of $2,000 from the share or interest of cross respondent in the proceeds of sale be set apart and allotted to cross complainant for homestead."
The cause was heard ore tenus by the court and the decree provided: (1) the real estate was owned one-half by complainant, subject to the homestead interest of the complainant and the respondent of the value of $2,000, and one-half by the respondent, and that the property could not be equitably divided without a sale for division; (2) directed the Register to sell the property after legal notice; (3) authorized the Register to obtain an abstract; (4) directed report of the sale; (5) provided for the fixing of an attorney's fee for complainant's solicitor for his services; (6) directed a reference to the Register to state an account between the parties and report his findings, and (7) the Court reserved the cause for further orders, including a determination as to the proper disposition of the $2,000 in lieu of homestead out of the half interest of the complainant. Thelma, the wife, has appealed from this decree and Louis, the appellee, has cross assigned errors.
Appellant has twelve assignments of error which will be covered in this opinion and appellee has six cross assignments of error which make the points that the real estate was not subject to a homestead interest and that the court should not have reserved "determination as to the proper disposition of said $2,000.00 in lieu of homestead out of the one-half interest of said complainant."
We are confronted first with the effect of the divorce a mensa et thoro. A divorce from the bonds of matrimony bars the wife of her dower and of any distributive share in the personal estate of her husband, Code of 1940, Title 34, § 33, but a decree of divorce from bed and board does not remove the vinculum of marriage. Such a divorce is only a legal separation, the marriage continuing in regard to everything not necessarily withdrawn from its operation by the decree, McWilliams v. McWilliams, 216 Ala. 16, 112 So. 318. This court said in Adair v. Adair, 258 Ala. 293, 62 So. 2d 437, 443:
The husband contends that since the decree of divorce a mensa et thoro was silent as to homestead or any other property interest, the property ceased to be the homestead at the time he moved away from the premises when that decree was rendered on September 12, 1951. The wife contends that § 205 of the Constitution protects her in that no alienation of the homestead by the husband is valid without her assent, and that Louis, her husband, compelled the separation by his cruel treatment, that being the basis of the divorce from bed and board; and to permit "him to sell the homestead for division would mean that a court of equity was assisting him to do indirectly, through a sale for division, what he could not do under the constitution by a direct sale or conveyance. These questions were presented to this court in the cases of Winkles v. Powell, 173 Ala. 46, 55 So. 536; Lewis v. Lewis, 201 Ala. 112, 77 So. 406, 408. In those cases the court held that where the husband abandoned the wife and the home, the wife continued to have homestead rights so long as she remained a bona fide citizen of this state.
*271 In each of these cases Justice McClellan wrote a vigorous dissent, which states the position of the appellee here. In Lewis v. Lewis, supra, the court said:
True, Louis Drake did not abandon his wife and homestead in exactly the same manner as did the husbands in the cases cited, but the divorce a mensa et thoro was granted because of his cruel treatment toward his wife. We cannot perceive any reason why a husband who compels a separation by his misconduct, as here, should be in a more favored position than a husband who was guilty of abandonment. Thus we must hold that the property here involved is subject to the homestead rights of the wife.
But the wife contends that the property cannot be sold without her consent and that her plea that it was the homestead should have been held sufficient as a complete defense. She relies on Mitchell v. Mitchell, 101 Ala. 183, 13 So. 147, 148, where the husband and wife each owned an undivided one-half interest in the homestead and the husband filed a petition to sell for division and the wife objected. The court said:
The original record in the Mitchell case shows the land involved was six acres not worth over $1,000.00, that being all the real estate the husband and wife owned.
*272 In Miles v. Miles, 207 Ala. 57, 91 So. 886, 888, the court, speaking through Chief Justice Anderson, said:
The last sentence quoted is probably dictum inasmuch as the bill in the Miles case averred, "`That none of said lots were used as a homestead for the complainant or respondent'", but it states the law of this state where the homestead is not in excess of the quantum receiving constitutional protection. See Miles v. Miles, 211 Ala. 26, 99 So. 187, where the same case was considered on the merits. But that point in those cases is not applicable here because it is stipulated that the property involved is worth from $9,000 to $10,000. We, therefore, hold that the rule in the Mitchell case applies only where the entire property is included within the homestead exemption, and it does not apply here. For a case reaching the opposite result see Walton v. Walton, 59 Cal. App. 2d 26, 138 P.2d 54, which cites the Mitchell case.
The constitutional provision which is § 205 of the Constitution of 1901 first came into our basic law in the Constitution of 1868. That section was construed by this court in an opinion written by Stone, J., in Miller v. Marx, 1876, 55 Ala. 322, where, speaking of the homestead exemption, the court said:
It is evident that the homestead referred to in § 205 of the Constitution of 1901 and in Code of 1940, Title 7, §§ 625 and 626, as amended, means that a homestead which cannot be alienated without the wife's consent is one that does not exceed in value $2,000 and in area 160 acres.
At one time a home owned and occupied by a married man greater in value and area than the limits noted above did not have the characteristics of a homestead and did not come within the provisions of the constitution prohibiting its alienation without the consent of the wife. Miller v. Marx, supra. This holding in 1876 demonstrated the defect in the older statutes and in 1877 the legislature enacted a law which is now § 656, Title 7, Code of 1940. A history of this section appears in Estes v. Metropolitan Life Ins. Co., 232 Ala. 656, 169 So. 316, 317, as follows:
We do not assert that § 656, Title 7, Code of 1940, is applicable here, but it would apply had Louis Drake made a conveyance of his interest in the property and made the alienee a party to the bill. We do think the section and the cases where it has been applied, serve as an analogy for us in the instant case.
We have said that the wife has homestead rights in her husband's half interest in the property. It is agreed that both the homestead and his half interest in same exceeds $2,000 in value. We have observed that it was the legislative intent that the homestead interest be preserved even though the homestead exceed the value of $2,000. Equity has original jurisdiction to entertain a suit to sell lands for division, Title 47, § 186, and "may adjust the equities between and determine all claims of the several cotenants" etc. Title 47, § 189. It has been held that the wife, owning a one-half interest in the homestead, had a greater interest in such homestead than that of a joint owner of ordinary property, Miles v. Miles, 211 Ala. 26, 99 So. 187.
We, therefore, hold that the lower court was correct in finding that the property was owned one-half by the husband, subject to the homestead interest of the husband and the wife of $2,000.
The appellant and the appellee assign as error that part of the court's decree which reserved a determination as to the proper disposition of the $2,000 in lieu of homestead out of the half interest of the husband. Appellant cites Code of 1940, Title 47, § 188; Harvey v. Jenkins, 219 Ala. 121, 121 So. 419; Whitehead v. Boutwell, 218 Ala. 109, 117 So. 623, and Bean v. Northcutt, 240 Ala. 289, 199 So. 7, 8. Section 188 reads:
The cases cited all hold that it is error to decree the sale of the jointly owned lands in advance of a decree adjudicating the interests of the several tenants in common. But there is no conflict between the statute and these cited cases, and the decree of the lower court in the instant case. The interest of each of the parties has been determined to be one-half, with the husband's interest subject to a homestead right of the value of $2,000. There is nothing in the decree to cast uncertainty on the title or to prevent the purchaser from bidding the full worth of the property.
We gather from the appellant's brief that she expects the court to decree that the $2,000 in lieu of the homestead should be taken from the appellee's share and given to her to use as she sees fit. This is not a correct assumption. Just as the property subject to the homestead right belongs *274 to the husband, just so will he be the owner of the $2,000 from the proceeds of the sale, subject to its use for the benefit of his wife so long as their present status continues and she remains a citizen of this state. There are many possible arrangements which might be made by the court in reference to this sum, either with (preferably) or without the consent of the parties. But as stated in Bean v. Northcutt, supra, "This court will not decide in advance questions not determined by the court below and reserved for decision by decree."
The decree of the lower court is affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | April 14, 1955 |
9eb11387-a42d-434b-9bdd-94d9037785a7 | Kelton v. Gulf States Steel, Inc. | 575 So. 2d 1054 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1054 (1991)
Louis D. KELTON and Gail Kelton
v.
GULF STATES STEEL, INC.
89-1465.
Supreme Court of Alabama.
January 11, 1991.
Michael L. Roberts, Larry H. Keener and Gregory S. Cusimano of Floyd, Keener, Cusimano & Roberts, Gadsden, for appellants.
James C. Inzer, Jr. of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
JONES, Justice.
Plaintiffs, Louis D. Kelton and his wife Gail Kelton, appeal from a summary judgment in favor of the defendant, Gulf States Steel, Inc.[1]
On October 28, 1986, Kelton, on his first day as an employee of Birmingham Industrial Painting Company ("BIPC"), was seriously injured when a section of grating in a walkway gave way under his weight, causing him to fall approximately 26 feet to the floor below. BIPC had contracted with Gulf States to furnish all labor and equipment used to replace the corrugated sheeting at the "regeneration plant."[2]
Gulf States' motion for summary judgment, which was grounded on the affirmative defense of assumption of risk, was supported by the following: 1) the deposition of Louis Kelton, stating that, although he had been advised that the walkways could be "rotten," they looked "O.K." to *1055 him; and 2) an affidavit of a co-employee of Kelton, Jerry Garmany, which stated, in part, as follows:
In opposition to Gulf States' motion for summary judgment, Kelton offered: 1) all evidentiary material of record; and 2) an affidavit of expert witness John Clement, stating the opinion that Kelton, under the circumstances, acted within standards of care applicable to iron workers.
With this factual background, we turn to the legal issue of the case; i.e., whether Kelton, as a matter of law, assumed the risks for his injuries and thus is barred from recovery. The affirmative defense of assumption of risk is narrowly confined and is restricted by two requirements: 1) knowledge and appreciation by the plaintiff of the danger he is incurring; and 2) voluntary consent to bear that risk. Kemp v. Jackson, 274 Ala. 29, 145 So. 2d 187 (1962); W. Prosser & P. Keeton, Prosser & Keeton on Torts § 68 (5th ed. 1984).
We conclude that there exists a question of fact as to whether Kelton, as a first-day employee, possessed the requisite appreciation of the risk and whether his actions, under the circumstances, amounted to a voluntary consent to bear the risk. Where, as here, the only viable options available to the injured employee were to remain on the job and try to avoid injury or to leave the employment and thus totally avoid the risk, the resolution of the question whether Kelton had assumed the risk is not subject to summary disposition, as a matter of law. Just as the resolution of the ultimate issue of Gulf States' liability is one for the jury's determination, so is the resolution of the affirmative defense of assumption of risk.[3] Therefore, we reverse the judgment and remand the cause.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] Gail Kelton has a derivative claim for loss of consortium. Because her claim is dependent upon Louis Kelton's claim, the remainder of this opinion will refer only to Louis Kelton.
[2] The appellee's brief contains a detailed description of the location of the plant where the accident in question occurred: "Within the steel plant premises is an area and building designated as `regeneration plant' which plant has a process involved in the recapturing of acid used in the steel processes so that the acid can be reused in the working of steel. The regeneration plant had steel walkways with iron and steel braces and fixtures within the regeneration plant and had three levels ... within the regeneration building. The recapture of acid, acid fumes and other residue of the recapturing process had very [corrosive] effects on the steel within the regeneration plant which was composed of walkways, braces and so forth and ... the walkways within the regeneration plant were in bad condition.... As a result of this deterioration, Gulf States was involved in an ongoing repairing process for the repair of the walkways and other fixtures within the regeneration plant which required replacement of various portions of the regeneration plant due to the corrosive effect of the acid on the steel."
[3] Compare our holding in Armstrong v. Georgia Marble Co., 575 So. 2d 1051 (Ala.1991), in which we affirmed a summary judgment for the defendant because an employee of the defendant had notified the vice president and co-owner of the plaintiff's employer of a potentially dangerous condition on the premises, thereby discharging its duty to give "sufficient warning" to a business invitee of a dangerous condition. | January 11, 1991 |
5a1d085e-68fb-41be-a160-18b520c01a2e | Quinn v. Hannon | 80 So. 2d 239 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 239 (1955)
C. E. QUINN et al.
v.
George W. HANNON.
7 Div. 148.
Supreme Court of Alabama.
March 24, 1955.
Rehearing Denied May 26, 1955.
*240 C. E. Quinn and Phil Joiner, pro se.
Earl McBee, Birmingham, and Embry & Embry, Pell City, for appellee.
GOODWYN, Justice.
Appellants, complainants and cross-respondents below, filed a bill in equity against appellee, respondent and cross-complainant below, seeking to quiet title to an eighty acre tract of "wild land" located in St. Clair County. The bill avers that "complainants are the owners" of said land and "are in quiet and peaceable possession of same"; that "respondent is reputed to claim some right, title, interest, lien, claim or encumbrance in, upon or to the said real estate"; and that "no suit is pending to test the validity of the respondent's said claim." The respondent is called upon "to set forth his claim" to the land "and by what instrument it is derived." The prayer is for a decree adjudging that respondent "has no right, title, interest, lien or encumbrance in, to or upon said land."
Respondent filed an answer to the bill, making the answer a cross-bill, in which it is denied that complainants "are in the quiet, peaceable possession" of the land and averring that "complainants have never been in the actual or constructive possession of said real estate." It is further averred that respondent "holds title" to said land "under and by virtue of a conveyance from H. H. Montgomery, Superintendent of Banks of Alabama, liquidating Leeds State Bank, under date of September 9, 1931, which deed is of record in the office of the Judge of Probate of said county at Pell City in Deed Volume 20, page 574, and further that the Respondent was placed in possession of said lands at the time of the execution and delivery of said deed as aforesaid, and that he has remained in the actual, peaceable and uninterrupted possession of said lands, exercising actual acts of ownership thereon by going upon and keeping off trespassers regularly and consecutively each year, and by cutting and removing timber from various parts of said lands to the exclusion of all persons."; *241 that complainants claim title and the right to the possession of said lands under and by virtue of a tax deed from the State Land Commissioner dated February 12, 1947, and filed for record in St. Clair County on February 24, 1947; that the tax sale was "erroneously made"; that if respondent is liable for any tax "it would be for one year's taxes and expenses of sale, which respondent offers to pay into Court, and respondent offers to do equity and to perform and comply with any order or decree made in said cause." The prayer of the cross-bill is for a decree "(a) setting aside, canceling and annulling the purported tax sale of said lands, (b) divesting out of the complainants any right, title, interest or claim in and to said real estate and removing the same as a cloud upon the title of respondent and vesting into respondent all right, title and interest in said real estate." The manifest purpose of the cross-bill is to redeem from an alleged void tax sale.
In stating the case, we have passed over pleadings and rulings thereon which are not involved on this appeal.
It appears to be uncontroverted that the land was offered for sale by the tax collector of St. Clair County on June 3, 1932, pursuant to a May 2, 1932, decree of the Probate Court of said county ordering a sale of the land "for the payment of state and county taxes then due from Leeds State Bank the owner of said lands"; that, there being no bidder at said offering for sale, the land was bid in for the state for $10.56, "the sum of said taxes, fees, costs, and expenses"; that the 1932 tax sale was for unpaid taxes which became due on October 1, 1931; that complainants paid $160 to the state for the tax deed to them; that respondent paid $200 for the deed to him from the State Superintendent of Banks, and that said deed was filed for record in St. Clair County on December 1, 1931; that for the tax years 1932 through 1943 said land was assessed by "Hannon & Simpson", the respondent and his partner, and the taxes thereon paid by them; that in August, 1943, respondent acquired his said partner's interest in said land, and for the tax years thereafter the land was assessed by respondent and the taxes thereon paid by him; that the Leeds State Bank was placed in liquidation on July 8, 1929, and its assets and property taken over at that time by the State Superintendent of Banks.
The final decree, here appealed from, denied relief to complainants and granted the relief sought by the cross-bill upon payment by cross-complainant to the register of the court, for payment over to cross-respondents, of the sum of $10.56, "the amount of the State's lien for one year's taxes."
It is earnestly insisted by appellee that the case should be affirmed because appellants' brief does not meet the requirements of Supreme Court Rules 1 and 10, Code 1940, Tit. 7 Appendix. While we might, with justification, order an affirmance for insufficient compliance with these rules, we are inclined to exercise our discretion in the matter and give consideration to appellants' brief. Schmale v. Bolte, 255 Ala. 115, 117, 50 So. 2d 262; 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.
Cross-respondents seem to take the position that cross-complainant is barred from any rights by what is commonly referred to as the "short statute of limitation" of three years, Code 1940, Tit. 51, § 295, which provides that "no action for the recovery of real estate sold for the payment of taxes shall lie unless the same is brought within three years from the date when the purchaser became entitled to demand a deed therefor; * * *." In discussing this section in Singley v. Dempsey, 252 Ala. 677, 681, 42 So. 2d 609, 612, we had this to say:
We have carefully examined the evidence, reduced to writing by agreement of the parties and presented to the trial court without an oral hearing, and we are clear to the conclusion that cross-respondents were not in the actual adverse possession of the land as required. At most, they had only a scrambling possession which is not sufficient to bring in operation the bar of the "short statute of limitation". Although cross-respondents assessed the property and paid taxes thereon after purchasing it from the state, the cross-complainant also assessed the property and paid taxes thereon for each year, except 1931, after receiving his deed. There is evidence that both parties had the land surveyed and posted "No Trespassing" signs. And there is evidence that cross-complainant twice sold timber off the land. It appears that cross-respondents went on the land several times but we do not find anything in the evidence justifying a conclusion that they were in the actual adverse possession of it. Cross-complainant was not barred by Section 295, supra, from making redemption.
It seems to be established that the 1931 tax assessment, on which the tax deed is based, was an invalid assessment because the property for that year was assessed to Leeds State Bank and not to H. H. Montgomery, as State Superintendent of Banks. The Leeds State Bank was placed in liquidation on July 8, 1929, and its affairs at that time were taken charge of by the Superintendent of Banks. The said Superintendent, in discharging his duty of liquidating the Bank, was acting in the capacity of "a statutory receiver and trustee of the assets" of the Bank, Wood v. Williams, 238 Ala. 580, 582, 192 So. 421; Ex parte Tennessee Valley Bank, 231 Ala. 545, 552, 166 So. 1. Accordingly, the land should have been assessed to him for the 1931 tax year, that is, for the taxes which became due on October 1, 1931, Code 1940, Tit. 51, §§ 48, 50; this, for the obvious reason that the assessment for that year could not have been made until October 1, 1930. Act No. 328, appvd. Sept. 15, 1919, Sect. 42, Gen.Acts Ala. 1919, p. 298; Code 1940, Tit. 51, § 37. Whatever interest the Bank had in the land was transferred to the Superintendent of Banks when the Bank was placed in liquidation on July 8, 1929. During the assessment period for the 1931 taxes the Bank had no assessable interest in the land. Therefore, the assessment to the Bank for that year was invalid. Singley v. Dempsey, 252 Ala. 677, 685, 42 So. 2d 609, supra.
A person who acquires the state's interest in realty following an invalid tax sale to the state, has only "a lien on the property as security for the repayment to him of the amounts specified in sections 283 and 318, Title 51, Code" 1940 [§§ 3096 and 3123, Code 1923]. Gunter v. Smith, 257 Ala. 640, 642, 60 So. 2d 611, 613. The effect of these sections is to place the purchaser in the shoes of the state, so to speak, giving to the purchaser whatever rights the state might have had if the sale had not been made. If the redemption here were from the state the amount to be paid would be the amount of money for which the lands were sold at the tax sale, with the statutory interest thereon from the date of sale, there being no subsequent taxes due on the land. § 3110, Code 1923; *243 § 304, Tit. 51, Code 1940. It is to be noted that § 3110, Code 1923, supra, which was in effect at the time of the tax sale on June 3, 1932, provided for payment of interest on "the amount of money for which the lands were sold * * * at the rate of fifteen per cent per annum, from the date of sale", while § 304, Tit. 51, Code 1940, supra, which was in effect when the State Land Commissioner sold the land to cross-respondents on February 12, 1947, and is still in effect, provides as follows: "In order to obtain the redemption of land from tax sales, where the same has been heretofore or hereafter sold to the state, the party desiring to make such redemption shall deposit with the judge of probate of the county in which the land is situated, the amount of money for which the lands were sold, with interest thereon at the legal rate of interest prevailing at the time said property was sold for taxes, * *." [Emphasis supplied.] Does this mean the rate prescribed by the redemption statute or by the statute fixing the lawful rate of interest in Alabama? Our view is that it refers to the lawful rate of interest which, at the time of the tax sale, was 8% per annum. § 8563, Code 1923, Code 1940, Tit. 9, § 60. This has been the administrative interpretation. Rep. Atty.Gen. 1936-38, p. 90.
It is undisputed that the lien of the state was for $10.56, that being the amount due for the 1931 taxes, including costs and penalties incident thereto. No subsequent taxes were paid by cross-respondents. Accordingly, as assignees of the state's lien, the cross-respondents should be paid, on redemption by cross-complainant, said sum of $10.56 together with interest thereon at 8% per annum from June 3, 1932. The decree will be here modified by adding to said sum of $10.56 the said interest thereon from June 3, 1932, to the date of our decree of modification. As thus modified, the decree appealed from is affirmed.
Decree modified and, as modified, affirmed.
LIVINGSTON, C. J., and SIMPSON and MAYFIELD, JJ., concur. | March 24, 1955 |
b30375ca-04db-4905-a0ab-67f1f884cab5 | Employers Insurance Company of Alabama v. Rives | 87 So. 2d 653 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 653 (1955)
EMPLOYERS INSURANCE COMPANY OF ALABAMA, Inc.,
v.
James V. RIVES.
6 Div. 662.
Supreme Court of Alabama.
May 12, 1955.
Spain, Gillon & Young, Birmingham, for petitioner.
Lange, Simpson, Robinson & Somerville, Birmingham, opposed.
*654 GOODWYN, Justice.
We granted certiorari to the Court of Appeals to review the judgment and decision of that court in the case of Employers Insurance Company of Alabama, Inc., v. Rives, 87 So. 2d 646.
The question presented involves the construction of a liability insurance policy issued by the Insurance Company to Rives, a contractor, wherein the insurer agreed "to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of injury to or destruction of property, including the use thereof, caused by accident and arising out of the hazards hereinafter defined." [Emphasis supplied.]
The case was tried by the court, without a jury, on a "`Stipulation As To Facts'", of which the following, taken from the Court of Appeals' opinion, is a substantial part:
Judgment was rendered in favor of Rives, the insured, for the sum of $850. The Court of Appeals reversed that judgment holding that "the damage to the well was not sustained as the result of an accident, but was caused by plaintiff's negligence in failing to retighten the connecting nut at the union, unattended by any accidental cause, and the result that followed was the natural and probable consequence of such negligent act."
It is apparent that the precise point presented is whether the injury to the well was "`caused by accident'", that is, was the failure of Rives' employees to retighten the connecting nut at the union, resulting in the gasoline leakage, an "accident", as that term is used in the policy. Our view is that it was and that the Court of Appeals was in error in holding to the contrary.
We approach a consideration of this case having in mind the following rules approved in Cook v. Continental Ins. Co., 220 Ala. 162, 164, 124 So. 239, 242, 65 A. L.R. 921, which apply when construing a contract of insurance, viz.:
The basis of the Court of Appeals' decision, as stated therein, is that the injury "was caused by plaintiff's negligence * *, unattended by any accidental cause," and that, therefore, there can be no recovery since the contract of insurance only protects against "`damages because of injury * * * caused by accident'". That is to say, as we understand it, that if an injury is found to be the result of negligence such finding necessarily is exclusory of a finding that the injury resulted from an accident. Such appears to be the holding of a line of cases from other jurisdictions, as indicated by some of the authorities cited in the Court of Appeals' opinion. However, there is also a line of cases, followed in Alabama, holding that the term "accident" does not necessarily exclude the idea of negligence. As stated in 1 C.J.S., Accident, pp. 439, 440:
From 38 Am.Jur., Negligence, § 6, p. 647, is the following:
This court has been inclined to give a liberal construction to the word "accident". In Honeycutt v. Louis Pizitz Dry Goods Co., 235 Ala. 507, 509, 180 So. 91, 92, the restricted definition of "accident" was clearly put to one side in favor of the more liberal construction. It was there said:
In American Mut. Liability Ins. Co. v. Agricola Furnace Co., 236 Ala. 535, 537, 183 So. 677, 678, the suit was for declaratory judgment to determine whether the Insurance Company, as insurer of the Furnace Co., was bound by its contract of insurance to defend an action at law brought against the Furnace Co. by one Reed. Involved was the construction of an insurance policy similar in wording to the one now under consideration. In that case the policy contained the following provision:
Reed's complaint against the Furnace Company alleged:
It is apparent that Reed, in charging in his complaint that defendant "did not use reasonable diligence to provide a reasonably safe place in which to do his work", in effect charged defendant with being negligent. In holding that the insurer was bound by its contract of insurance to defend the Furnace Company, this court said:
"* * * The policies cover accidents which occur within the period *657 of their respective term. A tort is often an accident, as when injury results from negligent conduct, and it may be of a continuous sort, and, if so, a recovery may be had for all damages which occurred within the period of limitations, 37 Corpus Juris 897, and by successive actions. Louisville & Nashville R. Co. v. Higginbotham, 153 Ala. 334, 44 So. 872.
What was said in Berger Bros. Electric Motors, Inc., v. New Amsterdam Casualty Co., 267 App.Div. 333, 46 N.Y.S.2d 64, 68, seems to be of peculiar significance here. The question there was whether damages to turkey eggs in an incubator resulting from improper circulation of air due to failure of a contractor's employees to properly install impeller blades on an electric motor used for cooling the incubator, resulted from an "accident" within liability policies covering the contractor's liability for injury to property as the result of an accident. The trial court had agreed with the insurer's argument that the damages resulted from negligence and not an accident. In reversing on appeal the appellate court said:
We are at the conclusion that the Court of Appeals erred in holding that the damage to the well was not sustained as the result of an accident. Accordingly, the judgment of the Court of Appeals is reversed and the cause remanded to that court for further consideration in the light of what has been here said.
Reversed and remanded.
All the Justices concur. | May 12, 1955 |
06c73a9f-46f4-4bf1-ad6c-a6b19036b717 | Self v. Hane | 79 So. 2d 549 | N/A | Alabama | Alabama Supreme Court | 79 So. 2d 549 (1955)
W. D. SELF
v.
Sam C. HANE.
6 Div. 813.
Supreme Court of Alabama.
April 14, 1955.
Lowe & Williams, Birmingham, and Huey, Stone & Patton, Bessemer, for appellant.
Morton & Hesse, Birmingham, and Wm. C. Smithson, Bessemer, for appellee.
*550 SIMPSON, Justice.
This is an appeal from an order granting a temporary injunction. Complainant Hane is in possession of the tip of a small peninsula protruding northward into the Warrior River. Respondent Self is in possession of that portion of the same peninsula lying just south of the property occupied by Hane. The only route of ingress and egress that Hane has is over the property occupied by Self. Respondent Bell is the common lessor of Hane and Self. Hane claimed a right of way over the land occupied by Self by virtue of a grant and by way of necessity. There is some discussion in brief about prescription but the allegations of the bill are not sufficient to establish a right in that respect.
In his bill, to which both Self and Bell are made respondents, Hane complains of certain acts on the part of Self which allegedly interfere with his right of way. The case was submitted on sworn bill and answer and affidavits and the trial court issued a temporary injunction restraining Self and Bell from interfering in any way with Hane's free ingress and egress to and from his property. Self alone appeals.
It is suggested that we should dismiss the appeal because notice was not given to Bell in accordance with the provisions of § 804, Title 7, Code 1940. We have not found a case exactly similar in this regard to the instant one, but before this statute was passed a single party could appeal if the interest was single and not joint. Maya Corp. v. Smith, 240 Ala. 371, 199 So. 549. That status seems to obtain here with respect to the two respondents. Notice to Bell would, of course, be necessary to give this court jurisdiction over him, but we think the case can be disposed of on its merits without such jurisdiction. The injunction is against Self and Bell individually. We can perceive of no injury that would be done to Bell if we considered the correctness of the injunction as applied to Self. So considered, the appeal will not be dismissed.
The main complaint in the bill is that respondent Self has erected gates across the right of way where it enters and leaves his property; that though these gates are not locked, it is necessary for complainant to get out of his automobile and open them in order to pass through to his property. While the writ of injunction is very vague, we think it can be construed as ordering the respondent to keep the gates open pending the final determination of the cause. Though the bill may be subject to apt demurrer in regard to this phase, we think it does contain equity. That is, under it proof could be offered which would entitle complainant to that relief. As stated, the injunction was granted on the basis of a sworn bill and answer and affidavit. Under such circumstances the problem usually becomes one of balancing the convenience of the parties and we cannot say that the trial court abused its discretion in that regard. State v. Mobile & O. R. Co., 228 Ala. 533, 154 So. 91; Rice v. Davidson, 206 Ala. 226, 89 So. 600. The temporary order will be so construed and on that basis the decree will be affirmed.
That part of the injunction which enjoins the respondent from "interfering" with complainant's right of ingress and egress is too all-inclusive to stand. Respondent has the right to use the right of way the same as the complainant. Such use might conceivably "interfere" with complainant's right of ingress and egress, but it is only an unreasonable interference with that right from which the respondent could be enjoined. The writ should not have been couched in such general terms but should deal with specific facts. Sellers v. Valenzuela, 249 Ala. 620, 32 So. 2d 520; 28 Am.Jur., Injunction, § 300.
In view of some argument in the briefs, we will make some observations which we hope will be of assistance to the trial court on final hearing. Complainant protests in his bill of the fact that fence posts and a patio constructed by the respondent Self narrowed the way from what it had been theretofore. But the bill is *551 silent of any allegation that would indicate that complainant has the right to insist that the way remain of a particular width. As we have said, a case for prescription is not made out. The deed granting the right of way does not fix its width. Therefore, the right is such as may be reasonably necessary to enable the complainant proper ingress and egress to his premises. Ellard v. Goodall, 203 Ala. 476, 83 So. 568. Existence of a way prior to the grant has been held to be worthy of consideration in this respect, but on the meager allegations of the bill before us we cannot say that such should be the case. 28 C.J.S., Easements, § 77, p. 757. Nor does it appear from the allegations of the bill that there is a practical necessity for a roadway of a certain width. 2 Thompson, Real Property, § 550.
The bill also complains that the respondent "at times" permits "many automobiles and trucks" on the road in question and that this "interferes" with the use by complainant. But the bill does not allege that the vehicles are left parked in a way so as to block passage and, as previously stated, respondent's use of the way can be restrained only when it becomes an unreasonable interference with the complainant's right.
It should also be stated that the mere fact that complainant has a right of way by claim of necessity does not of itself mean that respondent cannot establish gates across it where it enters and leaves his property. It is a question of reasonableness under all the circumstances. See Thomas v. Vanderslice, 201 Ala. 73, 77 So. 367; Brill v. Brill, 108 N.Y. 511, 15 N.E. 538; Chenevert v. Larame, 42 R.I. 426, 108 A. 589; Annotation, 73 A.L.R. 778.
It results from these considerations that the order appealed from will be affirmed as indicated hereinabove.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and MERRILL, JJ., concur. | April 14, 1955 |
462ebfc2-d06b-47f4-aa11-2e278173eab5 | Fikes v. State | 81 So. 2d 303 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 303 (1955)
William Earl FIKES
v.
STATE of Alabama.
2 Div. 335.
Supreme Court of Alabama.
May 12, 1955.
Rehearing Denied June 23, 1955.
*305 Peter A. Hall and Orzell Billingsley, Jr., Birmingham, for appellant.
Si Garrett, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
PER CURIAM.
Defendant was convicted of first degree burglary with intent to ravish Jean Heinz Rockwell in an apartment dwelling which she occupied, and was sentenced to death,Section 85, Title 14, Code of 1940.
The evidence was that on Friday night about "10:20" of April 24, 1953, Mrs. Rockwell was asleep in her bedroom. She had two babies, one of whom was in an adjoining bedroom and the younger in her room. Her husband was not at home. When she awakened around "10:15" a Negro man was sitting on her as she lay in bed. She knew he was a Negro but did not see his face as it was covered. She could not identify defendant as that person. He had a knife belonging to her which he had gotten from the kitchen. He told her he was going to kill her. She began struggling to get off the bed and with him holding on to her she managed to get into the hall (where there was a light) adjoining her room. She went all the way down the hall and into the living room in the front of her apartment. There he fell over a stool and fell on Mrs. Rockwell. She was screaming and he threatening to kill her with the knife at her throat, and he told her "to straighten out". She grabbed the knife and got it out of his hand. He jumped up and ran down the hall and out through the kitchen and back door. She fell up against the back door and locked it. It was locked when she went to bed but was open when he ran out of it. The kitchen was in the middle of the apartment between the dining room and bedrooms. There was an outside entrance to the kitchen with a screen and wooden door. The screen to the window was also open and the window up. There were holes in the screen over by the latches, but these holes were not there before he entered the apartment.
The indictment properly set out the charge, and the record shows that the requirements of law were complied with in respect to it. It was signed by the solicitor and endorsed by the foreman of the grand jury, with the caption required by law, and filed in open court in Dallas County on *306 November 12, 1953. Defendant was arraigned, pleaded not guilty and not guilty by reason of insanity, and was represented on arraignment and throughout the trial by attorneys. The court set the date of trial for December 7, 1953, and drew a special venire as required by law. No question is raised in respect to such matters.
On November 19, 1953 defendant filed a motion in writing to quash the indictment, alleging in substance that he is a member of the Negro race, a citizen of Alabama and of the United States; that Negroes are and were systematically excluded from grand juries organized in Dallas County solely because of their race or color; and are discriminated against in the organization of grand juries in said county solely because of their race or color in that no members of said race, or a mere token number, are included on the jury roll or have their names placed in the jury box, or if their names are so placed they are not drawn for service on any grand jury, or if they are drawn they are not listed, thereby denying to defendant due process and equal protection of the laws guaranteed to him by the Constitution and laws of Alabama and the Fourteenth Amendment of the United States Constitution.
That no Negro served on the grand jury which returned the aforesaid indictment against defendant in this cause; nor has any Negro served on a Dallas County grand jury in modern times. That there exists a system, practice or custom in drawing or organizing grand juries to serve in Dallas County designed to totally exclude Negroes from service on such grand juries, or to discriminate against them solely on account of their race or color contrary to the Constitution and laws of Alabama and the Fourteenth Amendment to the Constitution of the United States.
That when the indictment was returned the census of the United States showed that the male population of Dallas County over the age of twenty-one numbered 13,996, of which 6,040 were whites, and that the Negroes over twenty-one years numbered 7,956. That a great majority of said Negro males are native born citizens of Dallas County, householders and freeholders, generally reputed to be honest and intelligent men, esteemed in the community for their integrity and good character and are not habitual drunkards nor afflicted with disease or physical weakness such as would disqualify them to discharge the duties of grand jurors, and otherwise possess all of the qualifications and none of the disqualifications set out in the Constitution and laws of Alabama and of the United States which govern the situation and service of grand jurors: yet the jury commission failed or refused to place on the jury roll and in the jury box the names of such Negro male citizens of Dallas County, and at that time the jury roll of said county contained less than two percent of the names of the total number of Negro male citizens eligible under the Constitution and laws of Alabama and of the United States for jury duty in said county. Those details are further elaborated. The facts thus alleged were verified by the affidavit of defendant.
On the same day another motion in writing was filed by defendant to quash the indictment, alleging that it was based solely upon an alleged confession of guilt which was extorted and illegally obtained from defendant by and through force and violence or threats of force and violence, coercion, torture and brutality by officers and detectives of the City of Selma and of Dallas County, Alabama, while acting in their official capacity and he was deprived of due process and equal protection of the law guaranteed by the Constitution and laws of Alabama and the Fourteenth Amendment to the Constitution of the United States. That prior to the return of the indictment defendant was arrested without warrant on May 16, 1953, was never taken before a magistrate but was held in the city jail of Dallas County for several days without a formal charge and without being permitted to confer with counsel, his parents or friends, and was subsequently taken to Kilby prison in Montgomery where he has remained until the present time, and where he was not allowed to confer with counsel, his parents or friends until he had been indicted in this *307 cause and after he had been subjected to days of uninterrupted questioning by officers of the City of Selma and of Dallas County, and subjected to violence or threats of violence, coercion and force or threats of force, and an alleged confession was extorted from him, which is the sole basis of said indictment, and he was thereby deprived of his rights to due process and equal protection guaranteed by the Constitution and laws of Alabama and the Fourteenth Amendment to the Constitution of United States. Defendant also moved to quash the venire or array drawn to try him and assigned the same grounds in substance as those assigned in the first named motion to quash the indictment as amended supra.
It appeared from the evidence submitted on the motion that on June 2, 1953 this defendant had been indicted in several cases of a similar nature, including the one now on trial. That motion to quash them had been made and acted on October 9, 1953, resulting in their being quashed on substantially the grounds set up in the first motion herein set forth. The evidence on the instant motion showed that there was a jury roll dated "1942 to 1951" and another from "1951 to 1953". The grand jury which returned the indictment of June 1953 was drawn from the box based on the roll of "1951 to 1953"; although there were some cards in the box of persons whose names were not on the roll. The jury commissioners had not always been careful to put all the names on the jury roll; and had put some cards of names in the box not on the roll. On that particular jury roll there were shown to be eight Negroes. Those indictments were quashed on October 9, 1953. The jury commission went about revising the roll and refilling the box on about the first of October (may be the 5th). They made investigation from available sources, such as the city and telephone directories, the list of registered voters, and by personal inquiry and personal contact. They communicated with Negro leaders and others and used their own personal knowledge as to the fitness of persons subject to jury servicemales over twenty-one years and not over sixty-five years. They were confronted with the statute, section 3, Title 30, as amended, Pocket Part Code, which is as follows:
The jury commission adopted a policy, not always observed, not to include those who are exempted by statute. When a person was known to be exempt, he was usually left off the list. They spent some twelve or more days working on this new revised roll, and completed it October *308 17, 1953. It is their duty under section 20, Title 30, as amended July 7, 1945, Pocket Part Code to meet annually between the first of August and the twentieth of December, and to make in a well bound book a roll containing the name of every male citizen living in the county who possesses the qualifications prescribed by statute and who is not exempt by law from jury service. The commission is required to have written on plain white cards the name, occupation, place of residence and place of business of each person whose name is placed on the jury roll. Those cards are required to be placed in a metal box provided with a lock and two keys and kept in a safe or vault in the probate office. One of the keys is kept by the president of the jury commission and one by a judge of the county.
Section 21, Title 30, as amended July 1, 1943, Pocket Part Code, prescribes the qualifications of persons to be placed on the jury roll, as follows:
Section 29, Title 30 authorizes the court to tax against the clerk of the commission or its members the cost of summoning for jury service any person on the roll who does not possess the qualifications required by law.
Section 30, Title 30, provides the manner of drawing a venire for service. That is, that the judge is required to draw from the box without selection the cards with names sufficient for the purpose. He shall draw not less than fifty for service to supply a grand jury and petit juries for the week. They are summoned to court by the clerk. By section 38, Title 30, the judge in open court hears and acts on excuses. The cards with the names of those left are placed in a hat or box and the judge then draws out of the hat or box eighteen cards for those to serve on the grand jury. From those remaining he draws cards for the different panels for petit jury service.
By section 63, Title 30, in all cases charging a capital felony the venire must consist not only of those drawn for regular petit jury service for the week but an additional number fixed by the judge so that the venire will consist of not less than fifty nor more than one hundred persons. A list of them is furnished defendant at least one entire day before the day set for trial. On the day set for trial, under section 64, Title 30, the court must inquire into and pass on the qualifications of all persons who appear in court in response to summons for service. By section 52, Title 30, before the veniremen are accepted defendant may examine them as to their qualifications, interest and bias. And by section 55, Title 30, either party may challenge any such person for one of the causes there provided. By section 65, Title 30, the number of veniremen left, from which the trial jury is taken in a capital case, cannot be less than thirty. If less, it is recruited from the jury box. When the venire is finally purged and a sufficient number left, a list is made of them. From that list the State strikes one and defendant two until only twelve are left to serve as the trial jury. They are then sworn as such. So that every precaution is prescribed by law *309 to obtain a grand jury of intelligent and competent men, and a petit jury to include also those free from bias, interest or formed opinion.
We think it would be difficult to formulate a more perfect method for obtaining jurymen to serve on grand and petit juries. The first step is to get only qualified men on the jury roll. That is those having the qualifications specified by law and not exempt. The names of all such men in the county should be placed on the roll and in the box every year. That is a very difficult and delicate job for the commissioners. They are appointed by the governor (except in some specified localities). There is no legal reason for quashing an indictment or venire simply because the jury commission did not put the name of every qualified person on the roll or in the jury box, in the absence of fraud (or a denial of constitutional rights). Section 46, Title 30, Code; Bell v. Terry, 213 Ala. 160, 104 So. 336; Wimbush v. State, 237 Ala. 153(11), 186 So. 145. The commissioners have a very delicate task to perform which involves sound judgment and practical discretion. Generally it is not revisable by the courts. But they must act in good faith and not omit a segment of people who are qualified to serve without a fair representation. And that applies to racial differences. There are shown to be racial distinctions in Dallas County between the white and Negro population. There are more Negroes than whites living in the county. The figures set out in the motion in that respect are shown to be substantially correct. The commission put into the box and on the roll in October 1953 fifteen hundred names of which two hundred and fifty to three hundred were Negroes, and from which the venire was drawn which furnished the grand jury and petit juries here involved. There was nothing on the roll or cards which indicated their race. There had been only a small number of Negroes on previous jury rolls. Probably they had been systematically left off such rolls on account of race. Very few Negroes were ever drawn on a venire. When one did appear he was either excused at his request or stricken by a party to the cause in selecting the trial jury. This was recognized by the court in quashing the indictments returned June 2, 1953. It appears that most of the criminal cases in the county have been against Negroessaid to be ninety percent of them; and invariably Negro jurymen were stricken by defendants on trial for that reason alone. This they had a right to do. Negroes never sat on a grand jury nor tried a case on a petit jury. There were seven persons known to be Negroes on the venire from which the grand jury was drawn which returned the instant indictment, and twelve on the venire from which the petit juries were organized for December 7th for the trial of defendant in this case. The majority of the Negroes are shown to be tenant farmers. Some own their land. Some of them who are otherwise qualified are professional men, such as dentists, doctors, school teachers, embalmers and druggists, all of whom are exempt. The most intelligent and competent as a rule are exempt. The evidence shows that a large majority of the Negroes are ignorant, with little or no education and low moral character, and there is much venereal disease among them and a large percentage of illegitimacy.
The evidence does not show that some Negroes as well as whites who were competent to serve and not exempt were not put on the roll. It may be Negroes were systematically omitted prior to the roll made in October 1953, but that was not true in making up that particular roll.
The indictment and trial here involved are controlled by the roll then made. The prior habit of the commissioners in respect to Negroes on jury rolls can only serve to shed light on their conduct in making up the last jury roll. But that is not sufficient to overcome the direct positive evidence showing an effort in good faith to have the Negro race fairly represented on the jury roll by Negroes who are qualified and not exempt after indictments have been quashed for such previous failure. It is not appropriate to say that they *310 are entitled to be represented in the same proportion as the whites are represented unless their qualifications are in the same proportion. That does not appear. The comparison without that is not an accurate guide for a determination of the question. We think the trial court properly overruled the motion to quash the indictment and the motion to quash the venire for use on the trial of this cause because, we think, the evidence fails to show that the jury commission systematically omitted qualified and not exempt Negroes from the jury roll because they were Negroes or discriminated against them on that account, and thereby deprived defendant of due process or the equal protection of the law. We think, therefore, there was no reversible error in that respect.
As indicated above, the defendant also moved to quash the indictment on the ground, in substance, that the only evidence before the grand jury in respect to the charge made by the instant indictment was that of an alleged confession which was obtained from defendant by and through force and violence or threats of force and violence, coercion, torture and brutality by officers and detectives of Selma and of Dallas County in their official capacity.
The only evidence as to the nature of the testimony before the grand jury which returned the indictment on which the instant trial was had was that of the foreman of the grand jury. He testified with reference to cases entered on the grand jury docket. Cases numered 43, 44, 45, 46, 47 and 48 were cases of first degree burglary in which this defendant was stated as the person so charged. In case No. 43 the witnesses before the grand jury were Mrs. Jean Heinz Rockwell and Capt. J. W. Baker. An indictment was returned in case No. 43, in which Mrs. Jean Heinz Rockwell is named as the person occupying and lodging in the house burglarized at the time. That is the indictment on which defendant was tried in the instant case. In respect to each of the other cases charged against this defendant, the evidence is that two witnesses testified before the grand jury. One was the name of a woman and the other that of Capt. Baker. The evidence is that as to each case separately those persons appeared before the grand jury and gave evidence which was considered by them. There was no offer to prove the nature or effect of their testimony. The only evidence offered by the movant was that of witnesses, including Capt. Baker in an attempt to show that he extracted by improper means a confession from defendant, and therefore presumptively that is all that he testified to before the grand jury. There was no effort to show what Mrs. Rockwell knew and may have testified before them. In the first place, there was absolutely no evidence that Capt. Baker improperly extorted a confession out of defendant.
We recognize the requirement of section 86, Title 30, for the use of legal evidence before a grand jury. Under that statute the general rule is that when competent witnesses are examined by the grand jury or the grand jury had before them legal documentary evidence, no inquiry into the sufficiency of the evidence is indulged. Sparrenberger v. State, 53 Ala. 481.
Referring to that rule in Washington v. State, 63 Ala. 189, where the grand jury returned an indictment for burglary, the Court said that it could not inquire into the contention that, while there was proof before the grand jury that a burglary was committed, no legal evidence was given that accused was the guilty offender.
That is the exact contention here made. There was testimony given by Mrs. Rockwell. She had a legal right to testify. What was the nature of that testimony could not be inquired into. According to those cases, if Mrs. Rockwell had been the only witness this motion should have been overruled. We cannot inquire into the nature of Capt. Baker's testimony and no attempt was made to do so. If legal evidence is given, we may add, an indictment is not subject to be quashed because there was illegal evidence also given. This rule is not abridged by Allen v. State, 162 Ala. 74, 50 So. 279. In that case reference was *311 made to section 7776, Code of 1907, section 419, Title 14, Code of 1940, which prohibits an indictment (or conviction) for seduction on the uncorroborated testimony of the woman. It was held that the Sparrenberger case, supra, did not prohibit evidence that there was before the grand jury no corroborating evidence as specifically required by that statute. It can be shown on a motion to quash an indictment that there was before the grand jury no competent witness or legal documentary evidence, but not its insufficiency or that there was also illegal evidence (except as required by statute applicable to that situation). Ex parte State ex rel. Attorney General (Gore v. State), 217 Ala. 68, 114 So. 794; Mackey v. State, 186 Ala. 23, 65 So. 330; Clark v. State, 240 Ala. 65(20-21), 197 So. 23. The motion to quash was properly overruled.
A jury was organized to try the cause. The defendant pleaded not guilty and not guilty by reason of insanity. During the progress of the trial objections to evidence were overruled and exceptions noted. We will not undertake to analyze each of them separately, but will discuss those which are important. We have examined the entire record and given consideration to all questions shown, whether discussed or not.
The first one we wish to discuss is the admissibility of a tape recording offered and received in evidence. Since it contained a confession by defendant, it is necessary also to inquire as to whether such confession was voluntary, or induced by force, coercion, threats, personal injuries or tiresome examination sufficient to destroy his volition, or hope of any sort held out to him. Of course any confession so obtained violates the constitutional rights of a person charged with the commission of a crime and cannot be used as evidence against him in a criminal case. Chambers v. Flordia, 309 U.S. 227, 60 S. Ct. 472, 84 L. Ed. 716. It is different from the right to use evidence obtained by an unreasonable search and seizure of such person; for evidence so obtained may be used against him on trial in a state court for violating a state law without a violation of the Fourteenth Amendment. Wolf v. People of State of Colo., 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782; Irvine v. People of State of Cal., 347 U.S. 128, 74 S. Ct. 381, 98 L. Ed. 561.
We have often held that Alabama law and procedure do not prohibit the use of testimony so obtained on trial for a state crime in a state court. Oldham v. State, 259 Ala. 507, 67 So. 2d 55; Ingram v. State, 252 Ala. 497, 42 So. 2d 36.
It seems to be a well settled principle that a magnetic tape recording may be used as evidence when it is of matters otherwise legal, and provided the proper safeguards are shown to have been used so as to protect the recording against error or spoliation. The speakers as recorded should be properly identified and adequate safeguards taken to insure authenticity. Wright v. State, Ala.App., 79 So. 2d 66; Goldman v. United States, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322; United States v. Schanerman, 3 Cir., 150 F.2d 941(6); State v. Perkins, 355 Mo. 851, 198 S.W.2d 704, 168 A.L.R. 920, annotation 927; Ray v. State, 213 Miss. 650, 57 So. 2d 469; Williams v. State, Okl.Cr.App., 226 P.2d 989.
The evidence in this case justifies the use of the recording as evidence of matter which is legal and relevant otherwise. But objection was made that the recording was evidence of a confession by defendant, and that it did not sufficiently appear from the evidence that the confession was voluntary. The evidence was without conflict that it was voluntary. The authorities sustain our view that questioning a suspect in custody of the law is not prohibited by common law or the Constitution (nor by statute, we may add), and a confession so obtained is not for that reason alone rendered inadmissible. Phillips v. State, 248 Ala. 510, 28 So. 2d 542. In this case the evidence showed without conflict that the officers did not intimidate appellant in any way. They were not armed when he made the recorded statement. He was in prison under protection against possible attack by others. But there was not shown to be threats of violence by the public or *312 unusual excitement. He was not abused, nor questioned at such length and under such conditions as to break his resistance, but he gave details which were corroborative of that given by the State's chief witness. It is for the trial judge to determine whether the evidence shows that the confession was voluntary, and for the jury to give it such weight as they think proper. The decision of the trial court will not be disturbed on appeal unless it appears to be contrary to the great weight of the evidence. Reeves v. State, 260 Ala. 66, 68 So. 2d 14; Dennison v. State, 259 Ala. 424, 66 So. 2d 552; Myhand v. State, 259 Ala. 415, 66 So. 2d 544; Fewell v. State, 259 Ala. 401, 66 So. 2d 771.
The evidence here without conflict supports the finding of the trial court.
But appellant contends that he was denied the right to controvert the State's evidence in that respect. Before the court made a ruling on the admissibility of the alleged confession defendant's counsel offered "to put this defendant on the stand for the purpose of refuting certain allegations by the State with reference to the voluntary nature of what purports to be certain extrajudicial admissions and for no other purpose". The court declined to agree with defendant's counsel that his appearance as a witness could be limited to that inquiry.
Defendant had the legal right before the confession was admitted to introduce evidence of legal matter to refute that of the State tending to show that the confession was voluntary. People v. State, 256 Ala. 612, 56 So. 2d 665; Vernon v. State, 239 Ala. 593, 196 So. 96; Lockett v. State, 218 Ala. 40(8), 117 So. 457.
In making this offer the defendant's counsel did not inform the court just what facts he expected to prove by the witness, except his conclusion that they would "refute certain allegations of the State" with reference to the voluntary nature of defendant's confession. We have long since held, notwithstanding section 445, Title 7, Code, that we will not reverse for such a refusal by the trial court. Flowers v. Graves, 220 Ala. 445, 125 So. 659; Alaga Coach Line Co. v. McCarroll, 227 Ala. 686, 151 So. 834, 92 A.L.R. 470; Strickling v. Whiteside, 242 Ala. 29, 4 So. 2d 416.
Of course it is the privilege of a defendant in a criminal case not to testify, but he may elect to do so. Section 6, Constitution of Alabama.
At the time this offer was made the trial was proceeding; the jury had been selected and sworn, and the issues stated to them. Defendant had pleaded not guilty and not guilty by reason of insanity. All evidence tending to prove either of those issues was open to both parties. The State was offering a confession and had made a prima facie showing of its admissibility. The corpus delicti had been shown. If defendant saw fit or elected to testify as to that question, it was as to an issue then being tried. He would thereby subject himself on cross examination to be questioned as to any relevant matter pertaining to his guilt or innocence or sanity. If he proposed to testify to facts showing that the confession was unduly influenced, he certainly ought to respond to questions as to his guilt in fact and to any matter relevant thereto. He cannot restrict the nature of the relevant testimony he proposes to give. Kelly v. State, 160 Ala. 48, 49 So. 535; Carpenter v. State, 193 Ala. 51, 69 So. 531; Gast v. State, 232 Ala. 307, 167 So. 554; Brown v. State, 243 Ala. 529, 10 So. 2d 855. Therefore, for two reasons the trial court cannot be put in error on account of such proposal.
There was also introduced in evidence a written confession signed by defendant while in Kilby. The confession was taken down by a stenographer, written up by her, read to defendant and signed by him. It was shown that this was voluntary on the part of defendant. The court allowed it as evidence without error.
The evidence showed that on or about March 18th, preceding April 24, 1953, Mrs. Stenson was in bed asleep at about 10:00 o'clock P.M. at her home in Selma when she was awakened: defendant was on top of her with a knife at her throat and threatened *313 to kill her if she screamed, and that he had forcible intercourse with her. Mrs. Binford, on another occasion, found defendant in her bathroom in her home in Selma on May 1, 1953 at twenty minutes to eleven at night. He was there for about seven minutes and went out of the small bathroom window. No evidence of other details was offered.
The State offered this evidence solely on the question of intent and identity of defendant and his motive on the occasion then on trial, and the court instructed the jury that such evidence was received for that purpose only. Objection was overruled and defendant excepted.
We have pointed out "that evidence which goes no further than showing character generally or disposition to commit crime is, of course, inadmissible * * *, but if such evidence goes further than showing character and bears probatively on the intent with which the act was committed, it is none the less admissible though it might also tend to discredit the defendant's character." McKenzie v. State, 250 Ala. 178, 33 So. 2d 488, 490; Noble v. State, 253 Ala. 519, 45 So. 2d 857; Mason v. State, 259 Ala. 438, 65 So. 2d 557.
Those two incidents mentioned above both have such peculiar qualities of a similar nature or pattern as to point to defendant as the guilty agent in respect to the offense here on trial, and to show that his intent was to ravish as alleged in the indictment. Johnson v. State, 242 Ala. 278, 5 So. 2d 632; Robinson v. State, 243 Ala. 684, 11 So. 2d 732; Daniels v. State, 243 Ala. 675, 11 So. 2d 756; Brasher v. State, 249 Ala. 96, 30 So. 2d 31; McKenzie v. State, supra; Noble v. State, supra; Mason v. State, supra.
We have examined with care the entire record and the exceptions noted as well as the legality of all the evidence offered against defendant regardless of whether exception was noted or not, and whether or not assigned as error. Title 15, section 382(10), Pocket Part Code. Errors were unnecessarily assigned. Title 15, section 389, Code. We find no error of the trial court which was injurious to the defendant. Section 389, supra.
The oral charge of the court and those given as requested by the defendant correctly and intelligently covered every aspect of the law involved, including the burden of proof, the elements of the offense, the plea of insanity, and character evidence. This completely covered the few charges which the court refused.
We find no reversible error, and 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, STAKELY and GOODWYN, JJ., concur.
LAWSON and MERRILL, JJ., concur specially as indicated.
MAYFIELD, J., concurs in result.
LAWSON, Justice (concurring specially).
I cannot agree with that part of the opinion holding that the defendant was not entitled to testify as to the facts and circumstances concerning an alleged confession or confessions which the State introduced under the circumstances shown in the court's opinion without thereby subjecting himself to cross-examination as to matters pertaining to his guilt or innocence, sanity or insanity.
*314 While I am not willing to say that the trial court should be reversed in this particular case because of its ruling on this point, I wish to record my position concerning that ruling.
MERRILL, J., concurs in the foregoing views. | May 12, 1955 |
a5403ba8-dc44-4624-bf03-936061a55543 | Levine v. Levine | 80 So. 2d 235 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 235 (1955)
Rachel LEVINE
v.
Louis LEVINE.
6 Div. 641.
Supreme Court of Alabama.
May 12, 1955.
McGowen & McGowen and Geo. I. Case, Jr., Birmingham, for appellant.
F. R. Ingram and Henry V. Salemi, Birmingham, for appellee.
MAYFIELD, Justice.
This appeal comes to us from the Circuit Court of Jefferson County, in Equity. The appellant-complainant seeks a review of the trial court's ruling on demurrer to her bill of complaint.
The original bill of complaint was in some respects a bill of review and in other respects was an original bill in the nature of a bill of review.
In the bill of complaint, the appellant-wife alleged that she was a resident of the State of New York, and that the appellee-husband was also a resident of New York. A final decree of divorce was granted the parties on 3 November 1949 by the Circuit Court of Jefferson County. A copy of this decree of divorce was made a part of the present bill of *236 complaint which we here review. When the appellee-husband filed his original bill of complaint, which terminated in the decree of 3 November 1949, he alleged that he was a bona fide resident of Jefferson County, Alabama, and had lived and resided in Birmingham, Alabama, prior to the filing of his bill. In the original cause, the husband's attorney had filed an answer and waiver which had been executed by the appellant-wife prior to the filing of the bill of complaint, wherein she admitted the allegations of age, residence, marriage, and denied the allegation with reference to cruelty and voluntary abandonment and demanded strict proof thereof. The wife further alleged that the husband's solicitor had made application for oral examination of him and listed his address as 1634 South 11th Avenue, Birmingham, Alabama. That on the day of the decree, 3 November 1949, the commission of the Court was returned together with the deposition of the husband, which deposition was set out in full and constituted the entire testimony in support of the decree of divorce. The present bill of complaint further alleges that the note of testimony in the original suit was filed by the husband's solicitor and that the final decree was rendered upon the bill of complaint and the testimony of the husband upon submission. The wife, in her present suit, now before this Court, alleges that on 3 November 1949 and for twelve months next preceding the filing of that bill, that the husband was a resident of the City of New York and denies that he was a bona fide resident of Jefferson County, Alabama. Further, that the testimony of the husband was taken prior to 3 November 1949 and at such time as the cause was not at issue. It is alleged that at the time the cause was submitted for final decree, as noted by the note of testimony, said cause was not at issue and was submitted for final decree only upon the bill of complaint and the testimony of the husband.
The wife now complains that she was not represented by counsel in such proceedings and did not at any time live or reside within the State of Alabama prior to the rendition of the first decree. The present bill also alleges that immediately after the rendition of the decree of divorce that the husband immediately returned to the State of New York and has since resided there continuously.
The appellant's present prayer prays that the decree of divorce between the parties be set aside and that the operation of the decree of divorce be suspended pending a final hearing, and that the appellant be awarded additional reasonable solicitor's fees, and for general relief.
A property agreement was originally executed in the City of New York on 26 October 1949. This agreement provided, among other things, for the husband to pay the wife $20,000 as a lump sum settlement, $2,500 of which was paid upon the signing of the agreement, and a receipt of which was acknowledged. Solicitor's fees in the amount of $2,000 were also agreed to by the husband. This property settlement was an exhibit to the first bill of complaint and was made a part of the decree of divorce.
The wife then amended her present bill of complaint by adding paragraph 11, which charged that on the 25th of October 1949, the husband represented to the appellant that he had moved his residence to the State of Alabama and filed a bill for divorcement, and that the Alabama courts had exclusive jurisdiction over the parties to render a final decree of divorce. The appellant now charges that in reliance on her husband's representation, she was induced to make answer to the bill of complaint admitting the residence of the husband and submitting herself to the jurisdiction of the Alabama courts and was thereby prevented from presenting all of her defenses and, in addition, was induced to discontinue an action which was then pending between the parties before the courts of New York. This action directed the payment of certain sums of money by the husband to the wife for her support and maintenance. The present bill alleges that these facts were untrue and that she had a good and valid defense to the *237 divorce proceedings instituted in Alabama to which she filed her waiver and answer.
By subsequent amendmentparagraph 12the allegations were restated that the appellant and appellee were both bona fide residents of New York City at the time of their marriage. That the appellant filed an action for support and maintenance against the appellee in the courts of New York on 3 March 1948, and that on 4 March 1948, the appellee was ordered to pay the appellant $75 per week pendente lite and that this action was pending and continuing during negotiations with her husband for a lump sum settlement. She then restated the allegations of misrepresentation contained in paragraph 11, and adds that her husband represented to her that it was necessary that the property settlement by which she obtained the first $20,000 be approved by the courts of Alabama. And, that she had submitted herself to the jurisdiction of Alabama for the sole and express purpose of having the property settlement which she had obtained in New York confirmed by the Alabama courts.
Demurrers were addressed to the bill as a whole and to each aspect thereof. The trial court sustained the appellee-husband's demurrers to the present bill on 7 August 1953. It is from this decree on demurrer that appellant perfected her appeal to this court.
The wife having enjoyed the fruits of the original decree, now seeks to declare it void. This she is estopped to do. As was said in Freeman on Judgments, 5th Edition, Volume 3, 1925, Section 1438:
As further grounds for denying relief, we have the equitable maxims that "those who seek equity must do equity", and "one that comes into equity must come with clean hands". By the terms of the agreement between the parties, which was made a part of and merged with the decree of divorce, the appellant received from the appellee a very heavy and substantial sum of money. Appellant-wife now seeks to have set aside and rendered for naught the decree of divorce whereby she obtained $20,000 from her husband. Yet, she nowhere alleges in her bill of complaint that she tendered to her husband any portion of the sum which she received under the property settlement incorporated in the first decree, nor has she paid any portion of such money into court, nor has she made any offer to do so. The appellant's retention of the total monetary benefits of the divorce decree, while seeking to have *238 the decree nullified, is in conflict with the above stated maxims of equity, and for this additional reason the complainant has closed the doors of the equity court to herself, and chancery must leave her where it found her and refuse to allow her to use the machinery of an equity court to obtain an inequitable end.
With reference to the fraudulent representation which the appellant contends that her husband perpetrated upon her and she now seeks to challenge by bill in the nature of a bill of review, attention is directed to the principle enunciated in the case of Spencer v. Spencer, 254 Ala. 22, 47 So. 2d 252, 256, and unwaveringly supported by numerous Alabama cases:
Diligence is incompatible with blind reliance on an adversary's representation as to material facts, at least in the circumstances here discussed. We are irresistibly drawn to the conclusion from the absence of contrary allegations in complainant's complaint, that if, in fact, the averments of the appellee's original bill were false, that the appellant knew of their falsity immediately and in time to interpose such defense as she might elect; at least, before the trial court had lost jurisdiction of the cause. We conclude, in this further respect, that the appellant's bill was lacking in essential allegations and demurrer thereto was properly sustained.
We simply hold that this complainant because of her conduct, as reflected by the bill of complaint, has closed the doors of the equity court to herself and we in no way impinge on our well-settled rule that the Alabama courts have no jurisdiction over the marital status of the parties if neither was domiciled in Alabama. Wilkes v. Wilkes, 245 Ala. 54, 16 So. 2d 15; Gee v. Gee, 252 Ala. 103, 39 So. 2d 406. Such jurisdiction could not be conferred on the court even with the parties' consent. Jennings v. Jennings, 251 Ala. 73, 36 So. 2d 236, 3 A.L.R.2d 662.
Rachel Levine having plucked the goose in 1949, seeks to get her fingers into a new crop of feathers in 1953.
*239 The ruling of the Chancellor on demurrer is due to be, and is hereby, affirmed.
Affirmed.
LAWSON, SIMPSON and STAKELY, JJ., concur.
MERRILL, J., concurs in the result.
LIVINGSTON, C. J., dissents.
GOODWYN, J., not sitting. | May 12, 1955 |
7164563e-ab6d-44f8-8248-4ee0904eefab | United States Steel Corp. v. McGehee | 80 So. 2d 256 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 256 (1955)
UNITED STATES STEEL CORP.
v.
Mamie McGEHEE, as Adm'x.
6 Div. 753.
Supreme Court of Alabama.
March 31, 1955.
Rehearing Denied May 19, 1955.
*257 Jas. R. Forman, Jr., Burr, McKamy, Moore & Tate, Birmingham, for appellant.
T. Eric Embry, Robt. W. Gwin and D. C. Ewing, Birmingham, for appellee.
*258 STAKELY, Justice.
Isaac McGehee instituted this suit against the Tennessee Coal, Iron and Railroad Company on November 27, 1951. While this suit was on appeal and prior to submission in this court, Isaac McGehee died. The cause was thereupon revived in the name of Mamie McGehee as administratrix of the Estate of Isaac McGehee, deceased. The complaint contained one count claiming damages for breach of a collective bargaining agreement or contract made and entered into on January 14, 1943, by and between the defendant and the International Union of Mine, Mill and Smelter Workers, said contract having been made by the aforesaid union for the use and benefit of its members including the plaintiff. The complaint further alleged that by the aforesaid contract the defendant had agreed to make reasonable provisions for the safety and health of its employees including plaintiff and to install proper ventilating systems where needed but that the defendant had broken said promises and as a proximate result thereof plaintiff had contracted the disease of silicosis or had suffered an aggravation of such preexisting disease, resulting in physical disability and loss of earnings.
The case came up for trial on December 7, 1953, and on this date the plaintiff amended his complaint by filing four counts. Only count 1 and 3 thereof are material here as counts 2 and 4 were withdrawn prior to submission of the case to the jury. The amendment changed count 1 of the original complaint so as to allege a breach of a written agreement or contract dated May 2, 1945, between the defendant and the International Union of Mine, Mill and Smelter Workers of which contract the plaintiff was a third party beneficiary. The contract dated May 2, 1945, was attached to the count as Exhibit A. Similar breach of this contract and resulting damages were alleged as had been alleged in respect to the contract dated January 14, 1943, in the original complaint. Count 3 of the amended complaint declared upon a written contract or agreement dated May 3, 1947, alleging similar breach of this contract and similar damages as had been alleged in count 1. This amendment changed and corrected the name of the defendant from Tennessee Coal, Iron and Railroad Company to the United States Steel Corporation, a successor corporation, by way of merger with the original named defendant.
In all of these counts damages were sought from the defendant for a particularly stated period of time, which was alleged in the original complaint as being from towit the 27th day of November, 1945, to towit the 30th day of June, 1947. In all of these counts it was alleged that the breach and resulting damages therefrom occurred during the period from the 27th of November, 1945, to the 30th day of June, 1947.
After demurrers to the complaint as last amended were overruled the defendant filed a plea of the general issue in short by consent with leave to give in evidence any matter which if well pleaded would be admissible in defense of the action with like leave to the plaintiff to so reply. At the close of the testimony the court denied to the defendant its written request for the affirmative charge in its favor on each count of the complaint and submitted the case to the jury which returned a verdict in favor of the plaintiff upon which judgment was entered. There was a motion for a new trial which the court overruled.
The errors assigned upon the record are based on the refusal of the court to grant defendant's request for the affirmative charge in its favor under either or both of the counts submitted to the jury and also on the trial court's refusal to grant defendant's motion for a new trial, the grounds urged in support thereof being that the counts added by amendment amounted to an entire change of causes of action from that originally declared and further that the counts added by amendment were entirely new and distinct causes of action from that originally declared on and the statute of limitations continued to run against the same until the time of the filing of the amendment at which time the bar of the statute of limitations had become complete.
*259 In view of the fact that the appellant desires on this appeal to raise only issues involving questions as to departure in pleadings and as to defendant's defense of the statute of limitations of six years, a full statement of the evidence is not considered necessary for the purposes of this appeal. It is conceded that the evidence was sufficient to justify the jury in finding that the plaintiff was a red ore miner for the defendant for the period beginning around 1913 up until the 8th day of June, 1947, when he retired from the employment of the defendant, having reached the age of 65 years on June 6, 1947, that the defendant during the periods covered by amended counts 1 and 3, that is from the 27th day of November, 1945, through the 8th day of June, 1947, failed to install, where needed, proper ventilating systems as required by the particular contract made the basis of the particular count and that as a result of such breach of contract, the plaintiff was exposed to silica dust which caused him physical disability and loss of earnings.
The contract of May 2, 1945, between the defendant and the Union, made the basis of count 1 of the amended complaint, was introduced in evidence as Exhibit A. By stipulation between the parties it is omitted from the record as it already appears verbatim in the record as part of the pleadings. To further shorten the trial there was introduced in evidence as plaintiff's Exhibit 1 a stipulation between the parties which provided for the substitution of the entity known as United States Steel Corporation for the named defendant, Tennessee Coal, Iron and Railroad Company, and further set out the plaintiff's work record with the defendant and further stipulated that the contract between the defendant and the Union dated May 3, 1947, contained similar terms and conditions to the contract of May 2, 1945, between the same two parties, thereby obviating the necessity of introducing a copy of said contract.
By its assignments of error the appellant desires to raise only issues growing out of the counts added by amendment, that is (1) whether such amendment constituted a complete change from the cause of action originally declared on so as to entitle the defendant to the affirmative charge and (2) whether defendant's plea of the statute of limitations of six years entitled it to the affirmative charge under either or both of the counts submitted to the jury.
The original complaint sought recovery for the breach of a collective bargaining agreement or contract made and entered into on January 14, 1943, alleging that the defendant failed to install, where needed, a proper ventilating system as required by said contract and further alleging that by reason of such failure the plaintiff suffered personal injuries, impairment of earning capacity and loss of earnings.
The count was similar to the complaint considered by this court in the case of Tennessee Coal, Iron & R. Co. v. Sizemore, 258 Ala. 344, 62 So. 2d 459, being based upon the same contract declared on in amended Count A. In the Sizemore case it was held by this court that such count was in assumpsit for a breach of the contract, the plaintiff having the right either to sue in tort for negligent failure to provide a proper ventilating system where needed or sue on the contract.
We note that in the original complaint it is alleged that the contract of January 14, 1943, remained in full force and effect from that date until June 30, 1947. We cannot escape the fact, however, that the contract dated May 2, 1945, on which the amended count 1 is based expressly shows that the contract of January 14, 1943, was terminated by the contract of May 2, 1945. The contract of May 2, 1945, is attached as Exhibit A to the amended count 1. We quote from Section 14 of this contract as follows:
When the case came on for trial on December 7, 1953, the plaintiff filed an *260 amendment to the complaint changing the original count 1 so as to declare on a collective bargaining agreement or contract dated May 2, 1945, and adding count 3 which declared on a contract or collective bargaining agreement dated May 3, 1947.
The question of whether a particular amendment adds a new cause of action has been many times treated by this court. In the recent case of Isbell v. Bray, 256 Ala. 1, 53 So. 2d 577, 579, this court said:
The test of departure therein quoted with approval by this court was whether or not a recovery on either the original or amended count of the complaint would bar a recovery on the other count. It seems clear to us that when the amendments in the present case are so tested, there can be no room for argument but that new causes of action were added by the amendment. The original count sought damages for breach of a contract dated January 14, 1943, while amended count 1 sought damages for breach of a contract dated May 2, 1945, and the amended count 3 sought recovery for breach of a contract dated May 3, 1947. This is not the situation as was the case of Mutual Savings Life Ins. Co. v. Alsup, 224 Ala. 111, 138 So. 824. In this latter case it was held that the court did not err in permitting the amendment of the complaint because the amendment merely changed the date of the policy. In that case it appears that there was a mistake in the date of the policy and therefore the subject matter of both the original complaint and the amended complaint was the same. But in the instant case there is no mistake in the date of the original contract. The original contract was a contract separate and distinct from the contracts on which amended count 1 and amended count 3 are based. We, therefore, are of the opinion that the amended complaint worked an entire change of the cause of action.
It is argued, however, that the contract alleged to have been breached is made definite and ascertainable by allegations as to the period of time during which the breach occurred as well as the detailed nature and character of the breach by the same averments in both the original and amended complaint and since there was never but one contract in force between the parties during the particular period, all of this shows that the amendment refers to the same transaction, property, title and *261 parties as the original complaint within the meaning of § 239, Title 7, Code of 1940. Accordingly, it is further argued that the amendment relates back, is not a departure and is not barred by the statute of limitations, to which we shall next refer.
The alleged fact that the breaches under the separate contracts are similar and for the same period is not conclusive. The suit is not for a wrong, but for breach of contract. Tennessee Coal, Iron & R, Co. v. Sizemore, supra. Here there are three separate and distinct contracts. An amendment claiming for the breach of a separate and distinct contract from that originally sued on, is not the same cause of action as the original cause of action. The plaintiff in the amendment has not adhered to the contract originally declared upon. Isbell v. Bray, supra.
Appellee takes the further position that the amended complaint shows on its face that the date of the contract originally sued on was mistakenly alleged because the contract of 1943 expired on May 2, 1945, which was prior to the period during which the plaintiff was exposed to the hazards of the dust. Hence it is argued that the contract originally sued on was in truth the contract of May 2, 1945 and not the contract of January 14, 1943. It is sufficient to say that we must take the allegations as they are and not indulge in inferences as to matters not expressly alleged. There is no allegation of any such mistake in the amendment nor is there any proof to which our attention has been directed which shows that the contract sued on in the amendment and the contract originally sued on are both the contract of May 2, 1945.Section 239, Title 7, Code of 1940. There is nothing in the charge of the court to show that any such issue was submitted to the jury.
Furthermore where there is an amendment to a complaint which adds a new cause of action, it does not relate back to the commencement of the suit insofar as the statute of limitations is concerned and in the present case the affirmative charge as requested by the defendant should have been given upon its defense of the statute of limitations of six years. Sullivan v. North Pratt Coal Co., 205 Ala. 56, 87 So. 804; Roth v. Scruggs, 214 Ala. 32, 106 So. 182.
The amendment to the complaint was filed December 7, 1953, and sought damages for breach of the contract which occurred from towit November 27, 1945 to June 30, 1947. This breach was more than six years prior to the time the amendment was filed. § 21, Title 7, Code of 1940. The statute of limitations begins to run from the time the cause of action accrues which in the instant case is when the plaintiff became entitled to begin and prosecute an action for breach of the contract. Esslinger v. Spragins, 236 Ala. 508, 183 So. 401.
We may add that where there is a plea in short by consent of the general issue with leave to give in evidence any matter which would be a good defense if specially pleaded, that this makes available to the defendant the defense of the statute of limitations. Sullivan v. North Pratt Coal Co., supra; Moore v. Williamson, 210 Ala. 427, 98 So. 201.
The result is that the judgment of the lower court must be reversed and the cause remanded.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | March 31, 1955 |
1ec360bb-c285-4426-8e33-2e2a1406d2db | Central of Georgia Railway Co. v. Hinson | 78 So. 2d 286 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 286 (1955)
CENTRAL OF GEORGIA RAILWAY CO.
v.
William L. HINSON, pro aml.
4 Div. 813.
Supreme Court of Alabama.
February 24, 1955.
*287 Grady G. Cleveland, Jr., Eufaula, for appellant.
Sam A. LeMaistre and Archie I. Grubb, Eufaula, for appellee.
PER CURIAM.
This is an appeal from a judgment in favor of plaintiff on a claim for personal injuries for which appellant was adjudged to be liable in damages.
Appellee has moved to dismiss the appeal on grounds to be now discussed.
The appeal bond was executed March 23, 1954. "On or about the 20th of March, 1954" the clerk received from the court reporter what purported to be a transcript of the evidence and proceedings on the trial of the case. Demand for same had been made by defendant's counsel, which was later complied with. The reporter had moved to a distant state and had not certified to the transcript. The clerk advised the judge of the situation and told him the transcript had some errors and omissions. This was also called to the attention of counsel for both parties, but nothing was ever done about it. The clerk made up the transcript containing the uncertified report of the proceedings, and on November 1, 1954 sent it with the certificate of appeal to the clerk of *288 this Court, which he marked filed November 3, 1954. The appeal being taken March 23rd, the next call thereafter was November 1, 1954. It is provided in section 790, Title 7, Code, that appeals are returnable the first Monday after the expiration of sixty days from the time of signing or establishing the bill of exceptions. And in section 769, Title 7, it is provided that the transcript shall be filed with the clerk of this Court within sixty days after signing or establishing the bill of exceptions. And in section 770, Title 7, for such failure appellee may present a certificate of appeal and have the judgment affirmed or the appeal dismissed. This is contemplated to occur before the transcript is filed and after the time prescribed. No such motion as that was made here.
In Supreme Court Rule 41, Code 1940, Tit. 7 Appendix, it is provided that unless the transcript is filed not later than the first day of the first week of the term during which it is subject to call, the appeal shall be dismissed unless good cause is shown why it was not filed in due time. The motion here is not based on any failure in that respect.
The appeal was not due to be dismissed for the failure of the clerk of the lower court to send to the clerk of this Court, within twenty days after the appeal, the certificate required by Supreme Court Rule 43, when there is such a certificate attached to the transcript and filed with it. Southern Life & Health Ins. Co. v. Williams, 230 Ala. 681, 163 So. 321. Appellee could have obtained such a certificate under section 751, Title 7, if he had desired.
Nor should the appeal be dismissed because of the failure of the reporter to certify to his report of the proceedings. It should be treated as an appeal on the record. Act of September 12, 1951, sections 827(1) to 827(6), Title 7, Pocket Part Code; West v. Givens, 246 Ala. 395, 20 So. 2d 710. The affidavit of the reporter attached to the answer of appellant to the motion to dismiss cannot serve as a compliance with that statute. The motion to dismiss must be denied, and the appeal treated as one taken on the record.
The assignments of error relating to matters shown by the record proper are numbered one and two. The other assignments are dependent upon the report of the proceedings had on the trial which cannot be considered for the reasons which we have stated.
The first assignment of error is that the court erred in overruling the demurrers filed by the appellant in this cause and referred to page twelve of the transcript. This shows that demurrers were filed to each of the eight counts of the complaint separately and severally.
In arguing this assignment appellant's brief discusses the ruling on demurrer to counts four and eight and none others. The judgment of the court overruled the demurrer to all of the counts of the complaint, as we interpret it. In order for the appellant to obtain the benefit of the ruling on demurrer to counts four and eight, separately, the assignments of error should be with reference to each count separately. If the demurrer to any one of the counts was properly overruled, a joint assignment of the judgment overruling the demurrer to the several counts cannot be upheld, regardless of whether the ruling was correct as to the other counts. Western Railway of Alabama v. Arnett, 137 Ala. 414, 34 So. 997; Alabama Great Southern R. Co. v. Clarke, 145 Ala. 459, 39 So. 816, 817; Brent v. Baldwin, 160 Ala. 635, 49 So. 343; Cahaba Coal Co. v. Elliott, 183 Ala. 298, 307, 62 So. 808; Allison-Russell-Withington Co. v. Sommers, 219 Ala. 33, 121 So. 42.
Both of those counts undertook to make a charge of willful or wanton injury to the plaintiff, and in view of the joint assignment which is made, we will not treat them separately except to see if either is subject to any ground of demurrer assigned to it.
The grounds of demurrer to count four are (1) it fails to state a cause of action; (2) the allegations are mere conclusions of the pleader, and (3) it does not *289 sufficiently state the willful and wanton acts complained of. Count four, after alleging matters of inducement, states: "That then and there the said servants, agents or employees of said defendant, in charge or control of the operation of said train, while acting within the line and scope of their employment or authority, willfully or wantonly injured plaintiff by willfully or wantonly operating said train so as to cause the same to strike or collide with an automobile being driven by plaintiff, whereby as a proximate result and consequence thereof plaintiff received severe personal injuries," setting them out. "The grounds of the demurrer are too general to put the court in error for overruling it. Louisville & Nashville R. Co. v. Nolen, 251 Ala. 445, 37 So. 2d 912.
The second assignment of error is that the court erred in sustaining demurrers 6, 7, 8 and 9 to appellant's answer to the complaint. The judgment of the court was to overrule demurrers 1, 2, 3, 4 and 5 to the answer and to sustain demurrers 6, 7, 8 and 9. Such a judgment and assignment of error misconceive the nature of a demurrer. It here contains grounds numbered 1 to 9, and was addressed to the answer and to each separate averment, plea or portion thereof.
A demurrer is a single entity of pleading and the numbered grounds set up do not constitute separate units. If any ground is good the demurrer should be sustained. Cahaba Coal Co. v. Elliott, 183 Ala. 298, 308, 62 So. 808; Hammons v. Hammons, 228 Ala. 264, 153 So. 210. It should not therefore be overruled unless each of the grounds fails to point out some insufficiency. And the assignment of error should be for sustaining (or overruling) the demurrer to a certain numbered plea (or count).
When a judgment sustains some of the grounds and overrules others, the demurrer has been sustained and the one who demurred cannot properly complain of it as error. American Life Ins. Co. v. Powell, 260 Ala. 574, 71 So. 2d 872; Allison-Russell-Withington Co. v. Sommers, 219 Ala. 33, 121 So. 42. But his opponent may complain because the judgment is adverse to him.
But a defendant who filed the pleas has no cause to complain when the demurrer is sustained on a ground to which the plea is not subject if some other ground points out a substantial defect.
It is appropriate and necessary to assign as error the judgment in respect to each plea separately if a separate consideration of each is insisted upon. The assignments are not so set up. Being assigned to all pleas jointly, the judgment is not due to be reversed if the demurrer on any of its grounds pointed out a substantial defect in any of the pleas, although it may not have pointed out a defect in all of them. The judgment overruled the demurrer on grounds 1 to 5, inclusive, as we understand it. They relate solely to contributory negligence. The pleas of contributory negligence do not pretend to comply with Circuit Court Rule 37, Code 1940, Tit. 7 Appendix. Crouch v. De Luxe Cab Co., 261 Ala. 239, 73 So. 2d 743. The demurrer to those pleas should have been sustained for that reason: also they are no answer to the wanton counts. But the judgment sustained the demurrer on grounds 6 to 9, inclusive, as we understand it. Those grounds of the demurrer seem to refer to defendant's pleas 5, 6 and 7 to count 8, relating to a city ordinance. As special pleas the matter thus claimed is covered by the general issue and the demurrer was properly sustained to them. The second assignment of error cannot be upheld.
The motion to dismiss the appeal should be overruled and the judgment of the circuit court 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.
The motion to dismiss the appeal is overruled: the judgment is affirmed.
All the Justices concur. | February 24, 1955 |
5ed08ddd-b447-4bd6-b6aa-fd2e8efcac7a | Holley v. Josey | 82 So. 2d 328 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 328 (1955)
O. G. HOLLEY et al.
v.
Z. H. JOSEY.
4 Div. 779.
Supreme Court of Alabama.
April 14, 1955.
Rehearing Denied September 22, 1955.
Albrittons & Rankin, Andalusia, for appellants.
Prestwood & Prestwood, Andalusia, for appellee.
LIVINGSTON, Chief Justice.
Z. H. Josey filed suit in the Circuit Court of Covington County, Alabama, against O. G. Holley, W. T. Reeves and J. V. Burkett claiming damages for the death of his minor son, Murry Austin Josey. The complaint consisted of two counts: Count 1 for simple negligence, and Count 2 for the willful or wanton misconduct of the defendants. The defendants, O. G. Holley and W. T. Reeves, interposed demurrers to each count of the complaint, which were sustained as to Count 2 of the complaint and overruled as to Count 1. No error is assigned concerning the sufficiency of Count 1 of the complaint. The defendants *329 pleaded in short by consent the general issue with leave, etc. Count 1 of the complaint was submitted to the jury as to all three of the defendants, and resulted in a judgment against all three defendants in the sum of $6,500. Timely motions by defendants Holley and Reeves were overruled by the trial court, and they appealed. Burkett did not appeal, nor did he join in the appeal of Holley and Reeves.
We will set out only so much of the testimony as is necessary to a discussion of the points raised by the Assignments of Error.
Murry Austin Josey was killed on a public highway at about 1:00 a.m. on July 13, 1952.
On the night of July 13, 1952, appellant Holley carried a group of baseball players of the Greenville, Alabama, semi-pro baseball team to a semi-pro baseball tournament at Andalusia, Alabama. After the game, which seems to have been delayed by rain, W. T. Reeves, one of the Greenville players, was driving Mr. Holley's automobile with Mr. Holley seated on the front seat by him, and three Greenville players riding on the rear seat of this automobile as the car left Andalusia to return to Greenville. After the automobile driven by Mr. Reeves passed Red Level the occupants of the automobile driven by him saw another automobile in front of them. Although Mr. Reeves and the parties in his car did not know this fact as they approached the car in front of them, it was owned and being driven by Mr. J. V. Burkett, the other defendant in the court below. The section of the road was hilly, and while Mr. Reeves was driving close behind the car which was driven by Mr. Burkett, both cars passed over the body of Murry Austin Josey. The testimony was to the effect that neither automobile was exceeding the speed limit. Both cars stopped after passing over the body of Murry Austin Josey. Upon examination, Josey was found to still be alive, but died within a few minutes.
Josey was killed about a mile and a quarter to a mile and a half in a northerly direction from Red Level and towards McKenzie. The testimony is to the effect that after passing through Red Level, the Holley car being driven by Reeves was some considerable distance behind the Burkett car, which was not being driven as fast as the Holley car. For the purpose of passing, the Holley car approached to within a short distance of the Burkett car, variously estimated from 20 to 50 feet. As the two cars passed over the crest of a hill in this position, Burkett, according to his testimony, saw in the right lane of the highway in the direction he was driving, what he thought was a paste board box top, or some other object. Burkett testified that he did not have time to stop his car but straddled the object with the wheels of the car. He further testified that he heard a light lick underneath his car as he passed over the object.
Mr. Holley's testimony, and that of the occupants of his car, was to the effect that the first time they saw Josey he came out from under the rear wheels of the Burkett car, and that the Burkett car was bumping over it, and the body was turning counter-clockwise to the direction in which they were going. This testimony was also to the effect that the Holley car straddled the body of Josey, but did not touch it, and the wheels did not run over him. Burkett further testified that the Holley car had blown at him at one or two intervals down the highway, indicating an intention to pass, but the car never passed him.
Officers summoned to the wreck made an examination of the roadway at the point and later made an examination of the underside of the Holley car. They testified that they found hair, blood and threads of cloth under the Holley car. Mr. Brooks, the Assistant State Toxicologist, examined the Holley car in Montgomery four days after the accident, but testified that he saw no blood, hair, nor fragments of cloth underneath the Holley car, but that he did see where some slight rubbing had occurred under the Holley car. Dr. Rehling, the State Toxicologist, made an examination of objects found on the underside running *330 gear of the Burkett car, and found that it contained blood, hair and clothing.
Young Josey was last seen the night of July 13th between 12 and 1 o'clock on the highway leading from McKenzie to Red Level trying to thumb a ride. He was on the opposite side of the highway from which his body was found. Two witnesses who went to the scene of the accident about daylight the morning of the accident testified that they found on the left side of the highway in the direction in which the cars were going, and at about the edge of the blacktop, a piece of a cap, some teeth and a piece of flesh with a bone in it, a piece of watch chain, and blood marks on the pavement. They further testified that these objects were some 20 or 30 feet from the spot where young Josey's body finally came to rest, and from the body, was in the direction from which the cars were approaching. The blood marks angled across the roadway to near the point where Josey's body was picked up. A part of a cap was also found near the spot where Josey's body was picked up. Burkett testified that the lights from the Holley car were shining in his rear-view mirror and distracted him to a certain extent near the point where the two cars passed over Josey's body.
Appellant's Assignments of Error contain eleven grounds. Assignments 1 and 11 are based upon the trial court's action in refusing to grant appellant's motion for a new trial. Assignments 2, 3, 4, 5 and 7 are based on the trial court's refusal of the affirmative charge for the defendants in various forms.
In the case of White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 So. 479, 480, this court said:
This court in the case of Watt v. Combs, 244 Ala. 31, 12 So. 2d 189, 195, 145 A.L.R. 667, said:
Under the facts of this case, we are of the opinion, and hold, that the question of liability of Holley and Reeves was one for the jury, and that these defendants' request for the affirmative charge was properly refused, and that the defendants can take nothing by Assignments of Error 2, 3, 4, 5 and 7.
We are also clear to the conclusion that Assignments of Error 1 and 11 based on the trial court's refusal to grant appellants' motion for a new trial are also unavailing under the facts in this particular case. Cobb v. Malone, 92 Ala. 630, 9 So. 738.
Appellants insist that the court erred to reversal in refusing to give the following written charge requested by defendants Holley and Reeves:
This charge would absolve the driver of an automobile of the duty of using ordinary care. The driver of an automobile must keep a reasonable lookout for danger or obstructions while driving along the public road. He cannot presume that no person is in the roadway. Tit. 36, § 5, Code 1940; Tit. 36 § 15, Code 1940.
If a motorist cannot see clearly, he has no right to assume that his course is free of danger, but must anticipate that some hazard lies immediately beyond his range of vision. Sec. 689.5 of Blashfield's Cyclopedia of Automobile Law and Practice, Vol. 1, Part 2, p. 586. The only rule that can govern the interval to be maintained between two automobiles proceeding in the same direction is that of reasonable care under the circumstances. A motorist has a right to follow another motorist at a reasonable and safe distance.
Mr. Justice Foster, speaking for the court in the case of Cooper v. Agee, 222 Ala. 334, 132 So. 173, 174, said:
And further, Justice Foster added:
Sec. 15, Tit. 36, Code of Alabama 1940, provides, in part, as follows:
For these reasons, this requested charge was properly refused.
Appellants objected to the introduction of testimony by W. C. King and Lewis Cantaline as to objects found at the scene of the accident about six hours after the accident. Mr. King and Mr. Cantaline went to the scene of the accident after daylight (Mr. King states, "I suppose about 7 o'clock in the morning."). The testimony is to the effect that the accident occurred upon a heavily traveled highway, between 12 and 1 o'clock a. m. It was further shown that a number of people stopped at the scene of the accident on the night it occurred. Testimony of Mr. King and Mr. Cantaline was admitted as to parts of a cap, blood stains and other objects found near the place where young Josey's body was picked up by the undertaker.
We are aware of our cases, notably Kress & Co. v. Barratt, 226 Ala. 455, 147 So. 386; Bradley v. Deaton, 208 Ala. 582, 94 So. 767, and Southern R. Co. v. Lefan, 195 Ala. 295, 70 So. 249, which hold, in substance, that if a party, in an effort to show negligence, attempts to introduce evidence as to conditions before or after the time of the accident, it must be first made to appear that the conditions were substantially the same on the two occasions. But the rule as expressed by these cases is limited to where it is an attempt to show negligence, as for instance, the condition of a sidewalk, or whether or not trailer lights were burning, or whether or not an awning was properly secured. In this instance, the testimony of Mr. King and Mr. Cantaline was of a different nature, and seems in part to be an effort to show the point at which young Mr. Josey was struck. We feel that defendants below, appellants here, are entitled to show all the facts surrounding the observations of Mr. King and Mr. Cantaline, including the lapse of several hours' time, the fact that many people were gathered around the scene of the accident, the fact that there was much travel over this highway, all to affect the credibility of their testimony and the weight which the jury would give to it. However, under the circumstances of this case, we feel that their testimony was admissible. Appellants can take nothing by Assignments of Error numbered 8 and 9.
Brief of counsel for appellants merely repeats Assignment of Error No. 10, and falls far short of compliance with Supreme Court Rule 10, Tit. 7, Code 1940, Appendix; Hodge v. Rambo, 155 Ala. 175, 45 So. 678; Alsup v. Southern Mfg. Co., 248 Ala. 405, 27 So. 2d 781.
We find no error to reverse and the case is, therefore, affirmed.
Affirmed.
SIMPSON, GOODWYN and MERRILL, JJ., concur. | April 14, 1955 |
a1e36295-6ad1-4785-bfb1-8bf74398a26e | Caine v. Caine | 79 So. 2d 546 | N/A | Alabama | Alabama Supreme Court | 79 So. 2d 546 (1955)
Mattie Lee Weaver CAINE
v.
W. Alva CAINE.
2 Div. 346.
Supreme Court of Alabama.
April 14, 1955.
T. G. Gayle, John W. Lapsley, Lapsley & Berry, Selma, for appellant.
*547 Pitts & Pitts, Selma, for appellee.
PER CURIAM.
This is an appeal by the respondent wife from a final decree in a divorce suit in which the court granted an absolute divorce on the bill of a complaining husband, but ordered the payment by him of alimony and solicitor's fee to the respondent wife, and denied to the wife the divorce from bed and board which she sought by cross bill. The ground for the relief sought by each was the voluntary abandonment by the other for one year next preceding the filing of the bill or cross bill, respectively. The right to a decree from bed and board for the wife on the ground of voluntary abandonment is based on the same principles as apply where the relief sought is an absolute divorce from the bonds of matrimony. Section 36, Title 34, Code.
Many of the facts are undisputed. They are that the parties were married June 2, 1917 and lived together as man and wife until May or June 1927 when the wife left appellee and lived out of the State until January 1933, after which time they were reunited and continued to live together until the separation occurred which gave rise to this suit.
In 1950 the parties were living about a mile out of Selma where appellee conducted a dairy. He owned the outfit subject to a mortgage held by a Selma bank. They lived in a rented house across the road from the dairy. The lease on the house extended to December 31, 1953. They had reared two children, then over twenty-one years of age, married and lived apart from their parents.
Appellee, husband, contends that their relations were unhappy; their tastes divergent; their habits could not be reconciled; that they constantly spoke to each other in an unpleasant and harsh manner, and in May or June 1950 they began to occupy separate rooms in the same house. He contends that on three occasions, one in 1950, and others in 1951 and 1952 she denied to him marital relations. That during that time, until May or June of 1953 while this status continued, she cooked the meals, and he provided the food and supplied her with money for other needs. There was no infidelity claimed by either. About this time the wife went to Birmingham to visit their married daughter while in childbirth. No complaint is made of her in that respect. While she was in Birmingham the husband telephoned her to know her plans, and she answered that she had none. He then moved out of the rented house and into a room in his barn, and carried out of the house his clothes, a chifforobe, an electric hot plate and an electric fan, and left the balance of the effects in the house. He then began to prepare and eat his meals at the barn. When she returned home in June 1953 `she found that situation. She went into the home where she continued to live alone until the lease expired December 31, 1953. He continued to pay the rent on the house and supply her needs until then.
This bill of complaint was filed by the husband December 7, 1953, alleging voluntary abandonment of him by her for one year next preceding the filing of the bill. She countered with a cross bill, as stated above. She left home when the lease expired and gave most of the furniture and furnishings to a son, and these furnishings were carried to the son by appellee, including a General Electric refrigerator, deep freeze, and a Westinghouse stove. She also had a Lincoln automobile which he had provided for her and which she kept. She then rented an apartment in Selma and got a job which netted her $22.17 a week.
The first question is whether that status shows a voluntary abandonment of the husband by the wife for one year next before December 7, 1953. The only conduct on her part which he contends was an abandonment of him by her was her moving into another bedroom in the home in May or June 1950, which she continued to occupy and the refusal of sexual relations from that time until the present. She admitted moving into another room, but *548 contended that it was at his instance; that she did not deny him sexual relations after that time, but specified certain occasions when it occurred during that time. If what the husband says is true, such conduct did not constitute a voluntary abandonment. There was no living separate and apart which is an element of voluntary abandonmentthere was no final separation until he moved out of the home. Rogers v. Rogers, 258 Ala. 477, 63 So. 2d 807. Cf. Mayo v. Mayo, 199 Ala. 551, 74 So. 971; Thomas v. Thomas, 233 Ala. 416, 172 So. 282; Webb v. Webb, 260 Ala. 426, 70 So. 2d 639.
We think the court erred in finding and decreeing that the husband has proven his claim of voluntary abandonment for one year next before the filing of the bill. There is no evidence to sustain that finding when properly considered.
We think there was no error in refusing to grant to the wife on her cross bill a divorce from bed and board. Section 36, Title 34, Code. It requires the same sort of proof in respect to such a divorce as for one from the bonds of matrimony. The only foundation for a claim of such abandonment occurred in June 1953. This was within the one year period before December 22, 1953 when the cross bill was filed.
With respect to the allowance of alimony (or maintenance) the evidence shows that pending the suit appellee defaulted in the payment of the mortgage on his dairy property. The bank demanded payment or a sale of the property. By agreement all the personal property was sold at auction and the bank received the money. Arrangements were made for the sale of a part of the land for an amount to be applied on the balance of the debt, but the wife refused to sign the deed and that trade was lost. The land was then sold at auction under the power in the mortgage and brought an amount insufficient to pay the debt, leaving a substantial balance unpaid. Appellee has no other property of appreciable value. At the time of the trial he had a temporary job of managing a cattle business for another, with a salary expectancy of $250 a month, although the amount or its duration was not definitely agreed on. The wife, as said above, was earning $22.17 net per week in a department store. She had accumulated by close economy and thrift (inheriting an undisclosed amount) some $14,000 in government bonds and $9,000 in savings accounts in two Selma banks.
The decree of the circuit court directed appellee to pay appellant $50 a month as alimony extending indefinitely into the future, and $200 for a solicitor's fee.
Appellant has also assigned as error that part of the decree fixing said alimony at only $50 a month. The showing made by the evidence is such as neither party is entitled to a divorce from the bonds of matrimony or from bed and board. Therefore, the allowance to the wife without a legal separation can only be based on the power of the court to provide maintenance. Murray v. Murray, 238 Ala. 158, 189 So. 877; Ex parte Hale, 246 Ala. 40, 18 So. 2d 713; Ex parte Mercer, 255 Ala. 3, 49 So. 2d 670. It is said that "`maintenance, not beyond the husband's means, is all the law can enforce'". Ex parte Taylor, 251 Ala. 387, 37 So. 2d 656, 659. In fixing the amount the court will deal only with the income of the husband or his earning capacity. Murray v. Murray, 84 Ala. 363, 4 So. 239; Wallis v. Wallis, 240 Ala. 439, 199 So. 844; Taylor v. Taylor, 251 Ala. 374, 37 So. 2d 645. When there is an absolute divorce, the amount of alimony is not controlled solely by the amount of the husband's income, and it may be set up as a monthly allowance. Colton v. Colton, 252 Ala. 442, 41 So. 2d 398. We cannot say that the court erred in respect to that provision of the decree.
The decree should be reversed to the extent that it granted to appellee a divorce from the bonds of matrimony and one here rendered denying that relief, but it should be affirmed to the extent of directing payment to appellant of $50 a month as maintenance subject to the further orders of the court, and also affirmed to the extent that it did not grant appellant a divorce *549 from bed and board. And the cause should be remanded to retain in the circuit court further jurisdiction as to the maintenance of appellant as conditions justify.
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 in part, and in part reversed, rendered and remanded.
LIVINGSTON, C. J., and SIMPSON, GOODWYN and MERRILL, JJ., concur. | April 14, 1955 |
61541f77-f8db-47b3-a30d-f4f1b2bf34fe | Mooney v. Weaver | 79 So. 2d 3 | N/A | Alabama | Alabama Supreme Court | 79 So. 2d 3 (1955)
Cora Lee MOONEY et al.
v.
Edith V. WEAVER.
2 Div. 322.
Supreme Court of Alabama.
March 24, 1955.
*4 Sam Earle Hobbs & Graham Kirkpatrick, Selma, for appellants.
Pitts & Pitts, Selma, for appellee.
MAYFIELD, Justice.
This is an appeal from a final decree of the Circuit Court of Dallas County, Alabama, in equity.
On December 11, 1944, appellee, as lessor, and Cora Lee Mooney and N. O. Mooney, as lessees, entered into a lease contract for a certain tract of land in Dallas County, Alabama. The lease was for a period of five years beginning on January 1, 1945, at an annual rental of $400, the first annual payment due on March 1, 1945, and a payment of equal amount due on January 1 each year thereafter throughout the term of the lease. Lessees gave to appellee their five promissory waive notes evincing said rentals. The contract provided that if the lessees failed to pay such notes as they matured that appellee, at her option, might declare the lease null and void and might enter upon and take possession of the premises. The lease contract contained a further clause granting the lessees an option to purchase the tract of land for $6,000 at any time all rent notes were paid and before December 1, 1949.
Cora Lee Mooney and N. O. Mooney went into possession of the premises and remained in uninterrupted possession *5 throughout the term. On several occasions, during the term of the lease, the lessees failed to make payment of rent on the date due. On the occasion of each default appellee later accepted payment in full of the past-due rent and took no steps to exercise her option to terminate. Cora Lee Mooney and N. O. Mooney did not exercise their option to purchase before December 1, 1949.
On December 30, 1949, appellee entered into a new written lease contract with appellants. This contract was identical in terms to the prior contract, except that N. A. Mooney was added as a lessee, and the purchase price was increased to $6,500 in the purchase option clause. The new lease was to begin on January 1, 1950, and to end on December 1, 1954. Cora Lee Mooney and N. O. Mooney remained in uninterrupted possession and N. A. Mooney went into possession for the first time under the contract of December 30, 1949.
On January 1, 1951, appellants failed to pay the rent note in the amount of $400 which was due on that date. On April 4, 1951, appellee instructed her attorney, the Honorable Harry W. Gamble, to write appellants concerning the past-due rent. Mr. Gamble communicated with Cora Lee Mooney and N. O. Mooney by mail on that date and insisted that the Mooneys see him at once about the payment of the note so there would be no forfeiture. On April 7, 1951, N. O. Mooney made a partial payment of $200 directly to the appellee. The payment was accepted and appellee told appellants to pay the balance as soon as they could, or words to that effect.
In April or May, 1951, appellee proposed to N. O. Mooney that she refund the partial payment, give him a reasonable time to get off the place and that he give her back the contract. N. O. Mooney made a counter proposal that he pay in full the balance under the contract but made no tender. According to Mr. Mooney's testimony, appellee replied: "I can get a lot more money than that for it" and said, "let me go back and talk to Frank [G. Frank Cothran, Jr.] and I will drop you a card."
On May 12, 1951, G. Frank Cothran, Jr., the nephew of appellee, notified appellants by mail that he was handling appellee's properties. On July 13, 1951, appellee gave to Mr. Cothran, a written power of attorney to handle all business in connection with this realty. Mr. Cothran testified that during July, August and September he wrote several letters to one of the appellants concerning the past-due rent, to which letters he received no reply. On December 18, 1951, pursuant to instructions from Mr. Cothran, Pitts and Pitts, attorneys for appellee, notified appellants by mail that the contract had been placed in their hands, that appellants had failed to pay the rent due under the contract, and demanded that appellants surrender possession of the premises on January 1, 1952, and pay the accrued rent. The form of this letter from attorneys for appellee substantially complied with provisions of Code of 1940, Tit. 31, § 6, concerning notice to quit for breach or default of terms of lease. A few days thereafter, N. O. Mooney and N. A. Mooney met with attorneys for appellee and G. Frank Cothran, Jr. Messrs. Mooney were informed that the contract of December 30, 1949, was terminated and void and that appellee would take possession on January 1, 1952. N. O. Mooney expressed the opinion that since preparations had already been made for the 1952 crops, it would be unfair to terminate the lease. G. Frank Cothran, Jr., offered to enter into a new lease with appellants for one year only. The evidence is in dispute as to whether Messrs. Mooney both agreed to the proposal. Attorneys for appellee subsequently prepared the proposed new lease and submitted a copy to the appellants. Appellants did not then execute the contract and have since refused to do so.
On January 2, 1952, appellants paid $380 to attorneys for appellee and on January 14, 1952, made another such payment of $220. Appellants contend that these amounts represent payment of the balance due for 1951, and advance payment of rent for 1952, under the contract of December 30, 1949, which continued in effect. Appellee contends that the amount *6 paid in advance was paid under the new one-year lease, the contract of December 30, 1949, having been terminated.
On May 16, 1952, appellee filed a bill of complaint in the Circuit Court of Dallas County, in Equity, praying for a declaratory judgment concerning the status of the parties under the contract of December 30, 1949. Appellants filed demurrers, answer, cross-bill in response thereto, and G. Frank Cothran, Jr. was made a cross-respondent in the cross-bill which contained allegations that he wrongfully urged and induced appellee to terminate the contract.
Appellants' demurrers were overruled and on motion of G. Frank Cothran, Jr., and appellee, Cothran was stricken as a party cross-respondent. On January 14, 1953, the cause was heard on its merits and submitted for final decree. On February 16, 1953, the court handed down its decree declaring that the lease and option were terminated, null and void. It was from that decree that this appeal was taken.
We first consider appellants' contention that appellee having an adequate remedy at law, there was no equity in the bill and demurrer thereto should have been sustained. Appellants rely on previous cases wherein it was held that a declaratory judgment is not ordinarily available if another remedy exists which affords adequate relief. L. W. Richardson & Co. v. Town of Hamilton, 248 Ala. 585, 28 So. 2d 924; Goltsman v. American Life Ins. Co., 248 Ala. 151, 26 So. 2d 596; Donoghue v. Bunkley, 247 Ala. 423, 25 So. 2d 61; Gambill v. Greenwood, 247 Ala. 149, 22 So. 2d 903; Glass v. Prudential Ins. Co. of America, 246 Ala. 579, 22 So. 2d 13; State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 11 So. 2d 342; State v. Inman, 238 Ala. 555, 191 So. 224. By amendment of October 9, 1947, the following was added to Code 1940, Tit. 7, § 167:
Appellants further insist that the amendment constitutes an exercise of judicial powers by the Legislature in violation of the Constitution of 1901, Art. 3, § 43.
Since the enactment of the 1947 amendment, this court has held that relief under the Declaratory Judgments Act does not depend on the absence of another adequate remedy. Dozier v. Troy Drive In Theatres, 258 Ala. 417, 63 So. 2d 368; Wolff v. Woodruff, 258 Ala. 1, 61 So. 2d 69; Brantley v. Flowers, 254 Ala. 448, 48 So. 2d 532. We view the amendment as a further enlargement of the scope of the court's powers under the Act. As such, it does not impinge on the powers reserved to the judiciary by the Constitution.
In Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So. 2d 11, it was held that if a complaint states the substance of a bona fide justiciable controversy which should be settled, a cause of action for a declaratory judgment is stated, and demurrer thereto should be overruled. The present complaint comes within the above general statement of the rule.
Appellants maintain that on its face the contract is severable and divisible. And, since no allegations were made as to breach of conditions precedent to the right to exercise the option, the bill of complaint praying for a declaration that the entire contract be terminated, was without equity and the demurrer thereto should have been sustained.
An option to purchase inserted in the same instrument with a demise may be independent or may fall with the estate demised on a forfeiture of the lease. The usual rules of construction are to be applied in ascertaining the meaning of the instrument. 51 C.J.S., Landlord and Tenant, § 87, p. 647. In determining whether a contract is severable or divisible, this court has applied the rule that if the consideration is single the contract is entire, but if the consideration is apportioned the contract will be regarded as severable. City of Albany v. Spragins, 208 Ala. 122, 93 So. 803; *7 Kirkland v. Oates, 25 Ala. 465. Appellants' obligation to pay the rent required under the lease constituted the only consideration for the option as well as the lease. The lease and option were clearly part of one and the same transaction and should be regarded as one agreement. It must result that if the lease be terminated the option to purchase also falls.
In the absence of a provision to such effect, non-payment of rent does not as a general rule give to the lessor the right to terminate a lease. Hyde v. Bains, 247 Ala. 8, 22 So. 2d 324; Myles v. Strange, 226 Ala. 49, 145 So. 313. There is no good reason, however, why the parties may not freely stipulate for termination of the lease upon non-payment of rents. Cirlot v. Stevens, 222 Ala. 271, 132 So. 163. The contract between appellants and appellee provided that if appellants failed to pay the rental notes as they matured, appellee, at her option, might declare the lease null and void and enter upon and take possession of the premises. It is clear that such provisions are valid and enforceable.
The question next raised is whether appellee waived her right to terminate by past acceptance of late payments.
In 32 Am.Jur., Landlord and Tenant, § 882, p. 748, it is stated:
This court has previously held, however, that if by his acts a lessor leads the lessee to believe that strict performance of the agreements in the contract will not be insisted upon, equity will not permit the lessor to take advantage of the forfeiture provisions in the contract without notice to the lessee that strict compliance will be required. Hawkins v. Coston, 214 Ala. 135, 107 So. 50; Humphrey v. Humphrey, 254 Ala. 395, 48 So. 2d 424, 31 A.L.R.2d 315.
To establish that appellee was precluded from exercising her right to terminate, the burden was on appellants to show that reliance on appellee's course of dealing would induce the belief that a delay in the payment of rent for a period of eleven months, from the date due, would not be such a delay as would cause appellee to insist on termination. In this respect appellants failed.
Assuming that appellee's indulgence under the lease of December 11, 1944, may presently be considered, it is clear that appellants had been late in making payments in prior years and that such payments had been accepted by appellee. It may well be said that this course of dealing precluded appellee from insisting on strict compliance with the terms of the lease. We are not concerned, however, with insistence upon strict compliance but rather with non-compliance of almost a year's duration. As stated in 51 C.J.S., Landlord and Tenant, § 117d(2), pp. 708, 709, 710:
That prior payments had been accepted after the date due is not enough in and of itself to bring the present case within the rule of Hawkins v. Coston, supra. The past conduct shown must have been such that reliance thereon would induce the belief that a delay in payment of over eleven months would not cause the lessor to terminate the contract. We do not believe, for example, that acceptance of prior payments a week past the due date would *8 induce the belief that a delay in payment of six months would constitute satisfactory compliance with the requirements of the contract. It follows that evidence revealing previous acceptance of "late" payments is not a showing of past conduct which, by itself, reasonably supports a belief that nonpayment of rent for almost a year beyond the date due would be satisfactory compliance with the terms of the contract.
Nor do we believe that the conduct of appellee and her agents during 1951 was such as to constitute a waiver of the right to terminate. Appellee's statement on April 7, 1951, that appellants should pay the balance due "as quick as you can" is urged by appellants as an indefinite extension of time during which payment could satisfactorily be made. Prior to that statement, appellee's attorney communicated with appellants insisting that action be taken to avoid forfeiture. The evidence supports a finding that on several occasions subsequent to the date of that statement, appellee's agent had written to appellants concerning the past-due rent and had received no reply. A course of conduct is revealed which was characterized by continuous efforts directed toward the collection of the past-due rent. Considered in the light of these communications before and after April 7, 1951, appellee's statement should reasonably be interpreted more as an admonition that payment should be made promptly than as a waiver of her right to terminate upon continued default for a period of over eight months thereafter. We conclude that appellee's course of dealing did not preclude her from terminating the lease in December, 1951.
After careful consideration of all of appellants' numerous assignments of error and the record as a whole, we are clear to the conclusion that the Chancellor committed no substantial error that affected the outcome of this suit. Accordingly, the decree of the Circuit Court, in equity, is due to be, and is, hereby affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | March 24, 1955 |
3f04ea99-287d-4cfa-b8a7-b404ced77a78 | Smith and Gaston Funeral Directors v. Dean | 80 So. 2d 227 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 227 (1955)
SMITH and GASTON FUNERAL DIRECTORS, Inc.
v.
Alfred DEAN et al.
6 Div. 637.
Supreme Court of Alabama.
March 24, 1955.
Rehearing Denied May 26, 1955.
*228 G. P. Benton, Fairfield, and Wm. L. Clark, Birmingham, for appellant.
Wm. B. McCollough and Kingman C. Shelburne, Birmingham, for appellees.
GOODWYN, Justice.
Alfred Dean and his sister, Sadie Hooper, plaintiffs below and appellees here, brought action against Smith and Gaston Funeral Directors, Inc., defendant below and appellant here, seeking punitive damages for maliciously, intentionally and wantonly trespassing upon the grave of plaintiffs' deceased brother, Will Dean. This appeal is from the judgment of the circuit court rendered pursuant to a jury verdict awarding damages of $2,500. Defendant's motion for a new trial was overruled.
As finally presented to the jury, the complaint consisted only of count 4, which was as follows:
Defendant's demurrer to the complaint being overruled, issue was joined on defendant's plea in short by consent.
It appears from the evidence that plaintiffs obtained a burial policy on the life of their brother, Will Dean, from the Southern Burial Association; that the premiums on this policy were paid by plaintiffs; that when Will died, Alfred turned the policy *229 over to the Southern Burial Association; that Alfred and Sadie then went to Grace Hill Cemetery and personally selected the grave site for Will's burial; that Southern Burial Association, pursuant to its contract with Alfred and Sadie, paid $10 to Grace Hill Cemetery for said burial site; and that Will was buried there on May 5, 1943, Alfred and Sadie being present at the time.
It further appears that, shortly after Will's burial, Alfred, for himself and Sadie, arranged with the cemetery caretaker for placement of a concrete slab on Will's grave. When placed, the slab covered the grave site sold by Grace Hill Cemetery for Will's burial except for a space at the foot which was left open for flowers or grass. The slab was rectangular in shape and was supported by a "curb", 18 to 20 inches thick, which extended into the ground about 10 inches and was about 9 or 10 inches above ground. At the head of the slab there was a raised "head piece made out of concrete" inscribed with Will's name, his date of birth and death, and with the words "At Rest". From the time of the burial until the early part of 1950, Alfred visited Will's grave some 40 to 50 times, at more or less regular intervals, and kept the grave free of weeds. During this time, Alfred was a resident of Jefferson County, Alabama, and Sadie resided out of the State. At the time of Alfred's last visit in 1950 the grave marker was clearly visible and was 8 or 10 inches above the top of the ground. He testified that about a year later he went to the cemetery to visit the grave but was unable to locate it; that when he went to the spot where he had been going he "didn't see anything, no marker or nothing", "didn't see anything but the green grass and the ground, and * * * didn't see any marker whatsoever", "wasn't nothing there visible but the ground and grass", and that "not a bit" of the concrete slab was visible. He made inquiry of the caretaker as to the grave but they were unable to locate the grave site until several days before the filing of this suit on January 22, 1952.
It further appears that the defendant acquired the Grace Hill Cemetery in 1948 and during the months of May, June, July and August, 1950, cleared that part of the cemetery where Will's grave was located of an accumulation of weeds, grass and vines. This work was done both by manual labor and by machine. After Will's grave site was located, it was found that the slab had been broken in several places and been caused to settle.
The position taken by defendant is that "the plaintiffs did not establish the elements essential to the maintenance of an action of trespass, as distinguished from an action of trespass on the case", because plaintiffs failed to prove their title to or actual possession of the grave site. Incident to that contention, defendant takes the further position that since, as contended, the action is one in case and not in trespass, the cause is barred by the statute of limitation of one year, Code 1940, Title 7, Sect. 26, and does not come within the limitation of six years, Code 1940, Title 7, Sect. 21. Section 21 provides that "actions for any trespass to real or personal property" are barred unless commenced within six years. Section 26 provides for a limitation of one year for "actions for any injury to the person or rights of another, not arising from contract, and not herein specifically enumerated".
It is apparent that if the action is in case it is barred by the statutory limitation of one year; if in trespass it is not barred. There is no difficulty in reaching the conclusion that the action is in trespass and, hence, is not barred. Southern Railway Co. v. Sanford, Ala.Sup., 76 So. 2d 164, 166, 167; Crotwell v. Cowan, 240 Ala. 119, 121, 198 So. 126.
The principle discussed in the specially concurring opinion in Holder v. Elmwood Corporation, 231 Ala. 411, 165 So. 235, has no application here. In that case, the damages were for mental suffering which distinguishes the discussion there made from the case now before us, which, as we have noted, seeks only punitive or exemplary damages. We take occasion here to note that the special concurrence in that case was by only three members of the court.
*230 One of the errors assigned is the action of the trial court in overruling the demurrer to the complaint (Count 4, supra). The specific objections to Count 4 are that "it fails to contain a description of the locus in quo sufficient to put defendant on notice of same"; that it fails "to give the location of the grave site alleged to have been trespassed upon"; and that "it also fails to give the name of the deceased brother alleged to have been buried in the grave in question". In Bessemer Land & Improvement Co. v. Jenkins, 111 Ala. 135, 18 So. 565, 567, 56 Am.St.Rep. 26, a father brought an action of trespass quare clausum fregit for unlawfully invading a burial lot and exhuming and carrying away the body of his child. Examination of the original record discloses that there was no allegation as to the name of the child. The premises upon which the trespass was said to have been committed were thus described in the complaint:
A demurrer taking the point that the premises were not described with sufficient definiteness was overruled. In holding that the demurrer was properly overruled, this court, per Haralson, J., said:
On authority of that case, we conclude that overruling the demurrer to the complaint in the instant case was without error.
We come now to consider the principal question presented, that is, whether plaintiff's had such an interest in the plot as will support their action of trespass. Our view is that they did. While it does not appear that there was any sort of deed or conveyance executed by the cemetery owners to the plaintiffs, or to the Burial Society for plaintiffs' benefit, it is not controverted that a valuable consideration was paid to the cemetery owners for the right of burial and that Will Dean was buried in the plot with the knowledge and consent of the owners.
One who buys the privilege of burying his dead kinsmen in a public cemetery thereby acquires no general right of property. He acquires only the right to bury the dead, for he may not use the ground for any other purpose than such as is connected with the right of sepulture. Beyond this, his title does not extend. He does not acquire, in the strict sense, an ownership of the ground; all that he does acquire is a right to use the ground as a burial place. However, when a purchaser has thus acquired possession, or the right thereto, such possession is exclusive in him as long as the cemetery is lawfully used for burial purposes. And so well recognized is that right that he may maintain trespass quare clausum fregit against anyone unlawfully interfering with the same whether by the owner of the fee or by a stranger. Bessemer Land & Improvement Co. v. Jenkins, 111 Ala. 135, 147, 18 So. 565; Dwenger v. Geary, 113 Ind. 106, 14 N.E. 903; Jacobus v. Congregation of Children of Israel, 107 Ga. 518, 33 S.E. 853, 73 Am. *231 St.Rep. 141; Kelly v. Tiner, 91 S.C. 41, 74 S.E. 30, 33; Matthews v. Forrest, 235 N.C. 281, 69 S.E.2d 553, 556; Johnson v. Kentucky-Virginia Stone Co., 286 Ky. 1, 149 S.W.2d 496, 498; Brunton v. Roberts, 265 Ky. 569, 97 S.W.2d 413, 415, 107 A.L.R. 1289; Mansker v. City of Astoria, 100 Or. 435, 198 P. 199, 205, 199 P. 381; 10 Am.Jur.Cemeteries, Sect. 22, pp. 503, 504; 14 C.J.S., Cemeteries, § 36, pp. 95, 96. For annotation, see 172 A.L.R. 554.
As thus stated in Bessemer Land & Improvement Co. v. Jenkins, supra:
The Supreme Court of Georgia quoted the foregoing approvingly in Jacobus v. Congregation of Children of Israel, supra [107 Ga. 518, 33 S.E. 854], and there said:
From Kelly v. Tiner, supra [91 S.C. 41, 74 S.E. 33], is the following:
The Supreme Court of North Carolina, in the course of its opinion in Matthews v. Forrest, supra [235 N.C. 281, 69 S.E.2d 556], had this to say:
In Johnson v. Kentucky-Virginia Stone Co., supra, it was held that although plaintiffs did not own the fee in the land occupied by their brother's grave, they nevertheless had a right which could not be unlawfully destroyed or disturbed by the owner of the fee; that such right is sometimes referred to as a mere easement, privilege, or license, but that it is, however, a right which entitles the next of kin of the dead person to maintain an action against the owners of the fee or strangers who, without right, knowingly and wantonly disturb the grave.
From Brunton v. Roberts, supra [265 Ky. 569, 97 S.W.2d 415], is the following:
The Supreme Court of Oregon had this to say in Mansker v. City of Astoria, supra [100 Or. 435, 198 P. 205]:
From 10 Am.Jur., Cemeteries, Sect. 22, pp. 503, 504, supra, is the following:
The following is from 14 C.J.S., Cemeteries, § 36, pp. 95, 96, supra:
Evidence was offered on behalf of plaintiffs tending to show disturbance by defendant, its agents or employees, of other graves in the same cemetery at or about the same time the trespass here involved was alleged to have been committed, all as part of a plan to "renovate" the cemetery. Defendant insists that it was prejudicial error to overrule its objections to such evidence. With this we cannot agree. The fact that other graves in the same cemetery were disturbed at or about the same time as the alleged trespass to Will's grave was relevant, it seems to us, as bearing on the issue of maliciousness and wantonness. As stated in 20 Am.Jur., Evidence, Sect. 303, p. 281:
One of the grounds of the motion for new trial was that the verdict of the jury was excessive. The argument in support of this ground is thus stated in defendant's brief:
We do not understand defendant to question the propriety of the trial court's action in refusing to receive the first verdict and instructing the jury to retire again for further consideration. This was in accord with approved procedure. City of Tuscaloosa v. Fair, 232 Ala. 129, 135, 167 So. 276; Foster v. Prince, 224 Ala. 523, 524, 141 So. 248; City of Birmingham v. Hawkins, 196 Ala. 127, 131, 132, 72 So. 25; Higginbotham & Co. v. Clayton & Webb, 80 Ala. 194, 195; Allen v. State, 79 Ala. 34, 39. The argument seems to be that since the first verdict attempted to make an award of actual or compensatory damages in the amount of $1,000 that fact is sufficient to show that the jury, in rendering *234 the final verdict of $2,500, included in such verdict an amount of $1,000 for actual or compensatory damages. For that to be said would be to speculate not only as to what occurred in the jury room but also as to the mental processes of the jurors in arriving at this final verdict. That verdict was responsive to the issues and in conformity with the court's instructions. We would not be warranted in assuming that the jury included in that verdict any element of damages not responsive to the issues and instructions of the court. If the verdict as finally rendered should be considered excessive, that would be something to be determined without regard to the recitals in the first verdict.
We have carefully reviewed the evidence. As we see it, a jury question was presented on the issues of wantonness, maliciousness and intent in committing the trespass. We do not find any basis for disturbing the jury's findings in favor of the plaintiffs on these issues, although such issues might well have been resolved in favor of defendant.
Nor do we think we would be justified in reducing the amount of the award, as being excessive, particularly in view of the trial court's refusal to do so on motion for new trial. Pertinent here is the following from Alabama Water Service Co. v. Harris, 221 Ala. 516, 519, 129 So. 5, 8:
We here note that some cases make a distinction between "private" and "public" cemeteries. It is our view that Grace Hill Cemetery, though privately owned, is properly classified as a "public cemetery" and we have dealt with it here as such. As stated in Parker v. Fidelity Union Trust Co., 2 N.J.Super. 362, 63 A.2d 902, 916, 917:
The following is from City of Wichita v. Schwertner, 130 Kan. 397, 286 P. 266, 268:
It follows, from what we have said, that the judgment appealed from is due to be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and LAWSON and SIMPSON, JJ., concur. | March 24, 1955 |
b0c4b7e7-60f3-4bea-9ba5-f3a519d42a22 | Griggs v. Barnes | 78 So. 2d 910 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 910 (1955)
Barbara Jean GRIGGS
v.
Earsel BARNES et ux.
4 Div. 743.
Supreme Court of Alabama.
March 24, 1955.
*911 Patterson, Patterson & Miller, Phenix City, for appellant.
Mary A. Lee and Samuel Kaufman, Montgomery, for State Dept. of Public Welfare, amicus curiae, in behalf of appellant.
Brassell & Brassell, Phenix City, for appellees
MAYFIELD, Justice.
This is the second time that the merits of this cause have been before this court.
On appeal from a writ of habeas corpus from the Circuit Court of Russell County, the Supreme Court of Alabama in Griggs v. Barnes, 257 Ala. 21, 57 So. 2d 61, awarded the custody of the minor child, which is the subject of this suit, to his natural mother. This court, in a five to two decision, examined the merits of the controversy between the appellant, Barbara Jean Griggs, the natural mother, and the appellees, Mr. and Mrs. Barnes, the foster parents, and determined that this minor illegitimate child should be returned to its natural mother.
The facts and circumstances upon which this first opinion was based were set out in the dissenting opinion of Mr. Justice Simpson, and must be read in connection with this opinion. The majority of this court in the case of Griggs v. Barnes, supra, mandated the trial court as follows:
In response to this order of the Supreme Court of Alabama, the Circuit Court of Russell County directed the register to order the sheriff to carry out the terms of the decree of this court.
The order of the register to the sheriff was as follows:
This order of the circuit court of Russell County, issued in accordance with the mandate *912 of the Supreme Court of Alabama, was delivered to the sheriff of Russell County, but appears never to have been executed. The custody was never restored to the natural mother. Mr. Barnes was in Phenix City attending to his regular business during this period of time, but was never served with a copy of this order. Anne Barnes testified that she had taken the child out of the State of Alabama to visit relatives in Atlanta, and, therefore, she was never served, and did not surrender the custody of the child as this court ordered. However, a copy of this decree was served by the sheriff upon the attorney of record for the Barneses.
Earsel Barnes and Anne Barnes, with knowledge of the order of this court, filed their petition in the circuit court of Russell County on 12 March 1952, claiming a "change in the condition of the party" since the appeal was taken in the case of Griggs v. Barnes, supra. On the same day that the Barneses, complainants-appellees in the instant cause now before this court, filed their petition for custody, the trial court ordered that the custody of the minor child remain with the complainants upon their entering into bond in the amount of $1,000 "binding them to abide by the terms of any decree entered in this cause, and keep said child within the jurisdiction of this court."
The appellees' failure to surrender this child to its natural mother in accordance with the decrees of court, borders upon a contempt. The Barneses having failed to obey the order of the highest court of this State and the decree of the lower court issued in compliance therewith, now seek recourse to the equity courts of this State. Obviously, they do not come into equity with clean hands.
The "changed conditions" upon which the appellees attempt to retain possession of this child were, as set out in their sworn petition:
The evidence that the Barneses introduced in support of these averments of their petition was of a shabby and uncompelling nature, and insufficient to overcome a well-established rule that the unfitness which deprives a natural parent of its right of custody of a child must be shown by clear, compelling and satisfactory proof. Esco v. Davidson, 238 Ala. 653, 193 So. 308; Fort v. Fort, 246 Ala. 83, 18 So. 2d 870.
The principal evidence offered against Barbara Jean Griggs was by way of two Phenix City policemen who were called as witnesses for the complainants below. They testified, in substance, that on the night of the 24th of October, 1951, at about 11:00 p. m., while cruising in their patrol car, they discovered an automobile parked in the vicinity of the Phenix City Water Works. That the respondent, Barbara Jean Griggs, was observed by them in an automobile partially disrobed and in the act of intercourse with a soldier. Neither the background nor the subsequent actions of these Phenix City policemen lend credence to their testimony. These officers contend that Barbara Jean Griggs implored them not to put her in jail, saying that she would have no chance of getting her baby back. The policemen, according to their testimony, then instructed Barbara Jean Griggs and the soldier to meet them at a half hour before midnight at the Central High School and directed that each of them bring $26.50 for a "cash bond". The only reasonable inference that can be drawn from this alleged instruction is, that if each of the accused parties gave the officers $26.50 for a "cash bond", that they would be allowed "to jump their bonds" and that would be the end of this incident.
The Phenix City policemen testified that Barbara Jean Griggs and the soldier met *913 them at the High School just before midnight and stated that they did not have the money; whereupon they were again instructed to meet the officers with the money in the early morning hours, at Mother Mary's Mission. Barbara Jean Griggs and the soldier did not keep this rendezvous. Several days later, one of the officers caused a warrant to be issued to the couple, stating, "so I swore out a warrant myself, because I didn't think it was right to be cheated like that, after trying to give her a break, and to ignore me in the line of duty." [Emphasis supplied.] One of the officers testified on cross-examination that he had since been "laid off" of the police force, and was now driving a taxi.
The evidence as to what happened at the trial in the Phenix City Recorder's Court is in sharp conflict. Barbara Jean Griggs strenuously denied her guilt. There was also evidence in the case that the governing officials of Phenix City were over-active in securing a conviction in this case. This claim of the respondent is denied.
It is admitted by appellees that Mrs. Barnes procured a court reporter from the State of Georgia to report this case in the police court and a copy of these proceedings were paid for and delivered to Mrs. Barnes. This criminal prosecution of Barbara Jean Griggs in the Police Court of Phenix City, is now on appeal to the circuit court of Russell County and so far as this court is informed by the record has not been disposed of. The soldier with whom Barbara Jean Griggs allegedly had intercourse was not a witness on the hearing of the petition now before this court. The question of the statements that the soldier made at the Police Court, and also their proper interpretation of these statements, are conflicting. There is evidence that pending the appeal from the Police Court, a responsible official of the City of Phenix City attempted to get Barbara Jean Griggs to sign a "release" admitting the alleged act of intercourse, in order that the city would not be sued for "false arrest". This evidence is denied by the city official.
The complainant below procured the testimony of Barbara Jean Griggs' grandfather, one Lum Griggs. On the question of fitness for custody, this man testified against his granddaughter and in favor of the Barneses. However, the record discloses, without dispute, that this Lum Griggs was an ex-convict who had served time in the penitentiary for larceny. And that he was formerly employed as a bartender at the Yarbrough's Fish Camp, a place of ill repute. Lum Griggs' own son, C. C. Griggs, testified that his father's general reputation in the community in which he lived was bad, and that he could not be believed under oath. The son, C. C. Griggs, went on to testify that his niece Barbara was a hard working girl and enjoyed a good reputation in her community; and that she was in every way the fit and proper person to have the custody and control of her natural child. The record reflects that this character, Lum Griggs, had more than a passing interest in giving his testimony for the complainants. After the trial of the habeas corpus petition in the lower court, Lum Griggs went to the office of Barbara Jean's attorney, A. L. Patterson, and threatened that if Mr. Patterson pursued Barbara Jean Griggs' appeal in Griggs v. Barnes, supra, that he would run his granddaughter out of town.
The charge that appellant "became inebriate to such an extent as to almost render her an habitual drunkard", is not supported by the evidence. In fact, the great preponderance of the evidence indicates that Barbara Jean Griggs was a total abstainer. The Barnes' principal witness on this issue was partially discredited on cross-examination, and while under examination was taken with some sort of seizure, and was unable to finish her cross-examination. This woman had formerly been a licensee of the State Department of Welfare to care for small children under the control of that Department. The State refused to renew her license. The report of the State Department of Welfare, introduced into the evidence, supports the claim of the natural mother.
*914 The evidence in this cause was voluminous and a great deal of it was directed in general terms to the overall fitness of the contending parties. This issue had already been determined by the Supreme Court of Alabama and the evidence should have been limited to the alleged "changed conditions" set out in the sworn petition of the complainants below.
It might be observed that the State Department of Welfare caused an independent investigation to be made of this cause. This report was introduced into evidence. In an excellent brief which the Department directed its able solicitor to file, Amicus Curiae, this point was made:
There was considerable evidence that Mr. Barnes drank to excess. This fact was established not only by the testimony of the respondent's witnesses but confirmed by the admissions of the complainants' witnesses on cross-examination, and substantiated by convictions in the Police Court. It should be observed in justice to Mr. Barnes, however, that no evidence was elicited which clearly showed that his excessive drinking was done in the presence of this child, or had any detrimental effect upon the child which he sought to adopt.
The record without dispute shows that Mrs. Barnes was a woman of exemplary character and deeply devoted to Barbara Jean Griggs' child.
We are mindful of the passionate and burning desire of couples who have been denied parenthood to give stability and meaning to their lives by the adoption of children. We also recognize that once a helpless babe is brought into a home, nurtured and cared for by its foster parents, that the tenderness and the depth of the bond between the infant and its benefactors increases with each passing day. We can say without hesitation that the attachment of these foster parents is now as deep as if this child were flesh of their flesh and blood of their blood.
These natural and human feelings of the foster parents, however, cannot be allowed to sway us from our sworn and bounden duty to enforce the laws of this state. No legal adoption of Barbara Jean Griggs' child was consummated by the Barneses.
While it is true that the "pole star" in custody cases is the best interest and welfare of the child, the courts of this state do not have the power to sever the bonds of blood relationship merely in order to gain some real or fancied advantage for a minor child.
In the instant case, this unwed mother was delivered of her baby in the early morning hours of 6 April 1951. A few hours after she had given life to this child, she signed an instrument purporting to consent to his adoption. Mrs. Floyd, a nurse and assistant to her husband, the mother's physician, was active in the arrangement of the placement of this child in a foster home. It is not shown that either Mrs. Floyd or Dr. Floyd were licensed under the laws of this state to engage in the practice of placing children. The practice of the unauthorized placement of children has been under heavy attack in this and other states by the duly constituted agencies and *915 authorities of the state and by the bar associations.
As late as July, 1954, the Alabama Bar Association adopted a resolution deploring the unauthorized placement of children which reads in part as follows:
"Resolved, that the Alabama State Bar Association recommends (1) that all county bar associations carefully scrutinize, in relation to Title 49, Sections 62, 67 and 78, and Title 27, Sections 3 and 7, Code of Alabama 1940, the practice of signing blank consent forms and the placement of referral of children for adoption by unauthorized individuals or agencies; and (2) that individual attorneys use their influence to acquaint the public in addition to their clients to whom they provide professional service with the legal procedures of adoption designed to protect children, natural parents and foster parents; * * *"
Upon regaining her health, Barbara Jean Griggs realized that she could not live with the decision that she had made to give up her baby. On 2 May 1954, she executed an instrument for the purpose of withdrawing her consent to the adoption of her child and praying that the child be restored to her. From that date to the present, with the meager resources at her command, she has waged an unceasing battle to recover possession of her child.
The very right of this struggle has already been determined by this court and it will serve no useful purpose to further enumerate the heart rending claims and counter claims that were brought forth in the first trial of this cause. The only thing now open for our examination is whether or not, since the rendition of the first decree, the appellant so comported herself that the custody vested in her by the Supreme Court of Alabama should be revoked in the best interests of her child. The evidence adduced at this trial falls far short of the quantum of proof necessary to overcome the strong presumption that the law indulges in her favor.
This teen-aged mother, misguided though she was, carried this child, and gave of herself to complete her pregnancy. Alone, disgraced and afraid, she entered the twilight valley of the shadow of death to bring life to this child. Her right to this child is paramount. The natural parents, and in the case of illegitimate children, the natural mother, is entitled to the care and custody of her children, unless good cause is shown why the custody of the natural parent is not in the best interest of the child. Griggs v. Barnes, supra, Morris v. Morris, 19 Ala.App. 216, 96 So. 374, see also Stoddard v. Bruner, 217 Ala. 207, 115 So. 252; Chandler v. Whatley, 238 Ala. 206, 189 So. 751; Fort v. Fort, 246 Ala. 83, 18 So. 2d 870; Sparkman v. Sparkman, 217 Ala. 41, 114 So. 580; Cordell v. Cordell, 233 Ala. 114, 170 So. 218; Whitten v. Whitten, 214 Ala. 653, 108 So. 751.
The evidence in this cause was voluminous, and we do not wish to be understood that this opinion recites all of the evidence upon which this decision is based. Much of the evidence was in general terms and was directed to the overall fitness of the contending parties. Much of the evidence was of doubtful admissibility, and some of the procedures and methods of introduction of evidence were at the least irregular. For example, we are informed through the record without denial, that after the Supreme Court of Alabama awarded custody to the natural mother that she found a husband and is now married to a member of the Armed Forces of the United States. We can only wish that this evidence was clearer and that it had filtered into the record in a more admissible form. As this is a circumstance to which the court should give due consideration.
The rule that the decree of the nisi prius court should be given the effect of a jury verdict when the evidence was heard ore tenus, is without application where the trial court erroneously applied the law to the facts before him. Here the learned Chancellor's decree seems to be based solely on what he considered the best interest of the minor child without adequate *916 regard to the legal rights of the natural mother due to her blood relationship.
The problem has been best stated in the classic California case, In Guardianship of Smith Howes v. Cohen, Cal., 255 P.2d 761, 762:
And as was said in our case of Esco v. Davidson, 238 Ala. 653, 655, 193 So. 308, 309:
We do not find that the averments of appellees' petition are supported by evidence that is either clear, satisfactory or compelling, and further that the evidence that was offered was insufficient to overcome the burden of proof cast upon appellees in their attempt to deprive the natural mother of her child.
The decree of the lower court is again reversed and one is here rendered to the effect that the appellant is entitled to the custody of her minor child. To this end, this cause is again remanded to the Circuit Court of Russell County with instructions to forthwith carry out the terms of the decree here rendered.
Reversed, rendered and remanded with instructions.
LIVINGSTON, C. J., and GOODWYN, J., concur in the result.
SIMPSON, J., concurs specially.
SIMPSON, Justice (concurring specially).
While still adhering to my dissent in the first case cited supra, I perforce must respectfully bow to the decision of the majority. With this preface I concur in the instant opinion that no sufficient change in conditions have been made to appear to justify modification of the former decree. | March 24, 1955 |
62eb610f-c9bb-4f75-9cbd-df1bee08b5e1 | Miles v. Moore | 79 So. 2d 432 | N/A | Alabama | Alabama Supreme Court | 79 So. 2d 432 (1955)
Rebecca S. MILES
v.
Millard J. MOORE.
5 Div. 588.
Supreme Court of Alabama.
April 7, 1955.
*433 Henry C. Meader, Montgomery, and Jas. O. Davis, Jr., Auburn, for appellant.
L. J. Tyner, Opelika, for appellee.
LAWSON, Justice.
Millard J. Moore, an original contractor, filed his bill of complaint in the circuit court of Lee County, in equity, against Mrs. Rebecca S. Miles, seeking to establish a statutory lien against a lot owned by Mrs. Miles and the residence which Moore constructed thereon and also seeking a sale of the property in satisfaction of the lien. § 37 et seq., Title 33, Code 1940.
It appears from the bill and exhibits thereto that the lien was sought to secure "an indebtedness of Thirty-nine Hundred Sixty and 36/100 Dollars ($3960.36) with interest, from, to-wit: the 10th day of December, 1952 for balance due the undersigned Millard J. Moore for work and materials furnished and used by him as general contractor in the construction of a residence on the above described lot in the City of Auburn, Lee County, Alabama."
Mrs. Miles answered the bill denying that she was indebted to Moore in any amount. She made her answer a cross bill wherein she sought to recover from Moore the sum of $6,700. She averred that she was not given possession of the residence in accordance with the terms of her contract with Moore and claimed damages of $200 for the delay. She also claimed the *434 sum of $1,500 which she averred it was necessary for her to expend in order to complete the house and correct defects therein. She further claimed the sum of $5,000 damages because of alleged depreciation in the value of the residence due to the alleged use of defective materials and because of the alleged unworkmanlike manner in which the residence was constructed.
The case was tried upon the issue presented by the original bill of complaint, the answer and cross bill of Mrs. Miles, and Moore's answer to the cross bill. The result of that trial was the rendition of a decree against Mrs. Miles in the amount of $3,860.36, with interest. This amount was made a lien upon the property in question and it was ordered sold for the satisfaction of the lien unless the lien and costs were paid by Mrs. Miles within thirty days from the date of the decree. From that decree Mrs. Miles has appealed to this court.
There is no merit in assignments of error 7, 8, 9, 10, 11 and 12 for the following reasons: Each of those assignments is too general to warrant consideration here. Hall v. Pearce, 209 Ala. 397, 96 So. 608; Snellings v. Jones, 33 Ala.App. 301, 33 So. 2d 371, certiorari denied 250 Ala. 89, 33 So. 2d 273. The court reporter will set out those assignments of error in the report of the case. As to assignments of error 7, 9 and 11, we are unable to find on the pages of the transcript referred to in those assignments where the trial court overruled any objection interposed by counsel for respondent. As to assignments of error 8, 10 and 12, we call attention to the provisions of Act No. 101, approved June 8, 1943, General Acts 1943, p. 105, § 372(1), Title 7, Code 1940, 1953 Cum.Pocket Part, Vol. 2, p. 71. Under that law the trial court was not required to rule on the objections interposed by respondent's counsel, but was confined to consideration of such testimony before him as was relevant, material, competent and legal. Sansom v. Sturkie, 245 Ala. 514, 18 So. 2d 267. See Redwine v. Jackson, 254 Ala. 564, 49 So. 2d 115; LeMay v. LeMay, 205 Ala. 694, 89 So. 49. The course pursued by the trial court in failing to rule on objections interposed to evidence is in accord with the practice which prevails throughout this state in the trial of equity cases, which practice is in accordance with the provisions of law to which we have just referred above.
Moore averred in his bill that according to the terms of the original contract and the agreements supplemental thereto it was agreed that he was to construct the residence for the sum of $11,960.36; that Mrs. Miles had paid him only the sum of $8,000, leaving a balance due of $3,960.36, which she refused to pay although he, Moore, had "in all things performed his part of the contract according to the original written building contract with respondent and all written and oral amendments thereto."
As shown above, the trial court decreed that Mrs. Miles was indebted to Moore in the sum of $3,860.36, an amount $100 less than claimed by Moore. The reason for this difference appears in the following language which we quote from the decree of the trial court: "* * * that the balance due by the Respondent and Cross Complainant, Mrs. Rebecca S. Miles, to the Complainant and Cross Respondent, Millard J. Moore, under the contract as amended, for work and materials furnished under such contract as amended is $3960.36; that the Contractor, the Complainant and Cross Respondent, Millard J. Moore, acted in good faith in endeavoring to perform the contract and has substantially performed it; there being only a few minor or slight defects or omissions, and the Court is of the opinion that the Respondent and Cross Complainant, Mrs. Rebecca S. Miles, is entitled to a credit in the sum of One Hundred and no/100 Dollars ($100.00) for such minor and slight defects or omissions.
Appellant argues that the trial court was in error in awarding Moore any recovery for the following reasons:
As to the first ground asserted above, we are constrained to state, after a careful and painstaking reading of this record, that the evidence falls far short of showing that "the very minor or slight defects or omissions" which the trial court found to have existed resulted from any willful, intentional or grossly negligent act on the part of Moore. On the other hand, we are in accord with the finding of the trial court that the appellee, Millard J. Moore, acted in good faith in endeavoring to perform the contract and that the said defects or omissions were such as are generally found upon the completion of any building.
We cannot agree with appellant's second contention as quoted above. In the recent case of Wilson v. Williams, 257 Ala. 445, 446-447, 59 So. 2d 616, 617, we said:
An examination of the original record in the case of Wilson v. Williams, supra, discloses that the contractors alleged complete performance and yet we upheld the recovery in their favor on a finding of substantial performance. The action of Mrs. Miles in entering the residence and occupying it before Moore had turned it over to her was in effect an acceptance of the building. We hold that where a contract is substantially performed by one party and the benefits thereof retained by the other, recovery may be had in an action of this kind on an averment of full or complete performance, although the proof shows only a substantial performance. Substantial performance does not contemplate a full or exact performance of every slight or unimportant detail, but performance of all important parts. Wilson v. Williams, supra.
The other questions argued by counsel for appellant with so much earnestness and feeling all relate to the trial court's findings of fact. The evidence is presented by the record in great detail. The testimony shows many conflicts. We are not willing to burden this opinion with a detailed recitation of the evidence and its conflicting tendencies. The correctness of the findings of fact made by the trial court rests largely on the question of the credibility of the testimony, which was heard ore tenus by the trial court, who thereby had an opportunity to observe the manner of the witnesses. According the conclusion of the trial court the weight of a verdict *436 of a jury, we are unwilling to disturb those findings, since we cannot say that they are palpably wrong. Wilson v. Williams, supra; Mundy v. Allison, 237 Ala. 535, 187 So. 722; see Farmer v. Johns-McBride Engineering Service, 256 Ala. 335, 54 So. 2d 708. Moreover, the trial court in accordance with permissible practice, at the request of counsel for the appellant, made a personal inspection of the property before making its findings of fact and hence there is this additional reason why the decree is reviewed here as if it were a verdict of a jury. McNeil v. Hadden, 261 Ala. 691, 76 So. 2d 160, and cases cited.
The decree of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | April 7, 1955 |
7ef19b2e-1aca-43a3-a422-9c2ac21a68e5 | Shiflett v. State | 78 So. 2d 805 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 805 (1955)
Harold SHIFLETT
v.
STATE.
7 Div. 264.
Supreme Court of Alabama.
March 10, 1955.
*806 Love & Hines, Talladega, Fife & Stanford, Atlanta, for appellant.
John Patterson, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.
PER CURIAM.
This appellant was convicted of murder in the first degree for killing his wife and sentenced to the penitentiary for life.
*807 At the conclusion of the evidence for the State defendant's counsel moved to exclude the evidence for that (in substance) it was not sufficient to support a verdict of guilt. The court overruled the objection and defendant excepted. This is not improper practice in criminal cases, though not permissible in civil cases. Robinson v. State, 222 Ala. 541, 133 So. 578; Langham v. State, 243 Ala. 564(10), 11 So. 2d 131.
The witnesses for the State had testified that Elizabeth Shiflett, wife of defendant, was shot with a twenty-two caliber rifle on the morning of August 5, 1954, at the home of her father, Walter Griffin. Elizabeth, called Betty, had married defendant seven years previously, when she was fourteen years of age. She and defendant had a small child named David who was about two years old. Deceased had a brother named Donald Griffin who lived in the home of their father and he owned the rifle used in this case. Defendant went to the home of Walter Griffin about 8 o'clock in the morning of August 5th. Betty had spent the night there the night before. In the father's home there was a hall extending through the center of the house with three bedrooms on the left, numbered for convenience on a diagram in evidence as 1, 3 and 5, consecutivelyall bedrooms. The three rooms on the right were the living room, dining room (numbered 2 and 4) and a kitchen.
When defendant came to the house that morning Mrs. Martin, the grandmother of deceased, who was living in the house, was sitting on the front porch. He said nothing to her but went in through the front door. Mrs. Martin had been in the back bedroom (No. 5) where deceased had been lying on the bed which was in the northeast corner of the room. Her head was toward the foot of the bed. The room was about ten by fourteen feet. There was a door between that room and the adjoining one (No. 3) which was used by Mrs. Martin. The bed in her room was also in the northeast corner of it, with the foot of the bed extending over part of the door opening between the rooms. There was a sewing machine in front of and to the center of the bed. According to the evidence, a few minutes (four or five) after defendant went into the house, Mrs. Martin went back into her room (No. 3), where she could see into the room previously occupied by deceased (No. 5). Defendant was sitting on the bed near the foot (in room No. 5). He did not then have a rifle or any sort of gun in his hands. Deceased was sitting in a chair in room No. 3 near the fireplace on the west side of the room. The witness did not see the little boy (David). She asked deceased if she was ready to eat her breakfast, but received no reply. The door was open between rooms 3 and 5 and Mrs. Martin could see defendant sitting on the bed in room No. 5. Mrs. Martin then went into the kitchen where she had dinner cooking. The kitchen was across a back hall (or porch) opposite room No. 5. She stayed in the kitchen a few minutes and then went back to her bedroom (No. 3) and again asked deceased if she was ready to eat. Defendant was still sitting on the bed in room No. 5 and deceased sitting in a chair in room No. 3 as before. They were not then talking. The baby had wet his pants and the floor and witness got a mop to clean the floor. Deceased had just dried the baby but she was then sitting in the same chair. Witness told deceased her bread was ready. Defendant said nothing. Witness was preparing some okra for the deep freeze and went "back there". She had been back there a minute when she heard deceased say "David, put down those shells". She did not hear defendant speak. The next thing (while she was "nubbing" the okra) she heard a scream and deceased said "Oh, Harold!", and the gun fired just as she said "Harold". The gun fired on the last word she saidjust as she finished the word "Harold". Witness then testified: "It seemed like it just throwed me still in my tracks for a second and I would have to hold to walk but I got turned around to the clothes drier and the washing machine and to a chair as I went through and then the door shutter and when I got in to the room I saw her laying on the floor with her *808 eyes blared open. She didn't move a finger nor a toe and just as I got up to her shoulders he come up to her feet. I screamed at her, `What in the world has happened?' He said, `I have shot Betty, but it was an accident, so help me God'. And about that time the telephone rung and I answered it. It was the second door neighbor's maid. She asked me what was the matter and I told her and told her to call Dr. Hardwick. Then I went back and he showed me where he had shot her and I told him to call Dr. Hardwick and call an ambulance, and he said `No, he would take her hisself.'" Mrs. Martin reached deceased's head and shoulders by the time defendant got to her feet. She was lying on her back. The witness indicated on a drawing that deceased was lying on the floor at the foot of the bed in room No. 3, with her head toward the southwest and her feet toward the northeast and nearer the bed than her head. Her feet were possibly ten inches from the door at the corner of the bed.
Mrs. Martin testified that her grandson, Donald Griffin, a brother of deceased, had a twenty-two rifle in the house. It hung on the wall right over the bed in room No. 5. A shot gun also hung at the same place. The rifle hung about twenty-nine inches above the bed. It was seven or eight feet from the place where witness had seen defendant sitting on the bed to the place where deceased's feet were after the shot was fired. Immediately after the rifle was fired it was on the bed with the stock toward the foot of the bed and the barrel toward the head. A neighbor, Ida Chandler, came in while the rifle was still on the bed. The shotgun was not moved. The rifle had not been bothered. Defendant got up and carried deceased out to the car and left with her. Those two alone left in the car for the hospital. The witness picked the rifle up and turned it over to the "law", Walton Haynes. Witness put the gun (not the rifle) in the closet. She found an empty cartridge on the floor in room No. 5 a few inches from the side of the bed where defendant had been sitting. She found only one empty shell which she turned over to the officers. It was a long twenty-two rifle cartridge that had been fired. That was all she turned over to them at that time; but later she said she gave them a long black shell that "was sitting on a what-not above the dresser". She stood and watched the officers unlock the rifle, "when they unbreached it a shell fell out on the floor, just one fell out."
On cross examination Mrs. Martin testified that defendant had eaten breakfast there twice that week; that he usually came after he had carried Betty (deceased) to work and he and the baby would eat breakfast together.
Witness testified she did not hear defendant scream (the baby was screaming), nor did she hear him say anything after the shooting except that it was an accident. She did not hear defendant say he did not know it was loaded. She also testified that at that time there was no vase on the mantel with shells in it.
Donald Griffin, a brother of deceased, testified for the State. He was living in the home when the shooting occurred, but was not there at the time. That the rifle exhibited belonged to him and that he obtained it about the last of May when school was out. He kept it in room No. 5 with the shotgun on a rack on the wall above the bed. The barrel was toward the head of the bed. The rack was two or three feet above the bed. That after he used the rifle the last time he took it apart, cleaned it and put it on the rack; and it was not loaded. That was immediately prior to August 5th of that year. That he had one twenty-two shell on a shelf and had a few thirty-eight bullets. That the twenty-two shell was a long. He had bought only one box of twenty-two shells since he got the rifle. That the twenty-two shell on the shelf was one he had had a "pretty good while", and was not one of those he had bought; and he knew of no other twenty-two bullets in the house. Knew of none in a vase in Mrs. Martin's room (No. 3). That he had not taken the rifle off the rack after he cleaned it and it was unloaded when he put it up.
*809 On cross examination Donald testified he did not have the twenty-two cartridge on the sewing machine in front of the bed in room No. 3. Never had any around the sewing machine. That Harold looked at the rifle about a month and a half before that time out in front of the house while with deceased who was sitting on the porch. Defendant wanted to swap stocks with the witness. The rifle was not then loaded. It held about sixteen long twenty-two bullets. Witness had shot longs in it but not shorts and never shot any but the one box of longs. The bullet he had on the what-not was not out of that box and was a long. He had a collection of this twenty-two, one thirty-eight and a German "luger": no other kind. He never had any shells in Mrs. Martin's button bowl. Witness had never seen Harold look at the rifle at any other time. He had been using his cousin's rifle and this shell (a twenty-two) had been left. Witness testified he did not tell some boys at the barber shop that he had some ammunition and they could kill a crane if they wanted to. The shotgun was not loaded. The shotgun shells were on the what-not, not in the dresser or chifferobe drawer. Witness thought the officers got a twenty-two rifle bullet from Mrs. Martin's dresser drawer, but he did not know of them getting one anywhere else. That he had the rifle on a camping trip on Shocco Mountain and had returned about two weeks before. The other boys had rifles and shells. They shot about fifty cartridges on that trip. When he got home from the trip he had none of those twenty-two longs and brought no cartridges home from that trip. In cleaning the rifle he left the magazine in it: he pulled the slide back and looked in the gun to see if it was loaded, and it was unloaded.
Dr. Hardwick testified for the State that he saw deceased, Betty, at the hospital the day she was brought there, about 9 o'clock in the morning. She was alive and defendant was with her. Witness found a small gunshot wound to the left and above the navel. The wound was made by a small caliber gun of some kind. In the emergency room she was in profound shock, groaning, but unconscious. Later he operated on her and was with her almost constantly until she died. Within twenty minutes while in the operating room she began getting better and was conscious, but was in much pain, and she started talking. Later she went into complete shock.
Defendant made offer of proof by the doctor that he found defendant in shock and gave him narcotics, to which objection was sustained without error.
Walton Haynes, a witness for the State, was a policeman. He and policeman Beverley went to the Griffin home at 9:00 or 10 o'clock on August 5th on call. There were several people there. Mrs. Martin turned over to them one Stevens model twenty-two rifle. The rifle was loaded with only one shella longin the barrel. None in the magazine. She also turned over to him an empty shell. The rifle remained in his custody until he turned it over to Dr. Sowell at 1:30 or 2:00 o'clock that night, August 5th, together with the cartridge hull turned over to witness by Mrs. Martin, also the twenty-two long shell. All were turned over to Dr. Sowell. An empty shell was in the rifle when Mrs. Martin gave it to him. Mrs. Martin got the bullet (empty shell) she gave the officer from on the floor of the back bedroom. This was the fired cartridge in front of the bed. She got the twenty-two rifle shell from off the top of the dresser. The rifle had one shell in the barrel.
Walter Griffin, witness for the State, testified that he was the father of Betty, deceased. That during the week previous to August 5th she spent two nights at his home: one was Friday before the next Thursday when she was shot. Witness went to her house on Friday afternoon: Betty was there when he arrived and when he left. He saw her later that night as she spent the night at his home. Harold came to the home of the witness some time after 1:00 that night. He went into Mrs. Martin's bedroom and stayed there about three minutes. He then came out and got in the car and went home. Betty stayed at her father's home and did not leave. On Saturday Betty and Mrs. Griffin (her mother) *810 went to Betty's house. Witness next saw deceased that afternoon in front of his house on the street. Harold was not with her. Witness later saw her that night about 8:00 o'clock in the car with Harold at her home. City officers went with the witness and he went in the house. Betty and defendant were there. Witness stated, "I told her (Betty) I had come after her and the car". Harold made reply, "If you did, there will be serious trouble", to which witness replied, "What more trouble could there be, he had threatened to kill her and beat her up". Motion to exclude was overruled, but there was no objection to the question. Defendant replied "I didn't", and Betty said "Why, Harold, you did, and showed a place on her leg where he had hit her". (The motion to exclude overruled, with no objection to the question.) When Betty left her home that night with witness, Harold said, "You had better be back here tonight." Betty spent the night at the home of the witness. (The court excluded evidence as to bruises and her statement that he hit her, because he denied doing so.) The witness testified that Betty spent the nights of Friday, Saturday, Sunday, Monday, Tuesday and Wednesday, (Thursday was August 5, 1954) at the home of witness, her father. That on one occasion, several weeks before August 5th, defendant and some men drove up and stopped in front of witness' home about 4 o'clock in the afternoon, and defendant asked where Betty was, and "I told him I hadn't saw her. He said he was going to beat the devil out of her". Objection was overruled and exception noted.
On cross examination witness testified that defendant and Betty had not always been congenial and devoted. Betty spent the night with defendant Thursday night of the week before; and on Sunday night before Thursday, August 5th, she took the baby to see defendant. That defendant and Betty continued to live together at times. They were not congenial, and they had been having trouble ever since the baby was born twenty-two months. The baby was born November 19, 1952. Defendant was in the Army but was home for thirty days when the baby was born. Right after that he was sent overseas for about a year.
Mrs. Griffin, witness for the State, testified that Betty spent the Friday night before August 5th at her home; that she went by and picked her up. That defendant came there about 1 o'clock in the morning and got the car keyBetty did not leave with him. That she spent Saturday night there also, but not Sunday night. That Betty spent the nights of Monday, Tuesday and Wednesday at witness' home. Witness and her husband went over to Betty's home Saturday night and witness got the police to go with them.
Appellant insists that the burden of proof is on the State to prove beyond a reasonable doubt that defendant intentionally killed his wife Betty. The argument is that the evidence is insufficient to justify a finding that defendant intentionally caused her death or intended to do her great bodily harm with the weapon used. It is not questioned that if he voluntarily inflicted the wound it was with a deadly weapon, and unless the evidence rebuts the presumption of malice, it may be inferred from such use of a deadly weapon. That is of course the well established principle settled in this State. Hornsby v. State, 94 Ala. 55, 10 So. 522. A man must be taken to intend that which he does or which is the immediate or necessary result of his act. Meredith v. State, 60 Ala. 441.
The Hornsby and Meredith case, supra, and others presuppose a voluntary act without a specific intent to take life. Another principle is that the law will imply that the firing of a deadly weapon was intentionally done in the absence of any proof, positive or circumstantial, that it was accidental. But "if there is any evidence from which it might be inferred that the shooting was accidental, then the question of intent or will would necessarily be a question for the jury, and the court could not instruct them that the will to do the act did or did not exist". Oliver v. State, 17 Ala. 587(8), 602. Cf. Kitchens v. State, 251 Ala. 344, 37 So. 2d 428.
*811 The exclamation of defendant was a part of the res gestae, "I have shot Betty, but it was an accident, so help me God", served to withdraw the presumption that it was voluntarily done, but it is not sufficient to prevent that from being a matter of inference for the jury from all the facts and circumstances. Fowler v. State, 161 Ala. 1, 49 So. 788; Brown v. State, 142 Ala. 287 (3 and 4), 38 So. 268; Clements v. State, 50 Ala. 117.
All relevant evidence is admissible on that issue. Threats by defendant to do harm to Betty, assaults previously made, their conduct and general attitude toward each other tend to shed light on that issue. The defendant's motion to strike all the evidence at the conclusion of the case made by the State was, we think, properly overruled. It was a question for the jury whether the shot was intentionally fired at Betty, and whether it was maliciously done and was with premeditation and deliberation and without justification or mitigation.
The threats alleged to have been made by defendant that he would "beat the devil out of her" (Betty) several weeks before the shooting as well as their general relations toward each other, good or bad, were admissible on the question of whether the shooting was intentional or accidental. Kitchens v. State, supra; Hall v. State, 208 Ala. 199(3), 94 So. 59; Hudson v. State, 61 Ala. 333. Evidence of actual cruelty by defendant upon his wife prior to the shooting was admissible for that purpose. Spicer v. State, 188 Ala. 9(3), 65 So. 972. Likewise evidence of threats by defendant to kill and beat Betty made a few days before she was shot was admissible. Ex parte State, 181 Ala. 4(1), 61 So. 53; Rains v. State, 88 Ala. 91, 7 So. 315. The court committed no error in respect to those matters.
On cross examination Walter Griffin, father of Betty and a witness for the State, testified that defendant and Betty were not congenial or devoted to each other, and to the same effect on redirect examination. Defendant proved by Marion Nix that he and his wife were friends of defendant and his wife Betty; had known them six years, exchanged visits with them at home, went out with them, and that such relation continued after the baby was born. That they never saw defendant strike Betty nor threaten to do so, and further they never saw him in a fit of anger or temper with her. The State moved to exclude this evidence. The court sustained the motion and excluded it. The court also sustained objection to the proposed testimony of Betty Nix, wife of Marion Nix, that she was a good friend of Betty Shiflett, deceased. She testified that she had known defendant and his wife Betty for six years and exchanged visits with them. She then offered to testify on question by defendant that, after the baby was born, she never saw defendant strike Betty, and that she never saw or heard of either of them abusing or mistreating the other. The court refused to allow this testimony. The same nature of proof was offered by other witnesses. Defendant was privileged to prove that they were congenial or devoted, not because it was opposed to what defendant brought out from the witness Walter Griffin but because it was material on the question of whether the shooting was accidental or intentional. Kitchens v. State, supra.
Defendant was entitled to have this testimony to support his contention that the shooting was accidental. It was error to deny him the benefit of such evidence. But there was no error in refusing to allow Mrs. Nix to testify that on the night of August 5th and on August 6th, after the fatal shooting she went into room No. 3 (Mrs. Martin's room) and that there were twenty-two caliber shells in a bowl on the mantel. Donald Griffin and Mrs. Martin had testified that prior to the shooting there was only one such shell turned over to the officers. This proposed testimony did not relate to the same time and was not competent.
Mrs. Griffin was asked by defendant on cross examination whether Walter *812 Griffin told Betty on Wednesday before Thursday August 5th "for her to stay away from Harold and not be going out with him". This was offered as stated to the court to "show interest, prejudice or bias" of Walter Griffin as a witness who had testified for the State. The same was offered as occurring on Thursday August 5th before he went to work. The court sustained the objection of the State to this evidence, and defendant excepted. We think it should have been admitted for the purpose for which it was offered.
At a time when death was impending and when Betty became conscious before she was operated on, she asked the doctor if she was going to die. He told her he did not believe she would, that he thought she was going to pull through. There was no evidence that she thought she was about to die or that death was impending. The doctor asked her to tell him how all this happened. Objection was made by the State. Defendant offered to prove that she said "Dr. Hardwick, I don't believe Harold meant to do it". The court refused to admit the evidence on objection by the State. This evidence was not admissible, although it was a statement by deceased after she had received a mortal wound. It was not a dying declaration and did not tend to contradict any part of a dying declaration. Spicer v. State, 188 Ala. 9(8), 65 So. 972; Cotney v. State, 248 Ala. 1, 26 So. 2d 603.
There was not sufficient evidence to support a finding that the statement made by Betty to Dr. Hardwick, which the defendant offered to prove, occurred immediately upon her first becoming conscious after having been rendered unconscious instantly by the shooting. So that, the evidence does not justify an application of the principle stated as follows in 30 Am.Jur. 568, section 672:
A like statement is found in 32 C.J.S., Evidence, § 419, page 52. We cannot say at this time from the record whether the statement alleged to have been made by Betty to Dr. Hardwick was a part of the res gestae upon the principle supra.
For the errors pointed out above, the judgment should be reversed and the cause remanded for another trial.
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.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur. | March 10, 1955 |
d907b9d2-e996-4b7e-8c99-9ec3230a6398 | Trans-Continental Mutual Insurance Co. v. Harrison | 78 So. 2d 917 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 917 (1955)
TRANS-CONTINENTAL MUTUAL INSURANCE COMPANY, Inc., et al.
v.
La Trelle HARRISON.
3 Div. 717.
Supreme Court of Alabama.
March 24, 1955.
L. H. Walden and Rushton, Stakely & Johnston, Montgomery, for appellants.
Jones, Murray & Stewart, Montgomery, for appellee.
*918 The endorsement upon the policy is as follows:
MAYFIELD, Justice.
This is an appeal from the Circuit Court of Montgomery County, Alabama, in equity, overruling respondent-appellant's demurrer to complainant-appellee's bill of complaint.
This is a statutory equitable action by an injured party, La Trelle Harrison, against the insurer of the judgment-debtor to reach and apply insurance money to the satisfaction of the judgment, pursuant to § 12, Tit. 28, Code of Alabama 1940. See United States Casualty Company, Inc., v. Early Wilson, Ala., 76 So. 2d 506.
The appellant's single assignment of error"The court erred in overruling defendant's demurrer to the bill" is sufficient to present the error complained of for review. It is not necessary to enumerate in separate assignments each, or any, ground of demurrer. Cahaba Coal Co. v. Elliott, 183 Ala. 298, 62 So. 808. A demurrer is an entity of pleading. Cahaba Coal Co. v. Elliott, supra; United States Casualty Company, Inc., v. Early Wilson, supra.
The original judgment against the insured, Grady W. Gilley, was recovered by the plaintiff, La Trelle Harrison, in the State of Arkansas. A copy of this judgment was attached to the complainant-appellee's complaint, and contains a detailed finding of fact upon which the judgment was based.
The insured Gilley (the defendant in the original case in Arkansas) and his friend Williams were returning from a joint pleasure venture in the early hours of the morning accompanied by two young ladies. Williams, at the request of Gilley, was driving the automobile. Gilley and his "date" were sitting in the rear seat of the automobile. While chauffering under the direction and control of the insured, Williams went to sleep at the wheel and allowed the car to leave the road and overturn. Williams met his death in the crash, and the complainant-appellee, Miss La Trelle Harrison, suffered grievous injuries.
The trial court in Arkansas found:
The learned solicitors for the parties in oral argument before this Court agreed that the single issue presented by this appeal was the construction of the word "operated" within the meaning of a restrictive endorsement to the policy of liability insurance held by Gilley and issued by the respondent-appellant Insurance Company.
That is to say, whether or not the insurance coverage purchased was broad enough to cover the factual situation of this accident, or whether it was necessary for the insured to be manually and physically driving the automobile at the time of this unfortunate accident for the liability policy to extend its coverage to the passenger La Trelle Harrison.
In deference to the position of counsel for both parties, stated in their briefs and arguments and reiterated in their oral argument, that this appeal presents the sole question formerly noted; we will inject no other issues into this opinion. Wherever possible, cases should be reviewed by this Court on the issues conceived by the contending parties in the trial court *920 and the questions presented to, and determined by, the trial judge.
This is a case of first impression in Alabama. Several of our sister States have reviewed this problem and reached divergent results.
For direct authority on this principal question, the appellant relies on the cases of Witherstine v. Employers' Liability Assur. Corp., 235 N.Y. 168, 139 N.E. 229, 28 A.L.R. 1298; Twogood v. American Farmers Mut. Auto. Ins. Ass'n, 229 Iowa 1133, 296 N.W. 239; Ayres v. Harleysville Mut. Casualty Co., 172 Va. 383, 2 S.E.2d 303; Morrow v. Asher, D.C., 55 F.2d 365; O'Tier v. Sell, 252 N.Y. 400, 169 N.E. 624; and the following texts: Appleman Insurance Law and Practice, Vol. 7, Sect. 4314, p. 82; Blashfield Cyclopedia of Automobile Law & Practice, Vol. 6, Sect. 3941; American Jurisprudence, Vol. 5, Sect. 506, p. 790.
As direct authority for their contention, appellee cites: Snyder, for Use of Brooks v. United States Mutual Insurance Company, 312 Ill.App. 337, 38 N.E.2d 540; Arcara v. Moresse, 258 N.Y. 211, 179 N.E. 389; Neel v. Indemnity Insurance Co., 122 N.J.L. 560, 6 A.2d 722; State Farm Mutual Auto Insurance Co. v. Coughran, 303 U.S. 485, 58 S. Ct. 670, 82 L. Ed. 970.
By way of analogy the appellee also cites cases dealing with the construction of the word "operate" in cases dealing with service of process, imputed negligence, negligence cases, railroad cases and references to the Standard Dictionaries.
Appellant seeks comfort in the usage of the word "operate" as construed in many sections of the Motor Vehicle Law of Alabama to signify the personal act of physically working the mechanism of the automobile.
The Witherstine case, supra, is heavily relied on by the appellant. The rationale of this opinion seems to have been strongly influenced by the definition which the verb "operated" has acquired in the State of New York when read in connection with the New York Highway Laws. We here observe, that in the main Highway and Motor Vehicle Laws are penal in their character and are subject to a rigorous and restrictive interpretation. The application of these statutes to other persons cannot be extended by intendment. Unless a criminal statute "spells out" the liability of the violators, a citizen cannot be subjected to punishment under a Criminal Code.
Judges McLaughlin and Crane dissented from the holding in the Witherstine case, supra [235 N.Y. 168, 139 N.E. 231], stating:
In the case of Twogood v. American Farmers Mut. Auto. Ins. Ass'n, supra, the policy exclusion prohibited driving by an unlicensed person, or while being operated or manipulated by a person prohibited from driving, etc. This case is easily distinguishable from the case at bar. The two terms "operated or manipulated" taken together are much stronger than the wording of the exclusion to the policy here under consideration. Appellant's counsel makes the following telling pointalthough we are inclined to think he overstates his argument:
In answer to this argument, the appellee states that if the intent of the exclusion was to restrict the coverage to the actual driver at the wheel, that the verbiage of the exclusion should have been "drive" rather than the more general and somewhat ambiguous term "operate".
Without further burdening this opinion by a detailed analysis of the opposing authorities of our sister States, we conclude that these cases cannot be reconciled. We further find an ambiguity in the wording of the restrictive endorsement to the insurance policy.
To resolve this controversy, we therefore seek the aid of and apply the well-established and recognized rules of construction pertinent to written instruments, and particularly to policies of insurance.
If an insurance contract is so drawn as to be equivocal, uncertain or ambiguous, or to require interpretation because fairly susceptible to two or more different interpretations, the one will be adopted, which, if consistent with the objects of insurance, is most favorable to the insured. Alabama Gold Life Ins. Co. v. Johnston, Adm'r, 80 Ala. 467, 2 So. 125; McConnell-White-Terry Realty & Ins. Co. v. Fidelity & Deposit Co. of Maryland, 212 Ala. 339, 102 So. 617; Illinois Automobile Ins. Exch. v. Southern Motor Sales Co., 207 Ala. 265, 92 So. 429, 24 A.L.R. 734; St. Paul Fire & Marine Ins. Co. v. American Compounding Co., 211 Ala. 593, 100 So. 904, 35 A.L.R. 1018; Baltimore American Ins. Co. v. Reynolds, 253 Ala. 104, 43 So. 2d 1. To demonstrate the universality of this fundamental rule of construction, we quote from Ayres v. Harleysville Mut. Casualty Co., 172 Va. 383, 2 S.E.2d 303, 305, a case cited by appellant in their brief:
In considering the "reason behind the rule", this Ayres case quotes with approval, Vol. 1, Sect. 118a, page 402, Cyclopedia of Insurance Law:
This contract of insurance was written in language chosen by the insurer. It is generally known that some such contracts are drafted by legal experts in this field after a careful scrutiny of the decisions affecting their chosen verbiage throughout the English speaking world. Therefore, if such contract is open to construction it must be construed most strongly against the insurer and liberally in favor of the contention of the insured. Sovereign Camp, W.O.W. v. Adams, 204 Ala. 667, 86 So. 737; St. Paul Fire & Marine Ins. Co. v. American Compounding Co., 211 Ala. 593, 100 So. 904, 35 A.L.R. 1018; Southern Ins. Co. v. Wilson, 214 Ala. 373, 108 So. 5; Aetna Casualty & Surety Co. v. Chapman, 240 Ala. 599, 200 So. 425; McDowell v. United States Fidelity & Guaranty Co., 260 Ala. 412, 71 So. 2d 64.
Further, as has been stated, the public policy of this state requires the broadest possible coverage consistent with the intentions of the parties and the contract between the insured and the insurer.
The appellant takes as his III proposition:
citing Home Loan & Finance Co. v. Fireman's Fund Ins. Co. of San Francisco, Cal., 221 Ala. 529, 129 So. 470.
While we approve this statement as a principle of construction, we do not find in the light of the divergent authorities cited by the able solicitors and the interpretations given to the word "operate" by standard dictionaries that the appellee's contention as to the proper interpretation of the word "operate" called for a strained construction.
As this is a case of first impression in Alabama, we here inject a word of caution for the benefit of the bar and litigants. The finding of fact of the Arkansas court was to the effect that the insured was physically present in the automobile directing the movements and directions and exhorting the driver to an unlawful rate of speed. We, therefore, hold that the trial court correctly found that the insured was "operating" the automobile within the meaning of the exclusive endorsement to this policy of insurance. We decide nothing else.
The ruling on demurrer of the lower court is, therefore, due to be and is hereby affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, and GOODWYN, JJ., concur. | March 24, 1955 |
3e8df7b2-0a2c-41ce-b140-d4bd9832af7a | Natco Corporation v. Mallory | 80 So. 2d 274 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 274 (1955)
NATCO CORPORATION
v.
Stanton MALLORY.
6 Div. 728.
Supreme Court of Alabama.
April 28, 1955.
Rehearing Denied May 26, 1955.
Burr, McKamy, Moore & Tate, Wm. Henry Beatty, Birmingham, for appellant.
R. B. Jones, Erwin C. Betts, Birmingham, for appellee.
LIVINGSTON, Chief Justice.
This is a certiorari to review a ruling and judgment of the circuit court awarding compensation under the Workmen's Compensation Law of Alabama.
There is no complaint by the employer in respect to the correctness of the finding of facts. The complaint is, that as a matter of law the facts as thus found do not support the right to compensation. The facts found by the trial judge material to the inquiry, not here repeating the formal incidents of his (employee's) employment, showing the application of the Workmen's Compensation Law, are as follows:
The question to be decided, as in all such cases, is whether the employee was injured by an accident "arising out of and in the course of his employment," as contemplated by Sec. 253, Tit. 26, Workmen's Compensation Law, Pocket Part, Code 1940. Similar questions have received careful consideration by the courts and text writers. There seems to be substantial unanimity in all of them. Some of the cases cite and quote the applicable principles from other leading cases. We will first refer to the case of Mack v. Branch No. 12, 207 S.C. 258, 35 S.E.2d 838, 840, and make a quotation from it at length, inasmuch as it is a leading case and quotes from other leading cases, as follows:
"Report of the cited decision of the California Supreme Court (en banc) is also found in Whiting-Mead Commercial Co. v. Industrial Accident Comm., 178 Cal. 505, 173 P. 1105, 5 A.L.R. 1518 and there is an accompanying annotation in which the editor states that the fact that an employer must expect an employee to resort to the use of tobacco as a necessary adjunct to the discharge of his employment is recognized in every case in which a court has been called upon to pass upon the question of awarding compensation to an employee who was injured through smoking. And several other cases to that effect are digested in the annotation. No authority to the contrary has been cited or found. 71 C.J. 675 contains the following: `If the employee is injured on account of circumstances attending the employment while taking a smoke, there being no objection on the part of the employer to his smoking, the injury arises out of the employment, and in the course thereof.' See also, Horovitz, p. 115, and cases in the footnotes."
From Bradford's Case, 319 Mass. 621, 67 N.E.2d 149, 150, we quote the following:
1 Larson's Compensation Law, pages 309, et seq., Sec. 21.40, cites the above mentioned cases and others with approval.
Our own cases are in line, though we do not seem to have a smoking or other tobacco case. We have cases supporting the principle and applied it where the employee stepped aside for some other purpose pertaining to his own activities while on duty. Baggett Transp. Co. v. Holderfield, 260 Ala. 56, 68 So. 2d 21; Jackson v. Tennessee C. I. & R. Co., 259 Ala. 85, 65 So. 2d 167; Carraway Methodist Hospital v. Pitts, 256 Ala. 665, 57 So. 2d 96; Southern Cotton Oil Co. v. Bruce, 249 Ala. 675, 32 So. 2d 666; Overton v. Belcher, 232 Ala. 396, 168 So. 442; Alabama Concrete Pipe Co. v. Berry, 226 Ala. 204, 146 So. 271; Ex parte Rosengrant, 213 Ala. 202, 104 So. 409; Wells v. Morris, 33 Ala. App. 497, 35 So. 2d 54.
We find no conflict with the foregoing in the cases cited by appellant as follows: Vickers v. Alabama Power Co., 218 Ala. 107, 117 So. 650; Bullard v. Cullman Heading Co., 220 Ala. 143, 124 So. 200; Bouler v. St. Louis-San Francisco R. Co., 224 Ala. 211, 139 So. 289; Morgan v. City of Guntersville, 239 Ala. 669, 191 So. 877.
We are in accord with the trial court in the conclusion reached from the facts found.
Affirmed.
SIMPSON, GOODWYN and MAYFIELD, JJ., concur. | April 28, 1955 |
fe06c282-9433-45c1-81a6-a628c2326c66 | Trans-America Ins. Co. v. Wilson | 80 So. 2d 253 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 253 (1955)
TRANS-AMERICA INS. CO.
v.
Henry L. WILSON et al.
6 Div. 784.
Supreme Court of Alabama.
March 10, 1955.
Rehearing Denied May 19, 1955.
Davis & Marsh, Bessemer, for appellant.
Barber & Barber, Birmingham, for appellee.
MERRILL, Justice.
The appellant, Trans-American Insurance Company, a corporation, successor to Trans-Continental Mutual Insurance Company, Inc., filed a petition for a declaratory judgment *254 and temporary restraining order seeking to determine its liability under a policy of insurance issued to one of the appellees, Henry L. Wilson.
The automobile liability policy was issued on March 12, 1953, for one year's coverage for a cash premium of $47 and was delivered to Wilson. A purported notice of cancellation of the policy was mailed at the Birmingham Post Office on June 10, 1953, at 7:30 P.M. to Henry L. Wilson at his address shown on the policy and the notice showed the cancellation to be effective at 12:01 A.M. on June 15, 1953. Wilson denied that he ever received the notice of cancellation.
Wilson's automobile was in an accident on the 6th day of September 1953 and the respondents other than Henry L. Wilson have instituted suits for damages against him. On September 7, 1953, Wilson reported the accident and on September 10, 1953, a check was sent to Henry L. Wilson in the amount of $34.78 for the return premium on his policy based on its cancellation on June 15, 1953. Wilson did not live at the address shown on the policy at the time but the letter containing the check was brought to him by the occupant of the premises at that address on September 11, 1953. He did not cash the check and has continuously refused to execute a nonwaiver agreement with the insurer, it being his contention that he was still insured under the policy. It was the contention of the appellant that the policy had been cancelled in June 1953.
After hearing the testimony the court held that the cause presented a bona fide justiciable controversy appropriate for a declaratory decree and that the policy was in force and effect on the 6th day of September 1953, the date of the accident. Other parts of the decree are as follows:
"3. That the process of cancellation prescribed in paragraph 22 of the conditions of said policy had not been validly and effectively completed by the insurer in strict compliance with the terms and provisions of the policy governing same, as of the 6th day of September, 1953.
"4. That complainant's contention that the policy had been validly and completely cancelled, and was of no force and effect, and that there was no coverage in existence on the date of the collision is not well founded.
"5. That the insurer is obligated under said policy, as against complainant's contention that same had been validly cancelled theretofore, as to such rights and liabilities as may have accrued under said policy as of the 6th day of September, 1953.
"6. That, under the circumstances of this case, because of the wrongful retention by the insurer of the unearned premium beyond the date of the collision, it is precluded, under the principle of waiver, or under the equitable doctrine of estoppel, or under the maxim that `He who comes into Equity, must come with clean hands', from successfully asserting the alleged cancellation of June 10, 1953."
The cancellation clause in the policy is as follows:
The principle is universally recognized that the right in the insurer to cancel an insurance policy is strictly construed and the condition imposed upon it with respect to giving notice of cancellation must be strictly performed and the language of the policy being of the insurer's own choosing, it is to be construed most strongly against it. Continental Insurance Co. v. Parkes, 142 Ala. 650, 39 So. 204; Mobile Fire & Marine Ins. Co. v. Kraft, 36 Ala.App. 684, 63 So. 2d 34; American Auto Ins. Co. v. Watts, 12 Ala.App. 518, 67 So. 758.
We do not reach item six of the decree of the lower court, because we agree with that part of the decree which holds that the attempted cancellation was not effective. The purported notice of cancellation was on a printed form and ended:
(The emphasized words were typewritten, the other quoted words were printed on the form.)
We think it is undisputed that this notice was mailed to Wilson at the address shown in the policy. As already stated, however, he denied that he received it but we reach the same result irrespective of whether he did or did not receive the notice.
It is argued that the proof shows on its face that the insurer did not give the five days' notice required by Section 22 of the policy because five days could not elapse between 7:30 P.M. on June 10th and 12:01 A.M. June 15th, but that contention is answered in the case of Black v. Travelers Ins. Co., 231 Ala. 415, 165 So. 221, 222, where it was said:
We think the question in the instant case is one of fact and burden of proof. The authorities are clear that an insurer asserting cancellation of a policy has the burden of proof. Mobile Fire & Marine Ins. Co. v. Kraft, 36 Ala.App. 684, 63 So. 2d 34; Spann v. Commercial Standard Ins. Co. of Dallas, Texas, 8 Cir., 82 F.2d 593; Commercial Casualty Insurance Co. v. Columbia Casualty Co., 22 Tenn.App. 656, 125 S.W.2d 493; Great American Indemnity Co. v. Deatherage, 175 Okl. 28, 52 P.2d 827; Wahl v. State Workmen's Ins. Fund, 139 Pa.Super. 53, 11 A.2d 496; Clark v. Employers Mutual Casualty Co., 8 Cir., 90 F.2d 667, 115 A.L.R. 1204.
"A corporation in its relations to the public is represented and can act only by and through its duly authorized officers and agents." 19 C.J.S., Corporations, § 999.
The appellant has wholly failed to prove that any one concerned with the preparation or mailing of the notice of cancellation acted as its agent with authority to cancel. Its three witnesses were George N. Moore, W. Earl Richards and L. H. Walden. Moore testified that he did not sign the cancellation notice, that he was a Special Agent without authority *256 to sign it and that while he mailed the cancellation notice, he did that through and for Mr. Richards.
Mr. Richards testified that in 1952 Magic City Agency was a partnership composed of himself and Mr. R. L. Roberts, that Roberts was the duly authorized licensed agent for Trans-Continental Mutual Insurance Company, that his partnership with Roberts had been terminated prior to June 1953 and subsequent to the termination he (Richards) had been the sole owner and proprietor of Magic City Agency, but that he had never been an agent of Trans-Continental Mutual Insurance Company and was not such agent on June 10, 1953, the day the purported notice of cancellation was prepared in his office and signed as described supra.
The policy is countersigned by R. L. Roberts as the duly authorized representative of the company. The president of the Trans-American Insurance Company and former president of Trans-Continental Mutual Insurance Company, L. H. Walden, failed to testify that Richards or Magic City Agency was the agent of the company in June 1953. Thus the evidence in behalf of the insurer fails to show that the attempted cancellation was the act of any agent or officer of the company and the notice could not be effective to cancel the policy of insurance on which the annual premium had been paid in full by the insured.
Where the evidence as to the existence of agency is in dispute, or reasonable adverse inferences from evidence are deducible, the solution of the question of agency raises an issue of fact, Thompson v. Atchley, 201 Ala. 398, 78 So. 196, 79 So. 478, and being a question of fact, it is the province of the jury (here the court) to determine same. Nearhos v. Keith, 221 Ala. 643, 130 So. 409.
The presumption is in favor of the decree of the lower court, the evidence having been taken ore tenus before him. We cannot assert that his finding was plainly or palpably wrong. 2 Ala.Dig. Appeal & Error.
The decree is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | March 10, 1955 |
910807a0-bce9-455f-8a10-50d0687037fe | Herrington v. Hudson | 80 So. 2d 519 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 519 (1955)
Wallace HERRINGTON (Herrington Truck Company)
v.
Fletcher F. HUDSON.
4 Div. 764.
Supreme Court of Alabama.
May 12, 1955.
*520 Chauncey Sparks, Eufaula, for appellant.
Mike Sollie, III, and Chas O. Stokes, Ozark, for appellee.
PER CURIAM.
This is an appeal by defendant from a judgment rendered for plaintiff in an action at law in which damages were awarded for personal injuries, resulting from the collision of a bus driven by plaintiff and a truck driven by defendant's servant or agent.
The issues submitted to the jury were not guilty and contributory negligence as to count 1 which is simple negligence, and not guilty as to count 2 which is for wantonness. It being understood that the demurrer to pleas 7 and 8 was sustained, therefore those pleas were not submitted to the jury. The trial court also sustained objection to defendant's offer to prove them.
Defendant's special pleas 7 and 8 are as follows:
The following demurrer was filed to the pleas: (3) "Pleas Nos. 7 and 8 are faulty as a matter of law." (4) "Pleas Nos. 7 and 8 are not good in that the case or cases therein mentioned contain different parties and different portions in different capacities from those herein". The record contains the following entry immediately following the demurrer: "November 24, 1950 Demur (sic) of plaintiff's to pleas 7 and 8 are sustained". Then follows a formal judgment reciting issue joined between the parties, "thereupon came a jury," etc., setting out their verdict for plaintiff with a formal judgment in favor of plaintiff for the damages assessed.
The demurrer specifies no matter of substance as a defect in the pleas, and for that reason it should not be sustained. Section 236, Title 7, Code. This statute prohibits a general demurrer at law. But in order to review a ruling on the demurrer there must be in the record a formal judgment of the court in that respect. The memorandum which is set out above is all that appears in the record as a ruling on the demurrer to pleas 7 and 8. It is not such a judgment as will support an assignment of error. Jasper Mercantile Co. v. O'Rear, 112 Ala. 247, 20 So. 583; Tallassee Falls Mfg. Co. v. Western Ry. Co., 128 Ala. 167, 29 So. 203; Chambers v. Morris, 144 Ala. 626, 39 So. 375; Weems v. Weems, 253 Ala. 205, 43 So. 2d 397.
We note there is a sufficient judgment sustaining the demurrer to pleas 2 and 3. But appellant in brief waives a review of that ruling. We are not only unable to review the sufficiency of pleas 7 and 8 without a judgment of the court in proper and sufficient form, but the principle involved cannot be presented by a ruling sustaining plaintiff's objection to evidence supporting those pleas. Evidence is not admissible unless it is pertinent to an issue made by the pleading. Cox v. Brown, 198 Ala. 638(5), 73 So. 964. The only issue as to pleas 7 and 8 is one of law attempted to be set up in a demurrer on general grounds. There is no issue of fact attempted to be joined on those pleas. The objection was properly sustained for that reason. Therefore, no ruling is presented for our review in respect to the matter contained in pleas 7 and 8.
These assignments relate to the refusal of charges F, 2 and 4, requested by appellant. They could have been refused *522 without error because the hypothesis stated is not for the jury to be "reasonably satisfied" as required by law. Except as to the affirmative charge, Walker v. Bowling, 261 Ala. 46, 72 So.2d 841[13], reversible error will not be predicated on the giving or refusal of a charge not so hypothesized. Birmingham Belt R. Co. v. Nelson, 216 Ala. 149(5), 112 So. 422; Louisville and Nashville R. Co. v. Abernathy, 197 Ala. 512(3), 73 So. 103; Walker v. Bowling, supra. Moreover, the charges are defective in not including in the hypothesis an absence of negligence on the part of defendant in the operation of the truck cooperating with the sudden breaking of some part of it. The breaking might have been due in part to negligence in the operation of the truck, although the operator might have exercised due care after the breaking occurred.
Charge F could also have been refused without error because it uses the term "unavoidable accident". Kelly v. Hanwick, 228 Ala. 336(9), 153 So. 269; Couch v. Hutcherson, 243 Ala. 47(10), 8 So. 2d 580, 141 A.L.R. 697; Sloss-Sheffield Steel & Iron Co. v. Willingham, 243 Ala. 352(7), 10 So. 2d 19.
Assignment No. 3 being for the refusal of appellant's motion for a new trial, and assignments 4, 5, 6 and 7 for the refusal to grant affirmative charges requested by the defendant (appellant), all of those assignments being discussed together, present the one question of whether or not appellant was due to have the affirmative charge given to him as requested. One argument in that connection is based upon the fact that the complaint charges that a servant, agent or employee of the defendant acting in the line and scope of his employment as such "negligently ran said truck-tractor and trailer upon or against a passenger bus". It is insisted by appellant that the evidence shows the collision resulted from a defect in a spring of the trailer and when it struck a bump in the road the spring broke causing the brakes to become useless and the driver helpless to guide and direct the movement of the trailer. The complaint is not predicated upon the negligent act of the defendant in putting a dangerously defective appliance in use on the highway, but only charges negligence in the operation of the truck. But the jury could find from the evidence that the operator of the truck was negligent in running it at an excessive rate of speed while it was in a defective condition and into a depression in the road, and that all of which might have been avoided by reasonably careful operation. The evidence shows that the trailer was flat without a body and was used for hauling cotton, but was empty on this occasion, and that its front corner on the left hand side stuck into the bus and ripped it open to the back while it was traveling on its left side of the center line of the road. That this would not have occurred unless there was something like a "jack knife" status whereby the tractor's front end pointed to the right leaving the left hand corner of the flat bottom trailer extending out to the left across the center line and the trailer traveling very rapidly. If the tractor and trailer were in a direct line with each other that would not have occurred. There was also evidence from some of the witnesses that when the trailer struck the bus the corner of the trailer was three or four inches beyond the center line of the highway. While others testified it was two or three feet over the center line.
It is not for us to decide the issues of fact in the case, but whether there is sufficient evidence upon which the verdict of the jury may be predicated. If there is a conflict in the evidence in a material respect it is for the jury to settle that conflict and not for the court, and the court cannot withdraw it from the jury by an affirmative instruction. There was a conflict in the evidence with respect to the location of the trailer across the middle line on the highway, and also with respect to the speed of the trailer at the time of the accident and the speed of the bus at that timeall of which was material upon the question of negligence in the operation of the truck. The affirmative charges would *523 withdraw those questions from consideration by the jury. So that it is our view that the assignments of error now under discussion cannot be sustained.
We have examined all of the assignments of error which are discussed in brief of appellant's counsel to the extent that review is available. We do not find reversible error in respect to those matters and, therefore, 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, § 32, Code, and was adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur. | May 12, 1955 |
3247a094-fd25-4a39-98bb-0ef6f6563052 | Alabama Great Southern Railroad Co. v. Gambrell | 78 So. 2d 619 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 619 (1955)
ALABAMA GREAT SOUTHERN RAILROAD CO.
v.
Robert M. GAMBRELL.
6 Div. 754.
Supreme Court of Alabama.
March 10, 1955.
*620 Cabaniss & Johnston, Leigh M. Clark and E. T. Brown, Jr., Birmingham, for appellant.
Hare, Wynn & Newell and Frank L. Parsons, Birmingham, for appellee.
STAKELY, Justice.
This is an appeal by defendant from a judgment of the trial court granting plaintiff's motion for a new trial. The action was under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and the plea was in short by consent. The trial resulted in a judgment on a verdict in favor of the plaintiff and against the defendant for the sum of $15,000. The trial court did not specify the grounds of the motion furnishing the basis of its action but it did specify that its action was not based on grounds numbered, respectively, 8, 9, 10, 11, 12, 15, 42, 43 and 44.
Plaintiff was a fireman on south bound train No. 37 that collided with north bound train No. 48 at Woodstock, Alabama, on November 25, 1951. The track was that of defendant and both trains were being operated by agents, servants and employees of the defendant. Just before the collision the plaintiff jumped from the engine of the train and was injured. It is conceded that he was entitled to have his case submitted to the jury. There was no contention that he was guilty of contributory negligence.
Ground 8 of the motion for a new trial is, "because the verdict of the jury for the plaintiff is inadequate."
Ground 9 of the motion for a new trial is, "because the verdict of the jury is contrary to the great weight of the evidence as to the extent of the damage sustained by the plaintiff."
Ground 10 of the motion for a new trial is, "because the verdict of the jury is so inadequate as to show on its face that it is the product of prejudice or improper conduct of defendant's counsel."
There were 47 grounds on which the motion for a new trial was based. Since the court granted the motion for a new trial, the action of the court is sustainable if there was any proper ground in the motion, regardless of whether the ruling may have been rested on an improper ground. Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So. 2d 224. From our examination of the brief of appellee we do not think it necessary to discuss each ground of the motion since that would unduly prolong the opinion. Rather it seems to us to be appropriate to consider those grounds which are stressed in brief by the appellee as being grounds adequate to support the ruling of the court. In considering these grounds we see no good reason to go into great detail because these grounds cover many pages of the record and constitute a running fight between counsel for the plaintiff and counsel for the defendant practically throughout the trial. Before coming to a statement of the grounds to be considered it is well to remember that the court expressly *621 specified that its action was not based on certain specifically numbered grounds. In other words, in excepting Ground 8 the court held that it was not acting because the verdict of the jury was inadequate. In excepting Ground 9 the court held that it was not acting because the verdict of the jury was contrary to the weight of the evidence as to the extent of the damages suffered by the plaintiff. In excepting Ground 10 the court held that the verdict was not so inadequate as to show on its face that it was the product of prejudice or improper conduct of defendant's counsel.
In reviewing this case we do so with the thought that both counsel for the plaintiff and counsel for the defendant are able attorneys each doing his best to represent his client. As was said by Justice Gardner in Arant v. State, 232 Ala. 275, 167 So. 540, 544, "we must not lose sight of the fact that a trial is a legal battle, a combat in a sense, and not a parlor social affair." To put it a little differently, it is expected that counsel will strike hard blows in behalf of his client but, of course, the blows must not be foul blows. Then, too, we must not lose sight of the fact that litigation is to determine the rights of the parties to the suit and that is the matter of paramount importance notwithstanding that we may disapprove of the method pursued in argument. Alabama Great Southern R. Co. v. Swain, 248 Ala. 535, 28 So. 2d 714. Furthermore statements or argument of counsel which are provoked or producted by statements or arguments of opposing counsel can furnish no ground for complaint or corrective action. Tea Java Coffee Co. v. Saxon China Co., 207 Ala. 33, 91 So. 885; Alabama Power Co. v. Bowers, 252 Ala. 49, 39 So. 2d 402.
In matters of this kind we put great stress on the action of the lower court because the court has an opportunity for observation which the appellate court does not have. But in the present instance the court expressly held that the verdict was not inadequate, that the weight of the evidence was not against the adequacy of the verdict and that the verdict did not show on its face bias or prejudice on the part of the jury. It is argued, however, that the court has inherent power to grant a new trial on account of misconduct in its presence without regard to the probable effect upon the verdict and further that the court's order as a matter of law amounts to a holding that the improper conduct probably affected the amount of the verdict adversely to the plaintiff. The plain language of the court, however, shows that an adequate verdict has been returned in the opinion of the court. If this be true, should we disregard the rights of the parties to the cause? The fact that the verdict is not unjust is a material if not a decisive factor in determining whether the new trial should be granted. Alabama Power Co. v. Bowers, supra; American Railway Express Co. v. Reid, 216 Ala. 479, 113 So. 507; Mobile Light & R. Co. v. Gallasch, 210 Ala. 219, 97 So. 733.
There are other considerations which should be kept in mind in deciding the action to be taken by us. In every instance where prejudicial conduct was claimed, the court took repressive action and expressly instructed the jury not to consider the words or attitude of counsel. Often we have held that such action on the part of the court removes the harm. Smith v. Clemmons, 216 Ala. 52, 112 So. 442; Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633, 53 A.L.R. 840; Birmingham Electric Co. v. Latham, 249 Ala. 592, 32 So. 2d 515; Alabama Great Southern R. Co. v. Swain, supra. At a number of points in the course of the trial counsel for the plaintiff stated that undoubtedly a motion for a mistrial would lie but that he would not make the motion. In fact at no stage in the trial or before the case was submitted to the jury was there any motion for a mistrial. This seems to us to be a speculation on the verdict of the jury. If there was prejudicial conduct counsel should have insisted on a mistrial and not submitted the case to the jury and then seek to set the verdict aside because of prejudicial conduct, "`unless the argument was "so grossly improper and highly *622 prejudicial, that its evil influence and effect could not be eradicated from the minds of the jury by any admonition from the trial judge."'" National Biscuit Co. v. Wilson, 256 Ala. 241, 54 So. 2d 492, 497.
This brings us to a consideration of the specific grounds which are alleged to amount to prejudicial conduct. As stated, we shall not undertake to go into these matters in great detail but will try to state them as simply as possible.
It appears that counsel for the plaintiff not only represents the plaintiff in the instant case but also represents the plaintiff in a suit brought by the widow and administratrix of the estate of P. G. Powers, deceased. P. G. Powers was the engineer who was operating the train at the time of the disaster when Robert M. Gambrell, the fireman on the engine in the instant case, was forced to jump. Counsel for the defendant claimed inconsistency in the position of the plaintiff's attorney in these two cases, since in the Gambrell case P. G. Powers was claimed to be negligent in running through a red signal, while in the Powers case such action could have a damaging effect. It is insisted that by this position, plaintiff's counsel was subjected to a charge of insincerity. In the course of the trial in the instant case counsel for the plaintiff later undertook to show that the accident was not the result of any failure on the part of P. G. Powers, the engineer, but rather was the result of mechanical failure of appliances of the railroad. We can understand the tactics and position of both attorneys and again we say that each was trying to represent his own client as best he could. We do not consider that this conduct or line of discussion was so prejudicial as to bring about the setting aside of the verdict.
Another group of remarks of counsel for the defendant which is criticized grew out of testimony of Dr. Terhune. Dr. Terhune was summoned as a witness for the plaintiff and waited at the court for a considerable time before he was called as a witness. The plaintiff then decided not to use him as a witness and so announced. Defendant's counsel felt that the defendant was being put in a hard position because he wanted to use Dr. Terhune as a witness at a more appropriate point in the trial and yet did not want to keep Dr. Terhune waiting around the court room. This led to heated words between counsel. Dr. Terhune was then called to the witness stand by the defendant and in the course of his testimony he testified that Robert M. Gambrell, the plaintiff in the instant case, told him that he had received advice from friends not to go back to work until there had been a disposition of the instant case. Now we are not undertaking to say whether Dr. Terhune told the truth or not. Even if this placed counsel for the plaintiff in a position of embarrassment we cannot understand why defendant's counsel could not comment on this situation. What we mean to say is that the evidence produced the controversy and it was not produced by counsel for the defendant. In this connection it is well to point out that counsel for the defendant used no epithets. He made no exaggerated statements. He merely invited the attention of the jury to the evidence which had come from the witness stand.
In final argument counsel for the defendant said: "A guilty conscience fleeth where no man pursueth." Objection was made to this statement. The court sustained the objection and instructed the jury that "for an attorney to say what the motive of another attorney is and what is in his mind is improper." As we have shown earlier in the opinion, in the heat of a trial attorneys must not be held too strictly accountable for their words. All our cases recognize that a considerable degree of latitude is allowed in argument. City of Birmingham v. Bowen, 254 Ala. 41, 47 So. 2d 174; Jones v. Colvard, 215 Ala. 216, 109 So. 877. Certainly in the present situation after the instructions to the jury and where there was no motion for a mistrial, there was no ground here on which to set aside the verdict of the jury. Authorities supra.
In the course of the trial counsel for the plaintiff in substance said that counsel *623 for defendant had intimated that counsel for plaintiff advised the plaintiff not to go back to work and that while he was asking for $100,000, he was hoping to get $50,000. Counsel for defendant thereupon said:
It is argued that the criticized remarks of defendant's counsel are comparable to the objectionable remarks of counsel in Birmingham Railway Light & Power Co. v. Drennen, 175 Ala. 338, 58 So. 876. In that case counsel for the plaintiff stated that if defendant's counsel was on the jury trying this case he would return a verdict in favor of the plaintiff in a large amount. Upon a careful consideration of the matter we do not think that the Drennen case is apt authority here. A study of the record leads us to think that while the remark complained of in the Drennen case was not provoked by complaining counsel, the remark complained of here was provoked by complaining counsel. In the Drennen case the remark complained of was a statement made as a fact of which there was no evidence. In the instant case the remark complained of was not a statement of a fact. In the Drennen case the court did not take prompt and decisive action to eradicate the effect of the remark complained of. In the instant case the court did take prompt and decisive action to eradicate the effect of the remark complained of. The court stated to the jury that it would be highly improper for them to consider the remark complained of. In the Drennen case the court did not exclude the argument complained of. In the instant case the court told the jury that it would be highly improper for them to consider any inferences to be drawn from the remark complained of. In the Drennen case the ramark complained of was made after complaining counsel had concluded his argument and had no adequate opportunity to reply. In the instant case the remark complained of was made at a time when complaining counsel had an opportunity to reply and did in fact reply. The Drennen case has been referred to in a number of cases in which the court seems to hold in one case that the remark was ineradicably prejudicial, Birmingham News Co. v. Payne, 230 Ala. 524, 162 So. 116, and in another case where the remark was within the category of eradicable remarks or arguments, Most Worshipful Grand Lodge, etc. v. Callier, 224 Ala. 364, 140 So. 557. We find it unnecessary to go through the various cases which refer to the Drennen case and it is sufficient to say that in American Railway Express Co. v. Reid, 216 Ala. 479, 113 So. 507, 512, Mr. Justice Bouldin, speaking for the court in referring to the Drennen case, said:
It is worthy of note that in Birmingham Electric Co. v. McQueen, 253 Ala. 395, 44 So. 2d 598, 603, the court used almost the identical language the court used in the instant case in excluding from consideration of the jury the remarks of counsel and said:
Under all the circumstances which we have recited in connection with the case at bar we do not believe that the court was justified on this ground in setting aside the verdict of the jury.
In the argument of defendant's counsel to the jury in answer to a question from plaintiff's counsel as to whether Mr. Gambrell, the plaintiff, was a malingerer, counsel for the defendant said: "I think he is a good man, an honorable man and a fair man. I think he is a man that would have gone back to work when the doctor told him but for the fact that he was being * * *." Counsel for the defendant then said: "That he got legal advice." Counsel for the plaintiff then said: "Is your argument but for the fact he got legal advice," to which defendant's counsel answered, "that is right." There was an objection by defendant's counsel that the argument was highly improper, to which the plaintiff's counsel replied, "Well it is based absolutely on the evidence."
The court then said, "Gentlemen, let me rule. Gentlemen, I explain to you that when a lawyer argues any matter that is not in evidence or draws any inference that is not a reasonable inference, don't you consider it."
As a matter of fact Dr. Terhune testified in reference to the plaintiff as follows: "I asked him just why he did not want to go back to work at that time and he said that he felt that he would not until his case was settled. And that he had been advised by friends not to go back to work until his case was settled."
The insistence here is that Dr. Terhune at no point testified that the lawyers for the plaintiff advised him not to go back to work until the case was settled, but merely that his friends had so advised him. Under all the circumstances of the case, including the admonition of the court that the jury was not to consider anything not in the evidence, we feel that there is no room for complaint here, especially in view of the fact that there was no motion for a mistrial. Authorities supra.
In going through the briefs we find the intimation that this court was in error in its statement of principle in Louisville & N. R. Co. v. Steel, 257 Ala. 474, 59 So. 2d 664. Since the writer of the opinion in Louisville & N. R. Co. v. Steel is the writer of this opinion, we are glad to have this matter called to our attention. The case of Louisville & N. R. Co. v. Steel was an action brought under the Federal Employers' Liability Act and, therefore, cases such as Nashville Bridge Co. v. Honeycutt, 246 Ala. 319, 20 So. 2d 591, and other cases cited in connection therewith appear to be inapt because they are cases dealing with the Workmen's Compensation Act.
In Southern Railway Co. v. Peters, 194 Ala. 94, 69 So. 611, it was expressly held that an injured employee suing under the Federal Employers' Liability Act for personal injury is entitled to recover diminished earning capacity. See also Hines v. Wimbish, 204 Ala. 350, 85 So. 765. In Bankers' Mortg. Bond Co. v. Sproull, 220 Ala. 245, 124 So. 907, which was an action in tort, it was said that the plaintiff may recover for the impairment of his earning capacity in estimating the amount of an award for prospective damages due to impaired earning capacity. It is proper to consider plaintiff's expectancy of life and the present value of his yearly income equivalent to the probable reduction of plaintiff's earnings. 25 C.J.S., Damages, § 87, p. 626. We call attention to the following cases which hold that mortality tables *625 are admissible in evidence in an action for damages in connection with evidence tending to show decreased earning capacity on the question of probable life expectancy where the injury is permanent. Louisville & Nashville R. Co. v. Carter, 195 Ala. 382, 70 So. 655; Birmingham Ry. Light & Power Co. v. Wright, 153 Ala. 99, 44 So. 1037; 15 Am.Jur. 779.
It results from what has been said that the judgment of the trial court granting motion for a new trial is reversed and one here rendered reinstating the verdict of the jury and the judgment thereon in favor of the plaintiff and against the defendant.
Reversed and rendered.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | March 10, 1955 |
0c7d1d94-163c-48fb-b5ef-91d6dd4b80ba | Ex Parte State Ex Rel. Sullivan | 78 So. 2d 322 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 322 (1955)
Ex parte STATE ex rel. L. B. SULLIVAN, Director, State Dept. of Public Safety.
6 Div. 775.
Supreme Court of Alabama.
February 24, 1955.
Robt. P. Bradley, Asst. Atty. Gen., for petitioner.
Dan P. Barber, Hugo L. Black, Jr., Birmingham, for respondent.
STAKELY, Justice.
This is an original petition for mandamus filed in this court by L. B. Sullivan, as Director of the Department of Public Safety of the State of Alabama, to compel Judge J. Russell McElroy, as Presiding Judge of the Tenth Judicial Circuit of Alabama, to vacate an order made by him in connection with the suspension of the driver's license of Robert R. Lucas. The case is submitted here on the petition for mandamus and the answer of Judge J. Russell McElroy. The case calls for an interpretation of pertinent provisions of § 68, Title 36, Code of 1940, relating to the cancellation, suspension or revocation by the Director of Public Safety of a driving license.
L. B. Sullivan, as Director of the Department of Public Safety of the State of Alabama, suspended the driver's license of Robert R. Lucas effective December 17, 1953, for a period of two months. This action was taken by the Director on the ground that Robert R. Lucas was an habitual violator of the traffic laws pursuant to the authority granted the Director by § 68, Title 36, Code of 1940. Thereafter a hearing was given to Robert R. Lucas on his request by L. B. Sullivan, as Director of the Department of Public Safety of the State of Alabama, with the result that the period of suspension was kept at two months.
Robert R. Lucas then filed a petition in the Circuit Court of Jefferson County, Alabama, to have the aforesaid action of L. B. Sullivan, as Director of the Department of *323 Public Safety of the State of Alabama, reviewed. At the time the petition was filed Robert R. Lucas asked the court for a stay of the order suspending his driver's license pending a hearing on his petition. The stay was granted.
Thereupon L. B. Sullivan, as Director of the Department of Public Safety of the State of Alabama, made a motion that the stay of the order be vacated. Judge J. Russell McElroy, as Presiding Judge of the Tenth Judicial Circuit of Alabama, overruled the aforesaid motion and it is this order overruling the aforesaid motion which L. B. Sullivan, as Director of the Department of Public Safety of the State of Alabama, seeks to have this court vacate on the petition here filed in this court.
I. The state insists in this case that the circuit court had no authority or power to issue an order staying the order of the Director of Public Safety pending the hearing on the petition filed pursuant to Title 36, § 68, Code of 1940, because no such authority is conferred by the statute. It is true that an examination of the pertinent provisions of § 68 shows that there is no express authority to stay the order provided in the statute. We set out the pertinent provisions of the statute as follows:
The statute, however, satisfies us that the statute in effect contemplates a de novo trial in the circuit court. The court is authorized to take testimony and to examine the facts of the case and to determine whether the petitioner is entitled to a license or subject to suspension, cancellation or revocation of the license under the provisions of this statute. In other words, the court is empowered to have a hearing, to take testimony and to make a finding of its own. This necessarily means that the taking of an appeal to the circuit court by the filing of the petition provided in the statute ipso facto vacates the director's order of suspension.
In Thompson v. City of Birmingham, 217 Ala. 491, 117 So. 406, 407, this court said:
And in Louisville & N. R. Co. v. Lancaster, 121 Ala. 471, 25 So. 733, 735, in discussing the effect of an appeal with a trial de novo, this court said:
Vinyard v. Republic Iron & Steel Co., 205 Ala. 269, 87 So. 552; Abraham v. Alford, 64 Ala. 281; Ex parte Cudd, 195 Ala. 80, 70 So. 721.
We agree with Judge McElroy when he said, "That the allowance of any force or effect to the director's order of suspension subsequent to the filing of the petition *324 would be utterly incompatible with the duty and jurisdiction of the court to determine anew the matter of whether and for how long the license should be suspended." It can be seen that if the order of suspension is not vacated a situation could arise in which the filing of the petition for review would be futile. The period of suspension would have expired before the court could hear the petition, as for example where the director suspended the driver's license for 30 days, since the statute provides that the director must have thirty days written notice of the time the petition is set for hearing. It seems clear to us that the legislature did not intend any such result.
Since the filing of the petition vacated the director's order of suspension, the order staying the suspension was unnecessary, but this does not make the order illegal and there is no reason why such order could not be made in order that the parties might be entirely sure of their legal position.
But it is further argued by the petitioner that our cases which give effect to an appeal where a de novo trial is contemplated by the statute, do not apply to a situation where there is an appeal from the order of an administrative officer such as the Director of Public Safety. It is sufficient to say that as we pointed out in Ex parte Darnell, Ala., 76 So. 2d 770, under § 139 of the Constitution of Alabama, an administrative officer may be invested with judicial authority. The action of the Director of Public Safety in revoking or denying the driver's license of Robert R. Lucas was a judicial act and, therefore, the appeal under the statute from the order of the Director of Public Safety was not merely an appeal from the order of an administrative officer, but was an appeal from the order of an administrative officer acting in a judicial capacity.
II. Lastly, it is the position of the petitioner that in the event we should hold that the circuit court has the power to stay an order of the Director of Public Safety where a petition has been filed pursuant to the provisions of § 68, Title 36, Code of 1940, then in the present case the court exceeded its discretionary power when it issued the stay order. Under the authorities which we have cited we find no room for discretion in a situation of this kind. The filing of the petition under the statute ipso facto vacated the order of the director and, accordingly, removed any question of discretion in the action of the court.
We conclude that the writ of mandamus must be denied.
Writ denied.
SIMPSON, GOODWYN, MERRILL and MAYFIELD, JJ., concur.
LIVINGSTON, C. J., and LAWSON, J., dissent. | February 24, 1955 |
9224e875-c23c-4dab-86fa-5c440aa02064 | Wright v. State | 79 So. 2d 74 | N/A | Alabama | Alabama Supreme Court | 79 So. 2d 74 (1955)
William Claud WRIGHT
v.
STATE.
8 Div. 793.
Supreme Court of Alabama.
March 31, 1955.
Bernard F. Sykes, Asst. Atty. Gen., Robt. Straub, Asst. Atty. Gen., and Owen Bridges, Montgomery, of counsel, for the Petition.
Bradshaw, Barnett & Haltom, E. B. Haltom, Jr., Florence, opposed.
STAKELY, Justice.
The Court of Appeals in its opinion said:
Mitchell v. State, 244 Ala. 503, 14 So. 2d 132, involved the prosecution of a capital felony. There are expressions, however, in this decision which might have led the Court of Appeals to make its comment with reference to the consent of the defendant and his counsel to a separation in a case involving a noncapital felony. In denying the writ we do not mean to agree that in a prosecution for a noncapital felony the defendant and his counsel and *75 the prosecuting officer may not consent to a separation of the jury. In such a situation the court being apprised of such consent beyond the hearing of the jury may in its discretion authorize such a separation. In this event there would be no burden on the state to establish affirmatively that the separated juror or jurors were subjected to no influence or contacts that might have influenced their verdict.
With reference to the proposed procedure by the Court of Appeals as to proof of statements confessory in character by a recording machine, we think it best to reserve the right to consider this matter when and if presented to this court.
The writ is denied.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | March 31, 1955 |
8e5b96a6-9089-4169-84e7-bddd9bfa9c74 | GOVERNMENT & CIVIC EMPLOYERS O. COM., CIO v. Windsor | 78 So. 2d 646 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 646 (1955)
GOVERNMENT & CIVIC EMPLOYEES ORGANIZING COMMITTEE, CIO,
v.
S. F. WINDSOR et al.
S. F. WINDSOR et al.
v.
GOVERNMENT & CIVIC EMPLOYEES ORGANIZING COMMITTEE, CIO.
3 Div. 702, 702A.
Supreme Court of Alabama.
March 10, 1955.
Cooper, Mitch & Black, Birmingham, Arthur J. Goldberg, David E. Feller, and Thos. E. Harris, Washington, D. C., for appellant.
Bernard F. Sykes, Gordon Madison, Asst. Attys. Gen., and Jesse M. Williams, Montgomery, for appellees.
Act No. 720 is as follows:
"Section 1. As used in this act the term `labor union or labor organization' means any organization of any kind, in which employees participate for the purpose of *647 dealing with one or more employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work; and the term `public employee' means any person whose compensation is derived in whole or in part from the State, or any agency, board, bureau, commission or institution thereof.
"Section 2. Any public employee who joins or participates in a labor union or labor organization, or who remains a member of, or continues to participate in, a labor union or labor organization thirty days after the effective date of this act, shall forfeit all rights afforded him under the State Merit System, employment rights, re-employment rights, and other rights, benefits, or privileges which he enjoys as a result of his public employment.
"Section 3. This act shall not apply to persons employed as teachers by any county or city board of education or trade schools or institutions of higher learning, nor shall it apply to those employees of the State Docks Board referred to in Title 38, Section 17 of the Code of Alabama, 1940, nor shall it apply to employees of cities or counties.
"Section 4. Any public employee who prior to the passage of this act or to his public employment belonged to a labor union or labor organization and as a result thereof has acquired insurance benefits or any other financial benefits may continue to participate in such labor union or labor organization to the extent that he shall not lose any benefits thus acquired.
"Section 5. The provisions of this act are severable. If any part of the act is declared invalid or unconstitutional, such declaration shall not effect (sic) the part which remains.
"Section 6. All laws or parts of laws which conflict with this act are repealed.
"Section 7. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law."
LAWSON, Justice.
This is an appeal from a decree of the circuit court of Montgomery County, in equity, rendered in a declaratory judgment proceeding.
The complainant below was the Government & Civic Employees Organizing Committee, CIO, an unincorporated association, to which we will refer as the Committee. We will sometimes refer hereafter to the Congress of Industrial Organizations as the Organization.
The Committee is the appellant here and contends that the trial court erred in declaring that it is a labor union or labor organization as defined in Act 720, H. 231, approved September 17, 1953, Acts of Alabama 1953, p. 974 (which the reporter will set out and to which we will sometimes refer hereafter as the Solomon Bill), and in declaring that the provisions of the Solomon Bill have application to complainant and its members, including employees of the State of Alabama connected with the Alabama Alcoholic Beverage Control Board (sometimes referred to hereafter as the Board).
We are of the opinion that the bill shows a justiciable controversy between complainant and the respondents, Curry v. Woodstock Slag Corporation, 242 Ala. 379, 6 So. 2d 479, and that the trial court properly proceeded to the rendition of the final decree with the declarations of which we are in accord. The respondents were officers and agents of the Board from the time the bill was filed until submission here.
The evidence shows that the Organization is composed of affiliated national and international unions, organizing committees, local industrial unions and industrial union councils. According to its constitution *648 it is unquestionably a labor organization "in which employees participate for the purpose [among other purposes] of dealing with one or more employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." § 1 of Solomon Bill.
It is our understanding of the record before us that when the Organization determines that it is advisable to create an international union of CIO, to be composed of employees in a given industry or field of labor, that decision is effectuated in the following manner: Its president, acting under authority of the executive board, appoints a national organizing committee, charged with the duty and responsibility of organizing the employees into local unions which will later be formed into the international union.
The Committee of instant concern was established as an affiliate of the Organization on March 1, 1950, by the late Phillip Murray, the then president of the Organization, acting under authority of an executive board resolution. The National Organizing Committee, selected by President Murray, consisted of a chairman, assistant chairman, secretary-treasurer, and eleven other members.
In establishing that Committee, President Murray wrote:
The rules governing the administration of the Committee and "its local bodies" were adopted at Washington, D. C., on June 17, 1950. It was provided therein that as to all matters not contained in the rules so adopted, the Constitution of the Organization shall govern. In the rules, the objects of the Committee are stated to be as follows:
All individuals who become members of the local unions organized by the Committee are required to take an oath to the effect that they will observe the rules of the Committee which, as shown above, include the Constitution of the Organization.
We think it entirely clear that the provisions of the Solomon Bill have application to a local union sponsored and operated according to the terms and provisions of the rules of the Committee and the constitution of the Organization. Public employees, as defined in the Solomon Bill, who become members of such an operated local union are subject to the penalties therein provided. We do not understand appellant to contend to the contrary.
The record shows that the Committee organized a local union in this state. It is not identified by name or number in the record. We will sometimes refer to it as the Alabama local. Approximately 250 State employees who worked for the Board joined that local. Only one or two of them continued their membership after the passage and approval of the Solomon Bill.
Neither the Alabama local nor any of its members, past or present, are parties to this litigation, yet in reality it is that local that complainant sought to have the trial court declare not to be a labor union or labor organization within the meaning of the Solomon Bill.
It is asserted here by the Committee, the appellant, that on the testimony of its only witness, James W. Battles, the trial court should have so decreed, irrespective of the terms and provisions of the constitution of the Organization and the rules of the Committee.
Battles was over a member of the Alabama local. He identified himself at one point in his testimony as being a "national representative of the CIO attached to the Government & Civic Employees Organizing Committee." At another point in his testimony he said that he was a staff representative assigned to the Alabama local. Apparently he was that local's guiding hand.
He testified that in June, 1953, he made an effort to negotiate with the members of the Board on behalf of certain of its employees who were then members of the Alabama local. He was unsuccessful. From that time until the passage and approval of the Solomon Bill the membership of the Alabama local remained approximately the same although, according to Battles, all efforts to bargain collectively and to negotiate with the Board were abandoned.
Thereafter, according to Battles, the Alabama local became merely a discussion group wherein the Committee sought to assist the members of the Alabama local privately and in union meetings with respect to their rights and privileges under state and federal laws and with respect to common interests involving the welfare and working conditions of the members and other citizens of the United States and with respect to public affairs, public figures, economic and political issues.
The constitution, rules and by laws of a labor union or labor organization are the source of its authority. They constitute the contract between the labor union and its members, as well as the contract between members of the union. Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So. 2d 810. The statement of Battles to the effect that "we" abandoned the usual procedures pursued by labor organizations to accomplish their purposes is in irreconcilable conflict with the declared *650 purpose and object of the Organization and of the Committee. The record before us fails to show any authority whatsoever whereby a local union on its own volition or upon the mere advice of a representative of the Organization may abandon the declared purposes and objects of the parent organization. Such an attempt to change the purpose of the local union appears to be subversive and prohibited by the constitution and laws of the national organization. Congress of Industrial Organizations v. City of Dallas, Tex.Civ. App., 198 S.W.2d 143; Perez v. Board of Police Com'rs of City of Los Angeles, 78 Cal. App. 2d 638, 178 P.2d 537.
Moreover, there are parts of Battles' testimony which do not support his statement to the effect that after the Board refused to negotiate, the Alabama local became a mere discussion group. The following transpired during the examination of Battles:
We are of the opinion that the decree of 3 Div. 702 should be affirmed, that is, the appeal from the final decree.
After the final decree was rendered the respondents gave notice of appeal from a previous decree which overruled their demurrer to the bill. That attempted appeal has been submitted here in the same record as the appeal from the final decree and has been given the number 3 Div. 702-A.
The appeal of the respondents came too late and must be dismissed. Jones v. Industrial Life & Health Ins. Co., 222 Ala. 399, 132 So. 890; 4 C.J.S., Appeal and Error, § 212, d and e, pp. 400-402. We point out, however, that in our consideration of the appeal from the final decree we indicated that the grounds of demurrer here argued by respondents below were not well taken.
The decree in 3 Div. 702 is affirmed.
The appeal in 3 Div. 702-A is dismissed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | March 10, 1955 |
5387268e-de64-4d9f-8a45-27da8448712c | Howell v. Roueche | 81 So. 2d 297 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 297 (1955)
Joseph L. HOWELL
v.
Georgia Ann ROUECHE pro aml.
6 Div. 780.
Supreme Court of Alabama.
March 10, 1955.
Rehearing Denied May 19, 1955.
Further Rehearing Denied June 23, 1955.
*299 Spain, Gillon & Young, John P. Ansley and S. R. Starnes, Birmingham, for appellant.
Drennen & Drennen, Birmingham, for appellee.
STAKELY, Justice.
This is a suit by Georgia Ann Roueche, a minor four years of age, brought by her mother Ann Roueche as next friend against Joseph L. Howell, the driver of an automobile, claiming damages for personal injuries. It is alleged that the child received personal injuries while on the premises of the Exchange Bank of the City of Birmingham, which was used as a parking lot for patrons of the bank. This parking lot was owned or furnished by the bank for the convenience of its patrons. The complaint consists of one count in simple negligence. There was a verdict and judgment for the plaintiff and hence this appeal.
Appellant requested the affirmative charge with hypothesis at the conclusion of the evidence on the theory that appellee had failed to make out a case of negligence. The court refused this charge and since we have reached the conclusion that the charge should have been given, we are setting out the evidence in detail on this phase of the case. The evidence must be reviewed in its aspects most favorable to the plaintiff. Alabama Power Co. v. Buck, 250 Ala. 618, 35 So. 2d 355; Texas Co. v. Harold, 228 Ala. 350, 153 So. 442, 92 A.L.R. 523.
There were no eye witnesses to the accident.
Norman Pless, witness for appellee, Vice President of the Exchange Bank of Birmingham, Alabama, testified that the bank building is situated at the corner of 10th Avenue and 20th Street South; that the bank furnishes a parking lot for its customers located at the rear of the bank; that the bank faces 20th Street and is on the east side of 20th Street; that mothers come to the bank with children and use the parking lot in the rear of the bank; that traffic was in and out of the parking lot constantly; that the parking lot was lined off with parking spaces for automobiles with the most spaces on the right side of the entrance; that the entrance to the parking lot was on the 10th Avenue side which runs east and west beside the bank building; that a person entering the lot from 10th Avenue would turn right off 10th Avenue, cross a sidewalk and enter the parking lot. The witness Pless was asked the following questions and gave the following answers thereto:
On redirect examination the witness gave the following answers to the following questions:
*300 On recross examination the witness gave the following answers to the following questions:
Ben McCleskey, witness for the appellee, testified that he was a Police Officer in the City of Birmingham on the day of the accident in question; that he did not see the accident, but talked to Mrs. Roueche, mother of the child, and to the appellant after the accident; that the appellant stated to him that he did not see the child before the child was struck; that the first he knew that he had hit the child was when the man sitting with him on the other side told him he had hit a child and he stopped immediately; that he (witness) saw the appellant's car, the rear end of the car was inside the private parking lot of the bank having crossed the sidewalk; that a car was parked in the space to the left of the entrance and that cars were parked in the first and second spaces on the right; that these cars were parked at an angle; that he (witness) had made measurements of the parking lot; that a six foot concrete wall was located on the east side of the lot and the cars were angle-parked into that wall; that the width between the wall and the bank building is 42½ feet; that the traffic lane in the parking lot is 12 feet six inches wide and the parking spaces were 12 ft. 10 in. long. The witness was then asked the following questions to which he made the following answers:
Mrs. Ann Roueche, mother of the child, testified that she went to the Exchange Bank on March 3, 1952, to deposit a check and took the child with her; that the child was four years old at that time; that she parked her car in the parking lot in the second space on the right and went into the bank, carrying the child with her; that she deposited a check, left the bank and stopped to talk to a friend outside the bank; that the child was with her at that time; that she entered into a discussion with this friend; that her friend asked her, "Where is your child?" and then she looked behind her and the child wasn't there; that she then went toward her car in the parking lot and upon arrival found the child lying under the right front wheel of the car; that her hair was under it but she wasn't; that the child was then taken to a nearby doctor's office.
Joseph L. Howell, the appellant, testified that he drove an automobile into the parking lot of the Exchange Bank of Birmingham on March 3, 1952; that he was going to make a deposit at the Drive-In-Teller's Window; that he was driving west on 10th avenue and turned off into the parking lot; that cars were parked on each side of the parking lot and one or possibly two cars were in the traffic lane ahead of him going toward the window to make a deposit; that he was driving very slowly, two or three miles an hour at the time he entered the lot; that his speed was slow because he had to drive up an incline to get over the sidewalk following the other cars in; that he was looking ahead in all directions and that he did not see the child at that time; that after he had driven into the parking lot at a "creeping" rate of speed which he estimated at two to three miles an hour, the man seated in the car to his right called to him to stop; that he immediately applied his brakes, got out of the car and there saw the child for the first time under the right front bumper. No part of the wheel was in contact with her; that we picked the bumper up and pulled her from under there; that there was approximately three feet on either side of his car to the rear *301 of the cars parked in the lot on either side of the driveway down which he was driving. The defendant was then asked the following questions to which he gave the following answers:
Of course the driver of a car must be held to know of the lack of discretion and judgment of an infant under seven years of age. And it is his duty to put his car under such control so as to stop immediately if necessary to avert injury to a child. So if a driver coming into the parking lot here involved knew that he was coming into a place where a child under seven years of age was likely to be in his path or in dangerous proximity thereto, it was the imperative duty of such driver to keep his car under such control as would enable him to avoid injuring the child. A driver in such a situation cannot gamble upon being able to stop his car after he suddenly sees a child in such a dangerous situation but the fact that he is driving into a zone where he knows that children are likely to be on the roadway provided for the car or in dangerous proximity thereto, fastens the duty upon him to observe due caution to conserve the safety of such child. Mobile Light & R. Co. v. Nicholas, 232 Ala. 213, 167 So. 298.
See City of Birmingham v. Whitfield, 29 Ala.App. 454, 197 So. 666; Watson v. Ingalls, 218 Ala. 537, 119 So. 667.
Drivers or owners of motor vehicles are not insurers against all accidents wherein children are injured. "* * * a driver proceeding along a street or highway in a lawful manner using ordinary and reasonable caution for the safety of others, including children, will not be held liable for striking a child whose presence in the street could not reasonably be foreseen." Blashfield's Cyclopedia of Automobile Law and Practice, Vol. 2A, § 1498, p. 406.
The parking lot furnished by the bank in this case for the use of its patrons is in no sense a playground for children. It is not an area where it can be said that children are accustomed to gather and while it is not uncommon for children to come into the area, they come with their parents. We do not consider that under the evidence the area was such as to put the appellant on notice that children were likely to be in the parking lot any more than he would be on notice that children would likely be with their parents in other business areas of the city.
But assuming for the sake of argument that the appellant should have known that children were likely to be in the area what is there to show negligence on the part of this appellant? In order to enter the parking lot it was necessary for him to drive up an incline and across the intervening sidewalk. It was necessary for him to drive in a line between parked cars where there was little space between the parked cars and the driveway he was to follow. He was driving immediately behind *302 one or more cars in order to get to the teller's window to make a deposit. The undisputed evidence shows that he was looking ahead in all directions and was barely "creeping" along at a speed of about two or three miles an hour. He did not see the child who was four years of age and about three feet in height. When the man riding with him on the front seat in his car to the right yelled to him "stop, a child" or something to that effect, he immediately applied his brakes and stopped the car within a distance of two or three feet. He did not run over the child. The child was struck by the bumper and was found lying under the bumper in front of the right front wheel. From the evidence we are unable to say that the appellant did anything that a reasonably prudent man would not do under the circumstances and we cannot say that he failed to do what a reasonably prudent man should have done under the circumstances. Alabama City, Gadsden & Attalla Ry. Co. v. Bullard, 157 Ala. 618, 47 So. 578.
We must not allow a verdict to stand which is rested on pure speculation and conjecture. Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So. 2d 505; Golson v. W. F. Covington Mfg. Co., 205 Ala. 226, 87 So. 439. The burden is upon the plaintiff to establish negligence by affirmative proof and negligence will not be inferred by the mere showing of an accident resulting in personal injuries. Griffin Lumber Co. v. Harper, supra; Carlisle v. Central of Ga. Ry. Co., 183 Ala. 195, 62 So. 759.
Upon a careful consideration of the matter we have concluded, as stated above, that the defendant was entitled to the affirmative charge and because of the refusal of this charge, the court was in error.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.
STAKELY, Justice.
Our attention has been called to the fact that the appellee's brief on the original submission was filed sixteen days after submission of the cause. We are asked in accordance with Supreme Court Rule 38, Code 1940, Tit. 7 Appendix, to disregard the application for rehearing filed by the appellee. We have a discretion, however, in applying Rule 38, Metropolitan Life Ins. Co. v. Magouirk, 31 Ala.App. 5, 11 So. 2d 462, certiorari denied 243 Ala. 626, 11 So. 2d 466, and feel that the ends of justice would be better served if we consider the application for rehearing.
We say this because it is claimed by the appellee in brief to support the application for rehearing that we should not have given consideration to the affirmative charge because the certificate of the court reporter does not show that the transcript contains all the evidence. We quite agree that the affirmative charge should not be considered in the absence of a showing that the transcript contains all the evidence. This proposition was not called to our attention on the original hearing. However, we point out that the certificate of the court reporter does not merely state that it is a correct copy "of the proceedings as therein set out" as contended by the appellant. On the other hand the certificate of the court reporter is as follows:
Since the certificate shows that the transcript contains "a full, true and correct transcript of the proceedings as therein set out", we take it that the transcript does contain all of the evidence.
But it is further argued that the transcript on its face shows that it does not contain all the evidence because a rough draft diagram which the attorneys for the appellee drew on the blackboard during the testimony of Police Officer Ben McCleskey, has not been certified to this court. We call attention to the fact that the diagram was not introduced in evidence and was not marked as an exhibit. In commenting on the use of a diagram this court in Crocker v. Lee, 261 Ala. 439, 74 So. 2d 429, 435, had this to say:
Furthermore the testimony of the witnesses McCleskey and Howell contain such specific statements of fact as to location of streets, buildings and distances in figures that it is readily discernible from the record as to what actually happened. Henley v. Lollar, 35 Ala.App. 182, 44 So. 2d 791.
The application for rehearing is overruled.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | March 10, 1955 |
f64ca5de-e062-4ab7-91a7-0019ac77d55b | McCall v. State | 79 So. 2d 51 | N/A | Alabama | Alabama Supreme Court | 79 So. 2d 51 (1955)
William McCALL
v.
STATE.
6 Div. 732.
Supreme Court of Alabama.
March 31, 1955.
Nesbitt Elmore and Fred D. Gray, Montgomery, for appellant.
John Patterson, Atty. Gen., and Wm. H. Sanders, Asst. Atty. Gen., for the State.
MERRILL, Justice.
The appellant was convicted of murder in the first degree and sentenced to life imprisonment. His motion for a new trial was overruled. From this ruling and the conviction and sentence he appeals urging three matters as error.
Appellant complains that the state did not prove the corpus delicti in that it failed to prove beyond a reasonable doubt the causal connection between the wound inflicted by the defendant and the deceased's death.
It is true that no direct evidence of the causal connection between the wound inflicted and death was presented. There was, however, much circumstantial evidence tending to prove that the deceased died as a result of a wound inflicted by the appellant with a knife.
The appellant, the deceased and the eyewitnesses left a night club some time after midnight, all in varying degree of intoxication. They were riding in an automobile, three on the front seat and two on the rear. The deceased sat on the right of the front seat, the appellant on the right of the rear seat immediately behind him. As they drove up to a housing project known as Loveman's Village in Titusville, the appellant *52 was seen to reach forward and hit deceased in the chest near the neck. The car was stopped, appellant climbed out the single door on the right and dragged deceased out on the ground. After a very brief tussle, deceased slid to the ground. Blood was noticed on his clothing, a knife was seen in appellant's hand and the deceased was carried to a hospital. He did not speak during the trip and the witnesses did not know whether he was alive or dead when they arrived at the hospital with him.
The mother of the deceased testified that he was dead when she viewed his body during the same morning that the difficulty occurred between appellant and deceased. She stated that she observed a wound on his body which was located on the left side of his shoulder blade near his heart.
Another witness testified that he observed the body of the deceased at the Hillman Hospital emergency room and observed a wound which was on the left side near the neck and that the wound was slightly slanting, inward and down.
In addition to this testimony, a photograph of the body of the deceased showing the location of the wound was introduced in evidence.
The appellant testified in his own behalf and admitted that he cut the deceased. He relied on a plea of self-defense as justification therefor.
It is well settled in this state that the corpus delicti is a fact which may be proved by circumstantial evidence. If there is a reasonable inference deducible from the evidence of its existence, the court must submit the question of the sufficiency and weight of the evidence tending to support that inference to the jury. McDowell v. State, 238 Ala. 101, 189 So. 183; Rowe v. State, 243 Ala. 618, 11 So. 2d 749; DeSilvey v. State, 245 Ala. 163, 16 So. 2d 183; Phillips v. State, 248 Ala. 510, 28 So. 2d 542; Taylor v. State, 249 Ala. 130, 30 So. 2d 256; Snead v. State, 251 Ala. 624, 38 So. 2d 576; Spain v. State, 37 Ala.App. 311, 68 So. 2d 53, certiorari denied 259 Ala. 606, 68 So. 2d 58.
Here it was shown that the deceased was cut, that he received only one wound and that he died. Clearly there was ample evidence from which the jury could have found causal connection between the wound inflicted by the appellant and the death of the deceased. All the evidence concerning the death of the deceased tended to show that it was caused by the criminal agency of appellant and that it was not the result of accident or natural causes, or of suicide.
The appellant next complains that the jury deliberated and reached a verdict outside the jury room in the presence of the bailiff. This allegation is based upon facts which are presented in the record by two sworn affidavits, one executed by the appellant's father, the other by one of his counsel. Together, they tend to establish the following: The jury had retired to consider its verdict at 4:55 p. m. At 5:20 p. m. the Judge instructed the bailiff to inquire of the jury if they were near a verdict or if they wanted to eat supper. The bailiff made such inquiry after which he informed the Judge that the jury had not reached a verdict and wanted to eat supper. Thereupon the bailiff took the jury out to eat supper. The Judge then informed the clerk that he was going home to eat supper and if needed before 7:00 p. m. he could be reached by telephone. The clerk informed the attorneys for appellant that the jury would not return for eating until 6:30 p. m. At 6:32 p. m. the bailiff returned from supper with the jury. Before they entered the jury room, the judge inquired of them whether they had reached a verdict. One juror answered that they had reached a verdict. The judge then asked what the verdict was and several jurors answered "guilty with life imprisonment". The judge had the jurors line up in front of the bench where he polled them. He then discharged them. The appellant was present in the courtroom when the jury returned from supper and remained there until *53 they were discharged. Neither of his counsel were present, having gone to eat supper shortly after the jury left for the same purpose. Appellant's counsel returned at approximately 6:50 p. m. to find the jury discharged and their client sentenced to life imprisonment on a conviction of first degree murder.
From these facts the appellant argues that we must infer that the jury deliberated during their supper meal in the presence of the bailiff and possibly in the presence of others. There was no evidence of any misconduct on the part of the jury or of the bailiff in charge of the jury. A mere supposition that the jury deliberated in public is not sufficient. It often happens in the trial of criminal cases where they are required to be kept together, that juries that have reached a verdict near mealtime seldom announce that verdict until after they have eaten. Certainly we are not prepared to state that an argument based on mere possibility or conjecture is sufficient ground upon which to grant a motion for a new trial. "Substantial error is not presumed, but the burden is upon the appellant to show error". Kabase v. State, 244 Ala. 182, 12 So. 2d 766, 767; Washington v. State, 259 Ala. 104, 65 So. 2d 704.
As was stated in the case of Oliver v. State, 232 Ala. 5, 166 So. 615, 617, speaking of alleged misconduct of the jury, "Each case is to be judged by its particular facts." Here there is no affirmative evidence that there was misconduct by the jury, or any other officer of the court.
The third matter which the appellant urges as error is that the jury's verdict was received and he was sentenced during the absence of his counsel from the courtroom. Affidavits, already referred to, disclose that neither of the attorneys for the appellant were present when the verdict was rendered and sentence passed. The defendant was present and the judge polled the jury before they were discharged.
The facts in this case are in substantial accord with those stated in the case of Cantelou v. State, 210 Ala. 648, 98 So. 893, 895. In that case the court said:
The most recent pronouncement of this court on the right of the defendant and his counsel to be present in the courtroom when the verdict is rendered and sentence passed is the case of Allen v. State, 260 Ala. 324, 70 So. 2d 644, where many authorities are discussed. That case differs from the one at bar in that there the jury was not polled.
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.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | March 31, 1955 |
3c5ab83e-f49b-4eb8-b921-25c1a20dc06c | Holloway v. State | 79 So. 2d 40 | N/A | Alabama | Alabama Supreme Court | 79 So. 2d 40 (1955)
M. Lloyd HOLLOWAY (Holloway Supply)
v.
STATE.
3 Div. 679.
Supreme Court of Alabama.
March 10, 1955.
Rehearing Denied April 7, 1955.
Maurice F. Bishop, Birmingham, and John A. Bostwick, Jr., Guntersville, for appellant.
Si Garrett, Atty. Gen., and H. Grady Tiller, and Willard W. Livingston, Asst. Attys. Gen., for appellee.
Robt. S. Gordon, Charles C. Cleveland, Albert Boutwell and Ida D. Rosenthal, Birmingham, amici curiae, in behalf of appellant.
LAWSON, Justice.
The ultimate question for decision is whether use tax is due the State of Alabama by appellant on chicken feed and medicine used in the raising of chickens in this state during a period beginning April 1, 1949, and ending December 3, 1951.
On August 14, 1952, the State Department of Revenue entered a final assessment against appellant, M. Lloyd Holloway, individually, and doing business as Holloway Supply. The final assessment was for the period of time mentioned above and was in the amount of $4,555.75, which amount includes interest and penalty.
*41 Within thirty days thereafter, appellant, the taxpayer, filed notice of appeal to the circuit court of Montgomery County, in equity, and executed supersedeas bond, which was approved. See § 140, Title 51, Code 1940.
On September 11, 1952, appellant filed a bill in equity in the circuit court of Montgomery County assailing the validity of the assessment entered against him on August 14, 1952. The prayer of the bill was, in effect, that the said assessment be held invalid and set aside.
Thereupon the State demurred to the bill, which is the proper method in a case of this kind to raise an issue of law on the facts alleged. State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 11 So. 2d 342; Merriwether v. State, 252 Ala. 590, 42 So. 2d 465, 11 A.L.R.2d 918.
It appears from the bill and exhibits thereto that during the time covered by the assessment, appellant was engaged in the "broiler" business at Bowdon, Georgia, which town is located close to the Alabama-Georgia line and not far from Cleburne County, Alabama. Appellant purchased "baby chicks" and delivered them to farmers in Alabama. The farmers cared for and raised the "baby chicks" for a period of six to eight weeks until they reached the broiler or fryer stage, when appellant sold the chickens to various processing plants in Alabama. In addition to their services, the farmers furnished the necessary chicken houses. The appellant furnished all feeds, medical supplies and insurance. For their services the farmers received from appellant five cents for each chicken raised plus one-half of the profits.
The assessment of the State Department of Revenue here under attack was for use tax computed and based upon feed and medicine purchased by appellant outside of Alabama and used by him and Alabama farmers in accordance with the arrangement outlined above.
The use tax was imposed by the legislature as a complement to the sales tax and applies to tangible personal property purchased at retail and is imposed on its storage, use or consumption in this state. § 788, Title 51, Code 1940, as amended. It does not apply to "a wholesale sale" or to a "sale at wholesale" as those terms are defined in subsec. (d) of § 787, Title 51, Code 1940, which subsection reads: "The term `wholesale sale' or `sale at wholesale' means a sale of tangible personal property by wholesalers to licensed retail merchants, jobbers, dealers, or other wholesalers for resale and does not include a sale by wholesalers to users or consumers not for resale. The term `wholesale sale' shall include a sale of tangible personal property or products (including iron ore) to a manufacturer or compounder which enters into and becomes an ingredient or component part of the tangible personal property or products which he manufactures or compounds for sale, and the furnished container and label thereof." (Emphasis supplied.) In Paramount-Richards Theatres v. State, 256 Ala. 515, 55 So. 2d 812, 821, we said: "If there is no retail sale there is no taxable event under the Sales Tax or Use Tax Act." See State v. Advertiser Co., 257 Ala. 423, 59 So. 2d 576.
The argument advanced by appellant in brief filed on submission of this cause in support of his claim of invalidity of the assessment made against him is that the sales to him outside of this state of feed and medicine were wholesale sales within the meaning of the part of subsec. (d) of § 787, Title 51, supra, which we italicized above and, therefore, not subject to the use tax.
We quote from that brief:
The able briefs filed amicus curiae, which support the position taken by appellant, have been carefully considered. They demonstrate much study and ingenuity, but we cannot agree with the position taken therein.
We have held that subsec. (d) of § 787, Title 51, Code 1940, deals with coverage, not with exemptions, and is to be construed strictly against the taxing power, with favor indulged toward the taxpayer. State v. Olan Mills, Inc., 258 Ala. 303, 63 So. 2d 796; State v. Southern Kraft Corp., 243 Ala. 223, 8 So. 2d 886. But see State v. Wertheimer Bag Co., 253 Ala. 124, 43 So. 2d 824.
But the rule that taxing statutes are to be construed strictly against the state and in favor of the taxpayer does not impinge upon the all-prevailing rule that a statute is to be construed in accordance with its real intent and meaning, and not so strictly as to defeat the legislative purpose. National Linen Service Corp. v. State Tax Commission, 237 Ala. 360, 186 So. 478; Dixie Coaches, Inc., v. Ramsden, 238 Ala. 285, 190 So. 92; Ingalls Iron Works Co. v. City of Birmingham, 248 Ala. 417, 27 So. 2d 788; Alabama-Georgia Syrup Co. v. State, 253 Ala. 49, 42 So. 2d 796. The plain language and intent of the statute must be given effect. State v. Seals Piano Co., 209 Ala. 93, 95 So. 451. There is another generally accepted canon of statutory construction, which is that where there is nothing to indicate to the contrary, words in a statute will be given the meaning which is generally accepted in popular, everyday usage. Pullman-Standard Car Mfg. Co. v. State, 253 Ala. 638, 46 So. 2d 500.
Without lengthening this opinion, it is sufficient to say that we are of the opinion and hold that the language of subsec. (d) of § 787, Title 51, does not afford the appellant any relief because his business was not that of a "manufacturer or compounder" within the meaning of the language there used.
The conclusion here reached finds support in the cases hereafter cited from courts of other states. Teague v. Scurlock, Ark., 265 S.W.2d 528; Colbert Mill & Feed Co. v. Oklahoma Tax Commission, 188 Okl. 366, 109 P.2d 504; Salt Lake Union Stock Yards v. State Tax Comm. of Utah, 93 Utah 166, 71 P.2d 538.
The fact that the legislature has subsequently seen fit to exempt feed from the sales tax and the use tax does not reflect upon the conclusion here reached.
The decree of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | March 10, 1955 |
1e8821d6-1dab-4e83-9a6c-25eb61291a61 | McPherson v. Stallworth | 78 So. 2d 924 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 924 (1955)
Lawrence McPHERSON
v.
John Morris STALLWORTH.
1 Div. 611.
Supreme Court of Alabama.
January 20, 1955.
Rehearing Denied March 24, 1955.
*925 Windell C. Owens, Monroeville, for appellant.
John M. Coxwell, R. L. Jones, Monroeville, and B. E. Jones, Evergreen, for appellee.
SIMPSON, Justice.
This is an appeal from a judgment in an action of ejectment and from a ruling on the motion for a new trial.
The appeal must be dismissed, for there is no organization of court appearing in the record as required by Supreme Court Rules, rule 26, Code 1940, Tit. 7 Appendix. See Garrad v. State ex rel. Waid, 260 Ala. 486, 71 So. 2d 59; Pensacola, A. & W. R. Co. v. Big Sandy Iron Co., 147 Ala. 274, 41 So. 418.
Appeal dismissed.
LIVINGSTON, C. J., and GOODWYN and MAYFIELD, JJ., concur.
On Application for Rehearing
SIMPSON, Justice.
On application for rehearing, we are urged to change our decision and reinstate the appeal, one reason being that the case was submitted on the merits with the appellee making no objection to the transcript. Such a defect cannot be waived. Unless there is an organization of the court shown, the jurisdiction of this court is never invoked. It may be true that no "formal" organization is absolutely required, but it must be affirmatively shown that the proceedings appealed from were had in a court organized according to law. This should not be left to inference. The court in Bell v. Fulgham, 202 Ala. 217, 80 So. 39, 40, stated:
The court's statement about the certificate of appeal probably had reference also to the Probate Judge's certification of the record. From examining the original record in that case, we are unable to ascertain exactly what was embraced in the term "other parts of the transcript," unless it was an introductory statement preceding the bill of exceptions. We have no such statement in this case, though the clerk's certificate and the certificate of appeal conform generally to the ones in the Bell case. But there was a certificate of appeal in the case of Garrard v. State ex rel. Waid, 260 Ala. 486, 71 So. 2d 59, which imparted the same information as the ones in the Bell case and the one now before this court. If the clerk's certificate is sufficient to invoke the jurisdiction of this court, then there is no office to be performed by the organization of the court and that part of Rule 26 might as well be stricken. Until it is stricken it should be enforced.
Application denied.
LIVINGSTON, C. J., and GOODWYN and MAYFIELD, JJ., concur. | January 20, 1955 |
feb4e886-6072-40f1-b4d6-15bee04fdd21 | Vinson v. Vinson | 79 So. 2d 31 | N/A | Alabama | Alabama Supreme Court | 79 So. 2d 31 (1955)
Annie Mae VINSON
v.
Elmina VINSON.
5 Div. 557.
Supreme Court of Alabama.
March 24, 1955.
Ellis & Fowler, Columbiana, and J. B. Atkinson, Clanton, for appellant.
Omar L. Reynolds, Reynolds & Reynolds, Clanton, for appellee.
GOODWYN, Justice.
This is the second appeal in this case, the first appeal being reported as Vinson v. Vinson, 256 Ala. 259, 54 So. 2d 509. The first appeal was from a decree overruling demurrer to the bill. The only question for decision there was whether the bill stated a case for declaratory relief. We held the bill to be sufficient in that respect and affirmed the case. Code 1940, Tit. 7, § 159.
The bill seeks to determine the right and title to the proceeds of 18 postal savings certificates of a total face value of $1,011. The present appeal is from the final decree holding that complainant-appellee, Elmina Vinson, "has the full and exclusive right, title, claim and interest in and to said postal savings certificates or said postal savings account, the subject matter of this suit."
*32 The appellee is the mother of Hollis B. Vinson, who died testate on or about November 20, 1949. Respondent-appellant is Hollis' widow and executrix of his last will and testament, under which she is the sole beneficiary. The point in controversy is whether Hollis' mother or his widow is entitled to the savings certificates.
The position taken by the mother is that, although the savings certificates were issued in the name of her son, H. B. Vinson, who is the same person as Hollis B. Vinson, she nevertheless is entitled to the certificates and the savings account for the reason that it was her money which was deposited in the account, as represented by the savings certificates, and that she made no gift inter vivos of the money or certificates to Hollis.
Appellant's insistence is "that the opening of the postal savings account in the name of H. B. Vinson and the issuance of the 18 certificates of deposit in his name constituted a gift of the property to him and that the complainant put the funds in his name as a gift equal to the gift complainant made to her other two children and thus the funds were put beyond her control or recall"; "that if the complainant opened the three postal savings accounts in the names of her children for her own benefit, she violated postal savings rules and regulations pertaining to such accounts which forbid any one person from having more than one postal savings account, and further that she thus violated postal savings rules and regulations which forbid the opening of any such account in the name of one person in trust for another"; "that if the complainant opened the postal savings accounts in the names of her three children for the purpose of putting her money beyond the control of her husband, if she should die first, she does not come into the court with clean hands and therefore is not entitled to the relief prayed for."
There is no dispute that the savings certificates were purchased with Elmina Vinson's personal funds derived by her from operation of her own farm. The evidence discloses that in 1945 Elmina caused her daughter, Dollie, who lived with Elmina, to open United States postal savings accounts in the names of each of Elmina's three children, Walter, Hollis and Dollie. Elmina testified that she told Dollie to divide the money, "to put it in her name, Hollis' name and Walter's name so if anything happened to me her daddy wouldn't get it." She further testified that she was making an equal division of her money among her children. Dollie, in the company of Walter, opened the three accounts. Dollie and Walter each personally signed the application blanks, but Dollie signed the name of Hollis on the application for an account in his name. On the day the accounts were opened, and from time to time thereafter, Dollie purchased out of her mother's funds, and at her request, equal amounts of certificates in the name of each account. The applications to open the postal savings accounts, on the reverse side of which are recorded deposits and withdrawals, as well as the postal savings certificates purchased, were always kept in Elmina's home. It does not appear that Hollis was ever informed of the existence of the account in his name or of the purchase of certificates in his name. Elmina's husband died on July 14, 1949. Both of the accounts in the names of Walter and Dollie have been closed. The evidence does not disclose the disposition made of the proceeds.
The following Postal Laws and Regulations are pertinent here, 39 C.F.R., 1949 Ed., Sect. 82.1(a), (b) and (c):
The law regarding gifts of personal property is well settled. Section 129, Tit. 47, Code 1940, provides that a parol gift of personal property is inoperative "until the custody, control, management, and use of the property passes from the donor to the donee, and is possessed by such donee or his agent". And this court has held that a clear surrender of the right and of the dominion over the property is required in contradistinction to a promise or an intention to surrender. There must be no reservation of any control over the property and nothing must remain to complete the delivery. Livingston v. Powell, 257 Ala. 38, 43, 57 So. 2d 521; DeMouy v. Jepson, 255 Ala. 337, 339, 51 So. 2d 506; Davis v. Wachter, 224 Ala. 306, 308, 309, 140 So. 361. The rule is thus stated in DeMouy v. Jepson, supra [255 Ala. 337, 51 So.2d 508]:
As authority for the contention that Elmina Vinson put the funds represented by the postal savings certificates completely beyond her control by making deposits in the name of her son, Hollis, and that title therefore must have passed to him, appellant refers to the Postal Savings Rules and Regulations calling for identification of and indorsement by the depositor on withdrawal of funds. But such rules and regulations also include the following provision for payment of postal savings accounts when ownership of the accounts is disputed, 39 C.F.R., 1949 Ed., Sect. 86.11:
"§ 86.11 Disputed ownership of postal savings accounts(a) Adjudication by courts. The final judgment, order, or decree of any court of competent jurisdiction adjudicating any right or interest in the credit of any sums deposited by any person with a postal savings depository if the same shall not have been appealed from and the time for appeal has expired shall, upon submission to the Postmaster General of a copy of the same, duly authenticated in the manner provided by the laws of the United States for the authentication of the records and judicial proceedings of the courts of any State or Territory or of any possession subject to the jurisdiction of the United States, when the same are proved or admitted within any other court within the United States, be accepted and pursued by the board of trustees as conclusive of the title, right, interest, or possession so adjudicated, and any payment of said sum in accordance with such order, judgment, or decree shall operate as a full and complete discharge of the United States from the claim or demand of any person or persons to the same. (Sec. 17, 36 Stat. 819; 39 U.S.C. 767)"
This section appears to be clear to the effect that payment can be procured in any case when rights to an account have been finally adjudicated.
The burden is on the donee, the appellant here, to establish the fact of a gift by clear and convincing proof and if the impartial mind is left in doubt or uncertainty as to exactly what the status of the transaction was, the donee has failed to discharge the burden imposed and the claim of gift will fail. DeMouy v. Jepson, supra; Collins v. Baxter, supra; Hudgens v. Tillman, 227 Ala. 672, 151 So. 863.
*34 It is our view, after a careful consideration of the record, that the evidence supports the trial court's conclusion that Elmina Vinson did not intend to make a gift of the postal savings certificates to her son, Hollis. It appears that perhaps she was not fully informed of the nature of the transaction carried out by her daughter, but that she trusted her daughter to attend to her affairs. The factor motivating Elmina Vinson appears to have been her desire to keep her money out of the hands of her husband in the event she predeceased him, rather than the desire to make a present gift to her children. Not only were the postal savings certificates never delivered to Hollis, but it does not appear that he was ever informed of the existence of the account in his name or of the purchase of the certificates.
Appellant takes the position that appellee is not entitled to relief because she does not come into court with clean hands. But we do not think that principle is applicable here. Assuming, without deciding, that appellee violated postal savings rules and regulations, such violation resulted in no injury to Hollis. Nothing was taken away from him by his mother; no advantage was taken of him by her nor did her actions injuriously affect or lessen any right he had; nor was there any equitable relation between them which was affected in any way by what she did. In short, the mother had the right to dispose of her money as she saw fit. The son, Hollis, had no interest whatever in it. She could give it to him and her other children, or not, as she wished. If a gift of part of it to one or more of her children was perfected, to that extent she parted with title; but, until perfected, she retained full title and dominion over it. Hollis, therefore, since the intended gift to him was never perfected, acquired no interest in the savings account which could have been adversely affected by his mother's actions. The "clean hands" doctrine has no application to the facts of this case. Gray v. Gray, 246 Ala. 627, 630, 22 So. 2d 21; Van Antwerp v. Van Antwerp, 242 Ala. 92, 98, 99, 5 So. 2d 73; Foster v. Winchester, 92 Ala. 497, 501, 9 So. 83.
The decree appealed from is due to be, and is, affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MAYFIELD, JJ., concur. | March 24, 1955 |
0be9098e-96be-400d-a278-75f42f1f9138 | Mobile Battle House v. City of Mobile | 78 So. 2d 642 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 642 (1955)
MOBILE BATTLE HOUSE, Inc. et al.
v.
CITY OF MOBILE.
1 Div. 559.
Supreme Court of Alabama.
March 10, 1955.
Vickers & Thornton, Mobile, for appellants.
Fred Collins, Mobile, for appellee.
LAWSON, Justice.
This is an appeal from a decree of the circuit court of Mobile County, in equity, sustaining demurrer of the City of Mobile to the amended bill filed by the appellants, Mobile Battle House, Incorporated; Thomas Jefferson Hotel Company; and O. F. Cawthorn Realty Company, Inc., seeking to have declared null and void a certain ordinance of said city and for perpetual injunction against the enforcement of said ordinance and for certain other relief not necessary here to relate.
On September 16, 1952, the City of Mobile adopted an ordinance, to be effective as of October 1, 1952, § 1 of which reads:
In § 3 of said ordinance it is provided that the license assessed is payable on or before the tenth day of the month next succeeding the month in which the business is carried on, and in § 4 it is made unlawful to carry on any such business without the payment of the license.
The complainant corporations, each of which operated a hotel within the City of Mobile, filed this suit on October 24, 1952. The averments of the amended bill show such an actual controversy as to support the jurisdiction of the court to render a declaratory decree. § 156 et seq., Title 7, Code 1940; City of Birmingham v. Allen, 251 Ala. 198, 36 So. 2d 297; City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So. 2d 658; Alabama Ice & Utilities Co. v. City of Montgomery, 252 Ala. 131, 40 So. 2d 198. Cf. Shadix v. City of Birmingham, 251 Ala. 610, 38 So. 2d 851.
It is not always appropriate to make a construction or declaration of rights or status on a demurrer to a bill seeking a declaratory judgment. Ordinarily, where such a bill 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 on submission for final decree. Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So. 2d 11; Vinson v. Vinson, 256 Ala. 259, 54 So. 2d 509. We think this is the kind of case where it would have been much better to have overruled the demurrer and a declaration made after answer and the taking of evidence. See City of Bessemer v. Bessemer Theatres, supra.
But where, as here, counsel for both sides decide to have the matter considered by this court on the appeal from the ruling on demurrer, we will proceed to do so. McCall v. Nettles, 251 Ala. 349, 37 So. 2d 635; Carter Oil Co. v. Blair, 256 Ala. 650, 57 So. 2d 64; Waterworks and Sanitary Sewer Board v. Dean, 260 Ala. 221, 69 So. 2d 704. See Evers v. City of Dadeville, 258 Ala. 53, 61 So. 2d 78.
For the purpose of this appeal it may be said that the bill as amended challenged the validity of the ordinance on two grounds: first, the City of Mobile is without authority to impose the tax therein sought to be imposed; second, the tax is a revenue raising measure and is so exorbitant and discriminatory as to be unconstitutional.
There is no merit in the assertion that the municipalities of this state are without legislative authority to so frame their ordinances as to make gross receipts the basis of the computation of a license. Section 735, Title 37, Code 1940, which is the legislative authorization for municipalities to license such a business as a hotel, contains the following language:
Such authority has been recognized in the decisions of this court. Evers v. City of Dadeville, supra; Gotlieb v. City of Birmingham, 243 Ala. 579, 11 So. 2d 363; Anderson v. City of Birmingham, 205 Ala. 604, 88 So. 900. See Nachman v. State Tax Commission, 233 Ala. 628, 173 So. 25; Woco Pep Co. of Montgomery v. City of Montgomery, 219 Ala. 73, 121 So. 64; Goldsmith v. City of Huntsville, 120 Ala. 182, 24 So. 509.
*644 We come now to the contention that under the averments of the bill, admitted on demurrer, the ordinance is shown to be unconstitutional because it is exorbitant and discriminatory.
It is not alleged that complainants are discriminated against within the classification made by the ordinance but that the discrimination is against the class of business in which complainants are engaged and in favor of other businesses of a different sort in the City.
It is alleged that the license tax is principally a revenue measure, hence, the fact that the business of complainants is useful and legitimate is not material to the inquiry of whether the license charged for revenue purposes is excessive, provided it is not prohibitive or oppressive. Bessemer Theatres, Inc., v. City of Bessemer, 261 Ala. 632, 75 So. 2d 651.
It is the theory of complainants that the ordinance selects the business in which they are engaged and burdens it with a different and greater amount of license tax than that imposed upon other classes of business, and so vastly greater that it makes it an arbitrary and capricious exercise of the power of the City to raise revenue by that means. Reliance is had upon the equal protection clause and the due process clause of the Fourteenth Amendment to the Constitution of the United States.
The averments of the bill as amended and the exhibits thereto do show that the license which the ordinance exacts of complainants is in excess of the license required of other type businesses, but that status alone does not render the ordinance invalid.
We see no occasion to set out the averments of the bill in detail. They have been carefully considered in connection with our recent case of Bessemer Theatres, Inc., v. City of Bessemer, supra, 75 So. 2d 651, and we are of the opinion that the allegations of the bill do not show the ordinance to be unconstitutional on the asserted grounds.
The decree of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | March 10, 1955 |
3dd64cf7-571b-462b-b9c3-9be6eaa80a9f | Gipson v. State | 78 So. 2d 293 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 293 (1955)
Tom GIPSON
v.
STATE of Alabama.
4 Div. 802.
Supreme Court of Alabama.
February 24, 1955.
*294 W. Perry Calhoun, Dothan, for appellant.
Wm. H. Sanders, Asst. Atty. Gen., for the State.
PER CURIAM.
Appellant, Tom Gipson, was tried and convicted of murder in the second degree for the killing of E. C. Dyson, and was sentenced to twenty-five years in the penitentiary.
E. C. Dyson, the twenty-three year old deceased, his brother James, James' wife, their mother and father, another brother Travis and his wife (who was the daughter of Tom Gipson), all lived together about three miles from Columbia. On Sunday morning, December 20, 1953, James Dyson, E. C. Dyson and Charlie Brackin went to the home of defendant, Tom Gipson, who had a son by the name of Lester Gipson. Later James, E. C., Lester and Charlie left. While away E. C. and Lester had a fight, either at the Dyson home or in the automobile, as to which the evidence is not clear. They brought Lester back to defendant's home. James took E. C. home and put him on the bed because of his drunken condition. James then got his wife and carried her to another brother's house where they all spent the night, leaving E. C. alone and drunk lying on the bed at the house where they all lived. They all left the house on account of E. C. being drunk and because their mother had a bad heart. James, his wife and mother went back home the next morning and found E. C. lying on the bed in the same place with a bullet hole in his forehead and blood on the pillow which had flowed from the wound. There was no blood on the floor or elsewhere in the room, except on the pillow. The furniture was disarranged and glass and knives, which had fallen from a chifforobe, were scattered all over the floor: all of which was done by E. C. while drunk on that Sunday afternoon before James left, according to his testimony. There was no weapon of any kind except a folded knife was on the dresser.
The officers and investigators came before the body was moved. A silver colored.22 caliber cartridge shell was picked up on the right side of the house and another almost in front of the door and a brass *295 colored one was found in the room at the foot of the bed. These were .22 caliber empty rifle shells. There was a hole (not fresh) in the wall above where the body lay, and to the right of the door of the entrance on the inside of the room. This hole was opened but nothing was found.
When defendant was arrested about 1:00 o'clock that day, he had a .22 rifle hanging on the wall of the front room of his house, and that afternoon he delivered it to Mr. Sowell, the toxicologist.
Defendant told the officer at another time that E. C. Dyson had whipped his daughter (Travis' wife) the day before and run her off from home and had beat up his boy Lester.
The evidence indicated that there was no hole in the screen door to the entrance of the house.
Dr. Sowell, the toxicologist, testified that, in his opinion, when the bullet hit the victim, he was knocked backward and fell backward on the bed. Also that, in his opinion, it would not have been possible for E. C. Dyson to have been shot at that door while standing up and to then turn and walk back and get on the bed. He further testified as follows:
"Mr. Farmer: We object.
"The Court: Overrule the objection.
"Mr. Farmer: We except.
"Mr. Farmer: We object.
"The Court: Overrule objection.
"Mr. Farmer: We except.
"A. The other wounds were inflicted first.
"Mr. Farmer: We object, Your Honor.
"The Court: Overrule the objection.
"Mr. Farmer: We except.
"Mr. Farmer: I object.
"The Court: Did you ask him if it was his opinion?
"Q. Is that your opinion?
"Mr. Farmer: I object.
"The Court: Overrule the objection. Give him the benefit of the record.
"Mr. Farmer: We except.
"A. Yes, sir, that is my opinion."
The defendant testified in his own behalf that on that Sunday morning, his son Lester left his home with James and E. C. Dyson. After they had gone Horace Dyson, Hanley Spann and Abb Brackin came to his house. Horace told him that they were taking his son off to beat and cut him up, and that E. C. had taken a plank and beat up his daughter, and run her and defendant's son-in-law off from home. Defendant testified, "We got in the car about nine o'clock that morning and hunted and rode until around four o'clock that evening trying to find them. We couldn't find them; found several places that they had been to but couldn't get up with, until I got back home", where he found his son who told him E. C. Dyson had beat him up. He further testified that, knowing they were drunk, he took his rifle and went over to the Dyson home: what he did when he reached there is stated as follows: "I got up, walked up, had my rifle under my arm like this, knocked, stepped back off the edge of the porch like this, about six feet from there; he came to the door and threw a gun in my face, when he done that I darted over just like that. He fired twice at me and burned the hair on the said (side) of my head right there; I threw up my rifle like that and shot at the man's face * * the man's face that was shooting there at me. Whoever it was, when he come to the door, he come stooped over like this, pulled the door open and threw the gun in my face, shot at me twice. I threw my rifle up, didn't take any aim or anything. He shut the door * * *." That the screen door was propped back with a chair, (he) "slammed the door to. When I fired my gun, I hit it just like that, just quick as a man could do it. I ejected the shell out of my gun and started to put another one in and he slammed the door, I turned around and walked off." Defendant testified that he was using white metal shells in his rifle, and he identified one shell as the kind he was usinga white one, not a brass one.
We have examined the record carefully and find that the questions discussed in appellant's brief are the only ones to which we need refer, and most of them do not need discussion.
A charge analogous to refused charge 2 was held to be good in the case of Elmore v. State, 92 Ala. 51, 9 So. 600. But in Daniels v. State, 243 Ala. 675(19), 683, 11 So. 2d 756, it is said that it is but another way of charging on reasonable doubt and this was fully and fairly covered by the oral charge and its refusal was not reversible error. And so that observation is pertinent in the instant case.
Refused charge 8 pretermits a consideration of the elements of self-defense other than those referred to in it, and implies that defendant was entitled to an acquittal if he shot deceased in a bona fide and well founded belief that his own life was in danger. It leaves out the question of freedom from fault and of retreat. The charge referred to in Glass v. State, 201 *297 Ala. 441, 78 So. 819, cited by appellant, contained the elements of self-defense which are omitted in charge 8, supra. Moreover, the principle sought to be invoked was fully covered by the court's oral charge.
Charge 9, refused to appellant, has been held by this Court to be properly refused. Russo v. State, 236 Ala. 155(4), 181 So. 502. Appellant's counsel cites Walker v. State, 153 Ala. 31, 45 So. 640; but that case was overruled by the case of Ex parte Davis, 184 Ala 26, 63 So. 1010, which has been followed in many cases as pointed out in the Russo case, supra.
Refused charge 11 refers to "every element of self-defense," without specifying them. The court in his oral charge fully and correctly instructed the jury with reference to every element of self-defense. The same comment is applicable to charge 10.
There were several objections made by defendant to evidence. Most of them are of such nature as not to require comment; but we think some of them should be discussed.
The State, as indicated above, introduced as its witness W. L. Sowell, who was shown to be the assistant state toxicologist and who qualified as an expert in ballistics. He testified that he had been working with the department of ballistics since March 15, 1945, and that he had worked approximately three to four thousand cases of ballistics. That means, as he testified, that he had fired and examined bullets discharged from guns in three to four thousand cases since he has been with the department of toxicology. He made an autopsy on the body of E. C. Dyson. He explained in detail the finding of a .22 caliber bullet which he took out of the head of the deceased, its exact location as to where it rested and where it entered; and the kind of pathway it made through the brain. This bullet was in evidence. He testified he received a rifle shown to belong to defendant. He shot that rifle so as to recoup the bullet and so that it retained its markings. That the markings on the bullet which came out of the head of the deceased were sufficient to determine what gun fired it; and that it was fired out of defendant's rifle. He explained fully his procedure in arriving at that conclusion. He also testified that the brass colored cartridge shell was fired with defendant's rifle: that the two silver colored shells were not fired with that rifle. He also testified with reference to the hole in the wall. It was a celotex wall. The surface around the hole was cut out of the wall, and the inside pieces that were pushed through were covered with dust and spider webs showing, as he said, it had been done "for quite some time." On cross examination by defendant, the witness testified that the hole was about the size made by a .32 or .38 caliber pistol cartridge. He also testified as to the amount of blood on deceased's clothes and on the bed. (There was no blood elsewhere in the room.) All of which indicated to the witness that deceased had lived not over twenty minutes after being shot. Blood is forced out by the pumping of the heart, and he did not bleed after he was dead.
On re-direct examination witness was asked (in your experience as indicated) what in your opinion happened to E. C. Dyson when that bullet you found in his head struck his brain? His answer was, "It is my opinion, that when the bullet hit the victim, that the victim was knocked backward and fell backward onto the bed". And also, "I believe that he was unconscious at the time (from the time) he was shot. * * * He could have been knocked unconscious immediately." A question was also asked by the solicitor if he could state "as an expert, from your experience in the investigation of the death cases from gunshot wounds through the brain, if it would have been possible for E. C. Dyson to have been shot at that door while standing up, then turn and walk back and get on that bed?" The witness answered in substance that he did not believe he could have done so.
There was objection to each aspect of that testimony separately. All were overruled and exceptions noted.
*298 We are therefore confronted with the problem as to what sort of evidence an expert can give in respect to matters within the range of his specialty. And, particularly, can he express an opinion that when the bullet hit the victim he was knocked backward and fell backward on the bed. He could undoubtedly express the opinion as an expert that the wound, occurring as it did, would tend to cause the victim to be knocked backward, and if on the bed or near it to fall back on it. But can he express the opinion that it did that very thing?
There has been much difficulty in making a consistent application of what is called the opinion rule, rejecting evidence by an expert expressive of his opinion under certain circumstances. In Pope v. State, 174 Ala. 63, 78, 57 So. 245, the Court referred to the difficulty of a consistent application of this rule. A reference to our cases magnifies the thought. Louisville & Nashville R. Co. v. Elliott, 166 Ala. 419, 52 So. 28; Birmingham, Ensley & Bessemer R. Co. v. Williams, 190 Ala. 53(6), 66 So. 653; American National Ins. Co. v. Rosebrough, 207 Ala. 538, 93 So. 502; Equitable Life Assur. Soc. of United States v. Davis, 231 Ala. 261, 164 So. 86; Armour & Co. v. Cartledge, 234 Ala. 644(22 and 23), 176 So. 334; Colvin v. State, 247 Ala. 55, 22 So. 2d 548.
We think the opinion of the expert in such matters as when the bullet hit the victim that he was knocked backward and fell backward on the bed, did not come within the rule of exclusion in respect to such matters. He could testify to the principle that when a bullet hits a victim, coming from directly in front, it knocks him backward and if a bed is there and he is found lying on it with such a bullet wound, that the victim fell backward on the bed. It is but the expression of the result of an accumulation of circumstances of which he has expert knowledge.
The case of Crawford v. State, Ala., 78 So. 2d 291, is being considered by this Court on rehearing along with the instant case. The Court is of the opinion that the Crawford case is an application of the principle to a situation which has been approved because it does not call for the opinion of an expert based upon expert knowledge, and it is not inconsistent with the holding in this case that there was no error in admitting the evidence.
Other features of the testimony to which objection was made in this connection were clearly admissible. We think there was no error in respect to the rulings referred to.
There was no error in the admission of the pictures of the decedent taken while he was lying on the bed after he was shot, and before he was moved: nor of the picture of the room when he was first found dead, showing the disarrangement of the furniture and effects scattered about it. Grissett v. State, 241 Ala. 343, 2 So. 2d 399. That case also sustains the ruling of the court in respect to the testimony of the expert that the bullet and a certain shell were shot out of the rifle identified as belonging to defendant.
We do not find reversible error in any of the rulings by the trial court. The record shows a compliance with all the requirements and safeguards of the law in such cases. It therefore results that 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.
All the Justices concur. | February 24, 1955 |
9eeb07f8-10aa-4d6e-9ff9-b01bf9da1a4f | Calhoun County v. Logan | 80 So. 2d 529 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 529 (1955)
CALHOUN COUNTY
v.
Duke LOGAN.
7 Div. 156.
Supreme Court of Alabama.
February 24, 1955.
Rehearing Denied May 19, 1955.
*531 Chas. Thomason, Anniston, for appellant.
Emerson & Watson and Duke Logan, Anniston, for appellee.
PER CURIAM.
This is an appeal by Calhoun County from a judgment rendered in the circuit court of that county on February 2, 1952. The judgment ascertained the damages and compensation for the taking of appellee's leasehold interest in a tract of land, consisting of five or six acres, at the sum of $3,000, and in said judgment the court ordered and decreed that appellee have and recover of Calhoun County said sum of $3,000.
By agreement of the parties to the appeal in the circuit court the record does not include the probate proceedings, but conceded that the Circuit Court of Calhoun County had jurisdiction of the case on appeal by Logan from the decree of the probate court condemning said property for highway purposes. We do not know whether Logan's landlord, one Cecil W. Hastings, was originally made a party to the proceeding or not. He was not a party on the appeal. Hastings' contract to lease to Logan is shown by the record to be dated January 29, 1944. The lease was to continue for a period of five years with the right to renew upon giving notice as stipulated. Said notice of renewal was given so as to extend the period to January 29, 1954.
An appeal was taken to the circuit court by Logan on December 23, 1950. Thereafter, and before the proceedings came on for trial in the circuit court and on to wit February 20, 1951, Hastings and his wife executed a right-of-way deed to Calhoun County conveying two hundred and fifty feet in width across their land, of which the tract leased to Logan was included. Said conveyance recited that it was subject to Logan's lease. The record shows that after the execution of this conveyance by Hastings and before the proceedings in the circuit court came on for hearing, the county began building its road through the land in question. The record does not show that the county paid into court the amount of compensation and damages which had been assessed in the probate court, nor had executed the bond as authorized by section 18, Title 19; section 44, Title 23, Code, and section 235 of the Constitution. But since the county began constructing the road through said tract without any apparent objection being made, we will assume that the amount of compensation and damages were paid into court and bond executed although we do not know what was the amount of it.
Subsequent to the beginning of the work by the county in the construction of the road and before the cause came on for hearing in the circuit court, but after the appeal had been taken to that court, Logan sold and conveyed his lease to Hastings, his landlord, including the house which he had erected upon the land as provided in the lease contract. A hearing was then had with trial between Logan and Calhoun County. Hastings was not a party to the proceedings in the circuit court either by intervention, section 247, Title 7, Code, or by an amendment to the petition, section 239, Title 7, Code, or by citation on the appeal. The trial was had without a jury by agreement of the parties, resulting in the judgment of February 2, 1952.
*532 The first question we will consider on this appeal is whether Logan is entitled to receive compensation for the injury to the leasehold, or whether the right to it passed to Hastings under the conveyance to him.
We find the rule to be well established "that where property is purchased which is subject to pending condemnation proceedings, under which title has not vested in the condemnor, and the deed conveying such property is silent as to the right to the award money to be paid, such money belongs to, and is recoverable by the vendee". 82 A.L.R. 1063. There are many citations and extracts from cases which support that view, among them is the case of Security Co. v. Rice, 215 Cal. 263, 9 P.2d 817, 818, 82 A.L.R. 1059. The rule is stated in substantially the same language in 29 C.J.S., Eminent Domain, § 202, p. 1117, citing many of the same cases and others. In the case of Security Co. v. Rice, supra, the Supreme Court of California was dealing with a similar question. It was observed that under its statute "in condemnation proceedings the title to the property condemned does not vest in the public until payment has been made as required by the verdict of the jury or judgment of the court and a copy of the final order of condemnation has been filed for record". The court held that after the judgment fixing the amount of the award was made, but before the amount of it was paid into court, the defendant, owner of the premises, conveyed them to another, the purchaser was entitled to the award. But that if after the order of condemnation and payment of the money into court the conveyance is made, the purchaser is not entitled to the award but it remains that of the seller unless the conveyance contains a provision to the contrary. In that case the purchaser was not a party to the proceeding. At the time of the conveyance the proceeding was pending in court but there had been no order of condemnation. The amount of the award was later ascertained and paid into court. Thereupon the conveyance was held to pass to the purchaser the right to receive the award. The ruling was made to hinge upon the fact that the rights of the public could not vest until after the condemnation had been adjudged, the compensation and damages ascertained and paid into court. The original owner who was the party defendant had received the amount thereof from the court. The purchaser sued him for the same in a separate action. The court permitted such suit to be maintained, and awarded the amount of the compensation to the purchaser.
The first provision for the order of condemnation in our statutes is in section 16, Title 19, Code, to the effect that the probate court must make an order of condemnation upon the payment of damages and compensation assessed and reported by the commissioners or the deposit of the same in court. But an appeal is triable de novo in the circuit court. Section 17, Title 19, Code. Pending that appeal the judgment of the probate court is not suspended to enable petitioner to enter upon the land on a deposit in court of the amount of the award and the execution of a bond. Section 18, Title 19; section 44, Title 23, Code; section 235, Constitution. On the appeal the court tries de novo not only the question of damages and compensation but also the right to condemn under section 7, Title 19, Code. City of Birmingham v. Brown, 241 Ala. 203, 2 So. 2d 305; Williams v. Jefferson County, 261 Ala. 76, 72 So. 2d 920. An appeal may be taken to the Supreme Court from the judgment of the circuit court. Section 23, Title 19, Code.
Section 24, Title 19, in harmony with section 16, Title 19, provides that the (final) order of condemnation upon the payment of the sum ascertained and assessed or deposit of it in court shall vest in the applicant the easement proposed to be acquired. Section 16, Title 19, does not provide for the vesting in the applicant of the easement by the deposit of the money and the execution of the bond. Section 24, supra, further provides that if an appeal shall be taken, which means to the Supreme Court, the petitioner shall be entitled to enter upon *533 the land so condemned for the uses and purposes stated in the application upon deposit in court of the amount of the damages and compensation so assessed and the costs of the proceedings for the parties whose land is sought to be condemned, and that such easement shall not vest absolutely in the petitioner until the final determination of the cause and the payment or deposit in court of the damages and compensation as shall be then adjudged.
We think it is apparent from those provisions of the law that the whole proceeding is in fieri and the easement does not vest until there is a final order of condemnation effective upon payment of the sum ascertained and assessed, and its payment together with the costs of the proceeding either into court or to the owner thereof. Alabama Midland Ry. Co. v. Newton, 94 Ala. 443, 10 So. 89; Meginnis v. Nunamaker, 64 Pa. 374; see 82 A.L.R. 1065; Obst v. Covell, 93 Minn. 30, 100 N.W. 650. And if the defendant in a condemnation proceeding, who is the owner of the land sought to be condemned, conveys the same to another before the title vests by reason of the condemnation, as declared in section 24, supra, the purchaser obtains thereby the right to the amount of the award. But that does not militate against the right to have the condemnation ordered and payment into court of the amount of the award.
In the instant case, Hastings acquired Logan's interest prior to the vesting of the easement in the petitioner by virtue of the proceeding, and thereby acquired the right to the compensation which is to be fixed for taking an easement in the leasehold. He is not a party to this suit, but having acquired the land pending the suit is bound by the result thereof. Smith v. Jeffcoat, 196 Ala. 96, 71 So. 717; Trogden v. Winona & St. Peter R. Co., 22 Minn. 198.
In the case of Smith v. Jeffcoat, supra, an easement was acquired after the petition for condemnation was filed. The lessee claimed damages in a separate suit for moving a storehouse which he had leased and which was on the condemned premises. The defendant had succeeded to the right acquired by the condemnor. The court held that the right of the condemnor to remove the storehouse was superior to the right of the lessee to keep it on the premises pending the lease. Pending the condemnation proceeding the lease was held to be subject to that proceeding, so as to confer on the condemnor the right to remove the storehouse. There was no controversy in that case between the lessee and lessor as to the ownership of the award. The valuation was as of the date of the petition. That holding in no manner conflicts with the holding in this case. The statement in the opinion that a tenant acquiring a lease after the commencement of the condemnation proceeding was entitled to no compensation was wholly foreign to any controversy in the case, not material to the issues then existing or which could be added, and evidently not carefully considered and did not refer to the time of taking as important. A reference to Lewis on Eminent Domain, there made, shows that the statement is not there supported. But it was stated that such a person took subject to the right of condemnation then pending. We fully recognize that principle. The two cases cited in the opinion supra do not support that feature of it.
It is immaterial to the county whether Logan or Hastings is entitled to the amount of the award. There should not be rendered a personal judgment in this proceeding against the county in favor of either Logan or Hastings. The only judgment which should be rendered, assuming that the petition should be granted, as it was, is an order of condemnation effective upon the payment of the sum ascertained and assessed by the court (since a jury trial was waived). Alabama Midland R. Co. v. Newton, 94 Ala. 443, 10 So. 89; Mobile & Ohio R. Co. v. Hester, 122 Ala. 249, 25 So. 220, 222; State ex rel. City of Mobile v. Williams, 222 Ala. 274, 132 So. 321.
The judgment should be reversed and the cause remanded for further consideration *534 and decision on the basis of this opinion.
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.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON, STAKELY, GOODWYN and MERRILL, JJ., concur.
LAWSON, J., concurs in the reversal on the ground that no personal judgment should be rendered, but dissents from the holding that Logan is not entitled to the award on account of the disposal of his interest before the final judgment.
MAYFIELD, J., not sitting for the reason indicated by him.
MAYFIELD, Justice.
This cause has been subjected to close scrutiny and given much study prior to my investiture as a member of this Court. A great deal of time has been devoted to this cause by the full Court. Not having had the benefit of these discussions I abstain from participating in a consideration of this cause.
PER CURIAM.
The appeal requires a further discussion of the principles treated in the foregoing opinion. Supplementing the facts stated in that opinion, the following are material.
The lease from Hastings to Logan embraced five or six acres of land in a rural wooded section, not suitable for cultivation and not used for any purpose, nor close to a dwelling or other houses. The lease extended to January 29, 1954, with no right to a further extension. (The final judgment was rendered February 2, 1952.) The lease provided in substance that if a proposed roadway is built through the premises, and the lessee (Logan) considers that it would cause the property to be unsuitable for the purpose for which it is to be used, he would have the right to terminate the lease. While it is not expressly stated in the lease, Logan intended to and did construct a cement block house on the tract near the road: the house to be used as a recreational lodge or retreat. The lease further provided that upon its termination, the lessor should have a right to purchase the improvements made by Logan at a price to be agreed on, otherwise the lessee would have a right to remove such improvements.
In 1950, the exact date not given, the county started condemnation proceedings in the probate court. The date of the probate court's judgment is not given. An appeal to the circuit court was taken on December 23 (26), 1950. On February 20, 1951, Hastings (the lessor) executed a right of way deed to lands described, which included the five or six acres under the lease to Logan and was made subject to the lease. There is an agreement that the proceedings had in the probate court be omitted from the transcript on this appeal, but that they were regular and that the circuit court acquired jurisdiction by an appeal to it. The transcript does not show what the amount of the award was, nor that on the appeal to the circuit court by Logan the county paid said amount into court and executed the bond authorized by law, section 18, Title 19, Code.
In May or June 1951, before the cause went to trial in the circuit court on September 28, 1951, Logan elected to terminate the lease under the clause referred to above, and agreed with Hastings for him to buy the improvements he had made for a consideration of $1,500 and a return to him of $35, the amount stipulated in the lease as the annual rental for the tract. The cause then came on for hearing in the circuit court before the judge without a jury, in which the county was the petitioner *535 and Logan was the sole defendant. Hastings was not a party. Judgment of condemnation was rendered on February 2, 1952 by the circuit court, as heretofore stated. The county was in possession of a conveyance by Hastings and had no controversy with him at the time of the condemnation judgment. The record does not show, as stated above, that the county on the appeal by Logan to the circuit court deposited the amount of the award and executed the bond as authorized by section 18 et seq., Title 19, Code, nor that the county entered upon the land to reconstruct and relocate the road before Logan terminated the lease. We assumed in the original opinion that the county did make the deposit and execute the bond and took possession, and that that was done after the appeal to the circuit court by Logan on December 23, 1950, and prior to the termination of the lease by Logan in May or June 1951. But there is nothing in the record to support an inference as to the time when this was done or whether it was done at all. We could just as well infer that the county took possession after Logan terminated the lease, and at a time when he had no interest in the land.
In the former opinion we applied the principle that if after a condemnation proceeding is begun, the alleged owner, the sole defendant in that proceeding, sells and conveys his interest before the final judgment of condemnation without reserving the right to the compensation to be awarded, the purchaser owning the land at the time of the final condemnation, which is the time of the taking, is entitled to the amount of the award. But upon more careful study of the question, we have concluded that such theory does not apply here for the reason that Logan, the sole defendant to the petition, owned only a leasehold interest and it is therefore only that interest which could be condemned, and that after the appeal was taken to the circuit court, where the cause must be tried de novo, and before the trial was had in that court, the leasehold interest was terminated by the voluntary act of the defendant. Under those circumstances, when the condemnation proceeding came on for hearing there was nothing on which it could operate. There was then no leasehold interest. It simply had merged into the reversion, which was not before the court. City of St. Louis v. Rossi, 333 Mo. 1092, 64 S.W.2d 600 (syl. 22-23); United States v. 26, 699 Acres of Land, etc., 5 Cir., 174 F.2d 367; United States v. Petty Motor Co., 327 U.S. 372, 66 S. Ct. 596, 90 L. Ed. 729.
If the foregoing correctly states the facts the subject matter of the petition became moot and the petition was subject to be dismissed. If before the lease was terminated petitioner paid into the probate court the amount of the award, and executed the bond on appeal to the circuit court and entered upon the land, and thereby damaged the value of the leasehold, the bond conditioned as required by law "to pay such damages as the property owners may sustain", section 18, Title 19, Code, would protect defendant and a suit on the bond would lie, although the lease terminated before the petition was heard. But if before the lease was terminated, petitioner, without paying into court the amount of the award assessed in the probate court and without executing the bond authorized by the statute, supra, entered upon the land and thereby depreciated the value of the leasehold interest of the defendant and without defendant's consent, it would be without legal authority and an action at law would lie by the defendant in a separate suit against the county for such wrongful act. Cf. Hunter v. City of Mobile, 244 Ala. 318, 13 So. 2d 656. But such claim for damages, whether or not bond was given, would not have the effect of recreating an interest which had terminated in the land and make it subject to be condemned. Without something to condemn the amount of the defendant's damages by reason of such entry could not be assessed in this proceeding. But such claim would not pass out of the defendant by virtue of the termination of his lease. Of course if the lease terminated before the county entered *536 upon the land the defendant would have no cause to complain.
The judgment of the trial court was properly reversed and the cause remanded, but the trial should be conducted in accordance with this modified opinion.
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.
Opinion modified and application for rehearing overruled.
LIVINGSTON, C. J., and SIMPSON, STAKELY, GOODWYN and MERRILL, JJ., concur.
LAWSON, J., dissents.
MAYFIELD, J., not having participated in the original consideration did not participate on the rehearing. | February 24, 1955 |
29bc6efb-6d99-4bae-a41f-f99182a9cf15 | Smith v. Bank of Blountsville | 77 So. 2d 357 | N/A | Alabama | Alabama Supreme Court | 77 So. 2d 357 (1955)
Mable SMITH
v.
BANK OF BLOUNTSVILLE.
6 Div. 574.
Supreme Court of Alabama.
January 13, 1955.
*358 R. G. Kelton, Oneonta, for appellant.
Bland & Bland, Cullman, for appellee.
LIVINGSTON, Chief Justice.
This proceeding was instituted by the appellee, Bank of Blountsville, a Corporation, in the Circuit Court of Blount County, Alabama, in Equity, to foreclose a real estate mortgage, a copy of which was attached to the original bill as an exhibit. The mortgage was executed by Eugene Smith and his wife, Mable Smith, both of whom were made respondents in the cause. The evidence was taken orally before the trial court and resulted in the decree granting the relief prayed for in the bill of complaint. The final decree bears date of October 28, 1952.
The respondents, Eugene Smith and his wife, Mable Smith, filed what is denominated a motion to set aside the decree. (The proper procedure is an application for rehearing.) The motion, or application for rehearing, was overruled by the trial court on November 24, 1952. Thereafter, Mable Smith, one of the respondents below, made affidavit that she was a married woman, and owned an undivided one-half interest in the lands involved, that she was unable to make a bond for costs, and that she desired to appeal this cause to the Supreme Court of Alabama. Title 7, § 799, Code 1940. She is the only appellant of record here.
No testimony is incorporated in the transcript before us.
Appellant appears to have attempted to make a statement of the evidence under Title 7, § 827(3) of the 1940 Code of Alabama. However, the record plainly reveals that appellant did not comply with the provisions of said § 827(3), supra. Moreover, § 827(3) applies to civil cases at law and not to equity cases. Equity Rule 56, Code 1940, Tit. 7 Appendix, is the applicable rule under the circumstances here involved.
Appellant assigns four alleged errors, which are as follows:
It was said in Thomas v. Thomas, 246 Ala. 484, 21 So. 2d 321, 322:
For aught appearing here, the trial court acted in accordance with the law in the absence of a showing to the contrary.
The first three assignments of error are obviously without merit for the simple reason that the evidence is not before this court. See authorities, supra.
The fourth assignment of error is equally unavailing to the appellant.
The case was one in equity, and while respondents' motion is referred to as a motion for a new trial, it is more properly designated as an application for rehearing under Chancery Court Rule 62, Tit. 7, Code 1940, p. 1097 (old Chancery Rule 81). Ex parte Upchurch, 215 Ala. 610, 112 So. 202; Johnson v. Johnson, 215 Ala. 434, 111 So. 7. See also Rudolph v. Rudolph, 251 Ala. 317, 36 So. 2d 902, and cases therein cited.
Rehearing, in equity, rests in the sound discretion of the trial court, and when the discretion is exercised, his discretion is not revisable, either on appeal or by mandamus. Ex parte Upchurch, supra.
We find no error in the record and the decree is due to be, and is, affirmed.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur. | January 13, 1955 |
350cde4e-f481-4148-9673-6f81cbdadd97 | Morgan Plan Company v. Bruce | 78 So. 2d 650 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 650 (1955)
MORGAN PLAN COMPANY, Inc.
v.
Eunice H. BRUCE.
1 Div. 558.
Supreme Court of Alabama.
March 10, 1955.
*652 Caffey, Gallalee & Caffey, Mobile, for appellant.
Harry Seale and Lyman F. Holland, Mobile, for appellee.
LAWSON, Justice.
The appeal is from a decree of the circuit court of Mobile County, in equity, overruling appellant's demurrer addressed to the bill as a whole and also overruling its demurrers properly addressed to the three aspects which counsel for appellant construed the bill to contain.
We have often said that on appeal from a decree overruling demurrer to a *653 bill in equity, we consider only those grounds of demurrer adequately argued in brief filed in this court on behalf of the appellant. The grounds of demurrer not so argued are treated as waived. Groover v. Darden, 259 Ala. 607, 68 So. 2d 28, and cases cited.
The grounds of demurrer challenging the equity of the bill as a whole are not argued in appellant's brief, but before we can treat the grounds which are argued we must determine the equitable principle or principles upon which complainant relies.
The bill, to say the least of it, in its statements as to the equity or equities upon which complainant relies for relief, is not as clear as good pleading would seem to suggest or require.
We understand the bill to show that Jeff Harvey and Sophia Harvey at one time held the legal title to the suit property, which is described as: "Lots 27, 28, 29, 30, 31 and 32 of the Sorensen Sub-Division according to the map thereof recorded in Deed Book 144 N.S., page 117, Probate Records of Mobile County, Alabama"; that sometime before October 20, 1950, the Harveys mortgaged the suit property to one William E. Powell to secure an indebtedness of $864 and that on another occasion prior to October 20, 1950, they executed a mortgage covering the suit property to the respondent to secure an indebtedness in an amount not disclosed. Neither of the aforementioned mortgages is set out in the bill or made an exhibit thereto.
The bill further shows that on October 20, 1950, Jeff and Sophia Harvey executed a warranty deed covering the suit property to the respondent, Morgan Plan Company, Inc. The deed is not set out in the bill or made an exhibit thereto. We construe the bill to show that the said deed is on its face an absolute conveyance wherein no effort was made to reserve to the grantors the right to redeem or repurchase the property conveyed. The consideration recited in the deed, according to the averments of the bill, is (1) the assumption by respondent of the Harveys' indebtedness to William E. Powell; (2) the payment of the debt owed by the Harveys to respondent and the satisfaction of the mortgage securing such indebtedness; and (3) the payment by respondent of the sum of $100 to the Harveys.
Complainant avers that she is a daughter of Jeff Harvey, who died intestate sometime after October 20, 1950, and that she is the owner of an undivided interest in the suit property "as a child and heir of Jeff Harvey." She does not claim to be the daughter of Sophia Harvey.
By this proceeding complainant seeks to avoid the effect of the deed of October 20, 1950, and thereby inherit an interest in the suit property. The special prayer for relief reads: "* * * that upon a hearing of this action a decree be rendered declaring the above described deed to be a deed given in lieu of foreclosure with full statutory right of the Complainant as an heir of Jeff Harvey to redeem and that a redemption be effected by decree of this court in a manner provided by law * * *." (Emphasis supplied.)
If complainant has stated a case for relief, it is in paragraph 4 of the bill, which reads:
It is established by our cases that a mortgagor and mortgagee may contract with each other that a sale and conveyance of the mortgaged property to the mortgagee *654 shall stand for a more formal foreclosure, with right of the mortgagor to redeem or repurchase according to the terms as stipulated and agreed upon. Stoutz v. Rouse, 84 Ala. 309, 4 So. 170; Peagler v. Stabler, 91 Ala. 308, 9 So. 157; Farrow v. Sturdivant Bank, 184 Ala. 208, 63 So. 973; Johnson v. Maness, 232 Ala. 411, 168 So. 452; Id., 241 Ala. 157, 1 So. 2d 655; Dean v. Griffith, 257 Ala. 67, 57 So. 2d 545.
Such an agreement cannot be established by parol evidence, but it is not necessary for the pleader to allege in his bill that the agreement was in writing. Johnson v. Maness, 232 Ala. 411, 168 So. 452; Dean v. Griffith, supra.
If, as in the case of Stoutz v. Rouse, supra, the agreement is that the right to redeem shall be according to the terms and conditions set up by the statute for the statutory right of redemption, it thereby reads into the contract those terms and conditions. But if it is not so expressed, the terms and conditions set up by the statute are not included. It is a contractual right sought to be enforced, not a statutory right. Dean v. Griffith, supra.
The averments of this bill do not bring complainant's case within the principle stated above. There is an entire absence of averment that there was any kind of agreement whereby Jeff and Sophia Harvey would have the right to redeem or repurchase the property after the execution of the deed of October 20, 1950, and as held in Dean v. Griffith, supra, there is no statutory right to be enforced by the mortgagor where the mortgagor conveys the mortgaged property to the mortgagee. The same would be true of an heir at law of the mortgagor, but as to the right of a junior mortgagee under such circumstances see Stewart v. Stephenson, 243 Ala. 329, 10 So. 2d 159; A. M. Robinson Co. v. Anniston Land Co., 217 Ala. 648, 117 So. 29; Grace v. Montgomery, 207 Ala. 188, 92 So. 412.
It has been settled since the early decisions of this court that equity has jurisdiction to entertain a bill to have a deed declared a mortgage and to permit the grantor-mortgagor to redeem the property in an exercise of the equity of redemption. Johnson v. Maness, 232 Ala. 411, 168 So. 452; Cousins v. Crawford, 258 Ala. 590, 63 So. 2d 670, and cases there cited. But the allegations of the bill here under consideration are not sufficient to give the bill equity as one to have the deed of October 20, 1950, declared to be a mortgage. There is an entire absence of affirmative averment that there was, when the bill was filed, a debt due from Jeff Harvey and Sophia Harvey and that the said deed of October 20, 1950, was given and intended by both parties as a security for such debt. Johnson v. Maness, 232 Ala. 411, 168 So. 452; Cousins v. Crawford, supra, and cases cited.
Courts of equity look with a jealous and distrustful eye upon a transaction whereby the mortgagee purchases the mortgagor's equity of redemption and such a transaction will not be sustained where the consideration for the sale is grossly inadequate. Shaw v. Lacy, 199 Ala. 450, 74 So. 933, and cases cited. Where it is made to appear that the conveyance of the equity of redemption is for a consideration grossly inadequate, then a court of equity will cancel the conveyance and permit the grantor-mortgagor to exercise his equity of redemption. Johnson v. Maness, 241 Ala. 157, 1 So. 2d 655. It is not necessary in a bill seeking to invoke this principle to aver that the grossly inadequate consideration resulted from fraud, undue influence or unconscionable advantage exercised by the mortgagee over the mortgagor. Hall v. Hall, 241 Ala. 397, 2 So. 2d 908. We did not intend to hold to the contrary in the case of Johnson v. Maness, 232 Ala. 411, 168 So. 452, although there is language in the opinion in that case which may be subject to that construction. There was no averment in the bill filed in that case to the effect that the consideration was grossly inadequate.
We are of the opinion that the averments of the bill bring complainant's case within the principle recognized in Shaw v. Lacy, *655 supra, and Pearsall v. Hyde, 189 Ala. 86, 66 So. 665, among other cases.
As heretofore shown, the bill alleges that complainant is the owner of an undivided interest in the suit property "as a child and heir of Jeff Harvey." This is a distinct allegation of heirship and the word "child," in the absence of any facts or circumstances indicating a different interpretation, carries with it the meaning of legitimate offspring. Tillery v. Tillery, 155 Ala. 495, 46 So. 582.
In Butts v. Broughton, 72 Ala. 294, it was observed: "A bill to redeem a mortgage may be filed by anyone who owns the mortgagor's equity of redemption, or any subsisting interest in it, by privity of title with him, whether by purchase, inheritance, or otherwise."
As shown above, the bill alleges that Jeff Harvey died intestate. Hence, at his death any right which he had to exercise the equity or redemption passed to his heirs at law. Marsh v. Elba Bank & Trust Co., 221 Ala. 683, 130 So. 323.
The bill must be construed most strongly against complainant and when so construed it shows that Jeff Harvey was survived by heirs at law other than complainant, for it is alleged in the bill that complainant owns an undivided interest in the suit property. Complainant's tenants in common or joint owners are not named in the bill nor are they made parties thereto.
This court has declared the existence of the equitable right of one joint owner or tenant in common to redeem before foreclosure without making the other joint owners or tenants in common parties to the suit. Bain v. Howell, 247 Ala. 514, 25 So. 2d 167; Phillips v. Harvey, 239 Ala. 605, 196 So. 498; Bailey v. Jefferson, 186 Ala. 214, 64 So. 955; McQueen v. Whetstone, 127 Ala. 417, 30 So. 548.
Appellant argues that the rule of the cases just cited has no application to the matter of instant concern because here the effort to redeem comes after the execution of a deed alleged to have been given in lieu of foreclosure. We cannot agree. The bill avers the invalidity of the so-called foreclosure deed and if the proof sustains that averment there has been no valid foreclosure cutting off the equity of redemption.
Of course, any redemption by complainant would operate for the benefit of the other heirs at law, but only upon a proper contribution to the redemption fund made or proffered within a reasonable time. Bain v. Howell, supra.
The bill is silent as to whether an administrator of Jeff Harvey's estate has been appointed. However, an administrator is not a necessary party to a bill of this kind. See Cornelius v. Bishop, 205 Ala. 503, 88 So. 592.
The grounds of demurrer taking the point that the complaint fails to show that complainant has such right, title or interest in the suit property as to entitle her to maintain the suit were overruled without error.
It is insisted that Sophia Harvey is a necessary party and that the grounds of demurrer taking that point should have been sustained.
It is argued that Sophia Harvey is a necessary party to this proceeding for two reasons: "First, she is the widow of a man who owned real property and as such has certain dower, homestead and other rights. Second, she is a co-tenant in the property as well as a co-obligor of the debt which must be paid in order to effect redemption."
With respect to the second contention, we think the averments of the bill are subject to the construction that Sophia Harvey signed the mortgage to respondent and the deed alleged to have been executed in lieu of a mortgage foreclosure as a co-owner of the land and a co-debtor, the contrary not being alleged in the bill and the mortgage and deed not being made exhibits thereto. But for those reasons she is not *656 a necessary party to the bill. Phillips v. Harvey, supra.
From aught that appears from the averments of the instant bill, Sophia Harvey has not indicated that she is in accord with the position taken by complainant relative to the invalidity of the deed of October 20, 1950. Certain it is that the bill must be construed as showing no effort on the part of Sophia Harvey to have dower and homestead assigned to her or to have other property assigned to her in lieu of her dower and homestead exemptions. Likewise, it cannot be said that the instant bill shows that she has waived or relinquished any such rights that she might have.
If this bill was one wherein the land was sought to be sold for division among tenants in common, then we think Sophia Harvey would be a necessary party. McAllister v. McAllister, 189 Ala. 220, 66 So. 462. But that is not the purpose of this bill.
We have held that in a bill to redeem a mortgage filed by the heirs of the mortgagor, a widow who claims a homestead in the premises may be joined with the heirs as a party complainant. Butts v. Broughton, 72 Ala. 294. However, we do not think that the widow is a necessary party any more so than are the tenants in common who, as we have shown above, need not be joined. See Long v. Monroe County Bank, 226 Ala. 26, 145 So. 471.
We hold, therefore, that the trial court did not err in overruling the grounds of demurrer taking the point that Sophia Harvey was a necessary party to the bill.
Other grounds of demurrer argued in brief are to the effect that the bill is lacking in averments showing legal title to the suit property to be in respondent at the time of the filing of the suit. We are of the opinion that those grounds of demurrer were not well taken and were properly overruled. The bill alleges the execution of the deed to the respondent on October 20, 1950, and further alleges that "at the time of the filing of this complaint there was not on record in the office of the Judge of the Probate Court of Mobile County, Alabama, any instrument by which the Respondent had conveyed its interest to any other person; and there had been no change of possession of the property to put the Complainant on notice of any transfer of the property by the Respondent to some other person." We are of the opinion that such averments are sufficient to show title in the suit property to have been in the respondent at the time the suit was filed.
The decree of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | March 10, 1955 |
a1ae880b-5141-4911-bacc-f01010970b5a | Smith v. State | 80 So. 2d 307 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 307 (1955)
Lenward SMITH
v.
STATE.
5 Div. 599.
Supreme Court of Alabama.
February 24, 1955.
Rehearing Denied May 19, 1955.
Walter J. Merrill, Anniston, and H. M. Britton, Wedowee, for petitioner.
Robert Straub, Asst. Atty. Gen., and Owen Bridges, Montgomery, of counsel, opposed.
STAKELY, Justice.
We have considered the exception to the oral charge of the court as set out in the opinion of the Court of Appeals and have concluded that the Court of Appeals reached a correct conclusion with reference thereto. As we understand the opinion of the Court of Appeals the State had one factual theory while the defendant had another factual theory. Solution of these different theories made a question for the jury. According to the theory of the prosecution the defendant was under the duty to retreat in accordance with the oral charge of the court. Under the factual theory of the defense the defendant was not under the duty to retreat and exception to the oral charge was made because of the failure of the court to charge on the law as it is claimed to relate to the theory of the defense.
In the instant case it is sufficient to say that when the oral charge is not as full and instructive as defendant's counsel desired his remedy is to request written charges which elucidate and explain the *308 defendant's theory of the case. We quote briefly from two cases which state the principle here involved.
In the case of Williams v. State, 147 Ala. 10, 41 So. 992, 997, this court said:
See also Brock v. State, 235 Ala 304, 178 So. 548; Alabama Jury Instructions by Walter B. Jones, Vol. 1, p. 108.
It appears that the defendant requested written charges which explained and elucidated his theory of his defense and the court gave these charges which shows that the procedure outlined in the foregoing authorities was complied with.
It results that the judgment of the Court of Appeals is due to be affirmed.
Affirmed.
All the Justices concur. | February 24, 1955 |
fc515af4-9bdc-4631-ad2e-a64e990c4952 | Water Works Board of City of Birmingham v. Stephens | 78 So. 2d 267 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 267 (1955)
WATER WORKS BOARD OF CITY OF BIRMINGHAM
v.
G. C. STEPHENS.
6 Div. 800.
Supreme Court of Alabama.
February 24, 1955.
*268 Cabaniss & Johnston, K. E. Cooper and J. Asa Rountree, III, Birmingham, for appellant.
Smyer, Smyer, White & Reid, Birmingham, for appellee.
PER CURIAM.
This is a proceeding begun by a petition to the Board of Adjustment of the City of Birmingham in respect to its zoning ordinance: the petitioner being the Water Works Board of the City of Birmingham. It was agreed that petitioner is a "public service corporation and a municipal utility as contemplated by the General City Code of Birmingham," and therefore an agency of the city. Jackson v. Hubbard, 256 Ala. 114, 53 So. 2d 723. We presume, therefore, that it was set up under authority of section 394, Title 37, Code of 1940, and that the city has conveyed to it the water system which supplies the water needs of the city including the area here in question.
The water works board acquired three pieces of property, on which there are three dwelling houses, in north Birmingham at a cost of $25,500. The houses are to be removed and the board proposes to erect a water tank at a cost of $300,000, the tank to hold 6,300,000 gallons of water. The tank is set back twenty-five feet from the 18th Street front and twenty-two feet from 18th Avenue. The lot fronts one hundred and fifty-two feet on 18th Street and one hundred and forty feet on 13th Avenue north. The area is zoned "B" residence in the comprehensive zoning district ordinance of the city. Section 1602 of the general city code is a part of that ordinance. In it a "B" residence district may be used for the purposes specified for "A" residence districts (one family dwellings, etc.) and also multiple dwellings and other specified uses. It does not include such a water tank as now proposed, but includes an electric substation without rotary machinery, or gas regulating station. Sections 1609 to 1617 and 1626 of the city code provide for exceptions to area regulations. They are special exceptions dependent upon certain prescribed details.
Sections 1618 and 1619 of said code have reference to nonconforming uses, such as where on August 4, 1926 (when the ordinance was adopted), it was used in a manner not conforming to the uses prescribed by the ordinance. Sections 1620, 1621 and 1623 have reference to a change from one nonconforming use to another nonconforming use. Section 1626 contains provisions for other exceptions. There seems to be no area zoned expressly for the construction or use of a water tank.
Sections 1642, et seq. provide for the creation, power and duties of a board of adjustment, and follow substantially the requirements of section 781, Title 37, Code of 1940 (applicable generally), and section 717, Title 62, Code of 1940, applicable to Birmingham.
The city ordinance, supra, contains various detail provisions, among them is section 1643 with reference to the boardin the main not here material, but providing in (e) that the board shall modify the strict application of the provisions of this chapter (the zoning ordinance) in various enumerated *269 situations, including No. 10, which permits an exception, though not so termed, "for the erection or use of a structure in any district by a public service corporation when such erection or use is reasonably necessary for the service of the public".
Section 717, Title 62, Code, applicable to Birmingham (like the general statute, section 781, Title 37, Code, prescribing the power of the board of adjustment), provides that it shall have the following powers: (1) "To hear and decide appeals (to it from the ruling of the administrative officers in the enforcement or application of the ordinancesection 1643, city code) where it is alleged there is error (etc., not here applicable)." (2) "To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under said ordinance". (3) "To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinances shall be observed and substantial justice done". Section 719, Title 62, Code, (the same as section 783, Title 37, Code), provides for an appeal to the circuit court from the ruling of the board of adjustment, and on appeal the cause shall be tried de novo.
The Water Works Board of Birmingham made application to the board of adjustment for a modification of the zoning ordinance to permit the water works board to construct a water tank as described on the lot mentioned above.
On February 11, 1954, the board of adjustment, after notice and hearing upon the intervention and objection by the property owners, made a finding and order. The finding included the following: "This board is of the opinion that a modification of the strict application of said zoning ordinance pertaining to said property will not tend to impair the health, safety, convenience or comfort of the public, including that portion of the public occupying the property immediately contiguous to said lot, and that the use of said lots as proposed is reasonably necessary for the service of the public". The order then proceeded to modify the strict application of the zoning ordinance so as to permit the Water Works Board of the City of Birmingham to erect on said property a water tank such as described. Thereupon an appeal to the circuit court was taken by one of the property owners. A hearing was had on that appeal and trial de novo came on in court, without a jury. Evidence was taken by both parties and on August 17, 1954, the trial judge made a finding and rendered judgment, from which we quote:
An appeal to this Court was taken by the water works board.
On this appeal we will take the facts as found by the presiding judge. This Court has held that the power of the board of adjustment is derived from statutory law which takes precedence over the municipal *271 ordinances. Such statutory power, it is said, may not be circumscribed, altered or extended by the municipal governing body. Nelson v. Donaldson, 255 Ala. 76, 50 So. 2d 244, 251. That case interpreted the statute, section 781, Title 37, Code, with respect to the clause which we have numbered (3), supra, as meaning the following:
The cases of Fulford v. Board of Zoning Adjustment of City of Dothan, 256 Ala. 336, 54 So. 2d 580, and Moore v. Pettus, 260 Ala. 616, 71 So. 2d 814, do not involve the provisions of section 1643(e), (10), supra, applicable to a public service corporation.
Section 1643(e), (10), of the general city code is a part of the ordinance itself and is a feature of the comprehensive zoning scheme. Section 1643(e), (2), was treated as operative but not to justify the relief sought in White v. Board of Adjustment of City of Birmingham, 245 Ala. 48, 50, 15 So. 2d 585. It was said in that case that one of the principal purposes of the board of adjustment is to apply the discretion of experts to exceptional instances where permits are desired but do not strictly conform to the regulations provided in the ordinance.
We are not here dealing with the power of the board to authorize variances under the authority of clause No. 3 of section 717, supra, but an exception authorized by section 1643(e), (10), supra, provided for in clause No. 2 of that statute, to be available for the erection of certain structures upon which such board is required by the city ordinance to pass and to grant it if the board finds the structure is reasonably necessary for the service of the public. Yokley on Zoning Law and Practice, section 134, page 324.
The districts are zoned by the city with that power of the board engrafted on them. We think the board of adjustment has the power in its discretion under clause No. 2 of section 717, Title 62, Code, in connection with section 1643(e), (10), of the city code, to allow a modification of the strict application of the restrictions imposed by the zoning ordinance as an exception from the uses of this area as a "B" residence district so as to permit the erection of the water tank in question by the public service corporation when the board of adjustment finds that such structure and use are reasonably necessary for the service of the public. The board of adjustment, as such a body of experts, found that to be the situation and modified the strict application of the ordinance by allowing the exception sought. On appeal the same question was before the court.
We do not understand that the court disagreed with the board in finding that the erection and use of the water tank are reasonably necessary for the service of the public, but reached the conclusion that to grant the permit was in effect a rezoning of the property.
*272 We think this would not be a rezoning but that the city zoned it so as to be subject to the power expressed in section 1643(e) of the city code, and we agree with the conclusion from the finding of facts that it is reasonably necessary for that service to the public. We wish to add that the water works board has no inherent selfish interest in the proposal when judged by the act authorizing it. It is apparently merely trying to perform a public duty and give needed service to the water customers of the city, with no net profit to be used for other purposes. It now uses the streets in the area for its water pipes, as shown by the maps. The effect of the instant proposal is to render better service and supply additional needs. The water works board had the whole situation surveyed by competent disinterested engineers. This proposal was their recommendation. An alternative was to construct another tunnel through Red Mountain, and to lay additional pipes through which to pump the water with sufficient pressure. Other suitable sites were not found to be free from the same objection as this but they were found by the court not to be as advantageous as the one selected. The parties agreed that depreciation in property values were immaterial, yet the trial court emphasized such depreciation drawn from his own observation.
The authorities hold that when a city is engaged in the water service business, it being proprietary in nature, it is bound by its own zoning regulations, but not so when it is engaged in a governmental function. Alabama Alcoholic Beverage Control Board v. City of Birmingham, 253 Ala. 402(9), 44 So. 2d 593; Jefferson County v. City of Birmingham, 256 Ala. 436(4), 55 So. 2d 196; 62 C.J.S., Municipal Corporations, § 226(16) page 484, notes 59 to 62; Taber v. City of Benton Harbor, 280 Mich. 522, 274 N.W. 324; Sunny Slope Water Co. v. City of Pasadena, 1 Cal. 2d 87, 33 P.2d 672.
This Court has concurred in the theory that when a city is engaged in the business of supplying for compensation water service to the people, within its lawful power, it is engaged in a proprietary business. City of Birmingham v. Brock, 242 Ala. 382, 6 So. 2d 499; City of Birmingham v. Lake, 243 Ala. 367, 10 So. 2d 24.
The city water works board is a corporation organized by law to perform that undertaking as an agency of the city. Section 394, Title 37, Code; Jackson v. Hubbard, 256 Ala. 114, 53 So. 2d 723. Therefore, the water works board is to be treated in the same light as the city itself in respect to the instant question. That is, that since the city would be engaged in a proprietary business in owning and operating the water system it cannot violate its own zoning ordinance. Therefore, the water works board cannot do so. We have so stated to eliminate that question from the problem.
It results from the foregoing that the judgment of the circuit court should be reversed and one here rendered by which the strict application of the provisions of the zoning ordinances of the City of Birmingham be modified so as to permit the water works board of said city to erect and use the proposed water tank at the location described in this proceeding, and that a permit for its construction, maintenance and operation should be issued by the board of adjustment or other appropriate officer of the City of Birmingham.
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.
Reversed and rendered.
All the Justices concur. | February 24, 1955 |
01d38dc3-35da-41b0-aaf2-08eb64b4d98e | In Re Opinion of the Justices | 81 So. 2d 277 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 277 (1955)
In re OPINION OF THE JUSTICES.
No. 138.
Supreme Court of Alabama.
March 18, 1955.
*279 Questions were propounded by the House of Representatives to the Justices of the Supreme Court, under Code 1940, Tit. 13, § 34, relating to the constitutionality of House Bill No. 39, levying a privilege license tax for Marion County upon electric or hydro-electric utilities operating in said county.
Questions answered.
Resolved, That the Justices of the Supreme Court, or a majority of them, are respectfully requested to give the House their written opinions on the following important constitutional questions which have arisen concerning the constitutionality of H. 39, a bill pending in the Legislature. H. 39 is in words and figures as follows:
Question 1. Is the subject of H. 39 single and clearly expressed in the title as required by Section 45 of the Constitution?
Question 2. Are all the provisions of H. 39 germane, cognate, and referable to the subject expressed in the title as required by Section 45 of the Constitution?
Question 3. Do the provisions of Section 4 of H. 39 amending, extending, or conferring the provisions of the general law by reference contravene Section 45 of the Constitution?
Question 4. If it is duly enacted, would H. 39 violate Section 217 of the Constitution?
Question 5. If H. 39 is duly enacted, would the provisions of Section 6 thereof make the act violative of Section 104(25) of the Constitution?
Question 6. If duly enacted, would H. 39 be violative of Section 105 of the Constitution, considering the fact that the subject matter of the act is prohibited by the provisions of the general law contained in Section 188 of Title 51, Code of Alabama (1940)?
Question 7. Would the provisions of Section 6 of H. 39 if duly enacted, render the act discriminatory and repugnant to the *281 Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States?
Resolved further, that the Clerk of the House be directed to transmit, forthwith, seven copies of this resolution to the Clerk of the Supreme Court.
Dear Sirs:
We acknowledge receipt of your communication of March 11, 1955, enclosing copy of House Resolution No. 11, wherein you request our opinion as to whether House Bill No. 39 is violative of certain provisions of the Constitution of this state and the Constitution of the United States.
At the outset, we would like to make it clear that the views herein expressed are those of the individual justices of the court, made without the benefit of comprehensive briefs or oral argument, and such views are not to be considered as binding on the court.
Questions 1 and 2 relate to that part of § 45 of the Constitution of this state which ordains that "each law shall contain but one subject, which shall be clearly expressed in its title," with certain exceptions of which H. 39 is not one. The purpose of the quoted provision was well stated in Ballentyne v. Wickersham, 75 Ala. 533, and has been so frequently restated and is so well understood as not to require detailed treatment here. It is sufficient to say that the title of an act need not be an index to it nor need it catalogue all powers intended to be bestowed. When the subject is expressed in the title in general terms, everything which is necessary to make a complete enactment in regard to it, or which results as a complement of the thought contained in the general expression, is included in and authorized by it. Kendrick v. Boyd, 255 Ala. 53, 51 So. 2d 694; Dearborn v. Johnson, 234 Ala. 84, 173 So. 864.
So viewed, we think the subject of H. 39 is clearly expressed in its title and that its provisions are germane, cognate and referable to the subject expressed in the title. Therefore, we answer Questions 1 and 2 in the affirmative.
Question 3 apparently is asked because of that part of § 45 of the Constitution which reads: "* * * and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length." We have held that the quoted proviso does not apply to acts which are independent and complete within themselves, although they adopt by reference merely the provisions of other laws on the same subject. Newton v. City of Tuscaloosa, 251 Ala. 209, 36 So. 2d 487, and cases cited. A new law may specify the procedure to be followed by adopting by reference the regulations of an existing statute. Hutto v. Walker County, 185 Ala. 505, 64 So. 313. Our answer to Question 3 is, No.
H. 39 is unaffected by § 217 of the Constitution of this state providing that "the property of private corporations, associations, and individuals of this state shall forever be taxed at the same rate; * *." This provision relates only to direct property taxes. Newton v. City of Tuscaloosa, supra; Nachman v. State Tax Comm., 233 Ala. 628, 173 So. 25; Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So. 627. We answer Question 4 in the negative.
Section 104, subsec. (25), of our State Constitution is made the basis of Question 5. In substance, this constitutional provision says that the legislature shall not pass a special, private, or local law exempting property from taxation or from levy or sale. It is our opinion that subsec. (25) has no application to a law which levies a tax but which also provides for certain exemptions from the tax so levied. We answer your Question 5 in the negative.
We come now to a consideration of Question 6. Before writing to the specific question, we would like to call attention to certain general principles relating to the *282 authority of the legislature over taxation, as stated in the case of Newton v. City of Tuscaloosa, supra. We quote:
Section 105 of the Constitution of this state reads:
*283 We have said that § 105 does not forbid local legislation on subjects not prohibited by § 104, merely because a general law deals with the same matter. If, in the judgment of the legislature, local needs demand additional or supplemental laws substantially different from the general law, the legislature is not prohibited by § 105 from so enacting. Van Sandt v. Bell, 260 Ala. 556, 71 So. 2d 529; Steadman v. Kelly, 250 Ala. 246, 34 So. 2d 152, and cases cited; Johnson v. State ex rel. City of Birmingham, 245 Ala. 499, 17 So. 2d 662; Talley v. Webster, 225 Ala. 384, 143 So. 555; Standard Oil Co. v. Limestone County, 220 Ala. 231, 124 So. 523; State ex rel. Brooks v. Gullatt, 210 Ala. 452, 98 So. 373.
H. 39 levies a tax in addition to that fixed by the general laws of this state. §§ 178 and 179, Title 51, Code 1940. In the case of Standard Oil Co. v. Limestone County, supra, this court upheld a local act authorizing Limestone County to levy a license tax on persons selling gasoline and motor fuel in addition to that provided by general law.
We are of the opinion that our holding in Standard Oil Co. v. Limestone County, supra, is controlling of the question here considered. We have not overlooked the provisions of § 188, Title 51, Code 1940, which read: "No county shall levy a privilege or license tax on any business or occupation on which a privilege or license tax is levied by section 176-180, 182-186 of this title." If the provisions of § 188, Title 51, were not merely statutory, but were a part of the Constitution of this state, then of course we would have a different question. But we cannot read the provisions of § 188, supra, into § 105 and thereby get a different result from that reached by this court in Standard Oil Co. v. Limestone County, supra, which holding has been followed many times. The purpose of § 188, supra, is to avoid the effect of those provisions of § 831, Title 51, Code 1940, as amended, which levy licenses for the use and benefit of the counties in an amount equal to fifty percent of the amount levied for state purposes.
Our answer to your Question 6 is No.
We have said in several cases that "in levying a privilege or license tax as to trades, businesses or occupations, the legislature may not discriminate between members of the same class, and the tax must not be so exorbitant as to prohibit or unreasonably restrain or oppress legitimate and useful trades, businesses or occupations, that are not productive of disorder or injurious to the public. In applying the tax the classification or reclassification cannot be arbitrary, fanciful or capricious, but must have a substantial basis as distinguished from a mere fictitious or fanciful basis. Aside from these restrictions, the legislative power is unrestrained." State v. Pure Oil Co., 256 Ala. 534, 55 So. 2d 843, 846; Adams v. Curry, 243 Ala. 90, 8 So. 2d 578; State v. Downs, 240 Ala. 74, 197 So. 382; Republic Iron & Steel Co. v. State, 204 Ala. 469, 86 So. 65.
Statutory discrimination between classes must be presumed to be relevant to a permissible legislative purpose and will not be deemed to be a denial of equal protection if any state of facts could be conceived which would support it. State v. Pure Oil Co., supra, and cases cited. In view of the rule just stated above, we cannot say in this advisory opinion, where no factual situations are presented, that the classification resulting from the provisions of § 6 makes H. 39 violative of either the due process or equal protection clause of the Fourteenth Amendment to the federal constitution. Consequently we are constrained to answer your Question 7 in the negative.
Respectfully submitted, | March 18, 1955 |
4a4cd870-4bd2-4f1c-aeba-2229083657f8 | Western Grain Company Cases | 85 So. 2d 395 | N/A | Alabama | Alabama Supreme Court | 85 So. 2d 395 (1955)
The WESTERN GRAIN COMPANY CASES.
6 Div. 374, 489, 490, 585, 491, 492, 584, 657, 658, 143, 144, 694, 966, 689, 892, 893.
Supreme Court of Alabama.
February 3, 1955.
Rehearing Denied October 13, 1955.
Further Rehearing Denied February 10, 1956.
*403 J. P. Mudd, Birmingham, for Western Grain Co.
Marguerite W. Mudd, Dimmis W. Riley, Eula W. Cross, Bethea McCall, J. P. Mudd, Jr., Edward W. Mudd, Robert H. Mudd and J. P. Mudd, pro se.
Spain, Gillon, Grooms & Young, Birmingham, and Rushton, Stakely & Johnston, Montgomery, for Western Grain Co.
Horace C. Wilkinson, pro se.
White, Bradley, Arant, All & Rose, Birmingham, for Edward Wilkinson, Jr., Elizabeth W. Lanier and Sterling S. Lanier, Jr.
Lange Simpson, Robinson & Somerville, Birmingham, for Sterling S. Lanier, III, Grace Lanier Brewer and Elizabeth Lanier DeRamus.
Cabaniss & Johnston, Birmingham, for First National Bank of Birmingham.
PER CURIAM.
These cases pertain to a bitter family dispute in what has developed to be a struggle to gain control of Western Grain Company, a corporation.
Prior to October 9, 1953, the date of submission of the sixteen cases now being considered, there had been eleven appeals to this court involving various phases of the litigation. Written opinions appear in the following cases: Wilkinson v. McCall, 247 Ala. 225, 23 So. 2d 577; Riley v. Wilkinson, 247 Ala. 231, 23 So. 2d 582; Ex parte Riley, 247 Ala. 242, 23 So. 2d 592; Mudd v. Lanier, 247 Ala. 363, 24 So. 2d 550; Riley v. Wilkinson, 247 Ala. 579, 25 So. 2d 384, and Riley v. Bradley, 252 Ala. 282, 41 So. 2d 641. Appeals in which no opinions were written are Wilkinson v. Wilkinson, 247 Ala. 702, 23 So. 2d 601; Ex parte Riley, 247 Ala. 700, 23 So. 2d 601; Mudd v. Wilkinson, 247 Ala. 699, 23 So. 2d 602; Ex parte Mudd, 247 Ala. 699, 23 So. 2d 601, and Ex parte Mudd, 247 Ala. 699, 23 So. 2d 601.
These sixteen cases now before us are not the normal cases that are prosecuted to an appellate court. One of the parties describes the record as being of more than 15,000 pages, divided into 27 volumes, and the briefs as consisting of 3,500 pages, further stating that there have been "twelve years of controversy which have successively burdened nine trial judges, involved twenty lawyers and imposed thirty appellate proceedings on this court." (In addition to the eleven appeals already disposed of and the sixteen appeals now being considered, four new cases were submitted on November 17, 1954.) It is not practical that we attempt to handle these appeals in the usual manner. We propose to handle each case with a minimum of discussion. At the outset we quote a paragraph from the case of Shepherd v. Sartain, 185 Ala.
*404 439, 460, 64 So. 57, 65, which we consider appropriate:
A comprehensive statement of facts leading up to this litigation appears in Wilkinson v. McCall, 247 Ala. 225, 23 So. 2d 577, supra, and Mudd v. Lanier, 247 Ala. 363, 24 So. 2d 550, supra. Accordingly, we shall attempt to condense our statement here to a bare minimum consistent with readability and understandability.
In 1912 Edward Wilkinson, Sr., organized the Western Grain Company, an Alabama corporation, and was at all times the owner of a majority of the common stock. In 1921 Frank Nelson became the largest minority holder of common stock. In 1922 friction arose between the two and J. P. Mudd, Wilkinson's son-in-law, purchased Nelson's stock. Mudd became a director and attorney for the corporation shortly afterwards.
Edward Wilkinson, Sr., died on November 6, 1941, at the age of 77 years, leaving surviving him his widow, Grace H. Wilkinson, who is non compos mentis, and four children, viz.: Mrs. Marguerite W. Mudd, wife of J. P. Mudd, Mrs. Elizabeth W. Lanier, wife of Sterling S. Lanier, Jr., Mrs. Dimmis W. Riley, wife of E. W. Riley, and Edward Wilkinson, Jr. His estate consisted chiefly of 151 shares of common stock in Western Grain Company, which, by the terms of his will, were placed in trust. By his will, Edward Wilkinson, Jr., and Mrs. Lanier were appointed joint executors and also as co-trustees for administering the 151 shares of stock.
During his life Edward Wilkinson, Sr., created five separate trusts for the benefit, respectively, of his wife and each of his four children. He named himself trustee in each of the trusts and named Edward Wilkinson, Jr., and Mrs. Lanier as successor co-trustees. The property in each of the trusts consisted only of shares of common stock in the Western Grain Company, divided as follows: Mrs. Grace Wilkinson, 30 shares; Mrs. Dimmis Riley, 30 shares; Mrs. Marguerite Mudd, 20 shares; Mrs. Elizabeth Lanier, 20 shares; and Edward Wilkinson, Jr., 20 shares; a total of 120 shares. At the time of his death there were outstanding 500 shares of common stock and 150 shares of preferred stock in the Western Grain Company.
On December 17, 1941, special meetings of the stockholders and directors of Western Grain Company were held. At the directors' meeting it was proposed to elect Edward Wilkinson, Jr., as president of the company. Mr. and Mrs. Mudd objected on the grounds that he was neither capable nor fit for the office. The voting resulted in the election of Edward Wilkinson, Jr., Edward Wilkinson, Jr., and Mrs. Lanier voted for Edward Wilkinson, Jr., their individual stock and also the 151 shares belonging to the estate and the 120 shares of trust stock. They were joined by Mr. Lanier and Bethea McCall. Mr. and Mrs. Mudd voted for Mr. McCall.
On December 22, 1941, Mr. and Mrs. J. P. Mudd and Mrs. Grace Wilkinson, by Mrs. Mudd as next friend, filed a bill in equity praying for the removal of Edward Wilkinson, Jr., as President of Western Grain Company, and the removal of Edward Wilkinson, Jr., and Mrs. Lanier as executors and trustees. This suit was given the circuit court number of 53010, the number also given to the administration of the estate of Edward Wilkinson, Sr., which had been removed to equity. The suit had several aspects: One, as a derivative stockholders' suit to correct alleged corporate mismanagement by the board of directors acting through a majority block composed of Mr. and Mrs. Lanier, Edward Wilkinson, Jr., and Bethea McCall; two, by Mrs. Mudd, as beneficiary under the trusts created by her father, against the trustees and executors for maladministration of the *405 trusts. In this suit Mr. and Mrs. Mudd were represented by Judge Horace Wilkinson, and the respondents, Mr. and Mrs. Lanier and Edward Wilkinson, Jr., were represented both in their individual and representative capacities by Mr. White E. Gibson, who was also a stockholder in Western Grain Company. A claim was also filed by Mr. Mudd in behalf of the Company against the estate of Edward Wilkinson, Sr., for $148,000 arising out of alleged improper withdrawals prior to his death.
We understand from the evidence that when suit 53010 was instituted, and on May 25, 1942, prior to the meetings of the board of directors and stockholders on that date, the 650 shares of stock in the company were distributed and aligned as follows:
Various negotiations were conducted between Judge Wilkinson and Mr. Gibson and on May 25, 1942, an agreement of settlement was reached, a meeting of the directors and stockholders held to ratify the settlement and the cause was submitted to Judge Bailes. Because of their importance, the note of submission, the minute entry and the decree will be set out by the reporter.
It will be noted that paragraph 5 of the decree provided for the issuance to Mr. Mudd of 150 shares of preferred stock.
There was a slight calm in events until early July, 1942, when Mr. Mudd made known his contention that the 150 shares of preferred stock voted. It is apparent from the table set out above that Mr. and Mrs. Mudd then owned a majority of the 800 shares authorized and outstanding.
As will be noted from paragraph 4 of the decree, Mrs. Lanier's resignation as co-executor of her father's will and co-trustee of the testamentary trust and the five living trusts was accepted and she was relieved from acting as such. The circuit court approached a Bank and several individuals in an effort to secure a suitable person to replace Mrs. Lanier as such co-executor and co-trustee. After several *406 declinations to serve, all parties agreed on Mr. Bethea McCall, the new president and general manager of the company. When Mr. McCall learned that Mr. Mudd was asserting his claim that the preferred stock voted, he petitioned the court for and received authority to employ independent counsel to advise him as to his actions as co-executor and co-trustee, especially as to how the stock he represented should be voted. He employed Mr. W. H. Sadler. After an investigation, Mr. Sadler "advised Mr. McCall that the preferred stock had voting privileges and to vote for the directors nominated by Mr. Mudd" at stockholders' meetings. Mr. McCall followed this advice and thereafter became aligned with the Mudd group.
In the fall of 1942, the firm of Lange, Simpson, Brantley and Robinson was employed by Mr. Lanier to file a bill in the nature of a bill of review on behalf of Mr. and Mrs. Lanier's children against Mr. and Mrs. Lanier, Edward Wilkinson, Jr., Mr. and Mrs. Mudd, Mrs. Riley, the guardian of Mrs. Grace H. Wilkinson, Mrs. Eula W. Cross, Mr. McCall, Western Grain Company, the executors of the Estate of Edward Wilkinson, Sr., and the trustees, to set aside the decree of May 25, 1942. The suit by the Lanier children, filed December 16, 1942, is Circuit Court No. 55708 and to identify the various appeals hereinafter considered, we designate, after the division number, the circuit court number of 53010 or 55708 to indicate whether the administration (53010) or the setting aside of the May 25th decree (55708) is the primary consideration in the particular case.
The decree of the circuit court in equity on demurrer to the bill was considered in Mudd v. Lanier, 247 Ala. 363, 24 So. 2d 550, supra, and many points presented by the bill were there treated. Mr. and Mrs. Lanier and Edward Wilkinson, Jr., filed answers which they made cross-bills, and in which they adopted and added to the averments of complainants' bill against themselves and adopted the prayers in complainants' bill. Testimony was taken in this case from 1943 to 1951 and the appeal and cross appeal come from the decree of the circuit court dated November 20, 1951. While other claims were asserted and adjudicated, the principal questions on which the case turns are whether Mr. Mudd, as a director and stockholder of the corporation, was obligated to inform the other directors and stockholders, including Mr. and Mrs. Lanier and Edward Wilkinson, Jr., that, at the settlement and when the decree of May 25, 1942, was rendered, he held an opinion that the 150 shares of preferred stock which were issued to him as part of the settlement, were voting stock, and whether the said decree of May 25, 1942, in 53010 was to be treated as a consent decree or as a judicial proceeding and as such res judicata. (We are aware that the preceding sentence is probably an oversimplification of the issues, but it should suffice.)
The trial court made certain pertinent statements and findings in the decree of November 20, 1951, with which we agree, to wit:
(1) "Courts look with favor upon settlements of litigation especially within families and between stockholders of closely held corporations."
(2) "The court is firmly of the opinion that they (the claims of Mr. and Mrs. Mudd in the original suit (53010)) afforded an ample consideration for a compromise and settlement, insofar as the corporation, its stockholders and the estate of Edward Wilkinson, Sr., deceased, were concerned."
(3) "The court is therefore of the opinion that the settlement was valid and binding upon all parties unless the complaining parties are entitled to relief because of the failure of Mr. Mudd to disclose to them at the time of settlement or prior thereto, the fact that the preferred stock of the Western Grain Company had general voting powers."
(4) "The Court is clearly of the opinion that, at the time of the settlement, neither *407 Edward Wilkinson, Jr., nor Mr. and Mrs. Lanier knew that the preferred stock of the corporation had voting powers either as to the usual voting of the shares or with regard to the charter amendment requiring approval by a majority of the stockholders for the redemption of the preferred stock."
(5) "The Court is further clearly of the opinion that neither of these parties would have voted as directors or as stockholders to approve the settlement had they known of the voting power of the preferred stock of the corporation."
(6) "The Court is further clearly of the opinion that, at the time of the settlement, Mr. Mudd was of the opinion that the preferred stock of the corporation had general voting powers."
(7) "Therefore, the decisive questions in this case are:
"(a) Whether there is clear and convincing evidence that Mr. Mudd knew of the belief on the part of the Wilkinson-Lanier Group that the preferred stock did not have voting powers and was, therefore, under a duty to make a disclosure of his knowledge or belief to the contrary; or
"(b) Whether independently of such knowledge on his part of their mistake, he was put on notice as to their probable mistake and was, therefore, under a duty as a director to make a disclosure of his knowledge or belief as to the voting power of said stock."
(8) "The evidence is without dispute that the Lanier-Wilkinson Group discussed with two or more of their attorneys the question as to whether the preferred stock had voting powers and were advised by one of their attorneys that it did not have such powers. Another attorney advised them to proceed with the settlement if the preferred stock did not vote. One of the attorneys advised them the likely reason for Mr. Mudd's wanting a hundred and fifty (150) shares of preferred stock was that it would give him an eight (8) per cent investment for a minimum of five (5) years. However, the record was available to the said attorneys of the fact of the voting power of the preferred stock could have been ascertained by an examination of the charter of the corporation, and a copy of the charter was in the files of one of the attorneys. The attorney, who advised them that the preferred stock did not vote, and who at the time was also the attorney and counsel of the Western Grain Company, based his advice on a statement made to him by Mr. Edward Wilkinson, Sr., prior to his death. The above recitations leave no reason for doubt that the Edward Wilkinson, Jr., Group was acting on a mistake as to the voting power of the preferred stock. However, at no time during the negotiations or on the day of the settlement was Mr. Mudd or his attorney advised that the adversary parties were advising with their attorneys on the question of whether the preferred stock had voting rights. Neither Mr. Mudd nor his attorney were asked to express an opinion or belief as to the voting rights of the preferred stock. No request was made to Mr. Mudd or his attorney that the proposed settlement include a stipulation that the preferred stock did not have voting rights."
(9) "The controversy between the parties was bitter; they were dealing at arm's length and were not even on speaking terms."
We are unable to agree with all of the following findings:
(1) "The Court is, therefore, of the opinion that there was a duty imposed upon Mr. Mudd to have disclosed to the directors considering the settlement, particularly in a transaction between himself and the corporation of which he was a director, that he was of the opinion that the preferred stock had general voting powers. The Court feels that Mr. Mudd gave no consideration to this being his duty, because of the bitterness between the parties and his impression of the fact that they were dealing at arm's length, and because of the further fact that the said Wilkinson-Lanier Group were represented during the negotiations and, at the time of the settlement, by able counsel. For these reasons the Court *408 is of the opinion that Mr. Mudd was not guilty of a conscious concealing or suppression or of a conscious breach of duty to disclose his opinion as to the voting rights of the preferred stock to the adversary parties or their counsel. However, the Court is further of the opinion that these facts did not relieve him of the duty to correct the erroneous impressions which might have been gained from the pleadings and affidavits filed in the cause number 53010 relating to the control of the corporation and indicating that the preferred stock did not have voting powers, when that became a matter of primary importance. The Court is further of the opinion that the said facts did not relieve Mr. Mudd of the duty to make such disclosure to the other directors in view of the fact that, as a director, he was under a fiduciary relationship to the corporation, its directors and stockholders."
(2) "Therefore, the Court is of the opinion that the complainants and cross complainants are entitled to the relief prayed for and that, considering all the facts and circumstances leading up to, and at the time of the settlement, it would be inequitable for the settlement and the decree thereon to be upheld unless the said complainants are entitled to assert an estoppel against the voting powers of the one hundred and fifty (150) shares of preferred stock issued to Mr. Mudd and against the legal right of Mr. Mudd or his assigns to vote on the redemption of the preferred stock any of said preferred stock owned or controlled by him. Upon due consideration, the Court is of the opinion that the settlement and decree thereon should be ratified and confirmed by the Court, subject to the said estoppels."
While not attempting to give all the reasons for our disagreement with the trial court, we cite a few facts or circumstances which appear to be undisputed:
1. Edward Wilkinson, Jr., a fellow director and stockholder, testified that he did not rely on Mr. Mudd for advice and was not speaking to him during the negotiations, and he thought Mr. Mudd wanted to acquire control of the company prior to May 25, 1942.
2. Mrs. Lanier, another director and stockholder, testified that she did not trust Mr. Mudd's integrity; that in the negotiations of the May 25th settlement, she did not trust or rely on him.
3. During the negotiations and at the time of the settlement, the Lanier-Wilkinson Group controlled a majority of the 650 shares outstanding and were in control of the company.
4. Mr. Gibson went to Hopkinsville, Kentucky, to confer with the Laniers early in April, 1942, about the proposed settlement. Mrs. Lanier testified that at that time Mr. Gibson informed her about the proposed issuance of the preferred stock to Mr. Mudd. She told Mr. Gibson, "There is some reason Joe wants that stock. Why is it?" She said Mr. Gibson replied, "It is not voting stock."
5. Edward Wilkinson, Jr., while testifying about his conference with Mr. Gibson and after Mr. Gibson had returned from Kentucky, was asked: "Q. Did he tell you that Mrs. Lanier said in substance I hate to make a settlement like this because it seems perfectly terrible to confer on Mr. Mudd control of the company for having caused all this disturbance? A. That is my recollectionsomething to that effect. I think it is pretty close to what he told me."
6. The first sentence of the 18th paragraph of a sworn petition, as amended, filed on behalf of Edward Wilkinson, Jr., verified by him and signed by Messrs. All and Bradley as attorneys, reads:
"On, to-wit, May 25, 1942, the petitioner and his sister, Mrs. Lanier, employed the law firm of Bradley, Baldwin, All & White to advise them as executors of the Will of the decedent, as trustees thereunder and as trustees of the living trusts, with reference to the advisability of entering into the settlement which was then in course of discussion between them in said capacities and others interested in the settlement, *409 which settlement is involved in said cause #55708."
7. Edward Wilkinson, Jr., as president of the corporation, and Mr. Gibson, as his and its attorney, had all the corporate records at their disposal and under their possession or control prior to and on May 25, 1942.
8. On Sunday afternoon, May 24th, the day before the scheduled settlement was to be effected, the Laniers and Edward Wilkinson, Jr., decided to consult Mr. White of Bradley, Baldwin, All & White the next day as to the advisability of entering upon the proposed settlement.
9. Mr. White had assisted in drawing an amendment to the charter of Western Grain Company in 1915, which provided for the issuance of the 300 shares of preferred stock.
10. The corporate charter and the amendment were recorded in the Probate Office of Jefferson County and there was no restriction as to the voting power of preferred stock.
11. Code 1940, Title 10, Section 38, governed and is as follows:
12. Edward Wilkinson, Jr., and Mrs. Lanier went over the terms of settlement with Mr. White in his office and then invited him to sit in the conference with them and Mr. Gibson, who again went over the proposed settlement with Mr. White.
13. Mr. White testified: "I asked whether the preferred stock was voting stock. Mr. Gibson said, `No.' I made no investigation at all. * * * It was pretty clear if the preferred stock voted the control would pass from where Mr. Wilkinson had put it under his will and under the trusts. That is the principal reason I asked the question. * * * I said I thought under the circumstances, it was a good settlement, but I was relying entirely on Mr. Gibson for all statements of facts and of law. * * * I think I said, `Well, it is a family matter, and I think the best thing to do with those things always is to settle them if they can be settled on the right basis.'"
14. The question of whether the preferred stock voted was considered and discussed on May 25, 1942, at a meeting in Mr. Gibson's office at which Mr. Gibson and Mr. White, Mr. and Mrs. Lanier and Edward Wilkinson, Jr., were present.
15. At the same meeting these parties considered and approved, and the directors and stockholders at meetings held on the same day voted, an amendment of the charter by adding paragraph 11-A, proposed by Mr. Mudd's attorney as a part of the settlement, which reads as follows:
16. At this stockholders' meeting, attended by all the directors who were also stockholders, Mr. Gibson presented a draft of the proposed decree which had been prepared to carry into effect the settlement which had been authorized by the Board of Directors and on motion of Mr. Lanier and a second by Edward Wilkinson, Jr., the motion was unanimously adopted.
17. In arguing a feature of case 53010 in January, 1942, Mr. Gibson had argued that Mr. Mudd was trying to get control of the company. He knew at that time that Mr. Mudd had previously tried to purchase the 25 shares of preferred stock owned by Alabama By-Products Co. This fact had been known by Edward Wilkinson, Sr., and was known by Edward Wilkinson, Jr.
*410 18. Mr. Gibson and Judge Horace Wilkinson never discussed the question of whether the preferred stock voted until after May 25, 1942.
19. They did discuss the matter in July or August, 1942, when Mr. Gibson learned of Mr. Mudd's opinion that it did have voting power. At that time Judge Wilkinson told Mr. Gibson, "If you say I have in any way in the world misrepresented this situation to you, I will go to the court house and have the decree (that of May 25, 1942) set aside.", and Mr. Gibson's reply was that Judge Wilkinson had not misrepresented anything to him.
20. When this cause was submitted here on October 9, 1953, it was recognized by the parties that preferred stock in Western Grain Co. has voting power. But this was not conceded in May, 1942, or for several years thereafter. The attorney who verified the original bill in 55708 on December 14, 1942, took the contrary position, because in the bill we find, "and complainants further aver that neither this preferred stock (the 150 shares issued to Mr. Mudd in the compromise) nor that previously outstanding is voting stock of said corporation." (Emphasis supplied). Mr. Gibson, testifying in March, 1946, said the question of whether the preferred stock voted was "still debatable and doubtful" in his mind and that prior to May 26, 1942, he did not know it had voting power. When Mr. Sadler advised Mr. McCall that the preferred stock did vote, it was contended in 1945 in this court that Mr. Sadler was not entitled to an attorney's fee because it was "insisted that Mr. Sadler gave erroneous advice as to the voting power of the preferred stock." Wilkinson v. McCall, 247 Ala. 225, 23 So. 2d 577, 579, supra. The argument that none of the outstanding preferred stock voted was made by two law firms in the case of Mudd v. Lanier, 247 Ala. 363, 24 So. 2d 550, supra. However, by amendment filed in June, 1946, the complainants struck the allegation that the preferred stock did not vote and alleged in an amendment that "preferred stock of the company is, and has, since original issue, always been entitled to one vote for each share thereof, in the same manner, to the same extent and for all of the same purposes as the common stock of the company."
21. In other paragraphs of this amendment it was alleged that Edward Wilkinson, Sr., knew, or was advised of the fact, in 1922, that the preferred stock voted and that he, Mr. Lanier and Mr. Mudd formed a plan whereby Mr. Lanier, for Mrs. Lanier, and Mr. Mudd purchased 60 shares of common and preferred stock, thereby enabling them to pool their holdings with Mr. Wilkinson, Sr., and maintain him in control of the company.
22. The minutes of the company disclose that both prior to and subsequent to Mr. Mudd's connection with the company, the preferred stock voted at stockholders' meetings.
23. On October 22, 1942, Mr. White wrote to Mrs. Tillman concerning a proxy from her to him to vote her preferred stock at a stockholders' meeting. This was some two months before the filing of suit 55708 in which the position was taken that the preferred stock did not vote.
24. The actual certificate representing the 150 shares of preferred stock issued to Mr. Mudd in the settlement had no restrictions as to voting on its face and was executed in part by Mr. Gibson.
25. Mr. Gibson did not "examine the minute book of the Western Grain Company or the records of the Probate Judge's office or any other source of information to find out what were the provisions appertaining to the preferred stock of the Western Grain Company," nor had he ever seen the original charter or the amendments thereto before May 26, 1942.
Appellants, the Mudd group, insist that the decree of May 25, 1942, was rendered by an equity court in the exercise of its judicial powers and discretion for the reasons that the judicial records thereof so indicate, and that it covered, among other matters, the settlement of stockholders' derivative suits, a compromise of which must be approved *411 by the court under Equity Rule 31 (b), Code 1940, Tit. 7 Appendix, the issuance of injunctions, the approval of the resignation of a trustee and executor, the approval of an executor's conduct, rights of a non compos mentis and rights of contingent beneficiaries, some of whom were minors; and that, being a judicial decree as distinguished from a mere consent decree, it effectively adjudicated the rights of all parties in the case at bar and, as such, was res judicata and is not subject to review or modification in this action (fraud in its procurement not being alleged and proved). Among the many cases supportive of this proposition are A.B.C. Truck Lines v. Kenemer, 247 Ala. 543, 25 So. 2d 511; Cowley v. Farrow, 193 Ala. 381, 69 So. 114, and Adler v. Van Kirk Land & Construction Co., 114 Ala. 551, 21 So. 490, 62 Am.St.Rep. 133. On the other hand, the Wilkinson-Lanier group, cross-appellants, take the position that Mr. Mudd, being a director of Western Grain Company, was in a fiduciary relation to the other directors and stockholders, and for that reason was under a duty to disclose to them his knowledge or opinion that the preferred stock had voting power; and that his failure to so disclose calls for setting aside the decree of May 25, 1942, because that decree, being in consummation of a settlement agreement, was a consent decree which partakes of the nature of a contract and is not, strictly speaking, res judicata since such decree is no more solemn than a solemn contract entered into between contracting parties. Brasher v. First Nat. Bank of Birmingham, 232 Ala. 340, 168 So. 42.
We see no necessity of deciding whether or not that decree was a consent decree. Our view is that, although it may be said as a general proposition that a director stands in a fiduciary relation to the other directors and stockholders, Blount County Bank v. Harvey, 215 Ala. 566, 112 So. 139; Blythe v. Enslen, 203 Ala. 692, 695, 85 So. 1; 3 Fletcher Cyclopedia Corporations, Sect. 838, p. 173, under the particular facts and circumstances of this case, Mr. Mudd, at the time of the settlement and the rendering of the decree of May 25, 1942, was not in such a fiduciary relationship as to impose on him the duty of disclosing his unsolicited opinion with respect to the voting power of the preferred stock. The general rule that a director occupies a fiduciary relation is not to be taken as prohibiting him from having any personal dealings with the corporation and the other directors and stockholders. The duty imposed on the director in such dealings is necessarily defined by, and dependent upon, the particular facts and circumstances involved. Each case must be considered separately on the basis of its own facts. As stated in Paddock v. Siemoneit, 147 Tex. 571, 576, 577, 218 S.W.2d 428, 431, 7 A.L.R.2d 1062:
We here observe that we have not found any case which we feel could be cited as controlling authority in the case now before us. We proceed to refer to some of the authorities which we consider applicable.
*412 In Epstein v. United States, 6 Cir., 174 F.2d 754, 764, it is said:
In Farrell v. Farrell, 243 Ala. 389, 10 So. 2d 153, 156, where it was held that "Husband and wife do not stand in fiduciary relationship in divorce proceedings, one against the other", the opinion states:
In Sullivan v. Pierce, 5 Cir., 125 F. 104, it was held that the evidence did not entitle complainant to a recission of a sale by him to defendant of his stock in a corporation of which they were practically the only stockholders, on the ground of false and fraudulent representations made by defendant, who was the active manager of the business, it being shown that complainant was the minority stockholder; that the relations of personal friendship and confidence which for many years existed between the parties had been broken some time before the sale, making complainant desirous of terminating their business connection; and that in making the sale he did not act in reliance on any statements or representations made by defendant, *413 but on his own independent knowledge and judgment, and received a price not greatly below the actual value of his interest in the property at the time.
In Colton v. Stanford, 82 Cal. 351, 23 P. 16, 19, 16 Am.St.Rep. 137, the court said:
In 5 Williston on Contracts, p. 4332, § 1543, it is said:
Two of our cases are cited in support of the foregoing statement, viz.: Carlisle v. Barker, 57 Ala. 267, and Troy v. Bland, 58 Ala. 197. In the latter case the authorities with respect to settlements and compromises are reviewed by Stone, J., and one statement cited with approval is, "When a compromise of a doubtful right is fairly made between the parties, whether the uncertainty rests upon a doubt of fact or a doubt in point of law, if both parties are in the same ignorance, the compromise is equally binding, and cannot be affected by any subsequent investigation and result."
We quote from 12 Am.Jur., Contracts, § 132: "Where the parties are conscious that the existence of particular facts is doubtful and make their agreement on this assumption, the nonexistence of such facts does not affect the validity of the agreement, the risk of their existence being taken by the parties". Sears v. Grand Lodge A. O. U. W., 163 N.Y. 374, 57 N.E. 618, 50 L.R.A. 204, is there cited as holding that when parties have entered into a contract based upon certain or contingent events purposely as a compromise of doubtful claims arising from them, and there is an absence of bad faith, violation of confidence, misrepresentation, or concealment, if the facts upon which such agreement was founded or the event of the agreement itself, turn out very differently from what was expected or anticipated, this error, miscalculation or disappointment is not such a mistake as entitles *414 the disappointed party to any relief, either by way of canceling the contract and rescinding the transaction or as a defense to a suit brought for its enforcement.
"A party to a lawsuit is not bound to disclose to his adversary facts which tend to defeat or weaken his own right of recovery, and he commits no fraud by remaining silent." 23 Am.Jur., Fraud and Deceit, Sect. 92.
See Lovell v. Smith, 232 Ala. 626, 169 So. 280, where it was held that the fact that the directors of a corporation had purchased the controlling interest in the corporation did not impose on them the duty to inform a prospective purchaser of stock of such fact when no information concerning such purchases was concealed or sought. [Emphasis supplied.]
We said in Mudd v. Lanier, 247 Ala. 363, 377, 24 So. 2d 550, 562, in dealing with this case on demurrer: "But our cases seem to hold that when both parties are intelligent and fully capable of taking care of themselves and dealing at arms' length, with no confidential relations, that no duty to disclose exists when information is not requested, and that mere silence is then not a fraud. There must be active concealment or misrepresentation"; and, "If there was a fraudulent concealment which induced the mistake, relief is available, whether it is called a `fraud' or a `mistake'. But in the absence of such concealment or `other inequitable conduct' (not here alleged), relief is not available in either theory."
In Bunel v. O'Day, C.C., 125 F. 303, it was held that a compromise of a suit, if free from fraud, no matter how unjust the defendant may have regarded the charge, or what different result subsequent developments might probably produce, it should stand. The value consists in the release from an uncertain position, with its anxieties, and from inevitable expenses and trouble and such compromises are especially favored when of the nature of family settlements.
As to duty of directors of a corporation to inform themselves as to company records, we find this statement in 3 Fletcher, Cyclopedia Corporations, Section 1060, page 597: "So far as the powers of the corporation, and the powers and duties of the officers, are prescribed by statute or charter or by-law, knowledge is imputed to the officer. As to this there is no question."
This court said in New Orleans & Ala. Coal & Mining Co. v. Musgrove, 90 Ala. 428, 7 So. 747, 748:
And Anderson, J., speaking for the court in Graybill v. Drennen, 150 Ala. 227, 231, 43 So. 568, 569, said: "* * * if the representation related to a matter equally open to the inspection or inquiries of both *415 parties, or if the purchaser did not in fact rely on it, but sought and relied on other means of information, or if he negligently failed to use the means or opportunities in his power to ascertain the facts, relief will not be granted."
We repeated in Hinson v. Byrd, 259 Ala. 459, 463, 66 So. 2d 736, 739, "the rule of long standing that a pure mistake of law is not an adequate ground for relief in equity."
On the proposition of estoppel we note the following from Pattillo v. Tucker, 216 Ala. 572, 113 So. 1, 3:
And in Cosby v. Moore, 259 Ala. 41, 47, 65 So. 2d 178, 182, we said:
The controversy in this case is largely between the Laniers and Edward Wilkinson, Jr., on one hand, and Mr. and Mrs. Mudd on the other. We again note that they were not on speaking terms and negotiations had to be transacted through their attorneys. Neither the Laniers nor Edward Wilkinson, Jr., trusted or relied in the slightest on Mr. Mudd. They were advised by able counsel both prior to and on the day of settlement. The actual question of the voting power of the preferred stock was considered. Mr. White's very statement that he considered it a good settlement if the preferred stock did not vote, shows a doubt or uncertainty. Edward Wilkinson, Jr., as President and Director, and Mr. and Mrs. Lanier, as directors, representing the controlling faction of the corporation, had, as such officers, access to all the corporate records. It was Mr. Gibson's opinion that it did not vote; it evidently was the opinion of Mr. Simpson and Mr. White several months later that it did not vote; it evidently was the opinion of Mr. White's partners two years later that it did not vote. It was the opinion of their adversary, Mr. Mudd, that it did vote. Under the circumstances of this case we can see no breach of any fiduciary or confidential relationship on the part of Mr. Mudd. After the Laniers and Edward Wilkinson, Jr., had conferred with their attorneys they and Mr. Gibson met with *416 Mr. and Mrs. Mudd at the stockholders' meeting. If they had not been satisfied with the question of the voting power of the stock, or had not been willing to take the risk, they could have inquired of Mr. Mudd or his attorney as to Mr. Mudd's opinion. They were all present face to face and voting as directors and stockholders on whether the settlement should be ratified. We are unable to assert that there was any active or intentional concealment, any misleading act or word on which reliance was placed, any abuse of confidence, any refusal to give or concealment of any information sought, or any greater opportunity to know the present facts on the part of Mr. Mudd or his attorney in their dealings in the compromise. On the other hand the knowledge of the voting power of the preferred stock would have to be imputed to the president and the Laniers as directors if the question were not one purely of law. They placed no reliance on Mr. Mudd's opinion or representation, nor did they act upon it, but upon the advice of admittedly competent, independent, professional advisers, all of whom at some time prior to the settlement, had been connected with the corporate affairs in a legal capacity.
From the foregoing it seems clear to us that the status of the settlement on which the decree in No. 55708 was rested presented no more than a mistake, pure and simple, on the part of the Wilkinson-Lanier group; in no way concurred or participated in by the Mudd group. Equity has never relieved the complaining party against the results of such mistake. Hinson v. Byrd, supra; Sellers v. Manasco, 247 Ala. 445, 25 So. 2d 21; Venable v. Turner, 236 Ala. 483, 183 So. 644.
We mention one matter here that is pertinent, not only to this case, but to others which we are considering in this series of appeals.
In December, 1941, Western Grain Company was in debt and concededly was a small business. The direction of the corporation from shortly after the May 25, 1942, decree has been in the board of directors named by a combination of stock owned or controlled by Mr. and Mrs. Mudd and Mr. McCall, and management has been under Mr. McCall. In spite of the unprecedented and bitter litigation between the owners, constant hearings on applications for injunctions, supersedeas bonds and unfavorable publicity, the financial success of the company has been little short of fantastic. In Wilkinson v. McCall, supra, we noted [247 Ala. 225, 23 So.2d 579]: "Under the management of Bethea McCall the business of the company increased from four million dollars a year to a volume of thirteen million dollars a year in 1943 and 1944", and further noted that on February 3, 1944, the collector of Internal Revenue sold thirty-four shares of stock on the basis of $1,480 per share. The two bidders for this stock were Mrs. Lanier and Mr. Mudd, persons who were more interested in acquiring it than a third party. We quote figures from appellants' brief which are not contested as we understand it. The average net profits after taxes for the years 1939 to 1942, inclusive, were approximately $71,000. Beginning in 1943 and ending with 1953, the total net profits after income taxes approximated $4,276,000. Net profits after income taxes in 1942 were $67,000, in 1953 $595,000. In 1947 the Wilkinson-Lanier group refused an offer of $5,000 per share and during the last ten years some $2,600 per share has been paid in dividends, and the volume of business had increased to approximately $25,000,000 in 1952.
It admits of little argument that the settlement of May 25, 1942, was very beneficial to the non compos mentis, to the estate, to the trusts and to all the parties concerned in this litigation.
It is our considered opinion, based on the foregoing and many other phases of the evidence not listed and propositions of law not cited, that the lower court was in error in rendering its decree of November 20, 1951. Accordingly, said decree is reversed and the cause remanded with directions to the trial court to dismiss the bill as amended and the cross bills as amended.
This is the cross-appeal taken by Mr. and Mrs. Lanier from the decree of November 20, 1951. On authority of Western Grain Co. v. Sterling S. Lanier, III, 6 Div. 374, supra, the said decree is reversed and the cause remanded with directions to the trial court to dismiss the bill as amended and the cross bills as amended.
This is the cross-appeal taken by Edward Wilkinson, Jr., individually, and as Executor of the will of Edward Wilkinson, deceased, and as Trustee thereunder, and as Trustee of the trusts represented by him, from the decree of November 20, 1951. On authority of Western Grain Co. v. Sterling S. Lanier, III, 6 Div. 374, supra, the said decree is reversed and the cause remanded with directions to the trial court to dismiss the bill as amended and the cross bills as amended.
This is the appeal taken by Bethea McCall, as co-trustee of the Marguerite W. Mudd and the Dimmis Wilkinson Riley living trusts, from the decree of November 20, 1951. On authority of Western Grain Co. v. Sterling S. Lanier, III, 6 Div. 374, supra, the said decree is reversed and the cause remanded with directions to the trial court to dismiss the bill as amended and the cross bills as amended.
6 Div. 491 (53010)6 Div. 492 (53010) 6 Div. 584 (53010)
In addition to the parts of the decree of the lower court discussed in 6 Div. 374, supra, rendered on November 20, 1951, there was included in that decree what is called the "proxy provision." A part of the court's finding is as follows:
This, with other orders in the decree, had the effect of placing control of Western Grain Company in the First National Bank of Birmingham. All of the parties affected by this proxy provision, except the Bank, appealed therefrom and petitioned in the alternative for mandamus.
6 Div. 491 is the appeal and petition of Edward Wilkinson, Jr., individually and in all of his representative capacities.
6 Div. 492 is the appeal and petition of Mr. and Mrs. Lanier.
6 Div. 584 is the appeal and petition of Mr. McCall and Dr. Doak Mudd, as cotrustees of the Dimmis Wilkinson Riley Trust.
On authority of Western Grain Co. v. Sterling S. Lanier, III, 6 Div. 374, supra, each of these appeals is dismissed and the petitions for mandamus are denied.
This is an appeal by Edward Wilkinson, Jr., as Co-Trustee and Co-Executor, from a decree dated August 22, 1947, and amended August 28, 1947, by which he was removed as Co-Trustee of certain of the living trusts; Mr. Bethea McCall was removed as Co-Trustee of some of the trusts and the First National Bank of Birmingham *418 was appointed Co-Trustee of some of the trusts. The case was also submitted on petition for writ of mandamus in the alternative.
Mrs. Mudd, Mrs. Riley and Mr. McCall filed cross appeals and petitions for mandamus, which are docketed here as 6 Div. 658.
It will be remembered that all parties agreed to the appointment of Mr. Bethea McCall as Co-Executor and Co-Trustee with Edward Wilkinson, Jr., when Mrs. Lanier resigned pursuant to the settlement contained in the May 25, 1942, decree. In a proceeding known as the May 15th (1947) petition Mrs. Mudd and Mrs. Riley, as beneficiaries of three of the trusts created by their father, filed a petition seeking the removal of Edward Wilkinson, Jr., as Co-Trustee of each of said trusts.
Edward Wilkinson, Jr., individually and as Co-Trustee, had filed what is known as the June 20th (1944) petition seeking the removal of Mr. McCall as Co-Trustee if he had in fact been legally appointed.
The petitions of all parties having been amended, the court consolidated them, and after a hearing rendered the decree which is sought to be reviewed here and which reads as follows:
"This cause coming on to be heard, orally before the Court, pursuant to the decree of this Court heretofore entered on May 30, 1947, on the petitions of Marguerite Wilkinson Mudd and Dimmis Wilkinson Riley for the removal of Edward Wilkinson, Jr., as Co-Executor and Co-Trustee under the Will of Edward Wilkinson, Sr., and as Co-Trustee of the living trusts known as the Grace H. Wilkinson Trust, the Edward Wilkinson, Jr., Trust, the Elizabeth Wilkinson Lanier Trust, the Dimmis Wilkinson Riley Trust, and the Marguerite Wilkinson Mudd Trust, heretofore filed herein on March 29, 1946, as amended on June 17, 1946, and on June 3, 1947, and on the petition of Mrs. Dimmis Wilkinson Riley, Marguerite Wilkinson Mudd, J. P. (Doak) Mudd, Jr., Edward Wilkinson Mudd and Robert H. Mudd, heretofore filed herein on May 15, 1947, seeking a restraining order against Edward Wilkinson, Jr., and his removal in all of his above described fiduciary capacities except as Co-Trustee of the Edward Wilkinson, Jr., and the Elizabeth Wilkinson Lanier living trusts, and on that aspect of the petition of Edward Wilkinson, Jr., et al., heretofore filed herein on June 29, 1944, and as last amended, seeking the removal of Bethea McCall as Co-Executor and Co-Trustee under the Will of Edward Wilkinson, Sr., Deceased, and as Co-Trustee of the five (5) above named living trusts created by Edward Wilkinson, Sr., to the petition of Dimmis Wilkinson Riley, et al., designated as the May 15, 1947, petition and on the answer of Bethea McCall to the petition of Edward Wilkinson, Jr., et als., known as the June 29, 1944, petition, as last amended, and on the testimony as noted; and all of the parties having appeared in open Court by and through their Solicitors of record; and the Court, having consolidated all of said petitions for hearing and decree and having heard the testimony of witnesses and examined the documentary evidence introduced and having heard argument of counsel, upon consideration thereof, is of the opinion that:
"1. The facts do not justify the removal of Edward Wilkinson, Jr., as Executor of the Will of Edward Wilkinson, Sr., Deceased.
"2. Extreme hostility exists between Edward Wilkinson, Jr., and Mrs. Mudd, certainly on the part of Mrs. Mudd, even if not to such a great extent on the part of Edward Wilkinson, Jr., and an irreconcilable and serious conflict of collateral interests exists, primarily in the struggle for voting control of the Western Grain Company, between Edward Wilkinson, Jr., on the one hand and Mrs. Mudd and Mrs. Riley on the other; and that, under the circumstances, Edward Wilkinson, Jr., should not remain as Trustee of the Marguerite Wilkinson Mudd or the Dimmis Wilkinson Riley living trusts, but should be removed as such Trustee.
"3. Mrs. Grace H. Wilkinson is the primary beneficiary of the testamentary trust *419 and her guardian has not sought the removal of Edward Wilkinson, Jr., as its Trustee nor as Trustee of the Grace H. Wilkinson living trust, nor do the facts justify his removal as such Trustee.
"4. The facts do not justify the removal of Edward Wilkinson, Jr., as Trustee of the Edward Wilkinson, Jr., or the Elizabeth Wilkinson Lanier living trusts.
"5. The primary duty of the Court is to see that the estate of the decedent and the several trust estates be administered in the best interest of the beneficiaries of the trusts and that the said estates not be burdened with the expenses of litigation resulting from the conflicting views of Co-Trustees and Co-Executors and their respective attorneys. Bethea McCall reluctantly accepted the appointment as Co-Executor and Co-Trustee of the Will of Edward Wilkinson, Sr., Deceased, and as Co-Trustee of the five (5) living trusts at a time when he thought all litigation was at an end; that his capable management of the Western Grain Company has greatly benefited the trust estates, but the litigation in which he is involved has been very distasteful to him, and with the conflicts existing between the two factions, the Court believes that it is to the best interest of the trust estates that Mr. McCall be relieved of his fiduciary duties, except as Trustee of the Marguerite Wilkinson Mudd and the Dimmis Wilkinson Riley living trusts, so that he may devote his entire time and thought to the management of the Western Grain Company.
"It is, therefore, ordered, adjudged and decreed by the Court as follows:
"1. That the prayers seeking the removal of Edward Wilkinson, Jr., as Co-Executor and Co-Trustee under the Will of Edward Wilkinson, Sr., Deceased, be and the same are hereby denied;
"2. That the prayers seeking the removal of Edward Wilkinson, Jr., as Co-Trustee of the Edward Wilkinson, Jr., the Elizabeth Wilkinson Lanier, and the Grace H. Wilkinson living trusts be and the same are hereby denied;
"3. That the prayers seeking the removal of Edward Wilkinson, Jr., as Co-Trustee of the Dimmis Wilkinson Riley and the Marguerite Wilkinson Mudd living trusts be granted and he is hereby removed as such Co-Trustee, effective Thirty (30) days from the date of this decree.
"4. That the demurrer of Edward Wilkinson, Jr., to the May 15, 1947, petition of Dimmis Wilkinson Riley, et als., be and the same is hereby overruled;
"5. That the prayer seeking the removal of Bethea McCall as Co-Trustee of the Dimmis Wilkinson Riley and the Marguerite Wilkinson Mudd Trusts be and the same is hereby denied;
"6. That the prayers seeking the removal of Bethea McCall as Co-Executor of and Co-Trustee under the Will of Edward Wilkinson, Sr., Deceased, and as Co-Trustee of the Edward Wilkinson, Jr., and the Elizabeth Wilkinson Lanier, and the Grace H. Wilkinson Trusts be granted and he is hereby removed as such Co-Executor and as Co-Trustee of each of said trusts, effective thirty (30) days from date of this decree;
"7. That the said Edward Wilkinson Jr., and the said Bethea McCall be and they are hereby directed to file final settlements of their accounts in each fiduciary capacity in which they have been removed within sixty (60) days from the date of this decree;
"8. That the First National Bank of Birmingham is hereby appointed as Co-Executor and Co-Trustee under the Will of Edward Wilkinson, Sr., deceased, and as Co-Trustee of the Grace H. Wilkinson living Trust. The appointment of Co-Trustees under the remaining four (4) living trusts is reserved for the further orders of the Court;
"9. That neither Edward Wilkinson, Jr., nor Bethea McCall shall in their respective fiduciary capacities dispose of or contract *420 for the sale of any of the property in the respective trusts or vote any of the stock in said trust estates pending the appointment, acceptance and qualification of successor Co-Trustees and a successor Co-Executor;
"10. That that aspect of the petition of Dimmis Wilkinson Riley, et al., of May 15, 1947, seeking a restraining order against Edward Wilkinson, Jr., in his several fiduciary capacities, is reserved for further hearing and order of this Court;
"11. That the Court costs of this proceeding be and the same are hereby taxed against the estate of Edward Wilkinson, Sr., Deceased, for which let execution issue.
"Done and ordered this, the 22nd day of August, 1947,
We dismiss the appeal in this cause on the authority of Ex parte Jonas, 186 Ala. 567, 64 So. 960, 964, where it was held that no appeal would lie from the order of removal of a trustee, but "for an abuse of judicial discretion, it is recognized that mandamus is the proper remedy, and will lie, to compel a proper exercise thereof." See also Brewer v. Brewer, 250 Ala. 658, 35 So. 2d 557. We said in Ingalls v. Ingalls, 257 Ala. 521, 59 So. 2d 898, 903:
As previously stated, the case is here on petition for mandamus and we now proceed to consider the petition.
Appellant states in brief that the issues in so far as 6 Div. 657 is concerned, are:
"1. Edward Wilkinson, Jr., should not have been removed as trustee of the Riley Trust;
"2. Edward Wilkinson, Jr., should not have been removed as trustee of the Mudd Trust;
"3. Mr. McCall should have been removed as trustee of the Riley Trust;
"4. Mr. McCall should have been removed as trustee of the Mudd Trust;
"5. The Bank should not have been appointed as executor of the will of the decedent; and
"6. The Bank should not have been appointed as trustee under said will or as trustee of the Wilkinson Trust."
We quote again from Ingalls v. Ingalls, supra:
Upon a consideration of the evidence we are in accord with the conclusions reached by the court in the decree, supra. We do not think the court abused its discretion in taking the action outlined in its decree and it follows that the petition for mandamus must be denied.
Appeal dismissed and writ denied.
This is the appeal and petition for mandamus of Mrs. Mudd, Mrs. Riley and Mr. McCall objecting to the removal of Mr. McCall and further objecting that Edward Wilkinson, Jr., was not removed as cotrustee from all the trusts.
The appeal is dismissed and the petition for mandamus is denied in this case on authority of Wilkinson v. Riley, 6 Div. 657.
Appeal dismissed and writ denied.
The two appeals, with a prayer for alternative writ of mandamus in each case, involved in cases numbered 6 Div. 143 (53010) and 6 Div. 144 (53010), are from two decrees entered on March 20, 1950.
The decree in 6 Div. 143 appointed Dr. Doak Mudd, son of Mr. and Mrs. Mudd, as successor cotrustee of the trust in which Mrs. Mudd was beneficiary, and the decree in 6 Div. 144 appointed him successor cotrustee of the trust in which Mrs. Riley was beneficiary.
The last sentence of paragraph numbered 8 in the decree of the court set out in 6 Div. 657, supra, reads: "The appointment of cotrustees under the remaining four (4) living trusts is reserved for further orders of the court." Pursuant to this reservation, the court appointed Dr. Mudd to succeed Edward Wilkinson, Jr., as cotrustee of these two trusts.
After the rendition of the decree of August 22, 1947, in 6 Div. 657, supra, the trustee personnel of the trusts and shares involved were:
The decree in the instant cases provided all the trusts with cotrustees except (3) *422 and (4) of whom Edward Wilkinson, Jr., remained sole trustee.
Appellants, Edward Wilkinson, Jr., and Mrs. Lanier, concede that these cases are dependent, in part, for decision on the outcome of 6 Div. 657.
The court could have appointed Dr. Mudd at the same time the First National Bank was appointed cotrustee of the testamentary trust and the Grace Wilkinson trust. The mere fact that it waited until later to appoint him is immaterial. Having refused to hold that the court abused its discretion in removing and appointing the trustees in 6 Div. 657, supra, we reach the same conclusion in these cases respecting the appointment of Dr. Mudd.
Appeal dismissed in each case and petition for mandamus denied in each case.
6 Div. 694 (53010) is an appeal by Edward Wilkinson, Jr., individually and as Co-Trustee and Co-Executor, from a decree sustaining the demurrer to the June 29th (1944) petition as amended. The cause was also submitted on petition for mandamus, which is 6 Div. 966 (53010), praying that the trial court be commanded to show cause why the decree "should not be reversed, vacated and annulled." The decree overruled the motion to strike the June 29th (1944) petition for prolixity but sustained the demurrer to the petition on the ground of multifariousness. Edward Wilkinson, Jr., individually and in his various representative capacities, was allowed to intervene to show cause why the petition should not be stricken for prolixity.
Ordinarily we would not entertain a petition for mandamus to review a ruling of the trial court on a motion to strike for prolixity but in the instant case the case is here on appeal from a decree sustaining the demurrer to the bill. We think it would promote justice to express our views on the question of prolixity presented by the petition for mandamus. Ex parte Morton, 261 Ala. 581, 75 So. 2d 500.
The trial court in its decree stated that it regarded the petition as being prolix but sustained the demurrer to the petition on the ground of multifariousness in order to expedite the trial of the cause. Upon consideration by the entire court we are of the opinion that the petition should be stricken for prolixity.
The petition amended a number of times is more or less a running account of much that has transpired in the entire litigation between the stockholders and directors of Western Grain Company, the administration of the estate of Edward Wilkinson, Sr., and the administration of the trusts. It contains complaints against many and divers respondents. It consists of various independent bases for relief. It contains over eighty prayers for relief and it consists of several phases of this entire controversy which is the subject of separate appeals. The June 29th petition and the various amendments together cover 349 pages of transcript paper in four different volumes of the master record.
Accordingly we grant the application for mandamus and direct the court to strike the petition as prolix. We take into consideration the fact that the court regards it as prolix. Since the petition will be stricken under the aforesaid ruling, the appeal is functus officio and has no further purpose.
The appeal in 6 Div. 694 (53010) is, accordingly, dismissed.
Application for mandamus granted and appeal dismissed.
This is an appeal from a decree rendered on December 24, 1947, denying certain temporary injunctions sought by Edward Wilkinson, Jr., individually and in his capacities as executor of the will of Edward Wilkinson, deceased, and as trustee thereunder and as trustee of the Grace H. Wilkinson trust, *423 the Elizabeth W. Lanier trust and the Edward Wilkinson, Jr., trust. These matters were contained in the June 29th (1944) petition. The court was asked to enjoin and restrain,
"1. Western Grain Company, its directors, officers and employees, from paying any compensation to J. P. Mudd for any services heretofore or hereafter rendered or claimed to be rendered except fees for attendance at directors' meetings and except fair and reasonable compensation for strictly legal services unless and until payment for same shall have been duly authorized by the Board of Directors of said corporation;
"2. Western Grain Company, its directors, officers and employees, from paying or authorizing the payment of any compensation to J. P. Mudd for acting as an officer or employee of said corporation except as Director or attorney for it with respect to directors' fees for attendance at meetings duly held or strictly legal services actually rendered;
"3. Western Grain Company, its directors, officers and employees, from paying, and said J. P. Mudd from receiving, any compensation for services as attorney for the company in respect of the litigation involved in this cause, or in cause No. 55,708, and No. 63,471, rendered after May 25, 1947, unless and until the same shall have been authorized and fixed by a Board of Directors of said Company duly elected;
"4. Western Grain Company, its directors, officers, agents and employees from paying dividends on its outstanding preferred stock held by said J. P. Mudd, Marguerite W. Mudd, Eula W. Cross, E. T. Rice, E. W. Riley, and H. R. Terry, or by such thereof as the Court shall deem proper with respect to time elapsed after May 25, 1947, or such later date as the Court shall see fit to fix as the reasonable time within which redemption thereof should have been effected."
After a hearing the court found as follows:
"Pursuant to agreement of the parties, said applications were set down for hearing as contemplated by Section 1054, of Title 7, of the Code of Alabama of 1940 and came on to be heard on this day. Said applications were submitted for the petitioner on the petition filed by him in the above entitled cause on June 29, 1944, as amended by Amendments Nos. One to Eight, inclusive, and on the affidavit of Lee C. Bradley, Jr., verified on December 23 1947, and for the various respondents thereto on said petition and amendments thereto. After consideration, the Court being of the opinion that the said J. P. Mudd and other parties to whom dividends on the preferred stock might be paid were solvent, and there was no allegation to the contrary, deems that there was no reason for the issue of the temporary injunctions prayed for."
The court then rendered its decree denying the applications for temporary injunctions.
Pretermitting the question of whether an appeal will lie, we apply the rule as set out in Slay v. Hess, 252 Ala. 455, 458, 41 So. 2d 582, 584, where the court said:
See, also, McLean v. Church of God, 254 Ala. 134, 138, 47 So. 2d 257; Lukes v. Alabama Power Co., 257 Ala. 590, 592, 60 So. 2d 349; Corte v. State, 259 Ala. 536, 542, 67 So. 2d 782.
*424 We do not think the trial court abused its discretion in denying the applications for temporary injunctions and it follows that the decree should be affirmed.
Affirmed.
This is an appeal from a decree of the circuit court granting motions to quash a rule nisi and dismissing as to each of four separate respondents, a petition which is referred to as the "contempt petition." It was filed by Edward Wilkinson, Jr., in his capacity as Executor.
The respondents to the contempt petition are Mr. McCall, Mrs. Mudd, Mr. Mudd and their attorney, Judge Horace Wilkinson. The contempt complained of is the execution of the instrument known as the Mudd-McCall Contract which was under consideration by this court in Riley v. Wilkinson, 247 Ala. 579, 25 So. 2d 384, 390, when the cause was here on appeal from a decree overruling the demurrer. The facts are set out fully in that opinion and will only be sketched briefly here.
In 1943 the Government entered a deficiency estate tax assessment for some $52,000 against the Estate of Edward Wilkinson, Sr., deceased. On October 16, 1943, a petition was filed by the coexecutors asking for instructions as to how to meet the payment of the deficiency assessment.
On January 20, 1944, the court entered a final decree which provided a plan for raising the money to meet the payment of the assessment through the sale of common stock of the Western Grain Company belonging to the estate, and enjoined disposition of the stock on a basis at variance with the decree. A supersedeas appeal was taken on January 20 and on January 21, 1944, Mrs. Mudd and Mr. McCall entered into the contract which it is claimed put them, Mr. Mudd and Judge Wilkinson in contempt. In the case of Riley v. Wilkinson, supra, this court held:
When the present contempt petition came one to be heard the trial court found, in part, as follows:
"1. That this is a civil contempt proceeding, and that if a contempt of this Court was committed, said Defendants, Horace C. Wilkinson, J. P. Mudd and Mrs. Marguerite W. Mudd, could not be punished as and for a civil contempt because they were not enjoined by the Decree of January 20, 1944;
"2. If a contempt of this Court was committed and even if the four named defendants could be punished as and for a civil contempt they could be punished only if it is shown that the estate of Edward Wilkinson, Sr., Deceased, or one or more of the beneficiaries of his testamentary trust estate suffered some loss or damage by reason of the act complained of:
"3. That the only loss complained of is that the Petitioner herein has incurred some liability for attorneys' fees in connection with the proceedings on the petition filed by the Petitioner herein on February 5, 1944, and/or in connection with this petition, as last amended, filed on November 15, 1944, in order to have the so-called `Mudd-McCall Contract' judicially declared to be a nullity, or in order to bring about its rescission by the parties thereto:
"4. That in addition to the fact that the said contract has been declared by this Court to be null and void as violating the Decree of this Court of January 20, 1944, it is obvious that it could never have had any force or effect unless joined in by Edward Wilkinson, Jr., as Co-Executor and Co-Trustee of the estate of Edward Wilkinson, Sr., Deceased, or unless upon proper application to this Court, Edward Wilkinson, Jr., in such capacities, had been directed to join in its execution or to execute a transfer of the shares of stock described *425 therein to Mrs. Mudd, because of the Decree of this Court of November 16, which is in full force and effect;
"5. That in view of the above, the petition of February 5, 1944, and this proceeding with reference to contempt were unnecessary to protect the Estate of Edward Wilkinson, Sr., Deceased, or the beneficiaries of his testamentary trust estate;
"6. That the Petitioner herein cannot voluntarily incur a liability not made necessary by the act complained of and thereupon seek to have these defendants punished as and for a civil contempt based solely upon such voluntarily incurred liability; * * *"
The contempt petition was dismissed and the costs taxed against Edward Wilkinson, Jr., individually.
We are asked to review this action of the court both by appeal and by alternative writ of mandamus. We quote the following from appellant's brief:
"After the final decision of this Court in Riley v. Wilkinson (247 Ala. [579], [25 So.2d 384]), the Mudd-McCall contract was rescinded by Mrs. Mudd and Mr. McCall. Thenceforth, there was no occasion to prosecute the contempt petition in order to secure that result. It was desirable, however, to continue to prosecute the petition for the purpose of inducing the courts of this state to hold that any of the respondents guilty of contempt should be required to pay the expenses involved in attempting to remedy the damage caused by the execution of that contract. Essentially, that damage resulted from the expenses incurred in filing and prosecuting the February 5, petition to effect and defending the January 20 decree in this Court."
The concluding paragraph of the Mudd-McCall contract is as follows:
"The undersigned (Bethea McCall as one of the executors of the Estate of Edward Wilkinson, Deceased), makes the sale herein referred to and executes and delivers this instrument on the following conditions: That he has the legal right and authority as one of the executors of the estate of Edward Wilkinson, Sr., deceased, to lawfully sell, assign, transfer and set over said stock or the interest of the estate of Edward Wilkinson, Sr., deceased, therein at this time, and should the said Bethea McCall, as such executor not have the legal right and lawful authority so to do at this time, then this instrument shall be construed so as to transfer, sell, assign and set over said stock to Mrs. Marguerite Mudd on the terms and conditions named herein as soon as the said Bethea McCall, as such executor, shall possess the legal right and lawful authority so to do."
It is clear that the contract was made subject to the condition that Mr. McCall had the legal authority and right to make it, and as the circuit court found in paragraph 4, supra, it could never have had any force or effect unless joined in by Edward Wilkinson, Jr., or the court should, upon proper application direct him to execute the contract as the co-executor of the estate under the decree of November 16, 1942. (It should be noted that the matters with which we are concerned in the instant case occurred prior to August 22, 1947, when Mr. McCall was removed as Co-Executor.)
The two pertinent paragraphs of the decree of November 16, 1942, are:
"IX. In the administration of the estate of Edward Wilkinson, Sr., deceased, the assent and concurrence of both of the co-executors shall be and is hereby made necessary to the validity of any action taken by the co-executors in the administration of the trusts created by the last will and testament of Edward Wilkinson, Sr., deceased, and in the administration of the five separate trusts above named. The assent and concurrence of both of the co-trustees shall be and is hereby made necessary and essential to the validity of any action as trustees.
"XI. In the event the co-executors of the estate of Edward Wilkinson, Sr., deceased, *426 or the co-trustees of the several trusts above named are unable to agree upon a decision as to any matter proper for their consideration, either or both of them may apply to the Court at any time for instruction regarding such matter. This shall apply to the employment of counsel and to all other matters proper for the consideration of or action by said executors and trustees."
We are in accord with the decree of the lower court dismissing the petition and taxing the costs, and it follows that the decree should be affirmed and the petition for mandamus denied.
Affirmed; writ denied.
This appeal and the petition for an alternate writ of mandamus are brought to review a decree rendered September 28, 1948, amended in certain formal respects on October 26, 1948.
The entry of the decree appealed from grows out of the following circumstances: Edward Wilkinson, Jr., as a co-executor of the estate of his deceased father, filed the instrument which we have heretofore characterized as the June 29 petition. See 6 Div. 694 and 6 Div. 966, this day decided. Among many other prayers of the petition was one to the effect that Mr. Wilkinson, Jr., be given certain instructions with respect to transferring to his sister, Mrs. Lanier, thirty-four shares of stock of Western Grain Company. It was alleged that Mrs. Lanier had bought the thirty-four shares of stock at a sale for taxes held by the Internal Revenue Department and that Mr. Wilkinson, Jr., in his representative capacity, had joined in that sale. Mr. Wilkinson, Jr., asked the court to approve title to the stock in Mrs. Lanier and to approve his action with respect to joining in the sale.
The sale of the thirty-four shares of stock has been involved in other litigation before this court. See Riley v. Wilkinson, 247 Ala. 231, 23 So. 2d 582, and Riley v. Wilkinson, 247 Ala. 579, 25 So. 2d 384, for a more detailed treatment of the facts concerning this transaction.
In 6 Div. 694 it is shown that the trial court sustained demurrer to the instrument filed June 29, 1944, on the ground that it was multifarious, but such action was not taken until after that aspect or phase of the instrument concerning the thirty-four shares of stock had been severed by the trial court, such action evidently being taken under the provisions of Equity Rule 15.
Mrs. Lanier, one of the persons named as a party respondent to the instrument filed June 29, 1944, after the order of severance had been made, filed what counsel describes as a cross-bill to that part which had been severed. The trial court dismissed Mrs. Lanier's so-called cross-bill after sustaining demurrer to it on the ground that "Mrs. Lanier can obtain whatever relief she is entitled to under certain aspects of the June 29 petition and her answer thereto." It is this decree which is here sought to be reviewed, not any ruling or decree relating to the so-called June 29 petition. This was a final decree whether that pleading be called a cross-bill or cross-petition and is sufficient to support an appeal. Hartford Accident & Indemnity Co. v. Green, 223 Ala. 96, 134 So. 487.
Although the decree was final so as to allow six months in which to appeal, Mrs. Lanier failed to perfect her appeal within that period of time. The appeal was taken on April 26, 1949, more than six months after September 28, 1948, the day on which the decree was rendered dismissing Mrs. Lanier's so-called cross-bill. True, the trial court amended the decree ex mero motu on October 26, 1948, but the amendment was not one of substance but was one to correct a mere clerical error apparent on the face of the original decree. In our recent case of Sadler v. Sessions, 261 Ala. 323, 74 So. 2d 425, 427, we approved the rule that "the day on which the judgment was rendered, and not the day on which the judgment entry was amended, the amendment not changing the character of the judgment, *427 is the time from which the limitation begins to run."
The time of appeal is jurisdictional and it follows, therefore, that the appeal must be dismissed.
Appeal dismissed. Writ of mandamus denied.
All the Justices concur in the foregoing decisions, except MAYFIELD, J., not sitting.
The judgment on the original application for rehearing filed by appellant was entered during the present term of this court, and, therefore, we have the right to order the case placed on our rehearing docket for further consideration. Kinney v. Pollak, 225 Ala. 229, 142 So. 390. It has been so ordered and upon such a rehearing and further consideration, we are of the opinion that we were in error in holding that the decree of September 28, 1948 was a final decree, and we now hold that such decree is of the kind from which an appeal could have been taken to this court within thirty days from its rendition. Sec. 755, Title 7, Code 1940; Nearhos v. City of Mobile, 257 Ala. 161, 57 So. 2d 819, and cases cited.
As shown in the original opinion, the appeal was not taken until April 26, 1949, much more than thirty days after the date on which the decree was rendered; hence our former judgment should not be disturbed for the appeal came much too late and therefore is subject to dismissal by the court ex mero motu. Since a timely appeal could have been maintained, the petition for alternative writ of mandamus is due to be denied.
Our former opinion is modified as above indicated, and as so modified, the rehearing is overruled.
All the Justices concur except MAYFIELD, J., who was not a member of the court on original submission. | February 3, 1955 |
9d1dc8b1-2925-4d01-9461-f9344f73d9bf | Mincy v. State | 78 So. 2d 262 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 262 (1955)
John H. MINCY
v.
STATE of Alabama.
1 Div. 608.
Supreme Court of Alabama.
February 24, 1955.
Mitchell Lattof and Mylan Engel, Mobile, for appellant.
Robt. Straub, Asst. Atty. Gen., and Samuel Kaufman, II, of counsel, for the State.
MERRILL, Justice.
Defendant was convicted of rape and sentenced to electrocution; a motion for a new trial was overruled and this appeal comes here under the Automatic Appeal Statute.Code of 1940, Title 15, §§ 382 (1)-382(13).
The defendant committed the rape about three o'clock in the afternoon of May 19, 1954, and left the home of the prosecutrix about 3:15. He was apprehended between four and five o'clock and was identified by the prosecutrix verbally admitted the crime in the presence of several officers while at the home of the prosecutrix after her identification of him, confessed in the presence of the solicitor, a stenographer and several witnesses that night between eight and nine o'clock and signed the record of the solicitor's questions and defendant's answers the next morning in the presence of several witnesses.
At the trial defendant pleaded not guilty and not guilty by reason of insanity. On the latter issue the only evidence was that he was absent minded, that he acted funny, that his nose bled one time for about a week and that he had left home once for two weeks without telling anyone where he was going. Defendant did not take the stand.
We discuss the matters raised in appellant's brief in the order therein presented.
The first is that "The alleged confession introduced by the State contains certain statements and allegations which are not in *263 substance or otherwise statements or admissions of the defendant and constitute a deprivation of defendant's constitutional right to be confronted by the witnesses against him."
The written confession was not introduced until after proof of the corpus delicti. This confession was in the form of questions by the solicitor and answers by the defendant. A confession is described in 22 C.J.S., Criminal Law, § 816, p. 1422, as follows:
The law is stated in State v. Scruggs, 165 La. 842, 116 So. 206, 213, as follows:
But defendant does not object so much to the form of the confession as he does to certain statements in the confession such as (1) the heading, (2) the identification by the solicitor of certain officers present who were unknown to defendant, and (3) certain explanatory comments or notes inserted by the stenographer. We illustrate each type with examples copied in appellant's brief.
(1) Heading of the confession: "Statement taken in the Sheriff's office on the second floor of the jail building on May 19, 1954."
(2) Statements of the Solicitor:
b. "That's officer W. C. Jackson, John."
c. "That is Mr. A. I. Chatam and he is a deputy sheriff."
(3) Explanatory notes by stenographer, i parenthesis.
a. "What's your name? (pointing to officer)."
Defendant objects to these statements on the ground that they are statements of the solicitor and the stenographer who did not take the stand and a denial of his constitutional right under § 6, Constitution of Alabama of 1901, to be confronted by the witnesses against him. We think the mere reading of these excerpts show that this contention is without merit. The heading is merely a label of what, when and where. The statements of the solicitor are for identification purposes and to apprise the defendant of the identity of the persons present. The notes by the stenographer give an understanding to words which would otherwise be rendered practically meaningless to one not present at the interrogation. We consider no citation of authority necessary to support this holding but what was said in Shelton v. State, 217 Ala. 465, 117 So. 8, 9, is appropriate here: "The fact that it (the confession) was reduced to writing by another person was no objection *264 to its admissibility; it appearing that it embodied the substance of the defendant's statements, and was voluntarily approved and signed by him as correct." For other cases dealing with one or more of these questions, see: Bennett v. State, 95 Tex.Cr. R. 422, 254 S.W. 949; Bolden v. United States, 63 App.D.C. 45, 69 F.2d 121; People v. Giro, 197 N.Y. 152, 90 N.E. 432; State v. Morris, 83 Or. 429, 163 P. 567; People v. Stevens, 78 Cal. App. 395, 248 P. 696.
The second matter raised was that the confession was not voluntary. The state called five witnesses to show that the confession was voluntary. There was no testimony to the contrary. The evidence is overwhelmingly convincing that the confession was voluntary. For example, after the defendant had made his confession on the 19th and it had been typed and presented to him on the 20th, he not only signed it but made several corrections in the transcript of the questions and answers and he initialed each correction.
The third contention is that the court erred in allowing testimony as to events which happened on the day prior to the offense. The prosecutrix was permitted to testify that she was hanging clothes in her yard the day before the attack attired in shorts and halter; that the defendant came along the road that went by her house and asked her for a drink of water; that she pointed to the hydrant and told him to help himself; that he drank and went on his way.
This evidence was admissible on the question of identification and the rule is stated in Ellis v. State, 244 Ala. 79, 11 So. 2d 861, 868: "Antecedent circumstances tending to shed light on the transaction or elucidate the facts or show preparation to commit the crime are always admissible in evidence. Harden v. State, 211 Ala. 656, 101 So. 442; Beaird v. State, 219 Ala. 46, 121 So. 38."
The other points raised by appellant are concerned with objections to the solicitor's argument to the jury. The record does not disclose the actual words said, but the objections are to "statements of the solicitor to the effect that, etc." As we said in Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So. 2d 594, 597, "* * * but if the argument was beyond the bounds of legal propriety the record does not sufficiently disclose what was said in its context for us to say the argument was improper. Ferguson v. State, 36 Ala.App. 358, 56 So. 2d 118." However, appellant does give four specific quotes in his brief and this being a death case, we have considered each of them and are convinced that the ruling in Sanders v. State, 260 Ala. 323, 70 So. 2d 802, 803, that "While the bare quotations may not give us a true picture of the exact status of the argument, it would seem to us that the statements of the solicitor were merely arguendo of his opinion of the case and what the result of the jury's verdict should be", is applicable here, especially since the remarks complained of in the instant case were not as emphatic as those quoted in the Sanders case.
There was no material conflict in the evidence. It was amply sufficient to support the verdict of the jury and the motion for a new trial was correctly overruled.
In accordance with our duty in cases of this character, we have examined the record for any reversible error, whether pressed upon us or not. We have dealt with all questions calling for treatment. We find no reversible error in the record and the judgment is due to be and is affirmed.
Affirmed.
All the Justices concur. | February 24, 1955 |
a261c931-bdee-4f0a-92ad-bd2da07080dd | Watkins v. Kelley | 80 So. 2d 247 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 247 (1955)
Alto C. WATKINS et al.
v.
Grover KELLEY.
4 Div. 800.
Supreme Court of Alabama.
January 20, 1955.
Rehearing Denied May 19, 1955.
John W. Gibson, Walter R. Byars, Troy, Joe C. Cassady, Enterprise, J. C. Fleming, Elba, for appellants.
Calvin Poole, Greenville, Sentell & Turner, J. O. Sentell, Jr., Luverne, for appellee.
SIMPSON, Justice.
This is an appeal from final judgment and a ruling on the motion for a new trial. Appellee moves to strike the reporter's transcript on the ground that it was filed too late. The appeal was taken on June 12, 1954. The transcript was filed with the clerk on September 28, 1954. Movant contends that there is a conflict between Supreme Court Rule 48, Code 1940, Tit. 7 Appendix and Act No. 886, General Acts of Alabama 1951, p. 1527. If such conflict exists, the act of the legislature must control such a status. Ex parte Foshee, 246 Ala. 604, 21 So. 2d 827.
Transcripts of the evidence were first provided for by Act No. 461, General Acts of Alabama 1943, p. 423. This act made no mention as to the time for filing transcripts except § 4, which read:
Supreme Court Rule 48 was promulgated to implement and make workable Act No. 461. In 1945 the legislature passed a bill, Act No. 382, General Acts of Alabama, 1945, p. 567, regulating the time for filing transcripts and the rulings of trial courts on exceptions filed thereto. This act was declared unworkable and void by this court in Dewrell v. Kearley, 250 Ala. 18, 32 So. 2d 812. Since this act was void, it was stated that Act No. 461 and Supreme Court Rule 48 still governed.
The legislature next passed Act No. 886, General Acts of Alabama 1951, p. 1527. This act is now codified as Title 7, § 827(1) et seq., Code of 1940, Pocket Part. This act regulates fully the matter of time of filing transcripts and time for securing the trial court's ruling on exceptions to the transcript. Particularly it is noted that each of these time periods may be extended by the trial court on good cause shown. §§ 2 and 6, Act No. 886, supra. Rule 48 does not provide for a definite time within which the party appealing shall make known to the reporter his desire for a transcript. Act No. 886 provides that it must be done within five days after perfecting the appeal. Rule 48 requires that the transcript be filed with the clerk within seventy days from the date of trial or date on which a motion for new trial shall have been acted upon by the court. Act No. 886 provides that the transcript must be filed with the clerk within sixty days from the taking of the appeal. Rule 48 provides for discretion to be exercised by this court in determining whether or not transcripts filed late should be considered. Act No. 886 provides that the trial court may extend the time for filing the transcript on good cause shown. Thus it will be seen that not only do the two provisions cover the same subject matter, but they are conflicting in their terms and mutually exclusory in their effects. As stated, in such a situation the act of the legislature must pervail and of consequence Supreme Court Rule 48 does not control.
Appellant submits affidavits to this court showing an excuse for not having the transcript filed on time. It cannot be considered. Such information should have been imparted to the trial court in an application for an extension of time.
It results, therefore, that the motion to strike the transcript of evidence must be granted.
As there are no assignments of error with respect to the record proper, the cause must be affirmed. So ordered.
Motion granted and judgment affirmed.
LIVINGSTON, C. J., and GOODWYN and MAYFIELD, JJ., concur. | January 20, 1955 |
5f49f96b-6faa-414e-b71e-48736a03e44e | Louisville and Nashville Railroad Co. v. Tucker | 80 So. 2d 288 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 288 (1955)
LOUISVILLE AND NASHVILLE RAILROAD CO.
v.
C. E. TUCKER.
6 Div. 768.
Supreme Court of Alabama.
March 10, 1955.
Rehearing Denied May 19, 1955.
*289 Gibson & Gibson, Birmingham, for appellant.
Hare, Wynn & Newell and Frank L. Parsons, Birmingham, for appellee.
STAKELY, Justice.
C. E. Tucker (appellee) instituted this suit against the Louisville and Nashville Railroad Company, a corporation, and J. W. Jones. The case was submitted to the jury on two counts. Count 1 alleges in substances that on to wit March 10, 1953, defendants were in charge or control of a railway locomotive and train at a point where the railroad tracks cross 8th Avenue, a public highway in Cullman, Alabama, when the locomotive collided with a vehicle which plaintiff was driving on said public *290 highway and as a proximate consequence of said collision plaintiff sustained severe and permanent injuries. The count alleges that the alleged injuries were the proximate consequence of the negligence of the defendants in causing or allowing said locomotive to collide with said automobile.
Count 2 was identical with count 1 except that it alleged that a servant or agent of the defendant acting within the line and scope of his authority as such wantonly injured plaintiff wantonly causing said collision thus proximately causing the injuries and damage. Count 2 further alleged that the defendants wantonly injured plaintiff on the date and at the place alleged by wantonly causing or wantonly allowing the locomotive to collide with the vehicle which plaintiff was operating so that as a proximate consequence plaintiff suffered the alleged injuries.
The defendants pleaded in short by consent the general issue with leave to give in evidence any matter which if well pleaded would be admissible in evidence with similar leave to the plaintiff to make like reply.
The jury returned a verdict against the defendant Louisville and Nashville Railroad Company in the sum of $50,000. There was a motion for a new trial which the court overruled and hence this appeal.
Testimony for the plaintiff tended to show that a pick-up truck of which the plaintiff was the driver was in collision with a passenger train of the railroad company on March 10, 1953. It was daylight and the weather was clear. The collision occurred within the city limits of Cullman, Alabama, at the point at which 8th Avenue, a paved street, which running slightly south and northwest, crosses the tracks of the railroad company, which run north and south diagonally at grade. There are five tracks in all designated, respectively, from east to west as follows: (1) the east hill track, (2) the north-bound main, (3) the passing track, (4) the south-bound main and (5) the storage track. 8th Avenue is about 40 feet wide where it crosses the tracks and is generally level over the entire crossing but rises slightly just east of the easternmost rail of the hill track. The width of each track from rail to rail is 4 feet 8 inches. The distance from the easternmost rail of the hill track to the corresponding rail of the next or north bound main is 26 feet, 7 inches. The remaining tracks are spaced so that the west rail of each is approximately 10 feet from the east rail of the next. The total distance from the east rail of the "hill track" to the point of collision was approximately 54 feet. An Alabama Stop Sign was situated about 19 feet east of the east rail of the "hill track" on the southerly side of 8th Avenue. A white cross-buck sign was situated near the west rail of the "storage track" on the southerly side of 8th Avenue. There were no buildings or other natural obstructions to obscure the view from a point east of the rail of the hill track, northward along the railroad tracks, which were straight for more than 600 feet north of the crossing. Approximately 1,500 feet south of the 8th Avenue crossing was the Cullman Railroad Station at which a north-bound train was standing on the "north-bound main track." About 700 feet south of the crossing a switch engine was engaged in placing cars on the "hill track." A stationary cut or string of four or five cars was on the "passing track" north of the 8th Avenue crossing. According to the tendencies of the evidence, the southernmost of these standing cars was about 100 feet north of the crossing.
An unpaved street, called Main Street, was east of the tracks. This street ran northeasterly roughly parallel with the tracks north of the crossing to and beyond a Standard Oil Company plant and entered 8th Avenue from a northerly direction at a point about 12 or 15 feet east of the east rail of the "hill track." The plaintiff had been up Main Street to the Standard Oil Plant and had secured a drum of gasoline in his pick-up truck. He had then proceeded southwesterly along Main Street to or near the point at which the latter ran into 8th Avenue, where he stopped. The truck was then facing generally in a southwesterly direction. The truck was next *291 seen by plaintiff's witness Duke, who was at a warehouse just east of the railroad tracks and about a block and a half south of the crossing. It was then moving westerly across the series of tracks at about 10 or 15 miles per hour, according to Duke, and was on track 2, the north-bound main track.
The train, consisting of a steam locomotive and five passenger cars, approached the crossing from the north on track 4, "the south-bound main track." Tendencies of the evidence show that its speed was 40 to 45 miles per hour. Duke saw the train some considerable distance north of the crossing but testified that it then disappeared from his view behind the standing cars on track 3, which he said extended to a point about 100 feet north of the crossing. Duke next saw the train when it cleared these cars and he testified that he did not hear any bell or whistle sounded until this time, when one whistle signal was heard by him. He heard the noise of the train before he heard the whistle. Plaintiff's truck continued westerly across the series of tracks until the left front side of the engine and the right front side of the truck made contact. The train was about 100 feet north of the crossing when Duke first saw plaintiff's truck. The truck was turned around once and after the collision was again headed west with one side of the truck on the edge of the crossing. It was not turned over. Plaintiff was lying unconscious on the street between tracks 2 and 3. The trains stopped about even with where the witness Duke was which he testified was a block or a block and a half south of the crossing. The crossing was open, level and readily visible.
The only other witness for the plaintiff who saw the truck in the vicinity prior to the collision was Isaac Rainey. He testified that as he left Reeves' store on 8th Avenue and drove north on Main Street, plaintiff's vehicle was on Main Street at the place at which it joined 8th Avenue, standing still with the rear end of it pointed northwardly toward the Standard Oil Plant. The witness passed by the truck and drove northwardly to his place of work about a block or a block and a half which he estimated took him about 31/3 minutes and then saw the train come by his place of business, The Cullman Ready-Mixed Concrete Company. As the back end was passing, Rainey heard the sound of the air-brakes going on. Rainey testified that he did not hear a train whistle or bell, but he would not testify that the whistle did not blow. He said "it might have blown." He stated that the northernmost of the standing cars on track 3 was about even with the Ready-Mixed Warehouse. He had seen the switch engine which was on track 1 south of the crossing moving southwardly when he was in the neighborhood of the crossing.
The plaintiff, C. E. Tucker, testifying in his own behalf, stated that he did not remember the collision nor anything for a period of 15 to 30 minutes before the collision. He could not say whether or not the train blew nor whether or not he stopped.
A Cullman city ordinance fixed a speed limit of 20 miles per hour on trains crossing any public crossing in the city limits. The limits of the city had been extended prior to 1948 but no signs along the railroad tracks indicated the limits of the city.
There was testimony with reference to the injuries and condition of the plaintiff after the accident. We shall refer to this testimony later in the opinion.
Charlie Harris, a witness for the defendant who was the fireman on the engine which was in the collision, testified that he had had 31 years experience as a fireman and was at his post on the left side of the engine as it approached the crossing. The engine was equipped with a bell, operating on air, which he had turned on ¼ mile before reaching the whistle post north of the crossing and that it rang until he turned it off after the collision. He first saw the pick-up truck when it was east of the "Hill Track", No. 1, moving west at 10 to 12 miles per hour. At this time the train was about a block north of the crossing going at about 35 miles per hour. There were no obstructions between him and the truck at this point. The crossing signal, 2 longs, *292 a short and a long, were blown on the whistle north of the crossing and the whistle was still blowing when the engine got on the crossing. He watched the truck and it continued from east of track 1 across and on to and across track 2 and was coming on toward the passing track and the witness figured it would not stop so he hollered "That'll do!", whereupon the engineer applied the brakes in emergency with all the pressure he had. The next he knew there was a crash. Harris was keeping a lookout as the train approached the crossing. The engineer controls the whistle and the witness did not know how far east of the first track the truck was when he first saw it but it had not gone on the first track and was between the first track and the cross-buck sign on the north side of the road. No signal was given by the fireman when the truck was first seen but when it reached and got on track No. 2 without diminishing speed he didn't think it was going to stop and the fireman hollered "That'll do!" The engine was 18 or 20 car lengths north of the crossing when he first saw the truck. One car length is 40 feet. The engine was 10 or 15 car lengths from the crossing when he hollered, "That'll do!" He couldn't see the man in the truck when he said "That'll do," but just could see the truck.
James W. Jones, the engineer, testified that he was at his place of duty on the right side of the engine, that he never saw the truck prior to the collision, the front of the engine was 65 to 75 feet from 8th Avenue when the signal "That'll do" was given him. He gave it as his opinion that the emergency brakes had just gotten on when the engine reached 8th Avenue. He further testified that the train was travelling 35 to 40 miles an hour 300 feet from the crossing and that the train was going 35 to 38 miles per hour at the time of the collision.
I. It is argued that the corporate defendant was entitled to have the verdict set aside and a new trial granted upon its motion and that the court was in error in refusing to grant the motion. The case was submitted to the jury on both counts. The court charged that no verdict could be found against the corporate defendant under the wanton count (Count 2) without a verdict also being found against the engineer, J. W. Jones. This charge was not challenged. As taken by the jury it was possible for a verdict to be found against the corporate defendant under Count 1 for and on account of (1) simple negligence of the engineer, (2) subsequent negligence of the engineer, (3) simple negligence of the fireman and (4) subsequent negligence of the fireman.
The jury found against the corporate defendant but in favor of the engineer Jones. R. L. Turner Motors v. Hilkey, 260 Ala. 577, 72 So. 2d 75. It follows that the verdict against the railroad must be rested solely upon some conduct of the fireman constituting simple, initial negligence or subsequent negligence one or the other or both, as the proximate cause of the collision of the train and the truck. As we read the briefs of counsel both sides agree to this situation. In fact the appellee insists that the testimony requires affirmance of the verdict and judgment of the lower court on the theory of conduct on the part of Charlie Harris, fireman, which constituted initial or subsequent negligence. As the train approached the 8th Avenue crossing the fireman was at his post on the left side of the engine keeping a lookout ahead and to the left of the track. He had no personal control either as to the throttle, brakes or whistle on the engine. It is uncontradicted that he was watching the crossing at 8th Avenue and that he observed plaintiff's pick-up truck which he watched from a point before it reached the first rail in its path until the moment of the collision. It thus appears that he was discharging his general duty prior to his discovery of the alleged peril of the plaintiff.
On cross examination Charlie Harris testified that he first saw the plaintiff's truck when the engine was 18 to 20 railroad car lengths north of 8th Avenue, a distance of 720 to 800 feet. A car length is 40 feet. He further testified that he gave the warning *293 to the engineer "That'll do" when the engine was 10 to 15 car lengths from the crossing. Upon careful consideration we are satisfied that a jury question is presented on the issue of subsequent negligence.
Charlie Harris was a witness for the defendant. It is strongly argued that the foregoing estimates of distance are not capable of rational belief under the circumstances. As we understand the argument, it is claimed that this testimony of the witness must be disregarded because it is so at variance with the laws of physics as to be patently incorrect and impossible of rational belief. Of course if the testimony of Charlie Harris is so inherently or physically impossible as to be manifestly false and contrary to the laws of nature, the testimony should be disregarded as being without evidentiary value even though uncontradicted. King v. Brindley, 255 Ala. 425, 52 So. 2d 870.
When analyzed appellant is in the position of seeking to have the court disregard what its own witness said as to distance because it does not mathematically check with what he said as to the speed of the two vehicles involved in the accident. We are asked to disregard the inference from the testimony of Charlie Harris that plaintiff was in a position of peril when the train was 18 to 20 car lengths north of 8th Avenue because according to the estimated speed of the truck and train a collision would have been a physical impossibility, since the truck would have passed the point of collision before the train reached that point. But courts have refused to accept the "physical facts rule" when based on speeds and variables. This type of argument is properly made to the jury but a court will not substitute for the fact finding of the jury some calculation made by correlating distance and speed. We do not think that when the witness stated the speeds involved he could not be mistaken, but when he stated the distances involved, he could be mistaken and so definitely mistaken that the verdict of the jury based on the evidence cannot stand. In Cyclopedia of Automobile Law and Practice by Blashfield, Vol. 10, Part 1, § 6597, p. 550, it is said:
In Lewis v. Shiffers, D.C.Mun.App., 67 A.2d 269, in refusing to allow the verdict to be set aside on physical facts disclosed by plaintiff's own testimony, the court said that speeds are only estimated and that the jury had photographs, diagrams as well as verbal testimony, and taken together presented a typical case for jury consideration.
In Crocker v. Johnston, 43 N.M. 469, 95 P.2d 214, 217, it is said: "The physical facts rule may not be invoked with respect to speed, position, etc., of movable objects if the facts relating to speed, position, etc., must be estimated by oral evidence."
In Zimmer v. Clark, 103 Pa.Super. 145, 156 A. 815, 816, in referring to the physical facts rule, the court said: "Such `incontrovertible physical facts' are never established by oral evidence as to the position, speed, etc., of movable objects." See Adams v. Armour & Co., 142 Pa.Super. 280, 16 A.2d 142; Hostetler v. Kniseley, 322 Pa. 248, 185 A. 300; Schaeffer v. Reading Transit Co., 302 Pa. 220, 153 A. 323.
See also Mobile City Lines v. Alexander, 249 Ala. 107, 30 So. 2d 4.
The verdict of the jury was evidently based upon the subsequent negligence of the fireman. Repeating to some extent, his testimony is that he first saw the truck when it was "right in there by the cross buck sign" before reaching the first track. At that time the train was going 35 miles per *294 hour and the truck was going 10 to 12 miles per hour. The truck continued on across the first track and the fireman did not give any signal. The truck was between the second and third track when he told the engineer "That'll do." The engine was 18 to 20 car lengths from the crossing when he first saw the truck and one car length is 40 feet. The engine was 10 to 15 car lengths away when the fireman said "That'll do." The fireman testified that he couldn't see the man in the truck when he said "That'll do" but just could see the truck.
According to the testimony of Jones, the engineer, the front of the engine was 65 to 75 feet from 8th Avenue when the signal "That'll do" was given to him. In his opinion the emergency brakes had just gotten on when the engine reached 8th Avenue. In his opinion the train was going 35 to 40 miles per hour 300 feet from the crossing and going 35 to 38 miles per hour at the time of the collision. There was no error by the court in refusing to grant the motion on the ground which we have discussed.
II. It is argued that the plaintiff was guilty of subsequent contributory negligence as a matter of law. We cannot agree with this contention. Without dispute the plaintiff stopped at a point on Main Street where the latter ran into 8th Avenue. Examination of the maps and diagrams shows that the point of stopping was practically at Track No. 1 and, therefore, the plaintiff was not guilty as a matter of law of contributory negligence within the principle laid down by such cases as Bason v. Alabama Great Southern R. Co., 179 Ala. 299, 60 So. 922. Ordinarily when crossing a series of tracks the duty to stop and look and listen is a continuing duty. Roberts v. Louisville & Nashville R. Co., 237 Ala. 267, 186 So. 457.
In the instant case the train which collided with plaintiff's truck was on Track No. 4 approaching from the north. It is insisted that even if there was subsequent negligence on the part of Charlie Harris, the fireman, there was subsequent contributory negligence as a matter of law on the part of the plaintiff in not stopping, looking and listening before crossing Track No. 4. We quote briefly from the testimony of Mr. Woodward, a member of the Cullman Police Force:
On redirect examination we quote the following:
The record shows that in addition to the train which struck the plaintiff's truck *295 there was another north-bound train at the station on one of the tracks and a train switching north of the crossing on another of the tracks. It is obvious that if the plaintiff had stopped on any of the tracks and had been injured by being struck by a train on the track upon which he had stopped, it could be seriously said that he was inviting his own injury by stopping on the track instead of keeping straight ahead once he started across the set of tracks.
We cannot say that as a matter of law plaintiff was guilty of subsequent contributory negligence because he did not stop on one of the tracks before he got to Track 4, where to do so would increase his danger or would increase his danger so far as he could tell. The court acted correctly in submitting all of this to the jury. Gulf, M. & O. R. Co. v. Sims, 260 Ala. 258, 69 So. 2d 449; Louisville & N. R. Co. v. Young, 153 Ala. 232, 45 So. 238, 239, 16 L.R.A., N.S., 301; Atlantic Coast Line R. Co. v. Flowers, 241 Ala. 446, 3 So. 2d 21.
III. Assignments of error are based on plaintiff's closing argument to the jury. It is claimed that in the closing argument counsel undertook to supply deficiency of proof brought about by plaintiff's amnesia by stating to the jury what his client "might tell you." We are not entirely sure that counsel pointed out to the trial court the portion of the argument deemed objectionable. Pacific Mut. Life Ins. Co. v. Yeldell, 36 Ala.App. 652, 62 So. 2d 805. Assuming, however, that the objection did specifically and sufficiently indicate or separate the objectionable remark, we do not consider that the remark constitutes reversible error. Considerable latitude is permitted counsel in arguing inferences from the evidence. City of Birmingham v. Bowen, 254 Ala. 41, 47 So. 2d 174. Furthermore the right of counsel to pursue his own line of argument within legitimate bounds is a constitutional right and as much discretion is allowed the trial court as is necessary to a due and orderly procedure. Birmingham News Co. v. Payne, 230 Ala. 524, 162 So. 116. We will not too narrowly criticize arguments of counsel in the matter of inferences drawn for illustration or figures of speech adopted in pressing a point. Jones v. Colvard, 215 Ala. 216, 109 So. 877; Birmingham Electric Co. v. Cleveland, 216 Ala. 455, 113 So. 403. In the cases cited by appellant counsel referred to an absent witness and gave the impression that if that witness were in court, he would give certain testimony. In the instant case the plaintiff actually took the stand and stated that he had retrograde amnesia and could not give testimony as to whether, among other things, he stopped or not. Obviously under these circumstances the effect of the argument could not be that Mr. Tucker under any circumstances could testify one way or the other.
IV. Error is predicated on the action of the court in overruling the motion to set aside the verdict and grant a new trial on the ground that the verdict is excessive. As stated, the verdict was for $50,000, based on compensatory damages. The plaintiff, C. E. Tucker, was 51 years of age at the time of the accident. He had a life expectancy at the time of the trial of 20.37 years. According to the testimony of Dr. Williford the plaintiff as a result of the accident suffers from an injury to his brain. After the plaintiff had been in the hospital in Cullman ten days under the care of Dr. Williford, Dr. Williford referred the patient to neuro-surgeons in Birmingham, Drs. Galbraith and Graham. Prior to the accident the plaintiff was an able-bodied farmer operating his farm of 87 acres in Cullman County, Alabama. According to Dr. Williford the plaintiff will not be able to go back to work as a farmer and he cannot expect any additional bodily improvement. According to Dr. Williford the plaintiff's brain is not functioning like a normal man's brain and in his opinion it never will so function. He gave it as his opinion that no improvement could be expected in the thinking processes of the plaintiff.
Dr. Stanley Graham, the neuro-surgeon and the partner of Dr. Garber Galbraith, testified that he first saw the plaintiff at the Jefferson Hospital after the plaintiff had been in the Cullman hospital. At the *296 time he saw him the plaintiff was still in a semi-comatose state. He testified that he could be aroused and he would take a little nourishment. He didn't know where he was. He didn't realize what was going on about him. He had some weakness of the left arm and left leg but there was no sign of pressure on the brain. A spinal tap was done and the pressure was normal. The fluid was slightly blood-tinged, indicating that he had a bruise of the brain.
Dr. Graham testified that after Mr. Tucker went home he was very dizzy when he walked and he had to use a cane and had to watch where he was going to keep from stumbling, that he had about reached all the improvement that could be expected. He further testified that while the plaintiff got around he reacted like a man fifteen or twenty years older than he actually was. His memory was poor and his mental reactions were those of a man of a good many years more than his actual ageprobably 10, 12 or 15 years older than he is right now. He further testified that the plaintiff's brain was bruised, that there is a small amount of blood diffusedly over the brain whereas in a stroke there is a large amount of blood in one particular location, that the effect is that "it works the result to that degree in the same way by putting blood there on the surface of the brain," that the presence of the blood and the blow, "`the initial blow and the blood and the swelling will cause some of the cells of the brain actually to die."
Dr. Graham further testified as to the severe injury which resulted in the plaintiff's loss of balance so that without fixing his eye on something before him, "they are partially lost in space because the little balancemechanisms in the inner ear isn't telling them just exactly" and "if he didn't look he would stagger and bump into things."
Dr. Graham in testifying as to the meager improvement of the plaintiff said: "He was disoriented, he didn't know where he was or who he was or when it was." That his memory is bad and that his ability to concentrate is bad and such things are those which you would naturally expect from an injury of this severity." He further testified that if the plaintiff is attempting to carry on a conversation of any connected or continuous nature, he loses the thread of it and loses concentration and his head begins to hurt him and he gets nervous and agitated and these symptoms you would expect from a severe head injury. And further you would expect "a bad feeling of not being right" and that "there was enough blood in the spinal fluid to show that there was a hemorrhage in the brain as a part of the bruising process." He testified that there is a machine called the electroencephalogram which does for the brain something like an electrocardiogram does for the heart. The readings of the electroencephalogram show the following: "An abnormal EEG which means that considering the fact that the tip of the temporal lobes is an area frequently contused in head injuries, and that such contusions are frequently bilateral, this EEG would point to the possibility of such lesions being present in this case. Serial EEG's at intervals of 3-6 months might be helpful in indicating whether or not the possible contusion would give rise to an epileptogenic focus resulting in phychomotor seizures."
Dr. Graham further testified that in his opinion the plaintiff will never be able to do the type of work that he did before.
Miss Esther Goodwin, a school teacher who had boarded with Mr. and Mrs. C. E. Tucker for four years, testified that she knew Mr. Tucker both before and after the injury. According to her before the accident he was in very good condition. He was a good hard working man and a farmer and he was a normal man before the accident. She testified that after the accident he could not concentrate like he once could, that he cannot now think, that he will be talking in conversation and it seems like it just leaves him and then he will start off on something else and maybe he will be talking to some one and will just stop and start doing this (indicating) and look way off, that was not the way he carried on a conversation before the accident. She further testified that he cannot now walk at *297 all without his cane or stick, that he now spends most of his time in his house where he just sits all the time, "all day dreaming or studying; I just don't know what you would call it." She further testified that he does not now attend to any of his work out on the farm, that his only activity around the house is just to bring in coal. She further testified that when he "walks around the house he can't walk without his stick and seems kinder wobbly when he walks," that he never makes a step without his stick, that the condition which she has been describing has been true since April of last year up until the present time and that from her observation he has not seemed to improve, that he goes to church in a car and seems to know where he is going when he gets in the car but sometimes he meets and greets his old friends and sometimes he just sits there and he doesn't meet them like he did. She further testified that since the accident he is not easy to get along with as he was before he got hurt, that she never saw him when he looked one bit mad before he got hurt and after he got hurt he will get mad with anything. She further testified that she saw the back window of the truck after the accident and "the print of his head back there where it had hit and sunk in."
According to the testimony of Mrs. C. E. Tucker her husband was a farmer but had done other work, having worked for the county and for a neighboring concern in a grist mill, that before the accident he raised on the farm cotton, corn, maize, some sweet and Irish potatoes, garden vegetables and also raised chickens, hogs and cows, that he had raised most of the stuff that his family ate except for such things as sugar and coffee, that before the accident plaintiff would get up at 4 o'clock in the morning and work from sun to sun. She further testified that after the accident she first saw her husband unconscious and that for the ten days he was in the Cullman Hospital he was not normal but was out of his head and that he was in the hospital in Birmingham several days before he came to himself and could be told what had happened to him. She testified that since the accident she gives him little things to do to try to help him pass off the time, that she lets him bring in a little coal or kindling or something like that. She further testified as to his inability to do any substantial work by showing that they had a hog to kill and that his brother and one of the neighbors came to help and that they didn't have any way of pulling the hog down and she said to her husband, "You reckon you could drive the tractor up there?" He drove the tractor up to the barn and back down to the house about 100 yards and when he got off that tractor he couldn't stand up and he staggered the rest of the day, "just staggering like a drunk man." She further testified that at times he can talk pretty well and at times "it just leaves him and he will just stare at you." He can't express himself. He can't think. He can't remember anything hardly. He is just not like he was. He is easily upset. She further testified that prior to the accident he had an even disposition. Since the accident he spends most of the day at home "just sits in a rocking chair." She saw him when he was brought to the witness room for the trial and he was "crying."
The plaintiff himself testified in the case. He said "I don't remember being in the Cullman Hospital. They said I was but I don't remember anything about it." He testified that the reason he got upset and cried the day before and during the trial was that he was nervous and worried and that this had been his condition since his accident. That he used to feed the hogs and chickens but he doesn't do that now and that he has no hogs left, that the only work he can now do is to bring in kindling and a little coal. He testified: "I can walk if I am just looking right where I put my feet and if I don't, if I look off or around my head gets to swimming and I am liable to just pitch one way as the other, but I can walk by noticing where I am going." He testified that his head "is swimming now," that he never now feels good.
In summation we think that the testimony tends to show with reference to the *298 plaintiff's injuries that he has sustained a brain injury which did three things:
1. Inflicted total physical disability.
2. Inflicted a mental disability, likewise total for earning purposes, and something less than total, but still a very substantial mental disability for all purposes.
3. It altered his personality, left him a trembling invalid, who never feels good a single day of his life, on the verge of tears frequently, wringing his hands and only occasionally capable of carrying on a rational conversation.
This court has laid down the principle that a verdict will not be disturbed as excessive where the trial court has refused to disturb the amount unless so excessive as to indicate passion, prejudice, corruption or mistake. Montgomery City Lines, Inc., v. Davis, 261 Ala. 491, 74 So. 2d 923. And we have held that the correctness of a jury's verdict is strengthened when the presiding judge refuses to grant a new trial. Simpson v. Birmingham Electric Co., 261 Ala. 599, 75 So. 2d 111; Gulf, Mobile & Ohio R. Co. v. Sims, 260 Ala. 258, 69 So. 2d 449. Furthermore this court has said that, "Where there was evidence which, if believed, authorized the verdict [this court] will not reverse a judgment refusing a new trial". Montgomery City Lines, Inc., v. Davis, supra [261 Ala. 491, 74 So. 2d 926]; Union Central Life Ins. Co. v. Guffin, 232 Ala. 254, 167 So. 321; Ray v. Richardson, 250 Ala. 705, 36 So. 2d 89; Kurn v. Counts, 247 Ala. 129, 22 So. 2d 725.
Among our own cases we find where a verdict for $30,000 was sustained in 1920 in Illinois Central R. Co. v. Johnston, 205 Ala. 1, 87 So. 866, 872, and in Southern Railway Co. v. Pullen, 248 Ala. 665, 29 So. 2d 228, a verdict for $40,000 returned in 1946 was not regarded as excessive.
Our cases consistently hold that the present value of a dollar as compared with its value in former years must be considered in determining whether the amount awarded by a jury is excessive. Birmingham Electric Co. v. Thompson, 251 Ala. 465, 37 So. 2d 633; Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So. 2d 830; Magic City Bottling Co. v. Tolbert, 34 Ala.App. 516, 41 So. 2d 619.
Considering the elements of damage in the case and remembering that the authority vested in courts to disturb the verdict of a jury on the ground of excessive damages is one which should be exercised with great caution and discretion, we are constrained to hold that the ruling of the court refusing to set aside the verdict should be upheld. We are unable to say that the amount of the verdict is the result of passion, prejudice, partiality or corruption on the part of the jury. We do not feel authorized to set the verdict aside especially in the face of the refusal of the trial court to do so after he heard the evidence and saw the plaintiff before him. Central of Georgia Ry. Co. v. White, 175 Ala. 60, 56 So. 574; Authorities supra.
We have carefully examined other assignments of error but do not consider that these other assignments require further discussion.
It is our conclusion that the judgment of the lower court should be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | March 10, 1955 |
811a7b81-3b8a-4bd7-939c-6d136cc08130 | Tarlton v. Tarlton | 77 So. 2d 347 | N/A | Alabama | Alabama Supreme Court | 77 So. 2d 347 (1955)
Curtis TARLTON
v.
Louise A. TARLTON.
6 Div. 799.
Supreme Court of Alabama.
January 13, 1955.
*348 W. S. Pritchard, Jr., Pritchard, McCall & Jones, Birmingham, for appellant.
Chas. Peay and Albert A. Rosenthal, Birmingham, for appellee.
LAWSON, Justice.
This is an appeal from a decree overruling a demurrer to a bill in equity. The bill is essentially an original bill in the nature of a bill of review to cancel a decree of divorce because of fraud in its procurement or concoction. The bill also seeks separate maintenance and other relief, but *349 such relief is dependent upon the cancellation of the divorce decree.
The decree appealed from overruled the demurrer generally, without referring to the demurrers addressed to the several aspects which the demurrant construed the bill to encompass. Under our holding in Rowe v. Rowe, 256 Ala. 491, 55 So. 2d 749, the effect of such a decree is a ruling only on the demurrer to the bill as a whole and hence only grounds going to the bill as a whole, which are sufficiently argued here, will be considered on this appeal. See Percoff v. Solomon, 259 Ala. 482, 67 So. 2d 31; Shaddix v. Wilson, 261 Ala. 191, 73 So. 2d 751.
Decrees entered in divorce cases are subject to vacation and annulment on the same grounds as other decrees and there is no doubt of the general jurisdiction of a court of equity to vacate a decree of a court of competent jurisdiction for fraud. Hooke v. Hooke, 247 Ala. 450, 25 So. 2d 33.
To sustain a bill to vacate the judgment or decree of a court of competent jurisdiction for fraud, the bill must allege facts showing that the fraud was in the concoction or procurement of the judgment or decree and must be extrinsic or collateral to the matter which was tried and determined. However, this has been held to include false and fraudulent statements in a bill which were necessary to invoke the power or jurisdiction of the court to render the decree under attack. Hooke v. Hooke, supra.
Under the provisions of §§ 27 and 29, Title 34, Code 1940, it was necessary for the appellant, respondent below, in his suit for divorce filed on June 5, 1945, to allege and prove that he was a bona fide resident (citizen) of the state of Alabama at the time the bill was filed and had been such for twelve months prior thereto, inasmuch as appellee, the respondent in the divorce proceedings, was alleged to have been a nonresident of this state and also because the ground of divorce was her alleged voluntary abandonment of appellant. Hooke v. Hooke, supra, and cases there cited.
The allegations in the bill, admitted on demurrer, that appellant was not a bona fide resident citizen of Alabama at the time he filed his bill for divorce against appellee and had not been such for a period of twelve months prior thereto, but was at the time the bill was filed a resident of the state of South Carolina, shows a fraud on the court in the procurement of the divorce decree within the rule of our decisions. To the same effect are the averments of the bill, admitted on demurrer, relating to the alleged false and fraudulent averments by appellant in his bill for divorce and in the affidavit of nonresidence that he did not know appellee's address. Hooke v. Hooke, supra; Montgomery v. Montgomery, 261 Ala. 416, 74 So. 2d 254.
We are of the opinion that the averments of the bill here under review make out a clear case of actual fraud in the procurement or concoction of the said divorce decree and hold, therefore, that the trial court did not err in overruling those grounds of demurrer taking the point that the bill was deficient in that respect.
The decree sought to be vacated was rendered August 18, 1945. The instant proceeding was not instituted until June 11, 1954. We have held that an original bill in the nature of a bill of review should be filed within the period limiting the filing of bills of review. Laney v. Dean, 258 Ala. 37, 61 So. 2d 109, and cases cited. Equity Rule 66, Code 1940, Title 7, Appendix, which became effective January 1, 1940, provides in pertinent part as follows: "A bill of review may be filed without first applying for leave, at any time within three years after the rendition of a decree which is final as to the right of any party, however he may have come or been brought into court, and whether or not a decree pro confesso was taken against him. * * *" (Emphasis supplied.)
But the limitation prescribed by Equity Rule 66 is not arbitrarily applied to original bills in the nature of bills of review *350 where special facts or circumstances are shown which excuse the delay. Laney v. Dean, supra.
Some of the pertinent rules appear in the following quotation from our case of Urquhart v. McDonald, 252 Ala. 505, 42 So. 2d 9, 10:
A complainant seeking to bring himself within the one-year exception has the burden of averment and proof of failure to discover the fraud by the exercise of due diligence. Quick v. McDonald, 214 Ala. 587, 108 So. 529. Among other averments such a bill must contain allegations going to show how complainant obtained the information on which the suit to vacate the decree was filed. Urquhart v. McDonald, supra.
The complainant alleged that she had no "knowledge, notice or intimation of any kind" concerning the divorce decree of August 18, 1945, until on, to wit, September 11, 1953, when the respondent used said divorce decree as a defense to an action of adultery instituted in the state of South Carolina by the complainant.
Complainant's bill was filed within one year from the date on which she avers she first had knowledge of the alleged fraud and it is sufficiently shown therein how complainant obtained the information concerning the decree of August 18, 1945.
But, as noted above, the complainant had the burden of averment to the effect that her failure to discover the alleged fraud at an eariler date was not due to an absence of due diligence on her part. We think the complainant has met that burden. According to the averments of the bill, neither party has ever lived in this state. Although they lived in different states after their separation in September of 1944, complainant living in New York and the respondent in South Carolina, no fact came to complainant's attention sufficient to promote inquiry as to whether any court of this distant state had rendered a decree purporting to grant her husband a divorce. See Lucas v. Lucas, 258 Ala. 515, 64 So. 2d 70.
We hold that the grounds of demurrer taking the point that the instant bill was not timely filed were overruled without error.
An original bill in the nature of a bill of review must state the decree and proceedings which led to it. Graves v. Brittingham, 209 Ala. 147, 95 So. 542. We are inclined to the opinion that the allegations of the bill in this respect are sufficient. The decree sought to be vacated is made an exhibit to the bill and the proceedings which led up to it are adequately described in the bill. See McDonald v. Pearson, 114 Ala. 630, 21 So. 534.
We find no merit in those grounds of the demurrer directed to the bill as a whole which have been argued here. It follows, therefore, that the decree appealed from must be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | January 13, 1955 |
7abb8976-8f29-4229-a2c6-35a182ed9b7a | Rudicell v. Rudicell | 77 So. 2d 339 | N/A | Alabama | Alabama Supreme Court | 77 So. 2d 339 (1955)
Carolyn D. RUDICELL
v.
Carmen RUDICELL.
6 Div. 758.
Supreme Court of Alabama.
January 13, 1955.
*341 Tweedy & Beech, Jasper, for appellant.
Fite & Fite and Rankin Fite, Hamilton, for appellee.
LAWSON, Justice.
The original bill, filed by the wife against the husband, sought a divorce on the grounds of cruelty and sought custody of their four-year-old son.
The husband answered, denying the alleged cruelty as well as the averments that it would be to the best interest of the minor son that his care and custody be awarded to the wife. Later the husband amended his answer so as to make it a cross bill, alleging that his wife, prior to the separation of the parties on July 17, 1953, "had committed acts of adultery at various times and occasions with one Clarence E. Gunnin," and praying that he be granted a divorce and that the custody of the child be awarded to him. The wife answered the cross bill, denying its material allegations.
On the hearing, the trial court entered a decree denying the complainant relief. The husband was granted a divorce as prayed in his cross bill and the care, custody and control of the little boy was awarded to the husband and to the latter's mother and father.
This appeal is prosecuted by the wife and errors are assigned predicated on the denial of relief to her and the granting of the relief on the cross bill.
The testimony was taken ore tenus before the trial court and, hence, its findings of fact are to be accorded by this court an authority equal to that of the verdict of a jury. LeMay v. LeMay, 205 Ala. 694, 89 So. 49.
In cases such as this, it is unnecessary that objection be made to any testimony or evidence which may be offered by either party. The trial court is to consider only such testimony as is relevant, material, competent and legal, and on appeal this court shall consider only that character of testimony unless specific objection was interposed and a ruling made on such objection. § 372(1), Title 7, 1953 Cum. Pocket Part, Vol. 2, p. 71, General Acts 1943, p. 105; Redwine v. Jackson, 254 Ala. 564, 49 So. 2d 115; Shade v. Shade, 254 Ala. 195, 48 So. 2d 39; Levy v. Levy, 256 Ala. 629, 56 So. 2d 344. See LeMay v. LeMay, supra. Mr. Justice Sayre, writing for the court in LeMay v. LeMay, supra, made the following comments concerning a problem which the rules alluded to above present on appeal: "Circuit courts sitting in equity are not required to pass upon specific objections to testimony, and generally all such questions are disposed of by a recital to the effect that only competent and relevant evidence has been considered. One result of this method is that, although the record may bristle with evidence that should have been excluded, this court cannot know what was considered in the trial court, and yet must, in general, upon review of findings of fact, indulge a weighty presumption in favor of the ruling of the trial court."
The wife's bill charging her husband with cruelty was filed on August 6, 1953, and was never amended. The husband's cross bill accusing his wife of adultery was filed on November 6, 1953. It was never amended. Testimony was taken on April 22 and 23, 1954, and final decree entered on the date last mentioned.
The wife introduced evidence tending to show that her husband had committed acts of cruelty upon her person subsequent to the date she filed her bill and the husband presented evidence bearing on the relationship of the wife with her alleged paramour after his cross bill was filed. Such evidence was admissible but the right to a decree of divorce could not be rested thereon. The rule in this state concerning the admissibility of subsequent conduct in divorce actions is stated in Scott v. Scott, 215 Ala. 684, 112 So. 218, in the following language: "While evidence tending to show acts of illicit sexual intercourse between the defendant and Owens subsequent to the filing of the bill was admissible, when offered in connection with or subsequent to the introduction of evidence tending to show adulterous intercourse between the parties during *342 the time covered by the averments of the bill, the right to relief must rest upon proof of the adulterous intercourse charged in the bill. Morrison v. Morrison, 95 Ala. [309], 310, 10 So. 648; Alsabrooks v. State, 52 Ala. 24; Lawson v. State, 20 Ala. 65, 74, 56 Am.Dec. 182." See Renner v. Renner, 177 Md. 689, 12 A.2d 195, 127 A.L.R. 679.
The marriage took place in January, 1948, when both of the parties were nineteen years of age. The following year they built a home in Hamilton, which they both occupied until September 2 or 3, 1953, although they ceased to cohabit as man and wife on July 17, 1953, and, as before noted, the wife's bill was filed on August 6, 1953. On September 2 or 3, 1953, the wife and son moved to the home of her parents situated a few miles from Hamilton.
Complainant-cross-respondent testified that in 1951 her husband hit her in the face when he became angry because she accused him of correcting their young son too severely. The husband admitted that he slapped his wife on that occasion, but claimed that he did so only to protect himself. The parties continued to live together as man and wife for approximately two years after that occurrence and, hence, such action of the husband, standing alone, would not warrant a dissolution of the marital relationship at this time. See Hammon v. Hammon, 254 Ala. 287, 48 So. 2d 202.
The wife testified as to three other acts of violence committed upon her person by her husband, one of which she claims took place after she filed her bill. But the evidence as it relates to those alleged occurrences is in hopeless conflict and we see no occasion to dissect and weigh it here. The burden was upon the wife to reasonably satisfy the court as to the truth of her charge of conduct on the part of her husband amounting to culpable cruelty. Hammon v. Hammon, supra, and cases cited. The trial court, who saw and heard the witnesses, concluded that the husband did not commit the alleged uncondoned acts. We do not feel justified in disturbing that conclusion. Apperson v. Apperson, 217 Ala. 157, 115 So. 229.
We come now to consider the appellant's assertion that the evidence does not warrant a decree of divorce in favor of the husband on the ground of adultery.
It is a fundamental principle of the law of divorce that direct proof of adultery by evidence of eyewitnesses is not required, for, on account of the secret nature of the act, it is seldom susceptible of proof except by circumstantial evidence. However, its stigma is so degrading and humiliating and its legal consequences so serious, that the courts should never accept as sufficient proof of the commission of the act of adultery anything less than circumstances such as would lead the guarded discretion of a reasonable and just man to the conclusion that the act of adultery has been committed. Gardner v. Gardner, 248 Ala. 508, 28 So. 2d 559, and cases cited.
The burden of proof is on the accuser and evidence showing no more than a mere suspicion of unchastity is insufficient to support a decree of divorce. Box v. Box, 253 Ala. 297, 45 So. 2d 157; Chamblee v. Chamblee, 255 Ala. 35, 49 So. 2d 917. But the fact of adultery may be inferred from circumstances leading to it as a necessary conclusion. Morrison v. Morrison, 95 Ala. 309, 10 So. 648.
It would perhaps be an understatement to say that the evidence as it bears on the relationship that existed between Mrs. Rudicell and Gunnin before the crossbill was filed creates only a suspicion that they were guilty of adultery. True, there was no direct evidence of any eyewitnesses to an adulterous act. But Mrs. Gunnin, the wife of Clarence E. Gunnin, testified that on one occasion she located them in the office where they both worked at about 4:15 in the morning. The lights were out and the office door was locked. The explanation for this unusually early visit to the office is far from convincing. By the time of the separation it was common talk in the town of Hamilton that Mrs. Rudicell and Gunnin were "running around together" and because *343 of such conduct a number of the good people of the community testified that just prior to the separation Carolyn Rudicell bore a bad reputation, whereas there is evidence to the effect that prior to her association with Gunnin she had enjoyed a good reputation. Certain it is that the record before us supports no conclusion other than that the separation of Carolyn and Carmen Rudicell resulted from the former's infatuation for Gunnin, although Carmen Rudicell was not willing to finally concede that an adulterous relationship had existed until after he had found them on the country roads of an adjoining county a few weeks prior to the time of trial.
The record is replete with evidence bearing on the conduct of Mrs. Rudicell and Gunnin from the time the former separated from her husband up until approximately the time the cause was tried below, which can lead to no conclusion other than that they frequently engaged in the act of adultery.
As before pointed out, the evidence of subsequent acts is admissible as tending to explain evidence already introduced in reference to the act originally charged.
We have heretofore stated the rule applicable to our review of cases where the testimony is taken orally before the trial court. Under the evidence presented, we cannot say that the trial court erred in decreeing a divorce in favor of the husband on the ground of the adultery of his wife.
It is a well-settled rule in this state that in determining who should have the custody of children, the best interests and welfare of the child or children should be the controlling and paramount interest.
A careful examination of the entire evidence convinces us that the welfare and best interests of the minor involved in this cause will be served in permitting its custody and control to remain in the persons named in the decree of the trial court, subject, of course, to the right of the trial court to modify the decree in that respect if the best interests of the child require such modification.
The decree of the trial court is due to be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | January 13, 1955 |
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