id
stringlengths 36
36
| title
stringlengths 1
243k
| citation
stringlengths 3
718
| docket_number
stringlengths 1
304
⌀ | state
stringclasses 24
values | issuer
stringclasses 24
values | document
stringlengths 0
1.94M
| date
stringlengths 3
18
|
|---|---|---|---|---|---|---|---|
0c642be0-0993-464c-ae29-2ab2fa26b968 | Penton v. Favors | 78 So. 2d 278 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 278 (1955)
William L. PENTON et al. (Penton-Coker Motor Company)
v.
Mrs. William H. FAVORS.
6 Div. 782.
Supreme Court of Alabama.
January 13, 1955.
Rehearing Denied March 10, 1955.
*280 Marvin Williams, Jr., Davies & Williams, Birmingham, for appellants.
Clifford Emond, Birmingham, for appellee.
PER CURIAM.
This is an appeal by defendants from a judgment for personal injuries received by plaintiff while riding in an automobile belonging to defendants who had loaned it to the plaintiff's husband and which was being driven by him; but the accident was not charged in the complaint to have been due to his negligence or incompetency.
The suit was submitted to the jury on two counts, "B-1" and "C", virtually the same in legal effect. So far as here material, count B-1 alleges that plaintiff's husband was at that time a purchaser or prospective purchaser of a used automobile from defendants; that defendants delivered to him a used automobile for use by him until they could deliver the automobile that was being purchased by him, and authorized him to drive said automobile on the public highways in the State until they could deliver to him said car being purchased; that the brakes or steering mechanism on the car thus loaned were in a defective condition; and while plaintiff was riding in said automobile as a passenger, the car being operated on a described highway in Alabama, the brakes or steering mechanism locked rendering it impossible to steer, thereby causing the car to run off the highway and to injure plaintiff as described in the complaint. It is averred that her injuries were caused as a proximate result of the negligence of defendants in negligently delivering said used automobile to plaintiff's husband and authorizing him to operate and drive it over and along the public highways in the State with the brakes or steering mechanism of said automobile in a defective and dangerous condition.
The first assignment of error goes to the judgment overruling a demurrer to count B-1, supra. It was apparently patterned after the complaint upheld in the case of *281 Al DeMent Chevrolet Co. v. Wilson, 252 Ala. 662, 42 So. 2d 585, and in many respects the two cases are similar. In the DeMent case the injured person was not riding as a passenger in the car, but on account of the brakes locking a wheel the car ran into plaintiff's vehicle then and there on the same street. That is the same legal status of the cases of Motor Terminal & Transportation Co. v. Millican, 244 Ala. 39, 12 So. 2d 96, and McGowin v. Howard, 251 Ala. 204, 36 So. 2d 323.
Appellants contend that the same principle does not apply here because appellee is alleged to have been a passenger in the car and, therefore, subject to our guest statute. Section 95, Title 36, Code. That question is raised by a ground of the demurrer. The complaint does not allege that appellee (plaintiff) was riding as a guest in the car without the payment of compensation therefor. But if the statute here applies, the duty would be on defendants to plead it unless the complaint on its face shows its application. The complaint is based on a common law cause of action, of which the court has general jurisdiction. Aircraft Sales and Service, Inc., v. Gnatt, 255 Ala. 508, 52 So. 2d 388; Blashfield on Automobile Law and Practice, section 2313, page 361, note 15.5.
When the court is of general jurisdiction, and the claim as alleged is one which is prima facie within that jurisdiction, it is not necessary to alleged additional facts with respect to it in order to state a cause of action. But where the jurisdiction of the court over the cause of action is statutory and limited it is indispensable that the jurisdictional facts specified in the statute be alleged. 71 C.J.S., Pleading, § 76, page 191; Town of Flat Creek v. Alabama By-Products Corp., 245 Ala. 528, 17 So. 2d 771. And when a cause of action is statutory the complaint must negative an exception contained in the enacting clause, but not so if it is in a subsequent clause. Jefferson County v. Gulf Refining Co., 202 Ala. 510, 80 So. 798.
Since the circuit court is one of general jurisdiction, and the cause of action is not statutory, it is not necessary to allege facts which show that it is not one specially excepted by statute. It is the limitation which is statutory and not the creation of the cause of action. Section 95, Title 36, Code. For that reason the demurrer on that ground is not well takennot to consider other grounds.
We are not willing to agree that the guest statute is controlling on defendants as to their measure of duty to a guest of their bailee riding in the car loaned to him. But we think it is a question of proximate cause and relates to principles generally applicable to a bailment of the car. We think it is important to consider the duty of defendants to Favors who was their bailee, although plaintiff was riding as a passenger with the bailee. It is said in 60 C.J.S., Motor Vehicles, § 430, page 1057, that "a gratuitous bailor of a motor vehicle may not furnish the bailee with an unsafe and unmanageable vehicle for a purpose which will endanger life and limb, and is liable for injuries, proximately resulting from the defect, to third persons who are without fault themselves. However, a gratuitous bailor owes to his bailee only the duty of giving warning or notice of those defects in the car, if any, of which he has knowledge and which in reasonable probability will imperil those using it; and an owner furnishing his car to another for the latter's gratuitous use is not responsible for an injury to the user caused by a defective condition of which the owner did not know when he turned the car over to the user, where, in the exercise of reasonable judgment, he could not have foreseen the probable injury to the user; and the same holding has been made where the lender has no actual knowledge of the defect, even though he should have known of it". Blom v. McNeal, 199 Minn. 506, 272 N.W. 599.
But where the bailment is not gratuitous, it is said, 60 C.J.S., Motor Vehicles, § 430, pages 1055, 1056: "The owner may also be responsible for resulting injuries where be could have discovered the defective condition of the motor vehicle by the exercise of reasonable care, although the owner is not responsible if a latent defect which causes *282 an accident could not have been discovered by appropriate care and inspection of the automobile". Mallory Steamship Co. v. Druhan, 17 Ala.App. 365, 84 So. 874; Aircraft Sales and Service, Inc., v. Gnatt, supra. The case of Motor Terminal & Transportation Co. v. Millican, supra [244 Ala. 39, 12 So. 2d 99], quotes from Saunders System Birmingham Co. v. Adams, 217 Ala. 621, 117 So. 72, 61 A.L.R. 1333, among other things, as follows: "`We intend only to hold that he (one engaged in letting automobile for hire) must exercise reasonable diligence to know the condition of his machines before letting them into the hands of drivers for use on the highways. He must in that regard exercise such simple and available tests as the intended use would suggest to sensible and right-minded personsthe jury being at last the judges'".
We think the duty to inspect has the same application to one other than the bailee, who is likely to be subjected to the danger of the defects, as it has to the bailee. This includes those riding with him. 7 Blashfield on Automobile Law and Practice, section 4672 (notes 63 and 64), page 655; Rush v. McDonnell, 214 Ala. 47, 106 So. 175; Eklof v. Waterston, 132 Or. 479, 285 P. 201, 68 A.L.R. 1002; Johnson v. H. M. Bullard Co., 95 Conn. 251, 111 A. 70, 12 A.L.R. 766.
If an owner knows or should anticipate that the one to whom he lends or lets his car will use it on the streets and highways and carry others with him and thereby be subjected to the dangers incident to its defective condition he owes to those others the same duty of inspection that he owes to the bailee. Johnson v. Bullard, supra. The owner has no privity with such persons, and is not affected by the relationship existing between his bailee and them. They occupy the same relation to the bailor which the bailee occupies in respect to such duty if their presence should have been anticipated when the bailment was created. The guest of the bailee, if his presence was foreseeable, is by that circumstance clothed with the same protection, regardless of the relation between him and the bailee. There is no ground of demurrer that the complaint does not allege that defendants anticipated that their bailee would carry a passenger while driving the car.
It is also insisted that the complaint is defective in not alleging that defendants had knowledge of the defective condition of the car when they let Favors have it to use. This is an essential issue in the case if the bailment is gratuitous. But if it is for hire or based upon other valuable consideration, there is a duty to make reasonable inspection as to its condition. A failure to do so may be negligence without actual knowledge of such defect or of facts sufficient to stimulate investigation. The complaint makes no allegation as to the consideration for the bailment, unless the consideration was the delivery of the car to Favors to be used until defendants could deliver the used automobile being purchased by him. It was held in a New Jersey case that those facts do not constitute a consideration so as to prevent the bailment from being gratuitous in the absence of a showing that the loan of the car was a part of the consideration or inducement to the purchase. Nelson v. Fruehauf Trailer Co., 20 N.J.Super. 198, 89 A.2d 445.
The allegations of the complaint are consistent with the theory that the loan of the used car was an inducement to the purchase of the other one; but they are not specific to that effect.
The breach of a duty imposed by law is the gist of the action. That duty here is not to be negligent in respect to the alleged defective condition of the car. An allegation that defendants were negligent in that connection implies the existence of such knowledge or notice as the law requires, for otherwise there cannot be negligence. City of Birmingham v. Norwood, 220 Ala. 497, 126 So. 619; Ragland v. Duke, 223 Ala. 574, 137 So. 397.
The complaint is not subject to demurrer for a failure to allege that defendants had notice of the defect when they delivered the car to Favors for use. We think strictness *283 of pleading is not necessary in this connection, nor proof expressly referring to the use of the car as an inducement in and about the proposed sale of the other car. The circumstances are sufficient to support a finding to that effect.
Count C is similar to count B-1, except that it alleges that the car was delivered to Favors and he was authorized to operate and drive it over and along the public highways, but it does not allege that this was to continue until defendants could deliver a car being purchased, nor that Favors was at that time a purchaser or a prospective purchaser of another used car. If that count is properly construed to mean that Favors was a gratuitous bailee, and that defendants to be liable for a defect in the loaned car must have had notice of such defect to be chargeable with negligence in that respect, the allegation that defendants were negligent supplies that element and the charge is not subject to the demurrer on that account.
Appellants cite Cunningham v. Bell, 149 Ohio St. 103, 77 N.E.2d 918. In that case the defendant owned a truck and placed it in the hands of one Hill, entrusting its operation to him. Hill was operating it at the time in question and plaintiff (Cunningham) was being transported in said truck without payment therefor as an invitee of Hill. The negligence of defendant was alleged to have been in unlawfully employing and permitting Hill, who was fifteen years old, to drive said truck contrary to an Ohio statute: that defendant overworked Hill and caused him to be on the job such long hours that he became exhausted and unable to drive the truck; that Hill was an incompetent driver by reason of his youth, inexperience, overwork, and lack of sound judgment, discretion and skill; and that defendant knew or should have known that Hill was an incompetent driver and negligently, unlawfully and carelessly entrusted to him said truck, which was dangerous when operated by one unskilled: that Hill negligently dozed and fell asleep and the truck ran off and collided, and as a result of the negligence of defendant and Hill the plaintiff sustained personal injuries. The court referred to its former decision holding that the owner of the vehicle driven by a servant is not liable for injuries to the servant's guest caused by the negligence of the servant: that when the servant is without authority to carry passengers his guest riding with him is neither the invitee nor licensee of the owner but is a trespasser to whom the owner owes no duty except not to willfully injure him. The case cited was before the enactment of a guest statute (which is in the language of our own), but the occurrence referred to in the Cunningham case, supra, was subsequent. The court held, first of all, that the guest statute in no wise modified the rule of liability for the negligent entrustment of a motor vehicle to an incompetent driver. And it was held that not being a guest of defendant, he did not owe the rider a duty of ordinary care; and, further, that if the rider should be assumed to be the guest of the owner, the guest statute would limit the liability of the owner to his willful or wanton injury.
Our case of Rush v. McDonnell, 214 Ala. 47, 106 So. 175, was also a claim growing out of the unlawful entrustment of an automobile to a boy who was prohibited by law from driving, and who caused an accident and injury to a rider without the knowledge or consent of the owner. The suit was by the rider against the owner for such unlawful entrustment. That too was before the enactment of the guest statute. This Court held directly contrary to the Ohio case, that there was no distinction between that situation and one where the injury was to a stranger on the highway, for that one injury is as much to be anticipated as is the other. The Court there in terms was referring to the duty of the driver; but the basis of it was the duty to anticipate the danger to a rider as well as to a stranger. Our guest statute has changed that duty of the driver. That duty of the driver had been given effect also in the case of Wurtzburger v. Oglesby, 222 Ala. 151, 131 So. 9.
As stated above, the rule applicable to the driver was changed by our guest statute, while the Ohio guest statute made *284 no change. But we do not think our statute was intended to limit the duty of the owner who entrusts to an incompetent driver an automobile or to a competent driver a defective automobile. It was said in the Rush case, supra, that the liability depends upon common law principles. It is therefore subject to the common law principle of proximate causation. It is true that our guest statute applies to the "owner, operator or person responsible for the operation of a motor vehicle". We think that means to apply only to such person as may be responsible for the manner of its operation; that it does not apply to the owner unless he is operating the car in person or it is under his immediate control or is operated by his servant or agent duly authorized by him. When it is not being so operated the liability of the owner is governed by common law principles.
In the case of Theriault v. Pierce, 307 Mass. 532, 30 N.E.2d 682, cited by appellants, plaintiff was riding in a car driven by an incompetent person to whom defendant had entrusted it. The court held that if plaintiff had been a pedestrian or riding in some other vehicle, the defendant would have owed him the duty to exercise due care which everyone owes to travelers. But with respect to defendant, plaintiff had no right to ride in the car, and if he did so he was a trespasser; that when he stepped into the car defendant's duty to him ceased to be measured by the duty to travelers. Plaintiff's status was not controlled by a guest statute and the rule of duty to him declared to exist, is directly contrary to our Rush case, supra. The Massachusetts' case, supra, therefore, is not authority exemplifying a guest statute.
Appellants cited Koger v. Hollahan, 144 Fla. 779, 198 So. 685, 131 A.L.R. 886, to the effect, as held by the Florida court, that a motor vehicle is a dangerous instrumentality and an owner who entrusts it to another to operate is liable for an injury to others by his negligence, which holding is contrary to our Rush case, supra, and which extended to a person who is riding in the automobile as the invited guest of the driver. It was held that the Florida guest statute exempted such liability unless the driver was grossly negligent or willful or wanton; and that it had no other effect.
Most of the cases annotated in 131 A.L.R., supra, refer to statutes whose purpose was to fasten on the owner liability for the negligent operation of a car by one entrusted by the owner with its use, whether or not the driver was incompetent or the car defective. But the case of Hopkins v. Droppers, 184 Wis. 400, 198 N.W. 738, 36 A.L.R. 1156, is similar in holding to our Rush case, supra.
On the Motion for a New Trial.
We agree with appellants that there may be a material difference in the nature of duty owing to one injured by the defendant while he is rightfully using the street and to one riding with the bailee. As we have said, if the bailment is gratuitous the duty to the bailee's guest is different from what it is when there is a consideration or it is mutually beneficial to both bailor and bailee. The person injured on the street is due the same degree of care as the bailee for a consideration. That is, that a reasonable degree of care should be used to inspect the car to see if a defect exists and if any to remedy it, and to use ordinary care and skill in doing so, although theretofore there has been no notice of any defect then existing. We think the jury could find that the loan of the car to Favors was made as a feature of the purchase of another car and that the rule so applicable is appropriate.
There was evidence that the car was inspected by appellants from one end to the other a short time before the accident. That the front wheel bearings were repacked, the brakelining checked and the brakes adjusted, besides other repair work not connected with the brakes or steering; that they then tested it and it checked out all right. But if it had been all right, the jury could have found that the brakes would not have locked or the steering disrupted, and that they did lock disrupting the steering mechanism. Whether the defendants were negligent in making the repairs was a question *285 for the jury especially in view of the fact that Favors testified that when he first started to drive the car the steering was tight and it continued to get worse.
We are of the opinion that the verdict of the jury was not contrary to the great weight of the evidence.
Assignment of error No. 4 relates to refused charge No. 22. The contention of appellants is that the complaint alleges that the car was in a dangerous and defective condition when it was delivered to plaintiff's husband, and that the jury should be so instructed; whereas the given charge No. 18 says the automobile was in a dangerous or defective condition. If that is an important difference, we observe that given charge No. 19 uses the conjunctive in accord with the complaint.
Assignment No. 5 relates to the refusal of charge No. 21, which is a sole proximate cause charge. When properly phrased, and when there is no wanton or subsequent negligence count, and its substance is not otherwise given to the jury, it is reversible error to refuse it. Seitz v. Heep, 243 Ala. 372, 10 So. 2d 148. But the charge assumes that plaintiff's husband failed to properly inspect or repair the vehicle, and without hypothesizing the fact of such failure or his negligence. His failure, if it existed might have been due to his inability or other reason beyond his control; and the charge assumes the absolute duty of plaintiff's husband to inspect or repair, when such duty was not absolute.
Assignments 6 to 12, inclusive, are controlled by the principles we have discussed.
As to assignment of error No. 13, the court refused a motion by defendants to exclude a statement of the witness Hardegree made on cross examination with reference to certain marks on the road where the accident occurred, that "It was a mark of a locked wheel". He was a highway patrolman of two years' experience. He was on the highway about a mile away at the time. On direct examination he gave his version of the movements of the car as indicated by the tracks and location of the car, its direction with reference to the road, and tire marks which he undertook to describe; and then on cross examination in answer to a question, "Will you describe what it was" (referring to marks on the road), said, "It was a mark of a locked wheel". We think this was a shorthand rendering of facts and not objectionable. McPherson v. Martin, 234 Ala. 244, 174 So. 791; Johnson v. Martin, 255 Ala. 600, 52 So. 2d 688. Moreover, the rule is not the same on cross examination as it is on direct examination. Linnehan v. State, 120 Ala. 293, 25 So. 6. There was no reversible error in overruling the motion.
Assignments of error 16 and 17 relate to objections made to certain features of the argument of plaintiff's counsel on the trial. We think there was no reversible error shown. It is not necessary to discuss them.
We have examined all the errors which were assigned and argued by counsel for appellants on appeal and do not find reversible error in any of them.
The judgment of the lower 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. | January 13, 1955 |
93136629-ac88-4284-8f39-e13d157fe57a | Townsend v. McCall | 80 So. 2d 262 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 262 (1955)
W. W. TOWNSEND
v.
J. Hal McCALL, Mayor of Tuscaloosa et al.
6 Div. 676.
Supreme Court of Alabama.
February 24, 1955.
Rehearing Denied May 19, 1955.
*263 Jas. J. Mayfield and Jas. W. Harris, Tuscaloosa, for appellant.
S. H. Sprott, Tuscaloosa, for appellees City of Tuscaloosa, et al.
Le Maistre, Clement & Gewin, Tuscaloosa, for appellee Thomason.
PER CURIAM.
This is an appeal by complainant from a decree sustaining a demurrer to a bill of complaint in equity. The complainant is W. W. Townsend who sues as a bona fide resident and taxpayer of the City of Tuscaloosa, Alabama. The respondents are individuals forming a partnership, doing business as M. R. Thomason, Contractor, and the members of the "Commission Board" of the City of Tuscaloosa, and the City of Tuscaloosa.
The bill alleges that the commission board caused an advertisement to be published calling for bids for the construction of a water supply tunnel for the city waterworks system. March 17, 1953 was set as the date for the public opening of the bids submitted. The usual details of requirements to be complied with by the bidders were set forth. It is not necessary to repeat them here. There were seven bids received and were opened on that day. Among those seven were the defendant M. R. Thomason, contractor, whose bid was $183,430, and W. W. Townsend, Excavating Contractor, a corporation. The Townsend corporation was not made a party to the suit. Its bid, as shown by the exhibit to the bill, was $356,715. The M. R. Thomason, contractor, bid was the lowest, and the Townsend corporation's bid was the next to the lowest. From it the bids ranged to $494,126. The city engineer informed the bidders and others present that the city's estimate of the cost of the project was $350,000. The bill alleges that the Townsend corporation was the lowest responsible bidder. It then alleges that thereupon Thomason informed the commission board that it had made a substantial mistake of fact in its bid proposal, and that it withdrew the bid. Thereupon the commission board adopted a resolution postponing action on the bids which had been received. That on March 27, 1953, the commission board passed a resolution awarding said contract to the Thomason partnership, and rejected the other bids. The bill alleges that in doing so the commission board acted in bad faith and well knew that the Townsend bid was the lowest responsible one in response to said advertisement. It alleges that at the time the commission passed the resolution awarding the contract to Thomason, they knew he could not perform the contract on that bid and did not expect nor intend that he would do so, and that in accepting his bid their act was capricious and arbitrary, and was made after an abortive attempt to negotiate a new contract with said Thomason, and was an unlawful artifice to refuse to let the contract to the Townsend corporation; that the advertisement contained a provision that no bids may be withdrawn for a period of thirty days after the scheduled time for opening bids. But that the commission did "authorize, make and circulate another advertisement for bids on said project, and invite the said Thomason, contractor, and others, to make another bid on said project on May 5, 1953". That at that time the commission knew that Thomason was not the lowest responsible *264 bidder, but knew that the Townsend corporation was the lowest responsible bidder, but the commission "arbitrarily and capriciously and contrary to the laws of Alabama" awarded said contract to Thomason, contractor.
The bill alleges that the second advertisement for bids contained a provision that no bids will be accepted after 10.00 A.M. May 5, 1953. On that day the commission met in regular session to open the bids. That at approximately 10:20 A.M. the said Thomason, contractor, attempted to file a bid in the amount of $307,665 in response to said advertisement. At 10:45 the city engineer proceeded to open four bids, including that of Thomason: Townsend was not a bidder. Thomason's bid was declared to be the lowest responsible bid, though it was "twenty minutes beyond the deadline for the acceptance of bids". The commission board thereupon adopted a resolution awarding the said contract to the said Thomason, contractor, at $307,665. That the commission has not taken and does not intend to take any action to require Thomason to perform the contract on his bid of $183,430, thereby indicating a purpose to see that he should receive the contract on conditions favorable to him and unfair to the other bidders, and not to perform the contract awarded to him on his former bid. That Thomason is not a responsible bidder.
The prayer in substance is that all the proceedings had under the second advertisement for bids be vacated, including the proposal to contract with Thomason on his second bid; and "that the court will further enjoin, and restrain the commission board from entering into any written contract with the respondent, Thomason, contractor, based on his attempted bid as set out in the complaint, in response to the advertisement for bids on May 5, 1953" * * * that the court will enjoin and restrain the respondent Thomason, contractor, from performing, or attempting to perform any work on said water supply tunnels for the City Waterworks System of Tuscaloosa, under said resolution awarding this respondent said contract on May 5, 1953"; and relief incident to it. Also that the court ascertain who was the lowest responsible bidder as of March 17, 1953, when the first bids were opened, and require the commission to award the contract to him, and for general relief.
The Thomason bid having been withdrawn, it is insisted that the commission was under the law bound to declare that Townsend was the lowest responsible bidder. The commission did not give its consent to Thomason to withdraw his bid, but instead of doing so, on March 27, 1953, passed a resolution declaring that he was the lowest responsible bidder, and his bid was accepted and the contract awarded to him, and they rejected all the other bids. But Thomason did not accede to the award and did not make a contract, supposedly on account of an alleged mistake by him.
Section 468, Title 37, Code, provides that: "The award of each contract for which bids have been submitted to a municipality shall be made to the lowest responsible bidder, who may comply with such reasonable regulations as may be prescribed before the bids are called for".
In declaring that Thomason was the lowest responsible bidder, the commission was exercising an administrative act of a judicial nature. 43 Am.Jur. 807, notes 13 and 14. Their decision in that respect is final and conclusive on the courts in the absence of fraud or gross abuse, as it is sometimes said. Inge v. Board of Public Works of Mobile, 135 Ala. 187, 33 So. 678; Carson Cadillac Corp. v. City of Birmingham, 232 Ala. 312, 167 So. 794; 43 Am.Jur. 786, section 44, or when it is not patently arbitrary, as otherwise expressed. Huddleston v. Humble Oil Co., 260 Ala. 384, 71 So. 2d 39.
It was held in Van Antwerp v. Board of Commissioners of Mobile, 217 Ala. 201, 115 So. 239, 241, that the statute, supra, "contains no mandatory requirement for letting municipal contracts on competitive bids. It is open to the corporate authorities to adopt this method, or to let contracts in such way as may be deemed best under the *265 conditions. But it does require that when competitive bidding is selected as the method of letting a contract, it must be let to the lowest responsible bidder complying with the regulations prescribed before bids are called for. In such case, the statute makes applicable the general rules of law governing the awarding of contracts by competitive bids". This was quoted in the case of Carson Cadillac v. City of Birmingham, supra. It was also said in the Van Antwerp case, supra: "Where, as here, there is no mandatory statute requiring contracts to be awarded on competitive bids, it is within the power of the city authorities to invite bids on such basis as it may deem best, reserving the power to reject all bids, or let the contract to the bidder submitting the most desirable proposal."
In Mitchell v. Walden Motor Co., 235 Ala. 34, 177 So. 151, 153, it is said that, "If not required by statute, competitive bidding is not necessary, and a statute so requiring is to be strictly construed, and not extended beyond its clear implication", citing Carson Cadillac v. City of Birmingham, supra.
It seems to result from our statute, as construed, that a city is not required by law to let any contract by competitive bidding. If however the city commission sees fit to let it by competitive bidding, and advertises for bids, it may provide that they reserve the right to reject all bids and then let the contract by negotiation or readvertise for bids. But it is not required to accept a bid and let the contract on that bid to one who is not the lowest responsible bidder. The three alternatives seem to be (1) they must accept the lowest responsible bid, unless they reject all bids; (2) reject all bids and negotiate a contract without bids, or (3) reject all bids and readvertise for another bidding.
The provision for letting the contract to the lowest responsible bidder is for the benefit of the public and does not confer on a bidder any right enforceable at law or in equity. Carson Cadillac v. City of Birmingham, supra (4); American Smelting and Refining Co. v. United States, 259 U.S. 75, 42 S. Ct. 420, 66 L. Ed. 833; 43 Am.Jur. pp. 806, 807, section 64, p. 969, section 221.
But when municipal authorities are about to issue illegal warrants or script, or to misappropriate public funds or "abuse corporate powers, courts of equity on bills filed by taxpayers may enjoin the improper creation of debts. This includes the creation of a debt, in violation of law, by a city in letting a contract. When it is done on competitive bidding, it is the province of the city authorities to determine who is the lowest responsible bidder. That is an exercise of discretion, which must not be arbitrary and is limited. In the absence of fraud or gross abuse, the courts will not interfere with the exercise of that discretion. A mere acceptance of a bid does not raise a presumption that the city authorities in the exercise of their discretion determined such one to be the lowest responsible bidder. Inge v. Board of Public Works of Mobile, supra.
The award of a contract is an administrative act of discretion vested by law in the governing authorities of the city. The court's power is to prevent them from doing an unlawful act in that respect. There is no provision for an appeal to the courts from an act of the city authorities in respect to such matters. The courts cannot direct the authorities as to how they shall exercise that discretionary power, nor to whom they must let a contract, but may only enjoin them from doing so illegally, which includes an arbitrary exercise of the power.
It is insisted in effect that Thomason having refused to execute the contract on his first bid, should not be awarded the contract on a bid for a larger amount on the second bidding, although his bid was the lowest, because he could not then be considered a responsible bidder by reason of having repudiated his first bid. Complainant as a citizen and taxpayer claims that to award him the contract on such larger bid, *266 even if it is the lowest in that bidding, is patently arbitrary.
That inquiry brings up for consideration the rights of the parties resulting from a unilateral mistake. The principle has been applied by the authorities to a mistake made by one offering a sealed bid for a construction contract. It was thoroughly analyzed in our case of Ex parte Perusini Construction Co., 242 Ala. 632, 7 So. 2d 576. In that case the county board of education was suing the bidder for damages for failure to abide by his bid. The defendant sought to remove the suit into equity to enable him to be relieved of liability on account of a mistake that had been made in fixing the amount of his bid. The Court held that the defense was available at law, but asserted the applicable principles. It is not necessary to set them out in full here. But it was held that it was a good defense if the mistake went to the substance of the contract, and his negligence is not an answer to the claim unless it amounts to a violation of a positive legal duty and has prejudiced the other party. As a result of the principle it was held that where one of the parties through mistake names a consideration out of all proportion to the value of the subject involved, and the other party realizes that a mistake has been made, the bid is not enforceable. This is a principle which seems to be fully recognized though the law may provide that a bidder shall not have authority to withdraw or cancel his bid until the board shall have let the contract. Moffett, Hodgkins & Clarke Co. v. Rochester, 178 U.S. 373, 20 S. Ct. 957, 44 L. Ed. 1108; 43 Am.Jur. 805, section 63; 80 A.L.R. 586 et seq.
The circumstances relied on by Thomason to support his claim of justifiable mistake are set out in the bill showing that the estimate of the city engineer as to the cost of the structure was in excess of Thomason's bid by approximately $167,000. The lowest bid above Thomason's was approximately $356,000. The city commission had the legal authority in the exercise of its discretion to permit Thomason to withdraw his bid upon the claim of mistake made by him. In doing so, there must have been substantial ground to assume that Thomason's claim of a mistake was justifiable.
When the city commission rejected all the bids submitted March 17th, except that of Thomason and he declined to accept a contract on his bid submitted at that time, it was within the power of the commission to readvertise for bids, as they did setting May 5th on which to receive them. All other bids thus rejected were higher than the estimate of the city engineer and may have been higher than the commission was willing to pay. The fact that Thomason's bid on that advertisement was submitted twenty minutes after the hour specified, but before any of the bids were opened, did not prohibit the commission from receiving it in the exercise of their discretion, acting in good faith. Cf. Huddleston v. Humble Oil Co., supra. The commission thereupon finding that the bid of Thomason was the lowest responsible bid received on that bidding, and was less than their engineer's estimate, it was within their right to award the contract to him, unless in doing so they acted arbitrarily and not in good faith. The complainant's claim in that respect was that Thomason submitted a bid on the first bidding and then refused to make a contract in accordance with it, which, it is claimed, shows that Thomason was not responsible for his bids and that the commission knew it. But if Thomason's failure to accept the contract on his first bid was because of a serious mistake which he honestly made, and the commission became convinced that it was an honest mistake and it sustained no injury by it, those facts ought not to be sufficient to stamp the act of the commission as arbitrary in awarding the contract to Thomason as the lowest responsible bidder.
The trial court probably so decided in sustaining the demurrer to the bill. His decree should be affirmed and complainant allowed thirty days in which to amend the bill.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of *267 the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Affirmed.
LAWSON, SIMPSON, STAKELY, GOODWYN and MERRILL, JJ., concur.
LIVINGSTON, C. J., not sitting.
MAYFIELD, J., not sitting, having been of counsel in the court below. | February 24, 1955 |
b7421f60-d14a-46eb-8a49-aee32992fe49 | Lámar v. Lámar | 82 So. 2d 558 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 558 (1955)
Joe Davis LAMAR
v.
Frances Hamilton LAMAR.
1 Div. 609.
Supreme Court of Alabama.
September 22, 1955.
*559 Knabe & Nachman, Montgomery, and C. LeNoir Thompson, Bay Minette, for appellant.
Telfair J. Mashburn, Jr., Bay Minette, for appellee.
*560 GOODWYN, Justice.
This is an appeal from a final decree of the circuit court of Baldwin County, in equity, establishing a resulting trust in favor of appellee to an undivided one-half interest in certain real property and ordering a sale of the property for division.
Appellant (as husband) and appellee (as wife) entered into a purported marriage ceremony in 1941 and lived together thereafter as man and wife until their separation in 1953. The real property here involved was acquired while they were so living together. In 1954 appellee filed a suit for divorce against appellant on the ground of cruelty and also sought by the bill to have a resulting trust to the real property decreed in her favor. During the taking of the testimony it was established that appellee, at the time of her purported marriage to appellant in 1941, had a living undivorced husband who was still living. This evidence was given in support of appellant's cross-bill seeking an annulment of his purported marriage with appellee.
Prior to conclusion of the hearing appellee amended her bill by withdrawing the prayer for a divorce, leaving the bill as one for a resulting trust with a prayer that the property be sold for division in event it should be deemed that appellee was "the owner of an undivided one-half interest in the property rather than the owner of the fee."
The parties stipulated that "if the Court should rule that the parties to this suit are joint owners, or tenants in common, of the real property described in the bill of complaint, said real property is not capable of being divided equally without a sale for division."
The trial court annulled the parties' marriage, decreed that each owned an undivided one-half interest in the property and ordered said property sold for division.
Appellant relies on two grounds for reversal: I. That the decree, in declaring a resulting trust in favor of appellee, is not supported by the evidence. II. That the trial court was without jurisdiction to order a sale of the land for division, even though it should be held that the declaration of a resulting trust in favor of appellee was proper.
All of the evidence was heard orally by the trial court. When such is the case, that court's finding has the effect of a jury's verdict and will not be disturbed on appeal unless plainly erroneous or manifestly wrong. Haden v. Boykin, 259 Ala. 504, 507, 66 So. 2d 708; Hinson v. Byrd, 259 Ala. 459, 462, 66 So. 2d 736; Alabama Mills v. Brand, 251 Ala. 643, 645, 38 So. 2d 574. And this rule applies both in equity and in law. Ray v. Ray, 245 Ala. 591, 592, 18 So. 2d 273; Lane v. Bruner, 236 Ala. 269, 182 So. 5. We have said it is not necessarily a question as to what view the reviewing court might have of the evidence, but that if, under any reasonable aspect, the decree below is fairly supported by credible evidence, it is our duty to affirm. Rodgers v. Thornton, 254 Ala. 66, 68, 46 So. 2d 809. In the light of these rules of review we are constrained to hold that error was not committed in declaring a resulting trust in favor of appellee.
We see no reason why the principle applicable where a wife's money is used in purchasing real estate, and the title is taken in the husband's name, should not also apply to this case, even though the decree annulled the parties' marriage. At the time the money was furnished by appellee, she was living with appellant as his wife and, undoubtedly, furnished the money in the belief that they were legally married.
In Thornton v. Rodgers, 251 Ala. 553, 556-557, 38 So. 2d 479, 482, we had this to say:
From Adams v. Griffin, 253 Ala. 371, 373, 45 So. 2d 22, 23, is the following:
We have held that "where the wife pays for the property and the title is taken in the name of the husband, there is no presumption of a gift." Wilson v. Wilson, 257 Ala. 135, 137, 57 So. 2d 519, 520, and cases there cited.
No good purpose would be served in detailing the evidence. We deem it sufficient to say that we have carefully examined the evidence and are of the opinion that it clearly supports the trial court's finding that appellee's money was used in part in purchasing the suit property. Thus, there was afforded a presumption of a resulting trust in favor of appellee to the extent of her money so used. Thornton v. Rodgers, supra; Mandelcorn v. Mandelcorn, supra. There is evidence to support the finding that appellee furnished her money in proportion to the interest in the property decreed in her favor.
The position taken by appellant is that none of the purchase money was furnished by appellee. Hence, the question of whether the purchase money furnished by her was a gift to appellant is not involved.
We find no merit in appellant's contention that the trial court was without power to order a sale of the property for division. There is no question about the property being incapable of being divided in kind. We have already noted the parties' stipulation that it cannot be divided without a sale.
Obviously, the same parties and property are involved in the sale of the land for division as were involved in the aspect of the bill seeking a resulting trust. Having decreed appellee to be the owner of an undivided one-half interest in the property, the other one-half being owned by appellant, we see no error in the trial court's decree ordering a sale of the property for division among said joint owners, as prayed for. Where a court of equity takes jurisdiction for one purpose, it will extend that jurisdiction so as to do complete justice in respect to matters which directly result from its decree. Moore v. Moore, 255 Ala. 393, 401, 51 So. 2d 683; First Nat. Bank of Birmingham v. Johnson, 227 Ala. 40, 41-42, 148 So. 745; and numerous cases cited in Alabama Digest, Equity, 39(1). It is thus stated in Moore v. Moore, supra [255 Ala. 393, 51 So.2d 690]:
The decree appealed from is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MAYFIELD, JJ., concur. | September 22, 1955 |
d8c2df9f-2fca-440c-8a34-fb101c41908e | First State Bank v. SouthTrust Bank | 519 So. 2d 496 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 496 (1987)
FIRST STATE BANK OF FRANKLIN COUNTY
v.
SOUTHTRUST BANK OF MARION COUNTY and C & S Family Credit of Chattanooga, Tennessee.
86-786.
Supreme Court of Alabama.
December 31, 1987.
*497 Eddie Beason, of Fine & McDowell, Russellville, for appellant.
Oliver F. Wood, of Vinson, Guyton & Wood, Hamilton and Robert W. Bunch, for appellee SouthTrust Bank of Marion County.
J. Gullatte Hunter III, of Simmons, Ford and Brunson, Gadsden, for appellee C & S Family Credit.
SHORES, Justice.
This is an appeal from a judgment entered in an interpleader action involving a question as to priorities of garnishments among several judgment creditors of Mr. Ray Graham. The trial court found that the garnishment served by the appellant, First State Bank of Franklin County (hereinafter "Franklin Bank"), was the first garnishment actually served on the garnishee, but that at that time the garnishee possessed only a possibility of collecting funds that would be payable to Graham. Based upon this finding, the trial court concluded that Franklin Bank did not have the first right to the interpleaded funds. We affirm.
On January 26, 1983, Franklin Bank served a garnishment on the plaintiff in interpleader, Fite, Davis, Atkinson & Bentley (hereinafter "Fite, Davis"), a law firm in Hamilton, Alabama. Fite, Davis had been employed to represent Graham in a lawsuit, and at the time this garnishment was served, a judgment in favor of Graham in the amount of $1,240,000 had been obtained against American Coal Energies. Fite, Davis answered the garnishment "not indebted," stating it had no funds that were due to Graham and that the judgment against American Coal Energies was on appeal to the Alabama Supreme Court.
After Fite, Davis collected a portion of the amount due from American Coal Energies, Fite, Davis was served with garnishments from SouthTrust Bank of Marion County (hereinafter "SouthTrust") and the Bank of Hackleburg (now C & S Family Credit) (hereinafter "Hackleburg") on September 4, 1985, and September 10, 1985, respectively. Franklin Bank did not challenge the validity of the "not indebted" answer, §§ 6-6-450, -458, -459, Code of Ala. (1975), and Cottingham v. Greely Barnham Grocery Co., 129 Ala. 200, 30 So. 560 (1900). On September 17, 1985, Fite, Davis paid the proceeds to the register of the Circuit Court of Marion County and brought an interpleader action requesting the court to determine which creditor of Graham was due the funds.
After reviewing these undisputed facts, the trial court ruled that SouthTrust had the first right to the proceeds and that Hackleburg had the second right to the proceeds. Franklin Bank filed notice of appeal after the trial court denied its motion for new trial.
Franklin Bank's argument on appeal is that since it was the first to serve a garnishment on the garnishee, the garnishee was under a contractual obligation to pay its portion of any funds subsequently collected on a judgment that had already been obtained. Franklin Bank argues that it should have the first right to any proceeds subsequently collected. We disagree.
While it is generally true that a garnishment lien attaches on the date of service and that priorities are determined as of that date, Foshee v. Lloyds, New York, 643 F.2d 1162 (5th Cir.1981), it is equally true that in order for a debt to be subject to garnishment, the debt must be due absolutely and without contingency. Escambia Chemical Corp. v. United Insurance Co. of America, 396 So. 2d 66, 68 (Ala.1981); Sloss v. Glaze, 231 Ala. 234, 164 So. 51 (1935).
In the instant case, at the time Fite, Davis was served with Franklin Bank's garnishment, there was no money, property, or debt which Fite, Davis owed to Graham absolutely and without contingency. In other words, Graham himself had no cause of action that he could have brought against Fite, Davis for proceeds that might be collected on the judgment. Thus, the *498 answer made by Fite, Davis was a good one, and it was not challenged as provided by § 6-6-459, Code. Therefore, the answer of Fite, Davis, being unchallenged, discharged the writ of garnishment after the expiration of the time for challenge. § 6-6-459, Code, supra. As stated by the Court of Appeals of Alabama in the case of A. Paul Goodall Real Estate & Insurance Co. v. Jackson Securities & Investment Co., 28 Ala.App. 21, 177 So. 650 (1937), "Indebtedness dependent upon collection of money from a third person is contingent, and cannot be reached by garnishment until after the money is collected."
Applying this rule to the instant case, the trial court correctly ruled that Franklin Bank did not have the first right to the proceeds collected by Fite, Davis, but that SouthTrust had the first right to the proceeds and that Hackleburg had the second right to the proceeds. Based on all of the foregoing, we are of the opinion that the judgment of the trial court is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur. | December 31, 1987 |
82ae5179-320b-4b05-a69f-47102795c2c8 | Emergency Aid Insurance Co. v. Dobbs | 83 So. 2d 335 | N/A | Alabama | Alabama Supreme Court | 83 So. 2d 335 (1955)
EMERGENCY AID INSURANCE CO.
v.
Eurell E. DOBBS.
5 Div. 630.
Supreme Court of Alabama.
September 15, 1955.
Rehearing Denied November 10, 1955.
*336 J. C. Fleming, Elba, and Glen T. Bashore, Clanton, for appellant.
Omar L. Reynolds, Reynolds & Reynolds, Clanton, for appellee.
PER CURIAM.
This suit is predicated upon two policies of insurance issued by appellant to appellee, in which there is a provision for liability for the loss of the sight of one or both eyes resulting from an injury caused by external, violent and accidental means, occurring within three months after the accident. The policies contained the same terms. Clause 4 is in the following language: "No action at law or in equity shall be brought or maintained on any claim arising under this policy * * * until after the expiration of ninety (90) days from the completion and filing of proofs of such claim on the forms provided by the company".
The complaint did not set out the policy in full and did not refer to the existence of such a clause, but alleged notice to defendant of the loss claimed. The plea was in short by consent with leave to give in evidence any matter which if well pleaded would be admissible in defense.
Appellant on this appeal contends that the plea put in issue the failure to furnish the proofs as required by the policy; that there was no such evidence, and, therefore, the affirmative charge should have been given as requested.
Appellee (plaintiff) contends that such an issue must be raised by a plea in abatement verified as required by law. This was not done; and, further, plaintiff's counsel stated in the beginning of the trial that it was agreed that notice and proof of loss were duly given in accordance with the policy. Defendant's counsel answered in response to that statement by plaintiff's counsel: *337 "And refused because the evidence did not show an accidental injury to his eyes". That attorney is no longer of counsel, being now a judge and not engaged in practice. The other counsel who engaged in that trial are here making the point that due proof was not made.
The principle seems to be established that when the policy makes aright of recovery (or liability) conditioned upon making the proof, a special plea in abatement is not necessary. Life Ins. Co. of Virginia v. Hanback, 250 Ala. 643, 35 So. 2d 696; Metropolitan Life Ins. Co. v. Phillips, 236 Ala. 259, 182 So. 35: New York Life Ins. Co. v. Sinquefield, 231 Ala. 185, 163 So. 812.
But when the time of payment is controlled by proof being made, failure to make the proof in due time merely postpones the time of payment and a plea in abatement is necessary if suit is brought before the time stipulated. Vardaman v. Benefit Ass'n of Ry. Employees, Ala., 82 So. 2d 272; Metropolitan Life Ins. Co. v. Phillips, 236 Ala. 259, 182 So. 35; Westchester Fire Ins. Co. of New York v. Green, 223 Ala. 121 (15), 134 So. 881; Home Ins. Co. of New York v. Murphy, 223 Ala. 566(2), 137 So. 393; Prudential Ins. Co. v. Gray, 230 Ala. 1, 159 So. 265; Prudential Ins. Co. v. Calvin, 227 Ala. 146(1) 148 So. 837.
A plea in short by consent, such as here interposed, permits proof of any defensive matter except as required by law to be interposed in a verified special plea. Johnston v. Isley, 240 Ala. 217, 198 So. 348.
We are of the opinion that under the terms of the instant policy proof of disability is not made a condition to the obligation to pay the disability benefits, and therefore a special plea in abatement, duly sworn to, was necessary to present that issue. But if we assume, as appellee contends, that the plea in short put that in issue, the record shows that it was agreed that such proof was duly furnished. Presumably this was a verbal agreement since it was not shown that it was in writing.
Appellant does not in terms insist upon the invalidity of the agreement because it was not in writing; but seems to assume that to be true. Although counsel for appellant do not refer in brief to section 46, Title 46, Code, they doubtless rely upon its effect. That statute gives an attorney power to bind his client by an agreement only when it is in writing or by an entry on the minutes of the court. But when attorneys verbally agree in the beginning of a trial or during its progress, and the court reporter takes it down as a part of the proceedings, we will not say at this time whether that complies with section 46, supra. But in this case at the outset and as a part of the trial Mr. Reynolds, attorney for plaintiff, announced that it is agreed among other things that "notice and proof of loss of said alleged accidental injury was duly given to the defendant' in accordance with said policy", to which Mr. Atkinson, attorney for defendant, replied: "And refused because the evidence did not show an accidental injury to his eyes". That was in substance the introduction in evidence of an agreement which had been made. If defendant had objection to it because not in writing, he should have so stated.
The merits of this suit are determined by the question of whether the loss of plaintiff's eyesight was due to "external, violent and accidental means" or to disease otherwise caused. There was a judgment for plaintiff on the verdict of the jury, and defendant appeals.
Plaintiff's evidence tended to show, besides formal allegations, that he was a carpenter by trade and had no trouble with his eyesight prior to May 8, 1951. That on two occasions in the fall of 1950 his eyes were subjected to a blow torch used in welding. That both incidents hurt his eyes, but he recovered without consulting a doctor, and was in good condition on May 8, 1951. It was on that day that plaintiff claims he sustained an injury to his eyes by external, violent and accidental means, which caused him to lose the use of both eyes. His evidence was that on that day, around eleven o'clock in the morning, he was engaged in *338 his work as a carpenter on a building in Cullman, Alabama; that he was carrying steel window frames up a ramp which was about four feet in width and estimated to be forty feet in length, and he was wearing no shield or hood over his eyes, and as he walked along this walkway he noticed sparks dropping and looked up to see where they were coming from and his eyes received a flash from an electric torch which an employee was holding outside the building and the flash came under a steel beam, his eyes being within four feet of the torch. He continued to work until about three o'clock. During that time there would be a flare of brightness and then it would gradually get dark. This was on Tuesday. He went to the hospital at Cullman the next morning where he remained Wednesday and Thursday, when he left the hospital and went to his home in Clanton where he was treated by a doctor, but was not able to see well. That later he went to a hospital in Birmingham, and while there his eyes grew worseto the condition in which they have been since that time; and that he now has no more than one percent vision in either eye.
Appellant's counsel insists that the affirmative charge was due to be given as requested because he claims that the evidence, on which plaintiff relies to prove his injury, shows without conflicting influence that the injury to his eyes, as claimed, was not caused by accidental means. He points out that the evidence shows that neither the plaintiff nor the torch bearer did an accidental act, but all parties intentionally did the act which was responsible for the injury. Plaintiff looked at the torch voluntarily. The torch bearer voluntarily placed it where it was when plaintiff looked at it. There is a distinction between an accidental death or injury, and one caused by accidental means. Such a distinction is treated by the law writers. It is an accidental death or injury if the result is an accident whether or not due to accidental means; but it is caused by accidental means, although the means employed were voluntarily rendered, if, in the act preceding the injury, something unforeseen, unusual and unexpected occurs which produces the result. Pledger v. Business Men's Accident Ass'n, Tex. Com.App., 228 S.W. 110; 45 C.J.S., Insurance, § 753, p. 778.
The principle is thus expressed in our case of Inter-Ocean Casualty Co. v. Jordan, 227 Ala. 383, 150 So. 147, 148: "When the voluntary act of the insured caused the injury, by way of, and as the result of, unanticipated and unexpected circumstances and result, it is within the terms of the contract". In that case the Court was considering a clause in a policy insuring against "`bodily injury sustained solely through external, violent and accidental means'".
If the insured voluntarily does an act which he knows is likely to produce injury, and injury proximately results, it was held not to have occurred by accidental means. Inter-Ocean Casualty Co. v. Foster, 226 Ala. 348, 147 So. 127. And in Equitable Accident Ins. Co. v. Osborn, 90 Ala. 201, 9 So. 869, 870, 13 L.R.A. 267, the Court quotes from other authorities holding in substance that a voluntary injury is "`intentionally doing some act which reasonable and ordinary prudence would pronounce dangerous'".
That plaintiff looked up to see where the sparks were coming from when he received the flash from the blow torch is the only voluntary act here chargeable to him. The jury could find that plaintiff in doing so did not voluntarily expose his unprotected eyes to the flash of a blow torch which he knew would be dangerous in the ordinary course of events. We think that such contention is not sufficient to require a reversal for the refusal to give the affirmative charge.
It is insisted that the verdict of the jury was contrary to the great weight of the evidence, in that, it conclusively shows that plaintiff's blindness was caused by a disease of the eye called glaucoma which was not produced by an external cause. "Glaucoma" is defined by Webster's New International Dictionary as "a diseased condition *339 of the eye marked by a hard inelastic condition of the eyeball, a bluish tinge of the optic disk, and excavation in the head of the optic nerve". It is not defined by the specialists who testified. We therefore accept Webster's definition as authentic.
Dr. Callahan testified that glaucoma causes neither pain nor redness of the eye, and many persons lose their vision because of it without knowing they have it. He examined plaintiff on July 5, 1951, and testified that plaintiff had "bilateral optic atrophy as a result of glaucoma", which is never caused by an accident; that torch radiation affects only the front surface of the eye, and does not affect the vision; and could not cause blindness without leaving scars on the front surface of the eye; that the front surface of plaintiff's eyes were clear and his blindness was due to the dying of his sight nerves in the back of his eyes an inch away from the front surface. "Such aggravation (torch burns of the eye) would only be temporary and would not cause any permanent blindness", and did not hasten the blindness of plaintiff.
Dr. Charles A. Thigpen testified that he examined plaintiff's eyes on May 13, 1953. His testimony corroborated that of Dr. Callahan.
Dr. Truett Jackson examined plaintiff's eyes on August 19, 1954. His testimony, material at this point, is epitomized by himself as follows: "I found him affected with optic atrophy which was due to some inflammation or irritation of the optic nerve. The cause is not able to be determined at this time. There is no physical or laboratory way to ascertain the cause now, just the evidence of the damage that has been done. * * * I did not find at the time I examined the patient any evidence of glaucoma. * * * From the history of the patient and the physical findings at present, my impression is again optic atrophy, bilateral, resulting from an optic neutritis. The cause of the optic neuritis is not evident. From the history of the patient and the type of burns that an electric arc can inflict, it is entirely possible that the onset of blindness or partial blindness was hastened by the exposure to the electric arc." And he further testified: "There is no connection to me of exposure to an electric arc and glaucoma. Exposure to an electric arc is enough to aggravate most any eye condition and may have hastened the onset of his partial blindness." (Italics supplied.)
The evidence showed the qualifications of all three eye specialists. According to Dr. Truett Jackson, who examined plaintiff about three years after the injury, if plaintiff had glaucoma, which was not then apparent to him, the flash of the torch operating on it could have hastened the onset of blindness. That, in connection with plaintiff's testimony, would justify the jury in finding that it did hasten the blindness. Glaucoma might not have been apparent three years after the injury, when it was apparent as much as two years afterwards when Dr. Thigpen examined him, or a few weeks thereafter when Dr. Callahan examined him.
So we come to the question of whether blindness following accidental injury to the eye not sufficient to produce blindness, was caused by accidental means because the accident operated upon a diseased condition of the eye and by so doing hastened the onset of blindness, which would have occurred in the ordinary course of events without the accident. Our cases sustain the view that blindness, when so accelerated, is the result of accidental means (and the accident was external and violent). Benefit Ass'n of Railway Employees v. Armbruster, 224 Ala. 302, 140 So. 356; id., 217 Ala. 282, 116 So. 164; John Hancock Mutual Life Ins. Co. v. McCreary, 37 Ala.App. 493, 70 So. 2d 817; 45 C.J.S., Insurance, § 776, p. 813, note 58.
We do not have for consideration a clause which excludes recovery if the result was partially caused by disease. The liability fixed by the policy is when the insured "shall suffer an injury caused by external, violent and accidental means, that results within three months of occurrence of such accident, * * * the irrevocable *340 loss of sight of one or both eyes". It does not require the accidental means shall be the sole cause of such loss of sight as in Emergency Aid Ins. Co. v. Connell, 258 Ala. 521, 63 So. 2d 603.
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.
On Application for Rehearing.
PER CURIAM.
Counsel for appellant disclaim any contention that the agreement as to proof of loss was inoperative because not in writing. But they claim that what they said in response to the statement of plaintiff's counsel about the agreement shows that it was not "wholeheartedly" accepted by them, but with a qualification which affected it. We have stated heretofore in this opinion what the record shows in that respect. Whether thereby defendant's counsel meant to say that the proof was refused, or that payment was refused "because the evidence did not show an accidental injury to his eyes" is not material. It was admitted that "proof of loss was given in accordance with the policy". When so, defendant's refusal to accept such proof or to pay for the loss does not in any respect militate against the agreement as proof of a compliance with the policy in that respect. When that "was given in accordance with the policy," plaintiff showed a compliance with the policy requirements, whether it is refused or not.
We have again considered the other contentions on this application, but find no cause to modify our judgment of affirmance. With a modification of the opinion as indicated, the application for rehearing should be overruled.
Opinion modified as indicated: application overruled.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur. | September 15, 1955 |
cdb85b54-dbe3-4e0f-8776-f0bd5ad2c909 | Robertson v. Robertson | 77 So. 2d 373 | N/A | Alabama | Alabama Supreme Court | 77 So. 2d 373 (1955)
James W. ROBERTSON
v.
Faye ROBERTSON.
6 Div. 783.
Supreme Court of Alabama.
January 13, 1955.
A. L. Sapp, Cullman, for appellant.
Julian Bland, Cullman, for appellee.
MERRILL, Justice.
Appeal from a decree denying relief to complainant and dismissing his bill to annul his marriage after a hearing on the merits before the circuit court, in equity.
The complainant, individually and by his father as next friend, sought to have the court annul the marriage between him and respondent, alleging in his bill that he did not know what he was doing when he married respondent; that he was highly excited and nervous and unable to understand the proceedings; that he was forced to marry the respondent; that while he was participating in the marriage ceremony he thought he was being tried under an affidavit and warrant out of the Justice of the Peace Court charging him with bastardy; that the marriage had not been consummated by cohabitation after the ceremony; that at the time of the marriage he was 19 years of age and the respondent was 18. Respondent demurred to the bill, demurrer was overruled, answer was filed and the issues tried. The court was convinced from the evidence that complainant was the father of respondent's child, denied the relief prayed for and dismissed the bill.
Appellant assigns as error: "1. The court erred in dismissing complainant's bill of complaint and denying the relief prayed in his bill of complaint. 2. The decree of the trial court is grossly and palpably contrary to the evidence and the pleading. 3. The Court erred in decreeing the marriage valid, and the child legitimate."
We see no reason to set out the evidence in detail. There is no question or contention that the marriage was not solemnized *374 in accordance with our statutes. The evidence came far short of proving appellant's insanity or that he did not know what he was doing, or that he was unable to understand what was happening when the marriage ceremony was being performed. The preponderance of the evidence was to the contrary. There was no evidence that he was forced to marry or that any threat of bodily harm was made before or at the time of the marriage to force him to marry respondent. The case of Kelley v. Kelley, 206 Ala. 334, 89 So. 508, holds that the mere fact that a husband, who has seduced his wife prior to the marriage ceremony, feared bodily harm if he did not marry the seduced girl, did not warrant the annulment of the marriage on grounds of duress, in the absence of proof as to actual threats of bodily harm, and that case is followed in Gwin v. Gwin, 219 Ala. 552, 122 So. 648.
The marriage took place in the probate office in Cullman County in the presence of several witnesses and the evidence is overwhelming that complainant was aware that he was being married, that he had requested that the ceremony be performed and that he was consenting thereto.
The fact that he was under 21 years of age can avail complainant nothing. He was 19 and respondent 18 years of age, which ages are above the bar of 17 and 14 as provided in § 4, Title 34, Code of 1940. There was no consent of the parents as required by § 10, Title 34, but this statute has been construed as directory only and failure to comply with its provisions is not grounds for annulling the marriage. Smith v. Smith, 205 Ala. 502, 88 So. 577.
The failure of the complainant and respondent to live together after the marriage is likewise unavailing. Our rule, long established, is that a marriage solemnized in accordance with our statute, between parties capable of contracting with their free, full and mutual consent, is complete, without cohabitation, and entitles the parties respectively to all the rights which accrue upon entering that relation. "Nuptias, non concubitas sed consensus facit." Potier & McCoy v. Barclay, 15 Ala. 439.
Sometime after the marriage ceremony was performed the appellant was charged with vagrancy because he failed or refused to support the appellee. He employed an attorney, not the one representing him on this appeal, and he, his father, mother and his attorney went to the office of the county solicitor and entered into an agreement whereby he would pay into the probate court $15 per month, the court approved the agreement, the vagrancy charge was dismissed and the monthly payments were made for several months.
The decree of the trial court is amply supported by the evidence and it was free of the alleged defects which are listed and argued in the assignments of error and should be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | January 13, 1955 |
12028cfc-903e-4ae2-b721-156e170b2790 | Ex Parte Ralston | 519 So. 2d 488 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 488 (1987)
Ex parte Robert RALSTON.
(In re: Noval Clyde SILCOX, v. Dicky DRYER and Robert Ralston).
87-7.
Supreme Court of Alabama.
December 23, 1987.
*489 Barry Hess and Harry B. Bailey III of Hess, Atchison & Horne, Mobile, for petitioner.
Bayless E. Biles of Wilkins, Bankester & Biles, Bay Minette, for respondent.
HOUSTON, Justice.
Petitioner seeks a writ of mandamus directing Judge Edward B. McDermott of the Mobile County Circuit Court to transfer an action from Mobile County to Baldwin County. The writ is granted.
The plaintiff, Noval Clyde Silcox, filed this action in Mobile County Circuit Court against the defendants, Dicky Dryer and Robert Ralston, alleging that the defendants had converted his shrimp boat to their own use. Defendant Ralston filed a motion pursuant to Rule 82(d), Ala.R.Civ.P., for change of venue to Baldwin County, on the following grounds:
In an affidavit submitted with the motion, Ralston stated as follows:
The plaintiff introduced no evidence tending to contradict Ralston's affidavit. After a hearing, the trial court denied Ralston's motion, and he filed this petition for a writ of mandamus.
The only question presented by the petition is whether the trial court should have transferred the case from Mobile County to Baldwin County.
We note, initially, that the plaintiff admitted in his answer to Ralston's petition for writ of mandamus that "both defendants are residents of Baldwin County, and were so at all times relevant to the complaint" and that "he filed no affidavit in opposition to defendant Ralston's motion for change of venue." The plaintiff did deny that all of the acts complained of in his complaint took place in Baldwin County and attached to the answer an affidavit in which he stated that they did not all occur there. We cannot consider that affidavit, however, because we are bound by the record and cannot consider a statement or evidence that was not before the trial court. On review by mandamus, we must look at only those facts that were before the trial court. Ex parte Baker, 459 So. 2d 873 (Ala.1984).
The only evidence that was before the trial court at the time it ruled on the motion showed that both of the defendants are residents of Baldwin County and that the actions forming the basis of the suit all took place in Baldwin County.
Rule 82(b), Ala.R.Civ.P., in pertinent part, reads as follows:
See also, § 6-3-2(a)(3), Code 1975.
The burden of proving improper venue is on the party raising the issue, and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial court. Ex parte Finance America Corp., 507 So. 2d 458 (Ala.1987).
Our review of the record in this case indicates that the only evidence presented to the trial court showed that the case should have been transferred to Baldwin County because venue was not proper in Mobile County. Therefore, based on the record before us, we hold that the trial court erred in denying Ralston's motion. That court is directed to transfer the case to Baldwin County.
WRIT GRANTED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur. | December 23, 1987 |
471f9f10-ad04-4a57-ba2a-89605e304ff6 | Harrison v. State | 77 So. 2d 387 | N/A | Alabama | Alabama Supreme Court | 77 So. 2d 387 (1955)
George Thomas HARRISON
v.
STATE.
7 Div. 269.
Supreme Court of Alabama.
January 13, 1955.
Max J. Howard and Leonard Crawford, Fort Payne, for petitioner.
Bernard F. Sykes and Arthur Joe Grant, Asst. Attys. Gen., opposed.
MERRILL, Justice.
Petition of George Thomas Harrison for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Harrison v. State, 77 So. 2d 384.
Writ denied.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | January 13, 1955 |
a9b29aef-5678-441f-8f60-06fee4bdc2ad | Werneth v. Hanly | 78 So. 2d 299 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 299 (1955)
Celeste E. WERNETH et al.
v.
Will Thomas HANLY.
1 Div. 599.
Supreme Court of Alabama.
February 24, 1955.
Johnston, McCall & Johnston, Mobile, for appellants.
W. C. Taylor, Mobile, for appellee.
MERRILL, Justice.
This appeal is from a decree of the circuit court, in equity, sustaining the demurrer to the bill. The record has been abridged by agreement of counsel under Supreme Court Rule 28, Code of 1940, Title 7, Appendix.
The bill shows that Virginia M. Cox died testate in Mobile County in 1909, leaving a last will and testament and a codicil thereto both of which were admitted to probate and record on December 23, 1909. Mrs. Cox left surviving her two daughters, Mrs. Alice Dure and Mrs. Celeste Reneau. Mrs. Alice Dure died testate in May 1951 leaving a last will and testament devising her estate to her husband, Will Thomas Hanly, to whom she had been married in 1950. Mrs. Celeste Reneau is still living, but her husband, James T. Reneau, died in 1930.
The bill was filed by the two living children of Mrs. Reneau and the children of her deceased daughter against Hanly and Mrs. Reneau, seeking a construction of the will of Mrs. Virginia M. Cox, under the Declaratory Judgment Act, Code of 1940, Title 7, § 156 et seq., praying that the court quiet the title of complainants to certain property on Government Street and declare that respondent Hanly has no interest therein, and that Hanly be required to account for *300 rents heretofore collected by him from the property.
The respondent demurred to the bill on the grounds, inter alia, that there was no equity in the bill, that there was no justiciable controversy shown, that the will was not ambiguous and required no construction, that the bill showed on its face that title to an undivided one-half interest in the property vested in Alice Dure Hanly in 1930, and that the bill showed on its face that it was barred by the statute of limitations of ten years and the prescriptive period of twenty years, the bill having been filed December 7, 1953.
The pertinent part of the codicil is:
In attempting to show a justiciable controversy complainant first shows respondent Hanly's contention to be that the codicil means "that the said Alice Dure was then being devised, and such words intended to devise to her, an undivided one-half interest in said real property in fee simple, whether the death of the said James T. Reneau should occur prior to or subsequent to the death of the testatrix, Virginia M. Cox; and as the said James T. Reneau did die during the year 1930, leaving the said Celeste E. Reneau as his surviving widow, the condition of the said codicil was met and the said Alice Cox Dure, upon said death of the said James T. Reneau, became vested with an undivided one-half interest in and to said property in fee simple, which said half interest in turn became vested in the respondent Will Thomas Hanly, under the last will and testament of Alice Cox Hanly, formerly Alice Dure."
Complainants' contention is set out clearly in the bill as follows: "Your complainants on the contrary have claimed and insisted that a last will and testament speaks as of the date of the death of a testatrix, and, hence, the foregoing language in said codicil shows that said testatrix intended, and it should be construed and interpreted as meaning, that the said Alice Cox Dure was devised an undivided one-half interest in said real property in fee simple only in the event that said James T. Reneau died prior to the said testatrix, Virginia M. Cox, leaving the said Celeste E. Reneau as his surviving widow, and since this event never occurred, the said Alice Cox Dure was never vested with a greater estate than a life interest in said real property; and in turn the respondent, Will Thomas Hanly, became vested of no estate therein upon the death of said Alice Hanly, formerly Alice Cox Dure, and complainants further aver, contend and insist that upon the falling in of said remainder estate in said real property *301 upon the death of the said Alice Hanly they became vested of the entire estate in fee simple in said real property, and are the owners thereof * * *."
The rule "that a last will and testament speaks as of the death of a testatrix" in the absence of a manifest contrary intent is well recognized in our cases, 19 Ala.Dig., Wills. But we think the clear, unambiguous terms of the will and codicil here were that the vesting of the estate was contingent upon whether or not Celeste Reneau survived her husband James Reneau. We quote various passages from the opinion of Clopton, J., in Phinizy v. Foster, 90 Ala. 262, 7 So. 836, 837, which has been followed many times since:
See Wright v. City of Tuscaloosa, 236 Ala. 374, 182 So. 72; George v. Widemire, 242 Ala. 579, 7 So. 2d 269; Allen v. Maxwell, 249 Ala. 655, 32 So. 2d 699.
We think it is clear that Virginia M. Cox intended by her will to devise a life interest to the property on Government Street to her daughter Alice with remainder to the children of Celeste, but that by the codicil she revoked this bequest based on the contingency that Celeste survive her husband James, and in that event her two daughters each should take an undivided one-half interest in fee simple in the property at the time of his death. The contingency occurred when James Reneau died in 1930 and from that moment forward each of the daughters, Alice and Celeste, had an undivided one-half interest which was alienable, devisable and descendable. Alice devised her interest to her husband Hanly, the appellee.
We recognize that "a demurrer is rarely appropriate in a declaratory judgment action" and the authorities cited in Curjel v. Ash, 261 Ala. 42, 72 So. 2d 732, where, while acknowledging the general rule, it was held that the demurrer should have been sustained because the recitals in the bill were not sufficient to show an ambiguity in the devise. Here the will and the codicil were exhibits to and parts of, the bill. The *302 codicil is not ambiguous. The attempt to make it ambiguous by alleging that the rule of construction that "it speaks as of the death of the testatrix" applies, is not sufficient to make a bona fide justiciable controversy because no rule of construction is necessary. In Baker v. Wright, 257 Ala. 697, 60 So. 2d 825, 829, we quoted with approval the following from 57 Am.Jur. § 1135:
"`Rules of construction have their legitimate function when they are needed to understand the purpose intended to be embodied in the language used in the will. They take hold only where uncertainty commences and let go where it ends, and cannot control or vary the intent or properly prevent its execution.'" It is well established by our cases that rules of construction are only an aid to interpretation when the intent of the testator is not clear; that rules of construction must give way to the language of the will when it has a clear meaning, and that no presumptions or rules of construction can serve to rewrite a will at variance with its clear and unambiguous terms, whatever extraneous facts may have led the testator to make the will he did make. Kimbrough v. Dickinson, 247 Ala. 324, 24 So. 2d 424; Ide v. Harris, 261 Ala. 484, 75 So. 2d 129, and Baker v. Hendricks, 240 Ala. 630, 200 So. 615. Thus, even on demurrer, we cannot hold that a justiciable controversy is presented by the attempt to rewrite a clear and unambiguous codicil by applying a rule of construction which can "take hold only where uncertainty commences." To say that we must reverse and remand this case in order that appellee might raise the same objections in his answer which have already been raised by demurrer and have the lower court decide the same point already decided by it, with the same result, would be a useless and, in our opinion, unjust decision.
It follows that on the face of the bill the complainants show no legal interest in the property in question and that the title has been vested for more than 20 years preceding the filing of the bill; therefore, there is not a sufficient showing of "an actual concrete controversy as to any particular matter justiciable in nature." Gilmer v. Gilmer, 245 Ala. 450, 17 So. 2d 529, 531. The demurrer was properly sustained and the decree should be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MAYFIELD, JJ., concur.
LAWSON, STAKELY and GOODWYN, JJ., dissent.
LAWSON, STAKELY and GOODWYN, JJ., dissent on the ground that in their opinion the bill shows an actual existing bona fide controversy between adverse parties and, hence, irrespective of whether complainants were entitled to a declaration of rights in accordance with their theory, they were entitled to have a declaration made and entered after answer and on such evidence as they thought proper to introduce on submission for final decree. They insist in this court on that right and do not agree that the matter was one purely of law to be decided on demurrer. Waterworks and Sanitary Sewer Board v. Dean, 260 Ala. 221, 69 So. 2d 704; Atkins v. Curtis, 259 Ala. 311, 66 So. 2d 455; City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So. 2d 658; Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So. 2d 11. The opinion of the court decides the issue against complainants and then says to them that they have not shown a justiciable controversy because the court does not agree with their theory. That is just another way of ignoring the holding of the cases cited above. Those cases, in our opinion, should be followed or expressly overruled. | February 24, 1955 |
8a87d6eb-ce63-4c4d-b423-c2fa423cb8b6 | Willingham v. State | 80 So. 2d 280 | N/A | Alabama | Alabama Supreme Court | 80 So. 2d 280 (1955)
Joe Buck WILLINGHAM
v.
STATE of Alabama.
6 Div. 562.
Supreme Court of Alabama.
March 10, 1955.
Rehearing Denied May 19, 1955.
*281 DeGraffenried & DeGraffenried, Tuscaloosa, for appellant.
Si Garrett, Atty. Gen., and Maury D. Smith, Asst. Atty. Gen., for the State.
MERRILL, Justice.
The appellant Joe Buck Willingham was indicted for the offense of murder in the first degree. The jury found him guilty of murder in the second degree and he was sentenced to the penitentiary for a term of thirty years. From the judgment and sentence he appealed.
The evidence for the State tended to show that appellant and his brother, James Willingham, engaged in a fight with the deceased, Deward L. Brown, in a combination tavern and dance hall; that James Willingham cut the deceased while appellant pinned the deceased's arms behind him and deceased bled to death from the wounds so inflicted.
James Willingham was tried first and received a sentence of life imprisonment from which he appealed. Joe Buck was tried at a subsequent term of court. His case had been submitted to this court prior to our decision in James' case, which was affirmed.
Many of the assignments of error in the instant case raise the same questions that were presented in the first case and they are considered in the case of Willingham v. State, 261 Ala. 454, 74 So. 2d 241. Having already treated them there, and having again considered them in the light of our holding in that case, we discuss here questions new to the instant case.
The appellant assigns as error the action of the court in overruling his challenge for cause of the juror, Wallace. The questions propounded to this juror and the answers given by him tended to establish the following:
Wallace had heard the case discussed and informed the court that if what he had heard discussed about the case was corroborated it "might have some effect" on his verdict. On further examination he stated in answer to the question whether he would go by the evidence from the witness stand in arriving at his verdict, "I'll do my best, but I have heard a lot of things in regard to it. Of course, if they were corroborated on the witness stand." Later after having been asked several questions by the court as to the effect of what he had heard would have on the verdict he would render, he was then asked by the court, "* * * is it your opinion that you could render a verdict according to the evidence, whatever evidence is brought from the witness stand?" The juror replied, *282 "I think so, yes sir." The court then asked, "That's your best judgment that you would do that?" His answer was, "Yes sir." The court refused to disqualify the juror and this ruling did not constitute reversible error.
Our statute, Code of 1940, Title 30, § 55(7) reads:
And § 56, Title 30 provides that this ground is proved "by the oath of the person alone".
In Peterson v. State, 227 Ala. 361, 150 So. 156, 159, certiorari denied 291 U.S. 661, 54 S. Ct. 439, 78 L. Ed. 1053, the court said:
The answers of the juror Wallace do not disclose that he had a fixed opinion which would bias his verdict but he stated plainly that he could render a verdict according to the evidence. In the Peterson case, supra, the court also said:
Assignment of error No. 64 charges that the trial court erred in making the following statement in his oral charge: "In other words if a man assaulted you with his fist, you wouldn't be supposed to shoot him with a gun to resist the assault on you with his fist, * * *."
This statement, when viewed alone, is not strictly correct. There are times when exceptional and unusual circumstances may justify the use of a deadly weapon against an unarmed man.
Here the charge given by the Judge must be viewed in the light of his statements immediately preceding and following that portion heretofore quoted:
When the charge is viewed as a whole, it is clear that no reversible error was committed. There are no unusual or exceptional circumstances in this case which would bring it within the principle of the Davis case, supra.
Assignments of error 68 and 69 deal with the failure of the trial court to give two requested written charges. Neither of the charges is predicated on belief from the evidence and both were properly refused. In Payne v. State, 261 Ala. 397, 74 So. 2d 630, 639, we said: "The proper hypothesis for a requested charge in a criminal prosecution is rested on belief from the evidence. Wesson v. State, 251 Ala. 33, 36 So. 2d 361." See Johnson v. State, 257 Ala. 644, 60 So. 2d 818.
The judgment of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | March 10, 1955 |
cb080355-51e2-4436-bcec-735e4732f901 | Ex Parte Sellers | 519 So. 2d 1292 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 1292 (1987)
Ex parte David SELLERS.
(Re: David Leon Sellers, alias v. State).
86-1274.
Supreme Court of Alabama.
December 18, 1987.
Rehearing Denied February 12, 1988.
Joel L. Sogol, of Sogol & Chandler, Tuscaloosa, for petitioner.
Don Siegelman, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for respondent.
BEATTY, Justice.
On the authority of Borden v. State, [Ms. 7 Div. 691, October 13, 1987] (Ala. Crim.App.1987), and Mulhern v. State, 494 So. 2d 787 (Ala.Crim.App.1986), the petitioner's conviction for trafficking in marijuana is reversed due to the insufficiency of the evidence, and judgment is hereby rendered for petitioner on that charge.
REVERSED AND JUDGMENT RENDERED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS and HOUSTON, JJ., concur. | December 18, 1987 |
c15d4aad-a182-45b1-aa19-463629a54ed3 | O'GRADY v. City of Hoover | 519 So. 2d 1292 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 1292 (1987)
Joe M. O'GRADY, et al.
v.
CITY OF HOOVER, Alabama.
86-1243.
Supreme Court of Alabama.
December 31, 1987.
Rehearing Denied February 12, 1988.
*1294 William L. McElroy, Birmingham, for appellants.
Jack H. Harrison of Gordon, Harrison & Latham and Charles Hayes of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellee.
John P. Adams, of Bradley, Arant, Rose & White, Birmingham, for amicus curiae Alabama League of Municipalities.
William M. Slaughter, Mark E. Ezell, and James L. Richey of Haskell, Slaughter & Young Professional Ass'n, Birmingham, and Robert E. Steiner III of Steiner, Crum & Baker, Montgomery, for amici curiae Alabama Bankers Ass'n and Alabama Security Dealers Ass'n.
Joseph H. Johnson, Jr., and David W. Spurlock of Johnson & Thorington and J. Hobson Presley, Jr., of Maynard, Cooper, Frierson & Gale, Birmingham, for amicus curiae Ass'n of County Commissions of Alabama.
SHORES, Justice.
This is an appeal from a judgment entered in a statutory validation proceeding initiated by the City of Hoover, Alabama (the "City"), pursuant to the provisions of Ala.Code (1975), §§ 6-6-750 et seq., to validate general obligation warrants in the principal amount of $12,150,000. The petition was filed against the taxpayers and citizens of the City, and an answer was filed by the district attorney. Joe M. O'Grady and Daniel R. Farnell also responded by filing an answer entitled "Showing of Cause." Pursuant to an order of the trial court, O'Grady and Farnell were named intervenors and parties defendant in the validation proceeding.
The validation hearing was held before the Honorable Marvin Cherner in the Circuit Court of Jefferson County on May 7 and 8, 1987. After receiving briefs from attorneys for both sides, the trial court rendered its "Findings of Fact, Conclusions of Law and Final Judgment," in which it validated and confirmed the warrants and all agreements and proceedings initiated by the City. The district attorney participated in the proceedings below, but did not join the appellants in this appeal.
The underlying facts are undisputed. On April 6, 1987, the elected officials of the City of Hoover adopted Ordinance No. 87-602 authorizing the issuance of general obligation warrants in the principal amount of $12,150,000. These funds were to be donated to the Public Park and Recreation Board of the City of Hoover (the "Park Board") and were to be used by the Park Board for the acquisition and construction of a public park, athletic field and stadium, and related improvements. The Park Board is a public corporation, and, as the owner of the stadium, it entered into a lease agreement permitting the Birmingham Baseball Club, Inc. (the "Barons"), to use the stadium for playing baseball during the minor league baseball season for ten years with an option to renew the lease for an additional five-year period.
Additionally, the Park Board and the Barons have entered into a management agreement for the stadium to be utilized for other recreational, charitable, and civic events. Under this agreement, the Barons will have sole use of the stadium for the management and conducting of events other than the playing of professional baseball. The lease and the management agreement were executed contemporaneously, and when read together provide for a year-round lease with a duration of ten years with an option to renew for an additional five-year period.
The trial court made the following pertinent findings of fact:
From these findings, the trial court reached the following conclusions of law:
"`It certainly cannot be affirmed that the purpose of the Constitution was to prohibit the creation of city indebtedness without an election. There is nothing in the Constitution to prohibit the creation of debts to the limit which it fixes, without the sanction of such election. The Constitution, § 222, only checks the issuance of a certain form of security for that debt, but not the creation of the debt. It has been held not to prohibit the issuance of warrants, under seal, though interest bearing and due over a period of years.' Citing Littlejohn v. Littlejohn, 195 Ala. 614, 71 So. 448.
Pursuant to these conclusions, the trial court entered an order validating and confirming the warrants and the proceedings, provisions, covenants, and agreements in connection therewith. The appellants assert that the trial court erred in finding that the proposed general obligation warrants *1297 were not "bonds" and were not subject to the provisions of § 222 of the Constitution of Alabama. Also, the appellants contend that the transactions violate § 94 of the Constitution of Alabama, and that an election was required prior to the execution of the lease between the Park Board and the Barons. We affirm the judgment of the trial court.
Section 222 of the Constitution of Alabama provides that no bonds shall be issued under the authority of a general law unless such issue of bonds be first authorized by a majority vote by ballot of the qualified voters. For more than 80 years, this Court has consistently held that § 222 is not applicable to interest-bearing warrants. See Matkin v. Marengo County, 137 Ala. 155, 34 So. 171 (1903); Talley v. Comm'rs' Court of Jackson County, 175 Ala. 644, 39 So. 167 (1905); Littlejohn v. Littlejohn, 195 Ala. 614, 71 So. 448 (1916); Parsons v. City of Birmingham, 223 Ala. 610, 137 So. 665 (1931).
This statement of law is not contested. However, it is the appellants' contention that the instruments proposed to be offered by the City, although labeled "General Obligation Warrants," are, in reality, by the terms and conditions of the sale, bonds, and, for this reason, are subject to the provisions of § 222. Although bonds and warrants are mutually exclusive in that one instrument cannot be both a bond and a warrant, these two instruments do not encompass the entire field of negotiable or commercial instruments. If an instrument fails to meet the criteria of a warrant, it is not automatically a bond, and vice versa. The instrument may be a promissory note, a check, a draft, or one of a number of other instruments. Therefore, we focus our attention on the characteristics of bonds and will apply our analysis to the proposed instruments in order to properly determine whether they are bonds, since only bonds are subject to the restrictions of § 222 of the Constitution of Alabama.
We begin our analysis by applying the factors as set forth in Littlejohn to the proposed instruments in the instant case. The following excerpt from Littlejohn, supra, 195 Ala. at 617, 71 So. at 449, illustrates the basic distinction between a bond and a warrant:
A thorough reading of the provisions of Ordinance No. 87-602 reveals that the proposed instruments are very different from the warrants at issue in Littlejohn. In general, a warrant is an order or direction to pay when in funds, while a bond is considered a promise to pay that is enforceable without being conditioned upon the obligor's being in funds. The appellants agree with this distinction; however, it is their position that the instruments in the instant case do not comport with this distinction. It is indisputable that the proposed warrants contain the classic language acknowledging a debt and ordering the treasurer to pay the payee. However, the language of the subsequent clauses makes the instruments more than a mere direction to pay when in funds.
The express language of the ordinance provides that the City "[H]ereby acknowledges itself indebted to ... and hereby orders and directs the Treasurer of the Municipality to pay to said payee...." The City is to maintain a fund at a depository bank, and the City "has obligated itself to pay or cause to be paid into said fund from the taxes, revenues or funds of the [City] sums sufficient to provide for the payment of the principal of and interest on the Warrants as the same mature and come due." In addition, the ordinance provides:
It is the City's contention that the proposed instruments cannot be bonds since they contain no express language whereby the City "agrees" or "promises," in so many words, to pay any stated sum to the registered owners. There should not be any significance given to the fact that the proposed instruments do not contain an express "promise." Section 11-1-17, Ala. Code (1975), contains a statutorily approved form for a warrant, and that form contains an express "promise to pay." In other words, the nature of the instrument is determined from the language as a whole and is not dependent upon the inclusion or exclusion of one particular word.
The express language of the ordinance constitutes more than a mere "order to pay when in funds" and is very similar to the traditional "promise to pay" language used in bonds.
Another essential characteristic of a "bond" is the nature or kind of contractual obligation inherent in and represented by a "bond"that is, a promise or obligation to pay money; "warrants" do not have this feature. They key remedy available to a bondholderi.e., the power to sue on the contract represented by the issuer's promise to payis not available to the holder or transferee of a warrant. A warrant "possesses no element of a contract." Savage v. Mathews, 98 Ala. 535, 13 So. 328 (1892). Mandamus is the appropriate remedy against the treasurer forcing him to apply to the payment of a warrant "funds actually in hand which he ought to apply as payment." Through mandamus, a court may compel a treasurer to carry out his official duty.
Section 16 of the ordinance expressly provides that "The terms, provisions and conditions set forth in this ordinance constitute a contract between the [city] and the registered owners of the Warrants and shall remain in effect until the principal of and interest on the Warrants shall have been paid in full." In addition, Section 13 of the ordinance provides that the City "will pay ... all expenses incident to the *1299 collection of any unpaid portion thereof, including a reasonable attorneys' fee."
These provisions are contrary to the proposition that a warrant holder's exclusive remedy is mandamus. At oral argument, the City conceded that a warrant holder's remedy is mandamus, as established by law. However, the express provisions of the ordinance provide that the agreement constitutes a contract, thus allowing a holder to maintain an action in contract, just as a bondholder brings his action in contract.
From the foregoing, it is evident that the proposed instruments are not warrants within the contemplation of Littlejohn. However, this does not necessarily mean that the instruments are bonds and that the issuance without an election was in violation of § 222. As stated at the beginning of our analysis, the issue before us is whether the proposed instruments are bonds, not whether the proposed instruments are warrants.
Although a warrant is assignable, the transferee cannot be a holder in due course and the transferee will be subject to all the defenses of the obligor. Also, a warrant does not have the attributes of a negotiable instrument, in that it cannot be made the foundation of an action at the suit of a transferee. On the other hand, a distinguishing feature of a bond is that it is freely transferable, and the transferee can acquire holder-in-due course status.
Bonds, within the scope of § 222, must be negotiable instruments, and the statutory provisions for negotiable instruments, § 7-3-104(1)(d), Ala.Code (1975), require that a negotiable instrument be payable to order or to bearer. In this context, the requirement that it be payable to order or to bearer contemplates that the payee will be able to directly assign the instrument to the transferee without the necessity of involving the original obligor. Although the proposed instruments in the instant case are freely transferable and assignable, this may be accomplished only on the books of the depository and only upon surrender of the warrant to the depository for cancellation. Upon the tender of the warrant, a new warrant of like tenor shall be issued to the transferee in exchange therefor. This destroys the negotiability of the instruments, and all subsequent transferees will be subject to the defenses of the City. Since the instruments in the instant case require any transfer to be accomplished through the City, the proposed instruments cannot be bonds. Therefore, the proposed instruments are not subject to the constitutional provisions of § 222.
We are not informed why the framers of the Constitution included only bonds, and not other negotiable instruments, within the provisions of § 222, but it only applies to bonds, and our function is to apply the constitutional provision as enacted and to determine whether these instruments are bonds. We cannot, by judicial interpretation, amend § 222 of the Constitution to make it applicable not only to bonds, but also to those instruments similar to bonds. Such a modification of the Constitution must take place in a different forum. The proposed instruments in the instant case cannot be bonds because they lack the attributes of negotiability; therefore, the trial court properly determined that the provisions of § 222 were not applicable to the instruments in the instant case.
The appellants also contend that the transactions violate § 94 of the Constitution of Alabama, and that an election was required prior to the execution of the lease between the Park Board and the Barons. The resolution of this issue depends entirely upon facts admitted into evidence before the trial court. Our review of these assignments of error is limited by the ore tenus rule and the fact that the appellants have failed to include in the record on appeal a transcript of the testimony taken during the hearing.
Section 94 of the Constitution of Alabama prohibits a municipality from making a loan of credit, or a grant of money or thing of value in aid of an individual or a private corporation. There are two elements to a violation of the provisions of § 94: 1) the municipality must have performed *1300 one of the proscribed acts, and 2) the recipient must be an individual or a private corporation. The appellants would have us hold as a matter of law that the transaction in the instant case is a proscribed act solely because the stadium will be operated at a deficit. This we are not prepared to do, and the record on appeal will not allow us to determine that the trial court was palpably wrong or manifestly unjust in determining that the transactions "were not arbitrary or capricious, do not constitute unjust enrichment of the Baseball Club ... and do not impose an inequitable and unconscionable burden on the taxpayers and citizens of the City." The appellants' last contention is that trial court erred in ruling that no election was required for the approval and execution of the contracts for the lease of the stadium. As authority for their argument, the appellants rely upon Amendment No. 112 to the Constitution of Alabama, which requires voter approval before a political subdivision or public body may alienate certain public property. Again, the appellants would have us hold, as a matter of law, that a ten-year lease is equivalent to an alienation of the property. Again, this we are not prepared to do. We will not establish a time period that in and of itself equates a lease with an alienation of the property. This should be determined by the trial court on a case by case basis, and in the instant case the record on appeal will not allow us to determine that the trial court was palpably wrong or manifestly unjust in determining that there was no alienation of the property. See Winner v. Marion County Comm'n, 415 So. 2d 1061 (Ala. 1982).
Based on the foregoing, we are of the opinion that the judgment of the trial court is due to be affirmed.
AFFIRMED.
MADDOX, JONES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur.
TORBERT, C.J., and ALMON, J., dissent.
TORBERT, Chief Justice (dissenting).
The majority opinion concedes that the financial instruments in question have most of the attributes of bonds. However, it seems to conclude that they are not bonds, simply because they are non-negotiable under the law of commercial paper, and therefore are not within the operation of § 222, because § 222 refers only to bonds. Rather than blindly relying on the law of commercial paper to control whether the instrument in question is a "bond," as that word is used in § 222, I would look to the context in which the word was used and to the intent and purpose of § 222.
I must acknowledge, before I begin this inquiry, that there are statements in some cases that arguably support a narrow construction of § 222:
Parsons v. City of Birmingham, 223 Ala. 610, 611, 137 So. 665, 666 (1931). However, neither Parsons nor Littlejohn v. Littlejohn, 195 Ala. 614, 71 So. 448 (1914), pays homage to an analysis based upon form over substance. In both cases, the court conducts an inquiry into the essential features of the instruments at issue before concluding that they do not fall within the operation of § 222.
Other cases make it clear that one of the key features bringing an instrument into the ambit of § 222 is that it create a general obligation, that is, one backed by the general tax revenues of the municipality. Opinion of the Justices No. 26, 226 Ala. *1301 570, 148 So. 111 (1933); Fuller v. City of Cullman, 240 Ala. 309, 199 So. 2 (1940); Opinion of the Justices No. 108. 252 Ala. 583, 42 So. 2d 348 (1949). Fuller also emphasized the propriety of putting substance over form and looking to the purpose of the constitutional provision at issue:
Id., 240 Ala. at 314, 199 So. at 6.
Fuller and the two opinions of the Justices previously cited involved application of both § 222 and § 225. Those sections and § 104(17), preventing the legislature from passing a local law authorizing political subdivisions of the state to issue "bonds or other securities" without there first being an election, are obviously related. They were on occasion discussed together during the deliberations giving rise to the Constitution of 1901:
"`I wish to state clearly my appreciation of, and adherence to, the wisdom of constitutional restrictions on the indebtedness of cities. These restrictions are to be found in the Constitutions of nearly all our states, and have been upheld both in letter and in spirit by the decisions of our courts. They have undoubtedly served to prevent the financial ruin of many small cities, which in the hands of unscrupulous political adventurers would otherwise have undergone disastrous experiences. Yet this constitutional limitation has itself its limitations. It should not be made a fetish to be worshipped blindly at the expense of really necessary progress.
"`[In] the competition which exists today between nations and cities, as well as between individuals, to stand still means to retrograde, and if it should happen that a choice must be made between stopping the modernization of New York and amending the Constitution, I am in favor of the latter course, provided no real danger to the city's credit and solvency be thereby threatened.
"`I believe the clause in the Constitution limiting municipal indebtedness wholly admirable at the time it was writtenis not altogether adapted to modern requirements, in that it does not discriminate sufficiently between two classes of city debts of a wholly different character.
"`A city issues bonds only for permanent improvements, the benefits of which inure to posterity. But there are two classes of these improvements, easily distinguishable from one another, and between which a sharp distinction should be drawn.
"`In one of these classes are improvements which, while adding to the attractiveness, beauty, and healthfulness of a city, to its economical administration, or to the better conduct of its governmental functions, bring in no direct financial returns. This is by the erection of public buildings, including schools, the acquisition of parks, and the repaving of streets. No matter how great the material benefits may be that are derived from such improvements, the expense incurred is unquestionably a financial burden upon the taxpayers. In regard to such expenditures there can be no doubt as to the wisdom of establishing an arbitrary constitutional limit, since otherwise the burdens that might be thrown upon succeeding generations by excessive issues of bonds would become intolerable.
"`There is another class of improvements, however, far less common, which *1302 either result in casting no burdens whatever upon the taxpayers or else bring in an actual profit to the municipality. In such cases it may be permissible to ask wherein there lies any rational excuse for limiting the governmental activities of a city by constitutional restrictions. A dim recognition of this truth seems already to have found expression in the Constitution of New York, which partially excepts from the operation of the debt limitation bonds issued to provide for the supply of waste and requires only that a special sinking fund be established for their ultimate redemption. Why this exception? Because pure water is a prime necessity for the health of a community? Scarcely, for there are many other public necessities paid for by the issue of bonds which are hardly less imperatively needed by the people, and as to such [the] Constitution is silent. The reason must be found in the fact that for the past century, by a universal custom which has the force of unquestioned law, it has been the practice of cities owning water-works to charge consumers for the water supplied, and that the rentals received from the operation of this natural monopoly have almost invariably shown a profit over the expense of maintenance and operation. In other words, bonds issued to provide for the supply of water are not a real burden upon the taxpayers, since the water rents received pay the interest on these bonds, amortize the principal, and still yield a profit to the city.'
"Summing up the result of this article, the author says:
"`Our constitutions should be amended so as to except from the limitation on the indebtedness of cities bonds issued to provide for improvementswhich, while governmental in their character are, nevertheless, essentially business enterprisesand from the operation of which profits can be derived sufficient to provide a speedy payment of the indebtedness temporarily incurred.'"
Official Proceedings, Constitutional Convention (Alabama), 1901 pp. 1513-15.
A spirited discussion followed, during which various limitations on indebtedness were discussed. At one point, Mr. Knox commented:
Constitutional Proceedings at 1588. Eventually the present version of § 225, with different limitations on general debt and debt for water works, gas or electric plants, and sewage and street construction, emerged.
The Convention heard from the Committee on Local Legislation before it acted on the recommendations of the Committee on Municipal Corporations. The Committee, in a report that eventually led to § 104(17), proposed to restrict the legislature from passing laws authorizing local bond issues. It was noted: "[It would] be practically impossible to dispose advantageously of municipal bonds without the sanction of the General Assembly in each specific case.... We know that when we come to issue bonds, it is not only necessary to have authority to issue them, but it is necessary to have the authority to do so in such a manner as to make them attractive to investors." Constitutional Proceedings at 1853.
A view contrary to that of involving the legislature was expressed by Mr. Watts: "The object of the including of this provision in this report is not an account of the issue of bonds by any town or city, but simply to keep the legislature from taking the public time in passing a special law in each particular case." Constitutional Proceedings at 1855.
The remarks of several delegates on the proposal of the Committee on Local Legislation reflect the interplay between § 104(17), § 222, and § 225:
"`Sec. 7. No county, city, town, village, district or other political subdivision of a county shall have authority or be authorized by the General Assembly after the ratification of this Constitution to issue bonds, unless such issue of bonds shall have first been approved by majority vote by ballot of the qualified voters of such county, city, town, village, district, or other political sub-division of a county voting upon such proposition. In determining the result of any election held for this purpose, no vote shall be counted as an affirmative vote which does not show on its face that such vote was cast in approval of such issue of bonds.'"
Constitutional Proceedings at 1857-58.
By the time the Convention actually took up § 7 of the report of the Committee on Municipal Corporations, most of the discussion centered on whether female property owners should be able to vote in bond elections.
I cite the lengthy discussions from the constitutional proceedings not to affirmatively show what the framers intended by using the word "bonds" in § 222 but rather to show that the framers did not discuss what was to be included within the term "bonds." It is interesting to note that the Constitution both affirmatively authorizes the issuance of bonds upon the vote of the *1304 people of the municipality in § 222 and prohibits the legislature from passing local laws authorizing the issuance of "bonds or other securities" without an election by the voters in the municipality, § 104(17).
Because I find no hint in these discussions that the word "bond" was used as the result of a deliberate attempt to restrict the issuance of only an instrument that has the strict technical requirements of a bond, it is appropriate to examine the question of whether the lack of negotiability, the element the majority concludes is fatally lacking, should remove the instruments involved in the present case from the requirements of § 222.
I have difficulty in following the rationale of the majority with respect to negotiability and the "holder in due course" issue. First, while these instruments may not be technically negotiable, they are freely transferable and assignable, although transfer or assignment is accomplished only upon surrender to the depository for cancellation and the reissuance of a new instrument of like tenor. The majority concludes that the transferee cannot be a holder in due course and, therefore, would be subject to all defenses of the obligor. However, the ordinance, as well as the instrument itself, provides that the indebtedness "is lawfully due without condition, abatement or offset of any description."
The mandate of a constitutional provision should not be so easily circumvented by a technical statutory requirement that has no practical effect in this setting. Holder-in-due-course status has a significant effect where the subsequent holder is protected from defenses of the original obligor. In the instant case, there are no defenses that could be asserted against a subsequent holder that could not be asserted against a holder in due course. In other words, a subsequent holder's position would be no better, even if he had holder-in-due-course status.
Therefore, I conclude that § 222 required that an election be held before these instruments could be issued.
Although I believe the instruments at issue are subject to the requirements of § 222, I would apply this decision quasi-prospectively. The Alabama Bankers Association and the Alabama Security Dealers Association, in an amicus curiae brief, contend:
In Stallworth v. Hicks, 434 So. 2d 229 (Ala.1983), we refused to apply retroactively a prior decision that changed the law of homestead to meet a constitutional challenge. In doing so, we cited with approval Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S. Ct. 317, 318-19, 84 L. Ed. 329 (1940):
I believe that consideration of the factors set forth above lead to the conclusion that my position on the requirements of § 222, if it had prevailed, should not be applied retroactively. See State ex rel. Washington State Finance Committee v. Martin, 62 Wash. 2d 645, 384 P.2d 833 (1963), wherein the Washington Supreme Court refused to retroactively apply a decision holding that limited obligation bonds were subject to a constitutional debt limit.
As previously stated, however, I would apply the decision quasi-prospectively.
33 Ala.L.Rev. 463, 473 (1982). This case was brought pursuant to Code 1975, § 6-6-750 et seq., which set up a mechanism for establishing, before issuance, the validity of a proposed obligation. While the result of my position might have, if it had been the majority position, caused the municipality some inconvenience, because the obligation has not yet been issued the reliance factor is insignificant in comparison to the purposes to be served by § 222.
ALMON, J., concurs. | December 31, 1987 |
cf387666-4e49-4140-97a5-4cbbd178d208 | Arthur v. Arthur | 77 So. 2d 477 | N/A | Alabama | Alabama Supreme Court | 77 So. 2d 477 (1955)
Rose Stephens ARTHUR
v.
William D. ARTHUR.
3 Div. 681.
Supreme Court of Alabama.
January 20, 1955.
*478 Azar & Campbell, Montgomery, for appellant.
Albert L. Roemer, Montgomery, for appellee.
MAYFIELD, Justice.
This is an appeal from a decree of divorce in favor of the husband.
The trial court entered a decree dissolving the bonds of matrimony existing between the complainant and the respondent and bastardizing their infant daughter. Neither of the parties was before the court, and the evidence consisted of the bare deposition, interrogatories and exhibits of complainant and respondent; with the exception of complainant's sister who appeared and testified orally only as to complainant's residence and good character. The original complaint was filed by the husband-complainant against the wife-respondent on the grounds of adultery. The complaint was later amended to include a charge of pregnancy without the knowledge or agency of the husband.
The record discloses that William D. Arthur was living with his mother in Montgomery, Alabama, and enlisted in the United States Navy on or about June 29, 1944. Complainant, a Navy career man, while serving with the Navy in California, married Rose Stephens Arthur on February 17, 1951. A daughter was born on September 25, 1951, at the United States Hospital in California. The husband signed the California birth certificate certifying himself to be the father of the child, and gave the hospital authorities all other information required concerning his wife and the child.
According to official Naval itinerant records, the complainant returned to California on January 14, 1951, and remained until February 21, 1951, and according to appellant's testimony the parties engaged in sexual relations almost daily from 23 January 1951 until 17 February 1951, on which date they were married after the doctor advised the respondent that she was pregnant. Complainant lived off of the Naval Base in California with the respondent. They have never resided in the State of Alabama.
According to the complainant's deposition, he caught his wife in an act of sexual intercourse with another man on two different occasions. The respondent answered the allegations of adultery and the amended bill, including the allegation of pregnancy without the knowledge or agency of the husband, by denying both charges.
Several issues were raised and argued on this appeal, but in the interest of brevity, we waive consideration of those not necessary to this decision. We find the controlling questions to be (1) whether the trial court had jurisdiction of this cause, and (2) whether the evidence was sufficient to sustain a decree on the grounds of pregnancy at the time of marriage without the knowledge or agency of the husband and thereby bastardize complainant's infant daughter.
The complainant's sister gave no testimony as to the matters which were embodied in the decree of the trial court. This decree was not based upon evidence heard orally by the presiding judge, and therefore, there is no presumption as to the correctness of the decree in that respect. Jones v. Stollenwerck, 218 Ala. 637, 119 So. 844; Harvey v. Phillips, 247 *479 Ala. 134, 22 So. 2d 900; Gardner v. Gardner, 248 Ala. 508, 28 So. 2d 559; Butler v. Guaranty Sav. & Loan Ass'n, 251 Ala. 449, 37 So. 2d 638; Boothe v. Reed, 229 Ala. 690, 159 So. 218; H. H. Daniel Co. v. Brown, 18 Ala.App. 655, 94 So. 243; Mitchell v. Kinney, 242 Ala. 196, 5 So. 2d 788.
The child was born on September 25, 1951. Complainant, in his own deposition, admitted intimacy with the respondent beginning January 23, 1951. The child was born some 246 days after the first admitted act of intercourse. Applying this factual situation to the medical testimony, approved by our court in Allred v. State, 151 Ala. 125, 128, 44 So. 60, 61:
This evidence is not in conflict with the complainant's military log introduced into the record by the complainant.
The policy of the law is to confer legitimacy upon children born in wedlock where access of the husband to the wife at the time of conception is not impossible. This presumption was originally so strong that it could be rebutted only by testimony that the husband was incapable of procreating or was absent beyond the realm. Bullock v. Knox, 96 Ala. 195, 11 So. 339, 340; Franks v. State, 26 Ala.App. 430, 161 So. 549.
In Coke Upon Littleton, Vol. II, Chap. 6, Sect. 399, Lord Coke had this to say:
The problem was treated in Blackstone Commentaries thus:
The rule of the "four seas" was relaxed in the case of Pendrell v. Pendrell, 2 Strange 925, in 1732 to allow the husband to introduce evidence of non access to his wife. In 1807, Lord Ellenborough held, in the case of King v. Luffe, 8 East 193, that where a child is born of a married woman, the husband is to be presumed to be the father, unless the presumption is overcome by evidence to show the absolute physical impossibility of the fact.
Our court, in the case of Sims v. Birden, 197 Ala. 690, 691, 73 So. 379, 380, 744, held in 1916 that: "A child born in lawful wedlock is presumed legitimate until the contrary is properly shown by the party who denies its legitimacy, and upon whom the burden then rests to sustain his denial. * * *"
The law of this state was well stated in the case of Carnegie v. Carnegie, 261 Ala. 146, 73 So. 2d 556, 557: "When a child is born in wedlock the law raises a rebuttable presumption of its legitimacy. *480 * * * The presumption attends even when it is shown the child was conceived out of wedlock." Our court, in this case, refused to make any distinction as to the burden of proof where there was a premarital conception.
The modern text writers have stated the proposition thus:
The cases that support the text writers in the above general statements are legion. It would be impracticable and unduly burdensome to try to collect them. However, a sampling of these cases may serve to show how well established and firmly rooted are these principles in our jurisprudence.
Neither party was personally before the court. The interrogatory answers of the respondent have a ring of verity; and the answers of the complainant are evasive and equivocal. Complainant remembers with exactitude all facts that have probative value in his favor, but reverts to the standard "I do not remember" when asked to answer damaging interrogatories.
Why is the presumption of legitimacy considered one of the strongest of the law? The reason behind the rule is properly found in the consideration that in actuality the one that suffers the "slings and arrows" of this decree is the infant daughter, unaware of this proceeding, and unable to protect herself. The older she grows, the deeper will burn the brand that this decree places upon her. The child that bears the full brunt of this decree is not even protected by a guardian ad litem.
We are equally cognizant of the injustice in requiring one man to support another man's child until maturity. However, in this cause we do not find that the evidence of the complainant's claim is either compelling or satisfying.
Since this cause must be reversed for the reasons above, we see no benefit that would accrue to the parties by writing to the question of the conflicting presumptions of domicile, or the question of the sufficiency of the quantum of proof of domicile, which were so ably briefed and argued by the counsels for the parties. It therefore follows that this cause is due to be, and is, reversed and remanded.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | January 20, 1955 |
89a1a6ab-4204-43c9-8419-ff1bd056f944 | Central of Georgia Railway Co. v. McDaniel | 78 So. 2d 290 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 290 (1955)
CENTRAL OF GEORGIA RAILWAY CO.
v.
Ralph McDANIEL.
4 Div. 814.
Supreme Court of Alabama.
February 24, 1955.
Grady G. Cleveland, Jr., Eufaula, for appellant.
Archie I. Grubb and Sam A. LeMaistre, Eufaula, for appellee.
PER CURIAM.
This is an appeal from a judgment in favor of plaintiff on a claim for personal injuries, for which defendant was adjudged to be liable in damages. This case was tried and judgment rendered in the same court as judgment was rendered on the following day in the case of Central of Georgia Railroad Co. v. Hinson, 78 So. 2d 286, now before this Court.
In the Hinson case we were called upon to dismiss the appeal for certain reasons which are similar to those made on this appeal. We there discussed the questions involved in the motion to dismiss the appeal in the instant case and found the grounds not well taken. So that the motion to dismiss this appeal should be overruled.
The first four assignments of error do not refer to any ruling of the court. It is of course only a ruling of the court which is subject to an assignment of error, and therefore those assignments will be disregarded.
*291 The fifth assignment is the only one which relates to a ruling of the court. It is in overruling appellant's motion for a new trial. For reasons which we will now undertake to show that ruling was void because beyond the power and jurisdiction of the court. The facts material to that question are that the final judgment was rendered January 13, 1954. The motion for a new trial was filed February 1, 1954. Notice was given that it would be heard on February 11, 1954, within thirty days after the judgment. But it was not heard on that day, which is shown by the transcript on appeal, and no order was entered during the thirty day period continuing the hearing to a future day as authorized in section 119, Title 13, Code. It is necessary for such an order to be made in writing by the trial judge and filed in the cause or deposited with the clerk within thirty days from the judgment, since the trial judge resided in that county (of which we take judicial notice). Ex parte Margart, 207 Ala. 604, 93 So. 505; Mt. Vernon-Woodberry Mills v. Union Springs Guano Co., 229 Ala. 91, 155 So. 716.
It is true that on March 1, 1954, the judge made an order reciting the fact that a hearing of the motion was on February 11, 1954 continued to March 1, 1954, but such recital is not sufficient. The transcript in this Court must contain a copy of such order made by the judge and filed or deposited with the clerk within the thirty day period.
The order of March 1, 1954 also recites the fact that on that day the parties appeared. That means all the parties. No objection is noted to the judge hearing the motion on that day. But the court had lost jurisdiction by the failure to enter an order within thirty days continuing it for hearing at a future day as required by the statute, supra. This Court has held that under those circumstances the parties cannot confer jurisdiction by consent. Pate v. State, 244 Ala. 396, 14 So. 2d 251.
So that, the order of the court overruling the motion for a new trial was beyond the jurisdiction of the court and was void and not subject to review. There being no other ruling of the court assigned as error, 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.
The motion to dismiss the appeal is overruled: the judgment is affirmed.
All the Justices concur. | February 24, 1955 |
b878dc57-98a0-4720-af11-671c53db7df0 | L & S Roofing Supply Co. v. ST. PAUL FIRE & MARINE INSURANCE | 521 So. 2d 1298 | N/A | Alabama | Alabama Supreme Court | 521 So. 2d 1298 (1987)
L & S ROOFING SUPPLY COMPANY, INC.
v.
ST. PAUL FIRE & MARINE INSURANCE COMPANY.
86-391-CER.
Supreme Court of Alabama.
December 18, 1987.
Rehearing Denied March 25, 1988.
James A. Harris, Jr., and Barry A. Ragsdale of Sirote, Permutt, McDermott, Slepian, Friend, Friedman, Held & Apolinsky, Birmingham, for appellant.
Edward O. Conerly of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellee.
BEATTY, Justice.
Pursuant to Rule 18, A.R.App.P., this Court consented to answer the following question certified by the United States District Court for the Northern District of Alabama:
In its petition for certification, the district court included a thorough statement of the facts that also explains the procedural background of the case, which we set out in its entirety here:
"This case arises out of a dispute between an insured, L & S Roofing Supply Company, Inc. (hereinafter `L & S Roofing'), and its insurer, St. Paul Fire & Marine Insurance Company (hereinafter `St. Paul'), involving a suit filed against L & S Roofing in Alabama state court by Beaver Construction Company on August 13,1985. (Beaver Construction Company v. Tamko Asphalt Products, Inc.; L & S Roofing Supply Company, Inc., et al., CV-85-4998) (hereinafter `The Beaver Construction litigation' or `the underlying action').
*1299 L & S Roofing is insured by St. Paul under certain insurance policies which purport to insure L & S Roofing against claims resulting from bodily injury to others and from damage to the property of others. It also appears that L & S Roofing was insured under umbrella liability policies with First State Insurance Company from February 1, 1983, to February 1, 1984, and with Safety Mutual Casualty Company from February 1, 1984, to February 1, 1985. Both of these umbrella policies provide essentially the same coverage as is provided under the St. Paul policy, and are excess insurance policies in the amount of $500,000.
"The policies of insurance issued by St. Paul to L & S Roofing contain the customary provisions imposing upon St. Paul a duty to defend its insured. Policy number 601NB1187 (in effect from February 15, 1983, through February 15, 1984), under the heading `Additional benefits,' states that:
"`We'll defend any suit brought against you for damages covered under this agreement, even if the suit is groundless or fraudulent. We have the right to investigate, negotiate and settle any suit or claim if that seems proper and wise.
"`We'll pay all costs of defending the suit, including interest on any judgment. But we won't defend a suit or pay any claim after the limits shown on page 1 of this agreement have been used up paying judgments or settlements.'
"(Insuring Agreement 36, `Comprehensive General Liability Protection,' at page 2 of 4.) Policy number 601NB2965 (in effect from May 1, 1984, through March 1, 1985), and policy number 601NB3190 (in effect from March 1, 1985, through March 1, 1986), contain similar provisions. (A true and correct copy of the indemnification provisions of the applicable policy is attached hereto as Exhibit `A,' for the Court's convenience.)
"Each St. Paul policy provides $500,000 maximum single limit coverage for property damage and personal injury or any combination thereof.
"The complaint in the underlying action states claims against L & S Roofing and Tamko Asphalt Products, Inc. (hereinafter `Tamko'), the manufacturer of the roofing materials which were purchased by the plaintiff and installed at Riverchase Garden Apartments. The roofing materials were sold to the plaintiff by L & S Roofing and were not altered or modified prior to the sale.
"The complaint in the underlying action alleges that L & S Roofing breached certain express and implied warranties and was guilty of fraudulent concealment in regard to the sale of the roofing materials. The complaint alleges that the roofing materials had a purchase price of approximately $27,000. Counts one through three of the complaint each demand $75,000 in compensatory damages for breach of warranty, while count four demands $500,000 in compensatory and punitive damages for the alleged fraudulent concealment.
"On October 1, 1985, the firm of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, P.C. (hereinafter `Sirote, Permutt') filed a Motion to Dismiss in the underlying action on behalf of L & S Roofing. Sirote, Permutt continued to be attorneys of record for L & S Roofing since the filing of this Motion to Dismiss. On October 24, 1985, an Answer was filed on behalf of L & S Roofing by Alan T. Rogers of the firm of Balch & Bingham, the firm retained by St. Paul to defend L & S Roofing. L & S Roofing's Answer raised the defense of the running of the statute of limitations as to the warranty and fraudulent concealment claims. The Answer further denies that express or implied warranties were made as alleged by the plaintiff. In addition, L & S Roofing's Answer denies that notice was given to L & S Roofing by the plaintiff as required by law and, in general, the Answer denies responsibility of L & S Roofing for any damages sustained by the plaintiff in the underlying action.
"On October 24, 1985, Balch & Bingham, on behalf of L & S Roofing, propounded Interrogatories to the plaintiff and filed a Request for Production of Documents relating to the transaction made the basis of the Beaver Construction litigation, as well as for documents relating to damages, *1300 costs, and expenditures allegedly incurred by the plaintiff and made the subject of the underlying action.
"On March 18, 1986, Balch & Bingham, on behalf of L & S Roofing, gave appropriate notice for the taking of the deposition of a representative of the plaintiff. A motion to permit inspection of the roofing material and the structures to which it was applied was filed by Balch & Bingham, on behalf of L & S [Roofing], on May 12, 1986.
"L & S Roofing contends, with respect to the underlying action, that the roofing material was not defective and was of good and merchantable quality. L & S Roofing further contends that it made no misrepresentation by concealment or otherwise with respect to the roofing material sold to the plaintiff and further contends that any injury and damage sustained by the plaintiff was caused by improper and negligent application of the roofing materials.
"Tamko Asphalt Products, the manufacturer of the roofing materials in question, contends that the materials were not defective and were of good and workmanlike quality and fit for the purposes for which they were manufactured. Tamko further contends that tests have been made of the roofing material which show that it was not defective and was of good and workmanlike quality.
"On October 7, 1985, St. Paul sent L & S Roofing a letter in which St. Paul stated that it was reserving its rights to disclaim coverage with respect to certain of the claims in the underlying action under the policy issued to L & S Roofing. In this `reservation of rights' letter, St. Paul stated that the amount sued for by Beaver Construction exceeded the limits of liability under the St. Paul policies issued to L & S Roofing. In addition, St. Paul's letter stated that the claims of fraudulent concealment would not be covered by said policies. The reservation of rights letter also stated that St. Paul was referring the defense of the underlying action to Alan Rogers of the law firm of Balch & Bingham, `who will protect your interests pursuant to the terms and conditions' of the insurance policy issued to L & S Roofing by St. Paul.
The letter of October 7, 1985, stated in part as follows:
"`It is also our understanding that you have obtained your own personal counsel to represent you in this matter. We ask that you make your attorneys aware that the amount the plaintiff is suing for is in excess of your policy limits.'
"Upon notice of St. Paul's reservation of rights letter, L & S Roofing, through its own attorneys, made demand on the attorneys hired by St. Paul to allow L & S Roofing to retain, at St. Paul's expense, `independent counsel' (Sirote, Permutt) and to allow said `independent counsel' to control the underlying action.
"In response to the demand made by L & S roofing through its personal attorneys, the firm of Balch & Bingham advised Sirote, Permutt of St. Paul's position by a letter from Alan Rogers on November 19, 1985:
"`St. Paul will continue to retain this firm to provide a full defense for its insured in this lawsuit. As indicated before, we are quite willing to keep you informed of the progress of this litigation. If your firm wishes to take an active role in the litigation, your fees should be submitted to that person or company retaining your services. If you should have any questions, please do not hesitate to call. Meanwhile, I will continue to keep you advised.'
"Although St. Paul has not refused to permit the participation of counsel retained by L & S Roofing, there is no dispute that St. Paul is demanding that the attorneys engaged by St. Paul on behalf of its insured retain control of the underlying litigation.
"Balch & Bingham follows a general practice but has a continuing relationship with St. Paul and regularly represents St. Paul's insureds and, from time to time, represents St. Paul's interests in litigation. The attorneys retained by St. Paul are aware of the coverage problems and have knowledge of the contents of the October 7 reservation of rights letters. In addition, the fees of these attorneys are being paid directly by St. Paul.
*1301 "On March 5, 1986, L & S Roofing filed suit against St. Paul in the Circuit Court of Jefferson County, Alabama (CV-86-500-981-WAT). L & S Roofing's complaint sought declaratory and other equitable relief and alleged that it was a conflict of interest for St. Paul's lawyers to continue to control the underlying action since said lawyers were retained by St. Paul and St. Paul has a direct pecuniary interest in having the litigation resolved in a manner which relieves St. Paul of any financial responsibility under the insurance policies it issued to L & S Roofing. According to L & S Roofing's complaint, since the suit filed by Beaver Construction involves claims for which St. Paul has expressly denied policy coverage, there is an inherent conflict between the interests of L & S Roofing and the interests of St. Paul. L & S Roofing alleges that, while both parties would best be served by a dismissal of all claims or a defendant's verdict, if these events do not occur it is to L & S Roofing's best interests to have the underlying action resolved on those claims for which coverage exists, while it is to St. Paul's interests to have it resolved on claims outside the coverage of the insurance policies. L & S Roofing further alleges that the inherent conflict between its interests and those of St. Paul means that the joint representation of L & S Roofing and St. Paul by attorneys selected by St. Paul results in less effective representation than if L & S Roofing is allowed to select independent counsel. L & S Roofing's complaint contends that, in reality, St. Paul's lawyers will have closer ties to St. Paul than to L & S Roofing and said attorneys will have a more compelling interest in protecting St. Paul's position, whether or not it coincides with what is best for L & S Roofing. Finally, L & S Roofing contends that if St. Paul elects to enter a reservation of rights based upon non-coverage of certain claims, then St. Paul's duty to defend under the policies of insurance issued by L & S Roofing obligates St. Paul to pay the reasonable attorney's fees of independent counsel selected by L & S Roofing, and that St. Paul cannot require L & S to surrender control of the underlying action to attorneys selected by St. Paul.
"This declaratory judgment action does not allege that coverage under St. Paul policies applies to the claims based on fraudulent concealment and does not seek a resolution of any questions of coverage.
"On or about April 18, 1986, St. Paul filed a petition in federal court to remove the present action from Jefferson County Circuit Court to the United States District Court, Northern District of Alabama, Southern Division. The case was assigned to Honorable Sam C. Pointer, Jr., Chief Judge. On May 19, 1986, St. Paul filed an Answer to plaintiff's complaint. In its Answer, St. Paul denies that it directed L & S Roofing to surrender control of the underlying litigation to the firm selected by St. Paul, and states that St. Paul actually `invited participation in the case by attorneys of its insured's choice.' In addition St. Paul specifically denies that there is a conflict of interest arising out of St. Paul's reservation of rights and the defense of the underlying action by attorneys hired by St. Paul. The Answer of St. Paul further contends that L & S Roofing's declaratory judgment action is prematurely filed since no `true' conflict of interest has been shown to exist with respect to St. Paul's insured and the attorneys employed by St. Paul to defend the underlying action.
"Essentially, it is the plaintiff's position that, under the facts of this case, the representation of L & S Roofing by attorneys employed by St. Paul creates an unavoidable and inherent conflict of interest, even though, to the knowledge of the plaintiff, there have not occurred any acts which would constitute an actual or objective conflict on the part of the lawyers hired by St. Paul. In other words, according to the plaintiff, the present case presents a presumptive conflict of interest although the lawyers hired by St. Paul may not have taken any action which would actually prejudice L & S Roofing.
"It is the contention of St. Paul that there is no presumptive conflict of interest and that the underlying lawsuit has not developed in such a fashion as to present a *1302 conflict of interest. It is further contended by St. Paul that the attorneys employed by St. Paul have the legal obligation and duty to defendant [sic] St. Paul's insured according to the best interests of the insured, L & S Roofing Supply Company, and there is not substantial evidence to indicate that the attorneys will act otherwise in the defense of the case."
The parties have extensively researched the question presented and have provided this Court with excellent briefs setting forth their respective analyses of the cases from other jurisdictions dealing with this question, as well as other authorities who have considered the question. L & S Roofing strongly contends that, because St. Paul decided to defend the underlying action against L & S Roofing under a reservation of rights, the attorneys retained by St. Paul to defend L & S Roofing have such a conflict of interest that L & S Roofing is entitled to have independent counsel of its choice to control its defense and to require St. Paul to pay such independent counsel's reasonable fees.
L & S Roofing argues:
L & S Roofing does a thorough job of analyzing many of the decisions from other jurisdictions which it concludes support its position. St. Paul, on the other hand, devotes much of its effort in its brief to distinguishing these cases from the present case. St. Paul also cites several decisions from other jurisdictions that it concludes support its position. One of the cases St. Paul relies upon is Tank v. State Farm Fire & Casualty Co., 105 Wash. 2d 381, 715 P.2d 1133 (1986).
In Tank, one of the issues presented concerned the "nature of an insurance Company's duty of good faith toward its insured when the Company defends under a reservation of rights." 715 P.2d at 1135. In that case, State Farm Fire & Casualty Company ("State Farm") agreed to defend its insured, James Tank, in an action against him alleging an intentional tort; however, State Farm advised Tank that, if his acts were found to have been intentional, a specific provision of his policy excluded such acts from coverage, and State Farm reserved the right to contest coverage. Thereafter, State Farm retained counsel to represent its interests and retained separate counsel to represent Tank, although Tank had retained his own personal attorney as well.
The attorney retained by State Farm to defend Tank maintained contact with Tank, his personal attorney, and State Farm, providing each with a written evaluation of the case prior to trial. It is unclear from the court's opinion whether the attorney State Farm provided Tank actually controlled the defense of the suit or whether he was working along with the attorney that State Farm retained to represent its interests. It is clear, however, that Tank's personal lawyer had some input because the court noted that "[c]ounsel also informed all parties that settlement in the $3,000 to $5,000 range had been rejected by Tank's personal lawyer," although the court further noted that it was unclear from the record what the reason was for rejecting the settlement proposal. Id. Ultimately the case was not settled but was tried to the court, which found that Tank had intentionally assaulted the plaintiff and assessed damages and costs against Tank in the amount of $16,424.07.
State Farm refused to pay the judgment against Tank, whereupon Tank brought an action against State Farm alleging that it had breached its duty of good faith by failing to make reasonable efforts to settle the underlying suit. Tank further alleged that State Farm subordinated his interests to its own by structuring the defense so as to absolve State Farm of any liability to pay pursuant to the terms of Tank's policy. Summary judgment was granted in favor *1303 of State Farm, and the Washington Court of Appeals reversed. The Supreme Court of Washington reversed the judgment of the Court of Appeals.
In Tank, the Washington Supreme Court held that, due to the potential conflicts of interest inherent in an insurer's conducting a defense of its insured under a reservation of rights, the insurer has an enhanced obligation of good faith toward its insured in conducting such a defense. In its opinion, from which we quote at length below, the court set forth specific criteria that the insurer must meet in order to fulfill this enhanced obligation of good faith:
"We also recognize that insurers, when faced with defending under a reservation of rights, are not without alternatives.
Emphasis added. 715 P.2d at 1137-39. After a consideration of the approach taken by the Supreme Court of Washington in Tank, supra, in contrast to the authorities cited to us by L & S Roofing, we are of the opinion that the Washington approach is the better solution to the problem posed by this case, and we adopt that view.
Those authorities cited by L & S Roofing, which stand for the proposition that, in all cases where there is a reservation of rights, regardless of the actual circumstances of the defense provided by the insurer, the insured is entitled to defense counsel of its choice who shall control the defense, and whose reasonable fees the insurer is required to pay, in our view go too far.[1] The objective in a reservation-of-rights situation is to put in place a procedure by which the insured can be confident that his interests will not be compromised nor in any way subordinated to those of the insurer as a result of the defense he is required to accept under the contract of insurance. The standard set forth in Tank, supra, requiring an enhanced obligation of good faith coupled with the specific criteria that must be met by both the insurer as well as the defense counsel retained by the insurer, provides an adequate means for safeguarding the interests of the insured without, at the same time, engaging in the presumption that any and all defense counsel retained by the insurance industry to represent its insureds under a reservation of rights are conclusively unable to do so without consciously or unconsciously compromising the interests of the insureds.
Thus, we answer the certified question in the negative: The mere fact that the insurer chooses to defend its insured under a reservation of rights does not ipso facto constitute such a conflict of interest that the insured is entitled at the outset to engage defense counsel of its choice at the expense of the insurer. We hold that, if the insurer and the defense counsel retained by the insurer to represent its insured meet the specific criteria hereinabove adopted, the insurer has met its enhanced obligation of good faith, and the defense provided by the insurer may proceed under a reservation of rights. It is only when those criteria have not been met in whole or in part that the insured is entitled to retain defense counsel of its choice at the expense of the insurer.
QUESTION ANSWERED.
All the Justices concur.
[1] E.g., Fireman's Fund Insurance v. Waste Management of Wisconsin, Inc., 777 F.2d 366 (7th Cir.1985); Bogard v. Employers' Casualty Co., 164 Cal. App. 3d 602, 210 Cal. Rptr. 578 (1985); Nandorf, Inc. v. CNA Ins. Companies, 134 Ill.App.3d 134, 88 Ill.Dec. 968, 479 N.E.2d 988 (1985); New York State Urban Development Corp. v. V.S.L.Corp., 563 F. Supp. 187 (S.D.N.Y. 1983), aff'd, 738 F.2d 61 (2d Cir. 1984); San Diego Navy Federal Credit Union v. Cumis Ins. Society, Inc., 162 Cal. App. 3d 358, 208 Cal. Rptr. 494 (1984); Continental Ins. Co. v. Bayless & Roberts, Inc., 608 P.2d 281 (Alaska 1980); United States Fidelity & Guaranty Co. v. Louis A. Rosser Co., 585 F.2d 932 (8th Cir. 1978); Annot., 50 A.L.R. 4th 932 (1986); Berg, "Losing Control of the DefenseThe Insured's Right to Select His Own Counsel," 26 For the Defense 10 (July 1984); Dodson, "Reservation of Rights by the Insurer and Rights of the Insured," 12 Colo. Law. 1974 (Dec. 1983); Morris, "Conflicts of Interest in Defending Under Liability Insurance Policies: A Proposed Solution," 1981 Utah L.Rev. 457 (1981). | December 18, 1987 |
2e03ca1c-f8e7-417e-a65b-cc8f0b3c8544 | Cox v. City of Birmingham | 518 So. 2d 1262 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 1262 (1987)
Daryl Dewayne COX, By and Through his father and next friend, Dan T. COX, Sr.; and Dan T. Cox, Sr., individually,
v.
CITY OF BIRMINGHAM.
86-1302, -1303.
Supreme Court of Alabama.
December 23, 1987.
W. Lee Pittman, Birmingham, for appellants.
Herbert Jenkins, Jr., City Atty., Birmingham, for appellee.
PER CURIAM.
I. Does the pro tanto release of the policeman driver and agent of the City of Birmingham release the city in regard to a cause of action based on the doctrine of respondeat superior? We respond in the negative and reverse.
II. Does the amendment alleging independent acts of negligence against the city, based on the doctrine of joint tort-feasors, relate back to the filing of the original cause of action? We respond in the affirmative and reverse.
III. Does the timely filed notice of claim with the city, which did not specify the *1263 "joint tort-feasor" causes of action, bar the amendment? We respond in the negative and reverse.
IV. Does the timely filed notice of claim with the city by the father, on behalf of his then-minor son, bar the father's claim for medical bills paid by him on his son's behalf? We respond in the negative and reverse.
We recognize at the outset that Ala. Code 1975, § 12-21-109, modified the old common law concept prohibiting pro tanto settlements by injecting the "true intentions of the parties" standard into the interpretation of written releases. Steenhuis v. Holland, 217 Ala. 105, 115 So. 2 (1927). We note also that the pro tanto release here under consideration, by its express terms, releases only the city police officer, while reserving the right to proceed against the city.
The precise issue here presented (the validity vel non of a pro tanto release of the agent, reserving the right to proceed against the principal under a respondeat superior theory of liability) was decided by this Court in Daugherty v. M-Earth of Alabama, Inc., 519 So. 2d 467 (Ala.1987), upholding the validity of the release and permitting the claimant to proceed against the principal. Most states that have addressed this issue have reached the same result.[1]
As to this issue, the judgment is reversed.
It goes without saying that the recasting of the question in terms of a claim against a joint tort-feasor (as opposed to liability based on imputed fault) does not produce a different result. Indeed, if the gravamen of the claim against the city is based upon the city's independent tort, all of the rationale in support of the validity of the pro tanto release under the imputed fault doctrine is strengthened when applied in the context of the principal's independent tort, and the pro tanto release is entitled to be enforced according to its terms. See Southeastern Greyhound Lines v. Callahan, 244 Ala. 449, 13 So. 2d 660 (1943); and Louisville & N.R. Co. v. Maddox, 236 Ala. 594, 183 So. 849 (1938).
The issue, then, is whether the independent claim, which was added by amendment after the expiration of the then-existing one-year statute of limitations, was timely filed pursuant to the "relation back" doctrine of Rule 15(c), A.R.Civ.P. The term "independent claim," as used in the context of distinguishing an imputed negligence claim from a joint tort-feasor claim, does not of itself destroy the "[same] conduct, transaction or occurrence" criteria of Rule 15(c), A.R.Civ.P. The claimant's allegations that the city's negligent conduct in training and supervising its employee driver of a non-emergency vehicle, which concurred and combined with the negligence of its employee in causing the accident in question, while stating an independent claim in the joint tort-feasor sense discussed above, does not state a "new" cause of action so as to defeat the "relation back" standard of Rule 15(c), A.R.Civ.P. McClendon v. City of Boaz, 395 So. 2d 21 (Ala. 1981).
As to Issue II, the judgment is reversed.
Appellant challenges the trial court's ruling to the effect that Ala.Code *1264 1975, §§ 11-47-23 and 11-47-192 (requiring that a sworn notice of claim for personal injuries be filed with the city within six months), was not complied with and thus the claimant's suit against the city was barred. The essence of the city's argument is that the claimant's timely filed sworn claim was for a cause of action on behalf of his minor son based on the theory of imputed fault; and that once the imputed fault theory is declared barred by the pro tanto release, the cause of action against the city as a joint tort-feasor is not covered by the notice of claim as required by § 11-47-192.
We reject this argument. The statutory requirement that "a sworn statement be filed ... stating substantially the manner in which the injury was received, the day and time and the place where the accident occurred and the damages claimed" does not speak in terms of legal theories of recovery; rather, it speaks in terms of the physical facts surrounding the accident made the basis of the claim. Indeed, the purpose of the statutory claim is not to satisfy the niceties of legal pleading but to furnish the city with sufficient physical details of the accident to enable the city to investigate the claim and settle with the claimant if it deems such action appropriate. See Hunnicutt v. City of Tuscaloosa, 337 So. 2d 346 (Ala.1976).
The failure of the claimant to specify in his notice of claim the claimant's joint tort-feasor theory of recovery does not invalidate the statutory requisites of the claim so as to bar the claimant's right to proceed with his independent claim against the city. Thus, the trial court erred with respect to this issue.
This issue is closely related to Issue III. The city contends that the claimant's statutory notice of claim was filed on behalf of his minor son for personal injuries and that the father's suit claiming medical expenses for his son's injury was not covered in his statement of claim filed with the city. Here, again, we disagree.
The statement of claim filed with the city detailed the son's injuries and claimed medical expenses therefor. This statement of claim was signed and sworn to by the father. The fact that the words "Dan T. Cox, Sr., as father and next friend of Daryl Dewayne Cox, Claimant" appear beneath the father's signature, affixed to the statutory statement of claim, does not invalidate the requisite elements of the claim so as to bar the father's suit for medical charges incurred because of his son's injuries. Thus, the trial court erred with respect to this issue.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur.
[1] In addition to the cases cited in Daugherty, supra, see Knutson v. Morton Foods, Inc., 603 S.W.2d 805 (Tex.1980); Swanigan v. State Farm Ins. Co., 99 Wis.2d 179, 299 N.W.2d 234 (1980); Finney v. Farmer Ins. Co., 92 Wash. 2d 748, 600 P.2d 1272 (1979); In re Ray Korte Chevrolet v. Simmons, 117 Ariz. 202, 571 P.2d 699 (1977); Alaska Airlines, Inc. v. Sweat, 568 P.2d 916 (Alaska 1977); Dworak v. Olson Constr. Co., 191 Colo. 161, 551 P.2d 198 (1976); Riley v. Cincinnati, 46 Ohio St.2d 287, 348 N.E.2d 135 (1976); Craven v. Lawson, 534 S.W.2d 653 (Tenn.1976); Thomas v. Checker Cab Co., 66 Mich.App. 152, 238 N.W.2d 558 (1975); Hovatter v. Shell Oil Co., 111 Ariz. 325, 529 P.2d 224 (1974); Edgar County Bank & Trust Co. v. Paris Hospital, Inc., 57 Ill. 2d 298, 312 N.E.2d 259 (1974); Henry v. Steeg & Assoc. v. Rynearson, 143 Ind.App. 567, 241 N.E.2d 888 (1968); Gomez v. City Transp. Co., 262 S.W.2d 417 (Tex.Civ.App.1953); Hamburger v. Paterson Tallow Co., 122 N.J.L. 457, 5 A.2d 487 (1939); and Ellis v. Jewett Rhodes Motor Co., 29 Cal. App. 2d 395, 84 P.2d 791 (1938). | December 23, 1987 |
768abf71-3912-4f97-a00c-40e792de2c7f | Bowen v. Cummings | 517 So. 2d 617 | N/A | Alabama | Alabama Supreme Court | 517 So. 2d 617 (1987)
Horace BOWEN
v.
Michael CUMMINGS.
85-877.
Supreme Court of Alabama.
December 4, 1987.
William H. Broome, Anniston, for appellant.
Robert B. Barnett, Jr., and Ralph Gaines of Gaines, Gaines & Barnett, Talladega, for appellee.
ADAMS, Justice.
The original opinion in this case is withdrawn and the following is substituted therefor:
The sole issue for our review in this case is whether plaintiff's amended complaint, which attempted to substitute Michael Cummings, M.D., for a fictitious party after the statute of limitations had run, relates back to the date of the filing of the original complaint by operation of Rule 9(h) and Rule 15(c), Alabama Rules of Civil Procedure.
Plaintiff, Horace Bowen, filed a complaint on April 29, 1985, in the Circuit Court of Cleburne County, against the following defendants:
*618 In the complaint, plaintiff alleged that on or about April 29, 1983, the defendants negligently treated him upon his arrival at Cleburne Hospital's emergency room. Cleburne Hospital was dismissed from the action on September 16, 1985, for reasons unrelated to this appeal. On October 21, 1985, plaintiff filed a motion to substitute Dr. Cummings for fictitious defendant "C," pursuant to Rule 9(h), A.R.Civ.P. In conjunction with this motion, plaintiff filed an amended complaint, which named Cummings as the physician who treated him on April 29, 1983. Cummings filed an answer, and later filed a motion to dismiss, which the trial court granted. Plaintiff appeals.
In order for plaintiff to succeed on appeal, we must hold that his substitution of Cummings pursuant to our fictitious party rule, Rule 9(h), A.R.Civ.P., relates back to the date of the filing of the original complaint, under Rule 15(c), A.R.Civ.P. Over the past several years, we have been presented with numerous cases dealing with the relation back of amendments that would otherwise be time-barred by the applicable statutes of limitations. In these cases, we have consistently followed the rule that
Columbia Eng'g Int'l, Ltd. v. Espey, 429 So. 2d 955, 958-59 (Ala.1983).
We are of the opinion that, applying the above-stated rule to the facts of this case, the trial court's judgment dismissing the amended complaint was correct.
First, as this Court stated in Threadgill v. Birmingham Bd. of Ed., 407 So. 2d 129 (Ala.1981):
407 So. 2d at 132. Fictitious party practice should not be abused, and it was not intended for use whenever it is merely inconvenient for the plaintiff to learn the name of the true defendant.
It is clear from the record that the only effort plaintiff made to get the hospital records came four months before the suit was filed, and this effort was unsuccessful. Likewise, the record is clear that plaintiff's attorney never attempted to discover the medical records, although he had written authorization from the plaintiff to do so. Rule 9(h) was not meant to allow a party to sit back for almost two years and make only one attempt at learning the defendant's name, and then, failing, simply to list fictitious defendants. This would work a substantial injustice to the defendant and would violate the purpose behind our discovery statutes and our statutes of limitations.
Plaintiff not having complied with the spirit or letter of Rule 9(h) and Rule 15(c), A.R.Civ.P., his complaint against Cummings was properly dismissed. Therefore, the judgment of the trial court is affirmed.
*619 APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur. | December 4, 1987 |
f69f29fc-7b86-441b-bc6c-8f5a618d3946 | Entrekin v. Atlantic Richfield Co. | 519 So. 2d 447 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 447 (1987)
Jimmie H. ENTREKIN and Charlene Entrekin
v.
ATLANTIC RICHFIELD COMPANY.
No. 86-857.
Supreme Court of Alabama.
December 11, 1987.
Rehearing Denied January 22, 1988.
R. Ben Hogan III, and Mark L. Rowe of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, and George White, Gadsden, for appellant.
Jack W. Torbert of Torbert and Torbert, Gadsden, for appellee.
HOUSTON, Justice.
Plaintiffs, Jimmie Entrekin and his wife, Charlene Entrekin,[1] appeal from a JNOV (judgment notwithstanding the verdict) in favor of the defendant, Atlantic Richfield Company, in this action to recover damages for personal injuries. We affirm.
The following material facts are not in dispute. The plaintiff, a motor inspector whose responsibilities included maintenance and repair of machinery, had been employed at Republic Steel Company in Gadsden for 18 years. While attempting to lubricate an overhead crane, he suffered severe injuries to his hands when they *448 were pulled into the moving gears of the crane.
As a member of a specialized crew known as the "bull gang," the plaintiff worked throughout Republic Steel's plant, assisting wherever he was needed. On the day of his injury, his crew had been assigned the task of replacing a worn gear on an overhead crane. After the worn gear had been replaced, the plaintiff attempted to lubricate the new gear by applying a lubricant known by the employees of Republic Steel as "gear shield." Gear shield is a sticky substance, sold by the defendant under the trade name "Jet-Lube." Jet-Lube is sold in drums, five-gallon buckets, and one-pound clear plastic packets. The Jet-Lube used by the plaintiff in this case was contained in plastic packets.
These plastic packets were manufactured so that they could be placed, unopened, onto the gears. The plastic was made to be ground up by the movement of the gears and to dissolve in the Jet-Lube. Because it is not necessary for the packet to be opened, the defendant considered Jet-Lube to be clean, convenient, and safe. The defendant sold the Jet-Lube to Republic Steel without mentioning the fact that the plastic packets would not harm moving gears and, therefore, could be dropped, unopened, onto them.
Prior to the plaintiff's injury, it was customary for the employees of Republic Steel to repair a crane's gears and then to lubricate them by using several different methods: 1) by dropping a packet of Jet-Lube, unopened, onto the gears; 2) by cutting a packet of it open and squeezing it onto the gears; and 3) by cutting a packet of it open, squeezing it into a bucket, heating it, and pouring it onto the gears. The plaintiff had been instructed by a supervisor to apply Jet-Lube by using the second method.
At the time he was injured, the plaintiff was attempting to lubricate the crane while it was operating. The protective shield that covered the crane's moving gears had an opening in the top of it, through which the gears could have been lubricated; however, that protective shield had been removed. The plaintiff reached too close to the moving gears and the packet became entangled in them, pulling his hands into the "nip-point" (i.e., the area between two in-running gears facing a workman). The record indicates that the lubrication procedure being used by the plaintiff at the time of his injury, although not proper, was not unusual.[2] Furthermore, the record shows that it was customary during the repair of the cranes for employees of Republic Steel to lubricate the gears while the gears were moving and with the protective shield removed.
The plaintiff brought suit, alleging that the defendant was in the business of manufacturing, marketing, packaging, or selling Jet-Lube and that, under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD), the Jet-Lube was defective because of a lack of instructions. The plaintiff further alleged that he was injured as a result of that alleged defect. The case was tried before a jury; however, when the jury could not reach a verdict, the trial *449 judge declared a mistrial. The defendant was subsequently granted a JNOV.[3]
The plaintiff contends that questions of fact exist as to whether the defendant is liable under the AEMLD; therefore, he argues that the defendant was not entitled to a JNOV. The defendant argues that, as a matter of law, the Jet-Lube used by the plaintiff was not defective within the meaning of the AEMLD. The defendant also argues that the undisputed evidence shows that the plaintiff was contributorily negligent and, thus, is barred from any recovery. For the following reasons we hold, as a matter of law, that the Jet-Lube used by the plaintiff in this case was not defective within the meaning of the AEMLD; consequently, we pretermit any discussion of the contributory negligence issue.
Under the AEMLD, a manufacturer, supplier, or seller who markets a product not reasonably safe when applied to its intended use in the usual and customary manner, is negligent as a matter of law. In other words, the fault or negligence of the defendant is that he has conducted himself in a negligent manner by placing on the market a product that causes personal injuries or property damage when put to its intended use. As long as there is a causal relationship between the defendant's conduct and the defective product, liability may attach, because an unreasonable risk of harm has been created. Liabilitysubject to allowable defenses (e.g., lack of causal relation, contributory negligence, assumption of the risk)attaches solely because the defendant has exposed users of a product to unreasonable risks. Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala.1976); Atkins v. American Motors Corp., 335 So. 2d 134 (Ala.1976).
In Casrell, the Court set out the elements of a cause of action under the AEMLD:
"To establish liability, a plaintiff must show:
A defect within the meaning of the AEMLD is that which renders a product unreasonably dangerous. Ordinarily, whether a product is unreasonably dangerous is for the trier of fact, just as negligence, vel non, normally is in a traditional negligence case. Casrell; Atkins. See also Alabama Pattern Jury Instructions (Civil) 32.12 and the comments thereto.
Our standard of review in this case was well stated in Deaton, Inc. v. Burroughs, 456 So. 2d 771 (Ala.1984):
"`[U]nder our system, the jury must be allowed to pass on the evidence if any, no matter how slight, is offered, which, if believed, would support a verdict in favor of the party against whom a directed verdict is sought.' "Herston v. Whitesell, 374 So. 2d 267, 270 (Ala.1979). See also Rule 50, A.R.Civ.P., and Casey v. Jones, 410 So. 2d 5, 7 (Ala. 1981).
456 So. 2d at 775.
The dispositive issue in this case is whether there is any evidence tending to show that the Jet-Lube sold by the defendant to Republic Steel was unreasonably dangerous and, thus, defective under the AEMLD.
Jet-Lube itself is not defective. However, because Jet-Lube is marketed in packets without any instructions, users, such as the plaintiff, are not told how to apply it. Prior to the plaintiff's injury, it was customary during the repair process for employees of Republic Steel to apply Jet-Lube 1) by dropping a packet of it, unopened, onto exposed, moving gears; 2) by cutting a packet of it open and squeezing it onto exposed, moving gears (the method being used by the plaintiff at the time of his injury); and 3) by cutting a packet of it open, squeezing it into a bucket, heating it, and pouring it onto exposed, moving gears. It is quite evident from the record that the defendant's product was being misused. The question then is, in light of this misuse, whether the absence of instructions presented a fact question as to the dangerousness of the product. We think the answer to this question is "no," unless there is evidence tending to show that a user of the product, such as the plaintiff, could not be safely entrusted with it as marketed. In the present case, the plaintiff had reached the age of discretion and was in possession of his mental faculties. Although the plaintiff was not instructed that the plastic packets would not damage moving gears (and the plaintiff could certainly not have been expected to know that), there is simply no evidence tending to show that the alternative methods available to the plaintiff for applying the Jet-Lube were unreasonably dangerous if used in a manner deemed safe within the industry[4] (see OSHA regulations, n. 2). The use of certain products is so firmly grounded in common sense as to require no specific instructions or warnings. The defendant's failure to warn the plaintiff in this case of the open and obvious danger of lubricating the exposed, moving gears of a crane, did not render the product defective. A warning is to inform the user of a danger of which he is not aware. General Elec. Co. v. Mack, 375 So. 2d 452 (Ala. 1979).[5] Furthermore, not knowing for sure whether the plastic packet would harm moving gears, the plaintiff had the option of either: 1) shutting the crane down, cutting a packet open, and squeezing the Jet-Lube onto the exposed gears (or heating it and pouring it onto the exposed gears), or 2) leaving the crane running, cutting a packet open, and squeezing the Jet-Lube through the opening in the protective shield (or heating it and pouring it through that opening). Neither of these alternative methods was unreasonably dangerous.
*451 Because the plaintiff did not prove that the Jet-Lube sold by the defendant was defective within the meaning of the AEMLD, the trial judge did not err in granting the defendant a JNOV.
AFFIRMED.
TORBERT, C.J., and MADDOX, BEATTY and STEAGALL, JJ., concur.
[1] Charlene Entrekin claimed damages for loss of consortium; therefore, because her claim is merely derivative of her husband's, all further references in the opinion to the "plaintiff" are to Jimmie Entrekin.
[2] An applicable Federal regulation reads as follows:
"(1) MaintenancePreventive maintenance program based on the crane manufacturer's recommendations shall be established.
"(2) Maintenance procedure. Before adjustments and repairs are started on a crane the following precautions shall be taken:
"(a) The crane to be repaired shall be run to a location where it will cause the least interference with other cranes and operations in the area.
"(b) All controllers shall be at the off position.
"(c) The main or emergency switch shall be open and locked in the open position.
"(d) Warning or `out of order' signs shall be placed on the crane, also on the floor beneath or on the hook where visible from the floor.
"(e) Where other cranes are in operation on the same runway, rail stops or other suitable means shall be provided to prevent interference with the idle crane.
"(ii) After adjustments and repairs have been made the crane shall not be operated until all guards have been reinstalled, safety devices reactivated and maintenance equipment removed."
Occupational Safety and Health Admin., Labor, 29 C.F.R. § 1910.179 (1986).
[3] Rule 50(b), Ala.R.Civ.P. provides, in pertinent part, as follows:
"Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the Court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 30 days after entry of judgment, a party who has moved for a directed verdict may file a motion to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned, such party, within 30 days after the jury has been discharged, may file a motion for judgment in accordance with his motion for a directed verdict." (Emphasis added)
Thus, the "JNOV" granted in this case might more properly be referred to as a judgment entered in the absence of a verdict.
[4] The plaintiff introduced expert testimony to the effect that Jet-Lube fell below the industry standard for instructions; however, the plaintiff's experts did not testify that the lack of instructions rendered the product unreasonably dangerous.
[5] Whether a danger was "open" and "obvious" does not go to the issue of the duty of the defendant under the AEMLD. Instead, "open" and "obvious" danger relates to the affirmative defense of assumption of risk, the alleged "defectiveness" of the product, and the issue of causation. See Ford Motor Co. v. Rodgers, 337 So. 2d 736 (Ala.1976), and the comments to Alabama Pattern Jury Instructions (Civil) 32.17 and 32.18. Although the plaintiff testified that he did not think he would get hurt, the record is clear that he knew that the method he was using to lubricate the crane was dangerous. | December 11, 1987 |
f27987d6-ed9d-4f50-b823-34b0cab38605 | Locke v. Sparks | 81 So. 2d 670 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 670 (1955)
Morris B. LOCKE
v.
Phillip D. SPARKS.
8 Div. 724.
Supreme Court of Alabama.
June 30, 1955.
*671 Rogers, Howard & Redden, Birmingham, and Starnes & Starnes, Guntersville, for appellant.
H. G. Bailey, Boaz, for appellee.
LIVINGSTON, Chief Justice.
Mrs. Jessie Woodham Elder, a resident citizen of Marshall County, Alabama, departed this life testate in Birmingham, Alabama, on or about the 14th day of May, 1949. Her will was offered for probate in the Probate Court of Marshall County, Alabama, on May 18, 1949. On May 31, 1949, Phillip Dean Sparks, an adult son of testatrix, filed in the Probate Office of Marshall County, Alabama, a contest of said will, stating the following grounds for contest:
The contestant also demanded that the Probate Court of Marshall County, Alabama, enter an order transferring the contest of said will to the Circuit Court of Marshall County, Alabama, and demanding a jury for the trial of the issues raised.
The contest of the will was transferred to the Circuit Court of Marshall County, Alabama, and the issues raised were tried by a jury. On January 13, 1953, the jury returned a verdict finding the issues in favor of the contestant and against the will. The proponent of the will appealed.
At the conclusion of the evidence on the trial of the issues involved, the proponent requested in writing the affirmative charge, but which charge was refused by the trial court.
After a most careful consideration of the uncontroverted facts and circumstances presented by this record, we are clear to the conclusion that under a long and unbroken line of decisions of this court we are duty bound to sustain this unusual disposition of the testatrix's property.
The will in question provided, in substance, that: first, the testatrix's debts and funeral expenses be paid; second, that testatrix's son, Phillip Dean Sparks, receive all her jewelry (this consisted of one ring, and it not valued by the evidence); third, Morris B. Locke receive all the rest and residue of her estate, which the evidence showed consisted of two houses and lots in Boaz, Alabama, and a ninety-acre farm south of Albertville, Alabama, a bank account containing $800, and some other property which was not described in the trial; and, fourth, that Morris B. Locke be named executor of her estate, her will, without bond, or any accounting to any court whatever.
The evidence discloses that Mrs. Elder, the decedent, was in her early forties at the time she died. She had been twice divorced, and was the mother of the contestant, who was her only child, and he by her first marriage.
*672 Morris Locke, the principal beneficiary under the will of Mrs. Elder, was a United States Army Recruiting Sergeant, stationed in the Albertville, Alabama, area. He was married and the father of two children.
It appears that Locke and Mrs. Elder started going together some time in 1946, or something more than a year before her will was executed on October 21, 1947. The evidence further discloses, without dispute, that Mrs. Elder and Locke continued to go together and be seen together until her death.
Attorneys for the appellee in brief on appeal barely insist that the testimony adduced on the trial of this cause is sufficient to justify a jury verdict that at the time Mrs. Elder executed her will she was mentally incapable of doing so under the law. We are clear to the conclusion that the evidence adduced in this cause wholly failed to justify a finding of mental incapacity on the part of testatrix. Without dispute, she was shown to be a woman of some 43 years of age, holding two jobs at the time the will was executed; one in the mornings, from 8:00 until 12:00 o'clock, in a cotton office as bookkeeper, and the other, in the evening as a cashier in a movie theatre. There is no evidence in the record before us from which it can be said that Mrs. Elder at the time she executed her will was mentally incapable of doing so.
Further, there is absolutely no evidence in the record from which it could be inferred that the will in question was not the last will and testament of the decedent, signed and witnessed according to the laws of Alabama.
The principal argument made on this appeal is that the will was executed through undue influence exercised over her by the proponent of the will, Morris B. Locke.
On the issue of undue influence, we here set out, in substance, the evidence most favorable to the contestant: Mrs. Elder and Locke met sometime approximately a year before she executed her will. After the meeting, they spent a great deal of time together. He was seen at her home late at night and early in the mornings. This relationship seems to have continued until Mrs. Elder's death in May, 1949. The two of them took frequent week-end trips together. There is evidence that during the time they were going together Mrs. Elder failed to attend family gatherings, other than visits to her mother, but it further appears that this was due to her family's disapproval of her conduct and of Locke, rather than due to any design on the part of Locke to keep her away from her family. Her son, Phillip Dean Sparks, who was in the Service came home on leave from the Air Force, quarreled with her over Locke, and then took his clothes and moved out of the house. There is further evidence that Mrs. Elder declined in health to some extent, lost weight, and became nervous. She spent some time in a hospital at Albertville about a year before her fatal illness. In October, 1947, Mrs. Elder, her mother, and Locke, drove to Birmingham and during the course of their stay, Mrs. Elder went alone to the office of the lawyer whom she had known for many years, and had the lawyer draw up the will in question. The will was completed and executed in his office on that occasion, with no one present except Mrs. Elder, the lawyer and his father, who was also a lawyer. The two lawyers witnessed the will.
Some six weeks before Mrs. Elder died, she entered a clinic in Albertville. After some time in this clinic, Locke removed her to the home of his sister in Decatur, Alabama. There, members of Mrs. Elder's family visited her. They tried to persuade her to go to another hospital where she could receive better treatment. She persistently declined to go; but prior to her death, Locke carried her to a hospital in Birmingham, where she finally died. After Mrs. Elder was removed to the hospital in Birmingham, Locke continued his attentions to her and was with her much of the time she was there, and until her death.
Other than the actions hereinabove mentioned, there is no evidence whatever in the record before us that Locke exerted any influence over the testatrix to secure the execution of the will in his favor. *673 Indeed, contestant appeared to rely solely upon the relationship existing between Locke and Mrs. Elder to give rise to a presumption of undue influence. The testimony of witnesses and briefs of counsel impute a meretricious relationship to Locke and Mrs. Elder. But assuming the existence of such a relationship, is that alone sufficient to raise a presumption of undue influence? The decisions of this court clearly hold that such a relationship alone is not sufficient to establish undue influence.
In Hobson v. Morgan, 215 Ala. 274, 110 So. 406, it was said:
In upholding a will naming a white man's colored mistress as beneficiary where contestants contended that the will was a result of undue influence on the part of the mistress, this court in Dees v. Metts, 245 Ala. 370, 17 So. 2d 137, 139, said:
It was further stated in Dees v. Metts, supra, that:
The evidence to support undue influence must afford grounds for reasonable inference, not mere suspicion, that the beneficiary has been active in the procurement of the will. East v. Karter, 218 Ala. 366, 118 So. 547. There is no evidence that the favored beneficiary in the case at bar had any part in procuring the execution of the will, or that the testatrix was in any way constrained to devise her property in any way which was inconsistent with her own free will and desires. The contestant failed to carry the burden of proving the grounds of contest as set out in his petition. It was, therefore, error to refuse to give the affirmative charge for the proponent as requested.
Having determined this action of the trial court to be error, we feel it unnecessary to discuss the other assignments of error.
Reversed and remanded.
LAWSON, STAKELY and MERRILL, JJ., concur. | June 30, 1955 |
cb494931-b9d6-48b6-ae7d-83bd2c1a52ff | Baldwin Mut. Ins. Co. v. Brantley | 518 So. 2d 32 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 32 (1987)
BALDWIN MUTUAL INS. CO., a Corporation, and Frank B. Turner, an Individual
v.
Richard M. BRANTLEY.
85-359.
Supreme Court of Alabama.
April 24, 1987.
On Rehearing December 4, 1987.
Michael S. Harper of Hornsby & Schmitt, Tallassee, for appellants.
John E. Enslen and W.B. Reneau of Reneau and Reneau, Wetumpka, for appellee.
ADAMS, Justice.
This is an appeal from a judgment entered on a jury verdict in the Circuit Court of Elmore County, Alabama. Plaintiff, Richard Brantley, sued defendants, Baldwin Mutual Insurance Co., Frank Turner, and Perry Davis, for fraud and negligence in their handling of his claim for crop damage. *33 The jury found in favor of Brantley, awarding him $11,543.70 in compensatory damages, and $50,000.00 in punitive damages.
The facts upon which this jury verdict is based are as follows:
Richard Brantley is a farmer who lives in Elmore County, Alabama. In the late summer or early fall of 1981, Brantley had discussions with Perry Davis about insuring his wheat crop. Brantley called Davis because he had secured other types of insurance from Davis in the past. On October 26, 1981, Brantley went to Davis's office to complete an application for crop insurance. At this time, Davis told Brantley that he would also have to fill out an acreage report, and Davis told him for the first time about the possibility of dividing his wheat crop into separate "units." Davis also told Brantley that he (Davis) was unable to fill out an acreage report, but that someone from Baldwin Mutual's home office would be sent to help Brantley fill out the report.
On December 10, 1981, Brantley met with the representative sent by Baldwin Mutual, defendant Frank Turner. According to Brantley, it was at this time that Turner told him that if he would divide his wheat crop into eight separate units on the acreage report form, then he would have separate, independent insurance on each of these eight units. In other words, if he had a bad crop on only one unit, then the insurance would pay on that unit, even though he did not have a loss overall. Finally, Brantley alleges that Turner told him at this time that he would have to keep separate production expense records and separate harvest records on each unit in order to qualify for the insurance on each unit. Relying on these representations, Brantley had Turner complete the acreage report forms as Turner suggested. Thus, as far as Brantley knew at that time, his wheat crop was insured with Baldwin Mutual in the manner described by Turner.
In June 1982, Brantley began harvesting his wheat crop, and it was at this time that he discovered that there was a possibility of a loss on two of the eight units. Brantley sent a claim to Davis, the local agent, and told him that time was of the essence in having his claim adjusted by the Federal Crop Insurance Corporation (FCIC)[1] because he had to plant soybeans on the same land prior to July 5, 1982, in order to qualify for insurance for the soybean crop. Brantley called Davis on June 11 to see how the claim was progressing. He again emphasized to Davis his deadline for planting his soybeans. Brantley needed a quick response on his claim because, under the terms of his wheat crop insurance policy, he could not plow over his wheat field until the FCIC claims adjuster had made his inspection. Even though Brantley emphasized his necessity for quick action, there was evidence produced at trial that Baldwin Mutual took five days to mail the necessary form to Davis, and then Davis mailed incorrect information to the wrong FCIC office.
The FCIC claims adjuster did not come to inspect the wheat crop until July 6, 1982. It was at this time that the adjuster, Don Whigham, made the determination that Brantley's property did not qualify for unit division. Furthermore, since the FCIC claims adjuster did not inspect the property until July 6, one day after the July 5 deadline, Brantley was unable to secure insurance for his soybean crop planted on the two units. As a result, Brantley filed suit against the defendants for fraud and negligence in the handling of his claim. The jury found in favor of Brantley, and the defendants filed a motion for judgment notwithstanding the verdict, or in the alternative for a new trial. The trial court denied defendants' motion, and this appeal followed.
On appeal, defendants raise nine issues for our review. In essence, these issues deal with the propriety of:
1. the jury's verdict for fraud;
*34 2. the trial court's rulings with regard to requests for jury instructions and certain evidentiary matters;
3. the jury's verdict for negligence.
It is important to note at the outset that in Alabama jury verdicts carry with them a presumption of correctness, and this presumption is strengthened when the trial court denies a motion for judgment notwithstanding the verdict, or in the alternative, for new trial. American Honda Motor Co. v. Boyd, 475 So. 2d 835 (Ala.1985). Appellants, therefore, bear the heavy burden of proving that the jury's verdict, as well as the trial court's ruling on the motion, was erroneous. After having considered the evidence presented and the contentions of the parties, we are of the opinion that the jury verdict, and the judgment entered thereon, were correct.
In order for the plaintiff to make out a case of fraud in Alabama, the following elements must be proven:
Army Aviation Center Fed. Credit Union v. Poston, 460 So. 2d 139 (Ala.1984).
With regard to the first element, Brantley alleges in his complaint that Frank Turner told him he should divide his wheat crop into eight separate field units and that there would be separate, independent insurance coverages on each of these field units; and that this would allow plaintiff to recover for a poor crop on any one or more of the eight field units notwithstanding his having a good crop on any one or more of the remaining units. At trial, Turner admitted to having told Brantley that he should divide his crop into eight units, but claimed that he conditioned this advice by stating that Brantley could recover for a loss on one or more units only if the property qualified to be divided into units. However, Brantley testified that Turner told him that the only condition to his receiving separate insurance coverage on each of these units was that he keep separate production records for each unit.
According to the testimony of Don Whigham, the adjuster for FCIC, the unit division guidelines would not allow Brantley's farm to be divided into units. When Mr. Whigham was asked if there was any advantage whatsoever for Mr. Brantley to divide his farm into eight units on the acreage report, if the farm only qualified for one unit, Whigham answered "no." Also, Mr. Whigham was asked: "[I]f Turner told Richard Brantley on December 10, 1981, that he could divide up his wheat crop into eight units so long as he kept separate production records on each unit and by doing so he would have separate insurance on each unit, would this be an untrue statement"? Whigham's response to this question was "yes." Under the circumstances, there is ample evidence in the record from which the jury could have found that Turner made a material misrepresentation of fact; namely, that all Brantley would have to do to obtain separate insurance on each unit would be to keep separate production records for each unit, when the FCIC guidelines clearly state that this property could not be divided into units.
Brantley further relied on Turner's representations by keeping separate production and expense records and separate harvest records on each of the eight units. Although he had in the past kept records in such a way as to tell what each parcel of his land was producing, the records were not completely separate. Brantley had comingled fertilizer and seed, and had even bunched together the crops after harvest. With regard to this particular harvest of wheat, though, he kept every unit separate, and testimony showed at trial that he had *35 to make extra trips to the grain elevator in order to keep the harvest on each of these eight units separate. This method was more expensive and took more time than his harvests had in the past. Such action must, of necessity, show reliance by Brantley on Turner's representation.
Finally, there is ample evidence that Brantley believed that he had separate insurance coverages on two of his units. According to paragraph 7 of his insurance policy, "No insured acreage shall be put to another use until the corporation has made an appraisal of the potential production of such acreage and consent in writing to such other use." Thus, Brantley planted his soybean crop on all fields but the two in question. Had he known that he did not have each unit insured individually, he could have gone ahead and planted his soybeans prior to the July 5 deadline. Missing the deadline not only disqualified him for any soybean crop insurance, but also these units did not produce as well as the others because of the late date of planting. Thus, the quality of Brantley's harvest of soybeans on these two units was lessened as a direct result of Turner's misrepresentations, and Brantley was not able to file a claim for crop insurance on these two units.
Appellants contend that the trial court erred in refusing to give certain requested jury instructions. However, each of these requested instructions contained a misstatement of the law as it relates to the award of punitive damages. As this Court stated in American Honda Motor Co. v. Boyd, supra, if the evidence establishes an intent to deceive or defraud, punitive damages are recoverable. Since the requested jury charges stated a different standard (requiring that grossness, oppressiveness, and maliciousness be found as additional elements to be superimposed upon the requirement of intent to deceive), they would have been improper, and the court was correct in refusing to give them to the jury. A review of the record shows that the trial court gave the proper instructions to the jury regarding the award of punitive damages in this case.
Still on the subject of jury charges, appellants argue that the trial court erred in giving Brantley's requested jury charges relating to agency, where no agency was alleged in the complaint. This argument fails for two reasons. First, there was a great deal of testimony and evidence produced regarding the theory of agency, none of which was objected to by defendants at trial. Second, Brantley, in open court, prior to jury deliberations and with permission of the court, amended his complaint to include the theory of agency. It was argued by Brantley, and agreed with by the trial court, that agency was admitted in opening arguments.
Appellants also argue that the trial court erred in allowing Brantley to introduce testimony regarding the size of Baldwin Mutual. First, in this regard, an agent of Baldwin Mutual was put on the stand by the appellants, and in his testimony he described Baldwin as "a very small company." He went on to describe what type of company it was, who owned the company, and who the company served. On cross-examination, the witness was asked how many policyholders Baldwin Mutual had in Alabama. Counsel for appellants objected, based on relevancy, but the court ruled that the testimony was admissible because the "door had been opened" on direct examination with regard to the size of the company. The witness testified as to how many policyholders Baldwin Mutual had; then the question was asked "How many millions of dollars worth of insurance coverage do 27,000 policyholders have?" Counsel for appellants objected and moved for a mistrial, stating that this question was an attempt on the part of the plaintiffs to put into evidence the poverty or wealth of a party to a lawsuit. The court allowed the witness to testify over objections, and the witness's answer was "I don't know."
We agree with the trial court that the first question was proper impeachment procedure, as the subject was brought out on direct examination. The appellants were not harmed by the second question because of the witness's answer that he did not *36 know how many policyholders Baldwin Mutual had.
With regard to the negligence issue, Baldwin Mutual argues that there was insufficient evidence before the jury to justify a finding that Baldwin Mutual was negligent in the handling of Richard Brantley's claim. We disagree.
As we have already stated, a jury verdict is presumed to be correct. This Court will not set aside a jury verdict unless it is without supporting evidence or is so contrary to the evidence as to be wrong or unjust. Harris v. Meadows, 477 So. 2d 374 (Ala.1985). First, Baldwin Mutual undertook the task of helping Richard Brantley complete his claim for insurance proceeds. It is axiomatic that one who assists another binds himself to exercise due care. Not only did Baldwin Mutual know that Richard Brantley possessed limited knowledge of the proper way in which to complete the required forms, but it also knew that time was of the essence concerning the processing of his claim. In spite of this knowledge, there was evidence adduced at trial that agents for Baldwin Mutual sent out incomplete information, mailed things at a leisurely pace, and even mailed them to the wrong office. Considering what the jury had before it, we cannot say that its findings were totally unsupported by the evidence or manifestly unjust or wrong.
To summarize, there was evidence presented that Frank Turner was sent by Baldwin Mutual to help Richard Brantley fill out his acreage report forms in order to get crop insurance on his farm. There was testimony produced at trial from which the jury could have concluded that Turner led Brantley to believe that all he needed to do in order to receive separate insurance coverages on each of his units on his farm was to keep separate production records. Brantley did this, and it was not until after the FCIC claims adjuster visited the farm that Brantley found out that his farm did not qualify for unit division. By this time, Brantley had already expended extra time and money in changing his harvesting procedures to abide by the terms of his insurance policy, and had waited past the deadline for obtaining insurance on his new soybean crop on two units.
For all of the above-stated reasons, the judgment on the jury verdict is affirmed.
AFFIRMED.
JONES, SHORES and STEAGALL, JJ., concur.
TORBERT, C.J., concurs in the result.
ADAMS, Justice.
On rehearing, the appellants, Baldwin Mutual Insurance Company, et, al., raise two issues for this Court's review. First, they argue that defendant Turner did not make misrepresentations to Brantley concerning the insurance coverage. We are of the opinion that we decided that issue correctly in Brantley's favor in our original opinion. Second, they argue that the trial court erred in allowing the jury to award punitive damages. We did not address this issue in our original opinion. We do so now, and find no error by the trial court.
The appellants argue that Brantley failed to offer any evidence that they intended to deceive him; therefore, they argue, the jury should not have been permitted to award punitive damages, citing American Honda Motor Co. v. Boyd, 475 So. 2d 835 (Ala.1985) and § 6-5-103, Code of Alabama 1975. The defendants are correct in stating that where an intent to deceive has been shown, punitive damages are allowable; however, they are also allowable for wanton and reckless misrepresentations. American Honda, supra; S.S. Steele & Co. v. Pugh, 473 So. 2d 978 (Ala.1985).
Brantley's complaint for fraud contains an alternative allegation that would permit the jury to award punitive damages. That is, plaintiff alleged that either Baldwin Mutual's representations were false and were known to be false, or the defendants were reckless with intent to deceive in making the representations not knowing they were *37 false. The evidence presented to the jury, and stated in our original opinion, and as apparently accepted by the jury, showed that Turner had actual knowledge that Brantley's wheat crop did not qualify under the FCIC guidelines or that Turner had no knowledge of the FCIC guidelines and, therefore, recklessly misrepresented the truth with intent to deceive. Therefore, the jury had ample basis to award punitive damages. No error resulted from permitting the jury to decide whether to award punitive damages. Therefore, the judgment of the trial court is due to be affirmed.
REHEARING GRANTED; OPINION EXTENDED; AFFIRMED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur.
[1] The (FCIC) is the government agency which actually insures crops for and on behalf of the United States Government. Pursuant to an Act of Congress, the FCIC uses private insurance companies, such as Baldwin Mutual, to market its farm crop insurance policies. | December 4, 1987 |
00fc73a4-9859-4c2d-a8c2-6dbd83f427b6 | Williams v. Water Works & Gas Bd. | 519 So. 2d 470 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 470 (1987)
Tommy WILLIAMS and Paula Williams, administrators of the estate of Quinton Jevone Williams, deceased
v.
WATER WORKS AND GAS BOARD OF the CITY OF ASHVILLE.
86-165.
Supreme Court of Alabama.
December 18, 1987.
Michael L. Allsup, Alexandria, for appellants.
Lynn McCain of Simmons, Ford and Brunson, Gadsden, for appellee.
ALMON, Justice.
Tommy Williams and Paula Williams, administrators of the estate of Quinton Jevone Williams, deceased, filed a wrongful death action against the Water Works and Gas Board of the City of Ashville (hereinafter "the Board") to recover for the death *471 of their minor son. The trial court dismissed the complaint because the Williamses failed to file a claim with the Board within six months of the accrual of the cause of action, holding that such a claim was required by Ala. Code 1975, §§ 11-47-23 and XX-XX-XXX (the non-claims statutes).
The Williamses filed a sworn claim with the clerk of the City of Ashville on April 10, 1984. Suit was later filed against the Board in Etowah County Circuit Court; it was transferred to St. Clair County. Summary judgment was granted in favor of the Board on February 11, 1985.
The only issue presented for review is whether the Board comes within the provisions of Ala. Code 1975, §§ 11-47-23 and XX-XX-XXX, and is therefore protected by the six-month filing requirement for tort actions against municipalities. The relevant notice statutes are reproduced below:
These statutes are to be construed in pari materia. Poe v. Grove Hill Memorial Hosp. Bd., 441 So. 2d 861, 863 (Ala.1983); Harris v. City of Montgomery, 435 So. 2d 1207 (Ala.1983). Therefore, to satisfy the statutory requirement, plaintiffs in a tort action against a municipality must have filed a sworn statement with the clerk within six months from the accrual of the claim. Poe, supra.
The non-claims statutes do not define the terms "municipality," "city," or "town."
The Board contends that, due to its municipal function and/or its status as a municipal corporation, it should be afforded the protection of the non-claims statutes. The Board argues that the Williamses' case against it fails for lack of notice, and that the dismissal of the complaint was proper.
The Williamses, however, argue that the Board is not a municipal corporation, but rather a public corporation independent of the municipality. They cite this Court's holding in Poe v. Grove Hill Memorial Hosp. Bd., 441 So. 2d 861 (Ala.1983), in which we distinguished Cole v. Sylacauga Hospital Board, 269 Ala. 405, 113 So. 2d 200 (1959), as authority for the proposition that a separate legal entity was created by the City's action in incorporating the Board. Thus, according to plaintiffs, the Board cannot claim the benefit of the non-claims statutes and plaintiffs were not required to give notice prior to instituting this action.
In cases of statutory construction, it is proper to give the words of the statute their plain and usual meaning. Ex parte Madison County, 406 So. 2d 398 (Ala.1981); Darks Dairy, Inc. v. Alabama Dairy Commission, 367 So. 2d 1378 (Ala.1979). A "municipality" has been defined as "[a]n incorporated city, village, or town." Ballentine's Law Dictionary 823 (1969). Although traditionally referred to generically as "municipal corporations," entities organized to perform some governmental function separately from the city or town which they serve do not qualify as municipalities in the primary sense of that word as it is used in §§ 11-47-23. An entity of this nature, separate from the city or town it serves, is more appropriately referred to as a "quasi corporation," a "quasi-municipal corporation," a "public-service corporation," or a "public corporation."
This Court has held that a public corporation organized under Ala. Code 1975, *472 §§ 11-50-230 through -241, is an entity separate and independent from the city it serves. Waterworks Board of the City of Leeds v. Huffstutler, 292 Ala. 669, 299 So. 2d 268 (1974); City of Mobile v. Cochran, 276 Ala. 530, 165 So. 2d 81 (1964).
The plain words of the non-claims statutes militate in favor of a narrow construction on the question of what constitutes a "municipality" for purposes of these statutes. The term "municipality" is used interchangeably with the words "city or town" when describing the intended beneficiaries of the statutes' protection. The intent of the legislature in enacting these statutes was exclusively to benefit incorporated municipalities. The statutes are designed to provide the city with notice of the claim, thereby enabling it to investigate and perhaps settle the claim without the expense of litigation. City of Anniston v. Rosser, 275 Ala. 659, 158 So. 2d 99 (1963); City of Montgomery v. Weldon, 280 Ala. 463, 195 So. 2d 110 (1967); City of Florala v. Presley, 47 Ala.App. 94, 251 So. 2d 226, cert. denied, 287 Ala. 727, 251 So. 2d 229 (1971); Hunnicutt v. City of Tuscaloosa, 337 So. 2d 346 (Ala.1976).
The Board urges upon us previous holdings to the effect that "[t]he supplying of water to a city and its inhabitants is a municipal function and a Water Works Board incorporated under the provisions of Tit. 37, §§ 394-402, Code 1940, as amended, is in that sense an agency of the city. Jackson v. Hubbard, 256 Ala. 114, 53 So. 2d 723 [ (1951) ]." Water Works Board of the Town of Parrish v. White, 281 Ala. 357, 362, 202 So. 2d 721, 725 (1967). The Town of Parrish case involved a dispute between the citizens of the Town of Parrish and the water works board serving that town, incorporated by the Parrish town government, over the accountability of the board to the public. This Court held that the board was an agency of the town for purposes of public accountability for its actions in supplying water to the inhabitants. Town of Parrish did not involve the non-claims statutes.
Although the Board is in fact performing a municipal function, it does not follow that the Board has now become a municipality for purposes of the non-claims statutes. The City may delegate authority to agents for various purposes, but non-claims protection will not be extended to all entities that at one time or another are engaged in activities described as municipal functions.
By incorporating the Board for the operation of the water works and gas systems, the City of Ashville has elected to create an entity separate from the municipality and outside the protection provided by the non-claims statutes. Accordingly, the order of dismissal was improper and is due to be, and it is hereby, reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, BEATTY and HOUSTON, JJ., concur. | December 18, 1987 |
b52124c2-6f16-48a1-b3ab-31de434ae148 | Pike County v. Whittington | 81 So. 2d 288 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 288 (1955)
PIKE COUNTY
v.
Fannie Mae WHITTINGTON.
4 Div. 819.
Supreme Court of Alabama.
May 12, 1955.
Rehearing Denied June 23, 1955.
*289 Oliver W. Brantley, Troy, for appellant.
W. R. Martin, Ozark, Gibson & Byars and E. C. Orme, Troy, for appellee.
SIMPSON, Justice.
Appeal from a judgment granting a new trial in a condemnation proceeding.
United States Highway 231 runs through Pike County and in order to straighten the highway it has been relocated at various places in the county. The appellee is the owner of a five-acre tract, the eastern boundary of which was the old Highway 231 prior to its relocation. Facing and abutting the right of way were certain improvements consisting primarily of a combination residence, grocery store and filling station. When the highway was relocated, it traversed the western part of the five-acre tract and the new right of way required eight-tenths of an acre through a sedge field. The appellee could not agree with Pike County officials as to her compensation for the land taken and the County (appellant here) filed condemnation proceedings under the eminent domain statute. The commissioners awarded her the sum of $75 as compensation and she appealed to the circuit court. The jury fixed her compensation and damages at $200. She made a timely motion for a new trial on the ground, inter alia, that the verdict of the jury was inadequate and the court granted the motion "for the reason that the verdict is contrary to the preponderance of the evidence in the case and the damages inadequate taking into consideration all the evidence."
The evidence for the appellee, other than pictures and maps, consisted of testimony of six witnesses, who estimated a value of the tract before the taking of from $8,000 to $12,000 and a value after the taking of $2,000 to $4,000. Three of these witnesses estimated the value of the acreage actually taken for the new highway to be $40, $120 and $160. The only disinterested witness for appellee, the former president of a bank, who placed the before and after value at $10,000 and $4,000 respectively, testified as to the decrease in value as follows:
"Q. So it is based upon a lessening of traffic where her business was situated? A. That is correct. Q. That is the sole basis of your assumption? A. Yes."
While only one other witness, the gas distributor who serviced the gas pumps, testified that his appraisal was based upon a loss of traffic, it is evident that this was the main consideration upon which all of appellee's witnesses based their opinion as to the amount of damages suffered by appellee.
The only other evidence was given by two of the commissioners, who testified for the appellant and stated that the land taken was in their opinion worth $75.
The contention of the appellant is stated in brief as follows:
Appellee in answer to this contention says in brief:
It is agreed by both parties to this appeal that the appellee would be entitled to no compensation if the new right of way did not touch her land at any point.
This court has on numerous occasions enunciated the rule applicable to reviewing the propriety of the action of the trial judge in granting a motion for a new trial. We are committed to the rule that decisions granting new trials will not be disturbed unless the evidence plainly and palpably supports the verdict. Cobb v. Malone, 92 Ala. 630, 9 So. 738. Some of the most recent cases supporting this well-settled rule are: Williams v. Birmingham Water Works Co., 230 Ala. 438, 162 So. 95; Romano v. Thrower, 258 Ala. 416, 63 So. 2d 369; Morgan County v. Hart, 260 Ala. 418, 71 So. 2d 273; German-American Wholesale Optical Co. v. Rosen, 233 Ala. 105, 170 So. 211. We are unable to say that the verdict of the jury in this case was plainly and palpably supported by the evidence. We thus conclude that the order granting the motion for a new trial must be affirmed.
However, appellant in brief and oral argument stated that Pike County now has pending in the circuit court two more cases involving the identical substantive question presented here, which have been continued awaiting this court's pronouncement in this case as guidance in future trials. Both parties to this appeal argued the substantive question and we feel that we should indicate our views as aid to the court below on another trial.
In the case of McRea v. Marion County, 222 Ala. 511, 133 So. 278, 281, this court said:
Appellant insists that the McRea case is not in point because there is a question of access which causes it to differ from the instant case, but we have read the original record and we find no such distinction.
In Hatter v. Mobile County, 226 Ala. 1, 145 So. 151, 153, this court said:
In Morgan County v. Griffith, 257 Ala. 401, 59 So. 2d 804, 806, this court said:
The rule in this state has been reaffirmed recently in the case of Morgan County v. Hill, 257 Ala. 658, 60 So. 2d 838, 840, as follows:
These authorities point unwaveringly to the conclusion that the relocation of the highway, thereby diverting the flow of traffic from in front of appellee's place of business, is a circumstance to enter into the question of the amount of the condemnee's damage and this circumstance is one of which the jury should be informed and the question left to their ultimate decision.
All the Justices concur that the ruling of the trial court in granting the motion for a new trial must be affirmed. However, on the pivotal legal question last treated there is a divergence of view.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur in the views of the writer hereinabove expressed, but MERRILL and MAYFIELD, JJ., dissent.
GOODWYN, J., not sitting.
Affirmed.
MERRILL, Justice (dissenting).
I concur in the holding of the majority with reference to the action of the trial court on the motion for a new trial. My disagreement is with the conclusion reached on the substantive question.
The following illustrates the result reached by the majority. A and B could be adjacent landowners, each fronting 200 feet on a state highway. A's lot is 200 yards deep. B's lot is only 198 yards deep. Each has a filling station and grocery store facing the highway and do a comparable business. The highway is relocated so as to pass 199 yards behind their places of business. It thus takes one yard of A's property but takes none of B's. A would be entitled to compensation because the flow of traffic on the old highway was taken away from him while his neighbor B would, under practically all the decisions in all the states, be entitled to nothing. Pruett v. Las Vegas, Inc., 261 Ala. 557, 74 So. 2d 807. There is something about such a result which to me seems unfair and unjust. The Supreme Court of New Mexico in a unanimous decision in 1945 in the case of Board of County Com'rs of Santa Fe County v. Slaughter, 49 N.M. 141, 158 P.2d 859, 860, in dealing with the exact problem facing us said:
*295 "In speaking of what is the measure by which damages are to be determined when a portion, but not all, of one's property is so taken, the court in People v. Ricciardi, supra (23 Cal. 2d 390, 144 P.2d 799), citing Rose v. State of California, 19 Cal. 2d 713, 123 P.2d 505, pointed out that under no rule would recoverable damages accrue `for diminution of property value resulting from highway changes causing diversion of traffic, circuity of travel beyond an intersecting street, or other noncompensable items.'
The holding in the Slaughter case appears to me to enunciate a fairer, more practical and reasonable rule than that which the majority opinion states to be the law of this state.
MAYFIELD, J., concurs in the foregoing views. | May 12, 1955 |
dbf409d9-0759-48b5-93b2-a95e8e3c9fec | Hanners v. Hanners | 77 So. 2d 484 | N/A | Alabama | Alabama Supreme Court | 77 So. 2d 484 (1955)
Lenna HANNERS
v.
R. H. HANNERS et ux.
4 Div. 795.
Supreme Court of Alabama.
January 20, 1955.
*485 L. A. Farmer, Jr., Dothan, for appellant.
Lawrence T. Oakley and S. P. Poyner, Dothan, for appellees.
SIMPSON, Justice.
Appeal from a decree sustaining the demurrer to a bill in equity. The bill sought cancellation of a deed on the ground of a breach of an alleged condition subsequent and in the alternative on the ground that a material part of the consideration was the support and maintenance of the grantor.
The granting clause of the deed gave to the grantees a fee simple absolute and following the description of the property conveyed was the following parenthetical clause:
The habendum vested a fee in the grantees, their "heirs and assigns forever." The deed contained the usual warranties of title.
The mere fact that the conveyance does not contain a divestiture and re-entry clause on breach of condition would not prevent it from operating as a condition subsequent, although it is customary that such a clause be in the deed and in a doubtful case its presence or absence would appear to be worthy of consideration. Libby v. Winston, 207 Ala. 681, 93 So. 631.
However, the policy of the law in this jurisdiction has been to disfavor a condition subsequent. Libby v. Winston, supra. And when doubt arises as to whether a particular provision is a condition or a covenant, the latter will be preferred. Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 So. 858, 9 L.R.A., N.S., 663.
Ruled by these principles, it cannot be said with that certainty which the law requires that the parenthetical clause above can be pronounced a condition subsequent.
But to pursue the matter further, there is another line of cases which we think also applicable to the question. It is well settled that if there is any conflict between the granting clause and any other, the former will prevail. Henry v. White, 257 Ala. 549, 60 So. 2d 149; Green v. Jones, 257 Ala. 683, 60 So. 2d 857; Wright v. Smith, 257 Ala. 665, 60 So. 2d 688; Long v. Holden, 216 Ala. 81, 112 So. 444, 52 A.L.R. 536. As stated, the granting clause purports to convey an absolute fee and if the parenthetical provision be interpreted according to the insistence of appellant the estate granted would be reduced to a conditional fee, thereby resulting that the former controls. Cases ubi supra.
While the deed is somewhat like the one considered in the case of First National Bank v. McIntosh, 201 Ala. 649, 650, 79 So. 121, 122, L.R.A.1918F, 353, where the provision was construed to be a condition subsequent, it is to be noted that the consideration expressed in the deed in the latter case was the support and maintenance of the grantor. The court there stated:
When, however, as here, the consideration recited is the payment of a sum of money, the usual conservative rules of construction must apply and applying them to the case at hand, we are clear to the conclusion that the provision in the deed providing for the payment of $200 a year cannot be construed as a condition subsequent.
*486 That aspect of the bill seeking to cancel the deed under § 15, Title 20 of the Code, on the ground that a material part of the consideration was the support and maintenance of the grantor must fail for insufficiency of allegations, whatever the substantive law on the question. The bill in that connection alleges:
The bill wholly fails to allege that a material part of the consideration for the deed was the support and maintenance of the grantor for her life. It only alleges that the payment of the $200 a year was a material part of the consideration. Appellant cannot turn a promise to pay money into a promise to support and maintain merely because she intends to use the money for that purpose. The mere failure to pay the consideration is no ground to cancel a deed. Wilfe v. Waller, 261 Ala. 436, 74 So. 2d 451.
We entertain the view the trial court ruled correctly in sustaining the demurrer to the bill.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and MAYFIELD, JJ., concur. | January 20, 1955 |
6e8f4ad3-c179-453b-a2cc-c2b89b292155 | Davison v. Mobile Infirmary | 518 So. 2d 675 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 675 (1986)
Mary A. DAVISON and Paul A. Davison
v.
MOBILE INFIRMARY and Dr. Richard H. Esham.
Dr. Richard H. ESHAM
v.
Mary A. DAVISON and Paul A. Davison.
MOBILE INFIRMARY
v.
Mary A. DAVISON and Paul A. Davison.
84-1183, 84-1231 and 84-1232.
Supreme Court of Alabama.
October 3, 1986.
On Return to Remand July 24 and December 23, 1987.
*676 Joseph M. Matranga, Patrick M. Sigler, and Stephen C. Moore, Mobile, for appellants/cross-appellees.
James J. Duffy, Jr., James J. Duffy III, and Dennis P. McKenna of Inge, Twitty, Duffy & Prince and Brock B. Gordon and Wade B. Perry, Jr., of Johnstone, Adams, Howard, Bailey & Gordon, Mobile, for Mobile Infirmary.
W. Boyd Reeves and A. Danner Frazer, Jr., of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for Dr. Richard H. Esham.
PER CURIAM.
This is the second time this case has been before this Court. On the first appeal, from adverse judgments in favor of each Defendant, this cause was remanded for a new trial. Davison v. Mobile Infirmary, 456 So. 2d 14 (Ala.1984).
Following the second trial, the jury returned a verdict in favor of Mary Davison against both Defendants for $5,000,000. The jury returned a verdict in favor of Paul Davison against both Defendants for $3,000,000. The court granted new trials to both Defendants unless Mary Davison filed a remittitur of $4,000,000 within 30 days, and unless Paul Davison filed a remittitur of $2,650,000 within 30 days. Thus, on verdicts for both Plaintiffs totaling $8,000,000, the judge ordered remittiturs totaling $6,650,000.
Upon Plaintiffs' failure to file the remittiturs within 30 days, the court vacated the judgment in favor of each Plaintiff and granted each of Defendants' motion for new trial. From this order, the Davisons appeal.
Defendants cross appeal, challenging the trial court's adverse rulings on their respective alternative post-judgment motions for judgment notwithstanding the verdict or for a new trial on the ground of excessiveness of the jury verdict. Our review of the record of the second trial substantiates, as Defendants acknowledge, that the evidence, in all material aspects, is identical to the evidence on the first trial. We hold, therefore, that the trial court did not err in denying Defendants' motions for directed verdicts at the close of all the evidence or in denying Defendants' post-judgment motions for J.N.O.V.
The single issue raised on the appeal is the propriety of the trial court's orders requiring remittitur as a condition to its denial of Defendant's motion for new trial. Because these orders, forming the basis for this appeal, were entered before our opinion in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), we remand this cause to the trial court for reconsideration of the remittitur issue in compliance with the standards set forth in Hammond. See, also, Harmon v. Motors Insurance Corporation, 493 So. 2d 1370 (Ala.1986); Alabama Farm Bureau Mutual Casualty Insurance Company v. Griffin, 493 So. 2d 1379 (1986); and Reinhardt Motors, Inc. v. Boston, 516 So. 2d 509 (Ala.1986) (each of these cases remanded). The trial court, in its discretion, may order an additional hearing on the remittitur issue, or may comply with these instructions without further hearing. In any event, the trial court shall report its findings and conclusions to this Court within 28 days of the issuance of this opinion.
AFFIRMED AS TO THE CROSS-APPEAL; AS TO THE APPEAL, ORDER GRANTING NEW TRIAL REVERSED; REMANDED WITH INSTRUCTIONS.
TORBERT, C.J., and JONES, ALMON, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
MADDOX, J., concurs specially.
HOUSTON, J., not sitting.
MADDOX, Justice (concurring specially).
I concur in the opinion, but I point out that I was of the opinion that the judgment based upon the jury verdict for Dr. Esham in the first trial of this case was due to be affirmed. See my dissent in Davis v. Mobile Infirmary, 456 So. 2d 14 (Ala.1984).
PER CURIAM.
A brief review of the history and current posture of these cases may be helpful. On *677 the first appeals from judgments in favor of the defendants, this Court reversed the judgments and remanded the cause for a new trial. Davison v. Mobile Infirmary, 456 So. 2d 14 (Ala.1984). On the new trial, the jury returned verdicts in favor of Ms. Davison for $5,000,000 and in favor of Mr. Davison for $3,000,000. Following a hearing on defendants' post-trial j.n.o.v. motions, the trial court denied the motions for j.n.o.v., and denied the alternative new trial motions on the condition that Ms. Davison remit $4,000,000 and that Mr. Davison remit $2,650,000. From the order granting a new trial because of their failure to comply with the order of remittitur, the Davisons appealed and Mobile Infirmary cross-appealed. On the appeal, the order granting a new trial was reversed and the cause was remanded for reconsideration of the excessiveness-of-the-verdict ground of defendants' motions for new trial, pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986). On the cross appeal, the judgment was affirmed. (See page 676). Upon remand, the trial court entered the following "Supplemental Order on Remittitur."
After careful study of this supplemental order and after much deliberation, we are constrained once again to remand this cause for further reconsideration of the issue of damages. We are troubled both by what is stated in the order as well as by what is not stated. In three instances, the order refers to "counsel" ("argument of Plaintiffs' counsel"; "Court's observation of ... counsel," and "conduct of counsel"), each reference obviously meaning "plaintiffs' counsel." By the order's repeated references to "counsel," the trial judge clearly indicates that one of the significant factors that he considered, as bearing on the "excessiveness" issue, was misconduct on the part of plaintiffs' lawyer. Yet, the trial judge found no misconduct *678 amounting to trial error, nor was any claimed error on this ground sustained on appeal. From our study of the supplemental order or from our independent understanding of the record of trial, we are unable to discern any link between the conduct of counsel and the amount of the jury's award of damages.
Next, we are troubled by the trial "Court's observation of ... the degree of culpability of defendants that arguably could have been found under the evidence in this case." As the supplemental order correctly points out, the case was submitted to the jury on the plaintiffs' claims of simple negligence, seeking compensatory damages only. Perhaps a possible explanation for this "observation" is the trial court's earlier conclusion (on the first trial) that one of the defendants was entitled to a directed verdict and the further fact that the jury in the first trial found for the remaining defendant. (Both judgments were reversed on the first appeal.) At any rate, where, as here, the only claim is for compensatory damages, the "degree of culpability of defendants" is not an appropriate consideration in testing the "excessiveness" ground for a new trial.
We hasten to point out that we share the blame for the trial court's consideration of the "culpability of the defendants." Indeed, Hammond included among its suggested factors for consideration "[t]he culpability of the defendants' conduct," as well as "the desirability of discouraging others from similar conduct" and "the impact upon the parties." Upon reflection, we could have made it clearer that these factors are appropriate for consideration where the issue is the propriety of a jury's award of punitive damages, as was the case in Hammond.
To like effect is the trial court's reference to the "court's observation of ... the impact of the amount of damages on Defendants, which would be devastating." Surely, at the post-judgment stage, where punitive damages have been claimed and awarded and where defendants claim excessiveness of the award, both the "degree of culpability of defendants" and "the devastating effect of the verdict on the defendants" are material issues for the trial court's consideration. It is axiomatic, however, that no such rule governs the trial court's consideration of the excessiveness issue when only compensatory damages are awarded.
We come now to the final reason given by the trial court for ordering a remittitur of damages as a condition for its denial of a new trial: "Mrs. Davison became extremely emotional during her testimony so as to arouse the sympathy, bias, passion and prejudice of the jury, and the jurors in fact exhibited an extremely sympathetic and emotional response during Ms. Davison's testimony." As this Court pointed out in Hammond, it is the trial court, and not the appellate court, that is peculiarly qualified to pass judgment on whether the verdict is the result of bias or prejudicethe primary reason for granting a new trial (or denying a new trial on the condition of remittitur) on the ground of excessiveness.
While we defer to the province of the trial court in this matter, we are constrained to make two observations: 1) The record of trial does not reflect anything unusual during Ms. Davison's brief period on the witness stand. It is true that she alleged, and the jury obviously believed, that she was rendered totally blind as a result of the negligence of the defendants; but an injured plaintiff is under no duty to conceal from the jury the nature and extent of her injury, nor is the jury bound to ignore, or to treat with indifference, whatever injury it finds to be the proximate result of defendants' culpable conduct; and 2) the trial court's conclusion "that the verdict ... was outrageously and grossly excessive, was far beyond the realm of reason and common sense and was the product of bias, passion, prejudice, corruption or other improper motive" is a clear indication, when viewed in the light of the record, that the amount of the verdict is the sole basis for the trial court's findings of sympathy, bias, and prejudice, rather than any unwarranted sympathetic appeal to the jury by the blind plaintiff.
*679 This is not to say that we reject, out of hand, the trial court's finding that an $8,000,000 award for husband and wife, even for such a catastrophic and devastating injury, by virtue of the amount alone, is so excessive as to be the product of bias, prejudice, or other improper motive. What we are testing, however, is not the granting of an unconditional new trial, but a denial of a new trial on the condition that plaintiffs remit $6,650,000 in damages.
In other words, the trial court must exercise extreme caution, as mandated by Hammond, not to reduce the jury award simply because a lesser sum is perceived by the trial court as a reasonable and adequate recovery; rather, the trial judge must determine the maximum amount of money the jury could have awarded to these plaintiffs, as reasonable and adequate compensation for their injuries and damages, so that the verdict, as reduced by the order of remittitur, is not the product of bias, passion, or prejudice. Stated in the context of Ms. Davison's claim, are any and all sums awarded by a jury in excess of $1,000,000, for negligently induced blindness, necessarily and as a matter of law, the product of bias, passion, prejudice, or other improper motive?
It is readily apparent from the trial judge's supplemental order that his answer to this question would have been different if he had not considered a substantial number of unwarranted factors as bearing on the "excessiveness" issue. While we are unable to assign a qualitative value to these immaterial considerations, as perceived by the trial court, unquestionably, each of these factors unduly influenced the trial court's ultimate decision to reduce the jury verdict of $8,000,000 to $1,350,000.
Therefore, this cause is remanded with instructions to the trial court to reconsider its earlier order of remittitur in light of this opinion and this Court's opinion in Hammond as herein clarified. We leave to the sound discretion of the trial court whether an additional hearing is necessary or appropriate for its compliance with these instructions. In any event, a copy of the resultant order will be served on each of the parties, and the plaintiffs will be furnished an additional opportunity to accept or reject a conditional denial of a new trial. If the court conditionally denies a new trial and the condition is accepted by the plaintiffs' filing a remittitur in accordance with the trial court's order, no further proceedings will be necessary in this Court but the circuit clerk shall promptly inform this Court of such action; otherwise, the circuit clerk will file a supplemental record with this Court within 14 days following the trial court's entry of its order of new trial. In that event, supplemental briefs (14 days for the complaining parties and 7 days thereafter for the respondents) will be permitted, but not required, for this Court's reconsideration of plaintiffs' appeal.
REMANDED WITH INSTRUCTIONS.
JONES, ALMON, SHORES and ADAMS, JJ., concur.
BEATTY, J., concurs in the result.
TORBERT, C.J., and MADDOX, HOUSTON and STEAGALL, JJ., dissent.
MADDOX, Justice (dissenting).
Remittitur practice in Alabama is troublesome, and the history of this case makes the application of the remittitur doctrine even more difficult, but I would not overturn the judgment of the trial judge, who has re-examined his original judgment and ordered a remittitur in accordance with the mandate of this Court (See page 677). I would affirm his judgment because (1) I believe the trial judge has substantially followed the directions of this Court, and (2) the trial judge is in a much better position to determine whether the jury's verdict was influenced by passion or prejudice, because he observed firsthand the witnesses when they testified, the jury's reaction to their testimony, and the other incidents occurring during the trial, and we have nothing but the cold record of the trial, and, therefore, we cannot possibly capture the flavor of the trial as the trial judge could. Furthermore, it must be remembered that on the first trial of this case, the Court directed a verdict for Mobile Infirmary, and *680 a jury rendered a verdict in favor of Dr. Esham. Davison v. Mobile Infirmary, 456 So. 2d 14 (Ala.1984).
In that first appeal, I concurred in the opinion of this Court insofar as it reversed the judgment of the trial court based upon the directed verdict in favor of Mobile Infirmary, but I dissented insofar as the opinion reversed the judgment entered upon a jury verdict rendered in favor of Dr. Esham. I was joined by one other Justice. 456 So.2d, at 26.
The trial judge who presided over the first trial also presided over this trial. He heard the testimony in both trials. He observed the demeanor of the witnesses and the reaction of the jurors, and while this Court has repeatedly held that the courts should exercise caution in disturbing a jury's verdict on the ground of excessiveness, I am of the opinion that the trial judge, in this case, has followed the mandate of Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and has sufficiently stated the reasons why he ordered a remittitur in this particular case.
From the time of the filing of the initial complaint, the plaintiff has claimed that several defendants were guilty of contributing to her injuries, which admittedly are quite severe, but the question presented to the trial judge, at the time he ruled on the defendants' motions for new trial, and after remand by this Court, is the degree of culpability of these defendants.[1]
Remittitur can aid courts in eliminating prolonged disputes and the resultant delays in and expenses of obtaining justice. See, Commentary, "Remittitur Practice in Alabama," 34 Ala.L.Rev. 275, (1983) for a thorough review of the Alabama practice. Rule 1, Ala.R.Civ.P., and Rule 1, Ala.R. App.P., both mandate the determination of disputes as justly, speedily, and inexpensively as possible. Remittitur practice in Alabama is confusing. I fear that this opinion will only tend to cloud the principles of law the bench and bar are to apply when claims are made that a verdict is excessive. I believe appellate courts should be careful in overturning decisions of trial judges, who presumably witness events occurring during the trial that could influence the jury's determination of damages; therefore, I respectfully dissent.
HOUSTON, Justice (dissenting).
By Rule 59(f), Ala.R.Civ.P., we authorize a trial court, on motion for new trial, to require a remittitur as a condition to the overruling of the motion for new trial on the ground of excessiveness. This the trial court did.
In Aspinwall v. Gowens 405 So. 2d 134 (Ala.1981), we said that this may be done in those cases where the court can clearly see that the verdict has been reached because of bias, passion, prejudice, corruption, or other improper motives.
In Hammond v. City of Gadsden, 493 So. 2d 1374, 1379 (Ala.1986), we recognized that the trial judge is better positioned to decide whether the verdict has been reached because of bias, passion, prejudice, corruption, or other improper motive.
This Court ordered the trial court in the case before us to enter an order consistent with the decision in Hammond v. City of Gadsden, supra. In Hammond, we wrote:
493 So. 2d at 1379.
The trial court in its "Supplemental Order on Remand" wrote: "In ruling on those motions the Court considered the entire trial, including the Court's observations of the plaintiffs at trial, their ages and all evidence as to injuries and damages suffered by plaintiffs. Plaintiffs' pecuniary losses involved had all been incurred in the past and there were no pecuniary losses of any kind in the future. Mrs. Davison became extremely emotional during her testimony so as to arouse the sympathy, bias, passion and prejudice of the jury, and the jurors in fact exhibited an extremely sympathic and emotional response during Ms. Davison's testimony." The trial court further recited that it considered all evidence introduced and that its order was made after observing all witnesses, jurors, and counsel. Has not the trial court done exactly what we told it to do, when we directed that it enter an order consistent with Hammond?
The majority finds that "The record of trial does not reflect anything unusual during Ms. Davison's brief period on the witness stand."
In Hammond we held that the main reason for imposing this extra work on trial courts is because "[t]here are many facets of a trial that can never be captured in a record, so that the appellate courts are at a special disadvantage when they are called upon to review trial court action in this sensitive area...."
In Hammond, we wrote:
In entering an order consistent with Hammond, the trial court correctly stated: "The court further considered ... the degree of culpability of defendants that arguably could have been found under the evidence in this case, the fact that directed verdict on all claims for wantonness was affirmed in the first trial and thus no punitive damages were allowable in this case."
The majority now complains that the trial court considered the "degree of culpability of defendants," which it correctly observes is not a ground for remittitur when only compensatory damages are permissible. To me this is what the trial court is saying. It considered what we told it to consider when we told it to enter "an order consistent" with Hammond. In Hammond we said to consider the culpability of the defendant's conduct. The trial court in its order said that it considered that, as we instructed, and found it not appropriate since punitive damages were not allowable.
In Hammond we wrote:
493 So. 2d at 1379.
In entering an order consistent with Hammond, the trial court wrote: "The Court further, considered ... the impact of the amount of damages on Defendants, which would be devastating."
The majority now rejects "as a viable factor for consideration the `court's observation of ... the impact of the amount of damages on Defendants, which would be devastating.'"
Immediately before noting that an $8 million judgment would be devastating, the trial court explained that punitive damages are not recoverable.
Did the trial court abuse its discretion in granting remittitur? The totality of the trial court's order clearly shows that it did not. If there is any confusion in the trial court's order it is caused by our asking for an order consistent with our decision in Hammond v. City of Gadsden. In Hammond, we set out factors that were not appropriate in this case. We in Hammond wrote that these factors "are appropriate for the trial court's consideration." We wrote that "[t]hese are by no means exclusive," but not that these should not be *682 considered in cases involving only compensatory damages. If the trial court had not disposed of these "factors," it would not have complied with our order on remand.
The right to a trial by jury is a fundamental, constitutionally guaranteed right. Art. 1, § 11, Const. of 1901. A jury verdict should not be set aside unless it is flawed. This Court by virtue of § 12-22-71, Code 1975, has the statutory responsibility of reducing the amount of verdicts that are flawed only by being excessive. This statute is constitutional. Alabama Power Co. v. Talmadge, 207 Ala. 86, 93 So. 548 (1921). We have delegated part of our responsibility to the trial courts by Rule 59(f), Ala.R. Civ.P. To me, Hammond is a means of helping this Court determine whether a trial court abused its discretion in carrying out that part of our responsibility delegated to trial courts on the thorny problem of excessive verdicts.
We should be specific in our directions to the trial courts in remittitur remands. We should not direct a trial court to enter an order consistent with our decision in Hammond and then criticize that trial court for doing exactly what we directed it to do.
On behalf of trial courts, I ask: What doth the Supreme Court require of thee? And I dissent.
STEAGALL, J., concurs.
PER CURIAM.
The trial judge in this case[1] granted the defendants' motion for a new trial unless the plaintiff, Mary A. Davison, filed a remittitur of $4,000,000 and plaintiff, Paul A. Davison filed a remittitur of $2,650,000. The plaintiffs refused to file the remittiturs. Even though we affirm the trial court's granting the defendants a new trial, we do so conditionally. We believe that we should permit the plaintiffs to elect whether to accept judgments for amounts less than the amounts awarded by the jury. Based on this belief, and pursuant to the authority granted to this Court by Ala. Code 1975, § 12-22-71, if the plaintiffs, Mary A. Davison and Paul A. Davison, file remittiturs of $4,000,000 and $2,650,000, respectively, within 28 days after the date this opinion is filed, then this Court will enter judgments for the plaintiffs in such reduced amounts and will direct the trial court to set aside its order granting a new trial; if the plaintiffs refuse to file such remittiturs within 28 days after the date this opinion is filed, the order of the trial court granting a new trial will stand affirmed.
We emphasize that our conditional affirmance is based on the trial court's specific finding that the verdict is the product of jury bias, passion, and prejudice; thus, our holding is not to be understood as expressing an opinion as to the maximum amount these plaintiffs are entitled to recover in the event of a new trial before an unbiased and unprejudiced jury.
AFFIRMED CONDITIONALLY.
TORBERT, C.J., and MADDOX, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur.
JONES, ALMON and SHORES, JJ., concur in the result.
[1] A reading of the testimony of plaintiffs' own expert witness at the first trial, a portion of which is set out at 456 So. 2d at 18-22, shows that there was substantial testimony that it was the failure of the radiologist to notify Dr. Esham of the presence of the bezoar in the plaintiff's stomach that caused the plaintiff's injuries. At the first trial, plaintiffs' expert described the bezoar as "an extremely unusual occurrence and one which ... should have alerted the radiologist to possible seriousnessthe possible emergency nature of this condition." 456 So. 2d at 19. (Emphasis added.) In other words, the jury verdict, in the first trial, insofar as Dr. Esham is concerned, could have been based on evidence that when Dr. Esham was notified of the presence of the bezoar and its toxicity, it was already too late for him to do anything about it. Of course, a majority of this Court determined that plaintiff was entitled to a new trial against Dr. Esham, without regard to the result, and I concurred that plaintiff could try her case against Mobile Infirmary.
[1] Originally, we dealt with three appeals in one opinion. The return to remand relates to only one of those three appeals, namely, 84-1183, Davison v. Mobile Infirmary, et al. | December 23, 1987 |
89e9b0ac-52f6-41e7-b14d-7ca8b4d76764 | Alabama Farm Bureau Ins. Co. v. Hunt | 519 So. 2d 480 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 480 (1987)
ALABAMA FARM BUREAU INSURANCE COMPANY
v.
Ricky HUNT and Laura Hunt.
Rita W. MOORE, Administratrix of the Estate of Dr. Arthur E. Moore, Deceased
v.
Ricky HUNT and Laura Hunt.
BAPTIST MEDICAL CENTER-CHILTON
v.
Ricky HUNT and Laura Hunt.
86-590, 86-597 and 86-632.
Supreme Court of Alabama.
December 23, 1987.
W.J. McDaniel and William A. Mudd of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellant Ala. Farm Bur. Ins. Co.
Fred W. Tyson of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant Rita W. Moore, Administratrix, etc.
C. Jeffery Ash of Carpenter & Gidiere, Montgomery, for appellant Baptist Medical Center-Chilton.
John W. Haley and Francis H. Hare, Jr., of Hare, Wynn, Newell & Newton, Birmingham, for appellees.
PER CURIAM.
The defendantsAlabama Farm Bureau Insurance Co. (hereinafter "Farm Bureau"), Rita Moore (hereinafter "Moore"), and Baptist Medical Center-Chilton (hereinafter "Baptist")appeal from a summary judgment for the plaintiffs, Ricky and Laura Hunt. We affirm the judgment reforming a general release, pursuant to Ala. Code 1975, § 8-1-2, to reflect "the true intention of the parties," a pro tanto release.
*481 The Hunts filed a petition for reformation of a general release executed by them on September 17, 1983. The trial court entered an order granting the reformation and converting the general release to a pro tanto release, releasing only Farm Bureau and the insureds, Danny and Frances Gilmore, based upon the trial court's finding of the true intention of the parties. The trial court's order further declared that the pro tanto release entitled other defendants to a credit of $25,000, the amount of consideration expressed in the release, if a judgment were rendered against them.
1. Whether the trial court erred in granting the Hunts' motion for summary judgment to reform the release.
2. Whether the settlement and "general" release of the original tort-feasors, Danny and Frances Gilmore, bar the plaintiffs' wrongful death claim against the admitting hospital and the treating physician for alleged subsequent acts of negligence.
On March 22, 1983, Sonya Nicole Hunt, age 3, fell down a flight of stairs, while she was visiting in the home of her aunt and uncle, Frances and Danny Gilmore. The Gilmores took her to Baptist, where she was X-rayed and examined by Dr. Moore, and then released. Later that night, Sonya went into a coma. The Gilmores called rescue personnel, who called a helicopter. Sonya was transported to University Hospital in Birmingham, where numerous doctors treated her for a skull fracture and a blood clot. Sonya died on March 28, 1983.
The Gilmores, as the insureds under a homeowners' insurance policy with Farm Bureau, reported the accident to the insurer, whose adjuster, Don Hale, conducted an investigation and discussed the accident with the Gilmores. On September 12, 1983, at Hale's request, Mrs. Gilmore went to the Farm Bureau office and picked up a $25,000 check made payable to the Hunts. At that time, Hale advised her that the Hunts had to sign a release in order to cash the check. Hale did not show Mrs. Gilmore the release document, nor did he explain its contents to her.
On September 17, 1983, Mrs. Gilmore and the Hunts went to the Farm Bureau office. Neither Hale nor the Gilmores' agent, Bob Cook, was present. Two Farm Bureau employees, Evelyn Champion and Wanda Hewitt, were in the office when Mrs. Gilmore and the Hunts arrived. Mr. Hunt read the filled-in blanks on the form but did not read the entire form. According to the Hunts, after Mrs. Champion explained to them that the form released the Gilmores and Farm Bureau, they executed the document.
The Hunts petitioned for reformation of contract against the Gilmores and Farm Bureau, alleging that they understood the release to be a pro tanto settlement with the Gilmores and Farm Bureau only, and that the Hunts would have the right to proceed against any other responsible parties. By amendments, the Hunts first added Baptist and Dr. Moore as parties to their petition for reformation and then added a claim for wrongful death based on the alleged negligence of Baptist and Dr. Moore. After Dr. Moore died, his widow and administratrix, Rita Moore, was substituted as a party defendant.
All the defendants appeal from the trial court's order granting the Hunts' motion for summary judgment and reforming the release. (The partial summary judgment as to Baptist and Moore was made final pursuant to Rule 54(b), A.R.Civ.P.)
Appellants rely on Baker v. Ball, 473 So. 2d 1031 (Ala.1985), and Conley v. Harry J. Whelchel Co., 410 So. 2d 14 (Ala.1982), for the following propositions:
Baker, 473 So. 2d at 1035.
Conley, 410 So. 2d at 15.
Alternatively, the appellants contend that 1) the testimony of Farm Bureau's claims agent creates a triable factual issue with respect to the "intention of the parties," which precludes disposition by summary judgment on the plaintiffs' claim for reformation of the contract of release; and 2) parol evidence is not admissible to prove "intention of the parties."
Primarily, the Hunts rely on Irvin v. Griffin Corp., 808 F.2d 802 (11th Cir.1987), expressly adopting this Court's dictum in Conley, supra, as the basis for upholding the reformation of a general release. Alternatively, the Hunts contend that, in no event, could the parties to the instant contract have intended to release an independent and unrelated cause of action against other tort-feasors.
Although we reject the Hunts' alternative "independent cause of action" contention as a basis for upholding the trial court's reformation of the release,[1] we accept the holding and rationale of the 11th Circuit's Irvin case, supra, as a correct expression of Alabama law. Except for a collateral "necessary parties" issue in Irvin, which is not in issue here, Irvin and the instant case are virtually identical.[2] Therefore, at the risk of overburdening this opinion, we quote at length from Irvin:
"`All receipts, releases and discharges in writing, whether of debt or record, a contract under seal or otherwise, must have effect, according to the intention of the parties.'
"`When, through fraud, a mutual mistake of the parties or mistake of one party which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised by the court on the application of the party aggrieved so as to express that intention, so far as it can be done without prejudice to the rights acquired by third persons in good faith and for value.' (Emphasis added.)
"`[S]uch reservation is not essential, nor need the release take the form of a covenant not to sue. The true inquiry is, did the parties intend to limit the release to the parties named, with no intent that the cause of action be satisfied in full?' [217 Ala. at 108, 115 So. at 4.]
"`The evidence ... shows that appellant could have attempted to avoid or rescind the entire release on the grounds of mutual mistake, fraud or misrepresentation. Furthermore, the appellant could have requested reformation of the release, pursuant to
*484 Code of 1975, Section 8-1-2, to express the true intention of the parties.'
We reject the appellants' contention that the testimony of Farm Bureau's claims agent was at least self-contradictory on the "intention of the parties" issue so as to make disposition by way of summary judgment improper. We quote the full context of this testimony from the record:
The appellants contend that, notwithstanding agent Hale's initial unequivocal testimony that he did not intend the release to include unnamed third parties, his statement that he "intended for it to release the Gilmores in all thejust what the release says," at the very least, makes a genuine issue of material fact that cannot be resolved on plaintiffs' motion for summary judgment. Obviously, the trial judge, reviewing the whole of the deposition before and after the "just what the release says" clause, found no contradiction in the witness's testimony.
It is readily apparent that this intelligent, articulate, and forthright witness was saying that, as the claims agent who prepared the release, he intended to have the Hunts release only his company and its insureds "in all the" respects set out in the release contract. Indeed, to interpret his testimony otherwise is to impute an intent on his part to misrepresent to the Hunts the nature and scope of the release. The trial court's reformation of the release is in full accordance with the good faith conduct of Farm Bureau's claims agent in his dealings with both the insureds and the Hunts.
Moreover, Ala.Code 1975, § 8-1-2, provides, in addition to "fraud" and "mutual mistake of the parties," that a "mistake of one party which the other at the time knew or suspected" is an alternative ground for reformation of a written contract that "does not truly express the intention of the parties." While in other contexts, the court may resort to the "mistake of one party" ground for reformation, Hale's testimony in the instant case clearly invokes the "mutual mistake" ground and leaves no genuine issue of material fact for further consideration.
Finally, appellants claim the trial court erred in considering parol evidence on the "intention of the parties" issue. We disagree. A good statement of the rule applicable to reformation is found in 66 Am.Jur.2d Reformation of Instruments § 118, p. 644-45 (1973):
Also, the rule and its rationale are stated in Floyd v. Andress, 246 Ala. 301, 20 So. 2d 331 (1944):
246 Ala. at 306, 20 So. 2d at 334-35. See, also, Hibbett Sporting Goods, Inc. v. Biernbaum, 375 So. 2d 431 (Ala.1979); and Richard Kelley Chevrolet Co. v. Seibold, 363 So. 2d 989 (Ala.Civ.App.1978). For two recent cases upholding pro tanto releases, see Cox v. City of Birmingham, 518 So.2d *486 1262 (Ala.1987); and Daugherty v. M-Earth of Alabama, Inc., 519 So. 2d 467 (Ala.1987).
AFFIRMED.
TORBERT, C.J., and JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
Don Hale at one point in his deposition stated: "I don't know that it was an intent on my part [to release Chilton County Hospital]. I intended for it to release the Gilmores in all the just what the release says [emphasis supplied]." Mr. Hale's other testimony is clear that he did not intend for the release to include unnamed third parties. The release is clearly a general release that releases the Gilmores, Alabama Farm Bureau, "and all other persons, firms, or corporations liable, or who might be claimed to be liable, ... from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever and particularly on account of all injuries known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 22nd day of March, 1983 at or near Jemison, Alabama." I have consistently held that a witness's isolated answer to a particular question, removed from the totality of that witness's testimony that explains or qualifies that answer, does not satisfy our scintilla-of-evidence sufficiency standard. See Creel v. Brown, 508 So. 2d 684 (Ala. 1987) (Houston, J., concurring specially); Williams v. Robinson, 512 So. 2d 58 (Ala. 1987) (Houston, J., dissenting, joined by Torbert, C.J., and Steagall, J.); and Wilson v. Alabama Power Co, 518 So. 2d 105 (Ala. 1987) (Houston, J., concurring specially). To allow Mr. Hale's isolated statement, which is explained and qualified by his other deposition testimony, to provide the scintilla of evidence to defeat plaintiffs' summary judgment would be contrary to the position I have previously taken and which I am persuaded is correct. I would affirm.
By voting to affirm, I am not addressing the issue of whether there can be a pro tanto release of joint tort-feasors in wrongful death cases if only punitive damages are recoverable in such cases and if this Court continues to hold that there can be no apportionment of punitive damages against joint tort-feasors, since it is my understanding that such an issue is not raised in this appeal made final pursuant to Rule 54(b), Ala.R.Civ.P.
[1] Because, under the allegations, the negligence of Baptist and Moore combined and concurred with the original negligence of the Gilmores to cause the death of the Hunt child, the wrongful death claim against Baptist and Moore is based on a "joint tort-feasor" theory; thus, the "individual cause of action" contention must fail. See Ex parte Rudolph, 515 So. 2d 704 (Ala.1987); and Ex parte Jenkins, 510 So. 2d 232 (Ala.1987).
[2] The dissent in Irvin is directed solely at the "necessary parties" issue: an issue not here presented and on which we express no opinion. | December 23, 1987 |
75ce1b83-9a06-4be9-9177-96d7e08a2c00 | Daugherty v. M-Earth of Alabama, Inc. | 519 So. 2d 467 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 467 (1987)
Thomas Allen DAUGHERTY, individually and as guardian of Dana Wright Daugherty, non compos mentis
v.
M-EARTH OF ALABAMA, INC.
No. 86-53.
Supreme Court of Alabama.
December 18, 1987.
R.O. Hughes of Johnston, Conwell & Hughes, Birmingham, for appellant.
Jerry B. Oglesby and Thomas E. Dick of Sides, Oglesby, Held & Dick, Anniston, and De Martenson of Huie, Fernambucq & Stewart, Birmingham, for appellee.
ALMON, Justice.
Thomas Allen Daugherty, individually and as guardian for Dana Wright Daugherty, non compos mentis, sued Joseph Thompson, Jr., Victor Munkus, and M-Earth of Alabama, Inc., for injuries sustained in an automobile-truck collision. Daugherty entered into a pro tanto release with Thompson and Munkus and proceeded against M-Earth under a respondeat superior theory of liability. The trial court granted M-Earth's motion for summary judgment.
On July 24, 1984, appellant's wife, Dana Daugherty, was hit while driving through an intersection, by a 30-ton dump truck operated in appellee's business. Mr. Thompson was driving the truck under the direction of its owner, Mr. Munkus. Daugherty alleges that Munkus was under contract to deliver sand for appellee, M-Earth, at the time of the accident. Mrs. Daugherty suffered severe internal injuries as a result of the collision and has been in a coma since that time. Her prognosis is not favorable and her husband expects she will require constant medical attention for the remainder of her life. He filed suit for these damages on November 16, 1984.
On October 8, 1985, Daugherty entered into a pro tanto release with Thompson and Munkus for the sum of $296,558. The release purported, by the following language, *468 to reserve all rights against other joint tort-feasors:
M-Earth argues that Daugherty cannot release the "active tort-feasors" and impose liability on it under the doctrine of respondeat superior.
The question for this Court is whether Daugherty may execute a pro tanto release of Thompson and Munkus and reserve his rights against M-Earth.
Ala.Code 1975, § 12-21-109, provides:
Although this Court has never addressed the question of a pro tanto release of an agent while rights against the principal are reserved, the question has been decided in other states. Riviello v. Waldron, 47 N.Y.2d 297, 391 N.E.2d 1278, 418 N.Y.S.2d 300 (1979), which involved a personal injury action against a tavern and its employee, held that release of the employee did not foreclose a right of action against the employer under a theory of vicarious liability. Florida Tomato Packers v. Wilson, 296 So. 2d 536 (Fla.Dist.Ct.App.1974), cert. denied, 327 So. 2d 32 (Fla.1976), which involved personal injuries suffered in an automobile accident, held that a release of the operator and the owner of the vehicle did not constitute a release of the packing company that had paid all of the expenses of operating the vehicle and acted as a joint venturer in its operation. These cases are in accord with our statute that gives effect to the terms of the release and intentions of the parties thereto.
This view is also supported by Dean Prosser:
Keeton, Prosser and Keeton on Torts, § 49, p. 335 (5th ed. 1984) (footnotes omitted).
This line of reasoning is especially persuasive in light of the fact that M-Earth was not a party to the release. M-Earth did not argue below or on appeal that the release constituted satisfaction of Daugherty's claim, nor did it argue that he intended to relinquish his right of action against M-Earth. Instead, M-Earth argues that release of the joint tort-feasors constitutes a release of it as "passive tort-feasor." This argument is refuted by the principles *469 of respondeat superior and is untenable under modern tort law. As the Texas Supreme Court said in Knutson v. Morton Foods, Inc., 603 S.W.2d 805, 807 (Tex.1980), "The fact that an employee has been released in a settlement has no bearing on the continued liability of the employer unless the settlement is in full satisfaction of the plaintiff's claims against both the employee and the employer." As that Court explained, this should not be construed to mean that a plaintiff has two opportunities to prove the employee's negligence:
"[W]here the employer's liability rests solely on respondeat superior, an adjudication acquitting the employee of negligence will stand as a bar to a subsequent suit against the employer." 603 S.W.2d at 807, citing Hammonds v. Holmes, 559 S.W.2d 345 (Tex.1977).
By reserving his rights against M-Earth in the release executed with Thompson and Munkus, it is clear that Daugherty intended to reserve his right to bring an action against M-Earth. As this Court said in Steenhuis v. Holland, 217 Ala. 105, 107, 115 So. 2, 3 (1927), "[I]t is the right of the injured party to accept satisfaction in part from one tort-feasor, release him, and proceed against the other. Such release operates in favor of such other only as satisfaction pro tanto." Citing Home Telephone Co. v. Fields, 150 Ala. 306, 43 So. 711 (1907).
Ala.Code 1975, § 12-21-109, expressly states that pro tanto releases are to be given effect according to their terms and the parties' intent. Where a release expressly reserves rights against a joint tort-feasor, whether he is a principal, an agent or a joint venturer, it will be given effect according to its terms.
The judgment of the trial court is, therefore, reversed and the case is remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, BEATTY and HOUSTON, JJ., concur. | December 18, 1987 |
d07324a5-31c5-4a26-b42e-76921bed57c2 | Gray v. Central Bank of Tuscaloosa, NA | 519 So. 2d 477 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 477 (1987)
Frank GRAY
v.
CENTRAL BANK OF TUSCALOOSA, N.A., a/k/a Central Bank of the South.
86-164.
Supreme Court of Alabama.
December 23, 1987.
*478 Robert F. Prince and R. Shan Paden of Prince, McGuire & Coogler, Tuscaloosa, for appellant.
John P. Scott, Jr., and Jonathan S. Harbuck of Balch & Bingham, Birmingham, for appellee.
STEAGALL, Justice.
This is an appeal from a partial summary judgment dismissing a counterclaim, which was certified by the trial court as a final judgment pursuant to Rule 54(b), A.R.Civ. P. The case involves a suit on a promissory note and two separate guaranty agreements. We reverse.
Appellee Central Bank of Tuscaloosa, N.A. (now Central Bank of the South) commenced this action on March 15, 1985, against Fuel Sales, Inc., a domestic corporation; Frank Cicatiello, as its president; and appellant Frank Gray, a one-time stockholder of Fuel Sales, Inc. Central Bank sought recovery against Fuel Sales for default on a promissory note executed on February 27, 1984. The complaint also stated a cause of action against Cicatiello and Gray as guarantors of the note. The claims against Cicatiello and Gray are based on two separate guaranty agreements, one executed by Cicatiello as president of the corporation on February 27, 1984, and the other executed on November 11, 1983, by Gray, who, at the time of that guaranty agreement, was the sole stockholder of Fuel Sales. These written guaranty agreements, by their terms, are continuing, unlimited agreements. Only the 1983 agreement signed by Gray, which Central Bank asserts was binding on Gray at the time of execution of the promissory note here sued upon, is at issue in this appeal. A joint answer to the complaint was filed by Cicatiello and Gray. The answer raised, among other things, the affirmative defense of fraud. Included in the answer was a counterclaim, on behalf of Gray, alleging fraudulent misrepresentation and civil conspiracy against Central Bank and James H. Askew, Jr. (a bank officer), as its agent. Central Bank moved for summary judgment on both the complaint and the counterclaim. It was asserted that by the explicit terms of the promissory note and guaranty agreements there was no genuine issue of material fact and Central Bank was entitled to a judgment as a matter of law. Central Bank, moreover, contended that there was no evidence to support the counts of Gray's counterclaim, which alleged fraud and civil conspiracy. Central Bank's motion was supported by the affidavit of Jerry W. Morrison (president of Central Bank of Tuscaloosa). Summary judgment was denied as to the complaint, but was granted on behalf of Central Bank on Gray's counterclaim. The trial court, following a hearing on a motion by Gray to alter, amend, or vacate, denied the motion and, upon motion by Central Bank, certified that summary judgment as a final judgment on Gray's counterclaim, pursuant to Rule 54(b), A.R.Civ.P. It is this summary judgment on the counterclaim from which Gray appeals. Central Bank's original complaint on the promissory note and guaranty agreements remains pending.
The fraud count of the counterclaim alleges a fraudulent misrepresentation by an agent of Central Bank, which Gray maintains he relied upon in executing the guaranty agreement of November 11, 1983. This guaranty was executed in conjunction with a loan made to Fuel Sales, Inc., that same date. That note was subsequently repaid and is not the subject of this litigation. As previously indicated, Central Bank maintains that the written terms of this 1983 guaranty agreement bind Gray to the promissory note executed on February 27, 1984. Gray specifically averred that he was told by James Askew of Central Bank, upon executing the guaranty agreement of *479 1983, that the agreement was for that specific transaction and that he would not be obligated to repay any other indebtedness of Fuel Sales, Inc. The trial court, in dismissing Gray's counterclaim, held that there was not a scintilla of evidence of damages suffered as a result of the allegedly fraudulent representation, a required element in an action for fraud. Gray submits that there did exist a scintilla of evidence as to the required element of damages in that, because of Central Bank's suit against him on the guaranty agreement, he had been forced to expend funds to procure the services of an attorney to defend the action.
The trial court, in its summary judgment order, specifically held:
As previously indicated, the original action on the promissory note and guaranty agreement remains pending below. The facts of the case at bar are somewhat analogous to those in Branch v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373 (Ala.1987), in which a Rule 54(b) certification was set aside. We wrote there: "[T]he issues in the two claims in this case are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results. We must conclude, therefore, that in the interest of justice, the claims should not be adjudicated separately." Branch v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373, 1374 (Ala.1987). The same can be said in the instant case. The trial court on one hand has ruled that there is a scintilla of evidence of fraudulent conduct which, if substantiated, could estop Central Bank from enforcing the 1983 guaranty agreement against Gray. On the other hand, the trial court, in the same written order, ruled that there was not a scintilla of evidence to support a showing of damages, which is a required element in a cause of action for fraud. Here, the claim and counterclaim both arise out of the same transaction, the same nucleus of operative facts. Because any determination of damages suffered by Gray cannot be dispositive in the absence of an adjudication of Central Bank's claim on the guaranty agreement, the summary judgment here should not have been granted. Indeed, Central Bank, on appeal, urges that Gray can in no wise be said to have suffered damages because Gray has yet to make any payments under the terms of the guaranty. The question then becomes: Will Gray ultimately have to make payments under the terms of the guaranty agreement? In the absence of an adjudication of Central Bank's claim, which remains pending, one can only speculate. Because the issues in these two claims are "closely intertwined" and because a separate adjudication would indeed pose an unreasonable risk of inconsistent results, we hold that summary judgment as to the one claim was improvidently granted by the trial court. Central Bank's claim on the note and the guaranty agreement, and Gray's counterclaim for fraud, should not be adjudicated separately.
REVERSED AND REMANDED WITH INSTRUCTIONS.
TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur. | December 23, 1987 |
1c7874ca-0193-4838-a780-7973e2ffab2c | Whitt v. Hulsey | 519 So. 2d 901 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 901 (1987)
Buford WHITT
v.
Sally Jones HULSEY, et al.
85-1436.
Supreme Court of Alabama.
December 11, 1987.
Rehearing Denied January 22, 1988.
*902 Robert H. Ford of Brinkley & Ford, Huntsville, for appellant.
Albert C. Swain, Huntsville, for appellees.
PER CURIAM.
Defendant Buford Whitt appeals from a judgment of the Madison County Circuit Court in favor of plaintiffs Sally Jones Hulsey, Dewey Jones, Willie Hatchett, and Delaney Hatchett Spray. We affirm.
In their complaint, the plaintiffs allege that they are descendants of Benjamin Ellis, who died in 1853 and who is buried in a family cemetery in Madison County. The plaintiffs assert that the family cemetery consists of one-quarter acre that was excepted from an 1879 deed conveying a larger tract, and that this land was reserved for a family burial ground. They claim that Whitt purchased the property surrounding the cemetery in 1983, and that he has destroyed a fence surrounding the cemetery and has otherwise damaged the cemetery. The pretrial order delineated causes of action "based on trespass; desecration of a cemetery; and tort of outrageous conduct; and for injunctive relief establishing the boundaries of the cemetery and access thereto." The jury found in favor of the plaintiffs and assessed damages at $14,500. The trial court rendered judgment based on the jury verdict and made the following findings:
The trial court also directed the parties to submit surveys of the boundary of the cemetery, along with their contentions with respect to the locations of the boundary.
Following the submission of surveys and contentions of counsel for both parties, and after viewing the site of the cemetery, the trial court adopted the survey proposed by the plaintiffs as the boundary of the cemetery. In addition, the trial court made the following findings:
Whitt's motions for judgment notwithstanding the verdict and for new trial were denied by the trial court. Whitt appeals, presenting six issues for review.
Whitt's first contention is that the trial court committed error by reading a criminal statute, Ala.Code 1975, § 13A-7-23.1, in charging the jury on the claim for desecration of a tomb or gravestone. The trial judge charged the jury as follows:
Citing Lassetter v. King, 249 Ala. 422, 31 So. 2d 588 (1947), Whitt contends that the trial court erroneously charged the jury by reading a criminal charge to the jury in a civil action, and that he thus is entitled to a new trial. Lassetter involved a civil action for wrongful death caused by the negligent operation of an automobile, and a new trial was granted based upon the trial court's having charged the jury on the criminal law relating to reckless driving. The Lassetter Court observed that the "charge restates practically in full the criminal statute regarding reckless driving, with the details of minimum and maximum punishment to be imposed, including the prohibition against further driving for at least six months." 249 Ala. at 423, 31 So. 2d at 589. The Court, in denying the petition for writ of certiorari, held:
249 Ala. at 424, 31 So. 2d at 590.
The charge read to the jury in this case differs from the charge given in Lassetter, however, because it did not include the range of punishment upon conviction, as did the charge in Lassetter. See McGough Bakeries Corp. v. Reynolds, 250 Ala. 592, 597-98, 35 So. 2d 332, 337 (1948). The charge given the jury on the desecration claim stated the elements of the action without mentioning any possible punishment. Furthermore, the trial court clearly instructed the jury that Whitt was "not charged with a criminal offense." We find no error in this instance by the trial court in its instruction to the jury on the desecration claim.
The second argument advanced by Whitt is that the evidence presented at trial did not warrant submission of a cause of action for outrageous conduct to the jury. The tort of outrage was recognized in Alabama in American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1980), and was defined by the Inmon Court as follows:
394 So. 2d at 365. For an outrageous conduct count to be properly submitted to a jury, there must be "sufficient evidence from which permissible inferences could be drawn to support a finding of the extreme conduct necessary to constitute outrageous conduct." Empiregas, Inc. v. Geary, 431 So. 2d 1258, 1261 (Ala.1983).
Whitt contends that his conduct in reclaiming the land and his subsequent encroachment onto a portion of the quarter acre designated as a cemetery was accidental, and was by no means intentional. Neither the deed to the property purchased by Whitt nor the title examination with regard to that property revealed the existence of a cemetery on the 605-acre tract. However, evidence was presented to indicate that Whitt was aware that there was a cemetery on the property. Billy League, who had a lease on the property at the time Whitt bought it, testified that in the summer of 1983 he pointed out the general location of the cemetery to Whitt as they rode over the property in a truck. Sam Watson, who worked for Billy League on the farm, testified that before Whitt bought the property the cemetery was grown up "a little bit around the edges ... but inside the fence the cemetery was clean." Watson estimated the size of the cemetery to be "a quarter of an acre," and he stated that an old fence surrounded the whole cemetery with a newer fence inside it. Watson also testified as follows:
"Q. Did you ever at any time have an occasion to see Dr. Whitt doing any heavy equipment work near that cemetery?
"A. Yeah, I seen him down there around it pushing off around the edge of it.
"Q. Did you witness anybody else doing any heavy equipment work around that cemetery about that time?
"Q. Did you ever have a discussion with Dr. Whitt about that cemetery?
"Q. Tell the jury what happened. Why did you have this discussion with Dr. Whitt?
"A. Like I said, he was down there right at the edge of the cemetery pushing off and I thought I would go down there and let him know where the cemetery was. I didn't know he knew where the cemetery was at that time. I went down there and showed him the cemetery. He said he knowed the cemetery was there. He said Billy League had done told him the cemetery was there.
"A. Well, I told him, I said, there is a fence around it, and he stood there and talked to me for a few minutes and I got in the truck and drove off.
"A. He was on the bulldozer when I drove up. I drove the truck down there.
*905 "Q. From where you and he were talking, could you see the barbed-wire fence or the old fence around the cemetery?
"Q. After you had this conversation with Dr. Whitt, where did you go?
"A. I went back out to my mother's. She lived right there on the place, too.
"A. Yes, sir. I went down there, I guess, within an hour after the cemetery had been cleaned off. I went back down there.
"Q. How was it different when you went back down there about an hour later?
"A. It looked like to me a whole lot of it had been pushed off, the tombstones and stuff like that.
"Q. Did you see any periwinkle or cemetery plant down there before?
"Q. In your judgment how many of the tombstones had been pushed off?
"A. I wouldn't know that. I know there was a lot of them on the north side below where the tombstones were at that were gone.
"A. I would say five or six anyway; something like that. I know there was that many there. I would say there was that many there anyway.
Dorothy Johnson, a local genealogist, testified that she visited the Benjamin Ellis cemetery in January 1983 for the purpose of copying the inscriptions on the tombstones. Johnson described the area around the cemetery as a "jungle" with a thick undergrowth. She stated that she was surprised when she came upon the cemetery because "there was a clearing between the jungle and the cemetery itself." Johnson related that a "wire farm fence" surrounded a portion of the graves, with an entrance afforded by a wrought iron gate. She testified that outside the fence on the north side of the enclosed portion of the cemetery the ground was covered with Vinca minor, a traditional ground cover in old family cemeteries, and she observed there "the small tombstone of a Garner baby" and some "cemetery sinks." Johnson testified as follows regarding the changes she observed when she visited the cemetery in October 1983:
Whitt testified that he first saw the cemetery while working to clear the land on the south side of the cemetery, at which time he "stopped and got off and looked to see if there were any physical structures there that point out ... the boundaries of the cemetery." Whitt recounted that he searched for physical structures to ascertain the boundaries of the cemetery, which he determined to be 36 feet by 36 feet. Whitt then proceeded to operate the bulldozer "all of the way around the area that I ascertain[ed] to be the cemetery." Whitt denied that he damaged or destroyed any of the tombstones, the fence and gate, or *906 the Vinca minor inside the area that he considered to comprise the cemetery.
We are persuaded that sufficient evidence was presented to support the submission of the outrageous conduct count to the jury. The evidence at the very least supports an inference that Whitt acted recklessly in clearing the land around the cemetery where relatives of the plaintiffs were buried. We realize that there may be differences of opinion regarding the dividing line between merely offensive conduct and conduct that is atrocious and intolerable in a civilized society. Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984). Great respect is afforded the resting place of the dead. See Kerlin v. Ramage, 200 Ala. 428, 76 So. 360 (1917); and Bessemer Land & Improvement Co. v. Jenkins, 111 Ala. 135, 18 So. 565 (1895). This sentiment is repeated in Holder v. Elmwood Corp., 231 Ala. 411, 413, 165 So. 235, 237 (1936): "Our decisions lay much stress upon the sacredness of the resting ground of the dead ..., and the exclusive right of interment and possession being shown, guard the spot against unlawful invasion and give a right of action for any illegal interference...." Under the particular facts of this case, and in view of the deep human feelings involved, we find the evidence sufficient to support the claim of outrageous conduct, where the alleged act was the desecration and destruction of a portion of a family burial ground.
Whitt's third contention is that the trial court improperly allowed the jury to award punitive damages. Whitt claims that there is no evidence to support an award of punitive damages, citing Gulf Atlantic Life Ins. Co. v. Barnes, 405 So. 2d 916 (Ala.1981), for the proposition that punitive damages may be awarded only where there has been a showing of malice, willfulness, or wanton and reckless disregard for the rights of others. The record, however, contains evidence from which the jury could determine that punitive damages are proper. In Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 61, 300 So. 2d 94, 98 (1974), the Court stated:
The intent of the defendant was a question for the jury, Smith & Gaston Funeral Directors, Inc. v. Dean, 262 Ala. 600, 80 So. 2d 227 (1955), and we find no basis to disturb the finding of the jury with regard to the award of punitive damages.
The next argument advanced by Whitt is that the plaintiffs failed to prove any actual damages, and thus that they should be limited to a recovery of nominal damages only. Although the only testimony concerning the value of the land before and after the acts complained of was inconclusive, there was testimony regarding the cost to replace the wire fence surrounding the cemetery that was alleged to have been removed by Whitt. To recover punitive damages, a plaintiff must show at least nominal damages. Gulf Atlantic Life Ins. Co. v. Barnes, 405 So. 2d 916 (Ala.1981); Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So. 2d 94 (1974). The evidence in this case supports the jury's determination of nominal damages.
Whitt's fifth argument is that the trial court's determination of the cemetery boundary is manifestly unjust and erroneous. Whitt's major objection to the boundary as determined by the trial court is that a corner of the boundary juts into and interferes with the use of a delivery road surrounding a substantial farming and silo complex built by Whitt. The trial court received proposed surveys of the cemetery boundaries from the plaintiffs and from Whitt, along with their respective contentions as to the location of the boundaries. After viewing the cemetery site and examining the boundaries as proposed by the surveys, the trial court objected to Whitt's survey because it "came within inches of the foot of several graves and was designed so that none of the uses made of the property by the Defendant in proximity to the cemetery would be affected." Whitt *907 submitted a second proposed survey, which the trial court found "suffers only slightly less from the defects proposed in the Defendant's original proposal." In adopting the survey submitted by the plaintiffs as indicating the boundary of the cemetery, the trial court stated:
The trial court's determination of the cemetery boundary was based upon ore tenus evidence and upon the trial court's view of the site. Under our ore tenus standard of review, the findings of the trial court, when supported by evidence, are presumed to be correct and will not be disturbed on appeal unless the findings are plainly and palpably erroneous and manifestly unjust. Collins v. Windsor, 505 So. 2d 1205 (Ala.1987). The presumption of correctness is strengthened where the trial court makes a personal inspection of the property before making its findings of fact. Smith v. Smith, 482 So. 2d 1172 (Ala.1985); Darby v. Robbins, 409 So. 2d 722 (Ala.1981). Based upon the evidence presented to the trial court, we cannot say that its findings are erroneous or manifestly unjust.
The final argument presented by Whitt is that the trial court lacked jurisdiction to grant a right of ingress to and egress from the cemetery over the land belonging to Whitt to the plaintiffs and to all others with any interest in the cemetery. Whitt also contends that the owners of the cemetery should be required to pay for the use of the road over his property. On redirect examination, Whitt's attorney asked Whitt the following question: "Will you be willing to abide by whatever this court says the boundaries are for that graveyard and let these folks come and go as they please?" Whitt responded: "That is right, yes, sir." Because the issue of the right-of-way over Whitt's land to provide access to the cemetery was not raised in the trial court, we cannot consider that issue on appeal. City of Rainbow City v. Ramsey, 417 So. 2d 172 (Ala.1982); Hutchins v. Shepard, 370 So. 2d 275 (Ala.1979).
AFFIRMED.
TORBERT, C.J., and JONES, SHORES, ADAMS and STEAGALL, JJ., concur. | December 11, 1987 |
d7889a64-76fb-4b03-b9ed-079b3705f66d | Pilcher v. Dezso | 78 So. 2d 306 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 306 (1955)
Mary Lou PILCHER
v.
Erzsebet (Fleischner) DEZSO et al.
4 Div. 797.
Supreme Court of Alabama.
January 13, 1955.
Rehearing Denied March 10, 1955.
*307 J. Hubert Farmer, Dothan, for appellant.
W. G. Hardwick, Dothan, for appellees.
STAKELY, Justice.
Erzsebet (Fleischner) Dezso and others (appellees), next of kin of Margaret Hermine Pilcher, deceased, filed their bill to set aside a certain deed executed by Frank Pilcher, her surviving husband and executor of her last will and testament, and to have the real estate embraced in the deed sold for division among the next of kin as remaindermen of her estate. Copy of the will is attached to the bill as an exhibit and made a part thereof. The pertinent provisions of the will will be set out later in this opinion. There is also attached to the bill as an exhibit and made a part thereof the deed to which reference has been made. The court overruled the demurrer to the bill filed by Mary Lou Pilcher (appellant) and from that decree she brings this appeal.
The appellant bases her right to reversal on two theories, (1) that "it affirmatively appears from the bill that the complainants are enemy aliens of the United States of America and as such have no legal or equitable standing in this court and no legal or equitable right to bring this suit" and (2) that "under the terms and provisions of the will Frank Pilcher, the husband of testatrix and the executor of her last will and testament, was given the absolute power of disposition of the property involved without the necessity of any court order and this power was not limited to the necessities for his support, comfort and well-being."
I. It is the theory of the appellant that the bill shows on its face that since the appellees, who filed the bill, are residents of the country of Hungary and, therefore, reside in a satellite state of the Soviet Group, the complainants should not be allowed to prosecute their suit in the courts of Alabama. In § 1, Title 47, Code of 1940, it is expressly provided that an alien, resident or nonresident, may take and hold real property in this state. It is insisted, however, that since the complainants are residents of a country engaged in what is termed a "cold war" with this country, the statute does not apply and the present suit should be abated. We are entirely in sympathy with the idea that property located in this state should not be transferred to residents of the country of Hungary so as to aid Hungary in its efforts with the other Soviet countries to injure this country in its economic or material resources and to overthrow the government of the United States through the teachings of the International Communist Party. Our cases hold that the courts of this state will not allow an alien enemy to obtain a judgment in the courts of this state because he thereby adds to the resources of the power of which he is a subject. Lutz v. Van Heynigen Brokerage Co., 202 Ala. 234, 80 So. 72.
There is a difference between allowing the appellees to attempt to establish their title to land in this state and allowing the proceeds of land sold for division to be distributed to residents of Hungary. It is the distribution of such proceeds which should be safeguarded.
We do not feel that the allegations of the bill as against demurrer show any reason for abatement of the suit. The propriety of distribution of proceeds of the sale of the land, if any, should be determined when the case reaches that stage, if it ever does. There may be the danger that if distributive shares of the estate should be turned over to residents of Hungary the government of Hungary would confiscate the same and not only would the intention of the testatrix be thwarted but the government of Hungary thereby aided.
The State of Pennsylvania like this state has no statute covering the present situation. But in Pennsylvania the courts have impounded funds of aliens behind the Iron Curtain without benefit of legislation on the theory that it is the duty of the court to see to it that money in the hands of the court reaches the true owner and is not diverted *308 by his government into its own treasury. The Pennsylvania rule dates back to the days of Hitler and is presently used in cases of legacies or distributive shares belonging to residents of Russia and its satellites. In Re Stede's Estate, 38 Pa.Dist. & Co.R. 209, the court directed the funds of an estate to be paid to the Clerk of the Orphans' Court for the benefit of the legatees of an estate, subject to the further orders of the court, saying that "the people unfortunate enough to be involved are without the right to have or hold money except at the pleasure of the autocrat and all the assets of the German people are in a state of semiconfiscation or impressment for war purposes and this whether the owners of the assets are willing or not. * * * Indeed if notice were mailed to these legatees apprising them of this embarrassment of riches, there is no certainty that the communication would not be opened by some authority and pressure put upon them to acquire the funds for the purpose of confiscation." The court goes on to say that "If nobody else is going to protect them, the law of Pennsylvania will." Later the principle of In re Stede's Estate, supra, was applied in Re Zielinski's Estate, 73 Pa.Dist. & Co.R. 81, where the decedent died in 1948 and his heirs resided in Poland.
We understand that the practice of impounding distributive shares belonging to persons behind the Iron Curtain is now also in effect without legislation in Massachusetts, Michigan, Missouri, Nebraska and Vermont. Southern California Law Review, Vol. 25, No. 3, p. 313. We are not, however, aware of any decision by the courts of last resort in the foregoing states approving or disapproving the practice.
Accordingly in the instant case the court acted correctly in overruling the demurrer and in holding that the bill did not show on its face that the suit should be abated.
II. The deed executed by Frank Pilcher as surviving husband and executor of the last will and testament of Margaret Hermine Pilcher was executed pursuant to the following pertinent provisions of the will:
The appellant is claiming the property involved under the deed to which we have referred, while the appellees are claiming that the deed is void and that as remaindermen they are the owners of the property. The life tenant, Frank Pilcher, is dead. Primarily this litigation is to recover the estate of remaindermen after the death of the life tenant. Winn v. Winn, 242 Ala. 324, 6 So. 2d 401. Obviously to accomplish this result the deed must be set aside. Williams v. Spears, 235 Ala. 611, 180 So. 266.
There is a good deal of discussion in briefs as to the extent of the powers granted to Frank Pilcher under the will, it being contended by appellant that under the doctrine enunciated in Cain v. Cain, 127 Ala. 440, 29 So. 846, 847, the power conferred on Frank Pilcher cannot be narrowly confined to the purposes of sale expressed in the will. In that case the court said, "We hold that, though the power is expressed to be for a purpose, its exercise is bounded only by the donee's judgment and discretion in fulfilling that purpose, and that her discretion is not subject to be controlled by the courts." Cain v. Cain, supra.
But there is a point beyond which the donee of the power cannot go in the execution of the power. In Burton v. Jones, 212 Ala. 353, 102 So. 807, 808, the executor was given the power of sale "`with or without an order of court, as he may think best to the interest of the estate.'" The court said, "From this it results that he was given a discretion as to whether a sale should be made, and his judgment was conclusive if exercised in good faith. * * * His exercise of the power will be interfered with only for fraud or manifest abuse of discretion, neither of which is averred or proved in this case." See also Winn v. Winn, supra; Fillmore v. Yarbrough, 246 Ala. 375, 20 So. 2d 792; Yockers v. Hackmeyer, 203 Ala. 621, 84 So. 709.
This brings us to the allegations in the instant bill which we, of course, assume to be true on demurrer. They show bad faith and fraud, participated in by Mary Lou Pilcher, the grantee in the deed, and the appellant here. The allegations of the bill show that Frank Pilcher conveyed the real estate to his sister Mary Lou Pilcher within a few days after the death of the testatrix and without consideration. It is alleged that Frank Pilcher was not at the time such conveyance was executed in need and that he had sufficient assets and money of his own with which to provide *310 for his maintenance and support and that he was living in a house on the real estate involved which was owned by the testatrix. It is further alleged that there were substantial rents from the real estate and that there was a large sum of money, jewelry and bonds and other personal property which was more than sufficient to reasonably support and maintain Frank Pilcher and Mary Lou Pilcher. It is further alleged that the conveyance was made in bad faith and with intent to defraud the plaintiffs, the next of kin of testatrix. It is further alleged that Mary Lou Pilcher had notice that Frank Pilcher was disposing and conveying the real estate to her in bad faith with the intent and purpose of defrauding the plaintiffs who are the nieces and nephews and next of kin of Margaret Hermine Pilcher, deceased. It is further alleged that the foregoing conveyance is void and despite this that Mary Lou Pilcher is claiming all of the real estate by virtue of the deed executed as aforesaid. It is further alleged that "there is an actual controversy as to a justiciable question as between Mary Lou Pilcher and the plaintiffs and the other defendants and that this court ought to construe said will and the circumstances and conditions surrounding the execution of said warranty deed and determine the rights as between Mary Lou Pilcher and the other parties to this suit."
It is further alleged that on a determination by this court that Frank Pilcher was without authority and power to execute the conveyance to Mary Lou Pilcher and that the same is void, the land should be sold so that there may be a division of the proceeds between the next of kin and that the property cannot be equitably divided without a sale thereof.
The court acted correctly in overruling the demurrer to the bill of complaint. The rights of the parties with reference to the deed and a sale for division should be determined after proof is taken on the issues made by bill and answer. Betts v. Betts, 250 Ala. 479, 35 So. 2d 91; Grisham v. Grisham, 251 Ala. 340, 37 So. 2d 177; Fillmore v. Yarbrough, supra.
In view of the foregoing the decree of the court overruling the demurrer to the bill of complaint is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur, except that LAWSON and MERRILL, JJ., concur only in the result as to that phase of the opinion dealing with abatement of the suit. | January 13, 1955 |
a6df21b4-0e6f-4b4e-8dc9-62b2fcc2eb94 | Blankenship v. Blankenship | 82 So. 2d 335 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 335 (1955)
Ocie V. BLANKENSHIP
v.
Mary A. BLANKENSHIP.
8 Div. 773.
Supreme Court of Alabama.
August 18, 1955.
*336 Brewer & Coleman, Decatur, for appellant.
Britnell & McEntire, Decatur, for appellee.
GOODWYN, Justice.
On November 23, 1951, Mary A. Blankenship, appellee, filed a bill of complaint in the Morgan County Court, in equity, against her son Ocie V. Blankenship, appellant, to set aside and cancel a deed executed by her and her husband on October 1, 1942, conveying to appellant certain real estate located in Morgan County. At the time of filing the bill appellant was in the military service of the United States in Japan and service of the bill on him was effected by registered mail. The return receipt was received and filed in the register's office on December 28, 1951, and showed delivery of the summons and bill of complaint to appellant on December 14, 1951. On December 27, 1951, the following instrument was filed on behalf of appellant in said cause, viz.:
"State of Alabama Morgan County.
"Before me, the undersigned authority in and for the above named County, in said State, this day personally appeared J. W. Sherrill, Jr., the Solicitor for the above named Respondent, and upon being duly sworn, and says that he is informed and believes and upon such information and belief states that the said Ocie V. Blankenship, the respondent is now in the services of the Government of the United States of America, and that he is in the Armed Services of the United States at present, and that he is in Korea at this time, and that the respondent is unable to defend this suit at this time, and that the said respondent has a good and meritorious defense to this bill, and that he is unable to enter upon and advise his solicitor in the defense of this suit at this time. And that he is fighting at this time and was so fighting at the time that he received the notice of this suit.
"Wherefore the respondent, Ocie V. Blankenship, by and through his Solicitor prays that this Court will either quash the Bill of Complaint in this cause, and the service made on this respondent, or continue this cause until the said Ocie V. Blankenship, has been discharged from the Armed Services of His Country, so that he can properly defend this suit. And the respondent, through his Solicitor hereby pleads the benefits of the Soldiers and Sailors Relief Act, that was enacted for the benefit of citizens of the United States or her Allies, in such cases as the respondent's.
*337 On April 24, 1952, appellee filed a motion to have the court "make and enter an order, judgment or decree appointing a licensed practicing attorney at law in the State of Alabama to represent and defend the interests of the respondent, Ocie V. Blankenship, in the above styled cause, and that his solicitor of record, John W. Sherrill, Jr., be given notice of the time, place and date of the hearing of this motion". It is stated in the motion that "complainant * * * is the mother of the respondent, Ocie V. Blankenship, that she is over 80 years of age, and that this suit involves real estate and the setting aside of conveyances from complainant to respondent, that time is the essence of this suit and should be expeditiously handled."
Hearing of the motion was set for May 8, 1952, and notice of the hearing was served on "John W. Sherrill, the solicitor of record of the defendant herein on this April 25, 1952."
Also, on April 24, 1952, appellee filed notice that submission of appellant's motion of December 27, 1951, would be asked at the hearing on May 8, 1952. Copy of this notice was served on "John W. Sherrill, the solicitor of the record for Ocie V. Blankenship the defendant herein" on April 25, 1952.
On June 13, 1952, a decree was rendered denying appellant's motion to quash or continue the cause. The decree contains the following findings by the trial court:
It is also recited in the decree that a copy of appellee's motion of April 24, 1952, and the order setting the hearing on May 8, 1952, was served on John W. Sherrill, "solicitor of record for Ocie V. Blankenship, respondent in this cause, and that the said John W. Sherrill appeared in open court upon the hearing of said cause on May 8, 1952"; and that "the court is of the opinion, after a consideration of the evidence in support of the motion to have counsel appointed to represent the respondent, Ocie V. Blankenship, and to require the cause to proceed, that said motion is well taken." In the decree, the court appointed Sherman B. Powell, a practicing attorney of Decatur, Morgan County, "to represent and defend the interest of the respondent, Ocie V. Blankenship, upon the hearing of this cause but without excluding any counsel that the said Ocie V. Blankenship may employ to represent him in said cause." A copy of the decree was delivered to the respondent on June 24, 1952, by registered mail, as directed in the decree. The decree further provided that respondent should "plead, answer or demur to the bill of complaint in this cause within thirty (30) days from the date this decree is enrolled." The appointed attorney accepted the appointment on June 14, 1952, and thereafter appeared for and represented the respondent. There is no indication that Mr. Sherrill took any further part in the case. On July 14, 1952, the appointed attorney demurred to the bill. The demurrer was overruled on October 10, 1952. The appointed attorney then answered the bill on *338 October 14, 1952, denying its averments and demanding strict proof. Testimony of appellee's witnesses was taken on December 19, 1952, by deposition. The appointed attorney was present and cross-examined the witnesses. No testimony was taken on behalf of appellant.
Final submission of the cause was had on March 10, 1953, and final decree rendered on March 13, 1953, granting relief to appellee.
On March 26, 1954, appellant filed a motion for "a rehearing in said cause and to set aside and vacate the final decree * * and to permit the respondent to answer the bill of complaint." The motion, as last amended, recites the following:
Hearing of the motion was had on April 9, 1954, and on April 23, 1954, a decree was rendered denying it.
On May 20, 1954, appellant took an appeal from the decree of April 23, 1954, denying his motion for a rehearing. Submission was had here on January 18, 1955, (1) on appellee's motion to dismiss the appeal, (2) on the merits, and (3) on appellant's petition for mandamus, which is sought in event of a holding that appeal is not appropriate. The trial judge acknowledged service of the petition for mandamus and waived further service or notice.
A threshold question is whether the decree of April 23, 1954, denying appellant's motion of March 26, 1954, is appealable. It is apparent that the motion was made pursuant to § 520, 50 U.S.C.A. Appendix, 54 Stat. 1180, subdivision (4) of which is as follows:
Our view is that the decree denying the motion, or application, was a "final" decree within the meaning of Code 1940, Tit. 7, § 754, and will support an appeal.
One question presented, an answer to which will determine this appeal, is whether appellant can now claim the benefits of § 520(4), supra. As we see it, the right to such benefits is dependent upon whether there was "a default of any appearance by the defendant" (appellant) in appellee's suit. Section 520(1), 50 U.S.C.A.Appendix, 54 Stat. 1180, supra. As stated by the Supreme Court of North Carolina in Lightner v. Boone, 228 N.C. 199, 45 S.E.2d 261, 262:
It is to be noted that the instrument which appellant's solicitor filed in the suit on December 27, 1951, prayed that the court "either quash the bill of complaint in this cause, and the service made on this respondent, or continue the cause." Was this within the term "any appearance" as used in § 520, supra? We are constrained to hold that it was. As stated in Stone v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742, 745:
Appellant's insistence is that his appearance in the cause was strictly a special appearance for a limited purpose, and not a general appearance. But the benefits of § 520 are made to depend on an absence of any appearance, which includes a special as well as a general appearance. So, whether the appearance made was special or general is not material to the question. The meaning of the phrase was discussed in In re Cool's Estate, 19 N.J. Misc. 236, 18 A.2d 714, 716, 717, where it was said:
It is not disputed that the court had jurisdiction of both the subject-matter of the suit and of the parties. Nor is it disputed that appellant's solicitor was authorized to make the "special" appearance. Accordingly, we must hold that said appearance was such as to deny to appellant the benefits of § 520, supra. The decree of the trial court denying appellant's motion was free of error and is due to be affirmed. So ordered.
Motion to dismiss appeal denied; petition for mandamus denied; affirmed.
LAWSON, STAKELY, MERRILL and MAYFIELD, JJ., concur. | August 18, 1955 |
092e2f33-8831-4d55-87f4-7f4fa91f14e6 | Hamrick v. FIRST NAT. BANK OF STEVENSON | 518 So. 2d 1242 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 1242 (1987)
H.E. HAMRICK
v.
FIRST NATIONAL BANK OF STEVENSON.
No. 86-626.
Supreme Court of Alabama.
December 11, 1987.
Charles A. McGee, Fort Payne, for appellant.
Gerald R. Paulk of Livingston, Porter & Paulk, Scottsboro, for appellee.
STEAGALL, Justice.
H.E. Hamrick appeals from the judgment of the Jackson County Circuit Court in favor of the plaintiff, First National Bank of Stevenson ("Bank"). We affirm.
The Bank's complaint alleged that Hamrick had executed a promissory note on behalf of Hamrick Construction Corporation in the principal amount of $110,000, and that the note was in default. The Bank further claimed that Hamrick Construction Corporation was the alter ego of Hamrick, the sole stockholder of the corporation, and on that basis sought judgment against Hamrick individually. A default judgment was entered against Hamrick Construction Corporation, H.E. Hamrick d/b/a Hamrick Construction Company, and H.E. Hamrick individually. The default judgment against H.E. Hamrick individually was set aside, and the cause proceeded to trial. The trial court, after hearing the evidence, rendered judgment against Hamrick. The court determined that "H.E. Hamrick grossly abused the privilege of a separate corporate existence ... from the time these transactions were entered into by these parties, and that the separate corporate existence should be disregarded." On appeal, Hamrick contends that the evidence does not support the trial court's judgment.
Where a trial court hears ore tenus testimony, its findings of fact based upon that testimony are presumed correct if supported by competent evidence. Collins v. Windsor, 505 So. 2d 1205 (Ala.1987); Dennis v. Dobbs, 474 So. 2d 77 (Ala.1985). Those findings, if supported by the evidence or any reasonable inference therefrom, will not be disturbed on appeal unless they are plainly and palpably erroneous and manifestly unjust. Robinson v. Hamilton, 496 So. 2d 8 (Ala.1986); First Alabama Bank of Montgomery, N.A. v. Coker, 408 So. 2d 510 (Ala.1982). The trial court in this case found that a combination of factors justified disregarding the separate corporate existence. The court stated its findings with regard to those factors as follows:
We find that the evidence in this case supports the judgment of the trial court.
The promissory note on which the Bank bases its claim was executed by Hamrick, as president of Hamrick Construction Corporation, on May 27, 1983. This note, in the principal amount of $110,000, was a consolidation of four notes of the corporation. The last of the four notes had been executed on March 29, 1987, at which time the Bank made a $50,000 cash advance to Hamrick Construction Corporation.
Prior to the making of the consolidation note, the Bank requested a current financial statement. On April 21, 1983, Hamrick forwarded to the Bank a copy of his corporate financial statement as of June 30, 1982. The president of the Bank testified that he reviewed that financial statement and that he relied on it in deciding to renew the corporation's credit. The corporate financial statement listed as an asset a parcel of land in Rainsville, Alabama, valued at $200,000. Hamrick did not disclose to the Bank that this parcel had been conveyed to his wife for her assumption of the $35,000 mortgage on the property.
The record also discloses that on April 1, 1983, the title to a number of vehicles and items of equipment was transferred from Hamrick Construction Corporation to Hamrick individually. Hamrick subsequently transferred title to those items to his wife or to other family members. The transfer of those assets was not disclosed to the Bank, although the items were listed as assets of the corporation on the financial statement.
Also included on the corporate financial statement were accounts receivable from the Rainsville Housing Authority and the Boaz Housing Authority. Over $125,000 was received as proceeds from these accounts receivable in December 1984. Hamrick received these funds in the form of a check from his attorney, and Hamrick then had the funds converted to cashier's checks made payable to Hamrick Construction Corporation. Hamrick subsequently endorsed the checks as president of the corporation, and he cashed the checks. Hamrick testified that he paid himself over $14,000 as repayment for loans he had made to the corporation. Hamrick paid himself $111,000 as back salary, based on a resolution of Hamrick Construction Corporation approved on September 11, 1981, that authorized such repayment "retroactively to September 16, 1981, at such time as the Corporation's financial condition improved sufficiently to warrant such action." The trial court determined that the wages alleged to be due Hamrick were not a legitimate obligation of the corporation.
Hamrick contends that any transaction involving the corporation and himself individually was either an arm's length transaction or one giving money to him which was used to satisfy corporate obligations. According to Hamrick, the evidence is not sufficient to overcome the presumption that "a corporation is a separate and distinct legal entity from its shareholders, officers and directors." Forester & Jerue, Inc. v. Daniels, 409 So. 2d 830, 832 (Ala. 1982). However, this rule may be disregarded under proper circumstances, as recognized in Cohen v. Williams, 294 Ala. 417, 420, 318 So. 2d 279, 281 (1975):
Citing Cohen, the Court stated in Barrett v. Odom, May & DeBuys, 453 So. 2d 729, 732 (Ala.1984), that "[a] corporation and the individual or individuals owning all its stock and assets can be treated as identical, even in the absence of fraud, to prevent injustice or inequitable consequences." Whether personal liability should be imposed upon Hamrick as the alter ego of Hamrick Construction Corporation is a question of fact. Alorna Coat Corp. v. Behr, 408 So. 2d 496 (Ala.1981); Woods v. Commercial Contractors, Inc., 384 So. 2d 1076 (Ala.1980). The trial court's determination *1244 of that question was adverse to Hamrick.
After reviewing the testimony and other evidence presented to the trial court, we conclude that the findings of the trial court are supported by the evidence and are not plainly erroneous or manifestly unjust. Accordingly, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur. | December 11, 1987 |
388041e7-de92-4aa6-a98b-ff78ce9aec3f | ALA. FARM BUR. MUT. CAS. INS. v. Brewton | 517 So. 2d 599 | N/A | Alabama | Alabama Supreme Court | 517 So. 2d 599 (1987)
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC.
v.
John K. BREWTON and Shirley C. Brewton.
86-325.
Supreme Court of Alabama.
November 20, 1987.
*600 Reggie Copeland, Jr. of Nettles, Barker, Janecky & Copeland, Mobile, for appellant.
James E. Hart, Jr., Brewton, and W.E. Garrett, Atmore, for appellees.
BEATTY, Justice.
This is an appeal by plaintiff, Alabama Farm Bureau Mutual Casualty Insurance Company, Inc. ("Farm Bureau"), from a judgment for defendants, John K. and Shirley C. Brewton, on defendants' counterclaim in plaintiff's declaratory judgment action. We reverse and remand.
For the factual background of this case, see Brewton v. Alabama Farm Bureau Mutual Casualty Ins. Co., 474 So. 2d 1120 (Ala.1985). Briefly, on the first appeal of this case, this Court reversed the summary judgment that had been entered in favor of Farm Bureau and remanded the case for further proceedings on defendants' counterclaim based upon fraud.
After remand, the Brewtons amended their counterclaim to include a claim for negligence. Trial by jury ensued, with Farm Bureau's motions for a directed verdict, made at the close of the Brewtons' case and again at the close of all the evidence, being denied. The jury returned a verdict for the Brewtons in the amount of $40,000the sum of "$30,000 Damages" and "$10,000 Punitive Damages." Farm Bureau's post-judgment motions were denied, and this appeal followed.
Farm Bureau has presented several issues for our consideration, among them being the following: "Whether the trial court committed reversible error in allowing the policy declarations sheet and proof of loss into evidence." Because we have concluded that the trial court erred to reversal on this issue, it is unnecessary to consider other issues presented.
Prior to trial, Farm Bureau moved in limine to pretermit the admission into evidence of any references to the amount or dollar value of the contract claim under the policy. The grounds for this motion were: (1) that the Brewtons had no insurable interest in the property covered by the policy, as a matter of law, and (2) that this evidence would be of no probative value. Apparently this motion was not ruled upon.
During the ensuing trial, the Brewtons called Robert Woodall as an adverse witness. Mr. Woodall was the Farm Bureau agent with whom the Brewtons had dealt. The following testimonial exchange occurred pertinent to this issue:
This was followed by questions and answers relating to the contents of the declaration:
Although Farm Bureau's timely objection was to the identification of Exhibit 3 rather than to the admission of its contents, and thus renders the utilized procedure somewhat convoluted, nevertheless it is clear that the parties and the court understood, perhaps because of the motion in limine, that the objection initially made went to the contents of the declaration, i.e., the dollar amounts of coverage. Indeed, the Brewtons' lawyer "understood that." We find, therefore, contrary to the Brewtons' argument, that the objections to the contents of the declaration and the proof of loss, which was similarly treated, were timely made, and thus that the issue was preserved for review.
The Brewtons contend that the dollar amounts of coverage were relevant on their claim for fraud, and they explained their position in their brief:
We respectfully disagree with that position. In the previous case, this Court found that the Brewtons had no insurable interest in the property covered by the policy of insurance and held that the contract of insurance was unenforceable. Thus, the contractual, or policy, benefits *602 could not be considered ipso facto as actual damages suffered through the alleged fraud against the Brewtons. Indeed, actual damage is an essential element of a fraud cause of action, Pihakis v. Cottrell, 286 Ala. 579, 243 So. 2d 685 (1971), and although the Brewtons here did prove the loss of their premium payment, they did not prove, and could not prove, any loss to themselves under the policy of insurance. Payment of the premium and the loss of the time value thereof constituted actual damage, National States Ins. Co. v. Jones, 393 So. 2d 1361 (Ala.1980), but, in accord with our earlier decision, payment of that premium did not entitle the Brewtons to recover under the policy for any loss to the subject property. The admission of the evidence complained of, on the other hand, allowed the jury to consider the policy amounts as evidence on which to make an award of damages, but damages awarded on that basis would be damages that, as a matter of law, the Brewtons could not recover. For this error, we must reverse the judgment and remand the cause. It is so ordered.
REVERSED AND REMANDED.
TORBERT, C.J., and ALMON, HOUSTON and STEAGALL, JJ., concur. | November 20, 1987 |
8d042835-3a2e-402b-b808-876b44557be8 | Riddlesprigger v. Ervin | 519 So. 2d 486 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 486 (1987)
Tina RIDDLESPRIGGER,
v.
Monty ERVIN.
86-1567.
Supreme Court of Alabama.
December 23, 1987.
*487 James A. Ward III, Dothan, for appellant.
J. Huntley Johnson of Johnson, Huskey, Hornsby & Etheredge, Dothan, for appellee.
STEAGALL, Justice.
In this case plaintiff Tina Riddlesprigger appeals from the trial court's sua sponte involuntary dismissal at trial of her action against defendant Monty Ervin for want of prosecution. We reverse.
The complaint was filed on November 2, 1984, and sought recovery of compensatory and punitive damages for malicious prosecution. On January 18, 1985, the defendant filed a motion to dismiss, which was denied, and she filed an answer to the complaint on August 21, 1985. On March 2, 1987, the trial court dismissed the action, with this order: "This case has been pending in this Court for at least six months without action, and is hereby dismissed without prejudice for want of prosecution. Clerk to notify." It should be noted, however, that the practical effect here is a dismissal with prejudice, because, prior to the dismissal, the statute of limitations on Riddlesprigger's cause of action had expired. The plaintiff then moved the court to vacate its order and to set the cause for trial. Following a hearing, this motion was denied. The plaintiff subsequently moved the trial court to reconsider its ruling and also filed a motion to supplement the record pursuant to Rule 10(f), A.R.App.P. The motion to reconsider was denied and the motion to supplement was granted. The sole error asserted on appeal is that the trial court erred when it dismissed the plaintiff's claim for want of prosecution.
Dismissal of actions is governed by Rule 41, A.R.Civ.P. Rule 41(b) provides, in pertinent part:
Rule 41(b) has been construed to mean that a trial court has the inherent power to dismiss a cause for want of prosecution or for failure to comply with court rules or orders. Ryder Int'l Corp. v. State, 439 So. 2d 162 (Ala.Civ.App.1983). Accord, Link v. Wabash R.R., 370 U.S. 626, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962). Such a dismissal is generally considered to be within the sound discretion of the trial court and will be reversed on appeal only for an abuse of that discretion. Whitehead v. Baranco Color Labs, Inc., 355 So. 2d 376 (Ala.Civ.App.1978). It need only be determined, upon appellate review of a trial court's action under Rule 41(b), whether the ruling is supported by the evidence. Strickland v. National Gypsum Co., 348 So. 2d 497 (Ala.Civ.App.1977); Nettles v. First Nat'l Bank, 388 So. 2d 916 (Ala.1980).
Riddlesprigger, in her supporting brief, argues that the trial court's dismissal "under these circumstances is manifestly unjust, plainly and palpably erroneous and is an abuse of discretion." Upon review of the record, we agree.
As this Court has heretofore observed:
REVERSED AND REMANDED.
TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur. | December 23, 1987 |
430dc9f6-ae4e-4c15-a768-efbf7711f807 | TM HEAD v. Local Union No. 83, Journeymen Barbers | 77 So. 2d 363 | N/A | Alabama | Alabama Supreme Court | 77 So. 2d 363 (1955)
T. M. HEAD (Tom Head Barber Shop),
v.
LOCAL UNION NO. 83, JOURNEYMEN BARBERS et al.
6 Div. 767.
Supreme Court of Alabama.
January 13, 1955.
*364 Lange, Simpson, Robinson & Somerville, Jas. A. Simpson and Chas. B. Robinson, Birmingham, for appellant.
J. L. Busby and Earl McBee, Birmingham, for appellees.
MERRILL, Justice.
Appeal from an interlocutory decree overruling demurrer to the bill of complaint. Complainants are Local Union No. 83, Journeymen Barbers, Hairdressers, Cosmetologists and Proprietors' International Union of America, and Journeymen Barbers, Hairdressers, Cosmetologists and Proprietors' International Union of America. Respondent and appellant is T. M. Head, who does business as "Tom Head Barber Shop" and who, it is alleged, "habitually works with the tools of the trade in his said barber shop."
The purpose of the bill is to prevent appellant from retaining and displaying the Union Shop Card which is the property of the International Union and was placed in the custody or possession of appellant under an agreement executed on October 14, 1952, which is Exhibit C to the bill and the pertinent part of which is as follows:
*365 The union shop card is made an exhibit but it is specifically averred that the following provision appears on the reverse side of the card:
It is also averred in the bill that:
Complainants also allege that:
In addition to the prayer for process and general relief, the prayer of the bill is as follows:
Respondent demurred to the bill as a whole; to the aspect which seeks to have the Respondent restrained from displaying the union shop card, and to the aspect which seeks to have the respondent comply with the requirement of union membership or in the alternative surrender said union shop card to complainants. The demurrer was overruled and appellant appealed.
The matter presented here is similar to that considered in 1951 in Foutts v. Journeymen Barbers, Hairdressers & Cosmetologists' International Union of America, Local No. 105, 155 Ohio St. 573, 99 N.E.2d 782, 785, the only material difference being that there the proprietor barber sought to enjoin the union from removing the union shop card. In that case the court said:
In the case of Rainwater v. Trimble, 207 Ga. 306, 61 S.E.2d 420, 421, cited in the Foutts case, the court said:
We concur with the statements we have quoted from the Ohio and Georgia cases respecting the right of removal of the union shop card in this case. We also note that in each of these cases the union membership offered the proprietor was limited or inferior, while here the appellant was "entitled to equal rights of membership, including the right to vote and hold office."
Appellant, in his very ingenious brief, contends that the principles of the Foutts case and the Rainwater case do not apply because the agreement between appellant and the union is unlawful in that it is in conflict with Code of 1940, Title 26, § 391 (Pocket Part), which reads, in part, as follows:
That section applies to an employee, not to an employer, as is appellant Head and it cannot render the agreement here unlawful.
It is also contended that the contract is in violation of Article 4, §§ 375(1) to 375(6), Title 26 (Pocket Part), denominated "Right to Work". Section 375(7), Title 26 states:
Therefore, if the agreement was lawful, and we so hold, the "Right to Work" statute has no application by its very terms. However, we would not be understood as holding that it would apply to the instant case even in the absence of Section 375(7), supra.
The decree of the lower court overruling the demurrer is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | January 13, 1955 |
1a231346-d517-40d3-82fc-f0f9f43b1067 | Fouts v. Beall | 518 So. 2d 1236 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 1236 (1987)
Tom A. FOUTS
v.
Richard E. BEALL.
86-30.
Supreme Court of Alabama.
December 4, 1987.
*1237 Allan R. Chason of Chason & Chason, Bay Minette, for appellant.
Taylor D. Wilkins, Jr., of Wilkins, Bankester & Biles, Bay Minette, for appellee.
STEAGALL, Justice.
Tom A. Fouts appeals from three aspects of the trial court's judgment declaring the rights of Fouts and Richard E. Beall with respect to their property and denying certain injunctive relief to Fouts. We affirm.
Prior to June 17, 1981, the real property that is the subject of this case was owned by James S. Farrior. The property, which was a single parcel at that time, fronted on Mobile Bay near Montrose in Baldwin County for a distance of 259 feet along the west line of the property. (See Appendix.) The improvements on this property consisted of two residential houses and a pier onto *1238 the waters of Mobile Bay. On June 17, 1981, Farrior divided the property into two parcels by selling the easternmost 236 feet, including one of the houses (parcel 1 on the Appendix), to Fouts. In the conveyance to Fouts, Farrior expressly conveyed the following described easement:
On September 12, 1981, Farrior sold the westernmost parcel of property (parcel 2 on the Appendix) to Beall. The deed to Beall excepted the beach access easement, using language substantially identical to that used in the deed to Fouts. In addition, Beall was granted a 20-foot-wide roadway easement for ingress to and egress from his property. This easement runs through the property purchased by Fouts and was excepted in Farrior's deed to Fouts.
Approximately one and a half years after Beall and Fouts became neighbors, personal problems arose between them. These problems continued through the trial of this case in the circuit court.
In late 1985, Fouts proposed to construct a pier appurtenant to the beach access easement and applied to the Army Corps of Engineers for a permit to do so. Beall filed a formal objection to the construction of the pier with the Corps of Engineers. As a result of this objection, the Corps of Engineers refused to process the pier permit application until a determination was made as to whether Fouts held a sufficient property interest to entitle him to construct a pier.
On February 14, 1986, Beall filed a complaint in the Circuit Court of Baldwin County, seeking (1) to enjoin Fouts from obstructing or interfering with his roadway easement; (2) to enjoin Fouts from harassing and intimidating him; (3) to enjoin Fouts from trespassing on his property; and (4) to enjoin Fouts from firing or throwing any projectile across his property. Fouts filed an answer denying the allegations of Beall's complaint and a counterclaim alleging that Beall had damaged the roadway easement with a bulldozer and that Beall had no right to object to his construction of a pier from his beach access easement. In his counterclaim, Fouts requested a judgment declaring that Fouts could cut trees and undergrowth from the beach access easement; that Fouts owned an interest in the beach access easement that would allow him the right to build a pier from the easement; and that Fouts was not limited to the use of the beach and shores of Mobile Bay inside the width of the easement but could use the beach extending across Beall's property. Fouts also sought to enjoin Beall from constructing a six-foot high concrete wall along the common boundary between their property.
After conducting several hearings, the trial court, sitting without a jury, entered a final judgment that (1) permanently enjoined the parties from intimidating or harassing each other; (2) declared the respective rights and responsibilities of the parties for the use and maintenance of the roadway easement; (3) held that Fouts's beach access easement was not a sufficient property interest to entitle him to construct a pier; (4) provided for the removal of obstructions by Fouts from the beach access easement; (5) held that Fouts is not entitled to use any portion of the area that lies beyond the boundaries of the beach access easement; and (6) refused to enjoin Beall from the construction of a concrete wall along the common boundary.
Fouts's motion for a new trial was denied, and Fouts appealed. He specifically appeals from (1) the denial of the right to construct a pier appurtenant to the beach access easement; (2) the denial of the right to use the area beyond the boundaries of the easement; and (3) the refusal to enjoin Beall from constructing a concrete wall along the common boundary.
Both Fouts and Beall argued at trial that the language in the easement grant was ambiguous. Fouts argued that the easement grant included the right to construct a pier, while Beall argued that the easement grant conveyed only the right of pedestrian access to the beach.
The question of whether a particular instrument is ambiguous is a question of law for the trial court. Alonzo v. Sanford, 465 So. 2d 1131 (Ala.Civ.App.1984). In this case, the trial court determined that the language in the easement grant was ambiguous, and we agree.
If the language of an instrument is ambiguous in any respect, the surrounding circumstances and the construction placed on the language by the parties may be taken into consideration in determining the meaning of the instrument. City of Montgomery v. Maull, 344 So. 2d 492 (Ala. 1977). Furthermore, the intent of the parties may be ascertained by parol evidence. Mayo v. Andress, 373 So. 2d 620 (Ala.1979). When evidence of the intent of the parties is in dispute, it is a fact question to be determined by the trial court, and its findings will be presumed to be correct unless plainly erroneous or manifestly unjust. J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834 (Ala.1981), and Mayo v. Andress, supra.
Fouts first argues that the testimony of Farrior, the grantor of the property, was inadmissible for purposes of determining his intent in conveying the easement. Fouts specifically argues that Farrior had never formed any intent with respect to the construction of a pier at the time he conveyed the easement.
Rulings as to the admissibility of evidence rest largely within the discretion of the trial court and will not be disturbed on appeal in the absence of a gross abuse of discretion. Russellville Flower Craft v. Searcy, 452 So. 2d 478 (Ala.1984). The trial court, finding that Farrior did form an intent at the time he conveyed the easement, admitted portions of Farrior's deposition testimony relating to his intent at that time. Farrior testified that he intended to convey only a pedestrian easement, which did not include the right to construct a pier. We cannot say that the trial court abused its discretion by admitting portions of Farrior's testimony.
The only evidence presented with respect to the intent of the parties was that of Farrior. The trial court considered this evidence and found that Farrior intended to grant a beach access easement limited to pedestrian traffic only. We find that the trial court's construction of the easement is reasonable and does not produce an unjust result. See Alonzo v. Sanford, supra.
The same general principles of construction of the language of an instrument, as stated in the foregoing discussion, apply to this issue. However, we note that the ore tenus presumption of correctness applies only to the resolution of disputed facts and that if the facts are undisputed, the appellate court must determine whether the trial court misapplied the law to the facts. Home Indemnity Co. v. Reed Equipment Co., 381 So. 2d 45 (Ala.1980).
The trial court defined "beach" as that word is used in the document creating the easement to mean the soft sandy area between the mean high tide line and the vegetation line, which area is privately owned by Beall and is not subject to use by the public. The trial court determined that Beall's west property line extends to the mean high tide line of Mobile Bay. (See Appendix.) Considering this definition of the word "beach" in this particular document, the trial court held that Fouts was entitled to use any portion of the soft sandy area of Mobile Bay that lay between the waters of the bay and the mean high tide line, which area was not owned by Beall, in the same manner as any member of the public. The trial court also held that Fouts was entitled to the complete use of the area within the 10-foot beach access easement, including that area between the mean high tide line and the vegetation line, but could not use any portion of the area *1240 between the mean high tide line and the vegetation line that lay outside the 10 feet.
Neither Fouts nor Beall disagrees with the trial court's definition of the word "beach" in the easement document. However, Fouts argues that the easement grant included the right to use the area that lay between the mean high tide line and the vegetation line, even that portion outside the 10 feet running along the south side of Beall's property. He argues that the trial court's ruling does not give him any rights different from the rights of any member of the public. We disagree with this construction of the trial court's decree. Under the easement before the trial court, Fouts was given a short cut to the bay that he otherwise would not have. Without this right of access, he would be required to use his automobile to drive to another area in order to attain access to the waters of the bay.
Fouts relies upon Anderson v. De Vries, 326 Mass. 127, 93 N.E.2d 251 (1950), as support for his argument that he is entitled to use the sandy area extending outside the width of the easement and across Beall's property. We find the facts in Anderson distinguishable from the facts in this case. In Anderson, residents of a sea shore resort were granted a 12-foot-wide easement to the beach. Considering the numerous lot owners involved and the fact that the width of the easement did not provide a sufficient area for use, the court found that the intentions of the parties were that the lot owners were to have access to the entire area above the mean high water mark, including that area outside the 12 feet. In the instant case, only one lot owner is involved and there is evidence to support a finding that it was intended that he be entitled to use only that portion of Beall's property that lay within the 10-foot boundaries of his easement. Accordingly, we find that the trial court did not misapply the law to the facts.
Fouts argues that the trial court should have enjoined the construction by Beall of a six-foot high concrete wall along the common boundary between their property. He asserts that the judgment of the trial court is not supported by the great weight and preponderance of the evidence. Fouts alleged that the wall was being built to harass, inconvenience, or damage him.
After hearing all the evidence and visiting the property, the trial court found that Beall was constructing the wall in order to protect his family and the enjoyment of his home from invasions of privacy by Fouts. The trial court heard testimony concerning numerous examples of Fout's disruptive and harassing conduct toward Beall and his family. We find that the judgment of the trial court is supported by the evidence and is not plainly or palpably wrong. See Davis v. Thomaston, 420 So. 2d 82 (Ala. 1982).
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur.
*1241 | December 4, 1987 |
e2361763-a1ca-4233-a917-d436950e6225 | McNairy v. Sugar Creek Resort, Inc. | 576 So. 2d 185 | N/A | Alabama | Alabama Supreme Court | 576 So. 2d 185 (1991)
Gerald R. McNAIRY
v.
SUGAR CREEK RESORT, INC., et al.
89-1495.
Supreme Court of Alabama.
February 1, 1991.
Jimmy Alexander and Linda B. Lloyd of Alexander, Corder & Plunk, Athens, for appellant.
Robert F. Tweedy of Roby & Tweedy, Decatur, for appellee Sugar Creek Resort, Inc.
Alicia J. Putt of Smyer, White & Putt, Birmingham, for appellee C & S Family Credit of Alabama, Inc.
SHORES, Justice.
Gerald R. McNairy, a contractor, cleared and graded 647 acres owned by defendant Sugar Creek Resort, Inc. ("Sugar Creek"). McNairy sued Sugar Creek to recover by a mechanic's lien the amount due under his contract with Sugar Creek. McNairy also named Nan M. Moyers and C & S Family Credit as defendants, because these two parties hold mortgages on the land cleared. The Circuit Court of Limestone County granted Sugar Creek's motion for summary judgment. Because McNairy was not officially licensed on the date he began performance, the trial court believed he could not recover under his contract. McNairy appeals the summary judgment in favor of Sugar Creek. We reverse and remand.
McNairy filed an application for a general contractor's license with the State Licensing Board for General Contractors on July 6, 1987. McNairy also filed with the Board a confidential financial statement *186 and an authorization allowing AmSouth Bank to release information to the board concerning his account and credit experience with the bank. It was the bank's responsibility to furnish the necessary information on McNairy. Inadvertently, AmSouth failed to furnish the information until June 20, 1988; on that date, when AmSouth furnished the information, McNairy became officially licensed.
Under the initial contract between McNairy and Sugar Creek, McNairy agreed to begin work on the property on a credit basis, up to a value of $50,000. McNairy agreed to clear areas for golfing ranges and to build a road through Sugar Creek's property.
On April 28, 1988, Carroll Wright, president of Sugar Creek, signed a statement accepting and approving McNairy's bill for work performed in the amount of $56,262.50. As security for the payment for work completed thus far, on May 15, 1988, Sugar Creek executed and delivered to McNairy a mortgage on the property for $75,000.
Wright signed another updated bill on June 10, 1988, in the amount of $97,361.75, for more work performed by McNairy. Ten days later, McNairy became an officially licensed general contractor.
Wright continued to sign statements of approval indicating the amount Sugar Creek owed McNairy for services performed. On July 5, 1988, McNairy was owed $116,452.25. The amount increased to $121,992.50 on July 11, 1988. Wright signed and approved a statement for $142,055.75 on August 5, 1988. One week later, on August 12, 1988, Wright acknowledged that the amount due to McNairy was $148,941.75.
On August 16, 1988, Sugar Creek paid McNairy $77,866.44 as a partial payment on his account and as satisfaction in full of the mortgage and as payment of the interest that had accrued on the debt secured by the mortgage. The statement signed on September 20, 1988, reflected that $75,000, the amount of the mortgage, had been paid to McNairy, but that there was still $87,790.25 due.
Wright signed a final statement on July 3, 1989, which showed that McNairy was due $194,014 plus interest at 15%. McNairy ceased work at Sugar Creek. On July 13, 1989, he filed a sworn statement of claim for the amount indicated on the final statement signed by Wright, plus interest. On July 27, 1989, McNairy filed his claim under the contract for his mechanic's lien in order to recover the amount due for services rendered.
Sugar Creek filed a Chapter 11 bankruptcy petition on August 3, 1989. In its petition, Sugar Creek listed McNairy as a creditor to whom it owed $193,000. On November 22, 1989, the bankruptcy court ordered that the automatic stay be lifted so that McNairy could proceed with his claim in the state court.
The trial court's order granting Sugar Creek's motion for summary judgment states that McNairy is unable to recover from Sugar Creek. Because McNairy had not been licensed to do business in Alabama at the time of the formation of the contract, the trial court held that he could not recover under the contract or enforce his mechanic's lien. The trial court erred.
McNairy does qualify as a general contractor under § 34-8-1, Code of Alabama (1975), which states in pertinent part:
Section 34-8-2 requires McNairy to have a license from the State Contracting Board.
McNairy made an application to the Board on July 6, 1987, in order to obtain his general contractor's license. Although it was delayed, he obtained a valid license on June 20, 1988.
Even though the contract between McNairy and Sugar Creek preceeded the date of licensure, Sugar Creek repeatedly ratified and adopted the parties' initial contract. Wright's conduct after McNairy became licensed (specifically, accepting and approving the bills on July 5 and 11; August 5, 12, and 16; and September 20, 1988; and July 3, 1989) is substantial evidence of his ratification of their initial contract. These signed bills also evidence modifications to the original contract for $50,000. These modifications increased McNairy's duties and increased the amount due to $194,014 plus 15% interest.
Sugar Creek further recognized its obligation to McNairy in August 1988, when it made a partial payment of $77,866.44 for work that had been done by McNairy since he began on November 19, 1987. In fact, pursuant to Wright's instructions, McNairy did twice as much grading work after he was licensed as a general contractor than he had done before he obtained his license.
In Day v. Ray E. Friedman & Co., 395 So. 2d 54, 55 (Ala.1981), the plaintiff, who was a commodities broker, entered into an employment contract with the defendant, an account executive. The contract specified that the defendant was to operate the plaintiff's Birmingham office. In Day, the trial court had written:
395 So. 2d at 56. The ruling of the trial court in Day was affirmed by this Court on appeal.
In Day, the defendant sought to escape liability under its contract with the plaintiff on the ground that the plaintiff had not qualified to do business in Alabama at the time the contract was entered into. Ala. Code 1975, § 10-2A-247. That statute is not involved here, but the purpose of that statute is the same as the purpose of the statute relating to the licensing of general contractors. Those statutes are designed to penalize those who do business in Alabama without having qualified to do so, and, similarly, to penalize those who engage in the general contracting business without securing an Alabama license to do so.
In Day, this Court permitted recovery on the contract by a plaintiff who had qualified to do business in the state after he had entered into the contract with the defendant. This Court held that the purpose of the statute was not defeated by allowing the plaintiff to enforce the contract even though he had not been qualified to do business in Alabama at the time the contract was made.
The facts here are more compelling than those in Day. Here, McNairy agreed to do $50,000 worth of bulldozing work for Sugar Creek on credit. He applied for the license as a general contractor and deposited $200 in the form of a cashier's check, as required by the licensing board. He executed an authorization to his bank to release financial information to the board and then proceeded with the work. Unknown to him, through an oversight on the part of his bank, the financial information was not supplied to the board and the license was not issued until he had done some work.
McNairy continued to perform work for Sugar Creek, and its president, Carroll Wright, continued to acknowledge, both before and after the license was issued, that McNairy was entitled to receive payment for this work. We hold that the purpose of the statute is not defeated by allowing *188 McNairy to proceed to trial on his claim for monies due him for work and labor done under his agreement with Sugar Creek.
Decisions of the Eleventh Circuit Court of Appeals and the former Fifth Circuit support McNairy's argument that he is entitled to enforcement of his mechanic's lien because the contract was in fact ratified after licensure. See Aim Leasing Corp. v. Helicopter Medical Evacuation, Inc., 687 F.2d 354 (11th Cir.1982); Montgomery Traction Co. v. Montgomery Light & Water Power Co., 229 F. 672 (5th Cir.), cert. denied, 242 U.S. 628, 37 S. Ct. 14, 61 L. Ed. 536 (1916).
The trial court erred in entering Sugar Creek's summary judgment. That judgment is, therefore, reversed and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | February 1, 1991 |
5fa68401-fbb1-4d50-8cd9-b086e9a55d2d | Stokes v. Moore | 77 So. 2d 331 | N/A | Alabama | Alabama Supreme Court | 77 So. 2d 331 (1955)
H. E. STOKES
v.
Virgil C. MOORE et al.
1 Div. 623.
Supreme Court of Alabama.
January 13, 1955.
*332 Inge, Twitty, Armbrecht & Jackson, Mobile, for appellant.
Johnston, McCall & Johnston, Mobile, for appellees.
PER CURIAM.
This is an appeal by the respondent from a decree overruling his demurrer to a bill in equity authorized by section 755, Title 7, Code, and a decree ordering the issuance of a temporary injunction after a hearing as authorized by section 1057, Title 7, Code.
The complainants are partners and conduct a small loan business under the firm name of Reliance Finance Company in Mobile.
The bill alleges that on March 20, 1950 complainants entered into a contract with the respondent, H. E. Stokes, which provided for his employment by them as manager of their business. The purpose of the bill is to enjoin Stokes from violating the covenant of said agreement to the effect that in the event his employment is terminated for any reason he would not engage in the same or a similar line of business in Mobile either for himself or for another for a period of one year immediately following the termination of his employment. A copy of the contract is attached to the bill and made an exhibit. It provides for the employment of respondent by complainants without specification as to the length of time such employment shall continue, and provides for a monthly salary payable semi-monthly. It authorizes the respondent, in the event he desired to terminate the contract of employment, to tender his written resignation effective not earlier than two weeks from the date of said resignation.
Another provision in the contract is to the effect that on account of the special nature of respondent's employment, in the event of a violation of any of its terms or pledges stated in that paragraph, a restraining order or injunction may be issued against him in any court of equity and that said court may assess and enter judgment against him in favor of complainants in the sum of $500 as liquidated damages for each such violation unless upon investigation it is proven that the loss resulting from each such violation is in excess of that amount, in which case such judgment may be assessed and entered against him for the full loss of same. Among the pledges stated in said paragraph is the covenant not to engage in a similar line of business in Mobile for one year immediately following the termination of his employment with complainants.
The bill also alleges that the respondent began his employment under such contract with complainants on March 20, 1950, which is the date of its execution, as the manager of said finance company and served in that *333 capacity until the 24th day of August 1954, at which time he voluntarily quit said employment; and that on the next day thereafter he took a job of managing the Globe Finance Company, which was then set up by him and another as partners, and proceeded to engage in the same line of business in Mobile and was located only a short distance from the place of business of the Reliance Finance Company; and, further, that he breached said contract of employment by soliciting business from the former customers of complainants and communicated with them by mail, a sample copy of such communication being attached as an exhibit to the bill.
The prayer of the bill was that a temporary injunction issue enjoining the respondent from working for or engaging in the loan business in the city of Mobile for a period of one year in competition with the complainants; and further that a decree be rendered against the respondent in favor of the complainants in the sum of $500 as liquidated damages for a breach of said contract according to its stipulations.
The demurrer to the bill raised several questions with respect to its sufficiency, and on the hearing of the application for a temporary injunction an answer to the bill and affidavits were submitted for both complainants and respondent. These affidavits were principally devoted to the questions of whether such covenants are usual in contracts of that kind in Mobile, and whether it is customary to enforce them when they are set up in the contract and are violated; whether any actual damage has been sustained by the complainants on account of the breach of such covenants by the respondent, and whether the equities of the respective parties to the contract demand the issuance of a temporary injunction as prayed for.
As stated above, upon a consideration of the demurrer to the bill and of the application for a temporary injunction, the trial judge overruled the demurrer and ordered the issuance of an injunction enjoining and restraining the respondent from engaging in such competition in the city of Mobile for a period of one year from August 24, 1954 to August 24, 1955, upon complainants giving bond with good and sufficient sureties in the amount of $2,000 conditioned to pay all damages and costs which the respondent may sustain by the suing out of such injunction if the same is dissolved as having been improvidently issued. That is not exactly the condition of the bond required by section 1043, Title 7, Code.
It is evident that the decree ordering the injunction was intended to order a temporary injunction, whereas its effect is to make it operative during the entire period of one year from the date of the termination of employment as provided in the agreement. That means that such order for a temporary injunction grants the entire injunctive relief sought by the bill and available only in the final decree. The order here made for the injunction is not in the form of a final decree and evidently not so intended by the parties and the court, yet it has the injunctive effect of a final decree. Attention is called to the requirement of a bond as a condition to the issuance of a writ, although neither a bond nor a writ of injunction is necessary in a final decree. The order as made is permanent for the period specified in the contract and the prayer for relief. If a temporary injunction is intended, the order should be for the issuance of the writ as prayed for to be effective until further orders of the court but not beyond August 24, 1955, conditioned upon the execution of a bond as provided in section 1043, Title 7, Code. See, 43 C.J.S., Injunctions, § 207, page 936.
On the merits to be considered on this appeal appellant cites Hill v. Rice, 259 Ala. 587, 67 So. 2d 789, which discusses principles here applicable. In the consideration of those principles it must be kept clearly in mind that the bill may not be subject to demurrer, but on the facts presented by the answer and affidavits a temporary injunction should not issue. We will therefore first consider that question.
Section 23, Title 9, Code, has withdrawn from consideration some matters otherwise important. Rush v. Newsom Exterminators, Inc., Ala., 75 So. 2d 112. To *334 enjoin one from breaching a covenant not to be employed in competition with another, and therefore in effect for a specific performance of his contract was, without the statute, encumbered with important principles not applicable since the enactment of the statute. 43 C.J.S., Injunctions, § 84, page 571 et seq. The statute has fixed the public policy of this State in respect to employment contracts. To be enforceable under it there must be an employment contract mutually binding or executed by the employer in such manner as to provide valuable and reasonably adequate consideration for the contract of the employee, Hill v. Rice, supra [259 Ala. 587, 67 So. 2d 793], whereby the employee agrees "to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city, or part thereof, so long as * * * such employer carries on a like business therein."
The contract here involved complies with those requirements when considered in connection with the facts alleged in the bill and affidavits. The contract does not in terms bind the employer for any definite time, but it is shown that the parties acted upon it from March 20, 1950 to August 24, 1954 when the employee voluntarily terminated the employment without alleging any fault on the part of the employer inducing it, and immediately began to operate a competitive business in the city of Mobile in direct conflict with his covenant. The compliance with the contract by the employer by giving respondent employment from March 20, 1950 to August 24, 1954 with apparent willingness to continue to do so for an indefinite period in the future provided a valuable and adequate consideration for the covenant of the employee to continue as expressed in the contract, although it was unilateral at its inception. It results that we find a valid contract supported by a sufficient consideration with covenants to be operative only in the city of Mobile and to extend for only one year. But a contract of that sort does not always justify the issuance of an injunction against its breach. In our case of Shelton v. Shelton, 238 Ala. 489, 192 So. 55, this Court carefully considered and declared the circumstances which would give rise to an injunction. It was held that an injunction is largely a discretionary remedy to prevent substantial injury where no adequate remedy at law obtains. It must not only be violative of the contract, but must be carried on in competition with the former employer, and inadequacy of legal remedy may arise from inability to prove with certainty the extent of the injury required for a recovery of damages at law, or from the insolvency of the employee violating his contract. Ordinarily an injunction will not be granted where the contract is inequitable and unfair so as not to appeal to the conscience of a court of equity. It was further emphasized that an injunction should issue when the contract is not per se illegal or oppressive; between persons dealing at arms' length; with the presence of freedom in making it, and not arbitrarily enforced by the employer so as to work an unnecessary hardship on the employee. It was held that the injunction was properly issued in that case. See, also, Slay v. Hess, 252 Ala. 455, 41 So. 2d 582.
There is here no allegation of insolvency by the employee. The contract contained a provision for liquidated damages in the sum of $500 for each violation. There was only one breach of that covenant in the contract, which breach was continuous in its nature. Damages could not be recovered, though liquidated by the contract, and at the same time an injunction issue. The amount stipulated for liquidated damages covers the period of its breach for one year and if there is an injunction effective during the year or any part of it, liquidated damages would not be recoverable. But that status is not a defect in the bill subjecting it to demurrer on that ground. While the prayer is not in the alternative for an injunction or liquidated damages, that is not a defect.
Complainants have seen fit to press for an injunction. Their claim for liquidated damages is not a matter for present determination except as it may affect the right to a temporary injunction. The provision *335 in the contract for liquidated damages will not operate to prevent an injunction even though the employee is not insolvent, unless it appears from the contract that the provision for liquidated damages was intended to be the exclusive remedy for its breach. 43 C.J.S., Injunctions, §§ 80(6), 84, pages 556, 574. Here it is apparent from the contract that liquidated damages were not intended to be the exclusive remedy for a breach of that covenant, for the contract provides that if this covenant is breached "a restraining order or injunction may be issued and entered against me (employee) in any court of equity jurisdiction, and that such court may assess and enter judgment against me in favor of your company for the sum of five hundred dollars ($500.00) as liquidated damages for each such violation".
We do not wish to express the view that an agreement for the issuance of an injunction, if and when a stipulated state of facts arises in the future, is binding on the court to that extent. Such an agreement would serve to oust the inherent jurisdiction of the court to determine whether an injunction is appropriate when applied for and to require its issuance even though to do so would be contrary to the opinion of the court. The following authorities are pertinent in that respect: Sections 16 and 17, Title 20, Code; 17 C.J.S., Contracts, § 229, page 603; Headley v. Aetna Ins. Co., 202 Ala. 384, 80 So. 466; Merchants' Grocery Co. v. Talladega Grocery Co., 217 Ala. 334, 116 So. 356; John Hancock Mutual Life Ins. Co. v. Large, 230 Ala. 621, 162 So. 277.
But the provision in the contract for the issuance of an injunction is expressive of the intention of the parties that the provision for liquidated damages was not to be the exclusive remedy. The result is that the right to an injunction is not foreclosed by the provision for liquidated damages. We also think the provision for an injunction is important in its influence upon an exercise of the discretionary power of the court to grant a temporary injunction.
The evidence shows that respondent set up a competitive business in close proximity to that of complainants. We infer from the evidence that the amount of business done by a small loan enterprise is largely the result of the activity of the manager and affected by personal influences which are not measurable in their effect. It was shown that as manager of a rival business respondent did contact former customers of complainants. His stationery and communications show that he has been making personal appeals contrary to the terms of his covenant, although there was no fault on complainants' part, but because he was able to obtain a better contract. He stipulated against such contingency, with full knowledge of its possible effect. The terms of his covenant and attendant circumstances do not show an unusual hardship resulting from an injunction of its breach. There is a reasonable limitation on the area and time in which the covenant is to extend.
We find no defect in the bill pointed out in the demurrer and insisted on by appellant. There was therefore no reversible error in overruling it. The order for a temporary injunction should be here modified to be effective from its date, December 1, 1954, until the further orders of the court, but not extending beyond August 24, 1955, upon complainants entering into bond payable and conditioned and with surety to be approved, all as provided in section 1043, Title 7, Code, and in the penal sum of $2,000 as prescribed by the trial judge. As thus modified, the order for a temporary injunction and decree overruling the demurrer to the bill 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 as modified
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur. | January 13, 1955 |
186cd2c7-44f3-48c1-bdd3-0e4de8e727c2 | Ex Parte Alpine Bay Resorts, Inc. | 518 So. 2d 113 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 113 (1987)
Ex parte ALPINE BAY RESORTS, INC.
(In re William P. TAYLOR, et al. v. ALPINE BAY RESORTS, INC.).
86-1125.
Supreme Court of Alabama.
December 4, 1987.
Kenneth Lee Cleveland of Cleveland & Cleveland, Birmingham, for petitioner.
Stephen P. Bussman and Charles A. McGee, Fort Payne, for respondents.
STEAGALL, Justice.
Alpine Bay Resorts, Inc. (hereinafter "Alpine Bay"), petitions this Court for a writ of mandamus directed to the Honorable David A. Rains, Judge of the Circuit Court of DeKalb County. Claiming improper venue, Alpine Bay seeks a transfer of the action filed against it by William P. Taylor and his wife, Carolyn J. Taylor, from DeKalb County to Jefferson County. The writ is granted.
The Taylors' complaint, which was filed in DeKalb County, alleges misrepresentation *114 by Alpine Bay in the sale to the Taylors of the use of a condominium at Alpine Bay Resort (hereinafter "the resort") under a vacation time-sharing plan. The resort is located in Talladega County. Alpine Bay filed a motion for change of venue, claiming that venue is improper in DeKalb County and is proper in Jefferson County. In support of that motion was the affidavit of Richard T. Stafford, which stated as follows:
William Taylor filed an affidavit in opposition to the motion for change of venue, stating as follows:
The trial court denied the motion for change of venue.
Alpine Bay subsequently filed a motion requesting that the court reconsider its denial of the motion for change of venue in order to give Alpine Bay an opportunity to respond to Mr. Taylor's affidavit. Attached to the motion for reconsideration was a second affidavit of Richard T. Stafford. In that affidavit, Stafford stated that Alpine Bay had never had an agent in DeKalb County and that the only personal contact Alpine Bay had with the Taylors occurred in Talladega County when the Taylors purchased a time-share unit at the resort. Stafford also stated that he believed that Leisure American Marketing, Inc., a company that had a contract with Alpine Bay to market time-share units at the resort, had sent advertisements soliciting the sale of time-share units to the Taylors and to others in DeKalb County. After the depositions of both Mr. Taylor and Mrs. Taylor were taken, the trial court heard and denied Alpine Bay's motion for reconsideration.
The applicable venue statute, Ala.Code 1975, § 6-3-7, provides:
In determining whether venue of a claim against a corporation is proper in a particular county, the definitive question is whether the corporation was doing business in that county. Ex parte Southtrust Bank of Tuskegee, 469 So. 2d 103 (Ala.1985). "When a party seeks review by writ of mandamus of an order transferring or refusing to transfer ..., we determine whether the lower court has sufficient facts before it to ascertain proper venue...." Ex parte Harrington Manufacturing Co., 414 So. 2d 74, 75 (Ala.1982). The writ of mandamus will not be granted unless the trial court abused its discretion or exercised its discretion in an arbitrary or capricious manner. Ex parte Wilson, 408 So. 2d 94 (Ala.1981).
The pleadings and depositions filed with the trial court provide sufficient facts for a consideration of proper venue in this case. These facts reveal that Alpine Bay's activities consisted of: mailing advertisements *115 for the resort to residents of DeKalb County; responding by telephone and by mail to inquiries and complaints of the Taylors after they had purchased a time-share unit; mailing the completed contract and other documents signed by the Taylors to them in DeKalb County; and mailing the Taylors statements for installments due under the note signed by the Taylors. In response to the advertisement for the resort, the Taylors traveled to the resort in Talladega County, where they met with a sales representative and purchased a time-share unit. The sales transaction occurred in Talladega County.
We hold that the activities of Alpine Bay are insufficient to support a finding that Alpine Bay was "doing business" in DeKalb County for venue purposes. This case presents a situation distinguishable from that presented in Ex parte Snoddy, 487 So. 2d 860 (Ala.1986). In Snoddy, the Court held that venue in an action against a moving company was proper in a county in which the moving company had "held itself out as doing business" by offering its moving services for hire through an advertisement in the yellow pages of the telephone directory for that county. The advertisement through the mail by Alpine Bay of the availability for sale of time-share units at the Talladega County resort does not constitute doing business by "holding itself out for business" in DeKalb County.
In City Stores Co. v. Williams, 287 Ala. 385, 252 So. 2d 45 (1971), a case that was factually distinguished in Snoddy, supra, the Court held that advertising by a department store in a newspaper and over a television station that reaches a surrounding county, without more, does not constitute doing business in that county. The Court characterized the activities of the store as "merely a solicitation of business to be consummated" in the store. 287 Ala. at 392, 252 So. 2d at 52. The Alpine Bay advertisements that reached residents of DeKalb County were a solicitation of business, inviting those who received the communication to visit the resort in Talladega County. The other activities of Alpine Bay in DeKalb County, consisting of correspondence and telephone conversations with the Taylors after the sale of the time-share unit to the Taylors, are contacts too attenuated to constitute "doing business" in DeKalb County.
Based on the record before us, we hold that Alpine Bay has made a clear showing of error on the part of the trial court in denying Alpine Bay's motion to transfer. See Ex parte Harrington Manufacturing Co., 414 So. 2d 74 (Ala.1982). Accordingly, the writ of mandamus is granted.
WRIT GRANTED.
TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur. | December 4, 1987 |
5e63aa15-9b7c-4afb-9baf-2c8bcfefc976 | City of Talladega v. Ellison | 79 So. 2d 551 | N/A | Alabama | Alabama Supreme Court | 79 So. 2d 551 (1955)
CITY OF TALLADEGA
v.
E. Stewart ELLISON.
7 Div. 177.
Supreme Court of Alabama.
April 14, 1955.
*552 Dixon, Wooten & Boyett, Talladega, for appellant.
Ellis & Fowler, Columbiana, and Huel M. Love, Talladega, for appellee.
Lawrence K. Andrews, Union Springs, for Alabama League of Municipalities, amicus curiae, in behalf of appellant.
GOODWYN, Justice.
The City of Talladega, appellant, filed a bill in equity against E. Stewart Ellison, appellee, seeking ascertainment and collection of license taxes alleged to be owed by appellee. The bill is framed under the provisions of Code 1940, Tit. 37, Chapter 15, Art. 4, §§ 760 to 771, Act No. 152, appvd. March 4, 1937, Gen. Acts Ala. Ex. Sess. 1936-37, p. 169, providing for "cumulative remedies for collection of license tax" by municipalities of the state. Appellee's demurrer to the bill was sustained and appellant declined to amend. Thereupon the court rendered a decree dismissing the bill. This appeal is from that decree.
The bill alleges that appellee is engaged in the business of operating a retail grocery store and filling station within the police jurisdiction of the City of Talladega, but without the corporate limits thereof, and is liable for, but has not paid, certain license taxes prescribed for such businesses by duly enacted and published ordinances of said city. The following relief is sought by the bill:
(a) The granting of a temporary injunction, restraining the respondent from further operation or conduct of said businesses until payment of the license taxes found to be due and also payment of the court costs taxed against respondent. Section 761, supra.
(b) An accounting of the respondent for the amount of license taxes due. Section 762, supra. This part of the prayer for relief is in the nature of discovery.
(c) The rendering of a judgment in favor of complainant for the amount of license taxes found to be due together with the interest and penalties thereon. Section 762, supra.
(d) A determination of the property used by respondent in connection with such businesses and subject to a lien in favor of complainant under the provisions of Code 1940, Tit. 37, § 759, and a declaration and enforcement of such lien. Section 762, supra.
(e) On final hearing, the granting of a permanent injunction. Section 761, supra.
Appellee's demurrer attacked the sufficiency of the bill as a whole and each aspect thereof separately and severally. The decree recognized and discussed several issues raised by the demurrer addressed to the several aspects but concluded by sustaining the demurrer to the bill generally.
*553 In effect, the decree declares the absence of equity in the bill as a whole by reason of the rule of de minimis non curat lex announced in Williams v. Berry, 3 Stew. & P. 284. It was there declared that equity courts will not interfere in cases involving sums under $50 where justice does not obviously demand it, and, even then, only in cases involving more than $20. The general rule and some of the exceptions to the rule were stated in McEntyre v. Forman, 247 Ala. 382, 385, 24 So. 2d 537, 539, as follows:
But in McEntyre v. Forman, supra, the following was also said:
The bill here prayed for a moneyed judgment, among other things, and claimed no specific amount because of the necessity of a determination by the court of the amount due. Therefore, the maxim de minimis non curat lex has no application. McEntyre v. Forman, supra.
We have long held that where a bill, as here, sets up several distinct equities, a decree sustaining a demurrer generally and making no reference to grounds of demurrer going to a part or aspect of the bill will be referred to the grounds of demurrer addressed to the bill as a whole, and on appeal here only the grounds going to the sufficiency of the bill as a whole will be considered. Haisten v. Zigler, 258 Ala. 554, 555, 64 So. 2d 592; Grace v. Birmingham Trust & Savings Co., 257 Ala. 507, 512, 59 So. 2d 595; Florence Gin Co. v. City of Florence, 226 Ala. 478, 480, 147 So. 417; Penton v. Brown-Crummer Inv. Co., 222 Ala. 155, 159, 131 So. 14. It follows, then, that in order to affirm the decree of the trial court we must find that the bill is devoid of equity in any aspect.
The decree poses several questions with reference to the constitutionality of the injunction feature of Art. 4, Chapter 15, Tit. 37, Code 1940, supra. These questions were not decided by the trial court but the decree contains a suggestion that this court answer them if we should find that the decree sustaining the demurrer was erroneous.
We have carefully examined the record and do not find that the constitutionality of any section of Art. 4, Chapter 15, Tit. 37, supra, was presented in the lower court; nor do we find it necessary to determine the constitutionality of any of those sections in order to determine this appeal. Therefore, consideration of the constitutional questions must be pretermitted. Donaghey v. Owens, 259 Ala. 376, 378, 66 So. 2d 895, and cases there cited. We have said that a constitutional question "cannot be raised for the first time in a brief only." Coleman v. Mange, 238 Ala. 141, 143, 189 So. 749, 751.
*554 We need only to add that when and if the constitutionality of Article 4, supra, or any section thereof, is properly presented here we will then pass on the constitutional questions.
Presuming, as we must, the validity of the solemn enactments of the legislature, Jefferson County v. Busby, 226 Ala. 293, 295, 148 So. 411; Lovejoy v. City of Montgomery, 180 Ala. 473, 476, 61 So. 597, and in accordance with the doctrine that "there are no limits to the legislative power of the state government save such as are written upon the pages of the state or federal Constitution," State v. Bley, 162 Ala. 239, 243, 50 So. 263, 264, and there being no question of the unconstitutionality of Article 4, Title 37, supra, or any section embodied therein, properly before us for decision, we need only decide whether the bill, in any aspect thereof, seeks relief authorized by Article 4, supra, or other provision of law.
In view of what has been said, we need only discuss that aspect of the bill which seeks injunctive relief.
In this connection, it becomes important to examine the bill and the provisions of Sections 760 and 761 of Article 4, Title 37, supra, to determine whether or not facts have been alleged, as provided by these sections, showing that appellant is entitled to the relief sought. These sections provide:
The bill as last amended was filed by the City of Talladega, a municipal corporation situated in Talladega County, Alabama, in the Circuit Court of Talladega County, Alabama, in Equity, and was properly verified by the City Clerk of said municipality. The bill alleges the adoption by the municipality of certain ordinances, attached to the bill and made a part thereof, which "levied and fixed certain privilege licenses for businesses, trades, occupations and professions engaged in outside the corporate limits of the City of Talladega, Alabama, but within the police jurisdiction of said City of Talladega, Alabama, which ordinances have at all times since the adoption and publication thereof and are now in full force and effect." The bill further alleges the following:
These averments, in our opinion, are sufficient under Art. 4, Chapter 15, Tit. 37, supra, to move a court of equity to the aid of the City of Talladega, under the aspect seeking an injunction, and therefore, in accordance with the stated rules of review, the demurrer addressed to the bill as a whole should have been overruled. Accordingly, the decree of the trial court is due to be reversed and the cause remanded. It is so ordered.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | April 14, 1955 |
4337f443-de82-4b0d-81ce-fa4bcd3e3f23 | Brown v. Oldham | 81 So. 2d 331 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 331 (1955)
Harry G. BROWN et al.
v.
George OLDHAM et al.
8 Div. 745.
Supreme Court of Alabama.
May 12, 1955.
Rehearing Denied June 23, 1955.
Bradshaw, Barnett & Haltom, E. B. Haltom, Jr., Florence, for appellants.
Potts & Young, Florence, for appellees.
*332 LAWSON, Justice.
The purpose of the bill is to enforce the statutory lien given by § 37, Title 33, Code 1940, to "every mechanic, person, firm, or corporation who shall do or perform any work, or labor upon, or furnish any material, fixture, engine, boiler, or machinery for any building or improvement on land, or for repairing, altering, or beautifying the same, under or by virtue of any contract with the owner or proprietor thereof, or his agent, architect, trustee, contractor, or subcontractor," etc.
As a basis for relief, the bill as amended avers:
After demurrer was overruled, the case was tried on the issues presented by the bill as amended and the answer of the respondents. The result of that trial was the rendition of a decree against the respondents in the sum of $595 with interest. This amount was made a lien upon the dwelling, the land upon which it is situated and one acre of land surrounding the dwelling, which had not been constructed on land situated in a city, town or village. § 33, Title 37, supra. Such property was ordered sold for the satisfaction of the lien so established. From that decree the respondents have appealed to this court.
Some of the grounds of the demurrer challenge the sufficiency of the bill as amended on the ground that the terms of the contract were not sufficiently stated. Respondents argue here that the action of the trial court in overruling those grounds of demurrer was error, citing Evans v. Town of Muscle Shoals, 235 Ala. 325, 179 So. 228, and other authorities of like import. It is sufficient to differentiate the cases cited from the one at bar to observe that the complaints in those cases were in special assumpsit for breach of contract, while here the complainants predicate their right to recover on the basis of a debt alleged to be due for work and labor performed at respondents' instance, under circumstances which if proven would entitle them to a lien under the statute, § 33, Title 37, Code 1940. Under the rule of our cases, the trial court did not err in overruling *333 the grounds of demurrer presently under consideration, although the entire contract is not set out in or made an exhibit to the bill. Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90; Roobin v. Grindle, 219 Ala. 417, 122 So. 408; Buettner Bros. v. Good Hope Missionary Baptist Church, 245 Ala. 553, 18 So. 2d 75; Burge v. Morgan, 257 Ala. 558, 59 So. 2d 795; Skelton v. Seale Lumber Co., Inc., 260 Ala. 179, 69 So. 2d 288.
Under our holdings in Murray v. Bessemer Lumber Co., 213 Ala. 232, 104 So. 649, and Thomasson v. Benson Hardware Co., 222 Ala. 176, 131 So. 563, the trial court should have sustained respondent's demurrer, as one of the grounds took the point that the bill as amended failed to name the architect or agent that the complainants claimed acted for respondents in the making of the contract. But the error in overruling that ground of demurrer will not work a reversal on this appeal, for such error was without injury, as the evidence showed without conflict that it was respondents' architect, Malcolm Smith, whom the complainants claim acted for respondents in the making of the alleged contract. Downer v. First Nat. Bank in Fort Payne, 231 Ala. 523, 165 So. 758; Ballenger v. Ballenger, 208 Ala. 147, 94 So. 127; McConnell v. Worns, 102 Ala. 587, 14 So. 849. We think it well to point out, however, that the holding in the Murray and Thomasson cases, supra, does not apply to tort cases other than those framed under the State Employers' Liability Act. Foreman v. Dorsey Trailers, Inc., 256 Ala. 253, 54 So. 2d 499, and cases there cited and discussed.
The record before us presents no question for review concerning the timely filing of the suit by complainants, inasmuch as that question is not raised by demurrer or by plea. See Jefferson County Savings Bank v. Ben F. Barbour Plumbing & Electric Co., 191 Ala. 238, 68 So. 43.
This bill was not filed to enforce a lien to the extent of any unpaid balance due a contractor.
The contention of complainants below, the appellees here, is stated in the following language quoted from brief filed here in their behalf: "Appellees contend that they were original contractors as to the painting of Appellant's dwelling, and that the painting was done under a contract, express or implied with the owners by and through their agent or architect, Malcolm Smith. Appellees admit that in order to prevail in this cause, it was incumbent upon them to establish a contract, express or implied, with the owners or their architect or there must have been an effectual ratification of such contract."
The final decree of the trial court is based on its conclusions from the evidence taken ore tenus that: "* * * at the time complainants entered into the contract and performed the work, respondents were the owners of the property described in the bill of complaint and that the contract was entered into with complainants by the architect, duly authorized agent of the respondents acting within the line and scope of his authority as such agent and that his acts were also later ratified in full by the respondents as to the employment of these complainants. * * *"
The respondents argue here that the conclusions of the trial court set out above are not supported by the evidence.
Appellant Dr. Harry G. Brown entered into a written contract with one W. D. Brooks on March 24, 1952, by the terms of which Brooks agreed to build a residence for the appellants, on a tract of land which they owned, for a price of approximately $18,000, the residence to be constructed according to plans and specifications prepared by a Florence architectural firm with which Malcolm Smith was associated. Article 6 of the contract reads in part as follows: "The Contract Documents: The General Conditions of the Contract the Specifications and the Drawings, together with this Agreement, form the Contract, and they are as fully a part of the Contract as if hereto attached or herein repeated * * *"
*334 According to Section 6 of the Specifications the contractor, W. D. Brooks, was to furnish all labor, materials, equipment, and services for and incident to the painting and finishing of all surfaces throughout the entire house except the basement. In fact, the contract called for what is sometimes referred to in the trade as a "lock and key job."
In Article 36 of the "General Conditions of the Contract" it is provided, "Nothing contained in the Contract Documents shall create any contractual relation between any subcontractor and the owner," and Article 38 thereof reads in part:
W. D. Brooks died on July 1, 1952, without having completed the residence. No painting had been done prior to his death, but a considerable part of the construction had been completed and Brooks had been paid by Dr. Brown approximately $8,000.
This building contract was one which the personal representative of the deceased contractor could properly complete. Gray v. Hawkins' Adm'x, 8 Ohio St. 449, 72 Am.Dec. 600; Vernon v. Harper, 79 Ohio St. 181, 86 N.E. 882, 20 L.R.A.,N.S., 44; Shea v. Graves, 142 Or. 503, 19 P.2d 406; Burch v. J. D. Bush & Co., 181 N.C. 125, 106 S.E. 489.
Shortly after her husband's death Mrs. W. D. Brooks, who was administratrix of his estate, decided that, in her official capacity, she would undertake the completion of the Brown contract. This decision was made at a meeting attended by Mrs. Brooks; Dr. Brown; Malcolm Smith, the supervising architect on the job; A. D. Cody, the foreman on the job, who had served in that capacity under W. D. Brooks; and one Earl Anderson. Anderson was a friend of the Brooks family and at one time was partner in a construction business with Brooks. Brooks had maintained his office in Anderson's hardware store and Mrs. Brooks continued to use that office after her husband's death.
In the latter part of August, 1952, Mrs. Brooks was forced to abandon her efforts to complete the contract, but before abandonment Dr. Brown paid to Mrs. Brooks in her representative capacity approximately $9,000. Thus, Dr. Brown paid a total of approximately $17,000 on the contract price of $18,000. After abandonment by Mrs. Brooks, the Browns were forced to complete the building by employing other persons and in so doing they expended more than the unpaid balance, which was approximately $1,000.
All of the work performed by appellees was done during the period of time when Mrs. Brooks was attempting to complete her husband's contract, one of the obligations of which was to paint the Brown's residence. They performed the work without ever discussing the matter of a contract or compensation with Mrs. Brooks or with the owners, the Browns.
Appellees had known Earl Anderson for some time, having done painting work for him. They went to his store on July 12, 1952, and were asked by Anderson if they were interested in submitting a bid for the painting of the Brown residence. Anderson had a copy of the plans and specifications, which he showed appellees, and admittedly they read Section 6 of the specifications which, as heretofore shown, provided for *335 the general contractor to furnish the labor and paint for the painting of the residence. But appellees testified that Anderson told them that their bid was to be for labor only. Malcolm Smith, the supervising architect, previously had been to Anderson's hardware store and selected the brand and color of paint to be used.
After looking over the plans and specifications appellees submitted an oral bid to Anderson in an amount in excess of $600. Anderson then talked to Smith over the telephone concerning the bid. Anderson and Smith determined that the bid was too high. Appellees then submitted another oral bid to Anderson, the amount of which was $595. As to his conversation with Smith concerning the second bid Anderson, a witness for appellees, on direct examination was asked the following questions and gave the following answers:
In compliance with Smith's suggestion or request made to Anderson over the telephone on Saturday, July 12, 1952, which message was conveyed to them, the appellees reported to the job site on the following Monday morning. Anderson had not advised appellees that there was a general contractor on the job but merely told them that the house which was to be painted belonged to Dr. Brown.
The first conversation which appellees had with the architect was on the day they reported on the job when "he told us what all he wanted done, and what colors he wanted used."
From time to time Smith, the architect, gave appellees instructions as to how the job was to be done. Smith was on the job nearly every day and supervised other parts of the construction and according to appellees Smith told them several times in effect that he was having to take over everything and finish the job and that he was going to fire some of the men for loafing.
Dr. and Mrs. Brown came to the job site frequently and at their request appellees repainted one room and made a few other changes.
Appellees were not advised by anyone prior to the time they completed their work that they would have to look to Mrs. Brooks for their money.
According to the appellee Oldham, the architect a few days before the painting job was finished told him that Dr. Brown was going to finish the job and he would have to pay for it.
The foregoing statement of the evidence is that version upon which appellees rely to sustain the holdings of the trial court to the effect that appellees made a contract with the architect Smith, and that in making that contract Smith was acting within the line and scope of his authority as agent of the appellants. We have not set out the conflicts in the evidence, for the testimony was taken orally before the trial court, who saw and heard the witnesses. Notwithstanding the trial was in equity, the trial court's findings of fact are like unto the verdict of a jury, presumptively correct. Webb v. Griffin, 243 Ala. 468, 10 So. 2d 458, and cases cited; Channell v. Channell, 257 Ala. 85, 57 So. 2d 549; Wilson v. Williams, 257 Ala. 445, 59 So. 2d 616.
*336 But the trial court's conclusions of law drawn from the facts found from the evidence are not subject to the rule of presumption which obtains respecting the findings of fact. Robert G. Lassiter & Co. v. Nixon, 218 Ala. 484, 119 So. 17; Turner v. Turner, 251 Ala. 295, 37 So. 2d 186. If the trial court took an erroneous view of the law as applied to the facts, the rule of presumption does not obtain. Murphree v. Hanson, 197 Ala. 246, 72 So. 437. We are impressed that such is the condition here as to the holding that Smith had the authority to enter into a contract with appellees to paint the Brown residence, aside from any question as to whether the evidence was sufficient to show that any such contract was made by Smith. We are inclined to the view that it was Anderson upon whom the appellees relied and he had no authority to bind the appellants.
There was no evidence that Smith was an agent for appellants with authority to enter into a contract on their behalf with appellees. He was an architect whose principal duties were the general supervision and direction of the work. The terms of his employment did not include the making of contracts on behalf of appellant for the doing of any work on the residence, all of which had been contracted to be done by the general contractor, Brooks.
In our opinion there was never any express or implied contract between appellants and appellees.
The fact that appellants knew that appellees were working on the job and gave instructions as to how some of the work was to be done does not show a ratification of any unauthorized acts of the architect, if there were any such acts on his part on which appellees relied. Appellants had a contract with a general contractor to build and paint the residence for a certain amount and appellees' presence on the job site was entirely in keeping with that contract. Nor can we agree that the statement which appellees say Dr. Brown made to them (denied by Dr. Brown) after they had completed their work to the effect that "he (Brown) would see that we got our money" can be said to constitute a ratification of any contract made by Smith. We think this statement, when considered with the other testimony given by appellees, showed beyond doubt that Dr. Brown, if he made any statement, said no more than that he would try to help appellees secure their pay from Mrs. Brooks.
We have given this record our most careful consideration and we are constrained to hold the decree appealed from is erroneous and should be reversed. It is so ordered. Our holding here finds support in the case of Harrigan & Reid Co. v. Hudson, 291 Mich. 478, 289 N.W. 222.
Reversed and remanded.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | May 12, 1955 |
7fad2ff8-8a7c-4e46-bdee-3823781aa272 | Ex Parte Chambers | 522 So. 2d 313 | N/A | Alabama | Alabama Supreme Court | 522 So. 2d 313 (1987)
Ex parte Richard CHAMBERS.
(Re Richard Chambers v. State).
86-483.
Supreme Court of Alabama.
September 25, 1987.
As Corrected on Denial of Rehearing November 6, 1987.
*314 D. Taylor Flowers of Buntin & Cobb, and Lewis, Brackin & Flowers, Dothan, for petitioner.
Don Siegelman, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for respondent.
BEATTY, Justice.
We granted the writ in this case to consider whether it was proper for the trial court to apply the punishment enhancement provisions of Code of 1975, § 13A-5-9(a)(1), in sentencing the petitioner, who was convicted of a drug offense. We reverse and remand.
Petitioner, Richard Chambers, was indicted for trafficking in marihuana, but a jury found him guilty only of felony possession. The State proved a prior drug offense, and, pursuant to § 13A-5-9(a)(1), (hereinafter the "Habitual Felony Offender Act"), the trial court sentenced the petitioner as a habitual offender to 20 years' imprisonment and a $10,000 fine. In the portion of its opinion upholding petitioner's sentence under the Habitual Felony Offender Act, the Court of Criminal Appeals quoted from its decision in Motley v. State, 409 So. 2d 945, 947 (Ala.Crim.App.1981):
(Emphasis added in Chambers.) 522 So. 2d 311. Petitioner contends that the Habitual Felony Offender Statute is inapplicable to enhance his conviction for a drug-related offense on account of a prior drug-related offense. We agree, for the reasons that follow.
At the petitioner's sentencing hearing, the State presented sufficient documentary evidence to establish that the petitioner had a prior conviction in Florida for the offense of "sale of a hallucinogenic drug," which had been affirmed by the Florida District Court of Appeals for the First District. Petitioner argues that he should have been sentenced according to the provisions of Code of 1975, § 20-2-70, which provides "that the penalties for the subsequent offenses relating to possession of marihuana shall be" imprisonment "for not less than two nor more than 15 years" and "in addition, [a fine of] not more than $25,000." Petitioner, however, apparently overlooks the fact that § 20-2-70 refers to "subsequent offenses relating to possession," not to sale of marihuana. Furthermore, petitioner has failed to establish that the "hallucinogenic drug" he was previously convicted for selling in Florida was, in fact, marihuana, as opposed to some other drug. We nevertheless, agree with petitioner that the Habitual Felony Offender Act is not the proper penalty enhancement provision to be applied in this case.[1]
Because the offense of which petitioner was convicted is found in the Alabama Uniform Controlled Substances Act, § 20-2-1 et seq., specifically § 20-2-70, and his prior conviction related to hallucinogenic drugs, the only penalty enhancement provision that could have been applied against the petitioner in this case is § 20-2-76, which is the recidivist statute found within the Controlled Substances Act itself. Accord, Luker v. State, 344 So. 2d 1219, 1224 (Ala.Crim.App.1976), writ quashed, 344 So. 2d 1224 (Ala.1977). Section 20-2-76 provides:
It is important to note that by the use of the language "may be imprisoned" in § 20-2-76(a), above, the imposition of that section by the trial court in sentencing the repeat drug offender is permissible and not mandatory. Luker v. State, 424 So. 2d 662 (Ala.Crim.App.1982), writ quashed, 424 So. 2d 662 (Ala.1983). The converse is true with respect to the Habitual Felony Offender Act, which is mandatory in that it provides that a repeat felony offender "must be punished" in accordance with its provisions. Watson v. State, 392 So. 2d 1274 (Ala.Crim.App.1980), cert. denied, 392 So. 2d 1280 (Ala.1981).
When the legislature revised the Criminal Code in 1977, particularly Title 13A, Chapter 5, having to do with punishments and sentences, it was well aware that the penalties set out in that chapter would not necessarily be applicable to all criminal offenses defined outside Title 13A. This is made clear in § 13A-5-1, which sets out the applicability of the provisions of Chapter 5:
Particularly illuminating is the commentary to the above section, as it pertains to subsection (a):
Thus, it is clear that the legislature knew that because the Controlled Substances Act provided its own penalties, none of the provisions of Title 13A, Chapter 5, including the Habitual Felony Offender provisions, would apply to drug offenses. Under a clear reading of the pertinent sections and the commentary thereto, the penalties set out in Title 13A, Chapter 5, are applicable only to "outside" offenses where no particular punishment is specified. See the Commentary to § 13A-5-4:
See also, Dickerson v. State, 414 So. 2d 998, 1005 (Ala.Crim.App.1982), where the Court of Criminal Appeals, construing §§ 13A-5-1, -3, and -4, concluded:
The Habitual Felony Offender Act, with its punishment enhancement provisions, is a penal statute, and must be strictly construed, especially in regard to its applicability to felony offenses outside the Criminal Code. A careful reading of the pertinent provisions of Title 13A, Chapter 5, along with the commentary thereto, makes it quite obvious that the legislature did not intend the Habitual Felony Offender Act to apply to felony drug offenses. That legislative intent is made unequivocal by the inclusion of a recidivist statute in the Controlled Substances Act itself, the enhancement provisions of which are plainly applicable to the facts of the present case.
As noted supra, the Court of Criminal Appeals quoted from its decision in Motley v. State, supra. That court also cited three of its other decisions. We conclude, however, that Motley, supra, is not apt authority for applying the Habitual Felony Offender Act to this petitioner. The defendant in Motley was convicted of attempted murder, and he admitted to six prior felony convictions, none of which was a felony drug offense. Therefore, under the applicable provisions of the Habitual Felony Offender Act, the defendant in Motley was correctly sentenced to life without parole. The court in Motley disposed of the defendant's equal protection argument by holding that, because drug offenders are subject to the Habitual Felony Offender Act (a conclusion that was merely dicta in that case), that Act is not unconstitutional.
The petitioner in this case was convicted of a felony drug offense, and the prior offense proved by the State was also a felony drug offense. Because the sentences applicable to drug offenses and repeat drug offenses are provided within the Controlled Substances Act, we hold that defendants convicted thereunder must be sentenced according to its provisions, not the sentencing provisions of Title 13A.[2] See § 13A-5-1, quoted supra. To the extent the following cases, and any others, are inconsistent with this holding, they are hereby overruled: Cade v. State, 491 So. 2d 1075 (Ala.Crim.App.1986); Lott v. State, 471 So. 2d 481 (Ala.Crim.App.1984); Files v. State, 468 So. 2d 190 (Ala.Crim.App.1984), cert. denied, 468 So. 2d 196 (Ala.1985); Norris v. State, 455 So. 2d 226 (Ala.Crim. App.1984); Willis v. State, 455 So. 2d 914 (Ala.Crim.App.1983), rev. on other grounds, 455 So. 2d 917 (Ala.1984); Sturdivant v. State, 439 So. 2d 184 (Ala.Crim.App. 1983); Aplin v. State, 421 So. 2d 1299 (Ala. Crim.App.1981). On the other hand, Luker v. State, 344 So. 2d 1219 (Ala.Crim.App. 1976), writ quashed, 344 So. 2d 1224 (Ala. 1977), as well as Kidd v. State, 398 So. 2d 349, 350 (Ala.Crim.App.), cert. denied, 398 So. 2d 353 (Ala.1981) (overruled on other grounds by Luker v. State, 424 So. 2d 662 (Ala.Crim.App.1982)), and Palmer v. State, 54 Ala.App. 707, 312 So. 2d 399 (1975), are correct as to the punishment provisions held applicable in those cases.
Based on the foregoing, the order sentencing the petitioner is reversed and the case is remanded to the Court of Criminal Appeals with directions to enter an order consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, JONES, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
TORBERT, C.J., and ALMON, J., not sitting.
[1] We note that the State does not dispute petitioner's contention that he was sentenced as a habitual offender under § 13A-5-9(a)(1). Indeed, the State argues in its brief that § 13A-5-9(a)(1) was properly applied by the trial court in sentencing the petitioner.
[2] We note that in this case we need not reach the issue of whether prior felony drug convictions can be used under the Habitual Felony Offender Statute to enhance the punishment for non-drug related felonies. | November 6, 1987 |
3858c6b2-8813-471f-bdfe-fc0476d6ef12 | King Mines Resort, Inc. v. MALACHI M. & MINERALS, INC. | 518 So. 2d 714 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 714 (1987)
KING MINES RESORT, INC.
v.
MALACHI MINING & MINERALS, INC.
85-1437.
Supreme Court of Alabama.
November 20, 1987.
*715 Harry P. Long of Long and LaBudde, Anniston, for appellant.
Thomas J. Knight, Anniston, for appellee.
JONES, Justice.
The defendant/appellant King Mines Resort, Inc. ("King Mines"), challenges the trial court's denial of its motion for a directed verdict, arguing that claims of Malachi Mining & Minerals, Inc. ("Malachi"), for fraud, assault, and "intentional interference with business operations," separately and severally, were unsupported by the evidence.
At the close of the evidence, King Mines' directed-verdict motion, grounded on "insufficiency of the evidence," was denied; and the trial judge allowed the three challenged claims to go to the jury, along with claims for trespass and conversion, which went unchallenged.[1] The jury returned a general verdict for Malachi and assessed damages of $175,000. The trial court then denied King Mines' post-judgment motion for a judgment notwithstanding the verdict (J.N.O.V.) or, alternatively, for a new trial. King Mines appeals. We affirm.[2]
Baker v. Chastain, 389 So. 2d 932, 934 (Ala. 1980).
"`A motion for judgment notwithstanding the verdict tests the sufficiency of the evidence in the same way as does the motion for directed verdict at the close of all the evidence. [Rule 50, A.R.Civ.P.], Committee Comments. Granting the motion for judgment notwithstanding the verdict says, without weighing the credibility of the evidence, there can be but one reasonable conclusion from the evidence as to the proper judgment.'
"`[U]nder our system, the jury must be allowed to pass on the evidence if any, no matter how slight, is offered *716 which, if believed, would support a verdict in favor of the party against whom a directed verdict is sought.'"
Casey v. Jones, 410 So. 2d 5, 7 (Ala.1981). See, also, Ex parte Bennett, 426 So. 2d 832 (Ala.1982) (overruling Harville v. Goza, 393 So. 2d 988 (Ala.1981)); and Strickland v. Farm Bureau Mutual Casualty Insurance Co., 502 So. 2d 349, 351 (Ala.1987).
Because the criteria for testing motions for directed verdict and for J.N.O.V. provide an objective standard, rulings on these motions do not fall within the trial court's discretionary function; thus, if alleged error is properly preserved and presented on appeal, these rulings are subject to de novo review, i.e., a review without any assumption of correctness.
One who, on appellate review, seeks, on the ground of insufficiency of the evidence, the reversal of an adverse judgment and the entry of a judgment in his favor, must meet a two-pronged test: 1) He must ask for a directed verdict at the close of all the evidence, specifying "insufficiency of the evidence" (lack of proof) as a ground; and 2) he must renew this motion by way of a timely filed post-judgment motion for J.N.O.V., again specifying the same insufficiency-of-the-evidence ground. See Rule 50, A.R.Civ.P., and Committee Comments; Bains v. Jameson, 507 So. 2d 504, 505 (Ala. 1987); and Ritch v. Waldrop, 428 So. 2d 1 (Ala.1982).
The failure to comply with the two-pronged test does not preclude the party from arguing "insufficiency" or that the verdict is against the great weight of the evidence, as a ground for a new trial, either before the trial court on a post-judgment motion for a new trial or before an appellate court on an appeal following an adverse ruling by the trial court. In that event, however, even if the reviewing court finds that the evidence is insufficient to support the judgment, the only relief that can be granted is a new trial, not a J.N.O.V. See Independent Life & Accident Insurance Co. v. Parker, 449 So. 2d 233, 236 (Ala.1984).
In a multiple-theory case, if the movant addresses his motion for a directed verdict to the claim as a whole (not specifying the separate theories to which the motion is addressed), the motion is due to be denied unless the evidence is insufficient to support any of the several theories; and if the jury returns a general verdict, the movant's post-judgment motion for J.N.O.V. is due to be denied if any one of the theories is supported by the evidence (i.e., the verdict is referable to the "good" theory). Treadwell Ford, Inc. v. Campbell, 485 So. 2d 312 (Ala.1986).
On the other hand, if the directed verdict motion is addressed to one or more of the theories, separately and severally, specifying as a ground that the evidence is insufficient as to each theory so challenged, then the jury's general verdict is due to be sustained on a timely filed post-judgment motion for a J.N.O.V., specifying the same ground, only if each of the challenged theories is supported by the evidence. If one or more of the challenged theories is not supported by the evidence, the movant is entitled to a J.N.O.V. on the unsupported theory or theories and to a new trial on the remaining theories; in this event, the verdict is not referable to the "good" theory. Lawrence v. Lackey, 451 So. 2d 278 (Ala. 1984). This is true, of course, because, in a general verdict context, it is impossible to know on which of the multiple theories the jury based its verdict.
Stated another way, if, at the close of the evidence, the movant challenges the sufficiency of the evidence by motion for directed verdict, specifically addressed, separately and severally, to one or more of the theories, and the jury returns a general verdict,[3] the trial court's denial of the motion and its subsequent denial of a post-judgment *717 motion for J.N.O.V. are sustainable only if each of the challenged theories is supported by the evidence. If any one of the theories fails the "sufficiency" test, the movant is entitled to a J.N.O.V. on the challenged theory and to a new trial on the remaining theories that are supported by the evidence.
As a prerequisite to appellate review of the trial court's denial of a motion for directed verdict, however, the movant must 1) restate the sufficiency-of-the-evidence challenge by way of a timely filed post-judgment motion for J.N.O.V., and 2) present the same issue, based on the same ground, on appeal. The alternative post-judgment motion for a new trial may be based on the ground that the verdict is against the great weight of the evidence; and an adverse ruling is reviewable only if the appellant presents as an issue on appeal whether the trial court erred in denying the motion for a new trial. Rule 28(a)(3), A.R.A.P.; and Stover v. Alabama Farm Bureau Insurance Co., 467 So. 2d 251, 252 (Ala.1985).
We quote the pertinent language from King Mines' post-judgment motion:
Paragraphs 1 and 5 confuse grounds for a new trial with grounds for a J.N.O.V. Insufficiency of the evidence is an appropriate ground for a J.N.O.V.; that the verdict is against the great weight of the evidence is an appropriate ground for a new trial, not for a J.N.O.V. Here, none of the grounds stated in the post-judgment *718 motion is an appropriate ground for a J.N. O.V.[4]
This is not to say that form governs over substance. The mere mislabeling of the motion would not be fatal. This Court is committed to the proposition that it will treat a motion (or other pleading) and its assigned grounds according to its substance. Lockhart v. Phenix City Inv. Co., 488 So. 2d 1353 (Ala.1986); and Sexton v. Prisock, 495 So. 2d 581 (Ala.1986). The liberal application of this substance-over-form rule will not permit the Court to review alleged error, however, unless the trial court was given an opportunity to rule on the matter appellant seeks to present on appeal. Green v. Taylor, 437 So. 2d 1259, 1260 (Ala.1983).
Given its most liberal construction, King Mines' post-judgment motion is to the effect that it sought a new trial on the ground that the verdict was against the great weight of the evidence. None of the grounds specified in its directed verdict motion was restated in its post-judgment motion. Therefore, the only adverse ruling that survived the denial of the post-judgment motion, and that is now subject to appellate review, is whether the trial court erred in denying the alternative motion for a new trial.
All of King Mines' "issues presented" on appeal argue that the trial court erred in denying King Mines' motion for a directed verdict on the "sufficiency of the evidence" ground. Despite paragraph 7 of King Mines' post-judgment motion, moving for a new trial on the weight-of-the-evidence grounds stated in paragraphs 1 and 5, none of King Mines' issues presented on appeal explicitly raises the question whether the trial court erred in denying King Mines' motion for a new trial. See White v. Law, 454 So. 2d 515, 517 (Ala.1984).
Nevertheless, because we interpret King Mines' post-judgment motion as a motion for a new trial on the weight-of-the-evidence ground, our substance-over-form rule also requires that we interpret King Mines' issues presented on appeal as implicitly including the issue whether the trial court erred in denying King Mines' new trial motion on the same ground. Stated otherwise, we interpret the issue on appeal requesting the greater relief (a J.N.O.V.) as necessarily embracing a request for the lesser relief (a new trial). In the instant context, this interpretation is not violative of established standards of appellate review, because the weight-of-the-evidence issue here presented is the same issue presented to, and ruled on by, the trial court.
As the quoted language from King Mines' post-judgment motion indicates, the central thrust of the weight-of-the-evidence ground relates to King Mines' argument that Malachi breached the terms of a written lease to the effect that "the agreement would terminate if Malachi failed to mine the property for 90 consecutive days." King Mines' recital of the evidence in support of this contention overlooks the testimony of its own corporate officer who testified that Malachi was the third lessee to be victimized by King Mines under such a lease.
We are convinced by our review of the record that the evidence not only justified the trial court's denial of King Mines' motion for directed verdict, but also supported the trial court's denial of the motion for new trial on the ground that the verdict was against the weight of the evidence. See Jawad v. Granade, 497 So. 2d 471 (Ala. 1986).
AFFIRMED.
TORBERT, C.J., and SHORES, ADAMS and STEAGALL, JJ., concur.
[1] Throughout this opinion, the terms "claim" and "theory" are used interchangeably.
[2] Because we interpret the appellant's brief as presenting only the issue whether the trial court erred in denying the motion for a new trial on the weight-of-the-evidence ground, we have included in our discussion of the issue presented only a brief summary of the evidence in support of the verdict.
[3] We note, however, that the long-prevailing practice of using the general jury verdict, as opposed to invoking Rule 49, A.R.Civ.P. (special verdicts), may be substantially altered by the mandate for special verdicts on the issue of damages pursuant to Ala. Acts 1987, Act No. 87-183 (effective June 11, 1987). Apart from the mandate of Act No. 87-183, however, the use of special verdicts pursuant to Rule 49, A.R.Civ.P., may avoid the risk of a verdict that is not referable to a "good" theory of the claim.
[4] We note that the appellant's counsel on appeal did not represent the appellant in the trial of the case. | November 20, 1987 |
0b43ab6f-b9fd-4e2f-ba28-9b7e781f39e8 | State Ex Rel. Galanos v. Mapco Petroleum | 519 So. 2d 1275 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 1275 (1987)
STATE of Alabama, ex rel. Chris N. GALANOS, etc.
v.
MAPCO PETROLEUM, INC.
85-725.
Supreme Court of Alabama.
December 18, 1987.
*1276 Thomas M. Galloway, Jr., Mobile, and W. Dennis Summers of Summers, Jones & Pendergast, Atlanta, Ga., for appellants.
G. Sage Lyons, J.P. Courtney III, and Charles L. Miller, Jr., of Lyons, Pipes & Cook, Mobile, for appellee.
Charles F. Norton, Jr., of Falkenberry, Whatley & Heidt, Birmingham, for amicus curiae Alabama Service Station Dealers' Ass'n.
ALMON, Justice.
The question presented in this appeal is the constitutionality of the Motor Fuel Marketing Act, Ala.Code 1975, § 8-22-1, et seq. ("the Act"). The State, through the District Attorney for Mobile County, brought this action against Mapco Petroleum, Inc., doing business as "Western" service stations in Mobile County. The complaint sought a civil penalty for Mapco's alleged violations of the Act and an injunction against further violations. The trial court granted Mapco's motion to dismiss the complaint, holding that the Act is unconstitutional.
The Act contains the following "Legislative declaration and intent," § 8-22-3:
The Act contains further provisions designed to carry out this intent.
Such an undertaking is, on its face, within the powers granted to the legislature under Article IV, § 103, of the Constitution of Alabama of 1901:
"Sec. 103. Regulation, etc., of common carriers, partnerships, associations, *1277 trusts, monopolies and combinations of capital.
This section has rarely been cited. Instead, this Court has developed a line of cases holding statutes unconstitutional, under the liberty interest protected by §§ 1 and 35 of the Constitution of 1901, as "price fixing" legislation or as excessive restraints upon the right to engage in trade. Of course, if § 103 were to conflict with §§ 1 and 35, then the latter provisions would govern, as noted by Justice Goldthwaite in an early case: "I consider the declaration of rights, as the governing and controlling part of the constitution; and with reference to this, are all its general provisions to be expounded, and their operation extended or restrained." In re Dorsey, 7 Port. 293, 359 (Ala.1838).
These provisions read:
"Sec. 1. Equality and rights of men.
"Sec. 35. Objective of government.
The line of cases on this point can be traced to City Council of Montgomery v. Kelly, 142 Ala. 552, 38 So. 67 (1904). In that case, the Court held unconstitutional a license tax imposed upon the issuance of trading stamps. After citing §§ 1 and 35 of the Constitution, the Court observed:
142 Ala. at 558-59, 38 So. at 69. Of course, Kelly involved no question of monopolies or § 103, being concerned only with license or privilege taxes.
The Court in State v. Goldstein, 207 Ala. 569, 93 So. 308 (1922), relied on the constitutional protection of liberty and struck down a "profiteering" law penalizing the sale of goods at a "fraudulent or grossly excessive price." The Court noted that the law was "operative without regard to any conditions of scarcity or monopoly," and that there was no contention that "the business of selling useful and harmless commodities... is or can be affected with a public interest, so long as trade is free and unaffected by monopolistic combinations, or artificial restraints, or emergency conditions which involve temporarily the health or safety of the public." Id., 207 Ala. at 570, 93 So. at 311.
*1278 With Nebbia v. New York, 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940 (1934), there came a shift in the analysis of such cases under federal law, with the United States Supreme Court holding that economic regulations would withstand a challenge under the due process clause[1] of the Fourteenth Amendment to the Constitution of the United States unless "arbitrary, discriminatory, or demonstrably irrelevant to the policy the Legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty." Id., 291 U.S. at 539, 54 S. Ct. at 517. See the discussion of Nebbia in Mount Royal Towers v. Alabama Bd. of Health, 388 So. 2d 1209 (Ala. 1980).
This Court came to a result similar to that in Nebbia when it decided Franklin v. State ex rel. Alabama State Milk Control Bd., 232 Ala. 637, 169 So. 295 (1936). The Court analyzed the Milk Control Board Act in terms of whether it was a reasonable exercise of the police power; observed that the question of whether that act offended the Fifth and Fourteenth Amendments to the Constitution of the United States was foreclosed by Nebbia, which involved a substantially identical New York statute; and expressed the state constitutional question as, "Was it within legislative competence, where a business or industry is affected with a public interest, to regulate that industry to the extent of fixing prices?" Id., 232 Ala. at 642, 169 So. at 299. The Court noted that the business of producing and selling milk "is a business affected with a public interest, which is tantamount to saying `subject to the exercise of the police power,' and to regulation and control, even to the extent of fixing prices." Id., citing Nebbia.
Franklin addressed several subsidiary constitutional questions not pertinent here. No mention was made of §§ 1 and 35, or of § 103 beyond including it in a list of sections raised by the appellant as violated by the Milk Control Board Act. The Franklin Court distinguished State v. Goldstein, supra, without much discussion, other than to point out the language, quoted above, stating that the act at issue in Goldstein was not predicated on any questions of monopoly or scarcity.
After Franklin came a series of cases making points pertinent to the present appeal. In both City of Mobile v. Rouse, 233 Ala. 622, 173 So. 266 (1937), and Lisenba v. Griffin, 242 Ala. 679, 8 So. 2d 175 (1942), the Court struck down legislation setting minimum prices that barbers could charge for their services. Rouse relied largely upon Goldstein in striking the law as an infringement upon the liberty to set prices for one's own services. It distinguished Franklin by observing that personal services are not affected with a public interest unless rendered in a business so affected or in an official capacity. Lisenba held that the ordinance was void because it was in conflict with a general law on the same subject. Further, it cited Rouse, supra, and McDowell, infra, in observing, obiter dictum, that the ordinance violated § 1 of the Constitution.
In a pair of cases, the Court struck down a law requiring the posting of prices at gasoline service stations and penalizing the sale of gasoline below the posted price. Alabama Independent Service Station Ass'n v. McDowell, 242 Ala. 424, 6 So. 2d 502 (1942); Alabama Independent Service Stations Ass'n v. Hunter, 249 Ala. 403, 31 So. 2d 571 (1947). In McDowell, the Court held that the law violated §§ 1 and 35, citing Kelly, Goldstein, and Rouse, supra. The Court stated that "The operation of filling stations for the retail sale and delivery *1279 into motor vehicles of motor fuels for the generation of power, is not a business affected with `a public interest.' McDowell, 242 Ala. at 429, 6 So. 2d at 506. Hunter merely reaffirmed and clarified the holding in McDowell.
Similarly, a pair of cases addressed the constitutionality of the Unfair Cigarette Sales Act. Simonetti, Inc. v. State ex rel. Gallion, 272 Ala. 398, 132 So. 2d 252 (1961); San Ann Tobacco Co. v. Hamm, 283 Ala. 397, 217 So. 2d 803 (1968). Those two cases established precedents that seriously bring into question the constitutionality of the Motor Fuel Marketing Act. The proposition established in Simonetti and Hamm may be paraphrased thus: In attempting to regulate monopolies under § 103, the legislature impermissibly infringes upon the liberty interests protected by §§ 1 and 35, at least with regard to businesses not affected with a public interest, if it prohibits selling below cost without requiring that the sale be made with intent to destroy or substantially lessen competition, even if it requires that the sale be made with that effect.
The Court in Simonetti adopted an extensive opinion from the trial court that dealt with the body of law on the subject and how that law applied to the statute at hand. Section III(a) of the cigarette act, as quoted in Simonetti, 272 Ala. at 399, 132 So. 2d at 254, read:
Simonetti explicitly refrained from relying on Nebbia and Franklin:
272 Ala. at 402, 132 So. 2d at 257 (emphasis added).
The Court concluded that the act could not be constitutional if the only adjunct to the sale below cost was the intent to injure competitors. This conclusion was set out as follows:
Id., at 408, 132 So. 2d at 262-63.
Before examining this intent requirement more closely and determining its effect, if any, on the Motor Fuel Marketing Act, we deem it pertinent to conclude our survey of the cases on point.
Hamm, supra, involved an amendment to the Unfair Cigarette Sales Act that added, after "with intent to injure competitors, destroy or substantially lessen competition," the words "or with the effect thereof." The Court quoted extensively from Simonetti and held that the amendment was unconstitutional, with the following rationale:
Hamm, supra, 283 Ala. at 402, 217 So. 2d at 806-07. The Court then applied the act as it existed prior to the amendment, finding that the appellant's evidence proved that it had not sold below cost.
We must take Hamm as holding that the legislature cannot constitutionally prohibit "selling below cost with the effect of injuring competitors and destroying or substantially lessoning competition," because this "and" could as easily have been read into the amended statute as it was into the original. Thus, while Simonetti emphasized that the legislature must make a bona fide attempt to prevent monopolization, Hamm focused on the intent element from Simonetti, without further analysis, and made it an absolute requirement. We note that we propose to discuss this intent requirement further, later in this opinion, and also that this reasoning applies, in Simonetti's *1281 own terms, only to a business not affected with a public interest.
The Court decided two cases in this area after Simonetti and prior to Hamm: Bulova Watch Co. v. Zale Jewelry Co., 274 Ala. 270, 147 So. 2d 797 (1962); and McCrory v. Wood, 277 Ala. 426, 171 So. 2d 241 (1965).
In Bulova Watch Co. the Court held that the Fair Trade Regulations, Ala.Code 1940, Tit. 57, §§ 77-83, were unconstitutional. The Court stated: "Our cases make clear the rule that before the legislature may regulate competitive prices or prohibit bona fide price cutting merely in the interest of fairness in competition, the business regulated must be affected with a public interest." 274 Ala. at 271, 147 So. 2d at 798, citing §§ 1 and 35, and many of the cases discussed above. The Court noted, "Even where the legislature has declared a business to be affected with a public interest, this does not pretermit an examination of the validity of the regulation," 274 Ala. at 272, 147 So. 2d at 798, citing Lisenba v. Griffin, supra. The Court held that "the business sought to be controlled is not one wherein the `public interest' is affected, and therefore the legislation is outside the scope of the state's police power." 274 Ala. at 272-73, 147 So. 2d at 799.[2]
Bulova Watch Co. pretermitted the whole question of prevention of monopoly and requirement of an intent to destroy competition with the following qualification: "This opinion is not concerned with the power of the legislature over a monopolistic business to [sicor?] one affected with a `public interest.' Upon this we express no opinion as that question is not before the Court." 274 Ala. at 272, 147 So. 2d at 799.
In McCrory v. Wood, supra, the practice of optometry was held subject to regulation by the legislature under the police power, and the delegation of regulatory authority to a board composed of members of the professional association of optometrists was held to be constitutional.
The next case on the constitutionality of economic regulations was Rabren v. City Wholesale Grocery Co., 289 Ala. 274, 266 So. 2d 882 (1972). This case again addressed the Unfair Cigarette Sales Act. The Court struck a provision requiring that the full face value of tax stamps be included as part of cost in computing sales below cost. The appellee purchased tax stamps at a discount from the state and the county, so its actual cost was less than what would have been computed under the statute.
Estell v. City of Birmingham, 291 Ala. 680, 286 So. 2d 872 (1973), revisited this body of law in striking down an ordinance prohibiting "scalping" football or other entertainment tickets, that is, reselling them at higher prices than those charged by the managers of the events. The Court examined the "affected with a public interest" test as applied in Franklin and determined that the ordinance could not be sustained on that basis. The opinion then cited Simonetti `s holding that "The legislature can also prohibit sales below cost, designed to injure or to destroy the business of a competitor," 291 Ala. at 683, 286 So. 2d at 874. Estell then quoted from Bulova Watch Co. and Goldstein and cited Rouse, Lisenba, and McDowell. Without further discussion, the Court upheld the decision of the Court of Criminal Appeals invalidating the ordinance.
In 1980, this Court upheld the Certificate of Need Act in Mount Royal Towers, Inc. v. Alabama Board of Health, 388 So. 2d 1209 (Ala.1980). That opinion touched upon some of the cases discussed above, quoted from Nebbia, and criticized the "affected with a public interest" test stemming from Franklin. As we now read these cases, it appears that the Mount Royal opinion misconstrues Simonetti as holding that the sale of cigarettes is affected with a public interest. If that had been the case, the test would certainly be an arbitrary or conclusory one, as Mount Royal concludes. In truth, only the dairy business has explicitly been held to be affected *1282 with a public interest. It might be said that optometry was implicitly so held in McCrory.
Mount Royal involved regulation of hospital facilities and so was more like Franklin and McCrory than like the series of cases in which the legislature attempted to prevent sales below cost or otherwise to regulate prices. Thus, with prices not being at issue, Mount Royal disregarded the Simonetti holding that the legislature may attempt to prevent monopolization by prohibiting sales below cost with the intent to destroy competition.
Instead, Mount Royal disapproved the "affected with a public interest" test and attempted to restate generally the standard for review of economic regulations:
388 So. 2d at 1214-15. The Court examined several law review articles on substantive due process in arriving at this test.
Legislation regulating a business or profession under the police power may be distinguished from legislation designed to implement § 103's mandate to prevent monopolization. The two fields may overlap, and it may be appropriate to apply the same standard to all assertions that legislation violates a party's liberty to engage in a business or occupation as he chooses. Before we reaffirm the Mount Royal test and explicitly hold that it supersedes the Simonetti "intent to destroy competition" test as well as the Franklin "affected with a public interest" test, however, we shall reexamine the law from a more general viewpoint.
We begin by ascertaining the source of the Simonetti "intent" requirement, as we mentioned we would do when we summarized that case. Here is the pertinent language:
272 Ala. at 401, 132 So. 2d at 255-56. The bracketed cases appear thus in the original; we have added only the dates.
The act held constitutional in Wholesale Tobacco Dealers Bureau v. National Candy & Tobacco Co., 11 Cal. 2d 634, 82 P.2d 3 (1938), required proof of intent to destroy competition, and the defendant was shown to have sold below cost with such intent. The court addressed the constitutionality in terms of a means-end analysis, relying extensively on Nebbia and the similar analysis therein. The court held that the prevention *1283 of monopolization was a legitimate end toward which the police power could be employed and discussed at length the question of whether the prohibition against destructive below-cost selling was reasonably designed to accomplish that purpose. Citing numerous arguments both for and against this method of control of monopolies, and discussing cases on point, the court concluded that the legislature could reasonably have determined that the chosen means would contribute to the anti-monopoly end: "The statute must be held to be a reasonable attempt on the part of the state to accomplish a valid object." 82 P.2d at 17.
In rejecting defendant's contention that the statute prohibited sales below cost without reference to intent, Wholesale Tobacco conceded:
Id. Thus, the California court clearly considered the intent element as an important consideration in determining whether the means employed to fight monopoly were reasonable.
In the other case cited in Simonetti, the Pennsylvania Supreme Court held unconstitutional a "sale below cost" statute that made no reference to intent:
Commonwealth v. Zasloff, 338 Pa. 457, 13 A.2d 67, 70 (1940) (citations omitted).
From these quotations it can be seen that both courts were employing a means-end analysis and emphasized the intent element as a crucial factor in determining the reasonableness of the means. The cases cited in the annotations bear out this conclusion. See Annot., 118 A.L.R. 506 (1939); Annot., 128 A.L.R. 1126, 1128-29 & 1136-37 (1940). Some of the cases cited in those annotations found statutes constitutional that allowed a violation to be premised upon sales below cost with the effect, but not necessarily the intent, of injuring the public, competitors, or competition. Daniel Loughran Co. v. Lord Baltimore Candy & Tobacco Co., 178 Md. 38, 12 A.2d 201 (1940); McElhone v. Geror, 207 Minn. 580, 292 N.W. 414 (1940); Rust v. Griggs, 172 Tenn. 565, 113 S.W.2d 733 (1938).
*1284 We also glean from these annotations that most states do not recognize the distinction between injury to competitors and destruction of competition that the Simonetti court emphasized; rather, they presume the statutorily prohibited injury to competitors to be a malicious or invidious one, rather than the inevitable "injury" to a competitor's business occasioned by attracting customers to one's own business.
These annotations have been brought current by another at 41 A.L.R. 4th 612 (1985). The cases cited therein have continued to require an intent element. Baseline Liquors v. Circle K Corp., 129 Ariz. 215, 630 P.2d 38 (Ct.App.1981), cert. denied, Skaggs Drug Centers, Inc. v. Baseline Liquors, 454 U.S. 969, 102 S. Ct. 515, 70 L. Ed. 2d 387 (1981), held that intent was an essential element in order to find a criminal violation of the statute, even though the statute itself read in the disjunctive, "with the intent or effect." The annotation reports that Dooley's Hardware Mart v. Food Giant Markets, Inc., 21 Cal. App. 3d 513, 98 Cal. Rptr. 543 (1971), read an intent requirement from a general provision of the statute into a more specific one; and that Twin City Candy & Tobacco Co. v. A. Weisman Co., 276 Minn. 225, 149 N.W.2d 698 (1967), held a statute unconstitutional because it did not allow a defendant an opportunity to prove the sale occurred without predatory intent or harmful effect.
This Court in Mount Royal, supra, cited several law review articles generally on the subject of substantive due process, including: Howard, "State Courts and Constitutional Rights in the Day of the Burger Court," 62 Va.L.Rev. 873 (1976); Hetherington, "State Economic Regulation and Substantive Due Process of Law," 53 N.W. U.L.Rev. 226 (1958); and Struve, "The Less-Restrictive-Alternative Principle and Economic Due Process," 80 Harv.L.Rev. 1463 (1967).
In addition to those articles, we have found the following instructive on the subject: Galie, "The Other Supreme Courts: Judicial Activism Among State Supreme Courts," 33 Syracuse L.Rev. 731, 772-79 (1982); Kirby, "Expansive Judicial Review of Economic Regulation Under State Constitutions: The Case for Realism," 48 Tenn.L.Rev. 241, 252-61 (1981); Note, "State Economic Substantive Due Process: A Proposed Approach," 88 Yale L.J. 1487 (1979).
After due reflection, we determine that the following standard should be applied in review of a challenge such as this one to the constitutionality of legislation prohibiting sales below cost in the attempt to prevent monopolization: Generally speaking, the test is whether the legislation is designed to accomplish an end within legislative competence and whether the means it employs are reasonably designed to accomplish that end without unduly infringing upon protected rights. This is essentially the same test as that enunciated in Mount Royal, but the factors to be considered in a "sale below cost" case such as this are somewhat different from those in a "regulation" case such as Mount Royal.[4] Because the stated end in a case such as this is normally that of preventing monopoly with the accompanying scarcity, high prices, and other harmful effects of monopolization, and because this purpose is specifically within the powers granted to the legislature in § 103 of the Constitution of 1901, the validity of the end will not usually be the critical question in such a case. With respect to the means used, the legislation must be reasonably designed to accomplish its purpose, and to do so with no more infringement on individual rights than is reasonably necessary. Specifically, in these "sale below cost" cases, the primary issue will be whether the legislation too broadly imposes restrictions on individuals' liberty to conduct their business as *1285 they choose. If the act penalizes innocent acts not reasonably related to the problem of monopolistic practices or other deceptive, disruptive, or destructive price cutting, the act strikes too broadly.
With these considerations in mind, we turn to the Motor Fuel Marketing Act. We quote in full § 8-22-2, which, together with § 8-22-3, quoted at the beginning of this opinion, tends to establish the legislature's purpose in enacting the Act:
"§ 8-22-2. Legislative findings.
Because this case concerns only the retail marketing of motor fuel, we do not address the questions regarding refiners.
We note the finding and the declaration that marketing of motor fuel is affected with a public interest. Because this legislation does not undertake the extensive regulation that requires a finding of affectation with a public interest, we pretermit consideration of whether to overrule McDowell and Hunter and to acquiesce in the legislature's finding and declaration. We do note, however, that events of the past 14 years, beginning with the 1973 oil embargo conducted by the Organization of Petroleum Exporting Countries, lend credence to this finding and declaration.
Further, we note the references to "fair competition" and compare the holdings, in the cases we have discussed, that the legislature may not engage in price fixing in a business not affected with a public interest merely to protect fair competition. See, e.g., Bulova Watch Co., supra. Because the tenor of this Act is to prevent monopolization and because the motor fuel marketing business has the potential for monopolization, we construe the statute as prohibiting sales below cost that tend to destroy or substantially lessen competition, not just those that are "unfair."
The only requirement of an anti-competitive intent to be found in the Act is in § 8-22-3, the "Legislative declaration and intent" section quoted at the beginning of this opinion. That section declares that the sale of motor fuel below cost "with the intent of injuring competitors or destroying or substantially lessening competition is an unfair and deceptive trade practice" (emphasis added).[6] This disjunctive immediately raises the question of whether Simonetti's *1286 reasoning requires a finding that the Act impermissibly penalizes for the ordinary injury to competitors that results from successful efforts to draw customers to one's own business. We reject such a conclusion, and hold now that the legislature may prohibit sales below cost made with the intent to injure competitors even in that sense. The cases make clear that such an intent is not innocent, but can clearly be linked either to the deceptive practice of luring customers by use of "loss leaders" while maintaining high prices on other items or to the destructive practice of developing clientele and diminishing competitors' business while temporarily suffering a loss in anticipation of higher profits after competitors have been driven out of business.
The question remains whether this intent provision of § 8-22-3 applies to the actual penalty provisions:
"§ 8-22-6. Certain below cost fuel sales prohibited.
"§ 8-22-9. Unlawful acts generally.
"It shall be unlawful under this section:
These provisions must be read in pari materia, and to the extent that the provisions of § 8-22-9 may be read to penalize acts without a finding of both a sale below cost and an injurious effect upon competition, such a construction is disapproved. To read these provisions literally and in isolation might well lead to a conclusion that they are unreasonably overbroad or void for vagueness, even under an analysis pursuant to the "affected with a public interest" test.
It may readily be seen that the legislature has in explicit terms prohibited only sales below cost where the effect is to injure competition. We think that to read the intent provision of § 8-22-3 into these provisions so as to place a burden on the State to prove intent would be manifestly contrary to the terms of the Act. However, we do think that the various provisions of the Act can be read together in a way that will save their constitutionality. It is quite consonant with the spirit and terms of the Act to construe it as providing that the State proves a prima facie case when it proves a sale below cost and an injurious effect on competition, and yet as allowing the defendant to prove lack of a harmful intent either in avoidance of liability or in mitigation of any penalty, as the trier of fact shall determine.
The legislature has provided several exceptions that may be categorized as defenses of "no injurious intent":
"§ 8-22-13. Competitive sales, etc.
The exceptions stated in § 8-22-12 are (1) isolated transactions not in the usual course of business, (2) bona fide clearance sales for discontinuing trade in such fuel, (3) imperfect or damaged fuel, (4) liquidation of a business, and (5) sales by a fiduciary or other officer under the direction of a court.
Considering the "intent" provision of § 8-22-3, we deem it consistent with these provisions to allow a general defense of lack of injurious intent even if the facts do not specifically fit one of the stated exceptionsfor example, an honest mistake in calculations. Such a defense would of course be a matter for the trier of fact and would be given such weight as the trier of fact deems appropriate. With such a construction, the statute may be held constitutional on the ground that it does not too broadly penalize conduct protected by the Declaration of Rights.
Other provisions in the Act relate to the method for calculating cost, which includes the cost of doing business (§ 8-22-4, et al.); to fines of up to $10,000 per day and injunctions for violations (§ 8-22-16); to actions brought by persons suffering injury (§ 8-22-17); and to prima facie showings by such plaintiffs of violations by defendants (§ 8-22-18). Mapco presents arguments relating to various of these provisions, but the only one we find to present a substantial question as to the constitutionality of the Act regards the prima facie provisions of § 8-22-18:
The trial court expressed concern in its order that one marketer could artificially place another in violation of the Act by raising his own cost of doing business. We agree with the trial court that these provisions are unconstitutional. They admit of the possibility that one marketer could sue another and make out a prima facie case simply by proving that the defendant marketer sold below the plaintiff marketer's cost. A prima facie case is a legally sufficient case, and to penalize a person on no more basis than this would not be rationally related to the goal of safeguarding against monopolies. Even the fact that the defendant can rebut the prima facie case does not save these provisions. To subject a defendant to the expense and risk of rebutting such an innocuous charge would interfere too greatly with ordinary, desirable competition and with the defendant's liberty interest in legally conducting his business without being subject to such harassment.
These provisions do not support a wholesale invalidation of the Motor Fuel Marketing Act, however, because they are severable. The Act contained a severability clause, which has not been reproduced in the Code. Ala.Acts 1984, No. 84-260, § 19. Thus, the prima facie provisions do not provide a ground for upholding the judgment of the trial court.
We hold that the Act, as construed and with certain provisions severed, is constitutional against the challenges made in this case,[7] and that the trial court erred in *1288 dismissing the complaint. The judgment is therefore reversed and the cause is remanded.
REVERSED AND REMANDED.
MADDOX, JONES, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
TORBERT, C.J., concurs specially.
BEATTY, J., concurs in the result.
TORBERT, Chief Justice (concurring specially).
I believe it is important to explain why I concur in the opinion. The opinion could be read as reducing, if not eliminating, the "intent" requirement that has been found in our older decisions. See Simonetti, Inc. v. State ex rel. Gallion, 272 Ala. 398, 132 So. 2d 252 (1961); San Ann Tobacco Co. v. Hamm, 283 Ala. 397, 217 So. 2d 803 (1968). If I believed this to be the effect of the Court's opinion, I would dissent, but I do not believe that to be its effect.
The opinion adopts a means-ends analysis similar to that employed in Mount Royal Towers, Inc. v. Alabama Board of Health, 388 So. 2d 1209 (Ala.1980). While Mount Royal criticizes cases such as Simonetti, it does not expressly overrule them, and the majority opinion in the present case correctly notes that Mount Royal misconstrued Simonetti as being an "affected-with-a-public-interest" case. Adoption of a means-ends analysis is not inconsistent with requiring an intent element. The opinion recognizes that courts in other states, in considering "sale below cost" statutes, have required an intent element while employing a means-ends analysis. It is stated in 41 A.L.R. 4th 612, 619 (1985) that "[i]t is also required that any sale below cost be made with anticompetitive intent before a statute prohibiting such a practice will be applicable."
The opinion makes it clear that "[i]f the act penalizes innocent acts not reasonably related to the problems of monopolistic practices or other deceptive, disruptive, or destructive price cutting, the act strikes too broadly." (Emphasis added.) It goes on to say, "we construe the statute as prohibiting sales below cost that tend to destroy or substantially lessen competition, not just those that are `unfair.'"
While the opinion never explicitly states that the means-ends analysis adopted to test the constitutionality of a statute includes an intent element, neither does it explicitly reject the necessity of proving an intent, in spite of the fact that it recognizes that an intent element is required in most, if not all, other jurisdictions. I find this to be significant in my conclusion that an intent element is implicitly embraced in the new test.
The ambiguity that exists in the opinion arises in two areas. The first is where the opinion rejects the Simonetti reasoning that a statute must require a showing of both intent to injure competitors and intent to destroy or substantially lessen competition. As is pointed out, the need to address this issue arose due to the use of the disjunctive rather than the conjunctive in Code 1975, § 8-22-3. As I read the opinion, it merely states that the two phrases are substantially the same and rejects the Simonetti conclusion that "intent to injure competitors" speaks to ordinary competition. In other words, the majority opinion does not lessen the burden imposed upon the state for proof of a violation but holds that the requirement of intent to injure competitors is substantially similar to the requirement of intent to destroy or substantially lessen competition.
Second, the opinion notes that the penalty provisions of the act in § 8-22-6 and § 8-22-9 do not include an intent element but, instead, prohibit certain conduct when the "effect is to injure competition." (Emphasis added.) In light of the requirement that such acts are constitutional only if there is an "intent" element, we could either strike down the statute as unconstitutional for prohibiting acts that have certain effects rather than prohibiting acts accompanied with the requisite intent or uphold the statute by reading an intent element into it.
The majority opinion takes the latter view. I find this approach to be appropriate *1289 in light of the legislature's clear intent to prohibit conduct where the actor had the intent to injure competitors or destroy or substantially lessen competition. Code 1975, § 8-22-3. Therefore, it is appropriate to construe the penalty provisions to have an intent element. However, rather than requiring the state to show such an intent as part of its prima facie case, I construe the opinion to say that such an intent will be presumed upon a showing that the acts have the effect of injuring competition. The defendant can rebut that presumption by proving the lack of intent. With respect to the majority opinion's observation that the defendant can prove lack of a harmful intent either in avoidance of liability or in mitigation of any penalty, if a case arose where the evidence showed conclusively that the defendant had no harmful intent, I believe that no liability could attach.
[1] The due process clause of the Fourteenth Amendment to the Constitution of the United States provides that no state shall "deprive any person of life, liberty, or property, without due process of law." Two sections of the Alabama Declaration of Rights contain "due process" language, but one, § 6, relates specifically to criminal prosecutions, and the other, § 13, relates to remedies for injuries done. Thus, the jurisprudence in Alabama has derived the substantive protection of a liberty interest in economic matters from §§ 1 and 35 without specific invocation of "due process" principles. Nevertheless, the issues and their analysis are essentially the same here as under the liberty interest protected by due process, with the result depending largely upon where a particular jurisdiction places the balance between deference to the legislature and protection of individual liberties.
[2] For a discussion of similar invalidations of "fair trade" laws in other states, see Kirby, Expansive Judicial Review of Economic Regulation Under State Constitutions: The Case for Realism, 48 Tenn.L.Rev. 241, at 252-53 (1981).
[3] While there might be differences in analysis with respect to a purely criminal statute and one, such as we have before us, authorizing equitable relief and civil penalties, we note that most of the statutes quoted in the cases mix criminal, civil, and equitable provisions, and the cases do not bottom their analysis on the mens rea requirement for criminal punishment. Furthermore, the substantial civil penalty authorized by the statute before us would in all likelihood require a mens rea element if the analysis were to turn on that question.
[4] We think even the "affected with a public interest" test has some application under a means-end analysis. In terms of such an analysis, that test concentrates on the purpose to be achieved. Thus, if the object of the legislation is affected with a public interest, the legislative end is not only a permissible one, but an important one. The public need then weighs more heavily in the balancing of interests in the means analysis, leading to acceptance of a more severe intrusion into private interests.
[5] A fourth example has already presented itself. In Star Service & Petroleum Co. v. State ex rel. Galanos, 518 So. 2d 126 (Ala.Civ.App.1986), the Court of Civil Appeals ruled that a retailer cannot pool the costs of the various grades of gasoline and thereby sell one grade below the individual cost of that grade. In this case the State says it would prove that Mapco sold regular gasoline for 92.9 cents per gallon at a time when the cost at the Mobile terminal of that grade plus applicable taxes was at least 96.9 cents per gallon.
[6] Cf. the Deceptive Trade Practices Act, § 8-19-1 et seq.
[7] We note that no question of federal law is presented as this appeal is postured. Cf. Dairymen, Inc. v. Alabama Dairy Comm'n, 584 F.2d 707 (5th Cir.1978). | December 18, 1987 |
0dab068c-e6ff-4e87-b02f-e7c1d4e07514 | Cummings v. Hill | 518 So. 2d 1246 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 1246 (1987)
Guilford Dudley CUMMINGS, Jr.
v.
Spurlin W. HILL and Frances Hill.
No. 86-924.
Supreme Court of Alabama.
December 11, 1987.
Harold Howell of Howell, Sarto and Howell, Prattville, for appellant.
Dan E. Schmaeling of Wood & Parnell, Montgomery, for appellee.
SHORES, Justice.
This is an appeal from a judgment following an action for breach of contract. After an ore tenus hearing, the trial court held for the plaintiffs. We affirm.
This matter arose as follows: In May 1985, the plaintiffs, Spurlin W. Hill and Frances A. Hill began negotiations with the defendant, Guilford Dudley Cummings, Jr., for the sale of the Hills' 50-acre farm in Chilton County. After numerous discussions, the parties reached an oral agreement for the sale of the property. The terms of that oral agreement were as follows: a total purchase price of $70,500, to be paid in three installments, to wit, $25,000 on June 1, 1985, $26,000 on September 15, 1985, and $19,500 on January 15, 1986. The deed was to be delivered to Cummings on September 15, 1985.
Cummings made the first payment on June 1, 1985, with a personal check, signed by Dede Cummings Anderson, Cummings's daughter. Mrs. Anderson had typewritten the terms of the parties' oral agreement on the face of the check, before sending it to Cummings for delivery to the Hills. Upon receipt of the check, Cummings typed additional *1247 terms on the back of the check. These additional terms were as follows:
The Hills endorsed and deposited this check. However, the Hills testified that the writing on the back of the check was not their agreement, and that they negotiated the check only because they needed the money to close on a house that they were buying. It is this check that Cummings contends is the parties' written contract.
On or about July 15, 1985, the Hills vacated the property, and Cummings took possession. Thereafter, the relationship of the parties broke down, and by September 15, 1985, the time of the second installment, both sides were represented by attorneys. On that date, the Hills and Cummings met to exchange the deed and the second installment payment. However, when the Hills insisted that Cummings execute a mortgage as security for the third and final payment, Cummings refused. Thereupon, the Hills refused to deliver the deed, and Cummings withheld the second payment of $26,000. Each side claims to have made a continuous tender of performance since September 15, 1985.
On November 21, 1985, the Hills sued Cummings, alleging breach of an oral contract for the sale of their farm and seeking damages and specific performance of the contract. Cummings filed a counterclaim, alleging that a written contract to sell was embodied on the June 1 payment check, and that the Hills were in breach of this written contract by their failure to perform by delivering the deed, cleaning up the premises, restoring the fences, and repairing and cleaning the interior of the houses located on the property. Cummings sought damages for misrepresentation of material facts about the improvements of the property, damages for mental anguish, damages for expenditure of funds necessitated by the Hills' alleged breach of the written contract, and specific performance by delivery of the deed. Additionally, Cummings denied the allegations of the Hills' complaint. The Hills responded to Cummings's counterclaim, denying that the writing on the June 1 check constituted a legal and binding contract under the laws of Alabama and attesting that the writing on the check did not represent the parties' mutual agreement. In addition, the Hills argued that the writing on the check was vague, ambiguous, and unenforceable.
In accordance with A.R.Civ.P. 67, Cummings paid into the court $45,500, the remaining amount due under the sales agreement. Shortly thereafter, and pursuant to a joint motion of the parties, the court entered an order releasing $24,761 of the $45,500 to pay off an existing mortgage on the property.
The parties filed a joint motion withdrawing their request for a jury trial, and an ore tenus hearing was held, during which the court heard testimony from the Hills as to the content of the parties' oral agreement. Following the hearing, the court entered a judgment in favor of the Hills on their complaint, awarding them damages in the amount of $20,760. The court also found for Cummings on his counterclaim, awarding him $1,000, the balance remaining on deposit with the circuit clerk after deduction of the Hills' award. From this decision, Cummings appealed.
*1248 Initially, we note that this case was tried ore tenus, and that a trial court's judgment based upon ore tenus testimony is presumed to be correct. This Court will not reverse such a judgment unless, after a consideration of all the evidence and all reasonable inferences to be drawn therefrom, it is found to be plainly and palpably wrong, Rhoden v. Miller, 495 So. 2d 54 (Ala.1986); Thompson v. Hartford Accident & Indemnity Co., 460 So. 2d 1264 (Ala.1984); Sieben v. Torrey, 252 Ala. 675, 42 So. 2d 621 (1949), nor may we "substitute our judgment on the effect of the evidence dealing with the pivotal question of fact for that of the trial court." Hooper v. Fireman's Fund Ins. Co., 272 Ala. 145, 146, 130 So. 2d 3 (1961); Sieben v. Torrey, supra.
Cummings's first argument is that the trial court violated the parol evidence rule by admitting testimony of negotiations held prior to the formation of the alleged written contract. However, construction of a written instrument is the duty of the trial court. Haddox v. First Alabama Bank of Montgomery, N.A., 449 So. 2d 1226 (Ala. 1984), and when a court finds a written contract to be ambiguous, parol evidence is admissible to aid in interpreting the parties' agreement. Medical Clinic Board of the City of Birmingham-Crestwood v. Smelley, 408 So. 2d 1203 (Ala.1981).
In the present case, we assume that the court determined the written contract to be ambiguous because it admitted parol evidence of prior negotiations. Upon reviewing the written contract, we find that determination to have been proper. Thus, the trial court did not err in admitting parol evidence.
Cummings's second argument also concerns the trial court's admission of evidence of oral negotiations between the parties. He contends that evidence of an oral agreement reached prior to the Hills' receipt of the first installment check should have been excluded. Under the Statute of Frauds, Code of Alabama (1975), § 8-9-2, an oral contract for the purchase of real estate is void unless it falls within a narrow exception. It is Cummings's argument that this particular situation does not fall within that recognized exception, and, therefore, that evidence of any oral agreement between the parties should have been excluded. However, we have already determined that the parol evidence of the parties' negotiations and oral agreements was properly admitted in order to aid the court in its interpretation of the ambiguous written memorandum. Therefore, we need not address this second issue further.
Accordingly, we affirm.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur. | December 11, 1987 |
e919f61e-4884-4f2a-a238-1b62dbef3efa | Raspilair v. Bruno's Food Stores, Inc. | 514 So. 2d 1022 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1022 (1987)
Emily Ann RASPILAIR
v.
BRUNO'S FOOD STORES, INC., et al.
86-807.
Supreme Court of Alabama.
October 2, 1987.
Earl D. McNeal, Huntsville, for appellant.
Benjamin R. Rice of Williams, Spurrier, Rice, Henderson & Grace, Huntsville, for appellee Bruno's Food Stores, Inc.
Donna S. Pate of Ford, Caldwell, Ford & Payne, Huntsville, for appellee Wal-Mart Stores, Inc.
William W. Sanderson, Jr., and Rennie Stettler of Lanier, Shaver & Herring, Huntsville, for appellee Hamilton Square Shopping Center, Inc.
MADDOX, Justice.
This is a slip and fall case. Plaintiff became entangled in a plastic bag in the parking lot of a shopping center, and she sued the owner and operator of the center and two lessees who maintained stores in the shopping center. The trial court, finding no duty owed to the plaintiff, granted *1023 summary judgment in favor of each defendant. Plaintiff appealed. We affirm.
Emily Ann Raspilair filed suit against Hamilton Square Shopping Center, Inc. ("Hamilton Square"), Bruno's Food Stores, Inc. ("Bruno's"), and Wal-Mart Stores, Inc. ("Wal-Mart") in the Circuit Court of Madison County, alleging negligence on the part of the defendants in placing or allowing a loose plastic bag to remain on the parking lot of the Hamilton Square Shopping Center.
On May 15, 1986, Raspilair had been shopping at the Big B Drug Store located in the Hamilton Square Shopping Center. Bruno's and Wal-Mart both operate stores in this shopping center, which is owned and maintained by Hamilton Square. After shopping at the Big B Drug Store, Raspilair returned to her van, which was in the parking lot in front of Bruno's and Wal-Mart. After putting some packages in the van, she began to walk toward the Wal-Mart store through a parking aisle and into a lane of traffic running between two aisles of parking. As Raspilair reached the edge of a parking space adjacent to the traffic lanes between the aisles of parking, she looked toward the front of the buildings and saw a "ragged plastic bag" at the end of the parking lot.
At this point, according to Raspilair's deposition testimony, she was about 60 feet from the sidewalk and the bag was lying on the ground about 50 feet from her. Upon observing the bag, Raspilair determined that it was not in her line of progress and assumed that she had no reason to worry about it. According to Raspilair's deposition testimony, she took her "next step" and became entangled in the plastic bag and fell.
Raspilair was the only witness to the accident. Raspilair had no knowledge of where the bag came from or how long it had been at the place where she first saw it. According to Raspilair's deposition testimony, no more than two or three seconds elapsed from the time she first saw the bag until the accident occurred.
Hamilton Square owns the shopping center and under its leases with Bruno's and Wal-Mart is responsible for the maintenance and cleaning of the parking lot. Hamilton Square cleans the parking lot six times a week, and does so when the parking lot is empty. Under the regular cleaning procedures performed by Hamilton Square, the shopping center parking lot was thoroughly cleaned the evening before or the morning of Raspilair's accident. Hamilton Square had received no notice of any other accidents in the parking lot prior to Raspilair's fall.
The issue on appeal is whether the trial court correctly granted summary judgment in favor of Bruno's and Wal-Mart, lessees, and Hamilton Square, lessor.
In reviewing a summary judgment case, this Court must determine whether a genuine issue of material fact exists and whether the moving party is entitled to a judgment as a matter of law. Watts Construction Co. v. Cullman County, 382 So. 2d 520 (Ala.1980); Ex parte Bagby Elevator & Electric Co., 383 So. 2d 173 (Ala.1980). When in a summary judgment case the moving party has met its burden, the nonmoving party may not rest on the mere allegations or denials in the original pleading but must set forth, by affidavits or otherwise, sufficient facts showing a genuine issue of material fact. Eason v. Middleton, 398 So. 2d 245 (Ala.1981).
Raspilair's case is strictly a negligence case, a so-called "slip and fall" case. In order to establish a cause of action for negligence, four distinct elements must be shown. There must exist (1) a legal duty owed to the plaintiff, (2) which is breached by the defendant and (3) which proximately causes (4) injury to the plaintiff. Jones v. Newton, 454 So. 2d 1345 (Ala.1984). Under Alabama law, the duty owed by the landowner to one injured on its premises depends upon the status of the injured party in relation to the premises. Hickey v. Charlton, 335 So. 2d 389 (Ala. 1976). Generally, a patron of a business, such as a shopping center, is an invitee. Winn-Dixie Montgomery, Inc. v. Rowell, 52 Ala.App. 1, 288 So. 2d 785 (1973), cert. denied, 292 Ala. 758, 288 So. 2d 792 (1974).
*1024 An invitor's duty to an invitee is to keep his premises in a reasonably safe condition, and, if the premises are unsafe, to warn of hidden defects and dangers that are known to it, but that are unknown or hidden to the invitee. Bush v. Alabama Power Co., 457 So. 2d 350 (Ala.1984). Dangers that are open and obvious or that should be known to an invitee in the exercise of reasonable care, do not require a warning. Owens v. National Security of Alabama, Inc., 454 So. 2d 1387 (Ala.1984). Actual or constructive notice of the dangerous condition must be proven before an invitor can be held responsible for the injury. Cash v. Winn-Dixie Montgomery, Inc., 418 So. 2d 874 (Ala.1982).
We will first address whether the trial court correctly granted summary judgment in favor of Wal-Mart and Bruno's. At trial, both Wal-Mart and Bruno's denied that they had any duty to maintain the parking lot in the Hamilton Square Shopping Center. Both Wal-Mart and Bruno's had leases with Hamilton Square that contained provisions obligating Hamilton Square to clean and maintain the parking lot. Raspilair failed to present any facts to indicate that either Wal-Mart or Bruno's owed any duty to her to maintain the parking lot. The record discloses no evidence that Wal-mart or Bruno's was ever under a duty to maintain the parking lot, nor does it disclose any evidence that Wal-Mart or Bruno's ever undertook any maintenance functions in the parking lot. Because Raspilair failed to prove that there was a duty on the part of either Wal-Mart or Bruno's to maintain the parking lot, we are of the opinion that the trial court correctly granted Wal-Mart and Bruno's motions for summary judgment.
We will next address whether the trial court correctly granted summary judgment in favor of Hamilton Square. It is clear from the record that Hamilton Square had a duty to maintain the parking lot at the shopping center. We are of the opinion, however, that under the authority of Alabama law, Hamilton Square, under the facts of this case, owed no duty to the plaintiff. The granting of summary judgment in Hamilton Square's favor was, therefore, proper.
There is no evidence in the record that Hamilton Square had an intent to injure Raspilair, that Hamilton Square discovered Raspilair's peril prior to the injury, or that Hamilton Square had any superior knowledge of the danger which caused the injuries. In fact, the injury arose from a condition which, even assuming it was a hazard, was an open and obvious hazard which plaintiff was aware of, and which was created only moments before the accident. The only evidence of knowledge of the existence of the plastic bag before Raspilair's fall is the evidence that Raspilair herself saw it seconds before she became entangled. There is no evidence from which an inference could be drawn that Hamilton Square had prior notice or that it was negligent in not knowing the condition of the premises.
In other words, Raspilair has not produced a scintilla of evidence that Hamilton Square knew, or should have known, of the existence of the plastic bag. Raspilair could not show how the bag got into the parking lot, who the bag belonged to, or how long the bag had been there. There was no evidence that the bag had been in the parking lot a sufficient amount of time for Hamilton Square to be aware of it. There was no testimony or other evidence of any knowledge on the part of Hamilton Square of any dangerous condition or defect that was brought to its attention prior to Raspilair's fall.
For the foregoing reasons, the judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
JONES, SHORES, BEATTY and HOUSTON, JJ., concur. | October 2, 1987 |
b56ef4ce-5424-4670-ac7d-65e39ae02db1 | M & M INV. CO. v. Regency Oaks Apartments | 517 So. 2d 591 | N/A | Alabama | Alabama Supreme Court | 517 So. 2d 591 (1987)
M & M INVESTMENT COMPANY
v.
REGENCY OAKS APARTMENTS and Alabama Power Company.
86-854.
Supreme Court of Alabama.
November 13, 1987.
*592 Perry Hubbard, Tuscaloosa, for appellant.
G. Thomas Yearout and Brett N. Blackwood, Birmingham, for appellee Regency Oaks Apartments.
Patricia A. McGee of Balch & Bingham, Birmingham, and McCoy Davidson of Roberts, Davidson & Wiggins, Tuscaloosa, for appellee Alabama Power Co.
JONES, Justice.
As originally filed, the "declaratory judgment" complaint of plaintiff/appellant M & M Investment Company ("M & M") was based upon a dispute between M & M and defendant/appellee Regency Oaks Apartments ("Regency") over the interpretation and application of the reservation of an easement in M & M's lease and the grant of an easement in Regency's deed.[1] M & M's lessor and Regency's grantor are one and the same person, Gordon Davis. The easement in question in both instruments relates to the same 30-foot-wide and 200-foot-long strip of land across M & M's leased property and provides one of two means of access to Regency's property, which adjoins the property leased to M & M.
By amendment, M & M added defendant/appellee Alabama Power Company ("APCo") as a party. As amended, the complaint sought a declaration of the rights of the respective parties with regard to the manner and extent of the defendants' usage of the easement, claiming that Regency's placement and construction of a 24-foot-wide roadway, with bordering 7-inch-high lateral concrete curbing, exceeded the contemplated use of the easement; that APCo exceeded its easement rights by installing underground electrical cables; and that both defendants violated their authority by constructing permanent "improvements" upon the ingress and egress easement, to the total and unreasonable exclusion of M & M's use of this portion of its leased property.
The trial court granted Regency's motion for partial summary judgment, declaring that the right reserved and granted in the lease and deed created a valid and enforceable easement for the general purposes of ingress and egress by Regency and its tenants over the 50-foot strip across M & M's leased property. Although it was *593 made final by a Rule 54(b), A.R.Civ.P., order, this partial summary judgment was not appealed.
After denying M & M's motion for summary judgment, the trial court granted Regency's and APCo's separate motions for summary judgment. M & M appeals. We affirm as to APCo; we reverse as to Regency.
Because our holding is based primarily on the error of the trial court in its misapplication of the law to certain undisputed facts, a detailed recital of the evidence in support of, and in opposition to, the summary judgment motions is not necessary. Rather, we will recite only so much of the evidence as is essential to an understanding of the relevant principles of law and their application to the triable issues of fact.
We begin by setting forth the easement provisions of the two documents in question. We quote from the lease between Davis, as lessor, and M & M, as lessee:
We quote from the deed from Davis, as grantor, to Regency, as grantee:
A close reading of these easement provisions discloses two essential differences in the separate documents: 1) The easement in the lease is an interest reserved in the lessor, who continues to own the fee, while the easement in the deed is an interest in a portion of the leased property, granted by the owner to the grantee (the new owner) of the property described in the deed; and 2) the last clause of the easement language in the lease, "may be improved by the lessor in any manner he sees fit," is not contained in the easement language in the deed.
It is reasonably clear from the record, and from the briefs of counsel, that the trial court accepted and applied the principles of law advanced by Regency and APCo. They contend that their rights to the use of the easement spring from the easement language of the lease. In other words, the appellees do not contend (indeed, they tacitly concede otherwise) that the simple ingress and egress easement provided in the deed would not authorize them to arbitrarily exclude M & M from such reasonable use of the 50-foot strip as would not interfere with Regency's and APCo's reasonable use of the easement. M & M asserts that Regency's and APCo's position, as accepted by the trial court, is tantamount to interpreting the language of the lease ("may be improved by the lessor in any manner he sees fit") so as to convert the easement into a grant of the fee. Because the easement language of the lease inures to the benefit of Regency, as grantee of the Regency property, Regency and APCo contend (and this contention formed the basis of the trial court's ruling) that they are relieved from the application of any standard of reasonableness in their use of the easement.
M & M, on the other hand, conceding Regency's right to use the 50-foot strip as a means of ingress and egress across the leased property to and from the Regency Apartments, contends that Regency must look to its deed for the nature and extent of the easement granted by Davis across his property, of which M & M, under the terms of the lease, has the exclusive right of possession subject only to the easement granted by Davis in his deed to Regency. See Magna, Inc. v. Catranis, 512 So. 2d 912 *594 (Ala.1987), (holding, under facts where the nature and extent of the easement differ materially from those of the easement in the instant case, that the dominant estate had the right of exclusive use of the easement).
These opposing positions can be better understood and appreciated in the factual context of Regency's actual use of the 50-foot-wide strip of property. Over M & M's protest, Regency constructed a 200-foot-long and 24-foot-wide paved road, with lateral concrete curbing, along the western half of the east 50 feet of M & M's leased property. This particular placement of the 24-foot roadway on the 50-foot-wide easement strip, along with the 7-inch-high concrete curb that borders the road's west side, effectively prevents M & M from using the property for any purpose.
According to Regency's own testimony, there was no necessity, either technically or economically, for placing the road and curb on the west side of the 50-foot-wide easement as opposed to placing it along the east side of the property; placing it on the east side would have given M & M parking spaces for its "fast food" customers. Before Regency's exclusive use of the easement, this entire 50-foot strip was used by M & M for parking. One of the Regency partners testified that the roadway and curb were purposefully placed as the most effective way of preventing M & M from interfering with Regency's use of the easement.
If we assume, as argued by the parties and as accepted by the trial court, that the easement language in the lease ("may be improved by the lessor in any manner he sees fit") is broader and authorizes greater discretionary use of this easement by the dominant estate than the more restrictive language of Regency's deed, this greater authority inures not to Regency but to the lessor, Davis. Under ordinary circumstances, there is no difference between a right of easement by way of a reservation and such right by way of a grant. To so contend in the instant context, however, loses sight of the material distinction between a reservation of an easement in a lease and an outright grant of an easement in a conveyance of the fee. If the reservation of the right of easement is broader than the subsequent grant of the right of easement with respect to the same property, the difference in the nature and breadth of the two respective rights is retained in the grantor.
Here, whatever right of easement Davis, as owner of the fee, reserved in his lease, he still retains subject only to the right of easement granted in his conveyance of the fee in the Regency property. If there is a difference in the right reserved in the lease and the right granted in the deed, that difference inheres in Davis, not in Regency.[2] Indeed, all of the cases cited by the appellees in support of their reliance on the easement reservation language in the lease are inapposite because they deal with conveyances of the fee and not with leases.
Even if we assume that the "right to improve" creates an appurtenance, as contended by Regency, the question remains: Did Regency acquire that right as an appurtenance to its property or is it a right retained by the lessor? Again, the distinction between a lessor and a grantor, in the instant context, answers the question in favor of the lessor. Thompson On Real Property describes the nature of an easement appurtenant:
"Section 322. The nature of an easement appurtenant. An appurtenant easement is incapable of existence separate and apart from the particular land to which it is annexed. So, it cannot be conveyed by the party entitled to it separate from the land to which it is appurtenant. It can be conveyed only by a conveyance of such land. It inheres in the *595 land and cannot exist separate from it; nor can it be converted into an easement in gross."
The right to improve the easement over M & M's leased property does not inhere in the Regency property, for that right is fully capable of being exercised independently of the Regency property. This does not mean that Regency, through its own easement grant, is not authorized to make such reasonable usage of the easement as comports with its ingress and egress purpose, including the construction of a modern roadway, bordered by lateral curbing, to protect against unauthorized and unreasonable intrusion. Indeed, improvements of this nature fall within the express purpose of the right of easement contained in its deed. But, here again, this right must be reasonably exercised in such a manner as will accommodate M & M's right of possession under its lease. Duke v. Pine Crest Homes, Inc., 358 So. 2d 148 (1978).
The applicable principles of law were laid down in the early case of Long v. Gill, 80 Ala. 408 (1885):
Long v. Gill, supra, 80 Ala. at 409-10.
Using Long as its authority, A.L.R.2d summarizes the rule:
28 A.L.R.2d 265, § 7.
Regency was granted a permanent easement with the right of ingress and egress and travel over and upon a strip of land 50 feet in width and 200 feet in length. Regency exercised its right by constructing two 7-inch-high concrete curbs 200 feet long and then paved the 24-foot-wide area between the curbs as a roadway. Unquestionably, it had the right, under its grant, to do this. Having made its decision, however, that only approximately one-half of the 50-foot strip was needed to accomplish the purposes for which the easement was granted, did it also have the unilateral and arbitrary right to locate the roadway and curbing in such a manner as to preclude M & M's reasonable use of the remaining one-half of the 50-foot strip?
Because of Regency's own testimony that the sole reason for its placement of the roadway was to insure against M & M's interference with Regency's use of the easement, we are almost persuaded that the question can be answered in M & M's favor as a matter of law. We decline to so hold, however, because, notwithstanding the weight and quality of this evidence against Regency's position, there may be other evidence that creates a triable issue of fact with respect to the application of the "reasonableness" standard. Therefore, as to Regency, the judgment is reversed and the cause is remanded for further proceedings. *596 For the trial court's guidance in fixing an easement by judicial decree, see Looney v. Blackwood, 224 Ala. 342, 140 So. 400 (1932).
We turn now to the propriety of the summary judgment in favor of APCo. It is settled law that the right of easement carries with it the right of a utility company to construct and maintain its facilities upon and over the property within the confines of the easement, unless the exercise of this right is so arbitrary as to unnecessarily and unreasonably interfere with the owner's right of reasonable use of his own property. See Alabama Power Co. v. Taunton, 465 So. 2d 1105 (Ala.1984).
Applying this rule of reason, we find that M & M's claim that APCo violated its right of easement by installing underground electrical cables to service the Regency apartments and its claim that APCo acted arbitrarily in locating and constructing a twin-pole electrical transformer bank on the easement are unsupported by the law and the evidence. Therefore, as to APCo, the judgment is affirmed. We note, however, that our affirmance of the judgment in favor of APCo does not preclude the trial court, either on its own motion or at the instance of either of the remaining parties, from bringing APCo back into the case as a party if the relocation of the APCo facilities is essential to the appropriate adjustment of the equities among the parties.
We are constrained to conclude with an additional observation: We do not perceive how the issue to be resolved on remand of this cause can be adjudicated without necessarily affecting the interest of Gordon Davis, the owner of the leased premises. Indeed, his interest in preserving whatever rights were reserved in the easement language of the lease of the M & M property and not granted in the easement language of the deed to the Regency property, if any, is a substantial interest that should not be adjudicated in a proceeding to which he is not a party. Therefore, the trial court would be well advised to invoke Rule 19, A.R.Civ.P., and treat Gordon Davis as an indispensable party, to be aligned as a party plaintiff or as a party defendant according to the position stated in his answer.
AS TO ALABAMA POWER COMPANY, AFFIRMED.
AS TO REGENCY OAKS APARTMENTS, REVERSED AND REMANDED.
TORBERT, C.J., and SHORES, ADAMS and STEAGALL, JJ., concur.
[1] Although M & M and Regency are successors-in-interest to prior transferees, for the sake of convenience, they are referred to herein, when applicable, as "lessee" and "grantee."
[2] We emphasize that we are not to be understood as holding that the distinction between the easement language of the lease and the easement language of the deed is a material difference. Whether the "right to improve" would have been impliedly conveyed by the inclusion of the word "appurtenance" in the deed from Davis to Regency so as to create the right in Regency to arbitrarily use the property to the total exclusion of M & M, is a question we need not decide here. | November 13, 1987 |
e0e09e08-e9d0-4b67-a001-9100ab52f227 | Smoyer v. BIRMINGHAM A. CHAMBER OF COM. | 517 So. 2d 585 | N/A | Alabama | Alabama Supreme Court | 517 So. 2d 585 (1987)
Sandra D. SMOYER
v.
BIRMINGHAM AREA CHAMBER OF COMMERCE, et al.
86-511.
Supreme Court of Alabama.
November 6, 1987.
Frank O. Burge, Jr., of Burge & Wettermark, Birmingham, for appellant.
Jasper P. Juliano of Parsons, Lee & Juliano, Birmingham, for appellee Birmingham Area Chamber of Commerce.
William A. Scott, Jr., and Patricia K. Rea of Clark & Scott, Birmingham, for appellee James C. Kyser, et al.
W. Michael Atchison and Allan R. Wheeler, of Starnes & Atchison, Birmingham, for appellee F.R. Hoar & Son, Inc.
Rebecca L. Shows of Huie, Fernambucq & Stewart, Birmingham, for appellee Cory G. Jackson.
Steven A. Benefield of Rives & Peterson, Birmingham, for appellee Giattina, Kirkwood & Partners, Inc.
*586 STEAGALL, Justice.
Sandra D. Smoyer appeals from the summary judgment granted in favor of the defendants. We affirm.
On February 29, 1984, the Birmingham Area Chamber of Commerce (hereinafter "Chamber of Commerce") hosted a "Business After Hours" reception at the Mountain Brook Sheraton Hotel (hereinafter "Sheraton"). James C. Kyzer was a member of the public affairs committee of the Chamber of Commerce. As a member of this committee, Kyzer volunteered to sell admission and drink tickets at the reception. The admission price of $3 per person was charged in order to cover the cost of the food served at the reception, while beer and mixed drink tickets were sold for a nominal charge of $.50 and $1.00, respectively. Kyzer was provided free drinks at the reception.
Kyzer left the Sheraton at approximately 8 p.m. Smoyer was traveling in the left southbound lane of U.S. Highway 280 near the intersection of Highway 280 and the Sheraton driveway when Kyzer was leaving the Sheraton. As Kyzer was exiting the Sheraton driveway, he drove his automobile into the acceleration lane; then he moved into the right southbound lane and then into the left southbound lane of Highway 280, where he was struck by Smoyer's automobile as he moved into the lane.
Smoyer filed suit against several parties. The defendants included Kyzer and Liberty National Life Insurance Company, neither of whom is involved in this appeal. In her suit Smoyer alleged against the Chamber of Commerce and Cory G. Jackson (the manager of the Sheraton) a cause of action based upon Alabama's Dram Shop Act (Ala. Code 1975, § 6-5-71); she alleged against Cory G. Jackson, Jackson Motel Management Company, Inc., The Patio Club of Birmingham, Inc., and M.B. Motel Limited (the owners and operators of the Sheraton), a claim of negligence in the design and maintenance of the driveway to the Sheraton from Highway 280; she alleged against Giattina, Kirkwood & Partners, Architects, Inc., a claim based on negligent design of the driveway; and she alleged against F.R. Hoar & Son, Inc., a claim of negligent construction of the driveway. Summary judgments were granted in favor of all the defendants involved in this appeal.
Jackson Motel Management Company, Inc., operated the Sheraton by contract with The Patio Club of Birmingham, Inc., which was the general partner of M.B. Motel Limited, which owned the premises. Cory G. Jackson was the president of Jackson Motel Management Company, Inc.
The pertinent part of Ala. Code 1975, § 6-5-71, states:
In Martin v. Watts, 508 So. 2d 1136, 1141 (Ala.1987), this Court stated:
"Section 6-5-71 creates a civil remedy against persons who, contrary to law, cause the intoxication of another by providing the other person with alcoholic beverages, when the plaintiff is injured because of the intoxication. The term which most narrowly limits this cause of action is the requirement that the providing of the alcoholic beverages be contrary to law." (Emphasis original.)
Smoyer argues that because the Chamber of Commerce did not have a license to sell alcoholic beverages, as required by Ala. Code 1975, § 28-3A-3(a)(16), it provided alcoholic beverages to Kyzer contrary to the law. Section 28-3A-3(a)(16) provides that the Alcoholic Beverage Control Board may issue a special event retail license to persons for the purpose of selling alcoholic beverages for a period of three days. Alabama Code 1975, *587 § 28-3A-25(a)(15), provides that it is unlawful for any association of persons to sell alcoholic beverages without a license. Although the Chamber of Commerce may have sold alcoholic beverages without a license to do so, the primary issue in this case is whether there was a sale or a providing of alcoholic beverages to Kyzer contrary to the law.
A "sale" is defined in Ala. Code 1975, § 28-3-1(25), as follows:
Smoyer asserts that a "sale" occurred between Kyzer and the Chamber of Commerce because Kyzer conferred a benefit upon the Chamber of Commerce by selling admission and drink tickets at the reception and, in exchange for performing these services, received alcoholic beverages. We do not agree.
In order to constitute consideration for a promise, there must have been an act, a forbearance, a detriment, or a destruction of a legal right, or a return promise, bargained for and given in exchange for the promise. Files v. Schaible, 445 So. 2d 257 (Ala.1984); Roberts v. Lindsey, 242 Ala. 522, 7 So. 2d 82 (1942); and 17 Am.Jur.2d Contracts § 85, at 427 (1964). The evidence is undisputed that Kyzer volunteered his services to the Chamber of Commerce without regard to whether alcoholic beverages would be served to him. Kyzer testified that this was the first function at which he had worked and that he was not aware that "complimentary" drinks would be served to him when he volunteered his services. The evidence establishes that Kyzer had no intention of volunteering his services in exchange for alcoholic beverages; therefore, there was no "sale" of alcoholic beverages to Kyzer. Since this Court does not recognize a common law cause of action for negligently dispensing alcohol, Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala.1984), the summary judgment for the Chamber of Commerce is affirmed.
Smoyer also asserts that Cory Jackson, who held the liquor license for the Sheraton, should be liable under the Dram Shop Act for allowing an unlicensed vendor to sell or provide alcoholic beverages at the Chamber of Commerce reception. As previously stated, in order for the Dram Shop Act to apply, a person must have provided alcoholic beverages to another. See Martin v. Watts, supra. In this case, there is no evidence that Jackson or any person under his control provided alcoholic beverages to Kyzer. The record shows that the Sheraton did not furnish the liquor to be served and did not furnish the bartenders for the function. Jackson and the Sheraton's only connection to the Chamber of Commerce function was that the Sheraton rented a reception room to the Chamber of Commerce. Accordingly, summary judgment was properly granted for Jackson.
Smoyer asserts that the owners and operators of the Sheraton were negligent in the design and maintenance of the driveway to the Sheraton that intersects with Highway 280. Smoyer also argues that the architects who designed the driveway were negligent, and she argues that the contractors who constructed the driveway were negligent as well. Smoyer presented the deposition of an expert in traffic engineering and traffic design who testified that the driveway was defectively designed and marked. For example, he stated that there were no traffic control devices at the intersection. The defendants contend that there was a complete absence of any evidence that their alleged negligence proximately caused Smoyer's injuries.
This Court has held that no matter how negligent a party may have been in a particular instance, he is accountable only to those persons injured as a proximate result of such negligence. Hall v. Booth, 423 So. 2d 184 (Ala.1982); Goodson v. Elba Baking Co., 408 So. 2d 498 (Ala.1981); and Vines v. Plantation Motor Lodge, 336 *588 So. 2d 1338 (Ala.1976). In discussing the concept of proximate cause, this Court in General Motors Corp. v. Edwards, 482 So. 2d 1176, 1193 (Ala.1985), stated:
In their motions for summary judgment, the architects, the contractors, and the owners and operators of the Sheraton offered evidence to show that there was not a causal relationship between the alleged negligent design, construction, or maintenance of the driveway and Smoyer's injuries. Due to the injuries that Kyzer received in the accident, he could not recall anything about the accident. Accordingly, he could not state whether the condition of the driveway contributed to the accident. Smoyer testified that she first saw Kyzer's automobile when it was in the acceleration lane after it had just exited the Sheraton driveway. Smoyer did not observe the automobile as it approached the intersection and could not testify as to whether the automobile stopped before entering Highway 280. In fact, there was no evidence that Kyzer did not stop prior to entering Highway 280. Based upon the testimony before the trial court, any explanation for Kyzer's actions or inactions would be based upon speculation or conjecture. Evidence that affords nothing more than mere speculation, conjecture, or guess is completely insufficient to warrant the submission of a case to the jury. Sprayberry v. First National Bank, 465 So. 2d 1111 (Ala.1984); and Headrick v. United Insurance Company of America, 279 Ala. 82, 181 So. 2d 896 (1966). Thus, even if we assume that the driveway was negligently designed, constructed, or maintained, there is no evidence that this negligence proximately caused Smoyer's injuries. Accordingly, the summary judgment for the defendants was properly granted.
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON, SHORES, BEATTY and HOUSTON, JJ., concur.
JONES, J., concurs in the result. | November 6, 1987 |
8c97c064-0013-48d7-a6de-527e85adc8f4 | McCollum v. Reeves | 521 So. 2d 13 | N/A | Alabama | Alabama Supreme Court | 521 So. 2d 13 (1987)
Mildred McCOLLUM and M.G. McCollum
v.
Joseph C. REEVES and Gwendoline Reeves.
86-604.
Supreme Court of Alabama.
December 11, 1987.
Rehearing Denied February 19, 1988.
*14 J. Terry Huffstutler, Jr., Guntersville, for appellants.
George M. Barnett of Barnett, Hundley & Driskill, Guntersville, for appellees.
BEATTY, Justice.
This is an appeal by plaintiffs, Mildred and M.G. McCollum, from a judgment entered in their action to have determined the true common boundary line between plaintiffs' property and the adjoining property of defendants, Joseph and Gwendoline Reeves, situated in Marshall County. We affirm.
The parties are coterminous landowners with two common boundary lines. The parties had been neighbors for nearly 30 years when a dispute arose over one of the common boundary lines, which is the south line of the plaintiffs' property. The original action was prompted when the plaintiffs read a newspaper article concerning the defendants' request that the county close a paved public road that ran over the defendants' *15 property near the plaintiffs' southern boundary. The road had been used primarily by defendants for business purposes and by plaintiffs as access to the east side of their property. Defendants claimed that they would be the only property owners affected by closing the road.
Uncertain of the actual location of their southern boundary line, but believing that they owned property to the paved road, plaintiffs proceeded with a survey of their property. As the surveyor was attempting to run the plaintiffs' southern boundary, one of the common lines between the parties' properties, defendants protested and thus prevented that final line of the survey from being run. Thereafter, plaintiffs petitioned the court to order the survey completed and to establish the boundary line as indicated by the completed survey.
After hearing ore terms evidence without a jury, the trial court did not grant plaintiffs' request regarding the survey, but entered an order adjudging as follows:
Plaintiffs' motion for "New Trial or Rehearing and Other Relief" was denied. This appeal followed.
Plaintiffs argue that the trial court's judgment should be reversed because it is not supported by sufficient evidence. They also maintain that the establishment of the fence line as the proper common boundary does not comport with § 35-3-3, Code of 1975, which provides that the "judgment shall locate and define the boundary lines involved by reference to well-known permanent landmarks." Plaintiffs contend that, here, only one well-known landmark, the southeast corner of the quarter-quarter section was referenced. Plaintiffs further contend that when the fence line was established as the common boundary, the trial court, in effect, accepted defendants' claim of adverse possession up to the fence. Finally, plaintiffs claim that the trial judge was obligated, under Rule 54(c), A.R.Civ.P., to grant them an easement for ingress and egress over the disputed land; thus, they say, his refusal to render a judgment regarding an easement was reversible error. After reviewing the record, we conclude that no reversible error was committed by the trial court in fixing the boundary or in refusing to rule on whether plaintiffs are entitled to an easement across defendants' property.
When based upon testimony submitted ore terms in a suit to fix a boundary line, the judgment of the court will be affirmed if there is any credible evidence to support it. Pinson v. Veack, 388 So. 2d 964 (Ala.1980); Ray v. Robinson, 388 So. 2d 957 (Ala.1980). In fact, the judgment of the trial court will not be reversed unless there is a clear preponderance of the evidence against it or unless it is plainly erroneous or manifestly unjust. Ferrell v. Shomo Land Co., 345 So. 2d 297 (Ala.1977); Jones v. Wise, 282 Ala. 707, 213 So. 2d 914 (1968).
In the case at bar, there is evidence to support the judgment of the trial court establishing the fence line as the boundary between the parties. The description contained in the plaintiffs' 1939 deed to their land expressly excludes the land south of the fence:
Testimony established that, although the fence set as the boundary line had been mended and portions of it had been replaced throughout the years, it had remained in substantially the same location where plaintiffs' predecessor had erected it over 50 years ago. Since plaintiffs had in some spots tacked the fence to trees when mending it, the trial court, in placing the boundary at the fence line, stated that "the parties shall use the oldest fence post[s] still standing and places along said former fence line where it can be ascertained that a post was formerly placed or existed, and the parties shall ignore trees." It is well settled that "[w]here permanent monuments, natural or artificial, are already on the ground, shown in evidence, and incorporated in the decree, this will suffice." Baldwin v. Harrelson, 229 Ala. 469, 158 So. 416 (1934). Plaintiffs have admitted that the southeast corner was an established boundary point. The court directed that this corner would serve as the east end of the boundary line and that the center of Big Spring Creek would serve as the west end. Thus, the court did not violate § 35-3-3 in directing that old fence posts be used in fixing the boundary.
Moreover, § 35-3-3 further provides:
Thus, if the boundary line as fixed in the trial court's order is considered by the plaintiffs to be insufficient in some way, they are free to ask the court to have a surveyor establish an additional "permanent stone or iron landmark in accordance with the judgment."
In addition to evidence of the deed, there was testimony that the plaintiffs had on numerous occasions requested and received permission from the defendants to cross the fence line in order to gain access to the paved road. Further, defendants testified that at the time they bought their property, Mr. McCollum walked off the fence line with Mr. Reeves, indicating the fence as the boundary line between their properties. There was also evidence that the defendants have maintained the property up to the fence line. This evidence is sufficient to support the trial court's judgment.
Plaintiffs also contend the trial court erred in ruling that "[t]he court was not asked to ascertain the existence of any easements or rights to the use of public roads, and the court, therefore, expresses no opinion on these issues." They argue that the issue of ingress/egress was tried by implied consent, Rule 15(b), A.R.Civ.P., and further that their general prayer for relief entitles them, under Rule 54(c), to relief in the form of a declaration of an easement over that property between the fence line and the paved road.
The applicable scope of operation of this rule is explained in the committee comments thereto, which state: "[T]his rule is only applicable where the proof supports the relief finally given, and where, therefore, pursuant to Rule 15(b), the pleadings could be deemed to be amended to conform to the evidence."
The trial court's refusal to issue a ruling regarding plaintiffs' right to an easement indicates that the issue of ingress/egress was in fact not litigated by the implied consent of the parties. The determination "as to whether [an] issue has been tried by express or implied consent under Rule 15(b) is a matter for the trial court's discretion, which will not be altered on appeal absent an abuse thereof." Travelers Indemnity Co. v. Capitol City Haulers, Inc., 393 So. 2d 1012, 1013 (Ala.Civ. App.1980). Similarly, whether pleadings are deemed to be amended in order to conform to the evidence presented is also a matter within the discretion of the trial *17 court. Such decisions will not be reversed absent an abuse of discretion. Hughes v. Wallace, 429 So. 2d 981, 983 (Ala.1983).
A review of the record in this case indicates that the trial court did not abuse its discretion in refusing to rule on plaintiffs' claim regarding their right to an easement. While plaintiffs contend that there was evidence establishing their use of the property between the fence and the road as access to parts of their property, the testimony concerning the plaintiffs' use of the "gap" in the fence was also relevant to the issue of the proper location of the boundary line. When a party contends that an issue was tried by express or implied consent and the evidence on that issue is also relevant to the issue expressly litigated, there is nothing to indicate that a new issue was raised at trial, and the pleadings are not deemed amended under Rule 15(b). Wright & Miller, Federal Practice & Procedure, Civil, § 1493 (1971).
Further, evidence in support of the trial court's judgment lies in the plaintiffs' own objections at trial. When the defendants attempted to elicit testimony regarding the plaintiffs' permissive use of the "gap" as access to plaintiffs' land, plaintiffs' counsel objected, stating, "We're not really getting into access at this point on it. Not from the pleadings." Later in the trial, plaintiffs' counsel objected to the admission of a picture of the land in question and stated, "I really don't understand what the gap's got to do with trying to get a boundary line established. It sounds like we're talking about ingress and egress more than the purpose of the pleadings in this case." Thus, the words of plaintiffs' counsel serve to negate plaintiffs' argument that the issue of their right of ingress and egress was actually litigated.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur. | December 11, 1987 |
f366c900-b2d2-4aab-b86b-c4f43295e887 | Ex Parte Branch | 526 So. 2d 609 | N/A | Alabama | Alabama Supreme Court | 526 So. 2d 609 (1987)
Ex parte Preston BRANCH.
(In Re Preston Branch
v.
State of Alabama).
86-500.
Supreme Court of Alabama.
September 18, 1987.
As Modified on Denial of Rehearing December 4, 1987.
*610 L. Dan Turberville, Birmingham, for petitioner.
Don Siegelman, Atty. Gen. and Beth Slate Poe, William D. Little, Asst. Attys. Gen., for respondent.
Bryan E. Morgan, Executive Director, Alabama Dist. Attys. Ass'n, amicus curiae on behalf of district attorneys in State of Ala.
MADDOX, Justice.
This petition for certiorari presents a case of first impression involving the State's use of its peremptory challenges to strike 6 of 7 blacks from the jury venire. The specific question presented is whether the State's explanations of the reasons for its exercise of the challenges were racially "neutral." In determining this question, we must review, in detail, the holding of the Supreme Court of the United States in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and our holding *611 in Ex parte Jackson, 516 So. 2d 768 (Ala. 1986).
Because the Supreme Court of the United States did not "formulate particular procedures to be followed," and did not "instruct the [state and federal] courts how best to implement [the Batson ] holding,"[1] and because the trial judge, in this case, did not have the benefit of any guidelines formulated by the Supreme Court of the United States in Batson, or by this Court in the case of Jackson, we do not, at this time, affirm or reverse the judgment of the Court of Criminal Appeals, but we remand the case to the Court of Criminal Appeals, with directions to remand it to the trial court for a new determination of the issue raised by the petitioner, based upon the guidelines we delineate in this opinion, and based upon the rule of law contained in Jackson.
The facts of this case are very ably set out in the opinion of the Court of Criminal Appeals, and while we could make reference to that opinion for the statement of facts, we believe that for a better presentation of the issue in this case, we should, and do, recite the facts, as found by the Court of Criminal Appeals in Branch v. State, 526 So. 2d 605 (Ala.Crim.App.1986):
"`I believe based on my experience with this government prosecutor, Mr. Nelson, he had a record of using his preemptory [sic] challenges to rid the venire of blacks.
"`I had one three weeks ago, he used all seven strikes to eliminate blacks. And in light of Batson v. Kentucky, I believe the defendant is being denied Fifth, Fourteenth and Sixth Amendment rights to right of a fair trial by this prosecutor, systematically exclusion of black people.'
"`HARRIS: One of the prosecutors participated in a "bust" five months before, at a home close to Harris's residence, and saw Harris during the "bust"; he could not recall Harris's relationship to the person arrested, so he thought it best to strike him. Moreover, Harris was similar in age and physical appearance to Branch.
"`MAYNOR: As an employee of Gold Kist, Maynor was not desirable as a juror because it is the prosecutors' general experience that Gold Kist's employees have not been attentive as jurors and a number of employees are being investigated for a variety of crimes.
"`MEADOWS: Meadows's background as an unemployed, former student was not attractive, and she "appeared... to have kind of a dumbfounded or bewildered look on her face, as if she didn't know why she was here, or what she was supposed to do."
"`MONTGOMERY: Being a scientist, Montgomery's presence on the jury would have put too great a burden on the prosecution, considering the background of the case and "knowing the problems with one hundred percent mathematical aspects of a case like this"; the prosecutors did not want a "scientific application in the decision."
"`PARMER: Parmer's general appearance was unkempt. Moreover, he worked in "credit management," and because the prosecutors were not able to question him about his specific job, they deemed it too risky to leave Parmer on the jury. Parmer appeared to be a gruff collector and the prosecution did not want a juror who would be at odds with anyone else on the jury.
"`KELLEY: As a single female who was about the same age as Branch, Kelley "might feel as though she were a sister, or that type thing and have some pity on the person." Moreover, Kelley was observed frowning and the prosecutors did not want, on the jury, a person who was in a bad mood. Finally, her response to defense counsel was much more favorable than her response to the prosecutors.'
Because of our in-depth treatment of this issue, we quote additional portions of the record, which contains a transcript of what occurred relating to the peremptory challenge issue:
"MR. TURBERVILLE [defense counsel]: [Batson was] not talking about striking all blacks. [It talks] about striking any black member from jury duty because of race.
"... Batson very clearly says that [the State] must give a neutral reason or believable reason for striking. They used their first six strikes to strike blacks ... even an insurance adjustor, conservative-type biochemistry person, an old woman that
"MR. TURBERVILLE (reading): `A defendant may establish a prima facie case of purposeful discrimination solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. The defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. The defendant may also rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that such facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. The prosecutor may not rebut a prima facie showing by stating that he challenged the jurors on the assumption that they would be partial to the defendant because of their shared race or by affirming his good faith in individual selections.'
"Judge, I believe that I met that test.... We pointed out it was a black defendant. I pointed out that their first three strikes had been black. I pointed out that just three weeks or so ago, I had a case with Mr. Rod Nelson where he used all of his peremptory strikes to eliminate blacks when it was a black defendant.
"MR. TURBERVILLE: Judge, may I make a motion here also?
"MR. TURBERVILLE: I think this is kind of like locking the barn door after the cows are out. Batson says that once I make that showing, and I did make that showing before the trial even started, during the selection of the jury and I asked you to do something about it then, I asked you to stop it. And I also objected after each additional black person was eliminated.
"I think that we have gone too far, and I believe a mistrial is in order. And anything that they do, knowing theseyou know, three days that they were going to have to do this, Judge,it gives them an opportunity to go ahead and come up with neutral reasons, which they didn't have at the time they struck them, Judge.
"It is apparent to all with any common sense whatsoever, that they were striking these people purely because of their race....
"MR. TURBERVILLE: I objected each time, your Honor....
". . .
"MR. NELSON [counsel for State]: Your Honor, we just want to state for the record that at the time that we had this conference in your office, that we stated for the record, and we want to state again, that none of our strikes were based on any racial prejudice, or none of the strikes were based on racial reasons.
"What we would like to do at this time, then, is state for the record the reason we had then, and it's the same reason we have now. We haven't done any additional research about these people. These are the reasons we had at the time, we wrote them down pursuant to your request that we should. And we would like to each give our reasons. I will give a reason first and then [Mr. Wallace] will for each person.
"I believe our first strike was 122, Mr. Harris. Mr. Harris was from East Thomas. I personally was on a bust about five months ago at a home close by Harris. In fact, I think on that occasion, Mr. Harris saw me and I saw him late one evening out in that area, part of town, East Thomas, and I thought that I recognized him. And *614 because I didn't know or could not recall his involvement at that time having seen him, whether he was the brother or whether he was a relative of the person that we busted for the drugs, I felt it best that we strike him.
"MR. WALLACE [counsel for State]: As to Mr. Harris, your Honor, I agreed with Mr. Nelson that we should strike him. The reason I had marked on my sheet was that he washe appeared to me to be near in age and overall appearance to the defendant, not counting the fact that they were both black.
". . .
"MR. NELSON: 194 was our next strike, Mrs. Maynor. Mrs. Maynor works for Gold Kist. And my general experience has been that those people coming from that company, for whatever reason, do not make good jurors. And theyin fact, it has been my experience in the past, I have had several that have worked at Gold Kist that I have left on, and they have not been attentive [and] all of them have not been black.
"MR. WALLACE: Judge, as to Maynor, I had already marked on my sheet and agreed with Mr. Nelson that because of the employment at Gold Kist, that this juror should be struck. It has been my experience that I have seen a number of investigations where persons who were employed at Gold Kist are being investigated for a variety of different crimes. And I did not want somebody from that work background on my jury.
"MR. NELSON: Our next strike was 201, Mrs. Meadows. Mrs. Meadows had been a student and was now unemployed and [I] felt like that since she had been in school and now she was unemployed, that that was a risk to leave her on. We didn't feel like we wanted someone with that particular type background; student, and being unable to get a job.
"MR. WALLACE: As to Meadows, I agreed with Mr. Nelson that Meadows should be struck, because in my personal observation of Meadows during voir dire, Meadows appeared to me to have kind of a dumbfounded or bewildered look on her face, as if she didn't know why she was here, or what she was supposed to do.
"MR. NELSON: 204 was our next strike, Mr. Montgomery. Mr. Montgomery was a scientist, knowing the background of this case, and knowing the problems with one hundred per cent mathematical aspects of a case like this, we did not feel like that it would beor I did not feel like it would be appropriate to leave someone who may have a tendency to measure this in a scientific way; and felt like that that [sic] would have resulted in too great a burden for us. So, we struck him.
". . .
"MR. WALLACE: 204, Montgomery. As to Mr. Montgomery, I agreed with Mr. Nelson that he should be struck for that very same reason, in that he is a scientist, and we didn't want a scientific application in the decision of this case.
"MR. NELSON: Our next strike was Number 218, Mr. Parmer. Mr. Parmer worked with a creditinvolved in credit management. And we felt like, first of all, his general appearance to begin with was unkempt, he was not neat. And next, his background of dealing in credit, it has been my experienceand there again, without the ability to go into specifically his background of what area of credit he was involved in, whether it was the application, management of people coming in to him for credit, or what area, I thought it was too risky to keep somebody on there with that type background, without being able to go into it. And if you go into it, then you embarrass a person, perhaps, toso based on the fact of no other responses, and not really getting any more insight into background, I felt like it was too much of a risk.
"MR. WALLACE: As to Mr. Parmer, I agreed with Mr. Nelson that Mr. Parmer should be struck. Because to me, he had kind of a gruff, collector-type appearance, as opposed to credit management. And I didn't want a person on the jury who I thought was going to be at odds with anybody else on the jury.
*615 "MR. NELSON: [Finally,] Ms. Kelley, 162. Ms. Kelley was single, and in my opinion, she fell into about the same age category as the defendant. And the possibility that if she did, and being single, that she might feel as though she were a sister, or that type thing and have some pity on the person. And I felt like she should be struck for that reason.
"MR. WALLACE: As to Kelley, I agreed with Mr. Nelson that Kelley should be struck, because the times that I observed Kelley, Kelley was frowning. Again, I didn't want a person in a bad mood on the jury.
"We should also point out that these are six of our strikes. The seventh strike was for Number 51, a man named Coughlin, who is a white man.
"MR. NELSON: Also, I would point out, [Mr. Wallace] reminded me, Ms. Kelley, throughout almost the entire time that I was asking questionsand this is going to get into some body language, your Honor, which we are entitled to look at and evaluateshe had her handsshe was totally closed to me. And in contrast, when [Mr. Turberville] was up asking questions, her arms were open and that is another part of it.
"Mr. Dan Turberville, the defense attorney, when he was up, she was open and answered questions a little bit more frankly; or even had a response. Didn't have any response to mine.
"MR. TURBERVILLE: Judge, [i]f you believe that junk and if you uphold this jury, what you are saying to Batson [is that] the [Justices of the] Supreme Court wasted their time. [The State] can say any juror that holds his hands across his chest, or has his hands down, that represents closed and open.
"... [I]f you are going to [accept] that, then that just gives the government prosecutors, who have been living a lie so long that they now believe that they have never done anything wrong as far as discriminating against blacks, a license to come in and give you some junk like they just gave you.
"They talk about the one person from East Thomas. Are we saying that if you live in East Thomas, you may live near a criminal; so therefore, you can't be on a jury? We know that the juror himself wasn't charged with a crime. You asked them if they had been charged with a crime and if they were convicted and so forth and so on. We asked them about relationship with the police and the District Attorney and so forth.
"You know, it would be so easy for this prosecutor or any prosecutor, to come in and say, `I was out on a bust wherever, and I thought I might have seen that man, and I can't remember what his involvement may have been.' Judge, that is ridiculous.
"All right. We go to Gold Kist. And I think that the people at Gold Kist ought to know that they are not eligible for jury duty in the City of Birmingham, Jefferson County. This prosecutor has just said it, that they don't want people from Gold Kist to serve on juries. Now, he said that. And I hope they quote him in the newspaper. I hope it goes just like that, because that is what is in the record. We don't want Gold Kist people serving on juries. Virtually, everybody at Gold Kist, short [of] a few white supervisors just poor old people that just can't find anything else, are black. And I think you can take judicial notice of that if you want to.
"Talking about this lady that gave the different body English, Number 162. She is an insurance adjustor. Every defense attorney knows that one person you get off a jury, if you can, is an insurance adjustor. They are almost a hundred per cent prosecution oriented, and they know that.
". . .
"They eliminated one person because they had a frown on their face. You're going to give themthat can be a reason? Then forget about Batson, because all you have got to do is come in and say, `I noticed that the juror had a frown on their face and looked like they had rather be somewhere else.' It is making a mockery of Batson.
*616 "They have lived a lie too long, Judge. They believe it. Those two believe, and all these people down here believe, one hundred per cent, that we never strike blacks because they are black. And that is the biggest lie that I have ever seen in my lifetime. And it's a lie right here in this court, and you heard those answers, Judge. You heard them. And it is going to take courage to say, `me and you have messed up, and this is the law in the United States of America now, and it was changed last week.'
"You heard him, Mr. Nelson, saying early, `Why don't we follow the law that was in Alabama? We haven't got that opinion yet. Let's go by the law in Alabama.' That shows where he was coming from, Judge. We haven't got the opinion yet. We know under Swain we can do anything we want to, so we're going to do it.
"Judge, I did all I could at the start of this trial to stop that; to give this man a fair trial. And again, they left a person on that knew me, knew my partner, and on and on.
"MR. TURBERVILLE: Yes, sir, lawyer. And the one white they strucklet me say thisthe one white that they struck was a person that made it quite clear that he didn't like police and he didn't like the D.A.; even his mother had been arrested on some false charge. And he hadn't got the District Attorney to do anything about [it]. So, they had to eliminate him. He obviously wasn't going to go for them, no matter what the circumstances.
". . .
"MR. TURBERVILLE: We're talking about the fact thatthere were seven blacks. They used their first six strikes over my objection to eliminate blacks. The reasons they have brought in are so frivolous that they hinge [sic] on the ridiculous.
"Judge, what you are doing is giving them a license to just stomp on Batson. That is all it is, if you uphold this. That is what you are saying, come in, give me any excuse other than race, and there is not one D.A. in the country that will say, `Judge, I eliminated him because he was black and the defendant was black.' He is going to say because he had his hands drawn, because he was frowning, because his clothes were messy." (Emphasis added.)
In this opinion we will set forth our understanding of the Batson decision, and the procedures that we believe must be followed to implement it, the specific role of the trial judge in the process, and the scope of appellate review of the trial court's determination. In establishing these procedures, we will set forth the following: the history of the law in Alabama relating to the drawing, summoning, selection and empanelling of juries in criminal cases; the history of the development and use of peremptory challenges in Alabama; and the statutory procedure used for the selection of petit juries in criminal cases. We will also set forth the showing required by a defendant in order to raise a Batson challenge; the role of the trial judge in determining whether a sufficient showing has been made; the responsibility of the prosecutor to establish race neutral reasons if a prima facie case is made; and the role of the trial judge in determining, in each particular case, whether the prosecutor has satisfactorily shown that the state did not use its peremptory challenges to exclude persons from the petit jury on account of their race.
Alabama has for many years statutorily regulated the procedures for drawing, summoning, *617 selecting, and empaneling both grand and petit juries in criminal cases. See Title 12, Chapter 16, Code 1975, § 12-16-1 through § 12-16-233. Of particular significance, insofar as this particular case is concerned, is the procedure provided for by Code 1975, § 12-16-100:
An alternate plan is authorized by the provisions of § 12-16-145 and § 12-16-146, and this Court's Advisory Committee on Criminal Procedure has recommended a procedure that substantially follows the procedures set forth in § 12-16-100. See Proposed Revision with Commentary, Alabama Rules of Criminal Procedure, January 1983, Rule 18.4.
Since the adoption by the State of a separate procedure for the selection of jurors in criminal cases, many attacks have been made on the procedure. The one which received the most attention, however, was Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965). Other challenges have centered around the unequal number of peremptory challenges given the state in some counties, but not in others,[2] and several challenges were made *618 involving individual jury lists, in which claims of racial discrimination were advanced.[3]
In 1978, the Alabama legislature adopted Act No. 594,[4] a comprehensive act which provided for the qualifications and selection of jurors, and which revamped the jury system in Alabama. With the adoption and implementation of this Act, the attacks upon the jury selection process, either by separate lawsuits, or in individual cases, significantly decreased. For a historical account of this Act, see O'Leary v. State, 417 So. 2d 219 (Ala.Crim.App.1981), aff'd, 417 So. 2d 232 (Ala.1982), cert. den., 463 U.S. 1206, 103 S. Ct. 3536, 77 L. Ed. 2d 1387 (1983).
Sections 1 and 2 of Act No. 594, now codified as Code 1975, § 12-16-55 and § 12-16-56, respectively, read as follows: "§ 12-16-55. Declaration of policy.
"* * *
"§ 12-16-56. Discrimination prohibited.
These two Code sections are significant when a trial court is faced with a Batson or Jackson challenge.
We believe that the Legislature intended, in adopting this public policy, that our trial juries should be selected from a list which contains a fair cross section of the area served by the court, and that any form of discrimination against a particular juror on account of race, color, religion, sex, national origin, or economic status is *619 prohibited, and if liberally interpreted to apply to the State's use of peremptories, the state policy is not inconsistent with Batson or Jackson requirements.
In fact, in Jackson, this Court discussed the principles of Batsonciting both state and federal lawregarding the use of peremptory challenges by the state to exclude from jury service all blacks on the venire. This Court opined:
In Jackson, this Court noted the criticism that had been leveled against the decision in Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), and noted that several state courts had found that their state constitutions required a lesser burden on a defendant to prove purposeful discrimination than that required by Swain. The Court cited the cases of State v. Neil, 457 So. 2d 481 (Fla.1984); People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 739, (1981); State v. Crespin, 94 N.M. 486, 612 P.2d 716 (Ct.App.1980); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. den., 444 U.S. 881, 100 S. Ct. 170, 62 L. Ed. 2d 110 (1979); People v. Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr. 890, 583 P.2d 748 (1978). 516 So. 2d at 771-772.
This Court, in Ex parte Jackson, specifically stated:
"`Article I, section 16 of the Florida Constitution guarantees the right to an impartial jury. The right to peremptory challenges is not of constitutional dimension. The primary purpose of peremptory challenges is to aid and assist in the selection of an impartial jury. It was not intended that such challenges be used solely as a scalpel to excise a distinct racial group from a representative cross-section of society. It was not intended that such challenges be used to encroach upon the constitutional guarantee of an impartial jury. As did the New York, California, and Massachusetts courts, we find that adhering to the Swain test of evaluating the peremptory challenges impedes, rather than furthers, article I, section 16's guarantee. We therefore hold that the test set out in Swain is no longer to be used by this state's courts when confronted with the allegedly discriminatory use of peremptory challenges.'
"457 So. 2d at 486.
This Court then spelled out the procedure which must be followed once a prima facie showing is made by an accused:
"`The reasons given in response to the court's inquiry need not be equivalent to those for a challenge for cause. If the party shows that the challenges were based on the particular case on trial, the parties or witnesses, or characteristics of the challenged persons other than race, then the inquiry should end and jury selection should continue. On the other hand, if the party has actually been challenging prospective jurors solely on the basis of race, then the court should dismiss that jury pool and start voir dire over with a new pool.'
"Neil, 457 So. 2d at 487.
In Jackson, the prosecutor was not required to come forward with race-neutral reasons. In this case, the trial court did, "[o]ut of perhaps more caution than anything else," require the State to explain why the particular persons were selected for peremptory strikes, so this case is in a different procedural posture. In Jackson, the case was remanded to allow the State to present race-neutral reasons, if it could. The mandate of Jackson was not available to the trial court in this case at the time it found that the State had met its burden; therefore, in the interest of justice, we are of the opinion that the trial judge should be given another opportunity to examine his findings in light of the requirements of Batson and Jackson.[5]
Based upon this record, we could reverse this case, as some state courts have reversed similar cases, and order a new trial,[6] or we could affirm the judgment on the ground that the state's race-neutral reasons were sufficient.[7] We believe, however, that justice requires that we remand the case to give the trial court an opportunity to review again the sufficiency of the *621 state's race-neutral reasons, under the guidelines we set out in this opinion.
What exactly do Batson and Jackson hold? Our interpretation of the opinions in Batson and Jackson shows that they, at least, hold as follows:
(1) The Swain rule, which allowed prosecutors to use their peremptory challenges to exclude members of a cognizable racial group from jury service, has been changed.
(2) Peremptory challenges are not entirely eliminated,[8] but prosecutors are restricted in their use, and if prosecutors' use of them is challenged and a prima facie case of discrimination is shown, prosecutors must be able to give neutral reasons for their use.
(3) Peremptory challenges may be, and "unfortunately [have] been used to discriminate against black jurors."[9]Batson, 476 U.S. at 99, 106 S. Ct. at 1724 (emphasis added).
(4) The State's privilege to strike individual jurors through peremptory challenges is subject to the commands of the Fourteenth Amendment, Batson, and Sections 1, 6, and 22 of the Alabama Constitution of 1901. Jackson.
(5) Racial discrimination in the selection of jurors harms not only the accused, whose life and liberty they are summoned to try, but could also discriminate against the excluded juror, thereby undermining "public respect for our criminal justice system," Batson, 106 S. Ct. at 1724, and could violate the public policy of this state that each person called is entitled to be "considered" for service. Code 1975, § 12-16-55.
(6) Both the Alabama and Federal Constitutions prohibit a prosecutor from challenging a potential juror solely on account of his or her race, or on the assumption that black jurors, as a cognizable group, will be unable to impartially consider a case.
(7) It is the duty of the trial court to determine, first, whether the defendant has made a requisite showing of the racially discriminatory use of peremptory challenges, and to further determine whether the "prosecutor [has] articulate[d] a neutral explanation related to the particular case to be tried." (Emphasis added.) Batson, 476 U.S. at 98, 106 S. Ct. at 1723. "No mere whimsical or fanciful reason will suffice." (Emphasis added.) Jackson, 516 So. 2d at 772 (Ala.1986).
We now set out some general guidelines for lower courts to follow until this *622 Court, under its rule-making power, can adopt a more specific rule of procedure, or until the Legislature adopts a procedure that would comport with the State and Federal Constitutions.[10] This inquiry should become a part of the trial record so that there will be a sufficient record for appellate review. People v. Wheeler, 22 Cal. 3d 258, 280, 583 P.2d 748, 764, 148 Cal. Rptr. 890, 905 (1978); see generally, Jackson, supra.
The burden of persuasion is initially on the party alleging discriminatory use of peremptory challenges to establish a prima facie case of discrimination.[11] In determining whether there is a prima facie case, the court is to consider "all relevant circumstances" which could lead to an inference of discrimination. See Batson, 476 U.S. at 93, 106 S. Ct. at 1721, citing Washington v. Davis, 426 U.S. 229, 239-42, 96 S. Ct. 2040, 2047-48, 48 L. Ed. 2d 597 (1976). The following are illustrative of the types of evidence that can be used to raise the inference of discrimination:
1. Evidence that the "jurors in question share[d] only this one characteristictheir membership in the groupand that in all other respects they [were] as heterogeneous as the community as a whole." Wheeler, 22 Cal. 3d at 280, 583 P.2d at 764, 148 Cal. Rptr. at 905. For instance "it may be significant that the persons challenged, although all black, include both men and women and are a variety of ages, occupations, and social or economic conditions," Wheeler, 22 Cal. 3d at 280, 583 P.2d at 764, 148 Cal. Rptr. at 905, n. 27, indicating that race was the deciding factor.
*623 2. A pattern of strikes against black jurors on the particular venire; e.g., 4 of 6 peremptory challenges were used to strike black jurors. Batson, 476 U.S. at 97, 106 S. Ct. at 1723.
3. The past conduct of the state's attorney in using peremptory challenges to strike all blacks from the jury venire. Swain, supra.
4. The type and manner of the state's attorney's questions and statements during voir dire, including nothing more than desultory voir dire. Batson, 476 U.S. at 97, 106 S. Ct. at 1723; Wheeler, 22 Cal. 3d at 281, 583 P.2d at 764, 148 Cal. Rptr. at 905.
5. The type and manner of questions directed to the challenged juror, including a lack of questions, or a lack of meaningful questions. Slappy v. State, 503 So. 2d 350, 355, (Fla.Dist.Ct.App.1987); People v. Turner, 42 Cal. 3d 711, 726 P.2d 102, 230 Cal. Rptr. 656 (1986); People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748, 764, 148 Cal. Rptr. 890 (1978).
6. Disparate treatment of members of the jury venire with the same characteristics, or who answer a question in the same or similar manner; e.g., in Slappy, a black elementary school teacher was struck as being potentially too liberal because of his job, but a white elementary school teacher was not challenged. Slappy, 504 So. 2d at 352 and 355.
7. Disparate examination of members of the venire; e.g., in Slappy, a question designed to provoke a certain response that is likely to disqualify a juror was asked to black jurors, but not to white jurors. Slappy, 503 So. 2d at 355.
8. Circumstantial evidence of intent may be proven by disparate impact where all or most of the challenges were used to strike blacks from the jury. Batson, 476 U.S. at 93, 106 S. Ct. at 1721; Washington v. Davis, 426 U.S. at 242, 96 S. Ct. at 2049.
9. The state used peremptory challenges to dismiss all or most black jurors. See Slappy, 503 So. 2d at 354, Turner, supra.
After a prima facie case is established, there is a presumption that the peremptory challenges were used to discriminate against black jurors. Batson, 476 U.S. at 97, 106 S. Ct. at 1723. The state then has the burden of articulating a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tried, and which is nondiscriminatory. Batson, 476 U.S. at 97, 106 S. Ct. at 1723. However, this showing need not rise to the level of a challenge for cause. Jackson, supra; Neil, 457 So. 2d at 487; Wheeler, 22 Cal. 3d at 281-82, 583 P.2d at 765, 148 Cal. Rptr. at 906.
In addition to a clear, specific, and plausible nondiscriminatory explanation of a specific characteristic that affected the decision to challenge, the following are illustrative of the types of evidence that can be used to overcome the presumption of discrimination and show neutrality:
1. The state challenged non-black jurors with the same or similar characteristics as the black jurors who were struck.
2. There is no evidence of a pattern of strikes used to challenge black jurors; e.g., having a total of 6 peremptory challenges, the state used 2 to strike black jurors and 4 to strike white jurors, and there were blacks remaining on the venire.
Batson makes it clear, however, that "[t]he State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties. Rather, the State must demonstrate that `permissible racially neutral selection criteria and procedures have produced the monochromatic result.'" Batson, 476 U.S. at 94, 106 S. Ct. at 1721, citing Alexander v. Louisiana, 405 U.S. 625, 632, 92 S. Ct. 1221, 1226, 31 L. Ed. 2d 536 (1972). Furthermore, intuitive judgment or suspicion by the prosecutor is insufficient to rebut the presumption of discrimination. Batson, 476 U.S. at 97, 106 S. Ct. at 1723. Finally, a prosecutor cannot overcome the presumption "merely by denying any discriminatory motive or `affirming his good faith in individual selections.' " Batson, 476 U.S. at 98, 106 S. Ct. at 1723, citing Alexander, 405 U.S. at 632, 92 S. Ct. at 1226.
*624 Once the prosecutor has articulated a nondiscriminatory reason for challenging the black jurors, the other side can offer evidence showing that the reasons or explanations are merely a sham or pretext. Wheeler, 22 Cal. 3d at 282, 583 P.2d at 763-64, 148 Cal. Rptr. at 906. Other than reasons that are obviously contrived, the following are illustrative of the types of evidence that can be used to show sham or pretext:
1. The reasons given are not related to the facts of the case.
2. There was a lack of questioning to the challenged juror, or a lack of meaningful questions.
3. Disparate treatmentpersons with the same or similar characteristics as the challenged juror were not struck. Slappy, 503 So. 2d at 354; Turner, 42 Cal. 3d at 725, 726 P.2d at 110, 230 Cal. Rptr. at 664; Wheeler, 22 Cal. 3d at 282, 583 P.2d at 760, 148 Cal. Rptr. at 906.
4. Disparate examination of members of the venire; e.g., a question designed to provoke a certain response that is likely to disqualify the juror was asked to black jurors, but not to white jurors. Slappy, 503 So. 2d at 355.
5. The prosecutor, having 6 peremptory challenges, used 2 to remove the only 2 blacks remaining on the venire. Cf. Slappy, 503 So. 2d at 354; Turner, 42 Cal. 3d at 715, 726 P.2d at 103, 230 Cal. Rptr. at 657.
6. "[A]n explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically." Slappy, 503 So. 2d at 355. For instance, an assumption that teachers as a class are too liberal, without any specific questions having been directed to the panel or the individual juror showing the potentially liberal nature of the challenged juror.
The trial court, in exercising the duties imposed upon it, must give effect to the state policy expressed in Sections 1, 6, and 22 of the Alabama Constitution and Code 1975, § 12-16-55 and § 12-16-56. Furthermore, the trial judge must make a sincere and reasonable effort to evaluate the evidence and explanations based on the circumstances as he knows them, his knowledge of trial techniques, and his observation of the manner in which the prosecutor examined the venire and the challenged jurors. People v. Hall, 35 Cal. 3d 161, 672 P.2d 854, 858, 197 Cal. Rptr. 71 (1983); see also Wheeler, 22 Cal. 3d at 281, 583 P.2d at 764, 148 Cal. Rptr. at 906.
In evaluating the evidence and explanations presented, the trial judge must determine whether the explanations are sufficient to overcome the presumption of bias. Furthermore, the trial judge must be careful not to confuse a specific reason given by the state's attorney for his challenge, with a "specific bias" of the juror, which may justify the peremptory challenge:
Slappy, 503 So. 2d at 354. The trial judge cannot merely accept the specific reasons given by the prosecutor at face value, see Hall, 35 Cal. 3d at 168, 672 P.2d at 858-59, 197 Cal. Rptr. at 75; Slappy, 503 So. 2d at 356; the judge must consider whether the facially neutral explanations are contrived to avoid admitting acts of group discrimination. See Slappy, supra. This evaluation by the trial judge is necessary because it is possible that an attorney, although not intentionally discriminating, may try to find reasons other than race to challenge a black juror, when race may be his primary factor in deciding to strike the juror. Finally, if the trial judge determines that there was discriminatory use of peremptory challenges, an appropriate remedy may be to dismiss that jury pool and start over with a new pool. Jackson, supra, citing Neil, supra, at 487. This remedy is not exclusive, however.
*625 As suggested, the foregoing are simply illustrations, based on the recent development of case law in this area,[12] of the types of evidence and considerations that can be taken into account in evaluating whether peremptory challenges have been used in a discriminatory manner. Certainly, as the law develops, more may be added.
The trial judge should not, as he did in this case, wait until the end of the trial to make a ruling on the motion for a mistrial based on the state's impermissible use of its peremptory challenges. The trial judge should rule on any motion that attacks the state's use of its peremptory strikes before the jury is sworn to try the case, unless, of course, the parties agree to allow the state to present race-neutral reasons at a later time. We do not suggest that the additional time, as was given in this case, necessarily allowed the prosecutors in this case to present race-neutral reasons they did not have at the time the motion was made, but the allowance of additional time would present this opportunity, if a prosecutor were so inclined. Furthermore, a ruling on the matter before the jury is sworn would result in judicial economy.
What is the scope of review on appeal from a finding by the trial judge that the state has given a satisfactory neutral explanation? This, too, is a question of first impression. In Batson, the Court stated that "[w]e have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors." Batson, 476 U.S. at 97, 106 S. Ct. at 1723. In Batson, the Court, in footnotes 20 and 21, discussed how it had handled similar cases involving claims of discrimination, and the weight to be given court findings:
"The Court of Appeals for the Second Circuit observed in McCray v. Abrams, 750 F.2d [1113] at 1132 [(2d Cir.1984)], that `[t]here are any number of bases' on which a prosecutor reasonably may believe that it is desirable to strike a juror who is not excusable for cause. As we explained in another context, however, the prosecutor must give a `clear and reasonably specific' explanation of his `legitimate reasons' for exercising the challenges. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S. Ct. 1089, 1096, 67 L. Ed. 2d 207 (1981).
Batson, 476 U.S. at 98, 106 S. Ct. 1723, 1724.
In Jackson, this Court said that the "trial court must use its discretion" in determining whether the prosecutor's reasons are adequate.
In view of the statements made both in Batson and Jackson, we believe that the Court of Criminal Appeals correctly held that "[w]e may only reverse the trial judge's determination that the prosecution's peremptory challenges were not motivated by intentional discrimination if that determination is clearly erroneous," citing United States v. Mathews, 803 F.2d 325, 330 (7th Cir.1986). The Court of Criminal Appeals, applying this standard of review, concluded:
After reviewing the same record as did the Court of Criminal Appeals, we do not come to the same conclusion, at this time.[13]
The history of this state, insofar as peremptory challenges are concerned, shows that the defendant has been favored throughout most of this history. The legal attacks that have been made upon this state's jury selection process indicate that racial bias may have played a significant role in the past in the jury selection process, but any improper practice of the past should not affect the present application of the law as set forth in Batson and Jackson. As this Court pointed out in Beck v. State, 396 So. 2d 645 (Ala.1981), in discussing the application of guidelines in death penalty cases:
Article 1 of our State Constitution provides:
*627 This section has been the first "Article" and the first "Section" of every constitution the people of this state have ever ratified. While we recognize that the Constitutions of 1819 and 1861 used the word "freemen" instead of the word "men," we need only accept that as being a part of our history, and that the mandates of the Constitution of 1901 make no distinction among our citizens with regard to the right to "life, liberty, and the pursuit of happiness."
In the Jackson case, this Court cited Section 1 of our state constitution, and, in this opinion, we cite our legislative policy regarding the drawing, selecting, and empanelling of our juries. As judges, we have taken an oath to uphold the principles embodied in our state and federal constitutions.
The jury, which is such an integral part of the judicial system of this state, should be impartial and free of bias and prejudice. On the other hand, no citizen should be denied his right to be "considered" for jury service "on account of race, color, religion, sex, national origin or economic status." § 12-16-55 and § 12-16-56. Public respect for our criminal justice system and the rule of law demands that these public policies be implemented.
We recognize that prosecutors and defense counsel alike are generally faced with selecting a jury for the trial of a case from a strike list that contains the names of many individuals on whom they have limited knowledge, or no knowledge, of their backgrounds, biases, prejudices, or qualifications to serve on a particular case. In the past, it is probable that prosecutors did engage in general "stereotyping" in order to eliminate those individuals who they thought might harbor some undisclosed bias or prejudice. Batson and Jackson definitely affect the manner of the exercise of those types of peremptory challenges, but they do not eliminate peremptory challenges. Obviously, Batson and Jackson place more responsibility on trial judges, and on prosecutors, but as the Supreme Court of the United States noted in Batson, the proper use of voir dire can, in many instances, ferret out any hidden bias or prejudice on the part of a particular juror, and while that hidden bias or prejudice in a particular case might not rise to the point of being a challenge for cause, it could form the basis for a valid peremptory challenge. We are confident that our judicial system is capable of using the guidelines we establish herein to guarantee the right of every accused a fair trial, and to preserve "public respect for our criminal justice system and the rule of law." Batson, 476 U.S. at 99, 106 S. Ct. at 1724.
We realize that the trial court and the Court of Criminal Appeals were reviewing the requirements of Batson with little guidance on how a trial judge should discharge his responsibility when a defendant raises a Batson objection. We have the benefit of several cases decided in other jurisdictions, which may or may not have been called to the attention of those courts. We also have benefited from some reviews of Batson that have been made in legal publications. We believe that the guidelines that we set out in this opinion will not only aid the trial court in this case, but other courts faced with a Batson or Jackson challenge.
After reviewing this cause, we cannot conclude that the trial judge's findings should be affirmed; neither can we conclude, at this time, that we should reverse; therefore, we remand the case to the Court of Criminal Appeals with directions to remand it to the trial court for the purpose of allowing the trial judge to review again the proceedings conducted before him, using the guidelines we adopt in this opinion. In carrying out this responsibility, he may or may not conduct an additional hearing at which either party would be allowed to introduce evidence to show the bona fides, or lack thereof, of the state's peremptory challenges. The defendant, although not required to do so, may want to show, if he can, a "pattern" of the use by the state of peremptory challenges in cases.[14]
*628 Based on the foregoing, the cause is remanded[15] to the Court of Criminal Appeals for further proceedings consistent with this opinion, and with directions to the Court of Criminal Appeals to remand the cause to the trial court to conduct proceedings consistent with this opinion, and with directions to the trial court to file with the Court of Criminal Appeals its findings and conclusions, not more than 56 days after entry of that court's mandate. After receipt of the trial court's order and judgment after remand, the Court of Criminal Appeals is directed to review the trial court's order as it would on an original appeal. If aggrieved by the order of the Court of Criminal Appeals after remand, either party may then request this Court to review that order as permitted by Rule 39, Ala.R.App.P.
We cannot hope to answer all the questions that will be raised by the Batson and Jackson cases. Why was Batson decided as it was? In a comment in the Akron Law Review, there is one interpretation:
Wilson, Batson v. Kentucky: Can the `New' Peremptory Challenge Survive the Resurrection of Strauder v. West Virginia? 20 Akron L.Rev. 355 (1986).
Can the "new" peremptory challenge survive the resurrection of Strauder? Of course, the Supreme Court of the United States and this Court are of the opinion that the peremptory challenge can survive, but its use will be closely scrutinized in some cases. It is because we want the trial court to further scrutinize its own findings in this case, in view of the guidelines that we set out, that we remand it. Trial judges, under Batson, have great responsibility to ensure that there be a non-discriminatory selection of a jury.[16] The *630 *631 Batson court expressed confidence that the trial bench would ensure the constitutional rights guaranteed by its holding. We remand the case with the same confidence.
REMANDED, WITH DIRECTIONS.
JONES, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
TORBERT, C.J., concurs specially.
BEATTY and HOUSTON, JJ., dissent.
TORBERT, Chief Justice (concurring specially).
This case presents this Court with the situation that all members of the bench and bar could anticipate when Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and Ex parte Jackson, 516 So. 2d 768 (Ala.1986), were decided. Specifically, the problem is that there is an inherent tension between the concept of peremptory challenges, which allows the parties to strike prospective jurors without cause, and the Batson rule that prospective jurors can not be struck on account of race. How do we in practice enforce the rule of Batson while retaining the use of peremptory challenges?
Perhaps it will be necessary, as Justice Beatty suggests, to abandon the use of peremptory challenges if it turns out that as a practical matter the costs of dealing with that tension outweigh the benefits of peremptory strikes. Those costs are the loss of precious judicial time and diversion of the judicial system from the resolution of cases. Clearly, if we are to err, we must err on the side of eliminating the racially discriminatory use of strikes.
While the majority opinion attempts to set forth some broad guidelines to be employed in dealing with Batson issues, it is obvious that we must rely on the trial judge to supervise the jury selection process. Because of the difficulty of reviewing on appeal, from a cold record, the subjective reasons that a juror was struck, we must accord much deference to the trial judge's determination.
In this case, the trial court determined that the prosecution did not use its strikes in a racially discriminatory manner. Much of the majority opinion deals with evaluating the prosecutor's stated reasons for striking certain jurors in light of the questions posed to those jurors in particular and to all prospective jurors in general. However, in this case, there is little in the record to indicate how the voir dire was conducted. Therefore, I see little benefit in remanding this cause for reconsideration. While the trial judge may have some memory of the jury selection process, I believe it doubtful that he can in fact remember the kind of specifics necessary to conduct the evaluation contemplated by the majority opinion.
I must point out that if the voir dire examination in this case in fact supports the reasons advanced by the prosecutor for striking the jurors in question, I would agree with Justice Houston that the trial court's decision is due to be affirmed. However, in light of the fact that the trial court was operating in uncharted waters and because there is some possibility that upon reflection, guided by the criteria set forth in this Court's opinion, he might reach another conclusion, I reluctantly agree to remand this case.
BEATTY, Justice (dissenting).
I concur in Justice Houston's dissent. Since the United States Supreme Court has effectively decided that certain "peremptory" strikes may not, in fact, be "peremptory," I agree that the better forum for the determination whether those peremptory strikes were indeed proper (i.e., race neutral) is the trial court, whose decisions thereon should not be overturned absent a showing that they are clearly erroneous. I fear that, otherwise, these cases will become, *632 upon review, exercises in second-guessing the unbiased sincerity of the district attorneys throughout the state. If, indeed, that occurs, perhaps the better solution would be to do away altogether with peremptory strikes.
HOUSTON, Justice (dissenting).
I dissent. The majority holds that it "cannot conclude that the trial judge's findings should be affirmed." I feel that the majority opinion made a quantum leap from its excellent discussion of our jury system, Batson, Jackson, and peremptory challenges in general to its conclusion in this case. Under the standard of review adopted by the majority opinion in this case and by the United States Court of Appeals for the Seventh Circuit in United States v. Mathews, 803 F.2d 325 (7th Cir.1986), cert. granted, ___ U.S.___, 107 S. Ct. 1601, 94 L. Ed. 2d 788 (1987),[1] I must dissent.
Our standard of review is that unless the trial court's determination is clearly erroneous we will not reverse the trial court's finding that (1) the defendant did not make a prima facie case of purposeful discrimination or (2) (if the trial court found that the defendant did make a prima facie case of discrimination) that the state's peremptory challenges were not motivated by racial discrimination. Since our standard of review is the "clearly erroneous" standard, I would not remand, for I am not persuaded that the trial court was clearly wrong in finding that the state's peremptory challenges were not motivated by racial discrimination.
I am assuming that the trial court did find that the defendant made a prima facie case. Under the evidence, we could not hold that such a finding was clearly erroneous. The trial court stated: "Out of perhaps more caution than anything else, I am going to require the state lawyers to explain why you selected those persons for peremptory strikes."
Since this case is being remanded to the Court of Criminal Appeals for its remand to the trial court, I would request that the trial court first address the issue of whether the defendant presented a prima facie case.
To establish a prima facie case of purposeful discrimination in the selection of the petit jury solely on evidence concerning the state's exercise of peremptory challenges at Branch's trial, Branch must show that:
1. He is a member of a cognizable racial group. The record shows that Branch is black. This element is established.
2. The state has exercised peremptory challenges to remove from the venire members of the defendant's race. The record shows that the state peremptorily struck some blacks. This element is established.
3. Peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. The trial court should take judicial notice of this, for Justice Powell, in the opinion of the Court in Batson, wrote: "[T]he defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits `those to discriminate who are of a mind to discriminate.' "Batson, 476 U.S., at 79, 106 S.Ct., at 1723 (quoting Avery v. Georgia, 345 U.S. 559, 73 S. Ct. 891, 97 L. Ed. 1244 (1953)) (emphasis supplied). This element is established.
4. Items (1) through (3) and any other relevant circumstances raise an inference that the state used the practice to exclude the veniremen from the petit jury on account of their race. "An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established" by the evidence in the case. Black's Law Dictionary 700 (5th ed. 1979). In this case the state used six of its seven peremptory challenges to remove blacks. One black served on the jury. Why was one black left on the jury? Does this alone *633 keep us from logically and reasonably concluding that the other six strikes were not racially motivated? (In Batson the defendant was black and he was tried by an all-white jury.) The record contains none of the voir dire of the white juror who was struck. The able attorney for Branch states compelling reasons for the state's having to strike this juror. If the state peremptorily challenged all blacks or used all of its peremptory challenges to remove blacks, and the case involved a black defendant and a victim of another race, we could logically and reasonably conclude that this was racially motivated; and, if the trial court held that the defendant had not established a prima facie case, this would be clearly erroneous. In this case the defendant was black, the victim was black, and the "eye witness" whose testimony was the foundation stone of the state's case was black; and the state did not peremptorily challenge all blacks or use all of its peremptory challenges to remove blacks. This is where the trial court must use its discretion in determining, after considering all relevant circumstances, whether the state's use of peremptory challenges created a "prima facie case of discrimination against black jurors." Batson, 476 U.S., at 97, 106 S.Ct., at 1723. The trial court's decision must not be reversed unless it is clearly erroneous. See United States v. Mathews, 803 F.2d, at 329-32.
If the trial court finds that the defendant made a prima facie case of racial discrimination, then the burden shifts to the state to rebut the prima facie case. It cannot rebut it by saying nothing. The state cannot rebut it "merely by denying that [it] had a discriminatory motive or `affirming [its] good faith in individual selections.'" Batson, 476 U.S., at 79, 106 S.Ct., at 1723 (quoting Alexander v. Louisiana, 405 U.S. 625, 92 S. Ct. 1221, 31 L. Ed. 2d 536 (1972)). Nor may the state "rebut the defendant's prima facie case of discrimination by stating merely that [it] challenged jurors of the defendant's race on the assumptionor [its] intuitive judgmentthat they would be partial to the defendant because of their shared race." Batson, 476 U.S., at 97, 106 S.Ct., at 1723. These are the only explanations that Batson said would not rebut this prima facie case. The state must articulate a racially neutral explanation related to the particular case to be tried to rebut this prima facie case, once the trial court finds that the prima facie case has been established. Batson, 476 U.S., at 97, 106 S.Ct., at 1723.
After painstaking review of the explanations articulated by the state for its strikes, I cannot say that the trial court's finding that the state rebutted the defendant's prima facie case was "clearly erroneous." See United States v. Mathews, 803 F.2d, at 329-32.
The first strike (Harris): One of the prosecutors made a "bust" five months before the trial at a home close to Harris's residence and saw Harris during the bust. He thought that Harris had some relationship to the person arrested. Harris was similar in age and physical appearance to Branch. What makes the trial court's finding that this was a racially neutral explanation clearly erroneous?
The second strike (Maynor): This juror worked at Gold Kist with a number of people who were being investigated for a variety of crimes. The prosecutors' past experience with employees of Gold Kist (white and black) was that they were not attentive as jurors. What makes the trial court's finding that this was a racially neutral explanation clearly erroneous?
Third strike (Meadows) and sixth strike (Kelley): Meadows was unemployed and appeared to have a dumbfounded or bewildered look on her face as if she did not know what she was supposed to do. Kelley was frowning and her response to defense counsel was much more favorable than her response to the prosecutors.
We communicate by body language, and in many other nonverbal ways. Facial expressions and the way people sit, stand, cross their legs, cross their arms, and so on, represent the way they think and feel at any given moment. I believe that things that are communicated nonverbally, other than a person's race, can be used by prosecutors in determining how they will use *634 peremptory challenges. Such information can be as valuable as, if not more valuable than, verbal information elicited by voir dire.
The trial judge conducts or is present during voir dire and is in a position to know if the prosecutor is fabricating when he assigns as a reason for his strike negative nonverbal responses. What makes the trial court's finding that the third and sixth strikes were based on racially neutral explanations clearly erroneous?
Fourth strike (Nelson): Nelson was a scientist. The prosecution stated that it did not want someone who had a tendency to measure with one hundred percent mathematical certainty as a juror, for it would place too great a burden on the state. What makes the trial court's finding that this was a racially neutral explanation clearly erroneous?
Fifth strike (Parmer): Parmer's general appearance was unkempt. He appeared to be gruff. He worked in credit management. The prosecutors did not want a juror who would be at odds with anyone else on the jury. What makes the trial court's finding that this was a racially neutral explanation clearly erroneous?
I do not understand what we expect from the trial court on remand. Certainly, nothing new can be presented by the state. The trial took place over 16 months ago. What the trial court did either was clearly erroneous or was not. I say that it was not, and I would affirm.
BEATTY, J., concurs.
PER CURIAM.
The opinion has been modified slightly to meet some objections raised by the State and the Alabama District Attorneys Association, as amicus curiae, but otherwise remains unchanged.
OPINION MODIFIED; APPLICATION OVERRULED.
MADDOX, JONES, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
TORBERT, C.J., concurs specially.
BEATTY and HOUSTON, JJ., dissent.
[1] In Batson, the Supreme Court, in a footnote, stated:
"In light of the variety of jury selection practices followed in our state and federal trial courts, we make no attempt to instruct these courts how best to implement our holding today. For the same reason, we express no view on whether it is more appropriate in a particular case, upon a finding of discrimination against black jurors, for the trial court to discharge the venire and select a new jury from a panel not previously associated with the case, see Booker v. Jabe, 775 F.2d [762] at 773 [(6th Cir.1985)], or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire, see United States v. Robinson, 421 F. Supp. 467, 474 (Conn.1976), mandamus granted sub nom. United States v. Newman, 549 F.2d 240 (CA2 1977)."
476 U.S. 79, 99-100, 106 S. Ct. 1712, 1724, 90 L. Ed. 2d 69 (1986).
[2] The first references to peremptory jury challenges which we have found appear in Toulmin's Digest of the Laws of the State of Alabama, 1823. According to that Digest, four jurors could be peremptorily challenged by each side in civil cases. In criminal cases, the state was allowed no peremptory challenges. Toulmin Code 1823, Tit. 17, Chap. IX, § 1. In capital cases, the defendant was allowed up to 20 peremptory challenges. Code 1823, tit. 17, chap. I, § 14.
In succeeding codifications of Alabama law, peremptory challenges continued to be given only to defendants, and in specific numbers, depending on the crime charged. (See, e.g., Code 1876, § 4879, providing that a defendant on trial for a noncapital felony was allowed 15 peremptory challenges.)
A major change came in 1919, when the Legislature, 1919 Ala.Acts 715, gave the State one strike for every two allowed the defense; this Act was codified in the 1923 Code as § 8641, and it continued to provide that the State had one strike for the defendant's two; this two-for-one strike advantage was carried forward in the 1940 Code as Title 30, § 60; a different procedure was provided for in Jefferson County; Title 62, § 221, provided that the parties would be furnished a list of twenty-four competent jurors, "from which a jury must be obtained by the prosecution striking first ... one juror, and then the defendant striking ... one juror" (emphasis added). Equal protection challenges by those convicted under the one-to-one system were not successful. Dixon v. State, 27 Ala.App. 64, 167 So. 340 (1936); Junior v. State, 47 Ala.App. 518, 257 So. 2d 844 (1971), cert. den., 288 Ala. 744, 257 So. 2d 852 (1972), cert. den., 407 U.S. 923, 92 S. Ct. 2473, 32 L. Ed. 2d 810 (1972).
This two for one defendant's advantage was carried forward by the Recompiled 1958 Code, Tit. 30, § 60, and in the 1975 Code as § 12-16-100, and was changed by the Legislature by Act 82-221 (effective April 15, 1982), 1982 Ala.Acts 221. This Act is currently reflected in Code 1975, § 12-16-100, which provides for jury striking procedures on a one-to-one basis in criminal cases statewide.
[3] At least twenty-four Alabama counties have had legal actions commenced against them due to alleged discriminatory jury selection procedures: Hadnott v. Narramore (Autauga), 2681-N (M.D.Ala.1969); Dennard v. Baker (Barbour), 2654-N (M.D.Ala.1968); Huff v. White (Bibb), 68-223 (N.D.Ala.1973); McNab v. Griswold (Bullock), 2653-N (M.D.Ala.1968); Palmer v. Steindorff (Butler), 2679-N (M.D.Ala.1968); Bush v. Woolf (Calhoun), 68-206 (N.D.Ala. 1968); Cleveland v. Counselman (Clarke), 5435-69-H (S.D.Ala.1972); Good v. Slaughter (Crenshaw), 2677-N (M.D.Ala.1968); Palmer v. Davis (Dale), 967-S (M.D.Ala.1969); Reese v. Pickering (Dallas), 3839-65 (S.D.Ala.1968); Bokulich v. Jury Commission of Greene County (Greene), 66-562 (N.D.Ala.1968); Black v. Curb (Hale), 3872-65 (S.D.Ala.1966); Croddock v. Bedsole (Henry), 940-S (M.D.Ala.1968); White v. Crook (Lowndes), 2263-N (M.D.Ala.1966); State ex rel. Gregg v. Maples (Madison), 286 Ala. 274, 239 So. 2d 198 (1970); Black v. Curb (Marengo), 422 F.2d 656 (5th Cir.1970); Penn v. Eubanks (Montgomery), 360 F. Supp. 699 (M.D.Ala.1973); Black v. Coxwell (Monroe), 5025-68-P (S.D.Ala.1969); Turner v. Spencer (Perry), 3871-65 (S.D.Ala. 1966); Webb v. Baxley (Pike), 3564-N (M.D.Ala. 1972); Sumbry v. Williams (Russell), 763-E (M.D.Ala.1968); Nobles v. Waid (St. Clair), 68-618-M (N.D.Ala.1969); Porter v. Freeman (Talladega), 74-G-781-E (N.D.Ala.1981); McNeir v. Agee (Wilcox), 3945-65 (S.D.Ala.1966).
[4] Act No. 594, Acts of Alabama, 1978, p. 712; also, see, Act No. 14, Acts of Alabama, 1978, 2d Ex.Sess., p. 1692.
[5] The record shows that Batson had just been decided when this case was tried. Of course, Jackson had not been decided.
[6] See, People v. Turner, 42 Cal. 3d 711, 726 P.2d 102, 230 Cal. Rptr. 656 (1986); People v. Trevino, 39 Cal. 3d 667, 704 P.2d 719, 217 Cal. Rptr. 652 (1985); People v. Motton, 39 Cal. 3d 596, 704 P.2d 176, 217 Cal. Rptr. 416 (1985); People v. Hall, 35 Cal. 3d 161, 672 P.2d 854, 197 Cal. Rptr. 71 (1983); People v. Allen, 23 Cal. 3d 286, 590 P.2d 30, 152 Cal. Rptr. 454 (1979); Holley v. J & S Sweeping Co., 143 Cal. App. 3d 588, 192 Cal. Rptr. 74 (1983); Commonwealth v. Reid, 384 Mass. 247, 424 N.E.2d 495 (1981); Commonwealth v. Walker, 379 Mass. 297, 397 N.E.2d 1105 (1979); Commonwealth v. DiMatteo, 12 Mass.App.Ct. 547, 427 N.E.2d 754 (1981); Commonwealth v. Brown, 11 Mass.App.Ct. 288, 416 N.E.2d 218 (1981); State v. Neil, 457 So. 2d 481 (Fla.1984); City of Miami v. Cornett, 463 So. 2d 399 (Fla.Dist. Ct.App.1985), dismissed, City of Miami v. Cornett, 469 So. 2d 748 (Fla.1985); Jones v. State, 464 So. 2d 547 (Fla.1985).
[7] See, People v. Dominick, 182 Cal. App. 3d 1174, 227 Cal. Rptr. 849 (1986); People v. Clay, 153 Cal. App. 3d 433, 200 Cal. Rptr. 269 (1984); Commonwealth v. Lattimore, 396 Mass. 446, 486 N.E.2d 723 (1985); Commonwealth v. Smith, 12 Mass.App.Ct. 667, 428 N.E.2d 348 (1981); Baynard v. State, 518 A.2d 682 (Del.1986); Finklea v. State, 471 So. 2d 608 (Fla.Dist.Ct.App.1985).
[8] While Justice Marshall thought that the goal of eliminating racial prejudice in the jury selection process could be accomplished only by "eliminating peremptory challenges entirely," (476 U.S. at 103, 106 S.Ct. at 1726), his view was not shared by the Court. In a footnote, the Court noted:
"While we respect the views expressed in Justice Marshall's concurring opinion, concerning prosecutorial and judicial enforcement of our holding today, we do not share them. The standard we adopt under the federal Constitution is designed to ensure that a state does not use peremptory challenges to strike any black juror because of his race. We have no reason to believe that prosecutors will not fulfill their duty to exercise their challenges only for legitimate purposes. Certainly, this Court may assume that trial judges, in supervising voir dire in light of our decision today, will be alert to identify a prima facie case of purposeful discrimination. Nor do we think that this historic trial practice, which long has served the selection of an impartial jury, should be abolished because of an apprehension that prosecutors and trial judges will not perform conscientiously their respective duties under the Constitution."
Batson, 106 S. Ct. at 1724, fn. 22.
[9] The Court's use in Batson of the words "black jurors" instead of "black defendants" was apparently a deliberate choice, because the thrust of the Batson opinion seems designed not only to protect the right of an accused to a fair trial, but also of a black juror's right not to be excluded from jury service, solely because of his race, a requirement not inconsistent with the public policy of this state expressed in Code 1975, § 12-16-55. In Batson, the Court stated that "[i]n view of the heterogeneous population of our nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race." 476 U.S. at 99, 106 S. Ct. at 1724.
[10] One procedural tool trial judges could use to prevent a Batson problem would be to use currently available jury selection statutes. For example, trial judges could limit the number of peremptory strikes available to the parties by not furnishing to the parties a strike list containing a number of names greatly in excess of the minimum number required by Code 1975, § 12-16-100, which provides, inter alia:
"The number of names appearing on the strike list upon commencement of striking, unless a lesser number is agreed to by the parties, shall not be less than 36 if the offense charged is a capital felony nor less than 24 if the offense charged is a felony not punished capitally nor less than 18 if the offense charged is a misdemeanor or violation. In the event the list of competent prospective jurors is reduced to fewer than the number required by this subsection, the court shall add prospective jurors in the manner prescribed in section 12-16-76."
Code 1975, § 12-16-76, states, in part: "`If, prior to commencement of striking, due to challenges for cause or for any other reason, the number of names on the lists from which the parties are to strike is reduced below the minimums established in section 12-16-100 in criminal cases or section 12-16-140 in civil cases, unless the parties agree to strike from such lesser number, the court shall fill the deficiency first from the remaining available petit jurors sworn for the week. If the number of available petit jurors sworn for the week is insufficient to fill the deficiency, the remaining deficiency shall in the discretion of the court be filled by waiting until other petit jurors sworn for the week become available or by randomly drawing or causing to be drawn from the trial court jury box at least twice the number of names needed to fill the deficiency remaining. The court shall forthwith cause to be summoned all prospective jurors thus drawn in any of the manners set forth in this section. The names of those persons found competent to hear the case shall be added to the strike list in at least the number necessary to fill the deficiency. (Acts 1909, No. 227, p. 305; Code 1923, § 8627; Code 1940, T. 30, § 41; Acts 1981, No. 81-788, p. 1381, § 4.)"
We are aware that many prosecutors and defense counsel prefer to strike from as long a list as possible, but courts should be aware that a Batson problem could develop in direct proportion to the number of peremptory strikes available.
[11] In Batson, the Court said:
"To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, supra, 430 U.S., at 494, 97 S.Ct., at 1280, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits `those to discriminate who are of a mind to discriminate.' Avery v. Georgia, supra, 345 U.S., at 562, 73 S. Ct. at 892. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination."
[12] In footnotes 6 and 7, supra, we have collected the cases our research has indicated which show the "neutral explanations" which have been upheld or found to be insufficient.
[13] Our independent review of the neutral explanations given, and of other facts before the trial court, and facts apparent on the record, gives us great concern. For example, the prosecution's first strike was based on the fact that the prosecutor thought the juror might have seen him at a drug "bust," but the prosecutor did not, insofar as this record shows, question the juror about this fact. Strikes based on "age," while sometimes relevant, are basically "group-based" strikes. The second strike was based on the prosecutor's belief that Gold Kist employees did not make good jurors. This, too, is in the nature of a "group-based" strike, and there is no examination of this juror apparent in the record to determine any further information about the juror and the juror's competency to serve. The third strike was based on the fact that the prosecutor did not like students, especially those who couldn't get jobs. There is no voir dire which indicates how that fact had any bearing on this particular case. The prosecution's fourth strike was of a black juror on the ground that he was a scientist, yet the prosecution did not strike two whites with similar jobs. The prosecution's fifth strike was based on the fact that the juror worked in credit management. This, too, partakes of a possible "group-based" strike, as does the sixth, which was based on the "age" of the juror. We recognize that in many cases, both criminal and civil, lawyers frequently engage in "stereotyping" when exercising their peremptory strikes. Batson and Jackson severely limit "stereotyping" in particular criminal cases. In this case, which involved a black defendant and a black victim, any racial bias on the part of any prospective juror could be grounds for a challenge for cause, or a sufficient explanation for the exercise of a peremptory, if the record supports the inference that the juror could not try the case impartially. This record is sparse on any attempt to ascertain the struck juror's individual bias in this particular case.
[14] At one point in the exchange, defense counsel stated: "Judge, [i]f you believe that junk and ... [i]f you are going to [accept] that, then that just gives the government prosecutors, who have been living a lie so long that they have never done anything wrong as far as discriminating against blacks, a license to come in and give you some junk like they just gave you." (Emphasis added.)
[15] In remanding the cause, we express no opinion whether the rule in Batson should apply to defense counsel as well as prosecutors. The Batson court "express[ed] no views on whether the Constitution imposes any limit on the exercise of peremptory challenges by defense counsel." Batson, 476 U.S. 89, 106 S. Ct. at 1718 n. 12. See discussion of this question in Kirk, Sixth and Fourteenth Amendmentsthe Swain So of the Racially Discriminatory Use of Peremptory Challenges, 77 Journal of Criminal Law & Criminology 831 (1986). Neither do we express any opinion on the proposition that the only way to eliminate group prejudice is to eliminate peremptory challenges altogether. See Harvey, Batson v. Kentucky: Jury Discrimination and the Peremptory Challenge for Cause, 20 Creighton L.Rev. 221 (1986-1987). One commentator is of the opinion that "[a]rguably Batson's force, if any, will lie in the deterrent effect it will have upon prosecutors," and that "Batson has arguably laid the necessary foundation for banning the peremptory altogether." Wilson, Batson v. Kentucky: Can the `New' Peremptory Challenge Survive the Resurrection of Strauder v. West Virginia?, 20 Akron L.Rev. 355 (1986).
[16] We realize that the responsibility placed on the trial judge is a heavy one and will sometimes require the trial judge to have to steer a course between Scylla and Charybdis, especially when the prosecutor's race-neutral reasons are based upon such intangibles as "body language" and "looks." We are sensitive to the problem faced by the trial judge in this case. A recent case of People v. Charron, 193 Cal. App. 3d 981, 238 Cal. Rptr. 660 (Cal.Dist.Ct.App.1987), discusses the problem which the trial judge faced specifically, as follows:
"The answers given by Veizaga and Diego [on voir dire] suggested a limited degree of sophistication and educational background. It was not without some basis that the prosecutor expressed her concern that these two individuals might have difficulty understanding a relatively complex securities-related fraud scheme. Significantly, the prospective jurors not challenged by the prosecution generally exhibited greater business sophistication. These persons included two bookkeepers, a former legal secretary, a receptionist at a savings and loan, and the owner of several small businesses who followed the stock market on a regular basis. Relying as we must on the trial court's first-hand observations of the conduct of counsel (see Hurtado v. Statewide Home Loan Co. (1985) 167 Cal. App. 3d 1019, 1025, 213 Cal.Rptr. 712), the court here properly found the prosecutor's statement of reasons with respect to prospective jurors Veizaga and Diego sufficient. "* * *
"The exclusion of prospective juror Dixon raises a different and more difficult question in light of the California Supreme Court's recent decision in People v. Trevino, supra, 39 Cal. 3d 667, 217 Cal. Rptr. 652, 704 P.2d 719.
Trevino involved a situation in which the prosecutor used six peremptory challenges to excuse every Hispanic from the jury panel, and thus presents a case which is at least different in degree from the present one. After determining that the class of "Spanish-surnamed" persons constituted a cognizable class for Wheeler purposes (39 Cal.3d at p. 687, 217 Cal. Rptr. 652, 704 P.2d 719), the court went on to consider the prosecutor's proffered justifications for excluding the six individuals and found them wanting in at least four instances (id. at pp. 691-692, 217 Cal. Rptr. 652, 704 P.2d 719). The court's principal concern appears to have been with the exclusion of three female jurors, which the prosecutor attempted to justify based on their sex, age, the age of their children and their equivocal views on the death penalty. The court found the expressed reasons disingenuous in view of the prosecutor's failure to challenge similarly situated non-Hispanic jurors.
"Trevino goes on to condemn the challenge of a fourth Hispanic juror, Robert Guerrero. The prosecutor sought to justify Guerrero's challenge on the basis of uncomfortable body language and the prosecutor's feeling that Guerrero was holding back something in his answers to certain questions. (39 Cal.3d at p. 690, fn. 22, 217 Cal. Rptr. 652, 704 P.2d 719.) The Supreme Court responded: `[T]he district attorney's reason for excluding Robert Guerrero based on his body language and mode of answering certain questions, is particularly untenable in light of Wheeler's requirement of a showing of specific bias.' (Id. at p. 692, 217 Cal. Rptr. 652, 704 P.2d 719.) Footnote 25 adds the following comment: To suggest, as does the dissent, that either body language (post, p. 703, 217 Cal. Rptr. 652, 704 P.2d 719) or a conclusory notion a juror might not form his own opinion (post, p. 703, 217 Cal. Rptr. 652, 704 P.2d 719) rises to the level of specific bias in the Wheeler context, is to reduce the constitutional guarantee to meaningless superficialities.'
"We appreciate the Trevino court's concern that a prosecutor's nonspecific reference to "body language' or `looks' of a prospective juror could become the standard untestable post-hoc justification for what is in reality an unconstitutional exclusion based on group discrimination. Nonetheless, Trevino must be read in light of Wheeler on which it is explicitly based and which it did not remotely purport to overrule:
"`To say that peremptories will ordinarily be exercised only in cases of bias, however, does not clarify the kinds of bias upon which the challenge may permissibly be based. In contrast to the limited list of events authorizing a challenge for cause on the ground of implied bias (Pen.Code, § 1074), the law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality. The evidence may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative.
"`For example, a prosecutor may fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment, and on the part of another simply because his clothes or hair length suggest an unconventional lifestyle.... Indeed, even less tangible evidence of potential bias may bring forth a peremptory challenge: either party may feel a mistrust for a juror's objectivity on no more than the "sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another" (4 Blackstone, Commentaries # 353)upon entering the box the juror may have smiled at the defendant, for instance, or glared at him. Responsive to this reality, the law allows the removal of a biased juror by a challenge for which no reason "need be given," i.e., publicly stated: in many instances the party either cannot establish his reason by normal methods of proof or cannot do so without causing embarrassment to the challenged venireman and resentment among the remaining jurors.' (Wheeler, supra, 22 Cal.3d at p. 275, 148 Cal. Rptr. 890, 583 P.2d 748, fn. omitted; accord People v. Turner (1984) 37 Cal. 3d 302, 314-315, 208 Cal. Rptr. 196, 690 P.2d 669.)
"Attempting to reconcile Wheeler and Trevino, it must be conceded that prosecutors purporting to rely solely on their interpretation of body language, gestures and glances do so at their peril Trevino indicates that such justifications will be closely scrutinized by both trial and appellate courts. Here, we recognize that the prosecutor may well have provided as much of a detailed statement of reasons as she could under the circumstances; the "bare looks and gestures" which give rise to legitimate questions of juror bias are not often easy to describe. But focussing solely on the prosecutor's statement of justification for excusing prospective juror Dixon, we admit it comes perilously close to violating Trevino's mandate. (See People v. Moss (1986) 188 Cal. App. 3d 268, 279, 233 Cal. Rptr. 153.) Fortunately, there is a significant additional fact here supporting the genuineness of the prosecutor's observations which serves to distinguish this case from Trevino. In her statement of reasons for excusing Dixon, the prosecutor indicated she was initially comfortable with him. It was only into the second day of voir dire that she became concerned about Dixon's facial expressions during a series of questions by defense counsel. This statement is supported by the fact that when she was called upon to assert her fifth peremptory challenge during the first day of questioning, the prosecutor indicated her satisfaction with the jury as constituted. That jury included Dixon. After another challenge had been made by defense counsel, the prosecutor exercised her fifth peremptory against a new prospective juror who had just been seated. It was well into the continued voir dire on the second day that the prosecutor exercised her sixth challenge against Dixon. This sequence of events strongly corroborates the prosecutor's verbal explanations, making us far less inclined than was the court in Trevino to suspect that the challenge was exercised `for reasons other than those presented to the court.' (39 Cal.3d at p. 692, 217 Cal. Rptr. 652, 704 P.2d 719.)
"Moreover, this is not a case in which the trial court misunderstood its obligation to inquire into the prosecutor's reasoning or `abdicated' its responsibility to conscientiously evaluate proffered justifications. (Compare People v. Hall (1983) 35 Cal. 3d 161, 168-169, 197 Cal. Rptr. 71, 672 P.2d 854.) Instead, we see a sensitive and experienced judge ruling that a prima facie showing has been made, requiring the prosecutor to explain her reasons, and concluding based on first-hand observations that those reasons were justified. Considering all these factors, we think it was proper for the trial court to conclude that the prosecutor's proffered justifications for excusing the three minority jurors rebutted any prima facie showing of unconstitutional discrimination."
We recognize that we have not answered all of the questions that trial judges, prosecutors, and defense attorneys may have regarding the use of peremptory challenges, but we hope that we have set general guidelines that will aid the bench and bar in complying with constitutional requirements for the exercise of peremptory challenges.
Before more specific guidelines can be established, the bench and bar could consider the more effective use of voir dire in individual cases to screen out possible bias and prejudice on the part of individual jurors. See Spears, Voir Dire: Establishing Minimum Standards to Facilitate the Exercise of Peremptory Challenges, 27 Stanford L.Rev. 1493.
[1] The United States Supreme Court has granted certiorari in Mathews, but apparently not because of concerns about the Seventh Circuit's discussion of the Batson issues. See 56 U.S.L.W. 3036 (July 28, 1987) (discussing the question presented in Mathews). | December 4, 1987 |
56579ea9-71e1-4af5-b597-68af66cf5fcd | Nunn v. Baker | 518 So. 2d 711 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 711 (1987)
Rhonda NUNN
v.
John BAKER, as Chairman of the State Democratic Executive Committee, et al.
86-93.
Supreme Court of Alabama.
November 6, 1987.
Rehearing Denied December 4, 1987.
*712 Carolyn L. Williams and Henry L. Penick of Penick, Williams & Jones and David Gespass, Birmingham, for appellant.
Joe R. Whatley, Jr., and Lisa Huggins of Falkenberry, Whatley & Heidt, Birmingham, for appellees E.B. McClain and Erma Jean Brown.
H. Thomas Heflin, Jr., of Hare, Wynn, Newell and Newton, Birmingham, for appellee John Baker.
James S. Clark, Speaker, Alabama House of Representatives, amicus curiae on rehearing.
PER CURIAM.
The original opinion in this case is withdrawn and the following is substituted therefor:
When this election contest was originally submitted to us, we followed our usual procedures for determining whether we had jurisdiction over the matter, and, discovering no jurisdictional bar to our consideration of the case, proceeded to render a decision on the merits. In their application for rehearing, the defendants-appellees now raise for the first time the question of whether this Court had jurisdiction. They submit that we had no jurisdiction over the case, and they argue that our original opinion must therefore be withdrawn and the appeal dismissed. For the reasons set forth below, we agree with the defendants-appellees.
Although it is settled law that this Court will generally not consider matters on rehearing that were not raised during the appeal, Stover v. Alabama Farm Bureau Ins. Co., 467 So. 2d 251 (Ala.1985), jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu. Horn v. Dunn Brothers, Inc., 262 Ala. 404, 79 So. 2d 11 (1955).
We are therefore compelled to consider the jurisdictional question now before us. We nevertheless urge the members of the bar to raise such issues at the earliest possible moment in the presentation of a case before this Court. Concomitant with our duty to consider jurisdictional matters is at least an equal duty on the part of the lawyers of this state to present such dispositive matters in the timeliest possible fashion. The time and energy of this Court are not infinite, and the waste of either must be scrupulously avoided if we are to sustain the quality of decision expected of us.
In Buskey v. Amos, 294 Ala. 1, 310 So. 2d 468 (1975), this Court held that it had lost jurisdiction over an election contest based on a challenge to the residency qualifications of a candidate for the state senate. In Buskey, the challenged candidate had been certified as his party's nominee; his name had been placed on the general election ballot; he had been elected to the state senate by the people of his district; he had been certified by the Secretary of State as having been elected to the senate; and he had taken the oath for the office of state senator, all before the challenge was submitted to this Court. The Court held that it had no jurisdiction over the question of the challenged candidate's residency qualifications after he had taken office, because such questions were constitutionally committed to the state legislature:
"`The Constitutions of most, if not all, of the states contain provisions similar to those quoted above from Section 51 of the Constitution of this state. And it is well settled that such a provision vests the legislature with sole and exclusive power in this regard, and deprives the courts of jurisdiction of those matters.'
Buskey v. Amos, 294 Ala. 1, 2, 310 So. 2d 468, 468-69 (1975).
Although in this case the challenging candidate challenged her party's jurisdiction to certify her opponent rather than her, as its nominee, we believe that Buskey controls our disposition here. Her opponent was elected and sworn into office well before this case was submitted to us, and we therefore think that his qualifications to hold that office are matters outside of our jurisdiction under section 51 of our state constitution. We therefore hold that we have no jurisdiction over this matter and that the appeal is due to be dismissed.
We would also note, as we did in Buskey, that "[i]t has been a policy of the courts of this state to handle such cases speedily before issues become moot, if requested to do so" (emphasis added), tempering somewhat the absolute quality of the constitutional commitment of these issues. In this case, however, as in Buskey, the issue was submitted for this Court's decision well after the question became moot, and, so far as we can tell, no one effectively asked us for an expedited decision, a procedural remedy we grant with regularity in such cases.[1] See, e.g., Ex parte Baxley, 496 So. 2d 688, 695 (Ala.1986) (Torbert, C.J., concurring specially).
The remedy available to the challenger in this case thus lies not with this Court, but with the Legislature, and perhaps ultimately with the people of her district.
APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.
TORBERT, C.J., and MADDOX, SHORES, BEATTY and HOUSTON, JJ., concur.
JONES, ALMON, ADAMS and STEAGALL, JJ., not sitting.
[1] We have located in the record a motion to expedite the appeal. This motion, however, was filed with the trial court and was directed to the attention of that court, and not to the attention of this Court. Although it appears that this motion was eventually transmitted by the clerk of the trial court to the Clerk of this Court, such a motion fails to invoke this Court's authority to consider an order expediting the appeal, and the motion was therefore never considered by this Court. | November 6, 1987 |
c440176b-b414-4a28-af99-cbb6c6b9a933 | AL Williams & Associates v. Williams | 517 So. 2d 596 | N/A | Alabama | Alabama Supreme Court | 517 So. 2d 596 (1987)
A.L. WILLIAMS & ASSOCIATES, INC.
v.
John Phillip WILLIAMS, Katherine G. Williams, and William L. Worthington.
85-410.
Supreme Court of Alabama.
November 20, 1987.
*597 James D. Pruett and Howard B. Warren of Pruett, Hudson, Turnbach & Warren, Gadsden, and Gary C. Huckaby, Huntsville, for appellant.
Fulton S. Hamilton of Simpson, Hamilton and Ryan and Robert H. Ford of Brinkley & Ford, Huntsville, for appellees.
ALMON, Justice.
John Williams filed suit against A.L. Williams and Associates, Inc. ("ALWA") and William Worthington, on March 28, 1983, because of injuries sustained in an assault upon him by Worthington as an agent of ALWA. The complaint was later amended to include claims for negligence, wanton misconduct, outrageous conduct, interference with business relations, and a loss of consortium count on Katherine Williams's behalf, in addition to the assault claim. The case was tried before a jury, which returned a general verdict in favor of John Williams totaling $500,000 and in favor of Katherine Williams for $1,000 on her loss of consortium claim. The jury denied the cross-claim of ALWA against its agent, William Worthington, and also denied the Williamses' claims directly against Worthington. ALWA filed motions for JNOV or new trial, and to vacate the judgment, based upon the inconsistency of the jury verdicts. The trial court denied these motions and entered judgment on the verdicts, from which ALWA appeals.
In October 1982 John Williams was recruited to sell life insurance for A.L. Williams and Associates, Inc. As an agent for ALWA, John Williams sold insurance written by Massachusetts Indemnity and Life Insurance Company (MILICO), and sold securities of First American National Securities (FANS). ALWA was founded on the premise that investors in whole life insurance could maximize their returns by buying less expensive term life insurance with MILICO and investing the difference in a mutual fund with FANS.
ALWA is a multi-level marketing plan of selling insurance and securities. John Williams joined the business in January 1983 and was quickly promoted for effectively selling insurance and securities and recruiting others to sell under him. In May of that year he was promoted to division manager, and three months later he was promoted to provisional regional vice president.
On December 1, 1983, William Worthington, the regional vice president supervising John Williams, called him into his office. Shortly thereafter, the two men got into a fistfight, the cause of which was never made clear in the record, which landed John Williams in the hospital and William Worthington in jail. John suffered a severe beating at the hands of Worthington, which included being slammed into a brick wall and being kicked about his face and body. Although the record is vague regarding *598 whether John continued to sell for ALWA after this date, it is clear that he was unable to work for a couple of weeks after the fight.
On January 18, 1984, Williams went to the ALWA offices in Atlanta to see about a transfer from supervision by Worthington to a different regional vice president. Williams was not well received in Atlanta and ALWA officers indicated that they would not grant his request for a transfer.
Although John Williams was employed to sell insurance for MILICO, he did so under a contract that granted ALWA the right to request his termination. On February 7, 1984, Worthington wrote a letter to the ALWA office in Atlanta requesting Williams's immediate termination. The letter referred to Williams as "the asshole we've been discussing." The Atlanta office attached a copy of this "filthy letter" to the termination request form it submitted to MILICO. Williams argued in the trial court that these actions, by Worthington and the Atlanta office, constituted outrageous conduct and intentional interference with his business relations with MILICO.
John Williams submitted five counts to the jury, in addition to Katherine's claim for loss of consortium, against both ALWA and Worthington. The appellant, ALWA, submitted a cross-claim against its agent, William Worthington, for indemnity. The jury returned a general verdict of $100,000 compensatory damages and $400,000 punitive damages against ALWA. The jury also returned a verdict of $1,000 against ALWA on Katherine Williams's loss of consortium claim. The fatal inconsistency occurred when the jury also denied the Williamses' claim and ALWA's cross-claim against the assailant, William Worthington.
A finding of liability on the part of Worthington was required for the negligence, wanton misconduct, outrageous conduct, and assault counts. This left the interference with business relations count as the sole basis on which the jury could have returned the verdicts for John Williams and for Worthington. Such a cause of action is insufficient, under these facts, to support a verdict on the loss of consortium claim by Katherine Williams.
This question was addressed in Slovensky v. Birmingham News Co., 358 So. 2d 474, 476 (Ala.Civ.App.1978), which held that a wife had no claim for loss of consortium for breach of her husband's employment contract. The court explained that recovery for loss of consortium is premised on a physical injury suffered by the spouse, citing Swartz v. United States Steel Corp., 293 Ala. 439, 304 So. 2d 881 (1974).
Although the present case does involve physical injury and debilitation suffered by John Williams, the apparent basis for the recovery, as evidenced by the verdicts in favor of the assailant, Worthington, is interference with business relations. The verdict could not have been founded on the fight between Williams and Worthington, but instead must have been based on the actions of other agents of ALWA at the Atlanta office subsequent to the fight. Specifically, Williams alleged that the circulation of the above mentioned "filthy letter" through the Atlanta office constituted malicious interference with his business relationship with MILICO. Even if this is a sufficient basis on which to send the case to the jury, a point which this Court does not here address, it is an insufficient foundation for Katherine's claim for loss of consortium, because it does not involve physical injury to John. See Slovensky and Swartz, supra.
For this reason, the verdicts indicate confusion on the part of the jury. Where the jury verdict is the result of confusion or is inconsistent in law, the trial court should grant a new trial. Black Belt Wood Co. v. Sessions, 455 So. 2d 802 (Ala.1984). A new trial is necessary, because once the jury is dismissed any attempt to reconcile the inconsistencies in a verdict amounts to mere speculation about the jury's intent.
As Justice Bouldin wrote in Carter v. Franklin, 234 Ala. 116, 118, 173 So. 861, 863 (1937):
John Williams also argues that Katherine's motion to dismiss her claim for loss of consortium, made after the jury returned its verdicts, cured the inconsistency. But, as this Court indicated in Smith v. Richardson, 277 Ala. 389, 393, 171 So. 2d 96, 99 (1965), when a spouse tries her derivative claim for loss of consortium together with her husband's claim for personal injuries, "[W]e incline to the view that sound practice requires both verdicts to be set aside at once, without attempting, by analysis of the evidence or otherwise, to discover whether either should be allowed to stand. No other course is safe, for it cannot be told with reasonable certainty what facts the jury found." See also Bonds v. Busler, 449 So. 2d 244 (Ala.Civ. App.1984).
Mr. Williams further contends that the inconsistency in the jury verdict was waived by ALWA's failure to object. The record indicates that the trial court granted Katherine Williams's motion to dismiss the claim for loss of consortium, with prejudice, prior to entry of judgment. His position is that ALWA's delay in objecting to the inconsistency in the verdicts until its post-judgment motion for new trial amounted to failure to preserve the error for appeal. In Lewis v. Moss, 347 So. 2d 91, 93 (Ala.1977), this Court held, "While the trial Court may direct appropriate efforts toward correcting inconsistent verdicts if called to [its] attention before the jury is discharged, we find no prohibition against raising the issue of inconsistent verdicts for the first time on motion for new trial." Once the jury had been discharged, the delay in objecting to the substance of the verdict until a post-judgment motion for new trial was not prejudicial to the rights of Williams.
Based on the principles of irreconcilable verdicts, as explained above, the judgment is reversed and the case remanded for a new trial.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, BEATTY and HOUSTON, JJ., concur. | November 20, 1987 |
ad6efd99-f3d3-4d94-8a95-1a33772304af | Ex Parte Mauricio | 523 So. 2d 87 | N/A | Alabama | Alabama Supreme Court | 523 So. 2d 87 (1987)
Ex parte Inga MAURICIO.
(In re Inga Mauricio v. State of Alabama).
86-143.
Supreme Court of Alabama.
December 11, 1987.
Henry T. Henzel, Birmingham and Robert A. Sapp, Jr., Cullman, for petitioner.
Charles A. Graddick, Atty. Gen., and Robert B. Rinehart, Asst. Atty. Gen., for respondent.
PER CURIAM.
The petitioner, Inga Mauricio, was indicted March 29, 1985, in Cullman County for the alleged stabbing of her newborn infant. She was tried before a jury, which found her guilty of attempted murder. The circuit court sentenced her to 15 years' imprisonment, ordered her to pay $10,000 to the victim's compensation fund, and denied her application for probation. The Court of Criminal Appeals, 497 So. 2d 858, affirmed the judgment without opinion and this appeal followed. This Court granted certiorari based on petitioner's Rule 39(k) A.R.A.P. statement of facts.
In March of 1985, Inga Mauricio was a 20-year-old student at Wallace State Community College. At the time she was 7½ months pregnant, a fact she had concealed from her parents. On Saturday, March 23, Inga was at home, with her parents, preparing her Sunday school lesson for the next day. She had been teaching first and second grade Sunday school for over a year at the time. She went to bed that night about 11:00 p.m. At about 12:30 on the morning of March 24, she woke her mother, complaining of stomach cramps and a headache. She took a couple of aspirin and went back to bed. At 1:30 she woke her mother again, complaining of nausea. At 2:30 she again woke her mother, who assisted her through her nausea. At 4:30 she awoke again; this time her water had broken. She went into labor and after some effort she could feel the crown of the baby's head emerge. Her mother and father's bedroom was at the other end of the house and, for whatever reason, Inga did not summon their assistance.
*88 She continued to deliver her child and after what she testified to be a considerable amount of time and painful effort, the baby's entire head arrived. It was at this point that she encountered serious difficulty. She testified that she was in severe pain at this time and that she was bleeding profusely. According to her testimony she could not summon enough strength to force the child's shoulders out. She explained that she was sitting up in the bed on top of a pillow during the delivery and that after the head emerged the baby just stopped. The baby's head was face down on the bed and it would not move any further even after her persistent effort. Inga testified that at this point she reached down and grasped the child's head under the chin with both hands and pulled with all the force she had. Initially, the pulling was to no avail. She attempted to pull on the baby's chin and push with her abdominal muscles at the same time, but could not coordinate the two. She returned to pulling on the baby's chin and finally delivered its shoulders. She then guided the baby out, with the umbilical cord and placenta following shortly thereafter.
Inga testified to reaching over to the night stand, at this point, for a small pair of scissors. She opened up the blades, wiped them off with her bare hands, and then attempted to cut the umbilical cord. Unable to cut it with the small scissors, she took a larger pair of scissors, opened the blades, and wiped them off with her hands once again. She again attempted to cut the umbilical cord, this time with some success. Although she did not completely sever the cord from the baby, it was substantially separated.
She spread a sleeping bag over her bed, to cover the water and blood. She then wrapped her baby in a terry cloth robe, and put it on the dry part of the floor next to the bed. Inga testified that she knew her baby was alive at this point because it was breathing. She recalled, on the stand, seeing scratches on the baby's neck when she wrapped it in the robe. Inga rested on the sleeping bag for a while and then went to wash up in the bathroom. She did not recall any other events that morning until she was awakened in the hospital by Dr. Ensor.
Mrs. Mauricio found Inga hemorraging in the bathroom early on the morning of the 24th. She described Inga as pale and weak at that time. Inga was unresponsive and did not talk to her parents after they found her. Mrs. Mauricio described the bathroom as being very bloody. Her daughter had blood on her and there was blood in the hall leading to her room. She found blood on her daughter's bed and on the floor in her room. Although Mrs. Mauricio was unaware that Inga had been pregnant, she took her to Cullman Medical Center for immediate medical treatment.
Loretta Nix, the duty nurse at Cullman Medical Center on March 24, was present when Mrs. Mauricio admitted Inga to the emergency room about 6:00 a.m. Inga complained of cramping and vaginal bleeding to Nix and Dr. LaPointe, the examining physician. Dr. LaPointe conducted a pelvic exam on Inga and diagnosed her as having had a miscarriage and having lost excessive blood. Dr. LaPointe then called in Dr. Ensor, an obstetrician-gynecologist.
Dr. Ensor found that Inga was bleeding "quite profusely" when he first examined her. His opinion was that she had delivered a 4- to 5-pound baby in the past few hours, losing a lot of blood in the process. At the time of the examination, Inga did not mention to him that she had delivered a child. He described her medical condition as "not stable" at the time. He administered I.V. fluids to her to stabilize her prior to the administration of anesthesia which, was necessary in order to perform a dilation and curettage.
Around 1:00 p.m., several hours after the operation, Dr. Ensor asked Inga if she had delivered a child. He testified that her answer was that she had found the child in bed and that she thought it was dead. He also testified that she told him at the time that she had placed it under the bed. He asked her if she knew about any injury to the child and she said she did not. Dr. Ensor's opinion was that he did not see any evidence that Inga would have any physiological *89 difficulty in delivering a 4½ pound baby in ordinary circumstances. In his opinion, Inga could have bled to death had the D. and C. not been performed; such bleeding was, he said, an unusual condition even among mothers who self-deliver. He also said that a self-delivery such as Inga performed would be sufficiently traumatic to induce shock. He testified that it is normal for a mother to want to curl forward and sit up, as Inga did. He said that in some births, where the infant's shoulders are too wide, the attending doctor has to turn the child with forceps in order for it to clear the pubic bone. He also said that an excessive loss of blood by the mother, as Inga had during the birth, could delay delivery of the child.
He described a normal umbilical cord as varying in diameter from the size of a dime to the size of a quarter. There are three blood vessels encased in a gelatinous material known as "Wharton's jelly." There is a thin and rather tough membrane covering the outside of the cord, which holds it all together. His testimony, as an obstetrician-gynocologist who had delivered over 6,000 babies, was that there is a thin layer of fatty tissue surrounding the blood vessels in the umbilical cord. He explained that it is difficult to cut an umbilical cord, even when using surgical scissors.
After Inga and her mother left for the hospital, Mr. Mauricio began cleaning up the bedroom. He heard a child cry and, according to his testimony, found the baby on the floor next to the bed. Mr. Mauricio called his wife at Cullman Medical Center and told her about the baby. She was in the emergency room with Inga when her husband called. Her testimony was that she did not know, until her husband's call, that Inga had been pregnant. She went back home and picked up her husband and the baby. She held the baby, which was still wrapped in the robe, while he drove to Parkway Medical Center in Decatur. When they arrived neither of them had examined the child, knew it had any injury, or even what sex it was. Mrs. Mauricio laid the child on the examining table and was sent out of the examining room.
Dr. Putnam was the doctor on duty in the emergency room at Parkway Medical Center at 9:15 when baby Mauricio was admitted. His examination of the baby revealed that it was a viable infant with a placenta partially attached. He cleaned the blood from the baby's mouth and throat, which was causing it difficulty in breathing. He then cut the umbilical cord and tied it off. On further examination of the child, Dr. Putnam noticed cuts in its neck. He assumed, because the baby's neck was lacerated and the child had some blood in its throat, that the cuts extended from the front of the neck, through the trachea, to the back of the neck. He estimated to the jury that each cut was an inch to an inch and one-half deep. He also found some "scratch-type wounds" on the child's neck. After the child had been at Parkway 30 minutes, Dr. Putnam transferred it to Decatur General Hospital.
He testified that his examination of the baby was only preliminary and that his diagnosis was inclusive. Although the nurse's record showed that the umbilical cord was cut in a jagged manner, Dr. Putnam thought it was a single cut almost totally transecting the cord. Although somewhat confused about the distinction between "parallel" and "perpendicular," he testified that the cuts in the child's neck were short, and in a line parallel to the baby's chin. He also detected "scratch marks" on the baby's chin. He admitted that Parkway did not customarily treat infants and that babies are not delivered there.
Dr. Rogers was the pediatrician on duty at Decatur General when baby Mauricio was brought in. His examination of the baby was more thorough than that of Dr. Putnam, lasting over 1½ hours. His diagnosis was that this was a premature baby, suffering from hypothermia, with multiple neck wounds. His visual inspection of the child did not reveal any injury to the windpipe or trachea. He regarded the baby as in stable but serious condition due to its low body temperature, underdeveloped lungs, and neck lacerations. In Dr. Rogers's opinion, the injuries were "linear" as opposed to puncture wounds. His opinion *90 was that one-half inch fingernails could have caused the wounds, even though he had not measured their depth. He also said it was possible the wounds were caused by a pair of scissors. After his examination, Dr. Rogers had the baby transferred to Children's Hospital in Birmingham.
Dr. Baldwin was the pediatric surgeon on duty at Children's Hospital when baby Mauricio was admitted. He operated on baby Mauricio for about an hour and performed two operations during that time. First he performed a bronchoscopy on the baby. This is an internal examination performed by inserting a small camera inside the child's throat. He found a small injury, or hematoma, in the child's trachea at the place where it divides to go to each lung. He described this injury as a bruise located at a point below the lacerations in the neck. He expressed the opinion that the hematoma, because of its location, was not in any way related to the neck lacerations.
After he concluded his bronchoscopy, he conducted an exploration of the neck wounds. He found that some of the muscle tissue in the baby's neck had been damaged. He repaired this and stitched up the lacerations in the child's skin. He testified that the wounds varied from 3/8 to 5/8 inch in length. There was one wound larger than this, but Dr. Baldwin supposed that it might have been several lacerations in one place. Although he did not probe to determine the depth of the wounds, he estimated almost all of them to be ¼ to ½ inch deep. The exception was the site of the supposed multiple lacerations, which appeared to be about ¾ inch deep. There was no evidence of injury to the trachea, esophagus, or blood vessels from the lacerations. In his opinion, these injuries to the neck did not affect the baby's ability to swallow.
Dr. Baldwin told police investigators the day after surgery that he did not think the wounds were made by anything very sharp. The wounds were "not clean," contra-indicating the use of a knife, razor, or piece of glass. He indicated that they were linear lacerations with a somewhat jagged appearance. He told the police, "The wounds were not the type of wounds that would have been made by a metal nail or an ice pick." (Emphasis added.) He suggested that something flat made the wounds, perhaps a fingernail file. He said if "a semisharp linear object impaled the skin and then a force was exerted on that object, it could produce the type of injury that we see in this child." He said the injuries could have been made by a fingernail or by either of the two pairs of scissors admitted into evidence by the State. He also expressed an opinion that the wounds, by their jagged appearance, indicated a pulling force on the instrument that caused the wound. He indicated that the wounds "were consistent with a fingernail being pushed in and then some tension exerted on it."
This comported with Dr. Ensor's testimony that it would take a lot of force to puncture an infant's neck. Dr. Ensor explained that in order to open the trachea of an infant, as he had done in the past, it "takes a sharp knife with pressure". His opinion was that long fingernails could cause the lacerations found in the baby's neck. Dr. Baldwin's opinion was also that "reasonably sharp" fingernails extending ¼ to ½ inch beyond the fingertip would be sufficient to inflict the wounds. He did not think the wounds would have any lasting effect on the child. Dr. Baldwin exhibited the baby to the jury and described the wounds on the child's neck as "linear in orientation," or lacerations ½ inch long, accompanied with several small scratchtype wounds. He estimated that there were eight or nine wounds in all.
The State developed Inga's testimony, during cross-examination, that her fingernails were as long as ½ inch when she delivered the baby. Dr. Ensor, the physician who performed the D. and C. on Inga, also said it was possible that her nails were as long as ½ inch and certainly as long as ¼ inch.
The State called Freddie Day, a Cullman police officer who investigated the incident. He began his investigation at 11:30 on the morning the child was born. He interrogated Inga's mother at Decatur General Hospital *91 and talked to Dr. Rogers, who was attending the child at the time. He left Decatur General and went to Cullman Medical Center, where Inga was recovering. He and Detective Wood obtained a search warrant of the Mauricio home in Cullman, and they began their search about 3:30 that afternoon. The search revealed two pairs of scissors, which appeared to have blood on them: one pair with short blades, approximately one inch long, and the other with blades about three inches long. The detectives sent these scissors to the state toxicology lab in Huntsville. Day testified that the scissors were in substantially the same condition when he sent them to Huntsville as when he found them in Inga's room. The search also revealed a couple of sheets, two towels, a sanitary napkin, one gown, one pair of panties, a wash cloth, and a pillow, all of which had blood on them. Detective Wood indicated on the stand that there was blood "all over the carpet, and the floor, on the mattress." The officers concluded their search just past 4:00 that afternoon.
The State called Roger Morrison, a forensic scientist with the Alabama Department of Forensic Science in Huntsville. Mr. Morrison is a specialist in forensic serology, the examination and identification of biological fluids and tissues. He conducted tests on both pairs of scissors and compared the findings with blood samples from Inga and the child. Both pairs of scissors had type A blood on them, the same type as the child. Morrison testified that the scissors had dried blood along the entire length of the blades and on the handles of both pairs. He also found fatty tissue in "small clumps" at various locations along the length of the blades, about three inches on the large scissors; he described it as "Basically a fine layer of the fatty tissue along the entire length of the blade." Morrison was unfamiliar, however, with "Wharton's jelly," a tissue which is found in the umbilical cord and which is the same color and consistency as fatty tissue. His testimony was that he took a 1/8-square-inch sample of blood from each pair of scissors in order to identify the blood on the scissors as the baby's. Two other blood tests performed on the samples taken from the scissors were inconclusive regarding whether the blood was Inga's or the child's. He admitted that he did not test all of the blood on the scissors in order to see if some of it belonged to Inga.
The State also called Dr. Joseph Embry, a forensic pathologist who had performed hundreds of examinations on umbilical cords, to rebut the testimony of its earlier witness, Dr. Ensor. Dr. Embry testified that there is no fatty tissue in an umbilical cord and that, hypothetically speaking, fatty tissue would not be found on scissors that had cut an umbilical cord.
All of this testimony was presented to the jury, which deliberated for 10 hours. The jury found Inga Mauricio guilty of an attempt to commit murder by stabbing her child with a pair of scissors. As stated earlier, she was sentenced to 15 years without probation, and was ordered to pay $10,000 to the victim's compensation fund.
The issue presented for review is whether the Court of Criminal Appeals erred in affirming the trial court's ruling that the circumstantial evidence relied on by the State, and which under the facts was necessary for a conviction, was sufficient, as a matter of law, for the jury to conclude beyond a reasonable doubt that Inga Mauricio was guilty of attempted murder. The Court of Criminal Appeals set out the test for reviewing sufficiency of the evidence in Cumbo v. State, 368 So. 2d 871, 874-75 (Ala.Crim.App.1978), cert. denied, 368 So. 2d 877 (Ala.1979):
Cumbo cites Williamson v. United States, 365 F.2d 12, 14 (5th Cir.1966), for the following proposition:
What this Court said in Ex parte Acree, 63 Ala. 234 (1879), is likewise relevant:
This was elaborated on in Fuquay v. State, 22 Ala.App. 243, 246, 114 So. 892, 894, rev'd on other grounds 217 Ala. 4, 114 So. 898 (1927), where the Court of Appeals said:
"`The possibility that a thing may occur is not alone, under any fair, reasonable deduction, evidence, even circumstantial, that the thing did in fact occur.'
"`"It has been found to be a wise and safe rule to require circumstantial evidence to go so close to the fact to be proved that it must be the immediate and direct inference therefrom. Any other rule would result in great uncertainty. If the ultimate fact should be drawn from intervening inferential facts, the probability of its correctness would be much weakened. It would be a probability based upon a probability. The law will not tolerate such uncertainty." It is a general rule, in determining whether the circumstances relied upon furnish any evidence whatever of the conclusion sought to be drawn therefrom, that the facts which the evidence tends to establish must be of such nature and so related to each other that the conclusion is the only one that can fairly or reasonably be so drawn. It is not sufficient that they are consistent with such conclusion, if they are equally consistent with some other conclusion.' Klumb v. Iowa State Traveling Men's Association, 141 Iowa 519, [520,] 120 N.W. 81, [82] [(1909)]." (Emphasis added.)
As Judge Benjamin Cardozo said of circumstantial evidence in People v. Galbo, 218 N.Y. 283, 112 N.E. 1041, 1044 (1916), these presumptive evidences "must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die." Quoting Lord Hale at 2 Hale P.C. 289. In that case Judge Cardozo reversed the murder conviction of a legless cripple, who was tried before a jury which found he had savagely beaten the victim to death. The victim, *93 Francesco Manzella, was a strong man with a reputation in the community of being an extortionist by trade. He was murdered in a fierce battle, during which his head was severed. Witnesses after the fact saw Mr. Galbo driving his horse-drawn cart, with the victim's remains contained in a barrel on the cart. Galbo was arrested within 36 hours of the crime, not the least bit worse for wear and tear. Cardozo explained it would be impossible for the defendant to commit such a crime and escape without a scratch or blood stain. In Cardozo's opinion, it was apparent that Galbo was an accessory to the crime, but the evidence did not prove he was the principal.
Galbo, 112 N.E. at 1045.
In this case the circumstantial evidence, and the reasonable inferences that can be drawn from it, are, likewise, not sufficient, in themselves, to sustain a conviction of guilt. Circumstantial evidence must not only be consistent with guilt, but must also be inconsistent with any rational hypothesis of innocence. See People v. Staples, 149 Cal. 405, 86 P. 886 (1906).
Here we have a 20-year-old who gives birth to a child, without any help whatsoever, in the darkness of her bedroom just before dawn. She performed this feat without the help of a mid-wife or pain killing drugs. It is uncontested that Inga Mauricio lost a lot of blood during this ordeal. The testimony of Dr. Ensor, the physician who performed a D. and C. on Inga after she gave birth, was that she had lost "an excessive amount" of blood. He indicated that she would have died from the blood loss if medical attention had not been immediately sought for her. He testified that it was not unusual for a woman who had gone through a difficult birth and had lost excessive blood, as Inga had, to go into shock and lose the benefit of her rational faculties.
Inga testified to having great difficulties during the birth. She claimed the child's head passed through the birth canal without complication but that its shoulders would not pass. She testified that in agony and panic she reached down with both hands and pulled on the baby's head to free it. After repeated attempts at pushing and pulling on the child, it was born alive. Dr. Baldwin testified that some deliveries require the use of forceps to turn the child in the birth canal in order for the child's shoulders to clear. Inga did not have the tools to turn the child in order to facilitate delivery.
The State's case relied primarily upon the existence of two pairs of bloody scissors and the testimony of Dr. Putnam, who performed a cursory examination of the infant at Parkway Medical Center in Decatur. He is neither an obstetrician, a gynecologist, nor a pediatrician, and he admitted on the stand that he was not qualified to treat the child's injuries under the circumstances.
Dr. Putnam estimated for the jury that the child's wounds were at least an inch to an inch and one-half deep. He also surmised that the injuries had severed the trachea and major blood vessels because one of the wounds was bubbling blood. This conjecture on the part of Dr. Putnam was wholly unsupported and inappropriate in light of the informed testimony of Drs. Rogers and Baldwin regarding the condition of the child.
Dr. Rogers examined the child for over an hour and a half. Although he considered the child to be in "guarded condition", he thought its low body temperature and underdeveloped lungs, in addition to the neck injuries, were responsible for that condition. In his opinion, fingernails could have caused the injury to the child's neck.
Dr. Baldwin performed the surgery on the child, and found that there were eight or nine wounds in its neck. His opinion was that fingernails or either of the two pairs of scissors could have made the injuries. The jagged appearance of the *94 wounds, in his opinion, "were consistent with a fingernail being pushed in and then some tension exerted on it." This supported Inga's claim that she caused the injuries while attempting to self-deliver the child.
The other circumstantial evidence on which the state relied was the pairs of scissors that Inga said she had used in cutting the umbilical cord. Roger Morrison performed blood tests on both pairs of scissors. He testified that there was blood and fatty tissue along the entire length of the blades of the scissors. On cross-examination he indicated he was unfamiliar with Wharton's jelly, a tissue which is found in the umbilical cord and which is of the same color and consistency as fatty tissue. Dr. Baldwin testified that fatty tissue could be found in small amounts in the umbilical cord. Dr. Embry, a pathologist called to refute Dr. Baldwin's testimony, said that fatty tissue could not be found in an umbilical cord.
The jury was, therefore, presented with conflicting testimony regarding whether the fatty tissue could have found its way onto the scissor blades in cutting the umbilical cord. Assuming the jury believed Dr. Embry's opinion that it would not be found in the umbilical cord, there was yet another hurdle for the jury to surmount. It was also necessary for them to infer that the tissue was indeed fatty tissue and not Wharton's jelly, which has the same color and consistency. If the jury believed Morrison's testimony that it was fatty tissue and believed Dr. Embry's testimony that such tissue was not found in the umbilical cord, there remained yet another hurdle that went to the probative utility of the scissors.
The final factual detail that the jury had to justify in order to find that the scissors had been the weapon used in the alleged crime, was the physical distribution of the blood and fatty tissue. Mr. Morrison testified that the blood and fatty tissue was distributed along the entire length of the blades. This was a length of over an inch in the small scissors and almost three inches in the long scissors. The final hurdle is insurmountable under the evidence presented in this case.
The State could offer no proof regarding how a three-inch scissor blade could cause ¼ to ¾ inch-deep wounds that would distribute blood and fatty tissue along the entire length of the blade. The question presented is whether the jury could reasonably conclude that three-inch scissors can cause ¼ to ¾ inch-deep wounds that distribute fatty tissue and blood along the entire length of the blades. This Court does not think that such a conclusion is consistent with the evidence.
The nature of the circumstantial evidence in the present case is that the jury is forced to speculate as to how the child was injured. A finding of guilt from circumstantial evidence is based on the "inference of a fact in issue which follows as a natural consequence according to reason and common experience from known collateral facts." Dolvin v. State, 391 So. 2d 133, 137 (Ala.1980), citing Lowe v. State, 90 Fla. 255, 105 So. 829 (1925). This is to be distinguished from a supposition, which is "a conjecture based on the possibility or probability that a thing could have or may have occurred without proof that it did occur." Ex parte Williams, 468 So. 2d 99, 101 (Ala.1985), citing L. & N. R.R. Co. v. Mann's Adm'r, 227 Ky. 399, 13 S.W.2d 257 (1929). "Mere possibility, suspicion, or guesswork, no matter how strong, will not overturn the presumption of innocence." Williams, 468 So. 2d at 101.
Although the jury may consider the circumstantial evidence and draw permissible inferences therefrom, a finding that the child was stabbed by scissors does not follow as a "natural consequence according to reason and common experience," from the evidence presented. Nor does a finding that Inga, after delivering her baby, took a three-inch pair of scissors and stabbed the baby in the neck, flow naturally from the evidence. It is difficult to reason how a mother, still recovering from birth and suffering from an excessive blood loss, can stab an infant eight or nine times with such precision that all wounds are roughly parallel to each other and each ¼ to ¾ inch deep. In fact, common experience and the testimony of the experts at trial suggest that making one such wound with a three-inch *95 pair of scissors would be difficult. The probability of making eight or nine such wounds is nearly incalculable. "The possibility that a thing may occur is not alone evidence, even circumstantially, that the thing did occur." Williams, 468 So. 2d at 102, citing Parker v. State, 280 Ala. 685, 198 So. 2d 261 (1967). Mere probabilities are insufficient to rebut the presumption of innocence. Miller Brent Lumber Co. v. Douglas, 167 Ala. 286, 52 So. 414 (1910).
Inga Mauricio's explanation of the events that morning, whether or not accepted by the jury as believable, are a reasonable explanation of what occurred. The State could offer no testimony or other evidence to refute her story, save the scissors and the wounds themselves. The evidence of the depth and distribution of the wounds wholly coincides with Inga's explanation of how they occurred. Every doctor who expressed an opinionDr. Rogers, Dr. Ensor, and Dr. Baldwintestified that the wounds could have been caused by fingernails the length of Inga's. The location of each wound, parallel to the child's chin, also comports with Inga's version of how they were caused. The testimony regarding blood and fatty tissue on the scissor blades, assuming that the tissue was fatty tissue and not Wharton's jelly, is also confirmed by Inga's testimony. She said she wiped the blades of each pair with her hands before she tried to cut the cord. If she punctured the child's neck with her fingernails, as she claimed, it is reasonable to conclude that some of the blood and fatty tissue from the baby's neck would be on her fingers and fingernails. When she wiped the blades with her hands she presumably would have smeared them with the blood and fatty tissue. This is a reasonable explanation for the distribution of blood and fatty tissue along the length of the three-inch scissors, a fact which the State could not explain. The law of circumstantial evidence does not permit a conviction when the inferences to be drawn from the evidence point as strongly toward innocence as toward guilt. Ex parte Williams, 468 So. 2d 99 (Ala.1985), Dolvin v. State, 391 So. 2d 133 (Ala.1980), Jones v. State, 481 So. 2d 1183 (Ala.Crim.App.1985), Weathers v. State, 439 So. 2d 1311 (Ala. Crim.App.1983), Stewart v. State, 405 So. 2d 402 (Ala.Crim.App.1981).
"The law is deeply solicitous that the guilty, and the guilty alone, shall be punished for crime; hence if circumstantial evidence fairly permits an inference consistent with innocence, it will not support a conviction." Tanner v. State, 291 Ala. 70, 71, 277 So. 2d 885, 886 (1973). In the present case the circumstantial evidence presented to the jury raised a strong inference of innocence. In such a situation the issue becomes a question of law for the court. See People v. Galbo, 218 N.Y. 283, 112 N.E. 1041 (1916), People v. Staples, 149 Cal. 405, 86 P. 886 (1906). The defendant is ushered into court with a presumption of innocence and it is incumbent upon the State to rebut that presumption. In the present case, the circumstantial evidence offered by the prosecution did not refute Inga's theory of innocence, but rather bolstered her claim. This being the case, it was error for the Court of Criminal Appeals to affirm the conviction, because the trial court improperly denied Inga Mauricio's motion for acquittal at the close of the evidence. The judgment is reversed and a judgment of acquittal is rendered.
REVERSED AND RENDERED.
All of the Justices concur except STEAGALL, J., not sitting. | December 11, 1987 |
2e3a1ab1-260a-4adc-aff4-ad22befcde1f | Kabel v. Brady | 519 So. 2d 912 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 912 (1987)
Richard E. KABEL
v.
Myrtie M. BRADY.
86-555.
Supreme Court of Alabama.
December 18, 1987.
*913 Billy R. Weathington, Jr., Leeds, for appellant.
John A. Tinney, Roanoke, and Charles Parks, Anniston, for appellee.
BEATTY, Justice.
This is a fraud case in which the jury returned a verdict in favor of the plaintiff, Myrtie M. Brady, and judgment was entered thereon. The defendant, Dr. Richard E. Kabel, appeals from the trial court's order denying his post-judgment motion for judgment notwithstanding the verdict or in the alternative a new trial or in the alternative a remittitur. We affirm.
On August 26, 1983, Mrs. Brady went to Dr. Kabel's chiropractic clinic in Oxford, Alabama, for a hearing examination. In addition to offering the usual chiropractic services, the Kabel Clinic contained a hearing department in which Dr. Kabel performed hearing examinations and fitted patients with hearing aids. At the conclusion of Dr. Kabel's examination of Mrs. Brady, he recommended that she purchase two new hearing aids. She made a down payment of $300.02 toward a total purchase price of $1,608.02 for a pair of hearing aids. Since the Kabel Clinic provided fitting services but did not have a full inventory of hearing aids, the parties understood the clinic would place an order with a manufacturer/supplier of the hearing aids. Dr. Kabel testified that the normal period between the placing of an order and the delivery of the hearing aids was from four to six weeks. He further stated that Mrs. Brady was informed of the customary delay and that the clinic lent her a single hearing aid to replace her previous one until her new set arrived.
Several days later, on August 29, 1983, Mrs. Brady returned to the clinic with her sister, Mrs. Louise Mitchell, in order for Dr. Kabel to perform a hearing examination on Mrs. Mitchell, who had also been having some problems with her hearing. Mrs. Brady accompanied her sister through the examination process and the consultation with Dr. Kabel that followed. During this discussion after the test, Mrs. Mitchell decided to order two hearing aids of the gold canal type. Mrs. Brady liked her sister's choice so well that she changed her previous order with Dr. Kabel so as to receive the more expensive gold canal hearing aids. At that time, Mrs. Brady made an additional down payment of $500 toward a total price of $2,420 for the new set.
Furthermore, Mrs. Brady testified that she had a conversation with Dr. Kabel during this second visit to the clinic concerning what, if anything, Medicare would pay toward the cost of these hearing aids. She claims that Dr. Kabel represented to her that the cost of the hearing aids "would be taken care of" by Medicare. Dr. Kabel testified to the contrary:
Dr. Kabel maintains that he never personally spoke to Mrs. Brady concerning Medicare and that he normally allows his staff to handle matters involving fees and insurance. Dr. Kabel's wife and part-time assistant at the clinic, Terry Kabel, testified that she did discuss Medicare benefits with Mrs. Brady during one of Mrs. Brady's subsequent trips to the clinic and that she "made it clear to her [Mrs. Brady] that Medicare wouldn't pay for anything she would have done" at the clinic.
*914 After ordering the second set of hearing aids on August 29, 1983, Mrs. Brady returned to the clinic two days later, on August 31. Mrs. Brady maintains that the third visit was for the purpose of checking, per Dr. Kabel's instructions, to see if her hearing aids had arrived from the supplier. They had not been delivered, and Mrs. Brady testified that at that point Dr. Kabel took her back to his office and entered into a discussion of the human skeletal structure, explaining to her that he could perform tests which might aid him in diagnosing and ultimately correcting her hearing problem.
Dr. Kabel concedes that Mrs. Brady did return to his office on August 31, but he argues that she made the visit for the express purpose of having a "physical consultation" with him. Dr. Kabel's office assistant, Charlene Seymour, is in accord with him and testified that Mrs. Brady came to the clinic to talk to the doctor "about an examination for her health problems" and that she believed that Mrs. Brady "came in just for the consultation." In any event, Mrs. Brady did agree to allow Dr. Kabel to perform a physical examination consisting of a series of diagnostic tests.
While these tests were to be performed on September 8, 1983, Dr. Kabel did take a case history and had a discussion with Mrs. Brady concerning the fees on the date of the "physical consultation," August 31. Mrs. Brady also filled out a "Symptom Survey Form" on that date. Dr. Kabel recorded Mrs. Brady's case history on a form with the heading "Case Record." In the preprinted category entitled "History of Illness and Treatment," Dr. Brady wrote the words, "right ear paingoes down jaw," and in the line above, "onset last 3-4 days." The remainder of the form contains the history of Mrs. Brady's health problems and her current condition. However, in completing this form, Dr. Kabel apparently ignored the preprinted category headings on the form and utilized his own format (e.g., noting daily bowel movements beside the heading "Present Illness or Complaints").
In completing the "Sympton Survey Form," Mrs. Brady checked 20 items from a listing of various bodily ailments. Her complaints ranged from a "nervous stomach" to brown points on her skin and included "ringing in ears" and "impaired hearing." Dr. Kabel provided Mrs. Brady with an outline of the tests he would perform and assigned a fee to each procedure, reaching a total of $565 for the proposed examination.
Again, there is a controversy over the representations involving Medicare coverage. Mrs. Brady alleges that Dr. Kabel told her that, in addition to the cost of her hearing aids, the cost of the physical examination would be covered by Medicare as well. She also stated that she was never told of the fact that Medicare refuses to pay for most chiropractic services, and that she never would have agreed to the tests had she known that Medicare would not pay for them. On the other hand, Dr. Kabel maintains that he never spoke to Mrs. Brady about Medicare, and, furthermore, Mrs. Kabel testified that she clearly told Mrs. Brady that Medicare would not pay for her "hearing aids, examinations, or whatever."
Thereafter, Mrs. Brady returned to the clinic on September 8, 1983. At that time, Dr. Kabel performed a physical examination on her, consisting of various tests and X-rays, a colon examination, a breast examination, an enema, and a Pap smear. In addition, he obtained specimens of her blood and urine to be forwarded to a laboratory for analysis. Mrs. Brady contends that Dr. Kabel recommended that he perform a Pap smear (a procedure not listed in the original outline she had received) and that she had not requested one. In direct contrast, Charlene Seymour testified that this additional procedure was at Mrs. Brady's request:
After the completion of the physical examination, Mrs. Brady signed an assignment *915 of payment form that authorized the direct payment of any insurance proceeds to Dr. Kabel. This document also bound Mrs. Brady to personally pay the full amount of the clinic's charge in the event of noncoverage. In addition, she signed a blank Medicare payment request form. Mrs. Kabel testified that although Mrs. Brady was told that Medicare would not pay for her charges at the clinic, Mrs. Brady requested that the clinic file a claim with Medicare for another purpose, viz., so that she would have proof of Medicare's rejection of the claim in order for her other insurance to provide coverage. Mrs. Brady, on the other hand, testified that Dr. Kabel's staff had asked her to sign the forms.
Regardless of who suggested that the claim be filed, the Kabel Clinic did indeed file a Medicare payment request form with Blue Cross-Blue Shield of Alabama. According to the testimony, Charlene Seymour marked the box labeled "I accept assignment" in the section on the form entitled "Assignment of Patient's Bill." Dr. Kabel and his wife both claim that this notation on the Medicare form was simply a mistake and that the Kabel Clinic has never been in the practice of accepting assignments from Medicare. Apparently, Mrs. Kabel discovered the mistake months after the original claim had been filed and rejected by Medicare. When she brought the mistake to Dr. Kabel's attention, he asked Mrs. Seymour to "correct" the clinic's copy of the form by changing the assignment section so as to mark the box labeled "I do not accept assignment." The clinic never filed this corrected form.
Nevertheless, the Kabel Clinic initially filed an assigned claim for $609. The discrepancy of $44 between the estimated fee ($565) and the final bill can be accounted for largely by the additional cost of the Pap smear. Medicare denied payment for the claim and sent Mrs. Brady a notice of the denial of benefits, stating that Dr. Kabel's chiropractic services were not covered by Medicare in her case. Although the testimony clearly indicates that the clinic's claim was originally an assigned claim, the notification of benefits form sent by Medicare to Mrs. Brady states that the claim was "unassigned," apparently a Medicare mistake.
Mrs. Brady was involved in an automobile accident soon after her physical examination at the clinic. While hospitalized in Birmingham, Mrs. Brady apparently received advice from a physician there that she should cancel her order for hearing aids at the Kabel Clinic. She testified that when she requested a refund of $800.02 (her down payment), Dr. Kabel refused to pay, and that she never received either a refund or the hearing aids themselves.
Thereafter, Charlene Seymour visited Mrs. Brady in her home and requested payment of the clinic bill. At that time, Mrs. Brady wrote a check payable to Dr. Kabel for $609, the full charge for the physical examination. This check was dated October 21, 1983. Mrs. Brady claims that she did not receive the denial of benefits form from Medicare until November, yet the Medicare form was dated October 18, 1983. At the time Mrs. Brady sent the check, she forwarded a letter to Dr. Kabel asking him to send her a report of the examination so that she could file a claim with National Foundation Life Insurance Company. She had previously given signed claim forms for Aetna Insurance Company to Dr. Kabel so that the clinic could file this claim directly. The record does not indicate if either of these insurance companies paid on these claims.
Mrs. Brady commenced this action against Dr. Kabel on November 2, 1984, in Calhoun Circuit Court. In her complaint, Mrs. Brady stated a claim in fraud, alleging that Dr. Kabel represented to her that "he could perform various tests and examinations upon her to determine the cause of her hearing loss condition and that upon her completion of this examination he would be able to prescribe treatment for her concerning said condition." Mrs. Brady further alleged that Dr. Kabel "represented to her that the costs for this examination would be covered by Medicare and that she would not have to pay anything as he would submit the bill to Medicare for this treatment." Mrs. Brady claimed that *916 she relied on these representations and that she had learned that both of them were false. Mrs. Brady claimed punitive damages in addition to $609, the cost of the physical examination. In due course, the case proceeded to trial before a jury, which returned a verdict in favor of Mrs. Brady in the amount of $162,500. Judgment on the verdict was entered, and Dr. Kabel's post-judgment motion was denied. This appeal followed.
Essentially, three issues are presented for our review:
(1) Did the plaintiff's complaint state her fraud claim with the requisite particularity so as to comply with Rule 9(b), A.R.Civ.P.?
(2) Did the trial court err in admitting evidence that Dr. Kabel had had other patients complain that he had made false representations involving Medicare?
(3) Was the jury's award excessive and against the weight of the evidence?
Rule 9(b), A.R.Civ.P., states the requirements for pleading a claim in fraud as follows:
According to the committee comments to Rule 9:
The purpose of this special pleading provision is to give fair notice of the alleged fraud to the opposing party. Winn-Dixie Montgomery, Inc. v. Henderson, 371 So. 2d 899 (Ala.1979); Caron v. Teagle, 345 So. 2d 1331 (Ala.1977).
Defendant contends that Mrs. Brady's allegations of fraud in the complaint are vague and ambiguous and that the complaint failed to provide him with fair notice that the fraud claim was based on the alleged misrepresentations involving the "physical consultation" on August 31, 1983, and the physical examination on September 8, 1983. The pertinent section of the complaint states:
Dr. Kabel argues that the complaint refers solely to Mrs. Brady's initial hearing examination and her subsequent ordering of hearing aids, events taking place on August 26 and 29, 1983. In his brief, appellate counsel for Dr. Kabel attacks the trial court's admission of evidence involving the physical examination:
While Dr. Kabel's appellate counsel interprets the allegations in the complaint as referring solely to the hearing test, it was apparently clear to Dr. Kabel's trial counsel that the fraud claim as stated in the complaint was connected with the physical examination. During the trial, after plaintiff's counsel adduced evidence of the hearing test and then attempted to introduce the bills for the hearing aids, Dr. Kabel's trial counsel objected:
We find that the complaint was sufficient to place the defendant under fair notice as to the nature and subject of Mrs. Brady's claim in fraud, i.e., that it involved the allegedly fraudulent physical consultation and examination. Since the complaint sets out with sufficient particularity the facts constituting fraud as required by Rule 9(b), A.R.Civ.P., we find no merit in Dr. Kabel's argument of unfair surprise and prejudice
The second issue presented for our review is the propriety of the trial court's admission of evidence that Dr. Kabel had had other patients complain about his alleged representations involving Medicare. During his examination as an adverse witness by plaintiff's counsel, Dr. Kabel testified as follows:
Later in the trial, the plaintiff addressed the same issue during cross-examination of Charlene Seymour:
Dr. Kabel argues that this evidence is immaterial and irrelevant and that its admission into evidence constituted reversible error. We disagree.
While the doctrine of res inter alios acta generally operates to exclude as irrelevant any evidence of acts and declarations of nonparties, or dealings of parties with nonparties, its operation is limited in certain circumstances. Dorcal, Inc. v. Xerox Corp., 398 So. 2d 665 (Ala.1981); Loftin's Rent-All, Inc. v. Universal Petroleum Services, Inc., 344 So. 2d 781 (Ala.Civ. App.1977). Although past dealings of a party with a nonparty are normally excluded as irrelevant, this prior conduct becomes competent evidence when the intent of the party is in issue. Roberson v. Ammons, 477 So. 2d 957 (Ala.1985). In a fraud action, the "intent, knowledge and scienter constitute essential elements of the offense, [and] evidence of similar frauds and misrepresentations [is] commonly admissible." Dorcal, 398 So. 2d at 671, citing Roan v. Smith, 272 Ala. 538, 133 So. 2d 224 (1961); Johnson v. Day, 230 Ala. 165, 160 So. 340 (1935); and 37 Am.Jur.2d Fraud & Deceit § 456 (1968).
In Jackson v. Lowe, 48 Ala.App. 633, 266 So. 2d 891 (1972), the Court of Civil Appeals was faced with such a situation. In that case, the trial court allowed the plaintiff, an unwitting purchaser of a stolen automobile, to call as a witness a man who had been similarly defrauded by the same seller. The court held that it was proper for the plaintiff to attempt to show a fraudulent scheme on the part of the seller by showing that others had had a similar experience with the seller. "The Alabama courts generally agree that evidence of other fraudulent transactions or deceit by the civil defendant is admissible to show fraud, motive, scheme or intent." C. Gamble, McElroy's Alabama Evidence, § 70.03(1) (3d ed. 1977).
Although the case sub judice presents a somewhat modified question, nevertheless, the testimony pertaining to the prior patient's confusion over Medicare was not inadmissible. Although it did not *919 establish that Dr. Kabel actually made any false representations to that prior patient concerning eligibility of Medicare benefits, nevertheless, the evidence of the prior patient's confusion over Medicare was relevant as a similar occurrence. Indeed,
(Citations omitted.) Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 63, 311 So. 2d 312, 315 (1975). Furthermore, "[q]uestions of materiality, relevancy, and remoteness rest largely with the trial judge, and his rulings must not be disturbed unless his discretion has been grossly abused." Ryan v. Acuff, 435 So. 2d 1244 (Ala.1983). We hold that the trial court did not abuse its discretion.
Finally, Dr. Kabel contends that the jury's damages award was excessive and against the weight of the evidence. The jury returned a verdict against Dr. Kabel for $162,500. Since the verdict was in general form, we do not know what portion of the award would be compensatory damages. Although the complaint stated compensatory damages of only $609 (the cost of the physical examination), the record indicates that Mrs. Brady never received a refund of the $800.02 down payment on her hearing aids, nor the hearing aids themselves. Nevertheless, a large portion of this jury award should be recognized as punitive damages.
In Old Southern Life Ins. Co. v. Woodall, 295 Ala. 235, 326 So. 2d 726 (1976), this Court reviewed the propriety of imposing punitive damages in fraud actions:
326 So. 2d at 732.
The evidence presented in this case is in sharp conflict. Mrs. Brady testified that Dr. Kabel had misled her into believing that Medicare would pay for her treatment at the clinic and misrepresented to her that the physical examination would allow him to diagnose and treat her hearing problem. On the other hand, Dr. Kabel denies making any statements to Mrs. Brady about Medicare and insists that the physical examination was totally separate from her hearing condition; he concedes that the tests he performed had nothing to do with her hearing loss. "When evidence is in conflict, the jury is free to believe or not to believe the witnesses." Roberson, 477 So. 2d at 961, citing Carolina Casualty Ins. Co. v. Tisdale, 46 Ala.App. 50, 237 So. 2d 855, cert. denied, 286 Ala. 741, 237 So. 2d 861 (1970). This Court generally will not disturb the decision of the jury on a fact question unless it is plainly erroneous or manifestly unjust. Allred v. Dobbs, 280 Ala. 159, 190 So. 2d 712 (1966).
Dr. Kabel asks this Court to reverse the trial court's denial of his post-judgment motions for a JNOV, a new trial, or a remittitur. For a party to be entitled to a JNOV, he must have moved for a directed verdict at the close of all of the evidence. Rule 50(b), A.R.Civ.P. If a party fails to move for a directed verdict at the proper time, his motion for JNOV will be denied. Perdue v. Gates, 403 So. 2d 165 (Ala.1981). The record in this case reveals that no *920 motion for directed verdict was made at the close of all of the evidence; therefore, the trial court's denial of the JNOV was proper.
A remittitur or a new trial should not be ordered on the grounds of excessiveness of the jury's verdict unless the court can determine that the verdict was reached on account of bias, passion, prejudice, corruption, or other improper motive. Mobile Dodge, Inc. v. Alford, 487 So. 2d 866 (Ala. 1986). In accord with Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), the trial court properly stated and applied the factors to be considered in ruling on the defendant's post-judgment motions.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur. | December 18, 1987 |
26016504-7ab8-4ee1-839e-9c2eb69ae5ac | ERA Commander Realty, Inc. v. Harrigan | 514 So. 2d 1329 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1329 (1987)
ERA COMMANDER REALTY, INC.
v.
Dwight HARRIGAN, et al.
85-1208.
Supreme Court of Alabama.
October 2, 1987.
A. Danner Frazer, Jr., of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellant.
*1330 Louis E. Braswell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee Dwight Harrigan.
Jere Austill, Jr., of Austill, Austill & Austill, Mobile, for appellee Frank Caron.
Richard L. Thiry, of Thiry, Maples & Brunson, Mobile, for appellees Howard A. Yeager, Yeager Realty Corp., Bachar Realty Corp., and Glen Bachar.
ADAMS, Justice.
Plaintiff, ERA Commander Realty (hereinafter "Commander"), appeals from a summary judgment in favor of all defendants, and from the denial of its own motion for a partial summary judgment. We affirm.
Commander is a real estate company doing business in Gulf Shores, Alabama. Defendant Dwight Harrigan owned a large piece of real estate in Gulf Shores. Commander and Harrigan entered into a listing agreement giving Commander the right to list the property for sale. During the contract period, Harrigan personally sold the property to another defendant, Frank Caron, through Caron's real estate agents, Glen Bacher of Bacher Realty Corporation (hereinafter "Bacher") and Howard Yeager of Yeager Realty Corporation (hereinafter "Yeager").
The basis of Commander's appeal is that the listing agreement granted Commander the exclusive right to sell the property and that Harrigan breached that contract when he sold the property himself. Commander sued Harrigan for breach of contract, and sued Caron, Bacher, Bacher Realty, Yeager, and Yeager Realty for intentional interference in contractual or business relations. Commander also claims fraud and conspiracy to commit fraud, against all the defendants.
After filing an answer denying all claims, each defendant filed a separate motion for summary judgment. Oral arguments on the motions were heard together, but due to time constraints, Commander's oral argument was not heard. The court instructed Commander to file a brief, but set no time limit. Summary judgment was granted by the Court before Commander's brief was filed.
Commander subsequently moved to set aside the summary judgment in its favor of the defendants, and moved for a partial summary judgment in its favor on the issue of whether the contract granted Commander an exclusive right to sell the property. The court acknowledged its error in granting summary judgment prematurely, and it heard oral arguments on the merits. By order of July 10, 1986, the court refused to set aside the summary judgment, thus denying Commander's motion for a partial summary judgment.
Commander now appeals, claiming that the lower court erred in granting the summary judgment.
After listing the property "For SaleBy Owner," Harrigan was contacted by Commander's agent, John Crawford about entering into a listing agreement. Harrigan expressed his concern over listing the property with an agent. Since he had some interested parties and had dealt with a person named Carroway, to whom he had already given an oral option to purchase, he believed that he could sell the property himself. Commander wanted the listing and because of the concerns expressed by Harrigan, Commander amended its standard listing agreement and presented the modified agreement to Harrigan on August 12, 1983. Harrigan was reluctant, but finally signed the modified agreement on November 4, 1983.
The pertinent language of the unmodified listing agreement is as follows:
3. This contract shall expire five months after date hereof (4 April 1984).
Only paragraph 2 of the standard agreement was modified or amended. The addendum was attached to the form agreement and states as follows:
After obtaining the listing, Commander began to try to sell the property. On November 25, 1983, Commander obtained permission to remove the "For SaleBy Owner" signs and replaced them with Commander signs. It also placed the property on the Multiple Listing Service and began a letter-writing campaign to prospective buyers. On the same day, Harrigan's secretary spoke to John Crawford, the Commander agent, and referred Sherrill Real Estate to Commander. According to Crawford, Harrigan's secretary also told Crawford that Harrigan "had instructed her to refer Sherrill's and all other inquiries to [Commander]."
On December 3, 1983, Commander had its first response to the signs that had been placed on the property when Blalock Realty, which was working with Johnson-Rast & Hays in Birmingham, contacted Commander. Several other realtors contacted Commander over the next several months, including Galen Hammond, an agent of Bacher Realty. The conversation was limited to Crawford's informing Hammond that Commander had a listing on the property and that the asking price was $2,600,000.00. Later, Hammond saw the president of Commander in a store and congratulated him on the listing.
Commander worked with several prospective buyers through Blalock Realty and Johnson-Rast & Hays in Birmingham, but no offers were received until approximately February 10, 1984. On that day Commander received an offer from the principals of Investment Properties, Inc., a corporation that had not yet been formed at the time of the offer, through its real estate agent, Tom Archer. Harrigan rejected the offer by Investment Properties, Inc., because he thought it was speculative.
On February 27, 1984, Harrigan's attorney contacted Crawford and informed him that an offer had been made directly to Harrigan. As a result, Crawford contacted Archer and informed him of the other offer. On the following day, Harrigan informed Crawford that he was planning to meet with Caron on February 29 and that Caron had made a cash offer.
Prior to and following this conversation, Harrigan was working toward an agreement with Caron, who was represented by his real estate agents, Bacher and Yeager. Bacher had initially learned about the property sometime in 1982 or 1983, when Harrigan came to his office and asked him to place a sign for him. Bacher then informed Yeager about the land. Bacher and Yeager regularly took Caron to Gulf Shores to look for investment properties. In May or June of 1983, before the property was listed with Commander, Bacher and Yeager informed Caron about Harrigan's property. At that time, Caron had no use for the property.
However, sometime in February 1984, Caron became interested in the property again. With his agents, Bacher and Yeager, Caron contacted Harrigan directly about the property. Caron made a cash offer of $2,500,000.00. Harrigan counter-offered approximately $2,600,000.00, which Caron accepted. Yeager took the real estate purchase contract, on a Bacher form to Harrigan's attorney on February 27, 1984. The contract stated that the purchase price was $2,610,000.00, that there *1332 would be $10,000.00 in earnest money, and that Bacher and Yeager were to receive a commission constituting 10 percent of the purchase price. Caron was prepared to close within a few days, so Harrigan began the necessary proceedings to sell the property.
Knowing of the pending offer by Caron, Commander was pushing Investment Properties, Inc., to make a revised offer. On February 28, 1984, Commander received word from Archer that he was going to make another offer. Commander received from Archer a $3,000,000.00 offer on February 29, and immediately tried to contact Harrigan. At that time, Harrigan was in Mobile preparing to close the deal with Caron. Commander told Harrigan's secretary the specifics of the offer and later contacted Harrigan. The offer was contingent on a 60-day feasibility study, another 60 days for obtaining a national hotel franchise, and an additional 90 days to obtain a development loan, a total of seven months. Finally, Investment Properties, Inc., was willing to give only $1,000.00 as earnest money. The offeror was not to be obligated unless all these contingencies were met. Due to these contingencies, the low earnest money, and the fact that the corporation had not been formed yet, Harrigan refused the offer.
At no time prior to this lawsuit did Commander claim that it might be entitled to a commission on Harrigan's sale to Caron. To the contrary, Commander continued to work quickly to get a revised offer from Investment Properties, Inc., and from another party at Johnson-Rast & Hays in Birmingham, who had also expressed some interest in the property.
Harrigan met with Caron, Bacher, and Yeager on the morning of February 29. At that time they decided that the purchase price would be listed as approximately $2,350,000.00, the net amount owed to Harrigan on the sale, less his prorated share of taxes and insurance, and that the remaining $260,000.00 would go directly to Bacher and Yeager as a commission.
During the closing, Bacher, Yeager, Caron, Harrigan, and Harrigan's attorney discussed the Commander listing agreement. Bacher and Yeager had seen the Commander signs on the property, and Bacher's agent, Galen Hammond, had had contact with two employees of Commander, each of whom told him that Commander had a listing on the property. However, Bacher and Yeager had learned about the property through Harrigan in 1982 or 1983, before the listing with Commander. In response to the question of whether Harrigan could sell the property himself, even though he had a listing agreement with Commander, Harrigan and his attorney assured Bacher, Yeager, and Caron that Harrigan had the authority to sell the property himself, as long as Caron had not seen or talked to Commander, or been shown the property by Commander.
To protect himself from liability and to insure that Caron had not been shown the property by Commander or its agents, Harrigan asked Caron to sign a provision indemnifying him from liability under his contract with Commander. Caron, Bacher, and Yeager reviewed the indemnity provision and concluded that because Caron had never met, nor even seen anyone from Commander, it was safe for him to assume that he would not be liable to Commander for a commission. Caron did not contact an attorney regarding this question, and he signed the indemnity provision.
The following issues are raised on appeal:
1. Whether there is any evidence creating a genuine issue of material fact on the meaning of the listing agreement and whether the trial court erred in granting Harrigan's motion for a summary judgment, and denying Commander's motion for a partial summary judgment on that issue.
2. Whether there is any evidence creating a genuine issue of material fact on Commander's claim for fraud, and whether the trial court erred in granting Harrigan's motion for summary judgment on that issue.
3. Whether the trial court erred in granting Bacher's, Bacher Realty's, Yeager's, Yeager Realty's, and Caron's motions for summary judgment.
4. Whether there is any evidence creating a genuine issue of material fact as to who produced Caron as a buyer of the real estate.
On the questions of the meaning of the listing agreement and whether Commander had an exclusive right to sell the property, we find no genuine issue of material fact. It is clear from the face of the contract and the undisputed facts surrounding *1333 the agreement that it was amended to allow Harrigan to sell the property himself, without entitling Commander to a commission. If there was no exclusive right for Commander to sell the property and receive a commission, then Harrigan could not have breached the contract by selling it through someone else.
We are of the opinion that there was no evidence to support Commander's claim for fraud, and we affirm the summary judgment on that claim.
Furthermore, because we conclude that Commander did not have an exclusive right to sell or receive a commission upon the sale of the land by Harrigan, the claims for intentional interference in contractual relations, fraud, and conspiracy to commit fraud against Bacher, Bacher Realty, Yeager, Yeager Realty, and Caron necessarily fail. We affirm the summary judgment in favor of the remaining defendants.
Whether there is any ambiguity in the contract is a question of law for the judge. If the contract is unambiguous, summary judgment is proper. Jones v. Central Bank of the South, 466 So. 2d 932 (Ala. 1985); Food Service Distributors, Inc. v. Barber, 429 So. 2d 1025 (Ala.1983).
There is no dispute over the facts in this case, only the proper interpretation of the facts and of the contract. Commander wanted to list Harrigan's property with its company. Harrigan expressed some concern about limiting himself to a listing agreement because he thought he could sell the property himself. Since Harrigan was unwilling to sign the standard listing agreement, which would have given Commander an exclusive right to sell and a commission even if Commander did not actually sell the property, Commander wrote an amended listing agreement and presented it to Harrigan. Harrigan remained reluctant to sign, thinking that he still might be better off on his own. Three months after the contract was presented to him, Harrigan agreed to the modified listing agreement.
Commander makes two related arguments: First, that the agreement was intended to allow Harrigan to sell to the one prospective buyer he had prior to signing the listing agreement, but to no one else; and second, that the preamble[1] to the entire agreement, which states that Commander had the "exclusive irrevocable right and privilege to sell," was entirely consistent with the addendum, which allowed Commander to obtain a commission only if it produced a buyer ready, willing, and able to purchase. Nonetheless, Commander argues that if its arguments are at least reasonable, it is entitled to have a jury decide the case.
As to the first point, there is no dispute that Harrigan's concern in signing an unmodified listing agreement with Commander was that he would be required to pay Commander a commission even if he sold the property himself. As a direct result of that concern, Commander modified the contract, using very broad terms. In determining the meaning of the contract, it is significant to compare Paragraph 2 of the unmodified agreement with the addendum that superseded it.
The original provision in Paragraph 2 permitted Commander to obtain a commission upon the sale of the property "[i]f during the existence of this contract the property [was] sold by you [Commander] or me [Harrigan] ..., or anyone else." Under that contract, to which Harrigan did not agree, Commander would have had the exclusive right to sell the property, but if anyone else did sell the property, then Commander would still have been entitled to a commission.
Clearly, the amended provision does exactly the opposite. Rather than allowing Commander a commission no matter who sold the property, the amendment states that Commander could receive a commission "only" if it produced a buyer. The provisions regarding a sale by Harrigan or "anyone else" were deleted from the addendum. The only reasonable inference that can be drawn from that change is that if Harrigan or anyone else did sell the property, Commander would not receive a commission.
Since we ultimately conclude that there is no evidence that Commander procured *1334 Caron, the ultimate purchaser, and because Commander has abandoned its theory that Investment Properties, Inc., was a buyer "ready, willing, and able," Commander should not be entitled to a commission.
Furthermore, if the agreement was meant to be as limited as Commander suggests, Commander could have drafted the modified provision much more narrowly. In other words, the addendum could have stated that Commander would be entitled to a commission unless Harrigan sold the property to X, Y, or Z (presumably those potential purchasers Harrigan was already working with). But in drafting the addendum, Commander used very broad language with no limitations.
Commander also argues that it would not have entered into the listing agreement if it had known it was not exclusive, except with regard to Carroway, the one particular buyer Harrigan had dealt with prior to the agreement with Commander. However, Commander also claims that at the time Harrigan finally agreed to sign the listing agreement, he no longer had Carroway as a prospective buyer, and, thus, that the addendum served no further purpose. Yet, Commander still left the addendum in the agreement. If there was no longer any need for the addendum, why did Commander leave it in the agreement? The logical conclusion is that the addendum remained in the agreement because it was not, as Commander argues, mooted by the fact that one of Harrigan's prospective purchasers no longer appeared interested in the property; such a conclusion would substantiate the conclusion that the agreement was not intended to give Commander an exclusive right to sell the real estate.
Commander's second major argument is that the contract, as amended, is unambiguous and means that Commander has an exclusive right to sell Harrigan's property, even though it is entitled to a commission only if it produces a buyer ready, willing, and able. In other words, Commander claims that it need not be entitled to a commission to win this appeal because Harrigan breached the "exclusive right" provision and Commander is entitled to damages for that breach. However, Commander argues, if this Court finds that the contract is ambiguous, then the lower court's judgment should be reversed because Commander is entitled to a jury trial to resolve the ambiguity. Jones v. Chaney & James Construction Co., 399 F.2d 84 (5th Cir. 1968).
Determining whether a contract is ambiguous is a question of law for the trial judge to decide, P & S Business v. South Central Bell Telephone Co., 466 So. 2d 928, 931 (Ala.1985), and if the parties' intent can be discerned from reading the contract, then that is also a question of law for the trial judge. Southeast Nursing Home, Inc. v. St. Paul Fire & Marine Ins. Co., 750 F.2d 1531 (11th Cir.1985). The judge found no ambiguity in the contract and we conclude that in light of the undisputed facts, the only reasonable interpretation of the contract is that the addendum to the contract amended the exclusive right provision in the preamble.
Commander asserts a right to money damages for breach of the "exclusive rights" clause in the preamble, claiming that the contract gave it the exclusive right to sell for five months (until April 4, 1984), even though Commander could receive a commission only if it produced a buyer. Thus, Commander claims, it had until April 4 to find a buyer and, by selling the property himself on February 29, 1984, Harrigan prevented Commander from receiving a commission. We disagree.
This Court will not insert ambiguities into a contract by "strained and twisted meaning where no such ambiguities exist." South Central Bell, supra, citing Michigan Mutual Liability Co. v. Carroll, 271 Ala. 404, 123 So. 2d 920 (1960). The interpretation Commander suggests would require this Court to place a strained and twisted construction on the agreement.
First, the date only indicates the length of the contract; it does not determine the substantive question of whether there was an exclusive right to sell. Since we conclude that there was no exclusive right to sell, there can be no breach of the contract based on a violation of such an exclusive right.
Second, from the face of the agreement, as modified, it appears that Commander was entitled to a commission only if it produced the buyer. If, pursuant to the language of the preamble, the agreement was intended to give Commander an exclusive right to sell, there would be no need to specify that Commander would receive a commission only if it produced the buyer. That would be stating the obvious. Certainly no one *1335 would conclude that Commander would be entitled to a commission if it did not sell the property. If the language in the addendum is to mean anything, it must mean that Harrigan could sell the property himself, without giving Commander a commission.
Furthermore, Commander's interpretation of the agreement would yield ridiculous results. If it were true that the two provisions granted an exclusive right to sell, but a commission only if a buyer was produced, then even if Harrigan violated the exclusive right provision by selling the property himself, Commander would still not be entitled to a remedy (i.e., a commission) under the terms of the contract. There would be no reason to drastically limit Commander's right to a commission and also prohibit Harrigan from selling the property. Thus, even under Commander's interpretation of the contract, it could not recover.
We conclude that the face of the agreement, as well as the undisputed facts and intent of the parties, is sufficient for this Court to conclude that the contract did not grant an exclusive right to sell. Nonetheless, the rules of construction would still require this Court to find that the addendum supersedes the general language of the preamble. When there is a conflict in a contract, the specific substantive provisions control over general provisions. McKinney Drilling Co. v. Collins Co., 517 F. Supp. 320, 324 (N.D.Ala.1981). More specifically, this Court has previously rejected the argument that the preamble controls operative provisions of a contract. "[W]here the recitals are broader than the contract stipulations, the former will not extend the latter." Ingalls Iron Works Co. v. Ingalls, 256 Ala. 124, 128, 53 So. 2d 847, 850 (1951). Thus, where there is an inconsistency in the contract, the specific, unambiguous provisions of the addendum prevail. Pursuant to the addendum, Commander was not entitled to an exclusive right to sell, nor is Commander entitled to a commission.
A third rule of construction applicable when contract terms are inconsistent with typewritten terms is that typewritten provisions prevail over printed matter. McKinney, supra; Industrial Machinery, Inc. v. Creative Displays, Inc., 344 So. 2d 743 (Ala.1977). This is a long-held presumption in the law, because typewritten provisions are thought to have commanded stricter attention than a standard form contract provision. McKinney, supra; Industrial Machinery, supra. Once again, the rules of construction lead us to conclude that if there is any ambiguity in the provisions, the rules of construction provide the answer. Since the typewritten addendum was unambiguous, it prevails.
A final rule of construction aiding us in interpreting this contract is the rule that an ambiguous contract is generally construed against the drafter. Colonial Baking Co. v. Pine Dale, Inc., 436 So. 2d 856, 858 (Ala.1983), citing Morrow v. Wood, 411 So. 2d 120 (Ala.1982); Travelers Insurance Co. v. Kernachan, 283 Ala. 96, 99, 214 So. 2d 447 (1968). Commander drafted the provision; thus any ambiguity should be construed against it. If the addendum was intended to mean what Commander asserts, then it could have been drafted much more narrowly. Because the addendum was stated broadly and with no limitations, we find that it permitted Harrigan to sell the property on his own, without entitling Commander to a commission.
But Commander further argues that if the contract is given the meaning asserted by the defendants, it gives Commander no better rights than any other real estate agent, and makes the contract useless. We disagree. Commander was permitted to place signs on the property and to place the property on the Multiple Listing Service under the name of the company, and was also authorized to advertise and represent that it had a listing on the property. All of these put Commander in a better position to sell the property than other real estate agents had.
Nonetheless, giving Commander the right to sell does not necessarily mean that no one else can be granted that same authority. The provisions in the contract permitted exactly that. Commander was given the authority to try to sell the property, but Harrigan was not precluded from giving another realtor permission to do the same. Until this lawsuit, Commander acted consistent with this interpretation of the contract. Specifically, Harrigan and his attorney informed Commander of the pending offer by Caron. At no time while Harrigan *1336 was working on the sale to Caron did Commander give any indication that Harrigan was acting inconsistent with the agreement, nor did Commander ever assert any right to a commission on the sale. To the contrary, Commander worked diligently to try to get either Investment Properties, Inc., or the Johnson-Rast & Hays party to make an offer.
Commander also claims that Harrigan defrauded the company. Commander claims it never would have entered into the listing agreement if it had known the company did not have an exclusive right to sell, except with regard to the one specific buyer Harrigan had worked with prior to the contract. Furthermore, Commander asserts that Harrigan caused the company to rely on his actions to its detriment. Crawford admits in his deposition that the Commander claims are based only on the facts that Harrigan signed the listing agreement and that Harrigan, through his secretary, represented to Crawford that all inquiries on the property were to be directed to Commander.
We find no merit to Commander's claims. Commander cannot rely on the fact that Harrigan actually signed the listing agreement to claim fraud. The meaning of the listing agreement is the substantive issue in the case. In addition, the representations, if any, made by Harrigan's secretary did not occur until after the parties had entered into the contract. Commander could not have relied on these purported representations in entering into the agreement, nor do the statements go to the issue of fraud.
It follows from the finding that Commander had no exclusive right to sell the property, that the claim against Bacher, Bacher Realty, Yeager, Yeager Realty, and Caron for intentional interference with contractual relations must also fail. Furthermore, we do not find any evidence supporting the plaintiff's claim for fraud against these defendants and that, too, must fail.
The final issue on appeal is whether there is any evidence creating a genuine issue of material fact over who produced Caron as the buyer of the real estate. On appeal, Commander asserts for the first time that it produced Caron as the purchaser of the property and is entitled to a commission under the terms of the contract. We find no sufficient evidence to create a genuine issue of material fact on that question.
Commander does not claim that it ever had any direct contact with Caron. Commander asserts only that it indirectly produced Caron as a purchaser through its signs and advertising. However, there is absolutely no evidence that Caron learned of the property through any advertising or signs. In fact, it is undisputed that Bacher and Yeager had learned of the property in 1982 or 1983, prior to the time Commander obtained a listing on the property. Bacher learned of the property when Harrigan personally came to his office and asked him to place a sign for him. Bacher then informed Yeager about the property, and together they informed Caron about the property, though Caron was not interested at the time. All this occurred long before Commander obtained a listing on the property.
But Commander also claims that it indirectly produced Caron as the purchaser when Bacher Realty, through its agent Galen Hammond, contacted Commander regarding the price and the listing agreement. Commander asserts that Bacher learned of the property through Commander and that in that way Commander indirectly produced Caron as the purchaser.
First, it is not unusual for one real estate agent to contact another regarding information on the property listed by the agent, even if there is no particular buyer in mind. Commander even states in its brief that it had received calls "from most of the real estate firms in the area for information on the property." It was not unusual for Bacher's firm to do the same. The fact that Bacher's agent had minimal contact with Commander does not mean that Bacher learned of the property through Commander. In fact, it remains undisputed that both Bacher and Yeager had learned about the property and had told Caron *1337 about it long before Commander obtained a listing. Thus, it is not reasonable to conclude that Commander's advertising informed Bacher and Yeager about the property.
On these undisputed facts, there is no basis for concluding that Commander actually produced Caron as the purchaser, either directly or indirectly.
For the foregoing reasons, the judgment of the circuit court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur.
[1] There has been some dispute between the parties over the meaning of the term "preamble." Whatever the clause prior to the numbered provisions of the contract is called, for the reasons in our opinion, we conclude that the provision has no meaning independent of the substantive numbered provisions of the contract. We choose to call the clause a "preamble." | October 2, 1987 |
283fbb6c-b57a-41ee-a2d6-a3e1c6ed45af | Ex Parte Welch | 519 So. 2d 517 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 517 (1987)
Ex parte Don Alan WELCH.
(Re Don Alan WELCH v. ALABAMA DEPARTMENT OF PUBLIC SAFETY, et al.)
86-595.
Supreme Court of Alabama.
November 6, 1987.
W. Wheeler Smith, Birmingham, for petitioner.
Ray Acton, Legal Unit, Dept. of Public Safety, Montgomery, for respondent.
ALMON, Justice.
This Court granted a petition for certiorari to review this case because there appeared to be a material question of first impression that was erroneously decided by the Court of Civil Appeals, 519 So. 2d 514. The case involves the Driver License Compact, Ala.Code 1975, §§ 32-6-30 through -36, and specifically, whether the licensing authority of this State can, in any circumstances, issue a license before the expiration of a revocation period imposed by the State of an applicant's former residence.
Petitioner Welch had his Florida license revoked for five years after his second conviction there for driving under the influence of alcohol (DUI). Thirteen months later, he moved to Alabama, where a second conviction of DUI requires a one-year license revocation. See Ala.Code 1975, § 32-5A-191(d). Thus, under the licensing provisions of this State, he would have been able to apply for an Alabama license when he moved here.
The Driver License Division of the Department of Public Safety refused to issue him a license, however, whereupon he requested an administrative hearing. The chief of the license division wrote his attorney a letter in reply, stating:
The record contains no further mention of a "letter of clearance." On the contrary, after the filing of this suit, the Department of Public Safety admitted that it had not "formulated, propounded, or proscribed *518 [sic] written rules and regulations for the administration and implementation of the Alabama Driver License Compact Act."
Welch filed this suit against the Department of Public Safety, its director, and the chief of the driver license division. The complaint sought a judgment declaring that Welch is entitled to an investigation as to whether it will be safe to grant him driving privileges and for an injunction requiring the Department to conduct such an investigation. He contended that the refusal to issue a license "imposes an unfair and unreasonable burden on his ability to maintain employment in his profession and earn his livelihood"; that "a five year period of revocation is extraordinarily severe, especially in light of Ala.Code § 32-5A-191(d) which would impose a maximum period of only one year for the second offense"; and that
Welch executed and attached to his complaint an affidavit stating that he was not afflicted with any physical or mental disability that would prevent him from driving, that he was familiar with the driving rules and regulations of Alabama, and other things tending to show his capacity to be a safe driver, including:
The circuit court granted summary judgment for the defendants, and the Court of Civil Appeals affirmed. Defendants have not filed a brief in this Court.
Congress passed a resolution in 1958 giving its consent for the states to enter into agreements or compacts
P.L. 85-684, 72 Stat. 635. The Driver License Compact stems from this enactment and has been adopted by at least 30 states.
The Alabama legislature enacted the Compact in 1966. See Ala.Code 1975, §§ 36-6-30 through -36. The terms of the Compact itself are included in § 36-6-31. The provisions pertinent to this case are in Article V, "Application for New Licenses":
The Court of Civil Appeals held that the language "if permitted by law" brings in a reference to § 32-6-7: "A driver's license shall not be issued to the following persons:... (3) Any person whose driving right or privilege is revoked."
This Code provision has not been amended since 1947, so the legislature necessarily did not have the Compact in mind when it wrote this provision. Thus, there is no reason to read § 32-6-7(3) as incorporating extraterritorial revocations, which are entirely outside the control of the legislature of this state. To give this section the reading applied by the Court of Civil Appeals would make any revocation by a Compact state, however severe, binding on the licensing authority of this state.
Furthermore, the interpretation by the Court of Civil Appeals requires a deviation from the terms of the Compact itself. That court's analysis makes two references to the law of the state that revoked the license. First, under the Compact, the Department looks to other jurisdictions, and if the applicant has had his license revoked, he may not apply, except that he may do so after a year if permitted by law. Second, to determine if an application is "permitted by law," the Court of Civil Appeals would have the licensing authority look again to the revocation made by the former licensing state. If the revocation is still in force under its own terms, an application for a new license could never be permitted by law under the Court of Civil Appeals' opinion until the original revocation expires.
The opinion of the Court of Civil appeals and the practice of the Department have the effect of changing the Compact language from "The licensing authority ... shall not issue a license ... if such revocation has not terminated, except ... after the expiration of one year ...," to "The licensing authority ... shall not issue a license ... if such revocation has not terminated, except ... after the termination of the revocation ...," and the exception allowing application after one year becomes meaningless and has no field of operation. Thus, the inquiry would end as soon as it is discovered that the license is revoked and the revocation has not expired. The drafters of the Compact cannot be presumed to have done a futile thing by inserting the exception in article V(2).
Sutherland Stat. Const. § 46.06 (4th ed.).
Thus, an examination of the terms of the Compact and the law of this state leads to the conclusion that the exception should be construed as allowing an application and investigation after a year even if a prior revocation has not expired.
This conclusion is strengthened by the fact that, to achieve the meaning found by the Court of Civil Appeals, the Compact drafters could simply have combined (1) and (2) as follows:
Because of the strong reciprocity policy of the Compact, we have researched the cases of other member states. No case directly on point has come to our attention, but to the extent the cases are analogous or contain dicta regarding this provision, they are consistent with the conclusion we have reached.
The case most closely on point is People v. Klaub, 130 Ill.App.3d 704, 85 Ill.Dec. *520 891, 474 N.E.2d 851 (1985). In that case, Klaub, an Illinois resident, had his driver's license revoked, moved to Indiana, and obtained an Indiana driver's license before the period of his Illinois revocation expired. Both Illinois and Indiana are parties to the Compact. Klaub moved back to Illinois four months after the expiration of the revocation period. Two months later, he was issued a citation for driving while his license was revoked. He was convicted on that charge, and the reported opinion decided his appeal from that conviction.
The court in Klaub examined the provisions of Illinois law that prohibit a person from driving if his or her license has been revoked and not reinstated and those provisions that set standards of safety for determining whether the license should be reinstated. The court contrasted these laws to the Illinois provision that allowed new residents to drive under their out-of-state licenses for 90 days and to the provisions of the Compact. The court reversed the conviction on two considerations:
Id., 85 Ill.Dec. at 894, 474 N.E.2d at 854.
In reaching this holding, the court cited the pertinent provisions of the Compact with the following paraphrase:
Id., 85 Ill.Dec. at 893, 474 N.E.2d at 853.
Another district of the Appellate Court of Illinois subsequently held that a license issued by a non-Compact state does not prevent a conviction in Illinois of driving while a former Illinois license is revoked. People v. Sass, 144 Ill.App.3d 163, 98 Ill. Dec. 623, 494 N.E.2d 745 (1986). The court discussed and distinguished Klaub. In distinguishing the treatment of licenses issued by Compact states, the court stated:
98 Ill.Dec. at 626, 494 N.E.2d at 748. The same district made a similar statement in People v. Jones, 100 Ill.App.3d 831, 55 Ill. Dec. 840, 426 N.E.2d 1214 (1981).
The Court of Appeals of Oregon has also referred to the one-year provision of Article V(2) without limiting it by the period of the revocation: "Washington was authorized to issue a valid license to defendant under the Driver License Compact to which the two states are signatories after the expiration of one year from the date of revocation." State v. Justesen, 63 Or.App. 544, 665 P.2d 380, 382, fn. 1 (1983) (citations omitted). In that case, the Oregon *521 revocation period was eleven months, and Justesen obtained a Washington license eleven and one-half months later. The court upheld his conviction in Oregon for driving without a license because he had failed to comply with other terms of his Oregon revocation.
See New Jersey Div. of Motor Vehicles v. Egan, 103 N.J. 350, 511 A.2d 133 (1986), for a case involving New Jersey's adoption of the Compact. The court in Egan upheld a harsher penalty against New Jersey's licensee than was imposed by Ohio (a non-Compact state), where the offense occurred.
The only case we have found that even arguably indicates that the Compact should be interpreted so that the Florida revocation period would be binding on this state is State v. Johnston, 152 Ariz. 273, 731 P.2d 638 (Ct.App.1987). In that case, Johnston had his license revoked in Colorado, but Montana did not thereafter revoke his Montana license. The court held that the Montana license prevented an Arizona conviction for DUI with a revoked license based on the Colorado revocation.
Id., 152 Ariz. at 275, 731 P.2d at 640. The court concluded:
Id., 152 Ariz. at 276, 731 P.2d at 641. Although Johnston indicates the problems of inconsistent interpretations of the Compact or failure to comply with its terms, it does not tend to show that our interpretation of the one-year provision is wrong.
The Florida cases disclosed in our research on the Driver License Compact shed no light on our question. Irons v. State, 502 So. 2d 43 (Fla.Dist.Ct.App.1987); Florida Dept. of Highway Safety v. Weinstein, 395 So. 2d 1233 (Fla.Dist.Ct.App.1981).
The majority of cases interpreting the Driver License Compact involve the question of what effect the licensing state will give to an out-of-state conviction for DUI or other violation. See, e.g., Hilyer v. Dixon, 373 So. 2d 1123 (Ala.Civ.App.1979), cert. denied, 373 So. 2d 1125 (Ala.1979); Watson v. Dothard, 357 So. 2d 361 (Ala.Civ.App. 1978); Director of Dept. of Public Safety v. Relford, 51 Ala.App. 456, 286 So. 2d 860 (1973); Carter v. Dept. of Public Safety, 290 A.2d 652 (Del.Super.1972); Rigney v. Edgar, 135 Ill.App.3d 893, 90 Ill.Dec. 548, 482 N.E.2d 367 (1985); State v. Peterson, 347 N.W.2d 398 (Iowa 1984); State ex rel. Landon v. Macek, Mont. , 676 P.2d 228 (1984); Johnston v. Dept. of Motor Vehicles, 190 Neb. 606, 212 N.W.2d 342 (1973); State v. Regan, 209 N.J.Super. 596, 508 A.2d 1149 (App.Div.1986); Division of Motor Vehicles v. Kleinert, 198 N.J.Super. 363, 486 A.2d 1324 (App.Div.1985); Division of Motor Vehicles v. Lawrence, 194 N.J.Super. 1, 475 A.2d 1265 (App.Div.1983); Buck v. Motor Vehicles Div., 80 Or.App. 565, 723 P.2d 338 (1986), cert. denied, 302 Or. 299, 728 P.2d 531 (1986); Shell v. Bechtold, 338 S.E.2d 393 (W.Va.1985).
Therefore, we find nothing in the cases applying the Driver License Compact that is contrary to our interpretation on the basis of statutory construction. Neither do we find any overriding policy considerations to the contrary. While there is some degree of interference with the principle of reciprocity by one state's granting a license to a driver whose license revocation from *522 another state still has an extended period remaining, we find three countervailing principles.
First, the legislatively declared policy of this state is that two convictions for DUI result in no more than a one-year revocation, and a longer revocation is contrary to that policy. We note in this regard that West Virginia imposes a ten-year revocation upon a second offense, see Shell v. Bechtold, supra, or, in some circumstances, revokes a license for life, see W.Va. Code § 17C-5A-2 (1987 Cum.Supp.). If a person with such a revocation were to move to Alabama shortly after his second offense, he would not be eligible to apply for a new license for nine years longer than his fellow citizens of Alabama who had engaged in the same conduct, or might never be eligible. Welch's equal protection claims might have some force here.
Second, the revoking state can refuse to recognize a privilege to drive in that state even if the person obtains a new license elsewhere. See State v. Johnston, 152 Ariz. 273, 731 P.2d 638 (Ct.App.1987), discussed above; Ala. Code 1975, § 32-5A-195(e). While such refusals to recognize the privilege would undermine reciprocity, the possibility of them removes some of the need to follow absolutely the longer out-of-state revocation. Furthermore, Florida might elect to grant him that privilege, not insisting on its five-year revocation, but rather respecting this state's decision not to "determine [] that it will not be safe to grant such person the privilege of driving."
Third, a policy of permitting the application and requiring an investigation does not insure the applicant the right to a license. The licensing authority must make the above-cited determination as to safety, and the prior revocation, together with the circumstances thereof, will be relevant considerations. The applicant's conduct in the interim, his performance on tests administered here, and the laws of this state are also to be considered in the decision of whether to grant him a license. If Florida will grant the privilege to drive in that state to any Alabama licensee who has had two DUI convictions, there is no reason to conclude summarily that it will not do so in the case of one who has had a Florida license revoked less than five years previously.
For the foregoing reasons, we hold that the Court of Civil Appeals erred in affirming the decision of the circuit court. The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
All the Justices concur.
[1] To the extent the Compact distinguishes between suspensions and revocations, we take the distinction to be that a suspension temporarily renders the license inoperative, after which it may be reinstated, whereas after a revocation the person must formally apply for a new license, and that issuance of a new license after a revocation is discretionary, requiring a fact-finding investigation. See 60 C.J.S. Motor Vehicles § 164.48 (1969). | November 6, 1987 |
63a1191d-df34-4381-9db1-243f1defcaa0 | Ex Parte Hamilton | 520 So. 2d 167 | N/A | Alabama | Alabama Supreme Court | 520 So. 2d 167 (1987)
Ex parte Tommy HAMILTON.
(Re Tommy Hamilton v. State).
86-648.
Supreme Court of Alabama.
November 6, 1987.
Rehearing Denied February 12, 1988.
Barnes F. Lovelace, Jr., and Wesley M. Lavender, Decatur, for petitioner.
Don Siegelman, Atty. Gen., and Rivard Melson and William D. Little, Asst. Attys. Gen., for respondent.
BEATTY, JUSTICE.
This Court has reviewed the opinion of the Court of Criminal Appeals, 520 So. 2d 155, reviewed the petition, examined the record, studied the briefs, and heard oral argument. After this consideration, the Court holds that the judgment of the Court of Criminal Appeals must be, and it is hereby, affirmed.
AFFIRMED.
All the Justices concur. | November 6, 1987 |
dd010e3d-f4a1-4cef-ba97-8a9a1d4a91a4 | Parker v. Amerson | 519 So. 2d 442 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 442 (1987)
Lolita PARKER
v.
Lucius AMERSON, Individually, and as Sheriff of Macon County, et al.
86-430-CER.
Supreme Court of Alabama.
December 11, 1987.
James J. Friedman and Jerry B. Kurz, Waukegan, Ill., for plaintiff/appellee Lolita Parker.
William J. Baxley, Joel E. Dillard, and Charles A. Dauphin, Birmingham, for appellant/defendant Sheriff Lucius Amerson.
Charles S. Conley, Montgomery, for appellant/defendant Macon County.
Ted Taylor and Leah O. Taylor, Prattville, for amicus curiae Alabama Sheriffs Assn.
James W. Webb and Michael M. Eley of Webb, Crumpton, McGregor, Sasser, Davis & Alley, Montgomery, for amicus curiae Assoc. of County Commissions of Alabama.
HOUSTON, Justice.
The United States Court of Appeals, Eleventh Circuit, pursuant to Rule 18, Ala. R.App.P., has certified a question of law to us.
"`[T]he particular phrasing used in the certified question is not to restrict the Supreme Court's consideration of the problems involved and the issues as the Supreme Court perceives them to be in its analysis of the record certified in this case. This latitude extends to the Supreme Court's restatement of the issue or issues and the manner in which the answers are to be given, whether as a comprehensive whole or in subordinate or even contingent parts.'
"Citizens & S. Factors, Inc. v. Small Business Administration, 375 So. 2d 251 (Ala.1979); see also Martinez v. Rodriguez, 394 F.2d 156, 159 n. 6 (5th Cir. 1968)."
A sheriff is not an employee of a county for purposes of imposing liability on the county under a theory of respondeat superior. A sheriff is an executive officer of the State of Alabama, who is immune from suit under Article I, § 14, Alabama *443 Constitution of 1901, in the execution of the duties of his office, except for actions brought (1) to compel him to perform his duties, (2) to compel him to perform ministerial acts, (3) to enjoin him from enforcing unconstitutional laws, (4) to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under mistaken interpretation of the law, or (5) to seek construction of a statute under the Declaratory Judgment Act if he is a necessary party for the construction of the statute. That portion of § 14-1-6, Code of Alabama 1975, which purports to make a sheriff civilly liable for the acts of his jailer is unconstitutional under Article I, § 14, and Article III, § 42, of the Alabama Constitution of 1901.
In determining whether a sheriff is an employee of a county for purposes of imposing liability on the county, this court must construe Article V, § 112, of the Alabama Constitution, which includes sheriffs of each county within the executive department of state government. The language of § 112 is quite clear. It states: "The executive department shall consist of a governor ... and a sheriff for each county." Ala. Const. Art. V, § 112. The phrase "executive department" obviously means the executive department of Alabama. Therefore, offices included within § 112 must be executive offices of the executive department of the State of Alabama. Construing § 112 to mean that a sheriff is a county officer would be inconsistent with the plain meaning of the language. This Court is not at liberty to disregard the clear meaning of the Constitution. McGee v. Borom, 341 So. 2d 141 (Ala.1976); State Docks Commission v. State ex rel. Cummings, 227 Ala. 414, 150 So. 345 (1933). When construing the Constitution of Alabama, the primary purpose of this court is to ascertain and then effectuate the framers' intent. Brown v. Longiotti, 420 So. 2d 71 (Ala.1982).
The debates among the drafters at the 1901 Constitutional Convention evince an intent to make sheriffs executive officers of the State of Alabama. First, in redrafting the 1875 Constitution, the framers added the offices of Lieutenant-Governor and Commissioner of Agriculture and Industries to the executive department. All other executive offices, including that of sheriff, were retained and enumerated, along with the two new offices, under what is now Art. V, § 112. Skinner, Alabama Constitution Annotated at 544. Although the delegates revised the composition of Alabama's executive department, they did not change the constitutional status of sheriffs. When this Court was called upon to define the nature of the new executive offices subsequent to the ratification of the 1901 Constitution, it stated that § 112 made the Commissioner of Agriculture and Industries "one of the executive officers of the state." Gibson v. State, 214 Ala. 38, 106 So. 231 (1925). It logically follows, then, that a sheriff is also an executive officer of the state.
Though there is no reference in the official proceedings of the Constitutional Convention of 1901 to the inclusion of sheriffs within what is now Article V, § 112, the debate at that Convention on the method by which sheriffs should be impeached clarifies the framers' intent. Article VII, § 3, of the 1875 Constitution provided that sheriffs could be impeached by the courts of the counties in which they held office. Skinner, at 653. A proposed revision of this section precipitated a classic debate between proponents of local autonomy on the one hand and proponents of augmented central government on the other. Ex-Governor Thomas Goode Jones proposed an amendment, with the hope of reducing the excessive number of lynching cases in Alabama due to the neglect of sheriffs, which would allow the Governor to suspend a sheriff during the course of his impeachment trial. Official Proceedings of the Constitutional Convention of 1901 (Vol. 1) at 887-90. The failure of county courts to punish sheriffs for neglect of duty and sheriffs' acquiescence in mob violence and ruthless vigilantism ostensibly led Governor Jones to believe that sheriffs must be held accountable to a higher and more central authority, the Supreme Court, and that this accountability would operate to guarantee *444 the political rights of prisoners. Id., at 887-90.
Specifically, the drafters, although acknowledging that sheriffs are members of the executive department, debated the issue of whether the Governor had the power to suspend and to impeach them. Id., at 892. One legislator vehemently argued that, since sheriffs are elected by the people of a county, sheriffs are responsible to the counties, not to the Governor, and thus should be removable by the county constituents, and that any other conclusion would operate as a usurpation of local autonomy. Id., at 878-79. Other legislators argued that because a sheriff is an executive officer, he is ultimately responsible to the Governor. By proposing the amendment to § 30, the framers of the 1901 Constitution not only aspired to protect the political rights of prisoners but also to augment the power of the Governor to more effectively perform his constitutional duty, as set out in Article V, § 120, to ensure that the laws of the state are "faithfully executed." Id., at 882. The drafters thought sheriffs to be members of the executive branch who executed the laws of the state in the several counties. By making sheriffs answerable to the Governor, the drafters believed that the words of the constitution mandating that the Governor see that the laws are faithfully executed would not be "an idle set of words" but words behind which stood a chief executive officer who possessed the wherewithal to enforce them, namely, a sheriff in each county. Id., at 882-83. In support of this position, one delegate argued:
The convention reached a compromise and empowered a Governor with the authority to order impeachment proceedings before the Supreme Court but prohibited the Governor from suspending the sheriff during the proceedings and before a verdict. McMillan, Constitutional Development in Alabama, 1798-1901: A Study in Politics, the Negro, and Sectionalism, at 338. Sheriffs were made more accountable to the supreme executive power of the state, the Governor. Art. V, § 113, Constitution; § 36-11-4, Ala.Code 1975. This constitutional revision vested the Supreme Court with original jurisdiction to hear impeachment proceedings against sheriffs. State ex rel. Mullis v. Mathews, 259 Ala. 125, 66 So. 2d 105 (1953).[1] County courts were divested of this authority, which they had had under the 1875 Constitution. The framers of the 1901 Constitution listed sheriffs among those officials who are impeached directly by the Supreme Court. Skinner, at 650-53. The debates between the delegates evince the framers' intent to ensure that sheriffs be considered executive officers of the state.
In other jurisdictions, the constitutional status afforded sheriffs is determinative of whether sheriffs are considered "county" or "state" officers. For example, in New Jersey a sheriff is a constitutional state officer, elected by the people of the counties, and subject to impeachment by the legislature. N.J. Const. Art. VII, § II, par. 2, § III; Shusted v. Coyle, 139 N.J.Super. 314, 353 A.2d 562 (1976). In Maryland, where sheriffs are members of the judicial *445 department, an appellate court has defined them as "state" rather than "county" officers. Md. Const. Art. IV, § 44; Baumgartner v. State, 21 Md.App. 251, 319 A.2d 592 (1974). In Louisiana, where sheriffs are also included within the judicial department, the state's highest court has denied the imposition of vicarious liability on parishes for the acts of sheriffs or any of their deputies. La. Const. Art. 5, § 27, Jenkins v. Jefferson Parish Sheriff's Office, 402 So. 2d 669 (La.1981). Other states, however, have constitutions that expressly define sheriffs as "county officers." Ill. Const. Art. VII, § 4(c); Tenn. Const. Art. VII, § 1; Fla. Const. Art. VII, § 1; Ga. Const. Art. 9, § 1, # 3; N.Y. Const. Art. 13, § 13. We are not persuaded by decisions from jurisdictions whose constitutions, unlike Alabama's, clearly make sheriffs county officers. The certified question pertains only to Alabama.
Our appellate opinions, in dicta or in the holdings in some cases, have referred to sheriffs as county officers or as the chief executive officers of counties: State ex rel. Martin v. Pratt, 192 Ala. 118, 68 So. 255 (1915) (dicta); Jefferson County v. Dockerty, 249 Ala. 196, 30 So. 2d 474 (1947), (to pay county treasurer fees derived from office); In re Opinion of the Justices No. 16, 225 Ala. 359, 143 So. 345 (1932) (to permit legislature to set fees of sheriff of Jefferson County); Hale v. Randolph County Commission, 423 So. 2d 893 (Ala.Civ.App. 1982) (question of who regulated overtime pay for deputies); Osborn v. Henry, 200 Ala. 353, 76 So. 119 (1917). In none of these cases was Article V, § 112, Constitution of 1901, discussed. The clear intention of the framers of the Constitution overrides these decisions, none of which held that sheriffs were county officers for the purpose of imposing vicarious liability on a county for the acts of a sheriff.
In Montiel v. Holcombe, 240 Ala. 352, 199 So. 245 (1940), this Court held that a suit against a sheriff was "essentially a suit against the state."
Article I, § 14, Alabama Constitution of 1901, provides:
This Court has held that this section of the Constitution wholly withdraws from the legislature, or any other state authority, the power to consent to an action against the state. Aland v. Graham, 287 Ala. 226, 250 So. 2d 677 (1971); Dunn Construction Co. v. State Board of Adjustment, 234 Ala. 372, 175 So. 383 (1937). Section 14 of the Constitution also prevents actions against officers and agents of the state in their official capacity. Aland v. Graham, supra. An action against the Attorney General of Alabama, who is also designated as an executive officer of the State of Alabama in § 112 of the constitution, was subject to dismissal as an action against the state in violation of § 14 of the constitution, because of his position. State Tax Commission v. Commercial Realty Co., 236 Ala. 358, 182 So. 31 (1938).
The Court in Gill v. Sewell, 356 So. 2d 1196 (Ala.1978), stated that § 14 "prohibits a suit against state officers and agents in their official capacity and individually when a result favorable to the plaintiff would directly affect a contract or property right of the state." 356 So. 2d at 1198. However, the Court in Gill continued by delineating several exceptions to the general rule, which exceptions, if applicable, preclude a state officer from claiming protection from suit pursuant to § 14; 356 So. 2d at 1198, quoting Aland v. Graham, 287 Ala. 226, 250 So. 2d 677 (1971). Section 14 immunity is not applicable when an action is brought: (1) to compel state officials to perform their legal duties; (2) to compel state officials to perform ministerial acts; (3) to enjoin state officials from enforcing unconstitutional laws; (4) to enjoin state officials from acting in bad faith, fraudulently, beyond their authority, or under mistaken interpretation of the law, or (5) to seek construction of a statute under the Declaratory Judgment Act. Gill v. Sewell, 356 So. 2d at 1198; see also, State v. Norman Tobacco Co., 273 Ala. 420, 142 So. 2d 873 (1962); St. Clair County v. Town of Riverside, 272 Ala. 294, 128 So. 2d 333 (1961). In Gill, the plaintiff, a police officer, *446 while investigating a robbery, sustained gunshot wounds inflicted by a convicted felon. The plaintiff brought suit against state officials who, as he alleged, had acted negligently in releasing the convicted felon to a minimum security prison just prior to the robbery attempt in which the plaintiff was injured. Noting that negligent performance of a statutory duty does not operate to remove the § 14 shield of immunity, the Court, in an opinion by Justice Almon, held that § 14 barred the suit and that none of the exceptions applied. Gill, 356 So. 2d at 1198.
From the facts furnished to us by the Court of Appeals, it appears that the case at bar is analogous to the situation in Gill. The plaintiff, Ms. Lolita Parker, alleges that a state official, Sheriff Amerson, committed negligent and wanton acts that caused her to suffer harm, while executing his discretionary duties of hiring a jailer. From the facts furnished us, it appears that none of the exceptions enumerated in Gill applies. See also, Southall v. Stricos Corp., 275 Ala. 156, 153 So. 2d 234 (1963). This Court has specifically held that a suit against a sheriff is "essentially a suit against the state" and thus "not maintainable." Montiel v. Holcombe, 240 Ala. 352, 199 So. 245 (1940). Thus, § 14 and judicial precedent mandate the conclusion that Sheriff Amerson is immune from suit.
Because a sheriff is a state officer and thus immune from suit, the remaining question is whether § 14-6-1, Ala.Code 1975, which makes a sheriff civilly liable for acts of his jailer,[2] violates Art. 1, § 14, of the Ala. Constitution. First, the immunity provision of the Constitution prevents the legislature from consenting to suit against the state. Aland v. Graham, supra. The Constitution operates as a limitation on legislative power. Phoenix Assurance Co. of London v. Fire Dept. of the City of Montgomery, 117 Ala. 631, 651, 23 So. 843 (1898). When the Constitution and a statute are in conflict, the Constitution controls; the legislature cannot do what the Constitution forbids it to do. Williams v. State ex rel. Schwarz, 197 Ala. 40, 72 So. 330 (1916). To the extent that it purports to impose civil liability on a sheriff for the acts of a jailer appointed by the sheriff, § 14-6-1 is in violation of Art. 1 § 14. This statute may also be violative of Art. III, § 42, Ala. Constitution ("[t]he powers of government ... shall be divided into three distinct departments, each of which shall be confided to a separate body"). The words "distinct" and "separate" are devoid of meaning if one branch can arbitrarily impose restrictions on another branch. By making an executive officer liable for the tortious acts of his employees, the legislative branch has usurped the powers of the executive branch and has subverted the judicial principle that each coordinate branch is supreme. State ex rel. French v. Stone, 224 Ala. 234, 139 So. 328, 329 (1932).
CERTIFIED QUESTION ANSWERED.
MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
I agree that the sheriff is an executive officer of the State. Having made this determination, we have addressed the specific question certified to this Court. While it might seem reasonable to interpret the certified question as raising the issue of whether the sheriff is immune from suit, I believe that the question more properly *447 raises questions about the county's liability. Therefore, I would not address the state immunity issue.
[1] This Court stated in State ex rel. Mullis v. Mathews, 259 Ala. at 129, 66 So. 2d at 107, that the "authority to impeach the sheriff is under section 174 of the Constitution for the causes set forth in section 173. It must be done by original proceedings begun in this Court." (It is noteworthy that an impeachment proceeding against a sheriff is similar to a criminal trial. The Supreme Court hears and weighs evidence and then, using a "beyond a reasonable doubt standard," makes a determination of guilt or innocence on one of the charges set forth in § 173 of the Constitution.) Likewise, in State ex rel. Garrett v. McPeters, 256 Ala. 555, 56 So. 2d 102 (1951), this Court in an original proceeding, acting on an information of impeachment filed in this Court by the Attorney General, found a sheriff guilty of corruption and ousted him from office. See also, State ex rel. Carmichael v. Baggett, 252 Ala. 540, 41 So. 2d 584 (1949).
[2] This Court has held that a sheriff is civilly liable for the official acts of his deputies. King v. Gray, 189 Ala. 686, 66 So. 643 (1914); contra, Wise v. Curl, 177 Ala. 324, 58 So. 286 (1912). Article V, § 112, and Article I, § 14, Alabama Constitution of 1901, were not referred to by the Court in either of those cases. In Roberts v. Meeks, 397 So. 2d 111 (Ala.1981), the court reversed a trial court's dismissal of a complaint alleging negligence against a county, county commissioners, the sheriff, and the jailer. The only issue argued and addressed by the opinion was whether the abolition of the defense of governmental immunity in tort actions against counties and county commissioners applied only to cases arising after the release of Cook v. St. Clair County, 384 So. 2d 1 (Ala.1980). The status of the sheriff was not addressed by the Court. | December 11, 1987 |
b80efe37-9e93-4e76-9217-f029f0b56345 | Jones v. Jones | 517 So. 2d 606 | N/A | Alabama | Alabama Supreme Court | 517 So. 2d 606 (1987)
Pat JONES, as administratrix of the estate of Otto Ray Jones, deceased
v.
Penny Huckabee JONES.
86-996.
Supreme Court of Alabama.
November 25, 1987.
William S. Poole, Jr., and Amy L. Inglis, Demopolis, for appellant.
Thomas H. Bogg, Jr., of Lloyd, Dinning, Boggs & Dinning, Demopolis, for appellee.
HOUSTON, Justice.
The following "temporary order" was entered in a divorce action filed by Penny *607 Huckabee Jones against her husband, Otto Jones:
"2. The defendant Otto Jones shall surrender possession of the residence at 504 South Strawberry [hereinafter "the residence"] to the plaintiff Penny Huckabee Jones by 5:00 p.m. on July 22, 1986; the plaintiff Penny Huckabee Jones shall have possession of such residence at 504 South Strawberry until 5:00 p.m. on August 10, 1986, at which time the plaintiff Penny Huckabee Jones shall relinquish to the defendant Otto Jones complete possession and ownership and relinquish any marital rights in such real estate at 504 South Strawberry;
"3. The defendant Otto Jones will seek to have the plaintiff Penny Huckabee Jones relieved of any responsibility on a promissory note and mortgage to Commercial National Bank in connection with such property at 504 South Strawberry by August 10, 1986, and if the Commercial National Bank will not so relieve Penny Huckabee Jones, the defendant Otto Jones agrees to indemnify and hold harmless the plaintiff Penny Huckabee Jones from any amounts ... which she might be called on to pay to the Commercial National Bank arising after August 10, 1986, and in such instance shall convey back to Penny Huckabee Jones her interest in such real property at 504 South Strawberry...." (Emphasis supplied).
The temporary order was signed by the trial judge and the attorneys for the parties.
The husband was killed in an automobile accident on August 1, 1986. The wife had not conveyed her interest in the residence to the husband at the time of his death, nor had she been released from her obligations to the bank that held a mortgage on the residence. At the time of the husband's death, title to the residence was in the name of the husband and the wife "for and during their joint lives and upon the death of either of them, then to the survivor of them in fee simple, together with every contingent remainder and right of reversion."
After the husband's death the wife moved to dissolve the temporary order and to dismiss her divorce complaint.
Pat Jones, the mother of the deceased husband and administratrix of his estate, objected to the motion to dissolve the temporary order and to dismiss the complaint.[1]
The wife filed a motion for declaratory judgment and for joinder of the necessary parties, and in that motion she sought a dismissal of the divorce complaint; a dissolution of the temporary injunction; a declaration that she owned the residence (subject to the bank's mortgage); and a joinder of Pat Jones, as administratrix of the deceased husband's estate, and the minor children of the deceased husband, who were thereafter represented by guardians ad litem. After all issues were properly joined, the trial court heard the testimony without a jury. It succinctly stated the issue in its order: "[W]hether or not the Temporary Order that was entered by this Court and signed by both parties creates a property right in the estate of [the deceased husband]." The trial court found that the temporary order did not vest a property right in the deceased husband that was enforceable by his estate; the trial court dissolved the temporary order, held that the cause abated and was to be dismissed because of the death of the husband, and found that title to the residence was vested in the wife. The administratrix appeals. We affirm.
Did the negotiated agreement concerning the residence, as set forth in paragraphs 2 *608 and 3 of the temporary order, represent an agreement binding on the wife and on the estate of the husband?
An action for divorce, alimony, attorney fees, and an equitable division of marital property in which there has not been a final judgment does not survive the death of a party. Vaughan v. Vaughan, 258 Ala. 336, 62 So. 2d 466 (1952); Pearson v. Darrington, 32 Ala. 227 (1858); Killough v. Killough, 373 So. 2d 336 (Ala.Civ. App.1979).
A marriage is dissolved by the death of a party to the marriage, and a pending action for dissolution by divorce is necessarily terminated and absolutely abated. Cox v. Dodd, 242 Ala. 37, 4 So. 2d 736 (1941); Killough v. Killough, supra.
The husband's estate contends that "paragraphs two and three constituted a written negotiated final agreement as to the residence, which was approved and executed by the trial judge, and therefore, paragraphs two and three remain binding on the appellee-wife and the husband's estate even after the death of the husband." Contending that this is an issue of first impression for this Court,[2] the husband's estate directs us to In re Garrity's Estate, 22 Wash. 2d 391, 156 P.2d 217 (1945), and Pavluvcik v. Sullivan, 22 Mass.App. 581, 495 N.E.2d 869 (1986). We fail to see how In re Garrity's Estate supports the position of the husband's estate in this action, because in that case the Supreme Court of Washington held, "It is the law of this state that an interlocutory order of divorce abates and becomes a nullity for all purposes upon the death of one of the parties occurring prior to the entry of a final decree." In In re Garrity's Estate, the parties had executed a property settlement agreement that purported to divide between the parties all of the community property. It even contained a provision that the agreement would be "final and conclusive between the parties hereto regardless of whether or not either party hereto may die before the interlocutory decree of divorce shall become final." Thereafter, deeds and bills of sale were executed and delivered. The wife filed for a divorce, and an interlocutory order of divorce was granted, approving the property settlement in all respects. The husband appealed and then died with the appeal pending. The wife contended that the property settlement became merged in the interlocutory order confirming the settlement and became null and void on the death of the husband. The Washington Supreme Court cited a statute that permitted husbands and wives to convey their interest in community property to the other spouse. The court then determined that the property became separate and vested upon the execution of the deeds and bills of sale, and that the division of the property was not intended by the parties to be subject to approval or changed by the court in the divorce proceedings.
In the case before us, title to the property remained in the husband and wife at the time of the husband's death, subject only to the "temporary order" concerning "certain temporary issues." In re Garrity's Estate, if it has any precedential authority in the case at issue, would be authority for the proposition that the temporary order abated and became a nullity upon the death of Otto Jones. The temporary order in the case at issue clearly showed that issues of child custody, child support, ownership of any "furniture, furnishings or household goods," alimony, if any, and the issue of the dissolution of the marriage were to be decided by the court at a later date. There was no provision that this agreement would be binding if either party died before a divorce was granted. The transfer of title *609 to the residence was predicated upon the husband's obtaining a release of the wife from any liability on the promissory note secured by a mortgage on the residence. If this release could not be obtained, then the wife was to retain an interest in the residence. For aught that appears in the record, this release had not been obtained at the time of the husband's death (it does appear that his estate offered to obtain such a release).
In Pavluvcik v. Sullivan, supra, the husband and wife had entered into "a comprehensive and final settlement of the financial relationship of the parties, not only covering matters affecting their immediate situations [alimony, custody, child support, payment of educational and medical expenses, maintenance of life insurance], but also dividing their assets and resolving their inheritance rights and their responsibilities for each other's indebtedness [transfer of title to vehicle, sale of marital home within two years of date of agreement, with wife receiving 56% and husband 44% of net proceeds, division of personal property and husband's pension, each waiving any claim to the estate of the other and releasing the other from past and future obligations]." 22 Mass.App.Ct. 584, 495 N.E.2d at 873. The agreement provided that it would be binding upon the heirs, representatives, and assigns of the parties. The trial court found that the marriage had irretrievably broken down and ordered the parties to comply with the separation agreement, which was to be incorporated and merged into a judgment nisi to be entered six months later without any further action by the parties. There had been partial performance. The wife died before the judgment nisi was entered. The husband contended that the wife's death abated and voided the separation agreement. The Appeals Court of Massachusetts interpreted the agreement and found that the parties intended for it to have full force and effect from the date of the order approving it, which was the same date it was signed by the parties.
The situation in Pavluvcik is entirely different from that in the case here at issue, where the only thing other than temporary custody and child support agreed to by the parties was a subsequent transfer of the title to the residence subject to certain unfulfilled conditions. Many rights and obligations remained unresolved, and the trial court properly found, because so many rights and obligations were unresolved, that the parties had not intended for the agreement dealing with the residence to have full force and effect from its date without any resolution of issues involving child support, alimony, and the division of other property.
The trial court did not err in holding that the temporary order did not vest in the husband a property right that was enforceable by his estate and that title to the residence was vested in the wife under the survivorship provision of their deed, and that the divorce action had abated.
There is no need to discuss the issue of reconciliation of the parties after the temporary order was entered.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur.
[1] This objection was first filed by the parents of the deceased husband prior to Pat Jones's being appointed as administratrix of her son's estate.
[2] Independent research has revealed that we have decided cases involving the construction and effect of similar provisions in property settlements on the real property of divorced parties in somewhat similar circumstances. See Porter v. Porter, 472 So. 2d 630 (Ala.1985); Watford v. Hale, 410 So. 2d 885 (Ala.1982). In these cases, however, the provisions in question were incorporated within final judgments of divorce, and not within temporary orders such as that in the case at bar. Thus, these prior cases are clearly distinguishable from the instant case, and we therefore agree with the husband's estate that we are apparently presented with a question of first impression. | November 25, 1987 |
24170310-dd3d-4ec5-9aab-356706ce17ed | Tierce v. MACEDONIA UNITED METHODIST CH. | 519 So. 2d 451 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 451 (1987)
Don TIERCE and Festus Tierce
v.
MACEDONIA UNITED METHODIST CHURCH OF NORTHPORT, et al.
86-1003.
Supreme Court of Alabama.
December 11, 1987.
*452 J. Paul Whitehurst of Whitehurst & Whitehurst, Tuscaloosa, for appellants.
Gordon Rosen of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellees.
HOUSTON, Justice.
This declaratory judgment action was commenced by several plaintiffs, among them the Macedonia United Methodist Church of Northport (the "Church"), who sought the construction of the will of Octavia Hagler and of certain mortgages that she had accepted prior to her death, which occurred on April 6, 1983. The Church contended in its complaint that the will and the mortgages in question established a trust or trusts of the mortgage proceeds in its favor and the plaintiffs named as defendants Hagler's heirs and the executrix of her estate. The Church also contended that the funds making up the trust corpus were being improperly withheld from it by the executrix for the benefit of Hagler's heirs, and it asked the trial court to order that these funds be released to the Church according to the terms of the alleged trust or trusts.
After a hearing at which only documentary evidence was introduced, the trial court ruled in favor of the Church and the Church's fellow plaintiffs, entering a judgment establishing a trust in favor of the Church. Two of the defendants, Don Tierce and Festus Tierce, now appeal from that judgment, asserting that the trial court erred in establishing the trust in favor of the Church. We affirm in part, reverse in part, and remand.
Many of the operative facts in this case concern certain sales of real property by the decedent, Octavia Hagler. A few years prior to her death, she sold four parcels of this property to various purchasers, receiving in exchange four promissory notes providing *453 for annual payments of portions of the purchase price. Each note was secured by a separate mortgage issued to the decedent as a consequence of each transaction. The first such sale was to Bobby C. Hagler, and this sale took place on December 11, 1980. The mortgage securing the debt resulting from this sale provided as follows:
Virtually identical language was also placed in the note given as a consequence of this sale.
The second sale took place one week later, on December 18, 1980. This sale was to Joe Hillary Shirley and Jean R. Shirley, and it was also consummated by the giving of a note and mortgage. Each of these documents contained language concerning the mortgage proceeds virtually identical to that contained in the documents issued in the previous sale to Bobby C. Hagler, and the mortgage, like the mortgage from Hagler, was recorded. Henceforth, we will refer to these two sales collectively as the "Hagler-Shirley Transfers."
The third transfer took place on January 29, 1981. In this sale, another parcel of land was conveyed to Ralph Harden and Louise T. Harden. This conveyance, henceforth referred to as the "Harden Transfer," was also consummated by the giving of a mortgage, and, presumably a note, although the note is not part of the record on this appeal. However, none of the language of the Hagler-Shirley Transfers concerning the Church's trust fund was contained in the mortgage relating to the Harden Transfer, nor was there any other indication of a transfer of the right to the mortgage proceeds arising from this sale.[1]
The fourth sale was to Rogene S. Tierce and Sybil C. Tierce, and it took place on August 25, 1981. As with the previous sales, the decedent accepted a note and mortgage from the buyers. The mortgage given as a consequence of this sale contained the following language concerning a possible transfer in trust, language which differed significantly from that of the Hagler-Shirley Transfers:
The note evidencing the debt resulting from this sale, however, contains no such language. We will subsequently refer to this conveyance as the "Tierce Transfer," bearing in mind that the Tierces who purchased this property are not the parties prosecuting this appeal.
In addition to a consideration of these notes and mortgages, our resolution of this case also depends upon a consideration of the will of the decedent. This will was executed March 24, 1981, subsequent to the Hagler-Shirley and Harden Transfers, but prior to the Tierce Transfer. The pertinent provision of this will provides as follows:
A codicil revoking another section of the will was executed on October 20, 1981.
In addition to the above documents, we will also refer to a trust instrument that appears in the record, although the parties disagree as to whether this document was properly admitted into evidence. This document purports to establish an inter vivos trust with the Church as the beneficiary and the First National Bank of Tuskaloosa as trustee. Importantly, this trust instrument was never executed by the parties, and it is uncontradicted that the inter vivos trust described therein was never actually established by the decedent. We also note that the date of this instrument's drafting can only be narrowed to sometime within the year 1981, which is recited on several occasions in the language of the unexecuted trust instrument.
Construing the unexecuted trust instrument and the will together, the trial court concluded that a valid trust had been created in favor of the Church. The trial court apparently regarded the two documents as together creating a trust that conveyed all the disputed parcels to a trustee for the benefit of the Church. As the following analysis will show, the trial court was in error in reaching this conclusion.
Before proceeding to that analysis, however, we note initially that our standard of review in this case establishes no presumption of correctness in regard to the trial court's judgment. This case involved no oral testimony before the trial court. With the exception of the disputed trust instrument, the evidence was stipulated by the parties. Therefore, we review the case "without any presumption in favor of the trial court's findings." Gibson v. Jones, 293 Ala. 616, 619, 308 So. 2d 692, 694 (1975).
We begin our analysis with the materials primarily relied upon by the trial court the will and the trust instrument. We note that the defendants vigorously argue that the trust instrument should not have been considered by the trial court, on the ground that it was not part of the evidence stipulated to by the parties. Because we hold that the trial court incorrectly determined that either of these documents established a trust, we need not consider the defendants' particular argument for excluding the trust instrument, and, for the purposes of this appeal, we will assume that the trust instrument was properly before the trial court.
As has been noted many times by this Court, "[t]he intention of the testator is always the polestar in the construction of wills, and the cardinal rule is to ascertain the intention of the testator and give it effect if not prohibited by law." Mastin v. First Nat. Bank of Mobile, 278 Ala. 251, 257, 177 So. 2d 808, 813 (1965); see Ala. Code (1975), § 43-8-222. In ascertaining the testator's intentions, we consider the will as whole, and we may consider the language of the will in light of the facts and circumstances attending its drafting. See, e.g., Mastin v. First Nat. Bank of Mobile, 278 Ala. at 257, 177 So. 2d at 813.
Applying these principles to the case at bar, we think it beyond doubt that the testatrix tentatively intended by this will to *455 devise[3] the disputed mortgage proceeds to an inter vivos trust established by the testatrix. The will is unambiguously a "pourover" will, and we may assume that the unexecuted trust instrument represents the contemplated inter vivos trust into which the proceeds noted in "Item Two" of the will were to be devised.
The trust instrument, however, was never executed, nor was the trust referenced therein ever otherwise established by the testatrix. Consequently, we think it clear that this attempted devise fails and that the devise in "Item Two" of the will therefore lapses.
The attempted devise fails in the first instance because it does not conform with Ala.Code (1975) § 43-8-140, which sets forth the procedures for establishing pourover gifts to an inter vivos trust. One requirement of that section is that the trust's "terms [be] set forth in a written instrument (other than a will) executed before or concurrently with the execution of the testator's will." (Emphasis added.) The trust instrument clearly does not meet this requirement, as it was never executed.
The attempted devise fails in the second instance because it does not meet the requirements of certain other grounds that might be invoked to sustain it. We consider these grounds with some hesitation, because the legislature, in adopting § 43-8-140, may have intended that the procedure set forth therein be the exclusive means of establishing testamentary additions to inter vivos trusts. Because we find, however, that the other grounds for upholding the devise in question cannot be properly invoked in this case, we need not decide the question of § 43-8-140's exclusivity, and we expressly reserve that question for later decision.
The will states that the proceeds from three of the mortgages were to be devised "to the First National Bank of Tuskaloosa, N.A., as Trustee acting under a certain Trust Agreement entered into and with [the Trustee] for the purposes stated in said Trust Agreement," and notes that the "Trust Agreement to be made and entered into ... will be in memory of my beloved husband."
It is well settled that documents not executed with the formalities required of wills can supplement the terms of a will in certain limited circumstances, including documents referencing or creating charitable trusts. See Baxley v. Birmingham Trust Nat. Bank, 334 So. 2d 848 (Ala.1976); Restatement (Second) of Trusts § 358 (1959). These circumstances exist where the terms of the trust can be gathered from a document or documents incorporated by reference into the will, and where the terms of the trust can be adduced from a fact of independent significance. Baxley, supra; Restatement (Second) of Trusts, supra.
Although Alabama adheres to the doctrine of incorporation by reference, see § 43-8-139, the requirements of that doctrine are not met in the present case. "`The document which is to be incorporated must have been in existence at the time the will was executed, it must be referred to in the will, and it must be identified by clear and satisfactory proof as the paper referred to.'" Baxley v. Birmingham Trust Nat. Bank, 334 So. 2d at 852 (quoting Holt, Testate Succession in Alabama: Part I, 24 Ala.L.Rev. 221, 243-44 (1971)) (emphasis added); see First Nat. Bank of Birmingham v. Klein, 285 Ala. 505, 234 So. 2d 42 (1970); Mastin v. First Nat. of Mobile, 278 Ala. 251, 177 So. 2d 808 (1965). There is insufficient proof in this case that the trust document in question was in existence at the time of the execution of the will.
As noted previously, the drafting of the trust document can be narrowed only to sometime within the year 1981, judging from the language of the document itself. Moreover, the testatrix died in 1983. Therefore, she could have asked her lawyer to draft this document at any time during *456 the year 1981, and we note that her lawyer was apparently also dead at the time of this trial. Thus, no evidence was introduced that further narrows the date of the drafting of the trust document. Therefore, it would appear to be beyond dispute that this document could have come into existence at any time during the year 1981. The will, however, was clearly executed on March 24, 1981, and the codicil appended thereto was executed on October 20, 1981. Assuming that this codicil republished the will on October 20,[4] there nevertheless would remain a period of nearly two and one-half months in 1981 during which the trust document could have been drafted subsequent to the republication of the will. Moreover, the will itself is ambiguous as to the existence of the trust document, as "Item Two," quoted at length above, refers to the trust both as being in existence and as yet "to be made and entered into." Thus, the proof that the trust document was in existence at the time of the will's execution is highly ambiguous at best, and it falls far short of the standard required to incorporate the document by reference into the will. An "incorporated" document must be in existence when the will is executed, Baxley v. Birmingham Trust Nat. Bank, supra; it is not enough to show that the document might have been in existence.
Likewise, the doctrine of "facts of independent significance," also adhered to in Alabama, see § 43-8-141, is inapplicable to this case. "`The chief requirement [of the doctrine] is that the document referred to in the will have a separate legal identity and existence, and not be solely for the purpose of supplementing the will,'" Baxley v. Birmingham Trust Nat. Bank, 334 So.2d, at 853 (quoting Holt, Testate Succession in Alabama: Part I, 24 Ala.L.Rev. 221, 244 (1971)); see First Nat. Bank of Birmingham v. Klein, 285 Ala. 505, 234 So. 2d 42 (1970). In the instant case, it is undisputed that the trust referred to in the trust document was never established. Hence, this "trust" never rose to the level of a "separate legal identity," and the doctrine of facts of independent significance is inapplicable. "It is not the trust instrument but the trust itself that has independent significance." 1A A. Scott & W. Fratcher, The Law of Trusts § 54.3, at 12-13 (4th ed. 1987); see Restatement (Second) of Trusts, § 54 comment f (1959). Thus, the doctrine of facts of independent significance, while it can sometimes serve as "an escape mechanism from the strict requirements of incorporation by reference," First Nat. Bank of Birmingham v. Klein, 285 Ala. at 509, 234 So. 2d at 46, cannot properly be invoked in the instant case.
Accordingly, no charitable trust was established by the will in this case. The attempted pour-over devise into the "trust" fails, because of a lack of compliance with the requirements of § 43-8-140. Similarly, the trust instrument cannot be regarded as having been incorporated by reference, and the "trust" itself never achieved a "separate legal identity"; this fact foreclosed application of the doctrine of facts of independent significance. Therefore, even if we wished to assume that the testatrix's actual intention was to establish a trust by will, a trust similar to that evidenced by the trust instrument, we could not do so, because such a trust would be "prohibited by law." Mastin v. First Alabama Bank, 278 Ala. at 251, 177 So. 2d at 813.
We should note, however, that the evidence of the testatrix's intent in this case does not require such an assumption, and that, in fact, her actions could well indicate the opposite intent. As noted previously, the will is clearly a "pour-over will," and we must assume that the testatrix realized that such a testamentary scheme required a trust "receptacle" to render it operative. The testatrix lived more than two years after the will was executed and after she *457 would have been made aware of the necessity of establishing a trust, yet she made no effort to consummate the pour-over scheme. We think that such inaction comports at least as well with an intention to allow the devise in the will to lapse as it does with an intention to make the devise. We note in this regard that § 43-8-140 provides that the revocation of the inter vivos trust underlying a testator's pourover scheme results in the lapse of any devise in the will to that trust. This is perhaps a legislative determination that a testator, by such a revocation, evidences an intent that the devise is to be distributed according to a residuary clause or by intestacy, rather than by the terms of the trust. A failure to create the underlying trust in the first place ought to be given a similar effect, at least in the circumstances in which this case arises. Consequently, even if some legal means to establish this trust existed, we are not at all sure that our "polestar," the intention of the testatrix, would lead us inescapably to the conclusion that such a trust was to be established.
Although the trial court erred in upholding a trust on the basis of the will and the trust instrument, we must also consider the dispositions contained within the notes and mortgages referred to previously. If any of these documents created valid inter vivos trusts not subsequently revoked by the will, then the trial court's judgment is due to be upheld as to each such valid trust,[5] in spite of the fact that the attempted devises in the will must be regarded as having lapsed.
The language in the Tierce Transfer purporting to create a trust is unenforceable due to the lack of a present intention to create the trust. That language provides only that the balance of mortgage payments due the decedent at her death "are to be made to the Trustee of the Trust which will be set up for the benefit of [the Church]." "A manifestation of intention to create a trust inter vivos at some time subsequent to the time of manifestation does not create a trust." Restatement (Second) of Trusts § 26 (1959); see 1 A. Scott & W. Fratcher, The Law of Trusts § 26 (4th ed. 1987). Accordingly, no inter vivos trust was created by this language. In view of the fact that no valid testamentary trust was established with respect to this property, and that, indeed, these particular proceeds were not referenced in either the will or the trust document, the trial court was in error in including the proceeds from the Tierce Transfer in the trust it established in favor of the Church.
The proceeds from the Harden Transfer were also improperly included in the trust established by the trial court. It is undisputed that the documents exchanged in the Harden Transfer contained no words indicating a gift in trust of those proceeds, and that no other manifestation of an intention to create an inter vivos trust was made by the decedent with respect to these proceeds. Although no particular words are required to manifest an intent to create a trust, "an express trust, according to logic and authority, cannot exist without some such manifestation." Comment, The Law of Trusts in Alabama, 24 Ala.L.Rev. 467, 471 (1973). There being no such manifestation in regard to these proceeds, no inter vivos trust was created, and, in view of the fact that no valid testamentary trust was established by the testatrix's will, the trial court erred in including these proceeds in the trust it established in favor of the Church.
As noted previously, the Hagler-Shirley Transfers included documents containing language concerning an attempted gift in trust to the Church. Moreover, these transfers were irrevocable, because the settlor did not expressly reserve the right to revoke the transfers in trust for the benefit of the Church. See Underwood v. Bank of Huntsville, 494 So. 2d 619 (Ala. 1986); Restatement (Second) of Trusts § 330 (1959); Comment, The Law of Trusts in Alabama, 25 Ala.L.Rev. 467, 523-27 (1973). Thus, the attempted revocation in "Item Two" of the will, quoted at length above, is of no effect in determining the validity of these gifts in trust. If these inter vivos transfers are valid, then the fact that the subsequent testamentary devise fails is of no import in sustaining the prior inter vivos transfers. As the following analysis will show, we hold that these two transfers resulted in valid inter vivos transfers in trust for the benefit of the Church, and that the trial court was correct in establishing a trust in favor of the Church as to these proceeds.
There is no doubt from the previously quoted language of these transfers that a transfer in trust was intended. The issues presented by these transfers concern the related matters of whether a present intent to convey an interest in the property was manifested by the language of the notes and mortgages, and whether such a transfer actually occurred.
The problem arises because the decedent expressly provided that she was to receive the mortgage proceeds during her life and that, upon her death, the proceeds were to go in trust to the Church for the specified purpose of building maintenance. The defendants argue that the language to this effect manifests an intent to establish a trust in the future, and is therefore invalid, as was the case with the Tierce Transfer. We disagree.
It is undisputed that mortgage proceeds may be held in trust, City Bank & Trust Co. v. Gardner, 225 Ala. 136, 142 So. 535 (1932); Hill v. Hill, 216 Ala. 435, 113 So. 306 (1927), and that such proceeds are considered to be personal property, City Bank & Trust Co., supra; Hill, supra. Moreover, we have recognized that the reservation of a life estate in personalty does not serve to defeat a gift of the remainder interest in such personalty, so long as the gift of the remainder interest is reduced to a writing. Livingston v. Powell, 257 Ala. 38, 57 So. 2d 521 (1952). In addition, Hill v. Hill, supra, recognizes by implication that a remainder interest in mortgage proceeds is permissible, and we also note that
38 C.J.S. Gifts § 41, at 820-21 (1943).
The language in the documents exchanged as a result of the Hagler-Shirley Transfers is consistent with the construction that the decedent intended a present transfer in trust of a remainder interest in the mortgage proceeds for the benefit of the Church, retaining to herself a life estate in the proceeds. The transfer of this remainder interest was irrevocable and tied to no particular contingency; it was thus not ambulatory or testamentary in nature, but represented an attempt to make a present and absolute gift in trust of the balance of the mortgage proceeds existing at the time of the testatrix's death. Accordingly, we hold that this transfer in trust does not fail for lack of a present intent to create a trust. Unlike the Tierce Transfer, in which the proceeds were explicitly to go to a trust "which will be set-up" in the future, the Hagler-Shirley Transfers represent present transfers in trust of a future interest in the mortgage proceeds.[6]
*459 The defendants also argue that the Hagler-Shirley Transfers failed because there was no effective delivery of the interest. We disagree.
These attempted trusts sprang from gratuitous transfers to the Church trust fund. Therefore, the question of whether an effective delivery occurred must be answered by reference to the general law of gifts. In this regard, we have recognized that the evidence in support of the gift must be clear and convincing. DeMouy v. Jepson, 255 Ala. 337, 51 So. 2d 506 (1951). We have also recognized, however, that "the rule [requiring delivery in the case of a gratuitous transfer] has been relaxed as to personal property not capable of manual delivery. In such a case a symbolic delivery is held sufficient...." First Nat. Bank of Birmingham v. Hammel, 252 Ala. 624, 626, 42 So. 2d 459, 460 (1949). We are concerned here not just with intangible personal propertychoses in action but with a future interest in that property, further incorporealizing the interest conveyed. That such an interest is incapable of actual manual delivery would appear to be beyond dispute. We think, therefore, that the specification in the notes and mortgages of the interest to be conveyed and the subsequent recordation of those mortgages is a sufficient "symbolic" or "constructive" transfer to satisfy the delivery requirement in this case. We regard the recordation of the mortgages as particularly persuasive that "delivery" occurred in this case, in view of the rule, long recognized in this state, that the recording of a deed by a grantor can often constitute sufficient delivery of the instrument to convey title, if that is the intention of the grantor. See Henslee v. Henslee, 263 Ala. 287, 82 So. 2d 222 (1955); Gulf Red Cedar Lumber Co. v. Crenshaw, 169 Ala. 606, 53 So. 812 (1910).
We also reject the defendant's contention that there was no valid transfer in trust of the mortgage proceeds, due to a lack of acceptance. Although "acceptance" by the donee of the gift is an essential requisite to consummation of a gratuitous transfer, we note that such acceptance may be implied or presumed in the absence of evidence of the donee's contrary intention, see Henslee, supra; Gulf Red Cedar Lumber Co., supra; R. Brown & W. Raushenbush, The Law of Personal Property 127-28 (1975); 38 Am.Jur.2d, Gifts § 96 (1968), and that acceptance is frequently presumed or implied in the transfer of notes, see Annot., Delivery of Bill or Note of Third Person by Way of Gift, 25 A.L.R. 642, 646 (1923). In view of these rules, and in view of the incorporeal nature of the future interest transferred in this case and the concommitant difficulty of manifesting its "acceptance" in the first place, we will imply acceptance by the donee on these facts, there being no manifestation of a contrary intent on the part of the donee. See also Watson v. Watson, 283 Ala. 214, 215 So. 2d 290 (1968) (acceptance of trust is ordinarily presumed).
In summary, we hold that the evidence in this case, considered in light of the applicable law and presumptions, establishes that a valid inter vivos trust was etablished in regard to the proceeds of the Hagler-Shirley Transfers, and that the gratuitous transfers giving rise to the trust are supported by clear and convincing evidence.
For the foregoing reasons, the trial court incorrectly established the trusts allegedly created under the testatrix's will and the trust instrument. However, valid inter vivos transfers in trust were made as to the mortgage proceeds arising from the Hagler-Shirley Transfers. Accordingly, the trial court's establishment of a trust as regards these proceeds was entirely proper. *460 We note, however, that the trial court established a trust to be governed according to the terms of the unexecuted trust instrument, rather than according to the terms contained in the notes and mortgages. Because these documents, and not the trust instrument, are the legally operative instruments in this case, the trial court should conform its order to reflect, as closely as the law requires, the terms set forth in the notes and mortgages. The proceeds arising under the Harden and Tierce Transfers, however, were not transferred either by inter vivos trust or under "Item Two" of the will, and those proceeds must therefore be distributed according to any other applicable terms of the will or according to the applicable law. We therefore affirm in part, reverse in part, and remand this cause to the trial court to allow it to conform its order in accordance with the principles and findings outlined in this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
TORBERT, C.J., and MADDOX and ALMON, JJ., concur.
BEATTY, J., concurs in result.
[1] The mortgage issued as a result of the Harden Transfer was subsequently re-executed, and a new mortgage document was issued and recorded. As with the previously executed mortgage, however, this subsequent mortgage contained no language indicating that the proceeds were to be held in trust for the Church.
[2] Although this provision of the will is poorly worded, the parties have treated the provision as an attempt to give the proceeds of the referenced mortgages, and we will do likewise, notwithstanding some ambiguity in the will's language.
[3] Our use of "devise" in reference to personalty is a recognition of the definition at Ala.Code (1975), § 43-8-1.
[4] One commentator has noted that Alabama law is confused as to whether a codicil republishes a will as of the date of the execution of the codicil, although this is the general rule. See Holt, Testate Succession in Alabama: Part I, 24 Ala.L. Rev. 221, 241-42 (1971). But see Reed v. Shipp, 293 Ala. 632, 308 So. 2d 705 (1975) (noting in dictum that Alabama follows the general rule that a codicil republishes a will as of the date of the codicil).
[5] The judgment that was entered in the trial court proceeded from a motion for a summary judgment on the documentary evidence stipulated to by the parties. Although we limit our review of the trial court's summary judgment to the evidence before it, "[o]ur reasoning, however, is not limited to that applied by the trial court," Hill v. Talladega College, 502 So. 2d 735, 737 (Ala.1987). Thus, even where the trial court's legal reasoning is erroneous, the court's holding may nevertheless be sustained if the correct rules of law support the entry of a summary judgment. Id.; see Hoffman & Schroeder, Burdens of Proof, 38 Ala.L.Rev. 31, 40-41 (1986).
[6] We have noted that "Item Two" of the will attempts to revoke these transfers. Although this "revocation" constitutes some evidence that the grantor did not intend a present transfer of the interests conveyed in the notes and mortgages issued as a result of the Hagler-Shirley Transfers, we do not regard this attempted revocation as fatal to the transfer in this case. A gratuitous transfer, once made, is irrevocable, see Patterson v. Leonard, 240 Ala. 652, 200 So. 759 (1941), and our review of the evidence in this case convinces us that a valid inter vivos gift in trust was in fact made by the decedent. Consequently, this "revocation" has no legal effect on these transfers. | December 11, 1987 |
40a599f1-6066-4e36-9e2b-2db3753053c3 | Williams v. Marcum | 519 So. 2d 473 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 473 (1987)
Howard WILLIAMS
v.
Dempsey MARCUM and City of Northport.
86-163.
Supreme Court of Alabama.
December 23, 1987.
Rehearing Denied January 22, 1988.
*474 Howard Williams, pro se.
Michael S. Burroughs of Phelps, Owens, Jenkins, Gibson & Fowler, and Christopher Lyle McIlwain of Hubbard, Waldrop, Reynolds, Davis & McIlwain, Tuscaloosa, for appellees.
HOUSTON, Justice.
The defendants are Police Chief Dempsey Marcum of the City of Northport and the City of Northport itself. The plaintiff, Howard Williams, who filed this pro se appeal from a summary judgment for the defendants, was employed by the City of Northport as a police officer. We find that the "final judgment" entered in the circuit court, incorporating findings of fact and conclusions of law, adequately disposes of each issue presented here by the plaintiff, except the issues of (1) a conspiracy between Chief Marcum and the City of Northport, and (2) invasion of privacy, which issues were not raised at the trial level. This Court will not consider an issue that was not pleaded or otherwise raised at the trial court level. Smiths Water Authority v. City of Phenix City, 436 So. 2d 827 (Ala. 1983); Chatman v. City of Prichard, 431 So. 2d 532 (Ala.1983). See also, Ammlung v. City of Chester, 494 F.2d 811, 814 (3rd Cir.1974), which applied the waiver rule in a conspiracy case (finding "no allegations of a combination, agreement, or understanding among all or between any of the defendants"). As to the conspiracy issue, Williams's complaint alleges:
Though the phrase "common plan, scheme and design" is used in Williams's complaint, his complaint does not allege that the two defendants acted together in regard to any such "plan," "scheme," or "design." In Hursey v. City of Mobile, 406 So. 2d 397, 398 (Ala.1981), the Court held that the following statement did not allege any combination between the City of Mobile and Dr. Naman: "by refusing to compel Dr. Naman to cease and desist from the unlawful use of his property, the City conspired with Dr. Naman in his continuing unlawful use of his property." In upholding the defendant City's summary judgment, the Court wrote:
Elsewhere in Williams's complaint he alleges that the City of Northport has liability predicated upon the "doctrine of respondeat superior." Although a corporation "may be liable for damage to a third person resulting from a conspiracy where two *475 or more of its agents participated in the conspiracy," Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297, 306 (Ala.1986), there is no "conspiracy" where the only parties to the alleged conspiracy are the corporation and one of its agents and the corporation's liability is predicated upon the theory of respondeat superior through the acts of the agent with whom it allegedly conspired. Tuskegee Institute v. May Refrigeration Co., 57 Ala.App. 344, 328 So. 2d 598 (1976), affirmed in part and reversed in part, 344 So. 2d 156 (Ala.1977).
As to the second claim raised here but not dealt with by the trial court's judgment, we find that there was nothing in any pleading concerning the right of privacy. Further, we have been unable to find in the record even a suggestion that this theory or claim was presented to the trial court.
Justice Benjamin N. Cardozo, in The Nature of the Judicial Process (1921), at page 35, wrote: "[T]he sordid controversies of litigants are the stuff out of which great and shining truths will ultimately be shaped." Any "great and shining truths" that can be shaped from the controversy before us, involving, as it does, allegations of biting off a woman's nipple, domestic violence, breaking down a door to gain entrance into a police officer's abode and a resulting fatal shooting, a corpse in a police officer's front yard, and intrigue and politics within a police department and a city government, have been shaped by the trial court in its "final judgment."
While we do not adopt the trial court's order as a correct statement of the law in regard to all its propositions, we nevertheless quote that order here and we consider it to adequately deal with the remaining issues:
"This matter came before the Court on the defendants' Motion for Summary Judgment, and after hearing the arguments of counsel and reviewing the items on file, the Court concludes that there is no genuine issue as to any material fact and that the defendants are entitled to a judgment as a matter of law. The Court's rationale with regard to each incident alleged in the complaint is set out hereinbelow.
"On June 7, 1982, a letter of reprimand was written by defendant Marcum. The plaintiff alleges that defendant Marcum unlawfully placed a letter of reprimand in his personnel file, causing him damage. The plaintiff's complaint characterizes this conduct as libel, outrage, interference with contractual relations and a violation of 42 U.S.C. § 1983.
"This lawsuit was not filed until August 30, 1985. These claims are barred by the applicable statute of limitations [Ala.Code (1975), § 6-2-39(4), (5) (repealed)], which states that actions for `libel or slander' and actions for ... `any injury to the person or rights of another not arising from contract' shall be commenced within one year. Plaintiff's attorney conceded the fact that this statute barred the action [insofar as it claimed libel, `outrage,' interference with contractual relations, or § 1983 violations based upon Marcum's actions in the year 1982].
"In 1983, a background search and report was made. The plaintiff alleges that defendant Marcum made a background search on the plaintiff beginning April 1, 1983, and that false reports based on this investigation were made on several occasions in 1983. Again, the plaintiff's complaint appears to characterize this conduct as libel, outrage, interference with contractual relations, and a violation of 42 U.S.C. § 1983. As the plaintiff's attorney conceded at oral argument, these claims are... barred by the applicable statutes of limitations [insofar as they are based upon Marcum's actions in the year 1983].
"On September 4, 1984, a press release was given by defendant Marcum. The plaintiff alleges that defendant Marcum issued a false press release regarding a shooting incident involving the plaintiff.
"No claim was filed against the city regarding this matter until August 30, 1985. Thus, the claims against defendant City of Northport are barred by Ala.Code (1975), *476 § 11-47-23 [the six-month municipal statute of nonclaims].... The plaintiff's attorney conceded this at oral argument....
"With regard to defendant Marcum, the libel claim is without merit because the press release is true. Truth constitutes an absolute defense to a claim of defamation. Liberty Loan Corp. v. Mizell, 410 So. 2d 45 (Ala.1982); Ala.Code (1975), § 6-5-183. The release was expressly based on a preliminary investigation, and the plaintiff admitted in his deposition that the press release accurately reflected the contents of the preliminary investigation. Cf. D'Andrea v. Adams, 626 F.2d 469 (5th Cir.1980) (n. 2, applying Alabama law) [cert. denied, 450 U.S. 919, 101 S. Ct. 1365, 67 L. Ed. 2d 345 (1981)].
"Obviously, if the statement is true, it cannot be grounds for the tort of outrage. Even if the statement was false, it would not be sufficient for such an action because it is not so outrageous and extreme as to go beyond all possible bounds of decency and it would not be regarded as atrocious and utterly intolerable in a civilized society. Franklin v. Ansell, Inc., 489 So. 2d 565 (Ala.1986); Surrency v. Harbison, 489 So. 2d 1097 (Ala.1986); McCluskey v. Unicare Health Facility, Inc., 484 So. 2d 398 (Ala. 1986). [See American Road Serv. Co. v. Inmon, 394 So. 2d 361 (Ala.1981).]
"There was no breach of the contract between plaintiff and the City of Northport for purposes of the interference claim by virtue of this press release. The plaintiff suffered no loss in pay or any other benefit. Moreover, defendant Marcum cannot be liable for interference because his supervisory capacity with the City of Northport prevents him from being a third party. See, e.g., Newman v. Legal Services Corp., 628 F. Supp. 535 (D.D.C.1986).
"Finally, defendant Marcum cannot be liable under § 1983 for even a defamatory press release because the plaintiff suffered no loss of tangible state-guaranteed entitlements as a result of the release. Hardiman v. Jefferson Co. Board of Ed., 709 F.2d 635 (11th Cir.1983).
"On March 8, 1985, a suspension occurred because of an improper uniform. The plaintiff alleges that defendant Marcum suspended him and deducted a day's pay.
"The evidence is uncontroverted that the plaintiff violated uniform regulations on March 8, 1985, and that defendant Marcum initiated disciplinary action therefor. This disciplinary action was almost immediately rescinded by the city administrator. It is also clear that the plaintiff never actually lost any pay whatsoever and that the plaintiff, in effect, received a day off with pay on March 8, 1985, as opposed to a suspension without pay.
"The defendants' conduct obviously does not constitute libel because there was no publication of defamatory material. It does not constitute [the tort of] intentional infliction of emotional distress because it is not outrageous conduct. It does not constitute [the tort of] interference with contractual relations because there is no interference by a third party. Finally, it is not a violation of § 1983 because the plaintiff was not denied due process and he suffered no damage. Hardiman v. Jefferson Co. Board of Ed., supra (suspension with pay does not constitute a § 1983 violation).
"On June 2, 1986, a letter to a vest manufacturer about an incident was written. In his amended complaint, the plaintiff alleges that defendant Marcum sent a letter to a bullet-proof vest manufacturer regarding another shooting incident involving the plaintiff. He further states that the letter was false wherein it stated that the shooting incident was a fabricated hoax and that the plaintiff was not wearing a bullet-proof vest at the time of the shooting. The pertinent portion of the letter that the plaintiff and his attorney contended was false is set out in full as follows:
"`And in my professional opinion, based on my knowledge of Officer Williams and the available information of the case, there is reasonable cause to believe the incident was a fabricated hoax, and I sincerely doubt that officer Williams was wearing the vest when it was shot as reported.'
*477 "As indicated by the wording of the letter itself, the statement made the basis of this claim was Chief Marcum's opinion. The law is clear that an opinion can never be false. Because a statement must be false to be actionable defamation, an opinion is simply not actionable defamation. Lewis v. Time, Inc., 710 F.2d 549 (9th Cir.1983). Even if it could be false, the plaintiff was a public figure and a public official, given that he was a police officer and a candidate for the office of Sheriff of Tuscaloosa County. Hence, in order to avoid a summary judgment, the plaintiff was required to produce clear and convincing evidence of actual malice. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The plaintiff has failed to meet this burden.
"This statement of opinion did not constitute outrageous conduct under American Road Serv. Co. v. Inmon., 394 So. 2d 361 (Ala.1980). There is no showing of interference with contractual relations by a third party and the plaintiff's amended complaint does not [allege such interference]. There is no violation of § 1983 by virtue of this letter. Hardiman v. Jefferson Co. Board of Ed., supra.
"The plaintiff contends in his complaint that he had an implied contract with the city [that it would not] `rehire' Chief Marcum after firing him in 1984, and that this contract was breached. However, plaintiff admitted in his deposition that there was no such contract. Even if he had not, it is uncontroverted that defendant Marcum was never fired and, therefore, the city's duty to perform under the alleged contract never arose.
"The plaintiff also contended that he had been ordered to utilize `an old dilapidated, unsafe police vehicle' while on police patrol. He asserts that this constitutes outrageous conduct. Liability for this tort does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. It only extends to conduct so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. American Road Serv. Co. v. Inmon, supra, at 368. The alleged conduct clearly does not meet this standard.
"For the reasons stated hereinabove, the defendants are entitled to summary judgment on all claims and the plaintiff's complaint and amended complaint are hereby dismissed."
The trial court did not err in granting the defendants' summary judgment, and that judgment is affirmed.
AFFIRMED.
MADDOX, BEATTY, and ADAMS, JJ., concur.
ALMON, J., concurs in the result. | December 23, 1987 |
c56f3fb7-295e-41f9-962c-46a1d21c712e | Crump v. Moss | 517 So. 2d 609 | N/A | Alabama | Alabama Supreme Court | 517 So. 2d 609 (1987)
Nolan CRUMP
v.
Milo Hauntus MOSS, Individually, and as Executor of the Estate of Blanche C. Moss, deceased.
86-695.
Supreme Court of Alabama.
December 4, 1987.
*610 Margaret L. Fleming and Barry N. McCrary, Talladega, for appellant.
William W. Lawrence and Craig S. Dillard, of Wooten, Thornton, Carpenter, O'Brien & Lazenby, Talladega, for appellee.
ADAMS, Justice.
This case involves the validity of a trust agreement. Blanche C. Moss executed an inter vivos trust approximately one month prior to her death. The trust was intended for her own use and benefit during her lifetime, with a gift over to George C. "Jake" Zimmerman and Gilberta F. "Sam" Zimmerman at her death. Her husband and executor, Milo Hauntus Moss, filed a complaint for declaratory judgment and injunctive relief against the trustee, Nolan Crump, contesting the validity of the inter vivos trust on the ground that the agreement and signature were procured as a result of undue influence exerted by the Zimmermans.[1] The jury found in favor of the plaintiff-appellee Mr. Moss. We affirm.
On May 8, 1985, after 40 years of marriage, Mr. and Mrs. Moss were divorced. At that time, Mr. Moss was 89 years old. Approximately one month later Mrs. Moss moved back in with her husband. The divorce judgment was set aside on June 13, 1985.
Mrs. Moss was an invalid during this period. She was confined to her bed or wheelchair, and was totally dependent on others for her care and feeding. Mr. Moss hired a woman to assist in the care of his wife. When the first woman proved unsatisfactory, Mr. Moss hired another woman. Nonetheless, Mrs. Moss became frustrated with the care she received and she asked her close friends, Jake and Sam Zimmerman, to assist her. The Zimmermans immediately came to the Mosses' home and took Mrs. Moss to their home, but they did *611 not tell Mr. Moss where they were taking his wife.
While Mrs. Moss stayed with the Zimmermans, they took care of her daily needs. Mr. Moss wanted to see his wife, but the Zimmermans refused to allow him to see or talk to her. Since he could not drive, several times he hired someone to take him to the Zimmermans' home, but Mrs. Zimmerman would not allow him to see Mrs. Moss. On one occasion, Mr. Moss came to the house to discuss an insurance matter and he saw Mrs. Moss sitting in the living room. When he knocked on the door, Mrs. Zimmerman came and slammed the door in his face. When Mr. Moss tried to telephone, he discovered that the Zimmermans had had their phone number unlisted.
Several weeks after the divorce was set aside, and while Mrs. Moss was living with the Zimmermans, Mrs. Moss went back to Marcus D. Owsley, the attorney who had handled her divorce, to discuss the disposition of her property at her death. Mrs. Zimmerman drove Mrs. Moss to that first meeting, and there was testimony that she stayed in the room while Mrs. Moss talked to her attorney. Mrs. Moss met with her attorney several more times. Sometimes, Mrs. Zimmerman drove Mrs. Moss to her attorney's office, and at other times Mr. Owsley went to the Zimmermans' home to talk with Mrs. Moss. When Mr. Owsley was at the Zimmermans' home, he took precautions to insure that no one could hear his conversation with Mrs. Moss, by speaking quietly and pushing something against the door to prevent unexpected interruptions.
According to Mr. Owsley, Mrs. Moss told him during these conversations that because Mr. Moss allegedly physically and mentally abused her, she did not want her husband to receive any of her property at her death. Furthermore, even though she had some relatives in Ohio, she did not want to leave them anything either. Instead, Mrs. Moss wanted to be assured that she would be taken care of during her lifetime, and after her death she wanted the remainder of her property to be given to the Zimmermans.
Mr. Owsley explained to Mrs. Moss that because most people leave their property and valuables to their spouses or relatives, litigation was likely. Mr. Owsley suggested that Mrs. Moss explain her reasons for excluding her husband and relatives from the trust in the text of the trust agreement. Section 7 of the trust agreement states Mrs. Moss's intentions.
At trial, Mr. Owsley testified regarding Mrs. Moss: "[F]or her ageshe always seemed very sharp. She discussed her situation with me very intelligently. She weighed several alternatives or seemed to to me. She thought over several alternatives that I presented to her as to how she might handle her situation at that point in time." Mr. Owsley asked her who she wanted to act as the trustee, and Mrs. Moss named Nolan Crump and a bank employee from Pell City. Mr. Crump agreed to act as trustee.
On August 5, 1985, Mr. Owsley and his secretary went to the Zimmermans' home to have the trust agreement executed. Mrs. Moss was in her wheelchair in the living room, along with Billy R. Rush. Mrs. Moss signed the agreement; Messrs. Rush and Owsley witnessed her signature, and Mr. Owsley's secretary notarized the agreement. After the execution, Mrs. Zimmerman delivered the trust agreement to Mr. Crump, the trustee, along with cancelled checks, withdrawal certificates, checkbooks, and other bank documents belonging to Mrs. Moss.
Ten days after the execution of the trust agreement, Mrs. Moss was admitted to the hospital. After several days she was transferred to a nursing home, where she died on September 2, 1985.
Mr. Moss was never told by the Zimmermans that his wife had been admitted to the hospital or placed in a nursing home. However, a relative read in a local paper that Mrs. Moss was in an Anniston nursing home and told Mr. Moss. He hired a driver and went to visit his wife at the nursing home. That was the last time Mr. Moss saw his wife. After Mrs. Moss's death, *612 Mr. Crump went to Mr. Moss's home to inform him that his wife had died and that the funeral would be the next morning at 10:00 a.m. Mr. Moss hired a driver to take him to his wife's funeral, but when he arrived at the funeral home, he was told that his wife's funeral had been held the previous day.
Mr. Moss sued Nolan Crump, as trustee, seeking a declaratory judgment and injunctive relief, claiming that the Zimmermans exerted undue influence on Mrs. Moss and that but for their influence, Mrs. Moss would not have executed the trust agreement naming them as beneficiaries.
Prior to trial, the parties and the judge agreed that the only issue that would go to the jury was the question of undue influence and that, if necessary, any other questions would be determined by the trial judge in a separate hearing. At the close of the plaintiff's case, Mr. Crump moved for a directed verdict on the ground that the plaintiff had failed to establish a prima facie case of undue influence. The motion was denied. The jury found in favor of Mr. Moss, and Mr. Crump moved for a judgment notwithstanding the verdict, or in the alternative, for a new trial. This motion was also denied. This appeal followed.
The sole issue on appeal is whether there was sufficient evidence to support a jury finding of undue influence.
Proving undue influence in the procurement and execution of a trust agreement requires essentially the same evidence as is required to invalidate a will. 89 C.J.S. Trusts, § 76 et. seq. (1975). To raise a presumption of undue influence sufficient to bring the question before the jury requires only a scintilla of evidence of each element of undue influence. Reed v. Shipp, 293 Ala. 632, 308 So. 2d 705 (1975); A.T.F. Trucking Co. v. Fisher Brothers Sales, Inc., 498 So. 2d 846 (Ala.Civ.App. 1986). Furthermore, the evidence need not be direct, but can be circumstantial. Reed, 293 Ala. at 637, 308 So. 2d at 709; Bardin v. Jones, 371 So. 2d 23 (Ala.1979); Wall v. Hodges, 465 So. 2d 359 (Ala.1984). However, the evidence must provide at least a reasonable inference of undue activity. Penn v. Jarrett, 447 So. 2d 723, 725 (Ala. 1984); Jackson v. Davis, 398 So. 2d 242, 245 (Ala.1981). Mere suspicion is not enough. Id.
To meet his burden, the plaintiff must prove: 1) that there was a confidential relationship between the settlor and the beneficiaries; 2) that the beneficiaries had a dominant and controlling influence on the settlor; and 3) that there was undue activity by the dominant parties in procuring the execution of the trust. Smith v. Smith, 482 So. 2d 1161 (Ala.1985); Kelly v. Donaldson, 456 So. 2d 30 (Ala.1984); Penn, supra; Jackson, supra.
The first two elements are not in dispute on appeal. However, the appellant claims that there was no evidence to support a jury finding of undue influence on the part of the Zimmermans.
Evidence of the following facts was presented by Mr. Moss to meet his burden of proving the third element of undue influence: the fact that Mrs. Moss was seriously ill and was physically taken from her home by the Zimmermans; the fact that Mr. Moss was not told where his wife was being taken; the fact that after Mrs. Moss was taken to the Zimmermans' home, Mr. Moss was not allowed to see or speak to his wife, even though he had hired a driver to take him to see her; the fact that the Zimmermans got an unlisted number after Mrs. Moss came to live with them; the fact that Mrs. Zimmerman took Mrs. Moss to her attorney's office only a short time after Mrs. Moss arrived at her house, and on at least one occasion stayed in the office while the attorney discussed the trust agreement with Mrs. Moss; the fact that Mrs. Zimmerman delivered the trust agreement, bank books, and other valuable documents to Mr. Crump, the trustee; the fact that the Zimmermans never informed Mr. Moss that his wife was admitted to the hospital or that she went to a nursing home to live; the fact that Mr. Crump waited several days before informing Mr. Moss that his wife had died, and that he misinformed Mr. Moss about the date of the funeral, causing him to miss it.
*613 Some of these facts might not, standing alone, create a presumption of undue activity. However, each fact should be considered in the context of the entire situation and in light of the other two criteria for determining undue influence, namely, a confidential relationship and an opportunity to dominate the settlor's actions. The fact that Mrs. Moss was completely dependent on someone else for every aspect of her care; the fact that the Zimmermans were giving that care and preventing her husband from speaking to her; and, the timing of the trust agreement in relation to her death, should all be considered along with the evidence of undue activity. Considering these facts in context with the other facts, we conclude that the trial judge was correct in determining that there was evidence of undue activity. The burden of proof was thus met and it was appropriate to allow the question to go to the jury.
Because the jury personally evaluates the evidence, the witnesses, and the credibility of each, once the jury has reached a verdict based on the evidence, we give that verdict great credence and there is a very strong presumption in favor of upholding the jury verdict. Mahoney v. Forsman, 437 So. 2d 1030, 1033 (Ala.1983). As this Court said in Smith v. Moore, 278 Ala. 173, 176 So. 2d 868 (1965):
278 Ala. at 177, 176 So. 2d at 871.
For the foregoing reasons, we conclude that there was sufficient circumstantial and direct evidence, if believed, to support a jury finding of undue influence, and we affirm.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur.
[1] The Zimmermans are not parties in this suit. | December 4, 1987 |
86e0dc0a-9ed0-4cbc-9dd4-0340fb653060 | Bracknell v. SE Belcher, Inc. | 517 So. 2d 588 | N/A | Alabama | Alabama Supreme Court | 517 So. 2d 588 (1987)
Huey BRACKNELL
v.
S.E. BELCHER, INC.
86-733.
Supreme Court of Alabama.
November 13, 1987.
*589 Patricia Franklin Emens of Legal Counsel for the Elderly, Tuscaloosa, for appellant.
Michael L. Murphy, Centreville, for appellee.
JONES, Justice.
Huey Bracknell appeals from the denial of his Rule 60(b), A.R.Civ.P., motion for relief from a default judgment in an action to quiet title filed by S.E. Belcher, Inc. ("Belcher").
Although certain details of the background facts are not entirely clear from the scant record before us, we understand the essential facts to be as follows:
At the time of his death, appellant Huey Bracknell's grandfather, John Bracknell, owned the property in question. In 1949, after John Bracknell died intestate, several of his nine children conveyed their interests in the property to Belcher. Huey's father, who subsequently died intestate, leaving five children, did not convey his interest.
In May 1979, Belcher filed a bill to quiet title, naming as defendants "Heirs and Next of Kin of John Bracknell A/K/A John Brachner, Deceased," and alleging that Belcher "is in the peaceable possession of the [subject property], claiming to own [it]"; that the names and addresses of John Bracknell's heirs are unknown and "cannot be ascertained by your petitioner, after reasonable effort"; and that "the aforesaid heirs and next of kin of John Bracknell ... claim, or are reputed to claim, some right, title, and interest in [the subject property]."
Based upon the petitioner's affidavit to like effect, the trial court ordered service of process by publication, which was effected between May 17 and June 7, 1979. In December 1979, the trial court appointed a guardian ad litem for the minor, incompetent, and unknown heirs of John Bracknell. On the same date, the guardian ad litem accepted the appointment and filed a general denial, demanding strict proof of the bill's material allegations. On February 26, 1980, the Bibb County Circuit Clerk's office received and marked "filed" a handwritten letter from one William C. Bracknell, stating that he claimed an interest in the subject property, as verified by an enclosed copy of a deed from one Lacey Bracknell, and requesting that he be informed of the hearing of the case by use of an enclosed, self-addressed, stamped envelope.
Then on August 4, 1980, after learning of the pending "bill to quiet title" action from a relative who had seen the published notice, Huey personally appeared in the Bibb County Circuit Clerk's office, identified himself as one of John Bracknell's grandsons, and asked about the status of the litigation. Upon being informed that the action was pending and that no hearing date had been scheduled, he wrote out a list of five full names with complete addresses for each (along with his own name and address, he included his telephone number). At the bottom of the list, the clerk wrote these words: "These are the heirs to the Bracknell property." The clerk then stamped the list "Filed in Office Bibb County, Alabama80 Aug. 4 A.M. 9:44, R.L. Foster, Clerk of Court," and appended the list to the case file. Upon the advice of the clerk, Huey then went to the office of the petitioner's lawyer, told the lawyer of his interest in the property, and furnished the lawyer with his complete address and telephone number; thereupon, Huey was told by the lawyer that he would be notified of the hearing.
October 1, 1980, proved to be a busy day in the life of this case. Five crucial events occurred in that day (we list them in the order of their appearance in the record on appeal):
1) The filing of Belcher's "Application to Clerk for Entry of Default and Supporting Affidavit" (alleging, inter alia, that "Defendants *590 failed to answer or otherwise defend as to Plaintiff's complaint");
2) The clerk's entry of the defendants' default;
3) The "Appointment and Acceptance of Guardian Ad Litem," including a general denial and a demand for strict proof of all material allegations (the original guardian ad litem was no longer an Alabama resident);
4) The appearance in the record of copies of four deeds, executed by several Bracknell heirs to Belcher (the first of these copies is stamped "Plaintiff's Exhibit 1," apparently signifying that these copies of deeds were introduced as evidence at a hearing on May 1, 1980); and
5) The trial court signed a default judgment styled "Final Decree," reciting that "the cause was submitted upon a sworn complaint; appointment of Guardian ad litem; testimony given in open court; that all of the defendants have had notice of this proceeding in the manner as required by law and that all of the parties are properly before the court; the answer of the Guardian ad Litem, all the evidence and exhibits; and upon all the pleading and other papers on file in this cause." (This "final decree," fixing title to the subject property in Belcher, became a final judgment when it was filed in the clerk's office on October 24, 1980.)
The next entry in the record on appeal is a Rule 60, A.R.Civ.P., motion filed by Huey on May 19, 1983, seeking, on behalf of the heirs at law of John Bracknell, relief from the October 24, 1980, final judgment. The motion was prepared by L. Scott Atkins, as "Guardian ad Litem for Unknown Heirs at Law." The motion states, in support of its Rule 60(b) grounds, each of the material facts hereinabove set out, and concludes by alleging that "the defendants were prevented from making their defense by accident, mistake, or fraud, without fault on their part." On August 17, 1983, the guardian ad litem filed with the circuit clerk a status report, requesting a hearing on the Rule 60(b) motion.
The only notice of any character or description ever given to Huey Bracknell, respecting these proceedings, came by way of a May 1, 1986, letter from the circuit clerk notifying him that the Rule 60(b) motion was set for a hearing on May 19, 1986 (exactly three years from the date of its filing). The letter concluded with this somewhat curious and ironic statement: "It will be necessary for you to be present with your attorney, if you have one. Mr. Scott Atkins [the guardian ad litem] does not represent you, he only represents unknown heirs" (as if to say, "Huey, you can not possibly be an unknown heir, because the court record in this case reflects the full names and addresses of you and each of your brothers and sisters, as well as that of William C. Bracknell, and the record reflects that each of you claims an interest in the subject property, as heirs at law of John Bracknell").
After the appearance of new counsel for Huey, the Rule 60(b) motion was set for hearing; it was denied on July 21, 1986. Huey appeals.
The threshold issue, of course, is whether the handwritten list of heirs furnished by Huey to the clerk's office on August 4, 1980, was, in legal effect (i.e., as contemplated by Rule 55, A.R.Civ.P.), an appearance of one or more of the "unknown" heirs of John Bracknell. The mere recitation of the facts, when taken in the context of the nature and character of the quiet title action, seeking to resolve outstanding known claims, cries out for an affirmative response to the question as posed. Indeed, so extreme are these facts in support of Huey's claim for relief that we declare, without reservation or hesitation, that the default judgment of October 24, 1980, is null and void.
Applying the most fundamental principles of fair play to these facts, we hold that Huey's actions in personally presenting the handwritten list of heirs to the clerk's office constituted an "appearance," as contemplated by Rule 55, A.R.Civ.P.; thus, because the three-day notice provision of Rule 55(b)(2) was violated, the trial court *591 was without discretion in the matter and erred as a matter of law in not granting Huey's Rule 60(b) motion. See Cockrell v. World's Finest Chocolate Co., 349 So. 2d 1117 (Ala.1977). For four recent cases indicative of this Court's policy of disfavoring default judgments, see Illinois Central G.R.R. v. Horton, 514 So. 2d 1283 (Ala. 1987) (reversing the trial court's failure to set aside a default judgment under Rule 55(c), A.R.Civ.P.); Bachner v. Citizens Bank, 512 So. 2d 93 (Ala.1987) (reversing the trial court's entry of a default judgment and directing that the judgment be set aside); Johnson v. Moore, 514 So. 2d 1343 (Ala.1987); and March v. Stringer, 518 So. 2d 65 (Ala.1987) (reversing the trial court's denial of a Rule 60(b), A.R. Civ.P., motion for relief from a default judgment).
Because the default judgment is void, and not merely voidable, we need not reach the appellee's argument with regard to the appellant's "unreasonable delay" in filing his Rule 60 motion, or the appellee's allegations of the absence of a meritorious defense. See Smith v. Clark, 468 So. 2d 138 (Ala.1985). Furthermore, the failure of the clerk to notify either Huey or the guardian ad litem of the entry of the default judgment pursuant to Rule 77, A.R.Civ.P., militates against the appellee's "unreasonable delay" contention.
Although we have grounded our holding on the limited issue of Huey's "appearance" in the case, we note that there are other grounds for setting aside the challenged default judgment; apparently the "appearance" of William C. Bracknell, as earlier referred to, was totally ignored in the plaintiff's application and affidavit for entry of default and in the final default judgment of October 24, 1980. Also, the three-day notice required by Rule 55(b)(2) was not given to the guardian ad litem, who was appointed and who filed a general denial on the day of the hearing on the plaintiff's application for a default judgment. Indeed, the record does not reflect that the guardian ad litem ever appeared personally at the hearing. It is obvious that he did not have time to examine the court file and prepare an appropriate response to the plaintiff's claim before the hearing, for it was not until he, on behalf of Huey and the other unknown heirs, filed the Rule 60(b) motion that he set out the facts relating to Huey's "appearance" almost 60 days before the entry of the default judgment.
The judgment, therefore, is reversed and the cause is remanded to the circuit court with instructions to set aside the default judgment and afford Huey Bracknell, on behalf of all heirs at law of John Bracknell, deceased, a hearing on the merits of the case.
REVERSED AND REMANDED WITH INSTRUCTIONS.
TORBERT, C.J., and SHORES, ADAMS and STEAGALL, JJ., concur. | November 13, 1987 |
9e2f46b5-e40c-49f5-a0fa-0d39ea1a1c93 | Hinson v. Center Court Productions | 514 So. 2d 1374 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1374 (1987)
Eddy R. HINSON
v.
CENTER COURT PRODUCTIONS and Prudential Insurance Company of America.
86-984.
Supreme Court of Alabama.
October 2, 1987.
*1375 Richard H. Ramsey III, Dothan, for appellant.
Herman Cobb of Buntin & Cobb, Dothan, for appellees.
JONES, Justice.
The plaintiff appeals from a summary judgment for the defendants in an action for fraud and breach of contract. We affirm in part, reverse in part, and remand.
In January 1986, Buchanan, an employee of Center Court Productions, approached Eddy Hinson to solicit Hinson's participation in an upcoming "Better Living Show" at a shopping mall in Dothan. Buchanan told Hinson that Hinson's business Interconnect Telecom Company, would be the only telecommunications systems company participating in the show. Buchanan also showed Hinson a letter from the mall management commending Buchanan on the previous year's show.
Hinson delayed making a decision until he had verified Buchanan's statements with the mall office. Several days later, however, Hinson signed a contract for participation in the show and gave Buchanan a check for $250. The contract, signed on January 27, 1986, gave Hinson a 10-foot by 10-foot display space in the show (to be held March 2-9, 1986) for a total rental fee of $500, with a balance of $250. At the bottom of the contract, in distinctive type and separate from the body of the contract, were the words "ALL CONTRACTS SUBJECT TO MALL APPROVAL."
Hinson began preparations for the show by purchasing approximately $4,000 of equipment to display, demonstrate, and sell. Three days before the show, however, Buchanan informed Hinson that Interconnect Telecom would not be allowed to participate in the show and that the home office of Center Court Productions would return Hinson's $250 rental payment.
In his deposition, Hinson stated that when he questioned Buchanan about the reason for the cancellation, Buchanan finally said that the GTE telecommunications company was responsible. Hinson had been "let go" from GTE several years before. Hinson also stated in his deposition that, according to Buchanan, GTE, which maintained a store within the mall, was a member of the mall's merchants association and could have disapproved Hinson's contract for participation in the show.
Hinson sued Center Court Productions for fraud and breach of contract. Center Court filed an answer denying all of Hinson's allegations and filed a motion for summary judgment. The trial court, after considering the pleadings, Hinson's deposition, the affidavit of Hinson's secretary, and the exhibits of record, granted Center Court's motion for summary judgment.
*1376 Hinson's Rule 59(e), A.R.Civ.P., motion was denied and this appeal followed.
Hinson argues that summary judgment was an inappropriate disposition of his tort claim because the reasonableness both of his activities in reliance on Center Court's representations and of Center Court's failure to notify Hinson of the contract's cancellation within a reasonable time before the show were factual questions to be resolved by the factfinder.
After careful review of the record, however, we find no factual evidence to support Hinson's claim of fraud against Center Court. The document giving Hinson the right to participate in the show clearly stated that the contract was subject to the mall's approval. Center Court, then, did not control, or advise the mall with regard to, the final approval of any contract for participation in the show. Therefore, based on the express language of the contract, Center Court, as a matter of law, could not be guilty of a misrepresentation to Hinson as to the approval of Hinson's participation in the show. It was Center Court's duty, as the "middleman," to solicit participants for the show and to obtain the execution of a proposed contract with each participant. The final approvalor disapprovalof those contracts, however, was exclusively within the authority of the mall association.
Further, under Alabama law, it was the duty of each participant to read and understand the terms of its contract and to act accordingly. See Webb v. Reese, 505 So. 2d 321 (Ala.1987); Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757 (Ala.1983). Because the instant contract made it clear that the final approval of each participant was controlled by the mall and not by Center Court, we find that Hinson acted unreasonably in not inquiring of the mall authorities as to the status of his participation in the show prior to his preparing for the show. Hinson's reliance on Center Court's assurance of Hinson's participation in the show was unjustified and, therefore, his claim for misrepresentation was properly disposed of by summary judgment. See Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757 (Ala.1983).
Turning to Hinson's contract claims, we first note that the issue here is not the judicial construction of a written instrumentan issue that, under appropriate circumstances, may be decided on motion for summary judgment. See Terry Cove North v. Baldwin County Sewer Auth., 480 So. 2d 1171 (Ala.1985). Indeed, in his brief to this Court, Hinson admits that the contract he signed was unambiguous and clearly stated that the mall[1] had the option of approving or disapproving the participation of the exhibitors.
In addition to the rights and duties imposed by its clear and unequivocal written terms, however, the Hinson/Center Court contract granted to the parties the right to any damages reasonably contemplated as a result of a breach of the contract. Therefore, the issue of Hinson's allegations of breach and of resulting consequential damages, in light of the question of the timeliness of the notice to Hinson, yielded a question of material fact, which the trial court was not authorized to resolve. See Rule 56(c), A.R.Civ.P.; Marshall Durbin Farms, Inc. v. Landers, 470 So. 2d 1098 (Ala.1985).
Factual inferences that could be drawn from the evidence must be resolved in favor of Hinson. Braswell Wood Co. v. Fussell, 474 So. 2d 67 (Ala.1985). The trial court, then, committed error when, on summary judgment motion, it engaged in a resolution of conflicting inferences in favor of Center Court with respect to Hinson's claim for breach of contract.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
TORBERT, C.J., and SHORES, ADAMS and STEAGALL, JJ., concur.
[1] We have used the terms "mall," "mall management," "mall office," and "mall association" as those words were used by the parties in their briefs. These terms are descriptive only and are not to be understood as correct legal designations of specific entities. | October 2, 1987 |
356c522d-2bb9-4582-a3f6-afb3838b59f5 | Seaboard System RR, Inc. v. Keen | 514 So. 2d 1018 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1018 (1987)
SEABOARD SYSTEM RAILROAD, INC.
v.
J.R. KEEN.
85-838.
Supreme Court of Alabama.
October 2, 1987.
*1019 L. Vastine Stabler, Jr., Michael C. Quillen, and Terri A. Dobell of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellant.
Francis H. Hare, Jr., Scott A. Powell, and James J. Thompson, Jr., of Hare, Wynn, Newell & Newton, Birmingham, for appellee.
ALMON, Justice.
This is an FELA action. The plaintiff, James R. Keen, was employed by the defendant, Seaboard System Railroad, Inc. The jury returned a verdict in favor of Keen for $500,000 and the trial court entered judgment on the verdict. The issues raised here relate only to the admission of certain evidence.
On May 21, 1984, Keen was a passenger in a company van delivering him and several other employees to their work stations in the Tilford Railroad Yard in Atlanta, Georgia. The van hit a large pothole in the road, causing Keen to bounce out of his seat and strike his head on the roof of the van. The blow caused injuries to Keen's neck and back. Keen was seen by a company doctor, who referred him to Dr. Walter Edwards, an orthopedic surgeon in Atlanta. Dr. Edwards treated Keen for approximately one month and then performed surgery in an attempt to correct the problem.
On October 10, 1984, Keen filed suit pursuant to the Federal Employers Liability Act, 45 U.S.C. § 51 et seq. (1970). About a week before trial, Keen was seen by Dr. Ralph Nichols, an orthopedic surgeon in Birmingham. Keen related what had happened to him and what symptoms he had, after which Dr. Nichols performed an examination of Keen. At trial a deposition taken of Dr. Nichols was read into evidence. Seaboard's attorney objected to the admission of Dr. Nichols's opinion of Keen's condition, claiming that, since Dr. Nichols had based his opinion, in part, on what Keen had told him, it was hearsay and inadmissible.
Seaboard also objected to the admission of the testimony of Dr. Fred Johnson, who testified as to Keen's lost future earnings. Seaboard argued that the method used by Dr. Johnson was based on before-tax earnings instead of after-tax earnings, as required by the FELA.
Seaboard claims that the testimony of Dr. Nichols should have been excluded because his opinion was based on information given to him by Keen and was thus, it says, inadmissible hearsay.
This Court held, in State Realty Co. v. Ligon, 218 Ala. 541, 543-44, 119 So. 672, 674 (1929):
Seaboard asserts that the general hearsay exception does not apply here because Keen did not see Dr. Nichols for treatment but only to prepare him to testify. Seaboard argues that under these circumstances the degree of reliability of Keen's statements to Dr. Nichols is not as high as it would have been if he had been seeking treatment. This argument for different rules for treating and consulting physicians is virtually precluded by the last paragraph quoted above from Ligon, which states that such questions go to the weight of the testimony unless it is incontrovertible that the facts on which the physician based his opinion were false.
Furthermore, such attempts to differentiate and exclude nontreating physicians' testimony have been criticized and largely abandoned. As expressed in a noted treatise:
"§ 293. Statements of Bodily Feelings, Symptoms, and Condition: (c) Statements Made to Physicians Employed Only to Testify.
"12 Rule 803(4) provides a hearsay exception for statements `made for purposes of diagnosis or treatment.' (Emphasis supplied)"
E. Cleary, McCormick on Evidence, pp. 841-42 (3d ed. 1984). (Footnotes omitted.)
Therefore, because these objections to the deposition of Dr. Nichols went to its weight and not its admissibility, the trial court did not err in allowing it into evidence.
Seaboard contends that the trial court erred in permitting certain testimony of damages that, it says, was inadmissible. The testimony that Seaboard claims was inadmissible was that of Dr. Fred Johnson, an associate professor of economics at the University of Alabama in Birmingham who has a Ph.D. in economics and a law degree. Dr. Johnson testified as to Keen's lost future wages. Seaboard argues that the figure calculated by Dr. Johnson, $341,888, did not take into consideration the effects of taxation. The United States Supreme Court has held that in determining the lost stream of income, the stream may be "approximated as a series of after-tax payments." Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 536, 103 S. Ct. 2541, 2550, 76 L. Ed. 2d 768 (1983). Keen asserts that Dr. Johnson did consider taxation in calculating the amount he testified to. During direct examination, Dr. Johnson testified:
It is clear from his testimony that Dr. Johnson did consider the effects of *1022 taxation in formulating his opinion as to the amount of lost future wages. Seaboard was given ample opportunity to cross-examine Dr. Johnson and could have presented evidence of its own as to lost wages to rebut his testimony. The trial court did not err in admitting Dr. Johnson's opinion testimony of lost future wages.
Seaboard's only arguments for reversal regard the admission of these items of evidence. Because the trial court did not commit reversible error in allowing this evidence, the judgment is affirmed.
AFFIRMED.
MADDOX, SHORES, BEATTY and ADAMS, JJ., concur. | October 2, 1987 |
d13fa34b-f3c8-4175-9536-57fd3beac2c3 | Martin v. American Medical Intern., Inc. | 516 So. 2d 640 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 640 (1987)
Lamar C. MARTIN
v.
AMERICAN MEDICAL INTERNATIONAL, INC.
86-401.
Supreme Court of Alabama.
October 23, 1987.
*641 John F. Kizer, Jr. of Kizer & Bennitt, Birmingham, for appellant.
John D. Clements, F.A. Flowers III, and Michael L. Lucas of Burr & Forman, Birmingham, for appellee.
BEATTY, Justice.
Appeal by plaintiff, Lamar C. Martin, from summary judgment in favor of defendant, American Medical International, Inc. ("AMI"), in plaintiff's action based upon fraud. We affirm.
While an employee of Rawlins Security Service in 1973, plaintiff was assigned to Brookwood Hospital in Birmingham. In 1974, the hospital initiated its own security service and hired plaintiff as a security guard. Plaintiff ultimately became chief of the hospital's security force.
In 1979, plaintiff injured his left knee and, in 1980, underwent surgery at Brookwood Hospital. All of his expenses were paid by the hospital. Upon his recovery from this surgery, and at his own request, plaintiff became a regular security guard on the second shift. Meanwhile, in 1982, Brookwood Hospital was purchased by AMI.
Later, in 1983, plaintiff injured his right knee. This injury also required surgery, which the hospital provided at no expense. After this surgery, plaintiff returned to work. Sometime thereafter, apparently in August 1983, plaintiff had a discussion with Ms. Jimmie Lou Brown, the hospital's director of safety and security. Plaintiff's account of that conversation follows:
This conversation was followed by the execution of a disability claim form, on plaintiff's request, by Ms. Brown. The form called for two physicians' reports, which were completed by Drs. Wise and Hardy. The forms were then delivered to the hospital's human resources department. In each physician's report, it was stated that plaintiff was not disabled. Plaintiff discussed his claim with Dave Phillips, who advised him of the necessity for a medical reevaluation before proceeding. Plaintiff had the hospital administrator intercede with Dr. Wise, who had previously operated on plaintiff's right knee; however, Dr. Wise did not respond, and plaintiff did not present to the hospital any further evidence of disability.
Ms. Brown testified that she "did not know that Drs. Wise and Hardy believed that Mr. Martin was not disabled"; "did not know that Mr. Martin would not qualify to receive those benefits"; and "did not know that Mr. Martin was not disabled." Even plaintiff himself testified that Ms.
*642 Brown was not "trying to hurt [him] or anything."
Plaintiff brought this action against AMI and Prudential Life Insurance Company, an insurer of AMI, in four counts. Two claims were asserted against AMI: one for wrongful termination and another for fraud. After the completion of discovery, the trial court granted each defendant's motion for summary judgment, and plaintiff appealed.
The only issue presented on appeal is whether the trial court erred in granting AMI's motion for summary judgment on plaintiff's fraud count. The gravamen of that claim is "that on or about the 8th day of August, 1983, the defendant represented to the plaintiff that defendant was going to place plaintiff on long term disability pursuant to a disability policy defendant had with Prudential Insurance Company."
This allegation is of a representation or promise to perform an act in the future, not unlike the fraudulent statements alleged in McIntyre Electric Service, Inc. v. South Trust Bank of Mobile, 495 So. 2d 1043 (Ala.1986), and Russellville Production Credit Ass'n v. Frost, 484 So. 2d 1084 (Ala.1986). Thus, as stated in P & S Business, Inc. v. South Central Bell Telephone Co., 466 So. 2d 928 (Ala.1985):
Indeed, in Frost, 484 So. 2d at 1086-87, this Court observed:
The record establishes that the only conversation plaintiff had with Ms. Brown was held when she processed his application for disability benefits. Plaintiff did not adduce any evidence that she, or anyone else with whom he discussed his claim, was acting other than as administrative conduits in processing his application. Indeed, the very claim form which he himself delivered to the physicians, as doubtless he knew, required physicians' assessment of his physical condition for employment. Plaintiff himself conceded that Ms. Brown's conduct was not hurtful to him. The most plaintiff could adduce was that "it [ill will] had to come from somewhere else."
In short, plaintiff has failed to present a scintilla of evidence that Ms. Brown or anyone else who may have stated, arguendo, that the hospital "was going to place plaintiff on long term disability" did so with the intent at that time not to do it and with an intent at that time to deceive him. To arrive at an opposite conclusion, upon the record, would be speculation upon the requisite element of intent. Accordingly, the trial court was not in error in granting *643 summary judgment on the plaintiff's claim of fraud.
Let the judgment be affirmed.
AFFIRMED.
MADDOX, ALMON, ADAMS and HOUSTON, JJ., concur. | October 23, 1987 |
971f7dd6-6d1a-4592-8d5d-5c61220d11e4 | KENNEDY BY KENNEDY v. Graham | 516 So. 2d 572 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 572 (1987)
Lisa R. KENNEDY, a minor who sues by her parents and next friends, Michael A. KENNEDY and Rose Kennedy
v.
Robert GRAHAM and Mary Charlene Graham.
84-836.
Supreme Court of Alabama.
October 2, 1987.
Rehearing Denied November 20, 1987.
Richard E. Browning of Cunningham, Bounds, Yance, Crowder, and Brown, Mobile, for appellant.
David F. Daniel of Brown, Hudgens, Richardson, Mobile, for appellees.
ALMON, Justice.
This is an appeal from a judgment for defendants in a personal injury action. *573 Lisa Kennedy, seven years old at the time of the accident, injured her arm while playing in the back yard of the residence owned by Mr. and Mrs. Robert Graham. Lisa, through her parents as next friends, brought this action against the Grahams. During the jury trial of this cause, the trial court suggested that Code 1975, § 35-15-1 et seq., might apply to the case and, after arguments, determined that it did and therefore directed a verdict on the negligence counts. The jury returned a verdict for the Grahams on the wantonness counts, and the trial court entered judgment thereon. The primary issues in this case relate to the duty of care owed by a landowner to a licensee.
Lisa Kennedy was injured when she climbed onto the roof of the Grahams' house with the intention of jumping off onto a trampoline in the Grahams' back yard. Lisa tripped on two nails that Mr. Graham had placed on the edge of the roof to hold the garden hose so it would spray on the trampoline. She fell onto the trampoline and broke her arm. The Grahams' daughter Holly was on the roof with Lisa, and their son Robby had been on the roof with his friend Bobby McKissick shortly before the girls went up. Several other neighborhood children were in the Grahams' yard playing on the trampoline. Mr. Graham was at home the whole day, and the accident occurred shortly after Mrs. Graham arrived home from work. Mrs. Graham heard footsteps on the roof and went to the back door, but by the time she got to the door some of the children were already there saying Lisa had fallen.
There was evidence that Mr. Graham had discovered his son Robby and perhaps Bobby McKissick on the roof on a previous occasion, at which time he had reprimanded them. There was also evidence that he had previously put Robby onto the roof and supervised him in placing the garden hose to spray downward and keep the children cool. There was no evidence, however, that he had allowed the children to play on the roof or that he knew that any of them had been on the roof on the day of the accident. The Kennedys argue that Mr. Graham should have heard Robby and Bobby when they were on the roof before the girls were. There was no evidence that he did hear them, however.
The evidence tended to show that the Grahams had required notes from the parents of children in the neighborhood stating that the children had permission to play on the trampoline, but that they had not obtained such a note from the Kennedys because the Kennedys had moved into the neighborhood only several weeks prior to the accident. Mr. and Mrs. Kennedy had told their children not to play on trampolines, but there was no evidence that the Grahams knew of this admonition or that the Kennedys knew about the trampoline at the Grahams' house.
The Kennedys' complaint alleged that the Grahams maintained an attractive nuisance on their premises, and that they
The general principles governing liability of landowners were summarized in Tolbert v. Gulsby, 333 So. 2d 129 (Ala.1976). Pertinent portions of that opinion are as follows:
"Under a negligence count, the duty owed by a landowner depends on the status of the injured party in relation to the defendant's land.... If the injured party is determined to have been a trespasser, the landowner owes only the duty not to wantonly or intentionally injure him.... `Under ordinary conditions trespassing children, or children on the land of another as bare licensees, occupy *574 the same position as trespassing adults.'... If plaintiff is found to have been on defendant's property with his consent or as his guest, but with no business purpose, he attains the status of licensee and is owed the duty not to be willfully or wantonly injured or not to be negligently injured after the landowner has discovered his peril."
Id., at 131 (emphasis added; citations omitted). See also Motes v. Matthews, 497 So. 2d 1121 (Ala. 1986). The gist of the Kennedys' argument is that the trial court erred in directing a verdict on the negligence counts of the complaint because, they say, the facts would support submission of those counts to the jury under the theory of negligently injuring after discovery of peril.
The Court in Tolbert adopted the Restatement (Second) of Torts § 339 (1965), as the standard to be applied, "regardless of whether the children are licensees or trespassers." Tolbert, supra, at 135. The Restatement section was quoted thusly:
Tolbert, supra, at 133-34. The Court in Tolbert reversed a summary judgment, with the following conclusion:
Id., at 135. The count at issue in Tolbert proceeded on the theory of "dangerous instrumentality," but the Court stated that "[t]his doctrine is based on a `straight' negligence theory." Id., at 132. The Kennedys' complaint at least arguably raises this issue, especially since the adopted Restatement standard makes no reference to the catchwords "dangerous instrumentality," but speaks only of artificial conditions involving an unreasonable risk and the duty of care attendant thereto. The trampoline, however, cannot be said to create an unreasonable risk of injury of which the children were unaware. In Weatherby v. Meredith, 341 So. 2d 139 (Ala.1976), this Court held that a swing set is not a dangerous instrumentality.
In any event, the trial court dispensed with any negligence claims when it directed a verdict on those claims based on Code 1975, § 35-15-1 et seq. Chapter 15 of Title 35 is entitled "Duty of Care Owed Persons on Premises for Sporting or Recreational Purposes." The entire chapter, prior to the addition of Article 2 (see below), read:
"§ 35-15-5. Right to go on lands of another without permission not created.
The Kennedys' position was and is that this chapter applies only to large open tracts. The trial court responded that the above-quoted provisions appeared to govern premises liability generally and therefore appeared to apply to the instant case. Beyond this dispute as to whether chapter 15 applies to the instant case, the Grahams argue that the trial court's application of these Code sections was harmless error, even if incorrect, because they were entitled to a directed verdict on the negligence counts even under the otherwise-existing standard of care.
Because we agree with the latter point, we decline to rule on whether the above-quoted Code provisions apply to situations such as this, i.e., the use of small residential lots for recreational purposes. We do make two observations in passing, however. One, we can see a difference in principle between large uninhabited tracts of land and small residential lots, a difference that would support a decision to limit liability for negligence in the first case but not in the second. There are sound reasons for not requiring an owner of a large tract to correct all dangerous conditions after he discovers them but still imposing liability on a homeowner who fails to correct dangerous conditions around his house after becoming aware of them.
Second, we note that the above-quoted provisions are now Article 1 of Chapter 15 and that the legislature has enacted similar provisions that are now codified as Article 2 of Chapter 15. Article 2 clearly does not apply to the instant case, because it speaks of "public recreational use," § 35-15-22, and recreational land open "to the general public," § 35-15-28. We see no reason why Article 2 should limit the application of Article 1, however, and on its face Article 1 is at least arguably susceptible to the interpretation placed upon it by the trial court. Nevertheless, we reserve the question of whether Article 1 could apply to facts such as those in the case at bar, because we find that there was not a scintilla of evidence of negligent injury after discovery of peril.
*576 There was no evidence that Mr. Graham ever allowed children to play on the roof. There was some evidence that he had discovered his son and Bobby McKissick on the roof one time, but that same evidence showed that he reprimanded the boys at the time. There was no other evidence of his ever knowing of any neighborhood children on the roof. The evidence that he may have supervised his son in placing the hose on the roof one time does not tend to show that he knew other children were endangered. The speculation that he may have heard his son and Bobby on the roof earlier in the day is not supported by any direct evidence and is not a sufficient basis for submitting the negligence claims to the jury. Perdue v. Gates, 403 So. 2d 165 (Ala.1981). Finally, we note that the evidence showed that as soon as Mrs. Graham became aware that there were children on the roof, she set out to protect them, but that the accident happened too quickly for her to prevent it.
Because the evidence would not support a finding of negligence, the trial court did not err in directing a verdict on the negligence claims. Therefore, the judgment is affirmed.
AFFIRMED.
MADDOX, BEATTY and ADAMS, JJ., concur.
HOUSTON, J., concurs in the result.
[1] The wording of § 35-15-3 ("failure to guard or warn against a dangerous condition, use, structure or activity") suggests that in § 35-15-1 the phase "or to give any warning of hazardous conditions, use of structures or activities" should perhaps have read "or to give any warning of hazardous conditions, use, structures, or activities." We need not attempt to resolve the apparent inconsistency between these two sections. | October 2, 1987 |
e2c84973-18dc-440a-af3d-daf215d7b584 | Sharp Electronics Corp. v. Shaw | 524 So. 2d 586 | N/A | Alabama | Alabama Supreme Court | 524 So. 2d 586 (1987)
SHARP ELECTRONICS CORPORATION
v.
Stanleigh C. SHAW, d/b/a Shaw Business Equipment, now known as Cheaha Business Machines
83-110.
Supreme Court of Alabama.
October 30, 1987.
*587 Fournier J. Gale III, Cathy S. Wright, Lee E. Bains, Jr., and James L. Priester of Maynard, Cooper, Frierson & Gale, Birmingham, and Robert D. Piliero, of Wender, Murase & White, New York City, and Andrew D. Rackear, Assoc. Gen. Counsel, Sharp Electronics Corp., Paramus, N.J., for appellants.
Andrew W. Bolt II, of Bolt, Isom, Jackson & Bailey, Anniston, for appellee.
PER CURIAM.
The original opinion in this case is withdrawn and the following opinion is substituted in its place. On application for rehearing, appellee, Stanleigh C. Shaw, vigorously contends that this Court's statement of facts in the original opinion was incorrect in certain aspects, and that this Court would reach a different conclusion if the facts were properly stated. The office of a rehearing is to call to the Court's attention any errors of fact, as well as of law, and to provide the Court with a final opportunity to see that justice is done. This Court should stand with an open mind throughout all stages of the appellate process, including the rehearing stage. In this case, we agree with the appellee that certain inaccuracies appeared in our original opinion.
Appellee, Stanleigh C. Shaw, attended a meeting of office machine dealers in Florida, where he first became acquainted with the photocopiers being introduced to the United States market by Sharp Electronics Corporation. There he saw the model 710 for the first time, having first gotten a pass to go to a hotel room where the machine was being demonstrated. Sharp had been marketing calculators, but had not been in the copier business prior to August 1975, when it introduced the model 710.
The Sharp 710 copier is a plain paper copier; that is, it will copy on virtually any kind of paper. For 20 years, until 1974 or *588 1975, Xerox Corporation was the only copier firm in the United States with a plain paper copier. Sharp was one of the first to enter the plain paper copier market after the Xerox patent expired.
Shaw was impressed with the good quality of the copies made by the 710, which he considered superior to the Xerox machines. At the Florida meeting, Shaw was told by the Sharp people that the machines were of good quality; that they would compete well on the open market, specifically with the Xerox 3100; and that they were capable of running up to 8,000 copies a month.
At that meeting Shaw and Phillips, Shaw's partner, decided to take the Sharp copier as another product line for their business to market in the Anniston area.
Sharp made other representations about the quality of the 710 copier in written materials furnished Shaw, which were in evidence as defendant's exhibits 4, 5, 7, and 18. After taking on the line, Shaw began marketing and servicing the Sharp copiers, relying upon the representations as to the competitive quality of these copiers that were made to him by Sharp's sales people and service people and in documents furnished by Sharp after the machines were received.
As alleged in Shaw's counterclaim, this lawsuit involves representations about three models of the Sharp photocopier. Sharp introduced model 720 as a replacement for the 710 in August 1976. The 720 was replaced by the 726 in November 1977. The model 726 was produced until December 1978.
Shaw testified at considerable length. He described the servicing of the three models and the experiences he had with his customers who owned them. Shaw said he relied upon the statements made to him about the model 710 when he first saw it, upon statements to him by Sharp's sales people and service people and upon statements made in Sharp's sales brochures, that the machines were of good quality, that they would produce without having much service, and that they would compare well with other makes of copiers. He also said that because the representations were not true, he was almost forced out of business.
Shaw identified a box of service records pertaining to Sharp copiers owned by his customers. That box was introduced into evidence as defendant's exhibit 21. Testimony also was given as to how each document in the box had been given a sequential number with the Bates numbering machine. Summaries were prepared from these service records and were used to calculate the number of service calls Shaw made for which he did not charge the owner of the copier. Using Shaw's hourly rate charge, a determination was made that Shaw's business lost $25,184.25. Defendant's exhibit 18 is a copy of those calculations.
On cross-examination, Shaw testified that it first occurred to him in the latter part of 1979, or January 1980, that Sharp's representation about the three models of the copier were not true. He said: "I think I started talking to other dealers, started buying machines through other dealers who had problems. Several of the dealers who were authorized Sharp dealers told me they had the same problem with the machines and they could not get them working. So at that time I started thinking there must be something defective about it." Shaw testified that "I would not have ordered that 726 in February 1979 if I had known that Sharp had misled me."
Over Sharp's objection, the trial court submitted to the jury both the issue of Sharp's claim of an amount due from Shaw, and Shaw's counterclaim based on misrepresentation. The jury returned a verdict in favor of Sharp for $4,224.35,[1] and in favor of Shaw on his counterclaim for $100,000.00.
*589 Suit was originally filed by Sharp Electronics on December 11, 1980, in the District Court of Calhoun County to collect a debt due on some 12 or 15 copying machines sold to the defendant, Stanleigh Shaw. The district court entered a judgment in favor of Sharp in the amount of $4,224.35, and Shaw appealed to the circuit court, where the case was tried to a jury, as previously stated. It was when this original suit on account was appealed to the circuit court that Shaw filed his counterclaim alleging fraud and misrepresentation as to the quality, serviceability, and productivity of Sharp's copiers; the fraud and misrepresentation were alleged to have occurred on August 17, 1981. Although Sharp's suit against Shaw for failure to pay his bill for copiers included claims related to several other models, the suit also included a claim for $2,111.73 for an SF 726 copier, and although Shaw, in his counterclaim, alleges that the fraud and misrepresentation occurred as to other copiers, he also claims that fraud and misrepresentation occurred as to the SF 726 copier. A copy of the invoice of Sharp Electronics Corporation to Shaw on this particular copier was, along with copies of other invoices, attached to the complaint.
The doctrine of relation back is applicable under the facts in this case because when Sharp filed suit against Shaw for the unpaid debt on the copiers, it sued in regard to a copier that had been the subject of representations at the Miami conference in August 1975. The parties do not dispute the fact that Sharp's suit against Shaw for nonpayment of the account was within the statute of limitations, and, likewise, there can be no dispute that if Shaw had not filed his claim concerning the SF 726 as a counterclaim to Sharp's action, he would have been forever barred from making that claim, because it arose out of a transaction to which plaintiff's complaint related. It is of no moment that the suit related back to the sales of other copiers that may not have been part of the same transaction; it is sufficient that the subject of one of the claims was a part of the same transaction.
The problem in this case arises from our Rule 13, A.R.Civ.P., dealing with counterclaims and cross-claims. Rule 13(a) provides:
Rule 13(c) provides:
Rule 13(b) provides:
According to the Committee Comments to Rule 13(c), the reason for the relation back of counterclaims was to harmonize Rule 13(c) with Title 7, § 355, Code of Alabama (1940). This statute is currently codified as Code 1975, § 6-8-84, and it provides:
As in the majority of American jurisdictions, Alabama case law has always applied the "indestructability-of-recoupment" doctrine. (Although a somewhat broader concept, the modern compulsory counterclaim is basically equivalent to common law recoupment. See A.R.Civ.P. 81(e).) For example, Harton v. Belcher, 195 Ala. 186, 190, 70 So. 141, 142 (1915), held:
As to other jurisdictions, "Almost without exception the cases which deal with recoupments, so recognized and named, run to the effect that if a defendant's claim is in fact a recoupment the general statutes of limitation do not defeat it; on the contrary it may be availed of defensively so long as plaintiff's cause of action exists." Annot., 1 A.L.R.2d 666, 667 (1948) (emphasis added).
In most jurisdictions, permissive counterclaims (basically equivalent to common law setoff, A.R.Civ.P. 81(e)), do not relate back. 6 Wright & Miller, Federal Practice and Procedure § 1425, p. 135 (1971): 51 Am. Jur.2d Limitation of Actions § 78, p. 657 (1970). The original version of § 6-8-84 was enacted to give relation-back effect to setoff in addition to recoupment. In time, the statute came to be applied to recoupment as well as setoff, Tennessee Valley Cotton Oil Mill v. Oakland Gin Co., 341 So. 2d 153, 156 (Ala.Civ.App.1976); thus, the 1975 recodification of the statute replaced the term "setoff" with "counterclaim" (i.e., all counterclaims, compulsory and permissive). However, the statute has never been read to alter the "indestructability of recoupment" doctrine.[2]
We admit that our cases have not clearly explained the rules of relation back of counterclaims.[3] As to our recent cases, since Campbell v. Regal Typewriter Co., 341 So. 2d 120 (Ala.1976), it is not apparent from the opinions that the results of any of our cases were incorrectwe just did not adequately set out the correct rules. We take this opportunity to set the record straight.
The rules of relation back of counterclaims are simply these:
(1) Relation back is invoked only when the counterclaim would be time-barred judged from the date the counterclaim was filed.
(2) All counterclaims, compulsory and permissive, relate back. Code 1975, § 6-8-84; Rule 13(c).
*591 (3) Omitted counterclaims allowed by the court pursuant to Rule 13(f) also relate back. Rules 13(c) and 15(c). See 1 C. Lyons, Alabama Practice § 13.10, p. 224 (1986).
(4) Counterclaims relate back to the date the plaintiff's (or claimant's) action accrued. Because the statute requires the counterclaim to be "a legal subsisting claim" on the date the plaintiff's action accrued, a counterclaim that accrues after the date the plaintiff's action accrues but becomes time-barred before suit is filed cannot be used offensively, that is, to exceed the amount of plaintiff's recovery, if any.
(5) Permissive counterclaims that were not legally subsisting claims on the date the plaintiff's action accrued (e.g., claims that became time-barred earlier) are subject to a statute of limitations defense.
(6) Compulsory counterclaims that were not legally subsisting claims on the date the plaintiff's action accrued (e.g., claims that became time-barred earlier) cannot be used offensively. Such compulsory counterclaims that are still untimely under our relation back rules can be used defensively, that is, to cancel out the amount won by the plaintiff. Examples: (a) P wins $20,000 and D wins $50,000 on an untimely compulsory counterclaim. Judgment for zero, a "wash". (b) P wins $20,000 and D wins $5,000. Judgment for P for $15,000. (c) P wins $20,000 and D wins $20,000. Judgment for zero.
Our recent cases have not adequately distinguished between this offensive and defensive use of compulsory counterclaims. By quoting only half of the rule, we left the impression that all compulsory counterclaims can always be used offensively. For example, Campbell v. Regal Typewriter Co., 341 So. 2d 120, 126 (Ala.1976), merely stated, "Counterclaims in the nature of recoupment are not defeated by the general statutes of limitations." Although literally true, such statements ignored the offensive/defensive distinction. This distinction applies in the majority of jurisdictions, but in almost all other states counterclaims relate back only to the date of the plaintiff's complaint. Also, most other jurisdictions do not allow permissive counterclaims to relate back at all. See J. Hoffman, Fictitious Party Practice and Relation Back of Amendments and Counterclaims, in Selected Problems in Alabama and Federal Civil Practice, Section I, published by Cumberland School of Law, The Institute for Continuing Legal Education, for a seminar on December 12, 1986.
Thus, the issue in this case is whether appellee/defendant Shaw can use his compulsory counterclaim offensively, or only defensively for the limited purpose of canceling out Sharp's $5,250.86 recovery. In other words, was Shaw's claim of fraud a legally subsisting claim at the time Sharp's breach of contract action accrued? Around 1975, Sharp made representations to Shaw about the quality and performance of Sharp's copiers. Shaw testified that it first occurred to him in the latter part of 1979, or in January 1980, that Sharp's representations about the three models of the copier were not true. Sharp filed suit against Shaw on December 11, 1980. The date of discovery of fraud is a jury issue. We restate the offensive/defensive use-of-the-counterclaim principle: Under the relation-back doctrine, Shaw's compulsory counterclaim may be used offensivelynot merely defensively as a creditif it was not time-barred on the date Sharp's cause of action accrued. There was evidence from which the jury could have determined that Shaw first discoveredor reasonably should have discoveredthe fraud no longer than one year prior to the accrual of Sharp's cause of action for breach of contract. Thus, Shaw's claim was not time-barred. Therefore, our doctrine of relation back of counterclaims would allow Shaw an offensive use of his counterclaim.
In our original opinion we concluded that the facts did not justify invocation of the doctrine of relation back, and, therefore, that the statute of limitations barred Shaw's counterclaim; thus, we concluded that the judgment of the circuit court had to be reversed and a judgment rendered for *592 Sharp on Shaw's counterclaim. Having so concluded, we found it unnecessary to address Sharp's other claims of error. Now realizing that this issue is not dispositive of the litigation, we are required to address the other contentions made on this appeal.
Although Sharp has made many claims of error, they chiefly concern matters that the jury, exercising its proper authority, could rightfully resolve. Sharp makes the following claims of error:
1. That the trial court erred in failing to rule that Stanleigh Shaw suffered no injury and had no standing to bring the counterclaim because the alleged representation was not made to him personally.
2. That Shaw failed to establish the essential elements of a fraud and misrepresentation claim.
3. That Shaw failed to establish the essential elements of a fraudulent concealment claim.
4. That there was no competent evidence of actual damages suffered as a proximate consequence of Sharp's alleged fraud.
5. That this Court should reverse Shaw's judgment outright, or grant Sharp a new trial because of the inadequacy of the record.
6. That the verdict of $100,000.00 indicates bias, passion, and prejudice on the part of the jury.
As we view this case, Sharp's main contention dealt with the relation back doctrine as it applies to compulsory and permissive counterclaims. Shaw's attorneys have competently and thoroughly discussed other claims of error, but we do not believe they deserve the minute attention we have given the relation back claim. For that reason we will deal with them as they interrelate one to the other.
Sharp's first claim, that the trial court erred in failing to rule that Shaw suffered no injury because the alleged representation was not made to him personally, is not borne out by the record. The record indicates that the representation was made directly to Shaw in 1975, at a demonstration room in a hotel in Miami. Although his partner was also in Miami at the time, the evidence shows that the jury could have concluded that the representation to Shaw was personal and that it was reiterated by the mailing of literature directly to Shaw, describing the efficiency, productivity, and reliability of the SF 710, later manufactured and restyled as the 710, the 710 itself being later manufactured and restyled as the 726, which was the subject of Shaw's counterclaim. Landy v. FDIC, 486 F.2d 139, 169 (3d Cir.1973).
Next, Sharp claims that Shaw failed to establish the essential elements of a fraud and misrepresentation claim. Those elements are: (1) that a false representation was made to the plaintiff; (2) that the false representation related to a material existing fact; (3) that the plaintiff justifiably relied on the representation to his detriment and (4) that actual damages were sustained as a proximate consequence of the representation. Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, 394 So. 2d 912, 914 (Ala.1981). We have already dealt with whether a false representation was made to the plaintiff. As to whether the representation here was merely puffery or trade talk, a matter calling for application of the doctrine of caveat emptor, or truly a representation concerning a material fact, we have said:
Fidelity & Casualty Co. of New York v. J.D. Pittman Tractor Co., 244 Ala. 354, 13 So. 2d 669 (1943). Here, the facts indicated that Sharp Electronics Corporation was posturing itself to launch into a new business to compete for that business as to which Xerox Corporation had no longer a monopoly because its patent had expired.
*593 The jury had the right to look at the statement in that context, and they apparently did, finding in favor of Shaw. Furthermore, there was adequate evidence for the jury to find that in reliance on the representation Shaw purchased copiers from Sharp, and as a result incurred a detriment in the sum of $25,184.25 and was almost driven out of business. The jury, having credible testimony concerning each of the elements of fraud and misrepresentation, did not err in returning a verdict in favor of Shaw on his counterclaim.
Sharp's third contention is that Shaw failed to establish the essential elements of a fraudulent concealment claim. Section 6-5-102, Alabama Code (1975), provides:
We are of the opinion that the trial judge was right to submit, under proper instructions, the fraudulent concealment claim. As we have pointed out, Sharp was attempting to get some of the business that Xerox could not necessarily hold because its patent had expired. For a long time, Xerox had held a monopoly in this field. Where there is a knowledge on the part of one party superior to that of another, we have, in some cases, held there was a duty to communicate the facts that the party with superior knowledge might have. The claim is that Sharp represented to Shaw that the Sharp copiers were able to compete favorably with the comparable Xerox copier and even had an edge on the Xerox copier. Judge Quattlebaum was right to submit to the jury the question whether, under those circumstances, Sharp was obligated to tell Shaw that these copiers had not been tested sufficiently. See Jim Short Ford Sales, Inc. v. Washington, 384 So. 2d 83, 86 (Ala.1980); First Virginia Bankshares v. Benson, 559 F.2d 1307 (5th Cir.1977).
Sharp's fourth argument is that the evidence of actual damages suffered as a proximate cause of Sharp's alleged fraud was not competent because it consisted of testimony by one of the lawyers for Shaw who sat at Shaw's counsel table; that lawyer testified that she computed the amount of actual damages from records of service calls made on defective copiers sold to Shaw by Sharp. The claim is that a lawyer cannot be lawyer, as well as witness, for his own client. However, the rule does not fit the facts of this case. There is no indication in this record that Shaw's lawyer testified to any facts that were not in evidence. Lawyers, indeed judges, can make mathematical calculations, exhibits, and the like from evidence in the record at trial, as well as on appeal, and the rule against lawyers and judges wearing two hats is not applicable. Inasmuch as the procedure utilized to arrive at the amount of actual damages is not condemned by our rules, there was competent evidence of actual damages suffered as a proximate result of Sharp's fraud.
Sharp's final contention is that the Court should reverse Shaw's judgment outright and grant it a new trial because of the inadequacy of the record. Suffice it to say that we are very much aware of the difficulties had in obtaining the record in this case. There are some gaps in the record. However, we are of the opinion that they do not materially impair our understanding of what transpired in the trial. The trial judge was of the opinion that the record was adequate. For a long time this Court superintended the preparation of the record, and we are satisfied that both sides have been adequately protected. For these reasons, we reject appellant's contention with reference to the record.
Because Sharp's motion for remittitur was denied without an opinion or findings of fact, we remand this cause for reconsideration of the issue of excessiveness, pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986). See, also, Harmon v. Motors Insurance Corp., 493 So. 2d 1370 (Ala.1986); Alabama Farm Bureau Mutual Casualty Insurance Co. v. Griffin, *594 493 So. 2d 1379 (Ala.1986). The trial court, within its discretion, may order a further hearing on the remittitur issue, or may comply with this order without a further hearing. In any event, the trial court shall report its findings and conclusions to this Court within 28 days of the issuance of this opinion.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION GRANTED; AFFIRMED IN PART; AND REMANDED WITH INSTRUCTIONS.
JONES, ALMON, ADAMS and HOUSTON, JJ., concur.
TORBERT, C.J., concurs specially.
MADDOX and BEATTY, JJ., dissent.
SHORES, J., recused.
STEAGALL, J., not sitting.
TORBERT, Chief Justice (concurring specially).
I agree that the application for rehearing should be granted, and I agree with the action taken on rehearing. However, in my opinion, the particular circumstances of this case, while sufficient to establish a duty to disclose in connection with the fraudulent concealment claim, do not establish the existence of a confidential relationship.
MADDOX, Justice (Dissenting).
I am of the opinion that the counterclaim in this case should have been dismissed for several reasons, but I list the two primary ones:
(1) It did not arise out of the same transaction giving rise to the underlying suit; therefore, it was at most a permissive counterclaim rather than a compulsory one, and was time barred.
(2) The counterclaimant failed to prove each and every element of his fraud claim.
This case started out in district court as a suit on an account. Sharp sued Shaw for money due on account for copiers he had bought and not paid for, and one of those was a model 726. Sharp won in the district court, but Shaw appealed to the circuit court, filed a counterclaim for fraud, and claimed that Sharp made representations to him in 1975 about the quality of a model 710, a different model from that sued on, and even though he was a member of a partnership at that time. That partnership was dissolved, and he was in business by himself at the time he entered into the sales contract out of which the original suit arose. He had bought the 726 model, on which the suit on the account was based, in 1979, but he claimed that the original representation made to him about the model 710, continued through two model changes, and over a 4-year-period of time, a change of business, and all after he knew that the copiers were not as represented, because he allegedly lost $25,000 as a result of having to service the copiers which were bought in the meantime by the business entities involved.
The majority is of the opinion that the alleged representation made to Shaw about the 710 copier in 1975 was made to him "personally," and not to the business which actually purchased the machines. The majority is also of the opinion that the subsequent model changes and the dissolution of the partnership and the starting of a proprietorship by Shaw is of no legal consequencethat it was a continuing representation to Shaw "personally." I cannot so interpret the facts and the law applicable. I believe the majority errs in reaching these conclusions.
I will set out the facts from Shaw's initial brief on appeal to show why I am of the opinion that Sharp's claim, which was based on the 1979 open account with Shaw, and Shaw's counterclaim, which was based on alleged "continuing misrepresentations that Sharp made to Shaw in 1974, and made to him continuously through 1979," arose out of separate and distinct transactions or occurrences, and that many of the copiers were not purchased by him but by a corporation or partnership for which he worked, and, therefore, were not compulsory counterclaims as the majority holds.
*595 Shaw's own version of the facts is, as follows:
"Sharp made other representations about the quality of the 710 copier in written materials furnished Shaw, which are in evidence as Defendant's Exhibits 4, 5, 7 and 18. After taking on the line, Shaw began marketing and servicing Sharp copiers, relying upon the representations as to the competitive quality of those copiers, which were made to him by Sharp sales people and service people, and in documents furnished by Sharp after the machines were received.
"* * *
"Shaw identified a box of service records pertaining to Sharp copiers owned by his customers. That box was introduced into evidence as Defendant's Exhibit 21. Testimony was given as to how each document in the box had been given a sequential number with a Bates numbering machine. Summaries were *596 prepared from those service records and used to calculate service calls Shaw made for which he did not charge the owner of the copier. Using the hourly rate Shaw charged, a determination was made that Shaw's business lost $25,184.25. Defendant's Exhibit 18 is a copy of those calculations.
Shaw's own statement of the facts, in my opinion, shows that he was a partner in a partnership when the first alleged representation was made to him, and it concerned a model 710, not a model 726, the model sued on. Furthermore, I am of the opinion that the evidence clearly shows that Shaw did not "personally" purchase the first machines from Sharp. Those machines were purchased by a different business entity which Shaw was associated with as an agent or partner. When Shaw purchased the machine sued upon, he was in business for himself; the partnership had been dissolved, and he had, by his own testimony, experienced much trouble with the Sharp machines which had been purchased by the business entities with which he was associated. Not until he was sued on account did he press a claim for an alleged misrepresentation which occurred several years before concerning other models sold by Sharp, not to Shaw "personally," but to other entities for which he worked as an agent or partner. Under this set of facts, can the counterclaim possibly arise out of the same transaction? I think not, and the majority errs by granting rehearing and affirming the judgment, even conditionally.
The disagreement between me and the majority is the same one which exists between the partieswas the counterclaim a permissive or a compulsory one? I think it was merely permissive, even assuming the claim belonged to Shaw, because he was not the purchaser of the first machines, as I read the undisputed evidence.
The positions of the parties are stated in their briefs.
Sharp argues, inter alia:
"`The plea claims for the deceit of plaintiff ... relating to an entirely different contract from that here involved. *597 That transaction was an insurance policy on the ship, and was a different contract from the indemnity contract which is the foundation of the action in this case. True, they were related, but separate and distinct.... It is not therefore a matter in recoupment, but of set-off.'
Shaw counters, and argues, in brief, as follows:
"`All counterclaims other than those maturing or acquired after pleading shall relate back to the time the original plaintiff's claim arose.'
"`When the defendant pleads a set-off to the plaintiff's demand, to which the plaintiff replies the statute of limitations, the defendant is nevertheless entitled to his set-off, where it was a legal subsisting claim at the time the right of action accrued to the plaintiff on the claim in suit.'
"`Representations continue to be operative where, on a fair construction of the arrangements between the parties, one of them is to be entitled to rely upon a certain representation until he receives notice to the contrary. Likewise, representations will continue in effect where they are made with a view to be relied upon in the future. Also, a representation made without *598 any restrictions has been regarded as continuing.'
This Court discussed recoupment and set-off in a similar case, Campbell v. Regal Typewriter Co., 341 So. 2d 120 (Ala.1976), as follows:
"`When the defendant pleads a set-off to the plaintiff's demand, to which the plaintiff replies the statute of limitations, the defendant is nevertheless entitled to his set-off, where it was a legal subsisting claim at the time the right of action accrued to the plaintiff on the claim in suit.'
"`... Recoupment differs from set-off mainly in that the claim must grow out of the same transaction which furnishes the plaintiff's cause of action, and is in the nature of a claim of right to reduce the amount demanded. Recoupment goes to the justice of the plaintiff's claim, while set-off is not necessarily confined to the justice of such particular claim....'
"See Norton v. Bumpus, 221 Ala. 167, 127 So. 907 (1930); Walker v. McCoy, 34 Ala. 659 (1859); and Mauldin, Montague & Co. v. Armistead, Ex'r, 14 Ala. 702 (1848).
Campbell v. Regal Typewriter Co., 341 So. 2d at 126.
On rehearing, Shaw, in brief, argues:
"In making purchases of the flawed copiers from Sharp, Stan Shaw relied upon the continuing misrepresentations that Sharp initially made to Shaw in 1974 and made to him continuously through 1979. Statements made to induce a sale are, in the absence of any restrictions, operative as to future sales of like commodities between the same parties. Goldsmith v. Stern (Sup.App.) 84 N.Y.S. 869 (1903). The effect of a deceit continues until discovery of the true facts. Anderson v. Tway, 143 F.2d 95, 101 (6th Cir.1944). Had Stan Shaw known he had been misled by Sharp, he would not have continued to make purchases. Stan Shaw was acting under Sharp's misrepresentations when he ordered the SF-726 copier from them on February 22, 1979; Sharp sued for the cost of this machine in its original District Court complaint; and Shaw counterclaimed due to this machine. Clearly, that is a single transaction *599 for purposes of the relation back doctrine under ARCP 13(c)." (Emphasis added.)
I believe the evidence shows that the initial sales by Sharp were not made to Shaw "personally;" consequently, the transactions, in my opinion, do not involve "the same parties."
Shaw contends that the Campbell v. Regal Typewriter Co. case supports his argument. I must respectfully disagree.
A casual reading of the Campbell v. Regal Typewriter case shows that there was one agreement executed by and between the same parties to the lawsuit. The factual situation there is far different from the one here. This case is more like this Court's case of Fidelity-Phenix Fire Insurance Co. v. Murphy, 226 Ala. 226, 146 So. 387 (1933).
In Fidelity-Phenix Fire Insurance Co. v. Murphy, 226 Ala. 226, 146 So. 387 (1933), plaintiff's steamboat, the Rose Murphy, along with its cargo, was lost at sea. Plaintiff sought to recover the cost of the lost cargo based on an indemnity contract with the defendant insurance company. The insurance company defended, claiming that it was not liable because the plaintiff intentionally sank the ship in order to recover under a separate insurance contract the defendant had issued against the loss of the ship itself. The insurance company also claimed damages because of money it had paid on the lost ship. This Court stated:
Fidelity-Phenix Fire Insurance Co. v. Murphy, 226 Ala. at 231-32, 146 So. at 391 (1933).
I believe that the facts of this case are more analogous to those in Fidelity-Phenix Fire Insurance Co. v. Murphy, supra.
There is an additional reason why this Court should not affirm any judgment against Sharp on Shaw's counterclaim. The elements of a fraud and misrepresentation claim are: (1) a false representation made to the plaintiff; (2) the false representation *600 related to a material existing fact; (3) the plaintiff justifiably relied to his detriment on the representation; and (4) actual damages were sustained as a proximate consequence and result of the representation. The majority cites Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, 394 So. 2d 912 (Ala.1981) in support of that legal proposition. That case involved a sale of an automobile. Suffice it to say that this case was not a transaction involving the sale of an automobile by a dealer to a customer (one transaction), but involved dealing between a manufacturer and distributor with different business entities. The majority then holds that "[a]s to whether the representation here was merely puffery, trade talk, or a matter of caveat emptor, ..." (emphasis added) depended on the facts and circumstances of this particular case. I agree that whether something is "puffery" depends on the facts of each case, but I fail to see how a claim by one photocopy maker that its product will outdo a competitor's is other than puffery and trade talk. Our whole economic system of free enterprise is based, in part, on claims made in brochures and advertising and statements by salesmen that one product is better than the other. The bargaining position between a car dealer and a customer, as in Crews, relating to one transaction is different from what we have here.[1]
In a proper case, a fraud action could lie, but I do not believe it did here.
Based on all of the above reasons, I must respectfully dissent.
[1] Sharp filed a post-trial motion to correct the judgment in its favor by adding interest of $1,026.51 to the amount of the jury's award. The trial court granted this motion and corrected the judgment to read "$5,250.86," which reflects the accrued interest on the debt. Shaw does not question the propriety of this judgment on appeal, and we therefore allow it to stand without discussion.
[2] At common law, a defendant could not have an offensive recovery on his recoupment claim. The defendant's recoupment recovery could not exceed plaintiff's recovery; defendant could use any recovery only up to the amount of plaintiff's recovery. In effect, recoupment was only an affirmative defense, and statute of limitations issues would not arise. Relation back doctrines became necessary when statutes altered common law rules and allowed affirmative recoveries under counterclaims. As to affirmative recoveries, see Code 1975, §§ 6-8-85, -86, originally enacted in the nineteenth century.
In any case, defendant was allowed at least defensive use of recoupment. This common law rule is still in our lawwe have referred to it as the "indestructability of recoupment" doctrine. Setoffs (now permissive counterclaims) did not relate back at common law; thus, an untimely setoff could not be used offensively. An untimely setoff could not be used defensively either, because setoff is not in the nature of a defense, as is recoupment. See Harwell v. Steel, 17 Ala. 372, 373 (1850).
A statute was required in order to grant relation-back effect to setoff. Our present § 6-8-84 was enacted on February 19, 1867. 1866-67 Acts of Alabama, No. 631, p. 676. The original act was entitled, "For the allowance of offsets in certain cases where statute of limitation is pleaded." This statute did not intend to alter the "indestructability of recoupment" doctrine, nor did it intend to allow at least defensive use of setoffs that were not legally subsisting claims on the date the plaintiff's claim accrued. See generally, Annot., "Claim Barred by Limitation as Subject of Setoff, Counterclaim, Recoupment, or Cross Bill," 16 A.L.R. 326 (1931).
[3] Neither have opinions of the Court of Civil Appeals been entirely accurate. See Adams v. Coblentz G.M.C. Truck Sales, a/k/a Coblentz G.M.C. Freightlines, Inc., 506 So. 2d 1023 (Ala. Civ.App.1987).
[1] This Court just recently released an opinion which held, as a matter of law, that the following statement a client testified a lawyer made to him, was not due to be relied upon:
"So, I asked Mr. Lawson, I said, `Mr. Lawson, you told me that if Lanny was out of the way you could get it into court, and you told me what all he has done wrong and all, but I am not going to fire him, not until you tell me whether or not you can get my case into court,' and he said, `Dewayne, I will promise you I can get it into court. I have done talked to the Judge, and I will promise you a million dollars, your part,' and he said, `It will not be no year or two like you have been having to wait.'"
Lawson v. Cagle, 504 So. 2d 226 (Ala.1987). | October 30, 1987 |
211a882b-3ab0-4109-a35f-312984792cea | Hammond v. Brooks | 516 So. 2d 614 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 614 (1987)
Donald H. HAMMOND and Elizabeth Hammond
v.
Eulalia T. BROOKS.
86-542.
Supreme Court of Alabama.
October 16, 1987.
Roscoe Roberts, Jr., of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellants.
David Craddock, Huntsville, for appellee.
*615 MADDOX, Justice.
The issue presented on appeal is whether a trial court can disregard a stipulation signed by all parties and filed with the clerk to dismiss the case without prejudice, and enter an order dismissing the case with prejudice.
This appeal is from a voluntary dismissal made pursuant to Rule 41(a), Ala.R.Civ.P. Donald M. Hammond and Elizabeth Hammond filed suit in the Circuit Court of Madison County in March 1983, against Eulalia Thetford Brooks and Norman Stephens, alleging fraud and misrepresentation in the sale of a residence. A default judgment was entered against Brooks on May 12, 1983, and the trial court assessed damages of $21,939. A motion to set aside the default judgment was filed by Brooks, and the trial court granted it.
The case was not put back on the trial court's docket until 1986. At that time, a pretrial conference was scheduled for September 1986, and Norman Stephens was dismissed as a defendant. On December 1, the trial court called the case for trial. The attorneys for the parties, however, stated that a settlement of the case had been tentatively reached, but that the settlement was subject to ratification by the insurance carrier. The attorneys requested a continuance, which the court denied. The case was called for trial on December 3, 1986, at 9:30 a.m., but the parties were given until 1:30 to prepare for trial.
Prior to the time the case was called for trial, at 1:30, a stipulation of dismissal, without prejudice, was signed by all parties appearing in the action. The stipulation was then filed with the clerk of the Madison County Circuit Court. At 1:30 p.m., the parties presented the court with a copy of the stipulation filed with the clerk. The court then asked the parties whether they were ready for trial; both attorneys answered no, and the following transpired:
The trial court's written order dismissing the case with prejudice was filed on January 14, 1987. The Hammonds appeal from that order.
Rule 41(a), Ala.R.Civ.P., provides:
In Bevill v. Owen, 364 So. 2d 1201 (Ala. 1979), this Court stated the following regarding Rule 41:
"ARCP 41(a)(1) provides two methods by which a case may be voluntarily dismissed without an order of court. The first method is voluntary dismissal by the plaintiff. This requires the filing of a `notice of dismissal' by the plaintiff, *616 before service by the adverse party of an Answer or Motion for Summary Judgment, whichever occurs first. Here, Bevill had filed a Motion for Summary Judgment on the count seeking injunctive relief. The second method of dismissal without order of court is by stipulation."
The issue in this case has not been previously examined by this Court. The committee comments to Rule 41 state that this rule is substantially the same as the federal rule, and we normally consider federal cases interpreting the federal rules of procedure as persuasive authority. Bracy v. Sippial Electric Co., 379 So. 2d 582 (Ala. 1980).
Rule 41(a)(1)(ii) was expressly applied in First National Bank of Toms River, N.J. v. Marine City, Inc., 411 F.2d 674 (3d Cir.1969). In that case, both a complaint and a third-party complaint were pending, and all of the parties to the third-party action filed a stipulation of dismissal. The Court held:
Other federal courts interpreting Rule 41(a) have stated that voluntary dismissals automatically terminate the action upon the filing of the dismissal with the clerk. No order of the court is required. Scam Instrument Corp. v. Control Data Corp., 458 F.2d 885 (7th Cir.1972); Miller v. Reddin, 422 F.2d 1264 (9th Cir.1970).
We are of the opinion that the trial court erred when it dismissed this case with prejudice. All of the requirements of Rule 41(a)(1)(ii) were met by the parties in this case. When the stipulation of dismissal without prejudice was signed by all persons appearing in the action and was filed with the clerk of the Circuit Court of Madison County.
We specifically note that the stipulation of the parties that the dismissal would be without prejudice is consistent with the provisions of Rule 41, which provides that "[u]nless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice." Here, because the parties specifically provided that the dismissal was "without prejudice," the court was without authority to change the stipulation to make the dismissal with prejudice. The court, therefore, erred.
The judgment of the trial court is due to be, and it hereby is, reversed.
REVERSED AND REMANDED.
TORBERT, C.J., and JONES, ALMON and HOUSTON, JJ., concur. | October 16, 1987 |
988927bf-042c-4d47-960b-86b853cc0309 | American States Ins. Co. v. Cooper | 518 So. 2d 708 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 708 (1987)
AMERICAN STATES INSURANCE COMPANY
v.
James H. COOPER and Lakeside Properties of Auburn.
CONSTITUTION STATE INSURANCE COMPANY
v.
James H. COOPER and Lakeside Properties of Auburn.
86-986, 86-987 and 86-1021.
Supreme Court of Alabama.
November 6, 1987.
Rehearing Denied December 23, 1987.
Robert S. Lamar, Jr., of Lamar & McDorman, Birmingham, for appellant American States Ins. Co.
Richard A. Ball, Jr., and Joana S. Ellis of Ball, Ball, Duke & Matthews, Montgomery, for appellant Constitution State Ins. Co.
Joe Espy III of Melton & Espy, Montgomery, for appellees.
SHORES, Justice.
These are appeals from a declaratory judgment. Plaintiffs James H. Cooper and Lakeside Properties of Auburn sought declarations of insurance coverage with respect to two underlying lawsuits against them. The underlying suits arose from the sales of two apartment complexes in Lee County.
In the first suit, Lakeside, Ltd., purchasers of one complex, allege that the sellers, James Cooper and Lakeside Properties of Auburn, a general partnership, misrepresented the number of units that were preleased, and that Cooper assured them that, based on present and anticipated market conditions, the complex would always be fully occupied. They contend that the representations were made intentionally with knowledge, recklessly without knowledge, or innocently by mistake. As injuries, the purchasers claim that they lost part of their investment and lost profits that they would have made had the complex been as represented, that their credit standing was *709 damaged, and, further, that they suffered mental anguish.
The second action was brought by the purchaser of a second apartment complex, sold by James H. Cooper and Lakeside, Ltd. The purchaser alleged that the age of the complex, as well as its general condition, was misrepresented to him by Cooper, and, that as a result, he, the purchaser, suffered mental anguish and economic loss. The complaint alleges that these misrepresentations were made intentionally with knowledge, recklessly without knowledge, or innocently by mistake.
Both insurers, American States Insurance Company and Constitution State Insurance Company, contend that the above-stated allegations are not covered under the provisions of their policies issued to Cooper. The trial court held otherwise, and ordered the two insurers to defend and indemnify Cooper with regard to the misrepresentation claims. The insurers appealed. We affirm, and adopt the well-reasoned order of Judge Phelps as the opinion of this Court.
"The Plaintiff in Lakeside Properties v. T & H Properties (the T & H suit) sues to collect $83,200.00, interest, costs, and attorney's fees which Plaintiff alleges are due and owing on a note and guaranty agreement executed by T & H Properties on July 31, 1985.
*710 "The Plaintiff in Patel v. Lakeside Properties of Auburn (the Patel suit) alleges that in November 1985 he purchased an apartment complex from Cooper. He alleges that this purchase was made in reliance upon misrepresentations by Cooper to the effect that the apartment complex was 10 years old and in very good condition; he also alleges that Cooper failed to disclose that the complex was in need of repair. Patel further alleges that he has suffered economic losses and mental anguish as a result of the misrepresentations.
"`The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage B. property damage to which this insurance applies caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage....' (Emphasis added.)
"`"occurrence" means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damages neither expected nor intended from the standpoint of the insured .... "`"bodily injury" means bodily injury[,] sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom....' (Emphasis added)
"The Constitution policy is quoted in pertinent part as follows:
"`"OCCURRENCE" means:
"`1. With respect to Personal Injury and Property Damage, an accident, a happening, an event, or a continuous or repeated exposure to conditions which results during the policy period in Personal Injury or Property Damage neither expected nor intended from the standpoint of the Insured. All such exposure to substantially the same conditions shall be deemed one occurence....
"`"PERSONAL INJURY" means:
"`1. Bodily injury, sickness, disease, disability, shock, fright, mental anguish, and mental injury, including death resulting therefrom and care and loss of service resulting from such Personal Injury....' (Emphasis added [by Judge Phelps])
The trial court later responded to the defendants' postjudgment motions as follows:
"`The parties agree and there is no question but that American States Insurance Company is the primary carrier and that Constitution State Insurance Company is the excess carrier. The Plaintiffs in the underlying damage cases have alleged that they suffered mental anguish. The responsibilities of the primary and excess carriers as set forth in the January 26, 1987, Order of this Court and hereinafter set forth are, therefore, with regard to the damages presently before the Court, i.e., mental anguish. If other damages are hereafter claimed, the Court grants leave to any affected party to seek additional declaratory judgment relief.
"`It is therefore,
"`ORDERED, ADJUDGED and DECREED as follows:
"`1. [That] Defendant American States Insurance Company be and the same is hereby required to defend the Plaintiffs, James H. Cooper and Lakeside Properties of Auburn, in the suits styled as follows: Lakeside, Ltd v. Lakeside Properties of Auburn and Patel v. Lakeside Properties of Auburn.
"`2. [That] Defendants American States Insurance Company and Constitution State Insurance Company [are required to] indemnify the Plaintiffs in the above lawsuits, as primary and excess insurers, respectively, in accordance with the insurance contracts in evidence.
"`3. All other aspects of Defendants' motions are DENIED.'"
AFFIRMED.
JONES, ADAMS and STEAGALL, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
I concur with the majority opinion's holding that the insurance companies do have a contract duty to defend and indemnify the insureds under the policies at issue. However, my concurring should not be understood as agreeing that the defendants in the underlying lawsuits have any legal liability for mental anguish arising from the alleged misrepresentations. | November 6, 1987 |
34c0aab3-c0a3-4b78-b8a1-720156a37a80 | HAMER BY AND THROUGH HAMER v. Nelson | 516 So. 2d 1381 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 1381 (1987)
Brandon Chase HAMER, a minor, who sues By and Through his mother and next friend, Connie HAMER; and Connie Hamer, individually
v.
Harold Dawson NELSON.
86-194.
Supreme Court of Alabama.
October 30, 1987.
*1382 John W. Haley of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
William J. Donald and William J. Donald III of Donald, Randall, Donald & Hamner, Tuscaloosa, for appellee.
STEAGALL, Justice.
This is an appeal by plaintiffs Brandon Chase Hamer, a minor, who sues by and through his mother and next friend, Connie Hamer, and Connie Hamer, individually, from a judgment based on a partial directed verdict in favor of defendant Harold Nelson. We reverse.
This lawsuit, based on theories of negligence and wantonness, arose from a motor vehicle accident that occurred on April 27, 1984, around 4 p.m. on Eastern Valley Road in Tuscaloosa County near the Jefferson County line.
Brandon Hamer suffered personal injuries when the three-wheel Honda cycle (an off-road vehicle) he was operating was struck by a Ford Mustang automobile being driven by the defendant, Harold Nelson. Hamer at that time was 15 years and 10 months of age and lived near the accident scene. Eastern Valley Road is a paved, two-lane county road that runs north and south. Going south (the direction Nelson was traveling) the road goes from Jefferson County into Tuscaloosa County.
Just prior to the accident, Hamer had been operating his three-wheel vehicle on Eastern Valley Road and had exited the paved road onto a gravel road. He then turned his cycle around and stopped. At this point he was facing Eastern Valley Road; he looked to his right and then to his left to check for approaching traffic before re-entering the paved road. To his right, Hamer observed a van approaching in the northbound lane. While waiting for the van to pass, so that he could pull onto the roadway behind the van and proceed in the same direction as the van, Hamer looked to his left. His view in this direction (i.e., checking for traffic approaching in the southbound lane) was obstructed by the concrete abutment of a bridge located almost adjacent to the point where the gravel road intersects with Eastern Valley Road. The two lanes of Eastern Valley Road cross this bridge. Believing that no traffic was approaching in the southbound lane (from his left), Hamer was about to proceed onto the roadway, crossing the southbound lane, turning to his left into the northbound lane. Defendant Nelson's vehicle, however, was proceeding in the southbound lane and was crossing the bridge at the moment Hamer looked to his left to check for approaching southbound traffic.
Not knowing that Nelson's vehicle was approaching, because of his obstructed view, Hamer pulled into the roadway and was struck by Nelson's vehicle. Before the impact, Nelson, upon seeing Hamer's cycle directly in front of him in the roadway, immediately applied his brakes and jerked his steering wheel to the left. Hamer, upon hearing Nelson's tires squealing, looked, saw Nelson's vehicle, and accelerated the cycle in an attempt to move over into the northbound lane. Upon impact, Hamer was thrown onto the hood of Nelson's car and was injured. Nelson's car slid off the road and the cycle turned over in the road. The property damage to the two vehicles was minor.
*1383 The plaintiffs subsequently filed a personal injury action against Nelson in the Circuit Court of Jefferson County, seeking $250,000 in damages. Upon timely motion by Nelson, the action was transferred to the Circuit Court of Tuscaloosa County. The complaint averred that Nelson was guilty of negligence and wantonness in connection with the accident. Nelson denied the allegations and pleaded contributory negligence on the part of Brandon Hamer. At trial, following the close of the plaintiffs' evidence, Nelson moved for a directed verdict on the issue of wantonness, and the motion was granted. Plaintiffs objected. Nelson subsequently put on his evidence as to the negligence claim and then moved for a directed verdict on this issue as well. This motion was denied and the case went to the jury on the issue of negligence only. The jury returned a verdict in favor of defendant Nelson.
The sole issue here is whether the trial court erred in granting the directed verdict in favor of the defendant on the claim of wanton conduct (i.e., whether there was a scintilla of evidence to support the plaintiffs' claim, thereby requiring the trial court to submit the claim to the jury).
A corollary issue necessarily arises here as to the applicable standard of appellate review in the context of this case: a directed verdict in favor of the defendant, granted at the close of the plaintiffs' proof, which does not dispose of the entire case. We will first address the applicable scope of our review. It has been generally held that:
Thomaston v. Thomaston, 468 So. 2d 116, 119 (Ala.1985). The authorities upon which this proposition is based, however, consistently involve a motion for directed verdict in a procedural posture that can be distinguished from the procedural posture of the motion in the instant case. In Beloit Corp. and in Caterpillar Tractor Co., supra, the defendant's motion for directed verdict was denied; here the motion was granted. Moreover, the opinion in Beloit Corp. does not indicate at what point the motion for directed verdict was made. The facts of Caterpilllar Tractor Co. clearly indicate that the defendant there moved for a directed verdict not only at the conclusion of the plaintiff's case but also at the close of all the evidence, thereby "opening the door" for appellate review of the entire record. Indeed, in Thomaston, supra, the verdict was directed at the close of all the evidence. Here the defendant's motion for directed verdict was made at the close of the plaintiffs' case and was granted.
The defendant/appellee argues that our review is limited to the evidence adduced prior to entry of the directed verdict. We agree, and therefore hold that where a partial directed verdict is granted to the defendant, at the close of the plaintiffs' evidence, which disposes of a particular issue but not the entire case, the scope of appellate review is necessarily restricted to the evidence in the record at the time the verdict was directed. To hold otherwise would, as the appellee points out, allow additional evidence that was not before the trial court at the time the motion was considered to "come in behind" the ruling on the motion and thereby influence the reviewing appellate court. We would point out that this result is consistent with the holdings of this Court in regard to the scope of appellate review of a summary judgment:
"In determining the propriety of summary judgment, i.e. whether there exists any genuine issue of material fact, we are limited in our review to the same factors considered by the trial court when it initially ruled on the motion, *1384 Ex parte Bagby Elevator & Electric Co., Inc., 383 So. 2d 173 (Ala.1980), and on such a motion the trial court can consider only the material which is before it at the time of submission of the motion. Stallings v. Angelica Uniform Co., 388 So. 2d 942 (Ala.1980)." (Emphasis supplied.)
Prudential Ins. Co. of America v. Coleman, 428 So. 2d 593, 598 (Ala.1983).
It is well established that "a directed verdict is proper only where there is a complete absence of proof on an issue material to the claim or where there are no disputed questions of fact on which reasonable people could differ." Ritch v. Waldrop, 428 So. 2d 1 (Ala.1982). Moreover, in considering the motion for directed verdict, the trial court must allow an issue to "go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes [so much as] a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint," Kilcrease v. Harris, 288 Ala. 245, 259 So. 2d 797 (1972), and, "[i]f any reasonable inference drawn from the evidence proves to be adverse to the moving party, a motion for directed verdict is due to be denied." Quillen v. Quillen, 388 So. 2d 985, 988 (Ala.1980).
Wanton conduct has been defined by this Court as:
Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So. 2d 505, 506 (1946). "What constitutes wanton misconduct depends upon the facts presented in each particular case." Pate v. Sunset Funeral Home, 465 So. 2d 347 (Ala.1984). "Wantonness may arise [when one has] knowledge that persons, though not seen, are likely to be in a position of danger, and with conscious disregard of known conditions of danger and in violation of law brings on the disaster." Lewis v. Zell, 279 Ala. 33, 181 So. 2d 101 (1965). But "[k]nowledge need not be shown by direct proof. It may be made to appear, like any other fact, by showing circumstances from which the fact [of] actual knowledge is a legitimate inference." Griffin Lumber Co. v. Harper, supra, 247 Ala. at 620, 25 So. 2d at 508.
In applying these established guidelines, we conclude that there was a scintilla of evidence to support the plaintiffs' claim of wantonness. The evidence before the court at the time of the defendant's motion for directed verdict included several photographs depicting the accident scene. These photographs, coupled with the testimony of the plaintiffs' witnesses, established a disputed issue of material fact as to which reasonable persons could draw differing inferences.
Although there were no eyewitnesses to the accident other than the two involved in it, plaintiffs called as witnesses two persons, Rodney McCully and Barbara Smith, who lived on Eastern Valley Road near the accident scene, both of whom arrived at the scene shortly after the accident occurred. Both testified as to remarks purportedly made by the defendant at the scene regarding the speed of his vehicle at the time of impact. On direct examination, Rodney McCully testified:
"Q Did you hear any conversation between the persons there?
"Q I heard Harold say that he was going 55 to 60. I'm not sure who he was talking to.
Barbara Smith similarly testified, as did plaintiff Brandon Chase Hamer. Brandon Hamer, in describing what transpired at the accident scene immediately following the collision, testified as follows:
"A All I remember, I asked him, I said, `You know, just out of curiosity, how fast were you going?' He said, `About fifty-five or sixty.'"
This was uncontroverted evidence at the close of the plaintiffs' proofs, going to show the speed of the defendant's vehicle. Rodney McCully also testified that he observed skid marks, left by the defendant's vehicle, "about five or ten yards" in length. It was for the jury here to determine the credibility of these witnesses, drawing from the evidence whatever inferences were necessary in determining the speed of the defendant's vehicle. Although proof of an illegal speed does not necessarily prove wanton misconduct, as discussed infra, the speed of the defendant's vehicle in the context of this case is necessarily one of the factors that a jury would consider in its determination of the issue of wantonness.
This Court has had, upon its view of the record, the benefit of viewing the photographs of the accident scene and the adjacent area. It is somewhat difficult to describe the area in this opinion. The two-lane road upon which this accident occurred is a rural road. Near the scene and facing southbound traffic, there is a sign indicating a speed limit of 35 or 40 m.p.h.[1] Closer to the bridge, traveling southward, there is a sharp curve and the road then slopes downward into a "straightaway" stretch heading toward the bridge. The defendant's answers to interrogatories, which had been introduced, revealed that the defendant, upon traveling down this slope and proceeding along the "straightaway," observed Hamer stopped on the cycle a few feet from the road's edge. The curve is marked by signs indicating a speed limit of 20 m.p.h. and by "arrow" signs indicating a sharp curve. Thereafter, in the direction of the bridge, is a "narrow bridge" sign. The bridge itself is marked with striped warning signs. It is also difficult to explain in this opinion the angle at which the plaintiff sat on his cycle on the opposite side of the bridge from the defendant's vehicle, but the photographs suggest that because of the grade of the gravel road, his vision to his left was partially obscured by the concrete abutment of the nearby bridge.
Based on these facts, the defendant's speed was a question of fact to be determined by the jury. Depending upon its determination of that question, and considering the totality of the circumstances, the jury could have concluded that the defendant was greatly exceeding the posted speed limit and had made no effort to reduce his speed even though he had passed a number of advisory and warning signs.
The appellee urges that proof of an illegal or excessive speed alone does not necessarily constitute proof of wanton misconduct. Mink v. Brown, 276 Ala. 3, 158 So. 2d 647 (1963). While we agree with this principle, basic to our inquiry in the instant case is the holding of this Court in Smith v. Cullen, 270 Ala. 92, 97, 116 So. 2d 582 (1959):
"`* * * The rate of speed alone does not constitute willful or wanton negligence. Northern Alabama R. Co. v. McGough, 209 Ala. 435, 96 So. 569 [(1923)]. There must exist the other necessary elements of such culpable act or the failure to act, in such circumstances of time, place and knowledge on the part of defendant of the peril that imposed the duty to act or refrain from acting to cause the injury.' Callaway v. Griffin, 245 Ala. 598, 602, 18 So. 2d 547, 549 [(1944)].
The trial court's judgment based on the directed verdict in favor of defendant Nelson on the wantonness count is reversed, and the cause is remanded for a new trial on that count. See Burns v. Moore, 494 So. 2d 4 (Ala.1986).
REVERSED AND REMANDED.
TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur.
[1] There was conflicting testimony regarding the speed limit posted on this sign. | October 30, 1987 |
8caeb9c6-2d84-4691-a5d0-a744dd7d551b | Holland v. FIRST NAT. BANK OF BREWTON | 519 So. 2d 460 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 460 (1987)
Jessie HOLLAND and Marvin Holland
v.
FIRST NATIONAL BANK OF BREWTON.
85-1463.
Supreme Court of Alabama.
December 18, 1987.
*461 William D. Melton, Evergreen and Windell C. Owens, Monroeville, for appellants.
Stephen E. Clements of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellee.
BEATTY, Justice.
This is an appeal by the plaintiffs, Jessie Holland and Marvin Holland, from the trial court's denial of their motion for a new trial following a jury verdict, and judgment thereon, in favor of the defendant, First National Bank of Brewton ("Bank"), in plaintiffs' action for personal injuries and loss of consortium. We affirm.
On November 16, 1984, Jessie Holland rode in an automobile with a friend, Barbara Pugh, to a branch of the Bank they each had business to conduct. Mrs. Pugh parked her automobile in a parking space directly in front of the Bank's front door. The front end of Mrs. Pugh's automobile extended over approximately one-half the width of the sidewalk leading to the Bank's front door. The two women entered the Bank, completed their business, and exited the Bank, returning to Mrs. Pugh's automobile. As they approached the automobile, Mrs. Holland had to step across the edge of a flower bed adjacent to the sidewalk, because the automobile blocked too much of the sidewalk to allow easy passage. In that process, Mrs. Holland sustained a fall, hitting the concrete with her face, body, and legs, suffering severe injuries as a result.
Following her fall, Mrs. Holland and her friend looked around to see what had caused Mrs. Holland to fall. They saw a "pipe" located next to the sidewalk, two to four inches above the level of the sidewalk. This "pipe" was a flagpole holder placed in the flower bed by the Civitan Club with the Bank's permission.
Plaintiffs filed this negligence action against the Bank, seeking compensatory damages for Mrs. Holland's injuries and Mr. Holland's loss of Mrs. Holland's consortium. On the day of trial, the Bank filed a motion in limine, asking the court "to instruct, direct and order each of the plaintiffs, their witnesses and their attorneys, not to mention, refer to, interrogate concerning, argue or mention in any way, either directly or indirectly, during the course of the trial, the fact that the defendant has [since the accident] relocated the American flag holder which is the subject of this litigation ... without first securing the prior permission of this court removed from the hearing of the jury." (Emphasis added.)
The trial court granted the Bank's motion in limine, over plaintiffs' objection. Thereafter, on two occasions during the trial of the case, the plaintiffs attempted to go into, directly or indirectly, the fact that the Bank had relocated the flagpole holder after the occurrence. Plaintiffs were not, however, successful in their attempts. The jury returned a verdict for the Bank, and the trial court denied plaintiffs' motion for new trial. This appeal followed.
The only issue raised by the plaintiffs is stated as follows in their brief:
No other issues, errors, or grounds for reversal are raised by the plaintiffs.
Plaintiffs concede the general rule that subsequent remedial measures taken by a defendant are inadmissible "as tending to show the defendant's antecedent negligence." Hyde v. Wages, 454 So. 2d 926 (Ala.1984). Plaintiffs, nevertheless, argue that such evidence in this case was due to be admitted under three of the "exceptions" to the general rule, which this Court recognized in Banner Welders, Inc. v. Knighton, 425 So. 2d 441, 444-45 (Ala. 1982):
Plaintiffs contend that they should have been permitted to adduce evidence establishing that the Bank moved the flagpole holder subsequent to Mrs. Holland's injury in order to show that the Bank had control over the placement of the flagpole; to show that the scene was different than as depicted in photographs introduced by the Bank for the purpose of establishing the condition of the flagpole holder; and to impeach the testimony of the Bank's witnesses to the effect that the Bank's photographs accurately depicted the condition of the area as it was on the day of the accident.
The admissibility of evidence of subsequent remedial measures offered for these "other purposes" depends on three factors: (1) whether the "other purposes" are material, that is, at issue in the case; (2) whether they are relevant to the issue, that is, whether the evidence tends to prove the purpose for which it is offered; and (3) whether the probative value of the evidence is substantially outweighed by its prejudicial effect. See generally, Gamble and Windle, Remedial Measures Doctrine in Alabama: From Exclusion to Admissibility and the Death of Policy, 37 Ala.L. Rev. 547 (1986). The burden is on the party seeking to admit evidence of subsequent remedial measures to establish materiality, relevancy, and probative value in excess of prejudicial effect.
In Ex parte Houston County, 435 So. 2d 1268, 1271 (Ala.1983), this Court explained the distinction between an absolute order granting a motion in limine and a preliminary order granting a motion in limine:
The motion granted in the present case was preliminary, because it ends with the words "without first securing the prior permission of this court removed from the hearing of the jury." Although at trial the plaintiffs attempted on two occasions to go into the matter of the Bank's subsequent remedial measure, in only one instance did they seek to do so on the ground that the matter was material and probative on the *463 issue of control. On that occasion, the Bank objected to the plaintiffs' offer of proof, and the trial judge stated that he was "not going to let [plaintiffs] get into" the matter of the Bank's subsequent relocation of the flagpole holder because, based on the testimony, he did not "think ... the defendant ha[d] taken the position [that it] was not in control of the premises." The testimony supports this conclusion by the trial court, and even if we were to determine that plaintiffs have properly raised as error on appeal this ruling by the trial court (see the issue as quoted from plaintiffs' brief, supra), we could not say that the trial court abused its discretion in not allowing the plaintiffs to establish the Bank's relocation of the flagpole for the purpose of showing control. While control was an issue under the plaintiffs' theory of liability, nevertheless, the record supports the trial court's determination that there was simply no evidentiary dispute, on the issue of control; the Bank clearly admitted that it controlled the premises and the location of the flagpole holder.
Plaintiffs further argue that the trial court should have allowed the introduction of the Bank's subsequent remedial measures for the purposes of (1) disputing the accuracy of five photographs of the scene introduced by the Bank, and (2) impeaching the Bank's witnesses who testified that the photographs accurately depicted the condition of the area as it was on the day of the accident. Plaintiffs argue in their brief that "[t]he trial court refused to let [their] attorneys ... impeach this testimony with evidence that the flagpole holder had in fact been moved and therefore [the scene as depicted in the Bank's photographs] cannot be in the same condition as it was the day of the accident." (Emphasis added.)
However, the record in this case establishes that plaintiffs never sought to admit evidence of the subsequent remedial measure for the above mentioned purposes. The plaintiffs did not attempt to impeach the Bank's witnesses on that basis, nor did they attempt to prove directly, through their own witnesses or their own photographs, that the scene and/or the flagpole holder were not on the day of the accident in the same condition as that depicted in the Bank's photographs. The plaintiffs did endeavor to impeach the Bank's witnesses on various other bases, none of which sought to establish the subsequent remedial measure taken by the Bank. Neither did the plaintiffs make an offer of proof that established in any way that the evidence of the subsequent remedial measure was probative on the issue of the accuracy of the Bank's photographs, nor did they actually make an attempt to impeach the testimony of the Bank's employees that the photographs accurately depicted the scene and/or the condition of the flagpole holder as they were on the day of the accident. Plaintiffs did object to the admission of the Bank's photographs on a number of grounds, but plaintiffs do not raise as an issue on appeal the admissibility vel non of the photographs.
Although in Banner Welders, Inc. v. Knighton, supra, 425 So. 2d at 446, the posture of the parties on appeal was different from that of the parties in the present case, we find this Court's analysis in that case applicable here. In Banner, the defendant, in whose favor a "broad-based" motion in limine had been granted regarding the plaintiffs' photographs "showing a changed condition," argued on appeal that the trial court had erred in admitting certain of plaintiffs' photographs into evidence at trial, notwithstanding his failure to object. As to those photographs, we held that "defendant failed to preserve error by either failing to object to their introduction or by implicitly waiving objection, as in the case of plaintiff's exhibit four." We offered the following rationale in support of this holding:
"The Supreme Court of Iowa has noted the proper use of a motion in limine:
"`The motion should be used, if used at all, as a rifle and not as a shotgun, pointing out the objectionable material and showing why the material is inadmissible and prejudicial. Since no one knows exactly how the trial will proceed, trial courts would ordinarily be well advised to require an evidentiary *464 hearing on the motion when its validity or invalidity is not manifest from the face of the motion.'
"Lewis v. Buena Vista Mutual Insurance Association, 183 N.W.2d 198 at 201 (Iowa 1971), State v. Garrett, 183 N.W.2d 652 at 654 (Iowa 1971).
"`Taken together, these cases indicate that the trial court should grant such a motion if it describes the evidence which is sought to be excluded with sufficient specificity to enable the trial court to determine that it is clearly inadmissible under the issues as drawn or which may develop during the trial, and if the evidence is so prejudicial in its nature that the moving party should be spared the necessity of calling attention to it by objecting when it is offered during the trial. To enable the court to make such a determination prior to trial and "out of context" the moving party should provide a memorandum of authorities showing that the evidence is inadmissible. If the court does not have the benefit of legal arguments, it can hardly be said to have abused its discretion if it denies a motion asking it to rule on the admissibility of evidence before it knows what the issues and circumstances are. [Citations omitted.]'
"Fenimore v. Donald M. Drake Construction Company, 87 Wash. 2d 85, 549 P.2d 483 at 488 (1976).
(Emphasis added.) 425 So. 2d at 446.
That analysis applies equally to this case, where the non-moving party seeks to admit evidence at trial which has been excluded by a preliminary motion in limine. (See Ex parte Houston County, supra.) In this instance, in order to preserve as error the trial court's refusal to admit such evidence, the party against whom the preliminary motion in limine has been granted must attempt to offer the evidence and provide adequate legal arguments to enable the trial court to make a ruling as to its admissibility for the limited purpose sought. This was not done in this case with respect to the impeachment value of evidence that the Bank had relocated the flagpole holder. The record shows only one instance where plaintiffs' counsel attempted to make an offer to prove the relocation of the flagpole holder:
However, in making the above offer of proof, plaintiffs' counsel made no arguments to explain how the fact that the flagpole had been relocated tended to prove that the Bank's photographs inaccurately depicted the condition of the scene and/or the flagpole holder at the time of the accident. Plaintiffs' counsel pointed out that *465 the time and date of the photographs had not been established. In order for the relocation of the holder to have been relevant on the question of the accuracy of the photographs, plaintiffs' counsel would have had to offer to show that the photographs were in fact taken after the relocation.
Furthermore, even if plaintiffs had made a showing establishing the materiality and relevancy of the evidence of the Bank's relocation of the flagpole holder for the purpose of impeaching the accuracy of the Bank's photographs and the testimony of the Bank's witnesses, it is, nevertheless, apparent from this record that there were other ways for plaintiffs to establish that the scene depicted in the Bank's photographs was a "reenactment," and/or that the scene depicted in the photographs was inaccurate (i.e., that the photographs depicted the conditions of the scene differently from the way they were on the day of Mrs. Holland's fall). Indeed, Mrs. Holland herself and Mrs. Pugh could have given testimony to that effect. Moreover, plaintiffs' counsel could have offered his own photographs which might have more accurately depicted the scene and the conditions as they were on the day of the accident. Thus, the trial court in its discretion may have determined that the probative value of the evidence that the Bank relocated the holder was outweighed by its inherently prejudicial effect.
For the foregoing reasons, we cannot say the trial court abused its discretion in either granting the motion in limine or in disallowing the evidence at trial for the purposes plaintiffs now offer to this Court.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur. | December 18, 1987 |
cffeb12c-7fff-4d28-8d64-15436a8eef75 | Scott v. COMMONWEALTH LAND TITLE INS. | 518 So. 2d 102 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 102 (1987)
Willie Lee SCOTT and Emma M. Scott
v.
COMMONWEALTH LAND TITLE INSURANCE COMPANY.
85-1267.
Supreme Court of Alabama.
November 20, 1987.
Sharon G. Yates and Frank M. Wilson of Beasley, Wilson, Traeger, Allen and Menselsohn, Montgomery, for appellants.
James W. Garrett, Jr., of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
MADDOX, Justice.
This case involves an allegation of civil conspiracy. The facts involve several parties. *103 The plaintiff/appellants, Willie L. and Emma M. Scott, owned a house in Montgomery. In 1983, the mortgage on the house was foreclosed. After the foreclosure had been advertised, the Scotts were approached by George T. Van Buren, one of the defendants in this action, and they reached some sort of agreement concerning the disposition of their house.
Van Buren was also involved in real estate dealings in Colorado. As a part of those dealings, he had sold certain property in Colorado to NADFAR, a corporation. Van Buren wanted to buy, at a later date, other property with the proceeds from this sale and still take advantage of the Internal Revenue Code's like-kind exchange rule, I.R.C. § 1031 (1954). To achieve this result, NADFAR made arrangements to pay the money for the Colorado property into an escrow account. The company that handled the escrow account is defendant Commonwealth Land Title Insurance Company. The escrow arrangement was structured to allow Van Buren to use the money paid by NADFAR to purchase similar property (in this case, in Alabama) without the money passing to him. The escrow agreement provided that when Van Buren found a piece of property he wished to purchase, he would notify Commonwealth and it would purchase the property with funds from the account and then sign the property over to Van Buren.
The facts are disputed as to the nature of the Van Buren/Scott agreement. The Scotts assert that Van Buren offered to pay off the arrearage on the mortgage and lease the house to the Scotts for 11 and 2/3 months and that they agreed with him that at the end of that time the debt would be paid and he would turn the property back over to the Scotts. They also claim that they demanded the deed back from Van Buren at the end of the period, but that he refused to give it to them, telling them to wait until he had had time to "draw up the papers."
Van Buren, on the other hand, claims he bought the Scotts' property through Commonwealth and that they signed a warranty deed. Van Buren had them evicted from the house on March 11, 1986. The Scotts' signatures are on a warranty deed in favor of Commonwealth dated October 10, 1983. Commonwealth had conveyed title to Van Buren on April 4, 1984. The Scotts claim they intended to sign only a lease agreement. The Scotts sued Van Buren and Commonwealth, alleging that the agreement between the defendants was a conspiracy to keep the Scotts from knowing that the defendants had sold the plaintiffs' property. The trial judge granted Commonwealth's motion for summary judgment; the summary judgment was made final pursuant to Rule 54(b), Ala.R.Civ.P., and the Scotts brought this appeal.
Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala. R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of a material fact must be resolved against the moving party. Fountain v. Phillips, 404 So. 2d 614 (Ala.1981); Sadie v. Martin, 468 So. 2d 162 (Ala.1985). If there is evidence supporting the motion of the non-moving party, summary judgment is inappropriate. Gross v. Republic Steel Corp., 400 So. 2d 383 (Ala.1981). Applying that rule to this case, all doubts must be resolved in favor of the Scotts, and if evidence exists to support their claim against Commonwealth, then the summary judgment was improper.
Count two of the complaint filed by the Scotts reads: "Defendants acting together and in concert, conspired to defraud plaintiffs out of their property and to place title in defendant Van Buren."
This is the only claim made against Commonwealth; therefore, on this appeal, the issue is whether the plaintiffs presented evidence of a conspiracy between Van Buren and Commonwealth to defraud the Scotts, to rebut the movant's prima facie showing that there had been no conspiracy. This Court has, in the past, set out the law of conspiracy:
"The law of civil conspiracy in Alabama is well stated in O'Dell v. State, 270 Ala. 236, 117 So. 2d 164 (1959), viz.:
*104 "`A conspiracy is a combination to accomplish an unlawful end or to accomplish a lawful end by unlawful means. Barber v. Stephenson, 260 Ala. 151, 69 So. 2d 251; Gaines v. Malone, 244 Ala. 490, 13 So. 2d 870.
"`Where civil liability for a conspiracy is sought to be enforced, the conspiracy itself furnishes no cause of action. The gist of the action is not the conspiracy alleged but the wrong committed. Louisville & N.R. Co. v. National Park Bank, 188 Ala. 109, 65 So. 1003; Humphrey v. Terry, 206 Ala. 249, 89 So. 607.
"`A conspiracy may be both pleaded and proved as aggravating the wrong complained of and enabling the complainant to recover in one action against all of the joint tortfeasors...."
"`... The existence of the conspiracy must often be inferentially and circumstantially derived from the character of the acts done, the relation of the parties, and other facts and circumstances suggestive of concerted action....' 270 Ala. at 240, 117 So. 2d at 168."
Turner v. Peoples Bank of Pell City, 378 So. 2d 706, 708 (Ala.1979).
We acknowledge that a great quantum of detail may not be required to prove the formation of a conspiracy, and that because of its secretive nature proof of a conspiracy must often be inferentially and circumstantially derived from the character of the act done, O'Dell v. State, 270 Ala. 236, 117 So. 2d 164 (1959), but a plaintiff is not relieved of the burden of supplying at least sufficient evidence from which the factfinder can infer that a conspiracy existed. See, e.g., Turner v. Peoples Bank of Pell City, 378 So. 2d 706 (Ala.1979). "It is only by looking to the conduct of the alleged conspirators during the progress of the conspiracy and the end result achieved that usually such a fact [a conspiracy] is established." National Distillers & Chemical Corp. v. American Laubscher Corp., 338 So. 2d 1269, 1272 (Ala.1976), quoting Barber v. Stephenson, 260 Ala. 151, 69 So. 2d 251 (1954).
In this case, the Scotts contend that Commonwealth and Van Buren conspired to deprive them of their property. We find no evidence before the trial court that would supply the necessary inference of the existence of a conspiracy necessary to defeat Commonwealth's motion for summary judgment. At a hearing on the motion, the trial judge specifically asked the Scotts' counsel for evidence that supported the Scotts' position:
Like the trial judge, we are unable to find any evidence that a conspiracy, and not an ordinary valid business relationship, existed between Van Buren and Commonwealth. The escrow document that was before the trial judge gives Commonwealth no discretion in the disbursement of the funds owed to Van Buren. We find no evidence that Commonwealth knew any particulars of the agreement between Van Buren and the Scotts, whatever they were. There is no evidence that Commonwealth knew that the deed to it of the property was claimed to be a forgery. Answers to interrogatories propounded by the Scotts showed that this was not the first transaction for the purchase of land that had operated through Van Buren's Commonwealth escrow account, *105 and apparently there had been no other problems. Commonwealth claims it had no reason to know or suspect that any fraud had been committed.
The Scotts argue that a jury could infer that the arrangement between these two defendants was used to hide the fact that the Scotts were deeding their land to Van Buren. We disagree. We find no evidence to support the contention that Commonwealth intended in any way to conspire with Van Buren.
To find otherwise would be to adopt a new rulea rule to the effect that one person's material relationship with a person accused of fraud makes that first person subject to a claim of conspiracy to commit fraud. This is a step we refuse to take. Viewing all the evidence in the light most favorable to the Scotts, we are unable to find any evidence in support of their claim against Commonwealth. We do not, of course, make any determination as to any of the other facts of the case, nor do we make any statement as to Van Buren's possible liability. However, we point out that count two of the complaint, alleging conspiracy to commit fraud by Van Buren and Commonwealth, cannot stand against Van Buren alone, because at least two parties are required to support an allegation of conspiracy. The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ALMON and HOUSTON, JJ., concur. | November 20, 1987 |
82afb429-6747-4567-b04c-6f810bb87f31 | Phillips v. Emmons | 514 So. 2d 1369 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1369 (1987)
Ruby J. PHILLIPS, et al.
v.
Annie EMMONS.
86-840.
Supreme Court of Alabama.
October 2, 1987.
Greg F. Jones of Wilkins, Bankester & Biles, Bay Minette, for appellants.
John Earl Chason of Chason & Chason, Bay Minette, for appellee.
*1370 BEATTY, Justice.
Appeal by plaintiffs from a judgment for defendant based upon a jury verdict and from the denial of plaintiffs' motion for a new trial. We reverse and remand.
The plaintiffs were Ruby Janice Phillips and Angela Phillips, who sued by her next friend, William Phillips. Alabama Farm Bureau Mutual Casualty Insurance Company was added as a party plaintiff on motion of the defendant, Annie Emmons. Emmons was the driver of a school bus that collided with a vehicle occupied by the plaintiffs, who subsequently brought this action to recover damages.
The sole issue on appeal concerns the admission of certain testimony of Trooper Cecil Myrick relating to the cause of the accident.
Trooper Myrick was called as a defense witness. His testimony revealed that he had investigated the accident and attempted to determine the relative paths of the respective vehicles. He described the scene of the accident and, specifically, the tire tracks that he connected to the paths of the two vehicles. Although he did not witness the accident, Trooper Myrick testified that the vehicles remained at their final resting places and that the parties were still at the scene of the accident when he arrived. Over objection, Trooper Myrick was allowed to testify, in the following exchange, as to "what caused the accident":
*1371 "A. That was a Number 23.
The appellant argues that this evidence was inadmissible for three reasons. First, she argues that Trooper Myrick was not qualified to give an opinion as to the "cause" of the accident. Second, she argues that his opinion was speculative and conjectural. Third, she argues that his opinion on the cause of the accident invaded the province of the jury. We need not address all of the grounds appellant argues in support of reversal, because, even if we assume arguendo that Trooper Myrick was qualified to give an opinion as to the cause of the accident, we find that his testimony was, nevertheless, inadmissible inasmuch as it was expert testimony based on facts not in evidence and not within the trooper's firsthand knowledge.
Trooper Myrick, in his testimony, did not respond to any hypothetical questions posed by counsel, nor did he rely on facts in evidence. Rather, his testimony was based solely on his observations while at the accident scene. His testimony thus falls within the "firsthand knowledge rule." This rule "arises out of the general recognition that, in order to testify to certain facts, the witness must have had the opportunity to observe the facts to which he testifies and have actually observed them." C. Gamble, McElroy's Alabama Evidence § 105.01 (3d ed. 1977). Under this rule, Trooper Myrick could have testified as to what he had observed at the scene, i.e., the location of the tire tracks, the description and condition of the roadway, the weather conditions, the final resting place of the vehicles, and the location of any debris, as well as any particular measurements of distances that he might have obtained during his investigation. Worsham v. Fletcher, 454 So. 2d 946 (Ala. 1984).
The one exception to the "firsthand knowledge rule" relates to opinion evidence of an expert witness. In these cases, it is axiomatic that an expert may base his opinion not only on facts of which he has firsthand knowledge, but also on facts that are assumed in hypothetical questions, Armstead v. Smith, 434 So. 2d 740 (Ala.1983), provided that the facts, either known to the expert or hypothesized to him, are in evidence, Romine v. Medicenters of America, 476 So. 2d 51 (Ala.1985), or will come into evidence at a later time in the trial, Belcher v. Versatile Farm Equipment Co., 443 So. 2d 912 (Ala.1983).
Trooper Myrick did not witness the collision between the two vehicles. His opinions as to the cause of the accident, while based on the evidence of the scene, nevertheless, exceeded the scope of his firsthand knowledge. His opinions were based in part on assumed mental processes and conclusions of both drivers that could not have been derived from his observations of the physical scene. He testified that the bus driver "took continuous, evasive action.... attempting to yield as much of the roadway as possible; applied brakes, [and] steered to the shoulder of [the] roadway." Relative to the appellant, he testified that she "[a]pparently ... continued travel to the most [sic] portion of [the] roadway, collided causing [her vehicle] to veer under [the bus] as the vehicles came to a final rest."
Moreover, his opinions as to the cause of the accident do not coincide with the testimony given at trial by either the plaintiff or the defendant. Additionally, on cross-examination, *1372 Trooper Myrick conceded that he did not form his opinions as to the cause of the accident based on conversations with the parties or witnesses to the accident:
Thus, we have a situation in which, even were we to assume that Trooper Myrick was qualified as an expert, his opinions were based upon facts of which he had no firsthand knowledge and which were not in evidence or expected to come into evidence. We have recently held that expert opinions based on facts not in evidence or within the expert's personal knowledge are inadmissible. Welch v. Houston County Hospital Board, 502 So. 2d 340 (Ala.1987). We have also held that the admission of an expert's opinion testimony as to the "apparent" cause of an accident, when the fact on which his opinion, is based is not in evidence, is reversible error. Alabama Power Co. v. Robinson, 447 So. 2d 148 (Ala.1983). In that case, we wrote:
(Emphasis added.) 447 So. 2d at 153-54. We agree with the appellant that the record establishes that the testimony of Trooper Myrick as to the cause of this accident was based, at least in part, on speculation and conjecture.
For the error in admitting that evidence, the judgment must be reversed and the cause remanded. It is so ordered.
REVERSED AND REMANDED.
ALMON, SHORES and STEAGALL, JJ., concur.
*1373 MADDOX, JONES and HOUSTON, JJ., concur in the result.
TORBERT, C.J., and ADAMS, J., not sitting. | October 2, 1987 |
7886ea41-2c5c-48ac-905b-8a71d4f8749a | Ex Parte Stubbs | 522 So. 2d 322 | N/A | Alabama | Alabama Supreme Court | 522 So. 2d 322 (1987)
Ex parte John Alvin STUBBS
(re John Alvin Stubbs v. State of Alabama)
86-975.
Supreme Court of Alabama.
November 6, 1987.
Rehearing Denied February 12, 1988.
G. Coke Williams of Williams & Norton, Anniston, for petitioner.
*323 Don Siegelman, Atty. Gen., and J. Randall McNeill, Asst. Atty. Gen., for respondent.
PER CURIAM.
We granted the petition for writ of certiorari to review the single issue whether the Court of Criminal Appeals, 522 So. 2d 317, erred in rejecting the defendant's contention that the trial court erred in denying his motion for a mistrial based on the remark of the district attorney during closing argument. The issue and the opposing position with respect to its disposition are set forth in the opinion of the Court of Criminal Appeals and in the dissenting opinion of Judge Patterson, which was joined by Presiding Judge Bowen.
We adopt as the opinion of this Court the dissenting opinion of Judge Patterson, and we reverse the judgment of the Court of Criminal Appeals.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES, SHORES, BEATTY and ADAMS, JJ., concur. | November 6, 1987 |
d16405ef-917a-4d12-95a5-0ee5dc0eeee5 | Traylor v. Bell | 518 So. 2d 719 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 719 (1987)
Ed Willie TRAYLOR,
v.
Charles BELL and Charles Bell Pontiac-Buick-Cadillac-GMC, Inc.
86-1006.
Supreme Court of Alabama.
November 20, 1987.
Rehearing Denied January 22, 1988.
James R. Bowles of Bowles & Cottle, Tallassee, for appellant.
Robert S. Thompson, Tuskegee, for appellees.
BEATTY, Justice.
This is an appeal from summary judgment in favor of defendants Charles Bell and Charles Bell Pontiac-Buick-Cadillac-GMC, Inc., in plaintiff's action based upon alleged fraud in the sale of an automobile. We affirm.
It will be helpful to quote from plaintiff's complaint:
The defendants moved to dismiss, that motion was overruled, and in due course the defendants answered, denying the material allegations of the complaint. The defendants moved for summary judgment, based upon the pleadings, the deposition of plaintiff, and certain exhibits consisting of contract documents. The plaintiffs opposed the motion for summary judgment, based upon the affidavit of plaintiff and the depositions of Joe Curtis Rowe, Bobby Young Bagley, Charles Bell, James Moore, and Clifton Bernard Pace.
In his affidavit, the plaintiff reiterated his charge that Bell "represented to me that the sale price ... would be $6,867.00 plus Alabama sales tax, document charges, title and license," and added:
The evidence disclosed by the depositions established that the automobile in question had a "sticker price" (suggested retail price) of $6,867.00. The "retail buyer's order," which contained the base price of the sale and which was signed by the plaintiff, contained the figure $7,455.00. As explained by the president of the dealership, Charles Bell, the difference between these figures, $588.00, was the charge added for a protective package, i.e., undercoat, fabric protector, and paint sealer. Added to this figure of $7,455.00 were sales tax of $145.23, a preparation fee of $100.00, and a title and license fee of $4.50. The aggregate sales price was $7,704.73, and this sum was shown on the retail buyer's order. That order form did not itemize the $588.00 sum charged for the protective package. However, there was testimony that this item was contained in a dealer sticker, an "add-on" sticker, which was placed on the car window. That item was included in the cash price, $7,455.00, and such a service was added to the car upon its delivery to the dealer.
The evidence also showed that plaintiff engaged in trade-in negotiations with defendant's salesman over the allowance for his own car. According to the salesman, plaintiff was given an allowance of $1,000.00 for that car, so plaintiff was not charged the full manufacturer's suggested retail price for the new Pontiac automobile.
The gist of plaintiff's complaint is that defendants fraudulently represented one sales price to him but actually charged him another. Yet, the evidence affirmatively establishes that, after the negotiations had been concluded, plaintiff was presented the sales documents and subscribed his name to them. He conceded that he did not read them, because, he says, he is a poor reader and has poor eyesight, conditions that he did not disclose to the defendants.
Gonzales v. U-J Chevrolet Co., 451 So. 2d 244, 247 (Ala.1984). That principle is applicable to these facts, as are the principles stated in Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757, 758-59 (Ala. 1983):
"`If the purchaser blindly trusts, where he should not, and closes his eyes where ordinary diligence requires him to see, he is willingly deceived, and the maxim applies, "volunti non fit injuria."'
If, indeed, in the final sales price charged to plaintiff there was a difference from what he understood it to be, that difference would have been easily discovered by even a casual reference by him to the sales price clearly indicated on the sales document which he signed. The fact that he did not make such a reference discloses an absence of that ordinary care which, had it been exercised, would have led to the discovery of any such difference, and the failure to exercise which renders his reliance unreasonable. The element of reasonable reliance being absent from the evidence, the *721 trial court did not err in granting summary judgment.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur. | November 20, 1987 |
85a4fb8f-aa13-487b-ad7b-5da55f68bd76 | State Farm Fire & Cas. Ins. v. Lynn | 516 So. 2d 1373 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 1373 (1987)
STATE FARM FIRE AND CASUALTY INSURANCE COMPANY
v.
Joseph B. LYNN.
85-415.
Supreme Court of Alabama.
October 2, 1987.
On Return to Remand November 20, 1987.
*1374 George H. Howell of Howell, Sarto and Howell, Prattville, and John Milling of Hill, Hill, Carter, Franco, Cole and Black, Montgomery, for appellant.
Clifford W. Cleveland, Prattville, for appellee.
ALMON, Justice.
This is an appeal from a judgment on a jury verdict awarding the plaintiff, Joseph B. Lynn, $275,000 in a fraud action, and from the denial of defendant's post-trial motions. The alleged fraud was a misrepresentation of the coverage under an insurance policy purchased by Lynn. The defendant, State Farm Fire and Casualty Insurance Company ("State Farm"), sold the policy to Lynn. When Lynn made a claim on the policy, State Farm denied coverage on the basis of an exclusion of premises used for business purposes.
In July 1981 Lynn contacted Troy D. Archie, an agent of State Farm, concerning property he had purchased. The property was 13 acres of land with a house and several outbuildings, including a barn. Lynn told Archie that he wished to purchase an insurance policy on the property, that he wanted the best insurance available, and that he wanted to be sure the barn was insured because he had horses and an expensive stallion that he wanted to keep for breeding purposes. Lynn testified that he told Archie "that I was moving a stud up there and I wanted to be sure it was insured before I put him in the barn." Archie informed Lynn that the best insurance policy he could buy was a "Number Three" policy and assured Lynn that the barn and its contents would be covered. Lynn purchased the policy.
Approximately every six months, Lynn visited Archie's office to pay premiums and on at least two occasions mentioned his horses and the improvements he was making on his property. On one occasion he asked Archie's secretary, Joyce Ballard, if his barn was covered. She checked her computer and said that it was. On another occasion Lynn was talking with Archie and in response to Lynn's questions, Archie told him that his barn was covered and that he had "the best" coverage. At his depostion, Lynn was questioned about this conversation:
At trial, this question was read to Lynn and he read this answer from his deposition, following which State Farm's attorney continued his cross-examination as follows:
In June 1983 the barn was struck by lightning and, along with its contents (not including the horses), was destroyed by fire. Lynn filed a claim with State Farm. State Farm investigated the claim and denied payment because it determined that the barn was used for business purposes breeding horses. The policy contained a provision excluding from coverage buildings "used in whole or in part for business purposes."
*1375 Lynn filed suit against State Farm, alleging breach of contract, negligence, and a fraudulent misstatement of facts made by its agent, Archie, and his secretary, Ballard. Lynn asserts that the statements that his barn was covered were statements of a material fact that he relied on to his detriment. The contract and negligence counts did not go to the jury. On the fraud count, the trial court denied State Farm's motion for directed verdict, and the jury found for Lynn, specifying its award as including $25,000 compensatory damages and $250,000 punitive damages. State Farm filed a motion for judgment notwithstanding the verdict or in the alternative for new trial, claiming that the evidence did not support the verdict; that the $25,000 award for compensatory damages was not supported by any evidence; that there was no evidence to support an award of punitive damages because there was no evidence of a material misrepresentation committed with the intent to injure or deceive; and that the punitive damages award was excessive and the result of bias, passion, partiality, prejudice, or corruption. The trial court denied this motion.
State Farm argues that the trial court erred in denying its motion to dismiss Lynn's complaint because the complaint failed to specifically allege a fraudulent misrepresentation as required by A.R. Civ.P., Rule 9(b). According to Rule 9(b), in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. However, "it should be expected that the courts will strive to find the details necessary for the sufficiency of such a complaint, if the pleading gives fair notice to the opposing party." Committee Comments to A.R.Civ.P., Rule 9(b).
Lynn's complaint states in pertinent part that "It was represented to the Plaintiff by the Defendant, or through its authorized agent, that he would have full and complete coverage for all items located on his property, and [that] the coverage which was being provided by the Defendant specifically provided protection for such items." In light of this pleading, a motion for a more definite statement would probably have been due to be granted, but State Farm did not file such a motion. See Rule 12(e), A.R.Civ.P. This pleading gave sufficient notice to State Farm regarding what the statement was, who made it, and when it was made, however, so the trial court did not err in denying State Farm's motion to dismiss. "A motion to dismiss for failure to state a claim under Rule 12(b)(6), ARCP, should seldom be granted and is properly granted only when it appears beyond doubt that the plaintiff can prove no set of facts entitling him to relief." Winn-Dixie Montgomery, Inc. v. Henderson, 371 So. 2d 899, 901 (Ala.1979) (citation omitted).
State Farm next argues that the trial court erred in denying its motion for directed verdict or for J.N.O.V. The scintilla rule applies in determining whether to grant a motion for J.N.O.V. Rule 50(e), A.R.Civ.P. If there is a scintilla of evidence from which a jury could determine that a material fact was misrepresented to Lynn by State Farm or its agents, and that Lynn reasonably relied on this misrepresentation to his detriment, then the motion for J.N.O.V. was correctly denied.
Lynn's evidence would support a finding that, at the time Archie sold him the policy, he told Archie that he had an expensive stallion he planned to use as a stud, and that he did not want to put this horse or any of his other horses into the barn until he was sure he had insurance coverage. Lynn testified on cross-examination that, after he purchased the policy, he told Archie that he was going into the horse business. Lynn also testified that, during the same visit to Archie's office, both Ballard and Archie told him that the barn was covered and also that Archie told him that he had "the best" coverage.
The jury could have determined from this testimony that Archie was aware that Lynn was going into the horse business and that his statement as to the barn being covered was at least a reckless misrepresentation of a material fact. Further, the jury could have determined that Lynn reasonably relied on such a representation either in purchasing the policy in the first instance or in *1376 refraining from purchasing different coverage when Archie reassured him that he was covered. It was not error, therefore, for the trial court to deny the motion for J.N.O.V. on this ground.
State Farm argues that the trial court erred in denying its motion for J.N.O. V. or in the alternative for new trial because the $25,000 award of compensatory damages is not supported by any evidence. The highest figure that Lynn gave for the value of the barn was $14,000. This apparently included only the materials, but Lynn gave no estimate for the cost of labor that would have been required to rebuild the barn.
Johnson v. Harrison, 404 So. 2d 337, 340 (Ala.1981).
The highest value shown for the personal property lost in the fire was $6,921.48. This comes to a total of $20,921.48 or $4,078.52 less than the jury awarded. Although the insurance Lynn actually purchased did not insure the full value of this property (the barn was covered only to 10% of the value of the house, or $8,760), the full value may be recovered in damages under the fraud count. If Archie had not misrepresented that the barn was covered, Lynn might well have purchased separate coverage insuring it at full value.
State Farm's motion for new trial raised this issue. When a party raises the issue of excessiveness of the verdict in a motion for new trial, the appellate court may grant a remittitur when the sole ground for reversal is excessiveness of the judgment. Aspinwall v. Gowens, 405 So. 2d 134 (Ala. 1981); Winn-Dixie Montgomery, Inc. v. Henderson, 371 So. 2d 899 (Ala.1979); Code 1975, § 12-22-71. Therefore, a remittitur is granted as to the compensatory damages in the amount of $4,078.52 as a condition for affirmance of the judgment.
As to the punitive damages, State Farm asserts that the trial court erred in denying its motion for J.N.O.V. or in the alternative for new trial because there is no evidence to support an award of punitive damages, because, it says, there was no evidence of a material misrepresentation committed with the intent to injure or deceive. This Court has held that in order to recover punitive damages, the plaintiff must prove that the defendant made a material misrepresentation with knowledge of its falsity. Mobile Dodge, Inc. v. Waters, 404 So. 2d 26 (Ala.1981). This Court has also held that if a defendant makes a misrepresentation without knowledge of its falsity, the law allows only compensatory damages (Ala.Code 1975, § 6-5-101), unless the misrepresentation is made so recklessly and heedlessly as to amount to the same thing as knowledge of its falsity. Ex parte Smith, 412 So. 2d 1222 (Ala.1982).
The evidence on the issue of whether Archie knew or should have known that Lynn was in the horse breeding business, and, therefore, that the barn came within the terms of the exclusion, is at least disputed. The trial court did not err in denying State Farm's motion for J.N.O.V.
Finally, State Farm argues that the trial court erred in failing to grant a remittitur or a new trial on the ground that the award of $250,000 punitive damages is excessive and the result of bias, passion, corruption, or other improper motive. Because punitive damages are left to the discretion of the jury, with no standard set for the measurement of them, a remittitur or new trial should not be ordered merely because in the opinion of the court the jury gave too much. Shiloh Construction Co. v. Mercury Construction Corp., 392 So. 2d 809 (Ala.1980). If, however, the court determines that the verdict is the result of bias, prejudice, corruption, or other improper motive, it is authorized to order a remittitur.
In Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), this Court addressed the question of how trial courts are to *1377 decide, and appellate courts are to review, a case where it is alleged that the jury has returned excessive damages as a result of bias, passion, prejudice, or other improper motive. We came to this conclusion:
Id., at 1379.
The judgment is affirmed insofar as it imposes liability, conditioned upon Lynn's acceptance of the remittitur ordered by this Court regarding compensatory damages. The cause is remanded, however, for the trial court to consider the question of excessiveness regarding the award of punitive damages, in accord with Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986). The trial court is directed to make a return to this Court indicating its action on remand.
CONDITIONALLY AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.
MADDOX, BEATTY, ADAMS and HOUSTON, JJ., concur.
ALMON, Justice.
On October 2, 1987, this Court remanded this cause to the circuit court for its consideration of the issue of excessiveness of punitive damages, pursuant to the principles of Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986).
The plaintiff accepted the remittitur as to compensatory damages, which this Court made a condition of affirmance. The trial court then complied with the remand instructions regarding punitive damages and entered the following order:
"This Court has previously considered Defendant's Motion for Judgment Notwithstanding the Verdict Or In The Alternative for a New Trial (hereinafter referred to as Motion for JNOV or New Trial) on the grounds of excessiveness on December 5, 1985, and has previously denied said motion.
"The Alabama Supreme Court in its opinion filed on October 2, 1987, in this case has affirmed in all aspects except the amount of the judgment and has remanded the cause back to the trial court for the entry of an order as required by Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986).
"The Court has read and considered the Supreme Court's opinion in this case and its decision in Hammond, supra. This Court did consider at the motion hearing as a portion of the overall evidence presented the following body of Alabama law regarding damages and remittitur:
"In light of the established body of law in Alabama, it was the Court's opinion on December 5, 1985 (the date this Court denied Defendant's Motion For JNOV or New Trial, with amendments) that the jury verdict should not be interfered with in this case. Before stating the reasons for this, the Court will relate the sequence of events up to the hearing date of December 5, 1985.
"The Defendant filed its Motion for JNOV or New Trial on October 17, 1985 and paragraph eight (8) specifically speaks to the topic at hand and paragraph thirteen (13) alludes to this topic. The Defendant requested to orally argue the Motion and was granted that request. The Motion was set for oral argument, and the [defendant's attorney] requested a continuance so that he could have the benefit of additional preparation for his argument. The Motion for Continuance was granted on October 30, 1985, and the oral argument was reset for December 5, 1985, at 9:00 o'clock a.m. The Defendant then amended its Motion for JNOV or New Trial on November 27, 1985. A hearing was held on December 5, 1985, and the Defendant was heard on its Motion and was allowed to present to the Court all law, evidence and testimony relevant to the Motion.
"The Court notes that Defendant failed to present any evidence that the jury in this case returned its verdict based on bias, passion, prejudice, corruption or other improper motive. Defendant based its contention of improper jury conduct solely on the amount of the verdict returned. Contrary to Defendant's assertions, the Court found that the verdict was not excessive and that there was no evidence of bias, passion, prejudice, corruption or other improper motive on the part of the jury. This Court bases its opinion on the following reasons and factors which it observed at the trial of this matter:
"1. This Court allowed counsel for both parties to voir dire the jury. The court observed that the entire jury venire as well as the final jurors who actually heard the evidence in this case appeared to conscientiously and honestly answer all voir dire questions asked by the respective counsel. Neither before, during nor after the trial of this case has this Court been presented with any allegation or evidence that jurors answering voir dire questions gave false or misleading answers.
"2. This Court observed the parties and their respective counsel along with the jury's reaction during the trial. The trial of the case was conducted on a highly professional level by competent, seasoned advocates for both sides. Frivolity was not present at the trial of this case. The jury recognized the seriousness of the issues that were being presented for their determination. *1379 At no time did it seem or appear to the Court that any party in this case received less than a fair, impartial trial before the jury.
"3. The Court observed the caliber of the jurors and their attentiveness and apparent understanding of the issues and evidence in this matter. The jury was intelligent and was a representative cross-section of the peers of the parties and was very conscientious in the exercise of its duty. The Court particularly noted ... the reaction of the jury to the testimony of State Farm's corporate representative, John M. Upton and its agent Troy D. Archie. The Court noted, along with the jury, the inconsistent testimony of the defense witnesses, particularly Troy D. Archie. The reluctance and evasiveness in question answering was apparent to any spectator in the courtroom.
"4. Even in light of the admission by the agent for State Farm, counsel for the Defendant argued to the jury in closing that the insurance company had done nothing wrong. The insurance company consistently held throughout the trial of this case that it had done nothing wrong and that there had been at some unknown time a change in circumstances. This continued `stiff-neckedness' on the part of the Defendant had a profound effect upon the jury.
"5. At no point during the trial of the case did counsel for State Farm nor any of its corporate officers admit any wrongdoing. No offer of judgment in any amount was ever made. No criticism of the way and manner in which this policy was sold or adjusted was expressed by the Defendant to the jury.
"6. From the facts, this Court was reasonably satisfied that the insurance company knew that their agent made a material misrepresentation with knowledge of its falsity or at the very least recklessly and heedlessly made the same representations.
"The above facts relate only to a portion of the facts upon which the Court relied to reach its decision on the Motion. This Court found no evidence that this jury violated or misinterpreted the evidence or the law. The facts and circumstances that were admissible into evidence and the Defendant's attitude toward those facts, created the inescapable conclusion that misrepresentations had been made to Joseph B. Lynn which induced him to purchase insurance from a State Farm agent to Joseph B. Lynn's detriment. The representations were material with the intent to deceive or defraud or as stated above [were] at least ... reckless misrepresentation[s] of a material fact.
"The amount of a civil fine or exemplary damages is largely left to the discretion of the jury. The Constitution allows juries to fix punitive damages. This court knows of no reason why there should be any judicial invasion into the function of the jury under the facts in this case. The Court views this jury as a `properly functioning jury.' This Court finds nowhere in the record where it is established that the award is excessive because it is based upon bias, passion, corruption or other improper motive. This Court found that the facts that it heard and saw justify a large and substantial civil fine against the Defendant.
"In addition to the above, the Court has also considered those factors listed by the Supreme Court in Hammond, supra, as being appropriate for the trial court to consider. With regard to the culpability [of] the Defendant's conduct, the evidence clearly established that the conduct of the Defendant was intentional or a reckless misrepresentation of a material fact. It was against recognized and accepted insurance industry standards. The belief that the insurance company's or agent's interest should be placed above that of its customer in dealing with the sale or adjusting of its policies was totally rejected by the jury.
"Although the particular circumstances of this case may be rare in occurrence, the insurance industry and their agents should be discouraged from placing their interest above that of [their] customers when selling and adjusting insurance policies. Insurance companies and their agents are in a position to have knowledge and information which the lay person does not have. A purchaser of insurance, such as Joseph B. *1380 Lynn, has a right to rely on the representation of their insurance agents and companies.
"The Defendant has argued that the verdict in this case will adversely impact the insurance company. Any verdict for any party will have an adverse impact to some extent. The Court does not find that the impact of this verdict on the Defendant is such that would require a reversal of the jury's decision as to damages. In line with that same reasoning, the Court does not find that the impact on innocent third parties is of such significance or consequence so as to reverse the jury's determination on damages.
"This Court in denying the Motion for JNOV or New Trial on December 5, 1985, did so due to the fact that the Court did not find that the verdict was the result of bias, passion, prejudice or other improper motives. The Defendant made no showing at the December 5, 1985, hearing that would support any such misconduct on the jury's part. Now some two (2) years later in responding to the Order of the Supreme Court of Alabama, I have had an occasion to review the Court record and to reflect upon the conduct, demeanor, attitude and responses of the parties, witnesses, attorneys and jurors at various stages of the proceedings. The opinion of the Court on December 5, 1985, was and still remains that the verdict was not excessive and was not the result of bias, passion, prejudice or other improper motives. This Court is of the opinion that the jury's verdict is correct when considering the culpability of the Defendant's conduct, the desirability of discouraging others from similar conduct, and the impact upon the parties.
"It is therefore, ORDERED, ADJUDGED, AND DECREED, by this Court that:
"1. Defendant State Farm's `Motion For Judgment Notwithstanding The Verdict Or In The Alternative For a New Trial' originally filed in this matter based on the issue of excessive damages on October 17, 1985 and as amended on November 27, 1985 (CR 282 through 285 and 294 through 302) is hereby OVERRULED and DENIED again.
"2. The award by the jury of punitive damages was not the result of bias, passion, corruption or other improper motives.
"3. The punitive damages award fixed by the jury at $250,000.00 and the judgment in said amount entered by this Court is not an excessive award as against the Defendant State Farm Fire and Casualty Insurance Company.
"4. The Order of this Court dated December 5, 1985 (CR 303) remains in full force and effect.
"5. The Circuit Clerk of Autauga County will certify this Order and Opinion to the Clerk of the Supreme Court as being this Court's Order as required by Hammond, supra, and as constituting this Court's report of its findings and conclusions as to why the jury verdict in this matter should not be disturbed."
State Farm has not filed a brief on this return to remand. In light of the thorough and amply supported reasoning in the trial court's order, the judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
MADDOX, BEATTY, ADAMS and HOUSTON, JJ., concur. | November 20, 1987 |
4b21dfc2-5d28-4756-977b-16665192eff5 | Lynum v. Lynum | 521 So. 2d 6 | N/A | Alabama | Alabama Supreme Court | 521 So. 2d 6 (1987)
Benjamin T. LYNUM and Marie Miller,
v.
Hamilton LYNUM, et al.
86-376.
Supreme Court of Alabama.
November 20, 1987.
Rehearing Denied February 19, 1988.
Joseph W. Hutchinson III, Butler, for appellants.
Lee B. Williams, Grove Hill, for appellees.
BEATTY, Justice.
This case arises out of a suit for sale of property for division of the proceeds brought by the appellees, Hamilton Lynum and others. The appellants, Benjamin Lynum and Marie Miller, were named as defendants and, on December 27, 1984, they filed answers stating that the land in question, situated in Clarke County, Alabama, could be equitably divided without a sale. Thereafter, on February 27, 1985, appellants jointly filed an amended answer alleging "that the best interest of all the parties would be served if the defendants, Marie Miller and Benjamin T. Lynum, purchased ALL of the Plaintiffs' interest[s] in the subject property at the fair market value or appraised value." Appellants further alleged that they were, and had at all times been, ready, willing, and able to purchase all interests in the subject property. On the same date, appellants filed notice of their intent to purchase the interests of all plaintiffs in the subject property pursuant to Code of 1975, § 35-6-100, which provides:
Also on the same date, appellants filed a motion to appoint appraisers, pursuant to Code of 1976, § 35-6-101, which provides as follows:
"In such circumstances as described in section 35-6-100, and in the event the parties cannot reach agreement as to the price, the value of the interest or interests to be sold shall be determined by one or more competent real estate appraisers or commissioners, as the court shall approve, appointed for such purpose *7 by the court. The appraisers or commissioners appointed under this section shall make their report in writing to the court within 30 days after their appointment."
By an order dated March 7, 1985, the trial court appointed Earl Flowers to make an appraisal of the property and to file his report with the court within 30 days. The appraisal report was filed on April 12,1985.
However, contrary to the specific mandate of Code of 1975, § 35-6-102, set out below, appellants failed to pay into court within 30 days that amount set as the value of the interests sought to be purchased:
Thereafter, on October 9, 1985, appellants filed a motion to set the case for hearing. Then, on October 17, 1985, Martin Searcy filed a motion to intervene in the suit, claiming that he had acquired the interest of certain of the plaintiffs in the subject land. The case was set for a hearing to be held December 9, 1985. Three days prior to the hearing date, appellants filed a motion in opposition to Searcy's motion to intervene. The parties were given a briefing schedule at the hearing on December 9. Some seven months later, on July 11, 1986, the trial court entered an order (1) granting Searcy's motion to intervene and (2) ruling that, due to appellants' failure to comply with § 35-6-102, supra, "the court shall proceed according to its traditional practices in such cases" pursuant to § 35-6-103, set out below:
Pursuant to the trial court's order, the property was sold at auction on November 25, 1986. Those bidding on the property were appellant Benjamin Lynum, Martin and Luldean Searcy, and Willie Elisha Sheffield. The Searcys were the highest bidders, and they purchased the property for $71,000. However, approval of the sale was stayed pending this appeal.
Relying on this Court's opinion in Jolly v. Knopf, 463 So. 2d 150 (Ala.1985), appellants contend that they should not lose their "right" to purchase the property under § 35-6-102 by failing to pay the appraised purchase price into court within 30 days after the appraisal report was filed as provided by § 35-6-102. Appellants further contend, again relying on Jolly, supra, that the trial court erred in permitting Martin Searcy to intervene because he had not purchased any of the plaintiffs' interests prior to the filing of the complaint seeking a sale for division. We respectfully observe that this Court's decision in Jolly, supra, has no bearing on these issues.
The record in this case does not establish that any of the plaintiffs/appellees gave the court notice of their interest in purchasing the interests of the other joint owners or tenants in common, as required by § 35-6-100, supra, as was the case in Jolly, supra. The appellants, however, did give such notice, thereby invoking the provisions of §§ 35-6-100 through -104. Appellants, nevertheless, failed to comply with the 30-day requirement of § 35-6-102, and, therefore, under the express provision of § 35-6-103, the trial court properly proceeded according to its traditional practices and decreed that a public sale take place due to the fact that the property could not be partitioned in kind. The statutes in question are clear, and, by failing to comply with their express provisions, appellants have waived their rights thereunder.
Furthermore, under the provisions of Rule 24, A.R.Civ.P., Martin Searcy was clearly entitled to intervene, since he had *8 purchased some of the plaintiffs' interests in the subject property. We cannot agree with the appellants that the sale by certain plaintiffs of their interests to Searcy, and his subsequent intervention in this suit, contravene the express intent of § 35-6-100. His purchase and subsequent intervention did not prevent any of the joint owners from giving notice of their interest in purchasing the interests of the other joint owners, including that of Searcy, so as to invoke the protective provisions of §§ 35-6-100, et seq. See Jolly v. Knopf, supra. Nor did Searcy's intervention contribute to the defeat of appellants' rights to purchase all the plaintiffs' interests at the appraised value. The statutory 30-day period for paying that sum into court had run prior to the filing of Searcy's motion to intervene. Thus, the trial court did not abuse its discretion in granting Martin Searcy's motion to intervene. Crossfield v. Allen, 494 So. 2d 21 (Ala.1986).
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur. | November 20, 1987 |
e08a4437-597d-4ef1-a8ef-d820065bae9e | Hollis v. Scott | 516 So. 2d 576 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 576 (1987)
Mary Nell HOLLIS, Administratrix of the Estate of Joe Solomon Stokes
v.
Douglas Lee SCOTT.
85-1051.
Supreme Court of Alabama.
October 2, 1987.
Rehearing Denied November 6, 1987.
*577 Joe C. Cassady of Cassady, Fuller & Marsh, Enterprise, for appellant.
J.E. Sawyer, Jr. of Rowe, Rowe & Sawyer, Enterprise, and Debbie Jared of Lindsey & Jared, Elba, for appellee.
MADDOX, Justice.
This case involves a collision between an automobile driven by defendant Joe Solomor Stokes with a motorcycle being operated by plaintiff Douglas Scott. Scott brought suit against Stokes for negligently causing or allowing his automobile to collide with Scott's motorcycle, and a jury awarded Scott $1 million as damages. Stokes appealed.[1] Four issues are presented for our resolution:
(1) Was there any credible evidence presented to sustain the verdict for the plaintiff?
(2) Did the trial court err in allowing the testimony of plaintiff's accident reconstruction expert over defendant's objection that no proper predicate had been laid for his testimony as an expert?
(3) Did the trial court err in denying the defendant's motion for a directed verdict on his plea of contributory negligence?
On May 5, 1984, plaintiff Scott, Stanley Jackson, and six other men were riding motorcycles in Covington and Coffee Counties. They travelled from Enterprise to Opp and from Opp to Andalusia and then back to Opp. Between 3:00 p.m. and 4:00 p.m., the motorcyclists left Opp on Highway 84 heading east toward Elba. They were paired off, with Scott and Jackson riding together behind four other riders.
The accident that is the basis of this lawsuit occurred six miles out of Opp. The evidence regarding how the accident occurred is conflicting. Scott's version of the accident is as follows:
Scott and Jackson testified that they were travelling between 55 and 60 miles per hour. Stokes's testimony concerning the accident differs substantially from Scott's. Stokes testified that he was driving between 30 and 35 miles per hour when the motorcycle driven by Scott came around the curve at 75 to 80 miles per hour, and that Scott lost control and came *578 into his lane of traffic, hitting his automobile.
The point of impact was also contested in this case. Jackson and Scott both testified that the Stokes vehicle ran off the road and then into their lane of traffic. Bobby Smith, an automobile accident reconstruction expert, who investigated the accident for Scott, testified that the Stokes vehicle, in his opinion, crossed over into Scott's lane and that the point of impact occurred in Scott's lane. Stokes testified that Scott lost control of his motorcycle and crossed into his lane and that the impact occurred there. Two Alabama state troopers who investigated the accident shortly after it happened testified that the point of impact was in Stokes's lane of traffic. Attached as appendices A, B, and C are diagrams that depict the sharp disagreement between the witnesses for the plaintiff and those for the defendant.
As a result of this accident, Scott's left foot was amputated and he received substantial injuries to his right leg.
The doctor who treated Scott for these injuries was of the opinion that Scott has a minimum functional disability of 50% to the body as a whole due to the left foot amputation and right leg damage. He further testified that the total medical bills of $43,603.50 were necessary and reasonable. A rehabilitation consultant, basing this assessment on Scott's prior work history and educational level, testified that Scott has essentially lost all wage earning capacity because of the injuries he received in the accident.
The first issue we address is whether there is credible evidence to sustain the verdict for Scott. Stokes's administratrix contends that there is not and that the verdict is contrary to the law, and the evidence. Specifically, she contends that the testimony of plaintiff's witness Stanley Jackson should be disregarded because it is unbelievable and inherently improbable and defies the laws of physics.
As indicated earlier in this opinion, and as is shown by the appendices, there is sharp disagreement on the question of the point of impact. Also, there is substantial evidence from which the jury could have found that the plaintiff had been drinking and at the time of the accident was exceeding the speed limit and was in defendant's lane of traffic. Two law enforcement officers placed the point of impact in the defendant's lane. Plaintiff's witnesses placed the point of impact in plaintiff's lane. While the testimony of plaintiff's witnesses regarding distances, and the events that occurred between those distances, would seem to be contrary to the basic law of physics, we are not convinced that the testimony is incompetent. The credibility of plaintiff's witnesses was for the jury to determine.
It is well-settled law in this state that when the evidence is conflicting, the jury is free to believe or not believe the witnesses. Roberson v. Ammons, 477 So. 2d 957 (Ala.1985); Carolina Casualty Ins. Co. v. Tisdale, 46 Ala.App. 50, 237 So. 2d 855 (1970), cert. denied, 286 Ala. 741, 237 So. 2d 861 (1970). The defendant correctly argues that where testimony of a witness is incredible, unbelievable, or inherently improbable, it is to be disregarded as without probative value. King v. Brindley, 255 Ala. 425, 51 So. 2d 870 (1951); American National Bank & Trust Co. v. Powell, 235 Ala. 236, 178 So. 21 (1937); Ford Motor Credit Co. v. Jackson, 347 So. 2d 992 (Ala. Civ.App.1977). In King v. Brindley, this Court stated the rule, as follows:
"The mere fact that testimony given by a witness in support of an issue is not plausible does not destroy its probative force. Where, however, the testimony of a witness is incredible, inherently or physically impossible and unbelievable, inherently improbable and irreconcilable with, or contrary to physical facts and common observation and experience, where it is so opposed to all reasonable probabilities as to be manifestly false, or is contrary to the laws of nature or to well-known scientific principles, or where it cannot be said to amount to substantial evidence of facts testified to or accepted as a basis of liability, it is to be disregarded *579 as being without evidentiary value even though uncontradicted. 20 Am.Jur. pp. 1033, 1034, 1035, §§ 1183, 1184; Peters v. Southern Ry. Co., 135 Ala. 533, 33 So. 332; Continental Casualty Co. v. Paul, 209 Ala. 166, 95 So. 814, 30 A.L.R. 802; Catlett v. Chestnut, 107 Fla. 498, 146 So. 241, 91 A.L.R. 212."
In King v. Brindley, this Court did say that the testimony of one of the witnesses in that case was "by far, too great a tax on judicial credulity." We cannot say the same about this case. In this case, there was evidence that the defendant's vehicle had traversed the plaintiff's lane of traffic. When this occurred and what caused the vehicle to go to the left is disputed. Consequently, the facts here do not parallel the facts set out by the Court in King v. Brindley. Consequently, we cannot say, as a matter of law, that the testimony of the plaintiff's witness was so incredible and unbelievable that it should be disregarded.
In short, we are of the opinion that, although the evidence was conflicting, there was credible evidence to support the jury verdict, and we cannot assume the role of the jury and weigh the evidence. In fact, we must indulge all favorable presumptions necessary to sustain the verdict and the trial court's conclusion not to disturb it, because we fail to find that it is plainly erroneous or manifestly unjust insofar as liability is concerned. Elba Wood Products, Inc. v. Brackin, 356 So. 2d 119 (Ala.1978).
The second issue raised is whether the trial court erred in allowing the testimony of Scott's expert witness, Bobby Smith, over Stokes's objection that a proper predicate had not been laid. Appellant contends that Smith's expert testimony was not predicated on sufficient facts.
Alabama law is clear regarding the testimony of an expert witness. This Court, in Harper v. Baptist Medical Center-Princeton, 341 So. 2d 133 (Ala.1976), quoting from Hagler v. Gilliland, 292 Ala. 262, 292 So. 2d 647 (1974), stated:
An expert is "not prohibited from stating his opinion based upon his own investigation and examination." Hagler v. Gilliland, supra. It is within the trial court's discretion as to whether or not a particular witness will be allowed to testify as an expert, and the trial court's decision will not be disturbed on appeal except for palpable abuse. Osborne Truck Lines, Inc. v. Langston, 454 So. 2d 1317 (Ala.1984).
In Maslankowski v. Beam, 288 Ala. 254, 259 So. 2d 804 (1972), this Court considered the use of expert testimony in cases involving collisions between automobiles, in which the laws of "physical forces, velocities and dynamics, involving laws of motion and force" were factors. This Court commented on the standards to be applied when considering whether a person will be allowed to testify as an expert:
"`The opinions of experts on any question of science, skill, trade or like questions are always admissible; and such opinions may be given on the facts as proved by other witnesses.'
"Generally before expert testimony is admissible it should appear the jurors themselves are incapable, for want of knowledge or experience of the subject matter, of drawing correct conclusions from the facts proved. Louis Pizitz Dry Goods Co. v. Harris, 270 Ala. 390, 118 So. 2d 727. It is obvious that the subject of Mr. Robinson's testimony was such *580 that a jury would not be equally competent to reach a conclusion from the facts of the case.
"`Where the opinion of a witness is elicited, the proper test to determine his qualification is whether his knowledge of the matter in relation to which his opinion is sought is such that it will probably aid the trier of the question to determine the truth.'
"* * *
"One commentator has stated:
"`... [I]f trial by jury as a means of fixing damages and fault in automobile accident cases is to accomplish its objectives, the law must take a more enlightened outlook on the problem of the admissibility of expert opinion and other scientific objective data relating to the laws of motion.' Reach, Scientific Data and Expert OpinionIts Use in Automobile Accident Cases, 24 Ins. Coun.J. 99 (1957).
"`... Our world is becoming increasingly complex, and inevitably more and more subjects will fall outside the pall of common knowledge. The importance of expert opinion testimony will expand in direct proportion to the expansion of man's knowledge. If the jury system is to survive, it must continue to reach the right decision more often than not. A more enlightened attitude toward the admissibility of expert opinion testimony appears, in this light, essential to the survival of juries as such.'"
288 Ala. at 264-66, 259 So. 2d at 813-15. See also Armstead v. Smith, 434 So. 2d 740 (Ala.1983); Dyer v. Traeger, 357 So. 2d 328 (Ala.1978); and Williams v. Tyler, 340 So. 2d 20 (Ala.1976), following Maslankowski.
The defendant contends that if plaintiff's expert was to give an opinion it must have been based upon hypothetical facts. We are of the opinion that a properly qualified expert witness may base his opinion upon either facts of which he has firsthand knowledge, or facts in evidence that are assumed in a hypothetical question asked of him. Armstead v. Smith, 434 So. 2d 740 (Ala.1983).
Of course, it must be shown that the witness has sufficient knowledge of the facts to enable him to form an opinion, and he must testify as to the facts in his own knowledge upon which his opinion is based. See Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633 (1927); Brown v. Mobile Electric Co., 207 Ala. 61, 91 So. 802 (1921).
We are of the opinion that enough evidence was presented to allow Bobby Smith to testify from his own personal knowledge, rather than from a hypothetical question. It is clear that Smith investigated the scene of the accident, made measurements at the scene, confirmed depiction of the scene and markings with the police, and inspected the vehicles involved *581 in the accident. Thus, Bobby Smith was sufficiently acquainted with the facts to base an opinion on the point of impact without the aid of a hypothetical question.
The third issue raised is whether the trial court erred in denying Stokes's motion for directed verdict on his plea of contributory negligence.
Stokes does not cite any authority in support of his argument, but what we have said in addressing the first issue is sufficient to affirm the trial court's ruling on this issue.
The fourth and final issue presented for this Court's review is whether the $1 million damages award was excessive. Stokes, in his motion for judgment notwithstanding the verdict or, in the alternative, motion for a new trial, claimed that the verdict was excessive and a result of bias and passion. The administratrix argues the same point here and again says that the verdict was excessive, primarily because "there was no credible evidence to sustain any award and even if there was, the amount of the verdict is shocking to the conscience."
Appellant makes this argument regarding the question of excessiveness:
"The cases of Central of Georgia Railway Company v. Steed, [287 Ala. 64], 248 So. 2d 110 (Ala.1971); Beloit Corporation v. Harrell, 339 So. 2d 292 [992] (Ala.1976) and Alabama Power Company v. Henderson, 342 So. 2d 323 (Ala. 1976), are cited, not for the purpose of showing a reversal because of excessiveness, they don't, but to show that with far more injury and other loss these verdicts did not approach the one in this case.
We cannot tell from the record before us whether the trial court took into consideration any of the factors argued by appellant here in deciding whether the verdict was excessive, and the trial judge did not state how he arrived at his judgment that the verdict was not excessive.
In order for this Court to carry out its responsibilities as mandated by Code 1975, § 12-22-71, we could remand the cause to the trial court for that court to set forth the reasons it used to support its judgment in this case, but we have examined the record and the evidence introduced to support the award, and we cannot say that the verdict is a result of bias, passion, prejudice, or other improper motive on the part of the jury. Alabama Power Co. v. Mosley, 294 Ala. 394, 318 So. 2d 260 (1975).
AFFIRMED.
JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., and HOUSTON, J., concur, in part, and dissent, in part.
STEAGALL, J., not sitting.
*582
*583
*584
*585 HOUSTON, Justice (concurring in part; dissenting in part).
I concur with the majority as to the issue of liability; however, even though the damages were compensatory rather than punitive, I would remand on the issue of excessiveness, for the trial court to state its reasons for denying the remittitur. Davison v. Mobile Infirmary, 518 So. 2d 675 (Ala.1986).
TORBERT, C.J., concurs.
[1] Stokes's administratrix has been substituted as appellant. | October 2, 1987 |
cd957cee-564a-4b87-ad4b-7cc6f7c26729 | Crowder v. Memory Hill Gardens, Inc. | 516 So. 2d 602 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 602 (1987)
Evelyn R. CROWDER
v.
MEMORY HILL GARDENS, INC., et al.
86-676.
Supreme Court of Alabama.
October 2, 1987.
Rehearing Denied November 6, 1987.
C. Delaine Mountain, Barbara W. Mountain, and Vickie E. House of Mountain & Mountain, Tuscaloosa, for appellant.
Sam Phelps of Phelps, Owens, Jenkins, Gibson & Fowler and Wilbor J. Hust, Jr. of Zeanah, Hust & Summerford, Tuscaloosa, for appellees.
JONES, Justice.
The plaintiff, Evelyn Crowder, appeals from a partial summay judgment, made final pursuant to Rule 54(b), A.R.Civ.P., dismissing the plaintiff's claims based on fraud and outrageous conduct. We affirm as to the outrage claim and reverse as to the claim for fraud.
On September 9, 1982, the plaintiff and her husband, James Crowder, signed a contract to purchase from Memory Hill Gardens, Inc. ("Memory Hill"), two cemetery plots, one bronze memorial plate, and two burial vaults. Mrs. Crowder claims that she and her husband were induced to enter this contract by Booker Campbell, an employee of Memory Hill, who told the Crowders that, with the execution of this contract, they would receive a certificate entitling them, upon presentment, to a 20% discount on funeral services rendered by *603 Memory Chapel Funeral Homes, Inc. ("Memory Chapel").[1]
Several days after executing the contract, the Crowders received a letter on Memory Hill letterhead, signed by defendant M.B. (Morgan) Brown as manager of Memory Hill. Enclosed with the letter was a payment book and the 20% discount certificate. The certificate read, in bold letters:
"This Certifies that James F. Crowder and/or Evelyn R. Crowder (wife) is the purchaser and/or owner of Crypt No _____ Lot No. 60-D 1-2, Section Prayer, and is entitled to a Twenty Percent Discount on Funeral Services when rendered by Memory Chapel Funeral Home." (Capitalization in original.)
The certificate was authorized and endorsed by M.B. Brown as agent of Memory Chapel. In the lower left corner of the certificate appeared the following statement: "Memory Chapel Corporation reserves the right to cancel or recall this certificate, if for any reason it deems advisable." Mrs. Crowder testified during her deposition that she did not notice this language on the certificate when it arrived in the mail and that she put the certificate into a folder that Campbell had given her. She also stated that, prior to her husband's death, she received no notice either of cancellation or recall of the discount certificate.
James Crowder died on August 24, 1985. On August 25, 1985, Mrs. Crowder and several of her children met with Brown to make arrangements for Mr. Crowder's funeral. Mrs. Crowder presented her 20% discount certificate to Brown, but he refused to honor it. From Brown's office the family went to another building that housed the office of Memory Hill. There they met with Jerry Robinson, manager of Memory Hill, to make the cemetery arrangements for Mr. Crowder's funeral. During this discussion, James Crowder, Jr., showed the discount certificate to Robinson. Robinson told the family that the certificate did not apply to the cemetery and that he was unaware that the certificate was not being honored with respect to services being rendered by the funeral home.
Mrs. Crowder and her son James both testified in deposition that Brown said that the new owner of the funeral home was refusing to honor the certificates because they had been issued by the previous owner. During his deposition, Brown stated that, although he had not been ordered to do so, he had refused to honor Mrs. Crowder's discount certificate because Memory Chapel was under new ownership and he did not know whether Jim Moore, the new owner, would continue to honor the certificates; and because the Federal Trade Commission had recently assumed the regulation of funeral homes and Brown was not sure what he could or could not do under FTC rules. Therefore, testified Brown, he decided to stop honoring the certificates "on the backup until ... [he] knew what [Memory Chapel] could do." Brown also stated, however, that he did not contact the FTC to inquire whether the certificates were valid under the FTC's regulations, and that he had never received or read a copy of any FTC rules.
Additional testimony elicited from Mrs. Crowder and her sons, James and Jerry, during their depositions revealed that Jerry Crowder's brother-in-law, Virgil Ray, had died two days before Mr. Crowder died. Ray's parents presented an identical 20% discount certificate to Memory Chapel and it, too, was dishonored. M.B. Brown testified, however, that because Ray's family complained about the cancellation of the *604 certificate, he and Jim Moore, the owner of Memory Chapel, agreed to honor the certificate. Brown went on to say that he would have honored Mrs. Crowder's certificate if she had acted as Ray's family did or if she had come back and requested that he reconsider his decision not to honor the certificate. He did not, however, contact Mrs. Crowder at a later time to inform her that Memory Chapel had resumed honoring the certificates.
Mrs. Crowder filed suit on January 30, 1986, against Memory Hill, Memory Chapel, and later, by amendment, M.B. Brown, alleging breach of contract, fraud, and outrage. On January 5, 1987, the trial court granted the defendants' motions for partial summary judgment as to the claims for fraud and outrage. Mrs. Crowder filed a second amended complaint on January 7, 1987, adding counts IV, V, and VI, and again alleging fraud, but setting out more specifically both the actions of the defendants upon which her claims were based and the damages alleged to have resulted therefrom. The trial court granted the defendants' motions for summary judgment as to these added claims,[2] and made the partial summary judgment final, pursuant to Rule 54(b), A.R.Civ.P. Mrs. Crowder appeals, contending that her claims for fraud and outrage should not have been disposed of by summary judgment. We agree as to the fraud claim and disagree as to the outrageous conduct claim.
To show an entitlement to summary judgment, the movants bear the heavy burden
"`of clearly showing that ... there is an absence of a genuine issue as to any material fact. The moving party must be entitled to the ... judgment as a matter of law. Furthermore, all reasonable inferences from the facts are to be viewed most favorably to the nonmovant.'
Mrs. Crowder argues that because she provided factual evidence in opposition to the defendants' motions for summary judgment, summary judgment was inappropriate in disposing of her claim of fraud. According to both statutory and case law in Alabama, says Mrs. Crowder, the acts of the defendants clearly amounted to actionable fraud and the evidence before the trial court was sufficient to create an issue of material fact as to whether written and oral representations made to Mr. and Mrs. Crowder by the defendants were indeed fraudulent.
The elements of an actionable fraudulent representation are 1) a false representation 2) concerning a material existing fact, which was 3) relied upon by the plaintiff 4) to his detriment. § 6-5-101, Ala. Code 1975; International Resorts, Inc. v. Lambert, 350 So. 2d 391 (Ala.1977). The suppression of a material fact, in order to amount to fraud, must include 1) the suppression of a material fact 2) that the defendant was under a duty to communicate 3) either because of a confidential relation between the plaintiff and the defendant or because of the particular circumstances of the case. § 6-5-102, Ala. Code 1975; Chapman v. Rivers Construction Co., 284 Ala. 633, 227 So. 2d 403 (1969).
In order to establish a cause of action under either of these two statutes, the plaintiff must produce evidence of a *605 present intent on the part of the defendant to deceive the plaintiff either by the misrepresentation of an existing material fact or by the suppression or active concealment of an existing material fact. See Berkel, supra, 454 So. 2d at 505; Kennedy Electric Co. v. Moore-Handley, Inc., 437 So. 2d 76 (Ala.1983); Kaye v. Pawnee Construction Co., 680 F.2d 1360 (11th Cir.1982). Further, the misrepresentation or suppression of the existing material fact must have led the plaintiff to act to his detriment in reasonable reliance thereon. Cooper v. Rowe, 208 Ala. 494, 94 So. 725 (1922); United States v. Burgreen, 591 F.2d 291 (5th Cir. 1979).
The evidence before us reveals that the defendants are engaged in a business that brings them in contact with persons either anticipating or experiencing the most extreme emotional upheaval this life affords. The very nature of the defendants' services requires of the defendants a high degree of care and skill in executing a clear, precise contract so that, when the services called for by the contract are required, the family of the deceased person is spared the additional trauma of having to renegotiate the terms of their relationship with the funeral home and cemetery.
Here, Mr. and Mrs. Crowder, in reliance on the representations of Booker Campbell,[3] executed a contract designed to relieve them of having to deal with certain aspects of a funeral when the need for such services arose. Instead, when Mrs. Crowder found herself preparing for a funeral for Mr. Crowder, a portion of the contract with the funeral home/cemetery was arbitarily denied. At the most emotionally vulnerable time in her lifeat the moment of the death and burial of her husbandMrs. Crowder found herself at the mercy of the defendants and their interpretation of her contract with them.
In light of the instant facts, the trial court necessarily preempted the jury's factfinding prerogative in concluding that there was no evidence from which to infer a material issue of fact and granting the defendants' summary judgment. The defendants' duty to inform Mr. and Mrs. Crowder of the details of the contract and of the possibility that a portion of the services promised could be refused is a question of fact, the resolution of which depends upon the inferences to be drawn from evidence as to the relation of the parties, the value of the facts given or withheld, the relative knowledge of the parties, and other relevant circumstances. Bank of Red Bay v. King, 482 So. 2d 274 (Ala.1985); Jim Short Ford Sales, Inc. v. Washington, 384 So. 2d 83 (Ala.1980); First Virginia Bankshares v. Benson, 559 F.2d 1307, rehearing denied, 564 F.2d 416 (5th Cir.1977), cert. denied, 435 U.S. 952, 98 S. Ct. 1580, 55 L. Ed. 2d 802 (1978). Therefore, it was within the prerogative of the factfinder to infer that the certificate issued to Mr. and Mrs. Crowder, upon their execution of the contract with Memory Hill, was used to induce them to execute the contract and was issued with no intention on the part of the defendants to honor it at any time, and that the dishonoring of Mrs. Crowder's certificate was purely arbitrary.
Mrs. Crowder's second argument on appeal is that the court erred in granting summary judgment as to her claim that the defendants were guilty of the tort of outrage. We disagree. We hold that the evidence will not support a finding that the defendants' conduct was "so outrageous in character and so extreme in degree as to *606 go beyond all possible bounds of decency and ... be regarded as atrocious and utterly intolerable in a civilized society." American Road Service Co. v. Inmon, 394 So. 2d 361, 365 (Ala.1980) (citing Comment (d), Restatement (Second) of Torts § 46, p. 72 (1948). See, also, Keeton v. Bank of Red Bay, 466 So. 2d 937 (Ala.1985); National Security Fire & Casualty Co. v. Bowen, 447 So. 2d 133 (Ala.1983).
We conclude that the trial court did not err in granting the defendants' motions for summary judgment as to Mrs. Crowder's claim for outrageous conduct. Therefore, the judgment appealed from is affirmed as to the tort of outrage claim and reversed as to the fraud claim, and the cause is remanded for further proceedings in accordance with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
In order for Mrs. Crowder to have a viable action for the alleged misrepresentation, her reliance on the defendants' statement must have been reasonable. Taylor v. Moorman Mfg. Co., 475 So. 2d 1187 (Ala. 1985). The defendants contend that it was unreasonable for her to rely on the representation because of the "cancel or recall" language on the certificate evidencing Mrs. Crowder's 20% discount. While it perhaps would have been unreasonable for her to believe that she would get a 20% discount, no matter what or when, it was not unreasonable for her to believe, and to rely on the belief, that the 20% discount certificate would not be cancelled or recalled at the very time she tried to use it.
[1] Memory Hill (the cemetery) and Memory Chapel (the funeral home) are two separate corporations. Memory Hill is owned by Mrs. Max Biggs. Booker Campbell is an employee of Memory Hill, and Jim Moore is the manager of that corporation. M.B. (Morgan) Brown is the manager of Memory Chapel, but the corporation is owned by Jim Moore, who purchased it from his father-in-law, Max Biggs.
[2] On February 2, 1987, Mrs. Crowder filed a motion to reconsider the trial court's January 5 ruling. This motion was considered and denied with the trial court's consideration and granting of the defendants' motions for summary judgment as to the added counts IV, V, and VI of the amended complaint.
[3] We recognize that, in a recent case involving similar facts, this Court held that the plaintiff had proffered no factual evidence of fraud and, therefore, that summary judgment for the defendant was proper as to the plaintiff's claim for fraud. See Hinson v. Center Court Productions, Inc., 514 So. 2d 1374 (Ala.1987). In Hinson, however, the defendant was a "middleman" who solicited the plaintiff's execution of a contract that, by its terms, was subject to the approval of a third party. We held that under the contract's express terms, the defendant could not be guilty of a misrepresentation because the final approval of the plaintiff's activities under the contract was solely within the discretion of the third party. In the instant case, however, there is no "middleman," and the discount certificate was represented directly to Mrs. Crowder by an employee of Memory Hill (allegedly acting as an agent of Memory Chapel). Further, the validity of the certificate was not made subject to the approval of any third party outside the contract. | October 2, 1987 |
815db113-0bbb-4569-8cb1-f9e6ec5c74b1 | Ensor v. WILSON BY AND THROUGH WILSON | 519 So. 2d 1244 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 1244 (1987)
Herman ENSOR and Ensor, Baccus & Williamson, P.A.
v.
Misty WILSON, a minor, who sues by and through her next friend and natural father, Robert WILSON
85-1499.
Supreme Court of Alabama.
October 23, 1987.
Rehearing Denied February 12, 1988.
*1245 Bibb Allen, Thomas W. Christian and Karen O. Bowdre of Rives & Peterson, Birmingham, for appellants.
Clifford Emond, Jr., and Michael A. Worel of Emond & Vines, Birmingham, for appellee.
Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for amicus curiae The Medical Assoc. of the State of Alabama.
John S. Key and Scott Donaldson of Eyster, Key, Tubb, Weaver & Roth, Decatur, for amicus curiae Alabama Assoc. of OBGYN.
BEATTY, Justice.
Appeal by Herman Ensor, M.D., and Ensor, Baccus & Williamson, P.A., from a judgment for plaintiff, Misty Wilson, a minor suing by her next friend, based upon a jury verdict that awarded plaintiff $2.5 million.
*1246 The action was based upon allegations of malpractice.
Plaintiff is a child who was born prematurely, suffering a degree of brain damage and retardation. Prior to her pregnancy with Misty, Mrs. Wilson had experienced two miscarriages and one abortion. Mrs. Wilson's condition, described as bicornate uterus, increased the risk of miscarriage or pre-term delivery, and, in fact, she had been medically advised not to risk a premature baby or another miscarriage by another pregnancy. Nevertheless, she did become pregnant again, and, for the first 19 weeks of her pregnancy, was a patient of Dr. Ben Younger in Birmingham.
On October 24, 1979, Mrs. Wilson was seen for the first time by Dr. Howard Williamson, a partner in the professional association of Ensor, Baccus & Williamson. Dr. Ensor had examined her earlier to administer a pregnancy test.
Around 10:00 p.m. on December 29, 1979, thinking her "bag of waters had broken," Mrs. Wilson telephoned Dr. Williamson's answering service and was told that Dr. Ensor was on call. Within a few minutes, Dr. Ensor returned the call. Mrs. Wilson told Dr. Ensor that her "waters had broken," that her due date was the end of March, and that she had been taking medication, but had developed a rash, whereupon earlier in the week Dr. Williamson had advised her to stop that medication, substituting Vasodilan. According to Mrs. Wilson, she explained why she knew her waters had broken and, in response to Dr. Ensor's question, told him that she could be at the Cullman hospital in about 20 minutes. She testified that Dr. Ensor stated that he could meet her there in ten minutes.
Dr. Ensor denied that he told Mrs. Wilson that he would meet her at the hospital. In any case, a nurse at the Cullman hospital, Sandy Alldredge, was telephoned by Dr. Ensor and given orders to admit Mrs. Wilson to a room; to check her with nitrozine paper, but not to give her a pelvic examination; to do a complete blood count and urinalysis; to administer Dalmane by mouth; and to confine her to bedrest with bathroom privileges. As Dr. Ensor explained: he did not wish a pelvic examination, which might stimulate labor; a nitrozine test would determine membrane rupture; and if that had happened, he wanted Mrs. Wilson sent to the University of Alabama at Birmingham Hospital ("U.A.B.") immediately. Such a rupture at 29 weeks is a medical emergency, since labor may soon follow with delivery of a premature baby, Dr. Ensor explained, or there is a risk of infection to the baby. He stated that he had no intention of keeping Mrs. Wilson in Cullman because the Cullman Medical Center did not have facilities to care for such a premature child.
Mrs. Wilson proceeded to the Cullman hospital, where she was taken to a room at 10:50 p.m., undressed, and put to bed. By 11:00 or 11:05, the attending nurses ascertained that her waters had in fact ruptured. The attending nurse who made this determination did not telephone the results to Dr. Ensor. According to her, absent specific instructions from the doctor to call, the proper procedure was that the nurse was to use her judgment as to whether to call him, and thus the attending nurse proceeded to use a fetoscope to locate the baby's heartbeat. A fetal heart monitor was then attached to Mrs. Wilson. The graph ran for 26 minutes and was removed at 12:05 a.m. A factual dispute over its reading exists: the nurses testified that the monitor strip revealed late decelerations of the fetal heart rate and, thus, fetal distress; the testifying physicians all concluded that the strip did not conclusively disclose late decelerations. Dr. Ensor himself denied that it disclosed any late decelerations.
Having determined that the waters had ruptured and that Mrs. Wilson was experiencing irregular contractions, and, according to the nurses, having observed late decelerations of the fetal heart rate, one of the attending nurses telephoned Dr. Ensor to report Mrs. Wilson's condition. The medical records disclose that he was called at 11:35 p.m. The tape itself contained a written time notation indicating that Mrs. Wilson was taken off the tape at 12:05 p.m. *1247 Based upon the nurses' testimony and the length of the graph, 26 minutes, it is possible that the tape reading did not begin until 11:39 p.m. Nurse Alldredge testified that the attending nurses would have watched the strip for 19 or 20 minutes before they could have made a judgment on its disclosures.
According to Dr. Ensor, he was told by the nurse who telephoned him that the nitrazine test was positive and that Mrs. Wilson had begun to have some contractions, but he stated that he was not told that there had been decelerations and fetal distress. On the other hand, nurse Bonnye Cruce testified of telling Dr. Ensor by telephone of the late decelerations on the monitor strip. During this conversation, Dr. Ensor ordered Mrs. Wilson transferred to U.A.B., and she was placed in the ambulance for transfer at 12:05 a.m., or a short time thereafter.
Dr. Ensor gave no special instructions regarding Mrs. Wilson's trip in the ambulance because, as he testified, under what he knew about her and had been told, no special orders were needed. He stated that, as far as he knew, both Mrs. Wilson and the baby were in fine shape when they left the hospital. Dr. Ensor did not telephone U.A.B. to advise of her departure, stating that U.A.B. had a policy of accepting any patient transferred to it, and that there were always staff physicians and two or three residents available in the labor and delivery unit. His procedure in this instance, he related, accorded with the practice at Cullman and with transfer procedures he had discussed with the acting director of maternal medicine at U.A.B. On the other hand, there was evidence admitted on the "Standards for Obstetric and Gynecologic Services," which required that the transfer of patient care be preceded by a complete explanation of the need for the transfer, and that the transfer be acceptable to the other facility. Dr. David Abramson, plaintiff's expert witness, interpreted this to mean: "The doctor, the responsible doctor, has to call the other doctor on the other end and say, I am sending you such and such a patient, and that doctor has to agree to accept that patient and then and only then can you transfer the patient."
When Mrs. Wilson departed Cullman at, or near, 12:05 on the morning of December 30, 1979, the baby was healthy and had incurred no brain damage. Dr. Abramson, though not certain, testified that the fetal monitor strip might disclose late decelerations indicative of the baby's reaction to contractions of the uterus, resulting in loss of circulation in the baby and a drop in the baby's heart rate. This, to him, represented a potential problem. Other physicians differed. Nurse Alldredge accompanied Mrs. Wilson in the ambulance to U.A.B., and, according to her, Mrs. Wilson did not require either oxygen or intravenous fluids during the trip. When the ambulance was near Gardendale, about ten minutes from U.A.B., Mrs. Wilson's contractions became harder. Dr. Abramson's testimony indicated this event as the time when the baby, Misty, could have suffered brain damage from a lack of oxygen.
Nurse Alldredge testified that the ambulance driver radioed ahead to U.A.B., but stated that when they arrived shortly after 1:00 a.m., no one was expecting them, but that Dr. C.J. Searcy was there when she went in. Dr. Searcy met them in the hallway in front of the entrance to the labor and delivery room. Dr. John Huddleston, another physician on duty, also participated in the evaluation, which indicated that Mrs. Wilson would soon deliver a premature child. Mrs. Wilson was taken into the delivery room, where a fetal monitor was applied at approximately 1:10 a.m. This provided an unsatisfactory reading, so an internal fetal scalp electrode was applied. The record executed by Dr. Searcy showed fetal distress. Dr. Searcy testified that the strip tracing from this monitor disclosed some variable deceleration and was compatible with a very late stage of labor and imminent delivery, not unusual. On the other hand, Dr. Abramson testified that this strip was indicative of fetal distress, and Dr. L. Jeffers Fowlkes, defendant's expert witness, testified that the strip disclosed severe variable decelerations, very common at that time in labor. Dr. Fowlkes *1248 added that unalleviated severe variable decelerations can lead to hypoxia (low oxygen) or asphyxia (metabolic abnormality), and that unalleviated asphyxia can lead to brain damage.
Mrs. Wilson was taken to the delivery room at 1:20 a.m. The baby descended three stations in five minutes, and, according to Dr. Searcy, the infant was delivering so rapidly there was no time to perform an episiotomy. According to Dr. Searcy, this situation offered no indications for an episiotomy because the perineum offered no resistance to the fetal head, which was delivering quite rapidly. He added that, under other appropriate circumstances with time to safely do so, in his opinion an episiotomy would have been performed. The baby was born at 1:25 a.m., or approximately 22 minutes after Mrs. Wilson arrived at U.A.B. The total process from rupture of membranes to delivery encompassed approximately three hours. When born, Misty was eleven weeks premature and weighed 2.5 pounds.
According to Dr. Huddleston, the baby was born in excellent shape, but prematurely; it could not have been in any better shape with its premature state. An Apgar test (a system measuring the condition of a newborn baby) was made within one minute after birth, with a score of "2" (a low score). In the opinion of Dr. Abramson, this indicated that the child was born near death. Dr. Huddleston, however, testified that Apgar scores are low on premature babies because these babies do not have the neuromuscular development necessary to perform the acts included in the scoring system. The baby was described by Dr. Huddleston as a rigorous baby five minutes after birth. Dr. Huddleston also referred to studies which "found a large percentage of babies at this age range who had quite normal cord artery pH, which is the measure of acid related to hypoxia in the Apgar score. The Apgar score was zero to three and a lot of them still had quite normal cord artery pH's ... [m]eaning that they [were] normal prematures who were not asphyxiated and you would not be able to say that the low Apgar score meant asphyxia." On the other hand, the entry, "AsphyxiaApgar 2," appears under a discharge sheet executed by a pediatrician at U.A.B.
Immediately after birth, a blood sample was taken from the baby's umbilical cord. The cord blood gases, according to Dr. Searcy, were normal. The baby's bicarbonate level of 23 was normal and indicated to Dr. Huddleston that the baby had not suffered a serious hypoxic episode within 30 minutes to one hour prior to delivery. Dr. Searcy testified that, judging from the levels of blood gases, his opinion was that there was no evidence that the baby suffered from any asphyxial problem 30 minutes before:
The cord gas test was described as the "gold standard" in determining whether or not the baby was asphyxiated at the time of delivery. However, Dr. Abramson testified that from what was known about this baby, he would expect her blood gases to be normal: "If the injury were completely due to the trauma, then the blood gases could be normal. The blood gases would be abnormal if the injury would be due in part at least to asphyxia." According to Dr. Searcy, there was no medical evidence that Misty suffered hypoxia before arriving at U.A.B. Another attending physician, Dr. Morawitz, found no evidence of intraventricular bleeding at the time of Misty's delivery. On the other hand, Misty's medical records at the hospital stated: "Suffered a subarachnoid hemorrhage at birth and had multiple problems in the high risk NICU." And the medical records describing the "history of present illness" listed "apnea and bradycardia early in the course which was secondary to intracranial hemorrhage."
There was testimony that Misty faced numerous medical problems because of her severe prematurity and low birth weight. *1249 It was also established that as many as 35% of preterm babies in Misty's weight range die, and that approximately 30% of surviving babies born at less than 30 weeks' gestation have some gross neurological abnormalities. But other evidence established that for premature babies in Misty's weight range, the survival rate was 74% with no higher incidence of cerebral palsy and mental retardation than the group of matched controls.
The evidence disclosed that most preterm babies in Misty's weight range suffer from hyaline membrane disease ("HMD"), also known as respiratory distress syndrome. According to the evidence, HMD, a disease occurring when the lungs are not yet ready to breath, is the number one problem causing death in premature babies. Fetal lungs, it was shown, make a substance known as surfactant, which is necessary to keep the lungs expanding when one breathes. Pre-term babies breathe; however, their lungs will not expand without surfactant, and, as a result, they develop HMD. There was testimony that in its natural course, HMD becomes worse over the first few days of such a baby's life, and, as it worsens, asphyxia and acidosis result if there has been oxygen deficiency for a period of time. And it is not uncommon for such an infant's lung to collapse due to the problems associated with the required mechanical respiratory therapy necessary to get oxygen into the lungs.
On the other hand, there was medical testimony that these problems did not cause any brain damage to the baby, and specifically, that Misty did not suffer any hypoxic event following birth that would have led her to have any brain damage.
On the second day of her life, December 31, 1979, and as a result of HMD, Misty continued to experience respiratory problems. Her chart was marked "watch for ICH [intracranial hemorrhage]," and she was placed on a ventilator. Then, on January 1, 1980, at approximately 4:00 a.m., one of her lungs collapsed, and there was testimony that this was the most significant hypoxic event she sustained. The next day, her spinal fluid pressure was tested and found to be rising, indicating that hemorrhage had occurred. The intracranial spinal fluid pressure increased from 18 centimeters of water on January 2 to 35 centimeters of water on January 3. This change in pressure indicated a massive intracranial hemorrhage.
According to the medical testimony, the classic setting for an intracranial hemorrhage is a premature infant who has sustained a significant hypoxic event 24 to 48 hours prior to the hemorrhage. Misty's brain hemorrhage was diagnosed five days after her birth, yet the medical records disclosed symptoms of hemorrhage occurring within 24 to 48 hours from the time of the hardening of Mrs. Wilson's contractions at or near Gardendale. There was also testimony that an intracranial hemorrhage is frequently caused by the immaturity of lungs and inability to provide adequate oxygen, and this respiratory failure due to HMD generally, places great stress on the cardiovascular system, i.e., it can provoke changes in blood pressure and blood chemistries that can lead to hemorrhage in these areas of a poorly developed premature brain.
On January 3, 1980, a pediatric neurologist diagnosed a massive intracranial hemorrhage in Misty with a poor prognosis for survival. A CAT scan performed on January 16 disclosed a type-four subependymal/intra-ventricular hemorrhage. A neurosurgeon, who later operated on Misty, testified that there was no way that Misty could have sustained a hemorrhage of this magnitude a day or two after birth and the symptoms of it not be manifested until later. Even so, Misty's neurosurgical medical records stated: "Suffered a subarachnoid hemorrhage at birth and had multiple problems in the high risk NICU."
The brain hemorrhage caused Misty to develop hydrocephalus because the blood blocked the pathways through which spinal fluid is normally reabsorbed, causing her head to "balloon up." Temporary measures were used to drain the spinal fluid from Misty's brain until surgery could be performed. Later, in March 1980, when she had gained sufficient weight, an operation *1250 was performed on Misty; a shunt, i.e., a surgically created channel, was placed in her brain to drain off spinal fluid.
As a result of the massive brain hemorrhage, a substantial amount of brain tissue was destroyed, primarily on the right side of Misty's brain. She suffers from cerebral palsy, affecting the left side of her body, and mental retardation.
Misty filed this action in December 1981 by her next friend and natural father, Robert Wilson, naming as defendants, among others, Dr. Herman C. Ensor, and Ensor, Baccus & Williamson, P.A. The complaint alleged that the defendants provided negligent medical and obstetrical care to Misty prior and during her birth which resulted in her injuries. Pleadings, motions, and discovery ensued. Trial was had for some 18 days, after which a jury verdict was rendered awarding damages against the defendants named above in the amount of $2.5 million. The defendants moved for a new trial, or judgment notwithstanding the verdict, upon a number of grounds. After a hearing, the trial court denied the motion, and the defendants appealed. We will consider the issues raised in sequence.
Did the trial court err in its refusal to grant defendants' motions for a directed verdict, JNOV, or new trial?
Central to defendants' argument of this issue is their insistence upon an absence of proximate cause. In short, defendants argue that there was no evidence establishing a connection between any conduct of Dr. Ensor and the injuries sustained by plaintiff. And, in that connection, defendants attack the propriety of allowing plaintiffs' expert medical witness to testify that Dr. Ensor's care fell below the standard of care required of obstetricians.
The generally accepted principle of proximate cause was explained in Marshall County v. Uptain, 409 So. 2d 423, 426 (Ala. 1981):
"`The proximate cause of an injury is the primary moving cause without which it would not have occurred, but which, in the natural and probable sequence of events, produces the injury.' City of Mobile v. Havard, 289 Ala. 532, 268 So. 2d 805 (1972), appeal after remand, Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So. 2d 228 (1974). Negligence need not be the sole cause of injury in order to hold the negligent person liable. It is sufficient that his or her negligence, `concurring with one or more efficient causes, ... is the proximate cause of the injury.' [Citations omitted.] When the concurring cause is another person's negligence which might reasonably be anticipated or foreseen, the original act of negligence may be regarded as the proximate cause of the injury which results. [Citations omitted.]"
See also Davison v. Mobile Infirmary, 456 So. 2d 14 (Ala.1984), and Williams v. Bhoopathi, 474 So. 2d 690, 691 (Ala.1985), where it was stated that:
This principle was recognized and applied in Howard v. Mitchell, 492 So. 2d 1018 (Ala. 1986), and follows the pronouncement contained in Orange v. Shannon, 284 Ala. 202, 206, 224 So. 2d 236, 239 (1969):
Given the law of proximate cause, did the trial court err in allowing Dr. Abramson to testify to facts bearing upon that issue?
This issue arose because Dr. Ensor was a specialist in obstetrics, while, as defendants argue, Dr. Abramson was a pediatrician, with a subspecialty in perinatal medicine. Thus, defendants insist, Dr. Abramson was not qualified to give a professional opinion on whether or not Dr. Ensor's actions fell below the standard of care for an obstetrician in his treatment in connection with Misty's birth and injuries.
The qualification of a medical expert in one discipline to testify in another was the subject of Wozny v. Godsil, 474 So. 2d 1078 (Ala.1985). It will be helpful to consider this Court's observations in that decision, at 1080-81:
"`Generally speaking, physicians of one school are regarded as incompetent to testify in malpractice actions against physicians of other schools, and it has been held that the defendant in a malpractice action is entitled to the testimony of competent practitioners of his own school of medicine as to the teachings of that school and his conformity thereto in his treatment of his patient, on the issue of whether he exercised the requisite degree of skill and care in such treatment.'
"`This rule does not however, exclude the testimony of physicians of other schools or experts in other lines when that testimony bears on a point as to which the principles of the two schools concur, such as matters of diagnosis, the methods and dangers of the use of X-ray or other electric or mechanical appliances in common use by the several schools, or the existence of a condition that should be recognized by any physician of any school. There is authority, however, which emphasizes the point that the tenets and standards of treatment which form the premises for the testimony must be so substantially the same on the point in issue as to afford a true test....' [Emphasis added in Wozny.]"
Dr. Abramson's extensive direct examination included the following testimony:
"Q. What field do you practice in your day to day activities?
"A. I have three specialties. I am a specialist in pediatric medicine and perinatal medicine, that means the period around birth, and in emergency medicine. I practice each day in all three of my specialties.
"Q. When you are talking perinatal medicine, can you explain to us where that fits in in terms of between obstetrics and taking care of the child and pediatrics?
"A. Sure. I think so anyway. Traditionally or a long time ago, there were two specialties that dealt with reproductive medicine and the process of having babies and taking care of them.
"One was obstetrics and gynecology. One was pediatrics. And usually the obstetrician/gynecologist [would] take care of the mother and fetus up until the time that the baby was born. And then, the pediatrician would come on and take care of the baby and the child as the baby grew up.
"And in the late 1950's, early 1960's, it became very clear that there was a long period of time, usually 40 weeks [or so] when the mother and fetus exist as a team, and that there are considerations for both of them. And some obstetricians/gynecologists and some pediatricians became interested in the area where there was a big overlap between the specialties. And there became subspecialists who were interested *1252 in dealing just with that period of time and with reproductive medicine.
"If you started like Doctor Huddleston started, as an obstetrician/gynecologist, so he took his sub-boards in what's called fetal and maternal health.
"I started as a pediatrician. So, I took my sub-boards in what's called newborn perinatal medicine. But, we share the interest in the mother and fetus during the time of pregnancy and the newborn.
"The field of medicine is called perinatal. It comes from peri, which means around, natal meaning birth. It means the period around birth. And it's defined usually as the period from the time that the baby could live if born up until the end of the baby's first month of life is defined as the perinatal period.
"A. ... I then became the physician in charge of the nurseries of Georgetown. And then founded the division of newborn and perinatal medicine in the department of obstetrics and gynecology and pediatrics.
"I became part of the full-time faculty in pediatrics, and in obstetrics and gynecology at Georgetown and stayed there for the next eight years.
"Q. And during your fellowship period, did you do any special research projects?
"A. I had many research projects going. I think the most important one while I was a fellow was in the effects of what happened during labor and delivery on Hyaline Membrane Disease and on the blood coagulation system in the mother, and the fetal placenta circulation in the newborn.
"Q. The word has come up before already in this trial, Hyaline Membrane Disease. What is that, doctor?
"A. Hyaline Membrane Disease has a lot of different names. It's a disease that premature babies get. And it's not really a disease. It's just simply the fact that because babies are premature, sometimes they are born before their lungs have gotten all the chemicals that they need to make it easy to breathe. And those babies then will have difficulty in breathing after they are born and we call that Hyaline Membrane Disease or Respiratory Distress Syndrome is the preferred word for it.
"Q. You said you taught medical students. Were you actually teaching them obstetrics at that time?
"A. I was teaching in obstetrics, pediatrics and physiology. I taught in all three of their curriculums in reproductive medicine.
"Q. And part of your duties in administration, did you ever have any type of committees where they actually did review of the care that had been administered to patients?
"A. Yes, sir, both on the individual hospital level at Georgetown and several of our affiliated hospitals. And I also was chairman of the committee on the fetus and newborn for the three-state area in which we practiced, and reviewed the policies and procedures and what was done at each and every hospital within that three-state area.
"Q. And how many years were you working there under those duties?
"Q. Seven years. During that period of time, did you take some time off, I believe that [they] call it a sabbatical, to write a book?
"A. I took my seventh year off, you know, at Georgetown and completed work on the book that I was on the senior editorial staff, called Prevention of Fetal, Embryologic and Neonatal Disorders.
"Q. And bringing that down into laymen's terms, what was the book about?
"A. The book was about what we knew about reproductive medicine and about what the risks were, how they could be dealt with, what we knew at that time, which was 1976 or 1977, and where we ought to be going; in other words, we started to talk about complete regionalization and that sort of thing in the book.
*1253 "Q. Since '77, when you left Georgetown School of Medicine, have you been on full-time faculty anywhere?
"A. No, sir. I took a leave of absence from the Georgetown full-time faculty. I have not joined another full-time faculty.
"A. Well, certain commitments that are longstanding. I teach for the State of Maryland, for the Institute of Emergency Medical Services, problems in dealing with children, with reproductive emergencies, and with resuscitation or helping children who have been seriously injured. I do that, I believe, six times a year.
"And then, I am invited as visiting professor to different universities throughout the country and throughout the world, actually, to talk about any one of the fields that I teach in.
"Q. You said that while you were there at the Georgetown School of Medicine that you developed, and I wrote down what you said, it was something about the chairman of the division of newborn and perinatal medicine?
"A. That was basically a new department that fell withinmy office was in obstetrics and gynecology. But, my department was responsible both to obstetrics and gynecology and to pediatrics, and it dealt with high risk reproduction. In other words, the kind of case that Cathy was in here, Cathy Wilson was. This is a case where you expect problems. And in that kind of case, we would call it high risk, and that would fall under the jurisdiction of the high risk department, would be automatically consult to my department, the same as it would be at U.A.B. This is a very high risk delivery and the whole team then would get involved.
"Q. And in talking high risk deliveries, have you yourself delivered children in a high risk situation such as Cathy and Misty had?
"Q. About how many babies have you had to deliver yourself?
"Q. How many high risk deliveries have you participated in as part of the team?
"Q. I understand one time that you were the chief of the committee of the three-state area that was examining the care for the fetus and the newborn?
"Q. What states were that? And then tell us a little bit about that.
"A. Well, it's not really three states. It's the District of Columbia, Maryland and Virginia, which formsMaryland and Virginia completely surround the District, so that anything that happens involves three states. It's like going across the street, you might be in a different state, so it's all one area.
"I chaired the committee on the fetus and the newborn to examine the policies and procedures and quality of care at all the hospitals in terms of obstetrical care, labor and delivery care and the neonatal care, and to deal with the referral patterns during the period of time that regionalization was going on."
Under the principles approved in Wozny, supra, and the standard of care set out in Code of 1975, § 6-5-484,[1] this evidence sufficiently disclosed Dr. Abramson's background and familiarity with the school of *1254 obstetrics on the standard of treatment to be exercised by Mrs. Wilson's obstetrician at the time in question. Hence, it was not error for the trial court to allow Dr. Abramson's testimony as an expert in perinatal care.
Did the testimony of plaintiff's medical expert, Dr. Abramson, satisfy the requirements of the law for proof of negligence and proximate cause?
According to Dr. Abramson's testimony, Dr. Ensor departed from the proper standard of care of Mrs. Wilson and her fetus in a number of interrelated ways:
(a) Dr. Ensor did not go to the Cullman hospital to examine Mrs. Wilson to determine whether her cervix had changed, nor did he allow the hospital nurse to examine her. Thus, Dr. Ensor did not conduct, nor did he have conducted, the examination needed to determine whether Mrs. Wilson was in labor. Because the records at the Cullman hospital disclosed active labor, with ruptured membranes at 29 weeks, "that" Dr. Abramson said, "is a medical emergency of the highest magnitude." He added:
"Q. We see that she arrived at 10:50 p.m. And assume that at the time that she arrived at the hospital that Nurse Alldredge notified Doctor Ensor of the admission, and assume for the purposesand here is where it says, physician notified of admission, Doctor Ensor by Nurse Alldredge. That's what it says there. Assume for the purpose of this question that she notifies him and at the time that she notifies him that she has the information of the nitrazine test showing that the membranes have, in fact, ruptured, and that in her opinion the patient is in active labor.
"Now, under that set of circumstances, do you have an opinion what the appropriate response would have been by Doctor Ensor to that information?
"A. He then has to make a decision, is she far enough advanced in labor that they can no longer safely transport the mother and fetus to U.A.B., or is she not. So, what he has basically got to do is say, hopefully we will be able to transport mother and fetus to U.A.B. I am on my way in to find out and make arrangements for that, and let's go ahead and call them and let's get started on anything we need to do to accomplish that, and get a monitor on so we know what the status of the fetus is because that, too, is critically important in this situation. But at that point, you know that she is going to deliver, it's a question of when and what you need to do on the way, what you need to do either on the way down to U.A.B., or what you need to do in terms of gettingarranging for safe transport for the baby if she is going to deliver in Cullman. In this case, we know that she was in early labor, could easily and safely have been transported; that arrangement could have been made with Doctor Huddleston or Doctor Searcy, they would have been expecting her. She would have been transported in an appropriate position with fluids and oxygen and the outcome might then could have been very different.
"Q. I want you to assume that he hasn't come in, he hasn't done what you've felt is the appropriate response initially to come in and examine her. Now, let's just assume that that doesn't happen. Let's assume that in your opinion [the doctor] doesn't give the right orders. He won't let them do a pelvic exam, and he tells them to check to see if she is in labor.
"Let's assume that has occurred and you have told us that he should have done other things. Assuming that has occurred, he finally gets a call from the nurse after she determines about the late deceleration, even after all this other has occurred. At that point do you have an opinion what his response should have been under that circumstance?
"A. At that point the question is, do we or don't we have time to get her down to U.A.B.
"Q. How do you determine whether or not we would have time?
*1255 "A. Examine her and find out how far progressed she is in labor, attempt to do everything you can for fetal resuscitation, and that simply means get the mother into an appropriate position where the weight of the baby isn't laying on the mother's big blood vessels and interfering. So, you need to get the mother over onto her side, breathe her on some oxygen, get intravenous fluid going, call U.A.B., talk to whoever is going [to be on the] highrisk obstetrics that night, and tell them where she is, what condition she is in and that you are transporting her immediately down so that they can be ready for her when she walks in the door and that's it if you determine from your examination that you have time to do that. If you don't, you may try and get someone up that can take care of the baby. In this case, we know there was time. So, that's what we would have done.
"Q. And there are no such orders as you've described in the records, is there?
"A. None at all, no, sir.
"[His testimony continued, on cross examination:]
"Q. ... Now, I want to come to my last point, it's your testimony and you are telling the jury that Misty has brain damage and that this brain damage was caused by two things, that's asphyxia of the fetus before birth, is that right or wrong?
"A. That's only one, sir.
"Q. All right. That combined with trauma during birth, going through the birth canal?
"A. I don't believe it was going through the birth canal. I think it was just coming out through the perineum.
"Q. Coming out the perineum?
"Q. Yes, sir.
"Q. I want to be sure about this. You are saying that her brain injury was caused by two things; one, asphyxia before birth. In other words, notthe little fetus, the little baby inside the mother is not getting enough oxygen in the brain?
"A. Yes, sir.
"Q. Combined with trauma to the head when the head comes out the end of the birth canal?
"A. Yes, sir.
"...
"Q. There was certainly no asphyxia in your opinion when she left Cullman Medical Center, was there?
"A. Well, I think that there was probably signs that you were getting asphyxia, yes, sir.
"Q. I thought you just told us the brain was entirely intact and normal?
"A. I said if the baby had been delivered appropriately, it would have been, there was no permanent brain damage. But, there were late decelerations going on according to the nurses, according to, as you say, your nurses who were standing there with the mother and making their assessment, they assessed a progress of labor that would indicate that hypoxia was playing a part in it. My testimony is from the chart that I have seen, that had the baby been delivered approximately, at an appropriate time, that the baby had not already been permanently injured at that time and that standard care would have wound you up with a good baby that would have done well. But that didn't happen.
"...
"Q. Remember when I examined you I said I wouldn't waste time and I would call your attention to this.
"Here is question, what is the basis of your opinion that had she been transferred 30 minutes sooner, that this would not have happened, that her problems would not have occurred. What was your answer?
"A. Had she been transferred in a standard fashion 30 minutes sooner, all of her problems were easy to deal with.
"Q. That's your answer today, too?
"A. Yes, sir, certainly.
"Q. And in other words, what they did with all of this fooling around and with whoever did it, the doctor or the nurses or whoever did it, they were 30 minutes off?
"A. Thirty minutes, I believe would have made a big difference. But, not only *1256 30 minutes. And transferred in standard manner, that means that Doctor Searcy and Doctor Huddleston knew what was coming.
"Q. Should have been given the orders and thewe will let them testify. But, what I am trying to say, had she been transferred in a standard fashion
"A. Yes, sir.
"Q. 30 minutes sooner, all of her problems were easy to deal with?
"A. That is correct, if she had been sent to them in a standard fashion but earlier.
"Q. Something then happened in that ambulance, because she left Cullman just like you told Bob, with no asphyxia?
"A. No, sir. I didn't tell him that. I said, it's my opinion that when she left there, no permanent brain damage had taken place, she was laboring with a preterm baby and the nurse was hearing late decelerations. And when she got to U.A.B., she has got severe variables and they can cause a problem and transferred her on, monitored her appropriately like they do at U.A.B., they would have gotten her to a safe delivery I think and she would have been fine.
"Q. Please, sir, you didn't tell Bob that there wasn't any brain damage when she left Cullman?
"A. Yes, sir. There was no permanent brain damage that had occurred yet. But, she was in the process of premature labor which can damage the brain unless you take appropriate care of it and appropriate care wasn't taken.
"Q. What wasn't taken?
"A. Appropriate care.
"Q. What was the appropriate care in that ambulance?
"A. However Doctor Huddleston had told Doctor Ensor that he wanted this baby transferred, much earlier and with appropriate monitoring and appropriate positioning of the mother I think this wouldn't have happened [sic].
"...
"Q. Do you know what was not done in that ambulance?
"A. Yes, sir, of course.
"Q. What was not done that contributed to cause this young lady's brain damage?
"A. She wasn't put in soon enough. She wasn't in the right position. The doctor didn't know she was coming. She didn't have IV fluids going, and with the presence of late decelerations that the nurses heard, she wasn't breathing oxygen during transport. All of the things must be done to the standard. But, that's only one of the right ways to do it. As long as Doctor Huddleston had dictated how it was that she was to be transferred, it would have met the standard.
"Q. I will think that you will answer this, please, sir. You don't know what was done in that ambulance; do you?
"A. I know a lot of what wasn't done, but I don't know what was done.
"Q. All right. What wasn't done, then?
"A. She wasn't given oxygen, she wasn't on IV's, she wasn't standardly positioned, no doctor knew that she was coming and the nurse in charge during that transport didn't know who she was taking the patient to, and the guy who was getting this patient, these two [doctors] didn't have any idea in the world that a woman just about to deliver with a premature baby at 29 weeks was about to walk in the door unannounced as Doctor Searcy wrote in his note."
We have set out Dr. Abramson's and other evidence extensively, not only because of the nature of the case but also because of the insistence of defendants in their position regarding the element of proximate cause.
Although Dr. Abramson's conclusions were disputed by other medical testimony, under the authorities the evidence was not only sufficient to establish a factual issue on the breach of a professional duty but also to present a factual issue for the jury on the proximate cause of Misty's injuries.
Did the trial court err in permitting an in-court demonstration between Misty *1257 and a special education therapist? We quote from defendants' brief for an understanding of this issue:
In considering this issue, we note that the therapist, Dr. Francine Holland, the holder of a Ph.D. in education, was sworn as a witness and was subjected to a searching cross-examination. The trial court, moreover, required her examination to be previewed outside the jury's presence. It is clear, also, that the plaintiff's cognitive, as well as physical, ability was in issue on the matter of damages.
In his order denying the defendants' post-trial motions, the trial court made the following observations:
The exhibition of injuries, usually by photograph or like means, see Occidental Life Ins. Co. of California v. Nichols, 266 Ala. 521, 97 So. 2d 879 (1957); C. Gamble, McElroy's Alabama Evidence, § 207.01(5) at 461-2 (3d ed. 1977), is permissible in the measurable discretion of the trial court. While we have been unable to find a case directly on point, an Ohio case, Heidbreder v. Northhampton Township Trustees, 64 Ohio App.2d 95, 411 N.E.2d 825, 829 (1979), approved the demonstration in open court of an infant who allegedly had suffered brain damage:
It is not clear from Heidbreder that the demonstration held in that case contained questions and answers between the demonstrator and the demonstratee, or that, as here, the demonstration was conducted by a testifying witness or by counsel. Nevertheless, under the control of the trial judge, the demonstration in the present case was not different in theory and practice from the relevant exhibition of wounds, movement, articulation, and the like, whether by the witness himself or through the use of the medium of photography, which, after all, is in effect another witness. Indeed, it would be difficult to exhibit cognition without a demonstration of vocal expression, physical response, or a combination of both, and thus it would not be, as a matter of law, erroneous to have such a demonstration guided by a witness skilled in ascertaining such relevant responses and explaining their meaning. The accuracy of such a demonstration, of course, is to be tested by the requirements of relevancy, and such a demonstration is to be disallowed when its probative worth is exceeded by its capacity for prejudice. In this case, we find no abuse in the trial court's permitting the demonstration.
Did the trial court correctly prevent Dr. Fowlkes from testifying concerning care and treatment received by Misty Wilson at U.A.B.?
During the initial stages of this action, plaintiff addressed interrogatories to the defendants concerning expert witness testimony to be given on behalf of Dr. Ensor. In response to this inquiry, Dr. Ensor's lawyer responded that Dr. L. Jeffers Fowlkes (a member of an obstetrics/gynecology medical group practicing at St. Vincent's Hospital) would give his opinion concerning the prenatal care given during the period of time up until the transfer of Cathy Wilson, Misty's mother, to U.A.B. Furthermore, at the deposition of Dr. Fowlkes, the following occurred between Dr. Fowlkes and plaintiff's lawyer:
Furthermore, following the deposition of Dr. Fowlkes, plaintiff filed a motion in limine to prevent "any opinion of Dr. Fowlkes concerning whether any actions of Drs. Searcy and Huddleston met the proper standard of care." The effect of this motion was taken up in the preliminary discussions held in open court when the case was called for trial. The following discussion took place between counsel and the court:
The trial court granted the motion in limine and limited the testimony of Dr. Fowlkes.
Thereafter, during the trial, Dr. Fowlkes was called as a witness by defendant, Dr. Ensor. His testimony on direct examination dealt primarily with the events in Cullman, including Dr. Fowlkes's opinion regarding the content of the fetal monitoring tape taken at the Cullman hospital. And then the following transpired between defendant Ensor's counsel and his witness, Dr. Fowlkes:
This exchange obviously dealt with the contents of a chart on Misty Wilson's condition prepared at U.A.B., containing notations of Dr. Huddleston made thereon. No objections were made to these questions and answers, and, indeed, it does not appear that they were addressed to the subject of the motion in limine, i.e., opinions of Dr. Fowlkes on the standard of care exercised by the physicians at U.A.B.
The counsel for plaintiff took Dr. Fowlkes upon cross-examination:
This testimony, also, did not touch upon the standard of care practiced at U.A.B.
The issue present under consideration arose when counsel took Dr. Fowlkes upon cross-examination:
Counsel for Drs. Huddleston and Searcy examined Dr. Fowlkes upon another subject, and then counsel for Dr. Ensor took Dr. Fowlkes upon redirect examination and, after obtaining answers pertaining to questions upon other subjects, he asked:
"THE COURT: Sustain the objection." (Emphasis added.)
It is clear that Dr. Ensor's counsel wished to examine Dr. Fowlkes about "what they did" at U.A.B. "at the time the baby was put into the hands of Dr. Huddleston." Did this line of questioning offend the restrictions pertaining to the standard of care at U.A.B.? Under the record, this is unclear. For aught that appears, indeed, "what they did" could have included that subject. We cannot determine counsel's purpose because no offer of what he sought to prove was made. When the trial court sustains an objection to a question that does not on its face show the expected answer, a party must make an offer of proof and explain the relevancy of the expected answer to preserve error for appellate review. Bessemer Executive Aviation, Inc. v. Barnett, 469 So. 2d 1283 (Ala.1985). Accordingly, we cannot find error in the trial court's ruling.
Did the trial court err in allowing plaintiff to call as hostile witnesses three nurses employed by defendant Cullman Medical Center?
During the course of plaintiff's case-in-chief, plaintiff called as witnesses three nurses who were employed at Cullman Medical Center on the night that Mrs. Wilson was treated there. On motion of plaintiff, the trial court declared that they would be considered hostile witnesses under Rule 43(b), A.R.Civ.P. The pertinent part of that rule is:
Over the objection of the defendants that no hostility had been shown, the trial court, indicating that the test was whether the party (witness) could have been sued, declared that Rule 43(b) would apply to them.
The corresponding federal rule was interpreted in Chumbler v. Alabama Power Co., 362 F.2d 161 (5th Cir.1966), as follows:
To the same effect is 9 C. Wright & A. Miller, Federal Practice & Procedure, Civil § 2413, at 368-69. Plaintiff's counsel pointed out to the trial court:
Indeed, these nurses were even more than employees of the hospital; they were placed in responsible positions directly related to the provision of the hospital care for which the hospital existed, and, in effect, in the absence of the attending physician, they were the direct supervisors of Mrs. Wilson's care. Cf. Whitworth v. Utilities Board of the Town of Blountsville, 382 So. 2d 557 (Ala.1980). Under these facts, the trial court could assume that these nurses were hostile witnesses. Thus, we find that the trial judge was correct in his application of Rule 43(b) to this situation.
Did the trial court err in refusing to grant a new trial for the failure of three members of the jury panel to respond correctly to questions addressed to them on voir dire?
As this Court stated in Alabama Gas Corp. v. American Furniture Galleries, Inc., 439 So. 2d 33 (Ala.1983):
"`We hold that the proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by prospective jurors on voir dire, is whether this has resulted in probable prejudice to the movant....'
During voir dire, the venire was asked the following question by plaintiff's counsel:
Later, counsel for one of the defendants asked the same question, relating it to personal injury:
In response to the latter questions, a Mrs. Morrison responded, referring to an automobile accident some 23 years before.
Following the trial, an investigation revealed that three of the jurors had been involved in events which called for an affirmative response, but none of them did respond.
Mr. Bennie Conner, Jr., who became foreman of the jury, failed to disclose that in 1979, he and his father sued Willie T. Holmes to recover damages from Holmes, who had backed his car into Conner, Jr.'s automobile. At the hearing on plaintiff's motion for new trial, Conner testified that he had never been involved in any other lawsuit, and that he could not recall this questioning; he said that if he had heard the questions, he did not have the lawsuit on his mind. He had received nothing from it, he did not go to court, and had not hear anything from it. He added that it just did not come to his mind, and that he was not attempting to deceive anyone.
Another venire member, Mrs. Emma Lou Frederick, failed to disclose that her husband, Roy Frederick, had filed a personal injury lawsuit some 23 years before, which arose out of an automobile collision in which her daughter was injured. Mrs. Frederick explained:
*1265 "A. Lord, no. And if it would have gotten me off, I would have been glad to have been off, I tell you."
The third juror, Danny L. Wilson, was also examined at the hearing on the defendant's motion for a new trial:
Applying the scope of our review on the issue of the jurors' improper responses, we cannot find any clear abuse of the trial court's discretion in that court's finding that there had been no prejudice to the defendants. Under the evidence, the trial court could have found substantial temporal remoteness of the previous litigation to the present case, inadvertence on the part of these venire persons, or a misunderstandingat least on their partof the questions as they related to them personally. Indeed, all appear to have assumed that "filing a lawsuit" meant "going into court." Under the circumstances, we find no error in the trial court's ruling.
Did the trial court err in allowing into evidence a publication entitled Standard for Obstetrics and Gynecologists (5th ed. 1982)?
The defendants contend that this evidence was inadmissible because the publication date, 1982, was three years after the time Dr. Ensor was alleged to have improperly participated in Mrs. Wilson's labor and delivery of Misty. According to defendants, there was no evidence offered that this treatise reflected the standards for obstetricians in 1979.
As this Court stated in Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So. 2d 254, 259 (Ala.1982):
The record reveals compliance with this requirement by Dr. Abramson:
The proper predicate having been satisfied, the trial court was not in error in overruling defendants' objection to the admission of this treatise.
Did the trial court err in applying the collateral source rule to special education opportunities available to plaintiff as of right?
The issue arose when plaintiff moved in limine to preclude any reference by defendants to the special education and therapy available to Misty Wilson from governmental sources. The trial court granted the motion, and ultimately denied the defendants the opportunity to prove Misty's entitlement under the Alabama Exceptional Child Education Act, Code of 1975, § 16-39-1 et seq., to receive special education and related services, thus reducing her financial need.
Our case of Gribble v. Cox, 349 So. 2d 1141, 1142 (Ala.1977), quoted with approval the general rule found in 22 Am.Jur.2d Damages § 206:
"`* * * [A]s a general rule, the fact that the plaintiff received gratuitous medical care, continued salary or wage payments, proceeds from insurance policies, or welfare and pension benefits, will not be taken into account in computing damages. * * * `
Defendants here distinguish our rule by insisting that this case falls within a special category, because federal and state laws confer on Misty an absolute right to specialized education and need, unlike cases that deal with insurance proceeds and similar benefits. And so the question presented by that argument is whether the collateral source rule, as applied in Alabama, covers public benefits.
A similar case that dealt with whether state or municipal benefits fall within the rule is Healy v. White, 173 Conn. 438, 378 A.2d 540, 546-47 (1977). We quote from that opinion, which disallowed proof of such benefits under the rule:
Illinois also follows the collateral source rule whereby an amount of damages is not decreased by the amount of benefits received by an injured person from a source independent of the wrongdoer, including medical services provided at government expense, Peterson v. Lou Bachrodt Chevrolet Co., 61 Ill.App.3d 898, 19 Ill.Dec. 117, 378 N.E.2d 618 (1978), or decreased by institutionalization at governmental or charitable expense, Phelan v. Santellis, 30 Ill.App.3d 657, 334 N.E.2d 391 (1975). We find no justification under the authorities to depart from that rule in the present case. Thus, the trial court committed no error in applying it here.
Did the trial court err in allowing Dr. Francine Holland to give opinions on Misty Wilson's developmental limitations and medically related needs?
Over objection, the trial court allowed Dr. Holland to express her opinions concerning plaintiff's future development capabilities and need for therapy. Defendants contend that the court violated the expert opinion rule by allowing Dr. Holland to testify concerning medical needs, a subject beyond her qualifications.
Dr. Holland's educational background included a bachelor's degree in speech pathology and audiology, with a minor in psychology; a master's degree in speech pathology, with a minor in psychology; and a Ph.D. in special education. Speech pathology, she explained, is the study of communication and other developmental disorders that impact on communication problems in children and adults. Her doctorate in special education emphasized the multi-handicapped and communication difficulties. In these programs, she studied the educational needs of children with physical and mental disorders. She was experienced in assessment and treatment programs, i.e., testing children in their abilities to use their bodies; how they walked, ran, sat, stood, etc.; testing their minds, how they communicated, how they interacted with other people; and how they were developing. Dr. Holland also studied and worked in the physical and occupational therapy aspect of special education, determining such a child's needs in the way of treatment and the goals to be set for such treatment.
Her pertinent testimony concerning Misty's capabilities and therapy follows:
"Q. And [at] what level would you say she is operating on a behavioral level?
"Q. So in all the different levels that we have been talking [sic], I believe that you are saying she is operating at two and a half to right at three year old level?
"Q. Simple math says that equates to operating at about half level-wise of what normal is. If she doesn't receive any help whatsoever, no therapy, let's take this as a hypothetical, if Misty is just allowed to just grow up as she is, no therapy, no anything else that could help her besides just medical care to keep her alive so to speak and she grows up. What are we talking about in the future for her as to [what] level she is going to be at as she grows?
"MR. ALLEN: Hold on just a minute. We object to that on the ground that that's *1268 medical testimony and she is not qualified to say that.
"THE COURT: Overruled. Are you going to add, based on
"Q. Based on your experience and training and I am not asking you as a medical doctor, I'm asking you in your training that you have had, based on what you know from the statistics and with working with the children, can you tell me your opinion about that?
"MR. ALLEN: Excuse me. I have to do this for the record. May I have the
"A. When we look at children with developmental problems like this, we look at their development as a proportion of their chronological age. Developmentally she is functioning proportional to her age. She is only doing a proportion of what a six year old would do, which you have said is essentially half; that proportion generally continues over time. And with or without intervention, she will continue to make some gains. I can say that because that I have seen her on three separate occasions. The first occasion, I made note of what her skills were and what her developmental levels were. The second occasion there was some change. The change was not extremely significant, it was a matter of a few months in each area and that is without intervention and without therapy. I saw her again yesterday and I see that there is essentially no change since I saw her last June.
"So over time she is going to make some gains without intervention. But over a long period of time, I think that we will be seeing [a] much different type child than we would with one with intervention.
"Q. And when you are saying that she is going to stay at a particular ratio or equation, are you saying thatwhat happens when you get adult stage, when she is 60, is she going to be operating like a 30 year old? What are you saying there?
"A. No. It will always be that she is functioning at a proportion of her age. But, with time and with age that distance between her functioning level and her actual age tends to increase. There will always be a proportion. And then there comes a time when there is very limited development beyond that point, what we might call a plateau where children will sort of level off and that is about as far asthey have about reached their capacity. It's difficult to say when that occurs but it does occur.
"Q. Can you give us any kind of judgment just so we understand, are we talking teenage years, younger than that, when is this plateau in range-wise?
"MR. NORMAN: I would object to that as not being within her specialty and she is not qualified.
"THE COURT: Yes, sir, each defendant. Same ruling, overruled. Go ahead.
"A. It's difficult to say when that occurs, it's different with each child. And a lot of that is proportional also to the amount of training that they get during that period of time.
"Q. Well, we are talking about training right now and looking at [a] child without any training, any therapy, anything like that, just in terms of growing up?
"Q. Do you have a reasonable expectation of when that plateau would occur?
"A. Reasonably I could say that it happens at least by preteen.
"Q. All right. At that point just so I am on the wavelength, would she at a preteen stage, will she be operating as a preteen?
*1269 "Q. Okay. So at a preteen, she will still be at the ratio factor that we were talking about?
"Q. And that's about a fifty percent proportion is what you are saying.
"And have you in terms of your assessment of Misty, have you made any judgments as to what type of therapy or other related needs she would have in the future because of her condition as you have described?
"A. I would recommend that she receive physical therapy.
"Q. Let's take them one at a time. Physical therapy, what is that?
"A. Physical therapy would be to work on the problems that we have seen in balance, in being able to get stability of her posture and her position in space, to be able to use her body in a more functional way so that she has greater ability to move, to be able to turn and rotate her body in order to change from one position to another and use her body the way, more like a normal pattern.
"Q. For her to reach optimal results, I mean to get to the very best that Misty can get to, how often in your judgment would she need physical therapy if we said we are starting today?
"Q. All right. And would that ever change as she gets older?
"A. As she gets older, the need would reduce because she would increase things like the posture stability, hopefully she would increase muscle tone and strength of how tight her muscles are and they are working better for her and not held loosely.
"Q. At about what age would you expect that to change?
"Q. And how often will she need it after she is 18, say the normal life expectancy, how often will she need it at that point?
Analysis of this testimony, we respectfully observe, discloses that it was well within the professional expertise of Dr. Holland. As stated in Independent Life & Accident Ins. Co. v. Aaron, 282 Ala. 685, 213 So. 2d 847 (1968):
The evaluation and assessment of plaintiff's physical and occupational therapy requirements were within the ken of Dr. Holland's knowledge and beyond that of an ordinary witness, and thus the trial court was not in error by permitting her testimony.
Did the trial court err in submitting to the jury loss of earning capacity as an element of damages?
In determining this and related issues, it is necessary to look to Dr. Holland's testimony concerning plaintiff's cognitive faculties:
*1270 "A. I said she would plateau at about 12, 10 to 12 years of age, chronological age.
"A. Yesterday, I was not giving an age level at which she would [be] functioning. I was giving a time in her chronological age at which we would being to see her skills plateau. I said without training she would plateau at the age of 10 to 12; with all of the training by the time she is 18 or greater we will begin to see a plateau in her skills. I was not giving an age level. It's difficult to predict an age level. I can say that at the rate that she is progressing now, that we will continue to see this proportion of her ... age, but I cannot predict an exact age level.
Additionally, Dr. Holland testified:
*1271 "A. The definition of self-supporting would have to be laid out. In terms of self-supporting like you and I are self-supporting, I would disagree. There are degrees of self-support. And I would anticipate that in this child's future that she may be able to work in a sheltered environment, one in which there was supervision, live in a sheltered environment in which there was supervision.
Dave Saurman, Ph.D., an economist at Auburn University, was qualified as an expert in the projection of medical costs and future earnings by an individual. After testifying to normal life expectancy, normal work life expectancy, and the principle of discounted present value of future earnings, tables, and calculations, Dr. Saurman explained in detail how he arrived at Misty's normal work life expectancy.
Dr. Saurman also explained the mathematical analysis utilized in determining what a female in 1999 with a high school education would earn upon entering the work force, based upon published federal government data, and summarized from the extensive data on which he based his projections:
These and other projections presented by Dr. Saurman, some omitted here, were based upon calculations supported by economic and financial data that afforded a basis for estimating future costs, expenses, and lost earnings.
The trial court charged the jury on loss of earning capacity as follows:
Defendants' principal argument on this issue is that the evidence was insufficient to support the submission of the question of the amount of lost earnings to the jury. In that connection, this Court's decision in Carnival Cruise Lines v. Snoddy, 457 So. 2d 379, 381 (Ala.1984), is applicable:
It is clear that the evidence of Misty Wilson's permanent brain damage, of her cognitive plateau, of her highest earnings at minimum wage, and of her ability to work in a sheltered environment at one-half the minimum wage, was directed to proving her loss of earning capacity. It is equally clear that Dr. Saurman's extensive analysis of the terms of actual earnings which could be reasonably expected, did not leave the jury to "flounder" in a sea of "pure speculation and conjecture." There was direct evidence of her disabilities and evidence that related those disabilities to her impaired earning capacity. We cannot in this case conclude that the trial court erred in submitting that subject to the jury.
We must observe, moreover, that the verdict of the jury was a general verdict, and the evidence of medically-related special damages equated the $2.5 million verdict. Indeed, in overruling defendant's motion for a remittitur, the trial court observed:
Thus, this Court cannot determine whether the jury assessed any damages for loss of earning capacity or lost earnings.
We must add that the trial court was not in error in submitting to the jury the subject of future medical treatment and related care expenses as items of damages. It is well established in this jurisdiction that future medical expenses are a proper element of damages in personal injury actions. Elba Wood Products, Inc. v. Brackin, *1274 356 So. 2d 119 (Ala.1978). The charge was clearly supported by the testimony.
Finally, we note that the trial court denied defendants' motion for a remittitur:
"3. In accordance with Hammond v. City of Gadsden, [493 So. 2d 1374 (Ala. 1986) ], undersigned states for the record certain factors considered in not granting remittitur, or new trial:
"`The reason I argue damages at all, the reason I argue damages at all is I don't know what you are going to do. I think I ought to win the case. But if I don't win it, again, I am frank enough to say I want the verdict to be reasonable.
"`The law puts that in your hands. The law puts that in your hands to believe what you want to believe about it. What is the truth about how bad the child is hurt. What is the truth about the need for all these things. That's all for you. How long will the child live. That's all for you because you are human beings. But I do know this, ladies and gentlemen, if you put four hundred thousand dollars in a savings account at six percent, that's two thousand dollars a month every month of the year and you have still got the four hundred thousand dollars and as long as you keep the four hundred thousand dollars, you get two thousand dollars a month forever and ever.'" (Emphasis added.)
Our independent examination of the record supports the conclusion of the trial court in the denial of the remittitur.
Let the judgment be affirmed.
AFFIRMED.
MADDOX, JONES and ADAMS, JJ., concur.
HOUSTON, J., concurs and concurs specially as to issue V.
SHORES, J., concurs in the result.
HOUSTON, Justice, (concurring specially as to issue V).
If the trial court had granted a new trial for the failure of three members of the jury panel to respond correctly to questions *1275 addressed to them on voir dire, I would have voted to affirm the trial court's action. See, Gold Kist, Inc. v. Brown, 495 So. 2d 540 (Ala.1986). The trial court is in the best position to determine whether there was probable prejudice as a result of a juror's failure to respond to questions asked during voir dire.
The trial court's application of the probable prejudice test is subject to review only for abuse of discretion. Gold Kist, Inc. v. Brown, supra. I cannot hold that the trial court abused its discretion in not granting the new trial.
[1] Section 6-5-484(a):
"In performing professional services for a patient, a physician's, surgeon's or dentist's duty to the patient shall be to exercise such reasonable care, diligence and skill as physicians, surgeons, and dentists in the same general neighborhood, and in the same general line of practice, ordinarily have and exercise in a like case. In the case of a hospital rendering services to a patient, the hospital must use that degree of care, skill and diligence used by hospitals generally in the community." | October 23, 1987 |
b2765844-d918-4cc4-bedc-7a79547d219f | Turner v. Landmark Chevrolet, Inc. | 514 So. 2d 1337 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1337 (1987)
Brenda TURNER
v.
LANDMARK CHEVROLET, INC., formerly d/b/a Larry Savage Chevrolet, Inc.
85-1211.
Supreme Court of Alabama.
October 2, 1987.
Earl D. McNeal, Huntsville, for appellant.
Joseph W. Letzer and J. Hunter Phillips III of Burr & Foreman, Birmingham, for appellee.
ALMON, Justice.
This is a fraud case arising from the sale of a used 1978 Chevrolet Corvette. Brenda Turner, plaintiff, brings this appeal from a summary judgment for defendant, Larry Savage Chevrolet, Inc. The only issue is *1338 whether Turner reasonably relied on the statement by Larry Savage Chevrolet that the car had not been wrecked.
On June 5, 1984, Brenda Turner met with Mike McKee, a salesman for Larry Savage Chevrolet, about purchasing a used Corvette. McKee informed her of a black 1978 model that was being repaired at the time and would be available for sale soon. Several days later Turner returned to Larry Savage Chevrolet to inspect the car. She talked to Randy Griffith, another salesman, about the condition of the car. He told her that the car had not been wrecked. Because she was interested in the car, Turner drove it to Corvettes Unlimited, a local shop specializing in Corvette repair. She had regularly dealt with Corvettes Unlimited in the past, and brought the car in for inspection and approval. Terry Labbe, a mechanic at Corvettes Unlimited and one of its owners, told Turner that the car had been wrecked but that the extent of damage could not be ascertained because of a new paint job. He advised her either not to buy this particular car or, if she did, to first ascertain the extent of damage. She returned the car to Larry Savage Chevrolet and negotiated a purchase price for the car. Although skeptical about the car's condition, Turner bought the car without inquiring further about the extent or cause of damage. About five months after the sale, the car was involved in an accident, and that accident revealed the existence of substantial body damage that had been repaired prior to the sale.
"Because it is the policy of courts not only to discourage fraud but also to discourage negligence and inattention to one's own interests, the right of reliance comes with a concomitant duty on the part of plaintiffs to exercise some measure of precaution to safeguard their interests." Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757, 758 (Ala.1983). In order for Turner to recover for fraud, she must show that she reasonably relied on the salesman's statement that the car had not been wrecked. Turner testified that she relied on the opinion of Mr. Labbe at Corvettes Unlimited in buying the car. Labbe specialized in Corvettes, and Turner explained that she had dealt with Labbe regularly in the past and had relied on his judgment. Labbe testified that he advised against buying the car at the dealer's price because of damage on the left side and because of the car's overall mechanical condition. Turner admitted to being informed by Labbe of the existing damage to the car. She testified that she was skeptical about the car after getting Labbe's opinion and she was not sure if she wanted to buy it.
In light of these facts, we cannot see how Ms. Turner's alleged reliance on the dealer's assertion could have been reasonable. "If the purchaser blindly trusts, where he should not, and closes his eyes where ordinary diligence requires him to see, he is willingly deceived, and the maxim applies, `volunti non fit injuria.'" Munroe v. Pritchett, 16 Ala. 785, 789 (1849); Torres, 438 So. 2d at 759. Although the facts must be viewed in a light most favorable to Ms. Turner for purposes of summary judgment, we agree with the trial court that there is no genuine issue of material fact and that Larry Savage Chevrolet was entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P.
AFFIRMED.
MADDOX, BEATTY, ADAMS and HOUSTON, JJ., concur. | October 2, 1987 |
c1e22971-e20e-40ce-8503-8f45ec7ac902 | English v. Jacobs | 82 So. 2d 542 | N/A | Alabama | Alabama Supreme Court | 82 So. 2d 542 (1955)
Mrs. J. O. ENGLISH
v.
T. G. JACOBS, as Adm'r.
4 Div. 754.
Supreme Court of Alabama.
June 16, 1955.
Rehearing Denied September 22, 1955.
*543 Jas. Garrett and Oakley, Melton, Jr., Rushton, Stakely & Johnston, Montgomery, and E. O. Griswold, Enterprise, for appellant.
C. L. Rowe, Elba, for appellee.
MAYFIELD, Justice.
This is an appeal from a jury's verdict and the judgment thereon, rendered by the Circuit Court of Coffee County. Plaintiff-appellee recovered a verdict under the homicide statute for the alleged wrongful death of plaintiff's intestate. The deceased was an invited guest in defendant's automobile. The complaint consisted of a single count founded on Section 123, Title 7, Code of Alabama 1940. Consequently plaintiff's recovery was for punitive damages.
This suit is necessarily governed by Section 95, Title 36, Code of Alabama 1940. The measure of defendant's duty to plaintiff's intestate was not to willfully or wantonly injure or kill her.
The only questions argued in appellant's brief are: (1) That the trial court committed reversible error in not giving the affirmative charge for the defendant at the conclusion of the evidence; and (2) that the trial court erred in failing to grant the defendant's (appellant's) motion for a new trial and set aside the verdict of the jury and the judgment thereon. There is no question of pleading or the introduction or rejection of evidence encompassed in this appeal. Stated another way, the sole point of controversy in this court is the sufficiency of the evidence to warrant the verdict and the judgment thereon entered by the nisi prius court.
In considering the question of the sufficiency of the evidence of wantonness to be submitted to the jury, this court must accept the adduced evidence most favorable to the plaintiff as true, and indulge such reasonable inferences as the jury was free to draw from the evidence. Wilson & Co., Inc., v. Clark, 259 Ala. 619, 67 So. 2d 898. There are few conflicts in the testimony as to the chain of events that led to the tragic death of Carrie Elsa Jacobs. Where these conflicts appear, we are compelled to view them in the light most favorable to the plaintiff.
Delineating the evidence most favorable to the appellee, we find that the tragedy occurred on 13 July 1951, at approximately 4:00 o'clock in the afternoon. On this day, the deceased, the defendant and a group of other ladies of Coffee County, were attending a club meeting at the home of Mrs. Rufus Wilson. The Wilson home is located some two miles from the paved highway and is connected thereto by a sand and clay road. At the time the deceased, the defendant, and the other ladies who attended the meeting arrived at the Wilson home the connecting road was dry and firm. During the club meeting a torrential rain fell which was described in the testimony as a "downpour". When the meeting concluded, the intensity of the rain had abated somewhat but was continuing with some degree of intensity. The condition of the connecting sand and clay road was described as wet and "really slick". The defendant had little experience in driving under adverse conditions and was aware of her inaptitude in this particular. As the ladies were preparing to depart from the Wilson home, Rufus Wilson warned the defendant that the roads were in a treacherous condition and offered to drive her car out to the concrete highway. The defendant stated that she had never driven over a slick road before but declined Mr. Wilson's offer of assistance.
The first car to leave the Wilson home was that of Miss Mamie Mathews. The defendant's automobile, with Carrie Elsa Jacobs as a passenger, followed at a distance of approximately 75 yards. At the defendant's invitation, two other ladies rode in her automobile along with the deceased. Mr. Wilson followed the defendant's automobile in his truck for the purpose of *544 safely convoying the ladies to the main highway. While both automobiles were proceeding along the connecting road to the main highway, Miss Mathews' car reached a clay knob which was particularly slick and dangerous. The Mathews' car skidded but righted itself and proceeded forward. One of the other lady passengers in the defendant's automobile stated to the defendant that she was familiar with this particular strip of road and offered to drive her car through this hazard. The defendant declined this offer, and continued forward.
Photographs of this stretch of the road were offered in evidence and were before the jury. At the fatal point the road was approximately 14 feet in width and there was a ditch on either side of about 18 inches. When the defendant's car reached the knob, it skidded; the front end was thrown around and landed with considerable force in the ditch and against a stump. As a result of the accident, the deceased's head was thrown violently against the windshield causing her death.
We must first determine whether, under the above statement of facts, which were the most favorable adduced for the plaintiff, there was sufficient evidence, under the scintilla rule, for the trial judge to submit the case to the jury on the question of wantonness. To do this, we must have reference to the yardstick definitions of wantonness enunciated by this court and measure the facts in this case by that standard.
In Harper v. Griffin Lumber Co., 250 Ala. 339, 342, 34 So. 2d 148, 150, we said:
We cannot here be concerned with the harshness of the above rule. If the public policy of this state requires modification and a softening of the rule, remedial action lies in the exclusive province of the legislature. The placing of an invited guest in the same category with a trespasser was a radical departure from the rules of the common law. However, this state, through its representative legislature, adopted the rule and their power to do so has repeatedly been upheld in this and other states. We cannot and will not by judicial interpretation vary this standard.
Let us return to some other phases of the definition of wantonness in our state. The rule laid down in Duke v. Gaines, 224 Ala. 519, 520, 140 So. 600, 601, was:
In Mobile Electric Co. v. Fritz, 200 Ala. 692, 693, 77 So. 235, 236:
The rule was thus stated in First Nat. Bank of Dothan v. Sanders, 227 Ala. 313, 315, 149 So. 848, and in Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505:
An approved definition of wantonness is the conscious failure of one charged with the duty to exercise due care and diligence, *545 to prevent an injury after discovery of peril. Or, under circumstances where one is charged with the knowledge of such peril, and conscious that injury will likely, probably or inevitably result from his actions, or his failure to act, he does not take the proper precautions to prevent injury.
To constitute "willful or intentional injury", there must be knowledge of danger accompanied with a design or purpose to inflict injury, whether the act be one of omission or commission. To constitute "wantonness" the design may be absent if the act is done with knowledge of its probable consequence and with a reckless disregard of those consequences. As was said in Allison Coal & Transfer Co. v. Davis, 221 Ala. 334, 336, 129 So. 9, 10:
Again in First Nat. Bank of Dothan v. Sanders, 227 Ala. 313, 315, 149 So. 848, 849:
Further in Atlantic Coast Line R. Co. v. Brackin, 248 Ala. 459, 461, 28 So. 2d 193, 194, we said:
As to the value of circumstantial evidence, the inferences that may be drawn therefrom, in weighing wantonness, we have said in Birmingham Electric Co. v. Mann, 226 Ala. 379, 381, 147 So. 165, 166:
Admittedly, the present factual situation, when weighed by the above standards, strikes a rather delicate balance. But, it is not the province of this court to substitute its judgment for the judgment of the trier of the facts unless his findings are palpably wrong or an improper standard has been applied.
As the rule was restated in Mobile City Lines v. Alexander, 249 Ala. 107, 112, 30 So. 2d 4, 7:
Our rule was further emphasized in Gulf, M. & O. R. Co. v. Sims, 260 Ala. 258, 264, 265, 69 So. 2d 449, 454, as follows:
From the previously cited authorities, it was reasonably inferable that this *546 inexperienced driver was conscious that her attempt to negotiate this dangerous stretch of road might very likely result in injury. Being conscious of this likelihood of injury, she elected to proceed on her hazardous course after two warnings. This course of conduct resulted in the death of the plaintiff's intestate. We are therefore not prepared to say that the learned trial judge committed fatal error in submitting the issue of wantonness to the jury over defendant's request for the affirmative charge. We find that the quantum of evidence exceeded that minimum which this court is allowed to review on appeal.
We are similarly of the opinion that the court below did not err in denying the appellant's motion for a new trial based on his failure to withdraw the cause from the jury.
The judgment is, therefore, due to be, and is hereby, affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.
On Rehearing
MAYFIELD, Justice.
In appellant's application for rehearing, it is strongly urged that the foregoing opinion overrules National Biscuit Co. v. Wilson, 256 Ala. 241, 54 So. 2d 492, on which opinion the appellant has specifically relied.
We are not in agreement with appellant's contention. In the National Biscuit Company case, we held that if the skidding of an automobile was superinduced or accelerated by the driver of the automobile and a resultant injury occurs, the question of negligence is for the jury's determination. That is not to say, however, that under different circumstances the question of wantonness might not also be for the determination of the jury.
In the present case, the motorist was conscious of the perilous condition of the roadway and her own inability to proceed safely under the prevailing conditions. Nevertheless, after warning, and with a conscious knowledge that injury would likely result if she attempted to traverse the dangerous strip of roadway, she elected to proceed. The appellant's course of conduct under these circumstances resulted in the death of the appellee's intestate. We hold that, under these conditions, the question of wantonness was one for the jury. We do not consider this decision to be in conflict with our prior holding in National Biscuit Co. v. Wilson, supra.
Opinion extended and application for rehearing overruled.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | June 16, 1955 |
66905f8d-8274-4376-8ffb-09fd917fa066 | Helms v. Powell | 514 So. 2d 1025 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1025 (1987)
Robert W. HELMS and Sonja L. Helms
v.
Louie L. POWELL, et al.
86-907.
Supreme Court of Alabama.
October 2, 1987.
James H. Weatherford, Jr., Enterprise, and Winston B. McCall, Jr., Birmingham, for appellants.
Joe S. Pittman and Stafford Pittman of Pittman, Whittaker & Pittman, Enterprise, for appellees.
MADDOX, Justice.
This is a boundary line dispute. The plaintiffs, Ada Powell, Louie Powell, Fred Powell, Joe Mack Powell, Sheila Powell, and Stephen Powell sued Robert and Sonja Helms, claiming the Helmses had built a fence that enclosed a portion of their property.
The plaintiffs filed a motion requesting that a surveyor be appointed to fix the disputed boundary line pursuant to § 35-3-21, Code 1975. The defendants agreed to the court's appointment of Jerry Smith. Smith did the survey and prepared a plat. After an ore tenus trial, the judge entered a judgment for the plaintiffs. The defendants' motion for a new trial was denied. The defendants then brought this appeal. We affirm.
Our standard of review in boundary line disputes that are tried ore tenus is clear: "When evidence is presented ore tenus in a boundary line dispute, the trial court's decree establishing the boundary is presumed to be correct and need only be supported by credible evidence." Hodge v. Snider, 495 So. 2d 539, 540 (Ala.1986). "A judgment of the trial court establishing a boundary line between coterminous landowners need not be supported by a great preponderance of the evidence; the judgment should be affirmed if, under any reasonable aspect of the case, the decree is supported by credible evidence." Graham v. McKinney, 445 So. 2d 892, 894 (Ala.1984). Where the facts are disputed in boundary line cases, we uphold the trial court's findings unless they are palpably erroneous or manifestly unjust to do so. Duke v. Presnall, 447 So. 2d 143 (Ala.1983).
The parties here agreed to the appointment of Jerry Smith, a duly licensed, full-time surveyor. He surveyed the property, pursuant to § 35-3-21, Code 1975. Smith prepared a plat and testified that an existing fence did enclose some of the plaintiffs' property. (The fence encroached 37 feet on the west end of the boundary and 23 feet on the east end.) A report, map, or plat done by a surveyor pursuant to § 35-3-20 et seq. is to be considered by a court as prima facie correct. § 35-3-24, Code 1975. In addition to this evidence, the trial judge heard testimony from the plaintiffs that the fence was not the proper boundary line between the two pieces of property. Although the testimony from the plaintiffs was contradicted, the decision of the trial judge is supported by credible evidence and is presumed correct, and it is neither palpably erroneous nor manifestly unjust.
*1026 The defendants argue that the case of Reeves v. Lord, 487 So. 2d 879 (Ala.1986), is controlling and that it serves to negate the evidence presented by Smith. In the Reeves case, a survey of the disputed property was made and the resulting plat was used during testimony by the defendant. This testimony was the only evidence presented by the defendant. This Court reversed because the survey was not offered in evidence to prove the disputed boundary. The survey in Reeves was offered only for the limited purpose of being used as a demonstrative aid during the defendant's testimony. 487 So. 2d 879, 881-82. Because the survey in Reeves was not put into evidence, and there was no other evidence to support the trial court's judgment, that judgment was properly reversed.
In this case, the survey plat was offered as substantive evidence to prove the location of the boundary line. It would, therefore, support the judgment of the trial judge. Additionally, in this case the survey was not the only evidence presented that supported the trial judge's ruling; the plaintiff's testimony also supported his ruling. This case is clearly distinguishable from Reeves, and the judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
ALMON, BEATTY, ADAMS and HOUSTON, JJ., concur. | October 2, 1987 |
d49b2403-00f3-4753-8e4d-c71deb17046e | Sheetz, Aiken & Aiken, Inc. v. Louverdrape, Inc. | 514 So. 2d 797 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 797 (1987)
SHEETZ, AIKEN & AIKEN, INC.
v.
LOUVERDRAPE, INC., et al.
85-741.
Supreme Court of Alabama.
February 20, 1987.
On Return to Remand October 2, 1987.
*798 John E. Byrd, Dothan, for appellant.
Richard Broughton and C. Winston Sheehan, Jr., Montgomery, for appellee Louverdrape, Inc.
H.E. Nix, Jr., and Charles A. Stewart III, of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee Howard Industries.
Mike Brock of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee Woodham Plumbing Co., Inc.
Edward M. Price, Jr., of Farmer, Price & Smith, Dothan and Davisson F. Dunlap of Pennington, Wilkinson, Dunlap, Butler & Gautier, Tallahassee, Fla., for appellee GAF Corp.
BEATTY, Justice.
The appellant, Sheetz, Aiken & Aiken, Inc. ("Sheetz") appeals from an order entered in the Circuit Court of Houston County. The order granted motions to dismiss a third-party complaint filed by Sheetz against appellees Louverdrape, Inc. ("Louverdrape"); Howard Industries ("Howard"); Woodham Plumbing Company, Inc. ("Woodham"); and GAF Corporation ("GAF").
Sheetz was the architect/developer of a housing project carried out for the Dothan *799 Assisted Housing Corporation ("DAHC") called "Vaughn Towers." The 120-unit project was designed to be housing for the elderly. DAHC filed suit against Sheetz and Albert B. Smith, the prime contractor of the project, after the construction was completed. DAHC alleged, among other things, faulty construction. Sheetz then filed a third-party complaint against the four appellees and various other subcontractors on the project. Sheetz claimed to be a third-party beneficiary of the contracts between these subcontractors and Smith, the prime contractor. The subcontractors either supplied or manufactured materials used in the project or supplied labor for the project.
Appellees filed motions to dismiss Sheetz's third-party complaint against them. On February 14, 1986, the trial court entered an order granting appellees' motions to dismiss. Ten days later, on February 24, 1986, the trial court entered an order amending the order of February 14 to enter judgment against Sheetz in favor of appellees/third-party defendants:
On March 31, 1986, Sheetz filed its notice of appeal from the above order.
Appellees have moved to dismiss Sheetz's appeal to this Court, contending that Sheetz failed to meet the 42-day deadline under Rule 4(a)(1), A.R.App.P., for filing its notice of appeal. Appellees argue that Sheetz's notice of appeal filed March 31, 1986, was an appeal from the February 14, 1986, order, and was, therefore, filed beyond the 42-day deadline. Appellees reason that the trial court's order of February 24, amending the order of February 14, related back to the date the order amended was entered, i.e., February 14, 1986. We disagree.
To render finaland therefore appealablean otherwise non-final order, Rule 54(b), A.R.Civ.P., requires that language used by the trial court in its order of February 24, 1986, amending its order of February 14:
"The time for filing an appeal, as set out in Rule 4(a), A.R.App.P., cannot begin to run until there is final judgment." Foster v. Greer & Sons, Inc., 446 So. 2d 605, 609 (Ala. 1984). In this case, the final judgment dismissing these appellees was entered on February 24, 1986, and the notice of appeal was filed on March 31, 1986within the time provided by our rules. Faddis v. Woodward Iron Co., 276 Ala. 283, 161 So. 2d 486 (1964), cited by appellees, is not applicable to this case. In Faddis, the court acted to correct clerical errors in a previously effective final judgment. In this case, no effective final judgment had been entered prior to February 24, 1986.
Having found the appeal to be timely, nevertheless, we find that in the present posture of the record, we are unable to reach the merits in this case.
*800 The first problem concerns four documents Sheetz has appended as exhibits to its brief (Exhibits I, II, and III) and which it requests this Court to consider in ruling on the merits in this case. Appellee GAF moved to strike these documents, contending that they were not made a part of the record below. In response, Sheetz filed a formal motion for modification of the record under Rule 10(f), A.R.App.P. Subsequently, the remaining appellees also filed motions to strike the exhibits to Sheetz's brief, contending, inter alia, that the exhibits were not part of the record below and, therefore, are not properly before this Court; that the exhibits were not listed as such in the appellant's designation of the record on appeal filed on March 31, 1986; that the materials were not omitted by error or misstatement from the record and, therefore, were not proper for inclusion under Rule 10(f); that the exhibits were not before the trial court when the appellees were dismissed from the case; and that the exhibits were not offered in accordance with Rule 30, A.R.App.P.
Rule 10(f) provides:
Sheetz contends that, except for a correction it made to reflect a name change, Exhibit I to its brief is in the record as Exhibit A to the DAHC complaint against Sheetz and Smith, the prime contractor. As to Exhibit II, Sheetz contends that it was referred to throughout the DAHC complaint, Smith's third-party complaint against its subcontractors, and Sheetz's third-party complaint. Sheetz does not contend, however, that Exhibit II was ever actually made a part of the record in this case. As to Exhibit III, Sheetz concedes it was never made a part of the record, but contends that it was presented to the trial court in GAF's brief in support of its motion to dismiss Sheetz's third-party complaint.
We have compared Exhibit I of Sheetz's brief to Exhibit A of DAHC's complaint, and we find that, except for the name change, the documents are the same. As for Exhibit III, which is GAF's warranty on the roof, nothing in the record indicates that GAF filed or presented a brief in support of its motion to which a copy of this warranty was appended. Thus, pursuant to Rule 10(f), we remand the case to the trial court to (1) determine whether the name change correction made by Sheetz to Exhibit A of DAHC's complaint is, in fact, correct and, if so, direct that the correction be made; and (2) determine whether a brief was filed or submitted to the trial court by GAF in support of its motion to dismiss to which a copy of the roof warranty was attached, and, if so, direct that the record in this case be supplemented to add this brief and its attachments.
As for Sheetz's Exhibit II, which includes a copy of the contract between Sheetz and Smith and a letter from Smith to Sheetz concerning the project, we have read DAHC's complaint as well as Smith's and Sheetz's third-party complaints. We find that, while this contract is referred to in these complaints insofar as it is alleged that Sheetz contracted with Smith for the construction of the project, the terms of the contract are not alleged. The allegation in a complaint that a contract exists between two parties is quite different from an allegation setting out the substance of its terms, especially where those terms are now claimed to be determinative of an issue arising out of the contract, such as the existence of third-party beneficiary status.
*801 It is well settled that this Court is limited to a review of the record alone and that the record cannot be changed, altered, or varied on appeal by statements in briefs of counsel, nor by affidavits or other evidence which undisputedly does not appear in the record. Green v. Standard Fire Ins. Co. of Alabama, 398 So. 2d 671, 673 (Ala.1981) (quoting Cooper v. Adams, 295 Ala. 58, 322 So. 2d 706 (1975)). See also Ex parte Baker, 459 So. 2d 873 (Ala.1984).
When there are questions concerning errors in or omissions from the record on appeal, Rule 10(f) does permit this Court to submit these questions to the trial court for resolution. However, as to Exhibit II, Sheetz does not contend that these documents were erroneously omitted from the record in this case. It, nevertheless, asks this Court to consider materials which neither appear in the record nor are alleged to have been considered by the trial court in ruling on the motions to dismiss. This we cannot do under the above cited authorities. Because Sheetz's claims with respect to its Exhibit II do not fall within the parameters of Rule 10(f), appellees' motions to strike are due to be granted as to this exhibit only.
The second problem preventing a review of the merits in this case arises out of the first problem and concerns what, if anything, was considered by the trial court in ruling on appellees' motions. Both sides argue that the standard of review applicable to this case is that standard applicable to motions to dismiss for failure to state a claim: "[A] dismissal for failure to state a claim is properly granted only when it appears beyond a doubt that the plaintiff can prove no set of facts entitling him to relief." Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala.1985). However, it may very well be that the applicable standard of review here is that which is used when reviewing a motion for summary judgment.
The only ground for dismissal under Rule 12(b), A.R.Civ.P., alleged by appellees in their respective motions to dismiss is under subsection (6): failure to state a claim upon which relief can be granted. As to motions filed under that subsection,
Rule 12(b) further provides:
(Emphasis added.) Therefore, under the above stated rule, we have held:
Boles v. Blackstock, 484 So. 2d 1077, 1079 (Ala.1986). In the present case, just as in Boles, the trial court did not draft a separate order granting appellees' motions to dismiss. Rather, a handwritten order was entered and signed on the case action summary sheet stating in part that "Louverdrape, Inc.'s, Howard Industries', Woodham Plumbing Company's, and GAF's motions to dismiss amended 3rd party complaint of defendant Sheetz granted." Thus, there is nothing in the record expressly indicating which materials, if any, other than the pleadings, the trial court considered in ruling on the motions.
*802 However, even if we look only to Sheetz's third-party complaint, we see that express reference is made in it to the complaint filed against Sheetz by DAHC, to which Sheetz's Exhibit I is attached. There is authority for the view that a Rule 12(b)(6) motion is converted into one for summary judgment where materials are filed concurrently with the pleadings or other matters have been filed with the court prior to the motion to dismiss. See Boles v. Blackstock, supra; C. Wright and A. Miller, Federal Practice & Procedure, Civil, § 1366 at 677-78 (1969) and cases cited in footnotes 62 and 63. See also Westinghouse Electric Supply Co. v. Wesley Construction Co., 414 F.2d 1280 (5th Cir.1969). Nevertheless, due to the necessity of remanding this case to the trial court with directions that the contents of the record be ascertained and corrected, we decline to presume at this time that matters outside the pleadings were considered on appellees' motions to dismiss so that the motions to dismiss had to be treated as motions for summary judgment. Instead, on remand, we direct the trial court to enter an order indicating whether matters outside the pleadings were considered in granting appellees' motions.
For these reasons, we pretermit any further discussion of the remaining issues presented by this appeal.
REMANDED WITH DIRECTIONS.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur.
BEATTY, Justice.
This case is presented again to this Court on return to remand. In our original opinion, February 20, 1987, we remanded the case to the trial court pursuant to Rule 10(f), A.R.App.P., requesting the trial court to correct, modify, or supplement the record as submitted to this Court on appeal, and further, to enter an order indicating whether, in granting defendants' motions to dismiss, matters outside the pleadings were considered. In compliance with this request, the trial court entered an order on remand directing that the record be appropriately supplemented, and indicating that matters outside the pleadings were considered in granting defendants' motions to dismiss. In view of the trial court's order, and in accord with the principles of law expressed in our earlier opinion, we requested the parties to rebrief this case, applying the standard of review applicable to motions for summary judgment. Having considered the briefs of the parties and the evidence of record, we hold that the judgments below in favor of appellees Louverdrape, Inc., Howard Industries, and Woodham Plumbing Company, Inc., are to be reversed. The judgment in favor of appellee GAF Corporation ("GAF") is due to be affirmed.
The facts pertinent to the case are sufficiently set out in this Court's earlier opinion. Each appellee filed a motion to dismiss the third-party complaint of Sheetz, Aiken & Aiken, Inc. ("Sheetz") against it in which Sheetz sought to be considered a third-party beneficiary of the contracts between these appellees and the prime contractor, Albert B. Smith. The trial court granted the appellees' motions to dismiss, which were due to be treated as motions for summary judgment because matters outside the pleadings were considered. See Rule 12(b), A.R.Civ.P.
Boles v. Blackstock, 484 So. 2d 1077, 1079 (Ala.1986). None of the moving parties in this case, except GAF, offered any evidence in support of its motion. It is axiomatic that
Cabaniss v. Wilson, 501 So. 2d 1177, 1187 (Ala.1986). Because appellees Louverdrape, Inc., Howard Industries, and Woodham Plumbing Company have failed to meet their burden, the summary judgments in their favor are due to be reversed.
In support of its motion, appellee GAF submitted a copy of the roofing bond it issued to the Dothan Assisted Housing Corporation. There is nothing whatsoever contained in that bond that evidences any intent by GAF that the bond directly benefit Sheetz. Wood Chevrolet Co. v. Bank of the Southeast, 352 So. 2d 1350 (Ala.1977); Federal Mogul Corp. v. Universal Construction Co., 376 So. 2d 716 (Ala.Civ.App. 1979). The roofing bond clearly indicates that it was intended to benefit only the Dothan Assisted Housing Corporation, as owner of the building upon which the roof was built:
"This guarantee shall accrue only to the original owner named herein. It shall not accrue to the benefit of any tenant, purchaser, successor, or assign of the original named owner." (Emphasis added.)
In opposition to GAF's motion, Sheetz offered no evidence that established a scintilla of evidence that GAF intended to directly benefit Sheetz by its roofing bond to the Dothan Assisted Housing Corporation. Thus, GAF met its burden of establishing that there was no genuine issue of material fact as to Sheetz's complaint against GAF. For that reason, the judgment in favor of GAF is due to be affirmed. Rule 56(c), A.R.Civ.P.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
MADDOX, ALMON, ADAMS and HOUSTON, JJ., concur. | October 2, 1987 |
fddcdbae-61eb-4b40-b672-128f11a87eb4 | Ex Parte Grantham | 514 So. 2d 1385 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1385 (1987)
Ex parte Donald S. GRANTHAM.
(Re Donald S. GRANTHAM v. AMOCO FABRICS COMPANY, a Corporation).
86-154.
Supreme Court of Alabama.
October 2, 1987.
*1386 Griffin Sikes, Andalusia, for petitioner.
William H. Albritton IV of Albrittons, Givhan & Clifton, Andalusia, for respondent.
ALMON, Justice.
This petition for writ of certiorari arises from a judgment in the Court of Civil Appeals in a workmen's compensation case. Donald Grantham filed this suit against Amoco Fabrics Company for payment of workmen's compensation benefits. The Court of Civil Appeals affirmed the judgment of the trial court in favor of Amoco Fabrics Company, 514 So. 2d 1383.
On January 31, 1983, Grantham, while employed as an electrician for Amoco, slipped and fell 10 feet from his work station to the ground. Grantham injured his back and was referred to Dr. Joe Sanders in Andalusia. Dr. Sanders performed a lumbosacral spine series test on Grantham and then referred him to two neurologists. Those doctors, Dr. Bruce C. Raymon and Dr. Howard Culbertson, examined Grantham and found he had a congenital defect in his back. Neither doctor found that Grantham had suffered any permanent disability as a result of the fall.
On March 10, 1983, Dr. Culbertson told Grantham that he would be able to resume work after two weeks of physical therapy. Grantham completed the therapy, but did not return to work or notify Amoco Fabrics of his medical release. Instead, Grantham stayed away from work and continued to collect his disability benefits. In a letter *1387 dated April 18, 1983, from Dr. Sanders to Mr. Gene Shearl, an Amoco employee relations supervisor, Sanders informed Amoco of Grantham's medical release. Dr. Sanders explained that Grantham was released from Dr. Culbertson's care on March 10 and referred to Community Hospital for two weeks of physical therapy, which ended March 28. According to Dr. Sanders, Grantham was fit for work at that time.
In a letter dated April 27, 1983, Mr. Shearl informed Grantham that he was aware of the medical release and that Grantham was to return to work upon receipt of the letter. Grantham did not respond to the letter or return to work. He did not inform Amoco Fabrics of any dissatisfaction with Dr. Raymon or Dr. Culbertson. Instead, Grantham sought further advice without notice to, or consent of, Amoco. None of the doctors Grantham selected informed Amoco that he was under their care or that he was not fit to work.
Grantham contends that the decision of the Court of Civil Appeals is directly in conflict with its prior decision in United States v. Bear Brothers, Inc., 355 So. 2d 1133 (Ala.Civ.App.1978). In Bear Brothers, the Court of Civil Appeals held that where an injured employee rejected the recommendation of surgery by the hospital provided under workmen's compensation and sought treatment at a Veterans' Administration hospital, the employee was not covered by workmen's compensation. The issue in Bear Brothers, as in the present case, was whether the patient had voluntarily and unjustifiably left the medical care of the physicians provided by the employer, without the employer's knowledge or permission. See Code 1975, § 25-5-77. Although the court in Bear Brothers found that the employer was not liable for workmen's compensation benefits to the V.A. for medical services rendered, its opinion explained that under certain circumstances an employee may recover workmen's compensation for services rendered by a doctor of the employee's choosing:
Bear Brothers, 355 So. 2d at 1138 n. 1. Mr. Grantham contends that grounds (1), (3), and (4) apply in the present case to justify his independent selection of medical care. The question to be decided is whether there is any evidence that would support the trial court's finding that the failure to comply with Code 1975, § 25-5-77, was unexcused. Jasper Community Hospital, Inc. v. Hyde, 419 So. 2d 594, 596 (Ala.Civ.App. 1982).
Grantham initially argues that Amoco Fabrics neglected or refused to provide the necessary medical care. He contends that Amoco's letter of April 27, 1983, constituted a refusal to provide him with additional medical care for his injury. The letter stated in pertinent part:
It is important to note that all of the medical reports available to Amoco, and to the doctors that it chose to provide Grantham's medical care, indicated he had a congenital defect in his back that would not, under the circumstances, hinder his ability to work as an electrician. Grantham did not contact Amoco upon receipt of the letter. He neither expressed dissatisfaction with Drs. Sanders, Raymon, or Culbertson nor expressed any indication that he was unfit to work.
*1388 Under these circumstances, it is difficult to accept Amoco's letter as a refusal to provide medical care. According to Amoco's information at the time, a month had lapsed since Grantham was discharged from all medical attention and he was healthy during that time. Under this belief, Amoco could reasonably have thought that Grantham would not require any further medical care. The exception stated in Bear Brothers is that "the employer has... refused to provide the necessary medical care"; Amoco could have reasonably believed that any medical care given after Grantham's release was "unnecessary." Amoco had no way of knowing that Grantham wanted further medical care, and certainly no way of knowing that any such care was "necessary."
Grantham's second argument, that notice of and request for alternative care would have been futile, is likewise without support. Although Grantham argues that the refusal of Amoco to provide further medical treatment made any requests futile, the evidence points to the contrary. First of all, Amoco did not refuse further medical benefits until it had notice of the medical release, a full month after Grantham was declared fit to work. Amoco never received any information from Grantham or any of his doctors indicating he was under medical care or was in any way disabled. Grantham offered no evidence that Amoco had refused medical benefits prior to its notice of his medical release.
Finally, Grantham argues that other circumstances existed which justified the selection of alternative care by him. The only allegation Grantham raises here is that Drs. Sanders, Raymond, and Culbertson misdiagnosed his injury as a congenital defect. Although the record raises a question about whether Grantham indeed had a congenital condition, mere misdiagnosis of the cause of an ailment does not excuse adherence to the notice requirements of Code 1975, § 25-5-77. That section does not anticipate excuse of the notice requirement except in an emergency situation. Hyde, 419 So. 2d at 596.
Under these facts, it appears that none of the exceptions of § 25-5-77, as explained in Bear Brothers, applies. The judgment of the Court of Civil Appeals is hereby affirmed.
AFFIRMED.
MADDOX, BEATTY, ADAMS and HOUSTON, JJ., concur. | October 2, 1987 |
adbe4147-7218-415a-b4de-5fe02352eb98 | Walton v. Bromberg & Co., Inc. | 514 So. 2d 1010 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1010 (1987)
Ira Sue WALTON and Thomas Walton
v.
BROMBERG & COMPANY, INC.
86-454.
Supreme Court of Alabama.
September 25, 1987.
Donald R. Harris, Jr., of Chamblee & Harris, Birmingham, for appellants.
Lyman H. Harris and Judy Whalen Evans, of Harris, Evans & Downs, Birmingham, for appellee.
MADDOX, Justice.
Ira Sue Walton and Thomas Walton filed suit against Bromberg & Company, Inc. ("Bromberg's") in the Circuit Court of Jefferson County, alleging that Bromberg's was guilty of defamation and the tort of *1011 "outrageous conduct." Bromberg's filed a motion for summary judgment, which the trial court granted. The Waltons appeal from that judgment. We affirm.
This case arises out of Ira Sue Walton's employment with Bromberg's. In 1980, she was hired as a salesperson at the Century Plaza location of Bromberg's jewelry store in Birmingham. At the time of her interview and her subsequent hiring, she completed the required personnel application forms, and agreed to submit to a polygraph test. Security Engineers, Inc., conducted the test, and gave her a favorable rating.
At the end of 1982 and the beginning of 1983, it was discovered that two diamond rings were missing from the inventory of the Century Plaza store. Bromberg's conducted a thorough search and investigation to find the missing rings. An employee of Bromberg's, Rose Washington, told another Bromberg employee that she had seen Ira Sue Walton take something from one of the ring cases at the diamond counter. This employee informed Bromberg's management of what Rose Washington had said to her. The store manager, Ladd Goodson, investigated the accusation, and asked both Walton and Rose Washington to take a polygraph examination. Security Engineers, Inc., the same firm of polygraph examiners that had tested Walton in 1980, conducted these polygraph examinations. Rose Washington passed the polygraph test, but Ira Sue Walton did not. After Walton failed the polygraph test a second time, Bromberg's terminated her employment.
After taking her first polygraph test, Walton returned to the Century Plaza store and informed her co-workers of the examination. She then telephoned her husband and asked him to come to the store to speak with Ladd about the incident. Walton admitted in her deposition that she had initiated conversations with third parties regarding the incident at the Bromberg's store.
Rose Washington was informed by Bromberg's after Walton's termination not to discuss the incident with anyone. Several other Bromberg's employees testified, in deposition, that the Bromberg's management had told the employees not to talk about the incident with customers or among themselves; however, after Rose Washington took the polygraph test, she called a friend, who was a former employee of Bromberg's, and told her what had been happening. After Walton was terminated, she and her husband brought this suit, claiming that Washington's actions constituted defamation by Bromberg's.
The issue on appeal is whether a scintilla of evidence exists to support a finding that Rose Washington, a gift wrapper at Bromberg's, had authority to speak on behalf of Bromberg's in making allegedly defamatory statements about Walton.
Summary judgment is proper only in cases where the pleadings and affidavits submitted by the movant establish that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. Bon Secour Fisheries, Inc. v. Barrentine, 408 So. 2d 490 (Ala.1981). The scintilla evidence rule applies to summary judgment cases. Harold Brown Builders, Inc. v. Jordan Co., 401 So. 2d 36 (Ala.1981). Thus, if there exists "a mere gleam, glimmer, spark, the least bit, the smallest trace" of evidence in support of a plaintiff's complaint, summary judgment is not proper. Wilson v. Liberty National Life Ins. Co., 331 So. 2d 617, 620 (Ala.1976).
One of the elements of a plaintiff's prima facie defamation case is publication of the allegedly defamatory matter. Montgomery v. Big B, Inc., 460 So. 2d 1286 (Ala.1984). The burden of proving publication is usually satisfied when the plaintiff shows publication of the defamatory matter to someone other than himself, K-Mart Corp., Inc. v. Pendergrass, 494 So. 2d 600 (Ala.1986); however, there is a "special" publication rule applicable to corporations, which has been set forth in Burney v. Southern Ry., 276 Ala. 637, 165 So. 2d 726 *1012 (1964), and McDaniel v. Crescent Motors, Inc., 249 Ala. 330, 31 So. 2d 343 (1947).
In McDaniel, this Court stated:
In Burney this Court reaffirmed the holding in McDaniel and stated further:
The McDaniel/Burney test was restated in Dixon v. Economy Co., 477 So. 2d 353, 354 (Ala.1985):
There is one other element that the Waltons must establish in order to prove that Bromberg's itself had published the alleged defamation. This element was set forth in K-Mart Corp., Inc. v. Pendergrass, 494 So. 2d 600 (Ala.1986). In K-Mart, this Court stated:
494 So. 2d at 604.
We are of the opinion that the trial court correctly granted summary judgment in favor of Bromberg's in this case. The Waltons' contention is based on the allegation that a defamatory publication was made by Bromberg's when Rose Washington communicated with Annette Bell. Rose Washington was not a corporate officer of Bromberg's, nor was she serving in any managerial position for Bromberg's when the events surrounding this lawsuit occurred. On the contrary, Rose Washington was hired by Bromberg's primarily as a gift wrapper. The Waltons failed to produce a scintilla of evidence that Rose Washington was acting within the scope of authority given to her by Bromberg's when the allegedly defamatory communication was made. See, K-Mart, supra. It is uncontroverted that Rose Washington had been instructed not to discuss the investigation and had no authority on behalf of Bromberg's to discuss the information she possessed with any party other than the polygraph examiner. According to her own testimony, she was not authorized by Bromberg's to release this information to anyone. When Rose Washington did tell her friend, Annette Bell, about the events concerning the polygraph exam, "such communication could not have been in furtherance of any conceivable corporate business." K-Mart, supra, at 605.
Thus, we are of the opinion that, based on the evidence presented in connection with the motion for summary judgment, there is not a scintilla of evidence of a publication of the alleged defamatory matter by Bromberg's. Accordingly, the judgment *1013 of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
JONES, SHORES, BEATTY and HOUSTON, JJ., concur. | September 25, 1987 |
a3857da8-81ed-4971-9a77-d9fb4b999985 | Continental Elec. v. American Emp. Ins. | 518 So. 2d 83 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 83 (1987)
CONTINENTAL ELECTRIC COMPANY, et al.
v.
AMERICAN EMPLOYERS' INSURANCE COMPANY.
86-369.
Supreme Court of Alabama.
October 2, 1987.
Rehearing Denied December 4, 1987.
*84 Winston B. McCall, Jr., Birmingham, for appellants.
Robert M. Girardeau of Huie, Fernambucq & Stewart, Birmingham, for appellee.
MADDOX, Justice.
This appeal involves an alleged failure by American Employers' Insurance Company ("American"), to pay an insurance claim based on a policy of insurance issued to cover a trailer owned by Continental Electric Company ("Continental"). The specific question presented is whether American was obligated to pay a claim for display samples of Continental's products that were located in the trailer and were damaged when the trailer overturned. American paid a part of Continental's claim, but claimed that the contract of insurance did not cover the additional losses incurred by Continental. Continental then sued American, the insurance agency of Fowlkes and Smith, and John Creel, an employee of Fowlkes and Smith. The trial judge granted American's summary judgment motion on Continental's claims of: (1) breach of an insurance contract with regard to the trailer; (2) breach of contract with regard to the samples located in the trailer; (3) bad faith refusal to pay; (4) a request for a declaratory judgment as to its rights under the language of the policy; (5) fraud; and (6) breach of an oral contract to insure, or negligent failure to insure the samples by the insurance company's agent. Claims (5) and (6) depend on a determination of whether Creel was an agent of American.
We reverse and remand as to claims (1), (5), and (6), but affirm as to all other claims.
Continental purchased a trailer in October of 1980, intending to use it to display samples of its products (electrical distribution devices) to its customers. Continental did extensive renovation of the trailer, including the installation of partitions and aluminum peg boards on the inside of the trailer, in order to customize the trailer for its specific use. Galvanized and polished samples of Continental's products were then attached to the peg boards.
The trailer overturned and there was damage to the trailer and the display samples.
One of the specific issues presented is whether American has properly paid the claims filed on the trailer involved in this case exclusive of the samples it carried.
American made a payment of $9,329 to cover the claims for the value of the trailer, exclusive of the samples, and later made additional payment. Continental claims the trailer was valued at $22,000 and the samples were worth only $5,000 to $7,000. Continental, therefore, claims the insurance payment should have been at least "around $15,000." (The $22,000 cost of the trailer itself minus the $5,000 to $7,000 value of samples.)
American argues that the trailer had been purchased for $8,100 thirty months prior to the accident, and that was, in fact, the price paid by Continental to replace the trailer that overturned. American further argues that it has paid a total of $10,179 in claims for the trailer. The language of the insurance policy expressly states that it is at American's option to "Pay for, repair or replace damaged or stolen property...."
To decide this issue, the trial judge could properly consider any material that would have been admissible at trial, as well as material submitted in support of or in opposition to the summary judgment motion. Purvis v. PPG Industries, Inc., 502 So. 2d 714, 715-16 (Ala.1987). Whether an insurance policy is ambiguous is a question of law for the trial court. Smiths Water Authority v. City of Phenix City, 436 So. 2d 827, 830 (Ala.1983). If the contract is deemed unambiguous by the trial court, the court must determine the nature and effect of its terms as a matter of law. Brown Mechanical Contractors v. Centennial Insurance Co., 431 So. 2d 932, 942 (Ala.1983).
In this case, the trial judge had before him the policy and the affidavits of the parties. He determined, as a matter of law, that American had complied with the policy terms regarding coverage on the trailer by paying the replacement cost of the trailer. We find, however, a scintilla of evidence that American failed to pay the amount due for the trailer. Consequently, a genuine issue of material fact existed; therefore, summary judgment was improper.
The next issue is whether the policy issued by American covers the samples on board the trailer when it overturned. The parties disagree over whether the policy, as written, covers the loss of the display samples. The pertinent language from the policy is:
"* * *
Put more simply, the issue is whether the displays inside the trailer were "equipment" within the meaning of the policy. The trial judge obviously determined there was no genuine issue of material fact on this point, concluding that, as a matter of law, the term "a covered auto or its equipment" did not include samples or displays in the trailer.
Black's Law Dictionary 630 (4th ed. 1951), defines equipment as "[f]urnishings, or outfit for the required purposes. An exceedingly elastic term, the meaning of which depends on context." In Webster's New Collegiate Dictionary, "equipment is defined, among others, as the set of articles or physical resources serving to equip a ... thing: as (1): the implements used in an operation or activity." That same dictionary defines "equip" as meaning "to furnish *86 for services or action...." Both the appellants and the appellees have cited cases somewhat similar to this, but they have not cited, and our research has not revealed, a case directly on point.
We cannot say that the trial judge erred in construing the definition of equipment as excluding the display samples hauled in Continental's trailer. He obviously determined that the meaning of the word "equipment" did not include the display samples Continental had put in the trailer. The construction of a written agreement is a function of the court. Jackson v. Hall, 460 So. 2d 1290, 1292 (Ala.1984), and, "[W]here there is no ambiguity in [an insurance contract's] terms, this Court must enforce the contract as written and cannot defeat express provisions in the policy, including exclusions, by making a new contract for the parties." Turner v. United States Fidelity & Guaranty Co., 440 So. 2d 1026, 1028 (Ala.1983). This Court will not construe policies so as to provide coverage not intended by the parties. Newman v. St. Paul Fire & Marine Ins. Co., 456 So. 2d 40 (Ala.1984).
In reviewing the policy and the affidavits, the trial judge was required to give the policy language its common interpretation and its rational and practical construction. Green v. Merrill, 293 Ala. 628, 631, 308 So. 2d 702, 704 (1975). The trial judge found the language of the contract to be unambiguous; he properly interpreted it, as a matter of law, to deny coverage under the particular facts of this case. The summary judgment on this issue is due to be affirmed.
Next, we turn to Continental's bad faith claim. It is necessary to prove five elements to sustain a claim of bad faith in Alabama:
(a) Existence of an insurance contract and a breach by the insurer;
(b) Intentional refusal to pay the insured's claim;
(c) Absence of any legitimate or arguable reason for refusal.
(d) The insurer's actual knowledge of the absence of an arguable reason; and
(e) If the intentional failure to determine the existence of a lawful basis is the theory relied upon, the insured must prove the insurer's intentional failure to determine whether there was a legitimate or arguable reason to refuse to pay the claim. Mueller v. Hartford Insurance Co. of Alabama, 475 So. 2d 554, 556 (Ala.1985).
National Savings Life Ins. Co. v. Dutton, 419 So. 2d 1357, 1362 (Ala.1982).
Here, the trial judge apparently found on the evidence before him that no fact issue was created on the element of whether there was a "debatable reason" for the insurer's failure to pay and, therefore, that American was entitled to summary judgment on this claim. "The debatable reason ... means an arguable reason, one that is open to dispute or question." Mueller v. Hartford Insurance Co. of Alabama, 475 So. 2d 554, 556 (Ala.1985). The following facts before the trial judge supported his decision that a debatable reason for refusal to pay existed and that summary judgment in favor of American was proper; the trial judge's earlier decisions construing the unambiguous contract language; the statements of Creel in deposition testimony that he told Continental the samples were not covered; the replacement costs of the trailer in question; the payment already made by Continental; and the fact that Continental's complaint admitted it was in doubt and uncertain as to its rights under the policy.
"In short, plaintiff must go beyond a mere showing of non-payment and prove a *87 bad faith nonpayment, a nonpayment without any reasonable ground for dispute." National Security Fire & Casualty Co. v. Bowen, 417 So. 2d 179, 183 (Ala.1982).
We hold the trial judge, based on the record before him properly concluded that a debatable reason for American's refusal to pay existed, and summary judgment on this claim was, therefore, proper.
Next, Continental contends that it was entitled to the declaratory judgment sought in paragraph 25 of its complaint. The arguments presented in support of a declaratory judgment are no different from those presented in support of the contract claims discussed in parts I and II of this opinion. By granting summary judgment, the trial judge, in effect, issued a judgment declaring what he considered to be the proper construction of the policyi.e. the construction urged by American. We affirm the trial court's refusal to declare rights separate from its rulings on the direct claims.
Next, Continental advances three arguments that hinge on a determination of whether an agency relationship existed between Creel and American. We will first resolve this question, and then look at each of the three arguments in turn.
The evidence before the trial judge when he granted summary judgment, viewed in the light most favorable to Continental, would tend to show: Fowlkes and Smith was an insurance company and John Creel worked as an agent for Fowlkes and Smith. Creel handled all of Continental's insurance; both Fowlkes and Smith and Creel could bind insurance coverage by American, and Creel was authorized to solicit and negotiate insurance contracts on American's behalf; Creel stated that if a loss had occurred on the day he bound insurance coverage on the trailer, American would have been liable for the loss.
The existence and scope of a principal-agent relationship is normally a question of fact to be determined by the jury. Oliver v. Taylor, 394 So. 2d 945 (Ala.1981); National Security Fire & Casualty Co. v. Bowen, 447 So. 2d 133, 138 (Ala.1983). We hold that these facts, therefore, viewed in the light most favorable to Continental, create a genuine issue of material fact as to whether Creel was an agent of American, and the trial court's grant of summary judgment was, therefore, improper on those aspects of the case hinging on whether Creel was an agent of American.
We emphasize that we do not hold Creel was an agent of American, and we do not hold that he had authority to bind American. We do hold that the evidence, viewed in the light most favorable to Continental, and under our scintilla rule, creates a genuine issue of material fact, on the following three issues, and these matters are to be resolved by a trier of fact.
The first issue hinging on the agency relationship is whether an oral contract to insure the display samples was formed by Creel with Continental. Officers of Continental contend a contract was formed; Creel states in his deposition, of course, that such a contract was not made. Such a conflict in the evidence made this issue improper for a grant of summary judgment. Resolution of this issue will be for a trier of fact after hearing the evidence and observing the witnesses.
It will be for a trier of fact to determine if Creel was American's agent.
The next issue is much like the last one discussed. Continental alleges that Creel and American were guilty of a negligent failure to insure the samples in the trailer. An agent who is authorized to solicit and receive applications for insurance, and to countersign and issue policies of insurance entrusted to him by the company for that purpose must be regarded quoad hoc as the general agent of the company. Hartford Accident & Indemnity Co. v. Oglesby, 293 Ala. 620, 625, 308 So. 2d 695, 699 (1975). We are again careful *88 to state that we do not decide that Creel was an agent of American, nor that he negligently failed to insure the display samples. We do hold that enough evidence was before the trial judge to provide the necessary scintilla of evidence and avoid a grant of summary judgment.
The third and final issue that hinges on the "agency" determination is the allegation of fraud. Continental contends that Creel, individually, and as an agent of American, defrauded it, and that both should be liable. Four elements are necessary to support a fraud claim of this type:
(1) There must be a false representation by the defendant to the plaintiff;
(2) The representation must concern a material fact;
(3) The plaintiff must justifiably rely on the representation; and
(4) The plaintiff must sustain damages as a result of its reliance.
Taylor v. Moorman Manufacturing Co., 475 So. 2d 1187, 1188 (Ala.1985). Additionally, to support a claim for punitive damages, a plaintiff must prove that the misrepresentation was made willfully to deceive or that the misrepresentation was made recklessly without knowledge of its falseness. 475 So.2d, at 1188.
The misrepresentations of an agent may be imputed to his principal, Washington National Insurance Co. v. Strickland, 491 So. 2d 872, 874 (Ala.1985). The false representation made to Continental could consist of a misrepresentation of a material fact made willfully to deceive Continental; made recklessly without knowledge, and acted upon by Continental; or made mistakenly and innocently, and acted upon by Continental. Smith v. Reynolds Metals Co., 497 So. 2d 93, 95 (Ala.1986).
The record shows at least the scintilla of evidence needed to prove a cause of action for fraud against American, thereby precluding the entry of a summary judgment in American's favor. In other words, there is some evidence to show that Creel was an agent of American sufficient to hold American liable for Creel's alleged fraudulent statements.
This Court in Burt v. Commercial Union Insurance Co., 489 So. 2d 547, 549 (Ala. 1986), held, under facts similar to the facts in this case, that a scintilla of evidence existed from which to conclude that the insurance company's agent committed a fraud for which the insurance company would be liable to the insured. Similar to the facts in the Burt case, there is substantial evidence that Creel was a subagent of Fowlkes, so that his misrepresentations would be imputed to American. Even if Creel acted in some representative capacity directly with American rather than as a subagent through Fowlkes, a scintilla of evidence exists to indicate that he acted as a general agent with such authority that Creel's misrepresentations became those of American.
The following facts from the record, if proven at trial and believed by a trier of fact, would create a scintilla of evidence that Creel was an agent or subagent of American: at the time of the transactions with Continental, Creel was working at Fowlkes; Creel had been working at Fowlkes for 12 years; Fowlkes did a lot of business with American and Creel was a licensed agent with American through Fowlkes; Fowlkes could bind insurance coverage for American. Because Creel worked for Fowlkes, the authority under the agency contract between Fowlkes and American came into Creel's hands for execution. Creel could bind insurance coverage with American through Fowlkes. At all times referred to in Continental's complaint, Creel was an agent for American and was authorized to solicit and negotiate insurance contracts in American's behalf. The insurance policy involved in this litigation was initially issued from Fowlkes. Fowlkes would issue the actual policy from its offices. Fowlkes would have the policies at its office. Fowlkes would type whatever needed to be typed in the policies and do everything necessary to issue the policy. Once Fowlkes bound the insurance coverage, American was on the risk immediately.
*89 There is evidence that Creel made a representation to Continental that the display samples were covered by insurance and that even after the trailer was damaged by the overturn, Creel made a similar statement that the samples were covered. Creel denied making such a representation. Viewing all these facts in the light most favorable to Continental, we hold that summary judgment on this claim was improper.
This Court, in United States Fidelity & Guaranty Co. v. McKinnon, 356 So. 2d 600 (Ala.1978), held that the insurance company was estopped from denying that its subagent informed the insured that she had insurance coverage, and, therefore, the insured was covered by insurance.
American argues that summary judgment was also proper because there was no justifiable reliance on the part of Continental. Continental had been in possession of the policy for two and one-half years and had never examined it to see if it covered the display samples.
American relies upon Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757, 758-59 (Ala.1983), where this Court held:
That case is distinguishable on its facts.
In this case, we hold that the question of reliance is a fact question for the trier of fact. There is evidence that the policy premiums did not reflect the fact that the value of the trailer had been increased substantially, and that the policy should have reflected an increase. There was evidence that Continental's agents did not read the policy, even though Continental had it for over two years, to see if the display samples were covered. Under these facts, a trier of fact may find that Continental did not justifiably rely upon any representations of Creel. If so, that would eliminate an essential element of the cause of action, but, because we find that a fact question does exist, the trial judge erred in granting summary judgment as to the fraud count.
Based on the foregoing, we uphold the summary judgment as to all issues except three. These three issues, whether American committed a fraud on the insured, whether an oral contract was made so as to bind American and whether an agent of American committed an act of negligence in failure to insure the samples were not proper subjects for summary judgment. The cause is, therefore, affirmed in part, reversed in part, and remanded.
AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED.
TORBERT, C.J., and BEATTY, HOUSTON and STEAGALL, JJ., concur.
ADAMS, J., concurs in the result. | October 2, 1987 |
b32fd94f-fe93-4f11-bf2d-6808f080e63a | Cleek v. Povia | 515 So. 2d 1246 | N/A | Alabama | Alabama Supreme Court | 515 So. 2d 1246 (1987)
Helen CLEEK
v.
Frances POVIA.
86-608.
Supreme Court of Alabama.
October 2, 1987.
*1247 John S. Gonas, Jr., of Gonas & McHale, Mobile, for appellant.
T.M. Brantley, Bay Minette, for appellee.
TORBERT, Chief Justice.
This is an appeal from a judgment of the Circuit Court of Baldwin County in favor of the defendant Frances Povia, in plaintiff's suit for trespass. The suit arose from a controversy between the parties concerning the use of a private road.
The plaintiff and defendant live on contiguous lots with a single road providing ingress and egress for both homes. The plaintiff has lived on her lot since 1959. In 1965, Mr. Cleek, the plaintiff's late husband, and Mr. Malone, the defendant's predecessor in title, agreed to build a road along the boundary of the two lots. The road had to be built through a swamp and, whether intentionally or inadvertently, was placed almost wholly on the Cleek property. Approximately 90% of the road, including the outlet to U.S. Hwy. 98, is on the Cleek property. The cost of the road was split equally between Mr. Malone and Mr. Cleek.
The defendant, a niece of the plaintiff, acquired her lot after a series of transfers. Except for a short period during 1983, the road has been continuously used by the Cleeks and Malone's successors since 1965. The plaintiff filed suit for damages in a trespass action 19 years and 9 months after the construction of the road. The circuit court found for the defendant and entered an order granting cross-easements to both parties. The trial court found that the roadway was built for the mutual benefit of the two parcels. The court also found that there was an agreement as to the use between the original owners. The implication is that an easement by contract was created.
There is conflicting authority concerning the creation of an easement in Alabama. Traditionally, easements could be created only by deed, by prescription, or by adverse use for a statutory period. City of Montgomery v. Maull, 344 So. 2d 492 (Ala.1977); Kirkland v. Kirkland, 281 Ala. 42, 198 So. 2d 771 (1967); Kratchoville v. Cloverleaf Plaza, Inc., 276 Ala. 562, 165 So. 2d 112 (1964). Necessity has also been recognized as a valid basis for the creation of an easement. Bull v. Salsman, 435 So. 2d 27 (Ala.1983), Burrow v. Miller, 340 So. 2d 779 (Ala.1976).
This Court, while not expressly overruling precedent, outlined several additional means of establishing an easement in Helms v. Tullis, 398 So. 2d 253 (Ala.1981). Six ways of creation were outlined in Helms: (1) By express conveyance, (2) by reservation or exception, (3) by implication, (4) by necessity, (5) by prescription, (6) by contract, and (7) by reference to boundaries or maps. See R. Powell, Powell on Real Property, §§ 407-413 (Abr. ed. 1968).
Prior to Helms, cases factually similar to the one here were treated in two different ways, depending upon the circumstances. In Bazzell v. Cain, 285 Ala. 661, 235 So. 2d 805 (1970), this Court ruled on the narrow grounds of adverse possession. In Camp v. Milam, 291 Ala. 12, 277 So. 2d 95 (1973), the recreational use of a lake was viewed as an irrevocable license.[1] Both of these decisions were rendered prior to Helms v. Tullis, supra, and its recognition of an easement by contract.
Due to the lack of precedent in Alabama concerning contract easements, we must look for such precedent elsewhere. Powell on Real Property states:
3 R. Powell, Powell on Real Property, § 408 (1985). Many jurisdictions have followed Powell in the creation of easements by contract.
The Texas Court of Civil Appeals, in effect, found such an easement in a case factually similar to the one at bar. Union Properties Co. v. Klein, 333 S.W.2d 864 (Tex.Civ.App.1960). In that case, an agreement was reached between adjoining landowners to share the cost of repaying an alley on the boundary between their properties. The repaving was done with the specified sharing of costs. A writing evidencing the intent of the parties was in existence and, although by itself it was incomplete to establish a contract, the Court held that an easement had been created.
The theory of easement by contract is similar to the theory of easement by estoppel. This Court has recognized easements by estoppel. See Consolidated Foods Corp. v. Water Works & Sanitary Sewer Board, 294 Ala. 518, 319 So. 2d 261 (1975). The instant case differs from Consolidated Foods Corp. in two respects: this case concerns the status of the defendant as a successor in interest, and involves the Statute of Frauds.
Easements, by their very nature, are tied to the land. Other jurisdictions, in applying the law concerning easements by contract, have found that such easements are alienable. Rosenbloom v. Grossman, 351 S.W.2d 735 (Mo.1961). In Rosenbloom, the Missouri Supreme Court stated, "We perceive no reason why as between the parties there may not be an agreement or contract to grant an easement appurtenant to property ... which, as between the parties and their privies with notice, is enforceable." The trial court found that there was a clear intent to burden the property and to extend the burden to successors in interest. The open and obvious nature of the easement is sufficient to put any successors in interest on notice.
The oral nature of the contract presents a problem concerning the Statute of Frauds. However, some states that recognize easements by contract and estoppel have created an exception to the Statute of Frauds and have allowed the creation of easements by oral contract where the contract has been relied upon and acted upon. Freightways Terminal Co. v. Industrial & Com. Const., Inc., 381 P.2d 977 (Alaska 1963); Wells v. Marcus, 25 Utah 2d 242, 480 P.2d 129 (1971); Cooke v. Ramponi, 38 Cal. 2d 282, 239 P.2d 638 (1952). Powell on Real Property, supra, also recognizes oral contracts in the creation of an easement. In Alabama an oral agreement involving real property will be enforced where the purchase price or a portion thereof is paid and the buyer is put in possession of the land. Code 1975, § 8-9-2(5); Darby v. Johnson, 477 So. 2d 322 (Ala.1985). Under the facts of this case, we find sufficient compliance with these "partial performance" requirements to make this oral agreement enforceable.
The evidence supports the judgment of the trial court finding cross-easements; therefore, the judgment is affirmed.
AFFIRMED.
MADDOX, JONES, ALMON, SHORES, ADAMS and HOUSTON, JJ., concur.
[1] We note, upon a careful review of Camp, that a contract theory was not expressly argued or addressed in that case. | October 2, 1987 |
d1936661-7882-497d-a474-3a857272b3cc | First Ala. Bank of Huntsville v. Spragins | 515 So. 2d 962 | N/A | Alabama | Alabama Supreme Court | 515 So. 2d 962 (1987)
FIRST ALABAMA BANK OF HUNTSVILLE, N.A.
v.
Marion Beirne SPRAGINS III, et al.
85-537, 85-538.
Supreme Court of Alabama.
October 2, 1987.
Frank K. Noojin, Jr., and Michael I. Spearing of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellants.
J. Allen Brinkley of Brinkley & Ford, and Robert C. Gammons of Watson, Gammons & Fees, and William T. Galloway of Ford, Caldwell, Ford & Payne, Huntsville, for appellees.
ADAMS, Justice.
The Spragins family, as beneficiaries, brought suit against First Alabama Bank of Huntsville (hereinafter "First Alabama" or "the Bank"), trustee of a trust created by the last will and testament of Marion Beirne Spragins, Sr., for breach of fiduciary duty and mismanagement of the trust fund. Initially, the Bank petitioned this Court for a writ of mandamus after the Circuit Court of Madison County had denied the Bank's motion to strike the Spraginses' jury demand. We denied the writ (Ex parte First Alabama Bank of Huntsville, 425 So. 2d 1367 (Ala.1982), without opinion) and the case was tried to a jury before Judge S.A. Watson. The jury returned a verdict in favor of the Spraginses for $533,000.00 in compensatory damages and $1,500,000.00 in punitive damages. First Alabama Bank of Huntsville v. Spragins, 475 So. 2d 512 (Ala.1985).[1] The Bank was then permitted to withdraw as trustee.
We reversed and remanded the case to the trial court with instructions, having determined that the case should not have been tried to a jury. We noted that "the evidence adduced at the trial below, and the reasonable inferences therefrom, will support a judgment under the `prudent person' test." We also observed, however, that no reasonable inferences existed to *963 support a finding of bad faith or willful mismanagement which would justify an award of punitive damages.
On re-trial before Judge Watson, the parties agreed to submit the case on the record previously established; no further evidence was presented. The court elected to treat the prior jury verdict as advisory. Judge Watson ruled in favor of the Spraginses and ordered the Bank to pay $685,560.00 in compensatory damages and $79,224.00 in interest. We affirm the judgment of the circuit court.
First Alabama initially challenged the judgment and the denial of the Bank's request for attorney fees, but has since dropped the issue of attorney fees and appeals only the judgment of the circuit court awarding damages to the Spraginses. The Spraginses contend that since the Bank has not briefed or argued the issue of liability in this appeal, liability is conceded. Wilkinson v. Duncan, 294 Ala. 509, 319 So. 2d 253 (1975). First Alabama argues that liability is irrelevant to the issues raised here on appeal and contends:
Damages are not appropriate, the Bank argues, since the Trust suffered no loss.
The issues presented on appeal are whether the trial court erred in awarding damages; whether the trial court's reliance on the plaintiffs' method of calculating damages was erroneous; and whether the court erred in awarding the Spraginses pre-judgment interest.
The facts reveal that Marion Beirne Spragins, Sr., was formerly the president and later chairman of the board of trustees of the defendant (appellant) Bank. His last will and testament included a provision for a trust to benefit the plaintiffs and it designated First Alabama Bank of Huntsville as the trustee. After settlement of his estate, the net value of the trust was $556,881.73, at least 70% of which consisted of stock in First Alabama Bank's own holding company.
As we noted in First Alabama Bank of Huntsville v. Spragins, 475 So. 2d 512, the Bank does not argue that the trial court's application of the "prudent person" rule to the Bank's alleged breach of fiduciary duty was erroneous under Alabama law. Instead, the Bank contends that the general rule is modified by the terms of the trust. That agreement states, in part:
The Bank argues that the trial court's award of damages was based on First Alabama's failure to diversify the trust holdings, when in fact, the power not to diversify was granted to the Bank by the trust agreement. The alleged "loss" suffered by the trust, the Bank argues, is illusory because the trust principal increased and "substantial income" was earned throughout the Bank's tenure as trustee. First Alabama contends that the court erroneously based its finding that the trust suffered a compensable loss on the Spraginses' calculations of what the trust might have earned had the trust portfolio been more diversified. The Bank argues that no loss was suffered, and, therefore, that the law will not recognize any loss to the trust.
*964 We noted in our earlier consideration of this case, 475 So. 2d at 516, that although a trustee's duties and obligations are governed largely by the trust agreement, that agreement cannot be employed to vitiate "the duty imposed by the `prudent person' standard." The circuit court found that the trust agreement provided:
The Spraginses argue that a loss was incurred by the trust and that the trial court properly found that damages were due. The Bank's concentration of the trust property in its own stock, First Alabama Bancshares, was a violation of its duty of loyalty to the trust beneficiaries and constituted self-dealing, the Spraginses contend. The Spraginses claim, and the trial court found, that the Bank's failure to diversify the trust portfolio was "at least, insensitivity" by the trustee to the duty of loyalty it owed the trust beneficiaries. We agree. As we stated in the earlier appeal of this case:
475 So. 2d at 516, quoting Restatement (Second) of Trusts, § 174 (1959). We agree with the circuit court that the donor did not intend to vest in the trustee Bank a power to diversify so little as to prejudice the interests of the beneficiaries.
From the evidence presented to the circuit court, the advisory jury, and later, Judge Watson, found that the Bank failed to provide a reasoned plan of investment calculated to accomplish the testator's purpose. That purpose was to provide for present and future generations of the testator's family. Testimony by the Bank's senior trust officer revealed that eight years after the Bank had assumed administration of the trust, i.e., by 1982, the needs of the testator's grandchildren had still not been determined by the trustee, a basic step which should have preceded formulation of a prudent plan for management of the trust property. The Bank argued, nevertheless, that it had adopted an investment strategy of "moderate income and moderate growth," in its management of the trust. Again, from the facts presented, the circuit court had more than ample evidence from which to conclude that the plan of investment which the Bank claims to have adopted to manage the Spragins trust was "designed to provide a justification for the failure of the trustee Bank to more fully diversify the trust holdings by selling all or substantially all of the First Alabama Bancshares stock." At a time when the trustee Bank's own investment advisory service was recommending that investment in bank stock be limited to five percent of a trust's portfolio, approximately seventy-five percent of the Spragins trust assets were invested in First Alabama Bancshares. We hold that the circuit court was not in error in concluding that the trustee Bank's management of the Spragins trust was, at least, imprudent, and demonstrated the insensitivity of the trustee Bank in the performance of its duty of loyalty to the trust's beneficiaries.
The appellant argues, however, that liability is irrelevant; that even if the Bank is guilty of a breach of trust, no damages should have been awarded because the Trust suffered no loss. Again, we disagree.
The net value of the Trust was $556,881.73 when the testator's estate was settled. The court found that the trust property, 70 to 75% of which was composed of *965 First Alabama Bancshares during the Bank's tenure as trustee, fluctuated in value from a low of approximately $200,000.00 in 1975 to $776,168.00 by 1983. By contrast, the Spraginses offered the testimony of James C. King, a recognized expert in the field of trust management, to show what active, prudent management might have achieved. The Bank disputes King's conclusion, attributing his estimation of loss suffered by the trust to hindsight and speculation. We conclude that the circuit court was not in error in finding that the trust suffered a compensable loss and, further, that the method employed by Mr. King was not mere speculation and hindsight.
As the circuit court observed, speculation is not a sufficient basis for an award of damages in Alabama. See Mall, Inc. v. Robbins, 412 So. 2d 1197 (Ala.1982), Preston v. Alabama Power Company, 401 So. 2d 107 (Ala.1981); Taylor v. Shoemaker, 34 Ala.App. 168, 38 So. 2d 895 (1948), cert. denied, 251 Ala. 601, 38 So. 2d 900 (1949).
The Spraginses argue that the court correctly determined the amount of the loss by weighing the actual value of the trust principal against what the value would have been had it been prudently managed. The increase in principal cited by the Bank is largely attributable to inflation, the Spraginses contend, and is far less than the increase which would have been realized if the Bank had acted on the investment advice it gave its other customers regarding limiting investment in bank stocks. The Spraginses cite our holding in First Alabama Bank of Montgomery, N.A. v. Martin, 425 So. 2d 415 (1982), for the proposition that:
Id., at 429. Based upon testimony and other evidence presented to the Court, Judge Watson concluded that although Mr. King's analysis of the trust portfolio was, of necessity, retrospective, it was not based entirely on hindsight, as the trustee Bank alleged. The court said:
Mr. King's approach, the court said, was one of fiscally sound, conservative, active management of the trust estate. His alternative to the Bank's investment in First Alabama Bancshares was to concentrate the assets in the Standard and Poor's 500 index and in fixed income treasury bills. Although the Bank argues strenuously that Mr. King's approach was speculative and mere hindsight, the trial court had substantial evidence upon which to base its conclusion that King's approach was a responsible investment alternative to the Bank's management method. Indeed, the Bank's investment approach appears to have been based upon the assumption that, at all times during its tenure as trustee, First Alabama Bancshares represented the best possible investment of the trust property. More than sufficient evidence supports the circuit court's finding that the Bank's continued investment of 70 to 75% of the trust assets in bank stock was not in the best interest of the beneficiaries, and that damage to the trust, as a result of the Bank's breach of its duty of loyalty as trustee, constituted a compensable loss.
The court arrived at its assessment of damages suffered by the trust by calculating the "differences in the principal values of the prudently and imprudently managed estates and the income earned on each estate, taking into consideration trust distributions." Specifically, the court found that prudent management of the trust property would have resulted in a principal value of $1,234,108.00 plus earned income of $455,076.00. By contrast, the trust property, as managed by the Bank, had appreciated from $536,000.00 in March 1974, to $776,168.00 by 1983, plus $227,456.00 in earned income.
The court also assessed interest of $79,224.00 against the Bank, an assessment which, the Bank argues, was erroneously awarded on an "unliquidated sum from an arbitrary day," in violation of the recognized standard. The trial court held that because two years had elapsed since the first judgment in this case, interest should accrue from February 6, 1984, the date of the initial judgment in favor of the Spraginses, through January 15, 1986, the date of Judge Watson's second judgment; a total of $79,224.00. This was proper, the court concluded, in order "to adequately compensate the Trust Estate for the total damages suffered." The Bank contends that the rule for awarding prejudgment interest requires that the principal be certain or be ascertainable. Wood v. Central Bank of the South, 435 So. 2d 1287 (Ala. Civ.App.1982). The Bank argues that the amount allegedly due was not made certain until the January 15, 1986, judgment of the trial court; that until January 15, 1986, the date from which interest was to accrue was unknown; and that the amount due and the time of payment was unknown until January 15, 1986. For these reasons, the Bank argues that the trial court's award of pre-judgment interest was reversible error.
We have previously held that:
First Alabama Bank of Montgomery, N.A. v. Martin, 425 So. 2d 415 (Ala.1982). We allowed the trial judge to consider the prior jury verdict in this case as that of an advisory jury; however, he was not bound by the amount of damages awarded in the first trial. After having considered all of the testimony and other evidence presented, the trial judge determined that interest should accrue on the award of $685,560.00 from the date the final judgment was entered in the first trial, February 6, 1984. The court elected to base its assessment of interest on a simple rate of six percent rather than compound the interest due. Again, the significance of the award of $79,224.00 in interest is that this amount was determined by the court to be the *967 amount necessary to adequately compensate the trust through January 15, 1986. We cannot conclude that the court committed reversible error, as the appellant argues.
Our review of a case tried ore tenus is guided by the principles that findings of fact are presumed correct and that a judgment based upon such findings "will not be disturbed on appeal if supported by evidence or any reasonable inferences therefrom, unless they are plainly and palpably erroneous or manifestly unjust." Bettis v. Bettis, 475 So. 2d 847 (Ala.1985). The circuit court had substantial evidence of breach of trust by the trustee Bank and of a compensable loss to the trust resulting from that breach. Although other investment alternatives may have produced a different assessment of damages, the evidence relied upon by the court in support of the King alternative is not plainly and palpably wrong or manifestly unjust.
The judgment is, therefore, affirmed.
AFFIRMED.
MADDOX, JONES and SHORES, JJ., concur.
STEAGALL, J., concurs in the result.
TORBERT, C.J., dissents.
BEATTY and HOUSTON, JJ., are recused.
ALMON, J., not sitting.
STEAGALL, Justice (concurring in the result).
I wish to express my reservation about the manner in which the expert witness, King, arrived at his conclusion as to lost profits. It seems rather inconclusive that the expert witness is permitted, through hindsight, to call every fluctuation of the market perfectly. However, in view of the totality of the circumstances of this case, I concur in the result.
TORBERT, Chief Justice (dissenting).
The conclusion that damages are properly awardable in this case is wrong. The central issues presented are whether the failure of the trustee to sell the bank stock of the trustee bank was a breach of trust and, if it was a breach, whether any compensable injury ensued. While reasonable men may disagree as to whether there was an imprudent investment, Justice Adams, writing for a bare majority of the Court, concludes that there was a breach of the duty of loyalty, in spite of the fact that the trust instruments authorized the very conduct at issue. Just as important, if not more so, he then concludes that, even though the supposed breach resulted in no actual loss, the trustee is liable for lost profits and that the measure of those lost profits can be determined by employing perfect hindsight.
As to the issue of liability, I recognize that in First Alabama Bank v. Spragins, 475 So. 2d 512 (Ala.1985) (Spragins I) we observed in dicta that on the basis of the record before us at that time, which is identical to the record before us now, application of the "prudent person" rule revealed that a fact issue was presented on the breach of duty issue. However, we also noted that the record would not support a finding of bad faith or willful mismanagement so as to authorize an award of punitive damages.
On remand the trial court found that the investments were imprudent and that the trustee had acted insensitively to its duty of loyalty by retaining the trustee bank's own stock in the trust.
It is not a breach of the duty of loyalty to retain shares of the corporate trustee where the trust instrument authorizes the trustee to do so. The Restatement (Second) of Trusts provides:
Restatement (Second) of Trusts § 20, "Duty of Loyalty" (1959).
Because the retention of the bank stock was authorized, I believed the trial court erred in concluding that there was a breach of loyalty. Furthermore, such a finding would be contrary to our earlier observation that we found no evidence of bad faith. Surely, if a trustee breaches the duty of loyalty, the trustee has acted in bad faith. However, as the Restatement points out, the decision as to how long to retain the stock is guided by the prudent person standard.
As illustrated by the testimony of plaintiffs' principal expert, James King, no one really argues that investing in some shares of the bank stock was imprudent.
The specific issue is whether the bank was imprudent in failing to diversify the portfolio, which consisted primarily of bank stock.
3 A. Scott, The Law of Trusts, § 230.3 at 1876 (1967). The settlor of the trust, Mr. Spragins, was president or chairman of the board of First Alabama Bank, or its predecessors, from 1935 through 1973, and his family had been intimately involved in the operation of the bank before that. The trust instrument provides:
In light of these facts and the applicable law, I question whether plaintiffs have established a breach of trust. Although there is a presumption of correctness of trial court findings where disputed evidence is presented ore tenus, the resolution of the current issues involves an application of law to facts. However, even assuming that there was a breach, I do not believe that the plaintiffs have shown any legal injury, but, it they have, they have not proven the extent of that injury.
We have been very restrictive with regard to allowing recovery for lost profits, primarily because such awards would often be based on very questionable evidence. The Restatement appears to take a similar view, by limiting recovery for lost profits for breach of trusts in the absence of a breach of loyalty to situations where the trustee had a duty to purchase a specific piece of property. Restatement (Second) of Trusts § 205(c) and comment (c) and § 211. See also In re Talbot's Estate, 141 Cal. App. 2d 309, 296 P.2d 848 (Dist.Ct.1956). Lost profits are easily ascertained with respect to failure to purchase a specific item, such as shares of XYZ Corporation. In addition, the trust instrument absolved the trustee from liability for any loss or depreciation due to its failure to dispose of assets received at the inception of the trust. While I agree, as we observed in Spragins I, that such an exculpatory clause may not save the trustee in all cases, this clause, along with the judicial policy of limiting speculative damages, is certainly a compelling factor in deciding whether there is liability for lost profits as opposed to actual losses.
Even assuming that lost profits are a proper element of damages, the evidence introduced to establish the amount of lost profits in this case is insufficient. The damages award was calculated with reference to the investment approach testified to by Mr. King,[1] the results of which are shown in plaintiffs' exhibit 501. The evidence shows that the trust suffered no actual loss. Principal increased from $536,000 to $776,168, a gain of 44.807%. Total income was $227,456. Mr. King's hypothetical approach saw principal increase from $570,000 to $1,234,108 a gain of 141.982%. Total income would have been $455,076. While the difference in the increase in principal seems significant, it is the result of a controversial investment philosophy.
First, Mr. King starts with the premise that all bank stock would be sold and reinvested. However, Mr. King agreed that the bank stock was a good investment in general, and his objection was solely that the trust res was too heavily concentrated in that stock. "[T]he trustee is liable only for such loss as results from the investment of the excess beyond the amount which it would have been proper so to *970 invest." Restatement (Second) of Trusts § 228 comment 1. Therefore, Mr. King began from the wrong starting point.
Mr. King then took the proceeds from the hypothetical sale and invested them in one of two investment vehicles, United States treasury bills (T Bills) or a portfolio of stocks known as the Standard & Poor's 500 (S & P 500). At all times he was either 100% invested in T Bills or 100% invested in the S & P 500. He stated that he made the decision as to where to invest based upon information known to the trustee at the applicable times and not on the basis of hindsight. Clearly, the trustee's performance can not be judged on the basis of hindsight. Baldus v. Bank of California, 12 Wash. App. 621, 530 P.2d 1350 (1975).
It is undisputed that diversification is a risk-reduction technique employed by trustees in furtherance of their duty to preserve capital and generate reasonable income. It is interesting that Mr. King argues that diversification is necessary and then adopts an arguably risky investment philosophy. Mr. King's policy is not really one of diversification; it is one of market timing. At all times, he is invested entirely in T Bills or in the S & P 500.
First Alabama Bank of Montgomery, N.A. v. Martin, 425 So. 2d 415 (Ala.1983). Mr. King takes issues with Dr. Headley's view:
Regardless of whether Mr. King is correct or Dr. Headley is correct, it is clear that Mr. King's market-timing philosophy is somewhat unconventional.
Mr. King uses the S & P 500 in his hypothetical management approach but admits that he does not actually invest in the S & P 500 because not all stocks in the S & P 500 are of investment quality. He acknowledged that it would be difficult to scrutinize all 500 stocks and seems to suggest that the trustees could have used an index fund, but admits he does not know if such a fund is a legal trust investment.
Most importantly, the trustee's performance is being judged against Mr. King's remarkable ability to call changes in the stock market. He made ten or eleven investment decisions in his hypothetical approach and admits he did not make one mistake.
Plaintiffs' exhibit 153, reproduced in part below, shows the annual rates of return on selected investment alternatives for the years in question, except 1983:
The asterisks indicate where Mr. King invested the trust funds in his hypothetical.
*971 Dr. Johnston, another expert, testified for the plaintiffs that for the period in question, the bank stock on average outperformed T Bills, government obligations, bonds, corporate bonds, and the S & P 500. In other words, only through Mr. King's unusual ability to accurately switch in and out of the stock market was he able to produce the returns in his hypothetical management account. It is also readily apparent that if Mr. King had made only one error in switching funds, the change in the spread between the return generated through his approach and the actual return would have been significant.[2]
Speculation is not a sufficient basis for an award of damages. Mall, Inc. v. Robbins, 412 So. 2d 1197 (Ala.1982). In order to conclude that the damages award here is not the result of conjecture or speculation, one must come to the conclusion that it was reasonable to assume that a prudent investor armed with the knowledge available to this trustee could have, without any error, called ten or eleven turns of the market so that he was always in the investment vehicle that created the largest returnor, in other words, that this trustee should have performed perfectly. It is therefore my considered opinion that the damages calculated by use of Mr. King's approach are based upon speculation and conjecture and therefore do not provide an adequate basis for assessing damages in this case.
Simply put, the majority's opinion says that if a trustee, while operating within the guidelines established by the trust instrument, makes some error in judgment, even if it results in no actual loss, the trustee is nonetheless liable for profits that might have arisen if the trustee had been fortunate enough to accurately call every major turn of the stock market for a ten-year period. As this is now the law, I suspect that Mr. King will be a very busy and prosperous witness.
I dissent.
[1] The report at 475 So. 2d 512 (Ala.1985), incorrectly indicated that this case was tried by Judge John D. Snodgrass. It was tried by Judge S.A. Watson.
[1] The record reflects that Mr. King was the leading trust manager in North America from 1965 to 1975.
[2] For example based upon the information in plaintiffs' exhibit 153, in 1974 instead of an approximate 8% gain, a 26.47% loss would have resulted, in 1975 only an approximate 5% gain would result instead of a 37% gain, in 1976 an approximate 6% gain would result instead of a 23.84% gain, in 1977 a 7.18% loss rather than an approximate 5% gain would result, in 1970 an approximate 10% gain rather than an 18.19% gain would have resulted, in 1980 an approximate 11% gain rather than a 31.48% gain would have resulted, and in 1981 a 4.85% loss rather than an approximate 15% gain would have resulted. In 1978 and 1982 the differences between returns in T Bills and the S & P 500 were negligible. | October 2, 1987 |
921092e1-2ce7-4975-9bee-0e6bdb37897c | Johnson v. Moore | 514 So. 2d 1343 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1343 (1987)
Johnny JOHNSON
v.
Evelyn MOORE.
Harvey JOHNSON
v.
Evelyn MOORE.
85-1575, 86-28.
Supreme Court of Alabama.
October 2, 1987.
*1344 Scears Barnes of Barnes and Radney, Alexander City, for appellant Johnny Johnson.
Mack Clayton, Alexander City, for appellant Harvey Johnson.
Dianne James Davis, Alexander City, for appellee.
ALMON, Justice.
These appeals are from a judgment denying a Rule 60(b), A.R.Civ.P., motion for relief from a default judgment against appellants Harvey and Johnny Johnson. Evelyn Moore filed suit against the Johnsons for breach of contract and misrepresentation arising from home improvements they had performed for her. She alleged substantial defects of workmanship in the improvements and repairs, including defective plumbing, which she said ruined the floor and subfloor in the kitchen and living room. Mrs. Moore alleged that she had paid the Johnsons $16,000 for the home improvements, and she claimed $11,350 in damages in order to cure the defects and repair the damage caused by those "improvements."
Mrs. Moore filed her complaint in the circuit court of Tallapoosa County in February of 1986, and process was served on both Harvey and Johnny a short time thereafter. The summons served on each of the Johnsons was defective under A.R. Civ.P. 4(a). It did not state that an answer must be filed within 30 days but instead left the time period blank. Neither Harvey nor Johnny filed an answer or motion in response within the required period.
On April 21 the court entered an order setting a hearing date for the purpose of taking testimony on damages. On May 21 the court entered an order granting Mrs. Moore an additional ten days to submit evidence of damages. On June 6 the court entered default judgment in the amount of $11,350 for Mrs. Moore. On July 15 the court issued an order requiring the appearance of the Johnsons for the discovery of assets pursuant to a motion filed by Mrs. Moore. Although the record is skeletal, it appears that the Johnsons received copies of the above orders by U.S. mail within a few days of filing. Johnny Johnson filed a motion to set aside the default judgment on August 7, 1986. Harvey Johnson filed a similar motion on August 11. On August 26 the court held a hearing to consider these two motions.
The motions filed by both Harvey and Johnny were styled as motions to set aside default, thus giving the appearance of being filed under A.R.Civ.P., Rule 55(c). For a Rule 55(c) motion to be effective, it must be filed within 30 days after the entry of judgment. Although neither Rule 55(c) nor Rule 60(b) was expressly invoked in the motions, the parties and the court appear to have considered the motions as 60(b) motions. Because no objection was made regarding the timeliness of the motions, either by the court or by opposing counsel, and because the judge allowed the Johnsons to orally amend the motions to include excusable neglect, we will consider them as 60(b) motions for relief from judgment.
Johnny Johnson gave testimony during the hearing in support of his claim that his failure to respond was justified by excusable neglect. It appears from the record that Johnny is illiterate. When he received the complaint and the various orders of the circuit court, he referred them to his brother Harvey, who could read. Harvey, who contracted the job with Mrs. Moore, assured Johnny that he would take care of the legal proceedings. Johnny explained that he worked on the job in question, but that he had been an hourly employee of Harvey and was not a party to the contract. Harvey Johnson, through his attorney, indicated that he was in fact the contractor and that Johnny was just an hourly worker. Harvey also indicated that he had personally received copies of all of the notices *1345 mentioned above, in addition to the copies served on his brother.
Following the hearing the court denied both motions for relief from judgment. The issue is whether, under the facts of this case, the trial court abused its discretion in refusing to relieve the parties from default judgment.
It is implicit in the Alabama Rules of Civil Procedure that default judgments are not favored. While it is certainly within the circuit court's discretion to deny relief from a default judgment, this Court has held that this discretion should weigh in favor of the defaulting party if there is doubt regarding the propriety of the judgment. Knight v. Davis, 356 So. 2d 156 (Ala. 1978). See also Welch v. G.F.C. Credit Corp., 336 So. 2d 1346 (Ala.Civ.App.1976).
Johnny Johnson cites Oliver v. Sawyer, 359 So. 2d 368 (Ala.1978), for the proposition that his failure to respond was justified by excusable neglect coupled with a meritorious defense. In Oliver, this Court set aside a default judgment against an illiterate 80-year-old man who had made several futile attempts to contact his insurer, which was being reorganized, and had failed to file a timely responsive pleading. In granting relief from the default judgment, the Court looked to the following factors:
Oliver, 359 So. 2d at 370. See Illinois Central Gulf R.R. v. Horton, 514 So. 2d 1283 (Ala.1987).
We find this reasoning persuasive in regard to Johnny Johnson. He offered evidence at the hearing that he was not a party to the contract between Harvey and Mrs. Moore, but was merely an hourly employee. This was substantiated by Harvey's admission to being the contractor on the job. There is no evidence before this Court that Mrs. Moore has suffered any prejudice as a result of Johnny's delay. In his testimony during the hearing, Johnny indicated that he had brought each notice to Harvey, who assured him it would be taken care of. Only after service of the motion for discovery of assets did Harvey say he would not handle the affair. The testimony indicates that both Johnny and Harvey believed that Harvey, as contractor, would ultimately be liable for any damages. Upon his realization that Harvey was not going to handle the suit, Johnny sought legal advice and filed a motion for relief from judgment. Finally, the default judgment is not necessary to secure justice between the parties in this case. The circuit court expressed an opinion at the hearing that Harvey, and not Johnny, should be liable to Mrs. Moore for her damages.
Harvey Johnson, at the hearing below and in his brief, claims he likewise falls within the purview of Oliver. This argument is not supported by the facts, however. It appears that Harvey, rather than being diligent in the matter, ignored not only the complaint, but also every order and motion served on him. To compound matters, he assured his brother, Johnny, that he would handle the suit and received Johnny's copies of the papers as well. He alleges no meritorious defense on his behalf and has offered nothing to justify his delay. See Taylor v. Taylor, 49 Ala.App. 306, 271 So. 2d 503 (Ala.Civ.App.1973). Although Harvey claims that the process was insufficient because of the omission to state the 30-day limit in the summons, this argument was not made below and therefore presents nothing for review. Furthermore he did not appear even after the service of subsequent orders that were issued by the court.
This Court therefore affirms the judgment as to Harvey Johnson, because he does not allege any meritorious defense or excusable neglect. We reverse the judgment as to Johnny Johnson for the reason stated above.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
*1346 MADDOX, SHORES and ADAMS, JJ., concur.
BEATTY, J., concurs in the result. | October 2, 1987 |
87dff355-5123-460f-b3bd-e7dd9f30988b | Delro Industries, Inc. v. Evans | 514 So. 2d 976 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 976 (1987)
DELRO INDUSTRIES, INC., d/b/a Cannon
v.
Edward P. EVANS.
86-75.
Supreme Court of Alabama.
September 25, 1987.
*977 Mark Vaughan of Cannon & Vaughan, Elba, for appellants.
Claude E. Bankester of Wilkins, Bankester & Biles, Robertsdale, for appellee.
SHORES, Justice.
Plaintiff appeals from a judgment rendered in favor of the defendant in this action to enforce a foreign judgment and a guaranty contract. We affirm.
The plaintiff, Delro Industries, Inc., hereinafter referred to as "Delro," is a wholesale distributor of swimming pools, equipment, and accessories, with its principal place of business in Springfield, Massachusetts. On February 22, 1977, Delro agreed to sell swimming pools to Swim Time Pools, a Florida corporation. Edward Evans executed a guaranty agreement in Florida that provided that he would personally guarantee the prompt payment of every claim arising in favor of Delro against Swim Time Pools. Delro made credit sales of equipment and accessories to Swim Time Pools from 1977 to 1980.
Delro made its last sale to Swim Time Pools on August 15, 1980. Subsequent thereto, there was a balance due of $138,360.20 on Swim Time Pools' account with Delro. Swim Time Pools filed for bankruptcy, and, incident to those proceedings, Delro received an $8,355.44 dividend. Delro then brought suit in a Springfield, Massachusetts, court to enforce Evans's contract of guaranty. On October 14, 1983, the Massachusetts trial court entered a default judgment in favor of Delro.
On February 3, 1984, Delro filed the present action to enforce the foreign judgment. Delro's complaint was amended on March 4, 1985, to include a cause of action based directly on the personal guaranty of Evans. After a non-jury trial, the court entered judgment in favor of Evans. This appeal followed.
Delro contends that the judgment of the trial court is contrary to the great weight of the evidence and is palpably wrong. On the other hand, Evans contends that the trial court correctly held that *978 the Massachusetts judgment was not entitled to full faith and credit because the Massachusetts court did not have personal jurisdiction over him. It is conceded that this was an appropriate inquiry in the trial court, since Evans did not appear and defend the action in Massachusetts. Whether Evans was subject to the personal jurisdiction of the Massachusetts court depends upon the facts. We now turn to the facts material to this issue.
Evans is a resident of the state of Alabama. A non-resident must have certain minimum contacts with a state before the state's courts may acquire personal jurisdiction over him. Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958).
International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L. Ed. 278 (1940)). Evans visited the state of Massachusetts on three occasions to attend "pool shows" put on by the plaintiff. One witness testified that Evans placed an order while he was in Massachusetts on behalf of Swim Time Pools, but all other orders were made by mail or telephone from Andalusia, Alabama, Swim Time Pools' principal place of business.
The United States Supreme Court has held that "purchases and related trips, standing alone, are not a sufficient basis for a State's assertion of jurisdiction" over a non-resident in a cause of action unrelated to those purchases and trips. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 417, 104 S. Ct. 1868, 1874, 80 L. Ed. 2d 404 (1984). Evans's three visits to the state of Massachusetts, his only contacts with that state, had no relation to the claim on the guaranty agreement asserted by Delro in the Massachusetts court. Accordingly, we hold that Evans did not have sufficient contacts with the state of Massachusetts to warrant that state's assertion of jurisdiction over him. Therefore, the Massachusetts judgment on the guaranty agreement is void and is not entitled to full faith and credit in Alabama. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980).
Because we hold that Delro could not maintain an action on the Massachusetts judgment, we now address the claim asserted by way of the amended complaint. Evans contends that under Ala. Code (1975), § 40-14-4, Delro cannot bring suit in Alabama to enforce the underlying sales contract by way of the guaranty agreement, because, he says, Delro's activities within the state amount to doing business here without a license. We disagree.
Testimony at trial established that Delro has no salesmen, agents, or other personnel in Alabama; that Delro does not have an office, warehouse, business address, or telephone number in the state of Alabama; that the only contact Delro has with the state is through shipping goods to Alabama from orders placed by phone or mail; and that even though one of Delro's principal owners has made two or three visits to Evans's home in Andalusia, Alabama, the visits were not for the purpose of soliciting sales. These activities simply do not amount to doing business in the state of Alabama under Ala. Code (1975), § 40-14-4. See, Foxco Industries, Ltd. v. Fabric World, Inc., 595 F.2d 976 (5th Cir. 1979); see also, Wallace Construction Co. v. Industrial Boiler Co., 470 So. 2d 1151 (Ala.1985).
Finally, Evans contends that the judgment of the trial court was proper because Delro failed to prove all of the elements necessary to recover for breach of the guaranty agreement. The guaranty agreement provides in pertinent part as follows:
By its own terms the agreement provides that it is a continuing guaranty, a guaranty of future indebtedness uncertain as to amount or time. See Shur-Gain Feed Division William Davies Co. v. Huntsville Production Credit Ass'n, 372 So. 2d 1317 (Ala.Civ.App.1979). Every suit on a guaranty agreement requires proof of the existence of the guaranty contract, default on the underlying contract by the debtor, and nonpayment of the amount due from the guarantor under the terms of the guaranty. See Equilease Corp. v. McKinney, 52 Ala.App. 109, 289 So. 2d 809 (1974). However, to recover under a conditional guaranty or a continuing guaranty, an additional element, notice to the guarantor of the debtor's default, must be proved.
38 C.J.S. Guaranty § 63 (1943); see also Walker v. T. & G. Forbes, 25 Ala. 139 (1854); and Equilease Corp. v. McKinney, 52 Ala.App. 109, 289 So. 2d 809 (1974).
In the case at bar, Delro proved the existence of the guaranty contract by offering the actual document into evidence. The breach of the underlying sales contract and nonpayment of the amount due from Evans under the terms of the guaranty agreement were established by evidence that the account had an outstanding balance of $138,360.20 and that Delro had to resort to Swim Time Pools' bankruptcy proceedings to receive payment on the account. Notice to Evans of the breach by Swim Time Pools, however, was not proved by Delro. Notice might have been implied from evidence of Evans's employment position at Swim Time Pools, but the only evidence that appears in the record on this point shows only the mere fact that Evans was employed by Swim Time Pools. His position and duties were not revealed.
The failure of a party holding a guarantee to give notice to the guarantor of the debtor's default may be excused where the debtor is insolvent when the debt comes due, since notice would be of no advantage to the guarantor. Walker v. T. & G. Forbes, 25 Ala. 139 (1854). In the case at bar, Delro proved that Swim Time Pools was indebted to Delro in the amount of $138,360.20, and that this indebtedness was discharged through bankruptcy proceedings; however, Delro failed to prove the exact date of default and Swim Time Pools' financial status on that date. See 38 C.J.S. Guaranty § 63. Accordingly, we hold that Delro did not meets its burden of proof on the guaranty contract claim.
After considering all of the evidence and all reasonable inferences therefrom, we hold that the judgment of the trial court is not plainly or palpably erroneous. Rhoden v. Miller, 495 So. 2d 54 (Ala.1986). Therefore, the judgment is affirmed.
AFFIRMED.
ALMON, ADAMS and HOUSTON, JJ., concur.
JONES and MADDOX, JJ., concur in the result.
TORBERT, C.J., dissents.
JONES, Justice (concurring in the result).
I concur in the result.
I do not disagree with the rule set forth in the dissenting opinion of the Chief Justice, but I disagree with its application to the facts of this case; therefore, I vote to affirm the judgment.
*980 TORBERT, Chief Justice (dissenting).
I do not agree that the failure to give notice to the guarantor of the debtor's default bars the creditor's claim.
While the general rule is that the guarantor is entitled to such notice where the guarantee is conditional or continuing, there are several qualifications to that rule.
Notice is not necessary to charge the guarantor when the principal is insolvent, because the guarantor has sustained no injury from want of notice. Walker v. T. & G. Forbes, 25 Ala. 139 (1854). "If [the guarantor] has sustained an injury for want of such notice, he is released to the extent of that injury." Walker, supra. In this case, the principal was in bankruptcy at the time of trial, but it is unclear if it was in bankruptcy at the time suit was filed.
The rule requiring damages from the failure to give notice applies to all situations, not just those in which the principal is insolvent.
38 C.J.S. Guaranty § 63 (1943).
Mid-City Industrial Supply Co. v. Horwitz, 132 Ill.App.3d 476, 483, 87 Ill.Dec. 279, 285, 476 N.E.2d 1271, 1277 (1985).
Cahuzac v. Samini, 29 Ala. 288 (1886), and Lawson v. Townes, 2 Ala. 373 (1841), did say that common law pleading required that the giving of notice be alleged because notice was necessary to "fix liability." However, if the principal was not solvent, notice would not be required to fix liability and therefore need not be pleaded. In addition, because Alabama law and the majority view is that failure to give notice of default bars recovery only to the extent that the guarantor was damaged, it would seem that the more appropriate rule is that stated in Horwitz requiring that the lack of notice be pleaded as a defense by the guarantor.
No question regarding the existence or non-existence of notice or of any damage flowing from the non-existence was raised *981 in the pleadings or in the evidence. Therefore, the lack of notice does not bar recovery. | September 25, 1987 |
eef63ab5-48a9-4495-8b04-6693651066ad | Chandler v. Chandler | 514 So. 2d 1307 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1307 (1987)
Chester CHANDLER, et al.
v.
Madge W. CHANDLER.
84-1374.
Supreme Court of Alabama.
October 2, 1987.
Joe A. Macon, Jr., Wetumpka, for appellants.
Ronald G. Davenport of Rushton, Stakely, Johnston & Garrett, Montgomery, and John Hollis Jackson, Jr., Clanton, for appellee.
ALMON, Justice.
This is a suit for cancellation of a deed from an aged couple to their oldest son and his wife, brought by the other descendants of the grantors. The trial court denied relief, stating that the plaintiffs did not show by "clear and convincing evidence" any ground for setting the deed aside. The plaintiffs argue that the trial court applied the wrong standard of proof.
On May 12, 1971, J.N. Chandler, age 94, and his wife Josie, age 84, deeded their homeplace with 20 acres of land to their son Newton and his wife Madge, reserving a life estate to themselves. Josie Chandler entered a nursing home in 1972 and died in January 1977. J.N. Chandler entered a nursing home in 1973 and died in April 1977. On December 28, 1978, Newton recorded the deed. Newton died in March 1983. On July 7, 1983, the remaining children of J.N. and Josie Chandler, together with the son of a deceased son, brought this action to have the deed cancelled on the ground that Newton had exercised undue *1308 influence over his parents in obtaining the deed from them.
The relation of parent and child is per se a confidential one. The law presumes that the parent is the dominant spirit, but this presumption is not conclusive. "Where it is made to appear by the proof that the child, and not the parent, is the dominant spirit, then the burden of proof is shifted to the former to establish the fairness of the transaction, and that it was not the result of undue influence." Dowe v. Farley, 206 Ala. 421, 422, 90 So. 291, 292 (1921); Tipton v. Tipton, 249 Ala. 537, 539, 32 So. 2d 32, 34 (1947). See also, Jones v. Boothe, 270 Ala. 420, 119 So. 2d 203 (1960); Orton v. Gay, 285 Ala. 270, 231 So. 2d 305 (1970); Wolfe v. Thompson, 285 Ala. 745, 235 So. 2d 878 (1970). In all of these cases, a cancellation of a deed or other transfer of property from parent to child was upheld, with no statement that the person seeking to cancel the deed had to prove the grantee's dominance by clear and convincing evidence.
Even in those cases where this Court has held in favor of the beneficiary, the standard applied is that the burden shifts to the proponent "where it is made to appear," Brothers v. Moore, 349 So. 2d 1107, 1109 (Ala.1977), or when "the evidence tends to show," Terry v. Terry, 336 So. 2d 159, 162 (Ala.1976), that the child is the dominant party. "[T]he burden is upon those seeking to invalidate such a transaction to reasonably satisfy the court that time and circumstances have reversed the order of nature, so that the dominion of the parent has not merely ceased, but has been displaced by subservience to the child." Dillard v. Hovater, 254 Ala. 616, 619, 49 So. 2d 151, 153 (1950) (emphasis added; citations omitted). See also Seals v. Seals, 423 So. 2d 222 (Ala.1982); Croft v. Biddle, 380 So. 2d 816 (Ala.1980); Powell v. Powell, 285 Ala. 230, 231 So. 2d 103 (1970); and Milliner v. Grant, 253 Ala. 475, 45 So. 2d 314 (1950).
This Court in an early case contrasted the standard for showing undue influence in the procurement of testamentary transfers with the standard for showing undue influence in the procurement of inter vivos transfers. In pertinent part, the Court stated:
"Undue influence with respect to gifts and conveyances inter vivos is a very different matter. It may exist without either coercion or fraud. It may result entirely from the confidential relation, without activity in the direction of either coercion or fraud, on the part of the beneficiary occupying the position of dominant influence. It is upon him not only to abstain from deceit and duress, but to affirmatively guard the interests of the weaker party, so that their dealing may be upon a plane of equality and at arm's length. To presume undue influence in such a case, therefore, is not to presume fraud or coercion, or any act which is malum in se, but simply the continuance of the influence which naturally inheres in and attaches to the relation itself."
Bancroft v. Otis, 91 Ala. 279, 290, 8 So. 286, 289 (1890). This statement was quoted in Hutcheson v. Bibb, 142 Ala. 586, 38 So. 754 (1904), and has been carried forward from that case. See, e.g., Milliner v. Grant, supra; Floyd v. Green, 238 Ala. 42, 188 So. 867 (1939).
The trial court's decree reads in pertinent part: "A party who seeks to have a deed set aside must prove at least one of the applicable grounds by `clear and convincing evidence.' On consideration of the evidence presented in this case, the Court is of the opinion, and holds, that the plaintiffs have not carried their burden of proof." As the authorities quoted and cited above show, the standard cited by the trial court is not appropriate in a case where the parties to the deed stand in confidential relations. The party seeking to have the deed set aside need only show to the reasonable satisfaction of the court that the grantee was the dominant party in a confidential relationship with the grantor, whereupon the burden shifts to the grantee to show that the transaction was "fair, just, and equitable in every respect." Brothers v. Moore, supra, 349 So. 2d at 1109.
*1309 The evidence in this case was in sharp conflict as to the relationship between Newton and his parents. This evidence would support a finding that J.N. and Josie Chandler, though old and physically feeble, were perfectly well in possession of their faculties, in control of their own affairs, and not subject to the domination of Newton; or a finding that Newton advised and assisted his parents to the extent that he was the dominant party in the relationship, but that the transaction was fair, just, and equitable, because, for example, Newton and Madge cared for the elder Chandlers for more than ten years prior to the execution of the deed; or a finding that Newton was the dominant party and Madge did not meet her burden of showing that the transaction was fair, just, and equitable.
If the trial court was of the understanding that the plaintiffs were required to prove by clear and convincing evidence that the transaction was unfair, unjust, and inequitable, the prejudice to them by the application of the wrong standard is apparent. Even if the court considered that they were required to prove by clear and convincing evidence that Newton was the dominant party, the judgment cannot stand as rendered. Upon the application of a lesser burden of proof to the facts, the trial court might have concluded that the plaintiffs had established enough of a case of dominance by Newton to shift the burden of proof as is appropriate is such cases as this.
We are in no position either to affirm or to reverse the judgment. Therefore, we remand the cause for the trial court to conduct such further proceedings as are necessary, to consider the evidence in the light of the principles stated in this opinion, and then to render judgment for the proper party.
REMANDED WITH INSTRUCTIONS.
MADDOX, BEATTY, ADAMS and HOUSTON, JJ., concur. | October 2, 1987 |
03e3c581-84c9-4585-b224-0409afe10d5b | Berness v. Regency Square Associates | 514 So. 2d 1346 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1346 (1987)
Louise BERNESS and Francis L. Berness
v.
REGENCY SQUARE ASSOCIATES, LTD., et al.
86-29.
Supreme Court of Alabama.
October 2, 1987.
Gene M. Hamby, Jr., of Hamby & Baker, Sheffield, for appellants.
David K. Howard of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia, for appellees Regency Square Associates, Ltd., Ralph Biernbaum, and George A. Box, Jr.
Nicholas B. Roth and William L. Middleton of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellee B.H. Craig Const. Co., Inc.
Donna S. Pate of Ford, Caldwell, Ford & Payne, Huntsville, for appellee F.R. Hoar and Son, Inc.
MADDOX, Justice.
Plaintiffs, Louise Berness and her husband Francis Berness, appeal from a summary judgment in favor of defendants in a suit charging the defendants with negligence, *1347 wantonness, and breach of contract in the maintenance of a shopping mall parking lot.
On March 15, 1985, at about 7:45 in the evening, Louise Berness was leaving her place of business, Big B Fashions, which is located in the Regency Square Mall in Florence. As she walked out of the entrance to the mall and toward her car, she fell on some loose concrete on the sidewalk. The sidewalk had been broken and cracked since 1979. The outside lights had not been turned on when Berness fell. As a result of the fall, Louise Berness and her husband brought this action against Regency Square Associates, Ltd., a limited partnership; Ralph Biernbaum (general partner of Regency Square Associates); George A. Box, Jr. (manager and marketing director of Regency Square Mall); F.R. Hoar & Son, Inc. (general contractor); and B.H. Craig Construction Company (subcontractor). The complaint contained causes of action based on negligence, wantonness, and breach of contract. All defendants filed motions for summary judgment, alleging that Louise Berness was contributorily negligent. The trial court granted summary judgment for all defendants. Louise and Francis Berness appeal.
The first issue raised on appeal is whether evidence exists to support the plaintiffs' allegations of negligence. The plaintiffs contend that genuine issues of material fact exist in this case. On the other hand, the defendants argue that the trial court did not err when it found that Louise Berness was guilty of contributory negligence, as a matter of law, and that the trial court's entry of summary judgment in their favor was proper.
Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P.; Owens v. National Security of Alabama, Inc., 454 So. 2d 1387 (Ala. 1984). If evidence exists to support the position of the non-moving party, then summary judgment is improper. Newton v. Creative Dining Food Systems, Inc., 492 So. 2d 1011 (Ala.1986). When the material facts are not disputed, a question of law exists that is to be determined by the trial court. Duffy v. Bel Air Corp., 481 So. 2d 872 (Ala.1985).
This Court has many times set forth the elements of contributory negligence. In Alabama Power Co. v. Mosley, 294 Ala. 394, 318 So. 2d 260 (1975), this Court stated:
294 Ala. at 398, 318 So. 2d at 263.
The record in this case reveals that Louise Berness had knowledge of the sidewalk's condition prior to the accident. She stated in deposition that this condition had been in existence since 1979, six years before the accident. She also stated that she had observed the condition of the sidewalk every day as she went to and from work and that she considered the situation to be dangerous. She also stated that she had previously walked through the same area at night when the lights were off and it was dark.
Defendants are correct in stating that this Court in several recent cases has held that, under certain circumstances, a plaintiff can be guilty of contributory negligence as a matter of law. In Duffy v. Bel Air Corp., 481 So. 2d 872 (Ala.1985), the plaintiff broke her ankle when she slipped on a piece of decorative gravel in a parking lot owned by the defendant corporation.
*1348 The plaintiff charged the defendant with negligence in the maintenance and operation of the parking lot. There was evidence that the plaintiff had passed there many times and knew that the gravel was there. The trial court entered summary judgment in favor of the defendant, and this Court affirmed, noting:
481 So. 2d at 874.
In Newton v. Creative Dining Food Systems, Inc., 492 So. 2d 1011 (Ala.1986), this Court affirmed a summary judgment on the ground that the plaintiff knew of the existence of the hazard prior to the accident and was guilty of contributory negligence, as a matter of law. The plaintiff in Newton alleged that she had slipped on some cedar chips in a landscaped area in the parking lot of defendant's restaurant.
In this case, however, Louise Berness has alleged that the defendants were negligent in not having the outside light turned on at the time of the accident. Defendants contend that Owens v. National Security of Alabama, Inc., 454 So. 2d 1387 (Ala. 1984), is controlling, and thus that summary judgment was appropriate as to this claim. In Owens, the plaintiff brought an action seeking damages for injuries sustained when he tripped over a forklift while walking to his place of work through darkness. The trial court granted summary judgment in favor of the defendants on the grounds of the statute of limitations, contributory negligence, and assumption of the risk. In affirming the trial court's ruling, this Court stated:
454 So. 2d at 1389.
At first blush, these cases seem to sustain the judgment of the trial court; but we are of the opinion that the facts of this case are sufficiently dissimilar to preclude the entry of summary judgment on the tort claim as to Regency Square Associates, Ltd., the lessor, and its agents. Owens, for example, involved the legal, rather than factual, issue of the defendant's threshold duty to warn of the unlighted condition of the premises. Here, as we will point out, there was some evidence of a duty on the lessor to light the premises. Therefore, under the facts of this case, we cannot say, as a matter of law, that Louise Berness was guilty of contributory negligence. The trial court did not err, however, in granting summary judgment to those defendants other than Regency Square Associates, Ltd., because there was no evidence showing they owed a duty to the plaintiff.
This Court, following the federal cases, applying the "substantial evidence" rule rather than the "scintilla of evidence rule," stated in Parker v. King, 402 So. 2d 877 (Ala.1981):
*1349 "`A plethora of federal cases say that the party moving for summary judgment must clearly establish that the other party could not recover under "any discernible circumstances." Rotermund v. United States Steel Corp., 474 F.2d 1139 (8th Cir.1973); Nyhus v. Travel Management Corp., 151 U.S.App.D.C. 269, 466 F.2d 440 (1972); Phoenix Savings and Loan, Inc. v. Aetna Casualty and Surety Co., 381 F.2d 245 (4th Cir., 1967). The moving papers of the defendant simply do not do that. There is certainly a possibility of a jury verdict for the plaintiff as the record stands now.
"`[T]he record must negate the probability that evidence calling for a contrary result might be developed at the trial. If the pleadings, affidavits, and depositions available when the motion for summary judgment must be ruled on fail to resolve any relevant issue, summary judgment is premature.'
"`Because of the peculiarly elusive nature of the term "negligence" and the necessity that the trier of facts pass upon the reasonableness of the conduct in all the circumstances in determining whether it constitutes negligence, it is the rare personal injury case which can be disposed of by summary judgment, even where the historical facts are concededly undisputed.' Gauck v. Meleski, 346 F.2d 433, 437 (5th Cir.1965)."
402 So. 2d at 879.
The second issue is whether there is evidence to support the Bernesses' allegations of wantonness. The Bernesses contend that the defendants knowingly and intentionally allowed an unsafe condition to remain uncorrected. They rely on the affidavit of their daughter, Becky Berness, to establish the wantonness. The defendants contend that the evidence was not sufficient to present a scintilla of evidence of wantonness.
This Court has previously written, regarding wantonness:
"`Wantonness has been defined as the conscious doing of some act or the omission of some duty [while] under knowledge of existing conditions and while conscious that, from the doing of such act or the omission of such duty, injury will likely or probably result, and before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the result. Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So. 2d 505 [(1946)]; Taylor v. Thompson, *1350 271 Ala. 18, 122 So. 2d 277 [(1960)]; Johnson v. Sexton [277 Ala. 627, 173 So. 2d 790], supra.'"
Roberts v. Brown, 384 So. 2d 1047, 1048 (Ala.1980), quoting Lewis v. Zell, 279 Ala. 33, 36, 181 So. 2d 101 (1965). In order to constitute wantonness, a failure to act must be accompanied by knowledge that someone is probably imperiled, and thus failure to act must be in reckless disregard of the consequences. Whaley v. Lawing, 352 So. 2d 1090 (Ala.1977). "That which constitutes wanton misconduct depends upon the facts presented in each particular case." American Pamcor, Inc. v. Evans, 288 Ala. 416, 261 So. 2d 739 (1972).
In her affidavit, Becky Berness testified that George Box knew that another elderly lady had fallen in the same area where the pavement was broken, long before Louise Berness fell.
We are of the opinion that this evidence was not sufficient to foreclose entry of a summary judgment on the wantonness count. In fact, the affidavit does not show what caused the fall of the elderly lady, only that it happened in the same area. We believe that under the facts of this case, there is not a scintilla of evidence of wanton misconduct on the part of any of the defendants; therefore, summary judgment was appropriate as to each defendant on the wantonness claim.
The final issue presented on appeal is whether evidence exists to support the claim based on an alleged breach of contract. The Bernesses contend that Regency Square Associates, Ltd., violated section 25 of its lease with Louise Berness, which required it to maintain common areas such as sidewalks. The plaintiffs assert that the landlord is liable for such damages as are the natural and proximate result of the breach. The Bernesses contend that Section 42(c), which contains what the plaintiffs describe as an exculpatory clause, is unenforceable. Regency Square, of course, contends that no breach occurred.
Section 25 of the lease provides, in part:
Section 42(c) of the lease provides:
An exculpatory clause "operates to release the lessor for future negligent conduct, *1351 so that he or she can negligently cause the lessee injury, yet avoid the otherwise fixed legal responsibility to compensate the lessee." Lloyd v. Service Corp. of Alabama, Inc., 453 So. 2d 735, 736 (Ala. 1984). This Court held in Lloyd that when a lessee can show that an exculpatory provision in a residential lease is unconscionable, the exculpatory provision is unenforceable.
Section 42(c) of the lease is not an exculpatory provision. Section 42(c) does not attempt to release the lessor from liability for future negligent acts. It, in fact, states that the lessor will be liable for its own negligence or the negligence of its agents, servants, or employees.
Because we find that there was evidence that the lessor was under a duty to "construct, maintain and operate parking and other common areas" and in view of the fact that there was some evidence that the failure of the lessor to perform this obligation could have resulted in the injury complained of, we hold that the trial court erred in granting summary judgment in favor of the lessor, Regency Square, on the contract claim. Vick v. H.S.I. Management, Inc., 507 So. 2d 433 (Ala.1987). The court did not err, however, in granting summary judgment on the contract claim as to the other defendants, including Regency Square's agents because there was no evidence to show that either defendant was liable to the plaintiff under any theory based on contract.
Based on the foregoing, the judgment of the trial court is due to be affirmed in part and reversed in part, and the cause remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
JONES, SHORES, BEATTY and HOUSTON, JJ., concur. | October 2, 1987 |
180c6bbd-a970-41a1-86bc-04e0fb1fa264 | March v. Stringer | 518 So. 2d 65 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 65 (1987)
George Markham MARCH III
v.
Ivie Clayton STRINGER.
85-1240.
Supreme Court of Alabama.
October 2, 1987.
Rehearing Denied December 4, 1987.
*66 John D. Richardson and Weyman W. McCranie, Jr., of Brown, Hudgens, Richardson, Mobile, for appellant.
Joseph C. McCorquodale III of McCorquodale & McCorquodale, Jackson, for appellee.
ALMON, Justice.
This is an appeal by the defendant, George Markham March III, from the denial of his Rule 60(b), A.R.Civ.P., motion for relief from a default judgment.
On February 2, 1983, an accident involving the parties to this action occurred in the Bel Air Mall at Mobile. According to the plaintiff, Ivie Clayton Stringer, he was struck and severely injured by an automobile being driven by March. According to March, Stringer walked into the side of his automobile.
Thereafter, Stringer employed Joseph C. McCorquodale III, of Jackson, Alabama, to proceed with a claim on his behalf in connection with the accident. Meanwhile, March telephoned his insurance agent within a couple of hours after the accident and reported it.
Stringer's attorney obtained March's address from the accident report and, on February 21, 1983, wrote to him at 1201-B Primeter [sic] Drive, Mobile, Alabama:
March took this letter to his insurance agent or adjuster (March used both terms at the hearing). Ms. Lequita Robinson, a claims representative for the insurance company, acknowledged to Stringer's attorney on February 28, 1983, that the insurer had received this letter.
Later, the insurer referred the file to Ray McGraw, an independent adjuster, who, on July 25, 1983, wrote to Stringer's attorney that he was handling the file, and concluded:
On September 6, 1983, Stringer's attorney wrote to McGraw as follows:
Stringer's attorney wrote again on September 28, 1983:
*67 "Re: Our Client: Ivie Clayton Stringer Your Insured: Yalana March Date of Loss: February 2, 1983
The attorney wrote another letter on October 7, 1983:
On December 15, 1983, he sent another letter:
Stringer's attorney testified that during this correspondence he had no telephone conversations with McGraw. According to McGraw, however, he had telephone conversations with Stringer's attorney, during which he discussed the claim and his company's position, at least until December 27, 1983.
On January 24, 1984, Stringer filed an action for damages in Clarke County against March. The complaint contained two counts, one based on negligence and one on wanton conduct. The summons filed therewith stated that the defendant "may be served at: 1201-B Primiter Drive, Mobile, Alabama 36605." This summons was returned "Not Found," as acknowledged by a deputy sheriff's signature. Then service of process was attempted by certified mail on March 26, 1984, at the same address. This certified mail process was returned on April 20, 1984, "Unclaimed."
On June 19, 1984, Stringer's attorney moved by affidavit in the trial court for service by publication. The pertinent part of that affidavit follows:
On that day, the circuit clerk of Clarke County issued an order that publication be made once a week for four consecutive weeks in The South Alabamian, a newspaper published in Clarke County, and in The Mobile Press Register, a newspaper published in Mobile County, "requiring the said George Markham March, III, to plead or answer to the complaint in this cause by the 19th day of August, 1984, or in default thereof, thirty days thereafter a default judgment may be taken against said defendant." Subsequently, a legal notice, ordered by the circuit clerk of Clarke County, was published on June 28, July 5, July 12, *68 and July 19 in both of the newspapers referred to above.
Apparently there arose thereafter some question concerning the sufficiency of the previous affidavit for service by publication, for on December 5, 1984, Stringer filed a motion for service by publication, from which we quote in pertinent part:
The attached affidavit stated, in pertinent part:
We note that the motion and the affidavits do not specify any of the efforts made by Stringer's attorney to locate March.
On December 5, 1984, the Clarke Circuit Court entered the following order:
Publication of this order ensued as directed. Service by certified mail was also attempted on December 6, 1984, at 1201-B Primiter Drive, Mobile, but was returned "not claimed" on January 2, 1985.
On March 18, 1985, Stringer's motion to withdraw his jury demand was granted by the Clarke Circuit Court. On that same date, the circuit court ordered the circuit clerk to enter a default against March. The clerk did so on the same day. Following a hearing at which testimony and other evidence on Stringer's injuries were taken, the court awarded damages to Stringer in the amount of $71,797.68.
On August 26, 1985, March moved for relief from the default judgment under Rule 60(b)(6), A.R.Civ.P., stating:
The affidavit of Ray McGraw contained the following pertinent statement:
March's affidavit also averred exculpatory facts:
March subsequently amended his motion for relief, asserting that the venue was improper under Rule 82, A.R.Civ.P., and that the judgment was void.
Both parties submitted briefs in connection with the motion for relief.
On October 3, 1985, the circuit court heard evidence on the motion and, after consideration, denied the motion for relief on June 25, 1986. This appeal followed.
Rule 60(b), A.R.Civ.P., sets out the grounds upon which a party may seek relief from a "final judgment, order, or proceeding." By virtue of his averments in *70 his motion and its amendment, March relies upon ground (4) ("the judgment is void") and ground (6) ("any other reason justifying relief from operation of the judgment").
March maintains that the judgment against him is void because he was never properly served with process because Stringer's attorney failed to exercise the "reasonable diligence" required under Rule 4.3(d)(1), A.R.Civ.P., to ascertain the residence of March. That rule states:
According to March, reasonable diligence was lacking because Stringer's attorney made no attempt to obtain his address after service sent to the address found on the accident report was returned "not found" or "unclaimed." March emphasizes that Stringer's attorney never attempted to telephone his father, whose telephone number was listed in the telephone directory, or to telephone March himself. March introduced copies of pages from two years' Mobile telephone directories showing listings for "G.M. March" and "Dr. George M. March." Apparently one of these listings was for the father of defendant March; reasonable diligence would suggest that they be tried before service by publication be employed. Stringer's attorney testified that he did not look in the Mobile telephone directory after service was returned "Not found." According to March, he moved to Dauphin Island in May 1983 and obtained a telephone with a number listed for his Dauphin Island address.
March also points out that Stringer's attorney had knowledge that McGraw, the adjuster, was acting on behalf of March, and yet Stringer's attorney failed to notify the adjuster of any unsuccessful attempts to obtain service and failed to notify McGraw that a suit had been filed. According to March, he notified his insurance agent of his new address and it could have been obtained through the agent. There was some indication that McGraw did not have March's new address. However, when Stringer's attorney notified McGraw of the default judgment (immediately after the four-month period for motions under 60(b)(1) through (3) had expired, we note), March was promptly notified and the instant motion for relief was soon filed.
Stringer makes the point that McGraw did not respond (at least in writing) to his attorney's attempts to negotiate the claim. McGraw was under no obligation to respond to these letters, however, so, even accepting the attorney's version of the facts, i.e., that he and McGraw did not communicate by telephone, such a failure to communicate was no basis upon which the attorney could refrain from making the effort of locating March through McGraw. The attorney testified that he did in fact make no such effort because of McGraw's failure to correspond:
He did not owe such an effort to McGraw, but he did owe it to March in order to obtain jurisdiction over him in Stringer's lawsuit. The letter that had been sent to March at the Primiter Drive address had resulted in McGraw's acting on behalf of March in the matter. When the address later proved ineffective for service upon March, diligent effort required that Stringer's *71 attorney inquire of McGraw as to March's whereabouts before attempting service by publication.
In Marshall v. Mid-State Homes, Inc., 468 So. 2d 131 (Ala.1985), this Court held that the setting aside of a default judgment was proper where there had been service by publication, setting forth efforts the plaintiff should have taken when service by certified mail was returned unclaimed, efforts which were perhaps more burdensome than those which could have been pursued in this case. Also, in Whitfield v. Sanders, 366 So. 2d 258 (Ala.1978), this Court held that a default judgment based on service by publication was void since the defendant easily could have been served by certified mail. The Court of Civil Appeals reached a similar result in Sams v. Equitable Life Assur. Society, 402 So. 2d 999 (Ala.Civ.App.1981). Hutchins v. Shepard, 370 So. 2d 275 (Ala.1979), and Brooks v. Brooks, 494 So. 2d 645 (Ala.Civ.App.1986), are distinguishable on their facts, in that in those cases it affirmatively appeared that diligent efforts to locate the defendant were fruitless or would have been futile. See also Illinois Central Gulf R.R. v. Horton, 514 So. 2d 1283 (Ala.1987).
This Court stated in Smith v. Clark, 468 So. 2d 138, 141 (Ala.1985):
For the foregoing reasons, the trial court erred in denying March's 60(b)(4) motion for relief from the default judgment.
We note also that Rule 82, A.R. Civ.P., requires that personal actions against permanent residents of the state be brought "either in the county where the act or omission ... occurred, or in the county of the permanent residence of the defendant." The accident occurred in Mobile County and March lived in Mobile County, but Stringer filed suit in Clarke County.
Although it is not necessary that the defendant show a meritorious defense to succeed on a Rule 60(b)(4) motion, see Ex parte Wilson Lumber Co., 410 So. 2d 407 (Ala.1982), we note that March testified that he was driving at 5 m.p.h. when Stringer stepped into the side of his car, under circumstances in which he (March) could not avoid the accident. This testimony was corroborated by a witness, Carl Patrick Olsen:
These matters indicating that the action was filed in the wrong county and that March presented a meritorious defense are not necessary to our holding that the trial court erred in denying the 60(b)(4) motion; we set them forth simply to indicate that March's 60(b) motion was amply supported.
The judgment is reversed and the cause is remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES, SHORES, ADAMS and HOUSTON, JJ., concur.
BEATTY, J., dissents.
BEATTY, Justice (dissenting).
An examination of the two affidavits executed by plaintiff's attorney, quoted in the majority opinion, fulfill the requirements of Rule 4.3(d)(1), A.R.Civ.P. The evidence shows that the February 21, 1983, letter of plaintiff's attorney was received by defendant. He did not reply to this letter, and he subsequently moved from his 1201-B Primiter Drive address in Mobile without either telling his neighbors or leaving a forwarding address with the post office. He did not have a telephone number listed in the Mobile directory. The defendant himself, however, testified that his telephone number had never been unlisted. According to McGraw, the insurance adjuster, the defendant did not give the adjuster a forwarding address, and, in fact, the adjuster never had any notice of a change in defendant's address. The adjuster himself had difficulty locating March, as shown by his file, part of which we quote:
"I found that the insured no longer resides at 1201-B Perimeter [throughout the record the street is usually referred to as "Primeter"] Drive, Mobile, AL. This is a housing project. I checked with neighbor, Annie Porter at 1200-B and she indicated they had moved over a year ago. She did not know of any way of contacting them.
There is no evidence that would indicate any more success by the plaintiff's attorney had he made these or similar attempts to locate the defendant.
*73 The facts establish that service by certified mail was attempted on two occasions at the same address, an address at which they knew the defendant had received mail because of his adjuster's earlier reply to plaintiff's lawyer. On each of those occasions the certified mail was sent twice, and returned "not claimed." The record discloses that defendant was residing in Mobile County when the publication notice appeared in the Mobile Register. Service was also attempted by the Mobile County sheriff's office at the same address used in the certified mail and returned "not found." No reason was established, moreover, why or how plaintiff's attorney could, or should, have known the name of defendant's father so as to telephone him as to his son's whereabouts.
The record also discloses that plaintiff's lawyer wrote four letters to defendant's adjuster during September, October, and December 1983the December letter containing copies of the previous three letters. No written replies were received. In that connection, plaintiff's lawyer denied having any telephone conversations with defendant's adjuster concerning the subject matter of those letters. Contrary to that position, defendant's adjuster testified that he and plaintiff's lawyer discussed these by telephone:
This exchange raised conflicting inferences. If, as defendant argues, it was incumbent upon plaintiff's counsel to notify defendant's adjuster of the filing of the lawsuit, it was equally incumbent upon the adjuster, in view of the correspondence between them, to make a similar inquiry, since that correspondence specifically referred to the threat of a lawsuit. The absence of any inquiry from the adjuster would tend to support the claim of reasonable diligence on the part of plaintiff's lawyer.
As this Court stated in Smith v. Clark, 468 So. 2d 138 (Ala.1985):
Under the facts, we should not conclude that the trial court abused the discretion vested in it under subsection (6). The validity of the affidavits pursuant to Rule *75 4.3(d)(1) is unchallenged, and, indeed, comply with that rule. The efforts of plaintiff's attorney to communicate with defendant and his adjuster disclose a level of diligence reasonable at the very least, and thus do not place this case within the class of cases involving "extraordinary circumstances." Moreover, those very facts detailed above disclose a consistency with due process, in accord with the mandate of Wonder v. Southbound Records, Inc., 364 So. 2d 1173 (Ala.1978). Defendant has not shown that the Clarke Circuit Court acted otherwise than within its power, for it clearly possessed jurisdiction of the subject matter and, under the requirements of Rule 4.3(d)(1), A.R.Civ.P., jurisdiction of the defendant. The decisions relied upon by the defendant for a contrary result, I respectfully note, are distinguishable. The case of Webb v. Galloway, 442 So. 2d 53 (Ala.1983), accords with the decision I would reach on this point.
Moreover, we should not conclude that the trial court abused its discretion by rejecting the argument that it should set aside the default judgment on the basis that venue was proper only in Mobile County. The trial court's position is tenable.
It is true that Rule 82, A.R.Civ.P., rerquires that personal actions against permanent residents of the state may be brought "either in the county where the act or omission ... occurred, or in the county of the permanent residence of the defendant." Even so, improper venue is a defense under Rule 12(b), A.R.Civ.P., and may be waived. Ex parte Tanksley, 418 So. 2d 94 (Ala. 1982). As was stated in Jordan v. Guaranty Pest Control, Inc., 292 Ala. 601, 606, 298 So. 2d 244, 248 (1974): "[I]t seems clear that the appropriate method to attack improper venue is to appear and make timely motion, and on a failure to do so the improper venue is waived." In this case, the trial court could have found that the defendant not only did not appear, but gave the reasonable appearance of avoiding service, to the extent that a proper default judgment could be entered against him. The Rules of Civil Procedure must be construed so as to accommodate each other; it would be disconsonant to allow the proper entry of a default judgment upon a nonappearing party, only to later require the removal of that judgment because the defaulting party chose not to appear and plead. Cf., Ex parte Starr, 419 So. 2d 222 (Ala.1982). Relief under Rule 60(b)(6) is not intended to relieve a party from the free, calculated, and deliberate choices he has made. Tichansky v. Tichansky, 54 Ala.App. 209, 307 So. 2d 20 (1974), cert. denied, 293 Ala. 775, 307 So. 2d 24 (1975).
Finally, the fact that the defendant may have possessed a meritorious defense does not mean that the trial court erred in refusing to set aside the default judgment.
The record contains testimony of both the plaintiff and the defendant. The plaintiff testified:
*76 "A. It had to be, I believe. Yeah, in my opinion it had to be travelling fast to come almost a block as quick as it did. When I looked upthey know I wouldn't walk in front of the automobile, if I had known it.
The defendant, on the other hand, testified that he was driving at 5 m.p.h. when the plaintiff stepped into the side of his car, under circumstances in which he could not avoid the accident. This testimony was corroborated by a witness, Carl Patrick Olsen:
This polemic evidence created an issue of fact, but the question remains whether it demonstrates an abuse of the trial court's wide discretion in determining not to grant relief under Rule 60(b)(6). Those disputed facts do not present an extraordinary or compelling circumstance requiring relief. Cf., Howell v. D.H. Holmes, Ltd., 420 So. 2d 26 (Ala.1982). Nor is there anything in such a vein presented in the amount of damages awarded. A review of the record discloses ample proof supporting the damages award. | October 2, 1987 |
f3916dc6-0f46-4ee7-9adc-11726358aec0 | Coleman v. Stitt | 514 So. 2d 1007 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1007 (1987)
Kenneth W. COLEMAN, Administrator of the Estate of Belinda Faye Coleman, Deceased
v.
Brenda STITT, Administratrix of the Estate of Dr. Frank Stitt, Jr., Deceased.
86-413.
Supreme Court of Alabama.
September 25, 1987.
Grover S. McLeod, Birmingham, for appellant.
W. Stancil Starnes and W. Hill Sewell of Starnes & Atchison, Birmingham, for appellee.
JONES, Justice.
This appeal challenges the trial court's order denying the motion of the deceased minor's mother for substitution as plaintiff. The defendant (appellee) contends that the mother of the deceased minor failed to meet the statutory requirement for substitution as the proper party plaintiff in this cause and, consequently, that the trial court did not err in denying her motion for substitution. Citing Code 1975, § 6-5-391, and Mattingly v. Cummings, 392 So. 2d 531 (Ala.1980), the appellee insists that the trial court properly dismissed the case for failure of the father to appear for a deposition and for his failure to diligently prosecute the claim for the wrongful death of his daughter. We reverse and remand.
We hold that the trial court, in denying substitution and dismissing the case, misconstrued the phrase "or the mother in cases mentioned in section 6-5-390." Section 6-5-390 was amended in 1979 (Ala. Acts 1979, No. 79-443, p. 725) to permit "a father or a mother ... an equal right to commence an action." It follows, then, that the unamended language in § 6-5-391, referencing "cases mentioned in section 6-5-390," recognizes the equal right of the mother to commence the wrongful death action. Therefore, where, as here, the father, as the originally named plaintiff, does not object to the substitution of the mother as the plaintiff,[1] the trial court erred in denying her motion and in dismissing the case.
REVERSED AND REMANDED.
MADDOX, SHORES, ADAMS and STEAGALL, JJ., concur.
TORBERT, C.J., concurs in the result.
BEATTY, J., concurs specially.
HOUSTON, J., dissents.
BEATTY, Justice (concurring specially).
This case presents issues of first impression that call for the construction of certain language contained within Code of 1975, § 6-5-390, and incorporated by reference into § 6-5-391. Section 6-5-390 was amended in 1979 to eliminate the priority of *1008 right given to the father to bring an action for the personal injury (or wrongful death, see § 6-5-391) of his minor child. Sections 6-5-390 and -391 now give "[a] father or a mother, ... [who] are lawfully living together as husband and wife, ... an equal right to commence an action for an injury to their minor child" or the wrongful death of such a child. (Emphasis added.) Section 6-5-390.
The first question that this case gives rise to is whether § 6-5-391, reading § 6-5-390 into it, permits the mother and the father to commence two separate actions for the wrongful death of their minor child, one for each parent's individual benefit. In other words, did the legislature, in amending § 6-5-391, intend to allow each parent a separate right of action, thus requiring a defendant to defend two separate actions arising from the same alleged wrongful act? For the reasons discussed below, the answer is no.
As noted above, under old § 6-5-390 and -391, the father was given the primary right and priority to commence an action for the wrongful death of his minor child and, under our cases, was also given the priority in receiving any damages awarded. See Mattingly v. Cummings, 392 So. 2d 531 (Ala.1980); Jones v. Jones, 355 So. 2d 354 (Ala.1978); Thorne v. Odom, 349 So. 2d 1126 (Ala.1977). In amending § 6-5-390, the legislature also amended § 6-5-391 to the extent that the provisions of § 6-5-390 are incorporated by reference into § 6-5-391. However, no other express or implied amendments have been made to § 6-5-391, and, therefore, the final proviso of that section, set out below, is still applicable to cases such as the present one:
Thus, contrary to the view of the dissent, and notwithstanding § 6-5-390 as amended, the action filed by the father in this case operated to bar any additional action the mother would have otherwise commenced for the wrongful death of her daughter. Furthermore, although it is not at issue in this case, there arises the question whether the father and the mother may commence two separate actions under § 6-5-390 for each parent's respective compensatory damages caused by personal injury to their minor child. The amendatory language of § 6-5-390 indicates that, even for personal injuries, one action by either parent is contemplated. In amending § 6-5-390, the legislature used the disjunctive ("[a] father or a mother") and the singular ("have an equal right to commence an action"). That section does not state that both the father and the mother have an equal right to commence actions.
Because this amendatory language of § 6-5-390 is incorporated by reference into § 6-5-391, the above statutory construction is additional support for the position that, even in view of the amendment to § 6-5-390, only one action for wrongful death under § 6-5-391 may be commenced. The father and the mother, however, now have an equal right to commence such an action, and, it follows, an equal right to any recovery of damages. Thus, if the father commences the action for wrongful death, as he did in this case, he represents not only his own interest in any recovery, but also the interest of his wife. Therefore, as an interested party, the wife in this case had the right to intervene in the action when, because of the conduct of her husband, her interests were no longer being represented. See A.R.Civ.P., Rule 24(a) and (b). When it became evident that the father had abandoned the wrongful death action, the mother attempted to be brought into the lawsuit in order to see to it that her interests in the case were protected. She sought to do that on October 10, 1986, by filing a "Motion for Substitution," pursuant to Rule 25, A.R.Civ.P. The trial court denied the motion on October 30, 1986, and four days later, the defendant filed a motion to dismiss the action pursuant to Rule 37(b)(2)(C) and Rule 37(d) for the failure of the father to attend his scheduled deposition. The trial court granted the motion to dismiss on November 4, 1986. Thereafter, the mother filed a *1009 motion to intervene pursuant to Rule 24, which was also denied by the trial court.
The dissent correctly points out that Rule 25 does not apply to the circumstances of this case, and that there is no evidence of record establising that the husband "transferred his interest" in the case by "consenting" to the substitution:
(Footnotes omitted.) (Emphasis added.) 7C Wright, Miller & Kane, Federal Practice & Procedure § 1951, p. 522 (1986). However, the mother's failure to meet the requirements of Rule 25 does not necessarily mean that she is not entitled to the relief she sought by her motion, namely a change in parties. It is well settled that the substance of a motion controls its form, and that the label placed on it does not bind its substantive review. Cornelius v. Green, 477 So. 2d 1363 (Ala.1985); City of Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala.1981); Timms v. Scott, 248 Ala. 286, 27 So. 2d 487 (1946).
By her motion seeking to be "substituted" in place of her husband as plaintiff, Lila Coleman established that she is the mother of Belinda Coleman, the deceased minor child, and that her husband's whereabouts were unknown, and that his behavior was unpredictable due to the anxiety and depression from which he suffered. Under § 6-5-391, the mother has not only an interest in the action abandoned by her husband, but also an equal right to prosecute the action in her own individual capacity. Therefore, the mother is entitled to intervene in the action under Rule 24 and to have herself, in effect, "substituted" for her husband by "dropping" him and "adding" her as plaintiff under Rule 21. I agree that the trial court abused its discretion in not granting this relief on these facts. Furthermore, because the mother was entitled to have herself named as plaintiff and her husband dropped as plaintiff, the trial court was without the power under Rule 37(b)(2)(C) to dismiss the entire action due to the failure of the husband, who should no longer have been considered a party, to attend his scheduled depositions. See, e.g., Taylor Coal Co. v. Pearson, 380 So. 2d 779 (Ala.1980).
HOUSTON, Justice (Dissenting).
A father or a mother of a minor has an equal right to commence an action for an injury to a minor child if they are lawfully living together as husband and wife and the minor is a member of the family. Section 6-5-390, Code 1975 (as amended). A father or a mother of a deceased minor has an equal right to commence an action for a wrongful death of that minor, if they are lawfully living together as husband and wife and the minor was a member of the family at the time of his or her death. Section 6-5-391, Code 1975.
In this case, Kenneth W. Coleman, as administrator of the estate, father, and next friend of Brenda Faye Coleman, a deceased minor, "commenced" this action. He had a right to do so. Lila Coleman, as mother of Brenda Faye Coleman, had an equal right to "commence" this action, but she did not do so.
This case involves substitution of parties (Rule 25, Ala.R.Civ.P.), and not the right to commence the action. Rule 25, provides the mechanics for substitution of parties, plaintiff or defendant, in the event of death, incompetency, transfer of interest, and, insofar as public officers are concerned, death or separation from office. In this case, the administratrix of the estate of the deceased defendant was properly substituted as a party defendant after the death of the defendant. However, I can find no grounds to permit Lila Coleman's substitution for Kenneth Coleman. Lila Coleman's affidavit stated that Kenneth Coleman had suffered from anxieties, that he had left the state, and that she had not known his whereabouts for a month. This is not sufficient proof of Kenneth Coleman's death or incompetency. There is no evidence that he transferred his interest in the litigation to Lila Coleman. Therefore, I do not believe that the trial court erred in denying substitution.
*1010 A trial court has broad discretion in controlling discovery. Ex parte Sargent Industries, Inc., 466 So. 2d 961 (Ala.1985). If a party, who is properly noticed, fails to attend his deposition, the trial court is authorized to dismiss the action, if the party is a plaintiff, or to render judgment by default, if the party is a defendant. Rule 37(d), Ala.R.Civ.P., which authorizes the trial court to take action authorized under Rule 37(b)(2)(C). Blair v. Cooper, 437 So. 2d 1249 (Ala.1983). These are drastic measures that should be taken only when such action is "just."[1]
Coleman did not appear for his deposition on October 9, 1986. After a hearing on defendant's motion to dismiss for failure to comply with Rule 37(d), the trial court ordered Coleman to appear for his deposition no later than the morning of the trial. Coleman failed to appear for his deposition the morning of the trial, or at any time prior thereto. The trial court dismissed the action. In my opinion, the trial court did not abuse its discretion in dismissing the action or in refusing to grant Coleman's Rule 59 motion: The record does not plainly and palpably show that the trial court erred. Coker v. Farmers Mutual Exchange, 425 So. 2d 489 (Ala.Civ.App.1983). I would affirm; therefore, I dissent.
[1] Indeed, the father, as the appellant, seeks to reverse the trial court's denial of the mother's motion for substitution.
[1] Rule 37(d), in pertinent part, provides: "[T]he court in which the action is pending on motion may make such orders in regard to the failure [to appear before the officer who is to take his deposition, after being served with proper notice] as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule." (Emphasis added.) | September 25, 1987 |
3b29dfad-1950-46bc-9e30-9c307a7ac568 | City of Birmingham v. Wilkinson | 516 So. 2d 585 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 585 (1987)
CITY OF BIRMINGHAM
v.
T.J. WILKINSON, et al.
T.J. WILKINSON, et al.
v.
CITY OF BIRMINGHAM, et al.
85-1160, 85-1262.
Supreme Court of Alabama.
October 2, 1987.
Rehearing Denied November 6, 1987.
*586 James K. Baker, City Atty., and John P. Carlton and David J. Vann of Carlton, Vann & Stichweh, Birmingham, for appellant/ cross-appellee.
Carl E. Johnson and Burgin H. Kent of Bishop, Colvin & Johnson, Birmingham, and William A. Short, Jr. and J.H. McEniry III of McEniry, McEniry & McEniry, Bessemer, for appellees/cross-appellants.
MADDOX, Justice.
These consolidated appeals are from a judgment declaring null and void an August 13, 1985, annexation election called for by the City of Birmingham, and they involve a question of the validity of the so-called "corridor" principle. We reverse and remand.
Pursuant to §§ 11-42-40 through -88, Code of 1975, Birmingham passed a resolution calling for an annexation election to annex certain unincorporated territory in western Jefferson County. This resolution, as later amended, along with a map of the territory proposed to be annexed, was filed with the probate court, which ordered the election to be held on August 13, 1985. Prior to the election, certain residents of, and property owners in, the proposed annexation area (individual appellees/cross-appellants) filed a declaratory judgment action in the Circuit Court of Jefferson County, in which they sought a declaration concerning the constitutionality of §§ 11-42-40 through -88. They also sought to enjoin the holding of the annexation election to be held on August 13, 1985, and to enjoin the certification of the election results. Both Birmingham and a judge of the probate court of Jefferson County were named as defendants (appellants/cross-appellees). The circuit court refused to enjoin the holding of the election, but it did issue an order enjoining the probate judge from certifying the results. A majority of the qualified voters in the proposed territory voted for the annexation in the election. Subsequently, both the City of Hueytown and the Jefferson County Board of Education were allowed to intervene as plaintiffs in the action.
Following a two-day, non-jury trial, the court entered a lengthy order declaring the election null and void. In its order, the trial court succinctly described the property Birmingham sought to annex. None of the parties takes issue with the correctness of this description, nor with any of the factual findings made by the trial judge. The order reads, as follows:
"The area known as Dolomite involves two sections of land located generally between the cities of Hueytown and Pleasant Grove. It is primarily residential. The area known as Port Birmingham involves 13-14 sections of land along the Locust Fork of the Warrior *587 River. It is rural, agricultural, and woodlands with some industrial development, primarily docks used for barge transportation of coal and some petroleum and steel products."
The trial court further held, inter alia:
(1) That Code of 1975, § 11-42-73(b), was unconstitutional in that it provided that residents of an annexation area which is tax exempt cannot vote in city elections, at least as long as the residential area remains tax exempt, citing Harper v. Virginia State Board of Electors, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966), in support of its holding. It, however, found this invalid section to be severable from the other valid sections of the Act (§§ 11-42-40 through -88);
(2) That Birmingham had abused its discretion when it sought to combine two dissimilar areas in the annexation election territory by using a "corridor." The court reasoned:
The court recognized that:
The trial court further found that this design "was based upon Birmingham's apprehension that an election of Port Birmingham would fail and its anticipation that one which combined both areas (the Dolomite area having a 66-to-1 voting superiority) would succeed," and that Birmingham's real purpose was to insure the success of the election. It held:
The Court also found that Birmingham had eliminated some areas because of expressed opposition to annexation, and the court held that this action was constitutionally impermissible. The Court stated:
(3) That a certain agreement between Birmingham and two coal mining companies (Drummond Coal Company and Alabama By-Products Corporation) was illegal:
In light of the above findings, the circuit court declared the August 13, 1985, election null and void and ordered the probate judge of Jefferson County not to certify the results. These appeals followed.
In its appeal, Birmingham raises four issues, three having to do with the trial court's finding that Birmingham abused its discretion, thereby violating (1) the rule of reasonableness and (2) the constitutional rights of the interested, yet excluded, voters in determining the boundaries of this annexation election. The fourth issue concerns the correctness of the trial court's holding that the annexation agreement between Birmingham and Alabama By-Products Corporation and Drummond Company, Inc., was illegal and thus rendered the election invalid.
Appellees/cross-appellants raise only one issue: whether the trial court erred when it found that the unconstitutional annexation provisions, §§ 11-42-73 and -86, were severable from the rest of the annexation act.
After considering the briefs of the parties, the oral arguments of counsel, and the facts involved, we are of the opinion that the judgment of the trial court is due to be reversed on the appeal by Birmingham, insofar as it declared the election null and void and ordered the probate judge not to certify the results, but that the ruling complained of on the cross-appeal (the severability issue) is due to be affirmed.
We first address the cross-appeal. In City of Birmingham v. Smith, 507 So. 2d 1312 (Ala.1987), this Court held that the voting limitation provision, § 11-42-73, is severable from the remaining portions of the annexation act. As for § 11-42-86, we held that "[t]his provision makes no explicit reference to voting and office-holding, and it is unobjectionable as a means by which the landowners may choose to acquire full city services. Therefore, with the voting limitation severed, nothing in § 86 is unconstitutional." 507 So. 2d at 1318. We, therefore, affirm the trial court's ruling on the severability issue.
We now consider the merits of the consolidated appeals. As pointed out earlier, these appeals involve the use of a "corridor" to establish contiguity.
In a recent annexation case, City of Fultondale v. City of Birmingham, 507 So. 2d 489 (Ala.1987), this Court was faced with facts necessitating a reexamination of the cases dealing with the so-called "corridor" method of annexation: City of Tuskegee v. Lacey, 486 So. 2d 393 (Ala.1985), and City of Dothan v. Dale County Comm'n, 295 Ala. 131, 324 So. 2d 772 (1975). In City of *589 Fultondale, a majority of this Court overruled City of Tuskegee, but reaffirmed the holding in City of Dothan. We are of the opinion that the holding in City of Dothan is controlling here on the "corridor" question.
In City of Dothan, under the same statutory authority under which Birmingham acted in the present case, Dothan sought to annex a 350-foot land corridor contiguous to the Dothan corporate limits, together with a parcel of land contiguous to that corridor that included the Dothan Municipal Airport property.
In City of Dothan, this Court discussed both the requirement of "contiguity" and the principle of homogeneity with the rest of the city, which we discuss later, and held as follows:
"* * *
295 Ala. 131, 134-35, 324 So. 2d 772.
In City of Tuskegee v. Lacey, Tuskegee, using a different statutory scheme from that employed here, sought to annex the Macon County Dog Track property, which was about 14 miles from the nearest property within the Tuskegee city limits. In order to meet the contiguity requirement, Tuskegee sought to also annex a 14-mile-long corridor that consisted solely of the rights-of-way of public roads. A majority of this Court upheld the annexation, noting that while City of Dothan involved a corridor consisting of private property as opposed to public property, "[t]here is no statutory requirement that the land be private rather than public, and we find no basis for reading this limitation into the statute." 486 So. 2d at 396. Of course, in City of Fultondale, this Court specifically overruled City of Tuskegee, but reaffirmed City of Dothan.
There are three methods provided for in the 1975 Code by which a municipality may annex territory. Title 11, Chap. 42, of the Code of Alabama 1975, provides for annexation: (1) by elections held pursuant to the provisions of § 11-42-1, et seq. (Article 1 elections); (2) by petition of all the "owners," § 11-42-20, et seq. (Article 2 petition); and (3) by elections held by cities of 25,000 or more (of which Birmingham is one), as provided for by § 11-42-40, et seq. (Article 3 tax exempt elections). Of course, the legislature can, by separate legislative act, annex territory into a city.
The method of annexation used by Birmingham in this case is that provided for by § 11-42-40 (Article 3 tax exempt election), the same method used in City of Dothan.
Birmingham frames the four issues it contends are presented by this appeal, as follows:
Appellees summarize their concept of the issues presented and applicable principles of law, as follows:
"May a municipality control the outcome of an annexation election involving geographically farflung and otherwise unrelated territories by drawing election boundaries so as to (1) include a majority of known favorable votes concentrated in one community on one end of a twenty mile corridor; (2) exclude known opposition, and (3) arbitrarily link the pocket of predetermined votes to the gerrymandered `target' area? If so, Birmingham's actions may pass muster. However, in order to hold such conduct lawful, this Court must also impliedly if not expressly hold that rank manipulation of the electorate is beyond judicial review in the sphere of municipal annexation and that a city's burden in response to an abuse of discretion challenge is met by nothing more than incantation of the hope of `future metropolitan economic development.'... Similarly, in order to sustain the actions of Birmingham under the facts presented in the instant case, the *591 Court must be prepared to look the other way in the face of Birmingham's efforts to `wheel and deal' with corporate landowners through contractual undertakings designed to delegate or preempt the exercise of authority statutorily conferred upon the city.
Birmingham concedes that "it is axiomatic that any city calling an annexation election wants to call it in an area in which it has a reasonable chance to prevail," but it contends that so long as it acts within its authority as granted by the legislature the courts should not interfere with its discretion.
We now address Birmingham's first issue: whether Birmingham, acting pursuant to § 11-42-40, could combine two or more areas that are dissimilar.
The trial court held Birmingham's annexation was invalid because it combined "two completely dissimilar areas," which the court said "bore no reasonable relationship to each other in land use, population density, topography, or location."
The corridor annexation method followed by Birmingham in this case is exactly the method approved by this Court in City of Dothan v. Board of Commissioners of Dale County, 295 Ala. 131, 324 So. 2d 772 (1975), as we have already stated. Significantly, the statutory provisions used by Birmingham here, and by the City of Dothan in that case, now § 11-42-42(b), are the same. From the time of the enactment of the original tax exempt annexation statute, Act No. 677 of 1907 (Acts 1907, p. 614), the legislature required only that an area proposed to be annexed under its authority be contiguous "at some point," and provided that the area could "extend to or around the boundary line of any other city." See Section 2(9), Act No. 677 of 1907 (Acts 1907, pp. 604, 607), now Section 11-42-42(b). We note again that in City of Tuskegee v. Lacey, 486 So. 2d 393 (Ala.1985), Tuskegee used an entirely different annexation authorization, § 11-42-21, which permits annexation by ordinance upon petition of all landowners.
In the 1923 Code Committee's comprehensive revision of the two 1907 methods for the annexation of unincorporated territory, the "contiguous at some point" rule was modified in the code sections applicable to all cities (§§ 1754-1968, Code of 1923) to remove the "contiguous at some point" language and to substitute the requirement that remains today in § 11-42-2(10), Code 1975, which now requires, under that method (Article 1 election), that the annexed territory be "contiguous to the boundary" and "[form] a homogeneous part of the city or town"; however, in the article authorizing the tax exempt election method, applicable only to cities of 25,000 or more, §§ 1769-1819, the 1923 Code Committee retained in § 1783 the original 1907 statutory provisions that the annexation territory under this method need only be "contiguous to the boundary of the city at some point and [that they] may extend to or around the boundary line of any other city." (Emphasis supplied.) The requirement that the annexed territory "form a homogeneous part of the city or town," § 11-42-2(10), does not appear in § 11-42-42(b), which was the statutory method used in this case.
We note that in City of Dothan, this Court discussed the "homogeneous part of the city or town" language in that case as *592 if it was required in every Article 3 tax exempt annexation election case, and not solely to an Article 1 election annexation case. Apparently, the history of the two methods of annexation was not as fully presented in that case as Birmingham has presented it here. In any event, the central holding of City of Dothan is that in an Article 3 tax exempt annexation election case, the "homogeneous" requirement, even if applicable, does not require "all municipalities to possess boundaries of uniform and regular width and length." 295 Ala. at 135, 324 So. 2d at 776. Also, in City of Dothan, this Court held that the annexation was "no sham or subterfuge," and was for a legitimate purpose.
Under the tax exempt method, the statute does not require the territory to form a homogeneous part of the city, and tax exemption provisions in §§ 11-42-58 and 11-42-59 contemplate that annexation areas may contain very dissimilar areas, both developed and undeveloped. The statute does not prohibit a city from combining in a single annexation some property that is, or may become, residential in character, and some areas that may be used for "mining, manufacturing, industrial plants or construction, or which [are] used or occupied as part of a railroad, or street railroad, or for any other quasi-public use." (Emphasis added.) § 11-42-59.
Following the rule of law set forth in City of Dothan, we hold that there was no requirement that the annexation territory be regular in shape or homogeneous in character. When a city finds "that the public health or public good requires that certain territory (described in the resolution) shall be brought within the limits of the city," as provided for in § 11-42-41, it may annex property of mixed usage, not homogeneous with either the city or other parts of the annexation area, and the annexed may contain land developed, or suitable for development, for a variety of uses, including residential, industrial, commercial and quasi-public uses, which could include river ports and industrial parks, such as those which Birmingham seeks to promote at the Warrior River, at sites found to be suitable for development by the study made for the Birmingham Regional Planning Commission.
In City of Birmingham v. Mead Corp., 372 So. 2d 825 (Ala.1979), this Court approved the annexation of ten square miles of undeveloped territory by an election in which a small community at one corner of the territory was linked to a large industrial development area. Only 60 votes were cast in favor of the annexation of an area about 10 square miles. There, the voting community was not directly contiguous to the city, and like Dolomite, had to be connected to the boundary of the city by other territory contiguous thereto at some point. Other communities, like Sandy Ridge and Shannon, were excluded.
This Court held:
"`The general rule is that if the reasonableness of a proposed annexation is fairly debatable, the courts will defer to the judgment of the council enacting the annexation ordinance....
"`* * *
"`The legislative body of a municipality is given a very broad discretion in the determination of the reasonableness of an annexation, and it has been *593 repeatedly held that the courts will interfere only to correct an abuse of that discretion....'
"`... It was not for the trial court to decide whether, upon the facts shown to exist, the extension of the boundaries was necessary, but to determine whether or not, upon the facts shown to exist, reasonable men would differ as to the necessity of the extension. If the question of whether or not the territory involved should be included within the city limits was fairly debatable, that is, if there was substantial evidence each way so that reasonable men would differ about its necessity, then the decision was for the city council and the city electorate and not for the court....'"
372 So. 2d at 828-29.
Clearly, whether the land should have been included within the City of Birmingham in this case was "fairly debatable." City of Birmingham v. Mead Corp., supra. Consequently, the appellees' almost total reliance upon Community Fire District is misplaced.
The second issue raised by Birmingham is whether the Fourteenth Amendment to the Constitution of the United States permits a city calling an annexation election to exclude from the annexation areas that are scattered and isolated and contain residences of electors who do not want to be annexed.
The court held that by combining the proposed Birmingport industrial area with the Dolomite area into a single annexation election "Birmingham has allowed the voters in Dolomite not only to determine their destiny, but also the destiny of the voters in Powhatan. That the votes at Powhatan would be of no import was a foregone conclusion." The Court found that by changing the annexation area to exclude some residential property, the city violated the voting rights of the residents excluded. We cannot agree.
The Alabama statute allows only residents of the annexation "territory" to vote. The exclusion of voters in unincorporated areas from voting in city elections was upheld in an opinion by Mr. Justice Rehnquist in Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 99 S. Ct. 383, 58 L. Ed. 2d 292 (1978), in which the Court rejected arguments made in a dissent by Mr. Justice Brennan, which were similar to those relied on by the court below.
Moreover, not a single witness appeared who wanted to be included in the annexation area and who was excluded by Birmingham.
Admittedly, there was some "gerrymandering." Some residential tracts were eliminated in the Birmingport area along with other areas not suitable for industrial development allegedly because of terrain, flooding, or previous annexation to West Jefferson. Birmingham justified its gerrymandering on the basis that there were very substantial problems for Birmingham if isolated residents were annexed who could immediately demand police and fire service, and whose children would be put out of nearby county schools at the end of the current term and have to be bussed to distant schools in Ensley and Wylam. Whether those persons who were excluded would have changed the election results, we do not know, but at the most, only 125 persons were excluded, and as one witness testified, they could have simply been taken into Birmingham against their will. Although 17 votes were cast at Powhatan, and although the Clerk of the Jefferson County Circuit Court, Bessemer Division, opined that there were 11 eligible voters in the annexation area, it was the opinion of two witnesses that no voters actually lived *594 in the Birmingport election area. Birmingham explained this as follows: "Some persons who lived on land of which a part had been annexed were allowed to vote by the election officials appointed by the Probate Judge without protest, however." Birmingham argues that there were clearly good and substantial reasons for all changes in the election area made between July 9 and July 18. "It is not for the trial court to decide whether, upon the facts shown to exist, the extension of the boundary was necessary...." City of Birmingham v. Mead Corp., 372 So. 2d at 829.
Courts should not intervene in council decisions to require the annexation of persons who do not want to be annexed on a theoretical supposition that their votes might have affected the election results, but as Birmingham points out in brief:
Appellees rely strongly on City of Birmingham v. Community Fire District, 336 So. 2d 502 (Ala.1976), in support of their claim that Birmingham engaged in illegal and unconstitutional gerrymandering. Applying the principles set out in City of Birmingham v. Mead Corp., we are of the opinion that the trial court was not authorized to determine whether the annexation was a good or bad decision, only that it was "fairly debatable." We believe that Birmingham has shown reversible error on this issue.
Birmingham argues that the trial court impermissibly invalidated the agreement it had made with two industries.
The court below held that Birmingham's Birmingport annexation was invalid because Birmingham entered into an agreement with Drummond Coal Company and Alabama By-Products Corporation, companies owning large tracts of land in the Birmingport vicinity, and which were engaged in extensive coal mining operations in the general area. Under the agreement, proposed boundaries of the annexation area were modified to avoid interference with existing and future mining operations, and it was basically agreed that, in the future, the companies would offer suitable areas of their lands for annexations as mining operations were completed, and Birmingham agreed to make further boundary modifications by deannexation if requested, if the areas affected were unoccupied and petitions to annex other lands were submitted so that the contiguity of the annexation area would not be affected. The parties also agreed to consult one another on a regular basis as the port area development progressed. Birmingham candidly admits: "As a legal document, the understandings expressed with respect to deannexation and annexation are not enforceable as any such action will require approval of the city governing body at the time, and hearing procedures in the Probate Court, and possibly elections in which the entire electorate of Birmingham would vote under [§§ 11-42-200 through -204], Code 1975."
Birmingham argues that the agreement constitutes a reasonable set of policy understandings between it and industries that will become its neighbors if annexation is approved. Birmingham further argues that coal mining is not a natural urban activity, but that it is a major part of the economy of the Birmingham area and that "[m]ining is now a highly regulated industry with regulations which apply to mining within a municipality that are different from the regulations which apply to mining in an unincorporated area."
Birmingham asks this Court to apply the holding in City of Leeds v. Town of Moody, 294 Ala. 496, 319 So. 2d 242 (1975), to the agreement so as to invalidate some of its provisions as improper delegations of legislative authority, arguing that "the worst case scenario involves an invalid agreement that had no relation to the outcome of the annexation election."
*595 In Ramer v. City of Hoover, 437 So. 2d 455 (Ala.1983), this Court recognized that Hoover had entered into an agreement with principal landowners to grant tax exemptions to residents voting in the election for a longer period than Hoover had authority to grant. That case bears similarities to this case. The Court there stated:
Here, the agreement held out no inducement to voters in the election, because none was located in the "corridor."
The reasoning of the dissenting opinion that the annexation election is void because no electors resided in the "corridor" is misplaced. Appellees' argument that the invalid portion of the agreements affected the outcome is based upon the principle that Birmingham tricked the industries into getting their assent. In the brief, appellees argue:
From this record, we cannot say that the invalid portions of the agreement affected the outcome of the election. Birmingham contends that the agreement here, at the most, "may have avoided costly litigation with the mining companies." We do not know exactly what type of litigation may have been avoided, but that question is not presented here. We only hold that the boundary as set in the annexation election is the boundary until it is legally changed.
The fourth issue raised by Birmingham is whether the proposed annexation was "fairly debatable." We think that the reasonableness of the annexation was "fairly debatable"; therefore, we hold that the actions of the Birmingham City Council in adopting the annexation resolutions in this case were within the rules set out by this Court in City of Birmingham v. Mead Corp., 372 So. 2d 825, 828 (Ala.1979), and Evans v. Stone, 473 So. 2d 495 (Ala.1985), and that the lower court erred in its holding that the Birmingham City Council abused its discretion by adopting the resolutions calling for a Dolomite-Birmingport annexation.
In City of Birmingham v. Mead Corp., supra, this Court held that the legislative discretion of the Birmingham City Council was very broad when it called for a tax exempt election under this very same statute. The Council decision was said to be one "the wisdom and expediency" of which "is not a concern of the courts," 372 So. 2d at 828. This Court quoted with approval the statement in 1 Yokley, Municipal Corporations (1956 ed.) § 34, as follows:
"* * *
This rule was recently applied in Evans v. Stone, 473 So. 2d 495 (Ala.1985).
*596 We hold, therefore, without setting out specific evidence of its findings, that the Birmingham City Council did not act arbitrarily and capriciously in the exercise of its legislative discretion in this case.
The judgment of the circuit court is reversed insofar as it declared the annexation election null and void and ordered the probate judge not to certify the results; but that portion holding that §§ 11-42-73 and -86 were severable is affirmed. The case is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
JONES, ALMON, SHORES and ADAMS, JJ., concur.
TORBERT, C.J., and BEATTY, HOUSTON and STEAGALL, JJ., dissent.
BEATTY, Justice (dissenting).
At the outset, I invite the reader to compare this case with the decisions of this Court in the following cases: City of Fultondale v. City of Birmingham, 507 So. 2d 489 (Ala.1987); City of Tuskegee v. Lacey, 486 So. 2d 393 (Ala.1985); and City of Dothan v. Dale County Comm'n, 295 Ala. 131, 324 So. 2d 772 (1975). In City of Fultondale, a majority of this Court overruled City of Tuskegee, but declined to overrule City of Dothan, recognizing factors that distinguish City of Tuskegee from City of Dothan:
(Emphasis added. Footnote omitted.) 507 So. 2d at 490-91. While it is true that City of Tuskegee and City of Fultondale involved attempts to annex public rights-of-way for use as corridors to create the necessary contiguity, and that City of Dothan did not and neither does the present case, it is still true, as recognized in City of Tuskegee, that "[t]here is no statutory requirement that the land be private rather than public, and we find no basis for reading this limitation into the statute." City of Tuskegee, 486 So. 2d at 396. Nevertheless, in City of Fultondale, this Court recognized that the reasonableness of annexing a given corridor in order to create contiguity turns not only upon a consideration of whether the corridor consists solely of public as opposed to private property, but also upon a consideration of whether the appropriate "consent" was obtained. Thus, applying this court's analysis in City of Fultondale, one must conclude that the rule of reasonableness, as applied to the corridor method of annexation, requires that, where a corridor of land is sought to be annexed for the sole purpose of creating contiguity between the city and another parcel of land, there must be either (1) "qualified electors residing within the territory" of the corridor who may vote in the annexation election (§ 11-42-43) or who may consent to the annexation in accord with § 11-42-2(9) and (10); or (2) "owners" of the property within the corridor who have petitioned to come within the city under §§ 11-42-20 through -23.
As stated in City of Fultondale, under each method of annexation provided for in Alabama's annexation statutes,[1] the "consent" *597 of the qualified residents and/or property owners is required, whether that consent be given in the form of a vote of the majority of qualified electors (§ 11-42-43); a petition by all property owners (§ 11-42-21 through -23); or by the consent in writing of all qualified electors in lieu of an election (§ 11-42-2(9) and (10)). In the present case, the trial court found that there are no residents in the 200-foot-wide, approximately 10-mile-long corridor that connects the Port Birmingham property to the first corridor that creates the contiguity with Birmingham. There being no residents in this corridor, there are no "qualified electors residing within" the corridor who voted in the annexation election at issue in this case. Nor have the owners of the property within this corridor petitioned under §§ 11-42-20 through -23 to come into Birmingham, as did the property owner in City of Dothan. Furthermore, Birmingham concedes that the "consent" agreement it obtained from Alabama By-Products Corporation and Drummond Company, Inc., who own or lease 90 percent of the land within the corridor in question, is both illegal and unenforceable, although Birmingham contends that the illegality and unenforceability of this agreement do not serve to invalidate the annexation election. I disagree with that contention.
It is undisputed that Birmingham sought to annex the 200-foot-wide corridor for the sole purpose of creating contiguity between Birmingham and the Port Birmingham area.[2] Furthermore, the map filed by Birmingham with the probate court included the corridor land as a part of the proposed annexation territory subject to the annexation election called for by Birmingham. See § 11-42-43. Unquestionably, the validity of that election is contingent upon the proper inclusion of this corridor containing no residents. Because the consent of the owners of the property within the corridor, which otherwise contained no "qualified electors residing within" it, was not obtained by any of the methods provided for in the annexation statutes, under City of Fultondale, the annexation election cannot be upheld.
It is crucial to bear in mind that, except for the fact that in City of Fultondale and in City of Tuskegee the corridors used to create contiguity consisted of public right-of-way property, this case is identical to those. The rationale used by this Court in City of Fultondale to disallow altogether the use of public right-of-way corridors and to successfully distinguish City of Dothan from City of Tuskegee (which was overruled) is that the consent of the landowners and/or qualified electors could never be obtained where a public right of way is used as a corridor. The same is true here, where, by election, the city of Birmingham purports to annex an uninhabited corridor to create contiguity, because there are no qualified electors within such a corridor to give their consent, just as there are none within a public right-of-way. Thus, the same rationale that makes unreasonable the use of public rights-of-way as corridors also makes unreasonable the use of corridors such as that drawn in this case.
Contrary to the majority's assertion, this case is not like City of Dothan and thus should not be controlled by that case. As noted in City of Fultondale, the owner of the land petitioned to have his property brought into the city of Dothan, and therefore, the requisite "consent" was obtained in that case. That consent was not obtained in the present case.
In his dissent in City of Tuskegee, Justice Jones (joined by Torbert, C.J., and Maddox and Almon, JJ.) cited the cases collected at Annot., 49 A.L.R.3d 589, §§ 10 and 16 (1973), as supportive of the trial court's rejection of the "long lasso" doctrine. *598 Justice Jones went on to distinguish City of Dothan from City of Tuskegee by pointing only to the fact that City of Tuskegee involved an "extended corridor consisting solely of public rights of way connecting the `annexed' property to the city boundary," apparently concluding that that fact, standing alone, should have provided the basis for striking down the annexation. As I have already noted, however, as did the majority in City of Tuskegee, our statutes do not require that the territory a city proposes to annex consist solely of private as opposed to public land, and there is "no basis for reading this limitation into the statute." City of Tuskegee, 486 So. 2d at 396.
Furthermore, in none of the cases collected at 49 A.L.R.2d 589, supra, in which the annexations using public highway corridors for the sole purpose of creating contiguity were held to be invalid, do the various courts seize upon the fact that the corridor consisted of a strip of public right-of-way land (as opposed to private land) as a basis for disallowing the purported annexation. Rather, the use of such corridors was disallowed in these cases primarily because their use was deemed not to have satisfied the contiguity and adjacency requirements. See Potvin v. Village of Chubbuck, 76 Idaho 453, 284 P.2d 414 (1955); People ex rel. Coojar Realty Corp. v. Village of Burr Ridge, 81 Ill.App.2d 203, 225 N.E.2d 39 (1967); Ridings v. City of Owensboro, 383 S.W.2d 510 (Ky.1964). (See also Genesee Township v. Genesee County, 369 Mich. 592, 120 N.W.2d 759 (1963), involving a corridor consisting of a 150-foot-wide railroad right-of-way; and City of Irving v. Dallas County Flood Control Dist., 383 S.W.2d 571 (Tex.1964), involving a corridor consisting of a sliver of land one-half mile wide and six miles long running down a river.) In each of these cases, the court also attached significance to the fact that, other than creating the necessary contiguity between the city and the desired parcel or tract of land, no legitimate municipal purpose of value in annexing the property within the corridors was shown. The same is clearly true in the present case.
Because a majority of this Court has declined to reconsider the position represented by City of Dothan, none of the above rationales used by other courts to disallow corridors that happened to consist of public rights-of-way can be used by this Court to disallow only those corridors that consist solely of public rights-of-way. In City of Dothan, we held that the touching at some point by a narrow corridor is sufficient to meet the contiguity requirement, and that, so long as there is a legitimate municipal purpose in annexing the property within the "balloon at the end of the string," the use of the corridor method is not, in and of itself, objectionable. Thus, because the majority rejects the notion expressed in City of Fultondale, that consent of the landowners/qualified voters within a corridor drawn for the sole purpose of creating contiguity is required in order to make the use of such a corridor reasonable, this question arises. Just what is this Court's rationale for disallowing public right-of-way corridors such as those used in City of Fultondale and in City of Tuskegee ? Put another way: What is it about public right-of-way corridors that makes them any more objectionable than the shoestring corridor drawn in this case? I submit that the public right-of-way corridor versus a private, uninhabited strip corridor distinction merely begs the question.
Essentially, what Birmingham has done in this case, by virtue of an unlawful and invalid consent agreement, is to draw an "annexation right-of-way corridor" through uninhabited private land, connecting a corridor contiguous to Birmingham to the Port Birmingham area. Except that it is over private uninhabited land, this corridor is essentially equivalent in configuration to a public right-of-way corridor. By using either type of corridor, there can never be a voice as to the land within the corridor in an annexation election including that corridor. Therein lies the abuse of discretion and the only rationale for allowing City of Dothan -type annexations and disallowing City of Tuskegee and uninhabited corridor annexations, such as the one in the present case. In view of this Court's refusal to recognize this as its rationale, I fail to see any rationale whatsoever for disallowing public right-of-way corridors used for the *599 sole purpose of creating contiguity. Indeed, it is this lack of consent in these scenarios that allowed this Court, in construing the annexation statutes, to say that "[w]e do not believe the legislature intended to allow annexation in this manner," and thereby hold "that the use of public road rights-of-way to create contiguity is unreasonable and invalid as a matter of law." City of Fultondale, 507 So. 2d at 491. Within our statutory scheme and this Court's interpretation thereof, no other rationale exists, and if public right-of-way corridors must go, so must the uninhabited shoestring corridor in the present case. For these reasons, I would affirm the judgment below.
TORBERT, C.J., and HOUSTON, J., concur.
STEAGALL, Justice (dissenting).
I respectfully dissent. Once again the majority has failed to address the issue of contiguity and has declined to require that the annexed territory have a substantial common boundary with the city, as well as form a homogeneous part of the city. See my special concurrence in City of Fultondale v. City of Birmingham, 507 So. 2d 489 (Ala.1987). Furthermore, the majority appears to condone "gerrymandering," which is contrary to all reasonable views of municipal annexation. I cannot condone this practice.
[1] The three annexation articles are described with particularity in City of Birmingham v. Smith, 507 So. 2d 1312 (Ala.1987).
[2] This purpose is evident on the face of the consent agreement between Birmingham and Alabama By-Products Corporation and Drummond Company, Inc.:
"1. Any unoccupied portion of the 200' corridor extending from the Warrior River to Section 12, Township 18 South, Range 5 West, shall be moved at any time in the judgment of the mining companies it affects mining operations of the mining corporations, provided a petition for a substitute corridor through unoccupied territory is presented to the City for an alternative corridor to maintain contiguity of the annexed territory." (Emphasis added.) | October 2, 1987 |
d8362cd9-d4c0-4358-bb8c-7faabfc250b6 | Higginbotham v. State | 78 So. 2d 637 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 637 (1955)
Leonard HIGGINBOTHAM
v.
STATE.
7 Div. 246.
Supreme Court of Alabama.
March 10, 1955.
*639 John Patterson, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.
LAWSON, Justice.
Leonard Higginbotham was indicted for the offense of murder in the first degree by a grand jury of Etowah County and upon his trial upon said indictment was convicted of murder in the second degree and his punishment was fixed by the trial jury at imprisonment in the penitentiary of this state for a period of twenty-three years. Judgment and sentence were in accord with the jury verdict.
The appellant, Higginbotham, was represented by counsel of his choice at arraignment and on the trial below, but he is not represented by counsel in this court and hence no brief has been filed here in his behalf. But the filing of a brief is not essential to our consideration of an appeal by a defendant in a criminal case. § 389, Title 15, Code 1940; Hymes v. State, 209 Ala. 91, 95 So. 383; Johnson v. State, 257 Ala. 644, 60 So. 2d 818; Payne v. State, 261 Ala. 397, 74 So. 2d 630.
The State has filed a brief which treats many of the questions presented for review.
We will consider first the rulings made by the trial court on certain preliminary motions.
The indictment was not subject to be quashed on the ground that it was returned by an improper and illegal grand jury in that it was returned by the third grand jury impaneled in Etowah County during the year 1953. § 72, Title 30, Code 1940; Wyres v. State, 32 Ala.App. 630, 29 So. 2d 155. Nor should the indictment have been quashed because it bore the indorsement "no prosecutor" when in fact there was a prosecutor. The provisions of § 90, Title 30, Code 1940, have been held to be directory only. The omission of the name of a prosecutor has been held not to affect the sufficiency of the indictment. Ashworth v. State, 63 Ala. 120; Hubbard v. State, 72 Ala. 164.
The appellant interposed pleas of misnomer, taking the point that he was referred to in the indictment as Leonard Higginbotham when the jury knew or should have known that his true name was Leonard Arch Higginbotham. The trial court did not err in striking such pleas on motion of the State. The omission from an indictment of the defendant's middle name is immaterial. Pace & Cox v. State, 69 Ala. 231, 44 Am.Rep. 513; Patton v. State, 29 Ala.App. 215, 194 So. 425. Moreover, these pleas came too late. A plea of not guilty waives right of accused to plead in abatement for misnomer. Nettles v. State, 222 Ala. 236, 132 So. 41; Dunning v. State, 21 Ala.App. 318, 108 So. 82.
There was no error in sustaining the State's challenge of the juror Breitstein, who had stated to the court that he would not be willing to inflict the death penalty on circumstantial evidence. Underwood v. State, 239 Ala. 29, 193 So. 155; Garrett v. State, 76 Ala. 18; § 57, Title 30, Code 1940.
A brief summary of the evidence will suffice. The defendant operated a cafe in Etowah County. The deceased, J. C. Wood, and one Pete Millican got in a fight in the cafe around seven o'clock on the night of October 16, 1953. The defendant requested them to leave, but they continued to fight. Defendant went behind the counter and secured a twenty-two rifle which he shot at least five or six times in *640 the direction of Wood and Millican. The first shot was at close range and resulted in Wood's death. Millican was seriously wounded but recovered. The State insisted that the killing was unprovoked, unjustified and hence unlawful, and offered testimony to sustain this insistence. On the other hand, the defendant insisted upon his plea of self-defense, contending that he shot in defense of himself and his family and hence violated no law of this state. The defendant presented some evidence to sustain this contention and also offered evidence tending to show that the rifle was accidentally discharged. As a result of this conflict in the evidence a jury question was, of course, presented. The evidence fully supports the verdict of murder in the second degree and the ground of the motion for a new trial taking the point that the verdict of the jury was contrary to the great preponderance of the evidence was properly overruled. Cobb v. Malone, 92 Ala. 630, 9 So. 738.
During the examination of Dr. R. D. Clark, who treated J. C. Wood after he was shot and who saw him after his death, the trial court asked the witness one or two questions. This was entirely proper and the objection of counsel for the defendant to this action of the trial court was without merit. Norris v. State, 229 Ala. 226, 156 So. 556.
The trial court did not err in admitting evidence of the shooting of Pete Millican. That shooting was within the res gestae of the crime against J. C. Wood and was admissible as shedding light on the acts, motive, and intent of the defendant. Smarr v. State, 260 Ala. 30, 68 So. 2d 6; Snead v. State, 251 Ala. 624, 38 So. 2d 576, and cases cited.
There was no error in allowing the introduction in evidence of the twenty-two rifle, after an eyewitness had stated that in his judgment it was the rifle which the defendant had at the time of the shooting. In addition, it was afterwards admitted that the rifle so admitted in evidence was the rifle used by the defendant. McGuffin v. State, 178 Ala. 40, 59 So. 635.
Likewise, it was not error to admit in evidence the hammer which the witness stated in his judgment was the one which was used in the fight between Wood and Millican.
The trial court did not err in permitting the witness Lawley to testify that at the time of the shooting the defendant appeared to be angry. Jenkins v. State, 82 Ala. 25, 2 So. 150; Miller v. State, 107 Ala. 40, 19 So. 37; Roan v. State, 225 Ala. 428, 143 So. 454.
It was not error to permit the eyewitness Marie Colley to testify that immediately after the shooting the defendant "drug" the deceased out of the cafe onto the sidewalk and "throwed him down." In Jones v. State, 181 Ala. 63, 61 So. 434, 439, it was said: "The acts, declarations, and demeanor of an accused, before or after the offense, whether part of the res gestae or not, are admissible against him, but unless a part of the res gestae are not admissible for him." See Carter v. State, 205 Ala. 460, 88 So. 571; Roberson v. State, 218 Ala. 442, 118 So. 654.
The turbulent and blood-thirsty character of the deceased cannot be established by particular acts of violence or turbulence or blood-thirstiness on his part. The trial court did not err in refusing to permit the defendant to make such proof. Smith v. State, 197 Ala. 193, 72 So. 316; Lovejoy v. State, 33 Ala.App. 414, 34 So. 2d 692, certiorari denied, 250 Ala. 409, 34 So. 2d 700.
It was not error for the trial court to refuse to permit the defendant to show convictions of the deceased for the violation of municipal ordinances. Norris v. State, 229 Ala. 226, 156 So. 556.
The trial court did not commit reversible error in refusing to permit the defendant to testify as to whether or not at the time he went to get the rifle he intended *641 to shoot anyone. Pate v. State, 162 Ala. 32, 50 So. 357; Nickerson v. State, 205 Ala. 684, 88 So. 905.
It was not reversible error to refuse to permit the defendant to present evidence as to deceased's conduct toward others than defendant on the afternoon of the difficulty. Smith v. State, 142 Ala. 14, 39 So. 329.
It is not made to appear that the trial court abused its discretion in refusing to permit counsel for the defendant to read to the jury from law books. Davis v. State, 213 Ala. 541, 105 So. 677.
We find no reversible error in any of the rulings of the trial court made in connection with jury argument.
The record contains seventeen written charges which the trial court refused to give at the request of the defendant and five written charges which were given at his request. For convenience we have numbered the refused charges and lettered the given ones.
The proper hypothesis for a requested charge in a criminal prosecution is rested on belief from the evidence. Wesson v. State, 251 Ala. 33, 36 So. 2d 361; Payne v. State, supra, and cases cited there. Defendant's requested written charges 2, 3, 5, 9, 10, 12, 15 and 16 were not so hypothesized and hence their refusal does not constitute reversible error. We pretermit consideration of whether those charges assert sound propositions of law.
The principle sought to be stated in defendant's refused charge 1 was fully covered in the court's oral charge and in written charges B and C given at the request of the defendant. § 273, Title 7, Code 1940; Payne v. State, supra.
Defendant's refused charge 4 was properly refused for the reason, if for no other, that it omits the postulate, necessary to an acquittal on the ground of self-defense, that there was a belief of imminent danger and necessity to kill which was reasonably and honestly entertained. Roberson v. State, 175 Ala. 15, 57 So. 829.
There was no error in refusing charge 6, which is in practically the same language as charge B, given at the request of defendant. Payne v. State, supra.
Refused charge 7 was abstract, as there was no evidence tending to show that the defendant fired the rifle with the intent only to scare the deceased. Since the charge was abstract, it was refused without error. Parvin v. State, 248 Ala. 74, 26 So. 2d 573.
Charge 8 refused to the defendant was fully covered by given charges A and E, hence the refusal of that charge does not constitute reversible error. Payne v. State, supra.
Since the defendant was acquitted of murder in the first degree, refusal of written charge 11 dealing with murder in the first degree could have no harmful effect. Maxwell v. State, 32 Ala.App. 487, 27 So. 2d 804, certiorari denied, 248 Ala. 431, 27 So. 2d 810.
The principle sought to be stated in defendant's refused charges 13 and 17 was fairly and substantially covered by the oral charge of the court. § 273, Title 7, Code 1940.
Refused charge 14 omits the word "willful" and hence was properly refused. Prater v. State, 107 Ala. 26, 18 So. 238.
One of the grounds of the motion for a new trial was that the jury had rendered a quotient verdict.
We do not think the trial court erred in overruling that ground of the motion for new trial. We will not here undertake to set out the evidence as it relates to that question. It has been examined with care and we are clear to the conclusion that the trial court was justified in not setting aside the verdict on that ground. Sanders v. State, 243 Ala. 691, 11 So. 2d 740.
*642 Mindful of our duty in cases of this character, we have examined the record for reversible error and have dealt with all questions calling for serious treatment. We find no reversible error in the record and the cause is due to be and is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | March 10, 1955 |
369466df-bc73-44be-b381-2a0648271c34 | Ex Parte Balogun | 516 So. 2d 606 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 606 (1987)
Ex parte Peter G.T. BALOGUN, Sr.
(Re Ex parte Peter G.T. Balogun, Sr.
(Re Peter G.T. BALOGUN, Sr.
v.
Catherine BALOGUN)).
86-593.
Supreme Court of Alabama.
October 2, 1987.
*607 George L. Beck, Jr., Montgomery, for petitioner.
Thomas L. Rountree, Auburn, for intervenors.
PER CURIAM.
Petitioner, Peter G.T. Balogun, Sr., petitioned for a writ of certiorari to the Court of Civil Appeals, which had 1) denied a writ of mandamus directed to the Honorable Dale Segrest, Circuit Court, Macon County, Alabama, compelling him to recuse himself and 2) affirmed the trial court decision permitting Tuskegee Newspaper, Inc., and Paul R. Davis to intervene in petitioner's divorce proceeding to obtain certain documents pursuant to a claimed First Amendment right. We reverse the judgment of the Court of Civil Appeals affirming Judge Segrest's refusal to recuse himself and affirming Judge Segrest's order allowing the intervention of Tuskegee Newspaper, Inc., and Paul R. Davis; we remand to the Court of Civil Appeals with instructions for that court to grant the writ of mandamus compelling recusal and to remand to the circuit court for proceedings consistent with this opinion.
The facts are undisputed. Petitioner filed for divorce in the Circuit Court of *608 Macon County, Alabama. During the first days of the divorce proceeding, four letters (hereinafter the "dog track letters"), as well as photographs and other documents, allegedly involving the petitioner, the Macon County Dog Track, and unethical or criminal conduct, were marked for identification as Exhibits 32 through 35. Exhibit 32 was admitted into evidence, but the remaining exhibits were not admitted. The court then recessed.
During the recess, the parties reached a settlement. When the court reconvened, the settlement was read into the record. Upon reaching a settlement, petitioner requested that the court return the exhibits, which had been stolen from petitioner in July 1986. Judge Segrest refused to return the exhibits and ordered that they be locked in the clerk's safe indefinitely. On that issue, Judge Segrest stated:
In response to these actions, petitioner filed a complaint against Judge Segrest with the Alabama Judicial Inquiry Commission on September 8, 1986. Upon learning that other parties had gained access to the letters, petitioner filed a motion to have the trial judge return all the exhibits. A hearing on the motion was not set until December 5, 1986. After the motion was filed, Judge Segrest informed petitioner that he was the party who had given copies of the letters to various law enforcement agencies.
Petitioner alleged that Judge Segrest indicated bias by turning over the documents to the law enforcement agencies. On October 31, 1986, petitioner orally moved for Judge Segrest to recuse himself. Judge Segrest took the motion under advisement and requested the Judicial Inquiry Commission's opinion on whether he should recuse himself from further proceedings in petitioner's divorce case.
On November 14, 1986, Tuskegee Newspaper, Inc., and Paul R. Davis filed a motion to intervene in the divorce case in order to gain access to the dog track letters. On November 17, Judge Segrest granted the intervenors' motion and set a hearing on the merits for November 21, 1986. On the same day, in writing, petitioner reasserted his motion for Judge Segrest to recuse himself.
On November 21, 1986, the Judicial Inquiry Commission advised Judge Segrest that
Thereafter, Judge Segrest denied petitioner's motion for recusal.
Petitioner subsequently sought a writ of mandamus from the Court of Civil Appeals. That court denied it, without an opinion. Petitioner's motion for rehearing and adoption of facts under Rule 39(k), A.R.App.P., was also denied.
Petitioner then sought from this Court a writ of certiorari and filed here a motion for stay pending issuance of the writ. Both the motion to stay and the writ were granted by this Court. At this time, the parties have settled the divorce action, but the disposition of the dog track letters is still pending.
The issues here are as follows:
1. Whether a writ of mandamus should be issued, compelling Judge Segrest to recuse himself from further proceedings in this matter.
2. Whether the Court of Civil Appeals erred in affirming the trial court's decision allowing Tuskegee Newspaper, Inc., and Paul R. Davis to intervene in order to obtain access to the dog track letters.
This Court has long held that mandamus, not appeal, is the proper remedy if a judge refuses to recuse himself. Crook v. Newberg & Son, 124 Ala. 479, 484, 27 So. 432 (1899), citing Ex Parte State Bar Ass'n, 92 Ala. 113, 8 So. 768 (1890). See Fulton v. Longshore, 156 Ala. 611, 46 So. 989 (1908).
At early common law, and prior to the adoption of the Alabama Canons of Judicial *609 Ethics, mandamus was granted to require a judge to recuse himself only if the judge had a personal or pecuniary interest, Fulton, supra, or if the judge's personal rights were at stake. Fulton, 156 Ala. at 614, 46 So. at 990, citing Ex parte State Bar Ass'n, supra.
The adoption of the Canons of Judicial Ethics, which have the force of law, provided a new standard. See Wallace v. Wallace, 352 So. 2d 1376 (Ala.Civ.App. 1977).
Canon 2(A) states:
Given the concept of promoting public confidence in the system, Canon 3(C)(1) states that "[a] judge should disqualify himself in a proceeding in which ... his impartiality might reasonably be questioned" by members of the public, a party, or counsel. See Wallace, supra; Acromag-Viking v. Blalock, 420 So. 2d 60 (Ala.1982); affirmed on other grounds, 474 So. 2d 91 (Ala.1985). Nonetheless, recusal is not required based on a "mere accusation of bias unsupported by substantial fact. Each case must stand on its own." Wallace, supra at 1379; see Acromag-Viking, supra; Ford v. Ford, 412 So. 2d 789 (Ala.Civ.App.1982); Miller v. Miller, 385 So. 2d 54 (Ala.Civ.App.), cert. denied, 385 So. 2d 56 (Ala.1980). The presumption is that the judge is not biased if his decisions are supported by clear and convincing evidence. Matter of Sheffield, 465 So. 2d 350 (Ala.1984), citing Matter of Samford, 352 So. 2d 1126, 1129 (Ala.1977). "For the law will not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice and whose authority greatly depends upon that presumption and idea." Fulton, 156 Ala. at 613, 46 So. at 990.
The facts of this case are simple and undisputed. Though this is a divorce action, the crucial question revolves around those dog track letters that were marked for identification and the one letter admitted into evidence. Judge Segrest refused to return the exhibits upon settlement of the case and promised to lock them in a safe. What he admitted to actually doing was giving copies of the exhibits to law enforcement agencies. Thereafter, he set a hearing on petitioner's motion to return the documents, but set it for three months after the motion was made. In the meantime, he granted the respondents' motion to intervene, within three days of the date they made their motion and while the petitioner's motion to return the documents was still pending.
Before ruling on petitioner's motion to recuse, Judge Segrest asked the Judicial Inquiry Commission to give an advisory opinion. The Commission determined that Judge Segrest's conduct in releasing the dog track letters to law enforcement agencies did not, standing alone, indicate any bias requiring recusal. Judge Segrest relied on this advisory opinion in denying petitioner's motion.
Rule 17, Rules of Procedure of the Judicial Inquiry Commission, provides that the Judicial Inquiry Commission may issue advisory opinions as to "whether certain specified action contemplated or proposed to be taken by [a judge] may constitute a violation of the Canons of Judicial Ethics." The opinions are rendered for the benefit of a judge, and are admissible on behalf of a judge should he act consistent with the opinion and then have disciplinary proceedings brought against him for that conduct.
Similar to an advisory opinion by this Court pursuant to § 12-2-10, Code of Alabama (1975), the Commission's advisory opinions are not binding and do not affect a party's rights or remedies. See Alabama Education Ass'n v. James, 373 So. 2d 1076 (Ala.1979); Opinion of the Justices No. 269, 280 Ala. 692, 198 So. 2d 269 (1967). While this Court will consider the opinion of the Commission, we are not bound by it.
One factor apparently not considered by the Commission, but which we conclude is crucial, is the fact that an issue in this case is the disposition of the dog track letters, and, on at least two prior *610 occasions Judge Segrest has recused himself on matters involving the dog track. See Alabama Leisure Enterprises, Inc. v. Macon County Racing Comm'n, [Macon County CV 83-112], and Macon Development Corp. v. Macon County Racing Comm'n, [Macon County CV 83-123]. Judge Segrest himself stated in strong language why he recused:
As previously stated, a judge should recuse himself when his impartiality may be questioned. Alabama Canons of Judicial Ethics, Canon 3(C). We agree with the Judicial Inquiry Commission that merely turning over the documents to the law enforcement agencies was insufficient to meet the burden on petitioner to prove "substantial bias." However, it is unnecessary for this Court to find actual bias by Judge Segrest. His own refusal to hear two prior cases involving the Macon County dog track due to his prior involvement in both the political and legal aspects of the issue, as well as his known public position on the issue, are sufficient. We simply conclude that the facts are such that a person of ordinary prudence could reasonably question Judge Segrest's impartiality. See Bryars v. Bryars, 485 So. 2d 1187 (Ala. Civ.App.1986). Based on Judge Segrest's past conduct of recusing himself and his own words, we conclude that petitioner's burden of proof is met.
For the foregoing reasons, the writ of mandamus compelling Judge Segrest to recuse himself from further proceedings involving this matter is due to be granted.
The second issue involves the Court of Civil Appeals' decision affirming the trial court's order that permitted respondents Tuskegee Newspaper, Inc. and Paul R. Davis, (hereinafter "the Tuskegee News and Davis," or "respondents") to intervene in petitioner's divorce proceeding on the grounds that they have a "direct interest" in the documents to be inspected and are entitled to intervene pursuant to Rule 24, A.R.Civ.P. For the following reasons, we reverse.
Alleging a First Amendment right to obtain access to public records and documents that may involve improper or criminal conduct by various public officials, Tuskegee News and Davis claim a right to intervene to determine the disposition of the dog track letters.
Generally, trials are open to the public. However, public access must be balanced with the effect on the parties. Newman v. Graddick, 696 F.2d 796 (11th Cir.1983). Only in special circumstances, or where justice requires, are proceedings limited or completely closed to the public. Newman, supra. Due to the personal nature of divorce proceedings, this Court has *611 previously determined that the press's right to obtain access to public records does not extend to records in a divorce proceeding. Holcombe v. State ex rel. Chandler, 240 Ala. 590, 200 So. 739 (1941); see Nixon v. Warner Communications, 435 U.S. 589, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978).[1] Furthermore, with good cause,[2] the trial judge has the discretion to close the proceeding and/or the records to the public and the press to protect the rights of the parties.
Rule 24, A.R.Civ.P., permits both intervention as of right and permissive intervention:
The news media generally have standing to intervene in a criminal proceeding to object to a motion to "seal" court records that would otherwise be a matter of public information. See United States v. Cianfrani, 573 F.2d 835 (3rd Cir.1978). In determining whether the news media have a right to intervene, courts should be flexible and should focus on the circumstances of each case. State ex rel. Wilson v. Wilson, 475 So. 2d 194 (Ala.Civ.App.1985). However, because this is a divorce proceeding and the press's access to the records of a divorce proceeding is generally not permitted, the respondents have an especially difficult burden. See Warner Communications, supra; Holcombe, supra; Caswell, supra.
The standard for intervention, as relied on by Tuskegee News and Davis, is that an intervenor must have a "direct, substantial, and legally protectable interest in the proceeding." State ex rel. Wilson, supra. Though the Tuskegee News and Davis admit that the news media normally have no standing to intervene in a divorce action, they contend that this case is unique. Respondents argue that because they allege that the dog track letters potentially involve evidence of improper or criminal conduct by members of the public in positions of trust, they have a right to intervene to obtain access to the documents for the public good.
The right of the Tuskegee News and Davis to intervene in this action primarily rests on their right to inspect the documents.
There is little authority under Alabama law on this issue. Both petitioner and respondents cite Holcombe, supra, as authority for their position. In Holcombe, supra, a newspaper publisher petitioned for a writ of mandamus compelling a public official to allow him to inspect records containing the name, address, sex, race, and identifying marks of each person arrested and brought to the county jail. The requested records were required by law to be maintained and available for public inspection during office hours. Alabama Code 1923, § 10198. However, no information regarding indictment, *612 arraignment, and so forth, was permitted to be released.
Due to a newly authorized system of record keeping, by the time Holcombe arose these records contained both the general arrest information and other confidential information that was not permitted to be released. For these reasons, the public official would not permit the publisher to see the records. The publisher sought a writ of mandamus compelling the public official to release the information required pursuant to the Code. Holcombe, supra.
The Court issued the writ, but only as to the records that were required by law to be kept for public inspection. The Court held that the public generally has a right of reasonable inspection of public records required by law to be kept, except where inspection is merely out of curiosity or speculation or where it unduly interferes with the public official's ability to perform his duties. Holcombe, 240 Ala. at 597, 200 So. at 746.
The Court further held that newspapers have an interest justifying their access to public records that are required by law to be kept, for the purpose of selling news. Holcombe, supra. However, this right to inspect public records does not extend to the records of a divorce action. Holcombe, 240 Ala. at 598, 200 So. at 747.
In general, Holcombe does not apply to the facts of the instant case. The records to be inspected by the newspaper publisher in Holcombe were required by law to be recorded and maintained for public inspection. In this case, there is clearly no law requiring personal letters of non-government officials to be maintained for public inspection. At best, the Tuskegee News and Davis have a right to inspect letters that have been made a part of the public record. But it is clear that "[t]he press has no right of access to exhibits produced under subpoena and not yet admitted into evidence, hence not yet in the public domain." See United States v. Gurney, 558 F.2d 1202, 1210 (5th Cir.1977) (emphasis added). In this case, the dog track letters numbered as Exhibits 33-35 have not been admitted into evidence and they are not public records. By denying access to these non-public records, this Court is neither prohibiting all access to the information contained therein, nor violating respondents' First Amendment rights.
As for the dog track letter marked as Exhibit 32, which was admitted into evidence, we find no law requiring that all evidence admitted at trial become a public record. See Gurney, supra. In fact, a court has the power to curtail the right to inspect or copy records if it might interfere with the administration of justice. Newman, supra; Sanford v. Boston Herald-Traveler Corp., 318 Mass. 156, 61 N.E.2d 5 (1945). Since this is a divorce proceeding, we will not presume that evidence admitted at trial is a part of the public record. See Warner Communications, supra; Gurney, supra; Holcombe, supra. Respondents have failed to overcome that presumption.
Though there is little Alabama authority on this issue, the Tuskegee News and Davis further argue that federal law has liberally allowed the news media to intervene in judicial proceedings in order to protect their rights under the First Amendment to the United States Constitution. The First Amendment not only prohibits censorship, but prohibits government conduct that inhibits free and general discussion of public matters. See P.A.M. News v. Butz, 514 F.2d 272 (D.C.Cir.1975).
On that premise, the Tuskegee News and Davis argue that the trial court's conduct in taking possession of the documents and supposedly locking them in a safe constituted a "stifling" of information that should rightly be released to the public. We disagree. If a court is not required to open all hearings and release all records to the public, and certainly it need not open a divorce proceeding, then the trial judge's conduct did not "stifle" the respondents' First Amendment rights. See C. v. C., v. News Journal Co., 320 A.2d 717 (Del.1974).
Finally, the Tuskegee News and Davis contend that the media have standing to challenge a denial of access to documents in criminal cases if they can demonstrate *613 injury in fact and if the interest they seek to protect is within the protection of the First Amendment. United States v. Gurney, supra. Once again, the respondents have not proven injury in fact that would result from a refusal of this Court to allow them to intervene in the divorce proceeding.
Even if we relied on the authority cited to this Court by respondents Tuskegee News and Davis, we find no evidence to support their claim of a right to intervene in the divorce proceeding to determine the disposition of the dog track letters.
If there is no right to inspect, then there can be no right to intervene pursuant to Rule 24(a). Clearly, no statute or other law gives them the right to inspect documents that are not a part of a public record and that are a part of a divorce proceeding. We can conceive of no circumstances where the Tuskegee News and Davis would have an interest in the property or transaction that is the subject of the divorce action. Therefore, we find no basis for intervention as of right under Rule 24(a), A.R.Civ.P.
Even under the more discretionary rule of permissive intervention, Rule 24(b), A.R. Civ.P., we can find no basis for allowing intervention. Clearly no law permits conditional intervention, and, even under the authority cited to us by the respondents, we have no proof that they have a direct, substantial, or legally protectable interest in the divorce proceeding. State ex rel. Wilson, supra. Furthermore, there is no evidence that denying intervention in this case will cause injury in fact, will prevent access to the documents altogether, or will harm the public. Rule 24(b), A.R.Civ.P., states that the court should also consider the potential prejudice to the original parties before allowing intervention. In this case, not only could intervention substantially affect the rights of the parties in the divorce proceeding, but it could also affect petitioner's rights in any other criminal or civil actions involving the dog track letters.
It is well settled that in regard to obtaining access to public documents, a newspaper has a right equal to, but no greater than, that of the general public. In re Express-News Corp., 695 F.2d 807 (5th Cir. 1982). See C. v. C., v. News Journal Co., supra; Holcombe, supra. If this Court were to adopt the standard for intervention suggested by the respondents, conceivably every member of the news media and every citizen of Tuskegee should be allowed to intervene in the petitioner's divorce proceeding in order to gain the right to inspect documents that may or may not be introduced at trial. Certainly, that is not what the drafters contemplated when they wrote Rule 24.
Because the respondents have not overcome the presumption that records and documents in a divorce proceeding are private matters and not subject to intrusion by the press, see Warner Communications, supra; Newman, supra, Holcombe, supra; and Caswell, supra, we must hold that the Tuskegee News and Davis should not have been permitted to intervene in the divorce proceeding.
On the basis of the foregoing, we reverse the judgment of the Court of Civil Appeals and remand this case to that court for entry of a judgment consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
TORBERT, C.J., and JONES, BEATTY and ADAMS, JJ., concur.
MADDOX, J., concurs specially.
MADDOX, Justice (concurring specially).
I concur in Part I of the majority opinion. I concur in the result reached in part II. I am not convinced that Holcombe is authority for the proposition that the trial judge may close every divorce trial, and that the record compiled in a divorce case is not a matter of public record.
I am of the general opinion that very few trials, and the records made of those trials, can be completely closed or made unavailable to the public, under reasonable terms and conditions. There may be some trials in which secret material is presented, and *614 some trials may be of such a nature that they can be closed, but those will be rare and far between. I have not gone to the record here to determine whether the documents sought by the media should have been provided to them; therefore, I concur only in the result reached in Part II of this case, because the Tuskegee News has not shown, in its certiorari proceeding, that it was entitled to view the documents in question.
[1] The press's common-law right of access to hearings and evidence is not unlimited, Warner Communications, supra. In Warner, the Court cites divorce proceedings as an example of the type of hearing that can be closed to the public and press because of the "painful and sometimes disgusting details of divorce," Id., citing In Re Caswell, 18 R.I. 835, 836, 29 A. 259 (1893).
[2] See Katz v. Katz, 514 A.2d 1374, 356 Pa.Super. 461 (1986); English v. McCrary, 328 So. 2d 257, 259-60 (Fla.App.1976). The mere desire of divorce litigants to hold a private divorce proceeding is insufficient justification to close a hearing to the public and the press. State ex rel. Gore Newspapers Co. v. Tyson, 313 So. 2d 777 (Fla. App.1975). However, the welfare of a child is a sufficient reason to close divorce proceedings to the public and the press. Whitney v. Whitney, 164 Cal. App. 2d 577, 330 P.2d 947, 951 (1958). | October 2, 1987 |
bab4ab86-1c0f-4e48-94fd-6207da0c4c89 | Clark v. Floyd | 514 So. 2d 1309 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1309 (1987)
C.D. CLARK, Coby Clark, and Gerald McLeod
v.
Kenneth FLOYD.
CONTINENTAL INSURANCE COMPANIES
v.
Kenneth FLOYD.
85-305, 85-315.
Supreme Court of Alabama.
October 2, 1987.
*1310 James E. Williams of Melton & Espy, Montgomery, for appellants C.D. Clark, Coby Clark, and Gerald McLeod.
Donald C. Radcliff of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, *1311 Mobile, for appellant Continental Ins. Companies.
Frank J. Tipler, Jr., of Tipler and Tipler, Andalusia, for appellee.
BEATTY, Justice.
These are consolidated appeals by defendants C.D. Clark, Coby Clark, Gerald McLeod, and the Continental Insurance Companies ("Continental") from jury verdicts based on personal injuries of the plaintiff, Kenneth Floyd, that allegedly resulted from negligent inspection and coemployee liability. We reverse and remand.
The record in this case established the following facts:
Plaintiff Floyd was an employee of Clark Construction Company. He began working with the company as a laborer on a jobsite near Andalusia in April or May 1982. After approximately three months, Clark Construction Company sent him to a Tuscaloosa jobsite, where he worked for an additional month. In Tuscaloosa, he performed the job of a "leads man."
The duties of a leads man pertain to the installation of pilings for bridges and overpasses. When a piling is to be driven, it is placed by a crane into a steel guide called a "leads," which holds the piling in a vertical position while the piling is driven into the ground. The leads has welded to its back a ladder that the leads man must climb whenever a piling is hoisted by a crane into the leads. Having positioned the piling into the leads, the leads man helps the crane operator position a "follow block" onto the top of the piling. A hydraulic hammer strikes this follow block and drives the piling into the ground.
Once the follow block is lowered onto the piling, the leads man must disconnect the cable from the piling and pull the cable downward until it reaches the ground, so that another workman can tie it off out of the way of the crane and the hammer. Pursuant to the standard operating procedure, once he has completed his task, the leads man climbs down the ladder 40 feet to the ground.
While at the Andalusia jobsite, plaintiff Floyd had watched the operation of another leads man on two occasions. In both instances, the leads man returned to the ground by way of the ladder.
At the Tuscaloosa jobsite, Floyd performed the job of leads man from 20 to 40 times. In about half of these operations, Floyd climbed up the ladder, untied the cable, and then climbed down the ladder. However, during the other half of the operations, Floyd "rode" the cable down to the ground, i.e., holding onto the cable, he stepped off the piling and the crane operator lowered him to the ground. Floyd never saw any other employee of the company ride the cable down to the ground, nor did anyone ever instruct him as to the propriety of such a procedure. On the other hand, Floyd contends that no one in Tuscaloosa ever stopped him or instructed him to refrain from this practice.
After his service in Tuscaloosa, Floyd was sent by Clark Construction Company to Pickens County on a bridge construction job, where he worked with defendants Coby Clark and Gerald McLeod. Coby Clark was the crane operator and Gerald McLeod was the job superintendent. Another employee, Willie Taylor, who is not a party to this action, was also a member of this crew. The final person at the Pickens County jobsite was Johnny Franks, a project inspector for the Alabama Highway Department, who was there to verify that the job was carried out according to the state's specifications.
The injuries to Floyd, which resulted in this action, occurred on September 7, 1982, Floyd's first day on the site in Pickens County. Willie Taylor was the leads man for the first piling; Floyd was the leads man on the second and third pilings. On the first and second pilings, both Taylor and Floyd climbed down the ladder after completing their tasks.
During Floyd's second operation as a leads man that morning (the crew's third piling operation), Floyd disconnected the cable from the piling and looked down at McLeod, who was standing on the ground at the bottom of the leads and told McLeod *1312 that he was going to ride the cable down. McLeod told Floyd not to ride the cable down. Coby Clark could not hear McLeod and Floyd's conversation from his seat inside the cab of the crane. Floyd then nodded to Clark, who nodded back. Clutching the cable hook to his chest, the plaintiff stepped off the piling.
The plaintiff expected the line to be taut and that he would be suspended in the air until Clark lowered him to the ground. Instead, the cable had from one to four feet of slack in it. When he stepped off the leads, Floyd immediately dropped the distance of this slack. Once the slack was pulled out of the cable, it jerked, causing Floyd to lose his grip and to fall approximately 30 feet to the ground, resulting in his injuries.
The plaintiff testified that he did not notice the slack in the cable, even though his view of the cable and the drum on which it was wound was unobstructed. He also admitted that he knew he was 40 feet above the ground and had grease on his hands when he stepped off the piling.
Floyd had never ridden the cable down with this crane operator, nor had Clark been at the Tuscaloosa site when the plaintiff had purportedly ridden the cable down to the ground. Nevertheless, Floyd contended that it was generally well-known in the company that he would ride the cable down from the piling.
Floyd also testified that sometime that morning, prior to the accident, he had told Clark that he was going to ride the cable down from the top of the leads, to which, according to the plaintiff, Clark did not object. Coby Clark, in his testimony, denied that this conversation ever took place. On cross-examination, the plaintiff admitted that he had assumed that Clark knew how to let him down with the cable and that he had neither asked Clark if he knew how to do it nor offered him any instructions about it.
Coby Clark testified that he created from one to four feet of slack in the line before the plaintiff had disconnected the cable from the piling. Clark stated that the slack made it easier for Floyd to disconnect the cable. Clark also testified that he had applied a brake onto the cable in order to prevent any further release of the line.
Billy Biles, an expert witness called by the defendants, testified that Coby Clark's actions in applying the brake to this line were in accord with industry standards. His testimony, however, did not directly address the propriety of Clark's creating the slack in the line.
Floyd's allegations against Continental averred that the insurance company:
Allegations of damage followed.
Plaintiff's allegations against C.D. Clark, president of Clark Construction Company, were these:
Plaintiff adopted these allegations of negligence against Coby Clark, the crane operator, and Gerald McLeod, the job superintendent who supervised plaintiff Floyd and Coby Clark.
The defendants answered with general denials and averments of contributory negligence and assumption of risk. The case was tried to a jury. After plaintiff rested, each defendant moved for a directed verdict, but the trial court denied these motions. Like motions were made and denied at the close of all the evidence. The jury returned a verdict in favor of plaintiff against all defendants in the amount of $100,000, and judgment was entered thereon. All defendants subsequently made motions for a new trial or judgment notwithstanding the verdict ("J.N.O.V."), which were also denied.
The defendants present several issues for review. Among these questions is the correctness of the trial court's denial of the defendants' motions for directed verdicts and J.N.O.V. As the following discussion discloses, we disagree with the trial court's resolution of those issues and hold that the defendants' motions for directed verdicts were due to be granted.
This Court is mindful of the scope of its review. We recognize that "[a] strong presumption favors the jury's verdict and the trial court's refusal to grant a new trial." American Furniture Galleries v. McWane, Inc., 477 So. 2d 369, 373 (Ala. 1985). This presumption of correctness will not be disturbed unless the weight and preponderance of the evidence, when viewed in a light most favorable to the nonmoving party, is so decided as to convince this Court that the result is palpably wrong and manifestly unjust. City of Mobile v. Dirt, Inc., 475 So. 2d 503 (Ala.1985); Coleman v. Steel City Crane Rentals, Inc., 475 So. 2d 498 (Ala.1985); Intestate Engineering, Inc. v. Burnette, 474 So. 2d 624 (Ala.1985).
With that scope of review in mind, we proceed with an individualized treatment of the evidence as it relates to each defendant in this case.
Under plaintiff's complaint, the theory of Continental's liability was that Continental negligently failed to perform safety inspections and to advise Clark Construction Company of an unsafe and dangerous conditionthat there was no headache ball on the crane and that grease was on the chain of the crane.
According to the evidence, a headache ball is a metal ball of a shape similar to that of a basketball and such balls are manufactured in various sizes. When utilized in construction, it is shackled to the end of a crane cable. The headache ball is not a permanent part of a crane, and, when not in use, it is detached from the cable. The evidence disclosed that Clark Construction Company did not use headache balls for pile driving.
In a recent case, this Court has reiterated the principles governing liability of an insurance company for negligent safety inspection. In Adams v. Travelers Ins. Co., 494 So. 2d 401, 403 (Ala.1986), this Court quoted from Barnes v. Liberty Mutual Ins. Co., 472 So. 2d 1041, 1042 (Ala. 1985):
In Barnes, we held that proof of a general inspection of the premises by the insurance carrier was insufficient to establish a negligent inspection when that proof did not contain any evidence of an undertaking by the insurance carrier to inspect the specific area of the plant where the injury occurred. Barnes, 472 So. 2d at 1042. In Adams, we refused to accept the plaintiff's argument that the insurance company's failure to inspect the plant while it was in operation was, in and of itself, proof of a negligent inspection. Adams, 494 So. 2d at 404. Since the inspection had occurred after the plant had shut down for the day, we held that the insurance company had not undertaken a duty to discover any defects in its insured's operation. Id.
The instant case also turns on the question of duty. From an inspection of the record, it is apparent that the question of the extent of Continental's undertaking (i.e., the duty issue) is controlled by this Court's holdings in Barnes and Adams, supra.
In this case, the plaintiff's sole witness offered on the claim of negligent inspection was David Floyd, the brother of the plaintiff. David Floyd testified that an insurance company employee did a field inspection at the Highway 84 jobsite (between Andalusia and Opp) sometime in July 1982 and "looked at the equipment and everything out there," including the crane later involved in his brother's injury. There was no evidence whatsoever that the crane was being used for driving pilings at that time, nor was there any evidence that it did or did not have a headache ball at the time of this purported inspection.
Additionally, there was no evidence introduced through David Floyd, or any other witness, that Continental made a safety inspection of this crane or of the work area at the site in Pickens County where the plaintiff was injured. Furthermore, Continental's records, which the plaintiff introduced, disclosed that the most recent jobsite inspection had been on October 10, 1980, on a bridge construction site at Abbie Creek near Abbeville, Alabama, but this evidence did not establish the occurrence of a pile driving operation at the time of that job site inspection. Indeed, the evidence established that the bridge was two-thirds completed when Continental inspected it.
The plaintiff did introduce a "Loss Control Report" prepared by Continental dated August 5, 1982, but the loss control representative who completed the survey testified that it was merely a "regular complete survey":
On cross-examination, the plaintiff further defined the scope of this inspection:
Moreover, there was a complete absence of any evidence establishing that a headache ball should have been used on a crane job for pile driving. To the contrary, the record disclosed undisputed evidence that the use of a headache ball would have interfered with and hindered the pile driving operation.
Thus, in light of our recent decisions in Barnes and Adams, we find that defendant Continental did not undertake the duty to provide a safety inspection for Clark Construction Company; therefore, there can be no breach on which liability would lie for a negligent safety inspection.
The basis of co-employee liability in this state arises from Alabama's statutory duty on the employer to provide a reasonably safe place to work. Code of 1975, § 25-1-1. By definition, the statutory term "employer" includes:
The imposition of liability on a co-employee, however, it not automatic; it does not arise out of one's job title or even out of the amount of control, in and of itself, which the co-employee exerts at the workplace. Clements v. Webster, 425 So. 2d 1058 (Ala.1982). To impose liability on a defendant co-employee in this state, the plaintiff must bear the burden of proving the elements of a three-prong test for the co-employee defendant. Clements, 425 So. 2d at 1060.
First, the plaintiff must show that, as part of the defendant co-employee's responsibilities, he voluntarily assumed or was delegated his employer's duty to provide a safe place to work. Second, the plaintiff must show that the co-employee breached that duty by failing, either through omission or commission, to discharge the delegated or assumed obligation with reasonable care. Third, the plaintiff must show that this breach directly or proximately caused the plaintiff's injury. Kennemer v. McFann, 470 So. 2d 1113 (Ala.1985); Welch v. Jones, 470 So. 2d 1103 (Ala.1985); Clements v. Webster, 425 So. 2d 1058 (Ala.1982); Fireman's Fund American Ins. Co. v. Coleman, 394 So. 2d 334 (Ala.1980). In all actions arising out of Code of 1975, § 25-1-1, negligence will lie against the defendant co-employee if, and only if, the plaintiff proves all three elements of the test by at least a scintilla of evidence. To determine whether the plaintiff met this test for co-employee liability, we must review the evidence as it relates to each individual co-employee defendant.
The plaintiff alleged that C.D. Clark, president of Clark Construction Company, was responsible for the "works, ways, machinery and safety precautions of said job site." On appeal, the plaintiff argues that C.D. Clark "was responsible for the training and responsible for the equipment."
The record reveals that during the trial, the plaintiff called Clark as an adverse witness and elicited from him the following testimony:
The question for defendant D.C. Clark is whether this testimony was sufficient, in light of the holdings in Kennemer v. McFann, 470 So. 2d 1113 (Ala.1985), and Welch v. Jones, 470 So. 2d 1103 (Ala.1985), to show that Clark had either been delegated or had voluntarily assumed the responsibility for the plaintiff's safety.
In Welch we affirmed a co-employee judgment against James C. Welch, the president of the James C. Welch Construction Company, because the evidence revealed an active participation on his part in the day-to-day field operation of his construction company. This involvement included regular visits at the jobsite at least once and sometimes twice a week. While there, he would undertake to look for unsafe practices and hazards at the workplace. Should he see a condition of which he did not approve, he would immediately *1317 order it changed. Welch also received all of the jobsite surveys from his insurance carrier and would personally verify that his job superintendent had rectified any of the unsafe practices or conditions that his carrier had noted. Finally, the evidence showed that Welch had last inspected the very area where the accident occurred within two weeks of the fall. Thus, a jury could have reasonably inferred from the evidence that Welch had personal knowledge of the dangerous condition that proximately caused the plaintiff's injury. In light of this evidence, we found that James C. Welch had personally assumed the employer's duty to provide a safe place to work.
On the other hand, we did not find the assumption of the duty by the defendant Charles Partain in Kennemer v. McFann. Partain had the general administrative responsibility for a company-wide safety program that included the formulation and distribution of safety procedures and regulations to the various field operations of his company. One of the written procedures required that all rubber-tired vehicles have brakes in good service.
The evidence showed that the truck that caused the plaintiff's injury was maintained in violation of these written procedures and that the lack of adequate brakes proximately contributed to the accident in question. There was no evidence, however, that Partain had any first-hand knowledge of the poor maintenance of the vehicle.
We reversed the judgment against Partain because we found that his job title alone did not impose upon him the individualized duty to verify the compliance of each piece of the company's equipment with the established written procedures. Partain's general administrative responsibilities were too remote in regard to the defective instrumentality that caused the plaintiff's injuries for co-employee liability to be imposed upon him.
The evidence of record in the instant case reveals that C.D. Clark's involvement in his company is more closely akin to Partain's administrative responsibilities than to Welch's voluntary assumption of the employer's duty to provide a safe place to work. Although he was the president of his construction company, the evidence here does not show any visits by Clark to the Pickens County jobsite before the plaintiff was injured. There is no indication that Clark was personally involved in the training of the employees at the jobsites, nor is there any evidence showing his presence at, or supervision of, a pile driving operation at any jobsite. Finally, the record is devoid of any evidence revealing any personal knowledge by Clark of the plaintiff's having ridden the cable to the ground at the Tuscaloosa jobsite. Rather, the evidence indicated that C.D. Clark only supervised the operation from his company's corporate offices in Dozier, Alabama.
We can find no evidence of any actions by C.D. Clark that would substantiate the claim that he had assumed a personal duty to provide for the plaintiff's safety; the record shows only the assumption of a generalized administrative responsibility. We have repeatedly held that "[a] co-employee cannot be held liable merely because he has a general administrative responsibility; the fact that a person is in an administrative or supervisory position alone does not make that person liable." Clements v. Webster, 425 So. 2d at 1060. Therefore, as it relates to C.D. Clark, we find that the evidence was insufficient to sustain a judgment against him. C.D. Clark was entitled to a directed verdict at the close of the evidence, and not getting this, to a J.N.O.V.
The plaintiff also sued Gerald McLeod, his job superintendent at the Pickens County jobsite.
The plaintiff did not call McLeod as an adverse witness in his case in chief. He did secure testimony from another co-defendant, Coby Clark, that McLeod was "in charge" of the Pickens County jobsite. The plaintiff did cross-examine McLeod; however, we cannot find a scintilla of evidence that McLeod either had been delegated or had voluntarily assumed the employer's statutory duty, § 25-1-1. The testimony that McLeod was "in charge" is insufficient, because "[l]iability of a co-employee *1318 must be predicated upon the breach of a personal duty owed to the injured employee and not upon general administrative responsibilities." Fireman's Fund American Ins. Co. v. Coleman, 394 So. 2d 334, 347 (Ala.1980) (Jones, J., concurring in the result). We hold that the plaintiff did not sustain his burden of establishing a duty on the part of McLeod; therefore, the trial court should have granted his J.N.O.V. as well.
The thrust of the plaintiff's action against Coby Clark differs in scope from the plaintiff's cases against the other two co-employee defendants, C.D. Clark and Gerald McLeod. The cases against the latter two dealt with their alleged breach of the employer's duty to provide a safe place to work. Accordingly, the question of their liability turned on whether in his case in chief, the plaintiff had proved the delegation to, or the voluntary assumption by, either of them, of any of the employer's common law or statutory duties, and if so, whether the evidence showed for either a breach of duty that proximately resulted in the plaintiff's injury. For C.D. Clark and Gerald McLeod, the determination as to liability fell squarely within the holdings of Fireman's Fund American Ins. Co. v. Coleman, supra, and its progeny.
The plaintiff argues, however, that Fireman's Fund and the other co-employee cases have no bearing on his action against Coby Clark due to the fact that the plaintiff's action did not allege Clark's breach of any of the employer's duties at law. Rather, the plaintiff insists that Coby Clark breached another duty, one personal in nature and derived from the common law, that required every worker to exercise reasonable care in the conduct of his or her job responsibilities so as not to injure another. The plaintiff contends that Coby Clark breached this common law duty to the plaintiff by negligent operation of the crane at the jobsite in Pickens County. Thus, the plaintiff argues that he only had to prove simple negligence against this defendant.
We do not dispute the plaintiff's contention that one fellow employee can be liable to another fellow employee for his negligence proximately causing the injury to the latter. This is precisely the rule of law in Wright v. McCord, 205 Ala. 122, 88 So. 150 (1920), which addressed the identical duty raised by the plaintiff here.
In Wright, an injured employee brought an action of negligence, jointly and severally, against his employer, J.S. Walker, under the Employer's Liability Act, and against his fellow employee, H.C. McCord. The trial court sustained the demurrer to the allegations of the complaint against the employer, and this Court affirmed that action on appeal. This Court, however, reversed the trial court's sustaining of fellow employee McCord's demurrer to the allegation of the complaint, because the plaintiff's allegations of McCord's breach of his common law duty to the plaintiff stated a viable cause of action.
In discussing this duty, the Court wrote:
Wright, 205 Ala. at 126, 88 So. at 153. In light of this duty, the Court concluded that an employee, once he had undertaken the discharge of his job responsibilities, was thus duty-bound to use reasonable care in the manner in which he executed his work so as not to cause injury to another person. Id.
The holding in Wright also agrees with the general rule of law that "[a]s between themselves, servants mutually owe to each other the duty of exercising ordinary care in the performance of their service, and whoever fails in that respect is liable for any injury resulting therefrom to his fellow servant." 5 Thompson, Commentaries on *1319 the Law of Negligence § 5777 (2d ed. 1905); see also, Woods, Law of Master and Servant § 325(a) (2d ed. 1886) ("it may be said to be well established that one servant may maintain an action against a co-servant for injuries sustained by reason of [the] other's negligence"); 2 Sherman & Redfield, A Treatise on the Law of Negligence § 245 (6th ed. 1913) ("The authorities are now unanimous in favor of holding a servant liable to his fellow servants for injuries suffered by them through his personal negligence in the performance of those duties which each man owes to his fellow men"); accord, 57 C.J.S. Master and Servant § 578 (1948); 53 Am.Jur.2d Master and Servant §§ 398-99 (1970).
In fact, our research has failed to reveal a case from any jurisdiction that has reached a contrary holding. So clearly established was this general rule that the Mississippi Supreme Court wrote:
Greer v. Pierce, 167 Miss. 65, 147 So. 303, 304 (1933).
The negligent employee does not enjoy any of the special common law rules that protected the employer from actions by an injured employee. The doctrine that a servant cannot recover for the negligence of a co-employee only precludes actions by the injured employee against his employer. 5 Thompson, supra, at 247. Falling in the same category are the common employment and fellow servant defenses, Lovell v. DeBardelaben Coal & Iron Co., 90 Ala. 13, 7 So. 756 (1890); Louisville & Nashville R.R. v. Allen's Adm'r, 78 Ala. 494 (1885), the duty of the employee to avoid his own injury, Bessemer Land & Improvement Co. v. Campbell, 121 Ala. 50, 25 So. 793 (1899), and the doctrine of the employee's assuming the risk of an injury from a fellow employee. Boggs v. Alabama Consolidated Coal & Iron Co., 167 Ala. 251, 52 So. 878 (1910). None of these defenses or rules protects the negligent employee from any action brought by an injured fellow worker who alleges a breach of the employee's duty at common law.
Nor is Wright v. McCord the only Alabama case that recognizes this common law duty. Rather, it is one of a line of cases that establish a duty on the employee, not just to fellow workers but, as well, to any person, Carter v. Franklin, 234 Ala. 116, 173 So. 861 (1937); Mayer v. Thompson-Hutchinson Bldg. Co., 104 Ala. 611, 16 So. 620 (1894), or any property, Sloss-Sheffield Steel & Iron Co. v. Wilkes, 231 Ala. 511, 165 So. 764 (1936), overruled on other grounds by Henderson v. Wade Sand & Gravel Co., 388 So. 2d 900 (1980); Hilburn v. McKinney, 204 Ala. 158, 85 So. 496 (1920), that is injured or damaged as a result of the employee's failure to use reasonable care in the discharge of his job responsibilities.
Therefore, we hold that the plaintiff stated a valid cause of action when he alleged that Coby Clark had breached this common law duty emanating from one fellow servant to another. This duty arose, not only because of Clark's relationship as a fellow worker of the plaintiff, but also because Coby Clark had complete control of the operation of the crane. Coby Clark was thus duty-bound to exercise reasonable care in his job responsibilities regarding the operation of the crane so as not to negligently injure Floyd.
However, there remains the question, to which we now turn, of whether the plaintiff presented at least a scintilla of evidence of a breach of this common law duty by Coby Clark in his operation of the crane in Pickens County.
Wright and its line of cases hold that whether the breach of this duty resulted from actions of omission or of commission is unimportant. Mayer v. Thompson, supra. Consequently, a defendant's liability for his "negligent performance may result from [his] omitting to do what ought to be done as well as [from] performing his duties in an improper manner." Sloss-Sheffield Steel & Iron Co. v. Wilkins, 231 Ala. at 514-15, 165 So. at 766. "But he must be a wrongdoer in such sort that *1320 under the particular facts of the case his negligence or wrongful act was a proximate cause of an injury." Carter v. Franklin, 234 Ala. at 119, 173 So. at 863.
When the plaintiff stepped off the leads, while holding onto a loop in the cable, he expected the cable to be taut and to suspend him in mid-air until the crane operator could lower him to the ground by the slow release of the cable line. He testified that that was what had happened in the 15 to 20 times that he had previously ridden the cable to the ground with another crane operator at the Tuscaloosa jobsite.
On this particular instance, however, the line was not taut because Coby Clark had created slack in the line, purportedly to facilitate the plaintiff's task of disconnecting the cable from the piling. Coby Clark also testified that he had applied a brake on the line after he had released the slack. In any event, at the Pickens County site, when he stepped off the piling, Floyd immediately dropped the distance of the slack (approximately 4 feet), at which time the line jerked. With this jerk, the plaintiff lost his grip on the cable and fell 30 feet to the ground, resulting in his injuries.
The parties agree that either the presence of slack in the cable or the application of the brake on the line, or a combination of both, occasioned the plaintiff's fall. Nevertheless, these facts, without more, do not evidence Coby Clark's negligent operation of the crane.
The evidence reveals that the normal operation of a leads man includes his manually pulling the cable downward with one hand while holding onto the leads ladder with his other hand. Indeed, this is the very procedure utilized by Willie Taylor and Floyd on the first two piling operations with Coby Clark at the Pickens County jobsite. Thus, under the normal operating procedure of pulling the cable downward, neither the presence of the slack nor the application of the brake would have a bearing on the question of a breach of Clark's common law duty to Floyd by the manner in which he operated the crane that proximately caused Floyd's injuries.
We do not have an instance here of the plaintiff's losing his grip on the leads ladder and falling to the ground due to Clark's actions in allowing slack in the cable and/or his applying a brake on it; nor do we have an instance here in which the plaintiff was injured while descending from the leads according to the standard operating procedure for a leads man. Rather, the evidence clearly establishes that the plaintiff fell while attempting a procedure different from the norm, i.e., instead of climbing down the ladder after he had disconnected the cable, Floyd stepped off the leads, while holding onto the cable, and relied on the crane operator to lower him to the ground.
Under these circumstances, the fact that plaintiff Floyd expected the line to be taut and that he expected to be safely lowered to the ground by this defendant is immaterial to the question of Coby Clark's negligent breach of his common law duty.
The common law duty requires that Coby Clark use reasonable care in the performance of his job responsibilities as they relate to the operation of the crane. It does not require that Clark anticipate and provide for a contingency, such as we have here, that was not part of his normal job responsibilities, especially in light of the facts that the plaintiff fell on his first attempt to "ride the cable" with this crane operator and that he failed to present any evidence that would place Coby Clark at the Tuscaloosa jobsite at any of the times when the plaintiff had engaged in this practice. The plaintiff further admitted that he had never seen another employee of Clark Construction Company ride the cable to the ground and that, to the best of his knowledge, he was the only one in the company who descended from the top of the leads in that manner. On these facts, the plaintiff cannot contend that lowering him from the leads by the crane cable was part of Clark's job responsibilities as a crane operator. Indeed, the record is void of any evidence establishing that this task was part of Clark's duties as a crane operator.
The issue of common law liability for negligent performance of a duty that was *1321 not part of the employee's job responsibilities was addressed in three of the common law-duty cases previously cited. In Sloss-Sheffield Steel & Iron Co. v. Wilkes, supra, the Court stated that the defendant "was certainly not personally responsible to plaintiff for failing to do something not within the scope of his duties." 231 Ala. at 520, 165 So. at 772. The same result was reached in Carter v. Franklin, supra, and Hilburn v. McKinney, supra.
Therefore, we hold that the plaintiff failed to prove a breach of Coby Clark's common law duty to Floyd, because the task of transporting him from the leads by means of the crane cable was not part of Clark's normal job responsibilities as a crane operator. Absent a duty, the verdict against Coby Clark, grounded in negligence, cannot be sustained. As our sister court wrote:
Mississippi Power & Light Co. v. Smith, 169 Miss. 447, 153 So. 376, 379 (1934).
The plaintiff contends that he established by his testimony, albeit disputed by Coby Clark, that Clark had actual notice of the plaintiff's intent to ride the cable down from the top of the leads. This testimony, however, does not establish that there was a breach of Clark's common law duty, because, as outlined above, Clark had no duty to assist the plaintiff in his endeavor to ride the cable down to the ground. Having concluded that the plaintiff did not prove a breach of duty owed by Coby Clark to this plaintiff, whether common law or otherwise, we hold that the trial court should have granted Coby Clark's motion for a directed verdict, or in the alternative, a J.N.O.V.
Since we have reversed the judgment against all of the defendants, we need not address the remaining issues raised on this appeal.
For the foregoing reasons, the judgments against Continental, C.D. Clark, Gerald McLeod, and Coby Clark, are due to be, and they are hereby, reversed, and the cause is remanded.
REVERSED AND REMANDED.
MADDOX, ALMON, SHORES and HOUSTON, JJ., concur.
ADAMS and STEAGALL, JJ., concur in the result.
TORBERT, C.J., and JONES, J., not sitting. | October 2, 1987 |
fcc5e772-5008-4ff4-9208-d593430940a6 | Karagan v. BRYANT FOR GREGER | 516 So. 2d 599 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 599 (1987)
Phillip P. KARAGAN
v.
Thomas E. BRYANT, Jr., as guardian for Vincent J. GREGER, incompetent.
85-1327.
Supreme Court of Alabama.
October 2, 1987.
Rehearing Denied November 20, 1987.
Phillip P. Karagan, pro se.
Thomas E. Harrison, Mobile, for appellee.
ALMON, Justice.
This is a suit brought under Code 1975, § 40-10-83, for redemption of land purchased at a tax sale. The trial court allowed the redemption. The purchaser, Phillip P. Karagan, argues that the plaintiff was not in possession and so was not entitled to bring an action under § 40-10-83.
Vincent J. Greger bought the house and lot at 1280 East Carlton Acres some time prior to 1956. He failed to pay his taxes for 1981, and the state purchased the property at a tax sale on June 8, 1982. See Code 1975, § 40-10-18. On April 12, 1985, the state conveyed its interest to Phillip P. Karagan. Karagan testified that he viewed the property prior to purchasing it and again on two other occasions in 1985, and saw no sign that the property was inhabited. Photographs he took in January *600 1986 showed the yard overgrown, some of the windows broken out, the back door missing, and the house generally appearing to be uninhabited. Interior shots show trash and broken furniture strewn about and no signs of habitation.
Karagan began repairs on January 17, 1986. He replaced the back door, placed locks on the doors, replaced windows, threw out trash, painted the house, and cut the yard. On February 26, 1986, the probate court granted Thomas E. Bryant, Jr., letters of guardianship over "Vincent J. Greger, Unsound Mind." On April 7, 1986, Bryant, as Greger's guardian, filed this action against Karagan.
The evidence tended to show that Greger lived in the house until December 1985, when he was found in his house with acid burns on his back. His neighbors called for an ambulance, and he was taken to a hospital and from there to a nursing home. Greger was diagnosed as having Alzheimer's disease. Martin Davis, who lived down the street from Greger and had known him since 1945, testified that Greger had lived in the house in question continuously until December 1985. When Karagan asked him how he knew Greger had lived in the house, Davis answered:
Greger's wife, from whom he had been separated since 1971, also testified that he lived in the house until December 1985 and that she had visited him there regularly.
Bryant brought this action under Code 1975, § 40-10-83:[1]
This Code section traces to the 1907 Code, with the only material change being the reduction of the interest rate from 25%. Code 1907, § 2312; Code 1923, § 3108; Code 1940, t. 51, § 296.
Although the Code section itself speaks only in terms of the original owner raising redemption as a defensive matter in an action brought by the tax purchaser, this Court has held that an owner in possession need not wait to be sued, but may bring an original bill to quiet title. Burdett v. Rossiter, 220 Ala. 631, 127 So. 202 (1930); Georgia Loan & Trust Co. v. Washington Realty Co., 205 Ala. 288, 87 So. 794 (1921). The Court also held very early that the statute of limitations applicable to otherwise-authorized suits for redemption, see Code 1975, § 40-10-120, did not apply to claims for redemption under this Code section. Burdett, supra; Green v. Stephens, 198 Ala. 325, 73 So. 532 (1916). It was also *601 held that a scrambling possession was sufficient to entitle the original owner to take advantage of the redemption provisions of this section. Bell v. Propst, 220 Ala. 641, 127 So. 212 (1930). See also Alabama Pecan Development Co. v. Case, 266 Ala. 471, 97 So. 2d 537 (1957).
These interpretations of the predecessors of § 40-10-83 have been applied to the present day. The conclusion that the statute of limitations does not apply has led to the further conclusion that no limitation applies; except, in Edmonson v. Colwell, 504 So. 2d 235 (Ala.1987), we held that the rule of repose may bar a claim of redemption made more than 20 years after the tax sale. See also Giardina v. Williams, 512 So. 2d 1312 (Ala.1987).
Gulf Land Co. v. Buzzelli, 501 So. 2d 1211 (Ala.1987), presented a situation similar in pertinent respects to this case. The property in that case was purchased by the state at a tax sale in 1980; in September 1984, the state sold the property to Johnson, who resold it later that month to Gulf Land Company. At that time, Buzzelli could claim only the constructive possession that follows record title. See Giardina, supra. This Court in Gulf Land Co. concluded as follows:
501 So. 2d at 1213-14.
This Court has referred to § 40-10-82, which terminates the right to bring a redemption suit under § 40-10-83 after three years of adverse possession by the tax purchaser, as the "short statute of limitations." The rule stated in Gulf Land Co., that this statute does not begin to run until the purchaser goes into possession, has been consistently followed. See, e.g., Williams v. Mobile[3]Oil Exploration & Producing Southeast, Inc., 457 So. 2d 962, 968 (Ala.1984). Grice v. Taylor, 273 Ala. 591, 143 So. 2d 447 (1962); Tanner v. Case, 273 Ala. 432, 142 So. 2d 688 (1962); Quinn v. Hannon, 262 Ala. 630, 80 So. 2d 239 (1955); Merchants National Bank of Mobile v. Lott, 255 Ala. 133, 50 So. 2d 406 (1951).
We need not decide whether Greger remained in actual or merely constructive possession after he was taken to the hospital in December 1985. Certainly prior to the time that Greger was taken to the hospital, Karagan could have ousted him only by a suit in ejectment, the very situation contemplated by § 40-10-83. Although Greger's incapacity caused the premises to have an appearance of abandonment and caused his possessions in the house to be in an extreme state of disarray, under the circumstances he should be deemed to have retained at least a scrambling possession with Karagan until the filing of this suit. At any rate, the question of whether he was in possession at the time he filed suit is immaterial under the rule of Gulf Land Co. that the owner's right of action is not extinguished until the tax purchaser has retained adverse possession for three years, or the owner's claim of redemption was barred by the rule of repose, Edmondson v. Colwell, supra.
For the foregoing reasons, the trial court correctly allowed Bryant, as Greger's guardian, to redeem the property. Karagan argues that he is entitled to a lien for the improvements he made to the property, but Bryant correctly points out that Karagan made no such claim in his pleadings. Therefore, the judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
MADDOX, BEATTY, ADAMS and HOUSTON, JJ., concur.
[1] We see no reason why the action could not have been brought under § 40-10-120, which does not require possession. Under that section, an action may be brought at any time before title passes out of the state, within three years after a sale to any other purchaser, or within one year of the removal of a disability. See also § 40-10-82. Because the action was not tried on this basis, we make no judgment on this question.
[2] This refers to an action for possession of the land brought by the purchaser at a tax sale. See § 40-10-74 et seq.
[3] This party's name was spelled Mobile in the reporters; it is apparent from the opinion itself that the party was "Mobil Oil, etc." | October 2, 1987 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.