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64a34915-d293-422b-bdfe-3fb35e57ab2d | Fowler Pest Control & Insulation, Inc. v. Hartford Ins. Co. | 512 So. 2d 88 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 88 (1987)
FOWLER PEST CONTROL AND INSULATION, INC.
v.
HARTFORD INSURANCE COMPANY OF ALABAMA, etc.
85-1122.
Supreme Court of Alabama.
July 24, 1987.
*89 Dieter Schrader, Huntsville, for appellant.
L. Tennent Lee III of Cleary, Lee, Morris, Smith, Evans & Rowe, Huntsville, for appellee.
PER CURIAM.
Fowler Pest Control and Insulation, Inc. ("Fowler"), appeals from a summary judgment in favor of defendant Hartford Insurance Company of Alabama ("Hartford"). At all times pertinent to this appeal, Fowler was insured under a comprehensive general liability policy issued by Hartford. Fowler's complaint, as amended, sets out claims against Hartford for "bad faith," breach of contract, fraud, and deceit arising from Hartford's withdrawal from the defense of Fowler in a suit filed against Fowler by Maurice G. Reynolds, Jr., and his wife, Rebecca Ann Reynolds.
The underlying action against Fowler by the Reynoldses was before this Court in Reynolds v. Fowler Pest Control & Insulation, Inc., 479 So. 2d 1185 (Ala.1985). There the cause of action was stated as follows:
Based on this claim as alleged by the Reynoldses, Hartford determined that no coverage was provided under the terms of the policy issued to Fowler and withdrew from defending Fowler in the action.
The insurance policy issued to Fowler provided, among other things, the following:
The policy defines "occurrence" as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured."
Fowler contends that the trial court erred in concluding that there was no obligation by Hartford to defend Fowler because there was no coverage under the policy. Fowler argues that facts known to Hartford, which were outside the complaint, should be considered in determining whether the policy provided coverage for Fowler.
The rules regarding an insurer's duty to defend are set out in United States Fidelity & Guaranty Co. v. Armstrong, 479 So. 2d 1164, 1167 (Ala.1985), as follows:
Hartford relies on Ladner & Co. v. Southern Guaranty Insurance Co., 347 So. 2d 100 (Ala.1977), where the Court considered the issue of "whether the qualifying clause in the definition of occurrence, `neither expected nor intended from the standpoint of the insured' operates to excuse the insurer's duty to defend where the only theories of recovery alleged in the complaint charge the insured with intentional acts." 347 So. 2d at 102. In that case, two insurers denied coverage and brought an action for declaratory judgment to determine their obligation to defend a suit against their insured. The complaint alleged that the insured had sold houses to the plaintiffs with knowledge that the houses would flood. The trial court granted summary judgment in favor of the insurers.
The Ladner & Co. Court held:
347 So. 2d at 103. The Court emphasized, however, that if the plaintiffs changed their theory of liability and asserted a claim against the insured that was covered by the policies, it was possible that the insurers could be obligated to defend their insured.
For all that appears in the complaint filed by the Reynoldses against Fowler in the original case, certain types of fraud that are not intentional could have been included in that claim and therefore would not be excluded by the policy. We cannot say from the record and from the opinion rendered in Reynolds v. Fowler Pest Control & Insulation, Inc., supra, that every actionable claim or theory of fraud fell within the exclusion from Hartford's obligation to defend. We therefore hold that the trial court erred in granting summary judgment for Hartford on the contract claim, i.e., the claim based on a duty to defend. Since there was not a scintilla of evidence before the trial court on the issues of bad faith, fraud, and deceit, the summary judgment is otherwise affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
JONES, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur. | July 24, 1987 |
51230cac-ac6b-43a2-b5b6-9ea79016f3c3 | Ex Parte Lambert | 519 So. 2d 899 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 899 (1987)
Ex parte Floyd Earl LAMBERT, Jr.
(Re: Floyd Earl Lambert, Jr. v. State of Alabama).
85-1380.
Supreme Court of Alabama.
July 31, 1987.
Rehearing Denied December 4, 1987.
John Percy Oliver of Oliver & Sims, Dadeville, and Lee Sims of Oliver & Sims, Alexander City, and J. Paul Lowery, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., and Tom F. Young, Alexander City, for respondent.
ADAMS, Justice.
Floyd Earl Lambert, Jr., was arrested and convicted for trafficking in cannabis. He was sentenced to 20 years' imprisonment and was fined $25,000.00. The Court of Criminal Appeals affirmed his conviction, without opinion, 497 So. 2d 857. On November 25, 1986, we granted certiorari. We reverse.
On July 2, 1984, Lambert sold 7.8 pounds of marijuana to Steve Mann. Mann, arrested in connection with a drug transaction in Tallapoosa County, agreed to provide his assistance in apprehending the supplier of his drugs.
Mann made a phone call in order to set up the transaction. He was wired with a microphone and was given 13 $100 bills in order to make the purchase. His vehicle was searched prior to the "buy" and no contraband was found. Mann drove to an old washateria in Keiltown, where he was kept under constant surveillance. Around 10:00 p.m., a Pontiac Grand Prix automobile pulled up next to Mann. Soon thereafter, Lambert drove up in a green 1966 Ford pickup. Lambert instructed Mann to tell the other people in the Grand Prix to leave, and Mann did so. Mann then bought the marijuana from Lambert. Lambert drove away and was apprehended by the police. When the police stopped him, the 13 one hundred dollar bills were hanging out of his bathing suit and a partially smoked marijuana cigarette was found in the ashtray of the pickup. Meanwhile, Mann gave Detective Brock the marijuana. Brock kept the marijuana in his possession until he turned it over to Detective Black in Auburn, who turned it over to Taylor Noggle of the Alabama Department of Forensic Sciences, who determined it to be, in fact, 7.8 pounds of marijuana. Noggle turned the marijuana over to Investigator Neighbors, who kept it in his custody until trial.
Lambert argues that the trial court erred to reversal when it overrode its own pretrial order and allowed evidence of certain statements made by Lambert to Mann into evidence. Prior to trial, Lambert made a discovery motion asking for a statement of the substance of the oral statements made by Lambert to Mann. The trial court granted Lambert's motion, based upon Rule 18, Ala.Temp.R.Crim.P. However, the State failed to comply with the discovery order and did not provide Lambert *900 with the substance of his own statements. At trial, when the State attempted to introduce the statements into evidence, Lambert objected; the trial court overruled, and allowed Lambert's statements into evidence. The trial court ruled that the State would have to provide copies of custodial statements and not statements that would be considered part of the res gestae. In this interpretation of Rule 18, the trial court erred. Rule 18.1(a) reads as follows:
[Emphasis added.]
The statements made by Lambert were made to a confidential informant working for the police prior to arrest. The rule explicitly mandates that such statements be disclosed to the defendant upon his motion. As stated by our Court of Criminal Appeals, "Rule 18.1(a) is plain and unambiguous. These discovery provisions are the result of many years of painstaking drafting, revision, and redrafting by respected and learned jurists, lawyers, and academicians.... As the advisory committee noted in the comments to the 1983 draft, reciprocal discovery is not only more fair to the accused, but is also of more importance to the state since it serves to expedite those cases which are more properly resolved through negotiated pleas." Hamilton v. State, 496 So. 2d 100, 106 (Ala. Cr.App.1986).
In this case, Lambert's statements were not recorded or written, but were simply oral statements. Oral statements are discoverable only if the prosecution intends to offer them at trial. Rule 18.1(a)(2), Ala. Temp.R.Crim.P. In the present case, the prosecution offered, and the trial court admitted, evidence of the oral statements, in violation of the Rule.
The State argues that being provided with a statement of the substance of the oral statements would not have aided the defendant. The Rule does not provide for an exception based on whether discovery of the statement would aid the defendant's case. It simply mandates that upon the defendant's discovery motion, "the substance of any oral statements" will be provided to him.
The State argues that the statements were not discoverable because they were made to a confidential informer and not a "law enforcement officer, official, or employee" as mentioned in the Rule. However, Mann was aiding the police in apprehending his drug supplier. He was working on behalf of, and for, the State, specifically to apprehend the defendant. To say that Lambert made statements to a private citizen without connection to the State would be ludicrous. In addition, via the microphone, the police officers were parties to the conversation. Therefore, the Rule applies and the district attorney was bound by it. "These rules are the law. Therefore, it is the duty of the courts to enforce them and the duty of the bar to conform to them." Johnson v. State, 501 So. 2d 568, 571 (Ala.Cr.App.1986).
For the reasons set forth, the judgment is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
MADDOX, JONES, SHORES, BEATTY, HOUSTON and STEAGALL, JJ., concur. | July 31, 1987 |
d0571462-fa18-4c06-85ac-2fa879b937e5 | McKinney v. Twenty-Fifth Ave. Baptist Ch., Inc. | 514 So. 2d 837 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 837 (1987)
Ernestine McKINNEY, et al.
v.
TWENTY-FIFTH AVENUE BAPTIST CHURCH, INC., etc., et al.
85-986.
Supreme Court of Alabama.
July 24, 1987.
Rehearing Denied September 25, 1987.
Ralph J. Bolen, Birmingham, for appellants.
Harold T. Ackerman and Jerome Tucker III, of Ackerman, Colee & Tucker, Birmingham, for appellees.
STEAGALL, Justice.
This is an appeal by defendants, 23 members of the Twenty-fifth Avenue Baptist Church ("Church"), from an order of the Jefferson County Circuit Court scheduling a new election for the purpose of enabling the congregation of the Church to decide who shall be expelled from Church membership and from an order requiring an accounting of all Church funds. We affirm.
The plaintiffs, individually and as trustees of the Church, filed a "petition for temporary injunction, permanent injunction and other relief" asserting that the defendants were expelled from membership in the Church on January 5, 1986, and that since their expulsion they had disrupted religious services and prevented the members of the Church from engaging in peaceful worship. The plaintiffs sought an order enjoining the defendants from disrupting or interfering with the business of the Church and also filed a motion requesting that an election be held in order for the congregation of the Church to determine whether certain members of the Church should be expelled.
The defendants filed a counterclaim, a cross-claim, and a number of motions and petitions. The motions included a motion to dismiss fictitious parties; a motion to dismiss four defendants who were not included in the list of members of the Church that were allegedly expelled from membership; and a motion to add as defendants in the cross-claim Reverend Dorosco Scarber, the pastor of the Church; Julia Marshall, the secretary of the Church; and Arthur Sparks, the janitor.
*838 The trial court granted the motion to dismiss fictitious parties and the motion to dismiss the four defendants not included in the list of allegedly expelled members. The motion to add defendants in the cross-claim was granted with respect to Reverend Scarber, but overruled with respect to Marshall and Sparks.
In their counterclaim, the defendants assert that the plaintiffs are not duly elected trustees of the Church; that the meeting wherein the congregation voted on the expulsion of the defendants was held without proper notice; that the constitution and by-laws of the Church were never properly voted upon; and that the plaintiffs had denied defendants access to the Church property, which caused defendants to resort to forcible entry at considerable expense (replacing locks and broken glass).
The defendants assert in their cross-claim against Reverend Scarber that he adopted the constitution and by-laws without approval by a majority vote of the congregation and that he appointed the trustees of the Church without approval by a majority vote of the congregation.
The defendants petitioned for an accounting of all Church funds, asking that the books and records of the Church be delivered to a certified public accounting firm. The defendants also stated in their petition that the "Revitalization Committee," of which the defendants were members, had solicited financial contributions from Church members in the name of the Church and had retained these funds and made the decision as to the appropriate use to be made of these funds.
The defendants also sought a declaratory judgment, seeking particularly a declaration that the constitution and by-laws of the Church were invalid and that the defendants were the duly elected deacons of the Church.
The trial court held that the meeting wherein the defendants were expelled from membership was invalid and that the action of the Church in adopting a constitution and by-laws was invalid due to inadequate notice. The trial court directed the deputy register of the court to schedule an election wherein the congregation, by a majority vote of its eligible and qualified members, could vote whether a particular member should be expelled from membership. The trial court also established, in detail, the type of notice of the election that should be given and directed the deputy register to personally count the ballots and report the results. The trial court stated that, if necessary, it would determine at a later time whether challenged voters were qualified. The trial court ordered that a current accounting of all Church funds, beginning on January 1, 1984, be conducted by the deputy register. The accounting was to include the funds collected by the "Revitalization Committee." The trial court also directed the members of the Church to resolve among themselves, after the election, the membership of the board of deacons.
The defendants present essentially two arguments on appeal. They assert that the trial court erred in ordering a new election and in ordering an audit of the funds collected by the "Revitalization Committee."
When a trial court hears evidence presented ore tenus, its findings of fact are presumed to be correct and will not be disturbed on appeal unless they are plainly or palpably wrong or manifestly unjust. Scarbrough v. Smith, 445 So. 2d 553 (Ala. 1984).
The trial court made the following findings, which we do not find plainly or palpably wrong or manifestly unjust.
". . . .
This Court has noted in a number of decisions that our authority to interfere with the conduct of a private religious institution is limited. For example, in Abyssinia Missionary Baptist Church v. Nixon, 340 So. 2d 746 (Ala.1976), this Court stated:
"`* * * Spiritualities are beyond the reach of temporal courts, and a pastor may be deposed by a majority of the members at a congregational meeting at any time, so far as the civil courts are concerned, subject only to inquiry by the courts as to whether the church, or its appointed tribunal has proceeded according to the law of the church. * * *'"
In the instant case, the trial court determined that the fundamentals of due process had not been observed by the Church. Consequently, the trial court issued an order that would insure that reasonable notice of the time, place, and purpose of the Church meeting would be given and that the meeting would be conducted in an orderly manner. The trial court made no inquiry into the reasons why certain members were being expelled from membership.
In each Baptist church the majority of the members of the church control the business of the church. Williams v. Jones, 258 Ala. 59, 61 So. 2d 101 (1952). Also, all the members of a Baptist church are entitled to vote at a congregational meeting, regardless of age. In re Galilee Baptist Church, 279 Ala. 393, 186 So. 2d 102 (1966). However, the issue as to which members are eligible to vote is a matter within the discretion of the members of the church. Id. The defendants assert that the trial court exceeded its authority by requiring the plaintiffs and the defendants to provide the trial court with a list of Church members who are "qualified and eligible" to vote in an election. We find that the trial court merely requested that the members of the Church determine which members are "qualified and eligible" to vote; and that the trial court did not make that determination itself. Although the trial court stated that if a person's vote is challenged, it would, if necessary, determine the qualifications at a later date, we find that the *840 trial court has not, at this time, exceeded its authority.
As to the trial court's order of an accounting of all Church funds, we find that it was the defendants who requested the accounting of all Church funds while asserting that the "Revitalization Committee" represented the true Church leadership and collected funds in the name of the Church. Accordingly, the defendants have no cause to complain when an accounting of the funds collected by the "Revitalization Committee" is ordered.
Based upon the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and HOUSTON, JJ., concur. | July 24, 1987 |
519f4b94-ff0b-4055-b9ac-fb4bb57ec0be | Kenai Oil & Gas, Inc. v. Grace Petroleum Corp. | 512 So. 2d 1347 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1347 (1987)
KENAI OIL AND GAS, INC.
v.
GRACE PETROLEUM CORPORATION.
86-407.
Supreme Court of Alabama.
July 31, 1987.
Rehearing Denied August 28, 1987.
*1348 Michael C. Quillen and Scott A. Spear of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellant.
Norton W. Brooker, Jr., of Lyons, Pipes & Cook, Mobile, and Louis P. Moore of Holder, Moore & Grocholski, Fayette, for appellee.
JONES, Justice.
This is an appeal from a partial summary judgment made final pursuant to Rule 54(b), A.R.Civ.P. We reverse and remand.
Detailed statements of both the case and the facts are necessary for an understanding of the dispositive issue here presented.
On January 23, 1984, Kenai Oil and Gas, Inc. ("Kenai"), filed this civil action against Grace Petroleum Corporation ("Grace"). The complaint alleged 1) that Kenai and Grace entered into an "Operating Agreement and Authority for Expenditure Agreement" on or about July 22, 1981, which set out the terms under which exploration for oil and gas would be undertaken; 2) that the Operating Agreement provided that Kenai was to have a 9.375 per cent working interest in the exploration effort and that Grace, as operator, would be responsible for obtaining title opinions with respect to the lease interests of those who were parties to the Operating Agreement; 3) that at the time of the Operating Agreement's execution Grace knew or should have known that Kenai's title to mineral interests was apparently defective and that Grace had obtained competing mineral leases or the right to obtain such leases; 4) that Grace obtained a second title opinion by the end of 1981 which declared Kenai's interest void, and that the existence of this title opinion was not disclosed to Kenai until after Grace had disclosed that a third title opinion, prepared after the well had been successfully drilled and was producing, showed no interest belonging to Kenai; 5) that Grace charged and collected from Kenai a share of exploration expenses while concealing Grace's knowledge of the apparent title defect and the existence of the second title opinion; and 6) that Grace's early knowledge of the problem and the second title opinion continued to be concealed from Kenai both after Grace's disclosure of the opinion expressed in the third title opinion and during an effort to persuade Kenai to accept from Grace a refund of exploration and well costs.
Based on these factual allegations, Kenai charged Grace with eight counts of culpable conduct: 1) breach of contract; 2) breach of fiduciary duty; 3) gross negligence; 4) misrepresentation made willfully to deceive or recklessly without knowledge; 5) misrepresentation of material fact by mistake or innocently; 6) suppression of material facts which Grace was under obligation to communicate; 7) deceit; and 8) concealment and misrepresentation operating to estop Grace from denying Kenai certain gas well revenues. By amendment to that complaint, Kenai sought a declaration of its rights with respect to the mineral interests.
Grace's motion for partial summary judgment, claiming that counts two, four, five, six, and seven were barred by the one-year statute of limitations,[1] was granted and expressly made final. All of the statements of Kenai's claims sought damages for fraud and deceit. Kenai alleges error only with respect to its claims for fraud and deceit.
On May 12, 1981, Kenai and Browning & Welch, Inc., entered into a natural gas exploration and development contract. Pursuant to the terms of that agreement, Browning & Welch agreed to purchase mineral interests in the Black Warrior Basin (to be paid for by Kenai) and to assign three-fourths of the acquired mineral interests to Kenai.
On June 19, 1981, Browning & Welch leased from U.S. Pipe & Foundry Company interests covering 12,066 acres of land, including a tract described as the north one-half of the south one-half of the southeast quarter of section two, township 14 south, range 12 west, in Fayette County, Alabama. This same property had previously been leased from U.S. Pipe by Grace or by its predecessor, Cleary Petroleum.
On July 10, 1981, George Cox, a landman employed by Grace, wrote a letter to Kenai soliciting Kenai's participation in a well-drilling project. Cox's letter stated that a preliminary check of working interests revealed that Kenai owned the mineral interests in 9.375 per cent of the spacing unit which was proposed by Grace. Cox, on behalf of Grace, requested that Kenai confirm its proposed working interest and enclosed with the letter a preliminary drilling opinion prepared by Jack Fine. This title opinion reflected that Kenai and Browning & Welch had good and valid title to the mineral interests in the 40-acre tract leased by Browning & Welch for itself and Kenai.
In response to the letter from Cox/Grace, Kenai executed an authorization for expenditure ("AFE") which indicated Kenai's willingness to pay for its proportionate share of the drilling and exploration costs of the proposed well. An operating agreement dated July 22, 1981, was also signed, setting out the working interest owned by Kenai at 9.375 per cent and listing the responsibilities of the operator, Grace, as well as the rights and obligations of the non-operating working interest owners.
Among the obligations of Grace, as operator, was the securing of title opinions. Pursuant to the operating agreement, Grace agreed:
"No well shall be drilled on the Contract Area until after (1) the title to the drillsite or drilling unit has been examined as above provided, and (2) the title has been approved by the examining attorney or title has been accepted by all of the parties who are to participate in the drilling of the well."
Drilling of the well, which became known as Laningham 2-15, began on November 5, 1981, and the well was completed on January 18, 1982. Kenai paid the 1982 and 1983 invoices for drilling expenses and operating expenses both by check and by Grace's offsetting income otherwise payable to Kenai from another well being operated by Grace.
On December 9, 1982, in response to a December 1 inquiry from Kenai, Grace wrote a letter to Kenai informing Kenai that the recent division order title opinion written by Grace's attorney did not disclose Kenai as having an interest in the Laningham 2-15 well. In response to the Grace letter concerning Kenai's mineral interests, Kenai employees attempted to determine the status of Kenai's title. According to a December 30, 1982, memorandum (prepared by Kenai employee Bill Long), Fleming Browning of Browning & Welch was asked by telephone on December 29 if he knew the basis for Grace's assertion that it owned the mineral interests at issue. That memorandum reflected that either Mr. *1350 Long or Mr. Browning speculated that Grace had purchased the mineral interests after a division order title opinion had been issued which might have shown the mineral interests as being leased.
Kenai personnel made an effort to obtain title opinions from Grace in the latter part of 1982. Correspondence reveals that title opinions were apparently forwarded to Kenai by Grace in March of 1983. Other documents earlier prepared by or received by Browning & Welch were also forwarded to Kenai on March 21, 1983. Some of these documents forwarded by Browning & Welch bore a "received" stamp indicating the date on which they were received by Browning & Welch. Although Browning & Welch's receipt stamp indicates that Browning & Welch received some of the documents in October and November of 1982, a March 21, 1983, cover letter reflects that they were not made available to Kenai until that later date.
Kenai allegedly became aware of the fact that three title opinions had been prepared for or received by Grace when the three title opinions were sent to Kenai by Grace in March of 1983. These three title opinions were prepared as follows: 1) a preliminary title opinion dated March 30, 1981, by Jack Fine; 2) a supplemental drilling opinion from the law firm of Patterson & Patterson, dated December 18, 1981; and 3) a division order title opinion prepared by Jack Fine, dated September 7, 1982.
After March of 1983, Kenai discovered that a landman named Sam Martin had been obtaining mineral leases adverse to Kenai's lease interests as early as November of 1980 and through November of 1981. Adverse leases covering over 37 acres of the 40-acre tract leased by Kenai were owned by Grace before May of 1981. After discovery was underway in this action, Kenai learned that Sam Martin had informed Grace's landman George Cox that, in Martin's opinion, the U.S. Pipe lease title was defective before Grace submitted the first Fine title opinion to Kenai with the request that Kenai obligate itself to pay for 9.375 per cent of the expense of drilling the Laningham 2-15 well.
The issue presented on this appeal is whether, as a matter of law, Kenai must be deemed to have discovered the alleged fraud more than one year before filing its complaint. In other words, in reviewing the action of the lower court, this Court must determine whether the record, viewed in a light most favorable to Kenai, contains any evidence or an inference therefrom that Kenai first discovered the alleged fraud within the one-year period prior to filing suit (i.e., January 23, 1983, through January 23, 1984).
Kenai claims that the trial court had before it ample evidence from which a jury could infer that Kenai first became aware of facts that would put a prudent person on notice of fraud well within the one-year period prior to filing suit. The record, maintains Kenai, demonstrates that Grace continued to conceal Grace's fraud from Kenai beyond the date considered by the trial judge to be the latest date on which the statute of limitations could begin running (December 30, 1982the date of the Kenai internal memo). Kenai also argues that the trial court's granting of partial summary judgment to Grace on Kenai's claims of fraud and deceit "exhibits a lack of appreciation both for the nature of Kenai's fraud claim and for the nature of the inquiry which must be made to determine whether a jury issue exists as to the date on which fraud [was] discovered."
Grace summarizes its position by arguing that "the facts are uncontroverted that Kenai was aware of circumstances indicating the possibility of a fraud no later than December 30, 1982, and Kenai itself acknowledged on December 1, 1982, that Grace had allegedly failed to perform its duties under the operating agreement."
The trial court agreed with Grace and held, in part:
Our analysis of the issue here presented must be guided by two well-established principles of law: 1) the standard of review for motions for summary judgment; and 2) the law with respect to the discovery of an alleged fraud and the applicable statute of limitations for filing a complaint based on that fraud.
On motion for summary judgment, the moving party, in demonstrating to the satisfaction of the trial court that there is an absence of a genuine issue of material fact, bears a heavy burden. The movant must negate the existence of any issue of material fact by showing that there is no evidence tending to support the non-movant's position. His case must also withstand scrutiny of the record in a light most favorable to the non-moving party. Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981). The weight of this burden is increased by the requirement that "[a]ll reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party." Sadie v. Martin, 468 So. 2d 162, 165 (Ala.1985).
In the context of the instant case, then, this Court must determine whether, on motion for summary judgment, Grace carried its burden and demonstrated a total absence of disputed material fact as to the time Kenai knew or should have known of the alleged fraud. This inquiry is controlled by the standard announced in Johnson v. Shenandoah Life Ins. Co., 291 Ala. 389, 281 So. 2d 636 (1973):
The principles in Johnson, however, were never meant to be interpreted so that the rule determining the time of discovery of an alleged fraud, for statute of limitations purposes, could be applied so as to defeat *1352 the ultimate purpose of the law with regard to fraud.
This Court has also said:
Viewing the instant record most favorably to Kenai, the non-moving party, and in the context of the relationship between Kenai and Grace, we find that the trial court erred in granting Grace's motion for summary judgment. The agreement between Kenai and Grace contractually obligated Grace to perform the day-to-day operations of the well and to keep Kenai informed of the financial matters involving the well. Kenai, therefore, had the right to reasonably rely on Grace to perform the contract and to keep Kenai informed, because Grace, in its capacity as "operator" of the well, was Kenai's source of accurate statistics concerning the well's operations.
Therefore, according to Williams v. Bedenbaugh, supra, and Cartwright v. Braly, supra, the contractual relationship between Kenai and Grace does play a part in determining whether Grace's assertion that a title opinion did not show Kenai as a mineral interest owner was sufficient to put Kenai on notice of fraud. Similarly, there was sufficient evidence before the trial court to prevent its holding that, as a matter of law, the December 30, 1982, internal Kenai memo was conclusive evidence of Kenai's knowledge of facts sufficient to put Kenai on notice of a possible fraud. In other words, while the December 9, 1982, letter from Grace to Kenai may have indicated a problem, the letter did not, as a matter of law, give Kenai notice of a fraud. For cases where the first notice of a problem was not held to commence the running of the one-year statute, see Marks Fitzgerald Furniture Co. v. Clarklift of Alabama, Inc., 494 So. 2d 614 (Ala.1986); Elrod v. Ford, 489 So. 2d 534 (Ala.1986).
In light of the relationship between the parties, the duties imposed on the parties by their contract, and the nature of the fraud itself, there was evidence from which the jury could have found that the facts available to Kenai did not rise to the level of "notice of a fraud." Therefore, we find that Kenai's claims against Grace were not barred by the applicable statute of limitations, and we reverse the judgment and remand the cause to the trial court for further proceedings.
REVERSED AND REMANDED.
TORBERT, C.J., and SHORES, ADAMS and STEAGALL, JJ., concur.
[1] We recognize that recent amendments to our statutes of limitations extended the statutory period to two years effective January 9, 1985. See Act 85-39, Second Spec. Session, 1984-85 Ala. Acts, repealing § 6-2-39, and amending § 6-2-38 and § 6-2-3. Those amendments have no effect in this case. | July 31, 1987 |
f9b2ad2e-d807-4c35-b0ea-d55824dcb212 | Graves v. Norred | 510 So. 2d 816 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 816 (1987)
Clyde GRAVES
v.
Jewell NORRED, Individually and as Administratrix of the Estate of James Wayne Norred, deceased.
85-1069.
Supreme Court of Alabama.
July 2, 1987.
*817 C. Kerry Curtis of Curtis & Curtis, Phenix City, for appellant.
J. Pelham Ferrell of Ferrell & McKoon, Phenix City, for appellee.
ADAMS, Justice.
This is an appeal from a judgment awarding insurance proceeds to the plaintiff, Jewell Norred, instead of the defendant, Clyde Graves. Jewell Norred's deceased husband, James Wayne Norred, and Graves were partners in a business known as Graves and Norred Electrical Service. They formed the partnership in 1973 and continued operation until February 28, 1983. No written agreement existed for the partnership, nor was there any agreement on how the partnership assets were to be divided upon dissolution. Profits and liabilities were shared equally.
On May 7, 1979, Graves and Norred took out life insurance policies with Georgia International Life Insurance Company. The insurance agent was Gibson Albin, the brother-in-law of Norred. Each policy was worth $25,000.00, and was a five-year level term policy that could be renewed every five years for an increased premium. Graves was designated as the beneficiary on Norred's policy, and Norred was designated as the beneficiary on Graves's policy. The premiums for the policies were paid out of partnership funds. The parties' dispute is over the intended purpose of the policies. Graves argues that the proceeds were to be used to pay off partnership debts incurred by the surviving partner. Graves testified, however, that there was no understanding between him and Norred on what to do with the remainder after the debts were paid. Mrs. Norred argues that the proceeds should go to the deceased's estate as payment in full for the deceased's interest in the partnership. Albin, the insurance agent who was also Mrs. Norred's brother, testified that both parties knew that the purpose of the insurance was to buy out the heirs of the deceased partner.
Norred and Graves ended their partnership on February 28, 1983. They physically divided the partnership assets, but did not actually perform customary steps to equally dissolve the partnership. Graves says that as a result of the division, he became the sole owner of the business, and he continued to pay the premiums on both of the insurance policies until James Wayne Norred's death on December 5, 1983. On January 26, 1984, Jewell Norred filed her complaint, individually and as administratrix of James Wayne Norred's estate, asking for the proceeds of the insurance policy. She amended her complaint on December 17, 1984, further alleging that Graves had no insurable interest in the life of James Wayne Norred at the time of Mr. Norred's death. On February 4, 1986, the circuit court entered its order finding that although there had been an accounting of the physical assets of the partnership, no final accounting was had as to monies due to either partner, and that the estate of James Wayne Norred was entitled to the insurance proceeds, subject to set-offs due Clyde Graves. On appeal, Graves argues that the trial court's order is against the great weight of the evidence and that no *818 legal theory exists to support the trial court's ruling. We reverse.
Jewell Norred argues that she should receive the benefits of the insurance policy because she alone had an insurable interest in the insurance contract. "According to Alabama law, ... [an] insurable interest must exist both at the time of contract execution and at time of the loss. Girard Fire & Marine Ins. Co. v. Gunn, 1930, 221 Ala. 654, 130 So. 180, 183. Accord: Commercial Union Fire Ins. Co. of New York v. Parvin, 1966, 279 Ala. 645, 189 So. 2d 330, 332." Providence Washington Ins. Co. v. Stanley, 403 F.2d 844, 848 (5th Cir.1968), reh. denied, 406 F.2d 735 (5th Cir.1968). The prevailing rule among the states is that a partner or partnership has an insurable interest in the life of one of the partners. 43 Am.Jur.2d Insurance § 989 (1982). It is not the mere existence of the partnership which provides the basis for the insurable interest. It is the insuring partner's "reasonable expectation of pecuniary benefit from the continuance of the insured's life." Id., at 1000. This interest continues even if the partnership is discontinued prior to the death of one of the partners. Id.
In West End Sav. Bank v. Goodwin, 223 Ala. 185, 135 So. 161 (1931), the directors of a bank obtained a life insurance policy on the president, and the bank was named as the beneficiary. After the president resigned, the bank had the beneficiary changed to the resident's estate. The president then assigned his rights to the policy back to the bank. The Court held that the bank had an insurable interest in the life of the president and "that his resignation did not affect the continued validity of the insurance for the full benefit of the bank, and that, if no change had been made, the bank would be due to receive the proceeds of the insurance." 223 Ala. at 187, 135 So. 2d at 162. Although West End Sav. Bank involved a bank and its officers, we apply the same logic and analysis to this situation involving partnerships.
In the instant case, each partner took out a life insurance policy on the other. Both sides testified that the purpose was to provide for one partner at the other partner's death. The manner of providing for the surviving partner is in dispute between the parties. However, there is no legal uncertainty that both partners had an insurable interest in the life of the other partner.
We next turn our analysis to the designation of the beneficiary in order to determine who should be entitled to the proceeds of the life insurance policy. In the case of Williams v. Williams, 438 So. 2d 735 (Ala.1983), a partner designated the other partners (his brothers), as the beneficiaries of his life insurance policy. Pursuant to the partnership's dissolution agreement, the surviving partners were to receive the insurance proceeds and then use those proceeds to purchase the deceased partner's interest. Although it was written in an awkward manner, the dissolution agreement was held to be valid and enforceable. 438 So. 2d at 735. Unlike the present case, in Williams a written partnership agreement a and dissolution agreement existed. However, both agreements involved the designation of the partners as beneficiaries instead of the spouse or estate. As stated by Chief Justice Torbert, "The fact that the decedent selected his partners, as opposed to his spouse or estate, as beneficiaries of the life insurance... is unquestionably permissible. Partners continue to be free to select whomever they wish to benefit from insurance on their lives." Williams, 438 So. 2d at 739. In this case, the plaintiff's evidence that the decedent intended for the proceeds to go to his estate consisted solely of oral testimony from the plaintiff's brother (the insurance agent), and an ambiguous statement from a mutual friend of both partners. No ambiguity existed in the designation of the beneficiary. There was no written agreement like the dissolution agreement in Williams, supra, which provided that the surviving partners were to use the proceeds to purchase the deceased partner's interest. We require more than oral testimony, like the testimony presented here, in order to show that it was not the intention of the decedent that the designated *819 beneficiary retain the proceeds. Therefore, we reverse the trial court's judgment designating Norred's estate as the rightful recipient of the proceeds instead of the designated beneficiary.
REVERSED AND REMANDED.
JONES, ALMON, SHORES and STEAGALL, JJ., concur. | July 2, 1987 |
053aa78f-9ca6-48a1-8605-b3fb88e1df7e | Sullivan v. State Farm Mut. Auto. Ins. | 513 So. 2d 992 | N/A | Alabama | Alabama Supreme Court | 513 So. 2d 992 (1987)
Joel Lee SULLIVAN
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
85-1480.
Supreme Court of Alabama.
August 14, 1987.
Dinah W. Petree and David H. Meginniss of Hornsby, Blankenship, Robinson & Meginniss, Huntsville, for appellant.
L. Tennent Lee III of Cleary, Lee, Morris, Smith, Evans & Rowe, Huntsville, for appellee.
MADDOX, Justice.
This appeal presents a question of first impression. Can a guest passenger recover under both the liability and uninsured motorist coverages of his host driver's insurance policy when the negligence of the host driver caused the accident? We hold that he cannot, and we affirm the judgment of the trial court.
On July 21, 1985, Joel Lee Sullivan was a passenger in an automobile that was involved in a one-vehicle accident; he was seriously and permanently injured. The *993 car was owned by Andrew Jones and, at the time of the accident, was being driven by his son, Michael Jones. State Farm Mutual Automobile Insurance Company ("State Farm") provided both liability coverage and uninsured motor vehicle coverage. The policy was issued to Andrew Jones.
State Farm (plaintiff) filed this action for a declaratory judgment against Joel Lee Sullivan, Joe A. Sullivan, Michael E. Jones, Andrew Jones, and American States Insurance Company (defendants), and alleged that it had issued a policy of automobile liability insurance to Andrew Jones, and that Michael Jones was an insured under that policy. In the complaint, State Farm admitted that Joel Sulivan was a passenger in the insured vehicle. State Farm also admitted that Sullivan's injuries were the proximate result of the negligence of its insured, Michael E. Jones, and further conceded that the injuries suffered by Sullivan authorized an award of damages in excess of the policy's bodily injury liability limit of $25,000, and in excess of the the policy's uninsured motor vehicle limit, also $25,000.
State Farm paid into the registry of the court the sum of $25,000 to satisfy its alleged obligation to Sullivan under the bodily injury limits of the Jones policy and requested that the court declare that it was not liable to Sullivan or his father, Joe A. Sullivan, under the uninsured motor vehicle coverage of the Jones policy (which had been amended to conform to the new "underinsured motorist" statute enacted by the Alabama legislature). State Farm relied upon the following two provisions of its policy to make this argument:
"Limits of Liability:
The plaintiff and defendants (with the exception of American States) filed cross-motions for summary judgment. The trial court granted the plaintiff's motion for summary judgment and denied the defendants' motion. Summary judgment was rendered in favor of State Farm, but because the judgment did not adjudicate as to all of the parties or all of the issues involved in the case, the trial court then entered a Rule 54(b), Ala.R.Civ.P., order making the judgment final; the defendants appeal from that summary judgment in favor of State Farm.
The trial court, in an 11-page opinion, found that the provisions of the State Farm policy violated neither the statutory uninsured motorist coverage provisions (Code 1975, § 32-7-23), nor the public policy of the state. The trial court stated in its opinion:
Relying upon the distinction made by this Court in Lambert v. Liberty Mutual Ins. Co., 331 So. 2d 260 (Ala.1979), the trial judge held that Sullivan was a class II insured, and, therefore, that the statute did not mandate either uninsured or underinsured motor vehicle coverage.
The defendants contend that the exclusions relied on by State Farm are in derogation of the uninsured motorist coverage statute and are contrary to public policy.
It is well settled in Alabama that when a court is interpreting the language in an insurance contract, rules of construction mandate that words are to be given their customary and normal meaning. This Court has also stated that provisions of insurance policies must be construed in light of the interpretation that ordinary persons would place on the language used. McKissick v. Auto-Owners Ins. Co., 429 So. 2d 1030 (Ala.1983). Any ambiguities in an insurance policy are to be resolved in favor of coverage. Childress v. Foremost Ins. Co., 411 So. 2d 124 (Ala.1982). Further, this Court has ruled that exceptions to coverage must be interpreted as narrowly as possible to provide the maximum coverage available. Cotton States Mutual Ins. Co. v. Michalic, 443 So. 2d 927 (Ala. 1983). Prior Alabama cases construing the statute requiring uninsured motor vehicle coverage have held that if a policy provision is contrary to the statute, it is void and unenforceable. Safeco Ins. Co. v. Jones, 286 Ala. 606, 243 So. 2d 736 (1970).
The uninsured motor vehicle coverage statute (Code 1975, § 32-7-23) mandates coverage "for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom." This section has been construed to mean that the classification of "insured" under the uninsured motor vehicle coverage must be as broad as under the bodily injury liability coverage. State Farm Automobile Ins. Co. v. Reaves, 292 Ala. 218, 292 So. 2d 95 (1974).
We are of the opinion that the State Farm policy providing for uninsured motorist coverage is not void and unenforceable as against public policy. The policy provides that State Farm will "pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle." (Emphasis added.) The bodily injury must be caused by an accident arising out of the operation, maintenance, or use of an uninsured motor vehicle. An uninsured motor vehicle is defined in the State Farm policy as including a motor vehicle which is insured *995 for bodily injury liability, but as to which "the sum of the limits of liability under all bonds and policies that apply are less than the damages the insured is legally entitled to recover." We believe that this provision is in accord with the statute defining an uninsured motor vehicle.
The defendants also contend that Joel Sullivan was a permissive user and was therefore insured under the liability coverage and that underinsured coverage was, therefore, mandated by statute.
The trial court in this case found that Joel Sullivan was not a named insured or a designated insured under the policy issued to Andrew Jones. The court also found that Joel Sullivan was "neither the named insured, spouse of the named insured, nor relative residing in the household nor was he a person using the automobile with the consent of the owner or his spouse." Instead, the trial court found that Joel Sullivan fell within the category of persons who are insured because they are included within the definition of "insured" provided by the insurance policy and not required by statute (i.e., that he was a class II insured).
This Court has recognized that there are distinctions between classes of insureds. Lambert v. Liberty Mutual Insurance Co., 331 So. 2d 260 (1976). In that case, Lambert was injured while riding as a passenger in a vehicle owned by his employer, which was struck by another vehicle driven by an uninsured motorist. The trial court determined that Lambert was not entitled to stack coverage on other vehicles owned by his employer that were insured under the same insurance policy. The court stated that Lambert was not the owner of the vehicle in which he was riding at the time of the accident and that he had paid none of the insurance premiums. Lambert was an insured merely because he was an occupant of the vehicle at the time of the accident. In affirming the judgment of the trial court, this Court stated:
Lambert v. Liberty Mutual Insurance Co., 331 So. 2d 260, 264-65 (1976). Since Lambert, this Court has followed the basic reasoning that two distinct classes of insureds exist. See, White v. Georgia Casualty & Surety Insurance Co., [MS. 85-380, July 2, 1987] (Ala.1987); Holloway v. Nationwide Mutual Insurance Co., 376 So. 2d 690 (Ala.1979); Nationwide Mutual Insurance Co. v. United Services Automobile Ass'n, 359 So. 2d 380 (1978); and Billups v. Alabama Farm Bureau Mutual Casualty Insurance Co., 352 So. 2d 1097 (Ala.1977).
In a special concurrence in Lambert, Justice Jones further distinguished between a person "insured thereunder ... against loss from liability" and a person "insured" under the uninsured vehicle coverage. Justice Jones stated in his special concurrence:
331 So. 2d at 266-67.
We are of the opinion that the trial court, after examining this Court's opinion in Lambert, supra, correctly determined that Joel Sullivan was not a named insured or a designated insured under the policy issued to Andrew Jones. We also believe that the trial court did not err when it looked to Justice Jones's special concurrence in Lambert and found that Joel Sullivan fell within the definition of "insured" because he was included within the definition of "insured" provided by the insurance policy and not required by statute and, therefore, that the extent of coverage for uninsured motorist protection could be limited by the terms of the insurance contract.
While it is true, as the defendants contend, that this is a case of first impression in Alabama, several jurisdictions have addressed the very issue presented here and have reached the same conclusion as the trial court reached in this case.
The Supreme Court of Louisiana has addressed the same issue with the same factual question as is presented in this case in Nall v. State Farm Mutual Automobile Insurance Co., 406 So. 2d 216 (La.1981). In Nall, the plaintiff was a passenger in an automobile and was injured due to the negligence of the driver. The bodily injury liability coverage was exhausted. The issue before the Louisiana court was:
406 So. 2d at 219. The policy in Nall, like the one here, expressly excluded an "insured automobile" from the definition of an "uninsured automobile." The Louisiana court upheld the policy provision and refused recovery under the uninsured/underinsured motorist coverage, and stated:
"`A person insured under the uninsured motorist provision of a particular policy delivered or issued for delivery in this state with respect to a motor vehicle registered or principally garaged in this state must establish that *997 he is legally entitled to recover damages from the owners or operators of uninsured or underinsured motor vehicles in order to obtain coverage thereunder. As to coverage under the uninsured motorist provisions of a particular policy, the statute thus contemplates two distinct motor vehicles: the motor vehicle with respect to which uninsured motorist coverage is issued and the `uninsured or underinsured' motor vehicle. In addition, as to each policy containing uninsured motorist coverage, the statute distinguishes between the person insured under the policy in question and the owner or operator of the uninsured or underinsured motor vehicle.'
406 So. 2d at 219-20.
Another jurisdiction that has considered this issue is the state of Washington, in Millers Casualty Insurance Co. v. Briggs, 100 Wash. 2d 1, 665 P.2d 891 (1984). That case involved a one-vehicle accident in which a passenger was killed. The policy definition excluded "an automobile ... to which the liability coverage of this policy applies." 100 Wash. 2d at 3, 665 P.2d at 892. The Washington statute is virtually identical to the Alabama statute and defines an underinsured vehicle as a vehicle with respect to which the sum of liability limits "applicable to a covered person after an accident is less than the applicable damages which the covered person is entitled to recover."
The Washington court held that the exclusion of the insured automobile from the definition of an underinsured automobile was contrary neither to public policy nor to the statute and that the insurer was not obligated to pay under its underinsured motorist coverage. The Washington court stated:
100 Wash. 2d at 8, 665 P.2d at 895.
Arizona is another state with a statute similar to Alabama's. It is clear that the underinsured scheme under the Arizona statute and the statutory requirement that all insureds under the liability coverage be covered for underinsured motorist coverage are almost identical to Alabama's. In Preferred Risk Mutual Insurance Co. v. Tank, 146 Ariz. 33, 703 P.2d 580 (App. 1985), the issue involved was whether passengers in the insured vehicle, after the bodily injury liability limits had been exhausted, *998 could then apply for benefits under the underinsured motorist coverage. The Preferred Risk policy, in defining an "underinsured motor vehicle," excluded the insured vehicle. The injured parties argued that such an exclusion was contrary not only to the statute but also to public policy. The passengers, who were insureds under the policy because they were relatives of the named insured, argued that the statute mandated that coverage extend to all persons insured under the policy.
The Arizona court rejected these arguments and stated:
146 Ariz. at 35, 703 P.2d at 592. The Arizona court further added:
146 Ariz. at 36, 703 P.2d at 583.
Minnesota also has a statute similar to Alabama's. The trial court referred to a Minnesota case in support of its holding. In Meyer v. Illinois Farmers Insurance Group, 371 N.W.2d 535 (Minn.1985), the plaintiff was a passenger in a one-vehicle accident. He recovered the liability limits under the policy insuring that vehicle. Although his damages exceeded the bodily injury limits, the court did not allow him to recover under the uninsured motorist coverage on the same vehicle. In Meyer the insurance company relied upon a provision identical to the one in this case that excluded the insured motor vehicle from the definition of uninsured motor vehicle.
In Meyer the Court held that the exclusion was valid and set forth public policy reasons supporting its validity, as follows:
After examining our statutes, our own cases, and the cases from other jurisdictions, we are of the opinion that the trial court did not err when it held that a guest passenger is not entitled to recover under both the liability and the uninsured motorist coverages of his host driver's insurance policy when the negligence of the host driver caused the accident.
AFFIRMED.
*999 ALMON and ADAMS, JJ., concur.
BEATTY and HOUSTON, JJ., concur in the result. | August 14, 1987 |
404da725-bd6c-4d3e-9e0b-f294848367a3 | Langley v. MUT. FIRE, MARINE & INLAND INS. | 512 So. 2d 752 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 752 (1987)
John LANGLEY
v.
MUTUAL FIRE, MARINE AND INLAND INSURANCE COMPANY, a corporation, et al.
85-320.
Supreme Court of Alabama.
July 24, 1987.
*753 Richard E. Browning of Cunningham, Bounds, Yance, Crowder, and Brown, Mobile, for appellant.
James H. Crosby and R. Alan Alexander of Brown, Hudgens, Richardson, Mobile, for appellee Mutual Fire, Marine & Inland Ins. Co.
Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellees A. Pharr Hume and W.K.P. Wilson & Son, Inc.
BEATTY, Justice.
This is an appeal by plaintiff, Dr. John Langley, from an order granting summary judgment in favor of defendants, Mutual Fire, Marine and Inland Insurance Company ("Mutual Fire"); W.K.P. Wilson and Son, Inc.; and Mr. Pharr Hume. We affirm.
From August 9, 1977, through August 8, 1978, Dr. Langley's medical malpractice liability insurance carrier was Mutual Fire.
*754 The policy issued to Dr. Langley by Mutual Fire was a "claims-made" insurance policy. The first sentence appearing in Dr. Langley's policy is a statement alerting the insured as to the nature of the "claims-made" type of policy; it provided as follows:
Further down on the same page of the policy, under the section entitled "The Coverage," there appears another statement explaining the claims-made character of the policy:
According to Dr. Langley, during the summer of 1978, W.K.P. Wilson & Son, Inc., through its agent, Pharr Hume, contacted Dr. Langley and solicited his malpractice insurance business. Wilson & Son and Hume, however, contend that they did not contact Dr. Langley until the fall of 1978. In any event, Dr. Langley did not renew his coverage with Mutual Fire, nor did he execute the optional extension of coverage offered by Mutual Fire that would have continued his coverage for three years for claims based on acts or omissions that occurred during the primary term of the Mutual Fire policy. This "optional extension period" is described at length on the second page of Dr. Langley's policy:
Following Dr. Langley's non-renewal of his Mutual Fire policy, which was effective on August 9, 1978, he received the following letter from Mutual Fire concerning his option to extend his coverage in accordance with the above-quoted provision of his policy with Mutual Fire:
"CERTIFIED MAIL "RETURN RECEIPT REQUESTED "August 14, 1978 "John Olin Langley, MD "John Olin Langley, MD, PC "1701 Springhill Avenue "Mobile, AL 36604
"Sincerely,
"Carolyn J. Sayre "CJS/jr "cc: Mr. Alan Murray John Lloyd & Co. PO Box 7503-A, Office Park Birmingham, AL 35223"
As previously noted, Dr. Langley did not exercise his option to purchase the extended coverage with Mutual Fire. Instead, on October 20, 1978, Dr. Langley applied for coverage through Wilson & Son, the insurance to be underwritten by St. Paul Fire & Marine Insurance Company ("St. Paul").
Dr. Langley contends that Hume represented to him that his insurance coverage would be continuous; that is, that there would be no lapse in coverage from the date of the changeover from the Mutual Fire policy to the St. Paul policy. Nevertheless, Dr. Langley's application for insurance through Wilson & Son indicated that coverage would not be effective until October 24, 1978, the date on which Dr. Langley's policy was, in fact, issued. In other words, the retroactive date on Dr. Langley's St. Paul policy was October 24, 1978, and, therefore, the policy did not provide coverage for any period of time prior thereto. Indeed, because Dr. Langley's cancellation of his Mutual Fire policy was effective August 9, 1978, Dr. Langley was completely without coverage for the period between August 9 and October 24, 1978. Additionally, the St. Paul policy issued to Dr. Langley in October was also a claims-made type of policy.
Dr. Langley continued his malpractice coverage through Wilson & Son until March 24, 1980, when Wilson & Son cancelled the policy for nonpayment of premiums. Dr. Langley also subsequently declined to purchase an optional "Reporting Endorsement" from St. Paul, which would have offered him the same type of benefit as the optional extension of coverage that had been offered Langley by Mutual Fire. Under the terms of the St. Paul policy and the reporting endorsement offered to Dr. Langley by St. Paul, that endorsement would have covered Dr. Langley on a continuous basis for injuries or deaths occurring during the policy period (October 24, 1978, through March 24, 1980) without regard to when the claim was made.
In February 1983, a medical malpractice claim was filed against Dr. Langley alleging negligence in the delivery of a child on July 9, 1978, which negligence resulted in the severe and permanent brain damage of the child. Dr. Langley first notified Wilson & Son of the claim, but it declined to defend, responding that Mutual Fire was Dr. Langley's insurer on the date of the alleged negligent delivery. Mutual Fire, however, also refused to defend because the policy under which Dr. Langley had been insured was expressly "limited to liability for only those CLAIMS THAT ARE FIRST MADE AGAINST THE INSURED WHILE THE POLICY IS IN FORCE." (Emphasis added.) Further, Dr. Langley had declined to purchase the optional extension of coverage at the time he cancelled his policy with Mutual Fire. Dr. Langley filed this action on January 9, 1984, naming as defendants Mutual Fire; Wilson & Son; and Pharr Hume, individually.
In the interest of clarity and convenience, the above narrative of pertinent events is set out below in chronological fashion:
By his initial complaint, Dr. Langley's claim against Mutual Fire alleged breach of contract, and his claims against Pharr Hume and Wilson & Son alleged misrepresentation and negligent design and structuring of his insurance coverage. Discovery ensued, and then, together, Wilson & Son and Hume moved for summary judgment, as did Mutual Fire. The trial court granted defendants' motions by separate orders entered August 13, 1985. Dr. Langley subsequently sought to amend his complaint on September 11, 1985, to allege a breach of contract claim against Wilson & Son and Pharr Hume. The same day, Dr. Langley also filed a motion to reconsider. The trial court granted both motions and set aside the summary judgment entered August 13, 1985. Wilson & Son and Hume moved to strike the amended complaint, but that motion was denied. Subsequently, on October 31, 1985, all defendants again moved for summary judgment as to the allegations of plaintiff's complaint and amended complaint. The trial court granted defendants' motions for summary judgment "against Plaintiff John Langley on Plaintiff's amended complaint." This appeal followed.
Dr. Langley advances two arguments that he contends preclude summary judgment in favor of Mutual Fire. First, he contends that there is some ambiguity in the wording of the Mutual Fire policy, leaving a question of fact for a jury to resolve. We disagree. The claims-made character of Dr. Langley's Mutual Fire policy is made readily apparent within the policy itself. As set out in the beginning of this opinion, the first sentence of the policy alerts the insured that the policy is a claims-made policy limiting coverage to "only those CLAIMS THAT ARE FIRST MADE AGAINST THE INSURED WHILE THE POLICY IS IN FORCE." (Emphasis added.) The insured is then cautioned to "review the policy carefully." Further down on the same page, the claims made clause appears and "claims made" is again defined with more specificity: "This policy applies to CLAIMS FIRST MADE AGAINST THE INSURED DURING THE POLICY PERIOD arising out of malpractice committed or alleged to have been committed subsequent to the retroactive date set forth in the Declarations." We find this language to be abundantly clear and free from ambiguity. The portion of the policy describing the "Optional Extension Period" (quoted supra), which was expressly offered to Dr. Langley when he notified Mutual Fire of his decision not to renew his coverage, further clarifies the claims-made nature of the policy: If the policy provided coverage for claims that arose during the policy period, but which were not made until after the policy period had expired, what need would there be for an optional extension period as defined in the policy?
Whether a written contract is ambiguous and unclear is a question of law for the court. Upton v. Mississippi Valley Title Ins. Co., 469 So. 2d 548 (Ala.1985); Smiths Water Authority v. City of Phenix City, 436 So. 2d 827 (Ala.1983). If an insurance contract is deemed to be unambiguous, we must apply its terms and enforce the contract as written. Upton v. Mississippi Valley Title Ins. Co., supra; Turner v. United States Fidelity & Guaranty Co., 440 So. 2d 1026 (Ala.1983).
Upton, supra, 469 So. 2d at 554. (Emphasis added.)
Having concluded that the claims-made clause of the Mutual Fire policy is clear and unambiguous, we next address Dr. Langley's second contention: that public policy dictates that this claims-made clause be declared null and void, and that, under the circumstances of this case, Mutual Fire should be required to extend coverage. Dr. Langley cites this Court primarily to three Alabama cases that he believes have a direct bearing on the public policy issue presented by this case. The "trilogy" of cases he cites are Utica Mutual Ins. Co. v. Tuscaloosa Motor Co., 295 Ala. 309, 329 So. 2d 82 (1976); Wixom Brothers Co. v. Truck Ins. Exchange, 435 So. 2d 1231 (Ala. 1983); and U.S.F. & G. Ins. Co. v. Warwick Development Co., 446 So. 2d 1021 (Ala.1985). Dr. Langley contends that because of the wording of the insurance contracts in this case, he has been put into the situation about which Justices Jones and Shores expressed concern in their separate opinions in Utica Mutual Ins. Co. and Warwick Development Co.:
Warwick, 446 So. 2d at 1026, Justices Jones and Shores concurring specially. We find these cases inapposite. In all three cases, in issue were "occurrence" policies of insurance as opposed to "claims-made" policies. Furthermore, in each case, the issue of coverage arose out of situations in which the commission of the alleged negligent act did not coincide with the injury or damage resulting therefrom, and the occurrence policy in force at the time of the alleged negligent act was not in force at the time of the injury or damage.
In Utica Mutual Ins. Co., supra, construing a policy provision defining "occurrence" as "an accident * * * which results, during the policy period, in bodily injury or property damage," a majority of the Court held that under the clear meaning of the policy language, "coverage is afforded only when bodily injury, or damage to or loss of property is suffered during the policy period irrespective of when the negligent act was performed which later resulted in such bodily injury, or damage to or loss of property." 295 Ala. at 313, 329 So. 2d at 85.
Later, in Wixom Brothers Co., supra, faced with the identical issue, a majority of the Court adopted the language and reasoning of the dissenting Justices in Utica Mutual Ins. Co., and held that, although, in unambiguous terms, the insurer had "limited its risk of loss by definition of the term `occurrence' to the extent set out above," the enforcement of such a coverage restriction offends the public policy of this state. Wixom Brothers Co., 435 So. 2d at 1234.
Less than one year later, this Court decided Warwick Development Co., supra, and in a plurality opinion, we abandoned the holding in Wixom Brothers Co. and adopted the view that, under an "occurrence" policy, the time of an "occurrence" of an accident is not the time the wrongful act was committed, but rather it is when the complaining party was actually damaged. The USF & G policy in Warwick Development Co. defined "occurrence" as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the Insured." 446 So. 2d at 1023. "Property damage" was defined in the USF & G policy as:
Thus, in Warwick Development Co., this Court upheld the policy definitions that, in effect, limited the insurer's risk of loss. We do no more than this in the case at bar.
We, therefore, think that, in James & Hackworth v. Continental Casualty Co., 522 F. Supp. 785 (N.D.Ala.1980), Judge Grooms correctly concluded that the claims-made type of insurance policy is not void as against the public policy of this state, thereby rejecting the argument that such policies should be treated as occurrence policies:
"`The insurance afforded by this policy applies to errors, omissions or negligent acts which occur on or after the date stated in item 6 of the declarations (the effective date of the first policy issued and continuously renewed by the Company) provided that claim therefor is first made against the insured during this policy period and reported in writing to the Company during this policy period or within 60 days after the expiration of this policy period.'
(Footnotes omitted.) 522 F. Supp. 786-87.
Dr. Langley, nevertheless, argues in his brief that insurance companies should not be allowed to write contracts in such a manner so as to avoid their obligations, in situations such as the present, by including a phrase in the contract requiring that claims be presented or made during the policy period before such claims will be paid or defended. However, Dr. Langley cites no authority consistent with this argument regarding claims-made policies. Indeed, it appears that a decided majority of courts that have considered this argument have gone the other way. See cases discussed at Annot., 37 A.L.R.4th 382, 457-67 (1985). In most of those cases where it has been held that coverage should be provided, the decisions are based on the courts' findings that the following policy language is ambiguous because of the words "which may be made": "The company shall indemnify insured against any claim or claims for breach of professional duty which may be made against them during the policy period." Id. at 457-59. As previously discussed, the policy language in question in this case is not at all like the above language, and is, in fact, quite clear and its meaning readily apparent regarding the claims-made character of the policy.
*759 In only two of the cases cited at 37 A.L.R.4th, at 459-60, was it held that certain provisions of the claims-made policies in question were violative of public policy. In Jones v. Continental Casualty Co., 123 N.J.Super. 353, 303 A.2d 91 (1973) (cited in James & Hackworth v. Continental Cas. Co., supra), Continental Casualty had provided professional liability coverage for the plaintiff from 1965 through 1970, when that coverage was discontinued. Thereafter, on August 18, 1971, plaintiff received notice of a claim made against him for work he had performed in 1966. Plaintiff promptly notified Continental Casualty of the claim. After an initial investigation, Continental denied coverage, and plaintiff filed suit against Continental. The court held that the period of coverage (specifically the retroactive coverage), as defined in the insurance policy, violated public policy in that these policy provisions (set out below) inhibited freedom of contract:
303 A.2d at 92-93. (Emphasis added.)
In holding that public policy had been violated, the New Jersey Court reasoned as follows:
(Emphasis added.) 303 A.2d at 95-97.
The claims-made insurance contract in the present case does not purport to provide *760 retroactive coverage at all beyond the retroactive date of the policy, regardless of whether the insured's previous coverage was with Mutual Fire. Thus, there is no freedom of contract violation in this case. Furthermore, prospective coverage for claims made after the expiration of the policy period, which is really the critical coverage under these facts, was provided to the insured in this case at his option under the "Optional Extension Period" provision of the policy. This option was offered to Dr. Langley, but he rejected it.
The second case discussed at 37 A.L.R. 4th, at 459-60, is Heen & Flint Associates v. Travelers Indemnity Co., 93 Misc.2d 1, 400 N.Y.S.2d 994 (S.Ct.1977). In that case, the Court rejected the insured's argument that the condition of claims-made policies excluding coverage for events occurring within the policy period when claims are not made therefor until after the policy period is void as being against public policy. The Court discussed Jones v. Continental Casualty Co., supra, but followed the majority rule:
400 N.Y.S.2d at 997. The court in Heen & Flint Associates did go on to hold that a claims-made policy provision, permitting an insurer having notice of a potential claim to refuse to renew that policy, is unconscionable:
(Emphasis added.) 400 N.Y.S.2d at 997-99.
But we are not presented with such a provision in the present case, nor with circumstances wherein Mutual Fire refused to renew Langley's coverage because it was made aware of a potential claim. In this case, Dr. Langley chose not to renew his policy with Mutual Fire and declined to exercise his option under that policy to purchase from Mutual Fire an extension of coverage policy.
We agree with and adopt the reasoning and analysis of the Supreme Court of Florida in Gulf Insurance Co. v. Dolan, Fertig, & Curtis, 433 So. 2d 512 (Fla.1983), a case factually similar to the present case. In Gulf Insurance Co., Dolan (a law firm) chose not to renew its professional liability claims-made insurance policy with Gulf Insurance Company ("Gulf"), but instead contracted with Lawyers Professional Liability Insurance Company ("LPLIC") for a claims-made policy effective for the period November 20, 1979, to November 20, 1980. On November 19, 1979, the last day the Gulf policy was in effect, Dolan received notice of a potential malpractice claim. Dolan first notified LPLIC of this claim on December 6, 1979, but LPLIC denied coverage because Dolan learned of the claim prior to the effective date of the LPLIC policy. Later, on February 12, 1980, Dolan notified Gulf of the claim; Gulf also denied coverage because it was not notified during the policy period as expressly required by the Gulf policy.
After the claimant obtained a $50,000 judgment against Dolan, Dolan filed a declaratory judgment action against Gulf and LPLIC seeking a determination as to whether either or both were liable for the damages award. Gulf and LPLIC moved for summary judgment: Gulf's motion was granted and LPLIC's motion was denied. Dolan appealed the summary judgment in favor of Gulf. The Fourth District Court of Appeals reversed the summary judgment, holding that, while claims-made policies were not against public policy, nevertheless, in order to make the contract fair, there should be a reasonable time after the policy period expires for reporting claims that are discovered late in the policy period. Dolan, Fertig & Curtis v. Gulf Insurance Co., 419 So. 2d 1108 (Fla.Dist.Ct.App.1982). On rehearing, the district court certified to the Florida Supreme Court the issue of whether a court can "engraft upon an unambiguous claims-made insurance policy a reasonable additional period of time after the policy period expires for reporting claims that arise late in the contract term." Gulf Insurance Co., supra, 433 So. 2d at 513. The Florida Supreme Court answered the question in the negative and quashed the district court's opinion. In its analysis, the court compared claims-made policies to occurrence policies, describing particularly the notice requirements of each:
"Notice within an occurrence policy is not the critical and distinguishing feature of that policy type. Occurrence policies are built around an insurer who is liable *762 for the insured's malpractice, no matter when discovered, so long as the malpractice occurred within the time confines of the policy period. Coverage depends on when the negligent act or omission occurred and not when the claim was asserted. The occurrence insurer, then, is faced with a `tail' that extends beyond the policy period itself. This `tail' is the lapse of time between the date of the error (within the policy period) and the time when a claim is made against the insured. The giving of notice is only a condition of the policy, and in no manner is it an extension of coverage itself. It does not matter when the insurer is notified of the claim by the insured, so long as the notification is within a reasonable time and so long as the negligent act or omission occurred within the policy period itself.
433 So. 2d at 515. The Florida court went on to explain that, in view of the differences between the notice provisions of the two types of policies, courts cannot, in effect, extend the coverage of claims-made policies by gratuitously adding an occurrence-policy type "tail":
"As one commentator has noted:
(Footnotes omitted.) (Emphasis added.) 433 So. 2d 515-16. Just as in Gulf Insurance Co., supra, the insured in this case "declined to avail" himself of the extended discovery endorsement offered by Mutual Fire.
Dr. Langley, nevertheless, argues in his brief that none of the options available to him (short of renewing his policy with Mutual Fire) "would have changed the outcome of this case one iota." He contends that "the corrective measure by way of a reporting endorsement, reporting extension, tail provision, or [by] any other name... does not allow the plaintiff in this situation any means whatsoever to protect himself against acts which may have occurred during the duration of his insurance with Mutual Fire which could possibly leave him subject to legal liability." The reference in this statement is apparently to the fact that the extended endorsement offered by Mutual Fire extended the period for making claims for only up to three years beyond the date the policy was cancelled or nonrenewed, whereas the malpractice claim made against Dr. Langley in this case was filed four and one-half years after the effective date of Dr. Langley's non-renewal of the Mutual Fire policy. In other words, Dr. Langley contends that even if he had purchased the extension of coverage endorsement offered him he still would be without coverage for this claim. We hold, however, that because Dr. Langley elected not to purchase the three-year optional extension of coverage contract, he has no standing to argue that this extension of coverage contract is so inadequate as to make it invalid and violative of public policy. Moreover, Dr. Langley offered no evidence that this optional extension contract would not have been renewed.
If the optional extension contract offered to Dr. Langley by Mutual Fire could have been renewed for additional three-year periods of coverage, Dr. Langley could have so renewed in order to keep his extended coverage in effect long enough for the statute of limitations to run on all potential medical malpractice claims arising from his acts or omissions during the primary policy period, which was August 9, 1977, through August 8, 1978. Under § 6-5-482, Code of 1975, an adult patient/plaintiff has, at the outside, four years "next after the act or omission or failure giving rise to the claim" in which to bring an action thereon. In the case of a minor patient/plaintiff "under four years of age, such minor shall have until his eighth birthday to commence such an action." Thus, Dr. Langley, whose practice included obstetrics, would have needed to extend his coverage period for making claims for at least eight years after the date, within the primary policy term, he last performed medical services injurious to a newborn child. Dr. Langley however, did not even chose to avail himself of the three-year extension contract offered by Mutual Fire, nor has he shown that that contract was nonrenewable. For these reasons, we shall not consider his contentions that the optional extension contract offered him did not afford him any protection whatsoever.
We, therefore, hold that summary judgment in favor of Mutual Fire was proper.
The next issue concerns the propriety of summary judgment in favor of defendants *764 Pharr Hume and Wilson & Son on Dr. Langley's claims for misrepresentation and negligent structure and design of insurance coverage. We agree with defendants that these claims are barred by the applicable one-year statute of limitations, Code of 1975, § 6-2-39.[1]
Dr. Langley claims that defendants Hume and Wilson represented their own intention to provide a professional liability policy that "would be virtually the same as the old coverage, ... would be such a smooth changeover that Plaintiff wouldn't even know the difference, and ... would [permit] no lapse in coverage." It is undisputed that, following these alleged misrepresentations, Dr. Langley filled out an application showing the effective date and nature of coverage (claims-made) applied for; he received the claims-made policy itself; he received a renewal notice showing the effective date and nature of coverage; he received a letter from Hume showing the effective date and nature of coverage; and St. Paul wrote Dr. Langley a letter specifically advising him of the nature of a claims-made policy. The date of the last of the series of these notices was July 24, 1980.
The issue under these facts is whether Dr. Langley filed this action for fraudulent misrepresentation within one year after he reasonably should have discovered the fraud. See Code of 1975, § 6-2-3. Fraud is deemed to have been discovered at the time of the discovery of facts which would provoke inquiry by a person of ordinary prudence, and which, if followed up, would have led to the discovery of the fraud.
Under the facts of this case, it is clear that, as a matter of law, Dr. Langley should have discovered the alleged misrepresentation within the year after he received a copy of his St. Paul policy and other documents reflecting the effective date of coverage for that policy. Sharpe v. Crook Realty Co., 508 So. 2d 262 (Ala.1987); Gonzales v. U-J Chevrolet Co., 451 So. 2d 244 (Ala.1984); Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757 (Ala.1983); Sexton v. Liberty National Life Ins. Co., 405 So. 2d 18 (Ala.1981); Seybold v. Magnolia Land Co., 376 So. 2d 1083 (Ala.1979). See also Myers v. Geneva Life Ins. Co., 495 So. 2d 532 (Ala.1986).
The timeliness of Dr. Langley's claim for negligent structuring and design of coverage presents a more troublesome statute of limitations issue.
Dr. Langley alleged that "Defendants were negligent in designing and structuring this insurance coverage in failing to advise the plaintiff of the possibility of the lapse in coverage and in failing to advise the plaintiff that he should purchase prior acts coverage or a reporting endorsement which would remedy the lapse in coverage." At the outset, we note that, in support of their motion for summary judgment, defendants did not adduce evidence to contradict this allegation by Dr. Langley. They did, however, affirmatively plead the statute of limitations as a bar to recovery. The troublesome, yet pivotal, question to be decided under these facts and the pertinent authorities is the point at which Dr. Langley was damaged or legally injured as a result of the defendants' alleged negligence. Stated differently, when did Dr. Langley's cause of action for negligence accrue and the statute of limitations on that claim thereby begin to run?
In Armstrong v. Life Ins. Co. of Virginia, 454 So. 2d 1377, 1379 (Ala.1984), this Court held that as to their claim for negligent failure to procure insurance, plaintiffs "suffered legal injury on the date Virginia Life failed to provide a policy in accordance with their expectations." In reaching that conclusion, this Court relied on Home Ins. Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 285 So. 2d 468 (1973), for the general rule that "[a] negligence cause of action accrues *765 as soon as the plaintiff is entitled to maintain an action, regardless of whether the full amount of damages is apparent at the time of the first legal injury." 454 So. 2d at 1379. To the facts in Armstrong, supra, we also analogized the case of Moore v. United States Pipe & Foundry Co., 384 So. 2d 1108 (Ala.Civ.App.1980), in which the Court of Civil Appeals held that a cause of action for negligence in allowing a life insurance policy to lapse accrued on the date the policy lapsed, rather than the date of the insured's death. Moore was subsequently overruled by this Court in Weninegar v. S.S. Steele & Co., 477 So. 2d 949 (Ala.1985), a case involving a claim for negligence in allowing a flood insurance policy to lapse. In Weninegar, this Court, following a line of authority from other jurisdictions, particularly Austin v. Fulton Ins. Co., 444 P.2d 536 (Alaska 1968), adopted the rule that a cause of action for negligent lapse accrues "when a loss triggering liability under the lapsed policy occurs." Weninegar, supra, 477 So. 2d at 956. The Alaska court in its decision in Austin reasoned that, because the insured's legally protected interest is in being protected against a loss which the insurance was intended to cover, there can be "no invasion, or infringement upon or impairment of such interest until there had been [such] a loss ..., because until that event occurred such protection could avail the [insured] nothing." (Emphasis added.) Austin, supra, 444 P.2d 539. It is precisely this latter point (viz., what the insured is availed of) that causes this case, on its facts, to be distinguishable from Weninegar and the authorities on which it relies.
In the present case, Dr. Langley claims, in effect, that the defendants were negligent in failing to structure or design his coverage so that he would be covered for any acts of negligence that he had already committed prior to the time he cancelled his claims-made policy with Mutual Fire. The malpractice action brought against Dr. Langley, for which he now seeks coverage, was for negligence alleged in the delivery of a child on July 9, 1978, which was during the Mutual Fire policy period, and prior to Dr. Langley's dealings with the defendants. Thus, Dr. Langley's legally protected interest was in being insured not merely for future negligent acts that might result in liability, but especially for those negligent acts that he may have committed prior to the effective date of his St. Paul policy. In other words, Dr. Langley was supposed to be availed of something, i.e., coverage for prior negligent acts, on the date the policy was issued. Therefore, the fact that the insurance coverage Hume and Wilson & Son structured for Dr. Langley did not accord with his expectations in this case on the date that coverage was issued was clearly injurious to Dr. Langley because being without coverage for any prior negligent acts exposed him to a greater quantum of risk than the plaintiffs were exposed to in Weninegar prior to the occurrence of a flood. When the St. Paul policy was issued to Dr. Langley without providing the coverage Dr. Langley claims the defendants were under a duty to procure for him, Dr. Langley was thereby quantifiably injured, because he was then exposed to liability for malpractice claims that had already accrued.
Under these facts, we hold that the moment the defendants issued Dr. Langley a policy that failed to provide coverage for his prior negligent acts, his legally protected interest in having such coverage was palpably invaded, infringed upon, or impaired. Austin, supra. Accordingly, on that date, October 20, 1978, Dr. Langley's cause of action for negligence accrued and the applicable one-year statute of limitations began to run. Furthermore, absent any fraudulent concealment by the defendants, the plaintiff's ignorance of the tort or injury does not postpone the running of the statute until the tort or injury is discovered.[2]Kelly v. Shropshire, 199 Ala. 602, 75 So. 291, 292 (1917). Because Dr. Langley's *766 negligence claim was not asserted within one year from the date his St. Paul policy was procured by the defendants, that claim is also time barred.
In addition to his claim alleging negligence, Dr. Langley asserted a breach of contract claim against defendants Pharr Hume and Wilson & Son, which the defendants also failed to controvert by their motion for summary judgment. Nevertheless, summary judgment as to Dr. Langley's breach of contract claim is due to be affirmed under the merger doctrine.
In his amended complaint, Dr. langley alleged the following:
In Sexton v. Liberty National Ins. Co., 405 So. 2d 18, 22 (Ala.1981), this Court reiterated and applied the merger doctrine to the facts of that case:
Accord, Sharpe v. Crook Realty Co., supra. We hold that Sexton, supra, is directly applicable and controlling authority as to the agreement to insure alleged in the present case. For that reason, summary judgment in favor of defendants on Dr. Langley's breach of contract claim is due to be affirmed.
Based on the foregoing, summary judgment in favor of all defendants is due to be, and it is hereby, affirmed.
AFFIRMED.
MADDOX, JONES, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
[1] After this lawsuit was filed, § 6-2-39 was repealed, effective January 9, 1985. The actions governed by the one-year provision of § 6-2-39 were transferred to § 6-2-38 and are now governed by that section's two-year limitations provisions. See Act 85-39, 1984-85 Alabama Acts, Second Special Session.
[2] As discussed in the first and second portions of this opinion, both of the claims-made policies issued to Dr. Langley were clear and unambiguous both as to the nature and as to the duration of the coverage provided. Had he read them carefully, Dr. Langley could have readily discovered the "lapse" in his coverage. | July 24, 1987 |
3d057f80-97c8-4a21-808f-df67d80b56df | Dunaway v. King | 510 So. 2d 543 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 543 (1987)
Rodney DUNAWAY
v.
William Doyle KING.
85-1464.
Supreme Court of Alabama.
June 30, 1987.
*544 Robert T. Wilson and Garve Ivey, Jr., of Wilson & King, Jasper, for appellant.
Edgar M. Elliott III and Karon O. Bowdre of Rives & Peterson, Birmingham, for appellee.
HOUSTON, Justice.
Rodney Dunaway filed this action against William D. King and his wife Jo Ann King for the negligent entrustment of a handgun and automobile to their son, Christopher King ("Chris"). The trial court granted summary judgment in favor of Mr. and Mrs. King. This judgment was made final pursuant to Rule 54(b), Ala.R. Civ.P. Dunaway appeals as to William D. King. We affirm.
On Thanksgiving night of 1984 at approximately 11:00 p.m., Chris, after having been at a nightclub with a friend for several hours, went to his home and obtained his father's truck. Mr. King was asleep at the time. Chris and his friend drove to another nightclub, where an altercation occurred between Chris and Dwight Reeves. Reeves and the plaintiff Dunaway left the nightclub and were followed by Chris and his friend, who were in Mr. King's truck. Chris, using a handgun that had been placed in the truck for a hunting trip earlier that day, fired several shots into Dunaway's vehicle. One bullet struck and killed Reeves. Dunaway was not struck. Chris was convicted of murder and sentenced to 20 years in prison.
Dunaway filed this action against Chris, Mr. and Mrs. King, and the two nightclubs at which Chris had been before the shooting, seeking damages for personal injury, emotional distress, and property damage. The only matter before this Court involves Dunaway's action against Mr. King for negligently entrusting the handgun and truck to his son Chris. The following appears in the trial court's order granting summary judgment:
Exhibit No. 1 is a document entitled "Arraignment, Judgment Entry and Sentence Hearing," prepared in connection with Chris King's murder trial; Exhibit No. 2 is the Birmingham Police "incident report"; Exhibit No. 12 is a document entitled "Pre-Sentence Report," prepared by the Alabama Board of Pardons and Paroles.
Dunaway contends that the trial court erred in not considering these exhibits, arguing that Exhibits 2 and 12 were admissible under the business records exception to the hearsay rule, and that Exhibit No. 1 was relevant and that the trial court should have taken judicial notice of that document.
Evidence offered in response to a motion for summary judgment, in the form of affidavits or otherwise, must present facts which would be admissible at trial. Whatley v. Cardinal Pest Control, 388 So. 2d 529 (Ala.1980).
Horner v. First National Bank of Mobile, 473 So. 2d 1025 (Ala.1985).
While Rule 56, Ala.R.Civ.P., permits evidence in the form of depositions, answers to interrogatories, admissions on file, and affidavits to be submitted in support of, or in opposition to, a summary judgment motion, that evidence must, nevertheless, conform to the requirements of Rule 56(e) and be admissible at trial. Welch v. Houston County Hosp. Bd., 502 So. 2d 340 (Ala.1987).
The trial court's refusal to consider Chris King's murder conviction, which was referred to in the document entitled "Arraignment, Judgment Entry and Sentence Hearing" (Exhibit No. 1), did not constitute reversible error.
The fact that Chris was convicted of murder is not in dispute. King concedes that Chris was convicted of murdering Dwight Reeves and was sentenced to 20 years in prison. Moreover, Chris admitted his conviction in his deposition. Chris's conviction, although not in dispute, has absolutely no relevance to the issue of negligent entrustment. What occurred on Thanksgiving night of 1984 is completely irrelevant as to Mr. King's knowledge of his son's alleged "violent propensities" before that date. The trial court properly excluded that document on the grounds of relevance.
We have many times held that a police incident report (Exhibit No. 2) is not admissible evidence. Plenkers v. Chappelle, 420 So. 2d 41 (Ala.1982); Worsham v. Fletcher, 454 So. 2d 946 (Ala.1984); C. Gamble, McElroy's Alabama Evidence, § 254.01(8) (3d ed. 1977). The police incident report contained the hearsay statements of Rodney Dunaway regarding the circumstances surrounding Dwight Reeves's death, and did not contain the personal observations of the investigating officer. Therefore, the trial court properly excluded this report.
The pre-sentence report (Exhibit No. 12) is not admissible under the business records exception to the hearsay rule, because no predicate was laid for its admission as a business record. Dunaway attached the pre-sentence report as an exhibit to his brief in opposition to King's motion for summary judgment. For a report such as this to be admissible, the proponent of the report must show that it was made in the regular course of business and that it was the regular course of business to make such a report at the time of the event noted or within a reasonable time thereafter. Rule 44(h), Ala.R.Civ.P. This exhibit was not sufficiently authenticated as a business record.
The essential ingredients of a cause of action for negligent entrustment are: (1) an entrustment; (2) to an incompetent; (3) with knowledge that he is incompetent; (4) proximate cause; and (5) damages. Mason v. New, 475 So. 2d 854, 856 (Ala.1985); Cooter v. State Farm Fire & Casualty Co., 344 So. 2d 496, 498 (Ala. 1977). This Court has recognized that a cause of action for negligent entrustment is not restricted to automobiles, but may include the entrustment of vehicles, boats, firearms, or explosives. Wilbanks v. Brazil, 425 So. 2d 1123, 1125 (Ala.1983); Brown v. Vanity Fair Mills, Inc., 291 Ala. 80, 277 So. 2d 893 (1973). The elements of a cause of action for negligent entrustment of an automobile and negligent entrustment of a firearm, therefore, are the same.
It is the primary negligence of the entrustor in providing a motor vehicle or other dangerous instrumentality to an incompetent person which forms the basis of this cause of action. It is therefore essential that the plaintiff prove that the entrustee *546 was incompetent; i.e., that he is "likely because of his youth, inexperience, or otherwise to use [a chattel] in a manner involving unreasonable risk of physical harm to himself and others." Mason, supra. Not only must the plaintiff prove that the entrustee was incompetent, but the plaintiff must also establish that the defendant knew, or by the exercise of reasonable care, would have known that the entrustee was incompetent. Cooter, supra.
Dunaway failed to prove by admissible evidence that defendant Chris King was incompetent to operate an automobile. There is simply no evidence, admissible or otherwise, through deposition or affidavit that Chris King was incompetent to operate an automobile. Likewise, there is no evidence that he was incompetent to handle a firearm. To the contrary, the only admissible evidence as to Chris's qualifications to handle a gun established that he had been well trained in the use of firearms, was qualified to use firearms, had a permit to carry a pistol because of his work as a security officer, and, prior to this incident, had always used firearms in a professional and safe manner. Further, the deposition testimony of Chris and his parents established that Mr. and Mrs. King were not home when Chris left to go out for the evening. When he returned home and obtained the truck, Mr. and Mrs. King were asleep.
Not only did the plaintiff fail to establish that Chris King was incompetent to operate a vehicle or a handgun, there was no competent evidence that his father had knowledge of such alleged incompetence. The only evidence offered by the plaintiff in support of this requirement was the pre-sentence report. As previously discussed, this report contained hearsay and was clearly inadmissible to defeat King's motion for summary judgment.
Dunaway attempts to imply that William King knew or should have known of his son's alleged "violent propensities." However, Mr. King's deposition reveals that he was aware of only one altercation in which Chris was involved prior to his present offense. Mr. King testified that a gun was not involved in that incident and that Chris was not driving a vehicle at the time. It was his understanding from discussing this incident with other people present that "the other man jumped on Chris first." His knowledge of this one incident which did not involve a gun or a vehicle surely does not constitute knowledge of "violent propensities" exhibited by Chris so as to impose liability upon him for negligent entrustment of a handgun or a vehicle to his 20-year-old son.
Mr. King supported his motion for summary judgment with affidavits and made a prima facie showing that he was entitled to a judgment as a matter of law. The burden then shifted to Dunaway to show through admissible evidence that a genuine issue of material fact existed. This he did not do. Dunaway cannot rely upon the allegations contained in his pleadings or upon inadmissible evidence to defeat a motion for summary judgment. Since Dunaway failed to present competent evidence to contradict that presented by the moving party, the trial court was left with no alternative but to consider that evidence uncontroverted. For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
JONES, BEATTY and STEAGALL, JJ., concur.
MADDOX, J., concurs in the result. | June 30, 1987 |
93737fee-2edd-4b51-8ce9-a2ca368e84ce | Owens v. Coleman | 520 So. 2d 514 | N/A | Alabama | Alabama Supreme Court | 520 So. 2d 514 (1987)
Carrie B. OWENS
v.
Jacqualyne COLEMAN, et al.
85-803.
Supreme Court of Alabama.
July 10, 1987.
*515 Jim H. Fernandez of Allen & Fernandez, Mobile, for appellants.
Bob Sherling of Drinkard & Sherling, Mobile, for appellees.
SHORES, Justice.
This is an appeal from an order of the trial court declaring that the purported last will and testament of Jimmie Lee Coleman, as well as beneficiary designations made by him on a credit union account and life insurance policy, were void due to undue influence and mental incompetence.
In February 1977, Jimmie Lee Coleman was diagnosed as having a brain tumor. Before his death in November of that same year, he undertook several actions bearing on the disposition of his estate. On May 3, 1977, Mr. Coleman designated Dorothy Coleman, his daughter, as beneficiary of the proceeds from his credit union account with Docks and Terminal Credit Union, and on May 22, 1977, he signed a beneficiary card directing proceeds of his Aetna life insurance policy to her also. On August 8, 1977, however, Mr. Coleman signed another change of beneficiary card directing the Aetna policy proceeds to Carrie Owens, his twin sister. On September 20, 1977, he also designated Carrie Owens as beneficiary of the credit union proceeds and redesignated her as beneficiary of the Aetna insurance proceeds. On September 22, Mr. Coleman executed a will leaving his property to Carrie Owens. Finally, on October 27, 1977, Mr. Coleman turned full circle and signed a beneficiary card directing the proceeds of the Aetna policy to his ten children.
Mr. Coleman died on November 14, 1977. His sister, Carrie Owens, offered his will for probate two days later. The deceased's ten children and former wife filed a will contest, which was removed to the Circuit Court of Mobile County. On a joint motion, the will contest was consolidated with an action filed by Carrie Owens seeking payment of proceeds of the Aetna life insurance policy and the Docks and Terminal Credit Union account. Aetna Life and Casualty Insurance Company and Docks and Terminal Credit Union each filed a bill of interpleader, paying into court the sums of $10,000 and $2,816.37, respectively.
The consolidated cases were tried without a jury, and on March 5, 1986, the court entered an order declaring the purported last will and testament of Jimmie Lee Coleman and the beneficiary designations of May 3 and 22, August 8, September 20, and October 27, 1977, void as a result of undue influence. The court ordered payment of all interpleaded funds to the children of the deceased.
*516 On April 4, 1986, within 30 days of the entry of the trial court's order, the defendants, children of the deceased, filed a motion as provided for by Rule 59(e), A.R. Civ.P., to amend the order of March 5 to conform to the evidence that the will and beneficiary designations were void because of mental incompetence. The plaintiff filed a notice of appeal on April 11, 1986. The children's motion was granted on April 17, 1986. No appeal was taken from this order.
The court's original order contains an incorrect statement of law. A beneficiary cannot attack a change of beneficiary designation on the ground of undue influence alone, because he has an interest which is a mere expectancy, which cannot become vested until the death of the insured. Barnett v. Boyd, 224 Ala. 309, 140 So. 375 (1932). However, the court's amended order declares that the will and beneficiary designations are void as the result of mental incompetence. Upon a showing that Coleman was mentally incompetent with "no reasonable perception or understanding of the nature and terms of the contract," the beneficiary designations and will can properly be declared void by the trial court. Williamson v. Matthews, 379 So. 2d 1245, 1247 (Ala.1980). Thus, the amended order in the case at bar served to correct the error in the first order.
The plaintiff contends that the trial court lost jurisdiction over this cause when she filed a timely notice of appeal; therefore, the trial court's amended order, she argues, because it was entered after her notice of appeal was filed, is void. Since the first order is the only judgment before this court to review, she contends, the cause is due to be reversed because the unamended order is erroneous as a matter of law.
The appellant here sought to appeal a judgment while a motion to amend that judgment was pending before the trial court. Under Rule 59(e), A.R.Civ.P., motions to amend the judgment may be filed within 30 days of the entry of judgment by the trial court. Once a post-judgment motion is filed under Rule 59, A.R.Civ.P., the trial judge has 90 days in which to rule, and if he does not, the motion is deemed denied. Rule 59.1, A.R.Civ.P. All appeals must await the disposition of the motion, by formal order or the passage of time, or be dismissed as premature. Accordingly, we hold that Carrie Owens's appeal of the court's original order is due to be dismissed.[1]
Where a post-judgment motion has not been disposed of when the notice of appeal is filed, as in the case at bar, the notice of appeal is of no effect and it must be refiled within 42 days of the disposition of the post-judgment motion either by order or by operation of law under Rule 59.1, A.R.Civ.P.
Nevertheless, consistent with this Court's holding of prospective application in Andrews v. Andrews, 520 So. 2d 507 (Ala.1987), we will not dismiss the appeal, but will determine the issue presented on the merits. Because our review is not restricted to the unamended judgment, and because we find no error in the judgment as amended, the judgment is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, ADAMS, HOUSTON, and STEAGALL, JJ., concur.
BEATTY, J., concurs specially.
*517 BEATTY, Justice (concurring specially):
I concur in accord with the views expressed in my special concurrence in Ex parte Andrews, 520 So. 2d 507 (Ala.1987).
[1] The procedure adopted by this Court in Foster v. Greer & Sons, Inc., 446 So. 2d 605 (Ala.1984), is not applicable to this situation because the judgment in that case lacked finality (C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2821 (1973)), and for that reason would not support an appeal. However, rather than dismiss the appeal, this Court elected to remand to allow the trial court to enter a final judgment. We agree, however, that Foster contains language contrary to our holding in this case. To like effect, see Walker v. Alabama Public Service Comm'n, 292 Ala. 548, 297 So. 2d 370 (1974), and MCI Telecommunication, Inc. v. Alabama Public Service Comm'n, 485 So. 2d 700 (Ala.1986). See, however, the opinion in Andrews v. Andrews, 520 So. 2d 507 (Ala.1987), released simultaneously with this opinion, wherein this Court expressly overrules MCI, Foster, and Walker, to the extent that those cases conflict with Andrews and the instant opinion. | July 10, 1987 |
a68c0bd9-1566-4e98-b965-a8d24bda75a4 | Ex Parte Jenkins | 510 So. 2d 232 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 232 (1987)
Ex parte Ewin B. JENKINS, Jr., M.D., et al.
(In re Billie Michael GASTON, et al.
v.
Walter GALLOWAY, et al.)
86-16.
Supreme Court of Alabama.
June 26, 1987.
John S. Key of Eyster, Key, Tubb, Weaver & Roth, Decatur, for petitioners.
*233 Kevin J. Hawkins and Elizabeth R. Jones of Emond & Vines, Birmingham, for respondents.
STEAGALL, Justice.
The petitioners, Ewin B. Jenkins, Jr., M.D., an individual; Ewin B. Jenkins, Jr., M.D., a professional corporation; William A. Sims, M.D.; Drs. Sims, Sparks and Jenkins, Orthopedic Surgery, seek a writ of mandamus to compel the Circuit Court of Jefferson County to sever and transfer claims made against them, in an amended complaint, from claims against other defendants in the original complaint. We deny the writ.
Billie Michael Gaston (hereinafter "Gaston") and his wife, Fay K. Gaston, filed a complaint on August 15, 1985, in the Circuit Court of Jefferson County against CNA Insurance and against certain supervisory employees and executive officers of the Fruehauf Corporation (hereinafter "employee defendants"). The complaint alleges that on August 23, 1984, while working in the line and scope of his employment with Fruehauf Corporation in Decatur, Alabama, Gaston was injured when a bundle of aluminum sheets fell on him as it was being lifted by a crane. The complaint further alleges that Gaston's injuries were a proximate consequence of negligent and/or wanton conduct of the insurance company and the employee defendants.
On July 31, 1986, Gaston filed an amendment to the original complaint, adding the following defendants: "Ewin Burrow Jenkins, M.D.; Ewin Burrow Jenkins, Jr., M.D., professional corporation; Dyrc Frederick Sibrans, M.D.; William Arthur Sims, M.D.; Decatur Orthopedic Clinic; Drs. Sims, Sparks, and Jenkins, M.D., P.A., Orthopedic Surgery; Decatur General Hospital." The amended complaint alleges that the "said defendants negligently provided medical services to Plaintiff and negligently breached acceptable standards of practice in providing such medical services in that said defendants failed to timely and properly detect, diagnose and treat his condition." The amended complaint also alleges that the conduct of each of the defendants "combined and concurred, and proximately caused the plaintiff's injuries and damages."
The defendants who are the petitioners in the proceeding sub judice filed a joint answer to the amended complaint on August 21, 1986. On September 11, 1986, these defendants filed a motion to sever the claims asserted against them and to transfer the severed action to the Circuit Court of Morgan County. After the trial court overruled the motion to sever and transfer on September 17, 1986, this petition for a writ of mandamus was filed.
Petitioners contend that they were not properly joined as defendants in the original action under Rule 20, A.R.Civ.P. Rule 20(a) provides for permissive joinder of defendants as follows:
According to petitioners, the trial court should have ordered a severance because the events giving rise to the original action against the employee defendants and those giving rise to the subsequent action against the medical providers are separate and distinct.
In Guthrie v. Bio-Medical Laboratories, 442 So. 2d 92 (Ala.1983), the plaintiffs, parents of a child born with injuries allegedly attributable to the Rh incompatability between the mother and child, filed suit against a number of defendants, including a medical laboratory that had inaccurately typed the mother's blood more than four years prior to the child's birth and including three physicians who had treated and performed blood testing of the mother after she became pregnant. The trial court ordered a severance of the action against the three physicians and transferred the action against them. The plaintiffs petitioned for a writ of mandamus compelling the trial court to vacate its order severing *234 and transferring the action against the three physicians.
In granting the writ of mandamus, the Guthrie Court determined that under Rule 20, A.R.Civ.P., the plaintiffs were entitled to join the defendants in one action. Addressing the argument that the alleged mistyping by the medical laboratory had no effect on the treatment provided by the three physicians, the Court stated:
Guthrie, 442 So. 2d at 96.
In the case presently before this Court, the original complaint and the amended complaint allege that each defendant was negligent and that as a proximate result Gaston sustained the injuries for which he seeks to recover damages. The claims asserted by Gaston arose out of the same series of occurrences that began with his injury at his place of employment and continued with his resulting hospitalization and treatment for that original injury. The action filed by Gaston presents factual questions common to all defendants with regard to damages and proximate cause. Thus, under the provisions of Rule 20(a), A.R.Civ.P., the plaintiffs may join the defendants in one action.
Severance of a claim from the original action, as established by Rule 21, A.R. Civ.P., creates a new action in which an independent judgment results. Key v. Robert M. Duke Insurance Agency, 340 So. 2d 781, 783 (Ala.1976). A severance of the claims against the petitioners in this case from the other defendants would result in two separate actions and would present the possibility of inconsistent judgments. By joining all the defendants in this one action, consistency of result, as well as judicial economy, will be promoted. See Committee Comments, Rule 20, A.R.Civ.P.
"Mandamus itself is an extraordinary remedy which should only be granted when there is a clear showing that the trial court abused its discretion and exercised it in an arbitrary or capricious manner." Ex parte Hartford Insurance Co., 394 So. 2d 933, 936 (Ala.1981). We are unable to find an abuse of discretion by the trial court in overruling the motion to sever and transfer claims made against the petitioners. Therefore, the writ of mandamus is denied.
WRIT DENIED.
JONES, ALMON, SHORES and ADAMS, JJ., concur. | June 26, 1987 |
337f51f0-0837-4e6f-ab3c-f0e6ee373672 | Campbell v. Burns | 512 So. 2d 1341 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1341 (1987)
Rena S. CAMPBELL
v.
Jeff BURNS.
86-322.
Supreme Court of Alabama.
July 31, 1987.
*1342 Thomas A. Woodall of Rives & Peterson, Birmingham, for appellant.
John W. Haley of Hare, Wynn, Newell & Newton, Birmingham, for appellee.
HOUSTON, Justice.
A jury awarded $135,000 to Jeff Burns, a pedestrian involved in a collision with a motor vehicle driven by Rena S. Campbell, for personal injuries sustained in the motor vehicle-pedestrian collision. The case went to the jury with instructions on negligence, contributory negligence, and subsequent negligence. Ms. Campbell appeals. We affirm.
The two issues presented for review are:
1) Was there any evidence requiring an instruction on subsequent negligence?
2) Does the evidence clearly indicate that the jury verdict was wrong and unjust?
Subsequent negligence can be the basis of a recovery under a count charging simple negligence. However, there must be some evidence requiring an instruction on subsequent negligence. Owen v. McDonald, 291 Ala. 572, 285 So. 2d 79 (1973).
Treadway v. Brantley, 437 So. 2d 93, 97 (Ala.1983).
The trial court gave Alabama Pattern Jury Instruction 28.07 ("Subsequent Negligence"), which is a correct statement of the law of subsequent negligence. This was timely objected to by defendant Campbell on the grounds that there was no evidence that she had actual knowledge that the plaintiff was in a position of danger; that there was no evidence that she had failed to use reasonable and ordinary care; that there was no evidence that she could have avoided the accident if she had used reasonable and ordinary care; that this was an emergency so sudden that there was no time to avoid the accident; and that the charge was not supported by the facts of the case.
The scintilla rule is the standard of evidence review that this Court must apply. Allstate Enterprises, Inc. v. Alexander, 484 So. 2d 375 (Ala.1985).
Is there any evidence, or are there any logical inferences that can be drawn from the evidence, that Ms. Campbell had actual knowledge that Burns was in a position of peril? Reviewing the tendencies of the evidence most favorably to the prevailing party, as we are required to do, Mid-Continent *1343 Refrigerator Co. v. Fulton Grocery, Inc., 503 So. 2d 1222 (Ala.1987), we conclude that there was.
There was evidence that Ms. Campbell saw Burns as he exited the door of the Drift In Lounge and had him in sight until the collision occurred; Burns "was walking slowly" and "wasn't moving real fast"; Ms. Campbell's automobile was 300 feet from Burns when Burns walked out in front of her. There is a scintilla of evidence that Ms. Campbell had actual knowledge that Burns was in a position of peril.
Is there any evidence that Ms. Campbell failed to use reasonable and ordinary care in avoiding the accident? Reviewing the tendencies of the evidence most favorably to Burns, we find there was. According to one witness, Ms. Campbell's car did not slow down at any time before the collision. Ms. Campbell testified that after she saw Burns she took her "foot off the gas." She knew that Burns was coming toward the street she was driving in. She did not sound her horn. She did not know how far she traveled with her foot off the accelerator pedal before she applied her brakes. Her vehicle hit Burns forcefully enough to knock him 50 to 70 feet, to break his leg, his pelvic bone, his shoulder in three places, his wrist, his fingers, and his ankle. There is a scintilla of evidence that Ms. Campbell failed to use reasonable and ordinary care to avoid the accident.
Is there any evidence that Ms. Campbell could have avoided the accident if she had used reasonable and ordinary care, or was this an emergency so sudden that there was not enough time for her to avoid the accident?
In Norwood Transportation Co. v. Bickell, 207 Ala. 232, 92 So. 464 (1922), we wrote:
207 Ala. at 234, 92 So. at 466. See also, Owen v. McDonald, 291 Ala. 572, 285 So. 2d 79 (1973); and Johnson v. Coker, 281 Ala. 14, 198 So. 2d 299 (1967).
Photographs of the accident scene were introduced. Testimony was given by witnesses as to the relative locations of Burns and of Ms. Campbell's vehicle from the time Burns left the Drift In Lounge until the collision. There was evidence that Ms. Campbell was 300 feet from Burns when he first stepped into the street. Clearly, Ms. Campbell did not immediately apply her brakes or sound her horn or attempt to turn her car to the right or left. By her lowest estimate she was going 20 M.P.H. when she removed her foot from the accelerator. From the evidence, the jury could infer that Ms. Campbell could have avoided the accident if she had used reasonable and ordinary care.
From the foregoing discussion, it is evident that the subsequent negligence charge was supported by the evidence. There is no merit in the first issue presented for review.
Does the evidence clearly indicate that the jury verdict was wrong and unjust? We are persuaded that it does not.
Upon review of a jury verdict, we presume that the verdict was correct; we review the tendencies of the evidence most favorably to the prevailing party; and we indulge such reasonable inferences as the jury was free to draw from the evidence. We will not overturn a jury verdict unless the evidence against the verdict is so much more credible and convincing to the mind than the evidence supporting the verdict that it clearly indicates that the jury's verdict was wrong and unjust. Mid-Continent Refrigerator Co. v. Fulton Grocery, Inc., supra.
Certainly, there was ample evidence for a jury to find initial legal liability on the part of Ms. Campbell and contributory negligence on the part of Burns. There was evidence that Ms. Campbell was driving on the city streets of Birmingham at night without her headlights on. There was also evidence from which the jury could infer that Ms. Campbell was driving without wearing her glasses, which were required *1344 for driving. Burns was crossing a roadway at a point at which he was required by law to yield the right-of-way to all vehicles upon the roadway. By his own admission, Burns had been drinking alcoholic beverages. His blood alcohol level was .298%, and "[t]he average individual at this alcohol level would be in a confused and dazed state due to the effects of alcohol taking away his ability to react with his environment and reason and think and recall from memory, and he would exhibit signs of slurred speech, motor impairment, staggering-type gait."[1]
There was sufficient evidence for the subsequent negligence issue to go to the jury. As an appellate court, we have neither the right nor the inclination to say whether we would have decided this case differently. The facts are to be determined by the jury and not by us. The evidence against the verdict is not so much more credible and convincing to the mind than the evidence supporting the verdict that it clearly indicates that the jury's verdict was wrong and unjust.
AFFIRMED.
MADDOX, ALMON, BEATTY and ADAMS, JJ., concur.
[1] From the trial testimony of forensic toxicologist, H. Chip Walls. | July 31, 1987 |
07609534-ef9e-4f82-b103-581bcb8c8c83 | Lipscomb v. Reed | 514 So. 2d 949 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 949 (1987)
Albert D. LIPSCOMB and Bonnie Lipscomb
v.
Clinton A. REED, et al.
SAFECO INSURANCE COMPANY OF AMERICA
v.
Albert D. LIPSCOMB and Bonnie Lipscomb.
86-447, 86-525.
Supreme Court of Alabama.
September 18, 1987.
E.L. Brobston, Bessemer, for cross-appellees.
James R. Shaw of Huie, Fernambucq and Stewart, Birmingham, for cross-appellants.
HOUSTON, Justice.
Effective January 1, 1985, underinsured motorist coverage in insurance policies may be stacked, within certain statutory limits. See, § 32-7-23, Code of Alabama 1975, as amended. This case involves an automobile accident that occurred on September 5, *950 1981, before the effective date of this amendment. At the time of the accident, Albert Lipscomb had an automobile insurance policy written by Safeco Insurance Company that covered Mr. Lipscomb's four automobiles. The Safeco policy included "underinsured motorist coverage." The limit of coverage for each automobile was $50,000. On September 5, 1981, Clinton A. Reed, a 16-year-old driver, was operating an automobile that collided with an automobile driven by Mr. Lipscomb. Reed was traveling at a high rate of speed and was being pursued by deputy sheriffs at the time he collided with Mr. Lipscomb's automobile. Mr. Lipscomb received serious facial injuries and bruises and received strains in various parts of the body. Reed was covered by liability insurance with policy limits of $10,000. Safeco's position was that the limit of its responsibility was $41,000, viz.: $50,000 minus the $10,000 paid by Reed's carrier, plus $1,000 medical payment coverage. Safeco released its subrogation rights against Reed and paid $41,000 to Lipscomb. At that time there was an agreement that by accepting the total payment of $51,000, the Lipscombs (Mrs. Lipscomb claimed loss of consortium) would not prejudice in any way their right to pursue an additional $150,000 from Safeco, the balance of the $200,000 which was the total amount of underinsured motorist coverage if such coverage could be stacked. The Lipscombs brought this action against Reed[1] and Safeco. The trial court denied Safeco's motion for summary judgment, and ruled in effect, that under the terms of the underinsured provisions of the policy underinsurance coverage could be stacked. (Safeco's cross-appeal argues that this was error.)
The trial court refused to submit the matter of punitive damages to the jury, and instructed the jury that "the only issue that is being submitted to you [is] the damages that the plaintiff suffered as result of the accident." The jury returned a verdict in Lipscomb's favor for $25,000. Since the award was less than the amount already paid, the effect of the verdict was to award no additional monies. The trial court entered a judgment in accordance with that verdict. Safeco has waived any right to a refund of the $26,000 paid by it that was in excess of the jury's verdict. After the denial of post-trial motions, the Lipscombs appealed.
It is not necessary at this point to set out the issues upon which the Lipscombs base their appeal. The stacking issue must be addressed first, because if stacking is excluded under the policy, the full limits of the coverage have been paid; therefore, because the Lipscombs would have obtained all that they legally could obtain from Safeco and Reed, any of the Lipscombs' alleged errors would be errors without injury. Abbott v. Allstate Ins. Co., 507 So. 2d 905 (Ala.1987); Keith v. Bush, 512 So. 2d 1354 (Ala.1987).
The Lipscombs concede this in their excellent brief: "Although the trial court ruled favorably to the plaintiff on the issue of stacking, the plaintiff here concedes that if the court erred in ruling under the provisions of the policy made the subject of this suit, all other matters urged by the plaintiff on appeal would be harmless...."
At the time of the accident, stacking of the underinsured policies was not statutorily mandated and was governed by the language of the policy itself. Smith v. Auto-Owners Ins. Co., 500 So. 2d 1042 (Ala.1986).
In Smith, at 1046, this Court wrote as follows:
In applying these principles to the case at bar, we find that the policy is not ambiguous. It clearly limits Safeco's liability to any one person in a single accident to the amount expressed in the "uninsured and underinsured motorist" declaration of coverage, less the sum of the limits of liability under Reed's insurance coverage. The "uninsured and underinsured motorist" declaration of coverage was limited to $50,000 for each person.
The first subdivision, designated "(2)" under the uninsured motorist coverage in the policy, in pertinent part provides:
"LIMITS OF LIABILITY:
A "SUPPLEMENTARY UNINSURED MOTORIST INSURANCE" provision was attached to the policy. It amended the above quoted section to include "underinsured motor vehicle":
Safeco's underinsured motorist coverage and uninsured motorist coverage, regardless of the number of automobiles to which the policy at issue applied, would be limited to the bodily injury liability stated in the declarations as applicable to each person ($50,000), subject to the following provisions:
"1. Limits of Liability:
These "subject to" provisions clearly are inserted to show that there is a distinction between underinsured coverage and the uninsured coverage. This difference in the wording, which we have emphasized, is the inclusion of the last clause of Section 1(b), "less the sum of the limits of liability under all bodily injury bonds and insurance policies (other than this policy) applicable at the time of the accident." This clause is not found in Section 1(a).
Prior to January 1, 1985, insurers could prohibit the stacking of underinsurance motorist coverage by using "clear and unambiguous" policy language. Smith v. Auto-Owners Ins. Co., 500 So. 2d 1042 (Ala.1986); United Services Automobile Ass'n v. Smith, 57 Ala.App. 506, 329 So. 2d 562 (1976). Ambiguities will not be inserted by this Court, by strained and twisted reasoning, into insurance contracts where no such ambiguities exist. Billups v. Alabama Farm Bureau Mutual Casualty Insurance Co., 352 So. 2d 1097 (Ala.1977), appeal *952 after remand, 366 So. 2d 1109 (Ala.1979). The policy is intended to be read as a whole. Therefore, isolated sentences are not to be construed alone, but in connection with the other provisions of the policy. Smith v. Kennesaw Life & Accident Insurance Co., 284 Ala. 12, 221 So. 2d 372 (1969). When the policy in the case at issue is so read, one must conclude that Safeco prohibited the stacking of underinsured motorist coverage by "clear and unambiguous" policy language.
The Safeco policy clearly limits Safeco's liability to any one person (or, if there is a loss of consortium claim, to the person and that person's spouse) in a single accident to the amount expressed in the underinsured declaration less the amount paid to the insured by the insurance of the tort-feasor or tort-feasors.[2]
There is no pool from which the Lipscombs can recover more than they have already accepted. Therefore, we do not reach the other important issues raised by the Lipscombs in their briefs, viz.:
The trial court's ruling that the underinsured motorist coverage could be stacked was erroneous. Neverthelessbecause 1) under the policy language the plaintiffs were entitled to no additional money, and 2) because the effect of the judgment, based as it was, on the jury's verdict, was to award no additional money, and 3) because Safeco has waived any right to a refund of the amount paid in excess of the jury's verdictthe judgment is due to be affirmed.
AFFIRMED.
MADDOX, ALMON, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
TORBERT, C.J., and JONES, J., not sitting.
[1] The Lipscombs entered into a settlement with Reed and he was dismissed from the case.
[2] In Smith v. Auto-Owners Ins. Co., supra, a majority of this Court applied the "reasonable expectation" doctrine when the underinsured motorist coverage equaled the minimum liability insurance attainable, pursuant to the public policy expressed in the Alabama Motor Safety-Responsibility Act (§§ 32-7-1 et seq., Code 1975). This doctrine is not relevant in the case at issue. | September 18, 1987 |
9db68b30-1f4a-48da-851b-3f3f15b5275a | Sheetz, Aiken & Aiken, Inc. v. SPANN ETC., INC. | 512 So. 2d 99 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 99 (1987)
SHEETZ, AIKEN & AIKEN, INC., et al.
v.
SPANN, HALL, RITCHIE, INC.
86-410.
Supreme Court of Alabama.
July 24, 1987.
John E. Byrd, Dothan, for appellants.
*100 E.L. McCafferty III and Dennis McKenna, of Inge, Twitty, Duffy, Prince & McKenna, Mobile, for appellee.
SHORES, Justice.
This is an appeal from a summary judgment in favor of a third-party defendant, Spann, Hall, Ritchie, Inc. We affirm.
On October 1, 1980, the Dothan Assisted Housing Corporation, hereinafter referred to as DAHC, entered into a development contract with the Atlanta-based architectural firm of Sheetz, Aiken & Aiken, Inc., hereinafter referred to as "Sheetz." In the contract, Sheetz, as developer and architect, agreed to design and oversee the construction of a subsidized housing project in Dothan, Alabama, as well as to act as the inspecting architect, making weekly inspections and reports to DAHC of observed defects or deficiencies. Sheetz also agreed to verify and certify that the project, upon completion, complied with the plans and specifications as originally drafted by Sheetz, and that final payment was appropriate.
Prior to execution of the development contract, Sheetz contacted Spann, Hall, Ritchie, Inc., hereinafter referred to as "Spann," with the intention of hiring it to serve as the inspecting architect designated in the development contract. Spann refused, but in a contract entered into with DAHC on August 8, 1980, Spann agreed to provide the limited architectural service of verifying monthly payments to the contractor under the contract. The contract between DAHC and Spann more particularly described Spann's duties and liabilities as architect as follows:
DAHC filed suit against two defendants, Sheetz and Albert G. Smith, Inc., the firm hired by Sheetz to do the actual construction on the housing project. The complaint alleges that Sheetz breached its contract with DAHC by failing to deliver a building free of defect and constructed in accordance with the plans and specifications set forth in the contract. The complaint also contains allegations that both defendants breached implied warranties of habitability, that Sheetz fraudulently failed to comply with the plans and specifications of the contract, and that Sheetz fraudulently misrepresented *101 the quality of the materials and workmanship used on the project.
After service of the complaint, Sheetz filed a third-party complaint against a number of defendants, including Spann. In the third-party complaint, Sheetz incorrectly designated Spann by the corporate name of Phillip Spann and Associates, Inc., a corporation formed by Phillip Spann after the dissolution of Spann, Hall, Ritchie, Inc., on October 25, 1983. In January of 1986, on motion of Sheetz, Spann was substituted as the correct party.
Sheetz alleged liability on the part of Spann as follows:
Spann filed a motion to dismiss and a motion for summary judgment, asserting, inter alia, that the plaintiff was not a third-party beneficiary. The motion for summary judgment was based primarily on the pleadings, copies of the contracts between DAHC and Spann and between DAHC and Sheetz, and testimony of Francis Sheetz and Paul Carpenter, executive director of DAHC. Transcripts of the testimony referred to in the motion for summary judgment were not filed with the clerk until September 1986, after the summary judgment had been granted.
Sheetz did not file any opposing evidence or counter-affidavits prior to the July 23, 1986, court order granting the motion for summary judgment. However, on August 22, 1986, Sheetz filed a motion to reconsider, accompanied by exhibits and the affidavit of Francis Sheetz. The motion was deemed denied 90 days later, on November 20, 1986 (Rule 59.1, A.R.Civ.P.), and this appeal followed.
On appeal, Sheetz contends that the trial court should not have considered the testimony referred to in Spann's motion for summary judgment, because the transcripts of the testimony were not actually filed with the court until after the summary judgment was granted. We agree.
It is well recognized that "`[t]he trial court can consider only that material before it at the time of submission of the motion' and that any material filed thereafter `comes too late'". Osborn v. Johns, 468 So. 2d 103, 108 (Ala.1985) (quoting Guess v. Snyder, 378 So. 2d 691 (Ala.1979)). Putting the affidavits aside, however, there was still ample evidence from which the trial court could conclude that summary judgment was proper in this case.
To recover under a third-party beneficiary theory, the complainant must show: 1) that the contracting parties intended, at the time the contract was created, to bestow a direct benefit upon a third party; 2) that the complainant was the intended beneficiary of the contract; *102 and 3) that the contract was breached. Stacey v. Saunders, 437 So. 2d 1230 (Ala. 1983); Sly v. South Central Bell, 387 So. 2d 137 (Ala.1980); Federal Mogul Corp. v. Universal Construction Co., 376 So. 2d 716 (Ala.Civ.App.1979) (cert den.). It is clear from the express language of the contract between DAHC and Spann that they did not intend to bestow a benefit upon Sheetz. The contract expressly states that Spann is not responsible in any fashion for the acts or omission of the contractor, subcontractors, agents, or employees performing the work. The contract also states that Spann:
Sheetz's duties and responsibilities as inspecting architect to file weekly reports of defects and deficiencies in the project, and on completion, to verify and certify that the project was in accordance with the agreed-upon plans and specifications, were clearly mutually exclusive from Spann's limited role of determining the amount owing on the contract for direct construction costs and approving applications for payment of such amounts. Moreover, there is absolutely no evidence that Spann breached its contract with DAHC. Accordingly, we hold that Sheetz was not a third-party beneficiary of the contract between Spann and DAHC.
Because there is no genuine issue of material fact, the judgment of the trial court is affirmed. Rule 56, A.R.Civ.P.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur. | July 24, 1987 |
c0ffbdd7-e209-4039-b4fb-fb55093d965d | Ex Parte Andrews | 520 So. 2d 507 | N/A | Alabama | Alabama Supreme Court | 520 So. 2d 507 (1987)
Ex Parte: Beverly Nesbitt ANDREWS.
(In re: Beverly Nesbitt ANDREWS v. Marvin Nathaniel ANDREWS, Jr.)
85-1455.
Supreme Court of Alabama.
July 10, 1987.
*508 W. Eugene Rutledge and Kay S. Kelly, Birmingham, for petitioner.
Jesse P. Evans III, of Corretti & Newsom, Birmingham, for respondent.
SHORES, Justice.
We granted the writ of certiorari in this case to address a procedural issue: the effect of a timely filed notice of appeal (governed by Rule 4, A.R.App.P) on a timely post-judgment motion to alter, amend, or vacate a judgment (governed by Rules 52 and 59, A.R.Civ.P.)a material question of first impression in the State of Alabama.
The issue in this case arises from a divorce proceeding in the Circuit Court of Jefferson County. That court entered a final judgment of divorce on December 17, 1985, and on January 10, 1986, it extended the final judgment of divorce to include an income withholding provision.
On January 14, 1986, Beverly Andrews, the plaintiff, filed a notice of appeal to the Court of Civil Appeals. This was followed on January 16, 1986, by a motion of Marvin Andrews, the defendant, to alter, amend, or vacate the final judgment of divorce.
Beverly Andrews filed in the trial court a document on February 4, 1986, styled "Plaintiff's/Appellant's suggestion on the record of lack of jurisdiction," in which she argued that the trial court did not have jurisdiction to rule on the defendant's motion because of the pendency of her appeal before the Alabama Court of Civil Appeals. On February 10, 1986, defendant's motion to alter, amend, or vacate was dismissed by the trial court. On March 21, 1986, Mr. Andrews filed a notice of cross-appeal from the order dismissing his motion to alter, amend, or vacate the final judgment of December 17, 1985. On March 25, 1986, the plaintiff filed a motion with the Court of Civil Appeals to dismiss the defendant's cross-appeal, contending that the time for filing a cross-appeal had expired.
The Court of Civil Appeals, 520 So. 2d 505 (1986), dismissed the plaintiff's appeal as premature and ruled that the trial court improperly dismissed the defendant's post-trial motion that was timely filed, but filed after the plaintiff's notice of appeal from the December 17, 1985, final judgment. We agree with the Court of Civil Appeals' construction of Rule 4, A.R.App. P., vis-a-vis Rule 59(e), A.R.Civ.P.
In the case at bar, both the notice of appeal and the postjudgment motion to alter, amend, or vacate were timely under the rules. According to Rule 59(e), A.R. Civ.P., motions to alter, amend, or vacate the judgment must be filed within 30 days of the entry of judgment by the trial court. A notice of appeal must be filed within 42 days of the entry of the judgment or order appealed from. Rule 4(a)(1), A.R.App.P.
The Court of Civil Appeals is correct in its observation that the rules, both the Rules of Civil Procedure and the Rules of *509 Appellate Procedure, fail to address specifically the effect of the filing of a timely post-trial motion upon the right to file an appeal, or vice versa. The rules do say, however, that the filing of a motion pursuant to Rules 50, 52, 55, or 59, A.R.Civ.P., shall suspend the running of the time for filing a notice of appeal:
Rule 4(a)(3), A.R.App.P.
The construction adopted by the Court of Civil Appeals comports with reason and justice and follows the spirit of Rule 1, A.R.Civ.P., and Rule 1, A.R.App.P. It is also consistent with the Federal Rules of Appellate Procedure, after which the Alabama Rules of Appellate Procedure were modeled. Until 1979, the Federal rules, like the Alabama rules, were also silent as to the effect of the filing of a post-judgment motion upon the right to appeal. Federal Rule 4(a) stated that the timely filing of a post-trial motion "terminated, as to all parties" the running of the time within which an appeal could be taken. The Alabama rule quoted above provides that the filing of a post-judgment motion suspends the running of the time for filing a notice of appeal. The federal rules were amended in 1979 to add the following language of Rule 4(a)(4), F.R.App.P.:
An appeal filed within 42 days of the judgment is timely. Rule 4(a)(1), A.R.App.P. However, a post-judgment motion to alter, *510 amend, or vacate is also timely if filed within 30 days of the entry of judgment. If both are timely filed, the time for properly taking an appeal is suspended until the motion is formally ruled on or denied by operation of law. The notice of appeal must then be refiled within 42 days of the order or the denial by operation of law. By this construction, a party's right to appeal is not taken away; it is simply delayed so that the other party's right to file a post-judgment motion and get a ruling thereon is preserved.
We hold that a notice of appeal filed within 30 days of judgment does not divest the trial court of jurisdiction to receive post-judgment motions to alter, amend, or vacate that are timely filed within 30 days of the judgment and to rule thereon within 90 days of the filing of the motion as permitted under Rule 59.1, A.R.Civ.P. A notice of appeal may be filed by the dissatisfied party within 42 days after the trial court rules on the motion or it is denied by operation of law.
It is true, as the petitioner argues, that the holding of Walker v. Alabama Public Service Comm'n, 292 Ala. 548, 297 So. 2d 370 (1974), and of the cases therein cited, is to the contrary. For subsequent cases containing language to like effect, see MCI Telecommunication, Inc. v. Alabama Public Service Comm'n, 485 So. 2d 700 (Ala.1986); Foster v. Greer & Sons, Inc., 446 So. 2d 605 (Ala.1984). To the extent that Walker, Foster, and MCI hold that the filing of a notice of appeal ousts the trial court of jurisdiction to consider a timely-filed post-judgment motion, those cases are expressly overruled. A notice of appeal does not oust the trial court of its jurisdiction to consider a timely-filed post-judgment motion, and this is the rule without regard to the sequence in which the notice of appeal and the post-trial motion are filed. See Owens v. Coleman, 520 So. 2d 514 (Ala.1987) (post-trial motion filed before the notice of appeal). It is clear from the comment to the 1979 amendment to Rule 4(a)(4), F.R.App.P. (set out in footnote 1) that the purpose of the amendment was to remove an ambiguity in the preexisting language of the rule; thus, we overrule prior case law to the contrary and will forthwith request the Alabama Supreme Court Standing Committee on Alabama Rules of Appellate Procedure to draft an amendment to Rule 4(a), A.R.App.P., in accordance with this opinion.
We agree with the Court of Civil Appeals in the case at bar that the trial court had jurisdiction to rule on the defendant's motion to alter, amend, or vacate the judgment, and that the defendant's cross-appeal was timely filed on March 21, 1986, within 42 days of the trial court's order dismissing his motion for want of jurisdiction. Rule 4(a)(3), A.R.App.P.
We affirm the Court of Civil Appeals' holding that the timely filing of a post-judgment motion authorizes the trial court to rule on the motion and that a notice of appeal filed before disposition of the post-judgment motion has no effect. However, we acknowledge that equity compels a review of the trial court's order of January 10, 1986, in this case. At the time Mrs. Andrews filed her notice of appeal from this order, there was no rule or decision that clearly foreclosed review. It would be inequitable to deny her a hearing on the merits of her appeal, notwithstanding our holding herein.
Therefore, the cause is affirmed in part, reversed in part, and remanded to the Court of Civil Appeals for its consideration of Mrs. Andrews's appeal.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.
TORBERT, C.J., and MADDOX, JONES, ALMON, ADAMS, HOUSTON and STEAGALL, JJ., concur.
BEATTY, J., concurs specially.
BEATTY, Justice (concurring specially):
To the extent the majority's opinion is predicated on this Court's adoption of the 1979 amendment to Rule 4(a)(4), F.R. App.P., to be applied prospectively, I concur. It is quite clear to me, however, that the result called for by the language of that amendment cannot be reached by an interpretation or construction of the Alabama Rules of Appellate Procedure *511 ("Rules") as they are presently written. Insofar as Walker v. Alabama Public Service Comm'n, 292 Ala. 548, 297 So. 2d 370 (1974); MCI Telecommunication, Inc. v. Alabama Public Service Comm'n, 485 So. 2d 700 (Ala.1986); and Foster v. Greer & Sons, Inc., 446 So. 2d 605 (Ala.1984), apply widely recognized principles of jurisdiction that are embodied in our Rules, they are sound decisions and are required to be overruled only because we now adopt, in effect, a new rule that affects common notions of jurisdiction.
With respect to the proper interpretation of our Rules, as they are currently written, it is clear that the drafters of the Rules intended the filing of a notice of appeal to have the very effect it was held to have in Walker, i.e., it is jurisdictional. In the "Preface" to the Rules, it is stated: "The timely filing of a notice of appeal with the trial clerk is the only jurisdictional act required in the entire appellate process." (Emphasis added.)
Rule 2(a)(1), A.R.App.P., provides that "[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court." (Emphasis added.)
Rule 3(a)(1), A.R.App.P., provides in part:
The comment to Rule 3 explains the significance of the filing of a notice of appeal:
Before the 1979 amendment to Rule 4, F.R.App.P., it had been the general rule in federal courts that, when a notice of appeal had been filed prior to the assertion of a posttrial motion under Rule 59, F.R.Civ.P., jurisdiction of the action had already passed to the court of appeals and the district court could not consider the motion unless the court of appeals remanded the case to it for that purpose. See generally, 6A Moore's Federal Practice § 59.09[5] (1986) (hereinafter cited as "___ Moore's § ___") and those cases cited therein; 9 Moore's § 203.11 and § 204.12[1] and those cases cited therein; Wright & Miller, Federal Practice & Procedure Civil § 2821 (1973).
The effect of the 1979 amendment to Rule 4(a)(4), F.R.App.P., is very well explained in the following passage:
The state of the law in Alabama, prior to this Court's decisions in the present case and in Owens v. Coleman, 520 So. 2d 514 (Ala.1987), at least with respect to the effect the filing of a notice of appeal had upon a trial court's power to receive and consider a subsequent post-trial motion, was the same as that which existed in the federal law prior to 1979. The filing of a timely notice of appeal effectively removed a case from the trial court's jurisdiction. See Walker, supra (a case cannot be pending in a lower court and in an appellate court at the same time); McLaughlin v. Beyer, 181 Ala. 427, 61 So. 62 (1913) ("the effect of [an] appeal [is] to cause the trial court to lose all jurisdiction and control of the case pending the appeal"); and Rules 3 and 4, A.R.App.P.
Admittedly, on facts such as those in this case, our present Rules facilitate a "race to file" either a notice of appeal or a post-judgment motion. And, although the substance of the federal amendment is not free from difficulties, I think that solution is preferable in that it preserves a party's right to pursue post-judgment relief at the trial level, albeit perhaps at the opposing party's inconvenience of having to file a second notice of appeal.
[1] The following comment accompanied the recommended 1979 rewrite of that federal rule:
"Note to Subdivision (a)(4). The proposed amendment would make it clear that after the filing of the specified post trial motions, a notice of appeal should await disposition of the motion. Since the proposed amendments to Rules 3, 10, and 12 contemplate that immediately upon the filing of the notice of appeal the fees will be paid and the case docketed in the court of appeals, and the steps toward its disposition set in motion, it would be undesirable to proceed with the appeal while the district court has before it a motion the granting of which would vacate or alter the judgment appealed from. See, e.g., Keith v. Newcourt [Inc.,], 530 F.2d 826 (8th Cir.1976). Under the present rule, since docketing may not take place until the record is transmitted, premature filing is much less likely to involve wasted effort. See, e.g., Stokes v. Peyton's Inc., 508 F.2d 1287 (5th Cir.1975). Further, since a notice of appeal filed before the disposition of a post trial motion, even if it were treated as valid for purposes of jurisdiction, would not embrace objections to the denial of the motion, it is obviously preferable to postpone the notice of appeal until after the motion is disposed of.
"The present rule, since it provides for the `termination' of the `running' of the appeal time, is ambiguous in its application to a notice of appeal filed prior to a post trial motion filed within the 10 day limit. The amendment would make it clear that in such circumstances the appellant should not proceed with the appeal during pendency of the motion but would file a new notice of appeal after the motion is disposed of." | July 10, 1987 |
ae6cbe8b-9a7e-4e46-ad3a-4ba9c97d804b | Braswell v. Malone | 78 So. 2d 631 | N/A | Alabama | Alabama Supreme Court | 78 So. 2d 631 (1955)
Virginia S. BRASWELL
v.
Major C. MALONE et al.
6 Div. 694.
Supreme Court of Alabama.
March 10, 1955.
*632 Ling & Bains, Bessemer, for appellant.
Lowe & Williams, Birmingham, and G. P. Benton, Fairfield, for appellees.
PER CURIAM.
This is an appeal by Virginia S. Braswell, a married woman, by filing an affidavit as authorized by section 799, Title 7, Code. The decree from which this appeal is taken is dated September 18, 1953. A bill in equity had been filed on March 17, 1953 by appellant and her husband, John O. Braswell. The respondents are alleged to be Major C. Malone, Garrett L. Jones, the Jefferson Federal Savings and Loan Association, and the Seale Lumber Company.
The bill alleges, in substance, that complainants entered into a contract with said Jones and Malone (date not given) to furnish all material and labor and to build a house for them at an agreed price of $8,700, the house to be completed by October 1, 1952; that the contractors entered upon the performance of the contract; that the contract was not performed by them by October 1st, nor October 20, 1952, on which day they abandoned the work. That on January 3, 1953, complainants and Jones, one of the respondent contractors, entered into another contract for a completion of the job, fixing the contract price at $7,905 as of that date; that on March 11, 1953, the said Jones had failed to complete his contract and was without resources to do so; that he gave complainants a detailed estimate of the cost of completing the contract, aggregating $2,620.50; that his creditors' claims amounted to $4,903.54, and that complainants had paid Jones or his creditors $3,003.18. The bill further alleges that complainants executed a mortgage to the Jefferson Federal Savings and Loan Association in the sum of $6,750 to be used in paying for the construction of the house; that the association did not make the advance in full; and that respondent Seale Lumber Company had filed a bill in that court seeking to enforce a lien on the property for materials furnished, and to sell said property to enforce it.
The prayer is for (A) a declaration that Malone forfeited all rights under the contract on account of its abandonment; (B) that Jones be required to specifically perform his contract of "February" (January?) 3, 1953; or, in the alternative, that said contract be cancelled; (C) that Jones be required under oath to furnish the name and address of all materialmen and laborers employed on the job and the amounts paid or owing each; (D) that the Jefferson Federal Savings and Loan Association "be *633 required under a writ of specific performance (?) to honor vouchers for labor and materials to the total amount of $6750.00", or, in the alternative, to cancel said note and mortgage; (E) issue an order restraining the further prosecution of the suit by Seale Lumber Company (No. 13970); (F) that complainants be authorized to enter into a new contract with a contractor for the completion of the said house; (G) that complainants' total liability for the construction of the house be fixed at $8,700 less amounts for various specified causes; that the cost of completing the construction of the house be charged against the contract price and any bills for which complainants are directly liable be then fixed and paid and the remaining bills for labor and materials accumulated by Malone or Jones be paid pro rata from the balance remaining in the hands of complainants not charged against the contract price. Paragraph (H) of the prayer is that "this cause be set down for hearing to determine whether a temporary mandatory writ of specific performance (?) shall be issued" to said Jones to complete the construction of the house in accordance with his agreement, and as to whether a temporary mandatory order shall issue to respondent Jefferson Federal Savings and Loan Association to honor vouchers for the payment of labor and materials, and whether a temporary restraining order shall issue to respondent Seale Lumber Company in case No. 13970, supra; and for general relief in the alternative.
An order of the court dated March 17, 1953, set April 3, 1953 to determine "whether temporary mandatory writs of specific performance (?) shall issue to respondents" Jones, the Jefferson Federal Savings and Loan Association and the Seale Lumber Company.
The Seale Lumber Company demurred to the bill on April 3, 1953. Demurrer had also been filed by the Jefferson Federal Savings and Loan Association. On that day a decree was entered by the court reciting that the cause coming on to be heard on the sworn bill, and all parties being present in court or by counsel, "It is by the court and the consent of the parties hereto ordered, adjudged and decreed as follows":
1. That all the interest of Malone and Jones in the contract or any money due thereunder be and is forfeited because of their abandonment of the contract.
2. That all the interest of respondent Jones in the contract above mentioned be and is forfeited because of his abandonment.
3. "The court retains jurisdiction of the termination of said contract for the purpose of determining what if any would be due thereunder for the purpose of fixing the amount of funds unpaid in the hands of the owner to the contractor in order that the obligation of the owner to materialmen and laborers who have furnished material and labor into the construction of the house as described in the bill of complaint may be further fixed and determined by the court".
4. That complainants shall pay no further sums to Malone and Jones, "but that all amounts due under said contract as finally determined by the court shall be paid to materialmen and laborers" for material and labor supplied in the construction of the house; and any claim by complainants against said Malone and Jones on account of said contract is thereby terminated and cancelled.
5. "That on the representation of Jefferson Federal Savings and Loan Association that they would complete the loan on this property when it has been fully determined that all adverse claims have been settled, the case is continued as to it for further proceedings when the claims to the property have been settled in this case."
6. That the case is passed as to the Seale Lumber Company until reset by the court.
7. That the testimony of Malone and Jones is that the attached statements show the names and amounts of all unpaid bills for labor and materials that went into the construction of the house.
8. The complainants are directed to obtain three bids from three different persons *634 for the cost of completing the construction of said house in accordance with the plans and specifications. This is to aid the court in determining the unpaid balance that would be due by complainants to Malone and Jones which should be applied to unpaid bills for labor and materials which had been incurred by them in the construction of the house.
9. "The court retains jurisdiction of the cause for further proceedings on the representation that complainants will move for a consolidation of cases or add as parties respondent all parties who have furnished materials to the general contractor for the construction of said house in order that complete equity may be done in this case as to all parties having an interest in the subject matter thereof".
An alleged supplemental bill was later filed (date not given) referring to the decree of April 3, 1953, above, and reciting that it is pursuant to that decree. It sets forth the names and amounts of all persons holding unpaid bills for labor and materials used in the construction of the house; that they received three bids as suggested in that decree, giving the names and amount of each. It gives the details of certain suits which have been filed for labor and materials; and alleges that Jones filed a voluntary petition in bankruptcy. It further specifies in detail the amounts which had been paid by complainants for labor and materials. Those parties claiming liens filed their claims.
On September 18, 1953 the court rendered a final decree retaining jurisdiction for administrative purposes.
There was much testimony taken orally in open court. All the parties noted testimony (which is not necessary when it is thus takenEquity Rule 57). The decree of April 3, 1953 was apparently in response to the order made on March 17, 1953 setting the bill down for hearing under section 1054, Title 7, Code.
We know of no authority for a preliminary mandatory writ of specific performance, as prayed for in paragraph H of the prayer of the bill. A preliminary mandatory injunction is a remedy which usually has the effect of granting the relief available on final decree and should be refused except in very rare cases and granted only when the right to it is clear and certain. Green v. Messer, 243 Ala. 405, 10 So. 2d 157; City of Decatur v. Meadors, 235 Ala. 544, 180 So. 550. That is probably what complainants meant by "a temporary mandatory writ of specific performance" in paragraph H of the prayer.
The final decree contains the following finding of facts: (1) The balance due Jefferson Federal Savings and Loan Association of $329.67, and that it constitutes a first lien on the real estate. No question is raised as to that. (2) The court found that complainants contracted personally to pay certain materialmen and laborers, and that they have a first lien on the real estate and improvements (subject to the mortgage of Jefferson Federal Savings and Loan Association on real estate). Their respective names and amounts are stated, the amounts aggregating $1,534.54. No question is here raised as to that finding. (3) The court then found and named the persons who furnished materials to the contractor in the amount stated, aggregating $3,743.13, but for which complainants did not contract. It then found that they are entitled to share proportionately in the balance due by the complainants under the construction contract, which was found to be $3,406.24. That finding constitutes the second assignment of error. (4) The court then found the separate amounts to be paid each such materialman named in item 3, above, out of said sum of $3,406.24: all of those amounts aggregating said sum of $3,406.24. That constitutes the third assignment of error. (5) "The court finds that complainants were guilty of a wrongful breach of the construction contract with their contractor, resulting in the abandonment by the contractor of further performance by him under the contract." That finding constitutes the first assignment of error. The court decreed according to those findings.
*635 That constitutes the fourth assignment of error.
The substance of appellant's contention on appeal is the finding and decree that there is a balance of the contract price for building the house still unpaid of $3,406.24, out of which the materialmen named in finding (3) and (4), supra, are due to be paid by complainants. Complainants claim they have paid amounts which with proper deductions and amounts obligated by them equal or exceed the contract price, and that nothing further is due to be paid by them. They also claim that they did not breach the construction contract as found by the court and, therefore, their legal status toward their contractor is that which results from an abandonment of the contract by the contractor without just cause.
As to the first assignment of error, we note there is a seeming conflict between the interlocutory decree and the final decree. It is decreed in the former that the contractor had abandoned his contract and, therefore, had forfeited all his interest in the contract. In the final decree it is noted that the former was not based upon a hearing, and was without notice to the materialmen later made parties, but was based upon a statement in open court by the contractor that he was going into bankruptcy and was not asking that any balance due under the contract be paid to him. Other parts of the interlocutory decree show that it did not intend to affect the rights of the lien claimants. The interlocutory decree was subject to alteration in the final decree, and when they conflict the final decree controls. So that, the status of the finding is that the contractor had just cause to abandon the contract on account of a breach of it by complainants. That feature of the final decree, as we have said, is the subject of the first assignment of error.
We find the evidence in conflict as to whether complainants breached their contract to meet the payroll of the contractor which was necessary to the continued performance of the contract by the contractor. On the state of the evidence taken in open court, we would not be willing to reverse the finding of the lower court in that respect.
Second, Third and Fourth Assignments of Error.
That principle is controlling when a contractor abandons his contract or *636 fails to perform it without just cause. But it is said in Carbon Hill Coal Co. v. Cunningham, 153 Ala. 573, 44 So. 1016: "When it is shown that defendant (owner) breached the contract, and thereby prevented its full performance, the plaintiff (contractor) may maintain the common counts for work and labor done".
In 17 C.J.S., Contracts, pages 833-834, § 367, it is said:
So that, if the complainants breached an essential and dependent feature of the contract, the contractor may abandon it and either (1) sue on the contract and recover an amount equal to a proportion of the contract price which he has earned, or (2) sue for work and labor done on a quantum meruit without regard to the price named in the contract. In either event there should be deducted an amount equal to the sum of what was paid by the owner for the contractor, and the amount assumed by him for the benefit of the contractor. In that event, the contractor would have his choice, dependent upon which would be most advantageous to him. He is not here interested; but his materialmen with a lien are interested and, therefore, that amount most favorable to them should be controlling here.
Another applicable principle is that after a materialman or laborer has earned a lien on the balance due a contractor under section 37, Title 33, Code, the owner with notice and the contractor cannot by agreement abridge their relations so as to affect that lien. Cranford Mercantile Co. v. Wells, 195 Ala. 251(3), 70 So. 666; Crane Co. v. Sheraton Apartments, Inc., 257 Ala. 332, 58 So. 2d 614.
Complainants claim they paid the contractor or his creditors $3,022.37, and became obligated to certain persons who supplied material to the contractor for the job in the amount of $1,534.53. The sum of those figures should be deducted from seventy-five percent of the contract price to ascertain the balance due the contractor on which the materialmen, whose claims were not assumed by the complainants, have a lien. Section 37, Title 33, Code.
The final decree does not show how the court arrived at a balance of $3,406.24 due the contractor by complainants, on which the lien of the materialmen was declared and enforced. Counsel for appellees, representing the materialmen, do not supply the information in that respect. From the evidence we cannot reach that conclusion without more aid. The decree must have evidence to support it. Counsel for appellees must point it out in their brief. Supreme Court Rule 11.
Since we think the decree should be reversed as to the features contained in the second, third and fourth assignments of error, we believe it advisable to reverse the final decree as a whole and remand the cause.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur. | March 10, 1955 |
0de41595-3bcf-4b85-8797-21ea777ee3ea | Ex Parte Glasco | 513 So. 2d 61 | N/A | Alabama | Alabama Supreme Court | 513 So. 2d 61 (1987)
Ex parte Janice GLASCO.
(Re: Janice Glasco v. State of Alabama).
86-967.
Supreme Court of Alabama.
July 31, 1987.
Donald E. Holt and Lindsey G. Mussleman, of Holt, McKenzie, Holt & Mussleman, Florence, for petitioner.
Don Siegelman, Atty. Gen., for respondent.
MADDOX, Justice.
By denying the writ, we point out that writs of certiorari are frequently denied without any consideration of the merits. Haden v. Olan Mills, Inc., 273 Ala. 129, 135 So. 2d 388 (1961). A denial of certiorari should never be considered as an expression by the reviewing court on the merits of the controversy. See Hamilton-Brown Shoe Co. v. Wolf Brothers, 240 U.S. 251, 36 S. Ct. 269, 60 L. Ed. 629 (1916). Our denial of the writ should not be understood as approving or disapproving the language used, or the statements of law contained in the opinion of the Court of Criminal Appeals, 513 So. 2d 54. See Cooper v. State, 287 Ala. 728, 252 So. 2d 108 (1971). We make special reference to the statement in the opinion that "[t]he trial judge committed no abuse of discretion in submitting Ms. Hamilton's testimony to the jury," citing Thompson v. State, 374 So. 2d 388 (Ala. 1979).
WRIT DENIED.
ALMON, BEATTY, ADAMS and HOUSTON, JJ., concur. | July 31, 1987 |
875e1052-3480-4b7e-9d8f-86a7a180dd5c | Carlew v. BURLINGTON NORTHERN RR CO. | 514 So. 2d 899 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 899 (1987)
Pauline J. CARLEW, as administratrix of the estate of Mervin Y. Carlew, deceased
v.
BURLINGTON NORTHERN RAILROAD COMPANY.
86-160.
Supreme Court of Alabama.
September 11, 1987.
*900 Robert S. Ramsey and Charles J. Fleming of Ramsey, Flynn & Middlebrooks, Mobile, for appellant.
Broox G. Holmes, William H. Philpot, Jr., and Richard E. Jesmonth of Armsbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee. Orrin K. Ames III of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, and William F. Kirsch, Jr. of Heiskel, Donelson, Bearman, Adams, Williams & Kirsch, Memphis, Tenn., for amicus curiae Cargill, Inc.
SHORES, Justice.
This is an appeal from a judgment entered after the trial court directed a verdict in favor of the defendant Burlington Northern Railroad Company (hereinafter "Burlington") in an action brought under the Federal Employer's Liability Act (FELA), 45 U.S.C. § 51 et seq. Plaintiff Pauline J. Carlew, as administratrix of the estate of Mervin Y. Carlew, alleged that her husband's death on September 11, 1984 was the result of a myocardial infarction caused by the negligence of her husband's employer, Burlington. The trial court determined that there was insufficient evidence to take the case to the jury and entered a directed verdict. We affirm.
On December 30, 1983, several months prior to his death, Mervin Y. Carlew, who was employed by Burlington as an engine foreman, was supervising switching operations in Memphis, Tennessee on the property and tracks of Cargill, Inc., a third-party defendant. The switching operations began at approximately 8:00 p.m. on a very cold night, and sometime later that evening Mr. Carlew attempted to engage a cross-over switch on Cargill's property. Mrs. Carlew alleged that it was so cold that the switch was frozen. After unsuccessfully attempting to engage the switch, Mr. Carlew walked from the switch toward a test house near the side of the tracks. Mr. Carlew complained of chest pains to Glen Roberts, and stated that the pain went down into his arms. Subsequently, Mr. Carlew drove himself to Methodist South Hospital.
On December 31, 1983, after being admitted to the hospital, Mr. Carlew was transferred to Methodist Central Hospital, where he was treated and was hospitalized until January 13, 1984. At the time he was released, Mr. Carlew was receiving heavy medication to help treat his heart disease and arteriosclerosis. In January and February of 1984, Mr. Carlew was repeatedly admitted to the hospital, and he underwent repeat bypass surgery on February 20, 1984. On August 1, 1984 he was readmitted for congestive heart failure, and, after being treated, he was released on August 11, 1984. His prognosis upon discharge was poor; bed rest was recommended, and he was on a very experimental drug protocol. Mr. Carlew died on September 11, 1984.
Prior to the incident on December 30, 1983, Mr. Carlew had suffered from a long history of heart disease. On August 28, 1979, he had been treated for a myocardial infarction of the inferior wall, which was secondary to coronary artery disease. In November 1979 Mr. Carlew underwent bypass surgery. He continued to suffer various cardiac difficulties, including Dressler's syndrome, and was hospitalized from November *901 28, 1979, until December 8, 1979. Other occurrences of heart disease included chest pains on March 27, 1980; cardiac rhythmic disturbance, which required hospitalization on June 9, 1980; and premature cardiac contractions as indicated by electrocardiograms in July 1981 and July 1983. Medical experts testifying for Carlew stated that the decedent suffered severe heart disease.
The questions before us on appeal are whether Carlew proved that Burlington was negligent in the maintenance and inspection of the cross-over switch, and if so, whether Carlew proved that Burlington's negligence in anyway caused her husband's death?
In order to establish liability under the FELA, the employee must submit sufficient evidence from which the jury could reasonably infer that the employer was negligent. Additionally, there must be sufficient evidence from which the jury could reasonably infer that the employer's negligence was the cause of the claimed injury or death. Rogers v. Missouri Pacific R.R., 352 U.S. 500, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957).
The first portion of this analysis requires the plaintiff to establish that the employer owed a duty to the employee and that the employer breached that duty.
Under the FELA, a railroad employer has a duty to provide its employees with a safe place to work, but that general duty is not absolute and all that is required is that reasonable care be used. Gallick v. Baltimore and O.R.R., 372 U.S. 108, 83 S. Ct. 659, 9 L. Ed. 2d 618 (1963). A railroad company is not the insurer of the safety of its employees, and the FELA requires only that a railroad employer exercise reasonable care commensurate with the danger to be anticipated. Atlantic Coast Line R.R. v. Dixon, 189 F.2d 525 (5th Cir.), cert. denied, 342 U.S. 830, 72 S. Ct. 54, 96 L. Ed. 628 (1951). Reasonable foreseeability is an essential element under the FELA. Gallick, supra.
The test is whether reasonable or ordinary care has been exercised by the employer with regard to the attendant circumstances of the employment that could reasonably have been anticipated by a prudent man. Southern Ry. v. Bell, 114 F.2d 341 (4th Cir.1940). The fact that dangerous situations may arise that are the natural and normal consequence of climatic conditions beyond the employer's control does not necessarily imply negligence. McGivern v. Northern Pac. Ry., 132 F.2d 213 (8th Cir.1942). Since railroad companies have no control over the vagaries of the weather or climatic conditions, there is no liability resulting from the mere existence of ice or snow, that is disconnected from other circumstances. Turner v. Clinchfield R.R., 489 S.W.2d 257, 261 (Tenn.Ct. App.1973).
In the present case, there was insufficient evidence for a reasonable person to infer that the alleged difficulty with the switch was the result of negligence on the part of Burlington. The plaintiff supplied no evidentiary basis from which a jury could reasonably conclude that under normal circumstances a switch is of a certain degree of difficulty to throw, but that this switch was of a greater difficulty to throw.
In addition, there was no evidence indicating that Burlington breached its duty to provide a safe place to work. The only evidence regarding the condition of the switch was the testimony of Mr. Glen Roberts, as follows:
"Q. Now, how could you tell what the problem was with the switch?
"A. I'm assuming it was froze. I will tell us [sic] this: There was no way we could throw it. If it was not froze, I don't know what other problem there would be with it."
This unsubstantiated contention, in and of itself, is not proof that the switch was actually frozen or defective in any way, including mechanically. There is no evidence linking the cause of the difficulty to any fault or negligence on the part of Burlington. Carlew's evidence does not show why the switch was frozen or whether the switch was frozen at all. Negligence cannot *902 be assigned where the cause of the incident cannot be or is not shown. Turner, supra.
To conclude that the difficulty in throwing the switch was in any way proximately related to an act or omission of Burlington that would constitute a breach of duty would require impermissible speculation. Speculation by the jury is prohibited, McClinton v. McClinton, 258 Ala. 542, 63 So. 2d 594 (1952), and a verdict in an FELA case cannot be based on speculation or conjecture. Atchison T. & S.F. Ry. v. Myers, 179 Okla. 637, 69 P.2d 62, appeal dismissed, 302 U.S. 636 (1937). See, Elgin, J. & E. Ry. v. Gibson, 355 U.S. 897, 78 S. Ct. 270, 2 L. Ed. 2d 193 (1957) ("[n]ot until this Court explicitly holds that in `FELA cases, speculation, conjecture and possibilities suffice to support a jury verdict,' ... is that to be assumed to be the law of this Court"). The case must be withdrawn from the jury's consideration if they would have to speculate on the cause of the injury and whether negligent acts of the employer were in some way responsible for the injury. Myers, supra.
Having determined that Carlew failed to prove that Burlington breached its duty to provide a safe place to work, we need not address the issue of causation. However, we will address one specific contention as it relates to the deposition testimony of Dr. Arthur Joseph Sutherland III, regarding causation.
Carlew contends that the trial court erred in excluding certain deposition testimony by Dr. Sutherland, one of the decedent's physicians. During the trial, the plaintiff offered testimony in response to the following question:
We hold that the answer was properly excluded. The plaintiff did not contend that Mr. Carlew's death was a result of trauma that worsened his arteriosclerotic state. The complaint in this case alleged that the Mr. Carlew suffered an acute myocardial infarction, caused by attempting to throw a frozen switch. Evidence of "aggravation" is not proof of "causation" in this setting. It was proper for the trial court to exclude evidence not relevant to the case at hand.
Considering all the above, we hold that the trial court did not err in directing a verdict for Burlington. Accordingly, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur. | September 11, 1987 |
701d01c3-f8de-4451-9307-50d37787ed26 | Nettles v. Henderson | 510 So. 2d 212 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 212 (1987)
Juan F. NETTLES
v.
Bryant HENDERSON.
85-673.
Supreme Court of Alabama.
June 26, 1987.
Marc E. Bradley of Stanard & Mills, Mobile, for appellant.
Thomas M. Galloway, Jr., of Collins, Galloway & Smith, Mobile, for appellee.
STEAGALL, Justice.
Juan Nettles appeals from a summary judgment granted in favor of defendant-appellee, *213 Bryant Henderson, in a negligence case. We affirm.
On or about November 28, 1984, Nettles, Henderson and three other persons went deer hunting. They traveled in two pick-up trucks. Upon completion of the hunting trip, the party split up, with Nettles and two other persons leaving in the first pick-up truck.
After driving a short distance, Nettles and his companions realized that Henderson and his companion had not followed them out of the woods. Nettles and his companions parked their truck and began to walk back, whereupon they discovered that Henderson's pick-up truck had slid partially into a ditch. Henderson was unable to move the truck forward. Henderson remained in the truck while Nettles went to the passenger side and, along with the others, began to push and pull. Henderson was attempting to back the truck up and, at the same time, his companions were helping. Nettles's deposition testimony is that he was pushing against the front side of the truck when it began to slide forward. At this point, Nettles says, he partially lost his balance and was caused to push more strongly against the truck; he felt a cramping in his chest. Later, Nettles was taken to the hospital and diagnosed as having received a spontaneous pneumothorax.[1]
Nettles contends that Henderson was negligent and that Henderson's negligence caused Nettles's injury and, therefore, that summary judgment was inappropriate.
Defendant Henderson, in support of his motion for summary judgment, submitted an affidavit, the gist of which is to establish that he was not negligent in the operation of his truck. Plaintiff Nettles offered no counter-affidavit, but had already given a deposition, which was in the record. Nettles contends that the deposition testimony is sufficient to create the "genuine issue of material fact" (Rule 56, A.R.Civ.P.) necessary to defeat the summary judgment motion. We disagree.
In Wilson v. Brown, 496 So. 2d 756 (Ala. 1986), this Court stated:
(Citing Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala.1986).) See, e.g., Hale v. City of Tuscaloosa, 449 So. 2d 1243 (Ala. 1984); Allen v. Whitehead, 423 So. 2d 835 (Ala.1982); Robertson v. City of Tuscaloosa, 413 So. 2d 1064 (Ala.1982); Raley v. Royal Ins. Co., 386 So. 2d 742 (Ala.1980); Rule 56(c), A.R.Civ.P.
Summary judgment for the defendant is proper if, as to some essential element of plaintiff's case, there is no evidence. In Liberty National Life Insurance Co. v. Weldon, 267 Ala. 171, 100 So. 2d 696 (1957), this Court held that for negligence "[t]o be actionable it must be the breach of a duty which the defendant owed the plaintiff as an individual or one of a class ... and the plaintiff must not only show causal connection between the negligent breach of the duty but that such negligence was the proximate cause of the injury." (Citations omitted.) In other words, the test could be stated quite simply: Is there evidence that Henderson breached a duty to Nettles? If so, was that breach of duty the proximate cause of Nettles's injury? Reviewing the deposition testimony in a light most favorable to the non-moving party, we are unable *214 to find evidence which would call for affirmative answers to these questions.
It is true in Alabama that if there is a scintilla of evidence supporting the non-moving party, summary judgment is improper. But, as stated in Eason v. Middleton, 398 So. 2d 245 (Ala.1981),
398 So. 2d at 248.
Because the defendant's affidavit establishing that he was not negligent has not been rebutted by any evidence from the plaintiff to indicate that he was, the defendant's summary judgment was proper and it is due to be affirmed.
AFFIRMED.
JONES, ALMON, SHORES and ADAMS, JJ., concur.
[1] Air had escaped from Nettles's left lung and had become trapped between the chest wall and the lung. | June 26, 1987 |
12495edb-0f21-49c8-9077-306937ae79c2 | Kohen v. BD. OF SCH. COM'RS OF MOBILE CTY. | 510 So. 2d 216 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 216 (1987)
Billy Rae KOHEN, et al.
v.
BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, et al.
85-1125.
Supreme Court of Alabama.
June 26, 1987.
*217 Wanda J. Cochran and Gregory B. Stein of Blacksher, Menefee & Stein, Mobile, and Terry G. Davis of Seay & Davis, Montgomery, for appellants.
Thomas R. McAlpine of Sintz, Campbell, Duke, Taylor & Cunningham, Mobile, for appellees.
MADDOX, Justice.
Plaintiffs, individually, and on behalf of a class of similarly situated persons, sued the Board of School Commissioners of Mobile County and the past and present commissioners in their individual capacities, claiming breach of contract and fraud in that the school board had adopted a sick leave policy and then refused to follow it. The plaintiffs voluntarily dismissed their fraud claim against all defendants; the trial court then granted summary judgment for the defendants, and the plaintiffs appeal.
Two issues are raised in this appeal: (1) whether the sick leave incentive plan, approved by the Board, violates Ala. Const. Art. IV, § 68, and, (2) if the plan is not violative of § 68, whether the Board's failure to comply fully with Code 1975, § 16-8-10, prevents the plan from being enforceable against the Board. We find no constitutional infirmity in the plan, and further hold that the employees are entitled to receive the benefits of the plan.
The facts surrounding this case are essentially undisputed, although their legal effect is contested. The record shows that on October 12, 1983, the Board unanimously approved a policy authorizing payment of $100.00 to all employees who achieved perfect attendance for the 1983-84 school year. At a second Board meeting, on October 26, 1983, the commissioners voted to change that policy to provide, instead of the $100.00 bonus, a bonus of $20.00 for each unused sick leave day, up to a maximum of nine unused days per year. Under both plans, the bonus was to be paid after the end of the school year. As proposed and ratified, both plans were to be retroactive to the beginning of the 1983-84 school year.
After the meeting of October 26, County School Superintendent Hammons assigned to his staff the task of implementing the new policy. The record on appeal contains copies of correspondence between Deputy Superintendent Newton and a Dr. Martin in the Human Resources Division; that correspondence clarified several aspects for the plan's implementation and requested that Dr. Martin have the Human Resources Division prepare a bulletin for inclusion in the school system's weekly information notices. The record also contains copies of a Mobile County Public School System newsletter dated December 1983, which gives notice to all system employees that the $20.00 incentive pay plan had been adopted.
On March 28, 1984, Superintendent Hammons furnished the Board members with a copy of an opinion letter from the Board's attorney which suggested that a cash incentive award would be unconstitutional under Art. IV, § 68. The record is not clear what Board action followed this meeting, but when eligible employees filed notice *218 with the Board requesting pay for unused days, the Board replied that, in the opinion of its attorney, the October 26 plan was unconstitutional, but that it was considering an alternative incentive plan to be implemented in lieu of the cash award plan. Plaintiffs then filed suit to compel the Board to make payments pursuant to the stated sick leave policy.
On appeal from summary judgment in favor of the school board, the plaintiffs contend that, when the school board adopted the sick leave policy and published notice of that policy to its employees, the policy became specifically enforceable under the doctrine of Belcher v. Jefferson County Board of Education, 474 So. 2d 1063 (Ala.1985). The Board argues that, under Code 1975, § 16-8-10, its proposals never rose to the level of enforceable policy; further, the Board argues that any such policy, regardless of implementation, would be unconstitutional and thus unenforceable against the Board. Ala. Const. Art. IV, § 68.
We examine first the Board's contention that its proposed policy is unconstitutional under Ala. Const. Art. IV, § 68, which provides:
The Board contends that the sick leave policy would unconstitutionally provide additional compensation to a public servant or employee after services had been rendered. It argues that each employee begins the school year with a contract which states that employee's salary, and that state law provides a specified number of sick leave days and that any unused days may be retained for future use. The Board concludes that, being an illegal contract, the sick leave policy cannot be enforced against it. We do not find the Board's reasoning persuasive.
Section 68 prohibits additional payment for services already rendered, and it prohibits an increase in compensation for officers during their terms of office. However, § 68 contains no prohibition against the granting of additional compensation in exchange for additional consideration given by the officer, servant, or employee.
Forbearance of the exercise of a legal right has long been recognized as valid consideration. Generally, the issue arises in the context of the forbearance of the filing or prosecution of a lawsuit. See, e.g., Wilson v. Vulcan Rivet & Bolt Corp., 439 So. 2d 65 (Ala.1983). However, the concept is equally applicable to the facts at hand. It is stated at 17 C.J.S. Contracts § 103 (1963) that "The waiver of a right or forbearance, or promise to forbear to exercise the same, is a sufficient consideration for a promise made on account of it. The alteration in position is regarded as a detriment which forms a consideration independent of the actual value of the right forborne." Here, the school employees were legally entitled to the use of their sick leave days. Their forbearance in reliance on the promise of the Board constituted adequate consideration to support a contract for additional compensation to be paid by the Board.
The Board also argues that, because the bonus was to be paid at the end of the school year, it would be unconstitutional as being additional payment after services had been rendered. This argument is not persuasive; it does not differ from the payment of a salary at the end of the month in which the labor was done. However, we do find that the retroactivity provision of the pay plan violates § 68. See Belcher v. McKinney, 333 So. 2d 136 (Ala.1976). To hold otherwise would be to say that, since sick leave days may be accumulated throughout an employee's career, the Board could at any time establish such a *219 policy retroactive to the first day of an employee's hiring.
Having found the policy, as limited by the foregoing, to be constitutional, we need not address the plaintiffs' argument that teachers and support personnel are not such officers, servants, employees, agents, or contractors as are contemplated by § 68, or that the Board is not a county or municipal authority for the purposes of § 68.
The Board next contends that, even if its policy is constitutionally permissible, the "proposal" never matured into enforceable policy, because the requirements of Code 1975, § 16-8-10, were never fulfilled. That section reads as follows:
As noted above, the plaintiffs contend that, under Belcher, supra, they have a specifically enforceable entitlement to the benefits of the October 26 incentive plan. The Board conceded that, if the requirements of the statute had been fulfilled, then the plaintiffs would have a contract, albeit an unenforceable one under Art. IV, § 68. However, the Board argues that, since it neither adopted the necessary rules and regulations, nor filed them with the state superintendent of education, the "plan" never became "policy."
See City of Montgomery v. Weldon, 280 Ala. 463, 195 So. 2d 110 (1967), in which this Court held the City of Montgomery to be estopped to deny the claim of a citizen who was injured on a defective city sidewalk, and who had promptly notified the city of the injury, but, relying on the cooperation and assurance of city officials, did not file a sworn claim within six months as required by Code 1940, Tit. 37, § 476 (now codified at Code 1975, § 11-47-23). There, this Court held that it would be inequitable to allow the city to seek shelter behind the limitations statute, and applied the doctrine of equitable estoppel in favor of the plaintiffs. See, also, Mason v. Mobile County, 410 So. 2d 19 (Ala.1982); Fuller v. City of Birmingham, 377 So. 2d 957 (Ala.1979); Alford v. City of Gadsden, 349 So. 2d 1132 (Ala.1977); Brasher v. City of Birmingham, 341 So. 2d 137 (Ala.1976).
In the case at bar, we believe that the equities are even more strongly on the side of the plaintiffs. The non-claim statutes are intended for the direct benefit of the county or municipal government, and only indirectly benefit the general public. Section 16-8-10, read in its entirety, demonstrates that the purpose of the notice and comment provisions, and of the requirement that the state superintendent be notified, inure to the benefit of the system's teachers and other employees, and also to members of the general public concerned with education; we find little direct benefit to the Board in that section. It appears that a substantial number of the Board's employees relied on the notice published in the system's newsletter; that the Board made no great attempt to notify those employees of its reconsideration of the policy; and that the statutory requirements, excepting only the requirement that the state superintendent be notified, have been substantially complied with; therefore, *220 we conclude that it would be unjust and inequitable to deny the employees the benefits of the incentive pay plan.
In light of the foregoing, the judgment is due to be, and it hereby is, reversed, and the cause is remanded to the trial court for a determination of the amount of compensation due to each teacher and support employee, computed prospectively from November 1983 to the end of the 1983-84 school year.
REVERSED AND REMANDED WITH DIRECTIONS.
JONES, ALMON, SHORES, and BEATTY, JJ., concur. | June 26, 1987 |
ddd8f307-3bd7-44e2-9d3b-d0ca21126d13 | Ex Parte Williams | 556 So. 2d 744 | N/A | Alabama | Alabama Supreme Court | 556 So. 2d 744 (1987)
Ex parte Roy WILLIAMS.
(Re Roy Williams
v.
State of Alabama).
86-518.
Supreme Court of Alabama.
September 18, 1987.
Rehearing Denied November 6, 1987.
Al Pennington of Pennington, McCleave & Patterson, Mobile, for petitioner.
*745 Don Siegelman, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for respondent.
JONES, Justice.
We granted the petition for writ of certiorari in this capital case to review the conviction and the sentence. After careful consideration, we affirm the judgment of the Court of Criminal Appeals as to the conviction, and reverse as to the sentence of death. 556 So. 2d 737 (Ala.Cr.App.1986). The issue which requires our reversal and remand for a new sentencing hearing was addressed by the Court of Criminal Appeals as follows:
The defendant aptly states the issue as follows: "Whether allowing the jury to consider improper aggravating circumstances in recommending a sentence was more than harmless error."
The Court of Criminal Appeals reasoned that, because the trial court, as the ultimate sentencing authority, did not consider illegal evidence ("the incorrect aggravating circumstance") in the sentencing hearing, the trial court's error in permitting the jury to consider such evidence in arriving at its recommendation of the death sentence was harmless. The basic flaw in this rationale is that it totally discounts the significance of the jury's role in the sentencing process.
The legislatively mandated role of the jury in returning an advisory verdict, based upon its consideration of aggravating and mitigating circumstances, can not be abrogated by the trial court's errorless exercise of its equally mandated role as the ultimate sentencing authority. Each part of the sentencing process is equally mandated by the statute (§§ 13A-5-46, -47(e)); and the errorless application by the court of its part does not cure the erroneous application by the jury of its part. For a case consistent with our holding, see Johnson v. State, 502 So. 2d 877 (Ala.Cr.App. 1987). To hold otherwise is to hold that the sentencing role of the jury, as required by statute, counts for nothing so long as the court's exercise of its role is without error.
We emphasize that our holding that the Court of Criminal Appeals erred in its application of the harmless error rule is based upon independent state law grounds and upon statutory construction. We reverse as to the judgment of sentence and remand to the Court of Criminal Appeals with instructions to remand this cause for a new sentencing hearing before a jury and before the court as required by law.
AFFIRMED IN PART (AS TO THE CONVICTION); REVERSED IN PART (AS TO THE SENTENCE); AND REMANDED WITH INSTRUCTIONS.
TORBERT, C.J., and ALMON, SHORES and ADAMS, JJ., concur.
MADDOX, BEATTY, HOUSTON and STEAGALL, JJ., dissent.
BEATTY, Justice (dissenting).
In my opinion, this case is controlled by Barclay v. Florida, 463 U.S. 939, 103 S. Ct. 3418, 77 L. Ed. 2d 1134 (1983); Baldwin v. State, 456 So. 2d 117 (Ala.Crim.App. 1983), *746 aff'd, 456 So. 2d 129 (Ala.1984), aff'd, 472 U.S. 372, 105 S. Ct. 2727, 86 L. Ed. 2d 300 (1985); and Kennedy v. State, 455 So. 2d 351 (Fla.1984), cert. denied, 469 U.S. 1197, 105 S. Ct. 981, 83 L. Ed. 2d 983 (1985).
MADDOX, HOUSTON and STEAGALL, JJ., concur. | September 18, 1987 |
4cebaa3e-14c3-4b9a-9fbe-da4128768265 | Gray v. Reynolds | 514 So. 2d 973 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 973 (1987)
Van GRAY
v.
James M. REYNOLDS and J. Eugene Garrison.
86-59.
Supreme Court of Alabama.
September 25, 1987.
*974 John W. Kelly III of Sikes & Kelly, and Charles H. Sims III, Selma, for appellant.
Robert R. Blair, Selma, for appellees.
ADAMS, Justice.
The plaintiff, Van Gray, appeals the judgment entered in favor of the defendants, James M. Reynolds and J. Eugene Garrison, in a breach of contract action. Gray contracted with Reynolds and Garrison (both hereinafter referred to as "Reynolds") to purchase sawdust at fifty cents ($.50) per ton. However, before Gray could complete his contract, Reynolds sold 6000 tons of the same sawdust to a third party for $1.00 per ton. Gray then sued Reynolds for breach of contract. The trial court ruled in favor of Reynolds, holding that the writing sued upon was insufficient to support a judgment in favor of Gray and that the writing constituted a standing offer from Reynolds to Gray for Gray to purchase sawdust at a set price. We disagree with the judgment of the trial court and reverse.
On March 2, 1984, Gray and Reynolds entered into the following agreement, written by Reynolds:
"CONTRACT OF SALE
"AGREEMENT DATE MARCH 2, 1984
"Buyers Address __________" (Plaintiff's trial Exhibit 1, R. 33, 327)
After the contract was signed, Gray spent $4,000 improving a road located on the property so that he could use heavy equipment to remove the sawdust. Gray removed sawdust for several weeks in March and April. After this period, due to equipment problems, Gray did not haul away any sawdust for a period of several weeks. When Gray returned to the property to resume hauling the sawdust, Reynolds called Gray and told him he was allowing a Mr. Brown to haul away sawdust for $1.00 per ton. Soon thereafter, Gray returned to the property and noticed a loader parked near the sawdust pile and saw that someone other than himself had removed sawdust. He also noticed damage to the road that he had improved. At this time, Gray considered the contract breached, and he contacted his attorney.
Gray argues that a valid contract existed between himself and Reynolds and that the trial court erred when it did not give it full effect. Reynolds argues that the contract is vague and indefinite in its terms and, therefore, that the intention of the parties cannot be fairly and reasonably understood. He also argues that what actually existed was a standing offer from Reynolds to Gray allowing him to purchase and remove the sawdust at his will. We disagree.
Where a trial court bases its judgment upon findings of fact in a non-jury case in which the evidence was presented ore tenus, a presumption of correctness attaches to that judgment. Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So. 2d 1177 (Ala.1981). However, no such presumption exists when the trial court has improperly applied the law to the facts. Smith v. Style Advertising, Inc., 470 So. 2d 1194 (Ala.1985).
The elements of a contract are: (1) an agreement, (2) with consideration, (3) between two or more contracting parties, (4) with a legal object, and (5) legal capacity. Freeman v. First State Bank of Albertville, 401 So. 2d 11 (Ala.1981). No argument is made between the parties concerning the last three elements.
First, there must be an agreement. In order to determine the nature of a contract, the court should look at the contract's terms and conditions. Grass v. Ward, 451 So. 2d 803 (Ala.1984). In order to determine the contract's nature and meaning, the trial court must construe the contract as a whole. Dudley v. Fridge, 443 So. 2d 1207 (Ala.1983). The contract plainly states that Gray is to buy 9,000 tons of sawdust from Reynolds for $.50 a ton. It also states that Gray is to remove the entire sawdust pile. Both parties agreed that the pile was estimated at 9,000 tons. It is clear that Gray was to purchase the whole pile. The contract gives the location of the property and states that Gray is to make cash payments on a weekly basis. As there is no ambiguity as to the agreement between Gray and Reynolds, we now examine the agreement in order to determine if consideration exists.
The agreement in this case is supported by consideration.
Files v. Schaible, 445 So. 2d 257, 260 (Ala. 1984). In this case, Gray spent $4,000 improving the road in order to be able to remove the sawdust. Reynolds sold Gray all the sawdust at $.50 per ton, and Reynolds further received a benefit by the promised removal of the sawdust. Reynolds *976 testified that one of his main concerns was the complete removal of the sawdust from the property so that he could build a convenience store. It is apparent that Reynolds was to receive a benefit at Gray's detriment.
Reynolds also argues that the contract must fail because it lacks a commencement or completion date. However, this argument must also fail. Reynolds and Gray both testified that time was not of the essence. Generally, time is not of the essence in a contract. Gay v. Tompkins, 385 So. 2d 973 (Ala.1980); Moore v. Lovelace, 413 So. 2d 1100 (Ala.1982). However, parties can make time essential by a clear manifestation of intent within the contract itself, by later notice to one party from the other, by laches on the part of a party seeking enforcement, or by change of value in the subject matter of the contract. See Moore, supra. However, in this case, none of these conditions occurred. Therefore, Reynolds's claim that the contract must fail because a time for performance is not stated is without merit.
Where a contract, from its terms, is plain and free from ambiguity, it must be enforced as written. P & S Business, Inc. v. South Central Bell Telephone Co., 466 So. 2d 928 (Ala.1985); Kinnon v. Universal Underwriters Ins. Co., 418 So. 2d 887 (Ala. 1982). It is clear that Gray purchased the sawdust pile from Reynolds and that Reynolds breached the contract when he sold some of the sawdust to a third party at a higher price. Therefore, the trial court erred when it ruled that the contract was nothing more than a standing offer, and its judgment is reversed.
For the reasons set forth, the judgment is reversed and the cause is remanded to the trial court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur. | September 25, 1987 |
bf09f505-059e-4e25-a742-83315806ccfb | Hoffman-La Roche, Inc. v. Campbell | 512 So. 2d 725 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 725 (1987)
HOFFMAN-LA ROCHE, INC.
v.
Hugh CAMPBELL.
85-123.
Supreme Court of Alabama.
July 10, 1987.
*726 Fournier J. Gale III, James L. Goyer III, and James M. Proctor II, of Maynard, Cooper, Frierson & Gale, Birmingham, for appellant.
William G. McKnight and George Beck, Montgomery, for appellee.
BEATTY, Justice.
The appellant, Hoffman-La Roche, Inc. ("Roche"), appeals from a judgment of the Etowah Circuit Court entered upon jury verdicts against it on both a count of breach of an employment contract and a count of fraud. The action had been filed by a former employee, Hugh Campbell. The jury assessed damages at $150,000. The determinative issue on appeal is whether certain provisions contained in an employee handbook issued by Roche modified the employment relationship which existed between Roche and Campbell so as to make the relationship terminable only by compliance with those provisions.
Campbell was hired by Roche as a pharmaceutical sales representative in October 1974. Prior to his acceptance of the position, he had engaged in several discussions with E.P. Delk, a division sales manager of Roche. During these discussions, he was informed of various benefits which Roche made available to its employees. Delk also discussed with Campbell the general responsibilities of a Roche salesman and a potential conflict of interest that existed because of Campbell's part ownership of a drug store. He was given a pre-employment physical examination by a physician of Roche's choosing and, even though he had earlier been involved in an accident which had caused serious injury to his left leg, was found physically able to perform the job.
Subsequently, Campbell and Roche entered into a written agreement, which was characterized by Delk during his testimony as "an agreement to employ Mr. Campbell for certain compensation and certain conditions *727 stated in that contract." The document itself stated that Campbell must, among other things, give up his interest in the drug store and agree not to disclose any trade secrets or confidential information to which he might become privy while in the employ of Roche, "[i]n consideration of the employment or continued employment of EMPLOYEE [Campbell] by Roche and of salary, wages or other compensation to be paid by ROCHE to EMPLOYEE."
At the time of his hiring, Campbell was also given a copy of an employee handbook entitled "Roche Employee Handbook." He was instructed to become familiar with the provisions of this handbook. During his employment at Roche, this handbook was "updated" on several occasions.
Campbell's position with Roche required him to call upon physicians, drug stores, and hospitals in a specific territory in northeast Alabama. During his first year with Roche, he received various sales awards for outstanding performance. Among these awards was the highest award one could attain at Roche.
In 1978, however, Campbell began to experience health problems. Over the next several years, he received treatment at various hospitals, and various diagnoses were made before, ultimately, in April 1980, a correct diagnosis was made at the University of Alabama at Birmingham Hospital Infectious Disease Center. Surgery was performed as part of the treatment for his illness. As a result of this lingering illness, caused by an infectious organism that had attacked the bone in his left leg, Campbell's work performance slipped.
On September 19, 1980, he was given an "unacceptable" performance rating by his supervisor. He was told that if his performance did not improve "in three months," he would be terminated. It is not clear from the record whether this three-month period was to start immediately (as of September 19, 1980) or at some later date. What is clear, however, is that at this time Campbell was still recuperating from his surgery and was in a full leg cast. In early January 1981, he was placed on "probation." Then, on January 31, 1981, he was informed by a telegram that he had been terminated. The telegram stated no reason for this termination. However, Roche's contention, as set out in the pre-trial order, was that the termination was based upon Campbell's deteriorating job performance. The testimony at trial supported this contention. No other reason was given at trial.
Campbell testified that, in late 1978, he had talked with his supervisor, Delk, about his deteriorating health when he inquired as to whether he should take sick leave or keep on working. Delk advised him to "keep working." Campbell testified that, throughout the time of his illness, he abided by Delk's instructions not to take sick leave. Instead, he would simply notify Delk and the company when he was sick, and he worked when he could. He used a form provided by the company to report these "sick" days. He testified that the use of this form was the "customary and accepted" method used to report sick days during his time with the company.
Delk's testimony differed sharply from that of Campbell. Delk testified that, although Campbell had indicated earlier that he was "not 100%," he never informed him that his problems were affecting the performance of his work. He testified that Campbell never requested sick leave.
It was stipulated to by the parties that Roche became a self-insurer of the benefits program it made available to its employees. It was Campbell's argument at trial that Roche had dismissed him so as to avoid paying him those benefits he had been promised through the issuance of an employee handbook.
On appeal from the judgment entered on the jury verdict against it, Roche argues that the employment agreement signed by Campbell did not set out a definite duration of employment and, therefore, that Campbell was an employee at will and could have been terminated for any reason or, even, for no reason at all. Campbell, on the other hand, argues that the jury's verdict is correct because Roche limited its right to terminate him by its issuance of an employee handbook containing certain provisions *728 specifying the only procedures by which an employee could be discharged. He argues that Roche did not follow those procedures.
By now, the rule is well settled in Alabama that an employee contract at will may be terminated by either party with or without cause or justification. See, e.g., Meeks v. Opp Cotton Mills, Inc., 459 So. 2d 814 (Ala.1984); Hinrichs v. Tranquilaire Hospital, 352 So. 2d 1130 (Ala.1977). This means a good reason, a wrong reason, or no reason. Hinrichs, supra.
The cases reveal that three elements must be shown to establish that an employment contract is one other than one terminable at will: (1) that there was a clear and unequivocal offer of lifetime employment or employment of definite duration, Bates v. Jim Walter Resources, Inc., 418 So. 2d 903 (Ala.1982); (2) that the hiring agent had authority to bind the principal to a permanent employment contract, Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939); and (3) that the employee provided substantial consideration for the contract separate from the services to be rendered, United Security Life Ins. Co. v. Gregory, 281 Ala. 264, 201 So. 2d 853 (1967). This Court has repeatedly refused to modify this doctrine even so much as to recognize a so-called public policy exception to its application. Thus, we have refused to recognize an exception where an employee had been dismissed for refusing to commit a criminal act, see, e.g., Jones v. Ethridge, 497 So. 2d 1107 (Ala.1986); Williams v. Killough, 474 So. 2d 680 (Ala. 1985), or where an employee had been dismissed because he filed a workmen's compensation claim, see Meeks v. Opp Cotton Mills, Inc., supra, or where an employee had been dismissed because he responded to a subpoena for jury duty, see Bender Ship Repair, Inc. v. Stevens, 379 So. 2d 594 (Ala.1980).[1]
The Court continues to adhere to the above-stated principles today. Indeed, in this case, we are not asked to abrogate the employment-at-will doctrine. We are asked only to determine what effect certain provisions set out in an employee handbook had upon the employer's right to exercise its powers to terminate the employment relationship at will.
The appellant argues that this Court has already addressed this question in White v. Chelsea Industries, Inc., 425 So. 2d 1090 (Ala.1983). In that case, it was said:
425 So. 2d at 1090.
The statements made in White are limited to the facts of that case, and are not to be taken as standing for the proposition that a handbook may never rise to the level of a contract. Indeed, in White, no determination on the effect of the handbook was made until after the contents of the handbook were "reviewed." Such a review would not have been necessary if the issuance of a handbook could not, under any circumstances, have created a contractual agreement between the employer and the *729 employee. Such a rule would also be contrary to traditional contract law principles. A review of our cases reveals that we have not applied such a rule.
In Duff v. American Cast Iron Pipe Co., 362 So. 2d 886 (Ala.1978), this Court found that the violation of a rule contained in an employee handbook was a "contractual precondition to discharge." 362 So. 2d at 888. Similarly, in Green v. American Cast Iron Pipe Co., 446 So. 2d 16 (Ala.1984), rules contained in an employee handbook were given contractual significance. See also Smith v. American Cast Iron Pipe Co., 370 So. 2d 283 (Ala.1979).
It is argued that these cases do not actually stand for the proposition that a communication made by the issuance of an employee handbook can actually be given contractual status because all of these cases dealt with the unique relationship that exists between American Cast Iron Pipe Company ("ACIPCO") and its employees. In Farlow v. Adams, 474 So. 2d 53, 56 (Ala.1985), it was said:
(Emphasis added.)
While we acknowledge that the relationship between ACIPCO and its employees was unique and that, indeed, the relationship was not governed "exclusively" by the principles of either contracts or trusts, this does not detract from the fact that, in those cases, the provisions of the handbooks were given contractual force.
Further, we note that the "ACIPCO cases" are not the only cases in which this Court has given contractual significance to the language used in an employee handbook. In Davis v. Marshall, 404 So. 2d 642, 644-45 (Ala.1981), for example, this Court reversed a summary judgment that had been granted against the plaintiff and said:
Indeed, our examination of a number of cases from other jurisdictions that have considered the issue reveals that an increasing number of jurisdictions have given contractual effect to language contained in handbooks. See, e.g., Vinyard v. King, 728 F.2d 428 (10th Cir.1984); Greene v. Howard University, 412 F.2d 1128 (D.C. Cir.1969); Leikvold v. Valley View Community Hospital, 141 Ariz. 544, 688 P.2d 170 (1984) (en banc); Pugh v. See's Candies, Inc., 116 Cal. App. 3d 311, 171 Cal. Rptr. 917 (1981); Salimi v. Farmers Ins. Group, 684 P.2d 264 (Colo.Ct.App.1984); Piper v. Board of Trustees, 99 Ill.App.3d 752, 55 Ill.Dec. 287, 426 N.E.2d 262 (1981); Dahl v. Brunswick Corp., 277 Md. 471, 356 A.2d 221 (1976); Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980); Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn.1983); Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261 (1983); Forrester v. Parker, 93 N.M. 781, 606 P.2d 191 (1980); Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 443 N.E.2d 441, 457 N.Y.S.2d 193 (1982); Langdon v. Saga Corp., 569 P.2d 524 (Okla.Ct. App.1976); Thompson v. St. Regis Paper Co., 102 Wash. 2d 219, 685 P.2d 1081 (1984) (en banc).
These courts have recognized, as we do, that all employee handbooks are not simply "`corporate illusion[s], "full of sound ... signifying nothing."'" Weiner v. McGraw-Hill, Inc., 83 A.D.2d 810, at 810-11, 442 N.Y.S.2d 11, 11 (1981), Kupferman, *730 J., dissenting, quoting W. Shakespeare, Macbeth, V, v, 27-28, as quoted in Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, at 462, 443 N.E.2d 441, at 443, 457 N.Y.S.2d 193, at 195 (1982). The two leading cases representative of those jurisdictions according legal significance to language contained in employee handbooks are Toussaint v. Blue Cross & Blue Shield, supra, and Pine River State Bank v. Mettille, supra.
In Toussaint, the Supreme Court of Michigan upheld a jury verdict for a plaintiff, an employee at will, who claimed he had been discharged without just cause in violation of his employer's personnel manual, which provided that employees would be terminated for just cause only, pursuant to certain procedures. 408 Mich. at 595, 597-98, 292 N.W.2d 883-84. In doing so, it held that:
408 Mich. at 598, 292 N.W.2d at 885. It also held that:
408 Mich. at 614-15, 292 N.W.2d at 892.
The Toussaint court's theory, basically, is one of estoppel, invoking the idea of reliancealthough the rationale also recognizes that both parties, the employer and the employee, benefit from the establishment of employment policies:
408 Mich. at 614-15, 292 N.W.2d at 892. (Footnote omitted.)
It was argued to the Toussaint court that "mutuality of obligation" was lacking in such a situation because, although the employer would be obligated to continue the relationship until the prescribed conditions had been met, the employee would not be so obligated. However, the court rejected this argument:
"The enforceability of a contract depends, however, on consideration and not mutuality of obligation. The proper inquiry is whether the employee has given *731 consideration for the employer's promise of employment.
408 Mich. at 600, 292 N.W.2d at 885. (Footnote omitted.)
In Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn.1983), the Supreme Court of Minnesota was faced with the issue of whether a handbook could become a part of an existing employment-at-will contract.
The Minnesota court approached the handbook problem as follows:
333 N.W.2d 625-27. (Footnote omitted.)
We find the unilateral contract analysis set out in Pine River to be both consistent with sound traditional contract principles and in accord with existing Alabama caselaw.[2] In fact, the very same analysis has been applied by this Court in similar circumstances in the past.
*732 In Louis Werner Sawmill Co. v. Vinson & Bolton, 220 Ala. 210, 124 So. 420 (1929), it was recognized that, although a unilateral contract that is wholly executory lacks mutuality and is unenforceable, to the extent the agreement has been performed by the promisee it is binding and enforceable:
220 Ala. at 212, 124 So. at 422.
The concept of mutuality of contract was discussed as follows in Hill v. Rice, 259 Ala. 587, 67 So. 2d 789 (1953).
259 Ala. at 594-95, 67 So. 2d at 796-97. (Emphasis added.) Accord, Sherrill v. Alabama Appliance Co., 240 Ala. 46, 197 So. 1 (1940) ("if there is other consideration, there need not be" mutuality of obligation); Miller v. Thompson, 229 Ala. 267, 156 So. 773 (1934) ("performance supplies the element of mutuality necessary as a consideration to support the obligation" in a unilateral contract situation).
Just such an analysis was applied in Henderson Land & Lumber Co. v. Barber, 17 Ala.App. 337, 85 So. 35 (1920) to uphold the finding of an enforceable contract, though unilateral in nature, between an employer and employee when the employer promised to pay the employee a 5 percent *733 bonus above the employee's normal salary if he continued to work 4 months straight time, even though he was not required to do so. The Court of Appeals set out the analysis used in that case:
17 Ala.App. at 338, 85 So. at 35-36.
The foregoing considered, we see no reason why a policy contained in an employee manual issued to an employee cannot become a binding promise once it is accepted by the employee through his continuing to work when he is not required to do so. Such a performance clearly provides any consideration necessary to the contract.[3] The fact that the promise is *734 communicated to the employee through the medium of a handbook, rather than by some other means, is simply of no consequence.
Of course, to become a binding promise, the language used in the handbook must be specific enough to constitute an actual offer rather than a mere general statement of policy. See Pine River, supra, at 626. However, whether a proposal is meant to be an offer for a unilateral contract is determined by the outward manifestations of the parties, rather than by their uncommunicated beliefs. See Mayo v. Andress, 373 So. 2d 620 (Ala.1979). It is axiomatic that an offer must be communicated before it may be accepted. See generally, S. Williston & G. Thompson, Selections from Williston's Treatise on the Law of Contracts, § 33, at 37 (Rev. ed. 1938). Indeed, if the employer does not wish the policies contained in an employee handbook to be construed as an offer for a unilateral contract, he is free to so state in the handbook. Thus, this Court has refused to hold the provisions of a handbook enforceable against an employer where the handbook at issue expressly stated the following:
McClusky v. Unicare Health Facility, Inc., 484 So. 2d 398, 400 (Ala.1986).
We do not find the indefinite nature of the time period for performance to be a bar to enforcement of a unilateral contract. On this issue, we agree with the reasoning found in Pine River:
333 N.W.2d at 628. Indeed, the rules set out above regarding the enforcement of a unilateral contract do not require that any definite time period for performance have been set or agreed to. Instead, the rule is stated that the agreement is enforceable to the extent that it has been performed. See, e.g., Louis Werner Sawmill Co., supra.
Neither do we find that the possibility of enforcement of those specific policies set out in an employee handbook creates an unduly inflexible environment for the issuance of employment guidelines, rules, policies, or benefits. As explained by the Oklahoma Court of Appeals in Langdon v. Saga Corp., 569 P.2d 524, 527-28 (Okla.Ct. App.1976), an employer is bound by the stated policies only to the extent that the benefits have accrued or performance has been made by the employee:
See also Pine River, 333 N.W.2d at 627 ("Unilateral contract modification ... may be a repetitive process. Language in the handbook itself may reserve discretion to the employer in certain matters or reserve the right to amend or modify the handbook provisions."); Toussaint, 408 Mich. at 619, 292 N.W.2d at 894-95 ("Employers can make known to their employees that personnel policies are subject to unilateral changes by the employer"). In this sense, the unilateral offer made by the employer may be characterized, as it was by one commentator, as follows: "I promise I will not dismiss you without cause (or without exhausting specified procedures) unless I change this policy before you are discharged." H. Perritt, Employee Dismissal Law and Practice, 150 (1984).[4]
In summary, we find that the language contained in a handbook can be sufficient to constitute an offer to create a binding unilateral contract. The existence of such a contract is determined by applying the following analysis to the facts of each case: First, the language contained in the handbook must be examined to see if it is specific enough to constitute an offer. Second, the offer must have been communicated to the employee by issuance of the handbook, or otherwise. Third, the employee must have accepted the offer by retaining employment after he has become generally aware of the offer. His actual performance supplies the necessary consideration.
Applying the above analysis to the facts of the present case, we find that, as a matter of law, there existed a unilateral contract between Campbell and Roche.
The handbook at issue contains, in pertinent part, the following language:
"Because personnel and pay policies and company practices are designed by people for people, they change from time to time. Your handbook will reflect this, it will be updated periodically so that the information is always as current as possible. When a new page is issued, simply use the date and section codes to locate *736 the old page in the handbook and then replace it."
In a section entitled "termination of employment-permanent employees" is the following:
In this same section, under the title "types of termination" is the following:
The language used in this handbook is clear enough that an employee reading it could reasonably believe that, as long as he worked within the guidelines set out in the handbook,[5] he would not be terminated until *737 all procedures set out in the handbook had been followed, including the reasons and circumstances for termination in the handbook.
It is not disputed that Campbell continued to work after the handbook had been issued.[6] By his retention of employment after he had become aware of the handbook (offer), he accepted the unilateral contract. His performance under this contract supplied the necessary consideration and bound Roche to follow the procedures set out in the handbook. There has been no argument made, nor is there any inference possible from the record, that these policies had been modified by the issuance of any new or modified handbook after the one in the record had been issued.
Campbell argues that Roche breached this contract by discharging him for unsatisfactory performance of his job when (1) he was too ill to satisfactorily perform the job and (2) he had been instructed by his supervisor not to take advantage of the sick leave benefits which were available to him as a Roche employee.[7] He points out that, by the express language of the handbook, Roche agreed that the policies and practices expressed therein would be "applied fairly." We note that evidence exists in the record from which a jury could have found both that Campbell was too ill to satisfactorily perform the job and also that he had been instructed by his supervisor, who was aware of the physical problems Campbell was having, not to take advantage of the company's sick leave benefits.
Campbell expresses this argument as Roche's having violated its obligation to perform the contract in "good faith and fair dealing." Roche, on the other hand, argues that it was not required to act with good faith. More specifically, it argues that the trial court erred in giving the following charge to the jury:
"I further charge the jury that the law of this state writes into every contract, *738 an implied obligation or duty of good faith and fair dealing between the parties to the contract. In determining whether the employee was wrongfully discharged as plaintiff claims in this case, you must decide whether the employer used or utilized good faith and fair dealing in making its decision to terminate the plaintiff under all of the facts and circumstances which you have heard from the evidence. Specifically, in making a determination to discharge the employee for failure to live up to performance standards of the employee, in light of the evidence presented by the plaintiff as to the plaintiff's incapacity or disability during this period of time, it and [sic] the Court further charges the jury that the physical and mental capability of the plaintiff, to comply with such performance standards of the employer, was an implied condition precedent to violation of the company rule or standard. In other words, the Court charges you that you must find that the employee, the plaintiff in this instance, was physically and mentally capable of performing up to the company's standards before you can find that the employee violated the performance standards set by the company."
Specifically, Roche argues that the effect of this instruction was to "submit to the jury a claim for bad faith on plaintiff's termination of employment."
We find no error in the judge's charge and agree with Campbell's argument that Roche's discharge of him, under the circumstances of the present case as they could have been found by the jury, constitutes a breach of contract.
Alabama recognizes the general rule that "every contract does imply [an obligation of] good faith and fair dealing." Kennedy Electric Co. v. Moore-Handley, Inc., 437 So. 2d 76 (Ala.1983); see also Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala. 1986). This obligation is described in Corbin on Contracts, § 654A(A) (Kaufman supp.1984) (hereinafter cited as "Corbin § ___") as simply "the obligation to preserve the spirit of the bargain rather than the form," and that "[i]t is moreover a group of specific rules which evolved to insure that the basic purpose of contract law is carried out, the protection of reasonable expectations of parties induced by promise." Apparently, a majority of jurisdictions now recognize this obligation. See Corbin § 654A(B).
One facet of this obligation of good faith is explained in Corbin § 654E(A):
Roche violated this obligation when it discharged Campbell for unsatisfactory performance even though it was aware of his physical inability to perform satisfactorily.
We note that this obligation of "good faith" arises as part of the contract. Its breach does not give rise to an action in tort. Harrell, supra; Kennedy, supra. On the facts of the present case, it may simply be expressed as a finding that there necessarily exists an implied or constructive condition precedent to the firing of Campbell for unsatisfactory performance, i.e., that he be physically able to satisfactorily perform. We made a similar determination in Duff v. American Cast Iron Pipe Co., supra.
*739 In Duff, an employee had been discharged for violating a company rule which provided that an employee could be discharged for:
The employee sued for reinstatement and back pay. The evidence showed that, at the time the 14-day period had ended, the employee was mentally incapable of complying with the rule. We reversed a judgment for the employer, reasoning as follows:
362 So. 2d at 888-89.
Even if such an obligation of good faith and fair dealing was not necessarily implied by law, we would find such an obligation, on Roche's part, to exist in the present case. As is aptly pointed out by counsel for Campbell, the language of the handbook expressly stated that the policies and practices of Roche would be "applied fairly." Given this language, it cannot be said that it was within the reasonable expectations of the parties that Campbell could be discharged for unsatisfactory performance when he was not physically capable of satisfactorily performing.
Roche next argues that the trial court committed reversible error when instructing the jury as to the damages assessable in this case. Our review of the record indicates, however, that the plaintiff's testimony of actual damages, as computed by an expert witness, placed this damages as high as $156,839. The defendant offered no evidence as to the nature and extent of the damages. The jury returned a verdict assessing plaintiff's damages at $150,000, and there has been no complaint that such an award was excessive. Therefore, even if it were conceded that the court erred in charging the jury on damages, and it is not so conceded, no injury resulted to the defendant therefrom. Therefore, there can be no reversal on that basis. See North British & Mercantile Ins. Co. v. Sciandra, 256 Ala. 409, 54 So. 2d 764 (1951); Lehigh Portland Cement Co. v. Higginbotham, 232 Ala. 235, 167 So. 259 (1936); Corry v. Sylvia Y Cia, 192 Ala. 550, 68 So. 891 (1915).
All other issues having been either addressed in or intentionally pretermitted in the foregoing discussion, the judgment of the trial court is affirmed.
AFFIRMED.
JONES, ALMON, SHORES and ADAMS, JJ., concur.
MADDOX and HOUSTON, JJ., dissent.
*740 MADDOX, Justice (dissenting).
The majority attempts to distinguish this Court's decision in White v. Chelsea Industries, Inc., 425 So. 2d 1090 (Ala.1983), decided just over four years ago, and fails to discuss how this case differs from Cunningham v. Etowah Quality of Life Council, 484 So. 2d 1075 (Ala.1986), decided last year, in which this Court held that an employee manual containing provisions similar to those in the handbook here did not establish a definite period of employment. When I compare the terms of the employee handbook in this case with the terms of the employee handbook in the White case, and the terms of the employee manual in Cunningham, I cannot make a distinction, and because the majority cites decisions of this Court involving American Cast Iron Pipe Company, an admittedly unique industrial organization where the employees have a part in controlling the company, I can only conclude that this Court has overruled the principle of law set out in the White and Cunningham cases. Because White was based, in part, upon this Court's case of Hinrichs v. Tranquilaire Hospital, 352 So. 2d 1130 (Ala.1977), I can only conclude that the Court has now adopted a principle of law that an employment terminable at will can be changed by the unilateral action of the employer in issuing an employee handbook or manual.
Employees in Alabama bear a heavy burden of proof to establish more than an at-will employment relationship. The law rightly considers lifetime or permanent employment contracts to be extraordinary and not lightly to be implied. Alabama Mills, Inc. v. Smith, 237 Ala. 296, 301, 186 So. 699, 704 (1939). Three elements must be shown to establish a permanent or lifetime employment contract: (1) that there was a clear and unequivocal offer of lifetime employment or employment of definite duration, Bates v. Jim Walter Resources, Inc., 418 So. 2d 903 (Ala.1982); (2) that the hiring agent had actual authority to bind the principal to a permanent employment contract, Alabama Mills, supra, 237 Ala. at 300-01, 186 So. at 703; and (3) that the employee provided substantial consideration separate from the services to be rendered, United Security Life Ins. Co. v. Gregory, 281 Ala. 264, 201 So. 2d 853 (1967). Failure to prove one of these elements would necessitate a directed verdict for the employer, because the employee would be, by law, an employee at-will and would be, therefore, terminable for any reason, or for no reason at all. Reich v. Holiday Inn, 454 So. 2d 982 (Ala. 1984); Hinrichs v. Tranquilaire Hosp., 352 So. 2d 1130 (Ala.1977).
The language relied on by Campbell as establishing a definite term of employment reads as follows: "in consideration of the employment or continued employment of employee by Roche and of salary, wages or other consideration to be paid by Roche to employee, it is hereby agreed...." (Emphasis added.) Campbell asserts that this language, under the Alabama Mills decision, means that the employment relationship would continue as long as he desired to work and performed his work satisfactorily and the employer had work for him to perform. I fail to find any basis for that conclusion in the Alabama Mills decision. Rather than looking to a single word, I look at the agreement itself. A fair reading of it leads me to conclude that it did not establish a permanent employment relationship between the parties. The agreement is what it purports to be: a nondisclosure and nonconflicts agreement. Campbell, in his brief, states that Roche required all of its employees to execute this agreement, but this cannot change the nature of the agreement; clearly, it is not an agreement that would create a contract of employment other than one terminable at will. Further, it is undisputed that Campbell was never told he could not be terminated; he acknowledged that Delk could dismiss him. He had never discussed the duration of his employment with any representative of Roche, nor had he signed a contract specifying a definite duration. For these reasons, I believe that the trial court erred in allowing this question to go to the jury.
As a second theory, Campbell argues that Roche, under the terms of its employee handbook, unilaterally limited its right to terminate, because the handbook established *741 a specific procedure to be followed in disciplinary termination, and that Roche was required to exercise good faith in his termination, and that he relied on the benefits guaranteed in that handbook. However, in White v. Chelsea Industries, Inc., supra, and in Cunningham v. Etowah Quality of Life Council, supra, this Court addressed this issue and held that an employee handbook and manual, respectively, did not alter the employment relationship and establish a definite period of employment.
In White, the employee based his argument on handbook language that read:
In White, this Court stated:
Id., at 1090-91.
In Cunningham, this Court, noting that it had read the handbook involved in that case, said:
484 So. 2d at 1076.
Pertinent portions of the "manual" in Cunningham read as follows:
"I. ORIENTATION PROCEDURES
"* * * *
"* * * *
"I. EMPLOYMENT STATUS
"* * * *
"* * * *
Etowah Quality of Life Council, Inc., Gadsden Neighborhood Health Clinic Policies, at 7, 9. (Not set out in Cunningham.)
In the present case, plaintiff's employee handbook read in part:
At another point, the present handbook provides under the heading Constructive Discipline, as follows:
The employee "manual" in Cunningham, however, also contained a section on disciplinary procedures. In pertinent part, it read as follows:
Etowah Quality of Life Council, Inc., Gadsden Neighborhood Health Clinic Policies, at 22.
The "manual" also contained sections dealing with the procedure to be followed *743 in case of "INFORMAL DISCIPLINARY ACTION" and "FORMAL DISCIPLINARY ACTION," and under the heading "FORMAL DISCIPLINARY ACTION" the manual specifically dealt with "BEHAVIOR WARRANTING DISCIPLINARY ACTION" and "DISCHARGE," under which headings were listed examples "of extremely serious offenses which normally will result in the employee's discharge."
I find the principles set forth in White and Cunningham to be applicable to these handbook provisions; in my judgment the provisions of the handbook here and the provisions of the "manual" in Cunningham are indistinguishable; absent an agreement for a specified term or duration of employment, or other agreement limiting Roche's legal right to terminate, the employment is at-will.
Admittedly, the contractual status of employee handbooks has been the subject of a great deal of litigation in recent years, and this is the third time this particular court has reviewed the principle. In the past this Court, and several other courts have rejected the notion that an employee handbook or manual can create a binding contractual obligation. Cunningham, supra; White, supra; Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 506 N.E.2d 919, 514 N.Y.S.2d 209 (1987); Wells v. Thomas, 569 F. Supp. 426 (E.D.Pa.1983); Uriarte v. Perez-Molina, 434 F. Supp. 76 (D.D.C.1977) (applying D.C. law); Heideck v. Kent General Hospital, Inc., 446 A.2d 1095 (Del.1982); Muller v. Stromberg Carlson Corp., 427 So. 2d 266 (Fla.Dist.Ct.App.1983); Shaw v. S.S. Kresge Co., 167 Ind.App. 1, 328 N.E.2d 775 (1975); Johnson v. National Beef Packing Co., 220 Kan. 52, 551 P.2d 779 (1976); Sargent v. Illinois Institute of Technology, 78 Ill.App.3d 117, 33 Ill.Dec. 937, 397 N.E.2d 443 (1979); Mead Johnson & Co. v. Oppenheimer, 458 N.E.2d 668 (Ind.App.1984); Terrebonne v. Louisiana Ass'n. of Educators, 444 So. 2d 206 (La.App.1983), cert. denied, 445 So. 2d 1232 (La.1984); Longley v. Blue Cross & Blue Shield, 136 Mich. App. 336, 356 N.W.2d 20 (1984); Gates v. Life of Montana Ins. Co., 196 Mont. 178, 638 P.2d 1063 (1983); Buffolino v. Long Island Savings Bank, FSB, 126 A.D.2d 508, 510 N.Y.S.2d 628 (1987); Toshiba America, Inc. v. Simmons, 104 A.D.2d 649, 480 N.Y.S.2d 28 (1984); Patrowich v. Chemical Bank, 98 A.D.2d 318, 470 N.Y.S.2d 599, aff'd, 63 N.Y.2d 541, 473 N.E.2d 11, 483 N.Y.S.2d 659 (1984); Edwards v. Citibank, N.A., 100 Misc.2d 59, 418 N.Y.S.2d 269 (1979), aff'd, 74 A.D.2d 553, 425 N.Y.S.2d 327, app. dismissed, 51 N.Y.2d 875, 433 N.Y.S.2d 1020, 414 N.E.2d 400 (1980); Chin v. American Tel. & Tel. Co., 96 Misc.2d 1070, 410 N.Y.S.2d 737 (1978); Harris v. Duke Power Co., 83 N.C.App. 195, 349 S.E.2d 394 (1986), aff'd, 319 N.C. 627, 356 S.E.2d 357 (1987); Walker v. Westinghouse Elec. Corp., 77 N.C.App. 253, 335 S.E.2d 79 (1985), rev. denied, 315 N.C. 597, 341 S.E.2d 39 (1986); Richardson v. Charles Cole Memorial Hospital, 320 Pa. Super. 106, 466 A.2d 1084 (1983); Bringle v. Methodist Hosp., 701 S.W.2d 622 (Tenn. App.1985); Reynolds Manufacturing Co. v. Mendoza, 644 S.W.2d 536 (Tex.Civ.App. 1982); Holloway v. K-Mart Corp., 113 Wis.2d 143, 334 N.W.2d 570 (Wis.App. 1983).
The majority wittingly or unwittingly follows Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn.1983), which criticizes the rule announced in Johnson v. National Beef Packing Co., a case this Court used as authority for the decision in White v. Chelsea Industries, Inc., 425 So. 2d 1090 (Ala.1983). In White, this Court specifically cited the cases of Johnson v. National Beef Packing Co., 220 Kan. 52, 551 P.2d 779 (1976), and Chin v. American Tel. & Tel. Co., 96 Misc.2d 1070, 410 N.Y.S.2d 737 (1978), unam. aff'd. no op., 70 A.D.2d 791, 416 N.Y.S.2d 160 (1979).
Of course, other courts, including a New Jersey court which considered a case against Hoffman-La Roche, and apparently involving the same handbook as that involved in this case, have held that an employee handbook may be contractually binding. See, e.g., Vinyard v. King, 728 F.2d 428 (10th Cir.1984) (applying Oklahoma law); Lincoln v. Sterling Drug, Inc., 622 F. Supp. 66 (D.Conn.1985) (Connecticut law); Barger v. General Electric Co., 599 F. Supp. 1154 (W.D.Va.1984) (Virginia law); *744 Smith v. Teledyne Industries, Inc., 578 F. Supp. 353 (E.D.Mich.1984) (Ohio law); Brooks v. Trans World Airlines, Inc., 574 F. Supp. 805 (D.Colo.1983) (Colorado law); Leikvold v. Valley View Community Hospital, 141 Ariz. 544, 688 P.2d 170 (1984); Pugh v. See's Candies, Inc., 116 Cal. App. 3d 311, 171 Cal. Rptr. 917 (1981); Salimi v. Farmers Insurance Group, 684 P.2d 264 (Colo.App.1984); Finley v. Aetna Life & Casualty Co., 5 Conn.App. 394, 499 A.2d 64 (1985); Jackson v. Minidoka Irrigation District, 98 Idaho 330, 563 P.2d 54 (1977); Wyman v. Osteopathic Hospital of Maine, Inc., 493 A.2d 330 (Me.1985); Staggs v. Blue Cross of Maryland, Inc., 61 Md.App. 381, 486 A.2d 798 (1985); Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980); Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn. 1983); Enyeart v. Shelter Mutual Insurance Co., 693 S.W.2d 120 (Mo.App.1985); Morris v. Lutheran Medical Center, 215 Neb. 677, 340 N.W.2d 388 (1983); Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261 (1983); Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284, 491 A.2d 1257 (1985); Forrester v. Parker, 93 N.M. 781, 606 P.2d 191 (1980); Bolling v. Clevepak Corp., 20 Ohio App.3d 113, 484 N.E.2d 1367 (1984); Langdon v. Saga Corp., 569 P.2d 524 (Okla.Ct.App.1976); Yartzoff v. Democrat-Herald Publishing Co., 281 Or. 651, 576 P.2d 356 (1978); Osterkamp v. Alkota Manufacturing, Inc., 332 N.W.2d 275 (S.D.1983); Hamby v. Genesco, Inc., 627 S.W.2d 373 (Tenn.App.1981); Piacitelli v. Southern Utah State College, 636 P.2d 1063 (Utah 1981); Thompson v. St. Regis Paper Co., 102 Wash. 2d 219, 685 P.2d 1081 (1984); Mobil Coal Producing, Inc. v. Parks, 704 P.2d 702 (Wyo.1985).
The two most recent cases on the effect of employee handbooks that my research has located are Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 506 N.E.2d 919, 514 N.Y.S.2d 209, (1987); and Duldulao v. Saint Mary of Nazareth Hosp., 115 Ill. 2d 482, 106 Ill.Dec. 8, 505 N.E.2d 314 (1987).
In Sabetay v. Sterling Drug, Inc., the plaintiff alleged that he was wrongfully discharged from employment because he refused to participate in certain improper, unethical, and illegal activities, and because he "blew the whistle" on these alleged activities. He was employed by a division of the Bender Corporation without a written contract, and he alleged that his dismissal was in violation of two contractual obligations, the first arising from the "Corporate Employee Relations Policy" manual and the second arising from Sterling's "Code of Corporate Conduct" and "Internal Control Guide" (together referred to as the "Accounting Code").
In that case, the New York Court of Appeals held as follows:
"It is still settled law in New York that, absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party (Martin v. New York Life Ins. Co., 148 N.Y. 117, 121, 42 N.E. 416). The original purposes of the employment at-will doctrine were to afford employees the freedom to contract to suit their needs and to allow employers to exercise their best judgment with regard to employment matters.
"In recent years, however, the unfettered power of employers to dismiss employees without cause has come under sharp scrutiny (see, Blades, Employment At Will v. Individual Freedom on Limiting the Abusive Exercise of Employer Power, 67 Colum.L.Rev. 1404 (1967); and see generally, Note, Protecting Employees at Will Against Wrongful Discharge: The Public Policy Exception, 96 Harv.L.Rev. 1931 (1983)). To offset the harsh effect of the at-will doctrine and to afford workers a measure of job security, other courts have carved out exceptions to the common-law employment at-will doctrine (see, Petermann v. International Bhd. of Teamsters, 174 Cal. App. 2d 184, 344 P.2d 25; Trombetta v. Detroit, Toledo & Ironton R.R. Co., 81 Mich.App. 489, 265 N.W.2d 385; Novosel v. Nationwide Ins. Co., 721 F.2d 894 (3d Cir.); Sheets v. Teddy's Frosted Foods, 179 Conn. 471, 427 A.2d 385) (recognizing claims of wrongful discharge based on dismissal for refusing to commit an unlawful act, or for performing a public obligation or for exercising a legal right); see also, *745 Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (recognizing an implied-in-law covenant of good faith and fair dealing in employment contracts which limits the right to discharge without just cause).
"In Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441, this court dealt with its longstanding acceptance of the common-law rule. The plaintiff, who had begun his career with another publishing house, was invited to join the staff of McGraw-Hill. As part of its recruitment effort, McGraw-Hill's representative assured the plaintiff that it was company policy not to terminate employees without just cause, and that employment at McGraw-Hill would bring the advantage of job security. Moreover, the application form Weiner signed specified that his employment would be subject to the provisions of the McGraw-Hill handbook on personnel policies. The handbook stated that `the company will resort to dismissal for just and sufficient cause only, and only after all practical steps toward rehabilitation or salvage of the employee had been taken and failed. However, if the welfare of the company indicates that dismissal is necessary, then that decision is arrived at and is carried out forthrightly,' id., at 460-461, 457 N.Y.S.2d 193, 443 N.E.2d 441. Weiner alleged that he had relied on these assurances when he left his former employer, forfeiting accrued fringe benefits and a proffered salary increase.
"After eight years of employment, Weiner was advised that he was discharged for `lack of application,' id., at 461, 457 N.Y.S.2d 193, 443 N.E.2d 441. He sued, alleging a breach of contract. McGraw-Hill countered that there was no contract of employment and that its promises of job security were not binding. While we found for Weiner, we adhered to our view that an employer has the right to terminate an at-will employee at any time for any reason or for no reason, except where that right has been limited by express agreement. The language in the McGraw-Hill handbook, coupled with the reference to the handbook in the employment application, amounted to an express agreement between those parties limiting the employer's otherwise unfettered right to terminate its employees. We also noted that to support his breach of contract claim, Weiner had alleged the following significant factors: `[F]irst, plaintiff was induced to leave Prentice-Hall with the assurance that McGraw-Hill would not discharge him without cause. Second, this assurance was incorporated into the employment application. Third, plaintiff rejected other offers of employment in reliance on the assurance. Fourth, appellant alleged that, on several occasions when he had recommended that certain of his subordinates be dismissed, he was instructed by his supervisors to proceed in strict compliance with the handbook and policy manuals because employees could be discharged only for just cause. He also claims that he was told that, if he did not proceed in accordance with the strict procedures set forth in the handbook, McGraw-Hill would be liable for legal action.' Id., at 465-466, 457 N.Y.S.2d 193, 443 N.E.2d 441.
"Not surprisingly, because of the explicit and difficult pleading burden, post-Weiner plaintiffs alleging wrongful discharge have not fared well (see, O'Connor v. Eastman Kodak Co., 65 N.Y.2d 724, 492 N.Y.S.2d 9, 481 N.E.2d 549; Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86; Collins v. Hoselton Datsun, 120 A.D.2d 952, 503 N.Y.S.2d 203; Citera v. Chemical Bank, 105 A.D.2d 636, 481 N.Y.S.2d 694; Patrowich v. Chemical Bank, 98 A.D.2d 318, 470 N.Y.S.2d 599) (claim dismissed because the language relied on was not sufficient to establish an express agreement); Rizzo v. International Bhd. of Teamsters, 109 A.D.2d 639, 486 N.Y.S.2d 220 (claim dismissed because employee failed to establish detrimental reliance on the assurance of job security).
"In Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86, we not only refused to recognize a common-law tort theory of liability based on abusive or wrongful discharge but more important and relevant to the instant case, we refused to adopt the *746 implied covenant of good-faith analysis recognized in some jurisdictions.
"Murphy had alleged that he had been discharged for internally reporting to top management certain alleged accounting improprieties. He contended that his company's internal regulation required him to refrain from engaging in such illegal activities and also compelled the reporting of such activities. On Murphy's breach of contract claim he urged that, although his employment was of indefinite duration there was an implied obligation in all employment contracts to deal fairly and in good faith, and that a termination in violation of that obligation exposes the employer to liability.
"We rejected plaintiff's invitation to find an implied covenant of good faith in the employment contract. In so ruling, we distinguished an employment contract from other types of contract where the implied-in-law theory has been adopted. Noting that a covenant of good faith can be implied only where the implied term is consistent with other mutually agreed upon terms in the contract, we stated: `New York does recognize that in appropriate circumstances an obligation of good faith and fair dealing on the part of the party to a contract may be implied and, if implied, will be enforced (e.g., Wood v. Duff-Gordon, 222 N.Y. 88 (118 N.E. 214); Pernet v. Peabody Eng. Corp., 20 A.D.2d 781 (248 N.Y.S.2d 132)). In such instances the implied obligation is in aid and furtherance of other terms of the agreement of the parties. No obligation can be implied, however, which would be inconsistent with other terms of the contractual relationship * * in which the law accords the employer an unfettered right to terminate employment at any time. In the context of such an employment it would be incongruous to say that an inference may be drawn that the employer impliedly agreed to a provision which would be destructive of his right of termination * * * to imply such a limitation from the existence of an unrestricted right would be internally inconsistent.' (Id., [58 N.Y.2d] at 304-305, 461 N.Y.S.2d 232, 448 N.E.2d 86). Lastly, we concluded that Murphy had failed to establish an express limitation on the employer's right of discharge under the strict guidelines established in Weiner. Id., [58 N.Y.2d at 305, 461 N.Y.S.2d 232, 448 N.E.2d 86].
"Dispositive in Murphy was plaintiff's failure to establish an express limitation on his employer's right of discharge, (id., [58 N.Y.2d] at 305 [461 N.Y.S.2d 232, 448 N.E.2d 86]; accord, O'Connor v. Eastman Kodak Co., 65 N.Y.3d 724, 492 N.Y.S.2d 9, 481 N.E.2d 549, supra). Although plaintiff had made general references to an employer's manual, he cited no provisions pertinent to the right to terminationcertainly none rising to the explicit restriction that, in the circumstances of Weiner, was found to be actionable. Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 305, 461 N.Y.S.2d 232, 448 N.E.2d 86, supra.
"As in Murphy, plaintiff Sabetay has failed to demonstrate a limitation by express agreement on his employer's unfettered right to terminate at will, and all four of the breach of contract causes of action must be dismissed. To the contrary, the language in Sterling's personnel handbook, "Accounting Code" and employment application refutes any possible claim of an express limitation. The personnel manual was circulated to an extremely limited number of Sterling managerial employees solely for the purpose of determining post-termination benefits, and plaintiff was not one of those few employees authorized to receive a copy. Similarly, the "Accounting Code" and statement on the employment application requiring Sterling employees to abide by company rules do not, taken together, rise to an express agreement that Sterling would not dismiss an employee for following its policies of full disclosure of business improprieties. Rather, these two documents merely suggest standards set by Sterling for its employees' performance of their duties that, without more, cannot be actionable.
"We have noted that significant alteration of employment relationships, such as the plaintiff urges, is best left to the Legislature. See, Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 301-302, 461 N.Y.S.2d 232, 448 N.E.2d 86, because stability *747 and predictability in contractual affairs is a highly desirable jurisprudential value.
"Indeed, the Legislature has responded to this appropriate sensitivity by enacting numerous protections against abusive discharge and by prohibiting employers from discharging at-will employees for reasons contrary to public policy (see, Judiciary Law § 519; Executive Law § 296(1)(e); Labor Law §§ 215, 740; Civil Service Law § 75-b).
"In sum, to sustain the plaintiff's complaint in this case, the court would have to relax the Weiner requirements, to expand the Weiner holding into the implied contract category, and to overrule the recently resolved Murphy rejection of implied covenants in employment relationships. Based on stare decisis principles and sound contractual and policy reasons, we do not believe we should do any of those things, no less all of them."
In Duldulao v. Saint Mary of Nazareth Hosp., the Illinois Supreme Court, following the case of Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn.1983), which is relied upon so heavily by the majority as persuasive authority, did hold, as follows:
"Following the reasoning in Pine River, we hold that an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after *748 learning of the policy statement. When these conditions are present, then the employee's continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed."
I would point out, however, that in Duldulao, the Court was considering the question for the first time. In Alabama, we have already considered the question and have direct authority to the contrary. Cunningham, supra; White v. Chelsea Industries, Inc., supra. I am of the opinion that the Cunningham and White decisions are controlling in this case. White is cited in Duldulao as a decision that reached a result opposite from that of Duldulao.
The New York court in Edwards v. Citibank, N.A., supra, set forth the contract principles that this Court applied in White, and which, in my opinion, are the law of this state:
100 Misc.2d at 60, 418 N.Y.S.2d at 270. In fact, the opinions in White and Edwards and the most recent decision of the New York Court of Appeals in Sabetay are like mirror images of each other.
Ninety-six years ago, in Howard v. East Tennessee, Virginia & Georgia Railroad, 91 Ala. 268, 8 So. 868 (1891), this Court adopted what is commonly known as the employment-at-will rule. The rule, stated simply, is that "an employment contract at will may be terminated by either party with or without cause or justification." Hinrichs v. Tranquilaire Hospital, 352 So. 2d 1130, 1131 (Ala.1977). The employer may fire, or the employee may quit, for "a good reason, a wrong reason, or no reason." Id.
The employment-at-will rule had gained widespread acceptance in this country by the turn of the century. Note, The Employment at Will Rule, 31 Ala.L.Rev. 421, 424 (1980). As an extension and reflection of the laissez-faire /freedom-of-contract philosophy of the day, the rule was perceived as a step forward from the preceding era's paternalistic attitude in employment relationships. Comment, Employment-at-Will: Defining the Parameters, 16 Cumb.L.Rev. 377, 390 (1986) (hereinafter cited as Comment, Employment-at-will). See also, Note, Protecting Employees at Will Against Wrongful Discharge: The Public Policy Exception, 96 Harv.L.Rev. 1931 (1983) (hereinafter cited as Note, Protecting Employees at Will).
In recent years, the employment-at-will rule has been severely criticized by legal commentators as being "unacceptable in light of today's economic, technological, and sociological realties." See Note, Protecting Employees at Will, supra, at 1931, *749 n. 3. Comment, The At-Will Doctrine: A Proposal to Modify the Texas Employment Relationship, 36 Baylor L.Rev. 667, 668 (1984) (hereinafter cited as Comment, The At-Will Doctrine). The rule's strict application has received criticism for protecting the employer "who instead of terminating employees only when he has grounds to do so," discharges them with "caprice, vindictiveness, or malice." Id. at 667. A majority of courts now recognize, or have indicated that they will recognize, some form of exception to the employment-at-will rule in an effort to ameliorate its sometimes unjust results. Id. at 668.
This Court has not been blind to the fact that "[t]he rule has been applied to obtain harsh and inequitable results" in Alabama. Meredith v. C.E. Walther, Inc., 422 So. 2d 761, 762 (Ala.1982). We have consistently refused, however, to recognize an exception to the employment-at-will rule. In Hinrichs v. Tranquilaire Hospital, 352 So. 2d 1130 (Ala.1977), this Court, in a modern-day pronouncement of the rule, explained why it would not adopt an exception: An exception would (1) "abrogate the inherent right to contract between employer and employee"; (2) "overrule existing Alabama law"; and (3) invade the province of the legislature, the body best suited for the creation of such an exception. Id. at 1131.
Following Tranquilaire, we received a deluge of appeals requesting that we overrule Tranquilaire and adopt a public policy exception to the employment-at-will rule. Williams v. Killough, 474 So. 2d 680 (Ala. 1985); Meeks v. Opp Cotton Mills, Inc., 459 So. 2d 814 (Ala.1984); Reich v. Holiday Inn, 454 So. 2d 982 (Ala.1984); Johnson v. Gary, 443 So. 2d 924 (Ala.1983); Kitsos v. Mobile Gas Service Corp., 431 So. 2d 1150 (Ala.1983); White v. Chelsea Industries, Inc., 425 So. 2d 1090 (Ala.1983); Dreyspring v. Kar Products, Inc., 422 So. 2d 764 (Ala.1982); Meredith v. C.E. Walther, Inc., 422 So. 2d 761 (Ala.1982); Bates v. Jim Walter Resources, Inc., 418 So. 2d 903 (Ala. 1982); Bender Ship Repair, Inc. v. Stevens, 379 So. 2d 594 (Ala.1980); Newby v. City of Andalusia, 376 So. 2d 1374 (Ala. 1979); Bierley v. American Cast Iron Pipe Co., 374 So. 2d 1341 (Ala.1979); Martin v. Tapley, 360 So. 2d 708 (Ala.1978). In Bender Ship Repair, Inc. v. Stevens, 379 So. 2d 594 (Ala.1980), we declined to adopt such an exception and upheld the right of an employer to discharge an employee for his absence from work based upon his response to a subpoena for jury duty. We again declined to modify the Tranquilaire employment-at-will rule in Meeks v. Opp Cotton Mills, Inc., 459 So. 2d 814 (Ala. 1984). There, we upheld an employer's right to fire an employee for the sole reason that he brought against his employer a worker's compensation claim for job-related injuries.
Our holdings in Bender Ship Repair and Meeks prompted the legislature to enact Code 1975, § 12-16-8.1 and § 25-5-11.1 (Cum.Supp.1985). These sections read as follows:
These expressions by our legislature concerning the public policy of this state as regards employment-at-will, shows that the legislature has changed the pure application of the employment-at-will rule. Also the socio-economic reasons that produced the employment-at-will rule in this country in the first place, and made its pure application desirable, may no longer exist, but this Court, until today, has refused to adopt even a narrow "public policy" exception to the rule. Jones v. Ethridge, 497 So. 2d 1107 (Ala.1986). Until today this Court has refused to expand the principles of contract law in handbook cases. Cunningham, supra; White, supra.
The majority correctly states that an "increasing number of jurisdictions have given contractual effect to language contained in handbooks," but most of those cases have been decided since 1980, and that is no reason to distinguish or overrule Cunningham and White, decided in 1983 and 1986 respectively. Most states do not follow the rule this Court adopted in Hinrichs v. Tranquilaire Hospital, 352 So. 2d 1130 (Ala.1977), and followed in Jones v. Ethridge, supra, and while I have not independently checked the law of each of the jurisdictions that have recognized that an employee handbook can create an implied, binding obligation on the employer, I know that various states have rules of law applicable to employment contracts which are different from the Alabama rule. Many states may regulate hiring and firing practices more minutely than does Alabama. Some of these principles are set out in Sabetay, from which I quote extensively, because it states what I thought the Alabama rule was.
While this Court has the power to distinguish the Cunningham and White cases, or to overrule them, I believe the principle of stare decisis is especially applicable to cases of such recent vintage, particularly where the public policy reasons behind the cases has not been changed, either legislatively or judicially. Sabetay, supra.
Assuming, however, that Cunningham and White stand only for the proposition that each employer-employee dispute involving an employee handbook or manual will be reviewed on a case-by-case basis, I still, nevertheless, cannot find the cases to be distinguishable.
In White, the employee contended that he could be discharged only "for cause," because of handbook language stating:
"TERMINATION
This Court concluded that, contrary to the employee's contention, the handbook language did not limit the employer's right to discharge its employees for any reason.
In the present case, the plaintiff's employee handbook read, in part:
At another point, the handbook in this case provides, under the heading "Constructive Discipline," as follows:
The word "generally," which is used in the handbook, in my opinion, means "usually," and the words "generally" and "normally" are used in the "manual" in Cunningham, but even if the handbook here was held to create a binding obligation, I believe the language used in this handbook and the language used in the handbook in the Pine River case cited by the majority are easily distinguishable. In that case, the handbook section entitled "Disciplinary Policy" provided as follows:
Pine River, 333 N.W.2d at 626 n. 3. The language in the Pine River handbook is mandatory, whereas the language in the Roche handbook could be described as hortatory.
The plaintiff cites this Court to several of its decisions involving employee relationships with American Cast Iron Pipe Company (ACIPCO). See Farlow v. Adams, 474 So. 2d 53 (Ala.1985); Smith v. American Cast Iron Pipe Co., 370 So. 2d 283 (Ala. 1979); Duff v. American Cast Iron Pipe Co., 362 So. 2d 886 (Ala.1978). The majority relies on these decisions to support the result it reaches here. Duff was decided in 1978, long before the decisions in Cunningham and White, and this Court, in Cunningham and White, apparently attached no significance to the ACIPCO cases. I believe those case are inapposite here. ACIPCO's relationship with its employees is unique to the world of business and must be considered sui generis. As was discussed in Farlow, supra, the employment relationship at ACIPCO is a hybrid of employment contract principles and trust principles, and the employees actually have a role in managing the company; therefore, decisions in those cases are not controlling on the case at hand.
Because I believe no enforceable obligation was breached by Roche, I believe the trial court erred in failing to direct a verdict in Roche's favor on the contract count. For that reason, I would reverse the judgment of the trial court.
It is possible that I should apply the principle Judge Cardozo advanced:
Nevertheless, the doctrine of stare decisis is a powerful force in our jurisprudence. While I recognize that it should never be used to perpetuate error, it seems inappropriate for this Court to overrule two cases decided within the past four years and to establish a principle of contract law in employer-employee relationships that can be expanded to cover oral agreements or implied agreements.
The litigant here is afforded better treatment than were the litigants in Cunningham and White. Personally, I do not favor a termination-at-will doctrine that allows an employer to fire an employee under circumstances like those in Hinrichs and in Jones v. Ethridge, but the legislature has convened several times since the Hinrichs case was decided, and has not overturned the doctrine of that case. It has, as pointed out in this dissent, addressed two of our cases, Meeks, supra, and Bender Ship Repair, supra, but it has not dealt with the whole termination-at-will doctrine; therefore, it is aware of the public policy issues. Sabetay, supra.
I believe that the legislature is the appropriate body of government to address the policy considerations arising out of employer-employee relationships. Many employees are granted job security and fringe benefits by civil service laws, union contracts, or specific individual contracts, which state the term of employment and the benefits available and the rights of the parties in case of disagreement. There are many laws, state and federal, which restrict employer hiring and firing practices that are discriminatory or constitute an unfair labor practice.
As I have already pointed out, the termination-at-will doctrine has been severely criticized, and several jurisdictions admittedly follow the new rule announced by this Court today when there is an employee handbook or manual, and maybe I should join the majority in this case and determine that the old termination-at-will doctrine, and the requirement of mutuality of contract in employer-employee relationships should no longer be followed, but I cannot do so in this case. Sabetay, supra.
At the very least, I would give the legislature a chance to adopt a state policy before declaring it by case law. See Utica Mutual Ins. Co. v. Tuscaloosa Motor Co., 295 Ala. 309, 329 So. 2d 82 (1976), wherein a three-judge plurality wrote:
The legislature is in a better position to determine the specific public policy considerations and to strike a balance between the competing interests, in my opinion; therefore, for those reasons, I must respectfully dissent.
HOUSTON, J., concurs.
[1] Both Meeks and Bender Ship Repair have been effectively abrogated by the legislature's adoption of statutory rules to the contrary. See Code of 1975, § 12-16-8.1, which overruled Bender Ship Repair and Code of 1975, § 25-5-11.1, which overruled Meeks.
We especially note that this Court's decision in Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala.1986), although it discusses public policy, should not be read as recognizing a public policy exception. Indeed, the cases cited in this case decided after Harrell indicate that it cannot be so read.
[2] While we also find much of what the Toussaint court stated to be well-reasoned and logical, we find the actual analysis used in Pine River to be more consistent with traditional contract principles than Toussaint. The analysis used and the result in Toussaint is similar to that found in Pine River, but Pine River is more specific in its analysis.
[3] Interestingly, under this analysis, it does not matter whether the offer is made at the time of original hiring or after the employee has been hired. Consideration is supplied by the employee's performance, in either context, when he is not required to perform. See Pine River, 333 N.W.2d at 629-30.
[4] Thus, in a very real sense, the employee is still an employee "at-will." He may still be dismissed for any reason, good or bad, as long as the provisions found in the company handbooks are followed and he is given credit for those benefits which have accrued.
[5] For example, in a section entitled "constructive discipline," the following promise is made:
"The only restrictions the company puts on your conduct are those necessary to insure proper operation of the business, safe working conditions, and protection of the company's property and processes.
"Occasionally, an employee may violate a rule of good conduct. In such a case, the disciplinary procedures outlined here are applied. The purpose of disciplinary action is to correct the deficiency and help make an employee more valuable. Penalties are used only as a last resort.
"Before taking any disciplinary action, a supervisor attempts to get all the facts: Was the misconduct accidental or willful? Has the employee had similar incidents? Did other circumstances contribute to the incident?
"If disciplinary action is necessary, it generally is taken in the order below, although a serious offense might warrant taking more serious action.
"1. Oral warnings in private are an effort to correct the employee's actions.
"2. Written warnings are a more serious attempt at correction and become part of an employee's records.
"3. Suspension occurs only with the approval of the department head and division personnel manager and is without pay.
"4. Discharge occurs when management believes the employee will not change behavior patterns.
"The types of offenses for which the four-step disciplinary process would generally be followed include: tardiness; poor work performance because of negligence; excessive absenteeism; violation of company traffic or parking regulations; use of profane or abusive language; horseplay or pranks; unauthorized solicitations of any kind; posting or distributing unauthorized materials.
"The types of serious offenses that might lead to discharge or suspension as a first penalty include: unauthorized removal, possession, or destruction of company or employee property; conviction of homicide, rape, assault and battery, assault with a deadly weapon, grand larceny, illegal possession or sale of narcotics, or other crime of violence; unauthorized possession on company property of intoxicating beverages, narcotics, or substances that state or federal statutes define as controlled; theft or unauthorized sale, use, or diversion of substances defined by state or federal statutes as controlled; unauthorized possession of weapons of any kind on company property; gambling on company property; insubordination or willful disregard of an order; willful neglect of duty; willful disregard of safety instructions; willful falsification of company records; smoking in research, manufacturing, warehouse, or storage areas (other than in designated smoking areas); absence for three consecutive workdays without reporting to your supervisor; knowingly writing on someone else's time card or falsifying a time card.
"The development and manufacture of controlled substancesour businessis very sensitive. Roche must meet security requirements set by the Drug Enforcement Agency. If you know of drug diversion or theft by an employee, it is your responsibilty to inform the Security Department. Information will be kept confidential and reasonable steps will be taken to protect your identity.
"Taking pictures inside the plant is not allowed, although it is not necessarily a disciplinary offense. If you have to take photographs connected with your work, contact the Manager of Audio Visual Services."
An employee could reasonably, and justifiably, believe that, unless he had committed one of the expressly enumerated "serious offenses," the disciplinary pattern would follow the four-step process listed in the manual.
We note that Roche argues in its brief that Campbell was actually fired for "insubordination"one of the enumerated serious offensesand could, therefore, be discharged for a first offense. However, no such argument was made at trial. Therefore, it should not be considered. See, e.g., First National Bank of Pulaski, Tennessee v. Thomas, 453 So. 2d 1313 (Ala.1984). Even if it had been argued, it is clear that whether or not, as a matter of fact, the discharge had been made because of insubordination would have been a question of fact for the jury. The jury could have decided the issue adversely to Roche.
[6] There is some dispute as to whether the handbook at issue was actually issued after he had began working for Roche or at the time he was hired. As explained earlier, the resolution of this fact is of no significance as long as Campbell continued to work after he became aware of the handbook policies.
[7] We do not find it necessary to set out these benefits verbatim, as their existence has never been in dispute. | July 10, 1987 |
a56759c1-b7b4-4047-9ccf-3fea3642a53d | Whisman v. Alabama Power Co. | 512 So. 2d 78 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 78 (1987)
Arnold WHISMAN
v.
ALABAMA POWER COMPANY.
HARTFORD FIRE INSURANCE COMPANY and Vanguard Industrial Corporation.
v.
ALABAMA POWER COMPANY.
Allan DENSON and Hartford Fire Insurance Company
v.
ALABAMA POWER COMPANY.
85-1067, 85-1068 and 85-1085.
Supreme Court of Alabama.
July 17, 1987.
*79 Clarence F. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellant.
Roger C. Suttle of Inzer, Suttle, Swann & Stivender, Gadsden, and James H. Miller III and Martha F. Petrey, of Balch & Bingham, Birmingham, for appellee.
HOUSTON, Justice.
Vanguard Industrial Corporation ("Vanguard"), Hartford Fire Insurance Company ("Hartford"), Allan Denson ("Denson"), and Arnold Whisman ("Whisman"), in three consolidated cases, appeal from orders *80 granting summary judgment in favor of Alabama Power Company ("APCo") by the Etowah County Circuit Court on the basis of res judicata, collateral estoppel, and the failure of the appellants to assert compulsory counterclaims under Rule 13, Ala.R. Civ.P.
In June 1980, a fire in Attalla, Alabama, destroyed a warehouse in which property of Vanguard, Denson, and Whisman was stored. Hartford was the fire insurance carrier for Vanguard and Denson; Hartford paid Vanguard and Denson in accordance with the insuring agreement and took a subrogation assignment. Eight suits were filed claiming, inter alia, that APCo negligently caused the fire.
One of these suits, Culp Iron & Metal, Inc. v. Alabama Power Co., CV 80-1771-S, was tried in 1983 (hereinafter Culp v. APCo). Before the trial of Culp v. APCo and with leave of court, APCo had joined Vanguard, Hartford, Denson, and Whisman as third-party defendants and claimed that their negligence caused the fire and resulting property damage to APCo's substation. This joinder was discussed by the court and all parties and the joinder was allowed without objection. Neither Vanguard, Hartford, Denson, or Whisman filed a counterclaim against APCo or moved to consolidate any of the other pending suits. Each of them did assert the affirmative defense of the contributory negligence of APCo, and the trial court charged the jury on their contributory negligence defense.
In Culp v. APCo, the trial court propounded certain special interrogatories to the jury. The first one was: "Do you find that Alabama Power Company was negligent in supplying electricity to Vanguard Industrial Corporation so as to proximately cause all the damages to Culp Iron and Metal?" The jury answered this question "No" and returned a verdict in APCo's favor on the claims of Culp, who was the owner of the warehouse.
The second question was: "Do you find that Alabama Power Company was negligent in supplying electricity to Vanguard and that Alabama Power Company's negligence combined or concurred with one or more of the third-party defendants or others to proximately cause the damages to Culp Iron and Metal?" The jury answered this question "No."
The fourth special interrogatory was: "Do you find the issues in favor of Alabama Power Company on its third-party complaint against either Vanguard or Hartford or both?" The jury answered this affirmatively, finding that Vanguard and Hartford negligently caused the fire. A verdict for $35,000 was returned in favor of APCo.
The trial court entered a judgment for APCo against Culp and for APCo against Vanguard and Hartford. Vanguard and Hartford then appealed to this Court. See, Vanguard Industrial Corp. v. Alabama Power Co., 455 So. 2d 837 (Ala.1984), in which this Court held that because the jury wrongfully apportioned damages, APCo had to nol-pros its judgment against Vanguard or Hartford. On remand, APCo nol-prossed the judgment against Hartford and proceeded to collect and satisfy the judgment against Vanguard.
There then remained in the Circuit Court of Etowah County seven other lawsuits pending against APCo, including the three which are consolidated in this appeal, which arose out of the same operative facts as those in Culp v. APCo. APCo amended its answer in these lawsuits to raise the affirmative defenses of res judicata, collateral estoppel, and failure to assert a compulsory counterclaim. It then filed motions for summary judgment, which were granted.
With respect to the three suits consolidated here for appeal, APCo argued that because the plaintiffs were parties in Culp v. APCo, their claims were barred.
A valid, final judgment on the merits of an issue extinguishes that issue and operates as an absolute bar in a subsequent suit between the same parties on any issue which was or could have been litigated. *81 Lesley v. City of Montgomery, 485 So. 2d 1088 (Ala.1986); Educators' Investment Corp. of Alabama, Inc. v. Autrey, 383 So. 2d 536 (Ala.1980): Ozley v. Guthrie, 372 So. 2d 860 (Ala.1979); Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190 (Ala.1978); McGruder v. B & L Construction, Inc., 331 So. 2d 257 (Ala.1976); A.B.C. Truck Lines, Inc. v. Kenemer, 247 Ala. 543, 25 So. 2d 511 (1946).
The interest of society demands that there be an end to litigation, that multiple litigation be discouraged, not encouraged, and that the judicial system be used economically by promoting a comprehensive approach to the first case tried. See, Commentary, Issue Preclusion in Alabama, 32 Ala.L.Rev. 500 (1981).
In the 1983 trial (Culp v. APCo), APCo, as a third-party plaintiff, prevailed in the suit against it brought by Culp and prevailed on its claim against Vanguard and Hartford as third-party defendants. The issues presented were the cause of the fire at Vanguard's plant, the alleged negligence of APCo and of Vanguard and Hartford, and the alleged contributory negligence of APCo. In two cases now on appeal, No. 85-1068 and, as to Hartford, No. 85-1085, the identical issues are presented. The third-party action presented issues in mirror image.
The traditional res judicata case (frequently referred to as a claim preclusion) involves prior litigation between a plaintiff and a defendant, which is decided on the merits by a court of competent jurisdiction, and then a subsequent attempt by the prior plaintiff to relitigate the same cause of action against the same defendant, or perhaps to relitigate a different claim not previously litigated but which arises out of the same evidence. Alabama law is well settled that this will not be allowed. A valid, final judgment on the merits of the claim extinguishes the claim. If the plaintiff won, the claim is merged into the judgment; if the defendant won, the plaintiff is barred from relitigating any matter which could have been litigated in the prior action. Lesley v. City of Montgomery, supra; Ozley v. Guthrie, supra; Wheeler v. First Alabama Bank of Birmingham, supra; McGruder v. B & L Construction, Inc., supra. Likewise, under res judicata we have consistently rejected an attempt by a former defendant to relitigate issues that were, or could have been, raised in prior litigation that ended in a valid adjudication by a court of competent jurisdiction. Educators' Investment Corp. of Alabama, Inc. v. Autrey, supra; A.B.C. Truck Lines, Inc. v. Kenemer, supra.
In A.B.C. Truck Lines, two lawsuits arose out of a two-truck collision. The first lawsuit was filed in Georgia by Kenemer against A.B.C. Truck Lines. The issue concerned the negligent operation of an A.B.C. Truck Lines truck, and judgment was rendered in favor of Kenemer. Thereafter, A.B.C. Truck Lines filed suit against Kenemer in Alabama for damage to A.B.C. Truck Lines' truck in the collision. The trial court dismissed the action; we affirmed. Discussing the doctrine of res judicata, we wrote:
247 Ala. at 547, 25 So. 2d at 514.
We further held that if a judgment goes against the defendant, and he afterwards sues the plaintiff on a claim "which he might have presented in the first suit but did not, if the facts which he must establish to authorize his recovery are inconsistent with the facts on which the plaintiff recovered in the first action, the former judgment is a bar." Res judicata may be pleaded as a bar, not only as to matters actually presented to sustain or defeat the right asserted in the earlier proceeding, but also as to any other available matter that might have been presented to *82 that end. A.B.C. Truck Lines v. Kenemer, 247 Ala. at 548, 25 So. 2d at 515. APCo elected to recover the judgment in full from Vanguard and nol-prossed the judgment against Hartford.
The fact that the judgment against Hartford was nol-prossed by APCo in accordance with our opinion in Vanguard Industrial Corp. v. Alabama Power Co., supra, has no effect on the defense of res judicata. The issue has been litigated and, if the defense is asserted, the prior litigation will preclude this issue from being relitigated. A nolle prosequi is a formal entry upon the record by the plaintiff in a civil suit by which he declares that he "will no further prosecute" the case either as to some of the defendants or altogether. Black's Law Dictionary (5th ed. p. 945). If a judgment is nol-prossed, then the plaintiff is stating that he will not prosecute it further, but it remains a bar to any future action. For purposes of res judicata, the nol-prossed judgment remains a prior judgment on the merits even though the plaintiff has entered on the court record a declaration that he will not pursue its execution.[1]
We affirm APCo's summary judgment in Case No. 1068 (Vanguard and Hartford) and as to Hartford in Case No. 85-1085. The issues sought to be relitigated were precluded from such litigation under an issue preclusion aspect of res judicata.
Denson was plant manager, general manager, and president of Vanguard. He was Vanguard's representative at the trial of Culp v. APCo and testified at that trial. No judgment was entered against Denson and in favor of APCo in Culp v. APCo; APCo dismissed Denson as a third-party defendant at the close of all the evidence and before the case was submitted to the jury.
The party identity criterion of res judicata does not require complete identity, but only that the party against whom res judicata is asserted was either a party or in privity with a party to the prior action (Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190, 1200 (Ala.1978), or that the non-party's interests were adequately represented by a party in the prior suit, and the relationship between the party and non-party is not so attenuated as to violate due process. Century 21 Preferred Properties, Inc. v. Alabama Real Estate Commission, 401 So. 2d 764, 770 (Ala.1981).
In Century 21 there was a state court lawsuit brought by certain real estate franchisees, challenging the advertising regulations of the Alabama Real Estate Commission. Prior to the state case being filed, other Century 21 franchisees had filed a federal action seeking essentially the same relief. They were unsuccessful and the defendant in the state case sought to use the federal judgment as a bar, even though the parties in the state case were not identical to the parties in the federal action. We rejected appellants' contention that the lack of identical parties made the plea of res judicata ineffective. Justice Jones, writing for this Court, stated:
"Judgments can bind persons not party (or privy) to the litigation in question where the nonparties' interests were represented adequately by a party in the original suit. Southwest Airlines Co. v. Texas International Airlines, 546 F.2d 84, 94-95 (5th Cir.1977). A person may *83 be bound by a judgment even though not a party to a suit if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative. Aerojet-General Corporation v. Askew, 511 F.2d 710, 719 (5th Cir.1975). Moreover, if a party has a `sufficient "laboring oar" in the conduct' of the litigation, then the principle of res judicata can be actuated. Montana v. United States, 440 U.S. 147, 155, 99 S. Ct. 970, 974, 59 L. Ed. 2d 210 (1979)."
401 So. 2d at 770.
In a "substantial identity" case strikingly similar to the case at hand, the Second Circuit Court of Appeals held that the president of a company was bound by a judgment against the company. Kreager v. General Electric Co., 497 F.2d 468 (2d Cir.), cert. denied, 419 U.S. 861, 95 S. Ct. 111, 42 L. Ed. 2d 95, 419 U.S. 1041, 95 S. Ct. 530, 42 L. Ed. 2d 319 (1974). Kreager involved an antitrust issue that had been pending in one form or another in the court for six years. In the first action, a small company, Mercu-Ray, sued General Electric and others for antitrust violations. Kreager was the president and the sole shareholder of Mercu-Ray. The jury returned a verdict in favor of the defendants and answered an interrogatory to the effect that there was no conspiracy resulting in an unreasonable restraint of trade. On the same day, Kreager commenced a second action asserting identical claims. This complaint was dismissed on the grounds of res judicata. On appeal the Second Circuit affirmed.
The court reasoned that Kreager, although not named as a party in the first action, had actively participated in the suit. He was present throughout the trial, attended conferences in judges' chambers, and was a witness for the company. Thus, "[h]e had an identical interest with [the company] and was bound by the judgment against it." Kreager, 497 F.2d at 472.
The reasoning in both Century 21 and Kreager applies to the case here. Denson testified that he was the plant manager and general manager of Vanguard. He also testified that as general manager, he was in charge of fire safety. Denson was Vanguard's representative at the trial and testified for the company. He was not a stockholder. It is confusing in the record; however, it appears that Denson's wife owned all of the stock in Vanguard. To support the motion for new trial, Denson filed an affidavit in which he says he is the president of Vanguard.
Denson was individually named as a third-party defendant in Culp v. APCo. He had counsel, cross-examined witnesses, introduced evidence, and participated in all phases of the trial. Clearly, Denson had a sufficient "laboring oar" in the proceeding, Broughton v. Merchants National Bank of Mobile, 476 So. 2d 97 (Ala.1985). He is precluded from relitigating the issue of APCo's negligence in starting the fire, since he was in privity with Vanguard and his interests were adequately represented not only by Vanguard but by Denson himself. Broughton v. Merchants National Bank of Mobile.
Whisman also was named as a third-party defendant in Culp v. APCo. He also had counsel, cross-examined witnesses, introduced evidence, and participated in all phases of the trial. Clearly, Whisman also had a sufficient "laboring oar" in the proceeding and is precluded from relitigating the issue of APCo's negligence in starting the fire; his interests were not only adequately represented by Vanguard and Hartford, but were adequately represented by Whisman himself. Broughton v. Merchants National Bank of Mobile.
It is not necessary for a resolution of these cases to determine whether Whisman's and Denson's failure to file counterclaims in Culp v. APCo would also bar their actions under Rule 13(a), Ala.R.Civ.P.
Denson and Whisman contend that since they were dismissed as third-party defendants before a jury had an opportunity to deliberate APCo's third-party complaint against them, they would be deprived of their constitutional guarantee of *84 a trial by jury, if we hold that their actions are now barred. We disagree.
The issue raised in Whisman's and Denson's cases is whether APCo's negligence was a contributory cause of the June 1980 fire. In Culp v. APCo, in which Whisman and Denson fully participated, that issue was resolved by a jury in favor of APCo. The fact that Whisman and Denson were dismissed as third-party defendants in Culp v. APCo immediately prior to the submission of the case to the jury did not deny Whisman and Denson of a trial by jury as to that issue.
A second suit arising out of the June 1980 fire was tried by a court without a jury five and one-half months after Culp v. APCo. The plaintiff was S & S Screw Machine Company. The defendants were Vanguard and Culp. APCo was not a party. The court found in favor of Vanguard and Culp, and a review of the fragmentary elements of that case that are in the record causes us to believe that the trial court found that S & S Screw Machine's loss was not caused by the negligence of Vanguard or Culp. The appellants here contend that for some reason, which we cannot comprehend, this should have some bearing on the cases presented before this Court. We fail to see how this is material in any of the cases at issue. All of the cases now before this court seek to recover damages from APCo due to its negligence in causing the June 1980 fire. That issue has been resolved. A jury has determined that APCo was not negligent in causing the fire. In addition, the jury determined that Vanguard and Hartford were negligent in causing the fire, that their negligence proximately caused APCo's loss, and that APCo was not contributorily negligent so as to bar its claim. The effect that Culp v. APCo could have had in precluding issues before the court in S & S Screw Machine v. Vanguard and Denson is not before this Court. We can see no res judicata effect, either as claim preclusion or issue preclusion, that S & S Screw Machine has on any of the three cases consolidated for this appeal.
AFFIRMED.
JONES, ALMON, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
The majority cites the plurality opinion in Century 21 Preferred Properties, Inc. v. Alabama Real Estate Commission, 401 So. 2d 764, 770 (Ala.1981), in support of its decision. I am of the opinion that Century 21 was incorrectly decided (see my dissenting opinion, 401 So. 2d at 770, in which Faulkner and Embry, JJ., joined).
I dissent in this case on the same grounds I expressed in my dissent in Century 21.
[1] It is probable that the better procedure would have been for us to enter a retraxit, rather than require a nolle prosequi of one of the apportioned judgments. If so, this also would be a complete bar. See, e.g., Thomason v. Odum, 31 Ala. 108 (1857). | July 17, 1987 |
3190dd9b-6cf6-4afb-9f05-de026ef6d713 | Howton v. Avery | 511 So. 2d 173 | N/A | Alabama | Alabama Supreme Court | 511 So. 2d 173 (1987)
Johnny HOWTON
v.
Jerry Dale AVERY.
86-514.
Supreme Court of Alabama.
July 10, 1987.
*174 Lee R. Benton of Schoel, Ogle and Benton, Birmingham, for appellant.
William N. Clark of Redden, Mills & Clark, Birmingham, for appellee.
PER CURIAM.
The appellant would have us create a cause of action for tortious interference with a marital contract. We see no reason to reopen an avenue to litigation that the Legislature, in its wisdom, closed in 1935 by enactment of a statute codified at Code 1975, § 6-5-331.
We affirm the judgment dismissing the case and adopt the following language from Arnac v. Wright, 163 Ga.App. 33, 292 S.E.2d 440, 442 (1982):
See, also, Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So. 2d 321 (1961).
AFFIRMED.
TORBERT, C.J., and JONES, SHORES, ADAMS and STEAGALL, JJ., concur. | July 10, 1987 |
179e331d-fae8-4185-be51-2cae4ec21a3d | Weatherly v. Hunter | 510 So. 2d 151 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 151 (1987)
Paul B. WEATHERLY, Sr.
v.
Frank HUNTER.
85-1352.
Supreme Court of Alabama.
June 26, 1987.
Edward F. Morgan, Tuscaloosa, for appellant.
Clark Summerford, of Zeanah, Hust & Summerford, Tuscaloosa, for appellee.
ADAMS, Justice.
Plaintiff appeals from a judgment for defendant Frank Hunter entered pursuant *152 to a verdict directed by the Circuit Court of Tuscaloosa County. The plaintiff, Paul B. Weatherly, Sr., filed a complaint against Christy LaShan White and Frank Hunter, charging that the defendants caused personal injury to Weatherly by their combined and concurring negligence or wantonness. The plaintiff reached a settlement with White prior to trial, and his claim against Hunter was tried before a jury. After all evidence had been heard, the trial court directed a verdict for defendant Hunter on the plaintiff's wantonness claim. The jury returned a verdict in favor of defendant Hunter on the plaintiff's negligence claim. The plaintiff argues that the trial court erred by directing a verdict for the defendant on the claim of wantonness and in denying his motion for a new trial. We reverse the judgment of the trial court.
The facts reveal that Weatherly was involved in two automobile accidents on May 6, 1983; the first, a collision with a vehicle driven by Christy LaShan White, and the second, moments later, when Weatherly's truck was struck by a truck driven by defendant Frank Hunter. After the collision with White, Weatherly's truck was stopped while both White and Weatherly waited for the police to arrive. Hunter, who was traveling east on Skyland Boulevard in Tuscaloosa at approximately 40 miles per hour, looked to his left at the White vehicle, which was wrecked and stopped on the median. When he looked back to the roadway, he testified, he saw the Weatherly truck stopped off the roadway but saw that the rear corner of the vehicle extended two to two-and-one-half feet onto Skyland Boulevard. Hunter's truck struck the left rear corner of Weatherly's truck, and Weatherly alleges that he was injured when he dove out of the path of Hunter's truck to avoid being struck. Weatherly claimed that no part of his truck was on the roadway at the time it was struck by Hunter's truck.
This Court has held previously:
W.T. Ratliff Co. v. Purvis, 292 Ala. 171, 291 So. 2d 289 (1974). The appellant alleges that Mr. Hunter knowingly entered an area of Skyland Boulevard with an awareness that a wreck had occurred. Testimony was presented at trial that Mr. Hunter turned to look at Ms. White's damaged automobile which was stopped on the median of Skyland Boulevard after her collision with the appellant. When his attention returned to the roadway ahead of him, Mr. Hunter testified, he was too near to the Weatherly vehicle to avoid a collision. He testified that he did not swerve left because he feared he might hit a car traveling in the left lane of the divided highway. Hunter asserted the affirmative defense that Weatherly was contributorily negligent in leaving his truck parked partially on the roadway, an allegation Weatherly denied. The jury returned a verdict for Hunter on Weatherly's allegation of negligence.
We are asked here to rule that the trial court erred in directing a verdict for defendant Hunter on the allegation of wantonness. Weatherly argues that Hunter was familiar with Skyland Boulevard; knew that it was a busy roadway; failed to keep a proper lookout when he looked back at the vehicle in the median just moments before the collision; and, by failing to give proper regard to a potentially dangerous situation, knowingly violated his duty to operate his truck in a safe manner. Weatherly also cites Culpepper & Stone Plumbing & Heating Co. v. Turner, 276 Ala. 359, 162 So. 2d 455 (1964); Myers v. Evans, 287 Ala. 710, 255 So. 2d 581 (1971); and Sparks v. Milligan, 295 Ala. 358, 330 So. 2d 417 (1976), as being factually similar to the present case. Although we find that the factual situations in these cases are inapposite to the facts in th present case, *153 we conclude that a scintilla of evidence exists on the issue of wantonness.
The standard of review to be used in determining the appropriateness of a directed verdict is well established:
Draughon v. General Fin. Credit Corp., 362 So. 2d 880, 883-84 (Ala.1978). Viewing the evidence in a light most favorable to the appellant, we hold that a scintilla of evidence arguably exists to support the allegation of wantonness in the conduct of Mr. Hunter with regard to his collision with the appellant's truck.
We hold that the Circuit Court of Tuscaloosa County erred by directing a verdict for the defendant on the allegation of wantonness and in denying the plaintiff's motion for a new trial. We reverse the judgment for the defendant and remand for a new trial on the issue of wantonness. See Lynn Strickland Sales & Service, Inc. v. Aero Lane Fabricators, Inc., 510 So. 2d 142 (Ala.1987).
REVERSED AND REMANDED.
JONES, ALMON, SHORES, BEATTY and HOUSTON, JJ., concur.
MADDOX and STEAGALL, JJ., dissent. | June 26, 1987 |
6604b804-889b-4ffe-b1b8-bf7643f468d8 | Burge v. Parker | 510 So. 2d 538 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 538 (1987)
Stephen BURGE and Montgomery Emergency Physicians, P.A.
v.
Ronnie PARKER, a minor, who sues By and Through his mother and next friend, Willie Mae PARKER, and Willie Mae Parker, individually.
85-69.
Supreme Court of Alabama.
June 19, 1987.
*539 Thomas H. Keene of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellants.
Frank M. Wilson and J. Greg Allen of Beasley and Wilson, Montgomery, for appellees.
ALMON, Justice.
In this medical malpractice case, the jury awarded $445,351.00 to the minor plaintiff and $17,500.00 to his mother. The defendants take issue with the judgment entered on these verdicts on the grounds that the damages were excessive and that the plaintiffs were contributorily negligent as a matter of law.
Ronnie Parker injured his foot early on Saturday morning, April 2, 1983, while climbing across a flatcar owned by Seaboard System Railroad. He was taken to St. Margaret's Hospital, where Dr. Stephen Burge treated him in the emergency room. Dr. Burge cleaned, stitched, and bandaged a laceration on the bottom of Ronnie's foot, but took no X-rays. The reports prepared by the firemedic who arrived at the scene of the injury and by the ambulance personnel indicated that the chief complaint was a fracture of the foot. The admitting clerk at the hospital typed on the admission form a statement that he had a possible fracture of the right foot, but a handwritten entry on the form lists the chief complaint as a laceration of the foot.
Dr. Burge sent Ronnie home and told him to keep his foot elevated. Later that day, Ronnie returned to the hospital complaining of continuing pain. His mother, Willie Mae Parker, asked Dr. Burge if he had taken X-rays, and Dr. Burge responded that it was not necessary to take X-rays. The wound was re-dressed, and Ronnie was released with instructions to keep his foot elevated. On Monday, his pain was worse, so his mother called St. Margaret's Hospital. She was told that St. Margaret's was not operating the city's emergency room that day but would again on Tuesday, so she could bring Ronnie then. When she brought Ronnie to the hospital on Tuesday, April 5, he was treated by Dr. Baker, who ordered X-rays, admitted Ronnie to the hospital, and called in Dr. Warner L. Pinchback, Jr., an orthopedic surgeon, for consultation.
Dr. Pinchback diagnosed Ronnie as having compartment syndrome, a swelling of tissues inside the muscle compartments that causes increased pressure on the blood vessels; this increased pressure decreases circulation and tends to cause the muscles to die. Dr. Pinchback diagnosed three fractures from the X-rays. He opened the wound to clean it and removed 100 cc's, or about half a pint, of clotted blood from the wound. On April 7, Dr. Pinchback again cleaned the wound and removed more dead tissue. On April 11, Dr. Pinchback surgically removed Ronnie's big toe. Because Ronnie had lost a significant amount of muscle and skin from his foot, his doctors transferred him to Baptist Medical Center on April 19 for further treatment by Dr. *540 William E. Noblin, a plastic surgeon. Part of Dr. Noblin's treatment was a cross-leg skin graft, which necessitated Ronnie's immobilization in a body cast for 13 days.
The Parkers filed suit against Seaboard System Railroad, St. Margaret's Hospital, Dr. Burge, and Montgomery Emergency Physicians, P.A. It is acknowledged that Dr. Burge was acting as an agent of Montgomery Emergency Physicians when he treated Ronnie. Seaboard System Railroad and St. Margaret's Hospital entered into pro tanto settlements with the Parkers totalling approximately $206,000.00. The case proceeded to trial against the two remaining defendants, who are the appellants here.
The Parkers presented as an expert witness Dr. Steven J. Davidson, a specialist in emergency medicine from Pennsylvania. Dr. Davidson testified that Dr. Burge fell below the standard of care when he failed to review the reports and take an adequate history, when he failed to order X-rays, and when he closed the wound. There was evidence both from Dr. Davidson and from Dr. Pinchback that the wound continued to bleed after Dr. Burge closed it. Dr. Davidson testified that the fractures themselves would cause swelling and bleeding into the foot, which would lead to compartment syndrome, i.e., increased pressure, loss of circulation, and necrosis of the tissues normally supplied by the blood that was cut off.
Dr. Davidson testified that an X-ray would have shown the fractures and that such compound fractures presented a serious risk of infection and required treatment that would stop the bleeding but allow the wound to drain. He testified that he would have recommended consultation with an orthopedic surgeon and hospitalization, and that if the patient had rejected such a recommendation, he would have applied hemostatic pressure dressings and would have given specific instructions to the patient or, in this case, to the parent about caring for and monitoring the wound. He testified that the most crucial period for the proper care is the first 24 hours. Finally, Dr. Davidson testified that if Dr. Burge had followed standard care for this injury, Ronnie Parker's foot probably would have had a full recovery in approximately six weeks and that "if the wound [had not been] closed, he would not have developed compartment syndrome; and therefore, would not have lost his great toe."
Dr. Morris S. White, the owner of Montgomery Emergency Physicians, P.A., testified that in a case such as Ronnie Parker's he would not have closed the laceration if he were aware of the fractures, that he would have consulted an orthopedic surgeon, and that closing the wound created a risk of compartment syndrome. This and other expert testimony in the case was compatible with Dr. Davidson's conclusion that Dr. Burge did not follow the proper standard of care and that, had he done so, Ronnie probably would have recovered fully in approximately six weeks.
Thus, the jury properly could have found that the surgeries performed by Drs. Pinchback and Noblin, the extensive damage to Ronnie's foot, and the pain and suffering attendant to these injuries and these operations were the proximate result of sub-standard care by Dr. Burge. Such findings would bear heavily on the question of whether the jury awarded excessive damages.
The trial court entered a detailed order denying the defendant's motion for judgment notwithstanding the verdict or, in the alternative, for new trial. Because this order is pertinent to the question of whether the jury awarded excessive damages, we set it forth in full here:
Defendants do not take issue with the court's conclusion that they failed to preserve any alleged error with regard to the testimony about loss of earning power; they simply argue that the evidence showed that Ronnie had no significant loss of earning power. Nevertheless, there was evidence of some occupational disability. Furthermore, there was substantial evidence of pain and suffering. Defendants argue against the verdict in this respect by reference to Ronnie's loss as being only that of his big toe and a portion of his foot and by mentioning only the suffering of being immobilized two weeks during the skin graft treatment. They point out that his treating physicians, Drs. Pinchback and Noblin, stated that they could not say that Ronnie would have kept his toe if his treatment had been any different. The jury could have found, however, from Dr. Pinchback's testimony that Ronnie might well have kept his toe had Dr. Burge not closed the wound on the first visit.
At any rate, there was credible evidence that Dr. Burge negligently failed to obtain X-rays and thereby diagnose the compound fractures, and that he therefore administered the wrong treatment. There was credible evidence that this improper treatment caused Ronnie to suffer a great deal more than he would have if the proper treatment had been administered, that it necessitated extensive surgical procedures to remedy the resulting damage, and that his recovery was much more protracted and less complete than if he had been given the proper treatment. Under these facts, we agree with the trial court that the verdict, while high, cannot be said to have resulted from bias, passion, prejudice, or other improper motive.
Jury verdicts are presumed correct, especially when the damages are for pain and suffering, and that presumption is strengthened where the trial court denies a motion for new trial. Blue Star Ready Mix v. Cleveland, 473 So. 2d 497 (Ala.1985); Coca-Cola Bottling Co. v. Parker, 451 So. 2d 786 (Ala.1984). Under the facts of this case, the judgment of the trial court on the verdict and on its denial of the motion for new trial is not due to be reversed, nor is a remittitur due to be granted by this Court.
Defendants argue that judgment should have been granted in their favor because plaintiffs were guilty of contributory negligence as a matter of law. Plaintiffs correctly point out that defendants did not make a motion for directed verdict at the close of all the evidence and did not assert contributory negligence as a ground for granting JNOV or new trial. Defendants do not reply to this argument in their reply brief, so nothing is presented to persuade us that plaintiffs are incorrect in saying that this asserted ground for reversal is not presented for our review. Moreover, the only arguments as to contributory negligence with respect to the claim against these defendants, such as the argument that Ronnie failed to fully inform Dr. Burge of the circumstances of the accident and the argument that he and his mother *543 failed to follow Dr. Burge's instructions for care, present at most fact questions, not evidence of contributory negligence as a matter of law. Therefore, this argument presents no error.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
MADDOX, JONES, SHORES and BEATTY, JJ., concur. | June 19, 1987 |
36ec6bee-f97b-471b-8d6a-22a290b96cda | Crowden v. Grantland | 510 So. 2d 238 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 238 (1987)
Henry L. CROWDEN, et al.
v.
Ted GRANTLAND and Jo Ann Grantland.
86-609.
Supreme Court of Alabama.
June 26, 1987.
*239 John Mark McDaniel, Huntsville, for appellants.
Robert T. McWhorter, Jr., Decatur, for appellees.
SHORES, Justice.
This is an appeal from a judgment entered in a boundary line dispute between coterminous landowners. We affirm.
At the outset we note that this case was tried ore tenus, and the trial court's findings of fact are presumed to be correct and will not be disturbed on appeal if supported by credible evidence. Hamade v. Combs, 505 So. 2d 320 (Ala.1987) (citing Smith v. Nelson, 355 So. 2d 359 (Ala.1978)).
The dispute involves a 1.36-acre strip of land in Morgan County, Alabama. The entire strip of disputed property is in the West ½ of the Northwest ¼ of the North-west ¼ of Section 25, Township 6 South, Range 3 West (hereinafter "West Parcel"), and that disputed strip extends 1320 feet North and South along the eastern boundary line of the West Parcel. Cain Road is the western boundary of the disputed property, and this strip of land is approximately 65 feet wide at the North end and approximately 25 feet wide at the South end.
About 1915, Morgan County obtained a right-of-way for a road that later became known as Cain Road. The right-of-way was described as lying "on the west side of the east one half of the Northwest one quarter of the Northwest one quarter." This description indicates that Cain Road ran North and South along the one-eighth section line and was the boundary line to the property. In 1981, Crowden had the property surveyed, and was informed that Cain Road was west of the actual government survey one-eighth section line.
Crowden, the defendant below, claims title to the disputed property by deed description and by adverse possession since March 20, 1958. Crowden's deed describes the West Parcel, which contains all of the disputed property.
The Grantlands, the plaintiffs below, claim title to the disputed property by adverse possession for more than 10 years and by tacking the periods of possession of their predecessors in title. The Grantlands' deed, executed in 1970, describes the East ½ of the Northwest ¼ of the Northwest ¼ (hereinafter the "East Parcel").
The Grantlands' immediate predecessor in title had acquired the property by descent from the Neal family, which had owned the East Parcel since the 1920's. The Grantlands presented witnesses who testified that the Neal family had been in actual possession of the disputed property and had claimed all of the property up to Cain Road. Additionally, former tenants testified that they had rented houses on the disputed property from the Neal family and had used all of the property East of Cain Road. It is not necessary to physically reside upon the property in order to adversely possess it, May v. Campbell, 470 So. 2d 1188 (Ala.1985), and the acts of a tenant will inure to the benefit of the landlord and the landlord may alter boundary lines through the possession of his tenant. Kerlin v. Tensaw Land & Timber Co., 390 So. 2d 616 (Ala.1980).
The trial court properly found that by the 1930's, the Neal family had acquired perfect title to the disputed parcel by adversely possessing the property up to Cain Road for 10 years. There was evidence to support the finding that the Neal family's possession of the property was actual, open, hostile, continuous and exclusive for 10 years, and that the holders of paper title had acquiesced in the possession *240 of the property by the Neal family. Long recognition and acquiescence by adjoining landowners raise the presumption that the land up to the road was held adversely. Lilly v. Palmer, 495 So. 2d 522 (Ala.1986). Once title vested in the Neal family, they did not have to continue adversely possessing the property in order to retain title to the property. Roberts v. Mitchell, 437 So. 2d 512 (Ala.1983). The Neal family's title could be divested only by their conveying the property or by losing the property to another adverse possessor. Roberts, supra.
In 1958, when Crowden received his deed to the West Parcel, title to the disputed property had long since been vested in the Neal family. Some of Crowden's predecessors in title testified that they had never claimed ownership of any property east of Cain Road. Therefore, Crowden could not have obtained title to the disputed property described in his deed because his grantors had no title that they could convey. Graham v. Hawkins, 281 Ala. 288, 202 So. 2d 74 (1967).
The only evidence offered by Crowden to support his claim of adverse possession was testimony that he had paid taxes on the disputed property and that he had occasionally mowed it. The trial court correctly ruled that sporadically going upon the land is insufficient to establish exclusive and adverse possession. Cockrell v. Kelley, 428 So. 2d 622 (Ala.1983). Additionally, the payment of taxes is not per se dispositive on the question of adverse possession; it must be accompanied by possession that is actual, open, notorious, hostile, exclusive, and continuous. Calhoun v. Smith, 387 So. 2d 821 (Ala. 1980).
In 1970, Mr. Grantland attempted to persuade Crowden to execute an agreement establishing Cain Road as the boundary line. Crowden refused to execute this agreement and now argues that Mr. Grantland's recognition of Crowden's claim conclusively establishes Crowden's title to the disputed property. Although efforts to obtain deeds from other claimants to disputed property may be an element tending to disprove adverse possession, Kerlin, supra, Crowden fails to recognize that title to the property had vested in the Grantlands' predecessors in title and that the Grantlands did not have to adversely possess the property in order to acquire title. The Grantlands acquired title to the disputed property by obtaining possession from their grantor, and they could not lose their title by attempting to secure an agreement to establish the boundary line in order to settle the dispute and possibly avoid litigation. Crowden could have acquired title to the disputed property only by adverse possession, and this he failed to prove.
We hold that the trial court correctly concluded that the disputed property was held adversely by the Grantlands and their predecessors in title, and that perfect title is vested in the Grantlands, and that Crowden has no right, claim, or interest in the disputed property. The judgment of the trial court is affirmed.
AFFIRMED.
JONES, ALMON and ADAMS, JJ., concur.
STEAGALL, J., concurs in the result. | June 26, 1987 |
074cdd71-13a5-4aca-9999-f56379aa66ba | Edwards Dodge, Inc. v. PA. NAT. MUT. CAS. INS. | 510 So. 2d 225 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 225 (1987)
EDWARDS DODGE, INC.
v.
PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE CO.
85-1346.
Supreme Court of Alabama.
June 26, 1987.
Sterling G. Culpepper, Jr., and Keith B. Norman of Balch & Bingham, Montgomery, for appellant.
Michael S. Jackson of Melton & Espy, Montgomery, for appellee.
PER CURIAM.
Edwards Dodge, Inc., appeals from a declaratory judgment holding that Edwards Dodge was not entitled to a defense and coverage under the terms of a liability insurance policy issued to Edwards Dodge by Pennsylvania National Mutual Casualty Insurance Company. We reverse.
*226 Donald and Lisa Adair purchased an automobile from Edwards Dodge in November 1984. In May 1985, the Adairs filed a complaint against Edwards Dodge, alleging that Edwards Dodge had represented to them that the automobile they purchased had to be financed at the used car interest rate, as opposed to the lower, new car interest rate, because the automobile was a "demonstrator." Count I of the Adairs' complaint reads, in pertinent part, as follows:
Count II of the complaint alleges fraudulent representation.
At the time the Adairs filed their complaint, Edwards Dodge was insured under a liability policy purchased from Pennsylvania National. Edwards Dodge notified Pennsylvania National of the lawsuit and requested that Pennsylvania National tender a defense on behalf of Edwards Dodge. Pennsylvania National denied this request, based on exclusions contained in the policy. The exclusionary provisions of the policy provided in part, "We will not pay and we will have no duty to defend any claim or suit arising out of: ... Any dishonest, fraudulent, criminal or malicious act, libel or slander."
Following receipt of Pennsylvania National's refusal to tender a defense, Edwards Dodge filed a declaratory judgment action seeking a declaration of Pennsylvania National's obligations under the policy.
The trial court ruled that the exclusions in the policy were unambiguous and, because the lawsuit alleged "fraudulent misrepresentation," that Edwards Dodge was not entitled to coverage under the policy and Pennsylvania National was not obligated to defend.
The issue in this case is whether reckless conduct, as alleged in Count 1, paragraph 11, of the Adairs' complaint, relieves Pennsylvania National from a duty to defend and a duty to provide coverage to Edwards Dodge.
Edwards Dodge asserts that the terms of the policy ("dishonest, fraudulent, criminal or malicious") exclude from coverage conduct that is intentional; and that reckless conduct is not intentional conduct, and, therefore, is not excluded from coverage.
The provisions of an insurance policy must be construed in light of the interpretation that ordinary men would place upon the language used in the policy. Newman v. St. Paul Fire & Marine Insurance Co., 456 So. 2d 40 (Ala.1984).
The trial court's judgment is presumed to be correct when factual findings are based upon evidence presented ore tenus; however, this presumption does not apply where the trial court erroneously applies the law to the facts. Owens v. Durden, 440 So. 2d 1079 (Ala.Civ.App.1983).
Although there are no cases in Alabama construing the term "dishonest" in the context of insurance policies, the Court of Appeals for the Fifth Circuit has defined the term as including acts that evidence a want of integrity and an intentional breach of trust. United States Fidelity & Guaranty Co. v. Bank of Thorsby, 46 F.2d 950 (5th Cir.1931). The term "dishonesty" is defined in Black's Law Dictionary 421 (5th ed. 1979), as "disposition to lie, cheat, or defraud; untrustworthiness; lack of integrity."
In Walker v. Woodall, 288 Ala. 510, 513, 262 So. 2d 756, 758 (1972), this Court stated the following with regard to a charge instructing the jury that punitive damages could be assessed if the defendant had "knowingly, willfully, falsely and fraudulently misrepresented":
We note that "fraud," as defined in Ala. Code 1975, § 6-5-101, includes unintentional or innocent misrepresentations. However, this Court has held that code definitions have no application in determining the presence of fraud, and the Court of Appeals for the Fifth Circuit, relying on this statement, has held that statutory definitions do not apply to the definition of fraud in an insurance case. See National Union Fire Insurance Co. v. Schwab, 241 Ala. 657, 4 So. 2d 128 (1941), cited in National Surety Corp. v. Musgrove, 310 F.2d 256 (5th Cir.1962), cert. denied, 375 U.S. 974, 84 S. Ct. 482, 11 L. Ed. 2d 420 (1964).
The Illinois Supreme Court has stated that under bonds to indemnify brokers for losses arising from criminal acts of employees, the commission of a "criminal act" in violation of public laws requires the joint operation of an act and an intention. Home Indemnity Co. v. Reynolds & Co., 38 Ill.App.2d 358, 187 N.E.2d 274 (1962).
"Malicious" is defined as "having or done with wicked or mischievous intentions or motives; wrongful and done intentionally without just cause or excuse." Black's Law Dictionary 863 (5th ed. 1979).
The meaning of "reckless" has been addressed by this Court on several occasions. In Harrison v. State, 37 Ala. 154, 156 (1860), the Court interpreted the word as follows:
In a later case, the Court stated:
Richmond & Danville R.R. v. Farmer, 97 Ala. 141, 146, 12 So. 86, 88 (1892). In Merrill v. Sheffield Co., 169 Ala. 242, 252, 53 So. 219, 222 (1910), the Court held that "`Reckless' is not the equivalent of `wanton' or `intentional.'"
The foregoing cases show that a finding of "reckless" conduct is not premised on intentional acts. The Adairs' complaint alleges reckless misrepresentation as well as intentional misrepresentation. The policy in question excludes conduct that is defined as involving intentional acts. Accordingly, the Adairs' complaint contains allegations of conduct that do not relieve Pennsylvania National from its duty of providing a defense and coverage to Edwards Dodge.
Based on the foregoing, the judgment of the trial court is reversed and the cause remanded.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON, SHORES and STEAGALL, JJ., concur. | June 26, 1987 |
30bb5d75-2d64-450b-abd7-5355bb324720 | Ex Parte Adams | 514 So. 2d 845 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 845 (1987)
Ex parte Leland C. ADAMS, Jr., Robert Bates, Gary L. Bradford, Robert M. Myers, James C. Frederick, Tommy Albright, William H. Hill, David J. Keeton, Nick Johnson and James Sloan in their capacity as Members of the Board of Operatives of the American Cast Iron Pipe Company.
(Re W.D. MOORE, et al. v. Kyle HARDIN, et al.)
86-773.
Supreme Court of Alabama.
July 24, 1987.
Rehearing Denied September 4, 1987.
*846 W. Eugene Rutledge of Rutledge & Kelly, Birmingham, for petitioners.
A.J. Noble, Jr., and Robert G. Tate of Burr & Forman, Birmingham, for respondents.
HOUSTON, Justice.
The petitioners seek a writ of mandamus directing Judge Marvin Cherner of the Jefferson County Circuit Court to award attorney fees and expenses. The writ is denied.
The Board of Operatives ("Operatives") of the American Cast Iron Pipe Company ("ACIPCO") filed petitions in the Circuit Court of Jefferson County seeking payment of attorney fees and expenses incurred in four separate lawsuits that are pending in this Court. The Operatives also filed a petition for an award of attorney fees and expenses incurred in another case previously decided by this Court. Judge Cherner denied the petitions, and the Operatives filed this petition for a writ of mandamus. Judge Cherner's order reads as follows:
"This case has now been submitted for decision by this Court on the ... petition[s] of plaintiffs, the members of the Board of Operatives, for payment of attorneys' fees and expenses.
"In a number of petitions for allowance of ... attorneys' fees and expenses, the Board of Operatives seek [a] an ... award totalling $112,462.50 representing compensation for the services of its attorneys in... five cases as of September 5, 1986, and, in addition, reimbursement of expenses in the amount of $11,546.33.
"Practically all of the matters at issue in [these] cases [revolve] around a disagreement between the Board of Operatives and the Board of Management regarding their respective roles under the terms of the Eagan Trust established under the Will of John J. Eagan for the purpose of operating the business of American Cast Iron Pipe Company ("ACIPCO").[[1]] Earlier decisions on issues involving the rights of ACIPCO *847 employees include Duff v. American Cast Iron Pipe Co., 362 So.[2d] 886 (Ala.1978); Smith v. American Cast Iron Pipe Co., 370 So. 2d 283 (Ala. 1979); Farlow v. Adams, 474 So. 2d 53 (Ala.1985); Ex parte Johnson, 481 So. 2d 353 (Ala.1985).
"In the codicil of his Last Will, John J. Eagan left all of the common stock of ACIPCO to the members of the Board of Management and members of the Board of Operatives of ACIPCO jointly as trustees. Eagan gave the trustees power to vote the stock of ACIPCO, stating that it was his desire that the Board of Management should vote as a unit and that the Board of Operatives should vote as a unit, with the vote of each group being determined by the majority vote of the members of the respective Boards. In the event of the failure of the trustees to agree upon any question, the question would be referred to the Board of Directors, whose decision would be final.
"On March 30, 1942, the trustees, consisting of members of the Board of Operatives and members of the Board of Management, filed a petition for instructions with this Court asking this Court to determine whether they as trustees had the right and authority to adopt reasonable rules and regulations to govern the conduct of the trust and whether the rules and regulations submitted with the petition were reasonable and proper rules and regulations to be adopted by the trustees.
"Twelve of the employees of ACIPCO employed in various departments of the ACIPCO plant and performing various classes of work were named as respondents and represented by an attorney. Following submission, the Circuit Court for the Tenth Judicial Circuit of Alabama on April 6, 1942, entered a final decree determining that the trustees had the right and authority to adopt reasonable rules and regulations governing the conduct of the trust and that those submitted by them were reasonable and proper rules and regulations and that the trustees would be governed and directed by such rules thereafter.
"Article XI, Section 1, of the rules and regulations confirmed by the court decree and now incorporated in the By-Laws of the ACIPCO, provides in part as follows:
"`In the event the two units of the Board of Trustees shall fail to agree upon any question, then said question in dispute may be referred to the Board of Directors, whose decision on said question in dispute shall be final. Either the Board of Management or the Board of Operatives may direct the Secretary of this Board to refer said question to the Board of Directors. The Secretary shall make such reference in writing. Any meeting of the members of the Board of Directors held for the purpose of deciding a question in dispute between the units shall be presided over by an attorney authorized to practice law in Birmingham, Alabama, who is not a member of either the Board of Operatives or the Board of Management. Such presiding officer shall be paid a reasonable fee for his services. He shall be appointed by the presiding judge of the court having jurisdiction over this trust, which court is at the present time the Circuit Court of the Tenth Judicial Circuit of Alabama.'
"At the 1984 Annual Meeting of the Board of Trustees, a dispute arose between the Board of Management as a trustee and the Board of Operatives as a trustee as to who should be elected directors of the company. In accordance with the rules and regulations quoted above, the dispute was referred to the Board of Directors for resolution.
"ACIPCO made application to Judge John Bryan, as the Presiding Judge of the Circuit Court for the Tenth Judicial Circuit of Alabama, asking that he appoint an attorney to preside over the meeting of the Board of Directors.
"After presentation and argument of counsel for ACIPCO, Judge Bryan appointed J.N. Holt as the attorney to preside over the meeting. That particular meeting of the Board of Directors was never held following the appointment of J.N. Holt.
"At the 1985 Annual meeting of the Board of Trustees, there was again a dispute *848 between the Board of Management and the Board of Operatives. The matter was again referred to the Board of Directors for a final resolution and, on March 12, 1985, ACIPCO, Carl P. Farlow, as Chairman of its Board of Directors, and P.W. Green, as Secretary of the Board of Trustees, applied to Judge Bryan again to appoint an attorney to preside over the meeting of the Board of Directors of ACIPCO. No notice of the application was provided the Board of Operatives. However, according to the memorandum of law filed on behalf of the Board of Management, a copy of the order appointing J.N. Holt was served on W. Eugene Rutledge, presently the attorney of record for the Board of Operatives. Nick Johnson and James Sloan, represented by Rutledge, then moved for reconsideration of the order appointing J.N. Holt. In the petition, Rutledge first argued that the petitioners had filed the application without giving notice of the same to the Board of Operatives. It was also his position that the decree rendered by this Court in 1942 in case No. 52715 authorizing the adoption of rules and regulations governing the trust was void and that the appointment of J.N. Holt was therefore invalid.
"The motion for reconsideration was overruled by the Presiding Judge. On appeal, the supreme court held that the circuit court had acquired jurisdiction in the 1942 declaratory judgment action and, by approving and adopting the rules and regulations of the Board of Trustees, retained jurisdiction over the trust, the corpus of which is located in Jefferson County.
"The supreme court did determine, however, that the members of the Board of Operatives were necessary parties to subsequent proceedings involving the administration of the trust and were entitled to notice and an opportunity to appear and participate in the appointment of an attorney by the Presiding Judge.
"The supreme court granted the writ of mandamus and directed the circuit court to vacate the ex parte order of March 12, 1985, and to proceed only after the Board of Operatives had been made a party to the proceeding and been afforded an opportunity to participate. Ex parte Johnson, 481 So. 2d 353 (Ala.1985).
"The same disagreement again occurred at the 1986 Annual meeting. This time, the Board of Operatives [was] made a party to the application to Judge Bryan for the appointment of an attorney. Judge Bryan again appointed J.N. Holt to preside over the meeting of the Board of Directors. The Board of Operatives then sought a stay of the appointment from Judge Bryan and also sought a stay from this Court. All of the stays were denied. The meeting of the Board of Directors was then held with J.N. Holt presiding over the meeting, and the matters in dispute were resolved. Judge Bryan's 1986 order appointing J.N. Holt is now on appeal to the Supreme Court of Alabama.
"The issue pending on appeal of the 1986 order is whether there can be any basis at the present time for attacking the validity of the 1942 decree authorizing the adoption of the rules and regulations under which J.N. Holt was appointed to preside over the meeting of the Board of Directors.
"While other issues regarding the 1942 decree are still pending on appeal, the supreme court in Ex parte Johnson, supra, rejected the argument that the 1942 decree was invalid because this Court lacked subject matter jurisdiction.
"The only issue resolved in favor of the Board of Operatives by the supreme court's decision in Ex parte Johnson, supra, was that the Board of Operatives was a necessary party to any proceeding seeking the appointment of an attorney to preside over the meeting of the Board of Directors and was therefore entitled to notice of the application for such appointment and to have an opportunity to participate in the subsequent proceedings seeking such an appointment.
"In his dissenting opinion in Ex parte Johnson, supra, Justice Faulkner said that on March 11, 1985, the day before the application was submitted, P.W. Green, Secretary of the Board of Trustees, gave notice to members of both Boards that an application would be made to the presiding *849 Judge for the appointment of an attorney. He concluded that the Board of Operatives had notice of the application and that its complaint was without merit.
"Justice Faulkner also noted that neither Board objected to J.N. Holt as the appointee. The Board of Operatives contended that the entire procedure was improper because the rule establishing the procedure for the appointment of an attorney was invalid and that the Presiding Judge did not have authority to make any appointment.
"The other four cases involving controversies between the Board of Operatives and the Board of Management are presently pending on appeal before the Supreme Court of Alabama. In all four cases, the position taken by the Board of Operatives was rejected by this Court. For example, in Adams v. Farlow, Civil Action No. CV 85-500-576 WAT, the Board of Operatives sought preliminary injunction requiring ACIPCO to cancel its agreements with Manpower, Inc., for the use of temporary contract labor; it asked that new rules and regulations be established for the recall of laid-off employees; the Board of Operatives also concluded Leland Adams, Jr., had been improperly reprimanded when he left the plant premises during working hours for the purpose of consulting with the attorney for the Board of Operatives but without permission to do so; the Board of Operatives also alleged that business conducted at one of the meetings was invalid because of the failure to have a quorum at the meeting. In that case, the request for temporary restraining order and for preliminary injunction was denied by this Court.
"Similar allegations were involved in the other lawsuits, Civil Action No. 855-505-127 WAT; Civil Action No. CV 86-636; and Civil Action No. CV 53715. For example, in Moore v. Hardin, CV 53715, the Board of Operatives sought to challenge the final judgment rendered by this Court in 1942, by a motion filed pursuant to Rule 60(b) of the Alabama Rules of Civil Procedure. The Board argued that this Court had no jurisdiction because there was no justiciable controversy; that the decree could not be binding on the employees of ACIPCO in 1942 because no guardian ad litem had been appointed for future employees or for those who were not adults; that the decree was unconstitutional because it violated the Fourteenth Amendment to the United States Constitution by enforcing racially restrictive provisions; and that the 1942 decree was obtained by fraud. By order rendered by this Court on May 29, 1986, this Court concluded that none of the grounds asserted by the plaintiffs had merit. In part, this Court stated:
"`Finally, plaintiffs have failed to present any evidence of fraud sufficient to overturn the 1942 decree after a period of forty-four years.'
"The Board of Operatives relies on common law principles and § 34-3-60, Alabama Code 1975, to argue that it should be awarded ... attorneys' fees and expenses. The Board of Operatives also relies on Article IV-A of the By-laws as mandating the award of ... attorneys' fees. Article IV-A was construed by the supreme court in Farlow v. Adams, as follows:
"`The requirements for indemnification set forth in the above sections are as follows: (1) membership on the Board of Operatives, Board of Trustees, or Board of Directors; (2) status as a `party' to a civil action because of membership on one of such Boards; and, (3) action in a manner that is reasonably believed by the indemnified party `to be in or not opposed to the best interests of the company.'
"In Farlow v. Adams, supra, the supreme court held that the Board of Operatives was entitled to an award of attorneys' fees. However, the supreme court had there determined that members of the Board of Operatives were wrongfully terminated from their employment for their actions as members of the Board of Operatives and not for reasons related to their jobs or duties as employees. The supreme court said in that case that the [members of the] Board of Operatives were entitled to attorney's fees incurred by them in protecting their rights and duties as trustees of the Eagan trust.
*850 "In [the] cases presently pending on appeal before the Supreme Court of Alabama, the Board of Operatives seek[s] to challenge the rules and regulations under which ACIPCO is presently managed. The Board seeks a larger if not controlling voice in the decisionmaking process.
"With the exception of the decision of Ex parte Johnson, supra, the matters at issue are presently on appeal and before the Supreme Court of Alabama. The decision in Ex parte Johnson did establish for the benefit of the Board of Operatives that its members were entitled to notice of the application to the presiding judge of this circuit for the appointment of an attorney to preside over meetings of ACIPCO's Board of Directors. Since the appointment is entirely within the discretion of the presiding judge, the opportunity to be present at the time of the application is not as significant as it would be if the merits of the application were subject to serious question.
"Some issues regarding the validity of the 1942 decree are now pending before the Supreme Court of Alabama. This Court considers that the better course of action at the present is to defer awarding any fees or expenses pending the outcome of the appeals before the supreme court.
"Accordingly, the petition of the Board of Operatives for ... attorneys' fees and expenses is hereby denied but without prejudice to the right of the Board of Operatives to apply for award of fees and expenses after cases presently on appeal have been decided on appeal." (Emphasis added.)
Mandamus is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Barber v. Covington County Comm'n., 466 So. 2d 945 (Ala.1985). While the writ will issue to compel the exercise of discretion by a circuit judge, it will not issue to compel the exercise of discretion in a particular manner. Ex parte Liberty Nat. Life Ins. Co., 457 So. 2d 404 (Ala. 1984). On the other hand, mandamus is an appropriate remedy when there is a clear showing that the trial judge abused his or her discretion by exercising it in an arbitrary and capricious manner.
In the present case, Judge Cherner has the authority, within his sound discretion, to award reasonable attorney fees and expenses to the Operatives. Troy Bank & Trust Co. v. Brantley, 263 Ala. 428, 82 So. 2d 618 (1955); Kimbrough v. Dickinson, 251 Ala. 677, 39 So. 2d 241 (1949); see also cases collected at 2A Ala. Digest, Appeal & Error, Key No. 984(5) ("Attorneys' fees") (1982). It is important to note that Judge Cherner did not rule that the Operatives were not entitled to an award of attorney fees or expenses, but merely postponed a determination on the matter until those cases pending in this Court have been decided. The Operatives contend that Judge Cherner abused his discretion by denying their petitions. We disagree.
The Operatives argue that Judge Cherner disregarded this Court's decision in Farlow v. Adams, 474 So. 2d 53 (Ala.1985). Relying on Farlow, they insist that they have a clear legal right to have their petitions immediately granted.
In Farlow, the Operatives brought an action seeking to be reinstated as employees of ACIPCO, contending that they had been wrongfully discharged by the Board of Management solely on account of their activities as members of the cotrustee board. The trial court determined that the Operatives had been wrongfully discharged and reinstated them; however, their request for attorney fees was denied. This Court affirmed the trial court's reinstatement of the Operatives as employees of ACIPCO, but reversed the trial court's denial of attorney fees. The Court held that the Operatives were entitled to attorney fees pursuant to § 34-3-60, Code 1975, and also pursuant to an indemnification guarantee contained in ACIPCO's bylaws.
Section 34-3-60 reads as follows:
Under this section, "when the contentions of a party in litigation are in the interest of and for the benefit of the entire trust estate, the courts will award costs and attorneys' fees from the trust estate to the party benefiting the trust estate." Farlow, at 59.
Concerning the indemnification guarantee contained in ACIPCO's bylaws, the Court, in Farlow, stated:
"`Section 1: This Company shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Company) by reason of the fact that he is or was
"`(a) a Director of the Company;
"`....
"`(d) a member of the Board of Operatives of the Company;
"`(e) a member of the Board of Trustees under the codicil of the will of John J. Eagan;
"`Section 2:
"`The company shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Company to procure a judgment in its favor by reason of the fact he is or was a Director or Officer of the Company, or other indemnified party against expenses (including attorneys' fees), actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the *852 Company unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.'
"`To the extent that a person under this Article has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in the first or second sections of this Article, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith.' (Emphasis supplied [in Farlow].)
474 So. 2d at 61-62.
The Operatives' reliance on Farlow is misplaced. In that case it was clear that the Operatives were acting in the best interests of ACIPCO. There, the action was commenced in the interest of and for the benefit of the entire trust estate. In the present case, however, there is nothing in the record tending to show that the actions filed by the Operatives were in the interest of and for the benefit of the entire trust estate. Furthermore, there is nothing in the record tending to show that, in filing these actions, the Operatives acted in a manner they reasonably believed to be in, or not opposed to, the best interests of ACIPCO. In fact, it appears to us that Judge Cherner denied the Operatives' petitions with an eye toward making these determinations at a later date. Judge Cherner clearly stated that "This court considers that the better course of action at the present is to defer awarding any fees or expenses pending the outcome of the appeals before the supreme court."
The Operatives simply do not have a clear legal right to an award of attorney fees and expenses at this time. Instead of being under an imperative duty to grant the Operatives' petitions, Judge Cherner had the discretionary authority to postpone his decision as to the propriety of awarding attorney fees and expenses in this case until he could see what impact the decisions in those cases pending in this Court might have on that determination. In Farlow, this Court did not give carte blanche approval for the payment of attorney fees or expenses by ACIPCO anytime the Operatives choose to retain an attorney. Before such fees or expenses are to be paid by ACIPCO, there must be a judicial finding *853 that the action taken by the Operatives was either in the interest of and for the benefit of ACIPCO or was reasonably believed to be in, or not opposed to, the best interests of the company. We cannot say, after reviewing the record before us, that Judge Cherner acted arbitrarily or capriciously in postponing any award of attorney fees or expenses until such time as a finding can more properly be made.
WRIT DENIED.
MADDOX, JONES, ALMON, SHORES, BEATTY and STEAGALL, JJ., concur.
ADAMS, J., recused.
[1] The Board of Operatives consists of 12 elected ACIPCO employees. The Board of Management consists of the corporate officers of ACIPCO and constitutes the Executive Committee of the Board of Directors. The attorney fees and expenses sought by the Operatives in this case would be paid from ACIPCO funds. | July 24, 1987 |
f232df9d-fc5e-400c-b836-a9bf076e7804 | Ex Parte Lowe | 514 So. 2d 1049 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1049 (1987)
Ex parte James Donald LOWE.
(Re James Donald Lowe v. State).
85-1566.
Supreme Court of Alabama.
July 10, 1987.
Virginia A. Vinson and Charles M. Purvis of Wilkinson, Purvis & Vinson, Birmingham, for petitioner.
Charles A. Graddick, Atty. Gen., and David B. Karn, Asst. Atty. Gen., for respondent.
*1050 PER CURIAM.
We granted certiorari in this case to determine whether the defendant is entitled to a new trial as a result of certain errors committed by the trial court. For a statement of the facts see Lowe v. State, 514 So. 2d 1042 (Ala.Cr.App.1986).
The Court of Criminal Appeals correctly held that the circumstances surrounding the Birmingham Police Department's internal affairs investigation tended to negate the inference that the defendant fled because of a consciousness of guilt and, therefore, should have been presented to the jury for its consideration. However, the court then went on to hold that the exclusion of this evidence did not prejudice the substantial rights of the defendant, because 1) the defendant was allowed to introduce a "more plausible" reason for his flight (citing Webster v. State, 211 Ala. 519, 101 So. 183 (1924)) and 2) the evidence of the defendant's guilt, though circumstantial, was "overwhelming."
The Court of Criminal Appeals' reliance on Webster is misplaced. In that case the defendant's conviction was not reversed because the Court was of the opinion that the defendant had gotten before the jury everything that was relevant and proper for its consideration on the question of flight. In the present case the defendant was never allowed to present to the jury the circumstances surrounding the Birmingham Police Department's internal affairs investigation. The reason for the defendant's flight is a question properly reserved for the jury after a consideration of all the relevant circumstances.
Furthermore, the proper inquiry here is not whether evidence of the defendant's guilt is overwhelming but, instead, whether a substantial right of the defendant has or probably has been adversely affected. The exclusion of evidence tending to explain a flight does adversely affect a substantial right of a defendant. See Goforth v. State, 183 Ala. 66, 63 So. 8 (1913); McAllister v. State, 30 Ala.App. 366, 6 So. 2d 32 (1942); Green v. State, 258 Ala. 471, 64 So. 2d 84 (1953). Overwhelming evidence of guilt does not render prejudicial error harmless under Rule 45, Ala.R.App.P. See Ex parte Johnson, 507 So. 2d 1351 (Ala. 1986).
Having determined that the judgment must be reversed and the case remanded, we pretermit any discussion of the other errors alleged to have been committed by the trial court, as they will probably not occur at another trial.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS and HOUSTON, JJ., concur. | July 10, 1987 |
d8948e9d-8150-4b28-8fe1-1dca5a2f9616 | Ex Parte Nelson | 511 So. 2d 248 | N/A | Alabama | Alabama Supreme Court | 511 So. 2d 248 (1987)
Ex parte David Larry NELSON.
(Re: David Larry Nelson
v.
State).
86-528.
Supreme Court of Alabama.
July 10, 1987.
William M. Dawson, Birmingham, for petitioner.
Don Siegelman, Atty. Gen. and Helen P. Nelson and William D. Little, Asst. Attys. Gen., for respondent.
BEATTY, Justice.
Having considered the record and briefs in this case, 511 So. 2d 225 (Ala.Cr.App. 1986), the Court holds that the judgment of the Court of Criminal Appeals must be, and it is hereby, affirmed.
AFFIRMED.
MADDOX, JONES, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | July 10, 1987 |
00cbeae8-d9e3-4fa3-a39a-a8b65940e4e8 | Ex Parte Darby | 516 So. 2d 786 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 786 (1987)
Ex parte Arthur Edward DARBY.
(In re Arthur Edward Darby v. State of Alabama).
85-1064.
Supreme Court of Alabama.
June 5, 1987.
Rehearing Denied July 24, 1987.
William N. Clark and Douglas H. Scofield of Redden, Mills & Clark, Birmingham, for petitioner.
Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for respondent.
ALMON, Justice.
This Court granted a writ of certiorari in this case because there appeared to be probable merit in petitioner's arguments that the judgment of the Court of Criminal *787 Appeals conflicted with prior decisions and incorrectly decided an issue of first impression. Petitioner was convicted of both selling and trafficking in cocaine. The principal issues are whether the evidence supported two convictions and whether the trial court improperly admitted evidence of prior criminal acts.
The facts are set out in the opinion of the Court of Criminal Appeals. Petitioner, Arthur Edward Darby, was arrested after an informant, Walter Barner, met Darby while under police observation and bought cocaine from him. The grand jury returned two indictments against Darby, one charging that he "did ... unlawfully sell cocaine... in violation of the provisions of the Alabama Uniform Controlled Substances Act, in violation of 20-2-70 of the Code of Alabama," and the other charging that he "did knowingly possess 28 grams or more of cocaine ... in violation of 20-2-80(2) of the Code of Alabama."[1] The jury returned guilty verdicts on both indictments, finding the defendant "guilty of selling cocaine as charged in the [selling] indictment," and "guilty of trafficking in cocaine as charged in the [trafficking] indictment."
Code 1975, § 20-2-80(2),[2] defines the offense of trafficking in cocaine:
The facts showed that Darby sold 27.5 grams of cocaine to Barner and that after his arrest an additional quantity of cocaine, totalling 35.5873 grams, was found in his coat pockets. This evidence, taken alone, supports a conviction for trafficking in cocaine. The question is, does it also support a separate conviction and sentence for selling cocaine?
Code 1975, § 20-2-70, is titled "Prohibited acts A" and provides in pertinent part:
A single crime cannot be divided into two or more offenses and thereby subject the perpetrator to multiple convictions for the same offense. Const. of 1901, Art. I, § 9; U.S. Const.Amend. V; Vogel v. State, 426 So. 2d 863 (Ala.Crim.App.1980), affirmed in part, writ quashed in part, 426 So. 2d 882 (Ala.1982), cert. denied, 462 U.S. 1107, 103 S. Ct. 2456, 77 L. Ed. 2d 1335 (1983).
Thus, possession of a number of different controlled substances will support only one sentence and fine under § 20-2-70. Vogel v. State, supra; Smith v. State, 472 So. 2d 677 (Ala.Crim.App.1984); Cassady v. State, 486 So. 2d 449 (Ala.Crim.App.1985), reversed on other grounds, 486 So. 2d 453 (Ala.1986).
*788 In appropriate circumstances, such as where a defendant is in actual possession of a small quantity and in constructive possession of a quantity large enough to invoke § 20-2-80, but denies knowledge of the presence or contents of the larger quantity, the criminal offense defined in § 20-2-70 is a lesser included offense of that defined in § 20-2-80. Ex parte Kerr, 474 So. 2d 145 (Ala.1985).
The Court of Criminal Appeals has held, however, that where a defendant possesses a sufficient quantity of one drug to be convicted of the felony of trafficking and lesser quantities of other drugs, separate punishments under §§ 20-2-70 and -80 are permissible. Sears v. State, 479 So. 2d 1308 (Ala.Crim.App.1985); Garrett v. State, 480 So. 2d 58 (Ala.Crim.App.1985); Story v. State, 435 So. 2d 1360 (Ala.Crim.App.1982), reversed on other grounds, 435 So. 2d 1365 (Ala.1983).
The Court of Criminal Appeals held that its holding in Sears, supra, was more closely on point with the facts of the instant case than were the holdings of such cases as Smith, supra, and Vogel, supra, and affirmed the judgment of the trial court, including its imposition of two sentences and two fines. We express no opinion in this case on the holdings in the Sears line of cases. We conclude merely that the facts of the instant case will not support two separate punishments, one for trafficking in cocaine and one for selling cocaine.
Webster's Third New International Dictionary of the English Language, Unabridged (1971) defines "traffic" as "to engage in commercial activity: buy and sell: trade; to engage in illegal or disreputable business activity." When Darby sold to Barner a portion of the cocaine he had in his possession, he was engaging in trade, or trafficking in cocaine. If Darby had sold Barner 28 grams and retained 35 grams, two trafficking convictions would surely have constituted being put in jeopardy twice for the same offense, as prohibited by § 9 of the Constitution of 1901. The quantity limitations of § 20-2-80 support a presumption that the offender is regularly selling or selling for resale and supply a reasonable basis for concluding that he is "trafficking" as defined above. To punish a person for "regularly selling" and for "selling" when he has been arrested only once for selling some of what was then in his possession and retaining the rest is clearly to violate the constitutional prohibition against subdividing a single criminal act and imposing multiple punishments for it. Thus, we hold that § 20-2-70 is applicable to this case only as a lesser included offense of § 20-2-80 and that the Court of Criminal Appeals erred in upholding the trial court's imposition of sentences and fines on both statutes.
A further error is apparent in Part IV of the opinion of the Court of Criminal Appeals. Darby objected to questions propounded to Barner regarding alleged prior instances of Darby's selling cocaine to Barner. The Court of Criminal Appeals held that this evidence was properly admitted "for the purpose of showing [Darby's] plan, scheme, or on-going business system to engage in the sale of illegal drugs." In short, according to that court, if a defendant is on trial for selling controlled substances, prior acts of selling controlled substances are admissible to prove that the defendant was in the business of selling controlled substances.
The Court of Criminal Appeals makes brief reference to the hornbook principle of criminal law that prior illegal acts are not admissible to prove the defendant's bad character or to prove that he behaved in conformity with his bad character on the occasion in question, citing McDonald v. State, 57 Ala.App. 529, 329 So. 2d 583 (1975). See also Ex parte Arthur, 472 So. 2d 665 (Ala.1985); Ex parte Cofer, 440 So. 2d 1121 (Ala.1983); Brasher v. State, 249 Ala. 96, 30 So. 2d 31 (1947); Brewer v. State, 440 So. 2d 1155 (Ala.Crim.App.1983); C. Gamble, McElroy's Alabama Evidence § 69.01 (3d ed. 1977).
The court then proceeded, however, to expand an exception to the extent that it swallowed the rule. Exceptions come into play where there is a question of the identity of the defendant as the perpetrator of the alleged crime or where there is a question *789 of intent, motive, physical capacity, or knowledge. The identity exception allows evidence of uniquely similar prior crimes of which the defendant has been convicted so as to provide circumstantial evidence that the defendant in fact committed the crime being prosecuted. In other words, where the modus operandi of the crime at trial is characteristically similar to that used by the defendant on prior occasions, evidence of the prior crimes may be used to connect the defendant to the crime at issue. See Allen v. State, 478 So. 2d 326 (Ala.Crim. App.1985), and Brewer v. State, supra.
The Court of Criminal Appeals stated in the instant case, however, that "Evidence of prior bad acts is frequently admitted to show the accused's motive, intent, scienter, identity, plan, scheme, or system." Disregarding the notion that such evidence is frequently admitted, we hold that it was improperly admitted in this case. There was no dispute in this case as to Darby's identity or as to scienter, i.e., his knowledge of the nature of the white powder he was selling. Nothing regarding motive, intent, plan, scheme, or system was remotely at issue in the case. We have recently reaffirmed the principle that where there is no ground for an exception, such as an issue of identity or specific intent, evidence of prior crimes is not to be admitted. Anonymous v. State, 507 So. 2d 972 (Ala. 1987). The plan, scheme, or system exception does not apply here because, as explained in Brewer v. State, supra, that exception is essentially coextensive with the identity exception; it does not provide an independent ground for proving that a defendant accused of possessing drugs on a specified occasion was in the business of selling drugs.
Darby was caught virtually in the act of selling cocaine and retained enough in his possession to be convicted of trafficking in cocaine. Proof of these facts was sufficient, and admission of testimony regarding prior acts of selling cocaine had no probative value, was inherently prejudicial, and constituted reversible error.
The remaining issues raised in the petition are not well taken or do not require comment, except that we would urge prosecuting attorneys to refrain from name-calling such as that engaged in by the district attorney in this case when he called Darby a "dope dealer and a car thief." Such comments can easily pass beyond the bounds of proper argument.
For the foregoing reasons, the judgment of the Court of Criminal Appeals is reversed and the cause is remanded.
REVERSED AND REMANDED.
MADDOX, JONES, SHORES, BEATTY and ADAMS, JJ., concur.
[1] We shall refer to the first-quoted indictment as the selling indictment and the second-quoted indictment as the trafficking indictment. Although the second-quoted indictment speaks in terms of "possession," § 20-2-80(2) creates the felony of trafficking in cocaine, and the jury returned its verdict on this indictment in those terms.
[2] As it existed at the time of this offense. See 1986 Ala.Acts, No. 86-534. | June 5, 1987 |
e45c899a-60cb-4988-a999-3f2cfcdfa0a6 | Coastal Millwork, Inc. v. Yeager | 510 So. 2d 188 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 188 (1987)
COASTAL MILLWORK, INC.
v.
Robert M. YEAGER, et al.
85-726.
Supreme Court of Alabama.
June 19, 1987.
Thomas E. Sharp III of Vickers, Riis, Murray and Curran, Mobile, for appellant.
G. David Chapman III, Gulf Shores, and Michael S. McNair, Mobile, for appellees.
ALMON, Justice.
This appeal arises from consolidated suits by a contractor and a subcontracting materialman against a homeowner. The trial court entered a judgment awarding damages to the contractor against the homeowner and to the subcontractor against the contractor. Because the contractor is insolvent and there are tax liens pending against the contractor's award, the subcontractor appeals from the trial court's failure to impose a materialman's lien against funds from the sale of the house and land.
Robert and Lynn Yeager contracted with Mickey Maddox Co., Inc., a general contractor, for the construction of a house on their property in Gulf Shores, Alabama. Maddox subcontracted with Coastal Millwork, Inc., for Coastal to supply millwork and other materials to be used in the construction of the house. Disputes arose between the Yeagers and Maddox; when Maddox was not paid, it did not pay Coastal. On December 26, 1984, Coastal mailed to the Yeagers a notice that it claimed a lien on their house. See Code 1975, § 35-11-218. *189 On January 29, 1985, Coastal filed a verified statement of lien in the probate court of Baldwin County. See Code 1975, § 35-11-213.
Coastal filed a complaint on April 1, 1985, requesting the court to render a judgment for $15,429.08 against Maddox and to
Coastal also asked the court to declare that Coastal's lien was superior to a first and a second mortgage executed by the Yeagers after Coastal began supplying materials, and to order that the property be sold to satisfy Coastal's lien.
Maddox filed a complaint against the Yeagers on May 24, 1985, and the Yeagers filed a counterclaim in that action. The actions were consolidated and the trial court entered judgment in favor of Maddox and against the Yeagers in the amount of $26,386.63 and in favor of Coastal against Maddox in the amount of $14,835.83, and the court denied all other claims for relief.
During the pendency of the actions, the house and lot were sold. From the proceeds, the first and second mortgages were satisfied and an escrow fund of $34,400.00 was established to pay any judgment obtained by Maddox. The court ordered distribution of these escrow funds, including $14,835.83 plus cost and interest to be paid to Coastal. It is only as against these funds that Coastal now claims a lien, not as against the house in the hands of the purchaser. Coastal states in its brief that this appeal is necessary in spite of the escrow fund because the Internal Revenue Service asserts a tax lien against Maddox's interest in the escrowed funds. Coastal further asserts in its brief that, if it is declared entitled to a lien, the priority of its lien as against the tax lien will be decided in an interpleader action now pending before the United States District Court for the Southern District of Alabama.
Regardless of these assertions, which are outside the record, we see nothing to contradict Coastal's claim that it is entitled to a lien.[1] Code 1975, § 35-11-210, provides in pertinent part:
(Emphasis added.) Further provisions of that section relate to different circumstances under which a subcontractor or materialman may be entitled to a full price lien or a lien only to the extent of the unpaid balance due to the contractor, but those provisions are not material here because the unpaid balance due Maddox exceeds the amount due Coastal.
Coastal has fully complied with all pertinent provisions of Division 8, "Mechanics and Materialmen," Code 1975, §§ 35-11-210 through -234. As mentioned above, Coastal notified the Yeagers in accordance with § 35-11-218, and filed a verified statement of lien in accordance with § 35-11-213. The verified statement was timely filed: § 35-11-215 gives four months after the last item of material is furnished; Coastal furnished its last item on October 2, 1984, and filed its verified statement of lien on January 29, 1985. Section 35-11-221 requires that an action for enforcement of such a lien be filed within six months after the maturity of the entire indebtedness; Coastal filed its action within six months of its final delivery of materials. Nothing in any other provision under Division 8 appears to have been violated in Coastal's attempt to enforce its lien. Section 35-11-210 states that a materialman "shall have a lien" if he complies with the *190 provisions of Division 8. Therefore, Coastal is entitled to a lien. The judgment of the trial court is reversed to the extent that it failed to enforce a lien in favor of Coastal.
REVERSED AND REMANDED.
MADDOX, JONES, SHORES and BEATTY, JJ., concur.
[1] No appellee's brief has been filed in this appeal. Maddox filed a letter stating that it does not oppose Coastal's claim of a lien, and no other party has filed any response to the appeal. | June 19, 1987 |
5ba6ba72-7b8d-4561-ad51-d07e6a64d616 | Boyett v. Oakes | 518 So. 2d 37 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 37 (1987)
B.F. BOYETT and First State Bank of Lamar County, a Corporation
v.
Jerry OAKES.
85-376.
Supreme Court of Alabama.
June 19, 1987.
Rehearing Denied December 4, 1987.
*38 James K. Davis and William H. Atkinson of Fite, Davis, Atkinson and Bentley, Hamilton, for appellants.
C. Park Barton, Jr., of Barton & Maddox, Tuscaloosa, for appellee.
ADAMS, Justice.
This is an appeal from a judgment entered in favor of the plaintiff, Jerry Oakes. Oakes sued the defendants, First State Bank of Lamar County and its president, B.F. Boyett, for breach of contract. Oakes alleged that he had an oral contract with Boyett for the bank to honor checks written by him regardless of whether funds existed to cover the checks. Oakes alleged that he relied upon this agreement, writing checks for over $11,000.00 for which no funds existed. As a result of the overdraft, Boyett refused to honor the checks and they were returned. Oakes was arrested and prosecuted for issuing worthless checks. He argues that he lost profits from his business, incurred legal fees, and suffered a loss of reputation in the community. Boyett argues that Oakes executed a release relieving the defendants of liability and, therefore, that no cause of action exists.
Oakes owned and operated a small sawmill business near Vernon, Alabama. In 1979 he met with Boyett and received a small loan from the First State Bank of Lamar County to finance improvements on his sawmill equipment. The Small Business Administration guaranteed the loan. Oakes also opened a checking account with the bank and an operating account for the sawmill. He later moved the sawmill's payroll account to the bank as well. Boyett made two additional loans to Oakes.
In July 1981, Oakes attempted to procure another loan from Boyett. Oakes had some low grade lumber he planned to sell. At the time of his request, the lumber would have sold for $90 to $110 a thousand board feet. However, if Oakes could have left the lumber to dry for 60 to 90 days, he could have sold it for $190 a thousand. Boyett refused to give Oakes another loan, Oakes said, but told him he could overdraft his account for $16,000. Boyett had allowed Oakes to overdraft his account on previous occasions.
Based upon the alleged agreement, Oakes issued checks greater than his account balance. The checks were presented to the bank. Oakes was notified that all but two checks had been paid and that he was charged $8.00 per check for the overdrafts. On August 8, 1981, however, the bank returned all the checks, totaling $11,204.92, for insufficient funds. On August 11, 1981, and August 17, 1981, Oakes made two deposits, $1,558.78 and $1,819.93, respectively to the payroll account. Upon each deposit the bank transferred the money from the payroll account to the operating account, without the knowledge or consent of Oakes. As a result, checks written to the employees were returned. It was a regular practice between Oakes and Boyett for the bank to transfer funds between the accounts. However, in the past, such transfers had occurred solely from the operating account to the payroll account at Oakes's request made by telephone. On prior occasions when the bank had returned checks unpaid, it had notified Oakes; however, on this occasion it did not.
As a result of the overdrafts, Oakes was prosecuted on six criminal charges for issuing worthless checks. He closed his business and sold most of his equipment in order to pay off his loans.
In March 1982, Oakes met with Boyett to discuss Oakes's outstanding loans. Oakes wanted to obtain another loan in order to reopen the sawmill. Boyett told Oakes that if Oakes and his wife would sign a release to him and the bank, he would go to *39 the Small Business Administration in order to obtain another loan for Oakes. The release, in pertinent part, provided that "in consideration of $10.00 and other valuable consideration," Oakes and his wife would release all the defendants from all claims of liability. Boyett argues that Oakes signed the release in exchange for Boyett's meeting with agents of the Small Business Administration in order to persuade them to stall foreclosure on Oakes's loans, not in order to obtain a new loan for Oakes.
Oakes and his wife signed the release form purporting to relieve Boyett and the bank from liability. On the following day, Boyett met with an officer of the Small Business Administration. Boyett furnished Oakes a list of demands the Administration made in order to stall foreclosure or for him to obtain a new loan. Oakes complied with the Administration's request, but he did not receive his loan, nor did the Administration stall foreclosure.
Boyett argues that the trial court erred when it denied his motions for summary judgment and for a directed verdict premised upon the release. Boyett argues that the release was duly executed and, therefore, that it completely bars Oakes's claim.
In reviewing the denial of summary judgment and directed verdict, we must determine whether the evidence, "when viewed in a light most favorable to the non-moving party, furnishes any support for the theory of the complaint and whether the judgment entered, based on the weight and sufficiency of the evidence presented is palpably wrong or manifestly unjust. Casey v. Jones, 410 So. 2d 5 (Ala. 1981); Chavers v. National Security Fire & Casualty Co., 405 So. 2d 1 (Ala.1981)." Interstate Engineering, Inc. v. Burnette, 474 So. 2d 624, 627 (Ala.1985). In this case, it is not disputed that there was consideration for the release. What is disputed is what the other valuable consideration was. Oakes testified that but for Boyett's promising to obtain another loan, he would not have signed the release. Boyett, on the other hand, argues that the promise to meet with the Small Business Administration in order to stall the foreclosure of Oakes's sawmill. Therefore, there was a genuine issue as to a material fact which precluded the trial court from entering a judgment as a matter of law or directing a verdict. Polytec, Inc. v. Utah Foam Products, Inc., 477 So. 2d 295 (Ala.1985).
For their second argument, defendants argue that the release bars Oakes's claim because, they say, Oakes failed to prove by clear and satisfactory proof that the release was fraudulently induced. A conflict existed as to exactly what representations were made for the procurement of the release. Whether fraudulent intent existed is a question for the jury. D.H. Holmes Dept. Store v. Feil, 472 So. 2d 1001 (Ala.1985); Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515 (Ala.1983); State Farm Mut. Auto. Ins. Co. v. Borden, 371 So. 2d 28 (Ala.1979). However, the jury must base its determination on reasonable inferences from the facts. D.H. Holmes Dept. Store, supra; Purcell Co., supra. In this case it was reasonable for the jury to infer that Oakes signed the release in hopes of obtaining another loan in order to reopen his sawmill and that, but for this representation, Oakes would not have signed the release. We find no error with the jury's finding of fraud in the inducement.
Third, defendants argue that Oakes failed to seek a reformation of the release and is therefore bound by it. Reformation of the release would have been proper if it did not properly state the true intentions of the parties, § 8-1-2, Code of Alabama (1975). However, Oakes makes no argument that the release did not state the true intentions of the parties. He argues that Boyett fraudulently procured the release through his misrepresentations and that, in effect, the consideration failed. Therefore, reformation was not proper.
Fourth, defendants argue that Oakes's claim is barred by the statute of limitations. They argue that Oakes had one year from the date he discovered the fraud to file his claim. Code of Alabama, 1975 § 6-2-39(5). However, this is a breach of contract action. The statute of limitations for fraud applies only to actions based upon fraud, not where fraud is pleaded as a defensive matter. Weeden v. Asbury, 223 Ala. 687, 138 So. 267 (1931); National Life & Accident Ins. Co. v. Propst, 219 Ala. 437, 122 So. 656 (1929). Oakes merely pleaded fraud in the procurement of the release, that Boyett claims barred Oakes's breach of contract action. Therefore, the statute of limitations for fraud is inapplicable to this case.
Last, defendants argue that the amount awarded to Oakes was excessive. The jury awarded Oakes $172,500.00. The defendants made a motion for new trial and in support of that motion argued that the amount awarded to Oakes was unconscionable. The amount of damages awarded to the injured party in a breach of contract action should be an amount sufficient to return the party to the position he would have occupied had the breach not occurred. Cobbs v. Fred Burgos Construction Co., 477 So. 2d 335 (Ala.1985). The assessment of damages is left largely to the discretion of the jury. Feazell v. Campbell, 358 So. 2d 1017 (Ala.1978). The jury's decision will not be disturbed unless the amount awarded is so excessive as to display passion or prejudice or other improper motive. Johnson Pub. Co. v. Davis, 271 Ala. 474, 124 So. 2d 441 (1960).
In the instant case, Oakes proved that Boyett breached the contract, that Oakes's checks were returned, that he received notices from the payees of the checks, and that as a result of these actions he was forced to close his sawmill business. As a direct result of the closure of his business, Oakes's salary was terminated. He also proved that he incurred criminal prosecution as a result of worthless check charges, and that this caused him to suffer financially and emotionally. Oakes, because of the loss of his income, applied for and began to depend upon food stamps and help from the Health Department. The jury assessed damages based upon the expenses incurred by Oakes, his loss of income, and mental anguish he suffered as a direct result of the breach. The defendants have not put forth any evidence that the decision of the jury was influenced by passion, prejudice, or any other improper motive. Therefore, we find no error in the award of damages.
Accordingly, we affirm the judgment of the trial court.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur. | June 19, 1987 |
943c8f31-824c-41a8-adea-c914e26e5456 | Ex Parte Dunn | 514 So. 2d 1300 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1300 (1987)
Ex parte John Edward DUNN.
(Re John Edward Dunn v. State).
86-253.
Supreme Court of Alabama.
September 25, 1987.
Charles D. Decker, of Hardwick, Hause, Segrest & Northcutt, Dothan, for petitioner.
Don Siegelman, Atty. Gen., and Tommie Wilson, Asst. Atty. Gen., for respondent.
TORBERT, Chief Justice.
John Edward Dunn was convicted of rape in 1974. Charges of burglary and kidnapping were also pending against him at the time of the rape conviction. In a plea bargain, Dunn agreed to plead guilty to the kidnapping charge. In exchange, the prosecutor agreed to drop the burglary charge. The record on this appeal also contains evidence indicating that the petitioner *1301 agreed not to pursue his appeal of the rape conviction as a part of the plea bargain. The petitioner disputed this in his testimony, however, and claims he thought this appeal was being pursued. In any event, although notice of appeal of the rape conviction was given, no briefs were filed by the petitioner's lawyer, and the appeal was subsequently dismissed.
Sometime after these convictions for rape and burglary, Dunn was convicted of robbery, a conviction for which he is still serving time in a state penitentiary. The previous rape conviction, however, was used to enhance Dunn's punishment for the subsequent robbery conviction under Alabama's Habitual Offender Act. The gist of the petitioner's claim is that his lawyer, by failing to file a brief in his appeal of the rape conviction, subjected the petitioner to a deprivation of his constitutional right to effective assistance of appellate counsel.
In an error coram nobis proceeding in circuit court, the petitioner attacked his lawyer's performance in the appeal of the rape conviction. After hearing the evidence, the circuit court held against the petitioner, and the Court of Criminal Appeals affirmed the trial court's judgment, without issuing an opinion. 502 So. 2d 399 (1986). The case is before us on writ of certiorari.
We originally granted certiorari to consider a potential conflict between Carroll v. State, 468 So. 2d 186 (Ala.Crim.App. 1985), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Carroll, a per se rule regarding ineffective assistance is advanced. That case holds that the failure to file a brief on a first appeal as of right from a conviction constitutes per se ineffective assistance of appellate counsel, regardless of whether the failure to file actually prejudiced the rights of the defendant. See Carroll v. State, 468 So.2d, at 188-89. Strickland, on the other hand, holds that, at least in regard to trial counsel, a successful claim of ineffective assistance requires a showing that: 1) the lawyer's conduct fell below an objective standard of reasonableness, and 2) the lawyer's deficient conduct actually prejudiced the defendant's case. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner argues that the Court of Criminal Appeals obviously applied the Strickland test rather than the per se rule of Carroll, and therefore denied him relief because he had not shown "prejudice" from the dismissed appeal. Although the United States Supreme Court has held that a right to effective assistance of appellate counsel (analogous to a right of effective assistance of trial counsel) attaches to a first appeal granted defendants as of right, see Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985), the Court has not squarely held that Strickland applies in the appellate context, nor has it otherwise defined the precise standards for judging claims of ineffective assistance of appellate counsel. Id. at 392, 105 S. Ct. at 833. Consequently, we granted this petition to clarify the standards that we will apply to cases such as the one presented by the petitioner.
Upon a closer examination of the petitioner's cause, however, we find that the precise issue of the standards applicable to claims of ineffective appellate assistance is not before us. In this case, there is evidence from which the trial court and the Court of Criminal Appeals could have concluded that the petitioner waived his appeal, and therefore could have pretermitted consideration of the ineffective assistance issue. A defendant cannot complain of ineffective assistance on a appeal he did not want and did not pursue.[1]See Norris v. Wainwright, 588 F.2d 130 (5th Cir.1979), cert. denied, 444 U.S. 846, 100 S. Ct. 93, 62 L. Ed. 2d 60 (1979) ("[a] defendant's decision not to appeal cannot be fairly charged to his attorney"). Consequently, the writ is due to be quashed as having been improvidently granted.
*1302 We reach this conclusion cognizant of the settled rules of law governing the briefing and other duties of appellate counsel. The case primarily relied upon by the petitioner, Carroll v. State, 468 So. 2d 186 (Ala.Crim. App.1985), follows a well-established rule that grants a criminal defendant an out-of-time appeal where appellate counsel has failed to file a brief in the defendant's behalf. See, e.g., Cannon v. Berry, 727 F.2d 1020 (11th Cir.1984); Mylar v. Alabama, 671 F.2d 1299 (11th Cir.1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983); Matter of Frampton, 45 Wash. App. 554, 726 P.2d 486 (1986). These cases have essentially held that failure to file a brief constitutes per se ineffective assistance by appellate counsel. For the most part, Carroll and like cases rely on Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), which requires an attorney to file a brief on appeal pointing to any possible errors in the trial record, even when the attorney believes that the appeal itself is actually without merit. Anders is founded on the rationale that "[t]he constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.... His role as advocate requires that he support his client's appeal to the best of his ability." Id. at 744, 87 S. Ct. at 1400.
In the instant case, it is undisputed that the attorney failed to file a brief on appeal and, further, that he failed to comply in any manner with the basic requirements of Anders. However, although many cases, Carroll included, broadly state that a failure to file a brief constitutes a violation of Anders, it is clear that Anders was never intended to apply to those cases where the defendant decides not to take an appeal. As the Fifth Circuit Court of Appeals has stated:
We are convinced that Anders does not apply to an attorney whose client instructs him, as did [petitioner], to withdraw his appeal after being advised that an appeal would be meritless and against his best interests. To hold otherwise would, in effect, make it very difficult, if not impossible, for an appellate attorney to give his client sound advice to withdraw an appeal. To be sure, if the client persists in demanding an appeal, Anders applies in full force, and the attorney must comply with its procedures."
Jones v. Estelle, 584 F.2d 687, 691 (5th Cir.1978). In short, although a defendant has a right to effective assistance on a first appeal as of right, see Evitts v. Lucey, supra, including the right to assistance conforming with the Anders requirement that a brief be filed, the defendant cannot complain of an attorney's failure to file a brief where the defendant has forgone the underlying appeal.
In regard to this particular, we note that Carroll v. State, 468 So. 2d 186 (Ala. Crim.App.1985), suggests that the trial court's finding in that case "`that [the petitioner] acquiesced in the efforts of the attorneys at every stage of trial,'" id. at 188, was not a consideration in cases of ineffective assistance of counsel. Rather, "[a]ll that need be shown is that counsel failed to submit a brief on the appellant's behalf." Id. To the extent that this language suggests that a defendant cannot dismiss his own appeal, on advice of counsel or otherwise, it incorrectly states the law, and we do not think that the Court of Criminal Appeals ever meant to imply by this language that an appeal could not be waived. Instead, we think that this language was meant only to establish the proposition that a defendant desiring an appeal cannot ratify ineffective assistance by acquiesence in the deficient performance, thereby insulating his counsel's performance from collateral attack. In any event, a defendant cannot complain of ineffective assistance on an appeal he has waived. See, e.g., Dawson v. State, 480 So. 2d 18 (Ala.Crim. App.1985); Jones v. Estelle, 584 F.2d 687, 691 (5th Cir.1978).
*1303 We have examined the record in this case to verify the petitioner's supplemental facts submitted pursuant to Rule 39(k), A.R.App.P., and we find that the evidence supports the trial court's conclusion that the writ of error coram nobis was due to be denied. Although the petitioner testified that he wished to take the appeal, his attorney testified that the dismissal of the appeal was to be part of a plea bargain arrangement, an arrangement agreed to and approved by the petitioner. From this evidence, the trial court could have concluded that the petitioner both knew of his right to appeal and voluntarily waived it, in view of the plea arrangement offered by the prosecutor.[2]See Kennedy v. State, 421 So. 2d 1351 (Ala.Crim.App.1982) (trial judge has adequate basis to deny coram nobis petition where trial attorney contradicts assertions of petitioner). Consequently, we find no error in the trial court's denial of the writ of error coram nobis, and the Court of Criminal Appeals' affirmance of the trial court's judgment was, therefore, without error as well.
Although not necessary for our resolution of this case, we think it important to briefly discuss our reason for granting certiorari: the potential conflict between Carroll v. State, supra, and Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). It is apparent from our examination of the state of the law on the issue of the standards governing questions of effective appellate assistance that any conflict between Carroll and Strickland is more illusory than real. First, we think it clear that the Strickland standards, though expressly applying only to trial counsel, are also properly applied in the appellate context. Ex parte Clisby, 501 So. 2d 483 (Ala.1986). Second, the Strickland requirement that a petitioner show both deficient performance and prejudice to make out a successful claim of ineffective assistance does not conflict with the per se rule of Carroll and like cases, as Strickland itself plainly recognizes.
In regard to the "performance" prong of the Strickland case, the United States Supreme Court expressly refused to set forth precise rules; rather, each case was to be judged on its own facts with reference to prevailing professional norms. Strickland v. Washington, 466 U.S. at 688, 104 S. Ct. at 2064. In spite of the factually-directed inquiry that Strickland mandates, however, we do not believe the United States Supreme Court intended to eviscerate the rule of Anders; moreover, we think that Anders has established the "norm" in cases of a first criminal appeal as of right. Accordingly, a failure to comply with Anders would automatically constitute deficient performance under Strickland. In short, Strickland has the effect of incorporating the performance standards of Anders, and a failure to comply with Anders is a failure under the performance standards of Strickland as well. Cf. Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (Strickland restates the performance standards of previous cases regarding attorney's advice to enter guilty plea).
Likewise, we do not think that Strickland requires a showing of prejudice where an attorney fails to file a brief on a *1304 desired first appeal as of right. Strickland expressly recognizes that certain errors of counsel are so inherently defective from a constitutional perspective that prejudice to the defendant in such cases may be presumed:
Thus, as a general proposition, no conflict exists between Carroll v. State, 468 So. 2d 186 (Ala.Crim.App.1985), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The latter case, while it establishes the basic two-part test that many courts apply to errors of appellate counsel, also recognizes that the kind of error Carroll envisions is so egregious that ineffective assistance may be presumed as a matter of law.
Accordingly, had the petitioner in this case manifested an actual desire for an appeal, we are confident that Strickland v. Washington and the "per se" refinements of Strickland provided by Carroll and like cases would have properly resolved the "ineffectiveness" issue. For the reasons noted above, however, that issue is not before us, and the petitioner's argument is, therefore, without merit.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
JONES, SHORES, ADAMS and STEAGALL, JJ., concur.
[1] Petitioner's motion to strike the state's brief for raising the waiver issue for the first time in this Court is denied. Waiver was argued in the state's brief to the Court of Criminal Appeals in support of the argument that defendant's counsel could not have been ineffective on appeal if the defendant had not wanted an appeal.
[2] The standards for waiver of appeals are somewhat unclear, because there is no "right" to an appeal under the Constitution, although once a state grants a non-discretionary appeal to defendants, the Fourteenth Amendment requires that the appellate process conform to the standards of due process and equal protection on the first such appeal. Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985). Thus, on a first non-discretionary appeal (i.e., a state "appeal as of right"), the Fourteenth Amendment establishes a right to counsel, and a right to effective assistance by that counsel. Id. Moreover, waiver of this constitutional right to counsel on appeal must be "knowing and intelligent." Swenson v. Bosler, 386 U.S. 258, 87 S. Ct. 996, 18 L. Ed. 2d 33 (1967). However, waiver of the actual appeal has been found to require a lower standard, because the appeal itself is not constitutionally protected. See Norris v. Wainwright, 588 F.2d 130 (5th Cir.1979), cert. denied, 444 U.S. 846, 100 S. Ct. 93, 62 L. Ed. 2d 60 (1979). As Norris indicates, however, some cases have spoken of waiver of an appeal as requiring "knowing and intelligent" action. Id. at 136, n. 3.
We need not resolve this issue, because the evidence in this case allows the inference that the petitioner made a knowing and intelligent waiver of his right to appeal.
[3] We note that where Anders is followed and briefs are filed, a showing of prejudice would generally be required under Strickland. In the context of error by appellate counsel, "courts normally require a petitioner to establish prejudice by showing that there is a reasonable probability of reversal or modification of the judgment on the issues which the petitioner claims appellate counsel should have raised." Matter of Frampton, 45 Wash. App. 554, 726 P.2d 486, 489 (1986). | September 25, 1987 |
bb07b5ac-a252-41a4-988b-ca0279eb31d7 | Giardina v. Williams | 512 So. 2d 1312 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1312 (1987)
Joe GIARDINA
v.
Kathryn WILLIAMS.
86-76.
Supreme Court of Alabama.
June 26, 1987.
Rehearing Denied August 7, 1987.
Phil Joiner, Birmingham, for appellant.
Walter Cornelius, Birmingham, for appellee.
MADDOX, Justice.
This appeal involves a right of redemption, pursuant to Code 1975, § 40-10-82 and § 40-10-83, of property sold at a tax sale. The trial court held that Kathryn Williams, the record title holder was entitled to redeem the property. We affirm.
Joe Giardina filed a bill to quiet title against Williams, alleging that he owned the property under a tax deed, based on a 1972 tax sale for unpaid 1971 ad valorem taxes owed by Williams. The land in question is a vacant undeveloped lot located in Birmingham, Alabama. Williams denied the material allegations of the complaint and denied that Giardina was in the quiet, peaceful, and actual possession of the property.
Giardina filed a motion for summary judgment; Williams filed a motion to ascertain the amount required for her to redeem. After a hearing on these motions, the trial court denied Giardina's motion for summary judgment, and granted Williams's motion to ascertain the amount to redeem, and set the amount to be paid by her at $3,068.47. Giardina filed a motion to correct the prior order, or, to set the case for trial, which the trial court denied. Giardina then appealed.
The trial court entered the following judgment on the motion for summary judgment and the motion to ascertain the amount to redeem:
"Such possession was not cut off by the adverse possession of the plaintiff, tax purchaser. The facts are undisputed that neither party has been in actual possession of the property since 1972. The plaintiff's claim to adverse possession rests on payment of taxes on the property for more than 10 years prior to the commencement of this action. Section 6-5-200(a), Code 1975 provides three alternatives for establishing adverse possession, one of which is having the land listed for taxation for ten years prior to the commencement of the action. Even *1314 assuming that the plaintiff has had the land listed for taxation for the necessary period, and not merely paid the taxes thereon, each of the three alternative methods set out in Section 6-5-200(a) must be supported by all the requisite elements of adverse possession, including actual occupancy. [Jones v. Jones, 423 So. 2d 158 (Ala.1982) ]. Since there is no dispute between the parties that no one has been in actual occupancy of the land, the plaintiff as a matter of law has not established adverse possession necessary to cut off the defendant's right to redeem subject realty.
We are of the opinion that the trial court's decree in this case correctly states the law. Code 1975, § 40-10-83, has as its purpose the preservation of the right of redemption in the owner, within a time limit, if the owner has retained possession. O'Conner v. Rabren, 373 So. 2d 302 (Ala. 1979). The character of possession does not have to be actual and peaceable; it may be constructive or scrambling. Where there is no real occupancy of the land, constructive possession follows the title of the original owner and can be cut off only by the adverse possession of the tax purchaser. Hand v. Stanard, 392 So. 2d 1157 (Ala.1980). Code 1975, § 40-10-82, provides a bar to redemption where the tax purchaser can show continuous adverse possession for three years after he is entitled to demand a tax deed. Stallworth v. First National Bank of Mobile, 432 So. 2d 1222 (Ala.1983).
The trial court found that neither party had been in actual possession of the property since 1972; therefore, we agree with the trial court that Giardina has not established the three years' adverse possession necessary to cut off Williams's right to redeem. Accordingly, the judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
JONES, ALMON, SHORES and BEATTY, JJ., concur. | June 26, 1987 |
c18d4286-90cc-49d2-b690-f95b48055e0a | Dinmark v. Farrier | 510 So. 2d 819 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 819 (1987)
Brenda DINMARK
v.
Michael FARRIER, et al.
85-1497.
Supreme Court of Alabama.
July 2, 1987.
David G. Flack and Maurice S. Bell, Montgomery, for appellant.
Tabor R. Novak, Jr., and Cowin Knowles of Ball, Ball, Duke & Matthews, Montgomery, for appellees.
ADAMS, Justice.
This is an appeal from a judgment entered on a jury verdict in favor of defendants Michael Farrier, Jimmy Gibbs, and Wayne Dooley. On February 18, 1986, the plaintiff, Brenda Dinmark, filed a claim for false imprisonment against Michael Farrier and Hudson-Thompson, Inc. On March 17, she amended her complaint to add Jimmy Gibbs, Wayne Dooley, and Big Bear Super Foods. On March 28, the trial court granted summary judgment in favor of Hudson-Thompson, Inc., and on May 7, Big Bear Super Foods was dismissed. The facts surrounding this case are as follows:
On February 23, 1985, between 8:00 and 9:45 p.m., after drinking one beer, Dinmark drove her grandmother to a grocery store. Dinmark illegally parked her car in front of the store. She also had another beer in her possession. Her grandmother went inside the store, and Dinmark waited in the car for her grandmother to return. Farrier, a policeman working as a security guard, asked Dinmark's grandmother to ask Dinmark to move her car because she was illegally parked. Farrier also asked a store clerk to ask Dinmark to move her car. In *820 response to his requests, Dinmark rolled up her window and refused to move her car. Farrier then told Dinmark to move her car, that he was a security officer and a policeman, and that if she did not move her car, he would have to place her in jail. Dinmark then moved her car. Upon returning to the store, Farrier told Dinmark's grandmother that he almost had to lock Dinmark up. Dinmark noticed Farrier talking to her grandmother. She went inside and in a loud manner began an argument with Farrier about Farrier's reporting to her grandmother. Farrier began walking toward the manager's office; as Dinmark followed, maintaining her loud behavior. Farrier began relating the events of the incident to the manager. Farrier then asked Dinmark to leave the store. He again informed Dinmark that he was a police officer and showed her his badge. She told Farrier that his badge meant nothing to her and brought her purse around in front of her. Farrier testified that he thought she was going to take something out of the purse. Farrier told Dinmark she was under arrest and grabbed Dinmark, and a scuffle ensued while Farrier tried to get Dinmark's purse from her. Farrier held Dinmark until other police officers arrived. Dinmark was arrested and charged with resisting arrest, failure to obey a police officer, and disorderly conduct. She was taken to jail and placed in a drunk tank. Her blood alcohol level registered .01%. The municipal court found Dinmark not guilty of the charges. Following her acquittal, Dinmark brought this action. On appeal she argues that the trial court erred when it admitted a memorandum concerning the criminal charges; that the trial court erred in instructions to the jury on probable cause; and that the trial court erred in finding that Farrier acted in his capacity as a police officer. We affirm.
Dinmark first argues that the trial court should not have admitted the legal memorandum prepared by an attorney in her trial on the criminal charges. Defendants introduced at trial a composite exhibit of three docket sheets from Municipal Court that showed Dinmark as being acquitted on her criminal charges. No objection was made to these docket sheets. Under the section of the docket sheet entitled "Actions, Judgments, Case Notes," is the following: "5-2-86 NOT GUILTY. See defendant's briefno response from City Prosecutor." Dinmark argues that the memorandum should not have been admitted because it was hearsay, legal opinion, and conclusory. Farrier argues that the memorandum was properly admitted in that it was incorporated by reference on the docket sheets.
Farrier cites Burgin v. Sugg, 210 Ala. 142, 97 So. 216 (1923), for support of his argument that the memorandum was incorporated by reference. Burgin involved a number of complainants and a judgment that did not specify which complainant was to recover damages. On appeal it was argued that the decree was uncertain because it did not state who would receive the damages. The court held that "[e]very judgment of a court of justice must either be made perfect in itself, or capable of being made perfect by reference to the pleadings, or to the papers on file in the cause, or else to other pertinent entries on the court docket." 210 Ala. at 144, 97 So. at 218, quoting Flack v. Andrews, 86 Ala. 395, 55 So. 452 (1888). In Burgin, the judgment of the trial court referred to other decrees made by the trial court; therefore, by looking at the other decrees, one could eliminate uncertainty as to who should receive the proceeds and one could determine that the judgment was complete. In this case, the docket sheet clearly states that Dinmark was found "not guilty," and the docket sheet clearly makes reference to the memorandum. In this case, the judgment of "not guilty" was complete in and of itself and there was no need to refer to the memorandum for clarity of the result.
However, the admission of the memorandum was harmless error, if error at all. The main purpose of the memorandum was to emphasize that the police officer, when "moonlighting" as a security officer, could not, absent some change in his status, act *821 in his function as a policeman.[1] Apparently, from the trial court's judgment entry, this was the ground for Dinmark's acquittal. In order for the admission of evidence to be reversible error, "the error complained of [must have] probably injuriously affected [the] substantial rights of the parties." Rule 45, A.R.App.P. The burden is with the appellant not only to show error, but also to show probable injury. Wallace v. Phenix City, 268 Ala. 413, 108 So. 2d 173 (1959). In this case, Dinmark argues that her case was prejudiced by the admission of the memorandum because, she says, the memorandum invaded the province of the court and the legal interpretation of the memorandum conflicted with the trial court's jury instruction. Although such a complaint was alleged by Dinmark, there was no conflict between the law as stated in the memorandum and the jury instructions.[2] Therefore, no reversible error occurred by the admission of the memorandum.
Dinmark argues, second, that the trial court erred when it instructed the jury that probable cause or the good faith of the person making the arrest is admissible to rebut a claim for punitive damages. In Yancey v. Farmer, 472 So. 2d 990 (Ala. 1985), we held that probable cause is admissible to rebut a claim for punitive damages. Dinmark argues that when the trial court defined probable cause, the court, in essence, told the jury that, with probable cause, an illegal arrest is justified. However, Dinmark's argument is misplaced. In the paragraph preceding the discussion of probable cause, the trial court stated the following:
At the beginning of the paragraph concerning probable cause, the trial court said the following:
The trial court, at the onset of its discussion of probable cause, limited it to the area of punitive damages. Therefore, as the instructions were not confusing or misleading, no error resulted.
Dinmark's final argument is that the trial court erred when it ruled that Farrier was acting in his capacity as a police officer when arresting Dinmark. Dinmark argues that her arrest occurred as a direct result of Farrier's working as a security officer and not as a policeman. She argues, therefore, that her arrest was invalid and cites Robinson v. State, supra, n. 1. However, as discussed in footnote 1 to this opinion, inasmuch as the police officer in Robinson did not witness a misdemeanor or receive a report of a felony, he was, acting as a security officer. Robinson, supra. In this case, however, Farrier did witness some of the events, and he did not arrest Dinmark until after he had identified himself as a policeman. Farrier's status changed when he witnessed Dinmark's acts in his presence. He, therefore, was acting within his authority as a policeman when he made the arrest. See Perry v. Greyhound Bus Lines, 491 So. 2d 926 (Ala.1986), and Robinson, supra. Because Farrier was acting within his authority as a *822 policeman, the trial court committed no error in instructing the jury.
For the reasons set forth, the judgment of the trial court is due to be affirmed.
AFFIRMED.
JONES, ALMON, SHORES and STEAGALL, JJ., concur.
[1] Robinson v. State, 361 So. 2d 1113 (Ala.1978). A change in the policeman's status would occur if he saw a crime committed in his presence. In Robinson, the off-duty policeman made an arrest in a crime not committed in his presence.
[2] Dinmark argues that the jury instruction stating that a police officer may arrest a person without a warrant for a public offense committed or a breach of the peace threatened in his presence conflicts with the law in the memorandum dealing with police officers who "moonlight" and make arrests. No conflict is present, because the jury instruction set forth a basic premise of the law and the memorandum applied to a more specific instance when an offduty police officer working as a security officer makes an arrest for a crime not committed in his presence. | July 2, 1987 |
d9ec3aca-9c40-4bcc-a715-7e113b396663 | Trimble v. Todd | 510 So. 2d 810 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 810 (1987)
M.H. TRIMBLE and Trimble Coal Company
v.
Micha M. TODD.
Willard DRUMMOND
v.
Micha M. TODD.
85-835, 85-836.
Supreme Court of Alabama.
June 30, 1987.
Nobie E. Hudson, Cullman, for appellant Willard Drummond.
Roy W. Williams, Jr., Cullman, for appellant M.H. Trimble.
*811 Thomas E. Davis of Burns, Shumaker & Davis, Gadsden, for appellee.
PER CURIAM.
These are appeals from a jury verdict in the amount of $56,092.00, for the plaintiff, Micha M. Todd against the defendants, M.H. Trimble and Trimble Coal Co., and Willard Drummond. On July 29, 1982, Todd filed suit against Trimble, Trimble Coal Co., and Drummond, alleging breach of agreement and goods sold and delivered, specifically 1,516 tons of coal. The judgment entered on the jury verdict is affirmed.
The facts surrounding this case are as follows:
In 1982, plaintiff Todd started mining in Franklin County, Alabama. He hired Ronnie Abernathy to help him operate his coal mining business. In May 1982, Abernathy made an agreement with Drummond for Drummond and Trimble to buy 1,516 tons of coal. In accordance with that agreement, Todd shipped the coal to Port Osborn. On May 26, 1982, Todd and Abernathy went to see Drummond in order to collect for the coal they had delivered. They were unable to collect. Two weeks later, Todd met with Trimble and an Attorney Guthrie. Todd asked Trimble if he would try to help Todd get his coal back. Through Guthrie they recovered 830 tons of the original coal and 635 tons of a better grade and a greater value. Todd then signed a release for the coal. Todd later sold the 635 tons of better grade coal to another customer. Both Trimble and Drummond denied the existence of a partnership. Drummond said he used Trimble's name in order to place his coal on the order to sell his coal. He further testified that his only agreement through Abernathy was that Todd could ship Todd's coal to Port Osborn and that he would help collect Todd's money for Todd. Todd's witness, Alverson, testified that from May 21, 1982, to May 26, 1982, he sold coal to Trimble. He further testified that in a phone conversation Trimble told him that Trimble and Drummond were partners and that they were mixing coal together and selling it to H & S Coal Company.
Drummond and Trimble first argue that the trial court erred when it denied a directed verdict in their favor on the grounds of violation of the Uniform Commercial Code's statute of frauds. It is admitted that no written agreement existed for the sale of the coal. Drummond and Trimble argue that the sale price was over $500.00 and, therefore, that the contract was unenforceable unless it was reduced to writing. Section 7-2-201(1), Code of Alabama (1975), states the following:
Formal requirements; statute of frauds.
However, § 7-2-201(3) states:
The statute provides an exception to the rule requiring a writing evidencing the contract. The general rule is that for a contract for the sale of goods in an amount over $500.00 to be enforceable, the contract must be written; however, when those goods have been received and accepted, no written contract is required. Section 7-2-201(3)(c), Code of Alabama (1975); Dykes Restaurant Supply, Inc. v. Grimes, 481 So. 2d 1149 (Ala.Civ.App.1985); Engel *812 Mortgage Co. v. Triple K Lumber Co., 56 Ala.App. 337, 321 So. 2d 679 (Ala.Civ.App. 1975). In this case, it is not disputed that the sale price was over $500.00. Todd delivered the coal to Port Osborn under the designation of Drummond/Trimble, and it was accepted there. Therefore, because Todd met the requirements of the statutory exception, his claim does not fail because of a violation of the statute of frauds.
Defendants Drummond and Trimble next argue that the trial court erred when denied them a directed verdict on the grounds of release and waiver. One release that the defendants assert relieves them of liability is as follows:
That release was signed by the president of H & S Coal Company and Micha Todd for Eagle Contracting Company.
The other release they rely on reads as follows:
That release was signed by John Guthrie, Jr., for Guthrie and Morrow Company, Inc., and Micha Todd for Eagle Contracting Company.
Where no ambiguity exists, the Court's only function is to interpret the lawful meaning and intentions of the parties as found within the agreement and to give effect to them. Johnston v. Bridges, 288 Ala. 156, 258 So. 2d 866, cert. denied, 409 U.S. 847, 93 S. Ct. 52, 34 L. Ed. 2d 88 (1972). Parol evidence is not permitted to explain unequivocal terms. Jehle-Slauson Constr. Co. v. Hood-Rich, Architects & Consulting Eng'rs, 435 So. 2d 716 (Ala. 1983).
Both defendants argue that the intention of the releases was to vest in Todd marketable title in order that Todd could sell the coal to other customers. They further argue that Todd sold the 635 tons of coal to another customer and retook possession of the remaining 830 tons, and therefore, that he has been indemnified and his claim should be barred. However, neither Drummond nor Trimble was a party to either of the releases, nor did either document mention either of the defendants. As there was no evidence that any party acted as their agent, they cannot claim they were parties to the agreement. The only parties released from liability would be the parties referred to within the release and agreement. Therefore, the trial court did not err when it overruled defendants' motion for directed verdict.
Drummond and Trimble also argue that the trial court erred when it denied a new trial or a judgment notwithstanding the verdict. Drummond and Trimble argue that the most Todd could recover would be the amount allowed under § 7-2-706(1), Code of Alabama (1975). That code section provides that the plaintiff can recover "the difference between the resale price and the contract price together with any incidental damages ..., but less the expenses *813 saved in consequence of the buyer's breach." However, the seller's remedy found in § 7-2-706, Code of Alabama (1975), is subject to the conditions set forth in § 7-2-703, Code of Alabama (1975). That section provides for the remedy listed in § 7-2-706 when the "buyer wrongfully rejects or revokes acceptance of goods or fails to make a payment due on or before delivery...." (Emphasis added.) In the instant case, delivery had occurred. Therefore, § 7-2-706 and § 7-2-703 are inapplicable.
Drummond and Trimble further argue that the amount received by Todd for the sale of the 635 tons of coal should be applied to reduce the amount awarded. It should again be noted that the 635 tons of coal was not part of the original coal delivered by Todd. It was coal of a higher grade returned to him by virtue of the release. Drummond and Trimble cite Anderson v. Kemp, 279 Ala. 321, 184 So. 2d 832 (1966), for the proposition that any amount received by a party as compensation for injuries under a conditional release, settlement, or any other kind of arrangement reduces the amount of damages recoverable. We have no quarrel with the wording in Anderson. However, that case involved a settlement with one joint tortfeasor being applied to the other tort-feasor in an action for personal injuries suffered as a result of an automobile accident. The holding of that case is completely inapplicable to the present case. As discussed earlier, the defendants were not parties to the releases. They cannot now claim that the benefit derived from the release was given at their direction where no evidence of agency existed. Damages for breach of contract are to be awarded to put the injured party in the same position he would have occupied had the breach not occurred. Cobbs v. Fred Burgos Const. Co., 477 So. 2d 335 (Ala.1985). The amount of damages awarded is left to the discretion of the jury under proper instructions, and its decision will generally not be overturned unless the amount is so excessive as to show passion, bias, prejudice, or other improper motive, or is against the great weight and preponderance of the evidence. International Union, United Auto. Aircraft and Agr. Implement Workers of America (UAW-CIO) v. Palmer, 267 Ala. 683, 104 So. 2d 691 (1958). There is no evidence that the jury's verdict was excessive, was influenced by improper motives, or was against the great weight and preponderance of the evidence. Therefore, the judgment of the trial court based on that verdict is due to be affirmed.
AFFIRMED.
JONES, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | June 30, 1987 |
ee9eff3b-2b7f-43a0-aee0-9092ed738a3b | Farmers & Merchants Bank v. Home Ins. Co. | 514 So. 2d 825 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 825 (1987)
FARMERS & MERCHANTS BANK
v.
HOME INSURANCE COMPANY, et al.
v.
HOME INSURANCE COMPANY
v.
FARMERS & MERCHANTS BANK.
The JOHNSON AGENCY, INC., and Robert L. Griffith
v.
FARMERS & MERCHANTS BANK.
85-1118, 85-1119, 85-1177, 85-1178, 85-1189 and 85-1190.
Supreme Court of Alabama.
June 26, 1987.
Rehearing Denied September 18, 1987.
*826 W. Eugene Rutledge and Kay S. Kelly, Birmingham, for appellant/cross-appellee Farmers & Merchants Bank.
Stanley A. Cash of Huie, Fernambucq & Stewart, Birmingham, and Dennis R. Yeager and Richard Imbrogno of Yeager & Lang, New York City, for appellee/cross-appellant Home Ins. Co.
James S. Lloyd and Michael E. Henderson of Clark & Scott, Birmingham, for appellees/cross-appellants The Johnson Agency, Inc., and Robert L. Griffith.
JONES, Justice.
These appeals and cross-appeals arise from a summary judgment entered in a consolidated action. We affirm the judgment.
In July 1975, Farmers & Merchants Bank of Centre (the "Bank") purchased an insurance policy from The Johnson Agency (the "Agency")the insurance agency with which the Bank transacted all of its insurance business. This new policy was secured on the request of a vice president of the Bank to protect against monetary losses resulting from the negligence of the Bank's officers or directors.[1]
The Bank's president and board of directors approved the purchase of the new insurance policy. Robert L. Griffith, president of the Agency, prepared the policy application to obtain the insurance from Home Insurance Company ("Home"), and later delivered the executed policy to the Bank.
The Home policy, issued to the Bank through the Agency, consisted of two parts styled "DIRECTORS AND OFFICERS LIABILITY" and "COMPANY REIMBURSEMENT *827 LIABILITY"a standard policy form. The first section provided coverage for Bank directors and officers (reimbursement to the directors and officers directly) under circumstances in which the Bank was not required or permitted to indemnify its directors and officers for losses incurred by them while acting in their capacities as officers and directors.[2] The second section provided coverage for losses sustained by the Bank (reimbursement to the Bank) because of the Bank's indemnifying its officers and directors under circumstances in which the Bank was required or permitted to indemnify.[3] The policy was renewed every three years, the latest renewal being made for the period of July 17, 1981, through July 17, 1984.
No claims were made against Home under the policy until January 1983, when a lawsuit was filed against the Bank and one of its officers, alleging fraudulent and dishonest practices. By letter, dated January 21, 1983, Home's lawyer advised Griffith and the Agency of Home's position regarding the lawsuit:
Griffith stated that he told the Bank's president of Home's notification of denial of coverage and that he forwarded a copy of Home's letter to the Bank.
In September 1983, the Bank's president notified Griffith of another lawsuit against the Bank and certain of its directors and officers and requested that Home defend the Bank and the officers and directors. Again, by letter to Griffith and the Agency dated September 29, 1983, Home's lawyer set out Home's position:
". . . .
In response to this letter, the Bank's president requested that Griffith advise another insurer of this second lawsuit so that the other insurer could act to protect the Bank under the Bank's blanket bond.
In November 1983, the Bank's president told Griffith of counterclaims filed against the Bank and certain directors and officers in a third lawsuit. Again, the Bank requested that Home provide the Bank and its directors and officers with a defense in the case. The response of Home's lawyer to this claim against the policy was dated November 3, 1983, and it stated:
Following Home's third letter denying coverage, the Bank (in the Cherokee Circuit Court) filed a declaratory judgment action styled Farmers & Merchants Bank v. The Johnson Agency, Inc., and Robert L. Griffith ("F & M v. Agency"), asking the trial court to find the defendants liable for losses in excess of $7 million allegedly suffered by the Bank because of the negligent acts of the Bank's directors and officers. The Bank alleged both breach of contract and fraud against the defendants, basing its claims on the Home policy sold to the Bank by Griffith.
In a separate action styled Farmers & Merchants Bank v. The Home Insurance Company, The Johnson Agency, Inc., and Robert L. Griffith ("F & M v. Home"), the Bank sought declaratory relief to the effect 1) that Home was obligated to defend the Bank and certain of its directors and officers in the two actions against the Bank and its directors and officers and in the third action against the Bank alone; and 2) that Home was obligated to pay, on behalf of the Bank and its directors and officers, any losses suffered in connection with those actions. The Bank also alleged that Home had breached the contract of insurance and had committed the tort of bad faith failure to perform its obligations under the insurance contract.
*829 The defendants filed motions to dismiss, along with supporting affidavits. The trial court treated the actions as consolidated and treated the defendants' motions as motions for summary judgment. After the motions had been briefed and argued, the trial court granted summary judgment in favor of the defendants on the Bank's claims of breach of contract and denied the defendants' motions for summary judgment as to the Bank's misrepresentation claim in F & M v. Agency. In F & M v. Home, the court granted summary judgment in favor of Home as to the Bank's breach of contract claim as it related to Home's duty to defend the pending suits against the Bank, as well as the claims against the Bank's officers and directors; however, the trial court denied the defendants' motions to the extent that the Bank claimed coverage for reimbursement of the officers and directors, stating that "Home has not denied coverage for such indemnification but has reserved its rights until the respective lawsuits are concluded." The trial court denied the defendants' summary judgment motions as to the Bank's claims against Home for bad faith and fraud.
The defendants filed motions for reconsideration of the trial court's order and in support of their motions filed the affidavit of Griffith. The trial court reconsidered its order and granted summary judgment in favor of the defendants on the fraud and bad faith claims on the ground that these claims were barred by the statute of limitations. The trial court held that "the series of notices [the letters from Home's lawyer] to the Bank ... stated Home's position as to coverage in a clear and unquestionable fashion and constituted as a matter of law a discovery by the Bank of the alleged fraud which commenced the running of the statute of limitations." The Bank appealed; Home, Agency, and Griffith cross-appealed.
On appeal, the Bank advances alternative arguments in contract and in tort. It first maintains that the contract of insurance provides direct coverage to the Bank for the losses made the basis of the Bank's claims under the policy. We find, however, as did the trial court, that the Bank is not the insured under the provisions of the first insuring clause and, therefore, may not bring a direct action against Home under this clause. Rather, the plain terms of this first insuring clause provide direct coverage only to the officers and directors. The Bank, then, in order to recover the losses it sustained as a result of the officers' and directors' negligence, must pursue its claim directly against these officers and directors.
The second insuring clause very plainly provides primary insurance coverage to the Bank to the extent the Bank has indemnified its officers and directors for covered losses incurred by those officers and directors. We agree with the trial court that the second insuring clause has no application to the instant cases, where there has been no claim of indemnification by the Bank.
In further support of its contract claim, the Bank alleges that certain terms of the insurance policy are ambiguous; therefore, it argues, the contract must be construed against Home and must be interpreted as providing direct insurance coverage to the Bank. We disagree.
The Bank finds support for its claim of ambiguity in our recent decision in Davis v. Southern United Life Ins. Co., 494 So. 2d 48 (Ala. 1986). In Davis, we reversed a summary judgment for the insurance company when we found that "the meaning of the term `may' could be considered unclear," thereby rendering the insurance provision ambiguous and presenting a question for consideration by a jury. We find, however, no lack of clarity in the Home insurance contract purchased by the Bank.
The Home policy is not confusing with regard to the meaning of its terms nor with regard to the construction of the policy as a whole. The policy is explicit in describing the type of insurance coverage provided ("Directors and Officers Liability" and "Company Reimbursement" liability), in naming the insureds under the policy, in specifying the "Wrongful Acts" insured against, and in setting out the requisites *830 for making a claim and collecting against the policy. The trial court, then, correctly found for Home on this issue and that finding required that the unambiguous policy be enforced in accordance with its terms. See Kinnon v. Universal Underwriters Ins. Co., 418 So. 2d 887 (Ala. 1982), and cases cited therein.
Additionally, the allegedly ambiguous language ("legally obligated to pay" and "loss") relates to the insureds under the first insuring clause of the policy, i.e., the officers and directors. Therefore, in its attempt to collect under a policy provision that requires that the insureds be "legally obligated to pay" for their wrongdoings, the Banknot an insured under this clausemay not assert the liability of the officers and directors, who are not parties to this action.
Finally, the Bank argues that even if the written language of the policy did not provide direct coverage to the Bank, Home is nevertheless bound to provide the coverage that the Bank reasonably expected as a result of the representations of Home's agent. The Bank's vice president, who was responsible for initiating the purchase of this policy, claimed that he told Griffith that the Bank needed a directors and officers liability policy 1) to provide the Bank with insurance protection against losses to the Bank resulting from the negligent or improper handling of Bank business by directors or officers; 2) to protect the Bank against losses due to the Bank's indemnifying its directors and officers; and 3) to protect the Bank's officers and directors against losses due to class action and derivative suits by stockholders. Graves also stated that Griffith assured him that the policy would cover the Bank's own losses.
Therefore, says the Bank, relying on Protective Life Ins. Co. v. Atkins, 389 So. 2d 117 (Ala.1980), these representations made by Griffith, even though contrary to the written terms of the contract, are binding on Home in light of Griffith's status as an authorized agent for the sale of Home policies. Although this argument is based upon a correct understanding of the holding in Atkins, the facts of that case are clearly distinguishable from the instant facts.
In Atkins, the plaintiffs sued to recover the proceeds of a Protective Life Insurance Company "credit life" policy that had been issued on the life of the plaintiffs' testator in conjunction with a home mortgage loan. The testator's son took the final mortgage payment to the bank, where he talked with a bank vice president who was also an authorized Protective Life agent. The vice president told the testator's son that the testator could keep the life insurance in effect for the rest of that year or could cancel it and receive a refund of any prepaid unearned premiums. The testator did not return the policy for a refund, and he died several weeks later.
Protective Life denied coverage under the policy and returned the prepaid premiums because the written policy language provided 1) that coverage terminated on the date the mortgage loan was paid in full, and 2) that the policy could not be modified without the consent of Protective Life's president, vice president, or secretary.
The bank vice president/Protective Life agent who talked with the testator's son testified that although his authority as a Protective Life agent was limited, he believed his representations to the testator's son were true. He also stated, however, that he had had no conversation with the testator's son regarding his authority. The testator's son claimed that he was under the impression that the bank vice president had the authority to bind Protective Life.
The holding in Atkins centered on the relationship of the parties (including the bank vice president) and on the authority of the bank vice president to change the provisions of an existing contract of insurance. The Court also addressed the issue of the oral extension of an existing written policy. The doctrine of merger was not applicable.
Here, however, the written policy of insurance was issued subsequent to the agent's allegedly making oral representations that were contrary to the provisions of the written insurance contract. The instant facts, therefore, do invoke the application of the doctrine of merger, thereby *831 precluding any consideration of the alleged prior representations of Griffith as to coverage. We find the following language from Hartford Fire Insurance Co. v. Shapiro, 270 Ala. 149, 117 So. 2d 348 (1960), to be instructive on this issue:
The holding in Shapiro is especially applicable where, as here, the contract of insurance is between sophisticated parties. We find no error in the trial court's ruling on the Bank's contract issue; therefore, we turn now to the Bank's alternative argument with regard to its claims in tort.
The Bank's tort claims arise from its allegations of misrepresentation of the policy's terms and a bad faith failure to pay claims made against the policy. The Bank also maintains that its tort claims are not barred by the statute of limitations and that the trial court erred in reversing its judgment on these claims on the defendants' motions for reconsideration.
We need not address the merits of misrepresentation and bad faith issues. We find, as did the trial court, that these claims were barred by the applicable statute of limitations. Code 1975, § 6-2-39(a)(5) and § 6-2-3.[4]
The Bank strenuously argues that the post-claim letters from Home's lawyer denying coverage can not be the basis for finding that the Bank had notice of the alleged tortious conduct of the defendants, and thus that the statute of limitations period had begun to run. A denial of coverage in the instant circumstances, says the Bank, was an expected occurrence; therefore, it says, the letters from Home's lawyers only conditionally denied direct coverage to the Bank and were not to put the Bank on notice of a discrepancy between the allegedly represented coverage and the coverage defined by the terms of the policy or to trigger the running of the statute of limitations. In any case, the Bank argues, where, as here, there is evidence from which reasonable inferences may be drawn as to whether a plaintiff has been defrauded and, if so, when the plaintiff discovered the fraud, the statute of limitations issue is to be determined by the trier of fact and is not properly determined on a motion for summary judgment. Marks Fitzgerald Furniture Co. v. Clarklift of Alabama, Inc., 494 So. 2d 614 (Ala. 1986).
We do not argue with the Bank's statement of the law with regard to the relationship between the discovery of fraud and the commencement of the running of the statute of limitations for an action in fraud. We would point out, however, that the running of the statute of limitations may be triggered when the party seeking to bring the action knew of facts which would put a reasonable mind on notice of the possible existence of fraud. Jefferson County Truck Growers Ass'n v. Tanner, 341 So. 2d 485 (Ala.1977). This is also the standard by which to determine when a cause of action for bad faith refusal to pay insurance benefits accrued for the purposes *832 of commencing the running of the statute of limitations. See Safeco Ins. Co. of America v. Sims, 435 So. 2d 1219 (Ala. 1983); Dumas v. Southern Guaranty Ins. Co., 408 So. 2d 86 (Ala.1981).
Here, the trial court, in its order on reconsideration, held:
We recognize, of course, that, where contrary inferences may be drawn by the factfinder as to the date on which the plaintiff was put on reasonable inquiry of the alleged misrepresentation, this factual issue precludes disposition by summary judgment. See Marks Fitzgerald Furniture Co. v. Clarklift of Alabama, Inc., supra; Elrod v. Ford, 489 So. 2d 534 (Ala. 1986); Cartwright v. Braly, 218 Ala. 49, 117 So. 477 (1928); Cumberland Capital Corp. v. Robinette, 57 Ala.App. 697, 331 So. 2d 709 (1976); James Talcott, Inc. v. Jack Cole Co., 441 F.2d 325 (5th Cir.1971).
Nonetheless, here, we agree with the trial court. We find that the letters written by Home's lawyer could not have been more explicit in setting out the type of coverage provided the Bank by the Home policy and in explaining what kinds of claims would be honored and what kinds would not be honored by Home. This evidence showed, without conflict, that, at the very least, the Bank had notice of "facts sufficient to put a prudent person on inquiry, which in the exercise of proper prudence and diligence would have enabled the Bank to learn of the alleged tortious conduct on the part of the defendants. Sexton v. Liberty Nat'l Life Ins. Co., 405 So. 2d 18 (Ala.1981), quoting from Seybold v. Magnolia Land Co., 376 So. 2d 1083 (Ala. 1979). Therefore, summary judgment on the claims of misrepresentation and bad faith was proper.
Because of our holding with regard to the issues raised on the appeals, the issues on the cross-appeals are mooted. The judgment is therefore affirmed.
AFFIRMED.
ALMON, SHORES, HOUSTON and STEAGALL, JJ., concur.
[1] Dishonest acts of the Bank's officers and directors were covered under a separate broker's bond.
[2] The insuring clause of the "Directors and Officers Liability" section of the policy provides:
"If during the policy period any claim or claims are made against the Insureds (as hereinafter defined) or any of them for a Wrongful Act (as hereinafter defined) while acting in their individual or collective capacities as Directors or Officers, the Insurer will pay on behalf of the Insureds or any of them, their Executors, Administrators or Assigns 95% of all Loss (as hereinafter defined), which the Insureds or any of them shall become legally obligated to pay...."
The term "Insureds" in the above-quoted provision is defined as follows:
"The term `Insureds' shall mean all persons who were, now are or shall be duly elected
Directors or Officers of the [Bank]...."
The term "Wrongful Act" in the above-quoted provision is defined as follows:
"The term "Wrongful Act" shall mean any actual or alleged misstatement or misleading statement or act or omission or neglect or breach of duty by the Insureds while acting in their individual or collective capacities or any matter, not excluded by the terms and conditions of this policy, claimed against them solely by reason of their being Directors or Officers of the [Bank]."
The term "Loss" in the above-quoted provision is defined as follows:
"The term `Loss' shall mean any amount which the Insureds are legally obligated to pay for a claim or claims made against them for Wrongful Acts and shall include but not be limited to damages, judgments, settlements and costs, cost of investigation (excluding salaries of officers or employees of the [Bank]) and defense of legal actions, claims or proceedings and appeals therefrom, cost of attachment or similar bonds; providing always, however, such subject of loss shall not include fines or penalties imposed by law or matters which may be deemed uninsurable under the law pursuant to which this policy shall be construed."
[3] The insuring clause of the "Company Reimbursement Liability" section of the policy provides:
"If during the policy period any claim or claims are made against the Directors or Officers (as hereinafter defined) or any of them for a Wrongful Act (as hereinafter defined) while acting in their individual or collective capacities as Directors or Officers, the Insurer will pay on behalf of the [Bank] 95% of all Loss (as hereinafter defined), which the [Bank] may be required or permitted to pay as indemnities due to the Directors or Officers for a claim or claims made against them for Wrongful Acts...."
The definition of "Directors and Officers" in the above-quoted section of the policy is the same language used to define "Insureds" in the insuring clause of the "Directors and Officers Liability" section of the policy. The definition of "Wrongful Act" in the above-quoted section of the policy is the same language used to define that term in the insuring clause of the "Directors and Officers Liability" section of the policy.
The term "Loss" in the above-quoted section of the policy is defined as follows:
"The term `Loss' shall mean any amount which the [Bank] may be required or permitted to pay as indemnities due the Directors or Officers for a claim or claims made against them for Wrongful Acts and shall include but not be limited to damages, judgments, settlements and costs, cost of investigation (excluding salaries of officers or employees of the [Bank]) and defense of legal actions, claims or proceedings and appeals therefrom, cost of attachment or similar bonds, for which payment by the [Bank] may be required or permitted according to applicable law, or under provisions of the [Bank's] Charter or By-Laws; providing always, however, such subject of loss shall not include fines or penalties imposed by law or matters which may be deemed uninsurable under the law pursuant to which this policy shall be construed."
[4] We recognize that recent amendments to our statutes of limitations extended the statutory period to two years effective January 9, 1985. See Act 85-39, Second Spec. Session, 1984-85 Ala.Acts, repealing § 6-2-39, and amending § 6-2-38 and § 6-2-3. Those amendments have no effect in this case. | June 26, 1987 |
5c150d05-f81b-4548-b34c-3ec78cc1b327 | Cook v. Anderson | 512 So. 2d 1310 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1310 (1987)
John COOK, et al.
v.
Aaron ANDERSON.
85-357.
Supreme Court of Alabama.
June 19, 1987.
Rehearing Denied August 21, 1987.
William A. Scott, Jr., and Amy K. Myers, of Clark & Scott, Birmingham, for appellants.
Ab Powell III of Powell, Powell & McKathan, Andalusia, for appellee.
ALMON, Justice.
This appeal arises from a suit for damages for personal injuries filed against five of the plaintiff's co-employees and against his employer's workmen's compensation insurance carrier, alleging failure to provide a safe workplace, wantonness, and negligent inspection. After a trial on the merits, a jury returned a verdict in favor of the insurance carrier and a verdict in favor of the plaintiff against the individual co-employees, awarding $1,000,000.00 in compensatory and punitive damages. These defendants argue that plaintiff's counsel improperly referred to the workmen's compensation and employer's liability policy in such a way as to lead the jury to believe that liability imposed upon the individual defendants would be indemnified under the policy.
*1311 On January 26, 1983, Aaron Anderson, while working at the TMA Plywood Plant in River Falls, Alabama, severely injured his hand in a chipper machine. Anderson was the chipper operator, and part of his job was to keep the drive chain free of debris. As he was removing a stick that was caught in the chain, a sprocket caught his glove and pulled his hand into the drive chain. The questions presented to the jury regarding liability related to whether the defendants allowed the machine to be operated with the safety guard removed, whether they failed to have a functioning switch close by to stop the machine in the event of such an accident, whether they provided proper training, warnings, and tools to Anderson, and the like.
The insurance company defendant, Georgia Casualty & Surety Company, introduced the workmen's compensation and employer's liability policy as an exhibit for the purpose of showing that the policy gave Georgia Casualty the right but not the duty to inspect the premises and that it disavowed any undertaking to determine or warrant that the workplace was safe.
During his closing argument, the attorney for the five individual defendants made the following remarks:
Later, during plaintiff's counsel's rebuttal argument, he stated:
The attorney was holding the policy as he made these remarks.
Counsel for Georgia Casualty interrupted the argument at this point and requested to be heard in chambers. That attorney made extensive arguments about the impropriety and prejudicial effect of injecting insurance into the case,[1] after which the attorney for the individual defendants stated:
Both defense attorneys moved for a mistrial. When the trial court denied those motions, the attorney for Georgia Casualty requested curative instructions, but the trial court denied the request, expressing the opinion that to give such instructions would only emphasize what had been said.
In reversing a denial of a new trial, this Court has stated: "[W]ith reference to an argument made by counsel emphasizing the existence of insurance carried by his opponent covering the transaction, this Court has taken the position that the influence is ineradicable." Thorne v. Parrish, 265 Ala. 193, 195, 90 So. 2d 781, 783 (1956) (citations omitted). The principle that reference to indemnification or insurance of an opposing party is highly prejudicial and grounds for a mistrial or a new trial is firmly established. Coffee v. Seaboard System Railroad, 507 So. 2d 476 (Ala.1987); Otwell v. Bryant, 497 So. 2d 111 (Ala.1986); Eathorne v. State Farm Mutual Auto. Ins. Co., 404 So. 2d 682 (Ala.1981); Robins Engineering, Inc., 354 So. 2d 1 (Ala.1977); Colquett v. Williams, 264 Ala. 214, 86 So. 2d 381 (1956).
*1312 The statement made during plaintiff's rebuttal argument in this case improperly suggested to the jury that the individual defendants would be indemnified for any liability imposed upon them in the case. The insurance policy was introduced for a limited and completely different purpose and only as to another defendant; that is, it was introduced only to show the extent of Georgia Casualty's duty to inspect and the effect of any such duty. It did not cover the individual defendants. Anderson's argument that the remarks were proper reply in kind to opposing counsel's remarks about "sticking it to" the individuals is not well taken. The defense was properly contrasting the individual employees and their corporate employer, which was not a defendant. A proper reply in kind to the remarks about "sticking" the individuals, for example, would have been to focus on the blameworthiness of those individuals' actions.
Because we cannot say that the improper reference to insurance did not affect the verdict, especially in light of the size of the verdict, we hold that the trial court erred in denying appellants' motion for new trial. The judgment is therefore reversed and the cause is remanded.
REVERSED AND REMANDED.
MADDOX, JONES, SHORES and BEATTY, JJ., concur.
[1] Georgia Casualty's attorney stated that there was no coverage for the individual defendants under the policy, but incidentally also mentioned that there was another policy which did cover them. | June 19, 1987 |
b4cd6177-df2f-4e42-9417-f5a27c525291 | Pinkston v. Hartley | 511 So. 2d 168 | N/A | Alabama | Alabama Supreme Court | 511 So. 2d 168 (1987)
Thomas Barnett PINKSTON, Sr., and Mary Pinkston
v.
John W. HARTLEY, et al.
85-1481.
Supreme Court of Alabama.
July 2, 1987.
Philip H. Butler and David E. Belser, of Robison & Belser, Montgomery, for appellants.
J. Paul Lowery, Montgomery, for appellees.
ADAMS, Justice.
This is an appeal from a judgment in favor of John W. Hartley, et al. The trial judge found that an implied easement existed for a sewer line and granted injunctive relief ordering appellants to remove an obstruction they had placed in the field lines of appellees' septic tank. We affirm.
This case involves a bitter family dispute. Appellant, Thomas Pinkston, deeded to his daughter and son-in-law, Phillippa and John Hartley, property on which there was situated a house. The field lines from the septic tank on the property deeded to the Hartleys ran onto the Pinkstons' property. Although there was no express easement for the lines, it is undisputed that the lines existed at the time the Hartleys moved onto their new property in the spring of 1983. The Hartleys continued to use the lines until December 1984, when John Hartley informed Thomas Pinkston that the *169 lines needed to be replaced. Pinkston gave his permission for them to be replaced, although he maintains that he told Hartley to put them exactly where the old lines were and not to "get into the cemetery." Hartley contends he was told to place the new lines in the proximity of the old lines and not to interfere with gravesites.
A few months after the new field lines were laid, a family dispute arose over a different matter and the Hartleys moved to another city. In August 1985, Pinkston notified the Hartleys that he was revoking his permission for their field lines to run onto his property. Soon thereafter, Pinkston cut and sealed the lines and the Hartleys filed a complaint asking for injunctive relief.
As Pinkston concedes, the first hurdle to overcome in this case is the ore tenus presumption. We have stated, "In a case tried ore tenus there is a presumption of correctness, and the court's findings will not be disturbed unless they are palpably wrong, without supporting evidence or manifestly unjust." Silverman v. Charmac, Inc., 414 So. 2d 892, 894 (Ala.1982). Pinkston contends that because the trial court made rulings on undisputed facts, the ore tenus rule is inapplicable and the Supreme Court sits in judgment on the evidence de novo. He also argues that the trial court was clearly in error in its application of the law to the facts.
We find that the material facts of the case were in dispute. Furthermore, there is no indication of either palpable error in the trial judge's findings of fact or misapplication of the law to the facts.
The questions of fact material to the issues are whether the field lines encroached upon the graves and whether the Hartleys sufficiently complied with requirements concerning the location of the lines. There can be no question that the facts surrounding the issues are in dispute. Pinkston claims that the lines disturbed unmarked graves outside an iron fence that encircled the cemetery. He further argues that the location of unmarked graves could be ascertained by looking for depressions in the ground (although, he says, the depressions are no longer present since the field lines allegedly disturbed the graves). The Hartleys maintain that, to their knowledge, the lines do not go over any graves. Mr. Hartley contends that there were no depressions in the ground where the lines were laid and that there was no indication of graves in that particular area.
Pinkston and the Hartleys also disagree about whether the Hartleys sufficiently complied with Pinkston's restrictions. Pinkston claims that he told Mr. Hartley to place the new field lines in exactly the same place as the old lines. He contends that the old lines extended from the Hartley property line forty (40) feet onto his property and that the new field lines extend 120 feet onto his land. The Hartleys maintain that the old lines extended 81 feet onto Pinkston's property and that there exists a difference of only 31 feet in the two sets of lines, as opposed to the 80-foot difference claimed by Pinkston. Pinkston argues that this does not matter, since, he says, the Hartleys were told to place the lines exactly where the old lines had been located. Any extension, therefore, Pinkston argues, whether 31 feet or 80 feet, was violative of the restrictions. The differences in the parties' measurements are material. Since Hartley maintains that he was told to place the new field lines in the proximity of the old lines, the trier of fact must determine whether the new lines are in the proximity of the old field lines.
Pinkston also asserts that the trial court misapplied the law to the facts. An implied easement requires that the easement be reasonably necessary, but it is a question of fact in each particular case whether the right in question constitutes a necessity to the property conveyed. Stringer Realty Co. v. City of Gadsden, 256 Ala. 77, 53 So. 2d 617 (1951). That the need for a field line easement constituted a reasonable necessity in this particular situation was a finding within the trial court's discretion.
Although the trial court based its order on a finding of an implied easement and easement by necessity, the court could have found an easement by estoppel. See Consolidated Foods Corp. v. Waterworks & Sanitary Sewer Board, 294 Ala. 518, 319 So. 2d 261 (1975). The essential elements *170 for estoppel are (1) a position of the defendant assumed under color of right; (2) submission to and reliance upon that assumption by the one asserting estoppel; and (3) injury suffered by the one asserting estoppel as a proximate consequence of such submission and reliance. Mooradian v. Canal Ins. Co., 272 Ala. 373, 130 So. 2d 915 (1961). "The purpose of ... estoppel is to promote equity and justice in an individual case by preventing a party from asserting rights under a general technical rule of law when his own conduct renders the assertion of such rights contrary to equity and good conscience." Mazer v. Jackson, 340 So. 2d 770, 772 (Ala.1976). We find that these three elements essential for estoppel are present here.
Pinkston agreed to have the sewage lines laid on his property. His permission establishes that he had knowledge of the lines before any action was ever taken. Additionally, there is evidence that, after the lines had been constructed, Pinkston traversed that section of his property several times and said nothing to Hartley about the location of the field lines. Whether Pinkston observed or merely had opportunity to observe how the lines had been laid is a disputed fact question and thus its solution was within the trial court's discretion. It is not necessary that appellant actually saw the lines; actual knowledge is not required if knowledge can be reasonably imputed. Mazer v. Jackson, 340 So. 2d 770 (Ala.1976). Pinkston's silence for eight months after the lines were laid was a further indication of his assent. The Hartleys, in reliance on Pinkston's promise of an easement, constructed the sewage lines and would be materially harmed if Pinkston's claim were to prevail.
For the above reasons, we affirm the judgment of the Circuit Court of Montgomery County.
AFFIRMED.
JONES, ALMON, SHORES and STEAGALL, JJ., concur. | July 2, 1987 |
5c97781e-3bd6-4c1b-b21a-1b4023df7cd9 | Ex Parte Tomlin | 516 So. 2d 797 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 797 (1987)
Ex parte Phillip Wayne TOMLIN.
(Re Phillip Wayne Tomlin v. State).
No. 85-1110.
Supreme Court of Alabama.
June 5, 1987.
Rehearing Denied September 25, 1987.
Richard G. Alexander of Alexander and Knizley, Mobile, for petitioner.
Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for respondent.
STEAGALL, Justice.
Phillip Wayne Tomlin was indicted and convicted of capital murder as defined in Ala. Code 1975, § 13-11-2(a)(7) and (10) (repealed 1981).[1] The jury fixed Tomlin's punishment at death. The Alabama Court of Criminal Appeals affirmed the conviction, but found certain defects in the sentencing order and remanded the case to the trial court with directions to correct the sentencing order. See Tomlin v. State, 443 So. 2d 47 (Ala.Cr.App.1979). This Court affirmed the Court of Criminal Appeals' decision. See Ex parte Tomlin, 443 So. 2d 59 (Ala. 1983), cert. denied, 466 U.S. 954, 104 S. Ct. 2160, 80 L. Ed. 2d 545 (1984).
On September 24, 1984, additional testimony was taken by the trial court and, thereafter, the trial court again imposed the death penalty with a new sentencing order. On return to remand on November 12, 1985, the Court of Criminal Appeals *798 affirmed the new sentencing order. On January 7, 1986, the Court of Criminal Appeals denied rehearing but withdrew its November 12, 1985, opinion and issued another opinion. A second application for rehearing was filed by Tomlin and was overruled with an extension of the January 7 opinion on June 10, 1986. Tomlin v. State, 516 So. 2d 790 (Ala.Cr.App.1986). Tomlin then filed a petition for writ of certiorari with this Court, which we granted pursuant to Rule 39(c), A.R.App.P.
We have reviewed the record in this case, scrutinized the holding of the Court of Criminal Appeals, and carefully considered the propriety of the death penalty, and find that there were no errors adversely affecting the rights of the defendant. Therefore, the judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
MADDOX, JONES, SHORES, BEATTY, ADAMS and HOUSTON, JJ., concur.
[1] The 1975 capital punishment statute, as contained in §§ 13-11-1 through 13-11-9, was carried over intact to the new criminal code as §§ 13A-5-30 through 13A-5-38. These sections of the new criminal code were repealed, effective July 1, 1981, by the 1981 capital offense statute, but only as to conduct occurring on or after July 1, 1981. Therefore, conduct occurring before July 1, 1981, as in the present case, is governed by the pre-existing law, i.e., §§ 13A-5-30 through 13A-5-38. See Spears v. State, 428 So. 2d 174 (Ala.Cr.App.1982). | June 5, 1987 |
9d45ecfc-bb69-4d63-87f0-b2e6bdf4d419 | McMahan v. Old Southern Life Ins. Co. | 512 So. 2d 94 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 94 (1987)
Quillian McMAHAN, Individually and as Executor of the Estate of Lillie M. McMahan, deceased
v.
OLD SOUTHERN LIFE INSURANCE COMPANY, et al.
86-228.
Supreme Court of Alabama.
July 24, 1987.
*95 R. Blake Lazenby and William W. Lawrence of Wooten, Boyett, Thornton, Carpenter & O'Brien, Talladega, for appellant.
Ralph D. Gaines, Jr., and Robert B. Barnett, Jr., of Gaines, Gaines & Barnett, Talladega, for appellees.
SHORES, Justice.
Quillian McMahan, as executor of the estate of Lillie Maude McMahan, appeals from a summary judgment granted in favor of the defendants, and, in his individual capacity, he appeals from an order granting the defendants' motion to dismiss. We affirm in part and reverse in part.
On February 18, 1984, Lillie Maude McMahan died, at the age of 81 years. Her son, Quillian McMahan, was appointed executor of the estate on March 26, 1984. Quillian, as executor of the estate, filed this suit against Old Southern Life Insurance Company (hereinafter referred to as "Old Southern") on August 2, 1984, alleging fraud in the sale of 10 life and health insurance policies to Ms. McMahan during the last year of her life, and alleging wrongful refusal to pay benefits on a policy purchased in 1957, insuring the life of Ms. McMahan's husband, George Washington McMahan, who died March 4, 1977.
Old Southern filed a motion to dismiss and a motion for summary judgment on May 22, 1984, and October 11, 1985, respectively, on the bases that the tort actions did not survive the death of Lillie Maude McMahan, and that the one-year statute of limitations (Section 6-2-39(a)(5), Code 1975 (repealed eff. January 9, 1985) had run. On January 23, 1986, Quillian filed an amendment to the complaint, adding himself, individually, as a plaintiff; however, the complaint did not otherwise refer to Quillian or to any act of fraud committed by Old Southern against him. Old Southern filed a motion to dismiss the amendment on those grounds.
On July 1, 1986, the trial court entered an order granting the motion for summary judgment as to the original complaint and granting the motion to dismiss the amendment, stating as follows:
We agree with the trial court's holding that the fraud aspect of the action did not survive the death of Ms. McMahan; however, we do not believe that the entire action was based in tort.
Count VIII of the complaint states as follows:
The language in Count VIII can only be construed to state a claim for breach of contract. There are no allegations of fraud or bad faith in this particular count. In fact, Count VIII is the only count in the entire complaint where any kind of recovery is sought in connection with the 1957 life insurance policy. The other counts, which specifically allege fraud and bad faith, refer only to the 10 life and health insurance policies purchased by Lillie Maude McMahan in the year prior to her death. Accordingly, we hold that the gist or gravamen of Count VIII of the complaint is founded on the insurance contract. Hamner v. Mutual of Omaha Insurance Co., 49 Ala.App. 214, 270 So. 2d 87, (1972) cert. den., 291 Ala. 781, 282 So. 2d 256 (1973).
In Benefield v. Aquaslide `N' Dive Corp., 406 So. 2d 873 (Ala.1981), this Court acknowledged that "a contract action pursuant to § 6-5-462 survives in favor of the personal representative regardless of whether the decedent filed the action before his death." Accordingly, we hold that insofar as the plaintiff has stated a contract claim, that claim is one that survives in his favor as executor of the estate of Lillie Maude McMahan. Ala.Code (1975), § 6-5-462.
The pleadings indicate that the alleged breach of the insurance contract occurred sometime after March 4, 1977, the date of death of the insured. Quillian McMahan did not file this action until August 2, 1984. Actions on an insurance contracts must be commenced within six years of the breach. Ala.Code (1975), § 6-2-34.
To come within this time limitation, Old Southern must have refused payment of benefits or at least indicated that a refusal would be forthcoming, on August 2, 1978, or thereafter. We find it highly unlikely that Ms. McMahan was unaware of the alleged breach until 15 months after her husband's death. Nevertheless, the statute of limitations defense is an affirmative defense that must be raised in the trial court by pleading or by motion before it will be considered on appeal, Cammorata v. Woodruff, 445 So. 2d 867 (Ala.1983); Rule 8(c) and Rule 12(b)(6), A.R.Civ.P.; and, where a party fails to plead an affirmative defense, the defense is generally waived. Robinson v. Morse, 352 So. 2d 1355 (Ala.1977).
Old Southern pleaded the statute of limitations on the tort claims, but did not plead the statute of limitations on the contract claim. Old Southern has shown no reason that the general rule should not apply. Consequently, the defense is waived.
The summary judgment is affirmed insofar as it relates to the original tort claims, and the dismissal of Quillian McMahan's individual tort claims (added by amendment) is affirmed. However, because there is a genuine issue of material fact on the contract claim, the summary judgment is reversed insofar as it relates to that claim. Hartman v. Board of Trustees of the University of Alabama, 436 So. 2d 837 (Ala.1983).
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur. | July 24, 1987 |
d7aeabb2-2421-48db-b15c-606fcbf31302 | Kirby v. Williamson Oil Co. | 510 So. 2d 176 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 176 (1987)
Ruth A. KIRBY
v.
WILLIAMSON OIL COMPANY.
85-301.
Supreme Court of Alabama.
June 19, 1987.
*177 Joe R. Whatley, Jr., and Frances Heidt of Falkenberry, Whatley & Heidt, Birmingham, for appellant.
Joe C. Carroll, Birmingham, for appellee.
STEAGALL, Justice.
Ruth Ann Kirby appeals from a summary judgment granted in favor of Williamson Oil Company on her breach of employment contract claim and from a directed verdict granted in favor of Williamson Oil Company on her slander claim. We affirm.
Williamson Oil owns a chain of convenience stores. Kirby was employed by Williamson Oil on two separate occasions. The first occasion was during the months of August and September of 1982, when she was hired by Gary Jones, vice president of Williamson Oil. Kirby was given a routine polygraph examination by Williamson Oil, which she passed. She voluntarily quit her job at Williamson Oil and went to work for another convenience store for approximately four months. Kirby was unemployed from January until July of 1983, when she began her second period of employment with Williamson Oil. She was interviewed for the job by Gary Jones and passed another routine polygraph examination given by Mike Terrall, a Williamson Oil employee. Kirby was re-hired as a cashier in July 1983 and promoted to store manager in August 1983.
In October 1983, Kirby was notified by Gary Jones of an inventory shortage, and she and other store employees were required to take a polygraph examination. The examination was given by David Neu, security officer for Williamson Oil. Kirby passed the examination and was cleared at that time of any wrongdoing related to the inventory shortages. In August 1984, Kirby's employment with Williamson Oil was terminated by Gary Jones due to inventory shortages over a period of one year.
*178 Kirby testified that when she was hired by Williamson Oil in 1982, she was told that she would have a 90-day probationary period, and that if she successfully completed that period, she would not be discharged from employment except for cause or good reason. Kirby asserts that the employee policy manual, which sets forth "minimum acceptable performance standards," constitutes an employment contract, especially considering the language used in the first paragraph of the manual. The employment policy manual begins as follows:
After Kirby's employment with Williamson Oil had been terminated, her half-sister, Sheila Jones, continued to work for Williamson Oil as a cashier at its store in Bynum, Alabama. A robbery occurred at this store on September 12, 1984, while Jones was working. Jones telephoned Kirby late that night to report the robbery. Although Kirby no longer worked for Williamson Oil, she instructed Jones on the procedure to follow, and Kirby called the law enforcement officials and Gary Jones, vice president of Williamson Oil. Kirby then drove to the store and sat in her car in front of the store. The store manager and the law enforcement officers were inside the store when Kirby arrived, and David Neu arrived shortly thereafter, speaking to Kirby as he went inside.
Houston Dodgen, a deputy sheriff for Calhoun County, investigated the robbery of the store. A day or two after the robbery, Deputy Dodgen was contacted by Neu and informed that Neu had a suspect in the robbery. Deputy Dodgen and Neu had a private conversation in Neu's office at Williamson Oil, during which Neu told Deputy Dodgen that he suspected Kirby and her sister, Sheila Jones. Neu stated that his reasons for his suspicions were that Kirby had been outside the store after the robbery; she had been discharged from employment at Williamson Oil; there had been some problems with collecting on checks from Kirby; and Kirby and Jones had low I.Q's.
At the time of the conversation with Neu, Deputy Dodgen's son was married to Kirby's daughter. Deputy Dodgen later told his son and daughter-in-law about Neu's statements. The son and daughter-in-law related the statements to Kirby, whereupon Kirby called Deputy Dodgen and he also informed her of Neu's statements.
Kirby argues that she was a permanent employee and that she could be terminated only for cause. She relies upon the employee manual as support for this argument and cites City of Huntsville v. Biles, 489 So. 2d 509 (Ala.1986), as authority. In City of Huntsville, an employee handbook was held to create a property right for the employees in their employment. The handbook specifically stated that "a permanent employee is hired on a full-time permanent basis subject to the regulations concerning probationary period, termination for cause, and retirement." City of Huntsville v. Biles, supra, at 512.
The Williamson Oil manual does not contain a provision similar to the one in City of Huntsville. Nor does the manual contain an agreement specifying a definite period of employment. We find that the manual does not create a binding employment agreement, and particularly not one providing for permanent employment or employment for a specific period, and, therefore, that Kirby was an employee at will. However, even if Kirby were not an employee at will, according to her own testimony she could have been terminated for cause. The record clearly established that Kirby's employment was terminated due to her failure to control the inventory entrusted to her.
The trial court properly granted summary judgment for Williamson Oil on the breach of contract claim.
The trial court held that David Neu's statements to Deputy Dodgen were made in the course of an investigation of a criminal *179 offense, and, thus, that they were conditionally privileged; therefore, the court held, actual malice on the part of Neu must be shown as a part of the plaintiff's slander case. The trial court, finding no evidence of malice, granted a directed verdict against the slander claim.
The test for determining whether a communicating party has a conditional or a qualified privilege is as follows:
In the instant case, the evidence requires a finding that Neu's statements to Deputy Dodgen were prompted by a duty owed by Neu to Williamson Oil as its security officer, and that the statements were made to a person having a corresponding duty because Deputy Dodgen was a law enforcement official investigating the robbery at Williamson Oil. Accordingly, Neu's statements were conditionally privileged, and Kirby must show actual malice on the part of Neu in order to recover for slander. See Mead Corp. v. Hicks, 448 So. 2d 308 (Ala.1983).
Willis v. Demopolis Nursing Home, Inc., supra, at 1120, quoting Kenney v. Gurley, 208 Ala. 623, 626, 95 So. 34, 37 (1923).
As evidence of malice, Kirby cites the following three alleged statements and/or acts by Neu: (1) Neu had once accused Kirby of being involved in a store inventory shortage, though he had later cleared her of involvement when he gave her a polygraph examination; (2) Neu was involved in Kirby's termination from Williamson Oil; and (3) Neu made false statements to Deputy Dodgen about Kirby's financial condition and about her I.Q.
After reviewing the entire record, we find that the evidence regarding these three alleged statements or acts does not show malice on the part of Neu. Kirby testified that Neu administered the polygraph examination that she took in October 1983 concerning inventory shortages and that, during this examination, he accused her of knowing about the shortages. However, she also testified that Neu cleared her of the charges after he determined that she passed the examination. Kirby also testified that Neu was not her supervisor and that she had never had any arguments or disagreements with Neu. The record shows that Neu's only involvement in Kirby's termination was that his signature was on a personnel termination form which stated Kirby's name, the store where she worked, the date of termination, and the reason for termination, i.e., "failure to control inventory." Kirby testified that her termination was made personally by Gary Jones, who had also hired her. The record also disclosed that Kirby had promised Gary Jones that she would pay for checks that were returned "not sufficient funds" which her sister, Sheila Jones, had written, if Sheila did not pay.
The foregoing evidence shows only that Neu was performing his duties as an employee of Williamson Oil and that, in so doing, he reported to a law enforcement official the basis for his suspicions. His *180 statements were made in a private conversation with a law enforcement official and, unfortunately, that official released this information to others, including Kirby.
A directed verdict is properly granted if the evidence does not support every element of the claim. Lucky Manufacturing Co. v. Activation, Inc., 406 So. 2d 900 (Ala. 1981). The trial court properly directed a verdict for Williamson Oil on the slander claim.
AFFIRMED.
MADDOX, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
JONES, J., concurs in part and dissents in part.
JONES, Justice (concurring in part and dissenting in part).
I concur on the wrongful-discharge issue and dissent on the slander issue. While I agree that the statements alleged to be slanderous were conditionally privileged, I am of the opinion that the circumstances of this case make out a triable issue of fact on the requisite element of malice. | June 19, 1987 |
290ed5cb-0b78-4792-8617-936dc1a5c6cd | Nationwide Mut. Ins. Co. v. Clay | 525 So. 2d 1339 | N/A | Alabama | Alabama Supreme Court | 525 So. 2d 1339 (1987)
NATIONWIDE MUTUAL INSURANCE COMPANY
v.
Henry Garrard CLAY.
NATIONWIDE MUTUAL INSURANCE COMPANY, a corporation
v.
Henry Garrard CLAY.
82-536, 82-917.
Supreme Court of Alabama.
June 26, 1987.
Rehearing Denied April 29, 1988.
*1340 Bert S. Nettles and Forrest S. Latta of Nettles, Barker, Janecky & Copeland, Mobile, and Geoffrey C. Hazard, Jr., New Haven, Conn., for appellant.
Fred W. Killion, Jr. and William W. Watts of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, and Patricia K. Olney, Merritt Island, Fla., for appellee.
Edgar M. Elliott III and Karon O. Bowdre of Rives & Peterson, Birmingham, for amicus curiae State Farm Mut. Auto. Ins. Co.
PER CURIAM.
This case comes to us again on remand from the Supreme Court of the United States. The judgment of this Court was vacated and the case was remanded to us for further consideration in light of Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 106 S. Ct. 1580, 89 L. Ed. 2d 823 (1986). In the Lavoie case, the judgment was vacated because one of the Justices of this Court had authored the opinion in a 5-4 decision involving the tort of bad faith when he contemporaneously was litigating a tort of bad faith claim against another insurance company. The Supreme Court of the United States concluded that as a participating judge in the Lavoie case, he was "a judge in his own case." As a result, his interest in the Lavoie case was "direct, personal, substantial, [and] pecuniary." Because of "due process" concerns, the Supreme Court opined that "the appearance of justice" would be best served if this Court proceeded to review the Lavoie case without participation by the offending Justice. By a *1341 subsequent mandate, we are now required to review the issues in the instant litigation in light of the principles enunciated in Lavoie.
No perimeters were set forth in the Supreme Court's vacation of our judgment in this case. As a result, plaintiff Clay suggested that the non-disqualified members of the Court merely affirm the decision and allow the former judgment to stand. This is because the decision in this case, as contrasted with that in Lavoie, was a 6-3 decision. The elimination of the offending Justice's vote would allow the judgment to stand because it would still have the sufficient five votes to constitute a majority. However, we concluded that a true "appearance of justice" mandated that we require a complete rebriefing, reargument, and redeliberation of this case with the participation of all nine Justices presently on this Court. The result of our deliberations is that the judgment of the trial court is affirmed.
Although our prior opinion in this case, 469 So. 2d 533, contained an extensive statement of facts, we will, for purposes of this opinion, state again briefly the events leading up to the filing of this suit.
On June 14, 1966, Henry Garrard Clay, a practicing attorney, took out a disability income insurance policy with Paul Revere Insurance Company. Over ten years later, on December 8, 1976, Clay was contacted by a friend of his, Bill McDowell, an agent for Nationwide Mutual Insurance Company, about applying for a disability policy with Nationwide. In the application for insurance, Clay stated that his monthly income was $1,800.00. After Nationwide's doctor gave Clay a "clean bill of health," Nationwide issued Clay a disability income policy, effective January 19, 1977. Clay also promised to cancel a disability policy he had with Paul Revere Insurance Co.
Clay then contacted Paul Revere Insurance Company to cancel his policy of insurance with it. Upon receipt of Clay's notice of intent to cancel his disability policy, an agent of Paul Revere contacted Clay in an attempt to change his mind. After much discussion, Clay agreed to a new disability income policy with Paul Revere. According to the agent who sold Clay the policy, he told Clay that Paul Revere would cancel his old policy and take the same amount and incorporate it into a new policy. Clay then attempted to cancel his Nationwide policy, but could not get in touch with his agent, McDowell, because McDowell had been promoted and transferred to another town. A few weeks later, when Clay received a policy from Nationwide in the mail, he again attempted to contact McDowell to have this policy cancelled. It was at this time that Clay was first informed that McDowell had been promoted and that this was why he was having trouble contacting him.
On August 29, 1977, Clay first realized that he was having difficulty reading. On that day, he went to see Dr. Ross, an optometrist. Ross examined Clay and diagnosed cataracts. This was the first time anyone had diagnosed Clay as having cataracts. On September 7, Clay saw Dr. Harrison, who confirmed that he had cataracts. Dr. Harrison told him that the cataracts would get worse, and that eventually he would go blind. On this day, Clay closed his law office. Approximately three weeks later, Clay filed a disability claim with Nationwide. Clay's claim was assigned to Jim Otey, a Nationwide medical claims examiner. Clay first had communication with Otey in October of 1977. For a period of almost a year, Clay had extensive communications with Otey and with John Harker, a claims attorney for Nationwide. Several of Clay's phone calls to Otey and Harker were never returned, and when Clay was able to contact either person, he was often given what he called a "run around." Specifically, Clay was told that certain documents were not in his file when the person knew these documents were in his file. Also, certain letters and other papers necessary for the processing of his claim were stamped "filed" by Nationwide, but persons investigating the claim either did not find them or did not bother to take the time to check to see if indeed these papers were in the possession of Nationwide.
*1342 After several doctors had examined Clay and confirmed that he had cataracts, Harker agreed that Clay was disabled; however, Harker claimed that this was a pre-existing condition, and, therefore, said that Nationwide was not going to pay on the claim. Clay even corresponded with O.B. Carr of the Alabama Insurance Commission and complained about the treatment he was receiving from Nationwide. After two or three calls and letters from Carr, as well as numerous unanswered phone calls and letters from Clay, Harker finally authorized a payment of $1,300.00 to Clay on January 19, 1978. The check was not received by Clay until almost a month later. Even after payment of this $1,300.00, Nationwide was still three months in arrears. Furthermore, Nationwide was regularly withdrawing a monthly premium from Clay's checking account, even though Clay's policy had a waiver of premium provision that should have taken effect. Over the next four months, Clay had several more communications with Nationwide. At one point, Clay told Harker that he was contemplating filing suit, to which Harker replied, "go ahead, but you won't receive one nickel for ten years." Finally, after numerous attempts by Clay to have the matter resolved, he filed suit against Nationwide on July 14, 1978.
Even as late as October 1978, Clay was trying to have the automatic payment of his premium stopped. Nationwide's only response was that if he ceased making premium payments, he would not be entitled to further payments on his claim. In an interrogatory addressed to Nationwide as to why it was continuing to require Mr. Clay to pay the premiums on the disability insurance policy, Nationwide answered that "presumably any payments made by Mr. Clay were made voluntarily by him."
Although Nationwide makes numerous arguments as to why the judgment in this case should be set aside, the arguments are directed to two main issues. Issue one is whether the trial court properly submitted the issue of bad faith to the jury. Issue two is whether the award of $1.25 million in punitive damages for bad faith failure to pay $46,000.00 in disability benefits was excessive. We are of the opinion that the trial court's resolution of both issues was proper. Before addressing Nationwide's arguments individually, we note that "whether an insurance company is justified in denying the claim on the policy must be judged by what was before it at the time the decision was made." National Security Fire & Casualty Insurance Co. v. Vintson, 454 So. 2d 942 (Ala. 1984). Thus, evidence favorable to an insurer that arises after a bad faith denial should not be relevant to the propriety of the conduct of the insurer at the time of its refusal.
Nationwide first asserts that there was a genuine dispute over the amount of the benefits owed, and that this justified its denial of the claim. However, the calculation of benefits was not an issue at the time Nationwide denied the claim. Rather, Nationwide, at that time, took the position that Clay was not disabled or, alternatively, that his disability pre-existed the issuance of the insurance policy. Nationwide asserts in its brief that it is undisputed that Clay demanded full contract benefits under the policy, but the record indicates that Clay never demanded any specific amount, but only whatever was due him. Clay was never informed by Nationwide that it was unable to calculate the amount of the claim, or that the claim was subject to proration.
Nationwide's next argument is that it had a debatable reason to refuse to pay Clay because he made various misrepresentations in his application for insurance. Nationwide states that Clay represented that he was going to cancel the Paul Revere policy, but did not cancel it, and, instead, increased the amount of his coverage. There is no proof, however, that Clay did not intend to cancel the Paul Revere policy at the time he filled out the Nationwide application. The facts indicate that Clay called Paul Revere in order to to cancel the policy and was later convinced by Paul Revere that he should not cancel. This was the testimony of Clay, and there is no evidence from Nationwide to the contrary. *1343 Thus, the evidence on record indicates that it was Clay's intent to cancel the policy when he filled out the application for insurance with Nationwide. There is further evidence that he thought he did cancel the policy and that a new policy was issued for a higher coverage. The fact that the new policy was simply a "makeover policy" is not relevant to the issue of Clay's intent to cancel at the time he filled out the application with Nationwide. Lawson v. Cagle, 504 So. 2d 226 (Ala.1987).
Nationwide argues that Clay also misrepresented his average monthly earnings. However, it is undisputed that Nationwide never informed Clay that "average monthly income" meant "net income." Even so, Nationwide's choice of a single 12-month period in estimating average monthly income has no rational basis. Any other time period chosen would reveal that Clay's average monthly income was well in excess of $1,800.00 a month, even subtracting operating expenses. Since there was no evidence that Clay knew that the figure he was to put down concerning his average monthly income was supposed to be a "net income" per month, this ambiguity in the question on the application was correctly construed against the insurer by the trial court.
Finally, Nationwide had no lawful basis to deny the payment based on misrepresentation in the application, because, as a matter of law, it waived such a defense by continuing to demand and collect premiums. By collecting premiums, Nationwide was ratifying the existence of a contract, which is inconsistent with its position on appeal that misrepresentations on the part of Clay voided any contract.
On appeal, for the first time, Nationwide raises a claimed lack of cooperation on the part of Clay as a defense to the claim. This issue is meritless, because there is no evidence in the record whatsoever that Clay's alleged refusal to cooperate was the reason the company failed to pay the claim. To the contrary, all the evidence produced at trial showed that Nationwide was the one that failed to cooperate. Since this was not raised as an affirmative defense at the trial, this Court will not consider it on appeal. Green v. Taylor, 437 So. 2d 1259 (Ala.1983); Simmons Machinery Co. v. M & M Brokerage, Inc., 409 So. 2d 743 (Ala.1981). Even if we were to consider Nationwide's claim of lack of cooperation on Clay's part, inasmuch as Nationwide breached its own duty of good faith and fair dealing in handling the claim, Clay was excused from further obligation on his part under the policy. Under general principles of contract law, a substantial breach by one party excuses further performance by the other. See Smith v. Clark, 341 So. 2d 720 (Ala.1977).
Finally, Nationwide argues that its four payments of $1,300.00 each during the pendency of its investigation satisfied the requirements of good faith in dealing with Clay and that this was sufficient to keep the issue of bad faith from going to the jury. As with the lack-of-cooperation issue, partial payment was never raised as a defense to the claim, as required by Rule 8(c), Alabama Rules of Civil Procedure. It cannot, therefore, be raised on appeal. Green, supra, and Simmons, supra.
The cases cited by Nationwide in support of its argument that partial payment exempted it from liability for bad faith are all distinguishable from the present case in one respect: in each of those decisions, the Court found no evidence of bad faith in the refusal to pay a claim. It is ludicrous to suggest that partial payment could avert liability altogether. If this were the case, then partial payment could be used simply as a guise to conceal an otherwise intentional denial of the claim. Rather, partial payments in this case are evidence of the fact that Nationwide tried to delay full recognition of Clay's claim for an extended period of time. Sexton v. Liberty National Insurance Co., 405 So. 2d 18 (Ala.1981); Cincinnati Ins. Co. v. Little, 443 So. 2d 891 (Ala.1983); Bowers v. State Farm Mut. Auto. Ins. Co., 460 So. 2d 1288 (Ala.1984); National Sec. Fire & Cas. Co. v. Bowen, 417 So. 2d 179 (Ala.1982).
Other than the five reasons discussed above, there are several other instances *1344 during the almost ten-month period in which bad faith refusal to pay was demonstrated on the part of Nationwide. Nationwide first took the position that Clay was not disabled, which was directly contradicted by several doctors' reports (which were shown to be in the hands of Nationwide when it denied the claim), showing that Clay was, indeed, disabled. When this position seemed to no longer be maintainable, Nationwide argued that the condition pre-existed the policy. Again, Nationwide had in its possession a report showing that this was not the case. Nationwide then took a frivolous position when it asserted that Clay failed to undergo surgery and, therefore, did not mitigate his claim. This assertion hardly needs to be discussed, as there is no duty or requirement on the part of a disabled person to have surgery.
The record is replete with examples of Nationwide's intentional failure to investigate Clay's claim. The tort of bad faith was recognized to deal with just this type of situation. Therefore, the trial court was correct in allowing the issue of bad faith to go to the jury. Gulf Atlantic Life Ins. Co. v. Barnes, 405 So. 2d 916 (Ala.1981); National Sec. Fire & Cas. Co. v. Vintson, 454 So. 2d 942 (Ala.1984); Federated Guaranty Life Ins. Co. v. Wilkins, 435 So. 2d 10 (Ala. 1983); National Sav. Life Ins. Co. v. Dutton, 419 So. 2d 1357 (Ala.1982); National Sec. Fire & Cas. Co. v. Bowen, 417 So. 2d 179 (Ala.1982); Chavers v. National Sec. Fire & Cas. Co., 405 So. 2d 1 (Ala.1981); Continental Ins. Co. v. Kountz, 461 So. 2d 802 (Ala.1984).
Nationwide argues that, assuming without admitting, there was a bad faith claim sufficient to go to a jury, the jury award of $1.25 million in punitive damages for bad faith failure to pay $46,000.00 in disability benefits was excessive. Nationwide makes this challenge to the jury verdict on federal and state constitutional grounds, as well as on the basis of our case law. It claims that the verdict and the judgment entered on that verdict violate the 14th Amendment, the excessive fines clause, and the ex post facto clause of the United States Constitution. However, we note that these challenges were not presented for resolution before the trial court and have been presented for the first time on appeal. Resolution of these issues would violate a fundamental principle of appellate jurisdiction: that issues not raised before the trial court may not be raised on appeal. Green, supra.
On state law grounds, Nationwide argues that punitive damages should bear some particular mathematical relationship to compensatory damages. However, we have repeatedly held that punitive damages need not necessarily bear any particular relationship to compensatory damages. U-Haul Company of Alabama v. Long, 382 So. 2d 545 (Ala.1980). We have said that decisions on punitive damages must be made on a case-by-case basis, and it is clear from our cases that this Court is willing to uphold substantial jury awards for damages, even in excess of $1,000,000, when the facts warrant such an award.
The facts, as stated in this opinion, clearly show that the jury's award was warranted. Furthermore, there is no evidence that the jury's verdict was based on bias, prejudice, corruption, or other improper motive. The trial court, properly denied Nationwide's motion for JNOV, new trial, or remittitur. The judgment is, therefore, affirmed.
AFFIRMED.
JONES, ALMON, SHORES and ADAMS, JJ., concur.
BEATTY, J., concurs specially.
MADDOX, J., dissents.
BEATTY, Justice (concurring specially).
Upon a full review of the record in this case, I find that it appears conclusively that there was evidence from which a jury could have found that Nationwide acted in bad faith when it first denied Clay's claim. At the time of this first denial, Nationwide had in its possession reports from several physicians, none of which supported the basis for Nationwide's denial of the claim, viz., that Clay's cataracts were a pre-existing *1345 condition. While the various physicians' reports indicated that Clay's cataracts had begun to develop prior to the date they were diagnosed, August 29, 1977, none of the reports indicated that Clay's cataracts existed or had begun to develop prior to the effective date of his policy with Nationwide, January 19, 1977. Indeed, Dr. Allen's December 14, 1976, report indicated that Clay was having no problems with his eyes at that time. Clearly, these facts made the issue of bad faith a question for the jury.
MADDOX, Justice (dissenting).
If the Court would reduce the amount of the judgment in this case to the sum of $100,000, the amount Clay sought on his contract claim, I would concur in the opinion.
Because I am of the opinion that there was a debatable reason for Nationwide's refusal to pay this claim, I believe that Nationwide was entitled to a directed verdict on the bad faith claim. While I believe that the trial court erred in directing a verdict for Clay on his contract claim, I would not reverse the judgment and order a new trial, because of the particular circumstances of this case, but I would require an additur of that judgment to allow Clay to recover the full amount he sought on the contract claim, $100,000. In my special concurrence in Aetna Life Insurance Co. v. Lavoie, 505 So. 2d 1050 (Ala. 1987), I set out my views on the development of the law of bad faith failure to pay an insurance claim, and I concurred in the conditional affirmance of the judgment in that case, because I was of the opinion that certain consequential damages should be permitted in a bad faith claim case involving an alleged breach of a non-commercial insurance contract, and I called upon the legislature to address the problem that is presented in cases such as the one here.
In this case, Clay, in addition to his claim for damages for breach of the contract, also asked for damages for "mental anguish." As I pointed out in my special concurrence in Aetna Life Insurance Co. v. Lavoie, I am of the opinion that this alternative to the bad faith theory of recovery should be adopted by this Court. Because I am of the opinion that the evidence would support a jury verdict on the contract claim for the specific damages Clay claimed in his complaint, I would concur in the result to affirm conditionally upon Clay's filing a remittitur of all but $100,000.00 of the damages awarded. Because the Court affirms the judgment on the bad faith claim without requiring a remittitur, as was done in Aetna Life Insurance Co. v. Lavoie, I must respectfully dissent.
PER CURIAM.
APPLICATION OVERRULED.
JONES, ALMON, SHORES and ADAMS, JJ., concur.
MADDOX and BEATTY, JJ., concur specially.
TORBERT, C.J., and HOUSTON and STEAGALL, JJ., not sitting.
MADDOX, Justice (concurring specially).
I agree that the application for rehearing should be overruled, but I point out that on original deliverance I dissented and stated that "I would concur in the result to affirm conditionally upon Clay's filing a remittitur of all but $100,000 of the damages awarded."
I am still of the opinion that the judgment should be affirmed conditionally, but I concur with the holding of the majority that Act No. 188, Ala.Acts 1987, which amended Ala.Code 1975, § 12-22-72 and § 12-22-73, which provided for a statutory affirmance penalty of 10%, has no application in this case. | June 26, 1987 |
86bdf451-68a7-45e6-9387-d12f8eb50e23 | Geans v. McCaig | 512 So. 2d 1308 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1308 (1987)
Roy GEANS and Gail Geans
v.
Shelby W. McCAIG and Brenda McCaig.
85-961.
Supreme Court of Alabama.
June 5, 1987.
Rehearing Denied August 21, 1987.
Lee B. Osborn, Winfield, for appellants.
*1309 James A. Dardess, Sheffield, for appellees.
ALMON, Justice.
This is an action for fraud and deceit seeking damages or rescission of a land sale contract and the note and mortgage executed pursuant thereto. Defendants filed a counterclaim for the balance due on the note. At the close of plaintiffs' evidence, the trial court entered a directed verdict for the defendants on both the complaint and the counterclaim, holding that the statute of limitations had run on the fraud claims because the plaintiffs should have discovered the alleged fraud more than one year before they brought suit.
On September 7, 1979, Shelby W. McCaig and his wife, Brenda McCaig, deeded to Roy Geans and his wife, Gail Geans, the following described property:
On December 20, 1983, Mr. and Mrs. Geans filed their complaint in this case.
The complaint alleges that Shelby McCaig represented to Roy Geans that the property consisted of five acres or more and that McCaig walked the property line with Geans and stated that the property extended to a fence on the southern boundary. The complaint alleges further that the true line falls short of the fence by 100 feet or more and that the property contains less than 2½ acres. Geans allegedly told McCaig that he intended to develop the property as a mobile home park and that he needed six acres for that purpose. In avoidance of the statute of limitations, the complaint alleges that the plaintiffs did not discover the fraud until March 1983, when, they say, they received word from the owner of the property to the south that they were encroaching on her property.
The plat of Government Park Addition # 2 shows each of the three lots to be 122 feet wide. Lot 17 is 305 feet long from its north to its south boundary; lot 18 is the same length on one side, but its northwest corner is cut off by Frankfort Road; lot 19 is approximately one-third smaller than lot 17 because of the intersection of Frankfort Road. Simple calculation shows lot 17 to be smaller than one acre; with the two other lots being smaller, the whole could not make up more than 2½ acres. A survey taken after this controversy arose shows that the fence ranges between 65 and 75 feet south of the southern boundary of the lots as described on the plats.
Code 1975, § 6-2-3, provides:
For purposes of this provision, facts constituting fraud are considered to have been discovered when they ought to have been discovered through reasonable diligence. Boros v. Palmer, 472 So. 2d 1020 (Ala. 1985); Papastefan v. B & L Construction Co., 385 So. 2d 966 (Ala.1980).
The McCaigs raised the statute of limitations as a defense in their answer, but they did not file a motion for summary judgment. In ruling on their motion for directed verdict, the court observed as follows:
The trial court did not err in ruling as it did. The judgment is affirmed.
AFFIRMED.
MADDOX, SHORES, HOUSTON, and STEAGALL, JJ., concur.
[1] Now two years. 1984-85 Ala. Acts, Act No. 85-39, p. 40, 2d Special Session 1984-85. See also Code 1975, § 6-2-39(a)(5) (repealed by Act 85-39) and § 6-2-38(l) (as amended by Act 85-39). | June 5, 1987 |
0e31376a-a6c6-4be9-9ee7-2882cd1ba3f4 | Davis v. Mims | 510 So. 2d 227 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 227 (1987)
Jerry P. DAVIS and Robert M. Hodgson
v.
Tommy MIMS.
85-1498.
Supreme Court of Alabama.
June 26, 1987.
*228 Cooper C. Thurber and Deborah Alley Smith of Lyons, Pipes & Cook, Mobile, for appellants.
Robert S. MacLeod and Daniel B. Duncan, Robertsdale, for appellee.
SHORES, Justice.
This is an appeal by permission of this Court, Rule 5, Ala.R.App.P., from an interlocutory order allowing the plaintiff, Tommy Mims, to substitute Jerry P. Davis and Robert M. Hodgson as defendants and allowing the substitution for the fictitious parties to relate back to the date of filing the complaint. We reverse and remand.
Tommy Mims was allegedly injured in a work-related accident on November 24, 1983, while he was employed as a laborer at Standard Furniture Manufacturing Company (hereinafter "Standard"). One year later, on the day the statute of limitations for bringing tort actions expired, Mims filed a complaint seeking workmen's compensation benefits and damages for negligent conduct.
The complaint contained allegations against the following fictitious defendants:
On July 1, 1985, Robert M. Hodgson was substituted for fictitious defendant "X," and Jerry P. Davis was substituted for fictitious defendant "Y."
Mims stated in his deposition that he had known Davis for 9 or 10 years, and he admitted that at the time of the accident he knew that Davis was the personnel manager.
Also, Mims admitted that he had known Hodgson for 12 years or more and that at the time of the accident he knew that Hodgson was the company president.
In opposition to the motion for summary judgment, Mims filed an affidavit stating that at the time of the accident, he did not know the legal responsibilities of Davis and Hodgson.
The defendants' motion for summary judgment was denied and this Court granted permission to appeal.
In Dannelley v. Guarino, 472 So. 2d 983 (Ala.1985), we held that in order to invoke the relation back principles of Rules 9(h) and 15(c), Ala.R.Civ.P., the plaintiff must meet the following criteria:
Davis and Hodgson do not question that a cause of action was stated in the body of *229 the complaint; however, they strenuously contend that Mims had sufficient knowledge at the time of the filing of the complaint that they were in fact the parties intended to be sued. We agree.
Mims admitted knowing Davis and Hodgson for approximately 9 or 10 years and 12 years, respectively, and was able to give a general description of the jobs performed by Davis and Hodgson. Mims argues that, although he knew the identity of Davis and Hodgson, under Dannelley, supra, relation back should be allowed because he did not in fact know the legal responsibilities of these defendants. The correct test is whether the plaintiff knew, or should have known, or was on notice, that the substituted defendants were in fact the parties described fictitiously. See also, Columbia Engineering Int'l., Ltd. v. Espey, 429 So. 2d 955 (Ala.1983); Threadgill v. Birmingham Board of Education, 407 So. 2d 129 (Ala.1981); Minton v. Whisenant, 402 So. 2d 971 (Ala.1981); Eason v. Middleton, 398 So. 2d 245 (Ala.1981).
From the evidence in the record, it is apparent that Mims knew the identity and general responsibilities of Davis and Hodgson at the time he filed the original complaint and that he was aware, or should have been aware, that Davis and Hodgson were in fact the parties described fictitiously.
Therefore, the judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
JONES, ALMON, ADAMS and STEAGALL, JJ., concur. | June 26, 1987 |
01332e12-3e7a-40bd-a0d5-1aad49c92db4 | Ashbee v. Brock | 510 So. 2d 214 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 214 (1987)
Mary K. ASHBEE
v.
Shirley F. BROCK, et al.
85-806.
Supreme Court of Alabama.
June 26, 1987.
*215 Nathan Friedlander, Mobile, for appellant.
David F. Daniel of Brown, Hudgens & Richardson, P.C., Mobile, for appellees.
SHORES, Justice.
This dispute arises from an automobile accident involving vehicles driven by the plaintiff, Mary Ashbee, and one of the defendants, Susan Brock.
Plaintiff Ashbee's evidence established that she was travelling East on Mobile's Airport Boulevard at approximately 5 p.m. Traffic was heavy, and Airport Boulevard is a heavily-travelled six-lane boulevard, with several dangerous intersections. She was travelling in the outside lane, and was proceeding at a speed of 30 to 45 miles an hour. Forty-five is the maximum speed allowed. She saw the vehicle operated by Susan, coming west on Airport Boulevard, begin a left turn across plaintiff's lane when she was approximately one half block from the intersection. She continued at the same rate of speed. When she realized that Susan was not going to clear the intersection, she applied her brakes, but her car skidded into the passenger side of the automobile driven by Susan.
The testimony on the other side was to the effect that Susan, who was 15 years and 4 months old, and who was driving with a valid Alabama learner's permit, approached the intersection and came to a full stop in the left lane. She observed the oncoming traffic, and decided that she had time to complete the left turn. She proceeded to make the turn, but before she could completely clear the outside eastbound lane, her car was hit by Ashbee's vehicle. Her progress had been momentarily slowed when her foot slipped off the accelerator.
Ms. Ashbee filed this action against Susan Brock, Shirley Brock (her mother), and G. Porter Brock, Jr.(Susan's father), on counts of negligence as to Susan and negligent entrustment as to the parents. The Brocks denied negligence on Susan's part, and pleaded contributory negligence on the part of the plaintiff. The trial court entered summary judgment in favor of Mr. Brock. After a trial, the jury returned a verdict in favor of Susan and Shirley Brock. The plaintiff's motion for judgment notwithstanding the verdict or for a new trial was denied. This appeal followed.
On appeal, Ms. Ashbee contends that the jury verdict was manifestly unjust and was not based on competent evidence. She also contends that the evidence was not sufficient to support a finding of contributory negligence, that the trial court erred in prohibiting plaintiff's counsel from arguing that the jury was not to consider how the defendants would satisfy any judgment which might be entered against them, and that the trial court erred in granting summary judgment in favor of Mr. Brock. We disagree and affirm both the summary judgment and the judgment based on the verdict.
Jury verdicts are presumed to be correct in Alabama. This presumption of correctness is further strengthened by the trial court's denial of a motion for new trial. Chapman v. Canoles, 360 So. 2d 319 (Ala. 1978). The appellate court "must review the tendencies of the evidence most favorable to the prevailing party and indulge such inferences as the jury was free to draw." Cooper v. Peturis, 384 So. 2d 1087, 1088 (Ala. 1980). Therefore, a judgment based on a jury verdict will not be reversed unless it is plainly and palpably wrong. Osborne v. Cobb, 410 So. 2d 396 (Ala. 1982).
Obviously, from the evidence, the jury could have concluded that Susan was negligent in making the left turn; or it could have concluded instead that Susan had sufficient time to complete her turn safely, and that Susan was operating the Brock vehicle in a reasonably safe and prudent manner. It is equally obvious, however, that the jury also could have reasonably *216 concluded that Ashbee was contributorily negligent in not slowing her automobile as she approached the intersection or in not moving to another lane to avoid colliding with Susan's car. Where the evidence will support conflicting conclusions, trial courts have no choice but to submit the evidence to the jury for resolution, on proper instructions of the law. This is what the trial court did in this case in submitting the issues of negligence and contributory negligence to the jury. We cannot find error in the trial court's refusal to direct a verdict in favor of the plaintiff, in light of the evidence offered.
One who entrusts a motor vehicle to an incompetent driver may be liable for any damages proximately resulting therefrom. Bruck v. Jim Walter Corp., 470 So. 2d 1141 (Ala. 1985). Since we are holding that the jury could have reasonably concluded from the evidence that Susan acted in a reasonably safe and prudent manner, and did not proximately cause Ashbee's alleged injuries, we must also hold that the plaintiff's claims against Shirley and G. Porter Brock, premised on a negligent entrustment theory, must fail. The jury verdict in favor of Susan eliminates any need for separate review of the propriety of the summary judgment in favor of Mr. Brock.
Finally, we hold that the trial court properly exercised its discretion in prohibiting plaintiff's counsel from arguing that the jury was not to consider how the defendants would satisfy any judgment entered against them.
It is well recognized in Alabama that "the trial judge in his discretion has control of arguments of counsel and this reviewing court will not interfere with that discretion except in cases of abuse." Dendy v. Eagle Motor Lines, Inc., 292 Ala. 99, 102, 289 So. 2d 603, 606 (1974). Moreover, this Court has consistently held that the wealth or poverty of the parties is not a proper subject for closing argument. Otis Elevator Co. v. Stallworth, 474 So. 2d 82 (Ala. 1985); Young v. Bryan, 445 So. 2d 234 (Ala. 1983); Patterson v. Craig, 394 So. 2d 948 (Ala. 1981); Allison v. Acton-Etheridge Coal Co., 289 Ala. 443, 268 So. 2d 725 (1972).
Accordingly, the judgments of the trial court are affirmed.
AFFIRMED.
JONES, ALMON, ADAMS, and STEAGALL, JJ., concur. | June 26, 1987 |
bb7bb01c-c28a-4853-b719-3a6f8e3e1c97 | Johnson v. Cervera | 508 So. 2d 257 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 257 (1987)
Jeff JOHNSON
v.
N.J. CERVERA.
85-560.
Supreme Court of Alabama.
May 29, 1987.
George E. Trawick, Ariton, for appellant.
N.J. Cervera, Troy, pro se.
JONES, Justice.
This is a contract action brought by N.J. Cervera, a lawyer, to enforce a contingent fee contract between Cervera and his client, Jeff Johnson. The trial court, after an ore tenus hearing, entered judgment for Cervera in the amount of $80,000, plus $21,628.96 in interest, from which Johnson appeals. We reverse and remand.
In early 1981, Jeff Johnson and his paternal grandfather met with attorney G.A. Lindsey to discuss the pending contest of the will of Morris A. Prestwood, Johnson's maternal grandfather. Johnson, the executor of Prestwood's will, valued the estate at $400,000 and inquired of Lindsey what fee he would charge for defending the will.
Lindsey testified that he "quoted them a fee of $50,000 in the case. And then they indicated they didn't have the availability of that kind of money outside the will being successfully defended. And I quoted them a fee of a third of the proceeds of the whatever was gained to them from that estate."
On March 21, 1981, Johnson and his grandfather visited the office of Cervera to discuss the defense of Morris Prestwood's will. Cervera prepared a document which Johnson signed and which read, in part:
"READ CAREFULLY
Prior to the date set for trial, the contestants offered to settle the contest if Johnson would pay them $200,000. The contestants' second offer was to settle for a payment of $100,000. Johnson refused both offers. After the jury had been impanelled, the contestants made a final offer to settle the contest for a payment to them of $25,000. Johnson, on the advice of counsel, accepted this offer and the litigation ended.
During approximately the next three years Cervera attempted to collect his fee from Johnson, claiming $80,000 (20% of the $400,000). During this same time, Johnson sold some timber to pay the $25,000 settlement and attempted to borrow money to pay the estate taxes and Cervera's fee.
Cervera testified that he thought he and Johnson had finally agreed on a plan whereby Cervera would finance the $80,000 for three years at 12% interest. After several attempts to have Johnson come into his office to execute a note and mortgage as security for the financing, Cervera wrote a letter to Johnson requesting that Johnson come in and sign the documents. In that letter Cervera gave Johnson a deadline of October 15, 1983, to contact Cervera or Cervera would "have to consider other alternatives." When Johnson did not respond, Cervera filed suit for breach of contract.
Each party claims support for his respective position in the terms of the contingent fee contract. Johnson's testimony disclosed the opposing contentions of the two parties:
Johnson argues that he "lost" $25,000 to the contestants, and, therefore, because he was able to settle the case rather than proceeding to a trial where Cervera would have had to "defend" the will, Johnson owed Cervera nothing.
Cervera counters by noting the numerous pre-trial procedures in which he engaged in preliminary defenses of Morris Prestwood's will and of Johnson's position as executor of the will. Therefore, maintains Cervera, because the bulk of the estate was protected by a favorable settlement resulting from Cervera's services on behalf of Johnson and in defense of the contested will, Cervera was successful in defending the will of Morris Prestwood.
It is apparent from the judgment in favor of Cervera that the trial court agreed with Cervera's interpretation of the contingent fee contract and its application to these circumstances. It was not, however, within the authority of the trial court to make the finding upon which its judgment was necessarily based.
Whether a contract is ambiguous is a question of law for determination by the trial court. Where, however, as here, the terms of the contract are clear and certain, the court's duty becomes that of simply determining the meaning of those terms. This duty does not include the authority to construe unambiguous contract terms to mean anything except what is set out in plain language. P & S Business, Inc. v. South Central Bell Telephone Co., 466 *259 So. 2d 928, 931 (Ala.1985). See, also, Haddox v. First Alabama Bank of Montgomery, 449 So. 2d 1226 (Ala.1984); Kinnon v. Universal Underwriters Insurance Co., 418 So. 2d 887 (Ala.1982); Michigan Mutual Liability Co. v. Carroll, 271 Ala. 404, 123 So. 2d 920 (1960).
Cervera strenously argues that his efforts were responsible for the successful defense of the Morris Prestwood will, which was the ultimate goal of the contingent fee contract. Therefore, he says, to deny him his 20% fee would be unconscionable. However, "we know of no canon of construction that warrants an interpretation the only effect of which is to relieve a party to the contract from consequences deemed by him hard or unfair." Lilley v. Gonzales, 417 So. 2d 161, 163 (Ala.1982). See, also, Lee v. Cochran, 157 Ala. 311, 47 So. 581 (1908).[1]
Even under what may seem to be the most compelling circumstances, the trial court may not "refine away the terms of the contract that are expressed with sufficient clarity to convey the intent and meaning of the parties." Kinnon v. Universal Underwriters Ins. Co., 418 So. 2d at 888. "It is not a function of the courts to make new contracts for the parties, or raise doubts where none exist." Commercial Union Ins. Co. v. Rose's Stores, 411 So. 2d 122, 124 (Ala.1982).
Accepting the argument advanced by Cervera that the contingent fee contract was clear and unambiguous, we nonetheless find that the contract does not provide for the circumstances which did in fact occur. It is perfectly clear that the only two contingencies visualized in the drafting and execution of the contingent fee contractwinning or losing the will contest caseboth contemplated a trial. Neither by the original terms of the contract nor by supplemental terms which could have been negotiated and added at the time of settlement, did the parties attempt to address a third contingencya settlement without a trial. Simply stated, the terms of the contract do not address the circumstance of a settlement. There was no "meeting of the minds" between Cervera and Johnson on the subject of Cervera's compensation in the event of a settlement.
The trial court, then, was acting outside its authority in "rewriting" the contract by interpreting it to fit a circumstance not provided for within the "four corners" of the contract. See Kinnon, supra; and Commercial Union Ins. Co., supra.
We hold, therefore, that the trial court erred in interpreting the contract to allow for the contingency of a settlement of the Morris Prestwood will contest. Cervera, then, is entitled to a fee which equates the reasonable value of the services he rendered Johnson in defense of the Morris Prestwood will; or, stated another way, Cervera may recover a fee determined by the usual standard of quantum meruit. The trial court's determination of Cervera's fee will be based upon independent evidence adduced at a hearing, taking into consideration that, as a result of the settlement: 1) Johnson received $25,000 less than the value of the estate, and 2) Cervera gained the assurance that an otherwise contingent event (his client's receiving all or the great majority of the estate) had become a certainty and that he no longer ran the risk of getting nothing. For a discussion of the factors to be considered in fixing an appropriate fee under these circumstances, see Peebles v. Miley, 439 So. 2d 137 (Ala.1983).
REVERSED AND REMANDED WITH INSTRUCTIONS.
SHORES, ADAMS and STEAGALL, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
I agree that the judgment should be reversed. I disagree with the conclusion that *260 the contract is clear and certain and that the parties clearly contemplated that there would be a trial. What is clear to me is that what transpired, a settlement, is not expressly provided for by the contract. In addition, I find no parol evidence that indicates that the parties had a meeting of the minds to include settlements within the contract provisions. Therefore, the judgment for the plaintiff on the contract claim must be reversed.
[1] Even more compelling is the fact that the contract in question was drafted by Cervera. Therefore, even if there were an ambiguity in the terms of the contract, it is a fundamental principle of contract law that instruments are construed against the drafting party. Colonial Baking Co. v. Pine Dale, Inc., 436 So. 2d 856 (Ala.1983). | May 29, 1987 |
ab078ed2-e3a8-49dc-a841-2b5273ec9645 | Black Belt Wood Co., Inc. v. Sessions | 514 So. 2d 1249 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1249 (1986)
BLACK BELT WOOD COMPANY, INC.
v.
Leonard Earl SESSIONS, as Administrator of the Estate of James Karl Sessions, deceased.
84-1222.
Supreme Court of Alabama.
October 3, 1986.
On Return After Remand June 30, 1987.
Rehearing Denied October 2, 1987.
*1250 Jack B. Porterfield, Jr. and William T. Mills II, Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellant.
Alex W. Newton of Hare, Wynn, Newell & Newton, and R. Gordon Pate of Pate, Lewis & Lloyd, Birmingham, for appellee.
PER CURIAM.
This action involves an accident which occurred on February 7, 1980. On that day, James Karl Sessions, a young man 19 years of age, was driving his automobile on a street in York, Alabama. A log truck traveling in the opposite direction met the car Sessions was driving. Just as the vehicles were in the process of meeting each other, a log, which weighed between 300 and 500 pounds, came off the truck and crushed the automobile which young Sessions was driving, killing him instantly. S and T Trucking Company (S & T) owned the truck and Robert T. Poole, an employee of S & T, was driving the truck. Black *1251 Belt Wood Company, Inc. (Black Belt) loaded the pulpwood trailer.
This is the second time that this case (and the issue of Black Belt's negligence in loading the truck) has been before this Court. See, Black Belt Wood Co. v. Sessions, 455 So. 2d 802 (Ala.1984). Leonard Earl Sessions, plaintiff/appellee, originally filed suit against American Can Company, Black Belt, S & T, Robert Poole, and John Tidmore, principal owner of S & T, a corporation. At the conclusion of the first trial, the court granted Tidmore's motion for directed verdict and the jury returned a verdict in favor of Black Belt, American Can Company, and Robert Poole. A verdict was returned against S & T and in favor of Sessions in the amount of $250,000.
Sessions filed a motion for judgment notwithstanding the verdict, as to American Can Company, Black Belt, and Robert Poole, or, in the alternative, for a new trial against all defendants. The trial court granted a new trial in favor of Sessions and against Robert Poole, S & T, and Black Belt, but not against American Can Company.
Black Belt appealed the trial court's order. This Court originally held that the trial court erred as a matter of law and reinstated the jury verdict in favor of Black Belt. On Sessions's application for rehearing, this Court reversed its holding and affirmed the trial court's order granting a new trial. Black Belt's application for rehearing was denied.
The case was tried a second time. Black Belt filed a motion for a directed verdict, which was denied. The jury returned a verdict against Robert Poole, S & T, and Black Belt in the amount of $3,500,000. Black Belt filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, which was denied. This appeal followed.
Black Belt presents seven issues on appeal. We will first address Black Belt's contention that the trial court erred when it failed to grant Black Belt's motion for directed verdict, or, in the alternative, its motion for judgment notwithstanding the verdict.
The law of Alabama is clear as to the standards for testing a motion for directed verdict and a motion for judgment notwithstanding the verdict (JNOV). The standard for testing a motion for directed verdict is identical to that for testing a motion for JNOV. Casey v. Jones, 410 So. 2d 5 (Ala.1981). Both motions test the sufficiency of the evidence. Wright v. Fountain, 454 So. 2d 520 (Ala.1984). These motions should be denied if there is any conflict in the evidence for the jury to resolve, and the existence of such conflict is to be determined by the scintilla rule. Hanson v. Couch, 360 So. 2d 942 (Ala.1978).
We are of the opinion that a scintilla of evidence was presented by the appellee to support his position that Black Belt negligently loaded the logs. The evidence reveals that the logs belonged to Black Belt and that Black Belt employees loaded the logs. Black Belt knew that the logs were going to be transported a distance of approximately 60 miles. There was also testimony presented that logs loaded in the same manner by Black Belt had fallen off trucks on previous occasions. After examining the pictures of the particular load in this case, Mr. Tidmore, one of the owners of S & T, testified that the logs were improperly loaded. He also testified that complaints had previously been made to Black Belt that some of its trucks had been improperly loaded.
Black Belt also argues that negligence in the loading of the logs in an improper manner could not have been the proximate cause of the accident because it was the duty of the driver to keep the logs properly secured by chains. Black Belt relies on Vines v. Plantation Motor Lodge, 336 So. 2d 1338 (Ala.1976). In Vines this Court stated:
Vines, at 1339 (emphasis added.)
In this case, Black Belt should have reasonably foreseen an injury occurring. The evidence in this case is that these big logs frequently fall off trucks and that complaints had previously been made to Black Belt that some of the trucks had been improperly loaded. Black Belt did nothing to change its practices before this accident occurred and, by the time of the trial, had made no changes in its method of operation.
We are of the opinion that the trial court did not err when it denied Black Belt's motion for a directed verdict, or, in the alternative, JNOV.
Black Belt's second contention on appeal is that the trial court erred when it failed to grant its motion for a new trial. Black Belt argues that the great preponderance of the evidence was that the loading was proper.
The decision of whether to grant or deny a motion for a new trial rests within the sound discretion of the trial court. Hill v. Cherry, 379 So. 2d 590 (Ala.1980). A denial of a motion for new trial strengthens the presumption of correctness afforded a jury verdict, Osborne v. Cobb, 410 So. 2d 396 (Ala.1982), and the decision of the trial court will not be disturbed unless the verdict is against the preponderance of the evidence, or is clearly wrong or unjust. Shiloh Construction Co. v. Mercury Construction Corp., 392 So. 2d 809 (Ala.1980).
This Court stated in its original opinion in this case:
After re-examining the record, and from the evidence set forth above, we conlcude that the evidence supports the verdict in favor of Sessions and against Black Belt.
Black Belt's third contention to this Court is that the trial judge erred in his instructions to the jury. Black Belt argues that Code 1975, § 32-5-76(a), was inapplicable and that the reading of it was inappropriate and constituted reversible error.
The trial court, in its instructions, stated:
Code 1975, § 32-5-76, states:
Black Belt argues that § 32-5-76(a) applies only to vehicles and to the owner and/or operator of a vehicle, and that Black Belt was neither. Black Belt also asserts that it did not "cause" the truck "to be operated."
The trial court properly instructed the jury on the applicability of § 32-5-76(b) to Black Belt. This case was tried on the theory of Black Belt's negligence in loading the logs with knowledge that the truck had to travel a distance of sixty miles over rough roads. The trial court correctly set forth the substantive law applicable to Black Belt, and the trial court's charge to the jury regarding this section does not appear to be prejudicial. See, Rannells v. Graham, 439 So. 2d 12 (Ala.1983).
The fourth issue presented is whether the trial court erred when it refused to instruct the jury from the Alabama Pattern Jury Instructions, (A.P.J.I.) namely: 3.16, 3.17, and 1.12. Black Belt contends that the trial court erred when it failed to instruct the jury as to independent contractors. Black Belt also argues that the failure to give the pattern jury instructions misled the jury as to the responsibility of the various defendants with regard to the transportation of the pulpwood.
A.P.J.I. 3.16 and 3.17 deal with the definition and rule regarding the liability of independent contractors. There was no contention in the trial of this case that Black Belt was an independent contractor of S & T or that S & T was an independent contractor of Black Belt. At the first trial, this contention was made, but it was abandoned and never referred to or made an issue in the second trial. The failure of a trial court to give an abstract charge, one hypothesized on facts which had no support in the evidence, does not constitute reversible error. Coulter v. Holder, 287 Ala. 642, 254 So. 2d 420 (1971). Furthermore, the trial court made it clear in its instructions that the jury could find either against Black Belt because of its negligence in the loading of the logs and securing them on the truck or, against S & T for its negligence alone in operating the truck, or against both of them.
Black Belt requested that the trial court give A.P.J.I. 1.12 which involves sympathy. This request was also abstract and, therefore, correctly denied. The trial court covered 1.12 when it instructed the jurors that they were to use their good sound judgment in making a determination, after considering the credibility of the witnesses, the enormity of the wrong, and the necessity for preventing similar wrongs. In addition, both attorneys, in their closing arguments, argued to the jury that sympathy should not play a part in their deliberations. We are of the opinion that the trial court did not err when it refused to give A.P.J.I. 3.16, 3.17 and 1.12.
The fifth issue presented by Black Belt is whether the trial court erred when it refused to grant a mistrial or a new trial when counsel for Sessions requested the jurors to place themselves in the place of the litigants and further commented on the failure of certain people to testify. Black Belt first argues that Mr. Newton (Sessions's counsel), in his closing argument, asked the jury to place themselves in the position of a party to the action. That *1254 portion of the argument to which Black Belt objected is set forth below:
Black Belt also contends that plaintiff's counsel made improper arguments about Black Belt's failure to call certain witnesses to testify. Newton stated in his closing argument:
An appeal to the jury to stand in the shoes of the litigant is considered improper. The courts, however, have not been overly restrictive in their application of this rule. Fountain v. Phillips, 439 So. 2d 59 (Ala. 1983). In a case where an objection to improper argument is made and sustained, with the trial court instructing the jury that the argument was not correct, the test on appeal is "whether the argument was so harmful and prejudicial that its influence was not or could not be eradicated by the action of the court." Estis Trucking Co. v. Hammond, 387 So. 2d 768 (Ala.1980). We have stated that this Court should not encroach on the trial court's discretion in these cases. "Much must be left in such matters to the enlightened judgment of the trial court, with presumptions in favor of the ruling." British General Insurance Co. v. Simpson Sales Co., 265 Ala. 683, 93 So. 2d 763 (1957).
We have carefully considered the record of the argument, the evidence, and the actions taken by the court. After considering these factors, we are of the opinion that the argument was not so harmful and prejudicial that its influence was not or could not be eradicated by the action of the trial court.
The general rule, as to the availability of witnesses, is that a party cannot comment in argument upon the failure of his opponent to call a particular witness if the witness is equally accessible to both parties. Donaldson v. Buck, 333 So. 2d 786 (Ala.1976). This is not an automatic rule; cases exist where a potential witness favors one party over another and the witness is not "equally accessible." Harrison v. Woodley Square Apartments, 421 So. 2d 101 (Ala.1982).
Mr. Newton, in his closing argument, referred only to the failure of Johnny Allen to testify. Allen was the manager of the wood yard at the time of the accident and his father owned Black Belt. Plaintiff presented evidence at trial regarding complaints made to Allen concerning improper loading, and the comment on Black Belt's failure to refute this evidence, we believe, was not improper. Because Allen's father owned Black Belt, it is not unreasonable to believe that Allen, if called *1255 as a witness, would have testified favorably for Black Belt. Under these circumstances, we cannot find that Johnny Allen was "equally accessible" to both parties, as that principle normally applies. We do not find that the trial court abused its discretion in overruling the objection.
The sixth issue raised on appeal is whether the trial court erred in failing to grant Black Belt's challenge for cause with regard to juror Melton.
During the voir dire examination of the panel of potential jurors, the following questions and answers arose with regard to juror Melton.
"* * *
"MS. MELTON: Yes.
"* * *
Black Belt's attorney later returned to juror Melton and asked these questions:
The test for determining whether a juror should be disqualified for bias or prejudice was set forth by the Court in Village Toyota Co. v. Stewart, 433 So. 2d 1150, 1156 (Ala.1983), quoting from Alabama Power Co. v. Henderson, 342 So. 2d 323, 327 (Ala. 1976), as follows:
The trial court is vested with broad discretion in determining whether to sustain challenges for cause, and the trial court's decision will not be interfered with unless *1256 clearly erroneous. Brown v. Woolverton, 219 Ala. 112, 121 So. 404 (1928).
In this case, the record reveals that juror Melton never said that she could not be fair. She, at one time, stated that she would rather not serve, but in answer to the direct question as to whether she would be prejudiced, she simply said that she felt she was too "emotional." The trial judge, after conferring with the lawyers, and being in a position to observe the demeanor of juror Melton, the manner in which she answered the questions, and her appearance, overruled the challenge for cause and stated: "I think that all Mrs. Melton said was that she didn't want to sit on this case." After reviewing the record, we cannot say that the trial court abused its discretion in disallowing the challenge of Mrs. Melton for cause.
Seventh, and finally, Black Belt contends that the $3.5 million damage award was excessive. Black Belt, in its motion for a new trial, argued that the verdict was excessive and a result of bias and passion. Here, Black Belt argues that the $3.5 million verdict is excessive, particularly in light of the fact that the first jury found in favor of Black Belt and returned a verdict of only $250,000 against S & T.
We do not at this time decide this issue, but we remand the cause to the trial court to review its judgment in accordance with the guidelines set out in our recent decisions in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986); Harmon v. Motors Insurance Corp., 493 So. 2d 1370 (Ala. 1986); and Alabama Farm Bureau Mutual Cas. Ins. Co. v. Griffin, 493 So. 2d 1379 (Ala.1986) (on rehearing). The trial court, in its discretion, may or may not order a further hearing to reconsider the claim that the verdict is excessive. In any event, the trial court is directed to report its findings and conclusions within 28 days of this opinion.
We remand this case to the trial court for further consideration consistent with this opinion.
AFFIRMED, IN PART; AND REMANDED, WITH DIRECTIONS.
TORBERT, C.J., and JONES, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
MADDOX, J., concurs specially.
BEATTY and HOUSTON, JJ., not sitting.
MADDOX, Justice (concurring specially).
On the first appeal of this case, I was of the opinion that the trial court improperly ordered a new trial in the case as to Black Belt, and I authored the opinion which so held. On application for rehearing, however, the Court issued a new opinion, in which a majority of this Court held that the original opinion was in error, and opined as follows:
I dissented from that on-rehearing opinion, stating that "I would deny rehearing because I am of the opinion that the law is correctly stated in the majority opinion as originally written." Joining me in my dissent were Justices Faulkner and Beatty. Nevertheless, plaintiff was given the right, at that time, by a majority of this Court, to try the case again before another jury. Because that judgment was final, and plaintiff obtained the right to try the case again, I am of the opinion that the plaintiff legally obtained the right to obtain a judgment against Black Belt in another proceeding. Consequently, it is my opinion that plaintiff, having obtained a right to a *1257 new trial, is entitled to a review of the new trial without regard to my dissenting views on the first appeal, and that the judgment in this new trial must be based upon the principles of law as they exist today.
PER CURIAM.
On original deliverance, this Court affirmed the judgment of the trial court, but remanded the cause to the trial court with directions to review its judgment in accordance with guidelines set out in our decisions in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986); Harmon v. Motors Insurance Corp., 493 So. 2d 1370 (Ala. 1986); and Alabama Farm Bureau Mutual Cas. Ins. Co. v. Griffin, 493 So. 2d 1379 (Ala.1986), and to determine whether, in its opinion, the judgment in the amount of $3.5 million should be reduced.
On remand, the trial court conducted a hearing, and entered the following order, which we quote in its entirety:
"The Supreme Court of Alabama on October 3, 1986, remanded this case to the trial court for further consideration consistent with their opinion.
"The order of remand is as follows:
`"Seventh, and finally, Black Belt contends that the $3.5 million damage award was excessive. Black Belt, in its motion for a new trial, argued that the verdict was excessive and a result of bias and passion. Here, Black Belt argues that the $3.5 million verdict is excessive, particularly in light of the fact that the first jury found in favor of Black Belt and returned a verdict of only $250,000 against S & T.
"`We do not at this time decide this issue, but we remand the cause to the trial court to review its judgment in accordance with the guidelines set out in our recent decisions in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986); Harmon v. Motors Insurance Corp., 493 So. 2d 1370 (Ala. 1986); and Alabama Farm Bureau Mutual Cas. Ins. Co. v. Griffin, 493 So. 2d 1379 (Ala.1986) (on rehearing). The trial court, in its discretion, may or may not order a further hearing to reconsider the claim that the verdict is excessive. In any event, the trial court is directed to report its findings and conclusions within 28 days of this opinion.'
"Pursuant to the order of remand the trial court, ex mero motu, held a hearing on October 14, 1986, at which time the attorneys for the plaintiff and the defendant, Black Belt Wood Company, Inc., were present in court. The defendant, Black Belt, on October 14, 1986, filed with the clerk of this court, a brief in support of remittitur or new trial and was argued at the remand hearing. In addition, the parties have submitted to the trial court portions of their respective briefs submitted to the Supreme Court on the damages issue and statement of the facts. The appellant's brief on the damages issue is designated VI and covers Pages 50-54 inclusive. The appellee's brief covers this point under Section VI, Pages 43-47 inclusive. The reply brief of the appellant covers this point in Section VI on Page 22. After listening to arguments of counsel and citations of authority, the matter was submitted and taken under advisement by the court.
"The order of remand quoted above, directs the trial court to reconsider the question of excessiveness particularly in light of the fact that the first jury found in favor of Black Belt and returned a verdict of only $250,000 against S & T. I would like to point out to the Supreme Court and make crystal clear in the record that the undersigned did not try the case originally. The first appeal in this case is Black Belt Wood Co. v. Sessions, 455 So. 2d 802, and the Honorable N. Daniel Rogers, Jr. was the trial judge. Also, the parties and trial attorneys were not the same as on the second trial on this case.
"Additionally, in its order of remand, the Supreme Court directed this court to review its judgment in accordance with the guidelines set out in the recent decisions of Hammond, [supra], and Alabama Farm Bureau Mutual Cas. Ins. Co. (on rehearing) [supra].
"The court has considered the above cited cases with respect to the guidelines set *1258 out therein. However, this court finds that none of the above cited cases are death cases but rather are cases wherein both compensatory and punitive damages were sought to be recovered. A comparison between the compensatory damages against the punitive damages award would be one method to determine whether the damages are excessive or not. This method is not available in a death action.
"The plaintiff brought this action under Section 6-5-410, Code of Alabama 1975. Subdivision (a) of this section reads as follows:
"`A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the state of Alabama, and not elsewhere, for the wrongful act, omission or negligence of any person, persons or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission or negligence if it had not caused death.' (Emphasis supplied.)
"A reading of the cases interpreting this code section reveals that the paramount purpose of wrongful death statutes is the preservation of human life. Wrongful death acts are intended to protect human life, to prevent homicide and to impose civil punishment on takers of human life. Only punitive damages are recoverable under the act.
"Black Belt in its brief to the Supreme Court, on motion for new trial and the brief on remand has argued that the $3.5 million verdict is excessive. Particularly in light of the fact that a prior jury had returned a verdict in favor of Black Belt and that the prior jury had returned a verdict of only $250,000 against S & T. The conclusion reached by Black Belt is that the verdict of $3.5 million is the result of bias, passion, prejudice, corruption or other improper motive or cause simply because of the sheer size of the verdict.
"The trial court has reviewed its charge to the jury on the issue of damages. This court finds that it correctly instructed the jury on the damages issue. The jury was instructed that damages provided for in a death action are punitive only. That the damages are imposed by way of punishment to the wrongdoer to deter the wrongdoer and others from similar wrongdoing in the future. That the damages in this type of action are entirely punitive, imposed for the preservation of human life and as deterrent to others to prevent similar wrongs. In addition, the jury was instructed that if they found in favor of the plaintiff and against any or all the defendants in assessing the damages, they should take into consideration and give due regard to the enormity of the wrong and the necessity of preventing similar wrongs in the future. Thus, the purpose of the damages award is not only punitive but also deterrent. Therefore, not only must the degree of appellant's culpability be gauged but also the necessity of preventing similar occurrences in the future.
"Black Belt, in oral argument and written brief, points out the fact that the case was submitted to the jury on the negligence theory only. This court finds that it did not `charge out' the wanton misconduct claim of the plaintiff but rather the plaintiff waived or withdrew this claim due to the fact that the defendants did not plead contributory negligence as a defense.
"The court submitted to the jury the issue as to whether or not the defendants' negligence combined and concurred to cause the death of the plaintiff's decedent. The jury found in favor of the plaintiff and against all defendants. This being true, we now come to an issue which the parties have not addressed but which the court finds is helpful in resolving the damages issue. That is, the combined culpability of all defendants considered in determining whether the jury award is excessive.
"The Supreme Court of Alabama in the case of Bell v. Riley Bus Lines, 257 Ala. 120, 57 So. 2d 612 [1952], held that in a death action against multiple defendants, the Homicide Act does not authorize the jury to apportion damages against tort-feasors nor does it recognize degrees of culpability, *1259 but simply entitles plaintiff to recover such damages as the jury may assess. In a tort action, a single verdict is required fixing a lump sum regardless of culpability of tortfeasors. Also, the Supreme Court in the case of Robbins v. Forsburg, 288 Ala. 108, 257 So. 2d 353 [1972], restated this well settled rule. In Robbins, the Supreme Court reversed the trial court for giving an instruction which charged that the jury could not return a verdict `against more than one defendant unless you are reasonably satisfied from the evidence that each is equally deserving of punishment.' The Supreme Court held that this charge was erroneous and prejudicial to the plaintiff. In Robbins, the appellees urged the Supreme Court to find that if a plaintiff elects to sue the defendants jointly in a death case, that the amount of the verdict must be measured by the guilt of the more innocent of them. (Emphasis supplied.) This seems to be the position of Black Belt in this case. Our cases are clear to the conclusion that Alabama does not allow apportionment. Again from Robbins as follows:
"`Alabama seems to follow a different rulerequiring a single verdict, fixing a lump sum regardless of the culpability of the tort feasorseven in actions where the damages recoverable are punitive.'
"Taking into consideration the foregoing, the court finds that the jury was authorized to consider the combined and concurring culpability of all the defendants and not simply the culpability of the defendant Black Belt. The court finds that in a case where there are multiple defendants and the jury finds all of them guilty of negligence which combined and concurred to injure the plaintiff, the entire jury award may be visited on the most innocent of them.
"The court finds, after a review of the entire trial, that the sole issue presented on remand is whether or not a jury verdict in the amount of $3.5 million is in and of itself evidence of bias, passion, prejudice, corruption, or other improper motive or cause. The court cannot call to mind nor have the attorneys for Black Belt pointed out to the court any factor that would be construed to indicate bias, passion, prejudice, corruption, or other improper motive or cause on the part of the jury other than the size of the verdict. This court feels compelled to comment that although Judge Rogers tried the first jury case, this court is being called upon to express an opinion as to why the first jury found in favor of Black Belt and returned a verdict of only $250,000 against S & T. I have no explanation nor do I feel that I am in a position to express one having no knowledge of the first trial whatsoever. Assume for the sake of discussion that the first jury had returned a verdict of $3.5 million and that the second jury returned a verdict of $250,000. What should be the position of the trial court in this event? Is the first trial to be a `cap' on the damages issue or not?
"This court also finds that the remand order stated in a different way calls upon the undersigned to explain why it did not order a remittitur of the $3.5 million verdict as being excessive. This calls upon the undersigned to express a negative. This puts the trial court in the position of having to justify the verdict of the jury in the event that a remittitur is not ordered. A trial court would be in a more favorable position to recite factors justifying a remittitur rather than factors why it did not order a remittitur.
"1. Alabama law is that a remittitur or a new trial should not be ordered on the grounds of excessiveness of the jury's verdict except where the court can clearly see that the verdict is tainted by bias, passion, prejudice, corruption, or other improper motive or cause on the part of the jury.
"2. There was absolutely no testimony nor inference therefrom that the plaintiff's decedent was guilty of any contributory negligence.
"3. The court finds that the jury considered the combined culpability of all defendants in assessing damages.
"4. The trial court has not been able to determine any factor which could be considered as bias, passion, prejudice, corruption, *1260 or other improper motive or cause by the jury. The trial court closely observed the jury, the parties involved, the attorneys involved in the case and the court is satisfied and convinced that the verdict was not tainted.
"5. This court finds that to express to the appellate court why the jury returned a verdict of $3.5 million in this case would require the trial court to read the minds of the jury. This the trial court cannot do nor would it attempt to do. To do so, would require the trial court to invade the province of the jury.
"The trial court finds that the $3.5 million verdict is not excessive and is not the result of bias, passion, prejudice, corruption, or other improper motive or cause.
"The trial court is frank to say that had it tried this case without a jury, it would have awarded a lesser sum of damages than that reached by the jury. However, the trial court cannot substitute its opinion for that of the jury.
"DONE and ORDERED this the 21st day of October, 1986.
After this Court received the trial court's order on remand, we entered a new order requesting briefs on the question of "whether or not the trial court should be authorized to consider the culpability of each individual defendant in a wrongful death action where punitive damages only are recoverable," and we also requested briefs on the issue of the excessiveness of the damages. The parties have filed briefs in support of their respective positions regarding the issues presented, and we now proceed to consider their arguments and address the legal issues involved.
One basic question is presented on this review:
Should this Court change its longstanding rule that there can be no apportionment of damages among joint tortfeasors, especially in death cases where this Court has concluded that only punitive damages are recoverable?
Based upon a review of the history of § 6-5-410 and a review of cases from other jurisdictions, we could change the rule regarding apportionment of punitive damages in wrongful death cases and adopt the majority rule, but we decline to do so.
The initial codification of § 6-5-410 can be traced to Code 1852, §§ 1940, 1941. These sections provided as follows:
As can easily be seen, the first act provided for only compensatory damages, and placed a "cap" on the amount of damages that could be awarded.
In February 1860, the legislature amended this act. Pamphlet Acts 1859-60, p. 42. The pertinent language as far as damages were concerned became "such sum as the jury deem just." There are no legislative reports that indicate the purpose of the change, and, consequently, we do not know what debate, if any, was involved in this change. There is no express mention made whether the damages were compensatory or punitive and, arguably, the statute could be construed to mean that the legislature merely removed the limitation on damages contained in the original act.
The language with regard to damages remained the same for several years; however, *1261 there was an error in the Code of 1867. The code commissioners apparently overlooked the act of 1860, but by 1876, the error had been corrected. See, Savannah & Memphis R.R. v. Shearer, 58 Ala. 672 (1877). In 1876, the law provided:
Code 1876, § 2641. (Emphasis added.)
In 1887, the language of the wrongful death statute was changed again slightly. See, Louisville & N.R.R. v. Lansford, 102 F. 62 (5th Cir.1900). Code 1887, § 2589 provided that the plaintiff may "recover such damages as the jury may assess." (Emphasis added.) This language relating to the nature and amount of the damages recoverable has remained to the present. See, Code 1896, § 27; Code 1923, § 5696; Code 1940, Title 7, § 123; and Code 1975, § 6-5-410.
The two earliest cases in Alabama construing the pertinent language of the wrongful death statute address the "damages" question, and hold that, while the damages are, in effect, compensatory, nevertheless, because the purpose of the statute was to prevent homicides, the damages were "punitive."
In Savannah & Memphis R.R. v. Shearer, 58 Ala. 672, 680 (1877), this Court discussed damages as follows:
During the same term of court, however, this Court, in South & North Alabama R.R. v. Sullivan, 59 Ala. 272 (1877), indicated that damages were not entirely punitive:
59 Ala. at 278-79.
Over the years, through judicial interpretation, those damages deemed "just" or "to be assessed" evolved to encompass only "punitive damages." In fact, recent cases have failed to recognize any early conflict on the nature of the damages, and have emphasized the punitive nature of the statute. In Young v. Bryan, 445 So. 2d 234, at 238 (Ala.1984), this Court stated that "it is axiomatic that the only damages recoverable under Alabama's Wrongful Death Statute, § 6-5-410, Code 1975, are *1262 punitive in nature. [Citations omitted]." See also, Geohagan v. General Motors Corp., 291 Ala. 167, 279 So. 2d 436 (1973); Blount Brothers Const. Co. v. Rose, 274 Ala. 429, 149 So. 2d 821 (1962); and Alabama Great Southern R.R. v. Burgess, 116 Ala. 509, 22 So. 913 (1897).
The fact that punitive damages evolved judicially was recognized in Richmond & Danville R.R. v. Freeman, 97 Ala. 289, 11 So. 800 (1892):
97 Ala. at 296-97, 11 So. at 802. This conclusion was also recognized by those who annotated our early codes.
See, Code 1923, § 5696, note, p. 20. There is little question that the interpretation of the wrongful death statute as involving only punitive damages is a judicial one, since none of the statutory provisions ever classified the damages as "punitive."
The first Alabama case that deals with the apportionment issue is Bell v. Riley Bus Lines, 257 Ala. 120, 57 So. 2d 612 (1952). In Bell this Court held as follows:
257 Ala. at 123, 57 So. 2d at 615.
Because there was no statutorily expressed prohibition of apportionment, the Bell Court could have determined that apportionment of punitive damages in a wrongful death case was fair, constitutional, and in keeping with the punitive purpose of § 6-5-410, and could have gone with the majority rule in this country. It did not.
A review of the cases cited by the Bell Court as authority for its decision indicates that the Court relied mainly on the rationale supporting joint and several liability in compensatory damages case, but the decision reads as follows:
257 Ala. at 124, 57 So. 2d at 615.
We recognize that in other jurisdictions apportionment is a preferred practice where punitive damages are involved. See, Note, The Apportionment of Punitive Damages Among Joint Tortfeasors, 25 Ariz.L.Rev. 579 (1983), and Note, Apportionment of Punitive Damages, 38 Va.L. Rev. 71 (1983). We also recognize that Alabama is the only state in which a wrongful death statute has been judicially interpreted to authorize the recovery of only punitive damages. See, Comment, Alabama's Wrongful Death Statute, 4 Ala.L.Rev. 75 (1951).
The purpose of Alabama's wrongful death statute, of course, has been twofold: (1) punishment based on the quality of the wrong, and (2) punishment based upon the wrong or degree of culpability. See, Deaton v. Burroughs, 456 So. 2d 771 (Ala.1984); Estes Health Care Centers v. Bannerman, 411 So. 2d 109 (Ala.1982); and Airheart v. Green, 267 Ala. 689, 104 So. 2d 687 (1958). Most other states also hold that the purposes of wrongful death actions are to punish and deter. See, 38 Va.L.Rev. at 72, supra. Unlike Alabama, however, most jurisdictions, of course, *1263 have departed from the compensation-based emphasis of joint and several liability and gone to the more punishment-oriented approach of apportionment. 25 Ariz.L.Rev. at 579. These states have recognized that, although joint and several liability preserves the plaintiff's right to collect the full amount of punitive damages, it does so at the expense of the defendant's right to fair punishment. 25 Ariz.L.Rev. at 584. Most courts hold that to allow joint and several liability, where punitive damages are imposed, makes it impossible for the punishment to fit the offense and the offender when culpability differs. 25 Ariz.L. Rev. at 586. Of course, apportionment does result in a judgment's being rendered against each defendant individually, 38 Va. L.Rev. at 71, and splits up damages in proportion to the separate culpability of each defendant, and, as a result, penalties conform more closely to the culpability of the offender, 25 Ariz.L.Rev. at 586, but Alabama has not followed that rule.
The judicial interpretation placed upon our wrongful death statute has been the same for many, many years, and, as this Court stated in Richmond & Danville R.R., supra, the legislature of this state has met many times since that construction was placed upon the statute, and several different Codes have been adopted, yet the interpretation which this Court placed on the statute has remained the same.
The history of the wrongful death statute indicates that the legislature is aware of the interpretation placed on the statute by this Court, and it has not amended it. Even though this Court has the power to abrogate the longstanding judicial interpretation of the wrongful death statute,[1] it should, as a matter of public policy, leave any change of that interpretation to the legislature.[2] In Golden v. McCurry, 392 So. 2d 815 (Ala.1981), this Court was asked to abolish the common law rule of contributory negligence and replace it with the rule of comparative negligence. There, this Court quoted from an Illinois case, and stated as follows:
"`After full consideration we think, however, that such a far-reaching change, if desirable, should be made by the legislature rather than by the court. The General Assembly is the department of government to which the constitution has entrusted the power of changing the laws.
"`Where it is clear that the court has made a mistake it will not decline to correct it, even though the rule may have been re-asserted and acquiesced in for a long number of years. No person has a vested right in any rule of law entitling him to insist that it shall remain unchanged for his benefit. But when a rule of law has once been *1264 settled, contravening no statute or constitutional principle, such rule ought to be followed unless it can be shown that serious detriment is thereby likely to arise prejudicial to public interests....'
"Maki v. Frelk, 40 Ill. 2d 193, 239 N.E.2d 445 (1968)."
We are of the opinion that the rule stated there is applicable here.
The second issue for our determination is whether the $3.5 million damages award is excessive. We are aware that in General Motors Corp. v. Edwards, 482 So. 2d 1176 (Ala.1985), a majority of this Court affirmed a judgment in a wrongful death case in which a remittitur had been ordered. In that case, this Court approved a judgment for the sum of $1.4 million each for the wrongful deaths of two children. In Alabama Power Co. v. Cantrell, 507 So. 2d 1295 (Ala.1986), on return after remand [Ms. May 22, 1987] (Ala.1987), this Court upheld a jury verdict in a wrongful death case in the sum of $1 million, but we cannot say that the trial court erred in refusing to order a remittitur. In each case we affirmed the judgment of the trial court in a wrongful death case.
Applying the principles of law this Court adopted in Hammond, the trial judge held a hearing, and in a well-prepared order set out the reasons why he felt that the law did not authorize him to order a remittitur.
The trial court specifically found that it "ha[d] not been able to determine any factor which could be considered as bias, passion, prejudice, corruption, or other improper motive or cause by the jury." While we would not be bound by this finding in exercising our review of the excessiveness claim pursuant to Code 1975, § 12-22-71, especially if the facts in the record were to the contrary or if the finding was not supported by the record, we believe, in view of the fact that the case was remanded in the first instance for the trial court to make such a determination, that we should accord weight to these findings.
To find a common thread running through this Court's decisions regarding remittiturs is difficult. See Commentary, J. Ellis, Remittitur Practice in Alabama, 34 Ala.L.Rev. 275 (1983). One thing is certain: before Hammond, decisions of this Court did not require the trial courts to state any reasons why a remittitur was granted or denied. General Motors Corp. v. Edwards, 482 So. 2d 1176 (Ala.1985). Since Hammond, this Court has remanded certain cases to trial courts, as was done in this case, to assist this Court in carrying out its responsibilities in reviewing verdicts claimed to be excessive. In Vest v. Gay, 275 Ala. 286, 154 So. 2d 297 (1963), this Court set out the rules that govern its review of an excessiveness claim:
Based on the foregoing, we are of the opinion that the judgment of the trial court, including the damages award, which the trial court initially reviewed on motion for a new trial, and which it has reviewed again pursuant to this Court's mandate, is due to be, and it hereby is, affirmed.
AFFIRMED.
SHORES, ADAMS and STEAGALL, JJ., concur.
MADDOX, J., concurs specially.
ALMON, J., concurs in the result only.
JONES, J. concurs in the result.
TORBERT, C.J., and Beatty and Houston, JJ., not sitting.
MADDOX, Justice (concurring specially).
When this cause was remanded to the trial court, I expressed, in a special concurrence, the reasons why I could no longer rely upon the views I had expressed in a dissent I filed in this case on initial appeal. See, 455 So. 2d 802 (Ala.1984).
Consequently, because a majority of this Court, on the first appeal, affirmed the trial court's judgment granting the plaintiff a new trial, and because of the fact that the trial judge, after reviewing the judgment after remand from this Court, has refused to order a remittitur, I am of the opinion that this particular judgment is due to be affirmed.
I would point out that this is a wrongful death case, and I believe a claim that a verdict is excessive in a death case must be viewed differently than in other cases where punitive damages are awarded.[1]
JONES, Justice (concurring in the result).
I concur in the result to affirm the trial court's order on remand. I can not concur with the opinion for several reasons.
First, what is stated in the opinion as the "one basic issue" (whether this Court should change the "non-apportionment of damages among joint tort-feasors" rule) is not an issue in this case. The record of trial is totally devoid of any adverse ruling of the trial court with respect to the non-apportionment-of-damages rule. Indeed, in its order on remand, the trial court states that this is "an issue which the parties have not addressed." Citing this given state of the law, the trial court reasoned that the fact, if it be a fact, that Black Belt's culpability is less than that of S & T in causing the subject death can not reduce Black Belt's liability to a sum less than the total amount of the award.
Second, I am at a loss to explain the opinion's lengthy discussion of two well-known and well-understood legal propositionsthe "punitive damages only" rule in death cases and the "non-apportionment of damages among joint tort-feasors" rule where neither of the parties to this appeal challenges either of these rules as being the present state of the law. Indeed, a substantial portion of the appellant's excellent brief on return to remand is directed to the Court's interpretation of the wrongful death statute, establishing the absolutism of the "punitive damages only" rule in wrongful death cases as a premise for its contention for apportionment of damages among joint tort-feasors.
Not only does the appellant not challenge the "punitive damages only" rule in death cases, but it implores us not to succumb to certain language from earlier *1266 cases that alludes to compensatory damages for wrongful death. See South & North Alabama R.R. Co. v. Sullivan, 59 Ala. 272 (1877). The appellant recognizes, and rightly so, that only by this Court's holding fast to the "punitive damages only" rule can the appellant make its strongest argument for apportionment of damages in the context of joint tort-feasors in a wrongful death case.
Third, I also disagree with the opinion's reason for rejecting the apportionment-of-punitive-damages rule in wrongful death cases: that the legislature has implicitly adopted the Court's interpretation of the wrongful death statute. This reasoning takes the old metaphormixing apples and orangesto a new extreme. The common law doctrine of non-contribution among joint tort-feasors, from which the non-apportionment rule evolved, pre-dates the wrongful death statute; and the combination of these doctrines has been applied to the wrongful death statute by this Court. The extreme liberty taken by this Court's interpreting the legislative language "such damages as the jury may assess" to mean "punitive damages only" should not be further stretched so as to blame the retention of the non-apportionment rule on legislative inaction.
These reasons for my disagreement with the opinion notwithstanding, I agree that the trial court's supplemental order after remand is due to be affirmed. Indeed, the trial court's order is a classic response to this Court's Hammond remand order and deserves special emphasis in at least two aspects:
First, the trial court is eminently correct in pointing out this Court's "slip of the pen" in directing the trial court to reconsider the propriety of the jury verdict "in light of the fact that the first jury found in favor of Black Belt and returned a verdict of only $250,000 against S & T." To be sure, in a gesture of kindness, the trial court omitted any reference to the obvious: that the new trial granted to the plaintiff after the first trial was based on error totally unrelated to the issue of damages in the second trial.
Second, the trial court's analysis of the "non-apportionment of damages" rule and its utilization by way of analogy is entirely appropriate in the court's evaluation of the damages issue. Between the lines one can also read the trial court's subtle rebuke of this Court's order to re-examine the denial of Black Belt's new trial motion when, as a practical matter, the only legal avenue of relief has long been foreclosed by the juxtaposition of two conflicting common law rules: 1) the rule that the amount of damages is to be measured by the degree of the defendant's culpability; and 2) the "non-apportionment of damages" rule, which authorizes the jury to fix punitive damages against each of the defendants according to the combined culpability of the several joint tort-feasor defendants.
Apparently, I misunderstood what this Court had in mind when we invited the parties to file supplemental briefs and address the "non-apportionment of damages" rule. I interpreted this as a signal that we were prepared to rethink the obvious incongruity of the "punishment according to the enormity of the wrong" rule and the "non-apportionment of damages" rule, with the view of either affording the appellant an opportunity to raise this issue below or, at least, affording this Court an opportunity to address the issue abstractly and announce a more sensible rule for prospective application.
The avowed purpose of the Hammond remand procedure was to afford a more refined process for the review of the excessiveness-of-the-award issue. The "non-apportionment of damages among joint tort-feasors" rule, particularly as it applies to punitive damages, stands in sharp contrast to the spirit of Hammond.
Because, on remand, we invited the parties to address the non-apportionment rule (albeit mistakenly), I now express my views on this issue. Initially, I emphasize that what I propose is a radical change in the law, and that I would have used this case as a vehicle to formulate a new rule for prospective application where punitive damages are awarded against joint tort-feasors.
*1267 The following hypothetical set of facts dramatizes the need for change (tort reform, if you please): Suppose the jury, during it deliberations, had returned to the jury box and asked the trial judge this question: "Your Honor, we have now found that the negligent conduct of each of these defendants combined and concurred to cause the plaintiff's intestate's death. We have also found that S & T was guilty of 80 per cent of the total fault and Black Belt was guilty of 20 per cent. If we understand your instructions correctly, we are supposed to return a single verdict reflecting the total amount of the award against both defendants. Our question is, how can we follow this instruction and at the same time carry out your other instructions to measure the amount of damages by the degree of wrong resulting in Mr. Sessions's death? In other words, we have already arrived at the total amount we find to be appropriate for the combined fault of these two defendants. If we give effect to your "enormity of the wrong" instruction, we would return two verdicts, and the total award would be broken down so that 80 per cent would go against S & T and 20 per cent against Black Belt. Can we do this?" There is no dispute that under the present state of the law the trial court must reply, "No, you can not. You will abide by my original instruction to return a single verdict against both defendants for one lump sum as damages to be assessed against the defendants."
The threshold test of validity of any law ought to be two-fold: 1) It ought to make sense; and 2) it ought to be honest. Until the hypothetical question "Can we do this?" can be answered in the affirmative, we perpetuate a fiction that meets neither prong of the test.
I propose the following rule: If the jury finds that two or more defendants are jointly liable for punitive damages, and that the defendants are guilty of culpable conduct in unequal degrees, then it should apportion the damages among the separate and several defendants in accordance with each defendant's degree of culpability.
PER CURIAM.
APPLICATION OVERRULED.
MADDOX, JONES, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
TORBERT, C.J., and BEATTY and HOUSTON, JJ., not sitting.
JONES, Justice (concurring specially).
Upon consideration of the application for rehearing, I have modified my "concurring in the result" opinion issued on June 30, 1987.
[1] This Court recognizes the necessity and right it possesses to make the law just and to make it conform to public policy. See, Lloyd v. Service Corp. of Alabama, 453 So. 2d 735 (Ala.1984); Jackson v. City of Florence, 294 Ala. 592, 320 So. 2d 68 (1975). In Lloyd, this Court changed longstanding law with regard to exculpatory clauses. The Court noted:
"[I]t is clearly within the power of the judiciary, and, at times, appropriate for the judiciary, to change an established rule of law."
453 So. 2d at 740. The Court noted further:
"[W]here a judicial creation has become outmoded or unjust in application, it is more often appropriate for the judicial body to act to modify the law. Further, it is not uncommon for the Legislature to defer to the court's wisdom regarding such a rule of law. See, Jackson v. City of Florence, 294 Ala. 592, 320 So. 2d 68, 73 (1975); Haney v. City of Lexington, 386 S.W.2d 738, 741 (Ky.1964); Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618, 626 (1962). McAndrew v. Mularchuk, 33 N.J. 172, 193, 162 A.2d 820, 832 (1960)."
453 So. 2d at 740. Continuing, the Court stated:
"[W]hen it has determined that a judicially created law is unjust in its application, this court cannot long permit itself to be used as an instrument of inequity by refusing to act to change the law."
453 So. 2d at 740.
In Jackson, supra, this Court changed the longstanding law providing municipal corporations immunity from liability for the wrongful acts of their agents acting within the line and scope of their employment.
[2] We judicially know that the legislature is currently in session and that it may address some of the questions raised in this appeal.
[1] The legislature just recently made a distinction between wrongful death actions and other civil actions in which punitive damages are recoverable. See Act 87-185, Ala.Acts 1987. In that Act, wrongful death actions are not affected by its provisions. | June 30, 1987 |
1496e097-0e1b-4ee3-93ae-6468234725f3 | Hickenbottom v. Preferred Risk Mut. Ins. | 514 So. 2d 881 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 881 (1987)
Theodore HICKENBOTTOM
v.
PREFERRED RISK MUTUAL INSURANCE COMPANY, INC., et al.
85-1468.
Supreme Court of Alabama.
September 4, 1987.
Theodore Hickenbottom, pro se.
Vaughan Drinkard, Jr., of Drinkard & Sherling, Mobile, and William C. Martucci of Spencer, Fane, Britt & Browne, Kansas City, Mo., for appellee.
ADAMS, Justice.
This is an appeal from a summary judgment in favor of the defendants, Preferred Risk Mutual Insurance Company, Inc., Preferred Risk Life Insurance Company, Inc., Henry C. Capps, David McCafferty, and Jim McCafferty. The plaintiff, Theodore Hickenbottom, brought a breach of employment contract suit against the defendants. The trial court granted summary judgment on the basis that no enforceable contract of employment existed. We affirm.
On May 21, 1984, in response to a newspaper advertisement, Hickenbottom contacted Preferred Risk's Mobile office to inquire about employment as a sales agent. After the interview, Hickenbottom was offered an opportunity to become associated with the company. He signed a pre-contract statement of understanding, which is as follows:
Date: 4/6/84
Signed: Theodore Hickenbottom/s/
Witnessed: Jim McCafferty/s/
Sales Representative
During this training period, Hickenbottom felt that Preferred Risk's agents in Mobile were uncooperative. He wrote a letter to the company's corporate offices in Des Moines, Iowa. As a result of his correspondence, *882 Preferred's regional manager set forth the precise conditions of Hickenbottom's training program. On August 30, 1984, Hickenbottom signed another pre-contract statement of understanding, which was identical to the first one. Hickenbottom stated that he knew he was not hired for any definite duration. On January 24, 1985, Preferred Risk notified Hickenbottom that he would not be offered employment under an agency contract. Subsequently, he filed suit for breach of contract.
Hickenbottom argues that, notwithstanding the pre-contract statement of understanding, he received an oral promise of employment and Preferred Risk's refusal to hire him constituted a breach of that oral contract. He argues that his training was performed consistent with that promise to hire. At best, if any contract existed, it would be viewed as an employment-at-will contract.
An oral contract that contains no specifics concerning term, length, or duration is considered one of employment-at-will. Scott v. Lane, 409 So. 2d 791 (Ala. 1982). Contracts without a fixed term are terminable at the will of either party and may be terminated for any cause or for no cause. Bates v. Jim Walter Resources, Inc., 418 So. 2d 903 (Ala.1982). The pre-contract statement of understanding specifically negates any claim that Preferred Risk gave Hickenbottom an employment contract. However, even assuming that an oral contract did exist, it was one terminable at will. Therefore, Preferred Risk's decision not to hire Hickenbottom was entirely legal. As no merit exists to Hickenbottom's claims, the trial court correctly granted summary judgment in Preferred Risk's favor, and that judgment is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur. | September 4, 1987 |
f83f03b8-286e-4c00-ac97-4bd9d4bec648 | Groeschner v. County of Mobile | 512 So. 2d 70 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 70 (1987)
Joseph R. GROESCHNER
v.
COUNTY OF MOBILE, et al.
85-1185.
Supreme Court of Alabama.
May 29, 1987.
Rehearing Denied July 24, 1987.
*71 J.P. Courtney III and Joseph J. Minus, Jr., of Lyons, Pipes & Cook, Mobile, for appellant.
Mary Beth Mantiply, Mobile, for appellees.
STEAGALL, Justice.
Joseph R. Groeschner was severely and permanently injured in an automobile accident on the Dauphin Island Bridge in Mobile County on March 22, 1985. On October 16, 1985, Groeschner filed a verified statement of claim with the Mobile County Commission, seeking compensation from the county for injuries he sustained in the accident. In the statement of claim, Groeschner contended that the accident occurred when a Mobile County sheriff's deputy, who had stopped a motorist in the southbound emergency lane on the bridge, returned his car to the road. As Groeschner approached in the northbound lane, the deputy drove his vehicle into the southbound lane of traffic. A motorist traveling in the southbound lane swerved into the northbound lane to avoid the deputy's vehicle, and collided head-on with Groeschner.
Groeschner received a response from the county's insurance adjuster on February 3, 1986, stating that the insurance company's investigation into the accident found no negligence on the part of the county and that all claims arising from the accident were denied. On February 6, 1986, Groeschner died in a fire at his residence. Later that same day, a complaint alleging negligence was filed in circuit court against the county, the sheriff's department, and the sheriff's deputy, seeking damages for the injuries Groeschner sustained in the automobile accident. The trial court granted the defendants' motion for summary judgment on June 27, 1986.
The appellant[1] contends that Groeschner's compliance with Code 1975, § 6-5-20, by presenting his claim to the county commission is sufficient to constitute a filing within the meaning of the Alabama survival statute, Code 1975, § 6-5-462, so that Groeschner's claim arising from the automobile accident survives in favor of his personal representative. The appellant, while recognizing that § 6-5-462 does not allow for survival of a tort claim in favor of the personal representative where no action had been filed by the decedent, submits that in this case Groeschner took appropriate action prior to his death to allow survival of his claim.
Groeschner's claim was presented to the county commission pursuant to Code 1975, § 6-5-20. Subsections (a) and (b) of § 6-5-20 provide:
Section 6-5-20 prevented Groeschner from filing suit against the county until his claim had been presented to and denied by the county commission. Johnson v. Macon County, 447 So. 2d 157 (Ala.1984); Jones v. *72 Lee County Commission, 394 So. 2d 928 (Ala.1981). The claim was deemed to be disallowed when the county commission failed to disallow the claim for 90 days after the claim was presented. Thus, Groeschner was free to bring suit on his claim any time after January 14, 1986, the date on which his claim was deemed disallowed. Groeschner had clearly presented his claim within the limitations period prescribed by Code 1975, § 11-12-8, which provides that "[a]ll claims against counties must be presented for allowance within 12 months after the time they accrue or become payable or the same are barred...."
Section 11-12-8, which bars claims against the county not presented within 12 months from the time they accrue, is actually a statute of nonclaim. In Rice v. Tuscaloosa County, 242 Ala. 62, 66, 4 So. 2d 497, 499 (1941), the Court discussed Code 1923, § 228, the predecessor to Code 1975, § 11-12-8, as follows: "One purpose of the statute of nonclaim and the fixing of the twelve month period within which claims against a county can lawfully be presented is to prevent and guard against excessive and embarrassing demands on the revenue of a particular year, growing out of occurrences in the too distant past." The limitations period provided by Code 1975, § 11-47-23, for claims against a municipality "has been construed to be not merely a statute of limitation but a statute of nonclaim similar to the probate nonclaim statute." Ivory v. Fitzpatrick, 445 So. 2d 262, 264 (Ala.1984). Similarly, § 11-12-8, relating to claims against a county, is a statute of nonclaim.
The statutory requirement of presenting a claim to the county commission is a condition precedent to the maintenance of a lawsuit against the county. Williams v. McMillan, 352 So. 2d 1347 (Ala. 1977). Groeschner met this condition. As we have already noted, Groeschner's claim was deemed disallowed by the county commission on January 14, 1986. Code 1975, § 6-5-20(b). However, we find no requirement in § 6-5-20 or in § 11-12-8 that Groeschner immediately file suit upon the denial of his claim by the county commission.
The situation presented by the facts in this case is peculiar. Groeschner had taken appropriate action to meet the requirement that he first present his claim to the county commission before filing suit against the county; yet the Alabama survival statute, Code 1975, § 6-5-462, appears to preclude the claim as one upon which no action has been filed because Groeschner died before the action was actually filed in court. Under the particular facts of this case, and having considered the interaction between the statutory provisions involved, we hold that Groeschner commenced an action against the county when he complied with the provisions of § 6-5-20.
Accordingly, the judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
MADDOX, JONES, SHORES and HOUSTON[*], JJ., concur.
[1] Death having been suggested of record, A.R. App.P. 43 requires revival in the name of the personal representative.
[*] Although Justice Houston did not sit at oral argument, he has listened to the tape of oral argument and has studied the record and briefs. | May 29, 1987 |
714b9d7c-2782-4e2d-a04f-300971711613 | Ex Parte Love | 513 So. 2d 24 | N/A | Alabama | Alabama Supreme Court | 513 So. 2d 24 (1987)
Ex parte Kim Ray LOVE
(Re Kim Ray Love v. State)
86-128.
Supreme Court of Alabama.
June 5, 1987.
Rehearing Denied July 24, 1987.
Thomas B. Hanes of Hanes & Cotton, Birmingham, for petitioner.
Charles A. Graddick, Atty. Gen., and Tommie Wilson, Asst. Atty. Gen., for respondent.
BEATTY, Justice.
This Court granted certiorari to determine whether the Court of Criminal Appeals *25 was correct in approving the admissibility of a blood sample taken from the petitioner while he was not under arrest. Concluding that Code of 1975, § 32-5-190 et seq., does not provide the "exclusive means for admitting blood alcohol test results," that court held that such test results were admissible as evidence "when there is probable cause to believe the motorist was driving while intoxicated and exigent circumstances are present," even though the motorist was not lawfully arrested. 513 So. 2d 19.
The facts are reported in the opinion below. That opinion relates that, while the petitioner was told by a medical technologist that he "needed" to draw some blood, no evidence of consent to that procedure was shown, nor was there any factual indication that petitioner was incapable of consenting.
The tortuous history of legal intrusions upon the body for evidence of alcohol content is traced in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). In that case, the United States Supreme Court considered the constitutionality of the withdrawal of a blood sample from an objecting patient in a hospital who had previously been placed under arrest. Rejecting claims that this practice violated the petitioner's right of due process, his privilege against self-incrimination, and his right to counsel, that Court additionally held that the taking of this blood sample was not the product of an illegal search and seizure under the Fourth and Fourteenth Amendments. We quote from pertinent portions of the discussion on that issue:
An analysis of Schmerber reveals that the Court proceeded "in the context of an arrest made by an officer without a warrant." The Court recognized the existence of probable cause "for the officer to arrest petitioner and charge him with driving an automobile while under the influence of intoxicating liquor." Yet the Court acknowledged that "the mere fact of a lawful arrest does not end our inquiry." Then it went on to find "special facts" in the nature of alcohol's diminishment in the human body which made the taking of the blood sample "an appropriate incident to petitioner's arrest." Nevertheless, the Court used cautionary language in summing up its decision: "It bears repeating, however, that we reach this judgment only on the facts of the present record," and warned that its holding "in no way indicates that it permits ... intrusions under other conditions."
In 1969, three years after the Schmerber decision was handed down, the Alabama legislature enacted the Alabama Chemical Test for Intoxication Act, 1969 Acts of Ala., Act 699, Reg. Session. Section 1(a) of that Act provides:
Section (c) deals with a refusal to submit to the test:
And, section (d) deals with the hearing afforded one whose driver's license has been suspended:
Coming, as it did, after Schmerber, and referring to the necessity for an arrest, this statute, at least inferentially, was an interpretation by the Alabama legislature of the mandate of that case. In fact, as late as 1983, when portions of the act were amended, the requirement of an arrest in the first instance, and other references to an arrest in successive provisions, were retained in the statute. Code of 1975, § 32-5-192, et seq.
According to the Court of Criminal Appeals, however, under Alabama law an arrest of the motorist is not required before extracting a sample of his blood "where there is probable cause to believe the motorist was driving while intoxicated and exigent circumstances are present." Moreover, that court concluded that "[c]ompliance with the act is not the exclusive means for admitting evidence of blood alcohol test results," citing Aycock v. Martinez, 432 So. 2d 1274 (Ala.1983); McGough v. Slaughter, 395 So. 2d 972 (Ala.1981); and Whetstone v. State, 407 So. 2d 854 (Ala. Crim.App.1981).
Having perused each of these cases, we respectfully observe that each of them dealt with the authenticity, i.e., the proper predicate to be laid, of the evidence of a blood sample for its admission into evidence. None of those cases, however, dealt with the legal authorization for taking the blood sample in the first instance.
Here, however, that issue is squarely presented by the repeated language of § 32-5-192 pertaining to an actual arrest. The question, then, becomes whether or not a lawful arrest, which presumes probable cause to arrest, is required to allow the blood sample to be later used as evidence, or whether subsequent use as evidence is permissible on a showing of only probable cause to arrest plus exigent circumstances, there being neither consent nor a valid search warrant in either case.
The Court of Criminal Appeals has cited a number of authorities in support of its decision that an actual arrest is not necessary when there is probable cause to believe the motorist was driving while intoxicated and exigent circumstances are present: State v. Heintz, 594 P.2d 385, 286 Or. 239 (1979) (existence of probable cause to arrest sanctioned taking of blood sample; *29 however, defendant was under "arrest" as defined by Oregon statute); State v. Oevering, 268 N.W.2d 68 (Minn.1978) (existence of probable cause to arrest sufficient (adopting rule of Cupp v. Murphy, infra)); Commonwealth v. Funk, 254 Pa. Super. 233, 385 A.2d 995 (1978) (probable cause to believe motorist driving while intoxicated); and United States v. Harvey, 711 F.2d 144 (9th Cir.1983) (following Cupp v. Murphy, infra) (blood sample taken from motorist incapable of refusing permitted without arrest).
And there are cases contra, e.g., Schutt v. MacDuff, 205 Misc. 43, 127 N.Y.S.2d 116 (N.Y.Sup.1954) (implied consent statute permitting blood sample at direction of police officer having reasonable grounds to suspect motorist of driving while intoxicated violated due process clause of state constitution for failure to contain provision providing for lawful arrest); accord, Holland v. Parker, 354 F. Supp. 196 (D.S.D. 1973).
We have also considered the editorial comments contained in 2 LaFave, Search and Seizure, § 5.4(b) at 517-26 (1978). It is significant that not a single case cited by the court below, in disapproving the requirement of an arrest, involved a statute requiring a "lawful arrest." To the contrary, the court below appears to adopt as the law of Alabama the rationale of Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973), which held that the existence of probable cause to arrest, along with exigent circumstances, in and of itself justified the search of a suspect and seizure of scrapings of his fingernails. That decision did not involve a statute either, but was based upon an application of Schmerber, supra; Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); and the Fourth and Fourteenth Amendments.
There is a sharp division among the jurisdictions having no statute requiring a "lawful arrest," as to whether probable cause to arrest is sufficient grounds on which to obtain a blood sample from a motorist under an implied consent law. While a discussion of the relative merits of each position would be interesting, and perhaps helpful if this Court was without its own guidelines, nevertheless, we are bound to consider the intent of our legislature in enacting statutes, and to give credence to the plain language utilized by that body. Ex parte Jones, 456 So. 2d 380 (Ala.1984). The intent of the legislature constitutes the law, insofar as the interpretation of statutes is concerned. Champion v. McLean, 266 Ala. 103, 95 So. 2d 82 (1957). And it is a fundamental principle that the legislature, in enacting a statute, is presumed to have had full knowledge and information on prior and existing law on the subject of a statute. Miller v. State, 349 So. 2d 129 (Ala.Crim.App.1977).
If the issue presented in the instant case had arisen under the federal constitution, and not under our state statute, perhaps the Cupp v. Murphy analysis, making probable cause to arrest sufficient, would be tenable. Or, in the absence of our statute's limiting language, we could justify the taking of the blood sample on the basis of a lawful arrest without a warrant, the basis of a lawful arrest with a warrant, or the basis of voluntary consent or other waiver. Cf. "Interpretation of Implied Consent Laws by the Courts," Traffic Institute, Northwestern University, at 25 (1972).
However, under the express terms of Alabama's implied consent statute, any motorist on the public highways automatically gives his implied consent to a test of his blood, among other things, only if he is lawfully arrested. The legislature did not prescribe any additional conditions which would equate implied consent, such as probable cause to arrest. Doubtless, this choice was intended to meet the legislature's concern for due process of law for the later possibility of the removal of the driver's license of the motorist.
Further, if the arrested motorist refuses to submit to the test, then, "upon the receipt of a sworn report" of the arresting officer "that he had reasonable grounds to believe the arrested person had been driving amotor vehicle ... while under the influence of intoxicating liquor" and had refused to submit to the test, the director *30 of public safety "shall ... suspend his license to dirve." And thereafter, upon such a suspension, a hearing is provided to "cover the issues of whether a law enforcement officer had reasonable grounds to believe the person had been driving a motor vehicle upon the public highways ... while under the influence of intoxicating liquor, whether the person was placed under arrest, and whether he refused to submit to the test." (Emphasis added.)
Clearly, the Alabama statute gives a procedural protection beyond that apparently mandated by federal decisions. The United States Supreme Court has indeed recognized that
Mills v. Rogers, 457 U.S. 291, 102 S. Ct. 2442, 2449, 73 L. Ed. 2d 16 (1982); accord, California v. Ramos, 463 U.S. 992, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983).
The implied consent law's repeated references to an arrest clearly manifest the legislature's balance of the interests represented: the state's interest in public safety and the individual's interest in personal liberty. In that connection, the observations of Justice Eager in Schutt v. MacDuff, supra, 127 N.Y.S.2d at 126-27, are appropriate here:
We conclude that the requirement of a lawful arrest in the Alabama "implied consent" statute grants to the motorist in question a procedural right, and that the failure to accord that right renders the blood sample illegal for the purpose of its admission as evidence against the motorist who objects to its admission.
The judgment of the Court of Criminal Appeals is reversed, and this cause is remanded to that court for an order consistent with this opinion. It is so ordered.
REVERSED AND REMANDED.
JONES, ALMON, SHORES, ADAMS and HOUSTON, JJ., concur. | June 5, 1987 |
a8805ac7-0f74-4ad6-ae85-926173be8372 | Ex Parte Dickerson | 517 So. 2d 628 | N/A | Alabama | Alabama Supreme Court | 517 So. 2d 628 (1987)
Ex parte Howard Luther DICKERSON.
(Re Howard Luther Dickerson v. State of Alabama).
86-255.
Supreme Court of Alabama.
June 12, 1987.
Rehearing Denied September 18, 1987.
*629 Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for petitioner.
Don Siegelman, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for respondent.
Prior report: Ala.Cr.App. 517 So. 2d 625 (1986).
SHORES, Justice.
The defendant, Howard Luther Dickerson, was convicted of owning, or having in his possession, or under his control, a pistol, after having been convicted of a violent crime, which violated § 13A-11-72(a), Ala. Code (1975). He was sentenced to 45 years in the state penitentiary pursuant to the Habitual Felony Offender Act. The petition for writ of certiorari was granted by this Court in order to review the issue of the failure of the State to produce an allegedly exculpatory video tape. We reverse and remand.
On February 13, 1985, Dickerson and his wife were observed by City of Anniston police officers as they arrived, by automobile, at their place of business. The prosecution attempted to establish that the defendant, after he emerged from the automobile, had constructive possession of a pistol which remained in the car. Several police officers strongly emphasized that as they approached the defendant, he looked back toward the car, made a sudden move toward the car, then stopped. One police officer stated that he looked past the open car door, saw a pistol butt sticking up from between the front seats, and placed Dickerson under arrest.
It is undisputed that the gun and the car were owned by the defendant's wife, and the only evidence linking the pistol to Dickerson was the fact that the pistol was found in the car from which he had just emerged. One fingerprint of the defendant was found on the pistol but this could have been placed on it at any time within the 12 months prior to the arrest.
At the hearing on the motion for a new trial, the defendant produced an affidavit from a witness who stated that he had observed the incident and that at the time of the arrest the car door was closed and that the defendant never moved toward the car after being approached by the police. Additionally, one police officer filmed the movements of the defendant, and the witness claims that the video tape would have depicted the defendant away from the automobile and would have shown the door to be closed, and that the defendant made no movement toward the automobile once the police officers appeared in the area. This video tape was subsequently erased or filmed over because the police officer "did not think" it was relevant or material.
There are several inconsistent statements by the police officers as to exactly what was on the film. One officer testified that the video tape showed police officers running toward the defendant and showed that the car door was open, then just the sky and the camera operator's feet. Another officer testified that the tape displayed an officer holding the defendant, then sky and rocks. Later, the same officer stated that there was nothing on the tape but sky and rocks.
*630 The prosecutor was not aware of the existence of the tape prior to the hearing on the motion for new trial, but under controlling authority, the good faith or bad faith of the prosecution is irrelevant.
The issue before us is whether the defendant was unduly prejudiced by the prosecution's failure to produce the potentially exculpatory video tape after the defendant had specifically sought production of it.
Due to the decision in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the rule applicable to this type of situation is known as the Brady rule. The Brady decision enunciated the standard to be applied in determining whether a new trial is warranted because of the prosecution's alleged suppression of exculpatory evidence. In that case the United States Supreme Court held:
In order to establish a Brady violation, the defendant must establish the following elements: 1. that the prosecution suppressed the evidence; 2. that the evidence was of a character favorable to the defense; and 3. that the evidence was material. Kennedy v. State, 472 So. 2d 1106 (Ala.1985).
There is no question that the video tape was suppressed and that it has been destroyed; therefore, the first requirement to establish a Brady violation has been satisfied.
In United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), the Supreme Court stated:
There is authority that evidence which is both favorable and unfavorable to the defendant must be disclosed under Brady, Sellers v. Estelle, 651 F.2d 1074, 1077 (5th Cir.1981), but this requirement does not include inculpatory evidence. United States v. Cochran, 697 F.2d 600, 605 (5th Cir.1983).
If the video tape had been available and had shown that the defendant was away from the car and that he never made any movements toward the car and that the car door was closed, then there would have been a reasonable probability that the result of the proceeding would have been different. Therefore, the evidence depicted by the video tape was material.
With two of the three requisite elements of a Brady violation having been established, the sole remaining issue is whether it was shown that the evidence was favorable to the defendant.
The State put much emphasis on the movements of the defendant and the fact that the car door was open. There was testimony from the police officers that the video tape showed the police officers' approach, and one officer even stated that it showed the defendant being held by a police officer. After that point, he said, the tape just showed sky and rocks. If the tape would have shown exactly what the state emphasized, why was the tape destroyed? The State's "chief business is not to achieve victory but to establish justice." Brady, supra, at n. 2.
It is not in the interest of justice to permit the prosecution, in its unfettered discretion, to determine the favorable or unfavorable nature of potentially exculpatory evidence, and then allow the prosecution to destroy the evidence, thereby forcing the defendant to establish the favorable nature of evidence that no longer exists. In the present case, since the prosecution was attempting to establish constructive possession of the pistol, the video tape would have been favorable to the defendant if it showed that the defendant was away from the car and that the car door *631 was closed. Through inconsistent statements, the police officers attempted to establish that the video tape was not favorable to the defendant because the tape depicted only a portion of the arrest scene. Additionally, the prosecution summarized that the video tape was immaterial because several officers had testified as to the same evidence that would have been depicted by the video tape.
The fact remains that the police officers intentionally destroyed the video tape after making their own determination as to its favorable or unfavorable nature. This act substantially impaired the defendant's ability to establish the favorable nature of the evidence and violated the defendant's right to due process.
We hold that the defendant's right to due process has been violated, due to the unilateral destruction of the video tape by the police.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON,[*] BEATTY and ADAMS,[*] JJ., concur.
[*] Although Justices Almon and Adams did not sit at oral argument, they have studied the record and briefs and have listened to the tape of oral argument. | June 12, 1987 |
1e4058a7-45b3-49fb-a377-36766d0df34d | Edwards v. Hammond | 510 So. 2d 234 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 234 (1987)
Emma Bell EDWARDS
v.
Warren L. HAMMOND, Jr., guardian ad litem for Edith P. Whigham.
86-57.
Supreme Court of Alabama.
June 26, 1987.
*235 Mavanee R. Bear and Lee L. Hale, Mobile, for appellant.
David F. Daniel of Brown, Hudgens, Richardson, Mobile, for appellee.
SHORES, Justice.
Plaintiff Emma Bell Edwards appeals from a judgment entered on a directed verdict entered in favor of the defendant, Warren L. Hammond, as guardian ad litem for Edith P. Whigham. We affirm.
Emma Bell Edwards sustained injuries to her hand when she slipped and fell on a small rug placed on a hardwood floor in the home of Edith Whigham. It was stipulated by the parties at trial that, at the time of the accident, Edwards was a business invitee on the Whigham premises, due to her employment as a "sitter" for Ms. Whigham.
Ms. Whigham, the victim of a stroke, was unconscious on all three occasions when Edwards was hired to sit with her. It appears from the evidence that Edwards was employed on these occasions to substitute for Georgia Lambert, a domestic worker in the Whigham home, when Lambert was not available to sit with Ms. Whigham. In fact, Lambert was responsible for hiring Edwards to work on the day of the accident and on the two previous occasions. Edwards was paid by Ms. Whigham's daughter.
On September 8, 1984, Edwards came to sit with Ms. Whigham while the family and Lambert attended a wedding. Edwards was told that the bride and groom would be coming to the house that evening and that she should admit them through the front door. When she heard the front doorbell ring, Edwards proceeded into the front entrance hall to answer the door. She stepped on the rug in the hall, and the rug slipped from under her, and caused her to slide into a number of chairs and tables stacked in a corner. The chairs and tables fell onto Edwards's hand.
Edwards testified that her work had confined her to the back portion of the Whigham house, so that prior to the accident she had not seen the rug in the front entrance hall. According to Edwards, the rug was placed in a vertical position, running into the entrance hall. She testified that the Whigham residence was "well kept" and that there was no trash, debris, or water in the area of the accident, but, that in her opinion, rugs placed on hardwood floors without rubber backing are prone to slip.
Lambert testified that since she started to work for Ms. Whigham in 1981, she had neither seen nor heard of anyone slipping on the rug in question, or on any of the numerous identical rugs located throughout the house. She testified that she walks on the rugs daily and has never had one slip out from under her. Lambert also testified that when she first came to work for Ms. Whigham, the rug in question was placed in a horizontal position, and that the rug had remained in that position throughout her employment. She further added that she had never had the authority to move the rug or to change its position without permission from Ms. Whigham, and that the rug was in a horizontal position when she left the house for the wedding.
It is clear from the facts of this case that Edwards was a business invitee on Ms. Whigham's premises. Ms. Whigham derived a material benefit in having Edwards *236 sit with her while she was recovering from her stroke. See Bates v. Peoples Savings Life Insurance Co. of Tuscaloosa, Inc., 475 So. 2d 484 (Ala.1985).
The occupant of premises has a duty to business invitees to use reasonable care and diligence to keep the premises in a safe condition; or, if his premises are in a dangerous condition, to give sufficient warning, so that, by the use of ordinary care, his invitees may avoid the danger. Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388 (1937).
Accordingly, an invitor is not liable for injuries to an invitee that are caused by a danger known to the invitee or by one that should have been observed by the invitee in the exercise of reasonable care. Quillen v. Quillen, 388 So. 2d 985 (Ala.1980). "The entire basis of an invitor's liability rests upon his superior knowledge of the danger which causes the invitee's injuries." Id. at 989.
The plaintiff contends that the fact that the rug was placed on a hardwood floor without rubber backing is sufficient to show that Ms. Whigham did not use reasonable care in keeping her premises safe. We disagree. In Quillen v. Quillen, supra, at 989, the Court announced the rule applicable to these facts as follows:
Similarly, in Tice v. Tice, 361 So. 2d 1051, 1052 (Ala.1978), a case brought by a babysitter who fell on the employer/landowner's premises, the Court held:
Because there is a complete absence of evidence tending to establish a breach of any duty owed the plaintiff by the defendant, the directed verdict was proper. Rule 50(e), A.R.Civ.P.
AFFIRMED.
JONES, ALMON, ADAMS and STEAGALL, JJ., concur. | June 26, 1987 |
1f21ebae-4009-45a6-ac92-32621db64ecc | Robertson v. Murphy | 510 So. 2d 180 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 180 (1987)
William Gary ROBERTSON
v.
Fred B. MURPHY, et al.
85-366.
Supreme Court of Alabama.
June 19, 1987.
John I. Cottle III of Bowles & Cottle, Tallassee, for plaintiff.
Willard Pienezza, Michael S. Harper of Hornsby & Schmitt, Tallassee, for defendants.
ADAMS, Justice.
This is an appeal from a summary judgment in favor of the defendants, Fred Murphy, Willard Pienezza, W.G. O'Daniel, Lanier Y. Roton, Ernest C. Hornsby, and Auburn Federal Savings & Loan Association. The plaintiff's father, a partner with the individual defendants, died intestate, leaving his partnership interest to his son, William Gary Robertson. On May 23, 1985, Robertson filed his complaint in the Circuit Court of Tallapoosa County, seeking to have the property sold, the proceeds to be divided to the partners according to their interests. On August 28, 1985, Auburn Federal Savings and Loan Association filed its answer. On September 11, 1985, all defendants filed a motion to dismiss, which was denied. On October 29, 1985, the individual defendants filed their answer and a motion for summary judgment. The trial court granted the motion for all defendants on December 3, 1985, hence, this appeal.
Robertson's father and the individual defendants owned land in fee simple in East Tallassee, Tallapoosa County, Alabama. They purchased the land on July 1, 1975. On October 31, 1975, the six partners entered *181 into a partnership agreement which provided that upon the death of any partner, the partnership did not terminate and that the heirs, executors, administrators, or assigns of any partner would be bound by the terms of the partnership agreement. The agreement also contained a preemptive right of first refusal, which gave the partnership a 90-day period in which to buy the interest of any partner desiring to sell. In 1979, Robertson's father died intestate and Robertson acquired his father's interest in the property. Robertson wanted to sell his interest. At no time did he offer his interest to the partnership. He filed his complaint seeking to have the property sold, without first asking for dissolution of the partnership or for an accounting of the partnership assets. On appeal he argues that the preemptive right of first refusal violates the rule against perpetuities, and, therefore, that he is not bound by its terms.
The common law rule against perpetuities was adopted by statute in Alabama in § 35-4-4, Code of Alabama (1975). "The common law rule against perpetuities provides that no interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest. J. Gray, The Rule Against Perpetuities § 201 (4th Ed.1952)." Shaffer v. Reed, 437 So. 2d 98, 99 (Ala. 1983). Robertson argues that the preemptive right of first refusal contained within the partnership agreement violates the rule in that it contains no reference to lives in being; therefore, he argues, it is for a period longer than 21 years and the rule is violated.
In a case substantially the same as the present case, the Supreme Court of Wyoming, in Hartnett v. Jones, 629 P.2d 1357 (Wyo.1981), held that a preemptive right to purchase in a joint venture contract was not subject to the rule. In Wyoming, a joint venture is governed by the law of partnerships. The court cited and discussed Weber v. Texas Co., 83 F.2d 807 (5th Cir.1936), cert. denied, 299 U.S. 561, 57 S. Ct. 23, 81 L. Ed. 413 (1936); Oliner v. City of Englewood, 42 Colo.App. 106, 593 P.2d 977 (1979); Robroy Land Co. v. Prather, 95 Wash. 2d 66, 622 P.2d 367 (1980), for the proposition that the rule did not apply with regard to preemptive rights. The opinion then gave an overview of the manner in which different states have avoided the application of the rule to preemptive rights:
Hartnett, 629 P.2d at 1362.
In reaching its decision that the preemptive right did not violate the rule against perpetuities, the Wyoming Supreme Court emphasized that the preemptive right did not restrict alienability, the goal of the rule:
Hartnett, 629 P.2d at 1363.
Although not identical to it, this case is similar to Dozier v. Troy Drive-In Theaters, Inc., 265 Ala. 93, 89 So. 2d 537 (1956). Dozier dealt with a lease of land containing an option to purchase exercisable during the term after one year. The appellant in Dozier argued that such an option was violative of the rule in that, no reference to a life in being was stated. The Court held that the option was an exception and not subject to the rule against perpetuities. It initially held that because the lease was for 20 years and not for more than 21, the rule was not invoked. However, the Court then held that even if the lease was for more than 21 years, the rule would not be violated. The rationale espoused by the Court in Dozier is readily applicable to our present case:
Dozier, 265 Ala. at 103-04, 89 So. 2d at 546. The Wyoming court in Hartnett described Dozier as holding "that the option or preemptive right simply is an exception to the rule of perpetuities because it creates an estate on a condition subsequent to which the rule does not apply." Hartnett v. Jones, 629 P.2d at 1362. The Court in Dozier, partially relied upon the English courts for its pronouncement of the exception:
265 Ala. at 104-05, 89 So. 2d at 547.
"The avowed object of the rule is to favor commerce and the circulation of property by preventing the right of absolute disposition from being tied up or restrained beyond a certain period." Lyons v. Bradley, 168 Ala. 505, 53 So. 224 (1910). As pointed out by the Supreme Court of Wyoming, preemptive rights do not inhibit the alienability of property. See Hartnett, supra. Therefore, the rights are not contrary to the main objective of the rule. Based on *183 the analysis of the Court in Dozier, supra, the preemptive right to repurchase created a conditional fee and this right is vested and presently reserved in the pre-emptioner. The preemptive right of first refusal as found in the partnership agreement is excepted from the rule against perpetuities. Therefore, plaintiff's claim fails and the trial court correctly granted summary judgment.
For the reasons set forth, the judgment of the trial court is due to be affirmed.
AFFIRMED.
JONES, SHORES, HOUSTON and STEAGALL, JJ., concur. | June 19, 1987 |
7757bffe-8264-4ae0-85a3-86d970d077d3 | Hardy v. HARDY ON BEHALF OF MORTG. INV. | 507 So. 2d 404 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 404 (1986)
Harry D. HARDY
v.
Evelyn HARDY, on behalf of MORTGAGE INVESTMENTS, INC.
84-578.
Supreme Court of Alabama.
October 3, 1986.
On Return to Remand May 15, 1987.
John Grow, Mobile, for appellant.
Don Conway, Mobile, for appellee.
PER CURIAM.
This is an appeal from a judgment entered upon a jury verdict in favor of Mortgage *405 Investments, Inc. (MII), and against Harry Hardy, arising from a stockholder's derivative action brought on behalf of MII by Evelyn Hardy.
Harry Hardy, Evelyn Hardy (Harry's sister-in-law), and A.L. Lambert were the stockholders, officers, and directors of MII. Evelyn filed a complaint on her own behalf against Harry Hardy and A.L. Lambert, alleging denial of access to corporate records and, derivatively, on behalf of MII, seeking an accounting, and claiming damages for conversion or waste of corporate property and misappropriation of corporate assets. Before the trial began, the parties agreed to have the trial court dissolve the corporation.
At trial, the court directed a verdict in favor of A.L. Lambert, so the case went to the jury only on the claims against Harry Hardy. The jury returned a verdict in favor of Harry Hardy on Evelyn Hardy's individual claim and in favor of MII on the derivative claims, and awarded MII damages of $140,000.
Harry Hardy filed a motion for J.N.O.V. or, alternatively, for a new trial. The trial court denied the motion for J.N.O.V., but ordered a new trial unless MII agreed to a reduction of the award to $100,000. Mrs. Hardy, acting on behalf of MII, consented to the remittitur. Harry Hardy appeals from the denial of his post-trial motions; and Mrs. Hardy, pursuant to Rule 59(f), A.R.Civ.P., requests this Court to reinstate the jury verdict of $140,000. We affirm as to the appeal, and remand as to the remittitur issue.
We confess to some difficulty in discerning any issue presented for our review. Appellant's brief, under "Issues Presented," sets forth four abstract legal principles (which we accept generally as correct statements of law), without specifying any adverse ruling of the trial court. A fifth "issue presented" is that the trial court "erred in submitting the case to the jury on the six-year statute of limitations." In the "Argument" section of his brief, Appellant states, with reference to the statute of limitations issue, that "there was no evidence to support any action for conversion and thus the six-year statute of limitations should not have applied. Rather, the court should have applied, if any, the one-year statute of limitations." Here, again, we are not favored with any hint of the adverse ruling complained of.
We do find, however, under the section entitled "Conclusion," this statement: "Appellant respectfully submits that the court erred in not granting [his] motion for Directed Verdict at the close of the Plaintiff's case...." Thus, pursuant to our liberal policy of not foreclosing review on the merits, despite procedural errors, we proceed to test the propriety of the trial court's denial of Appellant's motion for directed verdict on the sufficiency-of-the-evidence ground.
We approach our analysis of this "sufficiency of the evidence" issue by observing that Evelyn Hardy, individually, is not the Plaintiff and that she, individually, has not obtained a judgment against Defendant. The suit is by, and thus the judgment is on behalf of, the corporation. The corporate entity itself is the aggrieved party and is the only party that could maintain a lawsuit for waste or conversion of its assets. Galbreath v. Scott, 433 So. 2d 454 (Ala. 1983).
We make these observations because Appellant's entire argument is premised upon Mrs. Hardy's role as a director; that argument is to the effect that her failure to faithfully discharge her responsibilities as a director bars her recovery. This argument is akin to a "contributory negligence" or "estoppel" theory. We disagree with the premise upon which Appellant grounds his directed verdict and J.N.O.V. motions.
This precise point is treated in Vol. 12B, W. Fletcher, Cyclopedia of the Law of Private Corporations § 5924 at 463 (perm. ed. 1984):
The increased laxity with which courts have tended to treat close corporations (see O'Neal, 1 Close Corporations § 1.15 at 79 (2d ed. 1971)) has not changed the basic proposition that a corporation is a distinct entity separate from the individuals who compose it as stockholders or who manage it as directors or officers. Cohen v. Williams, 318 So. 2d 279 (Ala.1975). A corporation, however, acts through the individuals who compose it. In the present case, Mrs. Hardy sued individually (presenting a claim on which the jury found against her) and sued on behalf of the corporation for wrongs committed against the corporation. The jury found that the corporation had been wronged, and awarded damages. "[A]n action may be maintained by [the] stockholders on behalf of the corporation. In such an action the corporation is the real party in interest and would be the one in whose favor a judgment would be rendered." Galbreath v. Scott, 433 So. 2d at 457.
The rule is aptly stated in 19 Am.Jur. Corporations (1986): "The corporation is the real plaintiff in a derivative suit.... The cause of action belongs to the corporation and not to the stockholders individually or collectively, and the right of a stockholder to bring a derivative suit rests in the existence of a complete cause of action against the defendant in favor of the corporation." § 2251 at 154-155. "[T]he complaint and defenses are to be considered as if the corporation itself were suing the defendant." § 2251 at 154.
Therefore, Mrs. Hardy's conduct as a director does not affect the corporation's right to recover for wrongs committed against it. Appellant's "contributory negligence" defense would be appropriate in regard to Evelyn Hardy's claim against Mr. Hardy in her individual capacity, but not in her capacity as representative of the corporation, unless she participated in the wrong complained of or consented to it. See Wright and Miller, Federal Practice and Procedure § 1834, at 397-99 (1972.)
The duty of good faith on the part of an officer is owed to the corporation as an entity, distinct from the stockholders. Sellers v. Head, 261 Ala. 212, 73 So. 2d 747 (1954). Directors of a corporation occupy a quasi-fiduciary relationship to the corporation and its stockholders. Johnston v. Livingston Nursing Home, Inc., 282 Ala. 309, 211 So. 2d 151 (1968). Corporate officers are required to act with fidelity and in good faith, subordinating their personal interests to the interests of the corporation. Belcher v. Birmingham Trust National Bank, 348 F. Supp. 61 (N.D.Ala.1968). Thus, Harry Hardy owed the corporation certain fiduciary duties, and Evelyn Hardy is merely asserting the breach of those duties on behalf of the corporation. Her individual negligence (here, amounting to mere inattention and entrustment of the corporate affairs to Defendant) does not work an estoppel against the corporation's assertion of its rights through her as a minority stockholder.
Applying these basic principles in the context of claims and defenses here asserted, we find that the record is replete with credible evidence that Defendant converted to his own use corporate property and misappropriated corporate funds. Thus, the trial court did not err in denying his motion for a directed verdict.
Plaintiff's challenge of the trial court's remittitur order invokes our recently announced procedure for review of an order granting or denying a new trial on the ground of excessiveness of the verdict. Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986). Accordingly, this cause is remanded to the trial court for further proceedings consistent with the remand instructions in Hammond. See, also, Harmon v. Motors Insurance Corporation, 493 So. 2d 1370 (Ala.1986); and Alabama *407 Farm Bureau Mutual Casualty Insurance Company v. Griffin, 493 So. 2d 1379 (Ala.1986). The court is directed to report its findings and conclusions to this Court within 28 days of the issuance of this opinion.
ON THE APPEAL, AFFIRMED; ON THE ISSUE OF REMITTITUR, REMANDED WITH INSTRUCTIONS.
TORBERT, C.J., and JONES, ALMON, ADAMS and STEAGALL, JJ., concur.
HOUSTON, J., concurs in result.
HOUSTON, Justice (concurring in result).
Mortgage Investments, Inc., a small, closely-held corporation,[1] was formed in 1954. Initially, MII had three stockholders, each of whom held one-third of the shares in the corporationSamuel Steele, Harry Hardy, and Harry Hardy's brother, Keaton Hardy. In 1957, Steele sold his shares in MII to A.L. Lambert. Eight years later, Keaton Hardy died, leaving his shares by will to his widow, Evelyn Hardy.
On May 27, 1966, Harry Hardy, Evelyn Hardy, and A.L. Lambert held a stockholders-directors meeting. At that meeting, they adopted a resolution naming Harry Hardy president of the corporation, Evelyn Hardy vice-president, and A.L. Lambert secretary-treasurer. The resolution also provided that the board of directors would consist of Harry Hardy, Evelyn Hardy, and A.L. Lambert. It further declared that the by-laws of the corporation had been lost and that new by-laws were to be drawn up.
Over the next thirteen years, Evelyn Hardy and A.L. Lambert allowed Harry Hardy to take total control over the management of the corporation. All corporate decisions were made unilaterally by Harry Hardy, without review by the rest of the board. The lost by-laws were never replaced. Corporate meetings were held infrequently and without formality. No minutes were kept of the meetings. The corporate books were not inspected until 1979, when Mrs. Hardy reviewed them just before bringing this action. Although during those thirteen years Mrs. Hardy would ask periodically "how the business was coming along," her inquiries into the affairs of the corporation went no further. Most importantly, she made no effort to inform herself regarding her duties as an officer and director of the corporation.
This Court discussed the duties and responsibilities of directors of corporations in Holloway v. Osteograf Co., 240 Ala. 507, 515-16, 200 So. 197, 204 (1941), as follows:
*408 Harry Hardy, in defendant's requested charges two and three, requested that the court charge on these duties of a director. In defendant's requested charge two he used the above cited language from Holloway v. Osteograf Co., supra. Both of these charges were denied. There is no record of Harry Hardy's having objected to the failure to give these written instructions. Rule 51, Ala.R.Civ.P., provides that: "No party may assign as error the ... failing to give a written instruction ... unless he objects thereto before the jury retires to consider the verdict, stating the matter to which he objects and the grounds of his objection." Therefore, the failure to give these charges cannot be reversible error.
Likewise, Harry Hardy orally requested that the trial court instruct on these duties of directors in the Court's oral charge; however, when the Court informed him that it would not do so, he did not object. Rule 51, Ala.R.Civ.P., provides that "No party may assign as error ... the giving of an ... incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection." Therefore, the failure to give this as part of the Court's oral charge cannot be reversible error.
PER CURIAM.
The trial court's order on remand conditioning the denial of a new trial on plaintiff's acceptance of a remittitur is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ALMON, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
[1] There is no evidence in the record to indicate that Mortgage Investments, Inc., had amended its articles of incorporation pursuant to Code 1975, § 10-2A-303, so as to qualify for treatment under the special provisions for close corporations found in Code 1975, §§ 10-2A-300 through -313. Consequently, Mortgage Investments, Inc., is subject to this state's general law of corporations. Code 1975, § 10-2A-300(a). This is not to suggest, however, that the result in this case would have been different had those special provisions applied. | May 15, 1987 |
f509f1f0-eff2-4361-b9ea-9a5ddc5c802b | Wynn v. Board of Educ. of Vestavia Hills | 508 So. 2d 1170 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 1170 (1987)
Holly WYNN, A Minor, Who Sues By And Through Her Mother And Next Friend Sue WYNN
v.
BOARD OF EDUCATION OF VESTAVIA HILLS, et al.
85-1148.
Supreme Court of Alabama.
June 5, 1987.
Roger A. Brown, Birmingham, for appellant.
William Anthony Davis III of Starnes & Atchison and Patrick H. Boone of Perdue, Johnson & Boone, Birmingham, for appellees.
STEAGALL, Justice.
Holly Wynn, by and through her mother and next friend, Sue Wynn, filed suit under 42 U.S.C. § 1983 against the Board of Education of Vestavia Hills ("Board"), the City of Vestavia Hills, and three employees of the Board, claiming that the defendants had acted tortiously and violated Holly's civil rights. The complaint alleged that Holly, while a student in defendant Alva Hill's fifth-grade class at West Elementary School, was accused in front of her classmates of stealing money and that she was detained and physically searched without reasonable cause. The trial court granted summary judgment in favor of all defendants, from which Holly appeals. We affirm.
Holly's claims are based on an occurrence in Hill's classroom in January 1981. The class had accumulated nine dollars to be used for a class project. On the day of the incident, this money had been removed from the school vault and was given to a member of the class, who had volunteered to use it to purchase fish for the class aquarium. The money was placed in an envelope and was sealed. The custodial student placed the envelope in a container with her books beneath her desk. Shortly thereafter, the class went outside for physical education, escorted by Hill. Holly and another student, who were excused from physical education, remained in the classroom alone. Both students went to the *1171 restroom, separately, during the time the other students were outside.
When the class returned from physical education, the custodial student discovered that the envelope was torn and that six $1.00 bills were missing. Hill called the principal, who took Holly and the other student who had not attended the physical education class to her office. Both students denied taking the money. Hill had each student in the classroom look through his or her own books, containers, and desks for the money. Several students also searched Hill's desk and other areas of the classroom. When Holly and the other student returned from the principal's office, Hill asked them to search through their containers and books. The money was never found.
In her deposition, Holly testified that Hill told the other students in the class to look in Holly's books and in the books belonging to the other student who had remained in the classroom. Holly also stated that the students looked in her purse and that she and the other student were instructed to come to the front of the class and remove their shoes, and that Hill then felt their socks. According to Holly, none of the other students were required to take off their shoes. Hill, in her deposition, denies calling Holly before the class and requesting her to remove her shoes. Hill also denies that she touched Holly.
The appellant concedes in her brief that her sole contention on appeal is the propriety of the summary judgment in favor of Alva Hill. Appellant contends that an issue of fact is presented by the evidence relating to the method by which the search of Holly was conducted.
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), A.R. Civ.P. We must review the record in a light most favorable to the non-moving party. Wilson v. Brown, 496 So. 2d 756 (Ala. 1986). We have reviewed the evidence that was before the trial court, and viewing that evidence in a light most favorable to the appellant, we agree with the determination of the trial court that the search made by Hill did not violate appellant's constitutional rights.
The United States Supreme Court, in New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985), adopted a reasonableness standard applicable to searches conducted by public school officials:
469 U.S. at 341-42, 105 S. Ct. at 743-44.
In the present case, Hill, as classroom teacher, had reasonable grounds for suspecting that a search of the two students who had been alone in the classroom would *1172 turn up evidence that one of them had taken the money. There is no evidence that any other student had been in the classroom during the time when the theft could have occurred. Hill's deposition testimony reveals that when the students returned to the classroom from physical education, the child who had been given the sealed envelope containing the money screamed and then ran to the front of the room with the envelope ripped open. According to Hill, the students stopped what they were doing, and "there was just a long pause right at that moment." Given the classroom setting and the concern of the students in Hill's class over the missing money, we conclude that the very limited search that occurred was not excessively intrusive and was reasonably related to the objective of the search.
We hold as a matter of law that Hill's action was justified at its inception and that the search was reasonably related in scope to the circumstances which justified the interference in the first place. The defendants' summary judgment was proper.
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, and SHORES, JJ., concur.
BEATTY, J., dissents.
BEATTY, Justice (dissenting).
Because there is a clear dispute in the evidence as to exactly what the plaintiff was required to do, or what was done to the plaintiff in the process of conducting a search of her person, summary judgment is inappropriate in this case.
The majority concludes that, even under plaintiff's version of the facts, summary judgment was proper because it "finds," as a matter of law, that the search was "very limited[,] ... was not excessively intrusive, and was reasonably related to the objective of the search." Even if the majority is correct that a search of Holly's purse, books, and person was justified under the circumstances of this case, it is impossible for me to perceive how this Court could hold, as a matter of law, that making a spectacle of, and the resulting humiliation of, this child in the process was justified and did not amount to tortious conduct.
Holly deposed that it was not her teacher but her classmates, at the instruction of the teacher, who searched her purse and books. She further deposed that she was made to stand, not in a private or secluded area of the room, but rather in front of her classmates and remove her shoes, and that, while she stood there, the teacher felt her socks for the money she was suspected of stealing. These measures cannot be sanctioned by simply excusing them in the interest of maintaining order and enforcing rules. Without question, on these facts, a jury could have easily found that these measures were not "reasonably related to the objectives of the search," and, in fact, were "excessively intrusive in light of the age and sex of the student and nature of the infraction," (viz., a female fifth grader suspected of stealing $6.00). New Jersey v. T.L.O., 469 U.S. 325, 341-42, 105 S. Ct. 733, 743-44, 83 L. Ed. 2d 720 (1985).
For these reasons, I would reverse the summary judgment in favor of the defendants. | June 5, 1987 |
f23ec5b5-b3fa-4bf8-a73c-9cbb2e900764 | Alabama Power Co. v. Cantrell | 507 So. 2d 1295 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 1295 (1986)
ALABAMA POWER COMPANY
v.
Brenda Louise CANTRELL.
84-1146.
Supreme Court of Alabama.
September 5, 1986.
On Application for Rehearing and On Return After Remand May 22, 1987.
*1296 John P. Scott, Jr., of Balch & Bingham, Birmingham, and Billy L. Church of Church, Trussell & Robinson, Pell City, for appellant.
John W. Haley of Hare, Wynn, Newell & Newton, Birmingham, for appellee.
MADDOX, Justice.
This is a wrongful death case. The plaintiff's husband was killed while attempting to take down a 30-foot television antenna. Decedent and his brother had pulled the antenna loose from the bracket that attached it to the house and were attempting to lower it to the ground. The brother, who was on the roof, let go of the antenna for an unknown reason while the decedent was still holding the base of it. His turning loose caused the antenna to move. The antenna contacted Alabama Power Company's 7,200-volt power line. Decedent was killed almost instantly. Plaintiff claims the line was uninsulated and that the failure of the Power Company to have the line insulated was the proximate cause of decedent's death.
The line was approximately 25 feet above the ground and about 9 feet away from the building where the antenna was attached. The jury returned a verdict in favor of plaintiff for $1 million.
Alabama Power Company (hereinafter "APCo") raises five issues on appeal. First, that the trial court erred by not granting a directed verdict or a judgment notwithstanding the verdict due to APCo's lack of notice of the condition; second, that the trial court erred by not instructing the jury on the issue of notice; third, that the trial court erred in admitting testimony of the defendant's expert that "invaded the province of the jury"; fourth, that the trial court erred by allowing questions to be asked in front of the jury about certain reports compiled by the government relating to the danger of television antennas and power linesAPCo's motion in limine to exclude these reports was denied; and fifth, APCo claims the jury's $1 million verdict for the plaintiff was excessive.
First, appellant argues that it had no notice of the situation. Our rule on duty to insulate is well established and was recently *1297 restated in the case of Alabama Power Co. v. Brooks, 479 So. 2d 1169, 1172 (Ala. 1985), from which we quote extensively because the facts of that case are similar to those of the instant case:
The Brooks case involved a drilling rig boom that had been raised into a 7,200-volt electric power line. In the instant case, APCo argues that it had not received notice, either actual or constructive, that persons pursuing business or pleasure might come into contact with the power line.
We cannot agree that APCo had no notice that persons might come into contact with the wire. While no allegation is made and no proof is offered that APCo knew the antenna was to be taken down on this particular day, that is not the only requirement of our rule for notice. The Power Company is under a duty to insulate its wires wherever it may reasonably be anticipated that persons, pursuing business or pleasure, may come in contact therewith. "Where the facts, upon which the existence of a duty depends, are disputed, the factual dispute is for resolution by the jury." Alabama Power Co. v. Alexander, 370 So. 2d 252, 254 (Ala.1979). Furthermore, it is also the law that a motion for a directed verdict or for judgment notwithstanding the verdict will not be granted and the case will go to the jury "if the evidence or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint." Alabama Power Co. v. Taylor, 293 Ala. 484, 492, 306 So. 2d 236, 243 (1975). We hold that there was sufficient evidence in the instant case to provide this scintilla. The facts, upon which the existence of a duty to insulate depended, were disputed; therefore, the factual dispute was one for the jury to resolve. Some of these facts are: an aluminum antenna, set up on an apartment building and near an uninsulated power line might be reasonably foreseeable as an object which could be energized if it touched the power line; this apartment was on the main street of Springville, Alabama, and both the power line and the antenna could be clearly viewed from the street; there are two electric meters, owned by APCo, on the side of the building a few feet from where the antenna was located, and the jury could have found that to examine the meters it would be necessary for anyone walking from the street to pass by the antenna; testimony was given that APCo meter readers had been seen in the neighborhood; and that the antenna *1298 had been in place about two years. These facts were enough to create the scintilla of evidence required by our law to create a jury question and the trial judge properly denied the motion for a directed verdict, and the JNOV.
Second, APCo claims that the trial court erred in failing to instruct the jury on the issue of "notice." The trial judge refused to give defendant's requested charge number 19 to the jury, which read:
A charge almost identical to this was held not to be a proper statement of the law in the Brooks case. There, this Court held that such a charge was properly refused because it would require APCo to have notice of the specific activity engaged in to establish a duty to insulate. The activity that places APCo on notice that persons may come into contact with its lines does not have to be the same activity involved in the injury-producing accident. Brooks, at 1175, citing Alabama Power Co. v. Smith, 273 Ala. 509, 142 So. 2d 228 (1962).
In its brief, APCo argues that it has been well established in Alabama that each party is entitled to have proper instructions given by the trial court regarding all issues presented, and that the failure of the court to give a correct charge as to any theory of the case is reversible error, citing Liberty National Life Ins. Co. v. Smith, 356 So. 2d 646 (Ala.1978); Jones v. Blackman, 284 Ala. 684, 228 So. 2d 1 (1969); Health Maintenance Group of B'ham v. Rutledge, 459 So. 2d 889 (Ala.Civ.App.1984); Great Northern Land & Cattle, Inc. v. Firestone, 337 So. 2d 1323 (Ala.1976). APCo claims that this obligation of the trial court has particular application to this case, "where the court failed and refused to charge the jury on the requirement of `notice' to APCo," because, APCo says, "the `notice' requirement was an essential element in [plaintiff's] case and one on which the jury received absolutely no instruction." APCo claims that it alerted the trial court to this requirement in argument in support of its motion for directed verdict as well as through its requested charge no. 19, quoted above.
APCo concludes, in its brief:
We do not read this Court's previous decisions as requiring notice as the only possible ground on which the duty to insulate arises. In Alabama Power Co. v. Alexander, 370 So. 2d 252, 254 (Ala.1979), this Court opined:
Two different standards are clearly established. Even in the absence of actual notice to APCo, if the evidence, under a *1299 totality of the circumstances, showed that APCo should have reasonably anticipated that persons, pursuing business or pleasure, might come in contact with the power lines, the duty to insulate arose. The trial judge gave an instruction on this "reasonably anticipated" standard, which correctly stated the law; therefore, the trial judge did not commit prejudicial error by failing to charge the jury on the notice issue.
Third, APCo argues that the trial court erred by allowing testimony which APCo urges "invaded the province of the jury." We do not agree. Expert witnesses are allowed to give their opinions "on any question of science, skill, trade or like questions" based on the facts as proved by other witnesses. Code 1975, § 12-21-160. In this case, both sides called expert witnesses. The testimony objected to is as follows:
We agree with the statement found at § 128.05 of McElroy's Alabama Evidence:
C. Gamble, McElroy's Alabama Evidence § 128.05 (3d ed. 1977). Both parties in this case asked their expert witnesses questions regarding "safe" utility practices. The above questions might be properly excluded if they asked whether a specified condition was "negligent" within the legal meaning of that term. This rule is stated in McElroy's at § 128.07. The expert here was properly allowed to testify as to what he based his opinion on and what his expert opinion was as to the design and operation of the electrical system. This was not a matter of common knowledge, and the trial judge properly allowed the expert testimony. See generally, Maslankowski v. Beam, 288 Ala. 254, 259 So. 2d 804 (1972). The trial judge properly allowed the expert to state his opinion as to the maintenance and operation of an electrical system. The expert did not invade the province of the jury, because the matter was not one in the jury's knowledge or experience.
Fourth, APCo argues that the trial court erred by failing to grant its motion in limine to exclude certain government reports on accidents involving television and CB radio antennas. In the first place, all of APCo's objections were sustained and the information was kept out of evidence. But appellant argues that just hearing the questions asked was prejudicial to it. Second, the Brooks case dealt with an issue almost identical to this, and we held that, for the limited purpose of showing the existence of national, industry-wide evidence of a serious problem that had resulted from the fact that certain types of equipment were coming into contact with uninsulated power lines, this type of questioning was proper. It is also relevant as to the degree of care exercised by APCo in the inspection and maintenance of its lines. Brooks, at 1177. Plaintiff's offer of proof at trial was for precisely this purpose:
Under this Court's holding in Brooks, we might well conclude that this material would have been admissible, were we called upon to decide that issue. We do not decide the admissibility of the information offered in this case. Because all of APCo's objections were upheld, and this Court has held that similar information might be allowable for a limited purpose, APCo suffered no prejudice, and the judgment of the court is not due to be reversed on this ground.
Fifth, and finally, APCo claims the $1 million damage award was excessive. APCo requested that the trial court order a remittitur. Here, APCo argues as follows:
We do not at this time decide this issue, but we remand the cause with directions to the trial court to review its judgment in accordance with guidelines set out in our recent decisions in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986); Harmon v. Motors Insurance Corp., 493 So. 2d 1370 (Ala.1986); and Alabama Farm Bureau Mutual Cas. Ins. Co. v. Griffin, 493 So. 2d 1379 (Ala.1986).
AFFIRMED, IN PART; REMANDED, WITH DIRECTIONS.
TORBERT, C.J., and ALMON, BEATTY and HOUSTON, JJ., concur.
PER CURIAM.
On original deliverance, this Court affirmed the judgment of the trial court in part, but remanded the cause to the trial court with directions for that court to review its judgment in accordance with guidelines set out in our decisions in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and Alabama Farm Bureau Mutual Cas. Ins. Co. v. Griffin, 493 So. 2d 1379 (Ala.1986), and to determine whether, in its opinion, the judgment in the amount of $1 million should be reduced.
APCo timely filed an application for rehearing, in which it claimed (1) that this Court misconstrued the facts of the case; (2) that this Court established a new legal standard in cases in which liability is sought to be imposed on APCo because an object, such as the TV antenna in this case, contacts one of its uninsulated lines; (3) that no liability should exist on APCo when the proof shows that it had complied with industry standards applicable to the duty an electrical company owes to those who might reasonably be expected to come into contact with one of its uninsulated wires; (4) that the opinion, as written, makes APCo an insurer and imposes strict liability in electrical contact cases; (5) that the 10% affirmance penalty under Code 1975, § 12-22-72 violates the Fourteenth Amendment to the Constitution of the United States; and (6) that the punitive damages verdict of $1 million violates the Eighth and Fourteenth Amendments to the Constitution of the United States.
We first consider APCo's argument that the undisputed facts show that it had no actual or constructive notice that persons might be expected to come into contact with its uninsulated line.
We have carefully reviewed the facts of the case, and the law as set out in the original opinion, and we are of the opinion that the evidence in this case was sufficient for the jury to find, based on a totality of the circumstances, that APCo knew or should have known that persons, pursuing business or pleasure, might come in contact with the power line.
In his order on remand, the trial judge has set out some of the evidence upon which the jury could have relied in finding liability in this case. We set out the full text of that order later in this opinion.
Because we are of the opinion that the original opinion adequately sets forth the facts of the case and correctly states the law applicable to those facts, we are of the opinion that the application for rehearing on the question of liability is due to be overruled.
On original deliverance, we did not decide whether the punitive damages award of $1 *1302 million was excessive, but we remanded the cause "with directions to the trial court to review its judgment in accordance with guidelines set out in our recent decisions in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986); Harmon v. Motors Insurance Corp., 493 So. 2d 1370 (Ala.1986); and Alabama Farm Bureau Mutual Cas. Ins. Co. v. Griffin, 493 So. 2d 1379 (Ala.1986)."
On remand, the trial court conducted a hearing and entered the following order:
"The Court will now review some of the testimony which the Jury heard and which it no doubt considered in arriving at its verdict.
"The T.V. antenna had been in close proximity to an uninsulated power line transmitting 7,200 volts of electricity for at least two years. There was sufficient evidence for the Jury to have found that the Defendant had actual knowledge of the existence of this condition, and if they did not have actual knowledge, they certainly had constructive notice. A person driving down Main Street in Springville, Alabama, could have seen the condition from the street. There was evidence that the Defendant had an ongoing inspection program in effect during the two-year period while this condition existed, and any type of an inspection would have disclosed this dangerous condition. There further was evidence from a supervisory employee of the Defendant and from a disinterested witness that meter readers regularly read the meter, which was in very close proximity to the antenna. The dangerous instrumentality, and that T.V. antennas in close proximity to high power transmission lines create a real danger. [sic] There was also testimony that a person standing at ground level could not tell whether the power line was insulated or not. The Defendant knew that this power line was not insulated.
"The Alabama Power Company is presumed to know the law that says certain power lines must be insulated. An official of the Alabama Power Company admitted that if this line had been insulated, the accident probably would not have occurred.
"There was evidence from which the Jury could have found that even though the Defendant knew of this dangerous condition, it would not have insulated the wire so long as it met the minimum clearance requirements of the Electrical Code. The Jury could have also found that the minimum clearance requirements of the Code were insufficient to render the situation that existed at the time of the accident reasonably safe. The Defendant now argues that it had no notice that this dangerous condition existed at the place of the accident. This contention was not made in the course of the trial. The only contention concerning notice that was made in the trial of the case was that they had no notice of the fact that the antenna was going to be taken down.
"This Court does not decide the question as to whether or not the jury did, in fact, believe all of the contentions above set forth, but they certainly could have believed it. If they did believe what they heard, they could have found that the Defendant had actual notice of the existence of the T.V. antenna; that the location of said antenna was in close proximity to a 7,200 volt power [line]; that the location of the T.V. antenna and power line created an extremely dangerous condition; that the Defendant knew that it was likely that the T.V. antenna would come in contact with the power line and the power line was likely to cause the death of innocent persons. The Jury could have further found from the evidence that the Power Company would not insulate its power line even though it knew it created a life-threatening condition so long as it met the minimum clearance standards of the National Electrical Safety Code.
"I am of the opinion that a $1,000,000.00 verdict is not excessive in view of the facts of this case.
*1304 "This was my reason for originally overruling the Defendant's Motion for a Remittitur. After having considered the matter again, I am still of the opinion that $1,000,000.00 is not excessive. The condition that existed at the time of this accident should not be allowed to exist. A small verdict would not, in my opinion, cause this Defendant to change its practices with reference to taking appropriate steps to correct such conditions. Hopefully, a verdict of $1,000,000.00 will cause this Defendant and other power companies to comply with the law and thus save lives.
"It is therefore ORDERED, ADJUDGED AND DECREED that the Motion for Remittitur or for a New Trial on the question of damages is overruled.
"This the 6th day of November, 1986.
The parties have filed briefs in support of their respective positions regarding the order of the trial judge, and we now proceed to consider their arguments and address the legal issues involved.
On the damages issue, APCo argues that it is entitled to a new trial, or at least a remittitur, based on two grounds: (1) The trial court's statement of facts and conclusions in the order entered on remand are not supported by the record; (2) The punitive damages award of $1 million violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment and the Excessive Fines Clause of the Eighth Amendment.[1]
Counsel for APCo, in its brief on the damages issue, once again asserts that this Court and the trial court have misconstrued the evidence in this case. The trial judge, in his order on remand, in addressing the central argument made by APCo that it had no notice, actual or constructive, that someone would be injured or killed if it did not insulate its line, not only found that there was sufficient evidence to support such a finding, but further noted:
APCo's argument on ground (2) of the damages issue, that the punitive damages award violates federal constitutional guarantees, is succinctly stated in the concluding paragraphs of its brief:
Cantrell, on the other hand, argues that we should not entertain the federal constitutional claims because they were not raised in the trial court either before or during the trial of the case; were not raised in the trial court when APCo filed, argued, and briefed its motion for a new trial or for a remittitur; and were not argued, or briefed, to this Court on original submission; but, on the other hand, were raised for the first time in APCo's brief in support of its application for rehearing before this Court. Cantrell argues that an identical factual setting was before this Court in Merrell v. Alabama Power Co., 382 So. 2d 494, 497 (Ala.1980), and that this Court disposed of the application for rehearing there by writing:
APCo counters that it is aware of the principle that "where a constitutional question was not raised on trial it will not be considered on appeal," City of Montgomery v. Robinson, 441 So. 2d 857, 861 (Ala. 1983), but contends that this Court has considered federal constitutional claims advanced for the first time on application for rehearing, and cites Central of Georgia Ry. v. Steed, 287 Ala. 64, 76-77, 248 So. 2d 110, 120-21 (1971).
The rehearing petition in that case took issue only with the statutory ten per cent affirmance penalty provision, Code 1975, § 12-22-72. Issues regarding that provision usually arise for the first time in the appellate court and do not ripen into issues until the appellate court has affirmed a judgment for plaintiff. Such issues are normally handled by motion in the appellate court after the affirmance. Thus, a rehearing, such as that in Steed, challenging the constitutionality of § 12-22-72 or its predecessor code sections, does not provide a precedent for a rehearing challenging the constitutionality of the statute authorizing the cause of action on which the suit is based.
APCo has cited no authority allowing a party to raise, for the first time, on rehearing in an appellate court the constitutionality of the statute under which the action was tried. Such a procedure is contrary to sound practice. See, for example, the many cases cited at 2 Ala.Dig., Appeal and Error, Key No. 170(2).
We have carefully reviewed the findings and conclusions of the trial judge, and have reviewed the award made in this case, using essentially the same criteria we directed the trial judge to use, and we are of the opinion that the judgment of the trial court is due to be affirmed on the damages issue. Cf. General Motors Corp. v. Edwards, 482 So. 2d 1176 (Ala.1985), a case involving two wrongful death claims and in which the jury awarded verdicts of $2,000,000 in each of the claims, and in which this Court upheld the trial court's remittitur which reduced the award on each claim to $1,400,000. There, this Court said:
APCo argues that its conduct was not so culpable as to justify an award of $1 million against it. Certainly, the culpability of APCo is as great as that of General Motors in the Edwards case.
Based on the foregoing, we are of the opinion that the application for rehearing is due to be overruled.
OPINION EXTENDED; APPLICATION OVERRULED; AFFIRMED.
TORBERT, C.J., and JONES, ALMON, SHORES, BEATTY and HOUSTON, JJ., concur.
MADDOX, J., concurs in part and dissents in part.
ADAMS and STEAGALL, JJ., not sitting.
MADDOX, Justice (Concurring in part; dissenting in part).
I concur in the affirmance of the judgment of the trial court, but I cannot agree that this Court should not address the constitutional claims because they were not timely presented. By refusing to remit the amount of the judgment upon penalty of a reversal of the case, as authorized by Code 1975, § 12-22-71,[1] when requested to do so by APCo, the Court has ruled on the question of the excessiveness of the verdict independently; consequently, this case is more like Central of Georgia Ry. v. Steed, 287 Ala. 64, 76-77, 248 So. 2d 110, 120-21 (1971), and not like Merrell v. Alabama Power Co., 382 So. 2d 494, 497 (Ala.1980), where the constitutionality of the wrongful death statute itself was involved. Here, the company claims that this Court's refusal to remit the amount of the judgment as a condition of affirmance is a deprivation of its federal constitutional rights.
I will set out in this separate opinion why I believe the federal constitutional claims were timely presented, and why I believe the Court correctly refuses to hold that the judgment in this case is excessive.
Although this Court did not formally address the claims in its original opinion, the same federal constitutional claims raised on rehearing in this case were raised on application for rehearing in Aetna Life Ins. Co. v. Lavoie, 470 So. 2d 1060 (Ala.1984), and this Court overruled the application. Aetna petitioned the Supreme Court of the United States to review the federal constitutional claims that had been raised in its application for rehearing, and, also, in a subsequent motion asked that this Court disqualify itself because of the alleged disqualification *1307 of one member of the Court who participated in the decision in that case. The Supreme Court of the United States took jurisdiction of Aetna's petition, and, although that Court reversed the judgment of this Court on the ground that one of this Court's Justices was disqualified, as a matter of law, the Court did discuss the other constitutional claims made by Aetna, as follows:
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 106 S. Ct. 1580, 1589, 89 L. Ed. 2d 823 (1986).
Of course, I cannot tell what the Supreme Court of the United States meant when it used the term "in an appropriate setting," but I must conclude that the Supreme Court of the United States, if it desired, would hold that APCo's federal constitutional claims have been adequately presented to this Court, for purposes of federal review of those claims.
By reviewing these federal constitutional claims presented for the first time on application for rehearing, I essentially would follow the same procedure this Court followed in the Aetna case, and in Central of Georgia Ry. v. Steed, supra. I do not believe Merrell v. Alabama Power Co. is apt authority for refusing to consider the constitutional claims.
Because I would review the constitutional claims, the first question I necessarily would address is whether the Excessive Fines Clause of the Eighth Amendment should be held to apply to punitive damages awards in civil cases. The Supreme Court of the United States, in the Aetna v. Lavoie case, as I have already shown, did not answer the question; consequently, it is one of first impression in this state.
The parties are in sharp disagreement on the question, and I am without benefit of much precedent. My research has uncovered only one case in which the question has been decided. In Palmer v. A.H. Robins Co., 684 P.2d 187, 217 (Colo.1984), plaintiff filed a products liability claim to recover compensatory and punitive damages from the manufacturer of an intrauterine device. The trial court entered a judgment for $600,000 in compensatory damages and $6,200,000 in punitive damages. There, a divided court, addressing the manufacturer's constitutional claim, wrote:
Although the Colorado court was of the opinion that Ingraham v. Wright, 430 U.S. 651, 667, 97 S. Ct. 1401, 1410, 51 L. Ed. 2d 711 (1977), supported its holding that the Excessive Fines Clause of the Eighth Amendment did not apply to a civil proceeding, I must assume that the Supreme Court of the United States will, "in an appropriate setting," address the question of whether the Excessive Fines Clause of the Eighth Amendment would apply to a civil case in which punitive damages have been awarded. Aetna Life Ins. Co. v. Lavoie, 475 U.S. at ___, 106 S. Ct. at 1589 (1986). But, see, Ex parte Watkins, 32 U.S. (7 Pet.) 568, 574, 8 L. Ed. 786 (1833), where the Supreme Court held that "[t]he eighth amendment is addressed to courts of the United States exercising criminal jurisdiction." A literal reading of the Watkins holding would be that the Bill of Rights applies only to courts exercising "criminal jurisdiction," and I am unsure at this time whether the Supreme Court of the United States will hold that the Eighth Amendment guarantee is applicable to punitive damages awards in civil cases. The language the Court used in Aetna v. Lavoie, which I have quoted above, indicates the Court will consider the Excessive Fines question "in an appropriate setting"; I believe this case is in that posture and, consequently, I would consider the question.
APCo contends that the relevant history of the Excessive Fines Clause of the Eighth Amendment and its English antecedents would require the application of that clause to punitive damages awards in civil cases. My review of the history of the Excessive Fines Clause of the Eighth Amendment and its English antecedents convinces me that the clause may be broad enough to cover punitive damages awards in civil cases.
The Supreme Court of the United States has recently reexamined the history of the Eighth Amendment and has examined English antecedents to questions arising under the amendment, Solem v. Helm, 463 U.S. 277, 284-86, 103 S. Ct. 3001, 3006-07, 77 L. Ed. 2d 637 (1983); Ingraham v. Wright, 430 U.S. at 664-66, 97 S. Ct. at 1408-09, and there is some support for APCo's position that "the historical antecedents to the Excessive Fines Clause support the contention that it should be applied to civil punitive damages awards." APCo contends that the Excessive Fines Clause can be traced to the "excessive amercement" provision of the Magna Charta, and that "amercements" were additional punishment for defendants in civil cases in 13th-Century England. In its brief, APCo argues:
In a footnote, APCo points out, as I have already suggested, that the Supreme Court of the United States in Aetna v. Lavoie, supra has indicated that it would probably take jurisdiction of a case "in an appropriate setting" to resolve this constitutional issue. For the purpose of deciding this case, I assume that the Excessive Fines Clause does apply, but even assuming that the Excessive Fines Clause of the Eighth Amendment applies to this punitive damages award, I am of the opinion that the award made in this case does not constitute an "excessive fine."
I am aware of the public policy issues which are presented in civil cases in which juries award substantial damages, and this Court, using various procedures available to it, has attempted to insure that justice is meted out to parties to civil litigation; however, in many cases we are dealing with provisions of substantive law, and changes in that law are appropriately made by the legislative branch of government. See, Wheeler, The Constitutional Case for Reforming Punitive Damages Procedures, 69 Va.L.Rev. 269 (1983).
We remanded this case for the trial court to consider once again the argument that the punitive damages award was excessive, under the principles of Hammond, supra. In Hammond, we set out several factors to be considered, including the culpability of the defendant's conduct and the desirability of discouraging others from similar conduct, but we stated that the factors set out were by "no means exclusive." Hammond involved a claim of fraud. This is a wrongful death case, and I am of the opinion that because it is a wrongful death action, this is another factor that can, and should, be considered when assessing the claim that a punitive damages award is excessive.
APCo additionally argues that the punitive damages award violates rights guaranteed to it under the Equal Protection Clause of the Fourteenth Amendment. It states, in its brief:
I cannot agree with APCo that Alabama's Wrongful Death Statute is unconstitutional because it authorizes the recovery of punitive damages in excess of a fine which might be levied against it in a criminal proceeding.
Whether the federal constitutional claims were timely raised is a question which the Supreme Court of the United States will have to decide if it grants a review of this Court's judgment. See Aetna Life Ins. Co. v. Lavoie, 475 U.S. at ___, 106 S.Ct., at 1589, 899 L. Ed. 2d 823 (1986). Cf. Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979).
Based on the foregoing, I agree that the majority correctly refused to order a remittitur, but I respectfully dissent from that portion of the opinion which holds that the federal constitutional claims were not timely presented to this Court.
[1] APCo does not claim that the punitive damages award also violates the "excessive fines" provision of our own Alabama Constitution. See, Art. I, § 15, Constitution of Alabama, 1901, which has been in every Constitution since 1819, when Alabama became a state.
[1] Section 12-22-71 reads as follows: "When an appeal is taken to the appropriate appellate court from the judgment of any court and the appellate court shall be of the opinion that the case should be reversed because the judgment of the lower court is excessive and that there is no other ground of reversal, the appellate court shall notify the appellee of the amount which it deems in excess of the just and proper amount of recovery and require the appellee, within a time to be stated in said notice, to remit such amount upon penalty of a reversal of the case. If the appellee does not, within the time stated in such notice or within such further time as may be granted by the court for good reason file a remittitur of such excessive amount, the appellate court shall reverse and remand the case; but, if the appellee shall file with the court a remittitur of the amount deemed excessive by the court, the appellate court shall reduce the amount of the judgment accordingly and shall affirm the case and enter a judgment for such reduced amount, which judgment so entered shall be and remain the judgment of the lower court and shall date back to the time of the entry or rendition of the judgment in the lower court. (Acts 1915, No. 542, p. 610; Code 1923, § 6150; Code 1940, T. 7, § 811.)" | May 22, 1987 |
dc1edeac-d10c-4a51-9017-75ff6dbc12e5 | Ex Parte Wiley | 516 So. 2d 816 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 816 (1987)
Ex Parte: Freddie Lee WILEY.
(Re: Freddie Lee Wiley v. State of Alabama).
86-596.
Supreme Court of Alabama.
July 10, 1987.
Charles M. Allen II, Montgomery, for petitioner.
Don Siegelman, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for respondent.
PER CURIAM.
We granted the writ of certiorari to the Court of Criminal Appeals 516 So. 2d 812 to consider whether that court erred in affirming the trial court, which overruled its order in limine requiring that the state refrain from commenting on, or eliciting testimony concerning, the defendant's assertion of his right to remain silent following his arrest, and, if so, whether the Court of Criminal Appeals also erred in affirming the trial court's order denying the defendant's motion for mistrial. We reverse and remand.
Freddie Lee Wiley was convicted by jury of the murder of Ulysses Howard and was sentenced to 30 years' imprisonment. Prior to trial, the court granted the defendant's motion in limine, prohibiting reference in any manner to the defendant's assertion of his constitutional right to remain silent. The defendant objected to the following testimony elicited from an arresting officer:
Officer Davis testified that he and Officer Spivey took the defendant into custody, put him in a police car, and read him his constitutional rights. Officer Davis testified further that once the Miranda warning was given, the defendant stated that he shot Ulysses Howard because he was afraid of him. After hearing testimony that the defendant did in fact make a statement, the trial judge noted on the motion in limine that he had reconsidered the prayer and overruled the motion.
Under the United States Constitution and the Constitution of the State of Alabama, an accused is guaranteed the right to remain silent. 5th Amendment, United States Constitution; Art. 1, § 6, Alabama Constitution (1901). A necessary component of the right to remain silent is that the accused's silence cannot be used against him.
United States v. Hale, 422 U.S. 171, 182-83, 95 S. Ct. 2133, 2139, 45 L. Ed. 2d 99 (1975) (White, J., concurring).
In the case at bar, the defendant made a statement against his interest immediately after he was read his constitutional rights. The defendant was then transported to the police station, where Officer Spivey again read the Miranda warning and offered a written waiver for his signature. The defendant refused to sign the waiver. At *818 trial, the state specifically asked about this refusal: "Did he give you any explanation as to why, or...." The officer answered:
In light of the defendant's confession, made prior to the assertion of his right to remain silent, there is no explanation for the state's reference to the defendant's refusal to make further comment without counsel, other than as an attempt to discredit the defendant in the eyes of the jury.
Moreover, the trial court was in error when it stated:
A person may assert his constitutional rights at any time. He may answer questions if he wishes, but he may stop at any time. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). It was error for the trial court to conclude in substance that when the defendant waived his right to remain silent by making a statement to the police at the scene of the crime, he could not reclaim the right to remain silent at the police station and keep that assertion from being used against him in court.
We hold that the defendant's constitutional right to remain silent was violated by the state's inquiry at trial about the defendant's assertion of that right. The constitutional violation was aggravated by the trial court's statement about the effect of the defendant's ever making a statement against his interest. Accordingly, the trial court erred in overruling the defendant's motion for mistrial and the Court of Criminal Appeals erred in affirming the conviction. The judgment of the Court of Criminal Appeals is reversed and the cause is remanded.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur. | July 10, 1987 |
d9283545-05e4-4203-8c7c-a39490b8cfd5 | Spears v. Colonial Bank of Alabama | 514 So. 2d 814 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 814 (1987)
Kennie J. SPEARS and Handy Wilson, Jr.
v.
COLONIAL BANK OF ALABAMA, Colonial Banc Corporation, and Jim Burke Buick, Inc.
85-857.
Supreme Court of Alabama.
June 19, 1987.
Rehearing Denied September 18, 1987.
Leo E. Costello, Birmingham, for appellant.
Susan B. Mitchell and Michael A. Anderson and Stanford J. Skinner, Birmingham, for appellee.
PER CURIAM.
This case originated as a class action against Colonial Bank of Alabama and Colonial *815 Banc Corporation (both hereinafter referred to as "Colonial Bank"), and Jim Burke Buick, Inc. ("Jim Burke"), for alleged violations of the Alabama Mini-Code (Code 1975, § 5-19-1, et seq.); for alleged improper credit of insurance premium refunds; and for alleged conversion. The named plaintiffs, Kennie J. Spears and Handy Wilson, Jr., sought to represent a class of all individuals who had purchased automobiles from Jim Burke, the purchases of which, along with premium payments for credit life and credit disability insurance, were financed by Colonial Bank.
The plaintiffs allege that Jim Burke required them to purchase credit life and diability insurance in order to purchase the automobiles, and that the price of this insurance exceeded the premium charged by the insurance company, all in violation of § 5-19-20. In essence, they contend that Jim Burke's receipt of a commission of 50 percent of the premium from each sale of credit insurance was in violation of the Mini-Code.[1]
Spears and Wilson, individually, allege that property damage insurance interest refunds were improperly credited by Colonial to Jim Burke's reserve account; that, as to Wilson alone, Jim Burke misrepresented the odometer reading on the automobile purchased by him; and that, as to Spears only, Colonial Bank wrongfully converted a $426 insurance refund owed to him.[2]
Colonial Bank and Jim Burke filed motions for summary judgment on each of the plaintiffs' claims and a motion to dismiss all class-action claims. The circuit court entered two separate orders on the defendants' motions.
The first order dealt with only one issue:
The trial court ruled that § 5-19-1, et seq., does not "prohibit car dealers or other companies making loans covered by such sections from receiving commissions on the various types of insurance allowable under § 5-19-20, so long as all other provisions of those sections are met."
The court held that the premiums charged to the named plaintiffs were within the amounts allowed by the applicable statutes, rules, and regulations. It found, therefore, that Colonial Bank and Jim Burke were entitled to summary judgment on this theory of the plaintiffs' claims. The court also found that Colonial Bank's and Jim Burke's motions to dismiss all class-action claims were due to be granted, because the only issue supportive of the class certification was decided adversely to the plaintiffs by summary judgment.
By separate order, the trial court rendered summary judgment in favor of the defendants on all remaining claims, except the plaintiffs' claims that Jim Burke required the plaintiffs to purchase insurance and that Jim Burke misrepresented the mileage on the automobile purchased by Wilson. These claims remain pending against Jim Burke. The summary judgments granted in favor of the defendants were made final pursuant to Rule 54(b), A.R.Civ.P., and the plaintiffs appeal.
In summary, then, we discern from the pleadings, the orders of the trial court, and the briefs and arguments of counsel that the only dismissed claims here presented for review are the plaintiffs' claims for wrongful payment of commissions in violation of the Mini-Code.
We hold that the trial court did not err in its determination that § 5-19-20(a) does not prohibit Jim Burke, as a creditor, *816 from receiving a commission on its sale of insurance to the plaintiffs, as debtors.
Jim Burke had arrangements with various insurers, whereby, for every policy sold to its customers, it would remit the entire premium to the insurer.[3] Thereafter, for each credit life and disability policy sold, the insurer would compensate Jim Burke by payment of a sum equal to 50 percent of the premium costs, a payment which plaintiffs contend is more correctly characterized as an illegal kickback, rather than a commission. They contend that § 5-19-20(a) prohibits a creditor from charging more than the actual coverage costs, and that only 50 percent of the premium actually paid represented the full amount charged by the insurer.
Colonial Bank states, and the record bears out, that, while its loans to the plaintiffs included the premium payments, it did not receive a commission. Jim Burke argues that the Mini-Code, and regulations promulgated pursuant thereto, permit receipt of a commission on the sale of credit insurance. It contends that the plaintiffs' definition of "premium," which would exclude commissions made thereon, is strained. Further, Jim Burke points out that § 5-19-21 provides that an "administrator is authorized and empowered to make such reasonable rules and regulations as may be necessary for the execution and enforcement of the provisions of this chapter," and that the insurer and Jim Burke relied on these rules and regulations in setting rates for credit insurance.
The plaintiffs urge us to consider this case in light of the underlying tenor of the Mini-Code, which is that of consumer protection. The plaintiffs' premise is correct. Derico v. Duncan, 410 So. 2d 27, 31 (Ala.1982) ("the provisions of Code 1975, § 5-19-1, et seq., `Consumer Finance,' known collectively as the Mini-Code, are regulatory in nature and are for the protection of the public, specifically, the consumer/debtor"). Thus, construction of the statute in this case must be made with the protection of the consumer in mind.
Section 5-19-20 provides, in pertinent part:
The key to this Court's consideration of whether § 5-19-20 was violated is a determination of the meaning of "premium." There being no definition of "premium" in the Mini-Code, we look to the case law. In Reid v. United Security Life Ins. Co., 290 Ala. 253, 256, 275 So. 2d 680 (1973), the Court defined "premium" as "the amount paid to the insurer by the insured for the insurance," and the Court added, "`Premium' has been defined as the sum which the insured is required to pay, and in its proper and accepted sense it means the amount paid to the company as consideration for insurance." Thus, because it is a cost of procuring the insurance, a premium may include the commission paid to the seller of the insurance.
The Alabama State Banking Department has promulgated rules and regulations establishing and authorizing the maximum single premium rates for credit life insurance and credit disability insurance. The superintendent of banks of the state banking department is empowered to make such rules and regulations as are reasonably necessary for the execution and enforcement of the provisions of the Mini-Code, *817 pursuant to § 5-19-21. All parties agree that the premiums charged to the plaintiffs for the various insurance coverages were within the lawful maximum rates established by the state banking department.
Because the premiums charged to the plaintiffs, as debtors, were within the maximum lawful rates, there has been no cognizable violation of the Mini-Code, nor of the rules and regulations promulgated pursuant thereto. Absent any evidence to support the claim that § 5-19-20(a) was violated, we find no error requiring reversal of the defendants' summary judgment on the payment-of-commissions issue. Thus, it is axiomatic that the trial court did not err in granting the defendants' motions to deny class certification on this theory of the plaintiffs' claims.
AFFIRMED.
MADDOX, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
JONES, J., concurs specially.
BEATTY, J., recused.
JONES, Justice (concurring specially).
I concur in the opinion affirming the summary judgment on the plaintiffs' claims based on the defendants' alleged violations of the Mini-Code. I write separately to express my concern that we may have overly narrowed the intended scope of the trial court's ruling. The record is not entirely clear whether the trial court intended its partial summary judgment to embrace an additional claim on behalf of each of the plaintiffs.
Paragraph 14 of the plaintiffs' amended complaint states:
The trial court's two separate orders addressed separately each of the plaintiffs' asserted claims, except the claims set out in paragraph 14, denied the defendants' summary judgment motions as to "the allegation that Jim Burke required the plaintiffs to purchase the insurance, and the allegation by the plaintiff, Handy Wilson, that Jim Burke misrepresented the mileage on the automobile that he purchased," and granted the motions "on all the remaining claims against [both defendants]."
The plaintiffs devote only two paragraphs of their brief to the breach-of-duty claims. Jim Burke's brief argues only the alleged Mini-Code violations, contending that none of the other claims asserted below is relevant to this appeal. On oral argument, the plaintiffs limited their presentation to the Mini-Code issue, apparently conceding Jim Burke's position with reference to the sole relevant issue presented for appellate review.[1]
It is conceivable, even probable, that the trial court perceived the plaintiffs' "paragraph 14" allegations as merely supplemental to their claims that Jim Burke required the plaintiffs to purchase the insurance (these claims are still pending below). At any rate, such an interpretation is consistent with the trial court's order addressing specifically the claims on which it granted summary judgment and with Jim Burke's contention that the Mini-Code claims are the only relevant claims here presented.
Nevertheless, because we may have misread the scope of the trial court's summary judgment, I deem it appropriate to address the "agency relationship" issue.
The plaintiffs' arguments as to the problems inherent in the sale of credit insurance are well taken. The fact that the creditor is allowed compensation under the language of § 5-19-20 results in a clear probability of expensive credit insurance for the consumer. As pointed out in *818 Fonseca, Handling Consumer Credit Cases § 12:10, pp. 494-99 (1986), because insurers compete against each other to place their business with creditors, the creditor is in a position to choose the insurer that offers it the highest compensation for every dollar of insurance sold. "Since Consumer has no voice in determining these rates, and since he is a non-shopping `captive' in the sense that the sale of insurance will only come up as an incidental matter after the credit transaction is completed, the premium rate has been set high by `reverse competition.'" Fonseca, at 495-96.
These observations notwithstanding, however, Jim Burke's liability, if any, under general agency law, can only be determined once its status as an insurance "agent" or as an insurance "broker" is ascertained.[2]
Section 27-8-1 defines "agent" and "broker"[3]:
". . . .
Generally, agents and brokers have been distinguished by the fact that an insurance agent is "one employed by an insurance company to solicit risks and effect insurance," while a broker "is one who acts as a middleman between [the] insured and the company; one who solicits contracts from the public under no employment from any special company, but [who,] having secured an order[,] places the insurance with the company selected by [the] insured, or, in the absence of any selection by him, with the company selected by such broker." 44 C.J.S. Insurance § 136, at 797 (1945).
The question of whether a person is an insurance agent or is a broker is generally determined by his acts. But categorizing the creditor that procures credit insurance for its customers, primarily to protect the creditor from loss, is not so easily done. The creditor that procures such insurance presents a unique situation. There is authority for finding that the seller of goods is regarded as acting as the agent of the insurer. 3 Couch on Insurance 2d § 26:127, pp. 752-53 (1984). Where such is held, however, the rule usually protects the debtor/consumer in actions between the insured and the insurer. See Strait v. Ray North, Inc., 343 Mich. 130, 72 N.W.2d 39 (1955); Pacific Finance Corp. v. Moody, 272 S.W.2d 403 (Tex.Civ.App.1954).
Three observations are pertinent here: 1) The above referenced authorities are of pre-Mini-Code origins in which the courts, for insurer liability purposes, were unwilling to recognize the creditor as a shield between the insured and the insurer; 2) the *819 broker status of retailers who sell insurance is now statutorily mandated in contests between the insurer and the insured (see § 27-8-5(c)); and 3) it is not the status of Colonial Bank (which is the ultimate creditor, but which is neither agent nor broker), but the status of Jim Burke, as broker or agent, that is the subject of our inquiry.
The United States Supreme Court, in a case challenging the validity of a Virginia regulatory statute, pointed out:
This description of "broker" aptly describes an entity in Jim Burke's unique position. Clearly, the bargaining power of potentially thousands of customers each year puts Jim Burke in a situation where it can obtain the "most favorable terms from competing [insurance] companies." While brokers generally seek to obtain the most favorable terms for their clients, the creditor broker uses the competition between insurance companies to obtain the highest compensation for itself. This "reverse competition" results in a high premium rate for the consumer because he has no voice in determining rates, but obtains insurance only as an incident to the purchase of retail merchandise.
In Browder v. Hanley Dawson Cadillac Co., 62 Ill.App.3d 623, 20 Ill.Dec. 138, 142, 379 N.E.2d 1206, 1210 (1978), the court stated:
While Jim Burke's holding "out to employment by the public" is directly linked to its retail sales of automobiles, and not to sales of insurance coverage, the indirectness and subtlety of its insurance operation does not obscure the true nature and character of the relationship between Jim Burke and its customer with respect to its offer of credit insurance incident to its retail sales transactions. Although the sale of credit life and credit disability insurance, which the seller cannot require the purchaser to buy (§ 5-19-20), is merely incidental to Jim Burke's automobile sales, the dealership's insurance operation earned profits of $167,874.88 in 1982 and $231,354.86 in 1983.[4] Thus, Jim Burke, which "is not permanently employed by any principal" (see Browder, supra), and is not tied to any one insurer, but has the freedom to "shop around," cannot be classified, as a matter of law, as an insurance agent in the classical sense of that term.
It is the agent's or broker's duty, in all transactions concerning or affecting the subject of the agency, to exercise reasonable skill, care, and diligence with regard to the principal's interest with utmost good faith and loyalty. Highlands Underwriters Ins. Co. v. Eleganté Inns, Inc., 361 So. 2d 1060, 1065 (Ala.1978); Crumpton v. Pilgrim Health & Life Insurance Co., 35 Ala.App. 363, 46 So. 2d 848 (1950). Not *820 only is there case law support for the proposition that an insurance broker is by definition an agent of the insured, (Highlands Underwriters, supra, at 1065), but § 27-8-4(c) mandates this relationship in certain situations. Specifically, § 27-8-4(c) provides that in any controversy between the insured or his beneficiary and the insurer issuing the policy, the broker who solicits the application for the insured shall be regarded as representing the insured.
Moreover, a strong case may be made for the proposition that it is only by the court's recognizing Jim Burke's status as an insurance broker, rather than as an agent, that the public-protection spirit of both the Mini-Code and the Insurance Code can be effectuated. Under general rules of agency, the law's recognition of the broker status of such retail establishments fixes the duty owed by Jim Burke, as agent, to the plaintiffs/consumers, as principals. And Jim Burke cannot, by self-serving acts, such as choosing to deal with only one insurer, put itself in the classification of an "insurance agent," as opposed to an "insurance broker," and thereby avoid its fiduciary duty to the insured.
On the other hand, a viable alternative approach is supported by the proposition that, ordinarily, the broker/agent status of one who sells insurance is a question of fact (American Pioneer Life Ins. Co. v. Sandlin, 470 So. 2d 657, 665 (Ala.1985)). Under these undisputed facts, whether a retail establishment (e.g., Jim Burke) that provides credit life and credit disability insurance as an incident to the sale of merchandise, is a broker as a matter of law, or whether its broker/agent status is a question of fact should await resolution by the court in an adversary context.
If the broker status of the retailer has been established, whether as a matter of law or as a matter of fact, it necessarily follows that the insured is the principal in the classical principal/agent sense, and that the broker's duty is governed by the general law of agency. It is the implied duty of the agent, in all transactions affecting the subject of the agency, to give his principal his best judgment and recommendations. Highlands Underwriters, supra, at 1064. Advice as to the price of the insurance and the availability of less expensive comparable insurance certainly would be included in the agent's duty to give the principal his best judgment and recommendations. Further, if the factfinder, under appropriate instructions, should determine that the retailer has breached its duty as broker, then it should determine the damages, if any, proximately resulting therefrom to the insured, as the retailer's principal.
[1] The plaintiffs sought to include in the class "all the persons who have purchased credit life insurance from defendants or disability insurance from the Defendant and whose applicable statute of limitations to bring said action has not expired." Class certification, however, was sought only as to the plaintiffs' claims based on wrongful receipt of commissions.
[2] The claims for improper credit of refunds and for conversion are totally unsupported by the evidence of record and do not merit further discussion.
[3] All life insurance procured by Jim Burke on behalf of its customers was placed with one company. Volunteer State Life Insurance Company, while two companies, MIC and Autry Insurance Agency, handled the property insurance of Jim Burke's customers.
[1] In support of their claim of alleged Mini-Code violations, the plaintiffs contend that Jim Burke is not a licensed insurance agent or broker. Neither in their pleadings, nor in their briefs, however, do they treat Jim Burke's alleged violations of the licensure provisions of the Insurance Code (§ 27-8-1, et seq.) as a separate claim.
[2] Because the evidence conclusively excludes Colonial as a possible insurance broker or agent in the instant transaction, summary judgment in any event would be appropriate as to Colonial.
[3] For the sake of clarity, it should be noted that "insurance agent" and "insurance broker" are technical terms used to describe the two classifications of persons who sell, procure, produce, or otherwise obtain insurance business, and are not to be confused with the term "agent" as used in the classical principal/agent context. For example, an insurance broker is an agent within the contemplation of the law of agencythe query being, "Who is the agent's principal?"
[4] All of the salespeople involved in the sale receive a small percentage of the commission (as an incentive to sell the customer credit life and disability insurance), with the major portion going to the dealership. While the evidence shows that from 1982 through May 1984, Jim Burke employed two licensed agents, it is the salespersons who actually "sell" the insurance to the customersnot necessarily the licensed agents. | June 19, 1987 |
084c9805-ef96-48b0-9c02-131889f110ad | Bolton v. MOBILE CTY. BD. OF SCH. COM'RS | 514 So. 2d 820 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 820 (1987)
Clovis W. BOLTON
v.
BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, et al.
85-1237.
Supreme Court of Alabama.
June 19, 1987.
Rehearing Denied September 18, 1987.
*821 Henry H. Caddell, Mobile, and Terry G. Davis, Montgomery, for appellant.
Jon A. Green and Robert C. Campbell III, Mobile, for appellees.
JONES, Justice.
This is an appeal from the order of the Mobile Circuit Court denying Plaintiff Clovis W. Bolton's petition for an alternative writ of mandamus.[1] We reverse and direct that the writ be granted.
On June 26, 1985, Defendant Board of School Commissioners of Mobile County (the "Board") voted to give notice to Bolton of the Board's proposed termination of Bolton as a nonprobationary full-time employee. The Board notified Bolton in a letter on July 19, 1985, of the proposed termination. The letter set out specific grounds for Bolton's termination under the general headings of failure to perform his duties in a satisfactory manner, neglect of duty, insubordination, immorality, and "other good and just causes." In this same letter the Board informed Bolton of his right to file an intention to contest the proposed termination within 15 days after receipt of the Board's letter.
The Board's letter of July 19 concluded:
On August 5, 1985, Bolton notified the Board, in a hand-delivered letter, of his intention to contest the proposed termination. Bolton also requested that the procedures of §§ 36-26-105, -106 be carried out through his legal representatives, whose names were supplied in Bolton's letter. No decision of dismissal was ever issued. Indeed, the Board's letter of July 19 does not contemplate any further action on the Board's part to invoke the appellate process as provided by § 36-26-105. The significance of this missed step in the termination procedure will be treated later in this opinion.
On September 11, 1985, the Board met and again voted to give Bolton a notice of proposed terminationbased on the same facts as those made the basis of the Board's earlier notice. On September 16, 1986, Bolton was notified of the Board's "proposed termination" in a letter identical to that served previously. Within 15 days of receiving the notice, Bolton again filed his intention to contest the proposed termination, and, again, no decision to dismiss Bolton as an employee was ever issued.
On October 11, 1985, Bolton began the instant litigation as an action for mandamus/injunctive relief, seeking to prohibit the Board from proceeding to terminate his employment. On that date, the Mobile Circuit Court issued an alternative writ of mandamus, granting Bolton the relief requested pending a hearing. After entering a joint stipulation of facts, the parties agreed to have the case submitted on briefs, and on June 30, 1986, the trial court denied Bolton's petition, without opinion. Bolton appeals.
The procedure for terminating the employment of a full-time nonteacher or nonclassified school system employee is found in Title 36 ("Public Officers and Employees") of Alabama Code 1975. Chapter 26, Article 4, "Dismissal Procedures for Nonteacher, Nonclassified, etc., Employees in Certain School Systems, Institutions, etc. (also known as the "Fair Dismissal Act") was enacted in 1983 and became effective on July 26, 1983. The portions of the statute here pertinent are as follows:
"§ 36-26-102. Nonprobationary status; causes for termination.
"§ 36-26-103. Procedure for termination of employment.
"§ 36-26-106. Hearing process.
Essentially, Bolton contends that the Board's notice of its intention to terminate his employment contract and its subsequent failure to follow the statutorily prescribed procedures operate as a bar to the Board's authority to re-notice Bolton of the proposed termination on the same grounds as previously alleged. We agree.
The stipulation of facts upon which the parties submitted this issue to the trial court tends to center on the effect of the Board's failure to set into motion the procedure for having the termination dispute resolved within the 60-day period prescribed in § 36-26-106. This approach to the problem is also illustrated in the concluding paragraph of the Board's notice letter of July 19: "If you do not contest your termination within the time allowed, a hearing will be conducted in compliance with Alabama Code 1975, § 36-26-100, et seq...."
This provision of the July 19 letter overlooks one full step in the statutorily prescribed procedure for termination:
Step 1The Board's letter notifying the employee of the proposed termination;
Step 2The employee's letter of intention to contest the proposed termination;
Step 3The Board's decision to dismiss the employee;
Step 4The employee's request for an appeal and hearing;
Step 5The selection of an employee review panel; and
Step 6The hearing and final disposition by the review panel.
The third stepthe Board's decision to dismiss the employeeis clearly contemplated by the "Fair Dismissal Act." Otherwise, there would be no commencing date for the second 15-day period for the filing of "[a]n appeal of the [Board's] decision" under § -105. The first 15-day period, under § -104, commencing with the employee's receipt of the Board's notice of its "intention to terminate," is the time within which the employee must file "an intention to contest the termination of said contract."
When Bolton timely filed with the Board his intention to contest his proposed termination, he was complying with Step 2. Because Step 3the Board's decision to dismiss the employeenever occurred, the 15-day period during which Bolton could file an appeal never commenced to run. Thus, the problem in this case does not center upon the 60-day hearing deadline prescribed by § -106, but upon the failure *824 of the Board to issue an order dismissing Bolton as an employee.
We do agree with the Board that the "Fair Dismissal Act" is not a model of legislative clarity. Indeed, while § -104 expressly provides that the employee may be dismissed upon his failure to file an intention to contest, it does not expressly provide that the board must enter a decision either to retain or terminate the employee upon his election to contest. Further, the dismissal procedure provisions of §§ -105, -106 do not state that it is either party's responsibility to request from the judge of probate the list of possible panel members, thus beginning the hearing process. Nor does the statute provide a procedure to insure that the hearing take place within the 60 days or set out the penalties that may apply when certain deadlines are not met.
These deficiencies, however, do not negate the overall purpose of the "Fair Dismissal Act," that is, to provide nonteacher employees a fair and swift resolution of proposed employment terminations. To be sure, the noted deficiency in § -104 is clearly implied in § -105, providing the employee the right of "[a]n appeal of the decision ... within 15 days of receipt of the board's decision."
As with any statute, "reasonableness" must be read into the provisions of the "Fair Dismissal Act." Despite the poor drafting and the resulting inconsistencies, the Act was not intended to allow an employing school board to maintain a termination proceeding for an indefinite length of time by "beginning" the dismissal procedure through multiple re-votes and re-notices.
We hold that the Board, after instituting the procedure for Bolton's termination and after receiving notification of Bolton's intent to contest, failed to act reasonably or responsibly when it failed to pursue the process it had begun.
The Act, reasonably interpreted, structures a procedure whereby the employee's failure, on the one hand, to give notice that he intends to contest any termination renders the Board's decision to terminate incontestable and final. On the other hand, the employee's timely filed notice of intention to contest "the [proposed] termination" requires the employing board to reconsider its intention to terminate and to render a "decision" if it decides to dismiss the employee.
This statutory structure employs counterbalancing duties and responsibilities for the execution of the termination process. The employee is obligated to give notice of his intention to contest any termination that should occur, or suffer dismissal without the right of appeal or a hearing. Concomitantly, the Board's receipt of the employee's intention to contest the proposed termination obligates the Board to either abandon its original "intention to terminate" or render a decision to dismiss the employee.
While § -104 does not prescribe any specific time period within which the Board must issue the decision to dismiss, after the employee has either given notice of an intent to contest or has failed to give such a notice by the 15th day, we hold that the Board's re-notice on the same grounds was an abandonment of its original notice of intent to terminate. It is thus unnecessary to determine the time period within which the Board could have acted following Bolton's first notice of intent to contest. This would not prohibit the Board, of course, from initiating termination proceedings against Bolton for failure to perform his duties in a satisfactory manner, neglect of duty, insubordination, immorality, or "other good and just causes" occurring after September 11, 1985. The Board would be estopped to re-notice Bolton only for those acts or omissions that had occurred prior to the meeting of the Board at which the Board voted to give Bolton the notice of a proposed termination.
REVERSED WITH DIRECTIONS TO GRANT THE WRIT.
MADDOX, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur.
*825 ALMON, J., concurs in the result.
TORBERT, C.J., dissents.
TORBERT, Chief Justice (dissenting).
I agree with the majority opinion's construction of the "Fair Dismissal Act." However, the parties, understandably, were laboring under a misconception as to the procedural mechanism that was established by this poorly drafted act. The sole issue argued in the trial court is whether the school board lost jurisdiction over the termination proceeding because of the failure to hold a hearing, pursuant to Code 1975, § 36-26-106, on the appeal by Mr. Bolton from the decision to terminate. As the majority opinion correctly points out, no decision to actually terminate was ever made, and, therefore, the proceedings called for by § 36-26-106 never came into play.
The majority opinion notes that the issue is whether the school board "failed to act reasonably or responsibly in pursuing the process it had begun." No evidence was actually presented to the trial court on this issue because it was not argued below, but the stipulation of facts in the record does show that more than 60 days had expired after the school board's decision to notify Mr. Bolton of its intent to terminate his employment and that no decision to actually terminate had been made.
From the record and briefs, it is apparent that all parties were confused as to what steps were required under the act. I am not prepared to conclude that the passage of time alone, under these circumstances, estops the school board from reinstituting termination proceedings. Nor am I prepared to say that the board's "re-notice," under these circumstances, shows as a matter of law "an abandonment of its original notice of intent to terminate." Therefore, I would remand this case to the trial court for it to take evidence and make findings as to whether, under the totality of the circumstances, the school board is estopped.
[1] Because this appeal challenges the circuit court's holding with respect to the action of an administrative board, it should have been filed in the Court of Civil Appeals; or, once filed in this Court, the cause on appeal should have been transferred to that court. We overlooked this fact, however, until after the case had been submitted on oral argument and briefs; therefore, in the interest of judicial economy, we have retained this case for disposition on appeal. By doing so, we are not to be understood as changing or modifying the standard set forth in Kimberly-Clark Corp. v. Eagerton, 433 So. 2d 452 (Ala.1983). | June 19, 1987 |
8d97c45b-e26d-4daf-b657-658709af1910 | Dependable Ins. Co. v. Kirkpatrick | 514 So. 2d 804 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 804 (1987)
DEPENDABLE INSURANCE COMPANY
v.
Elsie Marie Wade KIRKPATRICK.
85-1150.
Supreme Court of Alabama.
May 1, 1987.
Rehearing Denied May 29, 1987.
On Return to Remand June 26, 1987.
Rehearing Denied September 18, 1987.
*805 Arthur F. Fite III, Anniston, for appellant.
Stephen D. Heninger of Hare, Wynn, Newell & Newton, Birmingham, and Frank C. Ellis, Jr., of Wallace, Ellis, Head & Fowler, Columbiana, for appellee.
SHORES, Justice.
Plaintiff, Dependable Insurance Company, filed a declaratory judgment action seeking to determine the rights of defendant, Elsie M. Kirkpatrick, to use a cabin on Lay Lake. Defendant filed a counterclaim for conversion, and plaintiff appeals from a judgment in favor of defendant. We affirm conditionally as to that portion of the judgment awarding compensatory damages and remand with instructions as to the portion awarding punitive damages.
Elsie M. Kirkpatrick was married to G.T. Kirkpatrick in 1947. In 1968 G.T. entered into a 15-year agreement with Alabama Power Company (hereinafter "APCo") for a lot on Lay Lake in Shelby County. There was a provision for a 15-year extension at the end of the primary term. The agreement required G.T. to complete the construction of a dwelling within two years, and the dwelling was completed in 1970.
In 1973, Elsie and G.T. were divorced. The divorce decree stated, in pertinent part:
Elsie used the cabin frequently, had personal items there, and owned all the appliances and furniture in the cabin.
In 1982, Dependable obtained a judgment in the United States District Court against G.T. for $57,461.60. Pursuant to the judgment, G.T.'s interest in the property was sold by a United States marshal at a public sale and Dependable was the purchaser at the sale for $2500.00. By virtue of this sale, Dependable acquired all of the interest of G.T. in and to said cabin and his leasehold interest in the premises.
Prior to the judicial sale, attorneys for the parties entered into settlement negotiations. Tom Crawford, Dependable's attorney, offered to settle for $15,000.00 plus an assignment of the lease on Lay Lake. Richard Bell, G.T.'s attorney, rejected the lease offer and made a counteroffer of cash only. Bell stated that the offer was being made by his client's family and informed Crawford that Elsie would litigate any attempt to dispose of the leasehold interest in the property.
There is no indication that G.T. or Elsie received any notice of the sale; nor were they informed that they might have the right to redeem the property after the judicial sale.
Crawford testified that he advised Dependable's agent, Dan Love, as to when he could enter the cabin. Crawford advised Love to wait until the sale had been confirmed and that thereafter he could dispose of some personal items if it appeared that the items were not being used. Also, he told Love to retain personal items that appeared usable and to find the owners.
Dan Love and Bobby Doggrell first visited the cabin after confirmation of the sale and on this occasion changed the locks on the cabin. On their second visit, a few days later, certain items of personal property were removed from the cabin and taken to the landfill. Although some of the *806 items removed were ladies' clothing, Love testified that he did not know that there was anything in the cabin which belonged to anyone other than G.T.
The declaratory judgment held that Dependable succeeded to all the rights of G.T. in the property except and subject to the right of Elsie to use the cabin in accordance with the provisions of the divorce decree. The jury returned a verdict in favor of Elsie on her counterclaim, awarding $2380.00 as compensatory damages and $150,000.00 as punitive damages.
Dependable first argues that the trial court incorrectly concluded that Elsie had the right to continue using the Lay Lake cabin in accordance with the terms of the divorce decree, notwithstanding the purchase by Dependable at the U.S. marshal's sale. The trial court correctly ruled that the purchaser at an execution sale acquires only such interest as the defendant in the execution had. Barksdale v. Beasley, 260 Ala. 148, 69 So. 2d 280 (1953). The title acquired at an execution sale relates back to the inception of the lien and takes priority over all transfers and incumbrances made subsequent to such inception. Barber v. Beckett, 251 Ala. 569, 39 So. 2d 17, 19 (1949). The purchaser at an execution sale does not acquire interests created, prior to the inception of the lien, in persons other than the defendant in the execution. Therefore, since Dependable acquired the interest of G.T. and his interest was subject to the interest of Elsie, Dependable's interest in the Lay Lake cabin is subject to Elsie's previously created interest.
The appellant next asserts that the trial court erred in denying Dependable's motions for summary judgment, directed verdict, and JNOV or a new trial. Dependable contends that there was no evidence, or that there was insufficient evidence, of any malice or other circumstances on which to base Elsie's claim for punitive damages in the conversion action.
While Dependable does not question the right to recover punitive damages for a conversion, its main argument is that the requisite elements which would entitle Elsie to punitive damages are not present. Punitive damages are justified when the evidence discloses the conversion to have been willfully or fraudulently committed in known violation of law or an owner's rights with circumstances of insult, or contumely, or malice. Raley v. Royal Ins. Co., 441 So. 2d 916 (Ala.Civ.App.1983). If the conversion is committed with the defendant knowing it is a violation of law and another's rights, then, as a matter of law, the conversion itself is legal insult, or contumely, or malice sufficient to justify an award of punitive damages. Roberson v. Ammons, 477 So. 2d 957 (Ala.1985). In the presence of such evidence, punitive damages are within the sound discretion of the jury. Roberson, supra; Roan v. McCaleb, 264 Ala. 31, 84 So. 2d 358 (1955); Roan v. Smith, 272 Ala. 538, 133 So. 2d 224 (1961).
Dependable readily admits that there was evidence presented by which the jury could conclude that a conversion occurred. Additionally, from our reading of the record, we find sufficient evidence to support a finding that the conversion was committed in known violation of the law, as well as in violation of Elsie's rights.
Dependable's attorney had notice of the divorce and of the fact that Elsie planned to litigate to protect her interest in the property. Also, Dependable's argument is inconsistent when it argues that the converted property was abandoned, and yet seeks the court's aid in terminating Elsie's continued use of the property. By taking it upon itself to determine the property rights of another and acting upon its own decision, prior to a court's determination of the property rights, Dependable knowingly violated the rights of another; such a violation is sufficient to justify punitive damages. Roberson, supra.
On the basis of the evidence presented, the trial court correctly allowed the jury to decide the issue of punitive damages.
Dependable contends that the trial court erred in refusing its requested jury instruction regarding advice of counsel as a defense to a claim for punitive damages or *807 as a factor to be considered by the jury. Rule 51, Ala.R.Civ.P. states, in part:
Since Dependable's attorney did not object to the trial court's failure to give this written instruction, this error was not properly preserved and will not be considered on appeal.
Dependable asserts that the trial court erred in denying its motion for JNOV or a new trial on the basis that the compensatory award of $2380.00 was inconsistent with the evidence. On direct examination by Dependable's attorney, Elsie testified as to the value of several of the converted items. From our reading of the record, the total of the values is $1288.00.
It is undisputed that this amount did not include any amount for the value of the belongings of Elsie's deceased son or some clothing belonging to one of Elsie's daughters. However, no evidence was introduced as to the value of these items. Since there was no evidence as to their value, the jury must have speculated in arriving at an award of $2380.00, and an award for compensatory damages cannot be based upon mere speculation. White v. Henry, 255 Ala. 7, 49 So. 2d 779 (1950).
A judgment in excess of the amount authorized by the evidence can be upheld on the condition that the excess be remitted. White v. Henry, supra; Treadwell Ford, Inc. v. Wallace, 49 Ala.App. 308, 217 So. 2d 505 (1973). Therefore, the award of compensatory damages is affirmed on the condition that, within 28 days, the appellee remit $1092.00 of the $2380.00 compensatory damages; otherwise, that award will be reversed.
The next issue is whether it was error for the trial court to deny the motion for JNOV or a new trial made on the grounds that the punitive damages are excessive. Whether punitive damages are excessive depends upon whether the judicial conscience is shocked, and unless prejudice or passion is indicated the award will not be reversed. Foster v. Floyd, 276 Ala. 428, 163 So. 2d 213 (1964); Pinckard v. Dunnavant, 281 Ala. 533, 206 So. 2d 340 (1968). There is no requirement that there be any relationship between actual and punitive damages, Foster v. Floyd, supra, and in certain circumstances, nominal damages alone will support an award for punitive damages. Coastal Concrete Co. v. Patterson, 503 So. 2d 824, 830 (Ala.1987); Walker v. Cleary Petroleum Corp., 421 So. 2d 85 (Ala. 1982); Raley v. Royal Ins. Co., 441 So. 2d 916 (Ala.Civ.App.1983). The award of punitive damages is within the sound discretion of the jury, considering all attendant circumstances. Randell v. Banzhoff, 375 So. 2d 445 (Ala.1979).
However, since this case involves a post-trial motion claiming the punitive damages to be excessive, it comes within the scope and intent of our recent case of Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986). In that case we stated our reluctance to review, without benefit of the trial court's rationale, the issue of remittitur. It was never our intention to automatically remand every case in which "excessiveness" was an issue, and on further review we have narrowed the scope of Hammond so that it does not apply to an award exclusively for compensatory damages where evidence to support the award is clearly in the record. State v. McCurdy Concrete, 507 So. 2d 403 (Ala.1987). In the case at hand, the issue is the alleged excessiveness of the punitive damages. This is precisely the situation Hammond, addressed. We again emphasize that Hammond requires the trial court to state its reasons, in the record, for granting or for denying remittitur. Because the record before us contains no stated rationale for the trial court's denial of the motion for remittitur, we remand this cause for the trial judge's reconsideration in light of Hammond.
The trial court, within its discretion, may order a further hearing on the remittitur matter or may comply with these instructions *808 without a further hearing. In any event, the trial court shall report its findings and conclusions to this Court within 28 days from the date of this opinion.
AFFIRMED CONDITIONALLY IN PART; AND REMANDED WITH INSTRUCTIONS AS TO PUNITIVE DAMAGES.
JONES, ALMON, ADAMS and STEAGALL, JJ., concur.
SHORES, Justice.
On May 1, 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 trial court has complied with the remand instructions and has refused to order a remittitur. That action was properly supported by the trial court's order on remand. The judgment of the trial court is now affirmed.
AFFIRMED.
JONES, ALMON, ADAMS and STEAGALL, JJ., concur. | June 26, 1987 |
7223e62b-b9c9-4298-84ae-a22f74e2983f | Smith v. Bradford | 512 So. 2d 50 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 50 (1987)
Willie Jean SMITH, as mother of Willie Earl Conner, a deceased minor
v.
Ralph BRADFORD.
85-530.
Supreme Court of Alabama.
May 22, 1987.
Rehearing Denied July 24, 1987.
*51 Steven D. Tipler and Michael S. Herring of Tipler, Roden & Hayes, Birmingham, for appellant.
William J. Donald and William J. Donald III of Donald, Randall, Donald & Hamner, Tuscaloosa, for appellee.
BEATTY, Justice.
This action for the wrongful death of a minor has been before this Court previously. Smith v. Bradford, 475 So. 2d 526 (Ala. 1985). All the facts regarding this accident, in which a 13-year-old boy on his bicycle was struck by a state trooper car, are set forth in that opinion.
Suit was brought on two counts: one for negligence and the other for wantonness. After our first remand, the case was retried. The jury returned a verdict for the defendant, Bradford, on both counts. The determinative issue before this Court is whether, in the second trial, the court erred in admitting into evidence testimony as to the defendant's training and instruction in "catch-up" driving, when that driving practice is directly contrary to Code 1975, § 32-5A-7(c). We find that it was error; thus, we reverse and remand.
The evidence at issue showed that "catch-up" driving is a practice taught to state troopers by their instructors. "Catch-up" driving involves catching up to a speed violator without the use of the trooper car's blue lights or siren until the trooper is close enough to identify a violator's tag and vehicle. The testimony showed that Bradford was taught not to use the car's lights and sirens until after he had caught up with a speed violator. Apparently, it was thought that this practice would prevent the violator from initiating a high speed chase in an attempt to elude the trooper. The trial court admitted all the testimony about Bradford's training in "catch-up" driving, despite the fact that the practice of "catch-up" driving is directly contrary to the provisions of Code of 1975, § 32-5A-7(c).
The driver of an authorized emergency vehicle is permitted to exceed the maximum speed limit, but § 32-5A-7(c) provides that "[t]he exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal meeting the requirements of section 32-5-213 and visual requirements of any laws of this state requiring visual signals on emergency vehicles." (Emphasis added.) Bradford was engaged in *52 "catch-up" driving without the use of his car's blue lights or siren at the time he struck and killed Willie Conner.
Apparently, this evidence of "catch-up" driving instruction was admitted for the sole purpose of showing the defendant's lack of wantonness. Smith argues here, as she did at trial, that this evidence was, among other things, both irrelevant to the issues in the case and prejudicial to her because, regardless of the purpose for which it was offered, the evidence tended to establish an "excuse" for the trooper's conduct. We agree with Smith's argument.
Wantonness, or the elements thereof, was defined as follows by this Court in its previous opinion in this case:
"`"Wantonness" is the conscious doing of some act or the omission of some duty under the knowledge of the existing conditions, and conscious that from the doing of such act or omission of such duty injury will likely or probably result.... 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 disaster.... Wantonness may arise after discovery of actual peril, by conscious failure to use preventive means at hand.... Knowledge need not be shown by direct proof, but may be shown by adducing facts from which knowledge is a legitimate inference.'"
475 So. 2d at 528-29 (quoting Deaton, Inc. v. Burroughs, 456 So. 2d 771, 775 (Ala. 1984).
We fail to see how the evidence of "catch-up" training or instruction could be at all relevant to this count of wantonness. As is aptly pointed out by counsel for Smith, there was no claim brought against the trooper's supervisors, and, therefore, no issue of respondeat superior. Bradford's argument that the evidence goes to the question of knowledge is without merit. It begs the question: Knowledge of what? The knowledge gained from having been taught to dangerously operate his vehicle, in violation of the law, could in no way lessen his knowledge that, in fact, the practice of operating the vehicle in the manner taught constituted the doing of an act or the omission of some duty, from which, under the circumstances of this case, it should have been known that it was likely or probable that injury would result.
The prejudice which can result from the admission of such evidence is obvious. It unnecessarily puts before the jury evidence of an "excuse" or "justification" for the conduct which has been committed when there is no legal basis for such an excuse or justification. Such prejudice has long been recognized by this Court as a sufficient basis for reversal. See Maddox v. Hunt, 281 Ala. 335, 342, 202 So. 2d 543, 549 (1967) (wherein it was said: "[N]o custom or usage can prevail which conflicts with an established principle of law.... A custom or usage contrary to a statute ought not to be considered"). See generally, 25 C.J.S. Customs & Usages, § 10, at 121 (1966) ("[A] custom which violates an express command of a statute will not serve as a justification of the violator's conduct"); 21A Am.Jur.2d Customs & Usages, § 31, at 759 (1981) ("[A] usage or custom cannot be relied upon to prevent conduct which would otherwise be regarded as tortious from being illegal").
It follows that the judgment of the trial court must be, and it is hereby, reversed and the cause remanded to the trial court for further proceedings.
REVERSED AND REMANDED.
JONES, ALMON, SHORES and ADAMS, JJ., concur.
TORBERT, C.J., MADDOX, HOUSTON and STEAGALL, JJ., dissent.
TORBERT, Chief Justice (dissenting).
I must respectfully dissent. The majority misconstrues the issue of wantonness in this case. As we said in our previous opinion in this case, "`"Wantonness" is the conscious doing of some act or the omission of some duty under the knowledge of the existing conditions, and conscious that from the doing of such act or omission of *53 such duty injury will likely or probably result....'" 475 So. 2d at 528 (quoting Deaton, Inc. v. Burroughs, 456 So. 2d 771, 775 (Ala.1984)). The majority's discussion of "knowledge" is an exercise in faulty logic. They are basically saying: "catch-up" driving is dangerous; Bradford was taught "catch-up" driving; therefore, Bradford knew that "catch-up" driving was likely to result in injury. There is a gap in such reasoning. Being taught a dangerous procedure does not necessarily mean that one knows that it is dangerous.
The issue in this case is whether Bradford was conscious that from the doing of such act ("catch-up" driving) injury would likely or probably result. He had been taught that "catch-up" driving was the safest procedure in those circumstances; such training is very relevant to the element of consciousness, which is the key to the count of wantonness.
Further, the case of Maddox v. Hunt, 281 Ala. 335, 202 So. 2d 543 (1967), dealt with the inadmissibility of custom contrary to statute in the context of setting aside a default judgment. Wantonness was not at issue in the Maddox v. Hunt discussion as to the admissibility of custom. Counsel has not cited any case that holds that evidence of this sort is not admissible on the issue of wantonness, and I have not found any. Wanton or willful misconduct implies mental action. Thompson v. White, 274 Ala. 413, 420, 149 So. 2d 797, 804 (1963). Since consciousness is a key element of wantonness, I would hold that the trial court did not err when it admitted evidence of Bradford's training in "catch-up" driving.
MADDOX, HOUSTON and STEAGALL, JJ., concur.
MADDOX, Justice (dissenting).
The defendant here has been tried twice, and this is the second time this case has been here. At the first trial, a jury found the defendant trooper not guilty of simple negligence. On the first appeal, I authored the opinion for the Court, which reversed the judgment for the defendant trooper because the trial judge failed to instruct the jury on wantonness.
On this second appeal, the majority has found that the trial judge committed prejudicial error in admitting evidence of the defendant's training and instruction in "catch-up" driving. I do not believe this was error, and I concur with what the Chief Justice has written in his dissent on this point, but, even assuming it was error, I believe it was harmless. Rule 45, Ala.R. App.P., provides that "[no] judgment may be reversed or set aside, nor new trial granted in any civil ... case on the ground of ... the improper admission ... of evidence,... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties." (Emphasis added.) After an examination of the entire cause, and being aware that two juries have now exonerated the defendant trooper, I would not authorize a new trial; therefore, I must respectfully dissent. | May 22, 1987 |
5914f7f1-37b8-407c-a201-1d3f8ecc1d31 | Hollis v. Wyrosdick | 508 So. 2d 704 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 704 (1987)
C.H. HOLLIS, Individually, and C.H. Hollis Timber Company, Inc.
v.
Rudolph WYROSDICK, et al.
85-970.
Supreme Court of Alabama.
June 5, 1987.
Mark Vaughan of Cannon & Vaughan, Elba, for appellants.
Warren Rowe of Rowe, Rowe & Sawyer, Enterprise, for appellees.
JONES, Justice.
This is an appeal from a jury verdict for the plaintiffs in a landowners' suit against the defendants, C.H. Hollis and the C.H. Hollis Timber Company. (The two defendants shall be referred to as "Hollis".) We affirm.
*705 The plaintiffs, Rudolph Wyrosdick and his wife Jeanette, and Eddie Hill and his wife Judy, are coterminous landowners whose lands share a common boundary line with property owned by John N. Swartz. In September 1983, Swartz executed a timber deed to Hollis, which, for a stated consideration, conveyed to Hollis all the merchantable pine and hardwood timber on Swartz's land.
Before the timber-cutting operation began, Hollis sent a forester to survey and mark the landline; the loggers were to follow the marks, which were to prevent intrusions by the loggers onto the plaintiffs' adjacent property. The forester determined the property line to be an old barbed wire fence which ran in a true north-south direction along what he perceived as the plaintiffs' western boundary. The forester "flagged" the fence as the boundary line for the logging operation. No trees were cut beyond the fence; however, as the plaintiffs' surveyor testified, the fence was approximately 50 to 100 feet east of the actual property line as determined by survey.
Although the parties' property lines are disputed, it is undisputed that the land belonging to Swartz (identified as "Section 25" in the maps and documents at trial) does not meet the requirements for an "ordinary section," as that term is used in the legal description of land. The plaintiffs' surveyor was questioned on this point at trial:
The plaintiffs filed suit against Hollis in the summer of 1984. The original complaint requested that the trial court determine the boundary between the plaintiffs' land and Swartz's land and enjoin Hollis from asserting any rights in the plaintiffs' lands. The complaint went on to allege that Hollis had committed trespass and conversion, and that Hollis had cut and removed 575 trees from the plaintiffs' lands; Hollis was alleged to be liable to the plaintiffs for the full value of the 575 trees and for an alleged diminution in value of the plaintiffs' real estate.[1]
During the second day of trial, the plaintiffs were allowed to amend their complaint for purposes of "clarification":
The jury found for the plaintiffs and returned verdict forms which read:
Hollis's post-trial motions for a judgment notwithstanding the verdict and for a new trial were denied. This appeal followed.
In support of the argument for reversal, Hollis claims that the jury arrived at the verdict amounts by using the computations set out in § 35-14-1. Therefore, says Hollis, in order to use the statute as a guide for assessing damages, the jury necessarily found that Hollis willfully and knowingly entered the plaintiffs' property and cut the plaintiffs' trees without the consent of the plaintiffs'a conclusion which Hollis maintains is unsupported by the evidence.[3]
We will assume without deciding that the evidence of record does not support a finding that Hollis willfully and knowingly, without the consent of the plaintiffs, wrongfully entered the plaintiffs' property and cut the trees thereon. We can not say, however, that the jury's verdicts are unsupported by the evidence, nor do we find the verdicts to be improper in light of the evidence. Despite our assumption of a lack of evidence of willful or knowing misconduct, there was sufficient evidence from which the jury could have concluded that Hollis's logging operation did cause a trespass onto the plaintiffs' property and a conversion of the plaintiffs' timber. Further, in its instructions to the jury, the trial court clearly explained each claim made by the plaintiffs, set out the prerequisites for finding for the plaintiffs on their claims, and explained the defenses asserted by Hollis and the prerequisites for application of the defenses.
We are also unable to find error in the amount of the damages assessed by the jury. The assessment of damages, where the damages are shown by competent evidence, is within the sound discretion of the jury (Feazell v. Campbell, 358 So. 2d 1017 (Ala.1978)), and those damages, once assessed, are presumed correct. See Hickox v. Vester Morgan, Inc., 439 So. 2d 95 (Ala. 1983); Cooper v. Peturis, 384 So. 2d 1087 (Ala.1980). Particularly is this true where, as here, the jury, by way of a special verdict, based its award of damages on the trespass and conversion claim and not on the statutory penalty claim.
At trial, the plaintiffs testified regarding the actual damages suffered as a result of the logging operation on their land. Wyrosdick stated that he had counted 367 stumps and that the small growth was completely demolished. Hill testified to a stump count on his property of 208. The ground was damaged by track marks and the debris from the logging operation was left on the plaintiffs' property. Wyrosdick estimated that the per-acre value of his damaged land was $1,000-$1,500 before the cutting, but was only about $125 after the logging operation ended; and both sets of plaintiffs stated that the cost of cleaning *707 up their damaged land would equal or exceed the property's worth.
We recognize that the damages reflected in the two verdicts equals the product of a § 35-14-1 computation.[4] Where, however, as here, the evidence of the injury sustained by the plaintiffs clearly supports a damages award in the amount assessed by the jury, the method of computation of the verdict amount based on that evidence will not be questioned on review, either by the trial court on post-judgment motion or by this Court on appeal. See Nationwide Mutual Ins. Co. v. Smith, 280 Ala. 343, 194 So. 2d 505 (1966); U-J Chevrolet Co. v. Marcus, 460 So. 2d 1341 (Ala.Civ.App.1984); Argo Water & Fire Protection [Authority] v. Keith, 441 So. 2d 958 (Ala.Civ.App.1983). Indeed, under the most favorable view of the plaintiffs' evidence of damages, the challenged method of computation inured to the decided advantage of the defendants.
AFFIRMED.
SHORES, ADAMS, HOUSTON, and STEAGALL, JJ. concur.
[1] Hollis sued Swartz, in a third-party action, for breach of warranties in the timber deed. The jury found for Swartz on this claim. Swartz counterclaimed against Hollis, alleging a failure to "wind row" and properly clean up Swartz's land after the logging operations ceased. The jury found for Hollis on this claim. These actions are not before us on this appeal.
[2] Code. 1975, § 35-14-1
"(a) Any person who cuts down ... any cypress, pecan, oak, pine, cedar, poplar, walnut, hickory or wild cherry tree, or sapling of that kind, on land not his own, willfully and knowingly, without the consent of the owner of the land, must pay to the owner $20.00 for every such tree or sapling; and for every other tree or sapling, not hereinabove described, so cut down... must pay to such owner the sum of $10.00.
"....
"(c) Actions under this section may be joined with actions for trespass, for cutting, injuring or removing timber."
[3] Hollis also challenges the propriety of the trial court's allowing the amendment of the complaint. We reject this challenge for two reasons: 1) The amendment did not add a new claim, but merely "clarified" allegations made in the plaintiffs' original statement of their claim; and 2) the claim asserted in the amendment was rejected by the jury.
[4] 367 Wyrosdick stumps × $20 = $7,340
208 Hill stumps × $20 = $4,160 | June 5, 1987 |
d7f638f2-8111-4d86-a0d6-af23a146737f | Williams v. Robinson | 512 So. 2d 58 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 58 (1987)
Maurine WILLIAMS
v.
Ralph R. ROBINSON.
85-1055.
Supreme Court of Alabama.
May 29, 1987.
Rehearing Denied July 24, 1987.
J. Allen Brinkley of Brinkley & Ford, Huntsville, for appellant.
William T. Mills II of Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellee.
BEATTY, Justice.
A summary judgment was granted to Dr. Ralph R. Robinson in a medical malpractice action filed against him by Maurine Williams. That judgment was made final pursuant to Rule 54(b), A.R.Civ.P., and Ms. Williams appeals.
On December 10, 1982, Ms. Williams was admitted to the Summit Medical Center ("Summit") to have an abortion performed. Dr. Robinson performed an operation intended to terminate Ms. Williams's pregnancy by using a vacuum, or suction, procedure. After the procedure was completed, Ms. Williams was taken to a "recovery room." There, a nurse gave her either a prescription or actual antibiotic tablets (the testimony is unclear as to which) and also gave her instructions that she not take "sit-down baths" or engage in sexual intercourse at any time during the next three weeks. She was also told that she was to return for a "follow-up" visit in three weeks.
The next morning, Ms. Williams, who had had a successful abortion on a previous occasion, began noticing that she felt different this time than she had after the earlier abortion procedure. She was still having morning sickness. She was also *59 experiencing cramping and "spotting." Based upon her earlier experience, Ms. Williams believed she should have been experiencing heavier bleeding. When these symptoms had not dissipated by December 14, she decided to seek help. She dialed a toll-free telephone number which had been given to her before she left Summit. A woman answered the telephone, and Ms. Williams asked her if she could speak with a nurse. The woman informed her that a nurse was not available, but asked if she could help. Ms. Williams described her symptoms and explained that she still felt as if she were pregnant. The woman replied that the cramping and spotting were normal and that, as far as the morning sickness was concerned, it was simply a "neurotic reaction" to the procedure that had been performed. The symptoms, however, continued.
On December 18, at about 1:00 p.m., Ms. Williams again called the number she had been given before she left Summit. Again, the person answering the telephone informed her that a nurse was not available to talk to her. However, this time Ms. Williams insisted, and another person was called to the telephone. She explained to that person that she was still having cramping and morning sickness. Further, she told the person that the bleeding had totally ceased. The person informed her, as she had been informed the first time, that these symptoms were not abnormal.
After the telephone call, Ms. Williams rested in bed until about 4:00 p.m., when she began experiencing sharp pains in her stomach. She got up and tried to get to the bathroom, but fainted. When she regained consciousness, she felt very cold, and, yet, her hands were sweaty. She attempted to get help, but fainted again as she opened her door. A neighbor saw her and came to her aid. An ambulance was called, and Ms. Williams was taken to a Huntsville hospital. Once there, she underwent emergency, lifesaving, exploratory surgery which revealed a pregnancy in one of Ms. Williams's fallopian tubes.
On January 27, 1984, Ms. Williams filed suit against both Dr. Robinson and Summit, alleging that they had negligently performed the abortion, had negligently failed to advise Ms. Williams of the risk of the abortion procedure, had negligently failed to provide post-operative care, had negligently failed to utilize that degree of skill and care required of such hospitals and physicians, had negligently failed to inform her of the dangers of an ectopic pregnancy, and, finally, had negligently failed to diagnose an ectopic pregnancy.
Dr. Robinson filed an answer denying these allegations. Subsequently, after discovery was completed, he moved for summary judgment, arguing that Ms. Williams had "failed to produce even a scintilla of evidence that this defendant violated any standard of care which proximately caused the Plaintiff's injuries."
The trial court, while discussing only two issues, rendered judgment in favor of Dr. Robinson. These issues concerned (1) the failure of Dr. Robinson to diagnose the ectopic pregnancy and (2) his failure to provide adequate follow-up care. In rendering judgment for Dr. Robinson, the trial court expressly, and inexplicably, discounted the testimony of the plaintiff's medical expert, Dr. Josefino C. Aguilar, which was to the effect that Dr. Robinson had, indeed, violated the appropriate standard of care both in failing to diagnose the ectopic pregnancy and in failing to provide proper follow-up care. Specifically, it determined the following to be true, even though Dr. Aguilar testified to the contrary:
(1) That the presence of chorionic villi in the substance taken from the uterus always means that there was an intrauterine pregnancy, and
(2) That there is no evidence that Dr. Robinson breached the appropriate standard of care.
Our standard for reviewing a summary judgment is the same standard as that used by the trial court in ruling on motions for summary judgment. Long v. Bankers Life & Casualty Co., 294 Ala. 67, 311 So. 2d 328 (1975). When a summary judgment has been granted for a defendant on the ground that the plaintiff has failed to prove a cause of action, we look to see if there is *60 any evidence which would be legally admissible at trial as to every essential element of the cause of action. Welch v. Houston County Hospital Ass'n, 502 So. 2d 340 (Ala.1987); Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala.1986). In determining whether there is any evidence of every element of a cause of action, we must review the record in the light most favorable to the plaintiff and resolve all reasonable doubts against the defendant. Autrey v. Blue Cross & Blue Shield of Ala., 481 So. 2d 345 (Ala. 1985). There must be no genuine issue of material fact, and the moving party must be entitled to judgment as a matter of law. Silk v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 437 So. 2d 112 (Ala.1983). The trial court is not permitted to resolve any factual issue; such resolution is for the jury. Ingram v. Akwell Industries, Inc., 406 So. 2d 897 (Ala. 1981).
Our review of the record indicates that the trial court has either erroneously failed to consider certain evidence in reaching its conclusion or has erroneously made findings of fact on these controverted issues. We take this occasion to point out only a few of the pertinent portions of the record.
The following is an excerpt from the affidavit of Dr. Aguilar, which was submitted in support of Ms. Williams's first response to the defendant's motion for summary judgment. We quote the substance of this affidavit in full:
In the plaintiff's second response to the defendant's motion for summary judgment, she specifically referred the court's attention to, among other things, portions of Dr. Aguilar's deposition. We quote the pertinent portions:
He later contrasted the findings in this report with those made in a report following the emergency follow-up procedures:
Finally, in her third response to the defendant's motion for summary judgment, another affidavit of Dr. Aguilar is attached. This includes the following:
"... As previously stated, this doctor undertook to end her pregnancy. ... A professional who assumes this responsibility is under a duty to do it right. If he permits a phone answering lady to screen his calls, that lady is his responsibility. If she gives the wrong medical advice, it is his responsibility.
"`The products of conception appeared normal and the fetal age was six (6) weeks. The patient was sent to the recovery room in good condition.'
Should the plaintiff have produced anything more in order to satisfy the requirements of the scintilla rule? Clearly, there is at least a scintilla of evidence as to each element of Ms. Williams's negligence cause of action. Genuine issues of material fact exist.
The foregoing considered, the judgment of the trial court is reversed, and this cause is remanded for further proceedings.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON and SHORES, JJ., concur.
TORBERT, C.J., and HOUSTON and STEAGALL, JJ., dissent.
ADAMS, J., not sitting.
HOUSTON, Justice (dissenting).
Ms. Williams was pregnant. She contacted Summit Medical Center and made an appointment to have her pregnancy aborted. The year before the medical procedure *64 made the basis of this suit, Ms. Williams had had an abortion at another clinic without complications. She attended a counseling session at Summit and reviewed forms, including a form entitled "Consent to Abortion," which contained the following:
In her deposition Ms. Williams testified that she recalled being told of the risks associated with the procedure. She signed and acknowledged receipt of the "Consent to Abortion" form.
Dr. Robinson is a diplomate of the American Board of Obstetrics and Gynecology. At the time the procedure in question was performed on Ms. Williams, he had practiced obstetrics and gynecology for over thirty years and had performed numerous abortions. Dr. Robinson was not an employee of Summit, but an independent contractor.
On December 10, 1982, Dr. Robinson performed a hands-on examination of Ms. Williams and then used a suction device designed to effect the abortion. He examined the substance removed from Ms. Williams and determined that it was the product of conception and represented an intrauterine pregnancy which had been aborted. Subsequently this substance was microscopically examined by a pathologist, whose report showed that it contained fragments of decidual (lining of the uterus wall) and chorionic villi (placenta), which substantiated Dr. Robinson's conclusion that a product of conception had been removed from Ms. Williams.
Ms. Williams was given both verbal and written instructions and an appointment three and a half weeks later at Summit. The appointment was not with Dr. Robinson. Ms. Williams called Summit twice after the procedure, complaining of "feeling pregnant," morning sickness, lack of bleeding, and stomach pains. She never talked with Dr. Robinson, nor did she ask to speak with him. There is no evidence that Summit ever notified Dr. Robinson of her calls.
On December 18, 1982, several hours after Ms. William's second call to Summit, she was taken to a hospital for emergency exploratory surgery. The surgery was performed by Dr. Moses Awoniyi, a board eligible obstetrician and gynecologist. He discovered that Ms. Williams had an ectopic pregnancy (i.e., a pregnancy in the fallopian tube outside the uterine cavity) and aborted it. The fetus removed from the fallopian tube by Dr. Awoniyi showed no signs of necrosis or damage.
The evidence showed that the odds of having an intrauterine and ectopic pregnancy at the same time are 30,000 to 1 and that a physician would not have looked for an ectopic pregnancy after diagnosing an intrauterine pregnancy. This is not contradicted by expert medical testimony.
The majority correctly sets out our standard of review in this case. This being a medical malpractice action, it was encumbent upon Ms. Williams to establish by expert testimony the appropriate standard of care and a breach thereof by Dr. Robinson. Gilbert v. Campbell, 440 So. 2d 1048 (Ala.1983); Rosemont, Inc. v. Marshall, 481 So. 2d 1126 (Ala.1985). This she did not do. There is no evidence that Dr. Robinson failed to advise Ms. Williams of the risks associated with the abortion procedure. In fact, the evidence is clearly to the contrary. Furthermore, there is no evidence that Dr. Robinson was negligent in failing to provide post-operative care. All of Ms. Williams's communications were with Summit. *65 Dr. Robinson was never notified of Ms. Williams's telephone calls.
The majority relies on the deposition and affidavit testimony of Dr. Josefino Aguilar, a board certified forensic pathologist and general medical practitioner, to find evidence of Dr. Robinson's negligence in performing the procedure in question. The thrust of Dr. Aguilar's testimony is that "it is more probable that [Ms. Williams had] a single tubal ectopic pregnancy near the corner of the uterus instead of [a] dual pregnancy." He bases this conclusion on the following:
1) the pathologist's report on the substance removed from Ms. Williams's uterus. Dr. Aguilar testified that in his opinion the report was not thorough enough (while Dr. Aguilar admitted that the report stated that a product of conception (chorionic villi) had been removed, because the product of conception was not specifically described and there was no mention of a fetus, he speculated that a product of conception may not have been present in the sample examined);
2) conceding the presence of a product of conception in the substance removed from Ms. Williams, the possibility that it was actually removed from the fallopian tube (instead of the uterus) by the suction device used by Dr. Robinson; and,
3) the fact that dual pregnancies are rare (the odds against one are 30,000 to 1).
An expert witness may give opinion testimony based upon either facts of which he has personal knowledge or facts which are assumed in a hypothetical question. In either event, our cases are clear that the facts known to the expert or hypothesized must be facts in evidence. Romine v. Medicenters of America, Inc., 476 So. 2d 51 (Ala.1985). Dr. Aguilar's opinion testimony in this case is not based on the undisputed facts which are in evidence. The pathologist's report verified Dr. Robinson's testimony that a product of conception had been removed from Ms. Williams. It was also established that the fetus removed from Ms. Williams's fallopian tube during the December 18 emergency surgery showed no signs of necrosis or damage. Necrosis or damage would have occurred within approximately three hours of the December 10 procedure performed by Dr. Robinson had the suction device used in that procedure removed a product of conception from the fallopian tube. Therefore, Dr. Aguilar's opinion that a product of conception may not have been removed by Dr. Robinson, or that if it had been it was removed from the fallopian tube, is simply not based on the undisputed facts in evidence. The undisputed facts in this case show that chorionic villi are a product of conception and that chorionic villi were removed from Ms. Williams's uterus, not her fallopian tube. Ms. Williams could not have had chorionic villi in her uterus without having a pregnancy there. I agree with the trial court's observation that "the failure of the pathologist to make a statement concerning fetal material or an embryo does not of itself raise suspicion or negate the conclusion that [Ms.] Williams did have an intrauterine pregnancy." Furthermore, the rarity of a dual pregnancy does not in and of itself provide an adequate foundation for Dr. Aguilar's opinion that such a pregnancy did not exist in this case.
There was no legally admissible evidence introduced by Ms. Williams to show that she did not have an intrauterine pregnancy which was aborted by Dr. Robinson. Given this, there is no evidence that Dr. Robinson breached the appropriate standard of care. A physician would not have looked for an ectopic pregnancy after diagnosing an intrauterine pregnancy.
In my special concurrence in Creel v. Brown, 508 So. 2d 684 (Ala.1987), I posed the question of whether a witness's isolated answer to a particular question, removed from the totality of the testimony of that witness which explains or qualifies that answer, satisfies our scintilla-of-evidence sufficiency standard. I remain convinced that it does not. Likewise, I do not believe that a witness's isolated statement removed from the foundation on which that isolated statement is predicated, satisfies our scintilla-of-evidence sufficiency standard. I believe that we must review all of the testimony of a particular witness and *66 review it in the light of all other evidence to determine whether that witness has provided any evidence to take a plaintiff's case to the jury. In this case, if I consider only certain of Dr. Aguilar's opinions expressed in his affidavit, I could logically infer that Dr. Robinson was negligent in his treatment of Ms. Williams. However, if I consider all of Dr. Aguilar's testimony and all other legal evidence introduced, on which Dr. Aguilar's opinion must be based, any gleam, glimmer, spark, or trace of evidence that Dr. Robinson deviated from the appropriate standard of medical care in treating Ms. Williams disappears. Therefore, I must respectfully dissent.
TORBERT, C.J., and STEAGALL, J., concur. | May 29, 1987 |
4dadb1c1-80ac-4365-bd82-d85689505c3e | Camp v. White | 510 So. 2d 166 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 166 (1987)
Patricia CAMP
v.
Dr. Boyce J. WHITE, Jr., et al.
84-1064.
Supreme Court of Alabama.
May 15, 1987.
Rehearing Denied June 19, 1987.
*167 Ralph E. Coleman and Peggy Hale Cook, Birmingham, for appellant.
Curtis Wright of Dortch, Wright & Russell, Gadsden, for appellee Dr. Boyce J. White.
James D. Pruett of Pruett, Hudson, Turnbach & Warren, Gadsden, for appellees Dr. Suraj Sancheti and Dr. H.B. Thompson.
ALMON, Justice.
This is an appeal from a judgment based on a jury verdict rendered in favor of Dr. Boyce J. White, Jr., and a directed verdict granted in favor of Drs. Suraj Sancheti and H.B. Thompson. Appellant brought this action against appellees, alleging that they had committed medical malpractice while treating plaintiff's decedent. Another defendant, Alaco Discount Pharmacy, Inc. ("Alaco"), was dismissed after entering into a pro tanto settlement with appellant. Two issues are presented: (1) Whether the trial court erred in directing a verdict in favor of Drs. Sancheti and Thompson; and (2) Whether the trial court erred in presenting certain charges to the jury.
Plaintiff's decedent, Lorene Camp, 50 years of age at her death, suffered from chronic obstructive pulmonary disease ("COPD"). There is no known cure for COPD and doctors can do no more than control and alleviate the symptoms. The primary symptom is difficulty in breathing. A major concern is the susceptibility of the patient to infection. Mrs. Camp had suffered from COPD for a long time when she made her first visit to Dr. Sancheti in August of 1978. By that time her disease had progressed to a critical point. She was admitted into a hospital then and on nine more occasions prior to her last admission in August 1982. She began using oxygen at home in 1980. By 1982 she required oxygen from eight to ten hours per day. Dr. Frank Sutton, Jr., a specialist in the diagnosis and treatment of COPD, was called by the plaintiff as an expert witness. He gave his opinion that Mrs. Camp's life expectancy as of 1980 would have been around five years and in no event greater than eight. Dr. Sancheti described Mrs. Camp's condition as being in the terminal stage. Nevertheless, after her hospitalization in March of 1982, Mrs. Camp's condition was stable.
During this period, Mrs. Camp developed a sinus problem. She was treated for this problem by Dr. White, an ear, nose, and throat specialist. In the treatment of her sinus problem, Mrs. Camp was erroneously provided with the drug Inderal following a prescription issued by Dr. White and filled by Alaco. Inderal is a drug used primarily in the treatment of heart disease. It acts to settle the heart rhythm and reduce high blood pressure. It also blocks certain nerve fibers in the airways to the lungs. This secondary effect can cause spasms of the bronchial tubes. According to Dr. Sutton's testimony, if someone with an advanced case of COPD took a capsule of Inderal that person almost certainly would experience a bronchospasm that would have serious, if not fatal, consequences. Within two hours of taking one Inderal capsule, Mrs. Camp began to experience difficulty in breathing. She was taken to the hospital emergency room on August 30, 1982, and admitted to the hospital. She remained there until her death on October 3, 1982.
Dr. Sancheti took charge of Mrs. Camp's treatment following her last admission. Medication was administered to counteract the effects of the Inderal. However, Mrs. Camp's condition did not improve, so she was placed in the intensive care unit and connected to a respirator-ventilator. This involved inserting an endotrachial tube through her mouth and into her lungs so that the machine could breathe for her. Theretofore, Mrs. Camp's condition had not required mechanical ventilation. Feeding through a nasogastric tube was begun on September 1. By September 3, she had begun to run a fever and she subsequently *168 developed pnuemonia. Beginning September 4, broad spectrum antibiotics were administered to treat the pneumonia. On September 7, it became necessary to replace the endotrachial tube with a tracheostomy. This secondary procedure involved making an opening in the trachea and inserting the breathing tube directly into the trachea.
Her pneumonia responded to the antibiotics and had cleared by September 15. This was confirmed by X-rays, her white blood count, the absence of fever, and the sound of her chest. Dr. Sanchetti discontinued the antibiotics, having determined that Mrs. Camp was free of infection.
Because of concern over the deleterious effects which result from prolonged attachment to a breathing machine, Dr. Sancheti was anxious to get Mrs. Camp off the machine. Patients so attached lose muscle mass and experience loss of coordination of their respiratory system. This problem becomes acute in someone with advanced COPD. To assist him in weaning Mrs. Camp from the machine, Dr. Sancheti called in Dr. H.B. Thompson. Dr. Thompson was a specialist in lung problems. The two doctors worked to strengthen Mrs. Camp and monitored her progress. By September 20 Mrs. Camp had begun to take nourishment by mouth. The doctors concluded that she had been strengthened as much as possible. On that day, she was disconnected from the respirator-ventilator and transferred out of the intensive care unit.
Mrs. Camp appeared stable for two or three days. Then her condition began to deteriorate. It became obvious that she could not survive on her own and would have to be reattached to the breathing machine in order to live. In the judgment of Drs. Thompson and Sancheti, that would have been a permanent arrangement. The doctors decided that the time had come to discuss the situation with Mrs. Camp's family. A consultation was arranged and the doctors informed the family of the situation and conveyed to them their recommendation that Mrs. Camp not be put back on the respirator-ventilator. The family in turn consulted with Mrs. Camp. She was informed of her situation and of the doctor's opinion that a return to the breathing machine would be permanent. Mrs. Camp was mentally alert. She made the decision not to return to the respirator-ventilator.
Over the next few days Mrs. Camp grew gradually weaker. She remained alert until nearly the end. As her lungs lost their ability to throw off the carbon dioxide, she grew more and more lethargic and finally comatose. On October 3, 1982, Mrs. Camp died in her sleep.
Patricia Camp, as administratix of her mother's estate, filed this action on January 18, 1983. In her original complaint she alleged that Dr. White or Alaco had negligently or wantonly prescribed or negligently or wantonly filled the prescription and that the negligence or wantonness resulted in Mrs. Camp's taking the tablet of Inderal. Subsequently, the complaint was amended to add Drs. Sancheti and Thompson. The amended complaint alleged that Drs. Sancheti and Thompson negligently or wantonly treated or omitted to treat Mrs. Camp. Prior to trial, defendant Alaco entered into a pro tanto settlement with the plaintiff. After presentation of the evidence, Drs. Sancheti and Thompson moved for a directed verdict. The trial court granted their motion and entered judgment in their favor. The claim against Dr. White was submitted to the jury, which returned a verdict in his favor.
Appellant contends that the trial court erred in granting the directed verdict. Appellant argues that there was at least a scintilla of evidence as to three areas of liability on the part of Drs. Sancheti and Thompson.
Her first contention is that Mrs. Camp suffered from a treatable pseudomonas[1] infection and that Drs. Sancheti and Thompson negligently failed to treat this *169 infection. A thorough review of the evidence indicates that appellant's contention is nothing more than conjecture. The proof upon which appellant relies consists of a medical treatise, which was introduced into evidence, and the testimony of Drs. Sancheti, Thompson, and White. The treatise, Harrison's Principles of Internal Medicine, states general principles regarding diagnosis and treatment of various infections that exist in a hospital environment. Appellant refers to passages in this book as "clearly stat[ing] that pseudomonas is a clinically significant infection which should be watched for especially in patients with chronic obstructive lung disease, and that substituting a broad spectrum antibiotic is unwise and dangerous and ... if inadequate or wrong may only suppress symptoms temporarily without effecting a cure." She links these statements to the testimony of the treating physicians elicited at trial in response to her questions, which were typically prefaced by such qualifying phrases as "this could be," "this might be," or "isn't it possible." The defendant doctors in every instance explained that the characterizations made by appellant did not apply to Mrs. Camp. No evidence to rebut their testimony exists in the record. The treatise introduced by appellant tended to corroborate the assessment of Drs. Sancheti and Thompson:
p. 798. Dr. Sutton, plaintiff's own medical expert, testified that the records he had reviewed indicated that Mrs. Camp had received excellent care at the hands of Drs. Sancheti and Thompson.
Aside from the conjectural nature of the allegation that Mrs. Camp had a pseudomonas infection, appellant has failed to introduce any evidence that such an infection, if present, contributed to Mrs. Camp's death.
Appellant next argues that Drs. Sancheti and Thompson were negligent in failing to inform Mrs. Camp of her condition and of possible alternatives. This second argument fails because it assumes as factual, or at least as arguably factual, premises for which there is no support in the record. In her brief, appellant states that the doctors failed to inform Mrs. Camp that she "had a pseudomonas infection, that this infection was treatable ..., or that she could be weaned off the respirator." As has already been pointed out, appellant has failed to provide any evidence that Mrs. Camp was afflicted with a pseudomonas infection. The same is true of her contention that Mrs. Camp could have been placed back on the breathing machine and gradually weaned off. Appellant elicited testimony from the defendant physicians that it was possible to place patients back on a breathing machine, strengthen them, and wean them off. They testified that there were doctors who specialized in treating such patients. But they also testified that Mrs. Camp was not a candidate for such a procedure. They held firm to their original opinion: if Mrs. Camp was reattached to the respirator-ventilator, it would be on a permanent basis. No evidence was introduced to contradict the doctors' testimony on this point. There being no evidence of a treatable infection and no evidence of a viable procedure for weaning Mrs. Camp off the ventilator, there is nothing to support appellant's contention that the defendant doctors failed to properly inform Mrs. Camp.
The third contention which appellant raises as to Drs. Sancheti and Thompson is that they violated Alabama's Natural Death Act by failing to get from Mrs. Camp her written consent to withhold life sustaining procedures. Appellant argues that the Act requires that a decision to terminate life support be in writing. Appellant has misread the statute. Code 1975, § 22-8A-1 et seq., provides a method for assuring that such a decision by an individual will be respected. It also provides *170 protection for a physician who withholds life support in compliance with an executed declaration. However, the statute is cumulative and does not provide the exclusive procedure for withholding life sustaining systems. Section 22-8A-9 provides:
The trial court's judgment entered in favor of Drs. Sancheti and Thompson is due to be affirmed.
The second issue is whether the trial court erroneously charged the jury.
Dr. White testified that the drug he prescribed was Endal, not Inderal. Endal is a decongestant commonly used to treat the sinus problem Mrs. Camp was having. Dr. White had his nurse, Mrs. Moon, telephone the prescription to Alaco. Somewhere there was a miscommunication. Mrs. Moon testified that she ordered Endal. However, the druggist who filled the prescription testified:
There is strong evidence that Mrs. Camp took a capsule of Inderal, which, because of her pre-existing condition of COPD, incited a severe case of bronchospasm and led to her death.
The trial court read to the jury the following charge number 8 requested by Dr. White:
After the trial court concluded its instructions, counsel for appellant made the following objection:
While this objection is not a model of clarity, it is sufficient to call the court's attention to the error of giving this objectionable instruction. Rule 51, A.R.Civ.P.
Charge number 8 was clearly erroneous because it instructed the jury that Dr. White could not be held liable if Mrs. Moon abided by the standard of care of a nurse. *171 This is incorrect and could only have served to confuse the jury. See Powell v. Mullins, 479 So. 2d 1119 (Ala.1985). Because we cannot say that this erroneous instruction could not have affected the jury's verdict, the judgment for Dr. White is due to be reversed.
The judgment is affirmed as to Drs. Sancheti and Thompson and reversed as to Dr. White, and the cause is remanded.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
All the Justices concur.
[1] A subdivision of bacteria. The type which would be of concern here is pseudomonas aeruginosa. It is commonly found in infected areas. Stedman's Medical Dictionary, (5th ed. 1982). | May 15, 1987 |
9e21f273-7435-45cd-9556-c39ad6a05518 | Turner v. Azalea Box Co. | 508 So. 2d 253 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 253 (1987)
Ronald A. TURNER and Mary P. Turner
v.
AZALEA BOX COMPANY.
85-505.
Supreme Court of Alabama.
May 29, 1987.
Jay A. York of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellants.
Mack B. Binion of Lyons, Pipes & Cook, Mobile, for appellee.
STEAGALL, Justice.
Ronald A. Turner and his wife Mary P. Turner appeal from a summary judgment granted in favor of Azalea Box Company. We affirm.
The Turners' complaint against Azalea Box alleged a cause of action under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD). Ronald Turner alleged that Azalea Box manufactured and sold a wooden pallet to Coca-Cola Bottling Company of Mobile in a defective and unreasonably dangerous condition and that that defective pallet proximately caused his injuries. Mary Turner alleged a loss of consortium as a result of her husband's injuries. The remainder of this opinion will refer only to Ronald A. Turner as the plaintiff/appellant.
On July 7, 1982, Turner was injured while performing his duties as a warehouseman in the shipping department at the Wometco Coca-Cola Bottling Company. Coca-Cola uses wooden pallets as platforms upon which warehousemen stack various Coca-Cola products. After a pallet is loaded, it is placed upon a truck for shipment. While Turner was loading pallets he allegedly injured his knee when a slat on a pallet broke as he stepped across it. The allegedly defective pallet was not retained by Coca-Cola and has not been located since the accident occurred.
The issues on appeal are whether a scintilla of evidence exists to support Turner's claim that Azalea Box manufactured the allegedly defective pallet, and whether a scintilla of evidence exists to support Turner's claim that the pallet was defective.
The evidence is undisputed that prior to Turner's accident Coca-Cola purchased pallets from Azalea Box and from Gulf Pallet Company. From January 1982 through *254 June 29, 1982, Coca-Cola purchased 2500 pallets from Azalea Box, of which 1500 were purchased from April 29, 1982, through June 29, 1982. During this time, Coca-Cola purchased 1950 pallets from Gulf, of which 300 were purchased from May 4, 1982, through May 12, 1982.
There was also evidence that Coca-Cola customarily exchanged pallets with other bottling companies throughout the Southeast and continuously repaired pallets purchased or received from all sources.
All the pallets used by Coca-Cola were wooden, similar in size, and had no distinguishing characteristics that would identify the manufacturer of a particular pallet.
Turner testified that the pallet in question appeared to be brand new. New pallets were ordered by Coca-Cola whenever the existing supply was low, and orders were placed more frequently in the summer months. The average life span of a pallet was estimated to be five to seven years.
In an AEMLD action, the plaintiff must prove that the defendant manufactured and/or sold the allegedly defective product. Atkins v. American Motors Corp., 335 So. 2d 134 (Ala.1976).
Griffin v. Little, 451 So. 2d 284, 287 (Ala. 1984).
However, "evidence which affords nothing more than mere speculation, conjecture, or guess is wholly insufficient to warrant submission of the case to the jury." Roberts v. Carroll, 377 So. 2d 944, 946 (Ala. 1979); see also Headrick v. United Insurance Co. of America, 279 Ala. 82, 181 So. 2d 896 (1966).
When evidence points equally to inferences that are favorable and to inferences that are unfavorable to the moving party, the evidence lacks probative value; and the evidence may not be used to support one inference over another because such use is mere conjecture and speculation. Roberts v. Carroll, supra.
In the instant case, there were three, and possibly four, sources from which the wooden pallet in question could have come. Coca-Cola received pallets from Gulf, Azalea Box, and other bottling companies in the area. A fourth source was Coca-Cola's repair of pallets. From this evidence, two things can be equally inferred: (1) Azalea Box manufactured and sold the subject pallet to Coca-Cola, or (2) Azalea Box did not manufacture and sell the subject pallet to Coca-Cola. Accordingly, to use this evidence to support Turner's contention that Azalea Box supplied the pallet in question to the exclusion of other sources is to engage in speculation and conjecture.
Turner cites three cases which he asserts stand for the proposition that the identity of a manufacturer of a defective product may be proven by circumstantial evidence. Coca-Cola Bottling Co. v. Miller, 47 Ala.App. 14, 249 So. 2d 630 (1971); Birmingham Coca-Cola Bottling Co. v. Gosa, 279 Ala. 316, 184 So. 2d 827 (1966); Try-Me Beverage Co. v. Harris, 217 Ala. 302, 116 So. 147 (1928). We agree that circumstantial evidence may be used to prove identity. However, in each of these cases, there were no alternative sources; thus, no speculation or conjecture was involved.
Because of our holding above, we pretermit discussion of whether there was a scintilla of evidence to establish that the pallet was defective.
The judgment of the trial court is affirmed.
AFFIRMED.
JONES, ALMON, SHORES and ADAMS, JJ., concur. | May 29, 1987 |
b95a8769-1d8f-4e60-ac64-9154414717d0 | Ex Parte Beam | 512 So. 2d 723 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 723 (1987)
Ex parte Joey Dale BEAM
(Re Joey Dale Beam v. State of Alabama).
86-287.
Supreme Court of Alabama.
June 12, 1987.
F. David Lowery and Benjamin H. Richey, Russellville, for petitioner.
Don Siegelman, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for respondent.
JONES, Justice.
Pursuant to Rule 39(k), A.R.App.P., we granted the defendant's petition for writ of certiorari to the Court of Criminal Appeals in this "no opinion" case, 502 So. 2d 396, to review a single issue: Whether the trial court abused its discretion in denying the defendant's "challenge for cause" of a prospective juror.
Because the State agrees with the petitioner's Rule 39(k) statement of the facts, we quote directly from that statement:
The State urges our affirmance on the authority of two propositions set forth in Clark v. State, 443 So. 2d 1287 (Ala.Cr.App. 1984): 1) "A trial court's ruling on challenge for cause based on bias is entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion"; and 2) "a juror who brings his thoughts out into the open in response to voir dire questions may be the one who later `bends over backwards to be fair.'"
Although we agree with the State's first proposition, the test for determining the propriety of the trial court's ruling in such cases must be measured against the defendant's constitutional right to a fair trial. No right of an accused felon is more basic than the right to "strike" a petit jury from a panel of fair-minded, impartial prospective jurors.
The State's proposed application of Clark's "honesty of the juror" test is a misreading of Clark. While forthrightness and candor on the part of a juror are admirable, even applaudable character traits, when questioned about his or her ability to give the case impartial, unbiased consideration, it is the substance of the juror's answers, honestly given, that forms the test for granting or denying the defendant's challenge for cause. Surely, it is not the holding of Clark that a prospective juror, who unequivocally expresses a fixed opinion about the matter the jury will be called upon to decide, could withstand a challenge for cause based on the reasoning that the juror's demonstrated virtue of righteousness indicates that he or she will "bend over backwards to be fair."
Indeed, here, the challenged juror is to be complimented for her honesty and candor; but we must look beyond these admirable traits of character to the substance of what she said as the ultimate test for her qualification to act as a fair and impartial juror in this case.
We begin our analysis by examining the nature of the charge for which the defendant was being tried. He was indicted on two counts of murder arising out of the use of an automobile while he was allegedly under the influence of alcohol. A legitimate area of concern to defense counsel was whether any of the prospective jurors held strong convictions relative to the defendant's use of alcohol. Conceivably, answers to these inquiries could fall into two categories: 1) those affecting the defendant's choice of peremptory challenges (those light impressions which may fairly yield to the testimony); and 2) those affecting the juror's qualifications (those strong and deep impressions which will close the mind against the testimony).
Applying these principles to the answers given by this juror, as well as the admonition that court proceedings must not only be fair but must also appear to be fair, we hold that the trial court abused its discretion in not granting the defendant's challenge for cause. That portion of the juror's reply, "I hope [the defendant's use of alcohol would not affect my ability to be impartial], but I cannot say it would not," does not reduce her answers, when taken as a whole, from category 2 (challenge for cause) to category 1 (peremptory challenge).
Understandably, as is often true in such cases, this juror used language such as "I just can't answer that," "I would hope that I would fair," and "I hope [I would not be unfair]"; and, when taken out of context and standing alone, they appear to be expressions of equivocation. Any and all doubt, however, as to the depth and strength of her impressions is removed when the substance of her replies is viewed in full context and as a whole; thus, the *725 defendant's challenge for cause should have been granted.
REVERSED AND REMANDED.
MADDOX, ALMON, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur. | June 12, 1987 |
cb03c88d-1e3d-4011-8745-5acef9a9ec4d | Ex Parte Watkins | 509 So. 2d 1074 | N/A | Alabama | Alabama Supreme Court | 509 So. 2d 1074 (1987)
Ex parte Darryl Travis WATKINS.
(Re Darryl Travis WATKINS v. STATE).
86-267.
Supreme Court of Alabama.
May 29, 1987.
*1075 J. Louis Wilkinson and Virginia A. Vinson, Birmingham, for petitioner.
Don Siegelman, Atty. Gen. and William D. Little, Asst. Atty. Gen., for respondent.
HOUSTON, Justice.
Darryl Travis Watkins was convicted of capital murder and was sentenced to death pursuant to § 13A-5-31(a)(2), Code 1975. He appealed to the Court of Criminal Appeals, which affirmed his conviction and sentence and later overruled his application for rehearing), Watkins v. State, 509 So. 2d 1056 (Ala.Cr.App.1983). The defendant then petitioned this Court for a writ of certiorari, raising three issues for our review: 1) the constitutionality of the death penalty statute under which he was sentenced; 2) whether the deceased was a "victim" of the robbery; and 3) whether the state's failure to disclose allegedly exculpatory information violated his right to due process. This Court granted the writ. We affirmed the Court of Criminal Appeals' decision in reaffirming the constitutionality of the death penalty provision under which the defendant was convicted and further held that the deceased was a "victim" of the robbery within the meaning of § 13A-5-31(a)(2), Code 1975. However, we remanded the case with instructions to the Court of Criminal Appeals to remand it to the trial court in order to afford the defendant the opportunity to show, if he could, that the belated disclosure of allegedly exculpatory evidence "substantially affected" his right to a fair trial. Ex parte Watkins, 450 So. 2d 163 (Ala.1984). The Court of Criminal Appeals remanded the case to the trial court, Watkins v. State, 509 So. 2d 1067 (Ala.Cr.App.1984), which made findings of fact and concluded that the defendant's right to a fair trial had not been "substantially affected." On return to remand, the Court of Criminal Appeals affirmed, Watkins v. State, 509 So. 2d 1067 (Ala.Cr.App.1985), and later overruled the application for rehearing. The defendant again petitioned this Court for a writ of certiorari to review the judgment of the Court of Criminal Appeals and claimed in his petition, for the first time, that the trial court had erred in excluding from the venire a prospective juror who merely expressed strong disapproval of the death penalty. We granted the writ but remanded the case to the Court of Criminal Appeals for it to consider this issue prior to any further review in this Court. Ex parte Watkins, 509 So. 2d 1071 (Ala.1986). After remand, the Court of Criminal Appeals held that the trial court did not err in excluding the juror from the venire. Watkins v. State, 509 So. 2d 1071 (Ala.Cr.App.1986). The defendant again petitioned this Court for a writ of certiorari to review the judgment of the Court of Criminal Appeals and in his petition claimed, for the first time, that his constitutional rights had been violated because the state used its peremptory challenges to exclude prospective black jurors from the venire solely on account of their race. We granted the writ; however, this time we have elected to review not only the judgment of the Court of Criminal Appeals, but also the new issue which that court has not had the opportunity to address.
Having carefully read and considered the record, together with the briefs and arguments of counsel, we conclude that the judgment of the Court of Criminal Appeals is due to be affirmed.
As stated, the defendant claims that his constitutional rights were violated because the state used its peremptory challenges to exclude prospective black jurors from the venire solely on account of their race. He relies on Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and this Court's recent decision in Ex parte Jackson, [MS. 84-1112, December 19, 1986] (Ala.1986).
Batson reduced a defendant's burden of making a prima facie case of racial *1076 discrimination in the state's use of its peremptory challenges. In Batson, the Court stated:
476 U.S. at ___, 106 S. Ct. at 1722-23.
Once the defendant has made a prima facie case of purposeful discrimination, then the state must come forward with valid nonracial reasons for its challenges.
In Jackson, this Court held, as a matter of state constitutional law, that a rule like the rule announced in Batson was to be applied retroactively to Jackson's trial. Consequently, that case was remanded to the Court of Criminal Appeals with instructions for it to remand the case to the trial court for a determination on the issue.
Subsequent to this court's decision in Jackson, the United States Supreme Court held, as a matter of federal constitutional law, that the Batson rule applied retroactively to all cases, state or federal, pending on direct review or not yet final. Griffith v. Kentucky, ___ U.S. ___, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987).
Thus, as a matter of both state and federal constitutional law, the Batson rule is to be applied retroactively to this defendant's trial. See also Ex parte Godbolt, [MS. 85-1287, May 14, 1987] (Ala.1987) (case remanded for a determination as to whether prospective black jurors were unconstitutionally excluded from the jury).
Because this issue is raised for the first time on appeal, the defendant has requested that we review the record under our plain error rule, Rule 39(k), Ala.R. App.P., and remand for further proceedings, as we did in Jackson. However, we have carefully reviewed the record in this respect and we cannot find any plain error. Although the record does show that the defendant is black and the victim was white, it does not show that the state exercised any of its peremptory challenges to remove prospective black jurors from the venire. The record as a whole simply does not raise an inference that the state was engaged in the practice of purposeful discrimination. Under the plain error rule this Court will "notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner." *1077 (Emphasis added.) Rule 39(k), supra. The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred (i.e., the state's use of its peremptory challenges to exclude blacks). In both Jackson and Godbolt the records were sufficient to show that prima facie cases of purposeful discrimination could be made by the defendants; therefore, those cases were remanded for determinations on the issue under the guidelines set out in Batson.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY and STEAGALL, JJ., concur.
ADAMS, J., not sitting. | May 29, 1987 |
7f6b4700-09ac-47b7-8ef1-a8a701719896 | Ex Parte Water Works Bd. of Gulf Shores | 508 So. 2d 242 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 242 (1987)
Ex parte The WATER WORKS BOARD OF the TOWN OF GULF SHORES.
(In re The WATER WORKS BOARD OF the TOWN OF GULF SHORES v. THE TRAVELERS INDEMNITY COMPANY and Perry Hand & Associates, Inc.)
86-183.
Supreme Court of Alabama.
May 22, 1987.
*243 Larry B. Childs of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, Cecil G. Chason of Chason & Underwood, Foley, for petitioner.
L. Graves Stiff III of Starnes & Atchison, Birmingham, Norborne C. Stone, Jr., of Stone, Granade, Crosby & Blackburn, Bay Minette, for respondents.
ALMON, Justice.
This is a petition for a writ of mandamus regarding a transfer of the instant case from the Circuit Court of Baldwin County to the Circuit Court of Jefferson County. This suit involves a claim against a surety on a contractor's performance bond; the case was transferred essentially because the principal on the bond had previously filed an action in Jefferson County arising out of the same contract.
The Water Works Board of the Town of Gulf Shores filed the instant complaint on April 30, 1986, against The Travelers Indemnity Company as surety on a contract bond whereby Travelers and Harmon Contracting Company, Inc., bound themselves to the faithful performance of a contract between Harmon and the Water Works Board. This complaint also named as a defendant Perry Hand and Associates, Inc., the engineer supervising performance by Harmon for the Water Works Board. Hand declared Harmon in default on the contract on March 17, 1986.
On or about February 17, 1986, Harmon had filed an action in Jefferson County against the Water Works Board, Hand, and three of Harmon's suppliers. Travelers takes the position that the Jefferson County Circuit Court thereby acquired exclusive jurisdiction of the dispute and, thus, that the Water Works Board should have instituted the instant action as a counterclaim in Harmon's action. As Travelers states in its summary of its argument, "Since the identity of the surety (Travelers) and its principal (Harmon) are interchangeable for purposes of the dispute between the Board and Harmon, the fact that Harmon was not named as a defendant in the second action is irrelevant."
We note initially that Travelers' motion in the Baldwin County Circuit Court sought as relief alternatively a dismissal, a transfer, or a stay of the instant action, and that the circuit court granted relief in the form of a transfer. A transfer is the appropriate relief for improper venue. Ex parte Parker, 413 So. 2d 1105 (Ala.1982); Rule 82(d), A.R.Civ.P. Venue of this action was indisputably proper in Baldwin County, because both Travelers and Hand do business by agent in Baldwin County. Code 1975, § 6-3-7. A transfer is not authorized except for improper venue. Ex parte Maness, 386 So. 2d 429 (Ala.1980); Medical Service Admin. v. Dickerson, 362 So. 2d 906 (Ala.1978).
*244 The Water Works Board correctly points out that it may proceed against the surety on the bond without first exhausting its remedies against the principal. Alabama Bank & Trust Co. v. Garner, 225 Ala. 269, 142 So. 568 (1932); Dampskibsaktieselskabet Habil v. United States Fid. & Guar. Co., 142 Ala. 363, 39 So. 54 (1904); Abercrombie v. Knox, 3 Ala. 729 (1843); see Fidelity & Cas. Co. of New York v. DeLoach, 280 Ala. 497, 195 So. 2d 789 (1967); Ewing v. Bay Minette Land Co., 232 Ala. 22, 166 So. 409 (1936).
Because Travelers was not a party to Harmon's Jefferson County suit, the Water Works Board's claim against Travelers is not a compulsory counterclaim to be filed in Harmon's suit. Corona v. Southern Guaranty Ins. Co., 294 Ala. 184, 314 So. 2d 61 (1975); Smith v. Charles E. Jay & Co., 292 Ala. 513, 296 So. 2d 885 (1974).
Mandamus is the appropriate remedy where a trial court has improperly transferred a cause. Ex parte Joiner, 486 So. 2d 402 (Ala.1986); Ex parte City of Huntsville Hospital Bd., 366 So. 2d 684 (Ala.1978). Venue being proper in Baldwin County, the circuit court erred in transferring the cause and, therefore, the writ of mandamus is due to issue.
WRIT GRANTED.
MADDOX, BEATTY, HOUSTON and STEAGALL, JJ., concur. | May 22, 1987 |
59f4655a-269b-40b4-b25c-c6ae98a3411f | Rickard v. Trousdale | 508 So. 2d 260 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 260 (1987)
Jean RICKARD, as Executrix of the Estate of Isephene Jo Haggard Trousdale, deceased
v.
Gilbert Leon TROUSDALE.
85-1304.
Supreme Court of Alabama.
May 29, 1987.
Robert M. Hill, Jr., and Margaret Helen Young of Hill, Young & Boone, Florence, for appellant.
Lucy Fay Malone and James H. LeMaster of LeMaster, Smith & Malone, Florence, for appellee.
SHORES, Justice.
This case originates from a petition filed by Jean Rickard for the probate of the last will and testament of her mother, Isephene Jo Haggard Trousdale, and a subsequent petition filed by Gilbert Leon Trousdale, claiming to be the surviving spouse of the decedent, for his elective share, exempt property, and homestead allowance.
The estate was removed to the circuit court on July 10, 1984, and proceeded to trial on the sole issue of whether a common law marriage existed between Gilbert Leon Trousdale and Isephene Jo Haggard Trousdale at the time of the latter's death. The circuit court entered a partial decree in favor of Mr. Trousdale on this issue, but reserved the other issues raised in the pleadings for future determination. Pursuant to Rule 54(b), A.R.Civ.P., the court directed entry of a final judgment, and this appeal followed.
Gilbert and Isephene were the parties to a ceremonial marriage in Tishomingo County, Mississippi, on September 11, 1976. At the time of the ceremony, however, Gilbert was already married to Bobbie Jean Trousdale.
There is no dispute that the ceremonial marriage between Gilbert and Isephene was null and void for bigamy. The question with which we are faced concerns the effect of Leon's divorce from Bobbie Jean, March 22, 1978, on the continued cohabitation of Leon and the deceased after that date.
On appeal, Ms. Rickard contends that the ceremonial marriage between her mother *261 and Leon did not ripen into a common law marriage when Leon's marriage to Bobbie Jean was dissolved, because Isephene could not consent to a common law marriage where the bigamy, though corrected, was intentionally concealed and never revealed to her.
In Campbell's Administrator v. Gullatt, 43 Ala. 57, 69 (1869), the Court held that "a marriage good at the common law, is ... a valid marriage in this State." A marriage at common law in Alabama requires the following:
Luther v. M & M Chemical Co., 475 So. 2d 191, 193 (Ala.Civ.App.1985).
It is the well-settled rule that if parties in good faith marry at a time when in fact a legal impediment exists to their marriage, and they continue to live together as husband and wife after the removal of the impediment to their lawful union, the law presumes a common law marriage. Boswell v. Boswell, 497 So. 2d 479 (Ala.1986), King v. King, 269 Ala. 468, 114 So. 2d 145 (1959); Barnett v. Barnett, 262 Ala. 655, 80 So. 2d 626 (1955); Hill v. Lindsey, 223 Ala. 550, 137 So. 395 (1931).
In the case at bar, Leon and Isephene continued to live together as husband and wife after Leon obtained his divorce from Bobbie Jean. Testimony at trial showed that the public recognized Leon and Isephene as husband and wife, and that Isephene believed until her death that she was legally married to Leon. Clearly, the evidence supports the presumption of a common law marriage between Leon and Isephene.
To rebut the presumption of a common law marriage, Ms. Rickard contends that Leon intentionally concealed his prior marriage from Isephene, and, thus, that the necessary element of consent was missing. In a case with similar facts, the Florida Supreme Court held as follows:
Jones v. Jones, 119 Fla. 824, 832, 161 So. 836, 839 (1935).
In Osoinach v. Watkins, 235 Ala. 564, 180 So. 577 (1938), the court held that a void marriage may be attacked after the death of one or both of the parties by the personal representative of a deceased spouse; however, if the marriage is merely voidable the action must be brought during the lifetime of both spouses. See also, Abel v. Waters, 373 So. 2d 1125 (Ala.Civ. App.) cert. denied, 373 So. 2d 1129 (Ala. 1979).
Consequently, even if we were to assume that Leon fraudulently concealed from Isephene the fact of his prior marriage to Bobbie Jean, which we are not at liberty to do since fraud was neither alleged in the pleadings nor proved at trial, his fraud would operate only to make the common law marriage voidable, and a voidable common law marriage cannot be attacked after the death of one of the parties to the marriage.
*262 For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
JONES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | May 29, 1987 |
83529125-1b32-4379-b32b-cd04bdca4900 | Cahaba Valley Development Corp. v. Nuding | 512 So. 2d 46 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 46 (1987)
CAHABA VALLEY DEVELOPMENT CORPORATION, INC., and Murray D. Roper
v.
Leroy NUDING and Hazel R. Nuding.
84-785.
Supreme Court of Alabama.
May 22, 1987.
Rehearing Denied July 24, 1987.
*47 John W. Sudderth of Sudderth & Somerset, Birmingham, for appellants.
James W. May, Gulf Shores, for appellees.
PER CURIAM.
This is an appeal from a judgment on a jury verdict awarding the plaintiffs, Mr. and Mrs. Nuding, $63,000 in a fraud action, and from the denial of defendants' post-trial motions. The alleged fraud was a misrepresentation of the number of acres in a parcel of land purchased by the Nudings. The defendants were Cahaba Valley Development Company, Inc. ("Cahaba Valley"), the seller of the property; its president, Murray Roper; and Southern Realty, which listed the property for sale. Only Cahaba Valley and Roper have appealed.
The Nudings were interested in purchasing a home. They testified that they intended to train horses and needed three acres of property for that purpose. On January 7, 1978, Mrs. Nuding read a newspaper advertisement offering for sale a house and three acres of land. She and her real estate agent, Faye Robinson, viewed the property. About a week later they viewed the property again and were accompanied by Lois Tillotson, a representative of Southern Realty. Mrs. Nuding testified that Mrs. Tillotson told her at this time that the property was three acres and pointed out the boundaries of the property. Mrs. Nuding testified, however, that it turned out that part of the land Mrs. Tillotson pointed out was not included in the deed description of the land the Nudings bought. The testimony indicated that the property was "rough" and covered with trees, and that neither it nor the neighboring property had fences.
On February 12, the Nudings signed a contract to purchase the property for $34,500. The contract described the property as being three acres, more or less. Shortly thereafter, they moved into the house and agreed to pay rent if the sale did not close. They lived there until the closing on July 7, 1978. Because Mr. Nuding was working 12-hour days, seven days a week, he did not spend much time on the property. Mrs. Nuding said that they did not use or maintain any of the property except the house and front yard during this period, and that they did not inspect the acreage in the back because they were waiting for a survey.
Southern Realty employed a surveyor who, on the day before the closing, surveyed the property and drew up the survey. The survey did not state the number of acres. The surveyor testified that his stakes could not be seen without walking the property line and that, after the closing, he computed the acreage and found that the property consisted of only 1.23 acres, including .13 acres taken by a city street. Thus, the property included only 1.1 acres of usable land.
Both Mrs. Nuding and the surveyor testified at trial that she did not ask him if the property included three acres. She testified that she saw him only when he first arrived, at which time she said "I hope we've got our three acres." On cross-examination, a defense attorney asked Mrs. Nuding about a statement she had allegedly made to the defendants approximately eight months after the closing, to the effect that she had asked the surveyor on the day before the closing if she had three acres and that he had answered, "[W]ell, I don't know. It looks like it, but it's so chopped *48 up I'll have to figure it out." In this statement Mrs. Nuding allegedly also said that, on the morning of the closing, her husband looked at the surveyor's stakes and said "this is no three acres," and that she answered to him "the surveyor said so." In response to this examination, Mrs. Nuding admitted that she had made statements to the effect that the surveyor had told her "he would have to go back and figure it out," and that her husband "just looked out there and said it [didn't] look like three acres to him." Mr. Nuding testified that he did not inspect the property before the closing.
Mrs. Nuding testified that at the closing, she asked Juanita Whitehead, the owner and registered broker of Southern Realty, "[A]re you sure we have our three acres before it closes?" Both Mr. and Mrs. Nuding testified that Mrs. Whitehead pointed to the survey and said, "Yes, you got two acres over here and here is the other acre." Both of the Nudings testified that they were not given a copy of the survey until the sale had been closed. Mrs. Nuding looked at the survey on the way home and calculated that the property was not three acres.
The jury specified its award as including $18,000 compensatory damages and $45,000 punitive damages. Appellants contend that the evidence is insufficient to support the compensatory damages award.
In denying the defendants' motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, and their motion for remittitur, the trial court stated:
The surveyor's testimony indicates that the property was 1.77 acres less than three acres, or 1.9 less if the street is not counted. Several witnesses referred to the property as including only one and a half acres. Although Mrs. Nuding's testimony was not given precisely in the proper form of stating the value of the house and lot if it included three acres and the value as it existed, the trial court instructed the jury that it was to award damages based on this difference in fair market values at the time of the sale. See Earle, McMillan & Neimeyer, Inc. v. Dekle, 418 So. 2d 97 (Ala.1982); Boriss v. Edwards, 262 Ala. 172, 77 So. 2d 909 (1954). Given this correct instruction and the trial court's finding that her testimony supported the jury's award of compensatory damages, the judgment is not due to be reversed on this ground.
Appellants also argue that the evidence was insufficient to submit the question of punitive damages to the jury. In its opinion and order on the post-trial motions, the trial court concluded:
The trial court's original draft of its order included a part that would have granted a remittitur; the court mistakenly included that portion in its final order. By amendment, the court deleted that portion, stating: "After further reflection and consideration of the evidence presented in this case, the Court decided that it could not in this case order a remittitur." The corrected order included the following:
Reviewing the record, we find no error in the trial court's conclusion that the issue of punitive damages was properly submitted to the jury under the principle of Ex parte *49 Smith, cited in the trial court's order, supra. Furthermore, we find no error in the trial court's findings and conclusions that the verdict was supported by the evidence. The trial court did not err in denying the motion for new trial.
Appellants argue that, because the Nudings suspected before the closing that the property did not comprise three acres, their reliance on any fraud by the defendants was unreasonable. In Bedwell Lumber Co. v. T & T Corp., 386 So. 2d 413 (Ala.1980), a similar argument was made. The purchaser expressed concern about whether the portion of the property that had been subdivided into lots would percolate so as to allow septic tanks, and the seller responded by saying that the lots had been approved for septic tanks; that response turned out not to be true for several of the lots. This Court addressed the reasonable reliance argument as follows:
Id., at 415 (citations omitted).
We note that the evidence was disputed as to whether the Nudings had actual cause to suspect that the property was not three acres or whether they had no such cause but simply had specific requirements for three acres of land and so wanted assurance that the property was that large. Mrs. Nuding testified that she took Mrs. Whitehead's word because she had no reason to question her veracity. Evidence indicates that Mrs. Whitehead, in Mr. Roper's presence at the closing, responded to Mrs. Nuding's question by indicating that the property definitely included three acres, indicating on the survey which was in her hand but which she did not give to the Nudings at that time. Given these and the other facts of record, we conclude that the judgment is not due to be reversed on this issue.
Appellants contend that the trial court erred in allowing the Nudings to call a rebuttal witness whose testimony was not arguably in rebuttal.
The trial court has wide discretion in deciding to allow or disallow testimony which is not strictly in rebuttal. White v. Boggs, 455 So. 2d 820 (Ala.1984). In their brief, appellants indicate that most of the testimony by the rebuttal witness concerned matters already testified to and uncontradicted by the evidence. They argue that allowance of this testimony prejudiced their case. They do not show how they were prejudiced. Our review of the record does not disclose any abuse of discretion in the trial court's allowing this testimony.
On motion of the Nudings, we have determined that a final judgment was rendered in this cause on December 5, 1984, and that interest shall accrue from that date. Rule 37, A.R.A.P.
The judgment is hereby affirmed.
AFFIRMED.
MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
TORBERT, C.J., and HOUSTON, J., concur in part and dissent in part, with opinion by HOUSTON, J.
*50 HOUSTON, Justice (concurring in part and dissenting in part).
I agree with the majority that it was not an abuse of discretion for the trial court to permit the Nudings to call a rebuttal witness when it was questionable as to whether his testimony was in rebuttal. I dissent on the fraud issue.
The defendants filed a motion for a directed verdict and a motion for a judgment notwithstanding the verdict. One element essential in all fraud actions is the right of the plaintiff to reasonably rely on the misrepresentation. MJM, Inc. v. Casualty Indemnity Exchange, 481 So. 2d 1136 (Ala. 1985); Earnest v. Pritchett-Moore, Inc., 401 So. 2d 752 (Ala.1981). Where a party has a reason to doubt the truth of the representation, he has no right to act thereon. MJM, Inc. v. Casualty Indemnity Exchange, supra. Mahoney v. Forsman, 437 So. 2d 1030 (Ala.1983).
The undisputed evidence is that Mrs. Nuding viewed the property twice before the purchase contract was signed and that the boundaries of the property were indicated by gestures. Mrs. Nuding admitted that when she was first shown the property she observed that there was insufficient land to build a horse training ring unless it was built at the back door of the house. The contract described the property as three acres more or less. The Nudings moved into the house on February 12, 1978, and stayed there until the closing on July 7, 1978, almost five months later. Though the Nudings denied walking the property or doing yard work during this five-month period, Mr. Nuding did build a half-acre horse pen on the property during this time. On the day before the closing the property was surveyed. Eighteen-inch-high stakes with colored ribbons tied to them were placed at all corners. The survey that was drawn up did not indicate the number of acres. Mr. Nuding, after looking at the stakes, commented that it did not look like three acres to him. Mrs. Nuding asked the surveyor, before the closing, if the lot contained three acres. The surveyor stated that he did not know and that he would have to go back and figure it out. Mrs. Nuding did not ask the surveyor again about the acreage prior to closing. The survey was seen by Mrs. Nuding before the closing, but she did not request a copy of it. The legal description in the deed was the surveyor's description and did not specify the acreage. Clearly, the plaintiffs had grave doubts about the total number of acres before the closing. Clearly, the plaintiffs knew where the lot lines were before the closing. Clearly, the plaintiffs knew that the surveyor who actually did the field work, prepared the legal description, and drew the survey did not know if the property contained three acres. Clearly, the plaintiffs knew that the surveyor could compute the number of acres but did not ask him to do so before the closing. Clearly, Mrs. Nuding did not request to personally examine the survey that she saw at the closing, prior to the sale being closed. Immediately after the closing Mrs. Nuding could tell that the lot did not contain three acres by examining that very survey. These are undisputed facts. To me it appears, as a matter of law, that the plaintiffs had no right to rely on the representations of the defendants that the lot contained three acres. Ostrichism cannot and must not be encouraged in our free, litigious society. I would reverse and render judgment for the defendants; therefore, I dissent.
TORBERT, C.J., concurs. | May 22, 1987 |
f52ddcd6-ee42-4af1-a816-7156edf2f8e6 | Mann v. City of Tallassee | 510 So. 2d 222 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 222 (1987)
Tony MANN
v.
CITY OF TALLASSEE and Thomas Pollard, Individually and as Mayor of the City of Tallassee.
85-1180.
Supreme Court of Alabama.
June 26, 1987.
Mack Clayton, Alexander City, for appellant.
Steven F. Schmitt of Hornsby & Schmitt, Tallassee, for appellees.
STEAGALL, Justice.
Tony Mann appeals from a summary judgment in favor of defendant/appellee City of Tallassee. We affirm.
*223 Mann was a police officer with the Tallassee police department from May 1978 until November 27, 1984. On November 26, 1984, Mann was informed that a citizen's complaint had been lodged against him individually and as a police officer, and that an investigative hearing concerning the matter was scheduled for November 28, 1984.
On November 27, 1984, the day after he was informed of the complaint, Mann tendered his resignation, which was duly accepted by the acting chief-of-police. Mann's resignation letter read as follows:
The following deposition testimony of Mann should be noted concerning his resignation:
Mann was later informed that even though he had resigned, an investigative hearing concerning the complaint would still be held as planned on November 28, 1984.
On November 28, 1984, Mann approached the mayor of Tallassee and requested that his letter of resignation be returned. The request was denied. The investigative hearing took place as scheduled. Apparently, the complaint concerned a young woman whose family had become upset, and they were alleging that Mann was driving to their house repeatedly while on duty to visit the young woman.
On December 15, 1984, a second meeting occurred to determine the outcome of the investigation. Mann was informed by the mayor of Tallassee that it would be in the best interest of Tallassee if Mann did not return to work as a police officer.
Appellant Mann filed a four-count complaint after he was informed that his letter of resignation would not be returned. The first three counts involve Code of Alabama 1975, § 11-43-180 through § 11-43-190.
Sections 11-43-180 and § 11-43-190 are here quoted:
Appellant Mann contends in the first three counts of his complaint that § 11-43-180 has been violated by the city's failure to have a civil service system for law enforcement officers and that such a failure violates his rights. One should note that for §§ 11-43-180 through -190 to be applicable to a particular municipality, that municipality must have a population of 5,000 persons or more. This is clearly stated in § 11-43-190(b). According to the 1980 federal decennial census, the city of Tallassee had a population of 4,763.
In 1982 the municipality of Carrville was annexed to Tallassee. It is undisputed that Carrville had a population of 820 prior to annexation.
While it is true that the population of Tallassee following the annexation of Carrville in 1982 might be over 5,000, that fact cannot help Mann, because this Court is bound to apply the plain meaning of the statute.
In Dumas Brothers Manufacturing Co. v. Southern Guaranty Insurance Co., 431 So. 2d 534, 536 (Ala.1983), this Court stated:
(Citing Town of Loxley v. Rosinton Water, Sewer & Fire Protection Authority, Inc., 376 So. 2d 705 (Ala.1979).)
Also, in Godwin v. City Council of City of McKenzie, 449 So. 2d 1231, 1232 (Ala. 1984), this Court stated:
Further, in Chandler v. City of Lanett, 424 So. 2d 1307, 1309 (Ala.1982), this Court stated:
This Court has no choice but to give effect to the clear meaning of the statute. As of 1980, the date of the most recent federal decennial census, the Tallassee population was below 5,000. Therefore, §§ 11-43-180 through -190 are inapplicable to the city of Tallassee.
Furthermore, even if §§ 11-43-180 through -190 did apply to the city of Tallassee, that fact would not help Mann, because he voluntarily resigned on November 27, 1984. The civil service provisions of §§ 11-43-180 through -190 speak to tenure, removal, appointment, and official conduct. Appellant Mann resigned of his own free will, according to his deposition testimony. These sections do not speak to resignations. The closest action to resignation that § 11-43-180 speaks to is "removal," and it is clear from Mann's own deposition testimony that he resigned and was not removed. After exercising his free will to resign, Mann requested to withdraw his resignation. In this particular case, this is tantamount to requesting that he be rehired. Nowhere in these Code sections is it suggested that a police officer must be *225 rehired after he has voluntarily tendered his resignation.
In Hale v. City of Tuscaloosa, 449 So. 2d 1243, 1245 (Ala.1984), this Court stated:
(Citing Allen v. Whitehead, 423 So. 2d 835 (Ala.1982); Robertson v. City of Tuscaloosa, 413 So. 2d 1064 (Ala.1982); Raley v. Royal Ins. Co., 386 So. 2d 742 (Ala.1980); Rule 56(c), A.R.Civ.P.)
This Court, after viewing the evidence in a light most favorable to appellant Mann, is unable to hold that the trial court erred in granting summary judgment for the city of Tallassee on the first three counts of the complaint.
The fourth count of appellant Mann's complaint alleges that his Fourteenth Amendment due process rights were violated due to the inadequacy of the city hearings. This Court finds it unnecessary to address this issue, since appellant Mann voluntarily resigned.
The judgment of the trial court is affirmed.
AFFIRMED.
JONES, ALMON, SHORES and ADAMS, JJ., concur. | June 26, 1987 |
97359e82-e56c-44dc-920b-7524ed5d3314 | Corretti v. Pete Wilson Roofing Co. | 507 So. 2d 408 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 408 (1986)
Johnny CORRETTI
v.
PETE WILSON ROOFING COMPANY, et al.
85-597.
Supreme Court of Alabama.
November 26, 1986.
As Corrected on Denial of Rehearing May 8, 1987.
Jesse P. Evans III and Donald H. Brockway of Corretti & Newsom, Birmingham, for appellant.
John R. Chiles of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellee Pete Wilson Roofing Co.
William Anthony Davis III and J. Bentley Owens III of Starnes & Atchison, Birmingham, for appellees R.B. Ethridge & Associates and U.S. Fidelity & Guar. Co.
*409 HOUSTON, Justice.
The appeal is dismissed ex mero motu.
On March 7, 1984, the trial court granted a summary judgment in favor of each of the defendants. Though it was not necessary, since all claims as to all served defendants were adjudicated, so that the judgment was "final" anyway, the trial court used the following language: "and further, the Court expressly directs that said judgments be entered and made final in accordance with the provisions of Rule 54(b) of the Alabama Rules of Civil Procedure."
On November 14, 1985, over 20 months after final judgment, appellant Johnny Corretti filed a Rule 60(b)(6) motion for relief from the summary judgments, alleging a lack of notice.
On January 29, 1986, the trial court entered the following order:
Rule 77(d), Ala.R.Civ.P., provides in pertinent part:
Rule 60(b), Ala.R.Civ.P., cannot be substituted for the exclusive remedy provided by Rule 77(d) and thereby used as a method to extend the time within which to appeal. Cockrell v. World's Finest Chocolate Co., 349 So. 2d 1117, 1119 (Ala.1977); see Hayden v. Harris, 437 So. 2d 1283, 1287 (Ala.1983).
Rule 77(d), Ala.R.Civ.P., controls this case and prevents the lack of notice of the entry of an appealable order or judgment from being a ground for a Rule 60(b) motion. To the extent that Snowden v. United Steelworkers of America, 435 So. 2d 62 (Ala.1983), is contrary to our holding in this case, it is expressly overruled. This Court looks to substance and not form in determining the nature of a motion, see Ex parte Lang, 500 So. 2d 3 (Ala.1986); even so, treating his Rule 60(b) motion as a motion for relief under Rule 77(d) would not help Corretti, because the trial court has no jurisdiction of a Rule 77(d) motion filed more than 72 days (i.e., 42 days for appeal, Rule 4, Ala.R.App.P., plus 30 days under Rule 77(d), as extended by Rule 6(a), Ala.R. Civ.P., when the final day is a Saturday, Sunday, or "legal holiday") after the entry of an appealable order or judgment. Certainly, it has no jurisdiction of the motion in this case, which was filed 617 days after such a judgment.
The January 29, 1986, order is void. Because the notice of appeal was not timely filed, the appeal is dismissed.
APPEAL DISMISSED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur. | May 8, 1987 |
2e0abb92-f03a-4261-a087-b0e9448c4712 | Watson v. Trail Pontiac, Inc. | 508 So. 2d 262 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 262 (1987)
Fredrick S. WATSON
v.
TRAIL PONTIAC, INC.
85-1572.
Supreme Court of Alabama.
May 29, 1987.
*263 Richard R. Williams of Williams & Scales, Mobile, for appellant.
William H. McDermott and Steven L. Nicholas of Sirote, Permutt, McDermott, Slepian, Friend, Friedman, Held & Apolinsky, Mobile, for appellee.
HOUSTON, Justice.
The plaintiff, Fredrick S. Watson, appeals from a summary judgment granted in favor of the defendant, Trail Pontiac, Inc., in this action to recover damages for fraud. We reverse and remand.
The sole issue in this case is whether the plaintiff's action is time barred.
The defendant contends, and for purposes of this appeal we will assume, that the plaintiff's cause of action accrued on May 5, 1984. The plaintiff filed this action on May 17, 1985. Therefore, the defendant argues that the plaintiff's action is barred by the one year-statute of limitations applicable to fraud actions, §§ 6-2-39 and 6-2-3, Code 1975, which were in effect at the time the plaintiff's cause of action accrued.
The plaintiff contends that his action is not barred, because the legislature, effective January 9, 1985, abolished § 6-2-39, the one-year statute of limitations, and transferred the one-year actions to § 6-2-38, the two-year statute, and amended § 6-2-3, the "saving clause," to recognize that fraud actions were thenceforth subject to the two-year statute.[1] Therefore, he argues that § 6-2-38 and § 6-2-3, as amended, control this case because they were in effect at the time he filed this action. We agree.
A statute of limitations is generally viewed as a remedial statute so that the statute in effect at the time the action is filed rather than the one in effect at the time of the accrual of the cause of action applies unless the later statute clearly states to the contrary. Street v. City of Anniston, 381 So. 2d 26 (Ala.1980).
The question, then, is one of determining the intent of the legislature. Were the transfer of fraud actions to the two-year statute and the corresponding "two-year" amendment in the "saving clause," § 6-2-3, intended by the legislature to apply to causes of action which accrued prior to January 9, 1985, but on which suits were not brought until after that date? Prior to January 9, 1985, § 6-2-3 read as follows:
The 1985 amendment substituted "two years" for "one year." There is nothing in the statutes indicating that the legislature did not intend for the two-year limitations period to apply to causes of action which accrued prior to January 9, 1985, but on which suits were not brought until after that date. Of course, actions time barred as of the date of the amendment were not revived. See Tyson v. Johns-Manville Sales Corp., 399 So. 2d 263 (Ala.1981).
Therefore, because the plaintiff filed this action within two years from May 5, 1984, it was not time barred. The summary judgment in favor of the defendant should not have been granted.
REVERSED AND REMANDED.
MADDOX, ALMON, BEATTY and STEAGALL, JJ., concur.
[1] See Ala.Acts 1984-85, Act No. 39. | May 29, 1987 |
19656239-3beb-4d3a-9684-c53287559f9b | Archie v. Enterprise Hosp. & Nursing Home | 508 So. 2d 693 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 693 (1987)
Kathy A. ARCHIE
v.
ENTERPRISE HOSPITAL AND NURSING HOME.
85-469.
Supreme Court of Alabama.
June 5, 1987.
*694 Henry D. Binford of Nomberg & McCabe, Daleville, for appellant.
Fred W. Tyson of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellees.
ALMON, Justice.
The question presented in this case is whether the trial court erred in granting a motion to dismiss the complaint on the ground that the statute of limitations had run. Almost five years after the occurrence of the alleged tortious conduct, Kathy A. Archie filed a two-count complaint against Enterprise Hospital and Nursing Home. The counts were styled "Intentional Infliction of Emotional Distress" and "Tort of Outrageous Conduct," but the underlying facts at least arguably constitute a trespass to her person.
The statute of limitations for trespass to the person is six years. Code 1975, § 6-2-34(1). Code 1975, § 6-2-38(l) (as amended, 1984-85 Alabama Acts, No. 85-39, 2d Special Session), provides: "All actions for any injury to the person or rights of another[1] not arising from contract and not specifically enumerated in this section[2] must be brought within two years."
This Court has recognized a cause of action against "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another." American Road Service Co. v. Inmon, 394 So. 2d 361, 365 (Ala.1980). Because the tort of outrageous conduct is an adoption of the tort set forth in the American Law Institute's Restatement (Second) of Torts § 46 (1965), see Inmon at 362, and because that tort is often referred to as the intentional infliction of emotional distress, *695 the two counts of the complaint state the same cause of action, if they state a cause of action at all.
The question of the statute of limitations for this cause of action was not addressed in Inmon, nor has it been addressed in the cases appealed to this Court between then and now. Two writers on civil actions and limitations of actions in Alabama have expressed the opinion that this cause of action would be governed by § 6-2-38(l). G. McLeod, Civil Actions at Law in Alabama (1980), p. 169 (Supp.1986); T. Hoff, Alabama Limitations of Actions and Notice Provisions (1984), p. 13 (Supp.1986).
Most other jurisdictions have applied a catch-all "other personal injury actions" statute of limitations rather than one for specific torts such as assault. Mays v. Three Rivers Rubber Corp., 135 Mich.App. 42, 352 N.W.2d 339 (1984); Yeager v. Local Union 20, Teamsters, etc., 6 Ohio St.3d 369, 453 N.E.2d 666 (1983); and Ford v. Hutson, 276 S.C. 157, 276 S.E.2d 776 (1981). In Williams v. Lee Way Motor Freight, Inc., 688 P.2d 1294 (Okla.1984), the court rejected the defendant's argument that "because Dean [v. Chapman, 556 P.2d 257 (Okla.1976), recognizing the tort] adopted the Restatement of Torts (Second) comment (d) of § 46, it should also adopt the rationale of comment (b) of that section which states that intentional infliction of emotional distress may be regarded as an extension of the tort of assault," 688 P.2d at 1296, and that therefore the statute of limitations for assault should govern. The court in Williams held that the catch-all statute of limitations applied.
In Guthrie v. J.C. Penney Co., 803 F.2d 202 (5th Cir.1986), however, the court affirmed the district court's choice of Mississippi's one-year limitation for assault, battery, menace, and other specified torts over the six-year catch-all limitation, relying on a Mississippi case holding that the one-year period applied to actions of the type enumerated, and affirming the holding that intentional infliction of emotional distress is the same type of tort as menace.
While these decisions are informative, they do not necessarily aid us in applying the statutes of limitations of this state. Rather than one list of specified torts and one catch-all provision, we have one statute of limitations for actions for "any trespass to person or liberty" and one that has consistently been held to apply to actions for trespass on the case and to other torts not elsewhere specified. The test for whether a complaint states a cause of action for trespass or for trespass on the case is whether the tort was committed by a direct application of force or was accomplished indirectly. Lovell v. Acrea, 500 So. 2d 1082 (Ala.1986); Teng v. Saha, 477 So. 2d 378 (Ala.1985); Strozier v. Marchich, 380 So. 2d 804 (Ala.1980); and Sasser v. Dixon, 290 Ala. 17, 273 So. 2d 182 (1973); see Hoff, op. cit.
Under this analysis, the tort of intentional infliction of emotional distress would come within the provisions of § 6-2-38(l), whether as a newly-recognized tort not elsewhere enumerated or as coming within the indirect trespass-on-the-case class of torts. The latter point can be clearly seen from the fact that the impetus for recognition of the tort came from situations where there was neither physical injury (and thus, necessarily, not a battery or other direct, forcible trespass) nor even an assault threatening such injury, but the defendant's conduct was so outrageous and the emotional harm so severe that the common law tradition of allowing new causes of action came into play. See Restatement (Second) of Torts § 46 (1965), and W. Prosser, The Law of Torts, pp. 49-62 (4th ed. 1971).
Thus, we hold that the tort of outrage or intentional infliction of emotional distress is governed by the two-year statute of limitations found in § 6-2-38(l) or, in casessuch as this onearising before January 9, 1985, by the one-year limitation of former § 6-2-39(a)(5). See also Eidson v. Johns-Ridout's Chapels, Inc., 508 So. 2d 697 (Ala.1987). Therefore, Archie's argument, that a claim for intentional infliction of emotional distress is, as such, a claim for trespass to the person, must fail.
The question remains, however, whether the trial court erred in granting the motion *696 to dismiss the instant complaint because the facts alleged constitute a trespass. The complaint reads as follows:
"(TORT OF OUTRAGEOUS CONDUCT)
This complaint is so explicitly couched in terms of the tort of intentional infliction of emotional distress that we cannot say it states a cause of action for trespass to the person. A given set of facts may give rise to more than one cause of action, and if a plaintiff elects to pursue only one such cause of action, the fact that an unpursued cause of action would have supported recovery will not bolster a cause of action which will not support recovery. Although the Alabama Rules of Civil Procedure have established notice pleading, see Rule 8, a pleading must give fair notice of the claim against which the defendant is called to defend. See Cutts v. American United Life Ins. Co., 505 So. 2d 1211 (Ala. 1987); Simpson v. Jones, 460 So. 2d 1282 (Ala.1984); and State Farm Fire & Casualty Co. v. Fincher, 454 So. 2d 936 (Ala. 1984).
Because both counts of the complaint stated a cause of action that was barred by the statute of limitations found in § 6-2-39(a)(5), and because the complaint did not seek damages for a cause of action, such as trespass to the person or assault and battery, governed by the six-year limitation of § 6-2-34, the trial court *697 did not err in granting the motion to dismiss. The judgment is therefore affirmed.
AFFIRMED.
All the Justices concur.
[1] The phrase "of another" does not make this provision applicable only to actions by third parties, such as an action by a guardian for injuries to a ward. Under such an interpretation, there would be no statute of limitations for trespass on the case and many other tort actions. The predecessor of this provision, § 6-2-39(a)(5), repealed by Act No. 85-39, was universally interpreted as applying to direct actions by the injured party. The phrase must be interpreted as meaning an injury to one other than the tort-feasor, even though this creates something of a tautology (that is, in the absence of these words, the statute would not be taken to mean an action for injuries by the tort-feasor to his own person or rights; therefore, their inclusion adds nothing to the meaning).
[2] This should be interpreted to read "article," because all personal injury actions enumerated in § 6-2-38 have a two-year statute of limitations, but personal injury actions enumerated elsewhere in article 2 of chapter 2 of title 6, such as those in § 6-2-34, would not have a two-year statute of limitations simply because they are not enumerated again in § 6-2-38. | June 5, 1987 |
1deb96b5-7e9c-4a77-bdce-991d653d038f | Smith v. City of Gardendale | 508 So. 2d 250 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 250 (1987)
Harold L. SMITH and Mavis L. Smith
v.
CITY OF GARDENDALE, et al.
85-354.
Supreme Court of Alabama.
May 29, 1987.
Julie B. Di Vito, Gardendale, for appellants.
*251 Patrick H. Boone of Perdue, Johnson & Boone, Birmingham, for appellees City of Gardendale, William Noble, and George Malone.
Frank M. Bainbridge and Bruce F. Rogers of Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellees J.H. Berry Realty Co., Inc., James Brooks, Harvey Birch, Jennings Barganier and Charlotte Johnson.
PER CURIAM.
The plaintiffs, Harold L. Smith and Mavis L. Smith, appeal from a summary judgment in favor of all defendants. We affirm.
In 1979 the Smiths purchased a new house in Brentwood Estates, a subdivision located in Gardendale, Alabama. The subdivision was developed by J.H. Berry Realty Company, Inc. (Berry Realty), and the house purchased by the Smiths was built and owned by Berry Realty. The Smiths first looked at the house in February 1979. They inspected the house and lot on several occasions prior to executing an offer to purchase the house on February 11, 1979. The closing was held on April 3, 1979.
Prior to the closing date, the Smiths had indicated concern over the closeness of the lot line and fence to the rear of the house, and they asked representatives of the developer and the real estate agent about it. In addition, Mr. Smith contacted the Gardendale building inspector in an effort to determine whether there was a violation of any city ordinance regarding the way the house was situated on the lot.
After purchasing the house, the Smiths continued to make inquiries, ultimately learning that the Gardendale ordinance contains a section requiring a rear yard of not less than forty feet. The survey of the house and lot, which the Smiths received at the closing, reflected the distance from the house to the rear lot lines to vary from 18.6 feet to 46.9 feet. In a letter dated July 25, 1979, William Noble, mayor of Gardendale, responded to Mr. Smith as follows:
Mr. Smith acknowledged receipt of Noble's letter in a letter to Noble dated July 28, 1979.
The Smiths filed a complaint on August 12, 1985, naming as defendants the City of Gardendale; William Noble, mayor of Gardendale; George Malone, building inspector of Gardendale; Berry Realty; James Brooks, president of Berry Realty; Jennings Barganier, construction foreman for Brentwood Estates subdivision; Charlotte Johnson, a real estate agent employed by Berry Realty; and Harvey Birch, construction foreman for Berry Realty.
The complaint alleged that the actions of the defendants were violative of 42 U.S.C. § 1983 and § 1985. The Smiths claim that the defendants participated in a conspiracy and agreement between themselves for the purpose of obstructing and defeating justice and denying equal protection under the law to the Smiths. Specifically, the Smiths allege that the house which they purchased was approved and constructed in violation of the requirement of the Gardendale zoning code because the rear yard does not contain 40 feet. The Smiths claim that the City of Gardendale and the building inspector have continued to issue building permits in violation of the zoning ordinance in conspiracy with the other defendants. In addition, the complaint alleged that the defendants have allowed other construction to proceed in violation of zoning ordinances, and that they have participated in securing variances without meeting ordinance requirements.
In the order granting summary judgment for the defendants, the trial court noted that all defendants took the position that the claims set out by the Smiths are time-barred. The Smiths contend that the statute of limitations applicable to their *252 § 1983 claim is six years, as provided by Ala.Code 1975, § 6-2-34(1). They rely upon Jones v. Preuit & Mauldin, 763 F.2d 1250 (11th Cir.1985), in which the United States Court of Appeals for the Eleventh Circuit concluded:
763 F.2d at 1256.
According to the Smiths' argument, the application of the six-year statute of limitations in § 1983 actions by federal courts in Alabama is binding on the state courts in Alabama. Citing Central of Georgia Ry. v. Ramsey, 275 Ala. 7, 151 So. 2d 725 (1962), as authority, the Smiths contend that because they seek relief under a federal statute, the statute and federal decisions construing it determine the time for bringing the action, with any state law to the contrary having no application.
In this case, however, we need not address any differences that may exist in the characterization of § 1983 claims for statute of limitations purposes by federal courts and state courts in Alabama. The determining factor in this case involves when the Smiths' cause of action accrued.
As stated in Stewart v. City of Northport, 425 So. 2d 1119, 1122 (Ala.1983):
The Smiths knew or had reason to know of their injury, which is the basis of this action, at least as early as July 28, 1979, the date on which Mr. Smith acknowledged receipt of the mayor's letter notifying Mr. Smith that "[i]t appears that your house is located less than the required rear set back line."
Reviewing the facts in the light most favorable to the Smiths, as we are required to do, we are of the opinion that the Smiths filed this action more than six years from the time their alleged cause of action accrued. Their claim would be barred even by the six-year statute of limitations that they contend is applicable in this case.
Our review of a summary judgment is subject to an often-stated standard.
Sanders v. White, 476 So. 2d 84, 85 (Ala. 1985). Having reviewed the record, including the pleadings, depositions, and affidavits that were before the trial judge, we find no genuine issue of material fact with respect to the Smiths' claim. The trial court properly granted summary judgment in favor of the defendants.
AFFIRMED.
JONES, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | May 29, 1987 |
bf729594-31d4-4b39-90ea-e1254e1e4230 | Eidson v. Johns-Ridout's Chapels, Inc. | 508 So. 2d 697 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 697 (1987)
Anna K. EIDSON, et al.
v.
JOHNS-RIDOUT'S CHAPELS, INC.
85-1269.
Supreme Court of Alabama.
May 22, 1987.
Stephen D. Heninger of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
Thomas W. Christian and Karon O. Bowdre of Rives & Peterson, Birmingham, for appellee.
MADDOX, Justice.
The sole question in this case is whether the plaintiffs' suit was time barred. To answer that question, we must revisit the distinctions between an action for trespass and an action for trespass on the case, and determine whether plaintiffs' suit against a funeral home, in which they claimed damages for breach of contract, for trespass, *698 and for outrageous conduct, was an action for trespass, or whether it was an action for trespass on the case; we must also determine whether, under the facts of this case, the alleged wrong resulted from a breach of promise or from a breach of a duty growing out of the relationship of the parties or imposed by law.
The trial court granted summary judgment in favor of the defendant, and found that the plaintiffs should have filed their action within one year of the date of the occurrence causing the alleged injury and damages. The one-year limitations period applies in this case because of the time when the alleged cause of action arose.[1]
Dennis M. Eidson, husband of Anna Eidson, died in 1979 while on a business trip to South Africa. Arrangements were made by his employer, Quartrol Corporation, to have the body shipped by air from South Africa to the Johns-Ridout's Chapel in Birmingham, Alabama; Quartrol also purchased and shipped a casket for Eidson's burial. Deposition testimony shows that employees of Johns-Ridout's picked up Eidson's body at the Birmingham airport and transported it to their mortuary. According to the Eidsons, a Johns-Ridout's representative suggested that the family not try to view the body at the airport, but rather wait until Johns-Ridout's could remove the body from its shipping case and prepare it for viewing. The plaintiffs claim that in a later telephone conversation a Johns-Ridout's representative told them that the casket purchased by Quartrol was not of an American type and that it had been damaged in transit and suggested that they consider purchasing another one. During that conversation, Gregory Eidson, the son of the deceased, and Anna, his widow, told the representative that the family wished to view the body the following morning, Saturday, February 10, 1979, and asked to be notified beforehand if the body would not be ready for viewing at that time. When the Eidson family arrived at Johns-Ridout's the next morning, they claim, they were led to a garage, where the body lay, still in the "sardine can" shipping case, amid garbage cans and people working on automobiles. The Eidsons stated in their depositions that the body was floating in formaldehyde; that there were no shoes on the body; that the body was covered with straw; and that formaldehyde was dripping from the shipping case onto the floor of the garage. The Eidsons stated in their depositions that, while having to view the body of a loved one under such unpleasant conditions, a Johns-Ridout's representative approached the widow to suggest that she consider buying another casket. Ben Staton, president of Quartrol, who had been present at the viewing, stated in his deposition that the Johns-Ridout's representative said, "You mean that you're going to bury a loved one in a casket like that?" After the family indicated that they were not interested in purchasing another casket, the body was satisfactorily prepared and buried by Johns-Ridout's. The Eidsons contend that the Johns-Ridout's employee deliberately showed the body of Dennis Eidson to them in its unprepared condition with the intent of shocking them into purchasing a more expensive casket. Their contract claim, as we understand their argument, is based upon the defendant's breach of its promise to have the body properly prepared for viewing.
According to the complaint, and according to the deposition testimony of the Eidsons, all of the family members who viewed the body in the "sardine can" shipping crate were greatly traumatized at that time and were caused to suffer great mental distress that has continued from that time to the present. It is undisputed that no one in the Eidson family complained to Johns-Ridout's or contacted an attorney until *699 nearly five years later. The Eidsons filed suit on February 21, 1984, against Johns-Ridout's and four fictitious parties, who have never been named, alleging outrageous conduct, trespass, and breach of contract. The trial court granted summary judgment for the defendants on the outrageous conduct and trespass counts on February 14, 1986, and on the contract count on July 22, 1986, on the ground that the statute of limitations had run. Whether the suit was time barred is the only issue raised by the appellants on appeal.
We first consider whether, by these alleged facts, plaintiffs have presented a scintilla of evidence to support a claim against the funeral home on a theory of trespass.
Actions for trespass are governed by the six-year statute of limitations in Alabama, while actions for trespass on the case at the time this cause of action accrued were governed by the one-year statute. C.O. Osborn Contracting Co. v. Alabama Gas Corp., 273 Ala. 6, 135 So. 2d 166 (1961); Code 1975, § 6-2-34(1). The Eidsons contend that summary judgment was improperly granted on their outrageous conduct and trespass counts because the actions of the Johns-Ridout's representative constituted common law trespass because the injury was "direct" and "immediate." This is a novel argument, but we find no legal support for it. We disagree.
One of the leading decisions in Alabama explaining the distinction between trespass and trespass on the case is Sasser v. Dixon, 290 Ala. 17, 273 So. 2d 182 (1973). There, this Court wrote:
290 Ala. at 19-20, 273 So. 2d at 183-84.
The Eidsons argue that the tort of outrageous conduct, as that cause of action is defined in American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1980), requires a showing of the direct application of force, and thus that the action sounds in trespass and is governed by the six-year statute, Code 1975, § 6-2-34(1). In Inmon, this Court defined the elements of outrageous conduct as follows:
394 So. 2d at 365.
The Eidsons contend that the conduct of the Johns-Ridout's employees was beyond all possible bounds of decency, involving direct and intentional conduct historically characteristic of trespass. In support of their contention, they cite this Court's cases of W.T. Ratliff Co. v. Henley, 405 So. 2d 141 (Ala.1981); Born v. Exxon Corp., 388 So. 2d 933 (Ala.1980); Borland v. Sanders Lead Co., 369 So. 2d 523 (Ala. 1979); and Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So. 2d 94 (1974). While plaintiffs recognize that these cases all involve damage to property, they contend that the analysis of the "direct force" concept in those cases is similar to the analysis which must be applied in personal *700 injury actions involving alleged intentional infliction of severe emotional distress.
In City of Fairhope v. Raddcliffe, 48 Ala.App. 224, 263 So. 2d 682 (1972), Judge Wright, writing for the Court of Civil Appeals, stated:
In Raddcliffe, however, the Court of Civil Appeals held as follows:
48 Ala.App. at 226-27, 263 So. 2d at 684-85.
In J. Shipman, Handbook of Common-Law Pleading § 39 (3d ed. 1923), the distinctions between trespass and case are further examined:
We conclude that the actions of the defendants in allowing the Eidsons to view the body of Dennis Eidson in such disturbing circumstances, being neither actual nor implied force directed upon the persons of the plaintiffs, if actionable at all, would be actionable as a trespass on the case. The plaintiffs waited more than five years after the incident to file their lawsuit; the one-year period of limitations for actions on the case had already run. The trial court properly granted summary judgment in favor of the defendants on their outrageous conduct and trespass counts.
The Eidsons next contend that summary judgment was improperly granted on their claim for breach of contract. The evidence presented in opposition to summary judgment is sufficient for a jury to find that Anna Eidson contracted with Johns-Ridout's and subsequently paid for the transportation of the body from the airport; for preparation for viewing; for the wake; and for the burial services. The trial court granted summary judgment, reasoning that any action arising under these particular facts, and involving this claim, would lie ex delicto and not ex contractu, and thus that this claim also would be barred by the one-year statute of limitations applicable at the time the alleged cause of action occurred. We can appreciate the dilemma faced by the learned trial judge, because this Court has had difficulty agreeing on cases involving the question of whether an action is ex delicto or ex contractu, but we hold that plaintiffs produced at least a scintilla of evidence that the defendants made specific promises to plaintiffs and then failed to perform as promised.
Paragraph four of the plaintiffs' complaint contains their breach of contract claim. The plaintiffs assert that "defendants breached their contract, both implied and express, with the plaintiff by acting in a manner outside the scope of a reasonable funeral home in conducting preparation of the body for funeral services by contacting the plaintiff [and] in soliciting her coming to the funeral home to view the body in an unacceptable state in an effort to have the plaintiff buy a more expensive casket in preparation for the service."
The plaintiffs contend that a contractual obligation arose when they relied on the promises of Johns-Ridout's representatives that the body would be ready for viewing when they arrived at the mortuary on that Saturday morning, and that Johns-Ridout's breached that obligation by failing to properly prepare the body. Of course, after the plaintiffs had seen the body in the condition about which they complain, it was prepared for viewing at the wake, and the Eidsons make no claim that the funeral itself was not performed satisfactorily, nor that the transportation or communications charges were improper. In short, the plaintiffs do not contend that they failed to receive what *702 they bargained for, except they contend that the defendants failed to have the body prepared for viewing as promised, and that the defendants intended that they see the body in the "sardine can" so they would purchase a better casket.
Does the plaintiffs'"contract" claim sound in tort or contract? We are of the opinion that the plaintiffs' allegations and proof support a contract action and entitle them to a trial.
As pointed out earlier, this Court has had many occasions to examine claims to determine whether they sound in tort or in contract, and the Court has been frequently divided in the resolution of this issue. See Horton v. Northeast Alabama Regional Med. Ctr., Inc., 334 So. 2d 885 (Ala.1976); Berry v. Druid City Hosp. Bd., 333 So. 2d 796 (Ala.1976); Hembree v. Hospital Board of Morgan County, 293 Ala. 160, 300 So. 2d 823 (1974); Smith v. Houston County Hosp. Bd., 287 Ala. 705, 255 So. 2d 328 (1971); Paul v. Escambia County Hosp. Bd., 283 Ala. 488, 218 So. 2d 817 (1969); Vines v. Crescent Transit Co., 264 Ala. 114, 85 So. 2d 436 (1956).
In Wilkerson v. Moseley, 18 Ala. 288, 290-91 (1850), quoted in Mobile Life Ins. Co. v. Randall, 74 Ala. 170, 177 (1883), Mr. Justice Parsons, writing for the Court, discussed the standard for determining whether a cause of action sounded in contract or in tort. He said:
In Waters v. American Casualty Co., 261 Ala. 252, 73 So. 2d 524 (1953), this Court said:
261 Ala. at 258, 73 So. 2d at 525.
In Jefferson County v. Reach, 368 So. 2d 250 (Ala.1978), this Court discussed the distinction between a breach of contract and a breach of a duty imposed by law:
368 So. 2d at 252.
We point out once again that plaintiffs' appeal is from the trial court's granting of defendants' motion for a summary judgment. In Payne v. Alabama Cemetery Ass'n, Inc., 413 So. 2d 1067 (Ala.1982), this Court set out the rule of review we follow in such cases:
Was there a scintilla of evidence that defendants breached a promise and that plaintiffs suffered damages as a proximate consequence of the breach? We believe so.
We reach this conclusion based, in part, on the fact that in Alabama cases in which one seeks to impose legal liability because of interference with a dead body raise peculiar problems and are generally recognized to be sui generis. For an excellent discussion of the Alabama cases involving actions by survivors for an alleged "interference with dead bodies," see, Payne, "Recovery of Damages for Unpleasant Mental Stimuli," 3 Ala.L.Rev. 30, 46-51, (1950); see also Jordan Undertaking Co. v. Asberry, 230 Ala. 97, 159 So. 683 (1935); Jefferson County Burial Society v. Scott, 218 Ala. 354, 118 So. 644 (1928); (2d appeal) 223 Ala. 384, 136 So. 788 (1931); (3d appeal) 226 Ala. 556, 147 So. 634 (1933); Union Cemetery Co. v. Alexander, 14 Ala.App. 217, 69 So. 251 (1915); Birmingham Transfer & Traffic Co. v. Still, 7 Ala.App. 556, 61 So. 611 (1913);
Although we hold that the plaintiffs have shown that they are entitled to prove, if they can, their contract claim, they will have to prove the contract which they claim has been breached. Newton v. Brook, 134 Ala. 269, 32 So. 722 (1901). We say this because an action for interference with a body may be in pure tort, or, as in the case of a nonfeasance, in pure contract. If there has been a misfeasance in an intermediate situation which constitutes a breach of the contract, the claimants clearly may recover in tort. This Court has held, however, that where a contract is alleged and the proof shows only conduct on the part of the defendant which constitutes a misfeasance, the contract must be shown to support the cause of action. Brown Funeral Homes Ins. Co. v. Dobbs, 228 Ala. 482, 153 So. 737 (1934).
Based on the foregoing, we are of the opinion that the judgment of the trial court is due to be affirmed, in part, and reversed, in part, and that the cause is due to be remanded to the trial court for proceedings consistent with this opinion.
AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED.
ALMON, SHORES, BEATTY, ADAMS, HOUSTON, and STEAGALL, JJ., concur.
TORBERT, C.J., and JONES, J., concur in the result.
[1] Effective January 9, 1985, § 6-2-39, the one-year statute, was repealed by Ala. Acts 1984-85, No. 85-39, § 3. The applicable period of limitations for "[a]ll actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section" is now two years, § 6-2-38(l). The two-year statute of limitations has no application to this action, which was based upon actions occurring in February 1979, and which was filed in February 1984. | May 22, 1987 |
17be8f12-be02-4b9d-a5f3-026949de53e3 | Sharpe v. CROOK REALTY COMPANY | 508 So. 2d 262 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 262 (1987)
Willie SHARPE, Jr., and Darnette Sharpe
v.
CROOK REALTY COMPANY and Robert L. Crook.
85-1571.
Supreme Court of Alabama.
May 29, 1987.
Bill Thomason, Bessemer, for appellants.
William J. Sullivan, Jr. and Turner B. Williams of Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellees.
HOUSTON, Justice.
Plaintiffs, Willie Sharpe, Jr., and Darnette Sharpe, appeal from a summary judgment granted in favor of the defendants, Crook Realty Company and Robert L. Crook, in this action to recover damages, for fraud and breach of contract.
Summary judgment on the fraud count is affirmed on the authority of Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757 (Ala.1983). Summary judgment on the breach of contract count is affirmed on the authority of Sexton v. Liberty Nat'l Life Ins. Co., 405 So. 2d 18 (Ala.1981) (merger doctrine).
AFFIRMED.
MADDOX, ALMON, BEATTY and STEAGALL, JJ., concur. | May 29, 1987 |
6f32b6e0-4ca5-43dd-a25f-8cc0439595b1 | Powell v. Central Bank of the South | 510 So. 2d 171 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 171 (1987)
Dudley S. POWELL, Jr., and Diane H. Powell
v.
CENTRAL BANK OF THE SOUTH.
85-1445.
Supreme Court of Alabama.
May 29, 1987.
Rehearing Denied June 26, 1987.
David P. Shepherd, Fairhope, for appellants.
John M. Heacock, Jr., of Lanier, Shaver & Herring, Huntsville, for appellee.
SHORES, Justice.
This is an appeal from an order denying a Rule 60(b)(4), Ala.R.Civ.P., motion to set aside a default judgment entered in favor of the plaintiff, Central Bank of the South, against the defendants, Dudley and Diane Powell. We affirm.
In April 1985, Central Bank of the South (hereinafter "Central Bank") filed suit in Madison County against the Powells on a promissory note that had been executed by the Powells in Huntsville, Alabama. After *172 process by certified mail at an address in Miami Lakes, Florida, was returned unclaimed, Central Bank obtained an order, pursuant to Rule 4.2(b)(2), Ala.R.Civ.P., designating Attorneys Process Service, International, or any of its authorized agents, to serve the summons and complaint upon the Powells. The process server, in compliance with Rule 4.1(b)(3), returned the process indicating that service had been accomplished at the same address to which the certified envelopes had been mailed.
The Powells failed to respond, and a default judgment was entered against them on September 27, 1985. On December 26, 1985, the Powells filed a motion to set aside the default judgment on the ground that the judgment was void because they had not been served with a summons and complaint.
On February 13, 1986, the trial court conducted a hearing on the Powells' motion. The Powells were the only parties to present any evidence, and the extent of their testimony was that they had not been served. They offered no evidence to corroborate or support their denial of service of process. On September 18, 1986, the trial judge overruled the Powells' motion to set aside the default judgment, and this appeal followed.
The issue before us on appeal is whether an out-of-state process server's return of service, in proper form, is entitled to the same presumption of correctness given a sheriff's return of service. We answer in the affirmative.
Rule 4.2(b)(2)(A), Ala.R.Civ.P., provides for service of process, upon written request, on an out-of-state "person" by a person designated by order of the court. The process server may be any person not less than 18 years of age who is not a party and who has been designated by the court. Rule 4.2(b)(2)(B) allows for proof of service as prescribed by Rule 4.1(b)(3) or by order of the court.
Pursuant to Rule 4.2(b)(2), upon written request of Central Bank, Attorneys Process Service, International, or any of its authorized agents, was designated as process server by order of the court. In accordance with Rule 4.1(b)(3), the process server endorsed the fact of delivery on the process and returned it to the clerk. Rule 4.1(b)(3) further provides that the return of the person serving process in the prescribed manner shall be prima facie evidence of such fact. The presumption is given to any return properly executed by a person designated by order of the court. Therefore, since Rule 4.1(b)(3) is incorporated into Rule 4.2(b)(2)(B), a return of service, properly executed, by an out-of-state process server designated by order of the court is presumed to be correct.
The presumption of correctness is not conclusive, but the party challenging the return has the burden of establishing lack of service by clear and convincing evidence. Raine v. First Western Bank, 362 So. 2d 846, 848 (Ala.1978). In addition, a properly executed return will not be invalidated upon the uncorroborated statements of the parties in which they deny service upon themselves. Raine, supra. Corroboration does not necessarily mean that there must be additional, supporting testimony from another person; however, a mere denial by the party challenging the return is insufficient. Raine, supra. There must be additional evidence, such as statements of fact, tending to support the denial of service of process. See, e.g., Nolan v. Nolan, 429 So. 2d 596 (Ala.Civ.App. 1982), where the only evidence presented was the testimony of the party successfully challenging the return, but that party was able to provide additional facts in her testimony which tended to support her denial of service of process.
In the case at hand, the only evidence presented by Dudley and Diane Powell was their denial of service of process; both made that denial. No supporting or corroborating evidence was offered, and as previously stated, this testimony alone, as a matter of law, is insufficient to overcome the presumption of correctness given a properly executed return of service of process.
Other states have explained the pragmatic reasons for this rule in various ways. *173 The Supreme Court of North Carolina stated:
Guthrie v. Ray, 293 N.C. 67, 235 S.E.2d 146, 149 (1977). And in Florida, an appellate court recently held:
Slomowitz v. Walker, 429 So. 2d 797, 799 (Fla.Dist.Ct.App.1983).
The appellants argue that the out-of-state process server's return should not be given the presumption of correctness because he is out of state and beyond the subpoena power of the court. This is incorrect. By allowing himself to be designated as process server by order of the court, the out-of-state process server becomes subject to the personal jurisdiction of the court, at least for the limited purpose of explaining the circumstances of the service of process.
Therefore, because the Powells failed to meet their burden of proof, we cannot hold that the judgment was void or that the trial court abused its discretion in denying the Rule 60(b)(4) motion to set aside the default judgment.
The order of the trial court denying the defendants' motion to set aside the default judgment is affirmed.
AFFIRMED.
MADDOX, JONES, ADAMS and STEAGALL, JJ., concur. | May 29, 1987 |
381fb01e-1e86-4f00-bd94-91a3e4b25a69 | Lewis v. Sears, Roebuck & Co. | 512 So. 2d 712 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 712 (1987)
James E. LEWIS, Jr., as father of Robert Dean Lewis, a minor, deceased,
v.
SEARS, ROEBUCK & COMPANY and William B. Ingle.
James D. SEAGLE, as father of Amy Denise Seagle, a minor, deceased,
v.
SEARS, ROEBUCK & COMPANY and William B. Ingle.
85-1050, 85-1120.
Supreme Court of Alabama.
May 22, 1987.
Rehearing Denied July 31, 1987.
Alex W. Newton and Terrell Wynn of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
John M. Laney, Jr., and Steven A. Benefield of Rives & Peterson, Birmingham, for appellees.
PER CURIAM.
The sole question in these consolidated wrongful death claims is whether the trial court erred to reversal by charging the jury on the defense of contributory negligence. We hold that it did not.
James E. Lewis, Jr., filed suit for the death of Robert Dean Lewis, his son. James D. Seagle filed suit for the death of his daughter, Amy Denise Seagle. Both actions named Sears, Roebuck & Company and William B. Ingle, a Sears salesperson, as defendants.
About six months after Mr. Lewis purchased an automobile for his son Robert, he became aware of a muffler problem. Mr. Lewis took the automobile to Sears and claims he told the Sears representative "to repair everything that needed repair so that the car would be safe." Sears claims Mr. Lewis told them to repair only the muffler, and that he would take care of the tailpipe. The receipt given to Mr. Lewis did not reflect whether he had been told by either Mr. Ingle or Lorine Williams, the mechanic, that he needed a tailpipe.
Approximately five weeks later, a police officer found Robert and Amy slumped over in the back seat of the automobile, dead. The engine was running and all of the windows were "rolled up" except for a partially "rolled down" window in the rear door on the driver's side. The weather was cold and windy that night, in the "low 20's." The police officer could not remember finding fumes or smoke in the car when he arrived at the scene, but testified that later, when he drove the automobile, he detected exhaust smoke.
Jerome Tift, a pathologist for the Jefferson County coroner-medical examiner's office, examined the bodies and found that the two 17-year-olds had died from carbon *713 monoxide poisoning. He further was of the opinion that the source of the exhaust fumes and carbon monoxide poisoning was the tailpipe, because it was "too short."
The trial court instructed the jury on the defense of contributory negligence with regard to Mr. Lewis, Robert, and Amy. The issue before this Court, however, involves only the alleged contributory negligence of Robert and Amy.[1] The evidence offered by the defendants to support their claim of contributory negligence includes the fact that the rear window of the automobile was partially lowered; testimony by Dr. Tift and Sgt. Thornton that the appearance and odor of exhaust fumes was obvious when operating the automobile; and evidence that an extension had been added to the tailpipe.
"Contributory negligence [where the plaintiff is alleged to have assumed the consequences of placing himself into a dangerous position] requires a finding that the party charged has (1) knowledge of the condition; (2) an appreciation of the danger under the surrounding circumstances, and (3) a failure to exercise reasonable care by placing oneself in the way of danger. State Farm Mutual Auto. Ins. Co. v. Dodd, 276 Ala. 410, 162 So. 2d 621 (1964); Mackintosh Co. v. Wells, 218 Ala. 260, 118 So. 276 (1928)." Hatton v. Chem-Haulers, Inc., 393 So. 2d 950, 954 (Ala.1980). See, also, Cooper v. Bishop Freeman Co., 495 So. 2d 559 (Ala.1986). In Alabama the question of contributory negligence must be submitted to the jury "if the evidence or the reasonable inferences arising therefrom furnish a mere `gleam', `glimmer', `spark', `the least particle', `the smallest trace', or `a scintilla' in support of the theory." Dean v. Mayes, 274 Ala. 88, 145 So. 2d 439 (1962) (citing Alabama Great Southern R.R. v. Bishop, 265 Ala. 118, 89 So. 2d 738 (1956)."
The burden of proving contributory negligence and that it proximately caused the injury is on the defendant, and a determination of the existence of contributory negligence is for the jury where there is any credible evidence to the contrary. "Unless the evidence bearing upon this issue is entirely free of doubt or adverse inference, this question must be submitted to the jury for decision, under proper instructions by the court." Hatton, supra, citing Elba Wood Products, Inc. v. Brackin, 356 So. 2d 119 (Ala.1978). See, also, Capitol Motor Lines v. Billingslea, 246 Ala. 501, 21 So. 2d 240 (1945); Vaughn v. Dwight Mfg. Co., 206 Ala. 552, 91 So. 77 (1921).
The question, then, is, did the testimony or the inferences from the testimony at trial provide a scintilla of evidence in support of the defendants' affirmative defense of contributory negligence, i.e., could reasonable minds fairly infer from the evidence presented that Robert and Amy 1) knew of the condition; 2) appreciated the danger; and 3) with such knowledge and appreciation, failed to exercise reasonable care by placing themselves in the way of danger? Hatton, supra.
We answer this question in the affirmative. Given the officer's testimony that he detected exhaust fumes while driving the car, the jury could reasonably infer from the lowered window that one or both of the minors smelled the fumes, recognized the danger, and lowered the window, and that their presence in the idling automobile under these circumstances constituted negligence which proximately contributed to their deaths. Accordingly, it was not error for the trial court to charge the jury on the defense of contributory negligence. The judgment of the trial court is affirmed.
AFFIRMED.
*714 TORBERT, C.J., and MADDOX, ALMON, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
[1] Unquestionably, as the parties recognize, the conflicting evidence with respect to Mr. Lewis's instructions to Sears for the replacement and repair of the muffler and tailpipe raised a factual issue which was appropriately submitted for the jury's resolution. Because the jury returned a general verdict in each case, however, we cannot speculate whether the jury found for the defendants on their defense of the general denial, their affirmative defense of contributory negligence on the part of Mr. Lewis, or their affirmative defense of contributory negligence on the part of the two deceased minors. Thus, if the evidence is insufficient for submission to the jury on the contributory negligence defense as to Robert and Amy, the judgments must be reversed and the causes remanded for a new trial. | May 22, 1987 |
64941677-6f1a-40ed-8058-319b82c0ce0e | COLEY BY AND THROUGH COLEY v. Hendrix | 508 So. 2d 216 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 216 (1987)
J. Michael COLEY, a minor who sues By and Through his father and next friend, Jerry M. COLEY; and Jerry M. Coley, individually
v.
G.T. HENDRIX.
85-814.
Supreme Court of Alabama.
January 30, 1987.
On Rehearing May 29, 1987.
Richard E. Browning, Mobile, for appellant.
Bert S. Nettles, Mobile, for appellee.
On Rehearing Ex Mero Motu May 29, 1987.
BEATTY, Justice.
Affirmed on the authority of Kent v. Sims, 460 So. 2d 144 (Ala.1984); White v. Law, 454 So. 2d 515 (Ala.1984); Allen v. Whitehead, 423 So. 2d 835 (Ala.1982).
AFFIRMED.
MADDOX, JONES, ALMON and HOUSTON, JJ., concur.
PER CURIAM.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON, SHORES and BEATTY, JJ., concur.
JONES, ADAMS, HOUSTON and STEAGALL, JJ., dissent.
JONES, Justice (dissenting).
The majority, relying on Kent v. Sims, 460 So. 2d 144 (Ala.1984), White v. Law, 454 So. 2d 515 (Ala.1984), and Allen v. Whitehead, 423 So. 2d 835 (Ala.1982), is of the view that a change in our law would be required in order to reverse the summary judgment for the defendant in this dog-bite case. I respectfully disagree.
On December 7, 1983, a pit bulldog belonging to the defendant, G.T. Hendrix, attacked 8-year-old Michael Coley, causing him severe physical and emotional injury. This was the first time the 2-year-old dog had attacked anyone. The defendant's motion for summary judgment was countered by the plaintiffs' motion in opposition to summary judgment, supported by the affidavit of Dr. Randall Lockwood and by numerous documents, articles, and advertisements relating to the history and nature of pit bulldogs. The trial court also had before it the depositions of the defendant, the mother and father of Michael, and a neighbor of the defendant. The plaintiffs appeal from summary judgment entered in favor of the defendant.
Appellate review of the judgment below utilizes the same standard of testing the evidence that guided the trial court. Wright v. Robinson, 468 So. 2d 94 (Ala. 1985). That is, viewing all reasonable inferences from the facts most favorably to the nonmoving parties (the plaintiffs) (Cooper v. Elba Exchange Bank, 496 So. 2d 41 (Ala.1986)), and resolving any factual dispute or any doubt against the moving party (the defendant) (Cofield v. Smith, 495 So. 2d 61 (Ala.1986); Taylor v. Waters, 477 So. 2d 441 (Ala.Civ.App.1985)), we must determine whether there was any evidence offered by the plaintiffs to contradict the defendant's motion and create a triable issue of fact. See Horner v. First Nat. Bank of Mobile, 473 So. 2d 1025 (Ala.1985); Hart v. General Motors Acceptance Corp., 437 So. 2d 1255 (Ala.1983).
Applying this standard to the facts of this case, in light of the applicable substantive rule of law, I find that the evidence, and the reasonable inferences to be drawn from that evidence, did create a triable issue of fact. In my opinion, therefore, summary judgment was inappropriate.
I would not view a reversal of the trial court's ruling as a departure from the general rule of law that governs these "dog bite" cases. There is no merit to the oft-quoted maxim that a dog is "entitled to one free bite" before liability may be imposed upon the dog's owner. The law in Alabamaas *217 well as the general lawimposes liability on a dog owner for injury caused by the dog when the owner had knowledge or reason to know of the dangerous propensities of the dog. The owner's liability, however, is limited to the particular risk of harm which the owner knew or should have known to exist. Allen v. Whitehead, 423 So. 2d 835 (Ala.1982); Restatement (Second) of Torts, § 509 (1981).
Here, the defendant's motion for summary judgment required the trial court to determine whether there had been shown, either by positive proof or by inferences from the evidence, that the defendant had previous knowledge, actual or imputed, of his dog's propensity to cause the injury complained of here. The trial court held that the defendant was entitled to a judgment as a matter of law, "being of the opinion there [was] no genuine issue as to any material fact." This, in my opinion, was error.
The facts here do not present the "classic" dog-bite case. The trial court had before it documents which describe the history and nature of pit bulldogsanimals bred as tenacious attackers with a high tolerance for pain and with jaws capable of exerting 2,000 pounds of pressure per square inch. Reviewing this record, I cannot but find that the mere ownership of a pit bulldog may impute to the owner knowledge of the natural tendencies of that class of animalincluding an extreme aggressiveness toward other animals, a lack of external signs to warn of an impending attack, a refusal to cease an attack once it has begun, and a ratio of attack ten times greater than its proportionate representation in the canine population.
Other jurisdictions, in resolving the issue with which we are now faced, have held that the owner of a domestic animal is assumed to know the animal's general propensities and, therefore, is under a duty to use due care to prevent injury from the animal's reasonably anticipated behavior. Griner v. Smith, 43 N.C.App. 400, 259 S.E.2d 383 (1979). It has been held that evidence of a domestic animal's "vicious traits" is unnecessary when that animal has acted in accordance with its natural tendencies. Such action is reasonably foreseeable and, therefore, requires preventive control of the animal. Saldi v. Brighton Stock Yard Co., 344 Mass. 89, 181 N.E.2d 687 (1962). The general rule is aptly stated at 4 Am.Jur.2d Animals § 86 (1962) at 332, and § 90, at 337:
§ 86:
§ 90:
See, also, Mungo v. Bennett, 238 S.C. 79, 119 S.E.2d 522 (1961); Pennyan v. Alexander, 229 Miss. 704, 91 So. 2d 728 (1957); Loftin v. McCrainie, 47 So. 2d 298 (Fla. 1950).
I would hold that whether this defendant knew or should have known of the likelihood that his pit bulldog would attack a human was a question of fact, not to be decided on a motion for summary judgment. Barrett v. Farmers & Merchants Bank of Piedmont, 451 So. 2d 257 (Ala. 1984); Comment to A.R.Civ.P. 56. I do not believe the defendant met the burden of *218 establishing the absence of evidence supporting the plaintiffs' claims of negligence; therefore, in my opinion, summary judgment was improperly granted and the judgment should be reversed. See Fountain v. Phillips, 404 So. 2d 614 (Ala.1981); A.R. Civ.P. 50, 56.
ADAMS, HOUSTON, and STEAGALL, JJ., concur. | May 29, 1987 |
b65daa80-d213-4aeb-8184-122435b5579d | Ex Parte Finance America Corp. | 507 So. 2d 458 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 458 (1987)
Ex parte FINANCE AMERICA CORPORATION and Henrietta Bell.
(Re Charlsey HOPKINS v. FINANCE AMERICA CORPORATION, et al.).
86-32.
Supreme Court of Alabama.
March 20, 1987.
As Corrected on Denial of Rehearing May 8, 1987.
*459 Jack E. Held and Daniel J. Burnick of Sirote, Permutt, McDermott, Slepian, Friend, Friedman, Held & Apolinsky, Birmingham, for petitioners.
Bill Thomason, Bessemer, and Calvin D. Biggers and Edwin L. Davis, Tuskegee, for respondent.
HOUSTON, Justice.
This is a petition for a writ of mandamus to direct Judge Dale Segrest of the Macon County Circuit Court to transfer an action from Macon County to Jefferson County. The writ is denied.
The plaintiff, Charlsey Hopkins, a resident of Jefferson County, filed this action in Macon County Circuit Court against the defendants, Finance America Corporation ("FAC") and Henrietta Bell. The plaintiff alleged fraud, breach of contract, and outrageous conduct with regard to the handling of a loan application which she and her deceased husband had made through FAC's office in Jefferson County. Henrietta Bell, an employee of FAC, was involved in processing the Hopkinses' loan application. The defendants filed a motion pursuant to Rule 82(d), Ala.R.Civ.P., for change of venue to the Jefferson County Circuit Court on the grounds that FAC does not conduct any business by agent in Macon County. The trial judge denied the motion, and the defendants filed this petition for a writ of mandamus.
The only question presented by the petition is whether the trial judge erred to reversal by denying the defendants' motion to transfer the case from Macon County to Jefferson County.
The applicable venue statute is § 6-3-7, Code 1975:
The record is not clear as to whether FAC is a foreign or a domestic corporation. However, for purposes of our review, such a determination is unnecessary, because both a foreign corporation and a domestic corporation may be sued in any county in which either does business by agent.
The parties in this case are at issue over whether FAC does business in Macon County. At the time the trial judge ruled on the defendants' motion, the following materials were on file with the court: the affidavits and depositions of Bobby J. Horne and Henrietta Bell (employees of FAC), the plaintiff's second set of interrogatories to FAC and FAC's answers thereto, and a document purporting to be the affidavit of the Honorable Preston Hornsby (Probate Judge of Macon County). Bobby J. Horne is the manager of FAC's office in Jefferson County. Henrietta Bell is a "financial service representative" in that office. *460 In their affidavits, Horne and Bell stated, in substance, that FAC has never engaged in any business in Macon County. In his deposition, however, Horne conceded that his personal knowledge of FAC's activities in Macon County was limited and that he could not state whether FAC does business in Macon County through one of its other offices. In the plaintiff's second set of interrogatories to FAC, the following information was requested:
In response FAC stated:
Finally, the document purporting to be the affidavit of Judge Hornsby, in pertinent part appears as follows:
Attached to this document were copies of several mortgages on real property located in Macon County showing FAC as the mortgagee in each.
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 judge. Ex parte Harrington Mfg. Co., 414 So. 2d 74 (Ala.1982).
In the present case, the document apparently signed by Judge Hornsby is not sufficient as an affidavit because the signature of the affiant was not acknowledged by a notary public. Sellers v. State, 162 Ala. 35, 50 So. 340 (1909). Therefore, because the trial judge should not have considered it (or the attachments to it), we will not consider it.
The affidavits of Horne and Bell support the defendants' position that FAC has never done business in Macon County. However, in its answers to the plaintiff's second set of interrogatories, FAC denied that it had ever made any direct loans through its Jefferson County office to residents of Macon County, but then stated *461 that it had purchased credit sale contracts from a home improvement company, Allstate Storm Windows, which secured those contracts from residents of Macon County. Although FAC may have made no direct loans to residents of Macon County, by purchasing the credit sale contracts FAC became a creditor with respect to certain residents of that county. Presumably, FAC accepted assignments of these contracts and, as a result, those residents concerned were then required to make their payments directly to FAC.
In Ex parte Real Estate Financing, Inc., 450 So. 2d 461 (Ala.1984), we held that a corporation is doing business in a particular county for venue purposes when the aggregate of its corporate activities there ultimately achieves its primary corporate purpose. See also Ex parte Wilson, 475 So. 2d 562 (Ala.1985). A corporation "does business" in a county if it performs there, with some degree of regularity, some of the business functions for which it was created. It is not necessary, however, for a corporation to have an agent physically present and conducting business in a county for venue to be proper there. Furthermore, there is no authority in this state allowing a change of venue for the convenience of the parties, the witnesses, or the court, which is permitted in federal courts under the doctrine of "forum non conveniens." Ex parte Joiner, 486 So. 2d 402 (Ala.1986).
It goes without saying that FAC's primary corporate purpose is to make a profit by extending credit at a designated rate of interest. By purchasing the credit sale contracts executed by residents of Macon County, FAC was engaged in an activity designed to achieve that purpose.
Based on the record before us, we cannot hold that the trial judge erred in denying the defendants' motion. There has simply not been a clear showing of error on the part of the trial judge. The defendants' assertions that the purchase of the credit sale contracts were isolated transactions are not supported. The burden of proof was on the defendants to show the nature of these transactions and a lack of continuity with regard to them. They have not met that burden.
WRIT DENIED.
MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
TORBERT, C.J., dissents.
TORBERT, Chief Justice, dissenting.
This is the latest of a recent line of cases addressing the issue of whether a corporate defendant is doing business in a particular county so as to make venue proper in that county.
In Ex parte Real Estate Financing, Inc., 450 So. 2d 461 (Ala.1984), we stated that the test used in determining whether certain contacts with a county by the corporate defendant constitute "doing business" is whether the aggregate of its corporate activities there ultimately achieves the defendant's primary purpose. We had previously held that a corporation "does business" in a county if it performs there, with some degree of regularity, some of the business functions for which it was created. Ex parte Jim Skinner Ford, Inc., 435 So. 2d 1235 (Ala.1983).
An examination of our cases applying these rules, Ex parte Peabody Galion Co., 497 So. 2d 1126 (Ala.1986); Ex parte Snoddy, 487 So. 2d 860 (Ala.1986); Ex parte Joiner, 486 So. 2d 402 (Ala.1986); Ex parte Reliance Ins. Co., 484 So. 2d 414 (Ala.1986); Ex parte Wilson, 475 So. 2d 562 (Ala.1985); Ex parte Southtrust Bank of Tuskegee, 469 So. 2d 103 (Ala.1985), convinces me that this is the most tenuous set of facts upon which we have determined venue.
The admissible evidence in this case shows that the defendant purchased, apparently from Allstate Storm Windows, nine credit sales contracts executed by residents of Macon County. We know nothing about where Allstate Storm Windows is located or the details of the arrangement between Finance America Corporation ("FAC") and Allstate Storm Windows. The majority assumes that FAC accepted assignments of these contracts and that Macon County residents were then required to make their *462 payments directly to FAC, but such information is not before us.
It would seem that the relevant inquiry concerns FAC's dealings with Allstate. Is Allstate located in Macon County? Under what terms did FAC purchase the credit contracts in question? Did the purchase of those contracts in effect make FAC a lender to residents of Macon County?
FAC's corporate purpose is to make loans; loans were made to Macon County residents by someone else and subsequently FAC came to own credit documents evidencing those loans. These facts of themselves do not necessarily lead to the conclusion that FAC is doing business in Macon County. What we know is that FAC is doing business with a company that is doing business with Macon County residents.
While the burden of proof is on the party questioning venue, Ex parte Harrington Mfg. Co., 414 So. 2d 74 (Ala.1982), FAC came forth with affidavits stating that FAC did not do business in Macon County. Hopkins produced evidence that FAC did business with Allstate. Under these facts, I believe change of venue was proper. I would grant the writ. | May 8, 1987 |
c89cdc08-c3c4-4d3f-b294-a9fe9573a1e8 | Ex Parte O'Daniel | 515 So. 2d 1250 | N/A | Alabama | Alabama Supreme Court | 515 So. 2d 1250 (1987)
Ex parte Wilma M. O'DANIEL.
(Re Wilma M. O'DANIEL v. William G. O'DANIEL.)
86-339.
Supreme Court of Alabama.
June 12, 1987.
Rehearing Denied September 4, 1987.
*1251 John I. Cottle III of Bowles & Cottle, Tallassee, for petitioner.
G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for respondent.
TORBERT, Chief Justice.
We granted certiorari in this divorce case to resolve two issues: (1) Whether the Court of Civil Appeals correctly held that the trial court did not err in excluding from evidence re-recorded tapes of telephone conversations between the husband and his alleged paramour, and (2) Whether the Court of Civil Appeals correctly held that the trial court did not abuse its discretion by being predisposed toward ignoring any evidence of the husband's alleged adultery.
Most of the facts relating to this divorce are contained in the opinion below. 515 So. 2d 1248. Petitioner has also included in her petition additional facts pursuant to Rule 39(k), A.R.App.P. We find that the trial judge made the following remarks during the trial:
Addressing the issue of the tape recordings first, we think that the tapes were properly excluded from evidence, although we do not agree with the Court of Civil Appeals that the best evidence rule was a sufficient ground for excluding the tapes. The wife taped all telephone conversations that occurred on the business telephone at the parties' real estate office. She then re-recorded the conversations between the husband and his alleged paramour, thus deleting all other conversations, but she testified that she made no alterations of the re-recorded conversations. She wished to have the tapes containing just the conversations between the husband and his alleged girlfriend admitted as evidence of adultery. The husband objected on numerous grounds, including the best evidence rule, the state and federal wiretapping statute, and the lack of a proper foundation. The trial court sustained the objection without specifying any grounds.
The Court of Civil Appeals stated that the ground of the best evidence rule was sufficient. We do not agree. This Court has not addressed whether the best evidence rule applies to tape recordings, such as these, but other courts have held that it does not. The Supreme Court of South Carolina has found no problem with admitting re-recorded taped conversations when there is no allegation of fraud in the editing. Martin v. Floyd, 285 S.C. 229, 328 S.E.2d 637 (1985). Our state's own Court of Criminal Appeals has held that the best evidence rule does not apply to tape recordings. Hawkins v. State, 443 So. 2d 1312, 1314 (Ala.Crim.App.1983), cert. denied, 443 So. 2d 1312 (Ala.1984). "It is generally agreed in this state that the production of a thing which is not a writing is not required by the best evidence rule." C. Gamble, McElroy's Alabama Evidence, § 212.03, at 465 (3d ed. 1977). We think that the best evidence rule was not a sufficient ground for excluding these tapes.
However, the tapes were properly excluded under the federal wiretapping statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. Specifically, 18 U.S. C. § 2515 states:
Section 2511(1) provides:
Section 2511(2)(d) provides an exception when the wiretapper is a party to the communication or has the prior consent of a party to the communication. In this case, the wife was not a party to the taped telephone conversations and did not have the consent of either of the parties to the conversations.
Some courts have held that Title III does not cover spousal wiretapping. Baumrind v. Ewing, 276 S.C. 350, 279 S.E.2d 359, cert. denied, 454 U.S. 1092, 102 S. Ct. 657, 70 L. Ed. 2d 630 (1981); Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert. denied, 419 U.S. 897, 95 S. Ct. 176, 42 L.Ed.2d *1253 141 (1974). Other courts have held that Title III makes no exception for spousal wiretapping. Pulawski v. Blais, 506 A.2d 76 (R.I.1986); Pritchard v. Pritchard, 732 F.2d 372 (4th Cir.1984); United States v. Jones, 542 F.2d 661 (6th Cir.1976); Rickenbaker v. Rickenbaker, 290 N.C. 373, 226 S.E.2d 347 (1976). We are persuaded by the reasoning in the latter line of cases. The language of the statute is clear and unambiguous. "If Congress had intended to exempt spousal wiretappings from the scope of Title III, they would have explicitly done so." Pulawski, 506 A.2d at 77 n. 2. The legislative history of the statute clearly shows that Congress was aware of spousal wiretapping and intended to prevent it.
Pritchard, 732 F.2d at 374. Pritchard and Jones both give an extensive examination of the legislative history and conclude that spousal wiretapping is prohibited. We conclude that the trial court properly excluded these tapes as violative of 18 U.S.C. §§ 2511 and 2515.
As to the issue of the trial judge's comments concerning his disregard for any evidence of adultery, we believe that the trial judge abused his discretion. Code 1975, § 30-2-1(a)(2) sets forth adultery as a ground for divorce. "Even though the divorce was granted on incompatibility, fault can be considered in making a division of property." Nickerson v. Nickerson, 467 So. 2d 260, 262 (Ala.Civ.App.1985). A trial judge does not have to grant a divorce on the grounds of adultery or to divide the property in light of one party's adultery unless the failure to do so would be palpably wrong in light of extensive evidence of adultery. However, a trial judge cannot choose to ignore any and all evidence of adultery just because he does not like that particular ground for granting a divorce. It is obvious that in this case the trial judge was predisposed to ignore any evidence of adultery when he entered his judgment.
From the facts before this Court, we cannot say whether the evidence of the husband's alleged adultery (excluding the tapes and all evidence derived from them) is sufficient to warrant alteration of the divorce decree. Consideration of this kind of evidence is properly the province of the trial judge and his decision in that regard will be reversed only if palpably wrong. Davis v. Davis, 274 Ala. 277, 278, 147 So. 2d 828, 829 (1962). Therefore, the judgment of the Court of Civil Appeals is reversed and the cause is remanded for that court to instruct the trial court to reconsider its decree in light of all the properly admitted evidence of the husband's alleged adultery. We are not to be understood as requiring any certain result upon consideration of this evidence; we are only requiring the trial judge to consider it.
REVERSED AND REMANDED WITH INSTRUCTIONS.
MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS, HOUSTON, and STEAGALL, JJ., concur. | June 12, 1987 |
80d4cf2e-7059-4e95-8732-b2120095e53f | Tyler v. Equitable Life Assur. Soc. of US | 512 So. 2d 55 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 55 (1987)
James L. TYLER and Judy E. Tyler
v.
The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES and Equitable Agri-Business, Inc.
85-900.
Supreme Court of Alabama.
May 29, 1987.
Rehearing Denied July 24, 1987.
Boyd Whigham, Clayton, for appellants.
Horace Williams, Eufaula, for appellees.
*56 STEAGALL, Justice.
James L. and Judy E. Tyler appeal from a summary judgment granted in favor of Equitable Life Assurance Society of the United States and Equitable Agri-Business, Inc. (both hereinafter referred to as "Equitable"). We affirm.
During the latter part of 1979, the Tylers contacted Equitable about receiving a farm loan. On January 28, 1980, the Tylers got the loan; they executed a promissory note for $140,000 and executed a mortgage on 930 acres of land. The note provided for an annual interest rate of 10.5% with annual payments of $4200 to be made on the first day of December until December 1, 1999, at which time the balance was to be paid. The note contained a limited pre-payment privilege clause as follows:
On January 25, 1982, after a notice of mortgage foreclosure was published in a local newspaper, the Tylers executed an agreement that modified the promissory note from them to Equitable. That modification agreement provided that the principal and interest that were due on December 1, 1980, and on December 1, 1981, be paid on or before January 28, 1982, and that the remaining unpaid balance bear interest at the rate of 12% rather than the original rate of 10.5%. The modification agreement also provided that all of the other provisions of the original note and mortgage would remain in effect.
In December 1984, the Tylers sold their 930 acres of land in order to get the money to satisfy the note. On December 19, 1984, the Tylers attempted to have the outstanding promissory note and mortgage satisfied by tendering a cashier's check in the amount of $138,858.35 to Equitable. The amount of the check was computed from the following figures:
On December 27, 1984, Equitable returned the check to the Tylers, stating that Equitable would not accept that amount as full satisfaction of the note and mortgage. Equitable offered to allow the Tylers to satisfy the note and mortgage by tendering the $138,858.35 plus $3,695 and interest accrued to December 26, 1984. The $3,695 was labeled by Equitable as an "acquirement and reinvestment fee." Employees of Equitable testified that this fee was a percentage of the unpaid balance of the note, which was charged in order to allow the Tylers to breach the terms of the note. The Tylers paid the additional amounts on December 31, 1984, but noted they were doing so under protest. Equitable released the Tylers and the 930 acres from the note and mortgage on or about January 21, 1985. The Tylers then filed a lawsuit against Equitable, contending that they should not have been required to pay the acquirement and reinvestment fee.
The complaint contained five counts: fraud, misrepresentation, statutory penalty, conversion, and simple debt. After hearing oral arguments and considering the pleadings and depositions, the trial court granted Equitable's motion for summary judgment as to all counts.
On a motion for summary judgment, all reasonable inferences from the facts are viewed most favorably to the non-moving party and the moving party must establish that he is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P. If there is any evidence that supports the position of the non-moving party, a summary judgment cannot be entered. Pittman v. Martin, 429 So. 2d 976 (Ala.1983).
The Tylers contend that an agent for Equitable told them, before the loan was closed and before the documents were signed, that the indebtedness of the loan could be prepaid without penalty at any time after the first year.
If a written contract exists, the rights of the parties are controlled by that contract; and parol evidence is not admissible to contradict, vary, add to, or subtract from its terms. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Adams, 289 Ala. 304, 267 So. 2d 151 (1972). In addition, fraud or misrepresentation cannot be predicated upon a verbal statement made before execution of a written contract when a provision in that contract contradicts the verbal statement. Taylor v. Moorman Manufacturing Co., 475 So. 2d 1187 (Ala.1985). If a party has reason to doubt the truth of an oral representation or is informed of the truth before he acts, he may not reasonably act or rely on that representation. Bedwell Lumber Co. v. T & T Corp., 386 So. 2d 413 (Ala.1980). Reliance is one of the elements that must be proven by a party charging fraud, and the reliance must be reasonable under the circumstances. Taylor v. Moorman Manufacturing Co., supra.
In the instant case, the promissory note specifically provided that the Tylers could prepay up to a maximum of 20% of the principal in any year after the initial year. No provision was made for prepayment of the entire indebtedness at any time after the first year. The Tylers were allowed to look over and read the note and mortgage before signing them. The language of the note gave the Tylers reason to doubt the truth of the alleged representation that they could prepay the loan at any time. Therefore, it was not reasonable for the Tylers to rely on the alleged representation made prior to execution of the note and mortgage. Accordingly, the trial court properly granted summary judgment as to the fraud and misrepresentation counts.
The Tylers allege that Equitable violated Ala.Code 1975, § 35-10-30, and, therefore, is liable to them for the statutory penalty in the amount of $200. This section provides that if a mortgagee fails to execute a release or mark a mortgage "satisfied" within 30 days after a release or entry of satisfaction is requested, the mortgagee forfeits $200 to the party making the request. This section applies only if the request for release or satisfaction is made at or after the time that the mortgage "has been fully paid or satisfied." Ala.Code 1975, § 35-10-27.
In this case, the mortgage was not "fully paid or satisfied" until the Tylers tendered all of the indebted principal, the interest, and the acquirement and reinvestment fee. This tender was made on December 31, 1984. On or about January 21, 1985, Equitable forwarded a release of the mortgage to the proper probate office. Consequently, a period of 30 days did not elapse between the time the request for satisfaction was made and the time Equitable released the mortgage. Accordingly, summary judgment as to this count was proper.
The Tylers contend that Equitable committed the tort of conversion when it accepted the acquirement and reinvestment fee of $3,695 tendered by them.
Four different actions may constitute conversion: a wrongful taking, a wrongful detention, an illegal assumption of ownership, or an illegal use or misuse. National Surety Corp. v. Applied Systems, Inc., 418 So. 2d 847 (Ala.1982).
In the instant case, Equitable essentially offered to allow the Tylers to breach the terms of the promissory note in exchange for a fee of $3,695. The Tylers accepted this offer by tendering the money. Since the money in question was paid as a part of a valid offer and acceptance, there was not a wrongful taking, a wrongful detention, an illegal assumption of ownership, or an illegal use or misuse by Equitable. Accordingly, summary judgment was properly granted as to this count.
The Tylers assert that Equitable owes them $3,695 on an open account. As discussed above, Equitable lawfully charged the Tylers this amount in exchange for allowing the Tylers to breach the terms of the promissory note. Therefore, Equitable does not owe any amount of money to the Tylers, and summary judgment was properly granted as to this count as well.
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur. | May 29, 1987 |
b39872a8-21f8-4a0a-8e73-170857349805 | Herring v. Cunningham | 507 So. 2d 1324 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 1324 (1987)
Thomas HERRING
v.
Charles A. CUNNINGHAM and Lynn O. Cunningham.
85-895.
Supreme Court of Alabama.
May 15, 1987.
Tamara O. Mitchell of Grodsky & Mitchell, Mobile, for appellant.
Mack B. Binion and Joseph J. Minus, Jr. of Lyons, Pipes & Cook, Mobile, for appellees.
STEAGALL, Justice.
This case involves the appropriateness of a summary judgment in a dog-related personal injury case.
On October 19, 1984, plaintiff went to defendants' home in Mobile while attempting to sell firewood. As plaintiff approached the front door, which was partially open, he heard a dog bark from inside the house. Plaintiff turned to leave and, with the dog chasing him, ran toward his truck, which was parked in the street. While running toward his truck, plaintiff fell and received an injury to his knee. There was never any bite or other physical contact by the dog.
Plaintiff filed suit against the defendants on October 1, 1985, alleging negligence in allowing the dog to run unrestrained, and also alleging violation of an ordinance of the city of Mobile. Defendants filed an answer including a general denial and the affirmative defense of contributory negligence. On March 18, 1986, defendant Lynn O. Cunningham filed a motion for summary judgment based on depositions and certain affidavits. Plaintiff filed a motion pursuant to Rule 56(f), A.R.Civ.P., requesting that the Court deny the defendant's motion or, in the alternative, continue the hearing. The motion was set for hearing on March 28. Plaintiff's ground for continuance was based on the absence of a *1325 potential affiant who had encountered the dog. The court granted the motion for summary judgment on April 21, 1986, as to Lynn O. Cunningham and amended its summary judgment on April 23 to include Charles A. Cunningham.
The first argument by appellant is that the trial court abused its discretion in not allowing the requested continuance of the hearing on the summary judgment motion. Only rarely will the appellate court find an abuse of discretion in such cases. See Van Buren v. Dendy, 440 So. 2d 1012 (Ala.1983). Those cases which have held that the trial court abused its discretion have involved situations where the moving party has failed or refused to provide information requested by the opposing party. See Latimer v. Enterprise Hospital, 505 So. 2d 375 (Ala.1987); Noble v. McManus, 504 So. 2d 248 (Ala.1987); Perry v. Mobile County, 497 So. 2d 829 (Ala.1986). Here, the only ground for continuance was that a potential affiant was not available to sign an affidavit prior to March 28, the date of the hearing on the motion for summary judgment. However, the trial judge did not enter his order until April 21. We, therefore, hold that the trial judge did not abuse his discretion in not allowing the requested continuance.
Appellant next contends that the trial court improperly granted the summary judgment, and argues that one of his claims is based upon common law negligence arising from the ownership of a dog that displays vicious propensities. Appellant relies upon Owen v. Hampson, 258 Ala. 228, 62 So. 2d 245 (Ala.1952), and White v. Law, 454 So. 2d 515 (Ala.1984).
In Owen v. Hampson, supra, the plaintiff was injured when the defendant's dog ran into the street and chased the plaintiff, who was riding a motorcycle on a public street, causing plaintiff to overturn. The Owen Court recognized the applicability of the common law rule requiring the plaintiff to allege and prove that the owner of the animal had previous knowledge of the animal's dangerous propensities. Appellant cites Owen for its statement that the law makes no distinction between an animal dangerous from mischievousness or playfulness and one dangerous from viciousness.
In White v. Law, supra, this Court held that testimony gleaned from affidavits and depositions submitted on motion for summary judgment indicating that defendants feared that the action of children in teasing the dog might cause the dog to harm plaintiff's granddaughter and, therefore, had taken steps to acquaint the granddaughter with their dog was sufficient to create an inference that defendants knew or should have known of their dog's possible vicious propensities. This inference was deemed sufficient to preclude summary judgment.
The recent case of Rucker v. Goldstein, 497 So. 2d 491, 493 (Ala.1986), summarizes the Alabama rule on this subject, as follows:
Appellant asserts that the evidence before the trial court presented a genuine issue of material fact with regard to whether the appellees knew, or had reason to know, of the dog's dangerous propensities. This evidence included the following deposition testimony of defendant Lynn O. Cunningham:
The defendant's admission that the dog had barked at the garbage man is not sufficient to create an inference of knowledge of dangerous propensities of the dog. We *1326 have carefully examined the record, and we have considered the evidence before the trial court on appellees' motion for summary judgment. Viewing the evidence and all reasonable inferences therefrom in the light most favorable to appellant, Sanders v. White, 476 So. 2d 84 (Ala.1985), we are unable to find the existence of a genuine issue of material fact. We, therefore, hold that the trial judge was correct in granting summary judgment on the common law negligence action.
Appellant's last argument relates to the claimed violation of the Mobile ordinance. This Court cannot reverse on this issue, because the ordinance in question was never introduced into evidence, and judicial notice of the ordinance is not required because the appellant's complaint, in attempting to allege this cause of action, does not comply with the strict requirement of Rule 9(d), A.R.Civ.P.[1]
The summary judgment is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur.
[1] Rule 9(d), A.R.Civ.P., provides in pertinent part as follows: "In pleading an ordinance of a city, ... it is sufficient to refer to the ordinance... by its title and the date of its approval, and the court shall take judicial notice thereof." | May 15, 1987 |
c0e50d26-a90f-4a53-bbb5-623a2e62e580 | Ex Parte Sharpe | 513 So. 2d 609 | N/A | Alabama | Alabama Supreme Court | 513 So. 2d 609 (1987)
Ex parte State of Alabama.
Re: Ex parte Eldon SHARPE [In Re: State of Alabama
v.
Eldon Sharpe].
85-946.
Supreme Court of Alabama.
May 15, 1987.
John David Whetstone, Sp. Asst. Atty. Gen., for petitioner.
Tom Radney of Radney & Morris, Alexander City, for respondent.
PER CURIAM.
We granted certiorari in this case to determine whether the Court of Criminal Appeals erred when it granted Eldon Sharpe's writ of mandamus and dismissed the indictments against him.
On April 21, 1986, Sharpe, the Judge of Probate of Tallapoosa County, was indicted by the Tallapoosa County Grand Jury. He filed with the circuit court a motion to dismiss the indictments, alleging that the indictments had been returned by a special session of the 1986 grand jury that had not been authorized by law. The circuit judge, Robert M. Parker, denied the motion.[1]
Immediately thereafter, Sharpe filed with the Court of Criminal Appeals a petition for a writ of mandamus, 492 So. 2d 675, which that court granted, ordering that the indictments be dismissed. The State of Alabama then filed a petition for a writ of certiorari with this Court, which we granted.
We are of the opinion that, since Sharpe did not comply with the requirements set forth in Rule 21, A.R.App.P. the writ should not have been granted. Rule 21 provides:
First, with regard to service of process, it is undisputed that the respondent circuit judge was never served with a copy of the petition. Moreover, the State was notified by telephone at 4:30 p.m. on April 21, 1986, that a mandamus petition would be filed against Judge Parker the next morning and that the hearing on that petition would be held that next morning. The State had no knowledge of the contents of the petition until its attorney was handed a copy of the petition a few minutes before the hearing. On April 23, 1986, Judge Parker was informed that a petition for a writ of mandamus had been filed against him and had been granted by the Court of Criminal Appeals the day before, but he still had not been served with a copy of the petition.
It is clear to this Court that the requirements for service of process contained in Rule 21(a), A.R.App.P., were not complied with in the least by Sharpe. The petition contained no certificate of service, Judge Parker was never served, and the so-called service on the State was not the kind of service intended by the Rule. Furthermore, this Court has stated, in a case similar to this one, that the Court of Appeals should have dismissed a petition for want of jurisdiction over the person where a certiorari proceeding was submitted to that court without notice to one of the parties. See Waltman v. Ortman, 233 Ala. 170, 170 So. 545 (1936).
The Court of Criminal Appeals also erred in this case when it granted the writ without first ordering that "an answer to the petition be filed by the respondents," as is mandated in Rule 21(b), A.R.App.P. Furthermore, an answer in a mandamus proceeding is very important, as is evidenced by this Court's holding that uncontroverted averments of fact stated in an answer should be taken as true. See Ex parte Helbling, 278 Ala. 234, 117 So. 2d 454 (1965); Ex parte Waldrop, 228 Ala. 38, 152 So. 44 (1934).
Therefore, since neither Sharpe nor the Court of Criminal Appeals complied with the directives of Rule 21, the judgment of the Court of Criminal Appeals is reversed and the cause remanded to that court.
REVERSED AND REMANDED.[*]
TORBERT, C.J., and MADDOX, JONES, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur.
[1] Judge Parker presided over this case by special appointment of the Chief Justice of this Court.
[*] [Reporter's note: On September 28, 1987, on motion of the petitioner, the Court of Criminal Appeals dismissed the petition for writ of mandamus.] | May 15, 1987 |
a44fb500-de91-4519-9a20-fa96ee193a63 | Caraway v. Franklin Ferguson Mfg. Co. | 507 So. 2d 925 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 925 (1987)
Patricia Ann CARAWAY
v.
FRANKLIN FERGUSON MANUFACTURING COMPANY.
85-1371.
Supreme Court of Alabama.
May 8, 1987.
*926 Henry F. Lee III of Lee and Fleming, Geneva, for appellant.
B. Stephen Sansom, Florala, for appellee.
ADAMS, Justice.
This is an appeal from an order of the Circuit Court of Covington County dismissing the plaintiff's suit for failure to state a claim upon which relief could be granted. The plaintiff, Patricia Ann Caraway, alleged that she was wrongfully discharged by her employer, the defendant, for maintaining a claim against the defendant to recover Workmen's Compensation benefits. The defendant moved to dismiss Caraway's complaint on the grounds that Ala.Code 1975, § 25-5-11.1 (effective February 1, 1985), fails to provide damages for wrongful dismissal. Without a provision for damages, the defendant argues, there is no cause of action; therefore, the defendant says, Caraway failed to state a claim upon which relief could be granted. We reverse and remand.
Section 25-5-11.1 specifically proscribes the termination of an employee solely because the employee has sought Workmen's Compensation benefits:
In the present case, Caraway's complaint alleges that she was wrongfully discharged by the defendant because she sought to recover Workmen's Compensation benefits for an injury which, she alleges, she received while she was employed by the defendant.
The fact that § 25-5-11.1 does not delineate what damages may be awarded in the event of a violation of the statute has no bearing on the existence of a cause of action. The clear intent of the legislature in enacting § 25-5-11.1 was to prohibit the dismissal of an employee merely because that employee claimed Workmen's Compensation benefits or filed a written notice of a safety violation by the employer. The absence from the statute of a provision for damages is not a basis for dismissing the plaintiff's complaint on the grounds that she has failed to state a claim upon which relief could be granted. The cause of action is clearly established by § 25-5-11.1.
Although § 25-5-11.1 omits specific reference to damages for violation of its provisions, damages can be awarded in accordance with the general law of torts.
The judgment dismissing the plaintiffs' complaint is, therefore, reversed, and this cause is remanded for a hearing on the merits of the plaintiff's complaint.
REVERSED AND REMANDED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur. | May 8, 1987 |
ef989ead-b182-4643-86d8-d5abd1222474 | Lady Corinne Trawlers, Inc. v. Zurich Ins. Co. | 507 So. 2d 915 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 915 (1987)
LADY CORINNE TRAWLERS, INC.
v.
ZURICH INSURANCE COMPANY, et al.
85-559.
Supreme Court of Alabama.
May 8, 1987.
*916 Herman D. Padgett and Stephen P. Coleman, Mobile, for appellant.
G. Hamp Uzzelle III and Kathryn E. Errington of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellees.
ADAMS, Justice.
This is an appeal from a summary judgment entered by the Circuit Court of Mobile County against plaintiff, Lady Corinne Trawlers, Inc. We affirm.
On October 20, 1983, plaintiff corporation filed suit against several defendants for damages allegedly sustained as a result of "breakdowns" of its fishing vessel, the "Lady Corinne." Plaintiff asserted that defendants Union Indemnity Insurance Company and Zurich Insurance Company issued insurance policies covering the fishing vessel through their agent, Molton, Allen and Williams Corporation, and that another defendant, Commercial Claims Services, reviewed plaintiff's claims for loss. Plaintiff further alleged in its complaint that Saunders Engine Company negligently repaired the fishing vessel on several occasions and that, as a result, it suffered economic loss.
In March 1985, plaintiff entered into an agreement with Saunders Engine Company whereby Saunders paid the plaintiff $55,000.00 and, in return, plaintiff executed a release in favor of Saunders and filed a motion with the court to dismiss Saunders from the action, which the court granted.
The court then granted summary judgment in favor of Molton, Allen and Williams, which left as defendants Union Indemnity, Zurich, and Commercial Claims Services. On December 31, 1985, the remaining defendants filed a motion for summary judgment, and the court granted it as to all three defendants. In its brief on appeal, however, plaintiff questions the propriety of the court's summary judgment only as to Zurich Insurance Company.
The issue of whether the trial court erred when it granted summary judgment in favor of Zurich is to be determined upon an interpretation of two main documentsthe release, and the contract of insurance between Zurich and the plaintiff. The release, in pertinent part, states:
The contract of insurance contains a clause which specifically addresses agreements of this kind. That clause provides:
In its motion for summary judgment, Zurich argued that plaintiff violated the express terms of the contract of insurance, destroyed Zurich's subrogation rights, and discharged Zurich's obligations under the insurance contract when it executed the release in favor of Saunders. Plaintiff argues that the summary judgment was erroneous because Zurich, by its conduct, either waived its subrogation rights or was not entitled to any; or, alternatively, that Zurich's subrogation rights were not lost as a result of the release because it was executed subject to Zurich's subrogation rights. We disagree with both arguments advanced by plaintiff.
First, with respect to plaintiff's waiver argument, the president of Lady Corinne Trawlers, William Schollian, admitted in his deposition that his corporation had received a series of letters from Zurich in which Zurich acknowledged liability in full for the largest of plaintiff's three claims, acknowledged liability for almost the entire amount of the second claim (Zurich offered $9,000.00 on a net claim of approximately $11,000.00), and offered to pay 50% of the remaining claim, which the repair records showed was highly questionable. In addition, on the two claims that Zurich did not offer to pay in full it set forth clear reasons why it did not think full payment was warranted. Zurich even offered to advance the cost of repairs of the vessel's latest breakdown, even though it knew that plaintiff was contemplating selling the vessel. Finally, Zurich offered to allow judgment to be taken against it, pursuant to Rule 68, A.R.Civ.P., more than two months prior to plaintiff's settlement with Saunders, but plaintiff rejected the offer.
In his affidavit in opposition to summary judgment, Schollian states that the plaintiff corporation was forced to file suit against Saunders Engine Company and others due to the refusal of Zurich to pay for the losses suffered as a result of the breakdowns of the fishing vessel. The affidavit further states that the denials were made with no legitimate or arguable reason for them. Plaintiff argues on appeal that this language in the affidavit is enough to show that Zurich either waived its subrogation rights, or was not entitled to any, as a result of its conduct, and that this should preclude a summary judgment in its favor.
It is clear not only that Zurich did not deny payment of the claims, but that it made reasonable efforts to resolve the claims. In his deposition, Schollian acknowledged receipt of letters from Zurich by which Zurich tried to settle all the claims. Schollian cannot now be allowed to directly contradict his prior sworn statement just to create an issue of fact in an *918 attempt to avoid summary judgment. Van T. Junkins & Assoc. v. U.S. Industries, 736 F.2d 656 (11th Cir.1984). In that case, the Eleventh Circuit Court of Appeals ultimately upheld a summary judgment, holding that a district court may find an affidavit to be a sham when it merely contradicts, without valid explanation, testimony on deposition. We agree with that court's reasoning and are of the opinion that it should be applied in the instant case. See, also, Faith, Hope and Love, Inc. v. First Alabama Bank of Talladega County, N.A., 496 So. 2d 708, 713 (Ala.1986).
After reviewing the actions of Zurich, we cannot say that its conduct should cause it to lose its subrogation rights.
Plaintiff's second argument is that the release was executed subject to Zurich's subrogation rights and, therefore, that these rights were not lost. Plaintiff cites as support for this argument the case of Miller v. Auto Owners Insurance Co., 392 So. 2d 1201 (Ala.Civ.App.1981), wherein the Court of Civil Appeals stated that a release will be regarded as subject to the rights of the insurer-subrogee if the tort-feasor has notice or knowledge of the insurer's subrogation rights at the time the release is executed by the insured. In Miller, however, the insurer had already paid the insured's claim under its collision coverage, and the insured, in return, then assigned the rights, title, and interest to all claims resulting from the accident through a subrogation agreement with the insurer. This Court noted in Barnes v. Tarver, 360 So. 2d 953 (Ala.1978), the following rule:
360 So. 2d at 956, quoting Aetna Insurance Co. v. Hann, 196 Ala. 234, 240, 72 So. 48, 51 (1916). Another difference between Miller and the case at bar is that in Miller, the insurance company had initiated litigation to enforce its subrogation rights two weeks prior to the settlement between the tort-feasor and the insured. In the instant case, no suit had been filed because Zurich's subrogation rights had not yet ripened, due to its failure to reach agreement with the plaintiff on what was owed under the policy. Thus, at the time the plaintiff executed the agreement with Saunders, it was still the owner of any claims against Saunders, and by totally releasing Saunders from any claim against it, the plaintiff effectively destroyed Zurich's rights to subrogation from Saunders.
By executing a release with Saunders, plaintiff breached an express term of its contract of insurance with Zurich. Having settled all claims against Saunders, it rendered the contract of insurance "null and void as to the amount of any such claims," and, therefore, the plaintiff has no right to recover against Zurich. This legal principle is explained in Barnes v. Tarver, supra, wherein this Court reasoned: "The right to the insurer's subrogation is dependent upon its liability to [the insured], which in turn is dependent upon [the tort-feasor's] liability to [the insured]." 360 So. 2d at 956. In this case, Zurich's right to subrogation is dependent ultimately upon Saunders's liability to the plaintiff, which plaintiff released by the agreement.
For all of the above-stated reasons, the judgment of the trial court in favor of Zurich Insurance Company is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur. | May 8, 1987 |
dff02a0d-7e06-4259-99b3-0c75520e5d94 | Ex Parte McMahan | 507 So. 2d 492 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 492 (1987)
Ex parte William Terry McMAHAN.
(In re William Terry McMAHAN v. Eloise COOK and Richard A. Colegrove, Jr.).
85-1163.
Supreme Court of Alabama.
April 24, 1987.
Leo E. Costello of Costello & Stott, Birmingham, for petitioner.
Richard A. Colegrove, Jr., of Christ & Colegrove, Birmingham, for respondent.
PER CURIAM.
This is a petition for writ of mandamus requesting this Court to order the respondent trial judge to set aside an order staying all discovery in the instant civil action during the pendency of a related criminal case or until further orders of the trial court.
William Terry McMahan brought suit against Eloise Cook and Richard A. Colegrove, Jr., after Colegrove, as attorney for Cook, sent a letter to McMahan stating, "As a result of your fraud, fraudulent practice, and misrepresentation, Ms. Cook has lost a considerable amount of money." The letter, dated June 17, 1985, demanded payment of $20,000 and threatened that civil suit and criminal charges would be brought against McMahan if he did not pay by July 1. McMahan did not pay, and on July 8 Cook swore out a warrant for his *493 arrest. He was indicted by the grand jury on October 11, 1985.
On September 4, 1985, McMahan filed the suit from which this petition arises. The amended complaint attached to the petition seeks damages for attempted extortion, attempted blackmail, defamation (Colegrove sent copies of the letter to two business associates of McMahan and to his employer), and malicious invasion of privacy, and includes other allegations. Some discovery was conducted, including depositions of Colegrove and McMahan, but Cook failed to appear for her deposition on three occasions when McMahan had given her notice that he would take her deposition. McMahan filed a motion requesting the trial court to require Cook to appear at a deposition and later filed another motion asking that she be required to answer interrogatories, produce documents as requested, and submit to deposition.
The trial court entered the following order in response to these motions:
This order is in effect a protective order in favor of Cook, which, if she had filed a motion for such an order, would be granted only "for good cause shown," to protect her from "annoyance, embarrassment, oppression, or undue burden or expense," Rule 26(c), A.R.Civ.P.
Campbell v. Regal Typewriter Co., 341 So. 2d 120, 123 (Ala.1976). Mandamus will be granted only where an abuse of discretion is shown. Ex parte Johnson, 485 So. 2d 1098 (Ala.1986); Ex parte Mack, 461 So. 2d 799 (Ala.1984); Ex parte Old Mountain Properties, Ltd., 415 So. 2d 1048 (Ala. 1982); Ex parte Dorsey Trailers, Inc., 397 So. 2d 98 (Ala.1981); Ex parte Guerdon Industries, Inc., 373 So. 2d 322 (Ala.1978).
In granting a writ of mandamus ordering a trial court to set aside a protective order, this Court has cited Rule 26(c) and stated:
Ex parte Bishop, 362 So. 2d 228, 231 (Ala. 1978).
In Ex parte Scott, 414 So. 2d 939 (Ala. 1982), this Court granted a writ of mandamus ordering a trial court to set aside an order staying all discovery pending the outcome of a related civil case. The defendants in the case from which that petition arose had filed a motion for a protective order, and the trial court had granted the motion. This Court observed that "the party who seeks a protective order has the burden of showing good cause why discovery should not be had," and held that "There are no assertions in the motions for a protective order that would amount to a showing of good cause." Id., at 941. Here, the trial court granted the stay in response to a motion to compel discovery, *494 but we find no difference in principle: if it is an abuse of discretion to grant a motion for a protective order, there is no reason to suppose the trial court would be within its discretion in granting such an order in the absence of such a motion. Indeed, without a motion for a protective order, there is even less likely to be a showing of good cause, unless the trial court sets forth such a showing in its order.
As in Bishop and Scott, the record in the instant case makes no showing of good cause. The trial court's order states that it is granted "considering all of the surrounding circumstances," with no reference to those circumstances other than to say that Cook is the prosecuting witness in the criminal case. This fact, on its face, does not present a ground for limitation of discovery. The brief filed by Cook and Colegrove makes general remarks to the effect that McMahan is attempting to annoy and embarrass Cook and is abusing the discovery process by trying to conduct his criminal discovery in a civil suit. Not only do these statements prejudge the merits of both cases, but they are not supported by any specific facts or references.
As this Court stated in Scott, supra, at 942:
For the same reason, a writ of mandamus is due to issue in this case.
WRIT GRANTED.
TORBERT, C.J., and MADDOX, ALMON, BEATTY and HOUSTON, JJ., concur. | April 24, 1987 |
68a43eb4-edae-4eb9-b2ae-66f2a7d8d006 | Magna, Inc. v. Catranis | 512 So. 2d 912 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 912 (1987)
MAGNA, INC.
v.
Nick T. CATRANIS, et al.
85-1503.
Supreme Court of Alabama.
July 31, 1987.
J. Edward Thornton of Thornton & McGowin, Mobile, for appellant.
Jere Austill, Jr., of Austill, Austill & Austill, Mobile, for appellees.
HOUSTON, Justice.
Magna, Inc., is the owner in fee of a parcel of real estate with a building on it *913 that is subject to a long-term lease to Delchamps, Inc. Delchamps, Inc. has subleased the property to Masland Carpets, a factory carpet outlet store; and Masland is in possession of the building (the lot and building are hereinafter referred to as the "Masland building"). Magna has, by virtue of a deed of conveyance to it, a permanent, non-exclusive easement for the purposes of ingress and egress and the parking of vehicles over a parcel of land adjacent to the Masland building. The conveyance, in pertinent part, is as follows:
Nick T. Catranis and Ethel Catranis own a shopping center adjacent to the Masland building and own the fee of the property that is subject to Magna's easement.
Without the consent of Magna, the Catranises leased to First Southern Federal Savings and Loan Association a portion of the property that is subservient to Magna's easement, for First Southern's use as an automatic teller kiosk. The kiosk was constructed and is presently in operation. Magna filed suit to enjoin the maintenance and continuance of this kiosk and for an accounting for the rents or sums paid and received by the Catranises for the erection and use of the kiosk "in violation of and interference with `Magna, Inc.'s' easements for free and untrammeled parking for tenants, customers, employees and the public."
Magna filed a motion for summary judgment. All of the pertinent deeds and leases, and the deposition and affidavit of Bankruptcy Judge G.B. Kahn (an officer, director, and stockholder of Magna) were before the trial court for its consideration in ruling on this motion. An affidavit of Mr. Catranis was filed in opposition to the motion. In this affidavit he stated that, since the construction of the kiosk, there has been adequate parking to meet the parking needs of Magna's tenant; that at no time has the parking area been filled to capacity; and that the access drives and curb cuts to Azalea Road have not been changed. The trial court found that Magna was not entitled to the relief prayed for, since the parking area available on the property subject to Magna's easement is many times greater than the amount of parking needed or used by Magna's tenant, and because the kiosk, which occupies approximately eight (8) parking spaces has not interfered with either access or parking. The trial court dismissed Magna's complaint with prejudice. This ruling was made final pursuant to Rule 54(b), Ala.R. Civ.P. Magna appeals. We reverse and remand.
An easement is property, 2 Thompson on Real Property 3, § 315 (1980); 2 American Law of Property 236, §§ 8, 10 (1952); and it comes within the constitutional provision that no person shall be deprived of his property without due process. Thompson v. Andrews, 39 S.D. 477, 165 N.W. 9 (1917).
The owner of a servient estate must abstain from acts interfering with or inconsistent with the proper enjoyment of the easement by the owner of the dominant estate. Snider v. Alabama Power Co., 346 So. 2d 946 (Ala.1977); Alabama Power Co. v. Martin, 341 So. 2d 695 (Ala.1977). The fact that an obstruction to an easement is of a minor degree furnishes no standard for justification if the obstruction clearly interferes with the enjoyment of the easement. Brown v. Alabama Power Co., 275 Ala. 467, 471, 156 So. 2d 153, 157 (1963).
Magna and its licensees, invitees, tenants, successors, and assigns, have the non-exclusive right to use each square foot *914 of the property on which it has an easement for ingress and egress and parking of vehicles. This is a property right. Our respect for property rights will not permit us to diminish or reduce Magna's rights simply because neither Magna nor its tenant needs all the property to which it has property rights. Certainly, our federal and state constitutions protect such rights and would prohibit judicial deprivation or diminution of such rights based solely upon a judicial determination of an owner's lack of need for such property. The implications of a contrary result would be frightening.
The Catranises had no right to lease a portion of the property subject to Magna's easement relieved of the burden imposed upon the property by that easement, without the consent of Magna. The trial court erred when it dismissed this cause.
The proper measure of damages, if any, is "the injury sustained by plaintiff through the loss of use of the easement during continuance of the obstruction," 25 Am.Jur.2d, Easements and Licenses § 122 (1963). Magna would not be entitled to a proportionate amount of the rent paid to the Catranises by First Southern Federal. Magna is not a party to the lease and would have no standing to sue to enforce this contract. Rush v. Thomas Duckett Construction Co., 380 So. 2d 762 (Ala. 1979). Nor could Magna recover a proportionate amount of such rent under a third-party beneficiary theory, for, to so recover, Magna would have to establish that the contract was for its direct, as opposed to its incidental, benefit. Mills v. Welk, 470 So. 2d 1226, 1228 (Ala.1985); Haddox v. First Alabama Bank, 449 So. 2d 1226, 1229 (Ala.1984).
The judgment is reversed and the cause remanded for action consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, ALMON, BEATTY and ADAMS, JJ., concur. | July 31, 1987 |
e0425f63-3397-4262-9c8a-72eb01789fe0 | Ritchey v. Dalgo | 514 So. 2d 808 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 808 (1987)
Albert E. RITCHEY, Sr., as Trustee of the A.E.R. Family Trust, et al.
v.
Larry DALGO, et al.
Albert E. RITCHEY, Sr., as Trustee of the A.E.R. Family Trust, et al.
v.
Claude E. HARRIS, et al.
85-196, 85-197.
Supreme Court of Alabama.
May 29, 1987.
Rehearing Denied September 4, 1987.
*809 Robert A. Wills and Byron A. Lassiter, Bay Minette, for appellants.
T.M. Brantley, for appellees in Case 85-196.
Daniel G. Blackburn and Samuel N. Crosby of Stone, Granade, Crosby & Blackburn, Bay Minette, for appellees in Case 85-197.
JONES, Justice.
This is an appeal from a declaratory judgment entered in favor of the plaintiffs in which the trial court decreed that certain contested tracts of land "belong to the public." We affirm.
Three separate property-dispute class actions for declaratory judgments, which were consolidated for trial, form the basis for this appeal. The plaintiffs are the owners of lots in three subdivisions on the Fort Morgan Peninsula in Baldwin County. The defendants are the successors in interest to Gulf Beach Land and Development Company (Gulf Beach), the original developer of the three subdivisions.
The plaintiffs purchased lots in the Ponce de Leon Court, Bernard Court, and Buchanan Court subdivisions from Gulf Beach through Gulf Beach's sales agents. Gulf Beach developed the property and sold the lots according to the recorded plat of each subdivision. The plaintiffs began this litigation when they learned that the defendants claimed to own certain areas of the three subdivisions in fee, as the successors in interest to Gulf Beach, and planned to develop the disputed property areas and deny the plaintiffs the use thereof.
The Ponce de Leon Court property owners alleged that Gulf Beach sold the lots in that subdivision with reference to the recorded subdivision plat and that an agent of Gulf Beach represented to the plaintiffs that the lots identified on the plat as 9, 32, 50, 64, and 86 were "access lots" to the Gulf of Mexico for the benefit of Ponce de Leon property owners. The filing of the plat, the sale of the lots in reference to the plat, the representations of Gulf Beach's agent as to the nature of the five access lots, and the purchase of the lots in reliance *810 on all of these factors, claim the plaintiffs, constituted a dedication of the five lots to the use of the owners of lots within Ponce de Leon Court. These same plaintiffs also allege that they have continuously and adversely used these five lots for access to the Gulf of Mexicoeither as Ponce de Leon Court property owners or as members of the general public.
The owners of lots within the Bernard Court and Buchanan Court subdivisions claimed that Gulf Beach sold lots to them with reference to the recorded subdivision plats and that Gulf Beach's agent informed these plaintiffs that the land between the front property lines of Bernard Court and Buchanan Court and the Gulf of Mexico was a "community beach." The plaintiffs have both paid taxes on this beach area, according to each lot owner's proportionate interest in the subdivision, and used the property as a community beach for as long as they have owned their lots.
The declaratory judgment action filed by the Ponce de Leon Court lot owners requested that the court find that the five access lots were dedicated to the use of the Ponce de Leon Court lot owners for access to the Gulf of Mexico or, in the alternative, that the lots were dedicated to public use either by the filing of the subdivision plat or by the open, notorious, visible, hostile, undisputed, adverse, and continuous use of the lots by the public for access to the beach for over 20 years.
The Bernard Court and Buchanan Court plaintiffs' complaints asked the court to declare that all of the property between the front property lines of the two subdivisions and the Gulf of Mexico is a community beach for the use and enjoyment of the Bernard Court and Buchanan Court lot owners. These complaints were later amended to add an alternative prayer for relief; that is, a declaration that if the land between the subdivisions and the Gulf is not a community beach, then it was dedicated to the public by the recording of the subdivision plats and the sale of lots with reference to those plats.
The defendants denied that the "access lots" and the "community beach" areas were dedicated either to the plaintiffs or to the public, and alleged the affirmative defenses of the Statute of Frauds and the doctrine of merger. The defendants also contend that the plaintiffs' claims are barred as to these defendants because the defendants are bona fide purchasers for value of the disputed property.
The cases were tried without a jury and the trial court entered an order in which it held that the contested property in both cases belonged to the public. The trial court denied the defendants' post-trial motions requesting that the court set out its findings of fact and conclusions of law in support of its order. These appeals followed.
A brief overview of the law of "dedication" in Alabama will be helpful in understanding the disposition of this appeal. "A `dedication' is a donation or appropriation of property to the public use by the owner." City of Fairfield v. Jemison, 283 Ala. 462, 464, 218 So. 2d 273, 275 (1969). The public is a necessary party to any dedication, there being "no such thing as a dedication to an individual." Garland v. Clark, 264 Ala. 402, 405, 88 So. 2d 367, 370 (1956). In Alabama a valid dedication may be accomplished by two methods. A "statutory dedication" is made by strictly following the steps set out in Code 1975, § 35-2-51(b). "Common law dedication," which may be either express or implied, is accomplished when there have been acts which evidence an unequivocal intent by the owner to dedicate the property to a public use and an acceptance by the members of the public of the property for that public use. Sam Raine Construction Co. v. Lakeview Estates, Inc., 407 So. 2d 542, 544 (Ala. 1981) (and the authorities cited therein). See, also, Cottage Hill Land Corp. v. City of Mobile, 443 So. 2d 1201 (Ala.1983).
The existence of the vital factor of the owner's intent must be ascertained by the owner's acts and not from any hidden purpose in the owner's mind. Town of Leeds v. Sharp, 218 Ala. 403, 118 So. 572 (1928). It is the conduct of the owner that determines his intent to dedicate property *811 to a public use. Town of Leeds, supra. See, also, 26 C.J.S. Dedication § 11, p. 418 (1956).
Acceptance of a dedication, the second element necessary to a common law dedication of land, "may be shown by long public use, or by acts, either formal or otherwise, of corporate or other public officers adopting the property for the public's use." Cottage Hill Land Corp., supra, at 1203. It is a settled rule that a dedication has not been made until there has been an acceptance of the "offer" to dedicate. Smith v. City of Dothan, 211 Ala. 338, 100 So. 501 (1924). Indeed, even though a defective attempted statutory dedication may operate as a common law dedication, the essential elements of intent and acceptance must still be present to establish a valid common law dedication. 26 C.J.S. Dedication § 4, p. 403 (1956).
It is also true that "formal acts" are not necessary to establish the acceptance of an offered dedication. Effective acceptance may be shown by "general user," not for any particular length of time, but long enough from which the factfinder may infer that the public is acting on a "theory of public right" which is the result of the owner's acts of dedication. Trammell v. Bradford, 198 Ala. 513, 516, 73 So. 894, 896 (1917).
". . .
On appeal, the defendants claim that they own the disputed property in fee and that there was no dedication of the property to the public. We agree that there is nothing in the record to indicate any attempt at a statutory dedication of the five 50-foot lots in Ponce de Leon Court or of the beach areas adjoining Bernard Court and Buchanan Court. Indeed, all the parties agree that the recorded plats are ambiguous as to the dedication question posed by these lawsuits. We find, however, from a careful review of the record, that there was sufficient evidence of a common law dedication to sustain the trial court's order.
The plaintiffs purchased their lots in Ponce de Leon Court, Bernard Court, and Buchanan Court according to recorded plats of the subdivisions. The plaintiffs' deeds contain no language giving them any right to or interest in the two areas of contested property. The plaintiffs living in the Bernard Court and Buchanan Court subdivisions have paid taxes on the beach area since 1972; the defendants (and the defendants' predecessors), however, have paid the taxes on the Ponce de Leon Court "access lots."
W.P. Pickett was the real estate broker who sold most of the lots in Ponce de Leon Court and who was Gulf Beach's exclusive sales agent for the Buchanan Court and Bernard Court lots. He stated that he represented to the Ponce de Leon purchasers that the disputed lots were for the owners of lots in the subdivision for access to the beach. He also stated that the reason for numbering the lots, rather than designating them as roads, was to preclude the public from having access to the beach.
Gerald Sweet also sold some of the lots in the Ponce de Leon Court subdivision. *812 He testified that Pickett told him that the 50-foot lots were access lots and that Sweet then passed this information on to prospective purchasers.
Henry Holland, who worked for Gulf Beach from 1959 to 1974, produced a business record copy of the Ponce de Leon plat on which the words "public beach" were written on lots 9 and 32. He also stated that he had heard many discussions between the president of Gulf Beach and Pickett regarding their intent not to sell the "access lots" in Ponce de Leon Court. Holland also produced a letter which he had written in response to a lot owner's query and in which he had stated that lots 32 and 50 were "reserved for the use of the property owners in that area for access to the Gulf."
A deed from Gulf Beach to Boykin Investments was admitted into evidence which described land that included a portion of Ponce de Leon Court. The description of the land in the subdivision did not include the 50-foot "access lots." Also, a deed from Boykin Investments to Marilyn Stanard was admitted into evidence, which deed also failed to include lots 9, 32, 50, 64, and 86 of Ponce de Leon Court.
Riley Boykin Smith, an officer of Gulf Beach, testified that his family owned all the stock in Gulf Beach except that owned by the corporation's president. Smith stated that he had represented to the lot owners in Ponce de Leon Court that the 50-foot lots were for public access. He also testified that "the intent of the officers and owners of Gulf Beach was that the access would be there because without that access to the beach, the lots to the rear of the development that fronted the Gulf ... wouldn't have much value without any access to the beach." Smith stated that he knew the access lots were open to the public and that the public used the lots and that the lots were intended to be open to public use.
Testimony from the owners of lots in Ponce de Leon Court and from persons who used the access lots but did not live in the subdivision revealed that the sand dunes on the access lots had been bulldozed for easier access to the beach and that there were clearly defined paths on the lots. Several of the lot owners testified that Pickett gave them copies of the plat with circles around the 50-foot lots and with writing stating that the lots were "access lots" or "easements."
Surveyor Claude Arnold examined the plat of Ponce de Leon Court and stated that the plat indicated a "qualified dedication" of the 50-foot lots. In other words, the lots were not reserved by Gulf Beach because they were not "boxed in" on the plat. However, Arnold stated that he did not think a public dedication was intended; rather, he felt that the lots were intended as rights-of-way for the benefit of the lot owners in the subdivision.
Another surveyor, called as a witness by the plaintiffs, testified that when the Fort Morgan Peninsula was originally subdivided and platted (including the area that is now Bernard Court and Buchanan Court), the words "Sand Beach" were written on the original plat over an area which includes the currently disputed land. This, stated the surveyor, indicated the intention of the owner to dedicate a portion of the land between the southern lot lines of the subdivisions and the Gulf. This entire area was later re-subdivided to allow for widening of the highway, but the revised plat of Buchanan Court designates the disputed area as "community beach."
With regard to the disputed beach area of the Bernard Court and Buchanan Court subdivisions, Pickett, the exclusive sales agent of Gulf Beach for these lots, testified that he informed prospective purchasers that the land lying between the subdivisions and the Gulf of Mexico were private beaches for the benefit of the lot owners. He also stated that he had mailed out "thousands" of letters referring to the common use of the beach area. Riley Smith testified that he told Bernard Court and Buchanan Court purchasers that they would receive access to the beach. Smith also stated that Gulf Beach made no claim to the disputed property when the corporation was dissolved in 1974, and that the *813 beach was open to the general public for recreational use.
Bernard Court and Buchanan Court lot owners testified that, in addition to the lot owners' using the beach from the time they purchased their lots, the general public had used the beach area for recreational purposes for a number of years. It is undisputed that the owners of lots in all three subdivisions have continuously used the "access lots" and the "community beach" as such since the time of the purchase of each lot (some as early as 1954), and all continuing to the present.
There can be no doubt from the foregoing that Gulf Beach, to and through its sales agents, represented each portion of the disputed property to be either an "access lot" or a "community beach" area, depending upon the lot being considered for sale. It is from this conduct of Gulf Beach, through its officers and agents, including the spoken and written representations during the sales negotiations for each lot, that we are able to ascertain the requisite intent to dedicate. See Town of Leeds v. Sharp, supra. Equally persuasive is the conduct of the lot owners, as representative members of the public, and, too, the conduct of the general public, in accepting these areas as lands dedicated to the public through their continuous and open use thereof. See Garland v. Clark, supra; Sam Raine Const. Co., supra.
We find, therefore, that the trial court could properly find there was both a valid intent to dedicate the "access lots" of Ponce de Leon Court and the "community beach" of Bernard Court and Buchanan Court on the part of Gulf Beach and an equally valid acceptance of the dedication by the subdivision lot owners and the general public. On the other hand, no evidence was presented to prove that the acceptance was an erroneous interpretation of the acts of the owner. To deny the plaintiffs and the public the use of the land at this time would be a "violation of good faith to the public and to those who have acquired private property with a view to the enjoyment of the use contemplated by [Gulf Beach's] dedication." Sam Raine Const. Co., supra, at 545, quoting 23 Am.Jur.2d Dedication § 56, p. 50 (1965).
Our holding that a valid common law dedication did in fact occur also disposes of other defenses raised by the defendants on appeal. The defendants claim that as bona fide purchasers for value of the interests of Gulf Beach, they are not chargeable with knowledge of the alleged dedication of the disputed property because of the ambiguities present in the recorded plats. This argument must fail for several reasons. First, although the designations of the "access lots" and the "community beach" areas on the recorded plats are not clear, the unusual size, shape, and placement of the "access lots," and the obvious necessity for the "community beach" areas, were sufficient to put Ritchey (a lawyer) on notice of the dedication of the property. Ritchey obtained two of the five access lots by quitclaim deed and, therefore, can not be a bona fide purchaser for value as to those lots. Crump v. Knight, 256 Ala. 601, 56 So. 2d 625 (1952). His deed to the other three lots shows one of those lots as being encumbered by an easement. Even more telling is the chain of title of the disputed property down to Ritchey. The deed from Gulf Beach to Boykin conveyed "all real property owned by Gulf Beach Land Company" and went on to describe the specific lots involved. The five "access lots" were not described.
We have already found that the continuous conduct of the lot owners and the public was sufficient to constitute an acceptance of Gulf Beach's intent to dedicate. This same conduct is sufficient to provide notice of the rights of the lot owners and the public to prospective purchasers, thereby defeating any defense of bona fide purchaser for value. See Touchstone v. Peterson, 443 So. 2d 1219 (Ala.1983); First National Bank of Birmingham v. Culberson, 342 So. 2d 347 (Ala.1977); Cumberland Capital Corp. v. Robinette, 57 Ala. App. 697, 331 So. 2d 709 (1976).
The defendants' defenses of Statute of Frauds and the doctrine of merger are not applicable. Because the recorded plats, *814 by the admissions of all parties, were ambiguous and uncertain in the treatment of the disputed property, parol evidence was admissible and the issue of whether or not a dedication had occurred was for the trier of facthere, the trial court. Johnson v. Morris, 362 So. 2d 209 (Ala. 1978). See, also, I.H.M., Inc. v. Central Bank of Montgomery, 340 So. 2d 30 (Ala.1976).
In the absence of specific findings of fact, we must assume that the trial court "found those facts necessary to support its judgment unless these findings would be clearly erroneous and against the great weight of the evidence." Popwell v. Greene, 465 So. 2d 384, 387 (Ala.1985). Although the trial court did not set out the facts and legal premises upon which it based its order, in light of the facts and prevailing law in Alabama discussed herein, we find that the evidence sustains an interpretation of the trial court's order to the conclusion that there was a valid dedication of the contested property. The judgment of the trial court, therefore, is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur. | May 29, 1987 |
e77d4ad2-55e3-4f8c-99a9-0d7b3926a92d | Holmes v. Alabama Title Co., Inc. | 507 So. 2d 922 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 922 (1987)
Don W. HOLMES, et al.
v.
ALABAMA TITLE COMPANY, INC., and Commonwealth Land Title Insurance Company.
Terrell Keith PARVIN, et al.
v.
LAWYERS TITLE INSURANCE COMPANY.
Jacob STANO, Jr., and Peggy Louise Stano, as Co-guardians for the Estate of Teresa Stano
v.
MISSISSIPPI VALLEY TITLE INSURANCE COMPANY and Jefferson Land Title Services Company, Inc.
Will R. ADDISON, et al.
v.
LAWYERS TITLE INSURANCE COMPANY.
Robert COCHRAN, et al.
v.
MISSISSIPPI VALLEY TITLE INSURANCE COMPANY and Jefferson Land Title Services Company, Inc.
Jacob STANO, Jr. and Peggy Louise Stano, as Co-guardians for the Estate of Teresa Stano
v.
USX CORPORATION.
Terrell Keith PARVIN, et al.
v.
USX CORPORATION.
Don W. HOLMES, et al.
v.
USX CORPORATION.
Robert COCHRAN, et al.
v.
USX CORPORATION.
Hugh W. RICHARDSON, et al.
v.
USX CORPORATION.
Willard C. ALVIS, et al.
v.
USX CORPORATION.
85-1320 to 85-1324, 85-1472 to 85-1475, 85-1477 and 85-1479.
Supreme Court of Alabama.
May 8, 1987.
*923 Deborah S. Braden and William R. Myers of Yearout, Myers & Traylor, Birmingham, amicus curiae on behalf of Jefferson Land Title Services Co., Inc.
Alicia J. Putt and Larry O. Putt of Smyer, White, Taylor & Putt, Birmingham, amicus curiae on behalf of Mississippi Valley Title Ins. Co.
R. Gordon Pate of Pate, Lewis & Lloyd and Hare, Wynn, Newell & Newton, Birmingham, for appellants.
Robert R. Sexton, Roger L. Bates, and William M. Acker III, of Barnett, Tingle, Noble & Sexton, Birmingham, for appellees Alabama Title Co., Inc., and Commonwealth Land Title Ins. Co.
Walter Fletcher and Carleton P. Ketchum, Jr., of Dominick, Fletcher, Yeilding, Wood & Lloyd, Birmingham, for appellee Lawyers Title Ins. Corp.
William F. Murray of Burr & Forman, Birmingham, and James B. Kierce, Jr., of Stone, Patton, Kierce & Kincaid, Bessemer, for appellee USX Corp.
SHORES, Justice.
These are appeals by 128 landowners from summary judgments rendered in favor of United States Steel Corporation (now known as USX Corporation), Alabama Title Company, Inc., Commonwealth Land Title Insurance Company, Lawyers Title Insurance Company, Mississippi Valley Title Insurance Company, and Jefferson Land Title Services Company, Inc.
The appellants are owners of surface tracts located in the Willow Bend subdivision in Bessemer. The surface and mineral estates in this area were originally owned by Woodward Iron Company. On March 22, 1943, Woodward Iron Company conveyed the surface to A.R. Patton by deed, excepting all mineral and mining rights and reserving for itself, its successors, assigns, licensees, or contractors, the right to mine and remove minerals without leaving supports to sustain and prevent damage to the surface of the land. The deed was recorded on March 25, 1943, in the Probate Office of Jefferson County (Bessemer Division), Volume 281, page 404, and provided in pertinent part as follows:
All appellants are successors in title to the surface estate of A.R. Patton. There is no dispute that the appellants are subject to the quoted covenant contained in the 1943 deed.
By deed dated September 29, 1955, and an additional instrument, both recorded in the Probate Office of Jefferson County (Bessemer Division), U.S. Steel became the successor and assign of Woodward Iron Company in ownership of the mineral rights beneath the appellants' respective surface tracts and in the release from liability for damage to the surface, or to improvements and persons thereon, arising from past or future mining operations.
The Concord Mine, owned by U.S. Steel, covers some 25 square miles in western Jefferson County. It is located in part beneath the Willow Bend subdivision. Mining under the subdivision was begun by U.S. Steel on August 13, 1968, and was concluded on February 19, 1975. The appellants purchased their homes in the Willow Bend area over a period of time beginning December 29, 1976, and ending July 15, 1981. The mine was abandoned and sealed in March 1982.
In January 1983, residents of the Willow Bend subdivision relayed reports to the Office of Surface Mining, U.S. Department of the Interior, of tremors and the appearance of surface fractures on their land. The Office of Surface Mining, hereinafter referred to as OSM, has the statutory authority to investigate possible subsidence in abandoned coal mine areas and, in certain instances, to take remedial measures.[1] Pursuant to that authority, OSM conducted a survey of the area.
OSM was initially concerned that methane gas might be escaping through the surface fractures, creating a potentially hazardous condition. Consequently, OSM surveyed all the fractures with a highly sensitive gas detector, but found no gas. Recognizing, however, that the fractures might eventually serve as a means for the methane gas to migrate out of the Concord Mine, a mine which had previously been classified as "gassy," OSM installed steel pipes into the mine to safely vent the methane gas into the atmosphere, where it would dissipate. OSM also determined that the ceiling of the Concord Mine had collapsed, causing subsidence of the surface and damage to land and homes in the Willow Bend area.
The landowners contend that the trial court erred in granting summary judgment in favor of U.S. Steel on claims of negligence, wantonness, trespass, and nuisance. The landowners also contend that the trial court erred in granting summary judgment in favor of the title companies and title insurance companies on claims of fraud, breach of contract, and negligence for failing to adequately apprise the landowners, when issuing commitments for mortgagees' and owners' policies of title insurance on the surface tracts, of the significance and effect of the exculpatory covenant in the 1943 deed, to which they were subject.
The landowners contend that the 1943 deed's exculpatory provision does not bar their actions against U.S. Steel predicated on negligence, wantonness, trespass, and nuisance. We disagree.
In Eastwood Lands, Inc. v. United States Steel Corp., 417 So. 2d 164, 168 (Ala. 1982), the Court held that a provision in a deed reserving to the grantor and its successors the right to mine and remove minerals without leaving support for the surface, identical in wording to the deed in the case before us, barred any cause of action arising from those activities for damage to the surface and buildings or injury to persons thereon. Even though that case dealt specifically with the effect of the exculpatory provision on a negligence cause of action, the holding was not limited to negligence actions. The provision in Eastwood Lands and the provision in the present case *925 unambiguously bar any and all claims arising from the grantor's or its successor's mining activities.
In Eastwood Lands, the cause of action based on negligence was precluded even though the word "negligence" was not mentioned in the deed. The Court relied on an earlier case involving a similar provision, Republic Steel Corp. v. Payne, 272 Ala. 483, 132 So. 2d 581 (1961), where the Court said:
Accordingly, we hold that even if the landowners could produce a scintilla of evidence of nuisance or trespass by U.S. Steel or of evidence that U.S. Steel conducted its mining activities in a negligent or willful and wanton fashion, the unambiguous language in the deed effectively bars all such claims.
The landowner's claims against the five title companies and title insurance companies are likewise without merit. The trial court held that the exceptions from insurance coverage, set out in the companies' title commitments and owner's and mortgagee's policies, of all mineral and mining rights and privileges and immunities relating thereto, by virtue of the instruments recorded in the office of the Judge of Probate of Jefferson County, completely discharged whatever duty, contractual or otherwise, the companies owed to the landowners. We agree.
The purpose of title insurance is not to protect the insured against loss arising from physical damage to property; rather, it is to protect the insured against defects in the title. Title companies and title insurance companies are not required to explain the significance and effect of exculpatory covenants and the like discovered in their title searches.
Summary judgment is proper "when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." Sadie v. Martin, 468 So. 2d 162, 165 (Ala.1985); see generally, Rule 56(c), A.R.Civ.P. Accordingly, the judgments of the trial court are due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur.
[1] If the employees of OSM certify that a potential danger exists, and that no other entity is likely to take remedial measures, federal funds can be released to OSM to have remedial measures taken by contractors working under the direction of the agency. See, 30 U.S.C. § 1239, 30 C.F.R., Chapter VII, Subchapter R. | May 8, 1987 |
d2d5a4f0-4e24-4251-b06b-4b250c127cc7 | Bank of Anniston v. FARMERS & MER. ST. BK. | 507 So. 2d 927 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 927 (1987)
BANK OF ANNISTON
v.
FARMERS & MERCHANTS STATE BANK OF KRUM, TEXAS.
85-1183.
Supreme Court of Alabama.
May 15, 1987.
*928 Albert L. Shumaker of Burns, Shumaker and Davis, Centre, and Ronald S. Held of Sides, Oglesby, Held & Dick, Anniston, for appellant.
Andrew W. Bolt II and C.E. Isom of Bolt, Isom, Jackson and Bailey, Anniston, for appellees.
ADAMS, Justice.
The Bank of Anniston (hereinafter "B of A") appeals from a summary judgment granted by the Circuit Court of Cherokee County in favor of Farmers & Merchants State Bank (hereinafter "F & M"). B of A argues that the trial court erred in declaring that a certificate of judgment recorded in the probate office of Cherokee County was valid and constituted a lien on the property of Farley and Enid Winson. We affirm the judgment of the circuit court.
The facts reveal that F & M obtained a default judgment on May 28, 1979, in the Circuit Court of Calhoun County against Farley and Enid Winson in the amount of $31,579.68 and against Farley Winson in the amount of $21,315.60. The clerk of the Circuit Court of Calhoun County prepared a certificate of judgment, which was recorded August 2, 1979, in the probate office of Cherokee County, the same day that Eric Owen Winson and Enid Verena Winson deeded their fee simple interest in two tracts of land, located in Cherokee County, to Stanley Booker. The certificate of judgment noted that Farley Winson and Eric Owen Winson are the same person.
Booker recorded the deed on August 7, 1979, and conveyed a portion of the land to John S. Casey. Casey later conveyed his interest to B of A in lieu of foreclosure and B of A subsequently foreclosed on a loan secured by a mortgage on the remainder of the property held by Booker. B of A then conveyed portions of the property to various third parties, notwithstanding the certificate of judgment in favor of F & M.
B of A brought this action in January 1985, to contest the validity of F & M's lien on the Winson property. B of A alleged that F & M's lien was invalid because the certificate of judgment failed to comply with the requirements of Ala.Code 1975, § 6-9-210. Counsel for B of A orally notified the court and opposing counsel that the only issue being contested was the omission from the certificate of judgment of the address of the judgment debtor. B of A filed no brief, memorandum, or affidavits, but cited the case of Ball v. Vogtner, 362 So. 2d 894 (Ala.1978), to the trial court. F & M questioned what issue would be tried because, F & M argued, Ball dealt with more than the omission of the judgment debtor's address. The trial judge then wrote to counsel for both parties, stated the issue as understood by the court, and asked for confirmation or corrections from B of A and F & M. F & M confirmed the judge's statement of the issue as being correct; B of A apparently did not respond. The trial court stated the issue in the case to be:
B of A argues in this appeal that the certificate of judgment issued to F & M is defective and could not constitute a lien on the Winsons' property because it fails to sufficiently state (1) the name of the judgment holder, F & M; (2) the names of the defendants, the Winsons; and (3) the Winsons' address. Although B of A's complaint generally alleged that the certificate of judgment did not comply with § 6-9-210, the only issue briefed or argued before the trial court was the sufficiency of the Winsons' address as stated on the certificate of judgment.
We have held previously that "in determining the propriety of summary judgment,... we are limited in our review to *929 the same factors considered by the trial court when it initially ruled on the motion." Prudential Insurance Co. v. Coleman, 428 So. 2d 593 at 598 (Ala.1983). B of A had ample opportunity to argue the insufficiency of the Winsons' name and F & M's name as they appeared on the certificate of judgment, but did not do so. B of A apparently accepted the trial judge's statement of the issue in the case, i.e., whether the address shown on the certificate of judgment for each defendant complied with § 6-9-210, and argued no other issue. The only issue before us on appeal, therefore, is the issue raised and argued at trial.
Section 6-9-210 provides:
The certificate of judgment prepared by the clerk of the Calhoun County Circuit Court showed the addresses of the Winsons as "(Texas & Florida addresses) (also Anniston)." The trial court found that the certificate complied with § 6-9-210.
B of A argues that the certificate of judgment did not create a lien against the Winsons' property because it failed to show their addresses as revealed in the trial court proceedings. The appellant cites Miles v. Gay, 280 Ala. 131, 190 So. 2d 686 (1966), for the proposition that § 6-9-210 "is in derogation of the common law and is to be strictly construed." Both parties cite Ball v. Vogtner, 362 So. 2d 894 (Ala.1978); B of A argues that Ball supports its contention that § 6-9-210 must be strictly observed in order to create a lien, and F & M argues that Ball is distinguishable from the present case. In Ball, we held:
362 So. 2d at 897. We note, however, that the statutory requirement that the contents of the certificate of judgment be strictly observed must be viewed in relation to the purpose of that requirement. That purpose is to provide notice of the judgment to anyone searching title to the real property. In Ball, the judgment debtor was incorrectly named as Mary Morgan instead of as Mary Collins; therefore, a third party could not have discovered the judgment lien in the chain of title and would not have had notice of an encumbrance on the title. Here, however, the certificate of judgment was within the chain of title and would have given notice to anyone searching title to the property. B of A argues that the omission of the Winsons' specific addresses from the certificate of judgment was, in itself, a fatal defect, but does not claim that the omitted addresses impaired their discovery of the certificate. The focus of our holding in Ball was the sufficiency of the certificate of judgment to impart notice *930 of the judgment lien to subsequent title searchers, not a rigid adherence to form.
In the present case, the clerk of the Calhoun County Circuit Court stated in his affidavit that the Winsons had seven addresses and that there was not adequate space on the certificate to list them all. He testified that the addresses included:
He testified further:
The notation on the certificate of judgment, "(Texas & Florida addresses) (also Anniston)," was found by the trial court to comply with the address requirement of § 6-9-210. Any diligent search of the title to the property in question would have revealed the certificate of judgment. There is no evidence before us to suggest that the Winsons' addresses, as stated on the certificate, misled anyone or failed to give notice of the prior judgment in favor of F & M. The clerk's notation on the certificate of judgment, in this instance, provided notice that a title searcher should consult the court record for further information. We cannot say that the trial court erred in finding that the certificate of judgment complied with the requirements of § 6-9-210. To hold otherwise would be a triumph of form over substance.
The judgment of the Circuit Court of Cherokee County is, therefore, affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur. | May 15, 1987 |
9425f108-439a-41f7-bf1c-f2bc3d02fa60 | Totten v. LIGHTING AND SUPPLY, INC. | 507 So. 2d 502 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 502 (1987)
Don TOTTEN
v.
LIGHTING AND SUPPLY, INC.
85-1338.
Supreme Court of Alabama.
April 24, 1987.
*503 Bob Humphries, Montgomery, for appellant.
James R. Cooper, Montgomery, for appellee.
MADDOX, Justice.
This case involves a suit upon a debt allegedly owed by the appellant, Don Totten[1] to Lighting and Supply, Inc., the appellee.
Totten frames the issue on appeal as follows:
The record on appeal consists only of the complaint filed by Lighting and Supply, Inc., against Totten; Totten's answer, in which he merely denied the allegations of the complaint; and an order of the trial court, which reads as follows:
We do not have before us the transcript of the hearing mentioned in the trial court's order, nor do we have a record before us which contains the substance of the "statements of counsel," to which the trial court referred in its order.
In his argument in his brief, Totten states that he acted solely "as a representative of ELECTRICAL CONSTRUCTION COMPANY, INC., in signing the charge slips for the goods and materials from appellee"; however, we do not have before us a transcript of the evidence, and Totten does not refer us to any evidence which would support his argument, as required by Rule 28(e), Ala.R.App.P.
Based on the record before us, we must assume that the trial court had before it evidence to sustain every finding of fact made and that it made those findings necessary to support the judgment. Even if we had been favored with a transcript of the evidence before the trial court, this Court is not under a duty to search the record in order to ascertain whether it contains evidence that will sustain a contention made by either party to an appeal. Johnson v. Fishbein, 289 Ala. 328, 267 So. 2d 405 (1972). Furthermore, on appeal, this Court is limited to a review of the record alone, and an issue not reflected in the record as having been raised in the trial court cannot be raised for the first time on appeal. Mobile Wrecker Owners v. City of Mobile, 461 So. 2d 1303 (Ala.1984).
The judgment of the trial court is due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and SHORES, BEATTY and HOUSTON, JJ., concur.
[1] Although appellant Totten argues that he is not responsible for the debt of the corporation, we note that he styled his notice of appeal and his brief on appeal as "Don Totten, d/b/a Electrical Construction Co., Inc., appellant v. Lighting and Supply, Inc." | April 24, 1987 |
e75b4fc0-766c-4de2-993e-0696e2cc82d5 | Coffee v. SEABOARD SYSTEM RR, INC. | 507 So. 2d 476 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 476 (1987)
Richard COFFEE
v.
SEABOARD SYSTEM RAILROAD, INC.
84-1350.
Supreme Court of Alabama.
April 24, 1987.
Frank O. Burge, Jr., and Michael A. Florie of Burge & Wettermark, Birmingham, for appellant.
John B. Tally, Jr., and Paul E. Toppins of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
*477 PER CURIAM.
This is an appeal from an order granting Seaboard System Railroad's motion for a new trial. Appellant, Richard Coffee, had received a jury award for compensatory damages in the amount of $895,000.
Coffee worked as a trainman for Seaboard. Part of his job was to switch hopper cars at a private side rail owned by the Jessie Morrie Sand Company. While working at this particular location, Coffee stepped from a hopper car and tripped on an object which was hidden from view by a large accumulation of sand. He suffered severe, permanent injury to his knee. The testimony tended to show that this accumulation of sand created a generally hazardous working environment. Appellant brought suit under the Federal Employers' Liability Act (F.E.L.A.), 45 U.S.C. § 51, et seq. The F.E.L.A. provides that every common carrier by railroad shall be liable for damages suffered by an employee of the carrier caused, in whole or in part, by the negligence of the carrier or its agents. Under the F.E.L.A., Seaboard has a nondelegable duty to provide a reasonably safe workplace.
Seaboard's motion for a new trial contained several grounds in support of the motion. The trial court's order does not specify the grounds upon which it was based. Nevertheless, it is due to be affirmed if it is supported by any good ground. Johnson v. Hodge, 291 Ala. 142, 279 So. 2d 123 (1973) (overruled on other ground).
Seaboard's motion states 22 reasons why a new trial should be granted. Most of these reasons overlap and can be grouped into four separate grounds: (1) the verdict of the jury is contrary to law; (2) the verdict of the jury is against the great weight and preponderance of the evidence; (3) the verdict is excessive; and (4) Seaboard was denied a fair trial as a result of improper remarks made to the jury by counsel for plaintiff. The fourth ground appears to be the ground upon which the trial court relied. This is the only ground discussed by Seaboard in its brief filed in the trial court.
During cross-examination of a witness by counsel for Seaboard, Coffee's counsel made an objection which was followed by an exchange during which the improper remarks were made (Mr. Tally is counsel for Seaboard; Mr. Florie is counsel for Coffee):
A conference in the judge's chambers followed wherein counsel for Seaboard made a motion for a mistrial, based on the remarks made by plaintiff's counsel. These remarks were obviously of great concern to the trial judge, as is evidenced by the judge's statements made during the discussion in chambers:
*478 No further action was taken at that time. The next day Seaboard renewed its motion. The motion was denied. Seaboard then requested that curative instructions be given to the jury. The trial court responded as follows:
It appears, as Seaboard contends, that the trial court considered a curative instruction necessary. However, no such instruction was ever given.
This Court has on many occasions noted the impropriety of making references to agreements requiring a non-party to indemnify a party for the expenses of a lawsuit. See, e.g., Robins Engineering, Inc. v. Cockrell, 354 So. 2d 1 (Ala. 1977). Counsel for plaintiff made such a reference when he stated in the presence of the jury, "They have got a claim over an agreement to get back every cent they have to give out in this lawsuit." We must depend on the discretion of the trial judge in assessing the effect of this statement. We will not reverse his finding absent a clear showing of an abuse of this discretion. Taylor v. Brownell-O'Hear Pontiac Co., 265 Ala. 468, 91 So. 2d 828 (1956). The rule recently laid down in Jawad v. Granade, 497 So. 2d 471 (Ala.1986), is inapposite. That case dealt only with the standard of appellate review when the granting or denying of a motion for new trial is based on the weight and preponderance of the evidence.
We cannot conclude that the trial court abused its discretion in ordering a new trial. The order is therefore affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON, BEATTY and HOUSTON, JJ., concur. | April 24, 1987 |
23495481-633a-4379-ab22-80be97dc0b98 | Ex Parte Forbus | 510 So. 2d 242 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 242 (1987)
Ex parte Zella FORBUS
(Re Ex parte Zella Forbus. Petition For Writ of Mandamus
[In re BRENTWOOD PARK APARTMENTS
v.
Zella FORBUS]).
86-181.
Supreme Court of Alabama.
May 15, 1987.
*243 David H. Webster of Legal Services Corp. of Alabama, Talladega, for petitioner.
Robert B. Barnett, Jr., of Gaines, Gaines & Barnett, Talladega, for respondent.
HOUSTON, Justice.
Brentwood Park Apartments ("Brentwood") filed an unlawful detainer action in the District Court of Talladega County against Zella Forbus. The district court entered a judgment in favor of Brentwood for possession of the apartment and Ms. Forbus timely filed notice of appeal to the circuit court, demanding a trial by jury. Pursuant to Rule 62(dc), Ala.R.Civ.P., Ms. Forbus filed, along with her notice of appeal, an affidavit of substantial hardship in lieu of a bond for costs. Ms. Forbus then filed a motion in circuit court to stay execution of the district court judgment pending her appeal to circuit court. Brentwood filed a motion in circuit court requesting it to either set the amount of the supersedeas bond, as required under § 6-6-351, Code 1975, or to execute the district court judgment and remove Ms. Forbus from her residence. The circuit court then entered an order executing the judgment of the district court unless Ms. Forbus should post a supersedeas bond pursuant to § 6-6-351. Ms. Forbus petitioned the Court of Civil Appeals for a writ of mandamus directing the judge of the Circuit Court of Talladega County to stay execution of the district court's judgment without the necessity of filing a supersedeas bond. The Court of Civil Appeals denied her petition, and Ms. Forbus petitioned this Court for writ of certiorari. We reverse.
Rule 62(dc) provides, in pertinent part: "(5) the provision for a supersedeas bond in Rule 62(d) is deleted and Rule 62(d) is modified so as to require only a bond for costs or affidavit of substantial hardship, approved by the court, in lieu of said bond."
In King v. Sikora, 368 So. 2d 10 (Ala. 1979), we had the opportunity to address the operative effect of Rule 62(dc) in an unlawful detainer action. In King, we held that the defendants "legally enjoyed the protection of Rule 62 which had the effect of automatically staying the district court judgment, as a matter of law, upon the filing of the notice of appeal." 368 So. 2d at 11. Based on King, Ms. Forbus contends that compliance with Rule 62(dc), when an appeal is taken, has the operative effect of staying the district court judgment on appeal to the circuit court, thereby rendering the filing of a supersedeas bond, under § 6-6-351, Code 1975, unnecessary.
Section 6-6-351, Code 1975, provides:
In denying Ms. Forbus's petition for writ of mandamus, the Court of Civil Appeals distinguished King, supra, from the instant case, and held that Rule 62(dc) could not supersede § 6-6-351 since § 6-6-351 is substantive and could not be changed by rules of civil procedure. We disagree.
In King, supra, we wrote that "while we have grounded our decision on the operative effect of Rule 62(dc), we do not comment upon whether a different result would obtain had the District Court judgment not been stayed or, in fact, had the judgment been executed." (Emphasis added.) 368 So. 2d at 11. The "different result" referred to by us in King does not concern the operative effect of Rule 62(dc), but, instead, concerns whether the Sikoras *244 could have recovered the expenses which they incurred by moving from the property if the judgment had not been stayed. See Black v. Knight, 176 Cal. 722, 169 P. 382 (1918). As a result of the Sikoras' voluntarily moving from the property, we found that it would be "legally impermissible" to impose their moving expenses upon King. Notwithstanding the fact that King took no steps to execute the district court's judgment, we held that the trial court properly denied King's motion to compel the Sikoras to post a supersedeas bond (as a requisite to staying the judgment pending appeal). For the foregoing reasons, we find King to be analogous to the present case, and accordingly, hold that compliance with Rule 62(dc)(5), upon filing the notice of appeal, automatically stays the execution of a district court judgment for possession, as a matter of law, pending an appeal to the circuit court.
By Amendment 328, § 6.11, of the Alabama Constitution, we were granted the power, authority and responsibility to make and promulgate rules governing practice and procedure in all courts; however, we were expressly prohibited from abridging, enlarging, or modifying the substantive law. Section 6.11 is the source of our authority to promulgate rules of procedure as to the district courts.
Ms. Forbus contends that the supersedeas bond required by § 6-6-351 is procedural in nature and therefore is supplanted by Rule 62(dc)(5). We agree. Pursuant to Rule 62(dc), it is not necessary to post a supersedeas bond to perfect an appeal. However, the legislature, by enacting § 6-6-351, has set forth a procedure, in cases of forcible entry or unlawful detainer, for staying execution of a lower court's judgment for restitution or possession pending an appeal. That procedure requires the defendant to execute a bond, with sufficient sureties, payable to the plaintiff in the sum of twice the yearly value of the rent of the premises. Rule 62(dc) merely changes the procedure in an appeal from a district court to a circuit court for staying the execution of a district court judgment, in forcible entry and unlawful detainer actions, by deleting the provision for a supersedeas bond and requiring only a bond for costs or affidavit of substantial hardship in lieu of the bond for costs. It was within the rule-making authority granted to us by the Alabama Constitution to change this procedure. It was in express recognition of the constitutionally guaranteed right to a trial by jury that Rule 62(dc) was promulgated and adopted by this Court. Accordingly, the Committee Comments to Rule 62(dc) state:
The Court of Civil Appeals cited Wright v. Hurt, 92 Ala. 591, 9 So. 386 (1891), for the proposition that "failure to give the bond provided for by § 6-6-351 of the Code does no more than deprive the petitioner [Ms. Forbus] of the right to retain the property pending the appeal" and, therefore, held that that Code section does not deny her a trial by jury. Wright was correctly decided. However, subsequent to Wright, § 6-6-352, Code 1975, was enacted, so that Wright does not reflect current law. Section 6-6-352 provides, in pertinent part, as follows:
Since the circuit court can restore an occupant to possession only against the owner, but not as against a third party, § 6-6-351 does more than deprive the occupant of the right to "retain" possession, when the owner rents or leases the property to a third *245 party pending the appeal. If an owner rents or leases the property to a third party pending the appeal, the inability to post a bond, as required by § 6-6-351, deprives the occupant of the right to be restored to possession in the event that the district court judgment is reversed. Furthermore, at the time Wright was decided, there was no statutory authority for restoring an occupant to possession.
In Wright, the owner recovered a judgment before the justice of the peace and under a writ issued on this judgment was put in possession of the land before the occupant sued and obtained a writ of certiorari. The circuit court granted judgment for the occupant and ordered the sheriff to place the occupant in possession of the premises, which were then held by the owner. The owner asserted that the circuit court had no power to order such restoration of possession. In response to the owner's assertion, Justice Walker wrote:
92 Ala. 595, 9 So. at 387.
In view of Justice Walker's rationale, it is apparent that the enactment of § 6-6-352 modified Wright since the circuit court no longer has authority to place an occupant in possession if the owner has leased the property to a third person. In this *246 instance, the occupant is not only deprived of the right to retain the property pending the appeal but also of the right to be restored to possession after prevailing on appeal. The composite effect of § 6-6-351 and § 6-6-352 is to deprive the occupant of a meaningful appeal.
For the foregoing reasons, we hold that Ms. Forbus's filing of an affidavit of substantial hardship with her notice of appeal effectively stayed execution of the district court's judgment for possession pending her de novo appeal to the circuit court.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
MADDOX, JONES, ALMON, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., and SHORES and STEAGALL, JJ., not sitting. | May 15, 1987 |
7daa3244-c4ba-48a0-878c-3cd1117026cf | Dallas County Bd. of Educ. v. Henry | 507 So. 2d 911 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 911 (1987)
DALLAS COUNTY BOARD OF EDUCATION
v.
John C. HENRY, et al.
85-656.
Supreme Court of Alabama.
May 1, 1987.
John E. Pilcher of Pilcher & Pilcher, Selma, for appellant.
J. Doyle Fuller and C. Knox McLaney, Montgomery, for appellees.
STEAGALL, Justice.
The issue in this case is whether the trial court correctly denied the motion of appellant, Dallas County Board of Education (hereinafter "Board"), to intervene in a lawsuit pending in the Circuit Court of Dallas County. We affirm.
The suit in which the Board seeks to intervene was brought as a class action challenging the method used to determine the "current use" valuation of land for ad valorem tax purposes and seeking a refund of such taxes improperly collected. Named as defendants in the suit are the state commissioner of revenue, the state treasurer, the Dallas County tax assessor, the Dallas County tax collector, and the chairman of the Dallas County Commission.
The Board sought to intervene as a party defendant as a matter of right pursuant to Rule 24(a), A.R.Civ.P. The trial court's denial of the Board's motion to intervene is an appealable order. Crossfield v. Allen, 494 So. 2d 21 (Ala.1986); United States Fidelity & Guaranty Co. v. Adams, 485 So. 2d 720 (Ala.1986); Thrasher v. Bartlett, 424 So. 2d 605 (Ala.1982). Rule 24(a)(2), A.R.Civ.P., provides:
In order to determine whether the trial court erred in denying the Board's motion to intervene, we must consider the interest of the Board in the pending action. United States Fidelity & Guaranty Co. v. Adams, supra.
The Board claims an interest in the action because a portion of the collected taxes that are the subject of the lawsuit was paid to the Board. According to the brief filed by the Board, approximately 25 percent of the taxes were dispersed to the Board by the county tax collector, and the Board "could be required to refund or pay" its proportionate share should the plaintiffs prevail in this action. Thus, the Board contends that it is precluded from protecting *912 its interest due to the trial court's denial of its motion to intervene.
In State v. Colonial Refrigerated Transportation, Inc., 48 Ala. App. 46, 261 So. 2d 767 (Ala.Civ.App.1971), aff'd, 288 Ala. 433, 261 So. 2d 772 (1972), the Court of Civil Appeals determined that the trial court had abused its discretion in permitting a county board of education, a city, and a county director of revenue to intervene in an action in which the State sought to collect "escape ad valorem taxes" from Colonial. The intervenors argued "that they had an interest in the outcome of the litigation because they stood to gain revenue if the State was successful, and they stood to lose if Colonial was successful...." 48 Ala.App. at 49, 261 So. 2d at 769. The Colonial court decided that the interest of the would-be intervenors in the litigation "amounts to no more than `concern' for the outcome, as any other recipient of tax benefits would exhibit. For example, any parent with a child in the county or city schools would be concerned, and any other citizen of the county would be concerned about the availability of tax money for the various services supplied by these governmental agencies." 48 Ala. App. at 50, 261 So. 2d at 771.
In the present case, we perceive the "interest" of the Board in the pending litigation to be no different from the "interest" advanced by the would-be intervenors in the Colonial case. The Board's assertion that a judgment ordering a refund of ad valorem taxes already collected and paid to the Board will impair the Board's ability to operate the Dallas County schools is no more than the assertion of a "concern" for the outcome of the litigation. This concern is undoubtedly shared by all citizens of the county, as well as by any other governmental agencies that received any part of the taxes claimed by plaintiffs to have been improperly collected. We are of the opinion that the Board does not have an interest in the subject of the pending action that will permit its intervention as of right pursuant to Rule 24(a), A.R.Civ.P.
The order of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur. | May 1, 1987 |
da479f91-64fd-4e98-95f1-227a269f3dff | Ex Parte Peagler | 516 So. 2d 1369 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 1369 (1987)
Ex parte Michael Dean PEAGLER.
(Re: Michael Dean Peagler v. State of Alabama)
No. 86-567.
Supreme Court of Alabama.
July 31, 1987.
Rehearing Denied September 25, 1987.
Stephen K. Simpson, Montgomery, for petitioner.
Don Siegelman, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.
MADDOX, Justice.
The question presented on this petition for certiorari is the effect of a prosecutor's asking a defense witness other than the accused whether he had ever been convicted of a felony or a crime involving moral turpitude, where the prosecuting attorney was not prepared, when the witness gave a negative answer, to offer anything other than a FBI "rap sheet" as documentary proof of the conviction.
Petitioner was convicted for possession of cocaine. The state moved to invoke the provisions of Alabama's Habitual Offender Statute, and petitioner was sentenced to a term of three years.
He appealed his conviction to the Court of Criminal Appeals, which affirmed his conviction, without writing an opinion, 502 So. 2d 404. Petitioner timely filed an application for rehearing in that court, and, pursuant to the provisions of Rule 39(k), Ala.R.App.P., moved the court to write an opinion setting out facts in regard to several matters. With regard to the specific question we address, petitioner requested that court to add these facts:
"The first witness for the defendant was James Peagler, Jr. Mr. Peagler testified that he was the defendant's ... brother. James Peagler testified that he was represented by Charles Payne and he stated that he understood what he was doing and that he wanted to testify in the trial of his brother's case. When asked who the cocaine belonged to, James Peagler stated that it was his. He testified that he had the cocaine in a plastic bag. James Peagler stated that he told his brother Michael to ride to the Modern Trailer Park in the van with the *1370 other people. He stated that he did not believe that Michael knew anything about a cocaine deal occurring on that night. He stated that he had just told Michael to go and take the folks to the trailer park and that he would be over there in about 15 or 20 minutes. He testified that Michael never had any of the cocaine. He stated that Michael didn't do anything but put his hands on the car when the police arrived and began to arrest them. He stated that Michael had not gotten into his car prior to the time that the police arrested them. He described how he was searched and he described the fact that the police searched his vehicle after he and Michael had been taken away. Mr. James Peagler testified that Michael Peagler was not going to make any money off of the sale of cocaine that occurred that day. On cross-examination, James Peagler was asked if he was the same James Peagler, Jr., who was convicted February 2, 1984, in the Circuit Court of Autauga County for receiving stolen property. He replied, "I don't know nothing about that." Thereupon, Mr. Payne, his attorney, objected to any questions along that line and a lengthy conference was held among the lawyers for Michael Peagler, James Peagler, and the State of Alabama. At this time the defendant's lawyer objected to the question regarding prior convictions of his witness James Peagler, Jr., unless the State could produce a certified copy of a court record indicating that he was convicted. The State replied that they did not have certified copies of the court records of James Peagler, Jr.'s convictions. The defendant's attorney pointed out that the questioning of James Peagler, Jr., in regard to prior convictions in an attempt to impeach him without the necessary court documents to place into evidence to impeach him was highly prejudicial to Michael Peagler's defense. The State of Alabama was allowed to pursue questions in regard to James Peagler, Jr.'s prior convictions."
Petitioner contends that the trial court committed prejudicial error in permitting the state to base its questions to his witness on information contained on a FBI "rap sheet."
The state contends that there is "no case in this jurisdiction [that] requires ... proof [by properly authenticated documentary evidence] in an instance where a witness, who is being subjected to cross-examination for impeachment purposes, denies commission of a crime involving moral turpitude." The state cites in support of its position Code 1975, § 12-21-162, which reads, as follows:
"XX-XX-XXX. Witness convicted of crime.
The state emphasizes the word "may" in the statute and contends that there is no requirement on the state, in this case, to prove, by use of a properly authenticated court record, or a certified copy thereof, that the witness had been previously convicted. We disagree.
In Bezotte v. State, 358 So. 2d 521, 525, (Ala.Cr.App.1978), the Court of Criminal Appeals stated: "Even though a prior conviction involving moral turpitude may be shown upon the cross-examination of a witness, this examination should be subject to the limitation that it be conducted in good faith. See 3 A.L.R.3d 965, and the cases cited therein, concerning lack of documentary proof of a prior felony conviction."
In Gregath v. Bates, 359 So. 2d 404 (Ala. Civ.App.1978), Holmes, J., writing for the court, specifically addressed the same question now pending before us:
"The defendant alleges as error the trial court's refusal to admit testimony which attempted to impeach a witness. Specifically, the defendant was attempting to impeach the testimony of one of *1371 the plaintiffs by showing a conviction for a crime involving moral turpitude, i.e., conspiracy to commit gambling.
We are of the opinion that Gregath, although it was a civil case, correctly states the law of this jurisdiction; therefore, the judgment of the Court of Criminal Appeals is due to be reversed and the cause remanded to that court for further proceedings consistent with this opinion. See Annot., 3 A.L.R.3d 965 (1965).
REVERSED AND REMANDED.
JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
HOUSTON, J., dissents.
TORBERT, C.J., and STEAGALL, JJ., not sitting.
HOUSTON, Justice (dissenting).
I would affirm. Certainly the State must exercise good faith in cross-examining a witness about a prior conviction of a crime involving moral turpitude. However, if the State has knowledge from a credible source, and I consider an F.B.I. rap sheet a credible source, it is not reversible error to cross-examine that witness about that prior conviction merely because the State has not arranged to have available at the time of trial a certified or sworn copy of that conviction which could be introduced over defendant's objection.
MADDOX, Justice.
The State of Alabama, in an application for rehearing, states the following:
The State insists that "from this date forward, that before anyone can question any witness, not just an accused in a criminal proceeding, as to any prior convictions of that witness for a felony or crime involving moral turpitude, that the questioning attorney must have in his or her possession properly authenticated and certified court records of any prior conviction or else such examination of that witness will be presumed to be in `bad faith.'" A careful reading of this Court's opinion will show that this Court did not so hold. In this case, the witness denied the prior conviction. We cannot assume that every witness, while under oath, who is questioned about a crime which appears on a "rap" sheet will deny that he or she committed it.
*1372 Regarding the State's argument that the Court's opinion will have a serious impact upon the trial of cases in Alabama, we can only say that, having considered very carefully the impact that the decision might have, we are of the opinion that the rule stated on original deliverance is sound. At common law, a person convicted of a felony was incompetent to testify. It is only by reason of statutory provision that such a witness is now competent. The question of the credibility of a witness who has been previously convicted of a felony or a crime involving moral turpitude is of such magnitude that parties are entitled to have jurors charged on the effect of such convictions. We did not hold that a party may not use an F.B.I. "rap" sheet to examine a witness, as the State argues, but we did hold that, if that witness denies his conviction, the reasoning of the Court of Civil Appeals in Gregath v. Bates, 359 So. 2d 404 (Ala.Civ. App.1978), was sound:
We would further note that the legislature has recently enacted Act 87-604, Acts of Alabama 1987, which deals with proving prior convictions by the admission of case action summary sheets, docket sheets, or other records. This Act states as follows:
Because this Act had not been enacted at the time of this trial, it has no application to this case, but proof of prior convictions, in those cases when the witness denies the conviction, would be facilitated by the procedure authorized by Act 87-604.
OPINION EXTENDED; APPLICATION DENIED.
JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
HOUSTON, J., dissents.
TORBERT, C.J., and STEAGALL, J., not sitting. | July 31, 1987 |
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